Decision will be entered for the respondent.
Petitioner Hugo Romanelli owned and operated a tavern from 1961 through 1964, the taxable years in question. On Oct. 29, 1964, based upon the affidavit of a special agent who had investigated petitioner's tavern in an undercover capacity, a search warrant was issued authorizing the search of such tavern. The search warrant was founded upon the belief that petitioner had engaged in wagering activities in violation of
1. The search warrant was valid despite an irregularity in the number address of petitioner's tavern which was erroneously *100 stated to be 5152 rather than 5158.
2. The search warrant, issued in 1964 and based upon violation of
3. The instant proceeding determining whether petitioners are liable for additions to tax under
4. Petitioners are liable for additions to tax under
*1449 Respondent determined deficiencies in petitioners' income taxes as follows:
| Additions | ||
| to tax | ||
| sec. 6653(b), | ||
| Year | Amount | I.R.C. 1954 |
| 1961 | $ 545.56 | $ 272.78 |
| 1962 | 715.42 | 357.71 |
| 1963 | 974.53 | 487.27 |
| 1964 | 1,807.86 | 903.93 |
*101 The issues for decision are (1) the amount, if any, of petitioners' income from gambling operations during the taxable years in question; and (2) whether petitioners are liable for additions to tax under
FINDINGS OF FACT
Some of the facts were stipulated. The stipulation of facts, together with exhibits attached thereto, is incorporated herein by this reference.
Petitioners Hugo and Norma Romanelli are husband and wife. Petitioners resided in Chicago, Ill., at the time of the filing of their petition in this case. For their taxable years 1961 through 1964, petitioners filed their joint Federal income tax returns on the calendar year basis with the district director of internal revenue, Chicago, Ill. Norma Romanelli is a petitioner in this case only because she filed a joint return with her husband. Hereinafter only Hugo Romanelli will be referred to as petitioner.
In 1964, as part of an area investigation of wagering activities in the vicinity of Chicago in connection with the operation of restaurants, *1450 taverns, and the like, the Internal Revenue Service *102 commenced an undercover investigation of Parkside Liquors, a tavern owned and operated by petitioner from 1955 through May 1966. To this end, special agents of the Internal Revenue Service, Intelligence Division, began visiting petitioner's tavern in February 1964. Between February and October 29, 1964, at least three special agents had occasion to place wagers with petitioner and to observe others doing the same. Special Agent Donald Schultz placed between 40 and 50 horserace wagers with petitioner at Parkside Liquors during the 9-month period. In addition, he placed wagers with petitioner over the telephone during this period. Special Agent Stewart J. Hoak placed approximately 15 wagers on a weekly basis with petitioner from July 22, 1964, to October 29, 1964. Thereafter, on November 12 and November 19, he placed 2 additional wagers with petitioner. Special Agent Norbert L. Ruzycki placed 6 wagers with petitioner in the month of October 1964.
On October 29, 1964, a search warrant was issued by U.S. Commissioner C. S. Bentley Pike of the U.S. District Court for the Northern District of Illinois, Eastern Division, authorizing the search of Parkside Liquors. The search warrant *103 reads:
Search Warrant
UNITED STATES DISTRICT COURT
for the
Northern District of Illinois, Eastern Division
Commissioner's Docket No. 23
Case No. 11292
United States of America
v.
Premises, being the ground floor of a one-story brick building at 5152 West Irving Park Road, Chicago, Illinois, commonly known as Parkside Liquors
Search Warrant
To the United States Marshal or any other authorized officer
Affidavit having been made before me by Norbert L. Ruzycki, a Special Agent of the Intelligence Division, Internal Revenue Service that he has reason to believe that on the premises known as the ground floor of a one-story brick building at 5152 West Irving Park Road, Chicago, Illinois, commonly known as Parkside Liquors
in the Northern District of Illinois
there is now being concealed certain property, namely, records and wagering paraphernalia including, but not limited to, bet slips, rundown sheets, account sheets, recap sheets, United States Currency and Coin, checks, telephones, and divers other wagering paraphernalia, which have been and are being used in the business of accepting wagers
*1451 which are being used in violation of
and as I am satisfied that there is probable cause to believe that the property so described is being concealed on the premises above described and that the foregoing grounds for application for issuance of the search warrant exist.
