UNITED STATES v. JANIS

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Argument of Bork

Chief Justice Warren E. Burger: We will hear arguments next in United States against Janis.

Mr. Solicitor General you may proceed whenever you are ready.

Mr. Bork: Mr. Chief Justice and may it please the Court.

We are here upon a writ of certiorari to the Court of Appeals of the Ninth Circuit.

The Court of Appeals affirmed the District Court’s grant of summary judgment against the United States and did so on the basis of the District Court’s findings of fact and conclusions of law without any opinion of its own.

The District Court granted summary judgment to respondent, both upon his suit for a refund of taxes collected under assey and also upon the Government’s counterclaim for the unpaid balance of the assessment.

Now, the facts underlying this suit are very simple.

The Los Angeles Police Department prepared an affidavit, somewhat lengthy design to show a probable cause for a search and obtained from a Municipal Court Judge a warrant directing a search for a bookmaking paraphernalia and in the search that ensued, respondent and one Morris Levine were arrested and certain property, including a $4,940.00 in cash were seized.

Shortly after that occurred, the Los Angeles Police officer notified a revenue agent of the Internal Revenue Service of the arrest and of the seizure.

There is a Federal tax of course on wages and since respondent and Levine had filed no tax returns for the period in question, the Internal Revenue Service checked the wagering records and calculated the number of days, the surveillance of respondent Levine suggested that the -- indicated that the wagering activity had gone on, that indicated a period of 77 days.

Working with that information, the Service made an assessment against respondent Levine of about $89,000.00 plus interest.

And pursuant to that assessment, the Internal Revenue Service levied upon the cash seized by the Los Angeles Police in partial satisfaction of respondent’s tax liability.

The State prosecution for respondent Levine for illegal gambling found that when the same Municipal Court Judge who had issued the warrant granted a motion to quash it on the ground that the supporting affidavit was inadequate to show the reliability of the information passed on by the informants, although it was adequate to show -- indicate the reliability of the informants themselves.

Two years later, respondent began this tax refund suit and as I have said, the Government counterclaimed for the unpaid balance of the assessment.

Now, the cases hold that a taxpayer claiming a refund or opposing a collection suit has the burden of proving his real tax liability.

Respondent presented no evidence upon that issue, whatever. He relied exclusively upon a motion to suppress the tax assessment on the ground that the information upon which the assessment was based had been illegally obtained in violation of the Fourth Amendment.

The District Court accepted that theory and suppressed the assessment and the Ninth Circuit affirmed as I say per curiam and without opinion.

I think the legal theory underlying these decisions below is an extraordinary one or rather it must be an extraordinary one because it is not articulated in the District Court or in the Court of Appeals beyond the statement that the Government’s assessment grew out of knowledge that was ultimately held to have been obtained by a search warrant that did not meet Fourth Amendment standards, a warrant obtained by the Los Angeles Police.

How that fact connects with this tax litigation is nowhere explained and I will attempt to show that there is no adequate connection.

What has happened here is that the Court below without analysis or argument had fashioned a sweeping extension of the exclusionary rule.

When I say without argument, I mean without argument by the Court.

This extension amounts to a new rule that not only may evidence be excluded from judicial proceedings, but that the Government maybe required to forgo its civil rights, if it knew of its civil rights, only because some other Government obtained information under a warrant subsequently held to be inadequate.

Justice William H. Rehnquist: What civil rights does the Government have?

Mr. Bork: The right to the collection of taxes, Mr. Justice Rehnquist, I meant, its right in the civil litigation.

Justice William H. Rehnquist: Oh! I see.

Chief Justice Warren E. Burger: This might have some effect I suppose on the activities under the informant’s statutes where people secretly inform, give information that leads to tax liabilities, is that possible?

Mr. Bork: I suppose it would be if they have given the information to the Internal Revenue Service.

I do not think it would apply in this situation where the information was given to the Los Angeles Police Department for a criminal investigation, at least not that I know of.

There is certainly no -- nothing in this record to at least suggest any such --

Chief Justice Warren E. Burger: Suggesting there is a possibility that when a tax assessment or deficiency claim is based upon an informant’s information, this case would perhaps have some implication that the Court must inquire or someone must inquire into how the informant got his information that he passed on to the Internal Revenue, is that possible?

Mr. Bork: I suppose it is possible Mr. Chief Justice.

I suppose in the case of an informant speaking directly to Internal Revenue Service and the Internal Revenue Service would verify the information in some other way before they could collect the taxes.

No, I think you are right you are right.

They might make an assessment on the basis of that information which could be hearsay even as a Grand Jury’s indictment could be based on hearsay and if the assessment were resulted in the collection, I think that is correct.

Justice Lewis F. Powell: Mr. Solicitor General, would you have a different case if the Internal Revenue Service agents had seized this records and this money directly themselves by a warrantless search?

Mr. Bork: I think one might, Mr. Justice Powell.

There is a suggestion in respondent’s brief here, that if this evidence, if this assessment is not suppressed, Internal Revenue agents will be free to break into homes and offices.

I find that suggestion mildly humorous because I do not think the Internal Revenue Services have such intention or perhaps indeed capacity.

But I will suggest in the course of this argument that it would be unwise to extend the exclusionary rule to civil litigation.

But the basis for that suggestion essentially is that in the world as we know it and as the Court observe it, illegal searches and seizures primarily occur in connection with criminal investigation and there just is not much evidence of or any perhaps evidence of illegal search and seizure in civil matters.

Should that become common by the Internal Revenue Service or any other agency of Government, then I suppose the time would have come to consider the extension of the exclusionary rule to that class of cases.

