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Full Opinion
UNITED STATES ET AL.
v.
JANIS.
Supreme Court of United States.
*434 Solicitor General Bork argued the cause for petitioners. With him on the brief were Assistant Attorney General Crampton, Stuart A. Smith, Robert E. Lindsay, and Carleton D. Powell.
Herbert D. Sturman argued the cause for respondent. With him on the brief was Richard G. Sherman.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This case presents an issue of the appropriateness of an extension of the judicially created exclusionary rule: Is evidence seized by a state criminal law enforcement officer in good faith, but nonetheless unconstitutionally, inadmissible in a civil proceeding by or against the United States?
I
In November 1968 the Los Angeles police obtained a warrant directing a search for bookmaking paraphernalia at two specified apartment locations in the city and, as well, on the respective persons of Morris Aaron Levine and respondent Max Janis. The warrant was issued by *435 a judge of the Municipal Court of the Los Angeles Judicial District. It was based upon the affidavit of Officer Leonard Weissman.[1] After the search, made pursuant *436 to the warrant, both the respondent and Levine were arrested and the police seized from respondent property consisting of $4,940 in cash and certain wagering records.[2]
Soon thereafter, Officer Weissman telephoned an agent of the United States Internal Revenue Service and informed the agent that Janis had been arrested for bookmaking activity.[3] With the assistance of Weissman, who was familiar with bookmakers' codes, the revenue agent analyzed the wagering records that had been seized and determined from them the gross volume of respondent's gambling activity for the five days immediately preceding the seizure. Weissman informed the agent that he had conducted a surveillance of respondent's activities that indicated that respondent had been engaged in bookmaking *437 during the 77-day period from September 14 through November 30, 1968, the day of the arrest.
Respondent had not filed any federal wagering tax return pertaining to bookmaking activities for that 77-day period. Based exclusively upon its examination of the evidence so obtained by the Los Angeles police, the Internal Revenue Service made an assessment jointly against respondent and Levine for wagering taxes, under § 4401 of the Internal Revenue Code of 1954, 26 U. S. C. § 4401, in the amount of $89,026.09, plus interest. The amount of the assessment was computed by first determining respondent's average daily gross proceeds for the five-day period covered by the seized material and analyzed by the agent, and then multiplying the resulting figure by 77, the period of the police surveillance of respondent's activities.[4] The assessment having been made, the Internal Revenue Service exercised its statutory authority, under 26 U. S. C. § 6331, to levy upon the $4,940 in cash in partial satisfaction of the assessment against respondent.
Charges were filed in due course against respondent and Levine in Los Angeles Municipal Court for violation of the local gambling laws. They moved to quash the search warrant. A suppression hearing was held by the same judge who had issued the warrant. The defendants pressed upon the court the case of Spinelli v. United States, 393 U. S. 410 (1969), which had been decided just three weeks earlier and after the search warrant had been issued. They urged that the Weissman affidavit did not set forth, in sufficient detail, the underlying circumstances to enable the issuing magistrate to determine independently *438 the reliability of the information supplied by the informants. The judge granted the motion to quash the warrant. He then ordered that all items seized pursuant to it be returned except the cash that had been levied upon by the Internal Revenue Service. App. 78-80.
In June 1969 respondent filed a claim for refund of the $4,940. The claim was not honored, and 18 months later, in December 1970, respondent filed suit for that amount in the United States District Court for the Central District of California. The Government answered and counterclaimed for the substantial unpaid balance of the assessment.[5] In pretrial proceedings, it was agreed that the "sole basis of the computation of the civil tax assessment . . . was . . . the items obtained pursuant to the search warrant . . . and the information furnished to [the revenue agent] by Officer Weissman with respect to the duration of [respondent's] alleged wagering activities."[6]Id., at 18. Respondent then moved to suppress the evidence seized, and all copies thereof in the possession of the Service, and to quash the assessment. Id., at 23-24.