You are hereby commanded to search forthwith the place named for the property specified, serving this warrant and making the search in the daytime and if the property be found there to seize it, leaving a copy of this warrant and a receipt for the property taken, and prepare a written inventory of the property seized and return this warrant and bring the property before me within ten days of this date, as required by law.
Dated this 29 day of October, 1964
(S) C. S. Bentley Pike
U.S. CommissionerAs therein indicated, the issuance of the search warrant was founded upon the affidavit of Special Agent Ruzycki and his experiences during the month of October 1964 in connection with Parkside Liquors. Ruzycki stated in his affidavit that he had reason to believe that the property described in the *105 warrant was being concealed "at 5152 West Irving Park Road, Chicago, Illinois, commonly known as Parkside Liquors." (Emphasis added.) The Post-Office address of Parkside Liquors was, in fact, 5158 West Irving Park Road, Chicago, Ill. The affiant stated as the grounds for this belief:
That on five different dates in October 1964, the last date being October 22, 1964, affiant placed horse race wagers on the premises of a ground floor liquor store of a one-story brick building at 5152 West Irving Park Road, Chicago, Illinois, commonly known as the "Parkside Liquors". On each occasion the wager was placed with a man identified as Hugo Romanelli. On each occasion after accepting the wager, Hugo Romanelli would compare the bet slip with a scratch sheet kept by a cash register in the package goods section of the premises. On each occasion the affiant observed other customers in the liquor store hand slips of paper and currency to Hugo Romanelli.
On October 20, 1964, the affiant told Hugo Romanelli that he had a winner coming. The affiant then observed Hugo Romanelli walk behind the package goods counter and return a short while later with the winnings, $ 2.20.
On October 28, 1964, the *106 affiant examined the records of the District Director of Internal Revenue, Chicago, Illinois for all wagering tax stamps issued and for all Registration and Application Forms 11-C filed in the Chicago District, Internal Revenue Service, for the period beginning July 1, 1964, and ending June 30, 1965, and said examination of those records revealed that the premises at 5152 West Irving Park Road, Chicago, Illinois, is not registered as an address where the business of accepting wagers is conducted, nor did the records reflect that the premises is the residence address of any wagering tax stampholder in the Chicago Internal Revenue District.
Although Ruzycki had visited the premises of Parkside Liquors on at least five separate occasions prior to the execution of the affidavit, *1452 he did not specifically recall the number address of the tavern at the time he executed the affidavit but was informed of such address by another agent. However, the name "Parkside Liquors" and its location, at the corner of Laramie Avenue and West Irving Park Road, were well known to him at that time. In checking whether Parkside Liquors had registered pursuant to the requirements of
Parkside Liquors was located on the northeasterly corner of the intersection of Irving Park Road and Laramie Avenue. Petitioner's business premises, together with two other retail establishments, occupied a single structure whose front faced Irving Park Road. Parkside Liquors bore the number 5158. The other stores, the first of which was an antique shop and the second a butcher shop, were numbered either 5156 and 5154 or 5154 and 5152, respectively. Neither of the adjacent stores sold liquor.
The search warrant issued by Commissioner Pike was executed on October 29, 1964, the date of its issuance, from 1:30 p.m. to 3 p.m. Three special agents assigned to this task -- Edward Jordan, Paul Crusor, and Ronald Saranow -- entered Parkside Liquors at approximately 1:30 p.m. John Price, a fourth special agent, was already inside, having entered a half hour or so before. Jordan, who was in charge of the search, identified himself as a special agent *108 to petitioner and served the search warrant upon him. Saranow then stated to petitioner that he wished to speak with him and requested petitioner to indicate a suitable place on the premises for this purpose. Petitioner was fully cooperative with the agents conducting the search. He sat down with Saranow at the bar and was questioned extensively regarding his gambling activities during the past several years. He responded to most, if not all, the questions put to him. The interview lasted approximately 45 minutes. Petitioner was not advised of his constitutional rights or given the so-called "Miranda warnings" at any time during the course of the search. Although petitioner was understandably nervous during the interview, he was able to comprehend the questions put to him and answer them in a truthful and candid manner. The conversation was cordial and friendly rather than harsh or intimidating. 2 However, the door which had been locked at the beginning of the search remained so throughout the interview. *1453 The lock was a Yale lock that was designed to automatically snap into a locked position as the door was closed, provided the bolt on the lock was in a released position. *109 To unlock the door from the inside all that was necessary was to turn the handle that operates the spring-type bolt.