But as the matter stand now, we have nothing like that and it would be a different case as you suggest.

Justice Harry A. Blackmun: How frequently do we have a situation of this kind where the IRS is using material so obtained from State or Local authorities?

Mr. Bork: Well, the only thing in the record on that Mr. Justice Blackmun, is the statement by the police officer here that when it was a large bookmaking operation, he generally passed the -- notified the Internal Revenue Service, for the smaller one he did not.

He said that was not a Departmental Policy and he supposed that some other officers would not notify the IRS, but he would.

As a nationwide matter, I frankly do not know the frequency with which it occurs.

Justice Byron R. White: Mr. Solicitor General, suppose the Federal tax people were told or otherwise knew that the information that was being presented to it had been obtained by patently illegal search and seizure, I know you suggest that as a general rule he should avoid the exclusionary rule, but what about in the individual case where the officer knows, (Voice Overlap)?

Mr. Bork: Well, I think Mr. Justice White that the issue is always an issue of general deterrence and not an issue of, are we upset about this case because this Court has recognized it is too late to repair the privacy or interest of the individual raising the case.

All that can be done is to deter the police for the future.

If there were a common pattern and practice by which police in any city or police generally conducted unconstitutional raids for the purpose of handing the information over to the IRS, then I think we would have a different kind of case altogether and we would have to consider at that point the fashioning of an exclusionary rule when the Internal Revenue Service attempted to benefit by that kind of a practice.

Justice Byron R. White: But even if they were -- even if they were going to say that he would exclude evidence on the facts I posed, that is not the case here, I take it?

Mr. Bork: That is not at all the case here.

I was -- this case is a case in which so far that all the facts indicate, the Los Angeles Police Department acted in the utmost good faith, obtained a warrant and the Internal Revenue Service acted in the utmost good faith and I will suggest indeed in a moment that I think it is probably unlikely that the -- the evidence should have been excluded even in the State trial, much less in the Internal Revenue’s proceedings.

The crucial element --

Justice William J. Brennan: Did you say, should not have been?

Mr. Bork: I will suggest it, Mr. Justice Brennan, that when a warrant has been obtained, when the primary purpose of the exclusionary rule has been carried out to force or to urge that they will get the police before a neutral and detached magistrate and when they make a good faith and bona fide effort to show a probable cause and later it is said that there is a procedural defect, indeed on the -- a mistake on the part of the magistrate, if he had asked in this case, something did not satisfy him, it is quite likely the information --

Justice William J. Brennan: (Inaudible)

Mr. Bork: Well, it is one way to decide this case.

As I look at this case --

Justice William J. Brennan: It is not addressed to the Lower Courts?

Mr. Bork: Well, the Court of Appeals did not say anything, Mr. Justice Brennan and the District Court merely had findings of fact and conclusions of law and as I look at this case, there are so many ways it could be decided.

And I suggest that they are always, it could be decided in favor of the Government, that I would urge upon you a variety of ways to cut this case for a decision.

One of them of course is the one I have just mentioned, because the crucial element in the exclusionary rule is the factor of deterrence.

Is there a realistic judgment that excluding evidence in a particular class of cases will actually deter police officials or others from illegal searches and seizures, or force them before magistrates?

Now, I think deterrence is not usually applied, the people who have acted in complete good faith and turned out to be mistaken in a close case --

Chief Justice Warren E. Burger: Under the holding of the -- what we have before us, essentially the District Court holding, suppose the IRS had come to this information by reading in the Los Angeles Times an account of the motion to suppress in the State Courts and then proceeding from that information conducted an investigation, does this holding insulate the Government or would it be subject to the same challenge that your friend is making?

Mr. Bork: I think that would, Mr. Chief Justice would be subject to the same challenge that my brother is making here.

I think this is an extraordinary sweeping ruling which says I think that if the Government’s knowledge can be traced back through how many -- however many links to an illegal search and seizure, the Government is not entitled to have that knowledge.

Chief Justice Warren E. Burger: Even though that knowledge has become public property by virtue of being reported in a newspaper, account of the motion to suppress?

Mr. Bork: Well, if it were not the view of the Court below and of my brother here that the Government would be foreclosed in such a case, then I think it would be relevantly unimportant that the Government was told by a Los Angeles police officer because the Government could have leaned of it easily later through the proceedings in the Municipal Court.

I think it is a very sweeping rule that is being -- is being urged upon us.

I suppose I could distinguish the case you put, but in honesty, I think the rational below really says that if the knowledge derives from the illegal, illegally seized evidence, it may not be used.

Justice William J. Brennan: Your emphasis on deterrence pose one's view while that exclusionary rule has other premises, additional integrity and so forth?

Mr. Bork: Well I think it has been suggested, Mr. Justice Brennan that those other, particularly judicial integrity interests, run just about parallel with deterrence, so that the analysis turns out to be much the same and indeed if judicial integrity meant that evidence of this sort could not be used in this tax litigation, then I would really suppose that you would have to overrule Harris against New York, Calandra, Peltier because those are all cases in which evidence of this sort gets used in some way and if judicial integrity means that under no circumstances may anything happen because of --

Justice William J. Brennan: I guess those were all three cases in which I dissented, were they not?

Mr. Bork: True, Mr. Justice Brennan.

Justice Potter Stewart: Well, is the case that Harris relied upon, Walden or Wal --?

Mr. Bork: Walder.

Justice Potter Stewart: Walder, yes.

I do not think Justice Brennan dissented in that case.

Mr. Bork: No, but I do recall that it was the same as Walder or not.

Unknown Speaker: That is what I mean?

