Attorneys for Appellant
Attorney General of Indiana
David A. Arthur
Deputy Attorney General
Attorneys for Appellee
Robert W. Hammerle
Joseph M. Cleary
Hammerle Foster Allen & Long-Sharp
INDIANA SUPREME COURT
STATE OF INDIANA,
INDIANA DEPARTMENT OF REVENUE
Appellant (Respondent below),
Appellee (Petitioner below).
) Supreme Court No.
APPEAL FROM THE INDIANA TAX COURT
The Honorable Thomas G. Fisher, Judge
Cause No. 49T10-9904-TA-24
ON PETITION FOR REVIEW
February 8, 2002
This is the first of two cases we decide today involving Dante Adamss
difficulties with state revenue and criminal authorities after cocaine was discovered first in
his safe deposit box and later in his home. This case presents
the question of whether the cocaine found in an unconstitutional search of the
safe deposit box by criminal authorities can be used by revenue authorities to
make a tax assessment. We conclude that although the exclusionary rule bars
the use of the cocaine as evidence in criminal proceedings, the exclusionary rule
does not apply to tax assessment proceedings.
On August 7, 1997, employees of an Indianapolis bank informed a police officer
that an odor of marijuana emanated from a safe deposit box leased to
Defendant Dante Adams. The officer obtained a search warrant based on this
tip. The police then searched the safe deposit box and found cocaine.
Defendant was charged with Dealing in Cocaine and Possession of Cocaine.
Defendant then filed a motion to suppress the cocaine, arguing that the information
on which the warrant was based was stale. At a suppression hearing,
the officer testified that the informants had waited weeks to tell the police
about the smell. The trial court concluded that the information in the
warrant was stale and granted the motion to suppress on March 18, 1998.
The State voluntarily withdrew the charges against Defendant on March 24.
On March 23 a day before the criminal charges were dropped
the Indiana Department of Revenue (the Department) issued an assessment pursuant to the
ntrolled Substance Excise Tax (CSET)
against Defendant. Adams sought to have the
cocaine suppressed in the CSET proceedings. The Department declined, but the Tax
Court reversed and held that the exclusionary rule applied to CSET assessments.
It therefore ordered the cocaine to be suppressed and vacated the CSET assessment.
See Adams v. Dept of Revenue, 730 N.E.2d 840, 843-44 (Ind. Tax
Ct. 2000). We granted review and now reverse the Tax Court.
Both parties concede that the search of the safe deposit box violated Adamss
federal constitutional right to be free from unreasonable searches and seizures. Adams
contends that the State could not assess the CSET because the cocaine on
which the assessment was based was discovered during an illegal search. We
therefore must determine whether the cocaine should be suppressed in the CSET proceedings
under the federal exclusionary rule.
In a companion case today,
we conclude that a later, separate search of
Adamss home was unconstitutional. For purposes of a criminal case, this conclusion
ends the inquiry, as illegally obtained evidence may not be used in criminal
proceedings. See Mapp v. Ohio, 367 U.S. 643 (1961). However, [t]he
fact that evidence was seized in violation of the Fourth Amendment does not
mean that it will be suppressed for every purpose in every proceeding. Tirado
v. Commr of Internal Revenue, 689 F.2d 307, 310 (2d Cir. 1982), cert.
denied, 460 U.S. 1014 (1983). In this case, we must determine whether
the fruits of a different search that of the safe deposit box
should have been excluded in the tax collection proceedings. We are
operating not only in a different context (tax versus criminal) but are analyzing
different searches (the search of the safe deposit box versus the search of
Adamss home). Therefore, our conclusion in the companion case that the State could
not introduce in a criminal proceeding evidence obtained from an illegal search of
Adamss home does not affect our analysis in this case as to whether
the illegal search of the safe deposit box should lead to exclusion of
evidence in the CSET proceeding.