Customers who were present when the agents arrived were asked to identify themselves and then leave the premises. The door was unlocked for this purpose and then immediately relocked for the remainder of the search. The exclusion of customers and securing of the door while the search was in progress are typical of investigations of this sort. The purpose of such precautions is to insure the safety and security of the agents or officers conducting the search.
Petitioner admitted in the course of the interview that he had wagering income during the taxable years in question. He stated that he knew such income was taxable but failed to report it because he did not think he would be apprehended and, further, because he feared such reporting would alert Federal authorities. Petitioner admitted that his gross *110 wagers amounted to between $ 700 and $ 1,000 per week and his net income from wagers amounted to between $ 100 and $ 300 per week in 1964. He further stated that his net income from wagering was $ 3,000 in 1961, between $ 3,500 and $ 4,000 in 1962, and $ 5,000 in 1963.
While the interview took place at the bar, the remaining agents conducted a thorough search of the premises for gambling paraphernalia and other property described in the warrant. The search uncovered gambling slips and records of petitioner, as well as other evidence of gambling operations. The "Return" 3*111 portion of the search warrant sets forth an inventory of articles seized during the search as follows:
| 24 | marked wagering slips |
| 3 | Illinois Sporting News for 10-27-64, 10-28-64, 10-29-64 |
| 10 | packs of bound wagering slips |
| 3 | marked Illinois Sporting News 10-23-64, 10-24-64, 10-26-64 |
| 9 | wagering slips found in record book |
| 1 | brown leather covered record book |
| $ 181 | currency |
| 18 | horserace bet slips |
| 1 | bet slip |
| 8 | bet slips |
With the exception of the currency, all the above items were introduced into evidence over the objection of petitioner, subject to a later ruling with regard to the admissibility of such evidence.
*1454 The written documents seized in the search covered a 12-day period in the month of October: October 17, 1964, to October 28, 1964. Observations of various special agents during the pre-October 29, 1964, investigation of Parkside Liquors, together with statements and records of petitioner obtained in the October 29 search, furnished the basis of the income tax deficiency notice of the Commissioner. The written records uncovered by the search disclosed gross wagers of $ 1,383 and net wagering income of $ 401.10 during the 12-day period covered by such records.
OPINION
The issues in this case are whether petitioner had unreported income from wagering activities during the taxable years in question and, if so, whether his failure to report such income justified the imposition of additions to tax for fraud under
The evidence, the admissibility of which is contested in this case, falls into two general categories. The first is tangible evidence, such as gambling *113 slips, newspapers, and records -- the fruit of a search of petitioner's business premises, Parkside Liquors, on October 29, 1964, pursuant to a search warrant issued the same day. The second class of evidence consists of petitioner's oral conversation with agents of the Internal Revenue Service at the time of the search. As to the former, petitioner contends that such evidence is excludable in the instant proceeding because the manner of its acquisition violated petitioner's
Petitioner's contention respecting the alleged illegality of the search is two-pronged. He urges first that the warrant was technically defective in that the description of the place to be searched lacked the particularity necessary to the validity of a search, warrant. Specifically, petitioner focuses upon the number address of petitioner's business premises which was erroneously stated to be 5152 rather than 5158 West Irving Park Road.
