Opinion · United States Tax Court

Romanelli v. Commissioner

54 T.C. 1448

Type
Opinion
Court
United States Tax Court
Jurisdiction
Federal
Date
1970-07-02
Topic
general

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 section 6653(b). The disposition of these issues turns in large measure upon several evidentiary questions first presented to the Court prior to trial as a motion for the suppression of evidence. After hearing argument on the motion the Court ordered the parties to proceed with the trial and advised petitioner that he would be permitted to renew his motion at the point in trial When and if the allegedly inadmissible evidence was offered by respondent. Reichert r. Commissioner, 214 F. 2d 19 (C.A. 7,1954), affirming 19 T.C. 1027 (1953), certiorari denied 348 U.S. 909 (1955).

Citator

Romanelli v. Commissioner has been questioned or limited by later authorities: relies on overruled authority: 75 S. Ct. 415 (overruled by Marchetti v. United States). Read them before relying on it. 26 later decisions cite it.

Authority status
caution
Cited by
26 opinions
ROMANELLI v. COMMISSIONER OF INTERNAL REVENUE,54 T.C. 1448(1970)
HUGO ROMANELLI AND NORMA ROMANELLI, PETITIONERS v. COMMISSIONER OF
INTERNAL REVENUE, RESPONDENT
Docket No. 3504-67.
United States Tax Court.
Filed July 2, 1970.
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 secs. 4412 and 4905, I.R.C. 1954. On the same day the warrant was issued four special agents of the Internal Revenue Service entered petitioner's premises, served the search warrant upon him, and proceeded to search the premises for wagering paraphernalia. Customers who were present at the time were required to leave. While the search was being conducted petitioner was questioned extensively for about 45 minutes by one of the agents concerning his wagering activities. Petitioner did not receive warningsPage 1449regarding his constitutional rights to remain silent or to counsel prior to the questioning.Held:

1. The search warrant was valid despite an irregularity in the number address of petitioner's tavern which was erroneously stated to be 5152 rather than 5158.

2. The search warrant, issued in 1964 and based upon violation of secs. 4412 and 4905, I.R.C. 1954, was valid. The Supreme Court decision ofMarchettiv.United States,390 U.S. 39(1968), did not retroactively remove probable cause for its issuance. Evidence seized pursuant to said search warrant is therefore admissible.

3. The instant proceeding determining whether petitioners are liable for additions to tax under sec. 6653(b), I.R.C. 1954, is a civil proceeding. Thus, statements of petitioner to special agents during the course of the search are admissible in the instant proceeding.John Harper,54 T.C. 1121(1970), followed.

4. Petitioners are liable for additions to tax under sec. 6653(b), I.R.C. 1954.
Max A. Reinstein,for the petitioners.Robert H. Burgess,for the respondent.
FAY,Judge:
Respondent determined deficiencies in petitioners' income taxes as follows:
Additionsto 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
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 section 6653(b)1for the fraudulent failure to report income.
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,Page 1450taverns, and the like, the Internal Revenue Service 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 reads:

Search Warrant
UNITED STATES DISTRICT COURT for the NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
Commissioner's Docket No. 23 Case No. 11292


SEARCH WARRANT

United States of Americav. Premises, being the ground floor of a one-story brick building at 5152 West Irving Park Road, Chicago, Illinois, commonly known as Parkside Liquors

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 wagersPage 1451which are being used in violation of Sections 4412 and 4905 of the Internal Revenue Code of 1954; hence, no property rights exist in said articles and things, and they are subject to seizure and forfeiture pursuant to the provisions of Section 7302, Internal Revenue Code of 1954

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 commandedto 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 PIKEU.S. Commissioner


As 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 warrant was being concealed "at5152West 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 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,Page 1452he 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 sections 4412 and 4905, Ruzycki examined the registration records by name as well as location. Such records were filed according to both name and location. His examination revealed that no business establishment on the 5100 block of Irving Park Road had registered.