The United States Supreme Court has held that the exclusionary rule is not
constitutionally mandated, but is a judicially created means of deterring illegal searches and
Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357,
363 (1998). See also Elkins v. United States, 364 U.S. 206, 217
(1960) (The rule is calculated to prevent, not to repair. Its purpose is
by removing the incentive to disregard it.).
exclusionary rule is a judicially-created prophylactic device, the rule applies only to those
areas where its remedial objectives are thought most efficaciously served. United States v.
Calandra, 414 U.S. 338, 348 (1973). The Court has concluded that the
rule is most effective when its deterrence benefits outweigh its substantial social
costs. Scott, 524 U.S. at 363 (quoting United States v. Leon, 468
U.S. 897, 907 (1984)). See also I.N.S. v. Lopez-Mendoza, 468 U.S. 1032
(1984); United States v. Janis, 428 U.S. 433 (1976).
Our analysis of both the deterrence produced and the costs incurred in the
ntext of CSET assessments leads us to conclude that the exclusionary rule should
As the facts of this case show, both police and revenue officers are
involved in enforcing the CSET: Police investigations uncover illegal narcotics, while the
epartments revenue officers must collect CSET assessments on those narcotics. We do
not believe that applying the exclusionary rule in CSET assessment proceedings will serve
to deter either police or revenue officers from making illegal searches or seizures.
The police will not be significantly deterred by the prospect of the exclusion
of evidence in CSET proceedings because their primary concern is criminal prosecu
the exclusionary rule already applies. Where evidence is obtained in an allegedly
illegal search in furtherance of a criminal investigation, it is generally unlikely that
application of the exclusionary rule to bar the evidence in a secondary civil
proceeding will deter future Fourth Amendment violations. Wolf v. Commr of Internal
Revenue, 13 F.3d 189, 194 (6th Cir. 1993) (declining to apply the exclusionary
rule to tax collection proceedings after evidence was illegally seized in narcotics investigation).
The Supreme Court has concluded that government agents will be deterred when
the conduct at issue falls within the offending officers zone of primary interest.
Janis, 428 U.S. at 458. See also Scott, 524 U.S. at 364.
The polices primary concern is the enforcement of the States criminal laws,
not its tax code.
The CSET is simply not so interrelated with
the often competitive enterprise of ferreting out crime to warrant an extension of
the exclusionary rule. United States v. Leon, 468 U.S. 897, 978 (1984).
We acknowledge some deterrence of revenue officers if the exclusionary rule is applied
to CSET proceedings but we think these circumstances will be infrequent. In
the companion case, we hold that CSET levies will generally be reasonable for
Fourth Amendment purposes.
Adams v. State, slip op. at 12. The
companion case invalidates searches by revenue officers only where the officers rely solely
on a jeopardy warrant issued under Indiana Code § 6-7-3-13s provisions that allow
the Department to issue jeopardy warrants without any standards or showing of exigency.
Id. However, most jeopardy warrants are not issued under that code
section. Instead, they are issued under Ind. Code §6-8.1-5-3. Id.
As such, the Department will be able to issue jeopardy warrants and levy
on CSET assessments in most circumstances without violating the Fourth Amendment. Because
levies by the Department will only violate the Fourth Amendment in certain narrow
circumstances, application of the rule will not produce any significant deterrence to unlawful
conduct by revenue officers.
As to the costs, we believe that application of the exclusionary rule in
CSET proceedings will serve to undermine several important State interests. First, applic
of the exclusionary rule will frustrate the States ability to exercise its power
to tax, which is a power of the highest essential order. Bryant
v. State, 660 N.E.2d 290, 310 (Ind. 1995) (DeBruler, J., concurring in part
and dissenting in part). This power undergirds all other governmental activity and
without it the State could not function. Application of the exclusionary rule
would inevitably enable some taxpayers to avoid paying their taxes: Because the exclusionary
rule precludes consideration of reliable, probative evidence, it imposes significant costs: It undeniably
detracts from the truthfinding process and allows many
to escape the consequences
of their actions. Scott, 524 U.S. at 364. This cost of
lost evidence is even greater in CSET assessments than it is in criminal
cases. If we were to suppress the drugs at issue in CSET
proceedings, the tax cannot be assessed. Conversely, the prosecution of a criminal
can often continue despite the suppression of evidence because the State will have
other evidence on which it can obtain a conviction.