The search warrant in question described the object of the search as "the ground floor of a one-story brick building at 5152 West Irving Park Road, Chicago, Illinois, commonly known as Parkside Liquors." While we recognize that the number address of the premises to be searched might oftentimes be critical to its proper identification, an unquestionable requisite to the validity of the warrant (see
*1456 In
Petitioner next attacks the validity of the search warrant on the ground that its issuance was founded upon an unconstitutional law. The underlying basis for its issuance was, as therein stated,
The Marchetti case involved the constitutionality of a criminal conviction for violation of Federal wagering statutes. Marchetti dealt specifically with sections 4411 and 4412. Section 4411 requires the *119 payment by gamblers of an annual occupation tax;
In so holding, the Court overruled
Marchetti, however, stops short of expressly declaring the wagering statutes unconstitutional. The carefully circumscribed holding of the Court is:
under the wagering tax system as presently written * * * petitioner properly asserted the privilege against self-incrimination, and * * * his assertion should have provided a complete defense to this prosecution. * * * We emphasize that we do not hold that these wagering tax provisions are as such constitutionally impermissible; we hold only that those who properly assert the constitutional privilege as to these provisions may not be criminally punished for failure to comply with their requirements. If, in different circumstances, a taxpayer is not confronted by substantial hazards of self-incrimination, or if he is otherwise outside the privilege's protection, nothing we decide today would shield him from the various penalties prescribed by the wagering tax statutes. [
Petitioner and respondent disagree as to the precise holding of Marchetti in the context of the instant case. Petitioner takes the position that the *121 statutes involved in that case are no longer constitutionally enforceable; hence, a search warrant founded upon such section is void and the search illegal. Respondent, on the other hand, argues that Marchetti merely forecloses the possibility of criminal conviction in the face of a timely assertion of the
The question to be decided, then, is whether the search warrant at issue, issued in 1964 and founded upon
We preface our consideration of this issue with a brief discussion of the
The
one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable" unless it has been authorized by a valid search warrant. [
This requirement -- that a search and seizure be authorized by the issuance of a warrant -- serves to interpose the neutral and detached authority of a magistrate between the police and the public.
But the issuance of a search warrant is itself subject to constitutional limitations. Such issuance must, under the
Against the foregoing constitutional background, we proceed to consider the validity of the search warrant in the instant case. Petitioner has contended that the Marchetti case removes the probable cause for the issuance of the warrant in 1964. Petitioner's argument is predicated on the dual premises that Marchetti has invalidated the wagering statutes by rendering them unenforceable and that such invalidation operates retroactively to vitiate the probable cause for the issuance of the warrant. The first of these premises has been firmly rejected by the Fourth Circuit in
We find no support in those cases for appellants' contention. The Supreme Court did not invalidate the wagering tax statutes; it did not abolish the criminal offenses therein specified; it did not say that an indictment or an information would not lie. The carefully circumscribed holding is that a defendant may not be convicted of a criminal violation of the wagering tax laws if he has properly claimed his constitutional privilege against self-incrimination. Under the circumstances, we conclude that where, as here, there exists probable cause for *1460 belief that an offense has been committed (which appellants conceded) a valid search warrant may issue even though the Government may be unable to convict the defendant if he properly raises his claim of privilege against self-incrimination. n2 We hold that the judgment for wagering excise tax deficiencies rests upon *127 a valid assessment and will be affirmed. [Footnote omitted. 9]
Accord,
The foregoing rationale of
The search warrant in the instant case was issued in 1964, several years before the decision in Marchetti. As noted above, the Supreme Court in deciding Marchetti, overruled the Kahriger and Lewis cases, two prior Supreme Court cases which had upheld the constitutionality of the wagering tax statutes and specifically rejected the proposition later adopted in Marchetti that the statutes as presently structured contravened the
In dealing with probable cause, however, as the very name implies, we deal with probabilities. * * *
"The substance of all the definitions" of probable cause "is a reasonable ground for belief of guilt." * * * And this "means less than evidence which would justify condemnation" or conviction, * * *
These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting *130 on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave lawabiding citizens at the mercy of the officers' whim or caprice.
[Emphasis added.]
Validity of the search warrant similarly does not hinge upon the ultimate truth of its allegations, but upon the reasonable ground for belief of guilt. We deem this principle applicable, with equal force, to the legal classification of the conduct as criminal. Where the warrant, judged according to the contemporary legal standards, conformed meticulously with the fourth-amendment requirements, the logic of petitioner's premise disappears. See
Moreover, we perceive a further fallacy in petitioner's reasoning indicated by his retroactive application of Marchetti. The Supreme Court has passed upon the retroactivity of the various judicial innovations. See
We next consider the admissibility of statements made by petitioner to Special Agent Saranow during the course of the search. Petitioner objects to their admissibility on the ground that exclusion of such evidence is compelled by
We have recently considered the application of Miranda to interrogations by representatives of the Internal Revenue Service.