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 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 "Mirandawarnings" 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.2However, the door which had been locked at the beginning of the search remained so throughout the interview.Page 1453The 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. 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 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"3portion 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.Page 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 section 6653(b). The disposition of these issues turns in large measure upon several evidentiary questions first presented to the Court prior to trial as a motion for the suppression of evidence. After hearing argument on the motion the Court ordered the parties to proceed with the trial and advised petitioner that he would be permitted to renew his motion at the point in trial when and if the allegedly inadmissible evidence was offered by respondent. SeeReichertv.Commissioner,214 F.2d 19(C.A. 7, 1954), affirming19 T.C. 1027(1953), certiorari denied348 U.S. 909(1955). Because of the importance of the evidentiary questions involved, which it appeared were of constitutional proportions, we reserved at trial our ruling on this matter for consideration in the course of the opinion on the merits. Instead, we permitted the introduction of all the evidence, subject to the later ruling in regard to its admissibility. Petitioner preserved his rights as to the admissibility of such evidence by properly objecting at trial to the admission of the evidence. We proceed at the outset to consider the overriding evidentiary issues presented by the facts herein.

The evidence, the admissibility of which is contested in this case, falls into two general categories. The first is tangible evidence, such as gambling 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 fourth and fifth amendment rights. As to the latter, petitioner asserts that the inadmissibility of such evidence is compelled byMirandav.Page 1455Arizona,384 U.S. 436(1966), for failure of the Government agents who questioned petitioner to apprise him of his constitutional rights under the fifth and sixth amendments. We have concluded after thorough consideration of these issues that both classes of evidence are admissible in the instant case.4We consider first the admissibility of tangible evidence seized in the course of the raid.

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 (seeUnited Statesv.Wroblewski,105 F.2d 444(C.A. 7, 1939)), we think the description of petitioner's business premises in the circumstances of this case adequately satisfied the particularity requirement to which petitioner alludes. Parkside Liquors, together with two other stores, occupied a single structure located at the intersection of Laramie Avenue and West Irving Park Road. Of the three stores, only petitioner's business premises sold liquor. A conspicuous sign at or near the entrance of petitioner's premises identified such premises as Parkside Liquors. In addition, petitioner's premises were known and commonly referred to in the community as Parkside Liquors. The warrant focuses the location of Parkside Liquors upon the 5100 block and upon the 5152 through 5158 building of West Irving Park Road. There could have been no mistaking petitioner's tavern as the proper object of the search. Moreover, the limits of the search were carefully circumscribed as the "ground floor of a one-story building" which we do not view as an overbroad search. In these circumstances we deem the irregularity noted by petitioner insufficient to vitiate the search warrant. The number address, albeit an important means of identification, is not, per se, a condition to the validity of the warrant.Page 1456

InKeininghamv.United States,287 F.2d 126(C.A.D.C. 1960), relied upon by petitioner, the search warrant described the premises to be searched only as 1106 18th Street, NW. The officers executing the warrant, however, entered 1108 18th Street, NW., through a partition on the porch of the 1106 premises and seized certain evidence. The court held the seizure invalid since the officers had illegitimately extended the scope of the search warrant. The instant case is readily distinguishable since the search herein was limited to the place particularly described in the search warrant. Similarly, other cases cited by petitioner are factually distinguishable and require no further comment.

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, sections 4412 and 4905.5The former imposes a registration requirement upon persons who wish to engage in the business of accepting wagers. The latter, except insofar as it refers to section 4412, is not germane and adds little to the issue under consideration. Petitioner argues that these provisions can, in view ofMarchettiv.United States,390 U.S. 39(1968), no longer support the issuance of a search warrant.

TheMarchetticase involved the constitutionality of a criminal conviction for violation of Federal wagering statutes.Marchettidealt specifically with sections 4411 and 4412. Section 4411 requires the payment by gamblers of an annual occupation tax; section 4412, as indicated above, requires the registration with appropriate officialsPage 1457before engaging in the business of accepting wagers. The defendant inMarchettiwas convicted in the lower courts for violation of these statutes. Certiorari was granted "to re-examine the constitutionality under the Fifth Amendment of the pertinent provisions of the wagering tax statutes." The Supreme Court reversed the conviction, declaring: "[Section 4411 and 4412] may not be employed to punish criminally those persons who have defended a failure to comply with their requirements with a proper assertion of the privilege against self-incrimination."

