Washington v. United States (402 U.S. 978)/Dissent Brennan

Mr. Justice BRENNAN, dissenting.

The courts below have ordered a sale of petitioner's farm to satisfy a tax lien. The extent of petitioner's liability was determined on the basis of evidence seized by Internal Revenue agents under a search warrant grounded upon the determination that there was probable cause to believe that petitioner was engaged in the wagering business without having registered and paid the required occupational tax. We subsequently held that the Fifth Amendment prohibits the Government from requiring such registration of a gambler who justifiably fears that he will thereby incriminate himself, and who does not waive his privilege against self-incrimination. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). And we have just this Term held that prohibition applicable whether the failure to register took place before or after Marchetti was decided. United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971).

Under these cases, therefore, there is substantial doubt whether the Government could constitutionally punish petitioner for his failure to register. By the same token, I think there is a substantial question whether the affidavits supporting the search warrant were sufficient to establish probable cause to believe that petitioner had committed an offense which the Government could constitutionally prohibit. For the affidavits on their face gave reason to believe that petitioner's gambling activities were in violation of local law, and gave no reason to believe that petitioner would waive his right not to incriminate himself of such violations. I may assume that the Government, in showing probable cause to support a search warrant, need not negative any conceivable defense that might be raised by suspect. Cf. United States v. Ventresca, 380 U.S. 102, 107-109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). But where, as here, the affidavits in support of the warrant indicate the likely existence of an absolute defense to the crime charged that will be unavailing only if explicitly waived by the accused, it is surely not evident that the Fourth Amendment's requirement of probable cause to believe that an offense has been committed is satisfied. I would grant certiorari and set the case for argument.