Petitioner argues in the instant proceeding that the interrogation should properly be characterized as custodial. We can hardly assume under the circumstances of this case, as we did in Harper, that the questioning was, in fact, noncustodial. The term "custodial interrogation" as defined in Miranda refers to "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way." The Supreme *137 Court in
The above-stated rationale for the inclusion of the oral admissions of petitioner is, of course, predicated upon the now well-established principle that the additions to tax under
Having disposed of the threshold evidentiary issues, we turn to the substantive issue of this case, viz, whether the Commissioner properly asserted *141 deficiencies and additions to tax under
Decision will be entered for the respondent.
Dawson, J., concurring: I am in full accord with the majority opinion in this case. As Judge Fay correctly points out, one of the alternative holdings in
Nothing said in the Harper opinion or in the majority opinion in this case would seem to foreclose the point made forcefully by Judge Tannenwald that the
Tannenwald, J., concurring: I fully agree with the majority insofar as the search warrant issue is concerned. I also concur in the result with respect to the issue involving the necessity of Miranda warnings, on the same basis as in my concurrence in
In my opinion, the facts herein do not establish that petitioner was in custody at the time of the interrogation. The door had only a spring lock so that petitioner could, if he chose, walk out of the room at any time, and, as the Findings of Fact show, the interrogation was "cordial and friendly." Under these circumstances, I do not think that the interrogation achieved that level of pressure which was the foundation of the Escobedo and Miranda decisions. To be sure, the findings of fact also show the petitioner was "understandably nervous," but the objective aspects of the situation, rather than the subjective attitude of the taxpayer, are the focal point for determining whether the interrogee is in custody. See
The need for Escobedo and Miranda warnings, in order to be able to use the fruits of custodial interrogations in civil tax litigation, presents serious questions involving both the constitutional rights of the individual and the integrity of the judicial process. The
I do not think that it is *145 sufficient to confine the prohibition of the use of the fruits of custodial situations to instances where the interrogee's physical safety is threatened (i.e., a gun to his head) -- circumstances which would permit a finding of such duress that a court could conclude that the responses were not in law those of the interrogee.
Our democratic institutions, including our judicial system, can survive the present onslaught upon them only if they are tempered with qualities of respect and understanding for the rights of the individual. This does not mean that we should confer an open-ended license for each person to do as he wants and to ignore his obligations to his fellow citizens, including the payment of taxes. Similarly, it does not mean that the Government, in the name of law and order, should be able to discharge its responsibilities to enforce its civil claims for taxes free of the procedural requirements of due process.
Mr. Justice Clark framed the problem very clearly when he stated in
Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, *146 dissenting, said in Olmstead v. United States, * * *
We ought to exercise extreme care in putting our stamp of approval on the use of the fruits of "incentive detention," particularly where, as was the case herein, the interrogation encompassed the prospect of criminal as well as civil proceedings on the part of the State. To permit the State, under such circumstances, to pick and choose between the remedies it will pursue will surely invite contempt for the processes of Government with anarchy as the potential and bitter result.
I think that the
*1468 Quealy, J., dissenting: The majority opinion holds that evidence obtained by the Government in a criminal proceeding, in violation of the constitutional rights of the individual, may nevertheless be admissible in a civil tax proceeding before this Court in which the Government and the individual are the parties. With this, I cannot agree.
It is not a question of the degree of compulsion to which the taxpayer may have been subjected by the Government's agents. Under the decision of the majority, the taxpayer in this case could have been locked in the freezer until he admitted that he owed taxes to the Government, and his admission used in evidence against him before this Court.
When viewed in this *148 light, the conclusion is inescapable that in order to protect the constitutional rights of the individual, such evidence must be excluded in any proceeding between the Government and the individual, whether of a criminal nature, a quasi-criminal nature, or strictly a civil tax assessment. To hold otherwise would be to say that the rights of the individual may be freely violated by the Government in obtaining its evidence for the assessment and collection of taxes, so long as no criminal action is instituted. It was precisely such activity on the part of Government the Constitution was intended to guard against.
In my opinion, evidence obtained in violation of a taxpayer's constitutional rights in connection with a criminal investigation -- and the warrant in question was issued upon a finding of probable cause that a crime had been committed -- is inadmissible in any proceeding between the Government and the individual whose rights have been violated.
Footnotes
1. All section references are to the Internal Revenue Code of 1954.↩
2. Petitioner testified at trial:
Q. How would you characterize your conversation with the man that interviewed you?
A. Very well. He was a hundred-percent gentleman, talked very kind. He asked me a lot of questions. I answered them. I would say we got along very well.↩
3. Search warrants normally require the executing officers to complete the "Return" portion of the search warrant by enumerating therein all items seized in the course of the search and then return it, together with the articles seized, to the Commissioner within a prescribed time period.