In so holding, the Court overruledUnited Statesv.Kahriger,345 U.S. 22(1953), andLewisv.United States,348 U.S. 419(1955), two prior Supreme Court cases which had upheld the constitutionality of the wagering tax statutes. The Court inMarchettiv.United States, supraat 48, reasoned that the registration requirement of section 4412 required the defendant to furnish information "which would surely prove a significant 'link in a chain' of evidence tending to establish his guilt." The Court permitted the assertion of the privilege against self-incrimination in defense of a prosecution under section 4412.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. [390 U.S. at 60]

Petitioner and respondent disagree as to the precise holding ofMarchettiin the context of the instant case. Petitioner takes the position that the 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 thatMarchettimerely forecloses the possibility of criminal conviction in the face of a timely assertion of the fifth amendment. Respondent points out, however, and correctly so, that failure to assert the privilege, or an effective waiver thereof, will leave the defendant vulnerable to criminal prosecution and conviction. SeeMarchettiv.United States, supraat 50;Grossov.United States,390 U.S. 62,70(1968). It is also noteworthy that the fifth-amendment privilege merely providesPage 1458a defense to prosecution for failure to comply with the gambling statutes; it does not extinguish one's liability for the prescribed taxes.Grossov.United States, supraat 69 fn. 7.

The question to be decided, then, is whether the search warrant at issue, issued in 1964 and founded upon section 4412 of the Internal Revenue Code, was defective and the attendant search illegal as a result of the promulgation ofMarchettiin 1968. For the reasons which follow, we have concluded that theMarchetticase does not affect the validity of this search warrant which was issued prior to the promulgation ofMarchetti.

We preface our consideration of this issue with a brief discussion of the fourth amendment, its background and purpose.

The fourth amendment6embodies those protections which "affect the very essence of constitutional liberty and security. * * * they apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life."Boydv.United States,116 U.S. 616,630(1886). This amendment is no longer thought to protect the individual against criminal investigation alone. "The basic purpose of [the fourth amendment] * * * is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials."Camarav.Municipal Court,387 U.S. 523,528(1967). While the Supreme Court has consistently and zealously resisted any attempted erosion of the protections afforded by the fourth amendment, it has nevertheless also recognized that such rights are not absolute and must yield under limited and carefully controlled circumstances to various public interests of overriding importance. Thus,"unreasonable"searches alone are within the protection of the fourth amendment. The term "unreasonable" has been broadly construed to require, with few exceptions,7the procurement of a search warrant:

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. [387 U.S. at 528,529]

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.Bergerv.New York,388 U.S. 41(1967). "When the right of privacy must reasonablyPage 1459yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent."Johnsonv.United States,333 U.S. 10,14(1948).

But the issuance of a search warrant is itself subject to constitutional limitations. Such issuance must, under the fourth amendment, be founded upon the existence of "probable cause." Because the area of public concern which has historically warranted the invasion of the constitutionally protected right to privacy is the enforcement of the law, the term "probable cause" has been traditionally taken to mean the reasonable belief that the search is required in order to detect criminal conduct. "The purpose of the probable-cause requirement of the Fourth Amendment, [is] to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been * * * committed."Bergerv.New York, supraat 59. However, probable cause includes all governmental interests which allegedly justify official intrusion upon the constitutionally protected interests of the private citizen.8Camarav.Municipal Court,supraat 534, 535.

