United States v. Janis

Mr. Justice Stewart,

dissenting.

The Court today holds that evidence unconstitutionally seized from the respondent by state officials may be introduced against him in a proceeding to adjudicate his *461 liability under the wagering excise tax provisions of the Internal Revenue Code of 1954. This result, in my view, cannot be squared with Elkins v. United States, 364 U. S. 206 . In that case the Court discarded the “silver platter doctrine” and held that evidence illegally seized by state officers cannot lawfully be introduced against a defendant in a federal criminal trial.

Unless the Elkins doctrine is to be abandoned, evidence illegally seized by state officers must be excluded as well from federal proceedings to determine liability under the federal wagering excise tax provisions. These provisions, constituting an “interrelated statutory system for taxing wagers,” Marchetti v. United States, 390 U. S. 39, 42 , operate in an area “permeated with criminal statutes” and impose liability on a group “inherently suspect of criminal activities.” Albertson v. SACB, 382 U. S. 70, 79 , quoted in Marchetti v. United States, supra, at 47. While the enforcement of these provisions results in the collection of revenue, “we cannot ignore either the characteristics of the activities” which give rise to wagering tax liability “or the composition of the group” from which payment is sought. Grosso v. United States, 390 U. S. 62, 68 . The wagering provisions are intended not merely to raise revenue but also to “assist the efforts of state and federal authorities to enforce [criminal] penalties” for unlawful wagering activities. Marchetti v. United States, supra, at 47.

Federal officials responsible for the enforcement of the wagering tax provisions regularly cooperate with federal and local officials responsible for enforcing criminal laws restricting or forbidding wagering. See 390 U. S., at 47-48. Similarly, federal and local law enforcement personnel regularly provide federal tax officials with information, obtained in criminal investigations, indicating *462 liability under the wagering tax. * The pattern is one of mutual cooperation and coordination, with the federal wagering tax provisions buttressing state and federal criminal sanctions.

*463 Given this pattern, our observation in Elkins is directly opposite:

“Free and open cooperation between state and federal law enforcement officers is to be commended and encouraged. Yet that kind of cooperation is hardly promoted by a rule that ... at least tacitly [invites federal officers] to encourage state officers in the disregard of constitutionally protected freedom.” 364 U. S., at 221-222 .

To be sure, the Elkins case was a federal criminal proceeding and the present case is civil in nature. But our prior decisions make it clear that this difference is irrelevant for Fourth Amendment exclusionary rule purposes where, as here, the civil proceeding serves as an adjunct to the enforcement of the criminal law. See Plymouth Sedan v. Pennsylvania, 380 U. S. 693 .

The Court’s failure to heed these precedents not only rips a hole in the fabric of the law but leads to a result that cannot even serve the valid arguments of those who would eliminate the exclusionary rule entirely. For under the Court’s ruling, society must not only continue to pay the high cost of the exclusionary rule (by forgoing criminal convictions which can be obtained only on the basis of illegally seized evidence) but it must also forfeit the benefit for which it has paid so dearly.

If state police officials can effectively crack down on gambling law violators by the simple expedient of violating their constitutional rights and turning the illegally seized evidence over to Internal Revenue Service agents on the proverbial “silver platter,” then the deter *464 rent purpose of the exclusionary rule is wholly frustrated. “If, on the other hand, it is understood that the fruit of an unlawful search by state agents will be inadmissible in a federal trial, there can be no inducement to subterfuge and evasion with respect to federal-state cooperation in criminal investigation.” Elkins v. United States, supra, at 222.

The parties here stipulated as follows:

“On December 3, 1968, Leonard Weissman, a Los Angeles Police Department officer, informed Morris Nimovitz, a revenue officer of the Internal Revenue Service, that the plaintiff herein had been arrested for alleged bookmaking activities. Officer Weissman was the same person who had prepared the affidavit in support of the search warrant which had been quashed by Judge Lang on the basis of an insufficient affidavit in support thereof. Mr. Nimovitz proceeded to the Los Angeles Police Department and with the help of Officer Weissman, analyzed certain betting markers and information which had been seized pursuant to the aforementioned search warrant. On the basis of their analysis, the gross volume of bookmaking activities alleged to have been conducted by the plaintiff herein and Morris Aaron Levine was determined for the five days immediately preceding the arrest of the plaintiff herein and Morris Aaron Levine. Officer Weissman further informed Mr. Nimovitz that he had commenced his investigation of the plaintiff herein on September 14, 1968, which continued on an intermittent basis through November 30, 1968, the date of the arrest. On the basis of the information giyen by Officer Weissman to Mr. Nimovitz, the civil tax assessment was made by taking five days of activities as determined from the items seized pursuant to the aforementioned search warrant and multiplying the daily gross volume times 77 days, to wit, the period of Officer Weissman’s intermittent surveillance (September 14, 1968 through November 30, 1968).”

Officer Weissman stated as follows in a deposition:

“Q Now, Sergeant Weissman, is it police department policy to call the Internal Revenue Service when you have taken a substantial sum of cash related to a bookmaking arrest?

“A I don’t think that there’s policy either way. I just — I did it as a matter of — I wouldn’t say it was policy. I did it as a matter of police procedure.

“In other words, here’s a person that was involved in a crime that had this kind of money, and I thought of Internal Revenue.

“Q Do you do that on a regular basis?

*463 “A I don’t do it on what I would consider a small-size book, but I considered this one a major-size book. So, I, therefore, did it.

“Q Would you do that with every major-size book that you run across with a substantial amount of cash?

“A I probably would.”