Attorneys for Appellant
Karen Freeman-Wilson
Attorney General of Indiana
David A. Arthur
Deputy Attorney General
Indianapolis, IN
Attorneys for Appellee
Robert W. Hammerle
Joseph M. Cleary
Hammerle Foster Allen & Long-Sharp
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
STATE OF INDIANA,
INDIANA DEPARTMENT OF REVENUE
Appellant (Respondent below),
v.
DANTE ADAMS,
Appellee (Petitioner below).
)
) Supreme Court No.
) 49S10-0011-TA-628
)
)
)
)
)
)
APPEAL FROM THE INDIANA TAX COURT
The Honorable Thomas G. Fisher, Judge
Cause No. 49T10-9904-TA-24
ON PETITION FOR REVIEW
February 8, 2002
SULLIVAN, Justice.
This is the first of two cases we decide today involving Dante Adams’s
difficulties with state revenue and criminal authorities after cocaine was
discovered first in his safe deposit box and later in his home. This case
presents the question of whether the cocaine found in an unconstitutional
search of the safe deposit box by criminal authorities can be used by
revenue authorities to make a tax assessment. We conclude that although
the exclusionary rule bars the use of the cocaine as evidence in criminal
proceedings, the exclusionary rule does not apply to tax assessment
proceedings.
Background
On August 7, 1997, employees of an Indianapolis bank informed a
police officer that an odor of marijuana emanated from a safe deposit box
leased to Defendant Dante Adams. The officer obtained a search warrant
based on this tip. The police then searched the safe deposit box and found
cocaine. Defendant was charged with Dealing in Cocaine and Possession of
Cocaine. Defendant then filed a motion to suppress the cocaine, arguing
that the information on which the warrant was based was stale. At a
suppression hearing, the officer testified that the informants had waited
weeks to tell the police about the smell. The trial court concluded that
the information in the warrant was stale and granted the motion to suppress
on March 18, 1998. The State voluntarily withdrew the charges against
Defendant on March 24.
On March 23 – a day before the criminal charges were dropped – the
Indiana Department of Revenue (“the Department”) issued an assessment
pursuant to the Controlled Substance Excise Tax (“CSET”)[1] against
Defendant. Adams sought to have the cocaine suppressed in the CSET
proceedings. The Department declined, but the Tax Court reversed and held
that the exclusionary rule applied to CSET assessments. It therefore
ordered the cocaine to be suppressed and vacated the CSET assessment. See
Adams v. Dep’t of Revenue, 730 N.E.2d 840, 843-44 (Ind. Tax Ct. 2000). We
granted review and now reverse the Tax Court.
Discussion
Both parties concede that the search of the safe deposit box violated
Adams’s federal constitutional right to be free from unreasonable searches
and seizures. Adams contends that the State could not assess the CSET
because the cocaine on which the assessment was based was discovered during
an illegal search. We therefore must determine whether the cocaine should
be suppressed in the CSET proceedings under the federal exclusionary rule.
In a companion case today,[2] we conclude that a later, separate
search of Adams’s home was unconstitutional. For purposes of a criminal
case, this conclusion ends the inquiry, as illegally obtained evidence may
not be used in criminal proceedings. See Mapp v. Ohio, 367 U.S. 643
(1961). However, “[t]he fact that evidence was seized in violation of the
Fourth Amendment does not mean that it will be suppressed for every purpose
in every proceeding.” Tirado v. Comm’r of Internal Revenue, 689 F.2d 307,
310 (2d Cir. 1982), cert. denied, 460 U.S. 1014 (1983). In this case, we
must determine whether the fruits of a different search – that of the safe
deposit box – should have been excluded in the tax collection proceedings.
We are operating not only in a different context (tax versus criminal) but
are analyzing different searches (the search of the safe deposit box versus
the search of Adams’s home). Therefore, our conclusion in the companion
case that the State could not introduce in a criminal proceeding evidence
obtained from an illegal search of Adams’s home does not affect our
analysis in this case as to whether the illegal search of the safe deposit
box should lead to exclusion of evidence in the CSET proceeding.