Against the foregoing constitutional background, we proceed to consider the validity of the search warrant in the instant case. Petitioner has contended that theMarchetticase removes the probable cause for the issuance of the warrant in 1964. Petitioner's argument is predicated on the dual premises thatMarchettihas invalidated the wagering statutes by rendering them unenforceable and that such invalidation operatesretroactivelyto vitiate the probable cause for the issuance of the warrant. The first of these premises has been firmly rejected by the Fourth Circuit inWashingtonv.United States,402 F.2d 3(C.A. 4, 1968). This case involved a civil proceeding to enforce a tax lien for delinquent wagering excise taxes. The court, after deciding that the taxpayer's liability for the payment of wagering excise taxes was not extinguished by assertion of the fifth amendment, turned to the evidentiary question. As in the instant case, the taxpayer inWashingtonquestioned pursuant toMarchettithe validity of a search warrant founded upon the violation of the Federal wagering tax statutes. The court, rejecting this claim, stated:

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 beconvictedof a criminal violation of the wagering tax lawsifhe has properly claimed his constitutional privilege against self-incrimination. Under the circumstances, we conclude that where, as here, there exists probable cause forPage 1460belief 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.2We hold that the judgment for wagering excise tax deficiencies rests upon a valid assessment and will be affirmed. [Footnote omitted.9]

Accord,Statev.Gerardo,53 N.J. 261,250 A.2d 130(1969);Hamiltonv.United States,an unreported case (S.D. N.Y. 1969, 24 A.F.T.R. 2d 69-6009, 69-2 U.S.T.C. par. 15,924). Contra,Silbertv.United States,289 F. Supp. 318,320(D. Md. 1968).

The foregoing rationale ofWashingtonv.United States,supra,in holding valid a search warrant issued pursuant to the wagering tax statutes, is equally applicable to search warrants issuedbeforeandaftertheMarchettidecision. However, under the facts of the instant case, we need not pass upon the validity of a search warrant procured after the promulgation ofMarchetti. Whatever the result may be for post-Marchettisearch warrants, we think it quite clear that a pre-Marchettisearch warrant based upon the gambling tax statutes is valid and evidence so obtained is admissible. We follow the holding ofWashingtonto this extent.

The search warrant in the instant case was issued in 1964, several years before the decision inMarchetti. As noted above, the Supreme Court in decidingMarchetti,overruled theKahrigerandLewiscases, two prior Supreme Court cases which had upheld the constitutionality of the wagering tax statutes and specifically rejected the proposition later adopted inMarchettithat the statutes as presently structured contravened the fifth amendment. The search warrant was thus issued upon the reasonable belief that criminal statutes, properly enacted by Congress and upheld by the Supreme Court, were being violated. The decision to conduct the search was not that of police officers, but of an impartial magistrate, faithfully executing the duties of his office. In these circumstances, petitioner's premise thatMarchettiserved to retroactively remove probable cause from the issuance of the warrant is wholly unpersuasive. Were the interests safeguarded by the fourth amendment absolute and inviolate, petitioner's contention may have been compelling. But, as we have already stated, such right to privacy, though basic to a free society, may be overborne by principles equally basic. As the Supreme Court has stated inBrinegarv.United States,Page 1461338 U.S. 160,175-176(1949), in commenting upon the probable-cause requirement for warrantless searches:

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 on facts leading sensibly to their conclusions of probability. The rule of probable cause is apractical, nontechnical conception affording the bestcompromise that has been found for accommodating these oftenopposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding 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. SeeUnited Statesv.Beyer,426 F.2d 773(C.A. 2, 1970). All that the constitution requires is that the search be reasonable, which is after all the "ultimate standard" of its validity.Eatonv.Price,364 U.S. 263,273(1960). The search having been in our view reasonable, we can see no reason to exclude the evidence procured in its execution from the instant proceeding.10