4. While the oral admissions of petitioner appear to adequately establish the deficiency and fraudulent intent of petitioner, we consider also the admissibility of the tangible evidence because of the possible contention that the admissions were "poisoned" by the alleged illegal search and seizure. See
Costello v. United States, 365 U.S. 265">365 U.S. 265 , 278-280 (1961);Takahashi v. United States, 118">143 F. 2d 118 , 122 (C.A. 9, 1944), citingSilverthorne Lumber Co. v. United States, 251 U.S. 385">251 U.S. 385 , 391↩ (1920).5.
SEC. 4412 . REGISTRATION.(a) Requirement. -- Each person required to pay a special tax under this subchapter shall register with the official in charge of the internal revenue district --
(1) his name and place of residence;
(2) if he is liable for tax under subchapter A, each place of business where the activity which makes him so liable is carried on, and the name and place of residence of each person who is engaged in receiving wagers for him or on his behalf; and
(3) if he is engaged in receiving wagers for or on behalf of any person liable for tax under subchapter A, the name and place of residence of each such person.
SEC. 4905 . LIABILITY IN CASE OF DEATH OR CHANGE OF LOCATION.(a) Requirements. -- When any person who has paid the special tax for any trade or business dies, his wife or child, or executors or administrators or other legal representatives, may occupy the house or premises, and in like manner carry on, for the residue of the term for which the tax is paid, the same trade or business as the deceased before carried on, in the same house and upon the same premises, without the payment of any additional tax. When any person removes from the house or premises for which any trade or business was taxed to any other place, he may carry on the trade or business specified in the register kept in the office of the official in charge of the internal revenue district at the place to which he removes, without the payment of any additional tax; Provided, That all cases of death, change, or removal, as aforesaid, with the name of the successor to any person deceased, or of the person making such change or removal, shall be registered with the Secretary or his delegate, under regulations to be prescribed by the Secretary or his delegate.
(b) Registration. --
(1) For registration in case of wagering, playing cards, narcotics, marihuana, and white phosphorous matches, see
sections 4412 ,4455 ,4722 ,4753 , and4804(d) , respectively.(2) For other provisions relating to registration, see subtitle F.↩
6. "AMENDMENT [IV] -- * * *
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
7. The most notable exception is a search incident to a lawful arrest, where a limited search may be conducted without the advance issuance of a warrant.↩
8.
Camara v. Municipal Court, 387 U.S. 523">387 U.S. 523↩ (1967), concerned administrative inspection programs which are justified by the overriding interest of public health and safety. The "governmental interests" which have thus far been recognized as bases for the conduct of a search are the enforcement of criminal law and public health and safety.9. Interestingly enough, the taxpayer in
Washington v. United States, 402 F. 2d 3 (C.A. 4, 1968), had, in a prior criminal proceeding, failed to raise the privilege against self-incrimination and was sentenced to imprisonment.Washington v. United States, supra at fn. 9. See also in this connection United Statesv. Donovan, an unreported case (E.D. Va. 1969, 24 A.F.T.R.2d (RIA) 69">24 A.F.T.R. 2d 69 -6191, 69-2U.S.T.C. par. 15,915), holding Marchetti↩ inapplicable to a pre-Marchetti plea of guilty leading to conviction under the wagering tax statutes.10. For similar reasoning, see
Silbert v. United States, 282 F. Supp. 635">282 F. Supp. 635 , 645-646 (D. Md. 1968);State v. Gerardo, 53 N.J. 261">53 N.J. 261 , 250 A. 2d 130 (1969); and Hamilton v.United States, an unreported case (S.D. N.Y. 1969, 24 A.F.T.R. 2d 69↩-6009, 6013, 69-2 U.S.T.C. par. 15, 924).11. For lower court cases dealing with the retroactivity of Marchetti, see fn. 12 infra↩.
12.