The United States Supreme Court has held that the exclusionary rule is
not constitutionally mandated, but is “a judicially created means of
deterring illegal searches and seizures.” Pennsylvania Bd. of Probation &
Parole v. Scott, 524 U.S. 357, 363 (1998). See also Elkins v. United
States, 364 U.S. 206, 217 (1960) (“The rule is calculated to prevent, not
to repair. Its purpose is to deter … by removing the incentive to disregard
it.”).[3] Because the exclusionary rule is a judicially-created
prophylactic device, the rule applies only “to those areas where its
remedial objectives are thought most efficaciously served.” United States
v. Calandra, 414 U.S. 338, 348 (1973). The Court has concluded that the
rule is most effective when “its deterrence benefits outweigh its
‘substantial social costs.’” Scott, 524 U.S. at 363 (quoting United States
v. Leon, 468 U.S. 897, 907 (1984)). See also I.N.S. v. Lopez-Mendoza, 468
U.S. 1032 (1984); United States v. Janis, 428 U.S. 433 (1976).
Our analysis of both the deterrence produced and the costs incurred in
the context of CSET assessments leads us to conclude that the exclusionary
rule should not apply.
As the facts of this case show, both police and revenue officers are
involved in enforcing the CSET: Police investigations uncover illegal
narcotics, while the Department’s revenue officers must collect CSET
assessments on those narcotics. We do not believe that applying the
exclusionary rule in CSET assessment proceedings will serve to deter either
police or revenue officers from making illegal searches or seizures.
The police will not be significantly deterred by the prospect of the
exclusion of evidence in CSET proceedings because their primary concern is
criminal prosecutions, where the exclusionary rule already applies. “Where
evidence is obtained in an allegedly illegal search in furtherance of a
criminal investigation, it is generally unlikely that application of the
exclusionary rule to bar the evidence in a secondary civil proceeding will
deter future Fourth Amendment violations.” Wolf v. Comm’r of Internal
Revenue, 13 F.3d 189, 194 (6th Cir. 1993) (declining to apply the
exclusionary rule to tax collection proceedings after evidence was
illegally seized in narcotics investigation). The Supreme Court has
concluded that government agents will be deterred when the conduct at issue
falls “within the offending officer’s zone of primary interest.” Janis, 428
U.S. at 458. See also Scott, 524 U.S. at 364. The police’s primary
concern is the enforcement of the State’s criminal laws, not its tax
code.[4] The CSET is simply not so interrelated with “the often
competitive enterprise of ferreting out crime” to warrant an extension of
the exclusionary rule. United States v. Leon, 468 U.S. 897, 978 (1984).
We acknowledge some deterrence of revenue officers if the exclusionary
rule is applied to CSET proceedings but we think these circumstances will
be infrequent. In the companion case, we hold that CSET levies will
generally be reasonable for Fourth Amendment purposes. Adams v. State,
slip op. at 12. The companion case invalidates searches by revenue
officers only where the officers rely solely on a jeopardy warrant issued
under Indiana Code § 6-7-3-13’s provisions that allow the Department to
issue jeopardy warrants without any standards or showing of exigency. Id.
However, most jeopardy warrants are not issued under that code section.
Instead, they are issued under Ind. Code §6-8.1-5-3. Id. As such, the
Department will be able to issue jeopardy warrants and levy on CSET
assessments in most circumstances without violating the Fourth Amendment.
Because levies by the Department will only violate the Fourth Amendment in
certain narrow circumstances, application of the rule will not produce any
significant deterrence to unlawful conduct by revenue officers.
As to the costs, we believe that application of the exclusionary rule
in CSET proceedings will serve to undermine several important State
interests. First, application of the exclusionary rule will frustrate the
State’s ability to exercise its power to tax, which is a “power of the
highest essential order.” Bryant v. State, 660 N.E.2d 290, 310 (Ind. 1995)
(DeBruler, J., concurring in part and dissenting in part). This power
undergirds all other governmental activity and without it the State could
not function. Application of the exclusionary rule would inevitably enable
some taxpayers to avoid paying their taxes: “Because the exclusionary rule
precludes consideration of reliable, probative evidence, it imposes
significant costs: It undeniably detracts from the truthfinding process and
allows many … to escape the consequences of their actions.” Scott, 524
U.S. at 364. This cost of lost evidence is even greater in CSET
assessments than it is in criminal cases. If we were to suppress the drugs
at issue in CSET proceedings, the tax cannot be assessed. Conversely, the
prosecution of a criminal can often continue despite the suppression of
evidence because the State will have other evidence on which it can obtain
a conviction.
