The opinion
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 John Harper, 54 T.C. 1121 (1970), was that the self-incrimination clause of the fifth amendment has no application in a civil case where subsequent criminal prosecution is no threat. Harper cannot be dismissed as simply a noncustodial case.
Nothing said in the Harper opinion or in the majority opinion in this case would seem to foreclose the point made forcefully by Judge Taimenwald that the due process clause of the fifth amendment may protect a civil litigant from fundamental unfairness. However, as our opinion in Harper makes clear, the procedural rigidities of Miranda are ill-suited to civil tax cases and to ordinarily noncoercive tax investigations. I doubt, therefore, the wisdom of trying to accomplish with the due process clause what we rejected under the self-incrimination clause in Harper. Moreover, I would reserve judgment on this due process issue until such time as a taxpayer places it squarely before us.
Raum, Foeeestee, and Irwin, JJ., agree with this concurring opinion. 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 Ithe issue involving the necessity of Miranda warnings, on the same basis as in my concurrence in John Harper, 54 T.C. 1121 (1970), namely, that such warnings are not required in noncustodial situations.
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 Miranda v. Arizona, 384 U.S. 436, 468-470 (1966).
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 sixth amendment limits the requirement of assistance of counsel to criminal cases and the fifth amendment similarly limits the privilege against self-incrimination. But the fifth amendment also specifies, “nor shall any person * * * be deprived of life, liberty, or property, without due process of law.” I do not read Escobedo and Miranda as confining the rationale for decision to the specific requirements of those amendments as to the need for warnings concerning the privilege against self-incrimination and the right to counsel. Indeed, prior to those landmark decisions, it was the due process clause which provided the foundation for deciding whether an individual’s constitutional rights, in situations such as those involved herein, were violated. See Mr. Justice Clark concurring and Mr. Justice Harlan dissenting in Miranda v. Arizona, 384 U.S. at 503, 505-509 . Moreover, as Mr. Justice Clark, writing for the majority in Mapp v. Ohio, 367 U.S. 643 (1961), pointed out, the integrity of the judicial process is also at stake in determining whether illegally obtained evidence should be admitted. See 367 U.S. at 659, 660 ; see also Elkins v. United States, 364 U.S. 206, 222 (1960). This is an important element in civil proceedings as well as criminal proceedings.
I do not think that it is sufficient to confine the prohibition of the use of the fruits of custodial situations to instances where the inter-rogee’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 Mapp v. Ohio, supra:
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 Brandéis, dissenting, said in Olmstead v. United States, * * * 277 U.S. 438 , 485 * * * (1928) : “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. * * * If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” [See 367 U.S. at 659 .]
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 due process clause of the fifth amendment should apply to custodial interrogations in connection with civil claims by the State. 1 To the extent that the majority opinions herein and in John Harper, supra, imply otherwise, I disagree.
FoeRusteR and Sterrett, JJ., agree with this concurring opinion. Several cases have applied the fourth amendment to the use of Illegally obtained evidence In a civil proceeding. See Pizzarello 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 (N.D. Ohio 1966) ; Lord v. Kelley, 223 F. Supp. 684 (D. Mass. 1963) ; Lasoff v. Gray, 207 F. Supp. 843 (W.D. Ky. 1962).