Moreover, we perceive a further fallacy in petitioner's reasoning indicated by his retroactive application ofMarchetti. The Supreme Court has passed upon the retroactivity of the various judicial innovations. SeeJohnsonv.New Jersey,384 U.S. 719(1966);Stovallv.Denno,388 U.S. 293(1967);Tehanv.Shott,382 U.S. 406(1966); andLinkletterv.Walker,381 U.S. 618(1965). The retroactive effect of Marchetti remains undecided to date.11Under the cases cited above, retroactivity of various Supreme Court decisions ranges from application of the new law to cases in which the offending conduct occurred after the decision was filed, to application of the new law to only thosePage 1462convictions which have not become final on the date of the decision.12It appears that under the most liberal of the retroactivity rules, the search warrant issued on October 29, 1964, could have led to conviction under the wagering tax statutes which would have survived the laterMarchettidecision. Thus, for example, a conviction which was final prior to January 29, 1968, the date of the promulgation ofMarchetti,would have been beyond the reach ofMarchetti,under the retroactivity principles expressed inLinkletterv.Walker,supra. It seems hardly reasonable to retrospectively invalidate a search warrant on the ground thatMarchettideclared unconstitutional the statutes upon which it was based, where a criminal prosecution predicated upon the same statutes, would have escaped the reach ofMarchetti. We therefore reject petitioner's retroactive application ofMarchettito remove probable cause for the issuance of the warrant.13

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 byMirandav.Arizona, supra,because of his failure to receive the required warnings.

We have recently considered the application ofMirandato interrogations by representatives of the Internal Revenue Service.John Harper,54 T.C. 1121(1970). InHarperwe concluded that failure of the revenue agent to advise a taxpayer of his constitutional rights under the fifth14and sixth amendments does not warrant the exclusionPage 1463from evidence of statements made by the taxpayer to revenue agents at a noncustodial and noncoercive interview. The Court inHarperrested its decision upon the dual alternative premises thatMirandais inapplicable to noncustodial interrogation, and that, in any event, admissions given without theMirandawarnings, whether or not admissible in a criminal prosecution, are admissible in a civil proceeding.15The Court recognized, however, citingMathisv.United States,391 U.S. 1(1968), that custodial interrogations, whether by revenue or special agents, are within the mandate ofMiranda. John Harper,supraat 1133 fn. 5.

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 inHarper,that the questioning was, in fact, noncustodial. The term "custodial interrogation" as defined inMirandarefers 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 Court inOrozcov.Texas,394 U.S. 324(1969), applied theMirandaprinciples to an interrogation not wholly unlike the circumstances of the instant case. In that case, four officers entered defendant's bedroom, in a boarding house at which he lodged, and briefly questioned him. The Supreme Court held the questioning to be of the type comprehended byMirandaand excluded the admissions made by the defendant without having been apprised of his constitutional rights. We observe no ready factual distinction betweenOrozcoand the instant case so far as the manner of questioning is concerned. However, we need not decide whether the questioning was custodial, since the second rationale for the inclusion of the statements inHarpergoverns the issue in the instant case. For reasons adequately stated inHarper,supraat 1137-1139, we think thatMirandadoes not preclude the admissibility of statements made by petitioner in a civil proceeding. Petitioner has cited no case, and we have found none, requiring admissions obtained without informing petitioner of his constitutional rights to be excludedPage 1464from a civil proceeding. To be sure, the fifth amendment timely asserted may excuse a witness from testifying in a civil proceeding.McCarthyv.Arndstein,266 U.S. 34(1924);In ReGault,387 U.S. 1(1967). But such assertion, as we stated inHarper,hinges upon the possible use of the evidence in a criminal proceeding.McCarthyv.Arndstein, supra;andIn ReGault, supra. Where no threat of criminal prosecution exists because of a grant of immunity or other reason, the fifth amendment is inapplicable and testimony may be compelled.Brownv.Walker,161 U.S. 591(1896);Brownv.United States,359 U.S. 41(1959);Masonv.United States,244 U.S. 362(1917). Similarly a statute or judicial order barring evidence from being utilized in a criminal prosecution will, if coextensive with the privilege against self-incrimination, justify the compulsory disclosure of evidence otherwise within the protection of the fifth amendment.Simmonsv.United States,390 U.S. 377(1968);Murphyv.Waterfront Comm'n.,378 U.S. 52(1964); andCounselmanv.Hitchcock,142 U.S. 547(1892). In the instant case, petitioner's privilege against self-incrimination may be adequately safeguarded by an appropriate exclusionary order in any criminal proceeding which may follow.16Sanfordv.United States,358 F.2d 685(C.A. 5, 1966);Vennv.United States,400 F.2d 207,211fn. 7 (C.A. 5, 1968);John Harper, supra. We thus consider the oral admissions of petitioner admissible in the instant proceeding.