Second, we note that the Supreme Court cited the cost of lost evidence
when it refused to apply the exclusionary rule to federal tax proceedings.
See United States v. Janis, 428 U.S. 433 (1976). In Janis, state law
enforcement officers conducted an illegal search and the IRS attempted to
introduce evidence stemming from the search in federal civil tax
proceedings. Even though the Court relied heavily on this inter-sovereign
aspect of the case, it also concluded that the costs of exclusion would be
high because “the enforcement of admittedly valid laws would be hampered by
so extending the exclusionary rule, and, as is nearly always the case with
the rule, concededly relevant and reliable evidence would be rendered
unavailable.” Id. at 447.
Third, the Supreme Court has often analyzed the cost of the
exclusionary rule in terms of the toll it could take on the proceedings in
which it is invoked. See Scott, 524 U.S. at 364. (“Application of the
exclusionary rule would both hinder the functioning of state parole systems
and alter the traditionally flexible, administrative nature of parole
revocation proceedings.”); Lopez-Mendoza, 468 U.S. at 1048 (refusing to
apply exclusionary rule to deportation proceedings in part because “[t]he
prospect of even occasional invocation of the exclusionary rule might
significantly change and complicate the [informal] character of
proceedings.”). The Department collects the CSET in an administrative
manner similar to the parole revocation hearings in Scott or the
immigration proceedings in Lopez-Mendoza. See Ind. Code § 6-7-3-13. As in
those contexts, incorporation of the exclusionary rule would require
complicated legal determinations that would frustrate the purpose of such
expedited proceedings.
Our conclusion is consistent with those reached by most of the courts
that have addressed this issue. See Wolf v. Comm’r of Internal Revenue, 13
F.3d 189, 194 (6th Cir. 1993); Tirado v. Comm’r of Internal Revenue, 689
F.2d 307, 314 (2d Cir.1982); Kivela v. Dep’t. of Treasury, 449 Mich. 220,
536 N.W.2d 498 (1995). But cf. Vara v. Sharp, 880 S.W.2d 844 (Tex. App.
1994). The Supreme Court has applied the rule in only one context outside
of its general use in criminal trials. In One 1958 Plymouth Sedan v.
Pennsylvania, the Court concluded that the exclusionary rule applied to
civil forfeiture proceedings because such proceedings are “quasi-criminal”
in nature. 380 U.S. 693, 700 (1965). While the CSET has some quasi-
criminal aspects in that it taxes narcotics, it is not quasi-criminal in
the same sense as civil forfeiture because it does not stem from the
State’s regulatory power, which is typically more coercive than the State’s
power to tax. That is to say, because the CSET is part of the State’s
power of the purse, not its power of the sword, it is less punitive than
civil forfeiture and One 1958 Plymouth Sedan’s reasoning does not
necessarily apply.
In reaching its conclusion that the exclusionary rule applies to the
CSET, the Court of Appeals expressed concerns that
[I]f there were no Fourth Amendment protections when evidence was
illegally obtained, the State would have the opportunity to take a
second bite at the same apple: assuming evidence was illegally
obtained and a criminal prosecution could not result, then IDR could
still assess the CSET on all evidence that was illegally obtained.
There must be some protection against this practice.
Adams v. State, 726 N.E.2d 390, 395 (Ind. Ct. App. 2000).
Of course, this practice is possible in any of the civil contexts in
which the United States Supreme Court has refused to apply the rule.
Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357 (1998)
(allowing introduction of illegally obtained evidence at parole hearings),
I.N.S. v. Lopez-Mendoza, 468 U.S. 1032 (1983) (deportation hearings);
United States v. Janis, 428 U.S. 433 (1975) (tax hearings); United States
v. Calandra, 414 U.S. 338 (1973) (grand jury investigations). Moreover, the
exclusionary rule will apply if police collude with revenue officials to
subvert a taxpayer’s Fourth Amendment rights. See Kivela v. Dep’t. of
Treasury, 449 Mich. 220, 226, 536 N.W.2d 498, 500 (1995). (“Unless there is
collusion between the agency that performed the illegal search and the
agency seeking to admit the incriminating evidence, the evidence is
admissible.”). There is no evidence in the record that suggests that
revenue officers were involved in the search of Adam’s safe deposit box,
which is the only search at issue here.
Because we conclude that the costs of applying the exclusionary rule
to the CSET outweigh its limited benefits in this context, we decline to
apply the rule to the evidence seized from Adams’s safe deposit box.
Conclusion
We reverse the Tax Court and remand for proceedings consistent with
this opinion.
SHEPARD, C.J., and RUCKER, J., concur.
BOEHM, J. dissents with separate opinion in which DICKSON, J., concurs.
ATTORNEYS FOR APPELLANT
Karen Freeman-Wilson
Attorney General of Indiana
David A. Arthur
Deputy Attorney General
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Robert W. Hammerle
Joseph M. Cleary
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
STATE OF INDIANA, )
INDIANA DEPARTMENT OF )
REVENUE, )
)
Appellant (Respondent Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S10-0011-TA-628
DANTE ADAMS, )
)
Appellee (Petitioner Below). )
__________________________________________________________________
APPEAL FROM THE INDIANA TAX COURT
The Honorable Thomas G. Fisher, Judge
Cause No. 49T10-9904-TA-24
__________________________________________________________________
ON PETITION FOR REVIEW
__________________________________________________________________
February 8, 2002
BOEHM, Justice, dissenting.
I respectfully dissent. The issue is whether the Fourth Amendment
requires that evidence that was admittedly seized in violation of the
Fourth Amendment and is inadmissible in a criminal prosecution must also be
excluded in proceedings to assess Indiana’s Controlled Substance Excise Tax
(CSET).[5] Because the purpose of the exclusionary rule is to remove the
incentive for unreasonable governmental invasions of citizens’ privacy, the
closer the responsibilities of the seizing authority are to the subject
matter of the civil proceeding, the more persuasive the case for exclusion
of unconstitutionally seized evidence. Here the seizing agency was the
county sheriff’s department and the civil proceeding was an assessment of a
tax that is essentially punitive and whose collection augments local law
enforcement funding. Under these circumstances, I believe both precedent
and principle dictate that the Fourth Amendment precludes admission of the
evidence in this case.
The Fourth Amendment to the United States Constitution preserves the
“right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” U.S. Const. amend.
IV. In Weeks v. United States, 232 U.S. 383, 398 (1914), the United States
Supreme Court held that evidence seized in violation of the Fourth
Amendment is not admissible in a federal criminal proceeding. In Mapp v.
Ohio, 367 U.S. 643, 655 (1961), the Supreme Court made clear the same is
true in state criminal proceedings. The Court has repeatedly explained
that the rule protects all citizens by removing the incentive to conduct an
unreasonable search. Id. at 656. It does so at the cost of excluding
otherwise highly relevant evidence if the search, though unlawful,
nonetheless bears fruit. That cost is the price our Constitution willingly
accepts in the interest of preserving the rights of all to be free from
unreasonable governmental intrusions.
In United States v. Janis, 428 U.S. 433 (1976), the Supreme Court
considered the extent to which the exclusionary rule applies in civil
proceedings. Janis dealt with evidence unlawfully seized by state
officers. In a 5-3 decision, with Justice Stevens not participating, the
Supreme Court allowed the admission of that evidence in a federal gambling
excise tax proceeding. Id. at 459-60. The Court once again balanced the
likely social benefits of applying the rule against the costs of excluding
the evidence. Id. at 453-54. Although Elkins v. United States, 364 U.S.