Escobedo v. Illinois, 378 U.S. 478">378 U.S. 478 (1964), andMiranda v. Arizona, 384 U.S. 436 (1966) , were applied to cases in which trial commenced after the promulgation of those cases by the Supreme Court underJohnson v. New Jersey, 384 U.S. 719">384 U.S. 719 (1966);Gilbert v. California, 388 U.S. 263 (1967) , andUnited States v. Wade, 388 U.S. 218">388 U.S. 218 (1967), were essentially held to be prospective only underStovall v. Denno, 388 U.S. 293 (1967) ; andGriffin v. California, 380 U.S. 609">380 U.S. 609 (1965), andMapp v. Ohio, 367 U.S. 643 (1961) , were made applicable underLinkletter v. Walker, 381 U.S. 618 (1965) , andTehan v. Shott, 382 U.S. 406 (1966) , to cases in which convictions were not final on the dates the Griffin and Mapp cases were filed. See alsoDesist v. United States, 394 U.S. 244">394 U.S. 244 (1969), givingKatz v. United States, 347">389 U.S. 347 (1967), prospective application only.As to the retroactivity of Marchetti, see
Mackey v. United States, 411 F. 2d 504 (C.A. 7, 1969), andGraham v. United States, 407 F. 2d 1313 (C.A. 6, 1969). In Mackey the court held the defendant's wagering tax return, filed prior to Marchetti, admissible in the criminal prosecution for tax evasion on the ground that Marchetti was not retroactive in this situation. See alsoSilbert v. United States, supra at 643-644 ; andUnited States v. Donovan, supra↩. 13. Respondent has further contended that the evidence in question, whether or not obtained in violation of the
fourth amendment , is admissible in the instant civil proceeding. In view of our conclusion as to the validity of the search warrant, however, we do not reach this contention of respondent.14. "AMENDMENT [V] -- * * *
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself↩, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." (Emphasis added.)
15. In
John Harper, 54 T.C. 1121 (1970) , this Court declined to follow the guidelines regarding the administration of the Miranda warnings set forth inUnited States v. Dickerson, 413 F. 2d 1111 (C.A. 7, 1969), which extended the applicability of Miranda principles to noncustodial interrogations. See alsoUnited States v. Habig, 413 F. 2d 1108 (C.A. 7, 1969), andUnited States v. Lackey, 413 F. 2d 655 (C.A. 7, 1969). Cf.Steiner v. Commissioner, 350 F. 2d 217 (C.A. 7, 1965), affirming a Memorandum Opinion of this Court. UnderUnited States v. Dickerson, supra at 1117 , Miranda warnings are required to be given by revenue agents "at the inception of the first contact with the taxpayer after the case has been transferred to the Intelligence Division [of the Internal Revenue Service]." The Seventh Circuit, to which appeal of the instant case lies, expressly assigned to Dickerson prospective application. Thus, the instant proceeding, the events of which occurred in 1964, prior to Dickerson, is not governed by that case. Moreover, Dickerson↩ involved a criminal prosecution whereas the conclusion of the instant case is predicated upon the civil nature of the instant proceeding.16. The exclusionary rule with respect to compelled testimony encompasses the "fruit" of the testimony as well as the compelled testimony itself.
Murphy v. Waterfront Comm'n, 378 U.S. 52">378 U.S. 52 , 79 (1964);Arndstein v. McCarthy, 254 U.S. 71">254 U.S. 71 (1920). The Government bears the burden of proving in any subsequent criminal proceeding the absence of "taint" respecting evidence it seeks to offer by establishing an independent source of such evidence.Murphy v. Waterfront Comm'n, supra↩ at 79 fn. 18 .1. Several cases have applied the
fourth amendment to the use of illegally obtained evidence in a civil proceeding. SeePizzarello v. United States, 408 F. 2d 579 (C.A. 2, 1969);Berkowitz v. United States, 340 F. 2d 168 (C.A. 1, 1965);Tovar v. Jarecki, 173 F. 2d 449 (C.A. 7, 1949);Rogers v. United States, 97 F. 2d 691 (C.A. 1, 1938);State of Iowa v. Union Asphalt & Roadoils, Inc., 281 F. Supp. 391 (S.D. Iowa 1968) ;United States v. Blank, 261 F. Supp. 180">261 F. Supp. 180 (N.D. Ohio 1966);Lord v. Kelley, 223 F. Supp. 684 (D. Mass. 1963) ;Lasoff v. Gray, 207 F. Supp. 843">207 F. Supp. 843↩ (W.D. Ky. 1962).