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 section 6653(a) or (b) do not fall within the rubric of criminal or quasi-criminal proceedings.Helveringv.Mitchell,303 U.S. 391(1938);John Harper, supraat 1138. InMitchellthe taxpayer questioned the constitutionality of the imposition by the Commissioner of Internal Revenue of a 50-percent addition to tax under section 6653(b) following his acquittal from an indictment charging him with the willful attempt to evade and defeat the payment of tax (presently section 7201). The taxpayer claimed that the fifth amendment provisions with respect to double jeopardy barred the assessment of "penalties" after acquittal under the criminal statutes. Mr. Justice Brandeis, speaking for a nearly unanimous Court, held that the additions to tax are not "intended as punishment so that the proceeding is essentially criminal"; such additions were rather, as in the case of the additions to tax of 25 percentPage 1465for delinquency and 5 percent for negligence, of a "remedial character." The Court noted that civil procedures, applicable to the civil "fraud" proceeding, are incompatible with constitutional guarantees governing the criminal prosecutions — such as the rights to trial by jury, to be confronted with witnesses, and "to refuse to testify." The Court thus refused to apply the fifth amendment provisions regarding double jeopardy to the imposition of additions to tax under section 6653(b).

Having disposed of the threshold evidentiary issues, we turn to the substantive issue of this case, viz, whether the Commissioner properly asserted deficiencies and additions to tax under section 6653(b) for the taxable years 1961 through 1964. We think the evidence introduced at trial, including the testimony of several undercover agents regarding petitioner's wagering activities in 1964; the tangible evidence secured in the October 29, 1964, search of petitioner's business premises, Parkside Liquors; and oral admissions of petitioner at the time of the search, clearly and convincingly support the Commissioner's assertion of both the deficiencies and additions for fraud. Indeed, petitioner has neither denied nor defended his failure to report substantial amounts of wagering income during the years at issue; but was content with his challenge to the admissibility of various items of evidence discussed earlier. We think it abundantly clear from the record before us that petitioner has knowingly and fraudulently understated his income for the purpose of evading the payment of income taxes.

Reviewed by the Court.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 inJohn 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.Harpercannot be dismissed as simply a noncustodial case.

Nothing said in theHarperopinion or in the majority opinion in this case would seem to foreclose the point made forcefully by Judge Tannenwald that the due process clause of the fifth amendment may protect a civil litigant from fundamental unfairness. However, as our opinion inHarpermakes clear, the procedural rigidities ofMirandaare 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-incriminationPage 1466clause inHarper. Moreover, I would reserve judgment on this due process issue until such time as a taxpayer places it squarely before us.

RAUM, FORRESTER, 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 the issue involving the necessity ofMirandawarnings, on the same basis as in my concurrence inJohn 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 theEscobedoandMirandadecisions. 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. SeeMirandav.Arizona,384 U.S. 436,468-470(1966).

The need forEscobedoandMirandawarnings, 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 readEscobedoandMirandaas 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 inMirandav.Arizona,384 U.S. at 503,505-509. Moreover, as Mr. Justice Clark, writing for the majority inMappv.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.Page 1467See367 U.S. at 659,660; see alsoElkinsv.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 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 inMappv.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 Brandeis, 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." [See367 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.1To the extent that the majority opinions herein and inJohn Harper, supra,imply otherwise, I disagree.

