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

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK joins, dissenting.

Petitioner was convicted of engaging in the wagering business without payment of the special occupational tax. This took place prior to our decision in Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, holding unconstitutional against a claim of self-incrimination a conviction under the same statute. In the course of that prosecution a search warrant was obtained and evidence was obtained on the basis of which the present civil suit for excise taxes, fraud penalties, and interest was brought.

The central question is whether the evidence obtained by a warrant in the criminal case, which retrospectively contained the constitutional infirmity noted in Grosso, may be used in this civil case.

Since, as was we held in United States v. United States Coin and Currency, 401 U.S. 915, 91 S.Ct. 1041, 28 L.Ed.2d 434, our decision in Grosso (and its companion Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889), are retroactive, I do not see how evidence obtained by use of a search warrant issued under the old regime which Grosso and Marchetti put into the discard, can do service for process in this new and wholly different civil proceeding.

There are means of discovery provided by the Rules of Civil Procedure and by a special procedure, 26 U.S.C. § 7602, applicable to civil suits to collect federal taxes. The United States would never dare ask for a search warrant to ferret out the facts necessary for its civil suit. The fact that it obtained evidence by a warrant issued in a procedure incident to an unconstitutional prosecution should not now be turned into a windfall. The Government should turn square corners, not taxpayers alone. In restrospect the warrant should not have issued, though under then-existing law it may have been wholly proper. We should hold the Government to the maxim expressed by Mr. Justice Holmes in Silverthorne Lumber Co. v. United States, 251 U.S. 358, 392, 40 S.Ct. 182, 64 L.Ed. 319:

'The essence of a provision forbidding the acquisition of     evidence in a certain way in that not merely evidence so      acquired shall not be used before the Court but that it shall      not be used at all.'

I would grant this petition for certiorari.