Mr. Bork: Alright [Laughter] In any event I think this rule, one of which I urge that when a warrant has been sought in good faith with a good faith attempt to show a probable cause, that there are ought not to be exclusion, but obviously go beyond this case.

We go to criminal cases and there is a basis for decisions, a decision like that.

For example, Aguilar against Texas notes that a magistrate’s mistake is not to be taken as seriously as a police officer’s mistake when he acts without a warrant and there is the observation in Peltier that if the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge or maybe properly be charged with knowledge that the search was unconstitutional under the Fourth Amendment.

Chief Justice Warren E. Burger: Are you suggesting that this -- that in the legendary language of Justice Cardozo, is the blunder of the magistrate not the blunder of the constable?

Mr. Bork: I think that is certainly much of what is involved here Mr. Chief Justice.

We had a police officer make a good faith attempt to put as much information as he could and a magistrate accepted it.

Justice Potter Stewart: Surely you would be contending to the same position if there had been no warrant, would you not?

Mr. Bork: If there had been no warrant?

Justice Potter Stewart: Yes.

Mr. Bork: Oh! In this case I was just offering one.

I would indeed because I think there is no deterrence here, but I think I was offering one way to cut the case.

The other way to cut the case is that this is a civil litigation and for the reasons I have discussed earlier, I think there is no reason to extend the exclusionary rule in the civil litigation when we know that in this class of case, there is no evidence that there is anything to deter.

And in Calandra of course it is noted that the standing requirement is premised on the recognition that the need for deterrence enhance the rationale for excluding the evidence are strongest where the Government’s unlawful conduct would result in the imposition of a criminal sanction.

Now, it maybe that Camara against Municipal Court comes close to saying that exclusionary rule or that warrants can be required in civil cases, however, that of course resulted in the criminal prosecution.

And I have suggested earlier that indeed if one began to see a pattern of unlawful searched and seizures in the enforcement of civil liability, that it might become necessary to consider the extension of the exclusionary rule to civil cases, but that is not the case here.

Chief Justice Warren E. Burger: But whatever Camara may have or may not have into that, has that not been swallowed up by Harris and Calandra and the other cases you refer to?

Mr. Bork: Well, it is ahead Mr. Chief Justice.

I was just suggesting that there is a suggestion in Camara that even if it were a purely civil case, a warrant might be required in that context and I was merely suggesting that I am not trying to draw --

Justice Byron R. White: By putting it?

Mr. Bork: I will try to strengthen the observation.

The warrant can be required in that context, but that was a criminal prosecution, the opinion also noted.

So that I do not think that is a direct holding that the exclusionary rule or warrant requirement might always be in -- used in civil cases, but I am willing to recognize the possibility that in a variety of kinds of civil cases, if you get unlawful searches and seizures, as a pattern, one might extend the exclusionary rule to that kind of case.

Justice Byron R. White: There is no necessary -- there is no necessary connection between it, you would say the Fourth Amendment applies in a civil context?

Mr. Bork: Yes.

Justice Byron R. White: But not the exclusionary rule?

Mr. Bork: We do not need the exclusionary rule at present Mr. Justice White, I am suggesting because we have no pattern of unlawful searches and seizures to enforce civil liability.

Justice Byron R. White: But you would not suggest that the Fourth Amendment is designed only to protect against --

Mr. Bork: No, no --

Justice Byron R. White: Against -- only to protect criminal defendants?

Mr. Bork: No, no.

I did not mean to suggest that at all, if I did I misspoke.

Justice Byron R. White: And that even if you could not get a -- exclude evidence in the civil case, you could sue for damages, if there had been an illegal search or seizure?

Mr. Bork: That is true.

But here, if we are taking about deterrence realistically, it seems to be bad enough to apply the exclusionary rule to the Los Angeles police behavior in this case.

It seems to me a little short of ludicrous to apply the exclusionary rule to the Internal Revenue Service in this case.

I cannot imagine what it is that the Internal Revenue Service was expected to do differently in the future.

I cannot imagine what behavior of the Internal Revenue Service is to be modified.

The only result here is that respondent escapes paying taxes that other people in respondent’s position must pay.

The deterrent rationale here has reached a vanishing point.

There is one aspect of respondent’s brief not discussed in ours and I should mention it briefly.

He raises a Fifth Amendment point at the end of his brief.

The argument being apparently that for respondent to meet his burden of proof to establish his tax liability, he would have to incriminate himself because if they are short of saying he was not engaged in bookmaking, he would have to say I was engaged in bookmaking, but it did not make that much money.

In the first place that is not an issue here.

This question here is a pending.

Decision below is entirely about the fact that the Government learned of the respondent’s activities because of a search later held to be unlawful and I would also point out that in this case, the statute of limitations both Federal and State have run.

This case goes back for trial.

I do not think there is no possibility, respondent can incriminate himself.

He was arrested on November 30, 1968.

The longest California statute is three years, Federal statute is five.

Indeed it is not shown that he meets the other requirements of the federal statute.

And I should point out to the Court that insofar as this is a generalizable problem and not really a problem relating to this respondent, the Tax Court makes irregular practice of deferring civil litigation until either the criminal trial, if there is one has been held and those proceedings are closed or until the statute of limitations is run so that the taxpayer is not put to the choice of incriminating himself or giving up his money.

And the Third Circuit Court of Appeals in the Iannelli case, Iannelli against Long, 487 F.2d 317 at 318 has specifically authorized this practice and indeed said that it would be an abuse of discretion if a District Court refused to put a civil litigation over, so that the respondent will not be put to that kind of a choice.