206, 223 (1960) had made clear that evidence unlawfully seized by state
officials cannot be admitted in federal criminal prosecutions, the majority
concluded that state criminal law enforcement officers would not be
significantly deterred by a rule that excluded the evidence from federal
tax proceedings. Janis, 428 U.S. at 459. The decision pointed out that
earlier cases applying the exclusionary rule in civil proceedings had
involved “intrasovereign” violations. Id. at 456.[6]
Lower federal courts have since elaborated on the Janis balancing
test. In Tirado v. C.I.R., 689 F.2d 307, 310 (2nd Cir. 1982), the Second
Circuit concluded that “[d]etermining when the likelihood of substantial
deterrence justifies excluding evidence requires some assessment of the
motives of the officials who seized the challenged evidence.” The court
also observed that “[t]he key issue, implicit in Janis as in other
exclusionary rule decisions, is still what concerns the seizing officers
had in mind.” Id. at 313. Elaborating on this theme, the Sixth Circuit,
in Wolf v. C.I.R., 13 F.3d 189, 194-95 (6th Cir. 1993), set forth five
factors relevant to the application of the exclusionary rule in a civil
proceeding: (1) the nature of the proceeding; (2) whether the proposed use
of unconstitutionally seized material is intersovereign or intrasovereign;
(3) whether the search and secondary proceeding were initiated by the same
agency; (4) whether there is an explicit and demonstrable understanding
between the two governmental agencies; and (5) whether the secondary
proceeding fell within the “zone of primary interest” of the officers that
conducted the search.
The first factor, the nature of the civil proceeding, is clearly
significant and points strongly toward requiring exclusion in this case.
This Court recently examined the CSET assessment process in Bryant v.
State, 660 N.E.2d 290, 297 (Ind. 1995), and concluded “the CSET is so far
removed from a normal excise tax that it must be classified as a
punishment.” The Court noted the CSET’s focus on deterrence, not revenue
raising, as evidenced by the receipt to a CSET taxpayer that admonishes
that the unauthorized delivery, sale, possession or manufacture of a
controlled substance is a crime. Id. at 296. A possessor of contraband is
required to show this receipt to prove the tax has been paid. Id. At the
time Bryant was decided, the receipt was valid for only forty-eight hours,
and a taxpayer who possessed the same drug for a longer period was
required to repay the tax every forty-eight hours to avoid the CSET’s
additional sanctions. Id. In 1996, after the ruling in Bryant, the
General Assembly extended the validity of the receipt from forty-eight
hours to thirty days. Ind. Code § 6-7-3-10(b) (1998). Despite this
change, I think it obvious that the tax remains, at heart, punitive in
nature. I acknowledge that the federal wagering tax involved in Janis has
some of these characteristics, but it is nowhere near the CSET in overall
draconian impact.
Bryant also pointed out that the fact the CSET applied only if a crime
had been committed suggested the CSET’s punitive nature. 660 N.E.2d at
296. The 1996 CSET amendments did nothing to alter this, and now, as then,
the tax is imposed only on individuals who deliver, possess or manufacture
controlled substances in violation of Indiana or federal drug laws. Id. at
296-97. In contrast, in both Tirado, 689 F.2d at 309, and in Wolf, 13 F.3d
at 191, two of the principal cases upon which the majority relies, the
civil proceedings were for assessment and collection of federal income
taxes which apply to all human activity and are plainly revenue measures,
not surrogate punishments.
Finally, Bryant noted that an excise tax is imposed upon the
performance of an act or the enjoyment of a privilege, but the CSET is
imposed only after a taxpayer’s drugs have been confiscated, and the
taxpayer neither enjoys a privilege nor performs an act at the time of
taxation. 660 N.E.2d at 297. That observation remains true after the 1996
amendments. The State contends that the United States Supreme Court’s
subsequent ruling in Hudson v. United States, 522 U.S. 93 (1997), has
called into question this Court’s holding in Bryant that double jeopardy
precluded imposition of the tax and criminal prosecution for the same drug
possession. Even if this is the case, I nevertheless believe Bryant was
plainly correct in its view that the civil sanctions imposed pursuant to
the CSET are punitive in nature.
The second Wolf factor is the one Janis emphasized in finding evidence
seized by state officers to be admissible in a federal tax proceeding:
whether the evidence is to be used in a proceeding under the same
government whose agents seized it. Here, of course, both the taxing
authorities and the law enforcement officers operated as agents of the
State of Indiana.