Second, we note that the Supreme Court cited the cost of lost evidence
when it refused to apply the exclusionary rule to federal tax proceedings.
United States v. Janis, 428 U.S. 433 (1976). In Janis, state law
enforcement officers conducted an illegal search and the IRS attempted to introduce evidence
stemming from the search in federal civil tax proceedings. Even though the
Court relied heavily on this inter-sovereign aspect of the case, it also concluded
that the costs of exclusion would be high because the enforcement of admittedly
valid laws would be hampered by so extending the exclusionary rule, and, as
is nearly always the case with the rule, concededly relevant and reliable evidence
would be rendered unavailable. Id. at 447.
Third, the Supreme Court has often analyzed the cost of the exclusionary rule
in terms of the toll it could take on the proceedings in which
it is invoked.
See Scott, 524 U.S. at 364. (Application of the
exclusionary rule would both hinder the functioning of state parole systems and alter
the traditionally flexible, administrative nature of parole revocation proceedings.); Lopez-Mendoza, 468 U.S. at
1048 (refusing to apply exclusionary rule to deportation proceedings in part because [t]he
prospect of even occasional invocation of the exclusionary rule might significantly change
and complicate the [informal] character of proceedings.). The Department collects the CSET in
an administrative manner similar to the parole revocation hearings in Scott or the
immigration proceedings in Lopez-Mendoza. See Ind. Code § 6-7-3-13. As in
those contexts, incorporation of the exclusionary rule would require complicated legal determinations that
would frustrate the purpose of such expedited proceedings.
Our conclusion is consistent with those reached by most of the courts that
have addressed this issue.
See Wolf v. Commr of Internal Revenue, 13
F.3d 189, 194 (6th Cir. 1993); Tirado v. Commr of Internal Revenue, 689
F.2d 307, 314 (2d Cir.1982); Kivela v. Dept. of Treasury, 449 Mich. 220,
536 N.W.2d 498 (1995). But cf. Vara v. Sharp, 880 S.W.2d 844 (Tex.
App. 1994). The Supreme Court has applied the rule in only one
context outside of its general use in criminal trials. In One 1958
Plymouth Sedan v. Pennsylvania, the Court concluded that the exclusionary rule applied to
civil forfeiture proceedings because such proceedings are quasi-criminal in nature. 380 U.S. 693,
700 (1965). While the CSET has some quasi-criminal aspects in that it
taxes narcotics, it is not quasi-criminal in the same sense as civil forfeiture
because it does not stem from the States regulatory power, which is typically
more coercive than the States power to tax. That is to say,
because the CSET is part of the States power of the purse, not
its power of the sword, it is less punitive than civil forfeiture and
One 1958 Plymouth Sedans reasoning does not necessarily apply.
In reaching its conclusion that the exclusionary rule applies to the CSET, the
Court of Appeals expressed concerns that
[I]f there were no Fourth Amendment protections when evidence was illegally obtained, the
State would have the opportunity to take a se
cond bite at the same
apple: assuming evidence was illegally obtained and a criminal prosecution could not
result, then IDR could still assess the CSET on all evidence that was
illegally obtained. There must be some protection against this practice.
Adams v. State, 726 N.E.2d 390, 395 (Ind. Ct. App. 2000).
Of course, this practice is possible in any of the civil contexts in
which the United States Supreme Court has refused to apply the rule.
Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357 (1998) (allowing
introduction of illegally obtained evidence at parole hearings), I.N.S. v. Lopez-Mendoza, 468 U.S.
1032 (1983) (deportation hearings); United States v. Janis, 428 U.S. 433 (1975) (tax
hearings); United States v. Calandra, 414 U.S. 338 (1973) (grand jury investigations). Moreover,
the exclusionary rule will apply if police collude with revenue officials to subvert
a taxpayers Fourth Amendment rights. See Kivela v. Dept. of Treasury, 449 Mich.