I do not think that is in the case here, but respondent has raised it and I thought I would mention it.

So --

Justice Potter Stewart: Is that practice written down anywhere?

Mr. Bork: No this is a judicial practice.

Justice Potter Stewart: Yes.

Mr. Bork: It is not written down.

Justice Potter Stewart: By a rule of the Court or anything?

Mr. Bork: Of the Tax Court, I gather not.

Justice Potter Stewart: But one can -- in the Third Circuit citation that you gave us is it recited there that it is the practice of the Tax Court?

Mr. Bork: The Third Circuit said, the District Court was understandably -- no it is not.

It just does not discuss the Tax Court Mr. Justice Stewart.

This is the Third Circuit’s direction to District Court.

Justice Potter Stewart: District Court for a refund?

Mr. Bork: Yes and he says the proceedings should be deferred until the conclusion of the related criminal proceedings or until a running of all applicable statute limitations and if that is refused and it is arbitrary it will be cured by the Appellate Court.

So I think there is no Fifth Amendment issue in this case and I mentioned that merely to meet a point raised by the respondent.

Well, for the reasons I have discussed, the United States ask that this case be reversed and remanded for trial.

Justice Harry A. Blackmun: General Bork, just a matter of curiosity, is there any income tax aspect to Mr. Janis’ problems?

Mr. Bork: I believe this is entirely an excise tax Mr. Justice Blackmun.

Justice Harry A. Blackmun: Yeah, I gather so, but I am asking is there any income tax assessment levied against him that is (Voice Overlap)

Mr. Bork: No, there is none now that I know of.

That is the -- if a question was one levied, the answer is no.

Justice Byron R. White: So the extent you argue that the exclusionary rule should not apply to civil cases generally at this juncture in our experience, do you understand that you are in a -- not, they are Courts of Appeals cases to the contrary other than this one?

Mr. Bork: I do --

Justice Byron R. White: And is it fairly general view in the Courts of Appeals?

Mr. Bork: I think it is the interest split.

Our brief discusses that and I think there is a split in the Court of Appeals.

Justice Byron R. White: Yes.

Well, I under -- what is the -- what do you understand that would be the basis for the Courts of Appeals application of the exclusionary rule to civil cases?

Mr. Bork: Well the -- some of them, as our brief suggests, have invoked the dictum in Silverthorne, that the essence of that provision is that -- not that evidence shall not -- so acquired shall not be used before the Court --

Justice Byron R. White: But it shows from our prior cases rather than a -- than reflect what the experience in that Circuit maybe with respect to the performance or behavior of the Internal Revenue Service?

Mr. Bork: Oh! These are not entirely --

Justice Byron R. White: Tax cases, (Voice Overlap)

Mr. Bork: Tax cases and furthermore there is no practice the Suarez case for example which is cited in footnote 14, at page 37 of our brief, is a case involving – it is a tax case, but it was a police raid and it was not a -- it was not quite this case in that sense, but it was not a case of the Internal Revenue Service formatting the raid or carrying on itself and there was no indication that we are tired of an Internal Revenue Service practice, none of that at all.

I think these are cases which are badly reasoned and the -- in the same footnote, we gave the cases in the Court of Appeals that go the other way and I think the -- about a recent cases.

I should like to reserve any time I have left for rebuttal.

Chief Justice Warren E. Burger: Mr. Sturman.

Argument of Herbert D. Sturman

Mr. Herbert D. Sturman: Mr. Chief justice and may it please the Court.

Before commencing with my argument, I would like to clear up one thing which I believe is in doubt right now and that is, the Solicitor referred to this case as being decided on a motion for summary judgment.

The record is very clear that the plaintiff had made a motion for summary judgment in this case.

That motion was denied in April of 1972.

In February of 1973, this case came to trial in the Federal District Court.

All parties had an opportunity to present any evidence that they desired.

Accordingly, although the case was tried on stipulated facts and exhibits which were submitted by stipulation, all parties were represented, all parties were in the position to submit any additional evidence that the parties had.

Chief Justice Warren E. Burger: How would that effect the basic proposition that is presented in this case?

Mr. Herbert D. Sturman: It would affect the basic proposition because the Government has chosen to rely solely on its certificate of assessment.

It has not sought to introduce any other additional evidence, any untainted evidence.

It is not thought to put anyone on the stand who could attest to the fact that perhaps the plaintiff was a bookmaker, that perhaps the plaintiff was engaged in bookmaking activities.

It relies solely upon a certificate of assessment, which in turn is based solely upon evidence obtained in violation of the taxpayer’s Fourth Amendment right.

And I think it is significant because as a former Government Counsel, I know that had I tried that case, I might have put a lot more evidence into the record and try to put evidence into the record, but here we have a naked certificate of assessment.

Chief Justice Warren E. Burger: Was that in fact the basic issue in more -- in sharper relief?

Mr. Herbert D. Sturman: It does put the basic issue into relief very clearly.

The Government’s position appears to be that number one; the Exclusionary Rule should not be applied in a civil case and primarily that the rule should not be applied because it will not constitute a deterrent.

Additionally, as mentioned in the Government’s brief, the Government contends that not withstanding the fact that the Exclusionary Rule maybe applied, the Federal tax assessment retains its presumption of validity and as such the taxpayer has a further burden in order to rebut this presumption of validity.

With all due respect to the Solicitor General, I believe that deterrence argument is really here in this case.

Our record establishes that the Los Angeles Police officer who had arrested the taxpayer had contacted the Internal Revenue Service as a matter of his policy, as a matter of police procedure.

