The opinion
Quealy, /., 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 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. Pizzarello v. United States, 408 F. 2d 579 (C.A. 2, 1969). I would distinguish John Harper, 54 T.C. 1121 (1970). In that case, not only was there no coercion, but no action had been taken to initiate a criminal investigation. The statements in question arose in the course of a routine examination of the taxpayer’s returns.