220, 226, 536 N.W.2d 498, 500 (1995). (Unless there is collusion between the
agency that performed the illegal search and the agency seeking to admit the
incriminating evidence, the evidence is admissible.). There is no evidence in the
record that suggests that revenue officers were involved in the search of Adams
safe deposit box, which is the only search at issue here.
Because we conclude that the costs of applying the exclusionary rule to the
CSET outweigh its limited benefits in this context, we decline to apply the
rule to the evidence seized from Adamss safe deposit box.
We reverse the Tax Court and remand for proceedings consistent with this opinion.
SHEPARD, C.J., and RUCKER, J., concur.
BOEHM, J. dissents with separate opinion in which DICKSON, J., concurs.
ATTORNEYS FOR APPELLANT
Attorney General of Indiana
David A. Arthur
Deputy Attorney General
ATTORNEYS FOR APPELLEE
Robert W. Hammerle
Joseph M. Cleary
SUPREME COURT OF INDIANA
STATE OF INDIANA, )APPEAL FROM THE INDIANA TAX COURT
INDIANA DEPARTMENT OF )
Appellant (Respondent Below), )
v. ) Indiana Supreme Court
) Cause No. 49S10-0011-TA-628
DANTE ADAMS, )
Appellee (Petitioner Below). )
The Honorable Thomas G. Fisher, Judge
Cause No. 49T10-9904-TA-24
ON PETITION FOR REVIEW
February 8, 2002
BOEHM, Justice, dissenting.
I respectfully dissent. The issue is whether the Fourth Amendment requires that
idence that was admittedly seized in violation of the Fourth Amendment and is
inadmissible in a criminal prosecution must also be excluded in proceedings to assess
Indianas Controlled Substance Excise Tax (CSET).
Because the purpose of the exclusionary
rule is to remove the incentive for unreasonable governmental invasions of citizens privacy,
the closer the responsibilities of the seizing authority are to the subject matter
of the civil proceeding, the more persuasive the case for exclusion of unconstitutionally
seized evidence. Here the seizing agency was the county sheriffs department and
the civil proceeding was an assessment of a tax that is essentially punitive
and whose collection augments local law enforcement funding. Under these circumstances, I
believe both precedent and principle dictate that the Fourth Amendment precludes admission of
the evidence in this case.
The Fourth Amendment to the United States Constitution preserves the right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures. U.S. Const. amend. IV. In
Weeks v. United
States, 232 U.S. 383, 398 (1914), the United States Supreme Court held that
evidence seized in violation of the Fourth Amendment is not admissible in a
federal criminal proceeding. In Mapp v. Ohio, 367 U.S. 643, 655 (1961),
the Supreme Court made clear the same is true in state criminal proceedings.
The Court has repeatedly explained that the rule protects all citizens by
removing the incentive to conduct an unreasonable search. Id. at 656.
It does so at the cost of excluding otherwise highly relevant evidence if
the search, though unlawful, nonetheless bears fruit. That cost is the price
our Constitution willingly accepts in the interest of preserving the rights of all
to be free from unreasonable governmental intrusions.
United States v. Janis, 428 U.S. 433 (1976), the Supreme Court considered
the extent to which the exclusionary rule applies in civil proceedings. Janis
dealt with evidence unlawfully seized by state officers. In a 5-3 decision,
with Justice Stevens not participating, the Supreme Court allowed the admission of that
evidence in a federal gambling excise tax proceeding. Id. at 459-60.
The Court once again balanced the likely social benefits of applying the rule
against the costs of excluding the evidence. Id. at 453-54. Although
Elkins v. United States, 364 U.S. 206, 223 (1960) had made clear that
evidence unlawfully seized by state officials cannot be admitted in federal criminal prosecutions,
the majority concluded that state criminal law enforcement officers would not be significantly
deterred by a rule that excluded the evidence from federal tax proceedings.