He testified that --

Justice Thurgood Marshall: I thought he denied that it was a policy of police procedure, it was just his individual?

Mr. Herbert D. Sturman: He said it was his police procedure, I believe Your Honor.

Justice Thurgood Marshall: It was his?

Mr. Herbert D. Sturman: His police procedure.

Justice Thurgood Marshall: But it was not under the rules and regulation of the Police Department?

Mr. Herbert D. Sturman: It is not under the rules and regulations of the Police Department.

Justice Thurgood Marshall: What happens if the police were very friendly with a reporter and tells him, you know, I arrested so and so and he is a bookmaker and gave him all the facts and the reporter gave it to the IRS?

Mr. Herbert D. Sturman: Your Honor raises an interesting question which is precisely what happened in the Suarez case in the Tax Court.

The Internal Revenue Service obtained the information in that case from the newspaper.

The newspaper article was printed.

The Internal Revenue Service then went to see the Police Department and the Tax Court in Suarez held that since the proposed assessment was based solely upon illegally obtained evidence, the assessment was stripped off its presumption of validity, therefore, the Government had the burden of coming forward with untainted evidence in order to establish the assessment.

Justice Thurgood Marshall: And that is your position?

Anyway, once the -- it is illegally -- the Fourth Amendment rights are violated, there is no way, that can ever be used?

Mr. Herbert D. Sturman: That is not my position, Your Honor.

Our case is based on a very careful record and our record clearly establishes that the assessment was based solely upon illegally obtained evidence.

Justice Thurgood Marshall: Assume that was illegally obtained.

The Government believed it was illegally obtained?

Mr. Herbert D. Sturman: The Government in its petition for certiorari conceded that the evidence was illegally obtained.

Now, the Government has taken somewhat of a lesser conciliatory position.

However, I would like to address myself to one thing that Chief Justice stated about that and that is that the blunder of the magistrate is what we have here as opposed to the blunder of the law enforcement official.

I do not think we have that at all.

If you read that affidavit that the law enforcement official submitted, the affidavit clearly shows that that law enforcement official was familiar with the Aguilar case, because he details with particularity the credibility of his informant, but he has nothing in there with respect to the underlying circumstances which gave rise to the informant’s tip.

Justice William H. Rehnquist: What if we were to decide that we would not parse search warrants in civil proceedings the way we did in Aguilar and Spinelli in criminal proceedings?

Mr. Herbert D. Sturman: I am not sure I understand your question, Your Honor.

Justice William H. Rehnquist: Well okay, Aguilar and Spinelli were direct appeals in criminal proceedings and there the Court went into some details as to whether the affidavit properly supported the issue in civil warrant.

They were criminal cases.

What if we were to decide in this case that in a civil proceeding, we would not go behind the warrant.

We would say it is a -- that the Fourth Amendment is sufficiently complied with when you have taken your evidence before a neutral magistrate and we will not worry about whether the affidavit was sufficient in the light of the criminal holdings in Aguilar And Spinelli?

Mr. Herbert D. Sturman: Then what Your Honor is suggesting is a different standard for the admissibility of evidence in a civil case as opposed to a criminal case.

But I think that what you would be doing here is you would say that the Fourth Amendment, you would be giving a criminal greater dignity than a civil taxpayer.

Justice William H. Rehnquist: Well, you could put it the other way around and say that where you are going to impose criminal sanctions on a citizen, you will hold the Government to a higher standard than when you are simply trying to collect back taxes?

Mr. Herbert D. Sturman: It is the same Fourth Amendment applying to all people.

There is no doubt about that.

Now, I would assume that if you have a violation of a person’s Fourth Amendment rights that that violation should be the same whether it is -- rights are violated, whether it be for criminal purposes or whether it be for civil purposes.

Chief Justice Warren E. Burger: What about the Walder case, followed by the Harris case for example?

Those are both criminal cases, were they not?

Mr. Herbert D. Sturman: I believe, Your Honor, they were.

Chief Justice Warren E. Burger: And the evidence even though concededly obtained initially in violation, nevertheless was admissible in the criminal case for impeachment?

Mr. Herbert D. Sturman: For impeachment purposes, yes Your Honor.

But there is a difference between impeachment purposes and taking that evidence and using that evidence as the sole basis for a civil tax assessment.

A civil tax assessment can have the same effect as a threat of incarceration or actual incarceration.

The Government has very powerful tools in the levying procedure and in the assessment procedure.

But if this Court were to reverse this case, I really think that the potential effects could be catastrophic and here is why.

The Court in essence would be giving a license to all law enforcement officials to violate constitutional rights where a crime which would give rise to tax liability is involved and a law enforcement official knowing that his evidence, although insufficient for a criminal prosecution, may nevertheless be used for civil tax liability, may very well go after that evidence and if the object of the rule is to deter, we wanted to deter that type of conduct.

Chief Justice Warren E. Burger: What interest does a policeman in Los Angeles have in seeing that the Federal Government gets its proper tax revenues?

Mr. Herbert D. Sturman: Well, Your Honor he has a very close interest.

He has a close interest for several reasons.

In this particular case --

Chief Justice Warren E. Burger: Well, is it different from yours or mine to see that everybody pays his fair share of taxes?

Mr. Herbert D. Sturman: He has -- his interest is to prevent crime, which is a commendable interest.

However, there are many ways of skinning a cat and one of the ways of preventing crime is through the use of the civil processes of the Internal Revenue Service.

Chief Justice Warren E. Burger: You mean the way they got to Al Capone back 40 years now?

Mr. Herbert D. Sturman: I did not say that, Your Honor.