The third, fourth, and fifth Wolf factors are closely related. The
third factor is whether the search and the civil proceeding were initiated
by the same agency. If so, the potential incentive to ignore the Fourth
Amendment is greater. As Wolf put it, quoting Tirado: “‘[A]gents are
likely to have all the responsibilities of their agency in mind as they go
about their investigations.’” 13 F.3d at 195. Although the sheriff and
the initiator of the CSET proceeding are not literally the same agency,
they plainly operated in concert. Detective Michael Turner of the Marion
County Sheriff’s Department conducted the initial illegal search, notified
the Department of Revenue that the criminal case was being dismissed,
informed the Department that the prosecuting attorney would be asking the
Department to begin collection proceedings, and attended the execution of
the tax warrant and the search of Adams’ home. Indeed, the link between
law enforcement and tax collection is embedded in the statute. The 1996
amendments to the CSET mandate the Department may not commence collection
proceedings unless the Department either is ordered to do so in a court’s
sentencing order, or is notified in writing by the prosecuting attorney of
the jurisdiction where the offense occurred that the prosecuting attorney
does not intend to pursue criminal charges related to the controlled
substance. I.C. § 6-7-3-19.
This brings us to the fourth Wolf factor: whether, if two agencies
are involved, there is an explicit and demonstrable understanding between
the two. It seems obvious that if the Department must rely upon
notification from law enforcement agencies before it may commence
collection proceedings, an explicit and demonstrable understanding between
the agencies must exist. In any event, the Wolf court explained that in
determining whether there is such an understanding between the two
governmental agencies, a court may consider the existence of a statutory
regime “in which both agencies share resources—particularly resources
derived from one of the proceedings.” 13 F.3d at 195. The CSET provides
for a sharing of resources in the most direct form: it offers a direct
economic incentive to law enforcement officers who pursue CSET assessments.
The act provides that thirty percent of each assessment is to go to the
law enforcement agency that is responsible for the information leading to
the assessment, to be used “to conduct criminal investigations.” I.C. § 6-
7-3-16(b). Similarly, ten percent of CSET money collected each month is
awarded to the law enforcement training board to train law enforcement
personnel. Id. § 6-7-3-16(c). As Tirado observed, the exclusionary rule
is most needed where the concerns of the securing officers are furthered by
a successful seizure. In this case the officers not only further their
agency’s mission; they gain a bounty from a CSET collection.
The fifth Wolf factor is whether the secondary proceeding fell within
the “zone of primary interest” of the officers that conducted the search.
As the court explained, “Where the relationship between the objectives of
the law enforcement agency to which the officer belongs and the secondary
proceedings is close, an inference may be drawn that the officers had the
use of the evidence in the subsequent proceeding in mind when they made the
seizure.” Wolf, 13 F.3d at 195. The zone of primary interest of a law
enforcement officer is “the apprehension, incapacitation, punishment, and .
. . rehabilitation of criminals, as well as the possible deterrence of
future criminals through the imposition of criminal sanctions.” Id. at
194. Because the CSET applies only to criminal activity, its enforcement
quite properly falls within the zone of primary interest of a law
enforcement officer. Indeed, the funds collected will directly bolster the
budget, and presumably the crime-fighting ability, of the officer’s law
enforcement agency. The Willie Sutton principle applies here—the
collection of the tax is where the money is.
In sum, it seems to me that these general principles all cut in the
direction of application of the exclusionary rule. In addition, other
courts have found the Fourth Amendment to require exclusion in the specific
context of controlled substance tax cases. In Vara v. Sharp, 880 S.W.2d
844 (Tex. App. 1994), the Court of Appeals of Texas applied the Wolf
factors to the Texas Controlled Substances Tax Act, which is very similar
to Indiana’s CSET. The court concluded the federal exclusionary rule
applied, and the provision of the Texas statute that prohibited application
of the exclusionary rule violated the United States Constitution. Id. at
852. The Vara court pointed out that the exclusionary rule has been
applied in civil forfeiture proceedings because of their quasi-criminal
nature. Id. at 851 (citing One 1958 Plymouth Sedan v. Pennsylvania, 380
U.S. 693 (1965)). The court also noted the United States Supreme Court has
held that certain constitutional protections normally reserved for criminal
proceedings apply to civil proceedings of a quasi-criminal nature. Id.