Janis, 428 U.S. at 459. The decision pointed out that earlier cases
applying the exclusionary rule in civil proceedings had involved intrasovereign violations. Id.
Lower federal courts have since elaborated on the Janis balancing test. In
Tirado v. C.I.R., 689 F.2d 307, 310 (2nd Cir. 1982), the Second Circuit
concluded that [d]etermining when the likelihood of substantial deterrence justifies excluding evidence requires
some assessment of the motives of the officials who seized the challenged evidence.
The court also observed that [t]he key issue, implicit in Janis as
in other exclusionary rule decisions, is still what concerns the seizing officers had
in mind. Id. at 313. Elaborating on this theme, the Sixth
Circuit, in Wolf v. C.I.R., 13 F.3d 189, 194-95 (6th Cir. 1993), set
forth five factors relevant to the application of the exclusionary rule in a
civil proceeding: (1) the nature of the proceeding; (2) whether the proposed use
of unconstitutionally seized material is intersovereign or intrasovereign; (3) whether the search and
secondary proceeding were initiated by the same agency; (4) whether there is an
explicit and demonstrable understanding between the two governmental agencies; and (5) whether the
secondary proceeding fell within the zone of primary interest of the officers that
conducted the search.
The first factor, the nature of the civil proceeding, is clearly significant and
points strongly toward requiring exclusion in this case. This Court recently examined
the CSET assessment process in
Bryant v. State, 660 N.E.2d 290, 297 (Ind.
1995), and concluded the CSET is so far removed from a normal excise
tax that it must be classified as a punishment. The Court noted
the CSETs focus on deterrence, not revenue raising, as evidenced by the receipt
to a CSET taxpayer that admonishes that the unauthorized delivery, sale, possession or
manufacture of a controlled substance is a crime. Id. at 296.
A possessor of contraband is required to show this receipt to prove the
tax has been paid. Id. At the time Bryant was decided,
the receipt was valid for only forty-eight hours, and a taxpayer who
possessed the same drug for a longer period was required to repay the
tax every forty-eight hours to avoid the CSETs additional sanctions. Id.
In 1996, after the ruling in Bryant, the General Assembly extended the validity
of the receipt from forty-eight hours to thirty days. Ind. Code §
6-7-3-10(b) (1998). Despite this change, I think it obvious that the tax
remains, at heart, punitive in nature. I acknowledge that the federal wagering
tax involved in Janis has some of these characteristics, but it is nowhere
near the CSET in overall draconian impact.
Bryant also pointed out that the fact the CSET applied only if a
crime had been committed suggested the CSETs punitive nature. 660 N.E.2d at
296. The 1996 CSET amendments did nothing to alter this, and now,
as then, the tax is imposed only on individuals who deliver, possess or
manufacture controlled substances in violation of Indiana or federal drug laws. Id.
at 296-97. In contrast, in both Tirado, 689 F.2d at 309, and
in Wolf, 13 F.3d at 191, two of the principal cases upon which
the majority relies, the civil proceedings were for assessment and collection of federal
income taxes which apply to all human activity and are plainly revenue measures,
not surrogate punishments.
Bryant noted that an excise tax is imposed upon the performance of
an act or the enjoyment of a privilege, but the CSET is imposed
only after a taxpayers drugs have been confiscated, and the taxpayer neither enjoys
a privilege nor performs an act at the time of taxation. 660
N.E.2d at 297. That observation remains true after the 1996 amendments.
The State contends that the United States Supreme Courts subsequent ruling in Hudson
v. United States, 522 U.S. 93 (1997), has called into question this Courts
holding in Bryant that double jeopardy precluded imposition of the tax and criminal
prosecution for the same drug possession. Even if this is the case,
I nevertheless believe Bryant was plainly correct in its view that the civil
sanctions imposed pursuant to the CSET are punitive in nature.
Wolf factor is the one Janis emphasized in finding evidence seized
by state officers to be admissible in a federal tax proceeding: whether the
evidence is to be used in a proceeding under the same government whose
agents seized it. Here, of course, both the taxing authorities and the
law enforcement officers operated as agents of the State of Indiana.