That was a criminal case, I believe.

I am talking about the threat of a civil tax assessment, of a jeopardy assessment, of a levy, of a seizure of property.

This is a very, very powerful Governmental weapon and these law enforcement officials know it and in fact the Federal Government knows it.

The Federal Government has all these task forces today, coordinating with local Law Enforcement Agencies.

For example, the Bureau of Narcotics coordinates with police officers throughout the United States and as part of that coordination, the Internal Revenue Service is involved because of the narcotics tax.

So there is a very close cooperation between State and Federal agencies.

The object is to prevent crime and one of the ways of preventing crime is through the use of the Internal Revenue Service.

Justice Harry A. Blackmun: Maybe the object is also to collect income taxes from a very lucrative source as far as narcotics are concerned?

Mr. Herbert D. Sturman: The object is to collect income taxes and the collection process is commendable, but the collection process can be within the framework of the constitution.

Justice Harry A. Blackmun: The IRS might well be criticized as being less than diligent if it did not pursue narcotics income, might it not?

Mr. Herbert D. Sturman: There is no doubt that the IRS should pursue narcotics income.

There is no doubt that the IRS should pursue a bookmaker’s income, but let us look at what we really have in this case.

We have a situation where a taxpayer’s Fourth Amendment rights were violated by a Governmental Agency, not the United States of America, but a local Governmental Agency.

Justice Harry A. Blackmun: The Los Angeles Police Department?

Mr. Herbert D. Sturman: The Los Angeles Police Department.

Alright, now we have the Internal Revenue Service as a result of this violation, imposing tax liability against the taxpayer and the Internal Revenue Service is saying that even though our evidence is based -- is illegally obtained under the Fourth Amendment, which apparently was conceded in petitioner’s brief and now I am not so sure, even though it was illegally obtained, even if the Court were to apply the exclusionary rule, nevertheless, there is superior burden which attaches to a civil tax assessment.

Justice William H. Rehnquist: When you say that the evidence was illegally obtained, I take it there has been no trial of the action that the Government might bring against your client, do you?

Mr. Herbert D. Sturman: There -- the evidence was obtained by the Los Angeles Police Department.

Justice William H. Rehnquist: Well, what I meant is the action -- that there – any action that the Government seeks to bring against your client yet been tried?

Mr. Herbert D. Sturman: Yes.

This case right here.

Justice William H. Rehnquist: I thought you were the plaintiff in this case.

Mr. Herbert D. Sturman: We are the plaintiff in this case.

What is happening here is, we as the plaintiff have sued for approximately a $5,000.00 refund.

The Internal Revenue Service as a matter of policy has denied our claim for refund and has also filed a counter claim wherein it is seeking to collect approximately $85,000.00 with interest.

Justice William H. Rehnquist: And was the -- did the Government have an opportunity to proffer its evidence and so forth at the trial or did it?

Mr. Herbert D. Sturman: That is precisely the first point I made when I stood up here and wanted to correct something for the record that this was not on a motion for summary judgment.

Justice William H. Rehnquist: But I -- it does not have to have been on a motion for a summary judgment for the matter to have gone off on a motion to suppress or the effective granting of a motion to suppress rather than a full trial on the merits.

What I am interested in is do we know from this record precisely what evidence it was that the Government would have used against you and how do you relate that particular evidence to the unlawful search and seizure?

Mr. Herbert D. Sturman: Alright.

We know exactly what evidence is involved.

The evidence that was involved is approximately $5,000.00 in cash which the Government seized.

The further evidence is bookmaking markers, bookmaking paraphernalia upon which the Government made its determination that the taxpayer was engaged in bookmaking activities for a five-day period and they arrived at his daily gross for that five-day period.

They then discussed with the Los Angeles Police Department a period of surveillance and they made a determination that the taxpayer had been engaged in bookmaking activities for a 77-day period and they averaged out his daily gross in order to arrive at the excise tax, which is a percentage of the gross volume of activities.

Justice Potter Stewart: That is all set out on the top of page 5a in the District Court’s opinion, where it is summarized?

Mr. Herbert D. Sturman: Yes, Your Honor.

Justice William H. Rehnquist: But those computations are not “evidence” in the normal understanding of the word, are they?

Mr. Herbert D. Sturman: What we have here, Your Honor, is an excise tax based on bookmaking activities.

All evidence that the taxpayer was a bookmaker was illegally obtained evidence.

All evidence of bookmaking activities was obtained in violation of the taxpayer’s Fourth Amendment rights.

So we have a naked assessment, derived that from figures which the Revenue Service got from the Los Angeles Police Department who would had obtained though that information as a result of a defective search warrant.

Am I being responsive to your question Your Honor?

Justice William H. Rehnquist: When you say something as derived from figures that were obtained from the Los Angeles Police Department, I do not think of “figures” being admissible in trial on the ordinary evidentiary sense?

Unknown Speaker: There is money you say, would you think that money that is admissible?

Mr. Herbert D. Sturman: They have got money plus they had notations as to -- in order to determine the volume of bookmaking.

Justice William H. Rehnquist: And they proposed to introduce this money at trial?

Mr. Herbert D. Sturman: No.

They proposed to introduce and they did introduce what is found on the last page of the appendix and that is the only piece of evidence offered by the Government other than the evidence, which was stipulated to in the pre-trial conference order.

Justice William H. Rehnquist: This certificate of assessments and payments?

Mr. Herbert D. Sturman: That is correct, Your Honor.

Justice William H. Rehnquist: Well, they certainly did not seize that from your client, did they?

Mr. Herbert D. Sturman: No.