FORRESTER and STERRETT,JJ.,agree with this concurring opinion.Page 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 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.Pizzarellov.United States,408 F.2d 579(C.A. 2, 1969). I would distinguishJohn 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.
  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. SeeCostellov.United States,365 U.S. 265,278-280(1961);Takahashiv.United States,143 F.2d 118,122(C.A. 9, 1944), citingSilverthorne Lumber Co. v.United States,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, and 4804(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. Camarav.Municipal Court,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 inWashingtonv.UnitedStates,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.Washingtonv.United States, supraat fn. 9. See also in this connectionUnited Statesv.Donovan,an unreported case (E.D. Va. 1969, 24 A.F.T.R. 2d 69-6191, 69-2 U.S.T.C. par. 15,915), holdingMarchettiinapplicable to a pre-Marchettiplea of guilty leading to conviction under the wagering tax statutes. ↩
  10. For similar reasoning, seeSilbertv.United States,282 F. Supp. 635,645-646(D. Md. 1968);Statev.Gerardo,53 N.J. 261,250 A.2d 130(1969); andHamiltonv.UnitedStates,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 ofMarchetti,see fn. 12infra. ↩
  12. Escobedov.Illinois,378 U.S. 478(1964), andMirandav.Arizona,384 U.S. 436(1966), were applied to cases in which trial commenced after the promulgation of those cases by the Supreme Court underJohnsonv.New Jersey,384 U.S. 719(1966);Gilbertv.California,388 U.S. 263(1967), andUnited Statesv.Wade,388 U.S. 218(1967), were essentially held to be prospective only underStovallv.Denno,388 U.S. 293(1967); andGriffinv.California,380 U.S. 609(1965), andMappv.Ohio,367 U.S. 643(1961), were made applicable underLinkletterv.Walker,381 U.S. 618(1965), andTehanv.Shott,382 U.S. 406(1966), to cases in which convictions were not final on the dates theGriffinandMappcases were filed. See alsoDesistv.United States,394 U.S. 244(1969), givingKatzv.United States,389 U.S. 347(1967), prospective application only.

    As to the retroactivity ofMarchetti,seeMackeyv.UnitedStates,411 F.2d 504(C.A. 7, 1969), andGrahamv.UnitedStates,407 F.2d 1313(C.A. 6, 1969). InMackeythe court held the defendant's wagering tax return, filed prior toMarchetti,admissible in the criminal prosecution for tax evasion on the ground thatMarchettiwas not retroactive in this situation. See alsoSilbertv.United States, supraat 643-644; andUnited Statesv.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 instantcivilproceeding. 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 witnessagainst 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. InJohn Harper,54 T.C. 1121(1970), this Court declined to follow the guidelines regarding the administration of theMirandawarnings set forth inUnited Statesv.Dickerson,413 F.2d 1111(C.A. 7, 1969), which extended the applicability ofMirandaprinciples to noncustodial interrogations. See alsoUnited Statesv.Habig,413 F.2d 1108(C.A. 7, 1969), andUnited Statesv.Lackey,413 F.2d 655(C.A. 7, 1969). Cf.Steinerv.Commissioner,350 F.2d 217(C.A. 7, 1965), affirming a Memorandum Opinion of this Court. UnderUnited Statesv.Dickerson, supraat 1117,Mirandawarnings 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 toDickersonprospective application. Thus, the instant proceeding, the events of which occurred in 1964, prior toDickerson,is not governed by that case. Moreover,Dickersoninvolved 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.Murphyv.Waterfront Comm'n,378 U.S. 52,79(1964);Arndsteinv.McCarthy,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.Murphyv.Waterfront Comm'n, supraat 79 fn. 18. ↩
  17. Several cases have applied the fourth amendment to the use of illegally obtained evidence in a civil proceeding. SeePizzarellov.United States,408 F.2d 579(C.A. 2, 1969);Berkowitzv.United States,340 F.2d 168(C.A. 1, 1965);Tovarv.Jarecki,173 F.2d 449(C.A. 7, 1949);Rogersv.United States,97 F.2d 691(C.A. 1, 1938);State of Iowav.Union Asphalt Roadoils, Inc.,281 F. Supp. 391(S.D. Iowa 1968);United Statesv.Blank,261 F. Supp. 180(N.D. Ohio 1966);Lordv.Kelley,223 F. Supp. 684(D. Mass. 1963);Lasoffv.Gray,207 F. Supp. 843(W.D. Ky. 1962). ↩