The third, fourth, and fifth
Wolf factors are closely related. The third
factor is whether the search and the civil proceeding were initiated by the
same agency. If so, the potential incentive to ignore the Fourth Amendment
is greater. As Wolf put it, quoting Tirado: [A]gents are likely to
have all the responsibilities of their agency in mind as they go about
their investigations. 13 F.3d at 195. Although the sheriff and the
initiator of the CSET proceeding are not literally the same agency, they plainly
operated in concert. Detective Michael Turner of the Marion County Sheriffs Department
conducted the initial illegal search, notified the Department of Revenue that the criminal
case was being dismissed, informed the Department that the prosecuting attorney would be
asking the Department to begin collection proceedings, and attended the execution of the
tax warrant and the search of Adams home. Indeed, the link between
law enforcement and tax collection is embedded in the statute. The 1996
amendments to the CSET mandate the Department may not commence collection proceedings unless
the Department either is ordered to do so in a courts sentencing order,
or is notified in writing by the prosecuting attorney of the jurisdiction where
the offense occurred that the prosecuting attorney does not intend to pursue criminal
charges related to the controlled substance. I.C. § 6-7-3-19.
This brings us to the fourth
Wolf factor: whether, if two agencies are
involved, there is an explicit and demonstrable understanding between the two. It
seems obvious that if the Department must rely upon notification from law enforcement
agencies before it may commence collection proceedings, an explicit and demonstrable understanding between
the agencies must exist. In any event, the Wolf court explained that
in determining whether there is such an understanding between the two governmental agencies,
a court may consider the existence of a statutory regime in which both
agencies share resourcesparticularly resources derived from one of the proceedings. 13 F.3d
at 195. The CSET provides for a sharing of resources in the
most direct form: it offers a direct economic incentive to law enforcement officers
who pursue CSET assessments. The act provides that thirty percent of each
assessment is to go to the law enforcement agency that is responsible for
the information leading to the assessment, to be used to conduct criminal investigations.
I.C. § 6-7-3-16(b). Similarly, ten percent of CSET money collected each
month is awarded to the law enforcement training board to train law enforcement
personnel. Id. § 6-7-3-16(c). As Tirado observed, the exclusionary rule is
most needed where the concerns of the securing officers are furthered by a
successful seizure. In this case the officers not only further their agencys
mission; they gain a bounty from a CSET collection.
Wolf factor is whether the secondary proceeding fell within the zone
of primary interest of the officers that conducted the search. As the
court explained, Where the relationship between the objectives of the law enforcement agency
to which the officer belongs and the secondary proceedings is close, an inference
may be drawn that the officers had the use of the evidence in
the subsequent proceeding in mind when they made the seizure. Wolf, 13
F.3d at 195. The zone of primary interest of a law enforcement
officer is the apprehension, incapacitation, punishment, and . . . rehabilitation of criminals,
as well as the possible deterrence of future criminals through the imposition of
criminal sanctions. Id. at 194. Because the CSET applies only to
criminal activity, its enforcement quite properly falls within the zone of primary interest
of a law enforcement officer. Indeed, the funds collected will directly bolster
the budget, and presumably the crime-fighting ability, of the officers law enforcement agency.
The Willie Sutton principle applies herethe collection of the tax is where
the money is.
In sum, it seems to me that these general principles all cut in
the direction of applic
ation of the exclusionary rule. In addition, other courts
have found the Fourth Amendment to require exclusion in the specific context of
controlled substance tax cases. In Vara v. Sharp, 880 S.W.2d 844 (Tex.
App. 1994), the Court of Appeals of Texas applied the Wolf factors to
the Texas Controlled Substances Tax Act, which is very similar to Indianas CSET.