The certificate of assessment and payments is really the Government’s bill so to speak.

It is what they contend that the taxpayer owes.

Justice William H. Rehnquist: What is there about the certificate of assessments and payments which is the only thing that was in evidence that was illegally seized?

Justice Byron R. White: Well, you thought (Inaudible)?

Mr. Herbert D. Sturman: It is the -- this -- the information contained on this certificate of assessment and payments are derived from completely as a result of the search which violated the taxpayer’s Fourth Amendment right.

Justice William H. Rehnquist: Okay.

Well then your -- does a third step really in your reasoning, first, the Los Angeles Police seized something illegally from your client, then the Federal officials got a hold of it, but they did not used that itself or they used that in -- simply to make the -- to compile the information in the evidence they actually did seek to use.

So you got a fruit of the poisonous tree problem, it seems to me, as well as I would rather than a direct use of evidence illegally seized?

Mr. Herbert D. Sturman: What the Government --

Justice Byron R. White: That is the Suarez case?

Mr. Herbert D. Sturman: That is the Suarez case, Your Honor.

Justice Byron R. White: Or is that the -- that you may not base assessment which you make on illegally obtained evidence?

Mr. Herbert D. Sturman: That is correct, Your Honor.

The Suarez case says we have to weigh on the one hand the tax collection process and on the other hand we have to weigh the constitutional rights of individuals.

In the Suarez case in the Tax Court, which is basically a pro-Government Court found that the tax collection procedure --

Justice Potter Stewart: In their opinion, does it not?

Unknown Speaker: (Inaudible)[Laughter]

Mr. Herbert D. Sturman: Alright, I stand corrected, Your Honor.

Justice Harry A. Blackmun: Did they decide for the taxpayer on the case?

Mr. Herbert D. Sturman: They did decide for the taxpayer and they found that the constitutional rights were paramount.

Justice Lewis F. Powell: Mr. Sturman, can I go back a moment to the statements you have made some time ago.

As I understood you, you expressed the view that you are not taking what might be called a per se position.

You were not saying that all illegally obtained evidence must be excluded so far as IRS is concerned or stating affirmatively you were suggesting that the IRS under some circumstances could use illegally obtained evidence.

Would you suggest some examples of when that would be proper in your judgment?

Mr. Herbert D. Sturman: Well, I would suggest, Your Honor, that there may very well be situations where the Internal Revenue Service has on its own sufficient evidence and that there is also other evidence which is illegally obtained and the use of the illegally obtained evidence would not sufficiently taint the assessment.

But I would suggest that on this record, the entire assessment is based solely upon illegally obtained evidence.

Justice Lewis F. Powell: Suppose in this case that the Los Angeles Policeman had not tipped the IRS, but the IRS had discovered the fact that this evidence was available through its own independent sources and had gone to the LA police, I think that question was put to you earlier, would that make any difference?

Mr. Herbert D. Sturman: In my view, no Your Honor.

Justice Lewis F. Powell: Yes.

Mr. Herbert D. Sturman: It would not make a difference.

Justice Lewis F. Powell: But I still cannot quite visualize a specific case that you would agree that the IRS made properly use the illegally seized evidence, seized illegally by as you say an officer of either the State or Federal Government?

Mr. Herbert D. Sturman: Your Honor, perhaps I was not responsive to your question.

I do no think the IRS should be able to use any illegal evidence, but what I am saying is that if a portion of the assessment is predicated upon illegally obtained evidence and a sufficient portion of the assessment is predicated on other evidence, then the assessment should stand --

Justice Lewis F. Powell: Yes.

You are saying that if there is sufficient evidence independent of the illegally seized evidence to support their assessment, their assessment would stand?

Mr. Herbert D. Sturman: That is correct, Your Honor.

Justice Lewis F. Powell: That would be true in any case involving the exclusion of illegally seized evidence?

Mr. Herbert D. Sturman: And that is -- that is precisely the position.

Justice Lewis F. Powell: So in the end you are standing on -- on a view that if the Government has to rely on illegally seized evidence in every case that would not be permissible under the constitution?

Mr. Herbert D. Sturman: That is correct, Your Honor.

Justice Lewis F. Powell: Alright.

Mr. Herbert D. Sturman: There is one further thing and that is, illegally obtained evidence in a civil case will have a much more detrimental effect against the victim than if it were to get into evidence in a criminal case and the reason being because of the difference of burdens of proof.

In a criminal case, the Government has to prove beyond a reasonable doubt.

Here the Government has a presumption of validity in its assessment and it only has to prove by a preponderance of the evidence.

So the admission of the illegally obtained evidence is more detrimental to the civil litigant than it is to the criminal litigant because of the different standards in burden of proof.

Chief Justice Warren E. Burger: (Inaudible) that anymore, let us say, saying $89,000.00 in taxes is always painful, whether you are a legitimate businessman or part of the mafia?

Mr. Herbert D. Sturman: It is painful, Your Honor, there is no doubt about that.

Chief Justice Warren E. Burger: It gives a straight fire, does it?

Mr. Herbert D. Sturman: Correct, but the point is pain as a consequence of one Governmental Agency using illegally obtained evidence from another Governmental agency --

Chief Justice Warren E. Burger: (Inaudible) Internal Revenue Service deter or influence the conduct of the Los Angeles police?

Mr. Herbert D. Sturman: Very easily.

How can we deter because as I mentioned before we have the task force.

We have the closed Governmental cooperation and the Los Angeles Police works very closely with the Bureau of Narcotics.

Chief Justice Warren E. Burger: You mean the Bureau of Narcotics might say that the Los Angeles Police, if you contend you are using getting defective warrants we are not going to cooperate with you on the narcotics traffic?