(citing Austin v. United States, 509 U.S. 602 (1993)). In Austin, the
Supreme Court held that forfeiture proceedings “historically have been
understood, at least in part, as punishment,” and were therefore subject to
the limitations of the Eighth Amendment’s excessive fines clause. 509 U.S.
at 618. Under this line of cases, the more punitive the proceeding, the
greater the constitutional protections afforded and the more persuasive the
argument for application of the exclusionary rule.
For all of these reasons, I believe the Fourth Amendment interest in
deterring illegal searches and seizures outweighs the costs of excluding
illegally obtained evidence in a CSET proceeding. The cost of application
of the exclusionary rule in tax collection proceedings is merely to impair
the State’s ability to collect this fine clothed as a tax. It may be
something of an overstatement to say, as the Court of Appeals did in Adams’
criminal case, that if the exclusionary rule does not apply to CSET
proceedings, there is “absolutely no downside risk to officers illegally
seizing drug evidence.” Adams v. State, 726 N.E.2d 390, 395 (Ind. Ct. App.
2000). But it is not an overstatement to say that the incentive to search
without a warrant is significant if very substantial financial penalties
may be recovered for the seizing agency. That puts all citizens at risk of
overzealous enforcement. The Fourth Amendment strikes that balance in
favor of application of the exclusionary rule.
DICKSON, J. concurs.
-----------------------
[1] Ind. Code §6-7-3-13 (1998). The CSET is a tax on the possession of
certain narcotics. We discuss the tax and the procedures for collecting it
in greater detail infra.
[2] Adams v. State, No. 49S04-0011-CR-627 (Ind. Feb. 8, 2002).
[3] Adams does not argue that the Indiana Constitution mandates an
exclusionary rule that is distinct from that imposed under federal case
law. Therefore we need not address whether values other than deterrence
might motivate the suppression of evidence under an Indiana exclusionary
rule.
[4] As the Sixth Circuit put it in Wolf:
The primary interest of law enforcement agents is the apprehension,
incapacitation, punishment, and (formerly, at least) rehabilitation of
criminals, as well as the possible deterrence of future criminals
through the imposition of criminal sanctions. … By contrast, such an
agent may have little interest in subsequent civil proceedings. Where
civil proceedings are brought, for example, to tax ill-gotten gains,
such proceedings do little more than subject criminals to the same
taxes that govern all citizens. Excluding illegally seized evidence
from proceedings to enforce tax and regulatory regimes is unlikely to
deter law enforcement officials from violating a suspect’s Fourth
Amendment rights.
Wolf, 13 F.3d at 194 (footnote omitted). The facts of this case support
this analysis, as the officers found the drugs in August of 1997 (R. at
140) but the Department did not issue a CSET assessment until March of
1998, when the evidence was suppressed in the criminal proceedings.
[5] As the majority correctly notes, Adams does not argue that the search
and seizure provision of the Indiana Constitution requires a different
result. That issue is not before us.
[6] See, e.g., Pizzarello v. United States, 408 F.2d 579, 586 (2nd Cir.
1969) (evidence unlawfully seized by federal Treasury agents inadmissible
in federal wagering excise tax assessment); United States v. Blank, 261 F.
Supp. 180, 184 (N.D. Ohio 1966) (evidence unlawfully seized by IRS agents
inadmissible in federal wagering excise tax assessment); Powell v. Zuckert,
366 F.2d 634, 640 (D.C. Cir. 1966) (evidence unlawfully seized by Air Force
special agents inadmissible in civilian employee discharge proceeding);
State of Iowa v. Union Asphalt & Roadoils, Inc., 281 F. Supp. 391, 407
(S.D. Iowa 1968) (evidence unlawfully seized by agents of the Iowa Attorney
General cannot be offered into evidence by the State as plaintiff in a
civil action under the antitrust laws).