The court concluded the federal exclusionary rule applied, and the provision of
the Texas statute that prohibited application of the exclusionary rule violated the United
States Constitution. Id. at 852. The Vara court pointed out that
the exclusionary rule has been applied in civil forfeiture proceedings because of their
quasi-criminal nature. Id. at 851 (citing One 1958 Plymouth Sedan v. Pennsylvania,
380 U.S. 693 (1965)). The court also noted the United States Supreme
Court has held that certain constitutional protections normally reserved for criminal proceedings apply
to civil proceedings of a quasi-criminal nature. Id. (citing Austin v. United
States, 509 U.S. 602 (1993)). In Austin, the Supreme Court held that
forfeiture proceedings historically have been understood, at least in part, as punishment, and
were therefore subject to the limitations of the Eighth Amendments excessive fines clause.
509 U.S. at 618. Under this line of cases, the more
punitive the proceeding, the greater the constitutional protections afforded and the more persuasive
the argument for application of the exclusionary rule.
For all of these reasons, I believe the Fourth Amendment interest in deterring
illegal searches and seizures outweighs the costs of excluding illegally obtained evidence in
a CSET proceeding. The cost of application of the exclusionary rule in
tax collection proceedings is merely to impair the States ability to collect this
fine clothed as a tax. It may be something of an overstatement
to say, as the Court of Appeals did in Adams criminal case, that
if the exclusionary rule does not apply to CSET proceedings, there is absolutely
no downside risk to officers illegally seizing drug evidence.
Adams v. State,
726 N.E.2d 390, 395 (Ind. Ct. App. 2000). But it is not
an overstatement to say that the incentive to search without a warrant is
significant if very substantial financial penalties may be recovered for the seizing agency.
That puts all citizens at risk of overzealous enforcement. The Fourth
Amendment strikes that balance in favor of application of the exclusionary rule.
DICKSON, J. concurs.
Ind. Code §6-7-3-13 (1998). The CSET is a tax on
the possession of certain narcotics. We discuss the tax and the procedures for
collecting it in greater detail infra.
Adams v. State, No. 49S04-0011-CR-627 (Ind. Feb. 8, 2002).
Adams does not argue that the Indiana Constitution mandates an exclusionary rule
that is distinct from that imposed under federal case law. Therefore we
need not address whether values other than deterrence might motivate the suppression of
evidence under an Indiana exclusionary rule.
As the Sixth Circuit put it in Wolf:
The primary interest of law enforcement agents is the apprehension, incapacitation, punishment, and
(formerly, at least) rehabilitation of criminals, as well as the possible deterrence of
future criminals through the imposition of criminal sanctions.
such an agent may have little interest in subsequent civil proceedings. Where
civil proceedings are brought, for example, to tax ill-gotten gains, such proceedings do
little more than subject criminals to the same taxes that govern all citizens.
Excluding illegally seized evidence from proceedings to enforce tax and regulatory
regimes is unlikely to deter law enforcement officials from violating a suspects Fourth
Wolf, 13 F.3d at 194 (footnote omitted). The facts of this case support
this analysis, as the officers found the drugs in August of 1997 (R.
at 140) but the Department did not issue a CSET assessment until March
of 1998, when the evidence was suppressed in the criminal proceedings.
As the majority correctly notes, Adams does not argue that the search
and seizure provision of the Indiana Constitution requires a different result. That
issue is not before us.
See, e.g., Pizzarello v. United States, 408 F.2d 579, 586 (2nd Cir.
1969) (evidence unlawfully seized by federal Treasury agents inadmissible in federal wagering excise
tax assessment); United States v. Blank, 261 F. Supp. 180, 184 (N.D. Ohio
1966) (evidence unlawfully seized by IRS agents inadmissible in federal wagering excise tax
assessment); Powell v. Zuckert, 366 F.2d 634, 640 (D.C. Cir. 1966) (evidence unlawfully
seized by Air Force special agents inadmissible in civilian employee discharge proceeding); State
of Iowa v. Union Asphalt & Roadoils, Inc., 281 F. Supp. 391, 407
(S.D. Iowa 1968) (evidence unlawfully seized by agents of the Iowa Attorney General
cannot be offered into evidence by the State as plaintiff in a civil
action under the antitrust laws).