Mr. Herbert D. Sturman: No, the Bureau of Narcotics may say that the Los Angeles Police get them under any circumstances and this may seem harsh, but the Bureau of Narcotics are comprised of people who want to stop the narcotics traffic and often times the ends justify the means and law enforcement official’s conduct should be deterred and one of the ways of deterring that is by applying the exclusionary rule in this case.

Because if the exclusionary rule is not applied, then what we have here is a situation where every law enforcement official who is involved in preventing crime which will give rise to tax producing -- involves tax producing conduct “go out to get his evidence under any circumstances.”

He will get the evidence for the simple reason that if he cannot use that evidence at his level in a criminal prosecution, the evidence may be turned over to the Internal Revenue Service, so he will be in essence accomplishing indirectly what he cannot accomplish directly.

Justice William H. Rehnquist: Would it not be more to his own advantage though to see that the evidence was obtained illegally, if his responsibility is primarily criminal rather than civil?

Mr. Herbert D. Sturman: Of course, it would be to his advantage, but there are situations where the evidence is difficult to come by.

For example, in this affidavit that we have here, we do not have a blunder by a magistrate.

We have a blunder by a police officer who detailed very carefully what the actions -- the reliability of the informant, but had no reference whatsoever as to what the underlying basis of the tip was or maybe there was no underlying basis, maybe the fact that the taxpayer was engaged in bookmaking activities was casually overheard in the neighborhood bar.

Justice William H. Rehnquist: Well, does that say (Voice Overlap)

Mr. Herbert D. Sturman: That is pointed out in Spinelli.

Justice William H. Rehnquist: Does that strike you as a gross miscarriage of justice that a warrant should issue on that basis?

Mr. Herbert D. Sturman: You see, I do not think that is the issue.

Justice William H. Rehnquist: Well, but does it strike you?

Mr. Herbert D. Sturman: Are you talking to me personally or as an advocate?

Justice William H. Rehnquist: I am talking, well, you have -- as an advocate, I have no right to talk to you personally, I do not think?

Mr. Herbert D. Sturman: Here is what I think we have here.

We have a situation where you have the initial determination as to whether or not evidence was illegally obtained.

The next question is, if it is illegally obtained, should it be excluded because of the deterrent effect and the final question is we exclude it in criminal cases, should we exclude it in civil cases?

I think that what we have here is a situation where no matter what the views of the various Justices are, if the evidence is illegally obtained in the first place, it is got to be excluded, assuming a deterrent effect can be found.

And I think that the area of reform, so to speak, and I am now getting exactly back to your question, is on whether or not, the evidence was initially illegally obtained in the first place.

It was clearly illegally obtained under Aguilar.

It was clearly illegally obtained under Spinelli, but I cannot control the eight members of this Court as to whether it is clearly illegally obtained today.

Thank you, very much Your Honor.

Justice Potter Stewart: Did the Suarez case or do you have any Court of Appeals going further?

Mr. Herbert D. Sturman: Not to my knowledge, Your Honor.

Justice Potter Stewart: Are there any additional Tax Court decisions about Suarez?

Mr. Herbert D. Sturman: There are -- there are several others.

There is of course this case and in addition to that --

Justice Potter Stewart: That is the District, that is a District Court case?

Mr. Herbert D. Sturman: Pardon me.

Justice Potter Stewart: This did not come from Tax Court, this case?

Mr. Herbert D. Sturman: This came from the Federal District Court.

Justice Potter Stewart: Right.

Mr. Herbert D. Sturman: There is a --

Justice Byron R. White: Court of Appeals?

Justice Potter Stewart: Right.

Mr. Herbert D. Sturman: Well, I am sorry.

Justice Potter Stewart: Right, right.

Well my question is directed to the inquiries as to whether or not the Suarez has been consistently followed in the Tax Court?

Mr. Herbert D. Sturman: In the Tax Court itself?

Justice Potter Stewart: Yes.

Mr. Herbert D. Sturman: I do not know that.

I would believe it would have to be because the -- I think it is a full panel of the Tax Court that had heard that case.

So it would be followed in the Tax Court.

There are, however, other Circuit Courts that have gone along with our argue -- the contentions advanced by the taxpayer today and there are numerous other opinions.

There is only one case which really creates a conflict and that is Compton versus United States.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Mr. Solicitor General, (Inaudible).

Mr. Solicitor General you may continue.

Rebuttal of Bork

Mr. Bork: Mr. Chief Justice and may it please the Court.

I just wish to clarify one point.

The Government thought that a summary judgment had been entered here because on pages 10A and 11A of our petition for certiorari, we have reproduced the District Court’s order which enters judgment.

The Government had not thought that there was a trial because that the records shows only a discussion of the legal point and we thought that the respondent had had not have an opportunity to put in his evidence.

Now, the District Court does refer to this on page 9A of our petition for certiorari as a trial and if respondent were correct about -- is correct about this and if we should prevail here, then the proper disposition would be to remand for the entry of a judgment for the United States.

But I think the situation is ambiguous and should the Government prevail, I think the remand should be for a disposition by the trial court.

Let the trial court decide whether or not respondent had a chance to put his evidence in.

Justice William H. Rehnquist: Disposition of the tax claim?

Mr. Bork: Of the tax claim, precisely Mr. Justice Rehnquist.

If there are no questions, that concludes our presentation Mr. Chief Justice.

Chief Justice Warren E. Burger: Thank you, Mr. Solicitor General.

Thank you, Mr. Sturman.

The case is submitted.