At the outset of the hearing on the motion, the District Court observed that it was "reluctantly holding that *439 the affidavit supporting the search warrant is insufficient under the Spinelli and Aguilar [v. Texas, 378 U. S. 108 (1964)] doctrines." Id., at 47. It then concluded that "[a]ll of the evidence utilized as the basis" of the assessment "was obtained directly or indirectly as a result of the search pursuant to the defective search warrant," and that, consequently, the assessment "was based in substantial part, if not completely, on illegally procured evidence. . . in violation of [respondent's] Fourth Amendment rights to be free from unreasonable searches and seizures." 73-1 USTC ¶ 16,083, p. 81,392 (1973). The court concluded that Janis was entitled to a refund of the $4,940, together with interest thereon, "for the reason that substantially all, if not all, of the evidence utilized by the defendants herein in making their assessment . . . was illegally obtained, and, as such, the assessment was invalid." Ibid. Further, where, as here, "illegally obtained evidence constitutes the basis of a federal tax assessment," the respondent was "not required to prove the extent of the refund to which he claims he is entitled." Id., at 81,393. Instead, it was sufficient if he prove "that substantially all, if not all, of the evidence upon which the assessment was based was the result of illegally obtained evidence." Accordingly, the court ordered that the civil tax assessment made by the Internal Revenue Service "against all the property and assets of . . . Janis be quashed," and entered judgment for the respondent. Ibid. The Government's counterclaim was dismissed with prejudice. The United States Court of Appeals for the Ninth Circuit, by unpublished memorandum without opinion, affirmed on the basis of the District Court's findings of fact and conclusions of law. Pet. for Cert. 12A.
Because of the obvious importance of the question, we granted certiorari. 421 U. S. 1010 (1975).
*440 II
Some initial observations about the procedural posture of the case in the District Court are indicated. If there is to be no limit to the burden of proof the respondent, as "taxpayer," must carry, then, even though he were to obtain a favorable decision on the inadmissibility-of-evidence issue, the respondent on this record could not possibly defeat the Government's counterclaim. The Government notes, properly we think, that the litigation is composed of two separate elements: the refund suit instituted by the respondent, and the collection suit instituted by the United States through its counterclaim. In a refund suit the taxpayer bears the burden of proving the amount he is entitled to recover. Lewis v. Reynolds, 284 U. S. 281 (1932). It is not enough for him to demonstrate that the assessment of the tax for which refund is sought was erroneous in some respects.
This Court has not spoken with respect to the burden of proof in a tax collection suit. The Government argues here that the presumption of correctness that attaches to the assessment in a refund suit must also apply in a civil collection suit instituted by the United States under the authority granted by §§ 7401 and 7403 of the Code, 26 U. S. C. §§ 7401 and 7403. Thus, it is said, the defendant in a collection suit has the same burden of proving that he paid the correct amount of his tax liability.
The policy behind the presumption of correctness and the burden of proof, see Bull v. United States, 295 U. S. 247, 259-260 (1935), would appear to be applicable in each situation. It accords, furthermore, with the burden-of-proof rule which prevails in the usual preassessment proceeding in the United States Tax Court. Lucas v. Structural Steel Co., 281 U. S. 264, 271 (1930); Welch v. Helvering, 290 U. S. 111, 115 (1933); Rule 142 (a) *441 of the Rules of Practice and Procedure of the United States Tax Court (1973). In any event, for purposes of this case, we assume that this is so and that the burden of proof may be said technically to rest with respondent Janis.
Respondent, however, submitted no evidence tending either to demonstrate that the assessment was incorrect or to show the correct amount of wagering tax liability, if any, on his part. In the usual situation one might well argue, as the Government does, that the District Court then could not properly grant judgment for the respondent on either aspect of the suit. But the present case may well not be the usual situation. What we have is a "naked" assessment without any foundation whatsoever if what was seized by the Los Angeles police cannot be used in the formulation of the assessment.[7] The determination of tax due then may be one "without rational foundation and excessive," and not properly subject to the usual rule with respect to the burden of proof in tax cases. Helvering v. Taylor, 293 U. S. 507, 514-515 (1935).[8] See 9 J. Mertens, Law of Federal Income Taxation § 50.65 (1971).
There appears, indeed, to be some debate among the *442 Federal Courts of Appeals, in different factual contexts, as to the effect upon the burden of proof in a tax case when there is positive evidence that an assessment is incorrect. Some courts indicate that the burden of showing the amount of the deficiency then shifts to the Commissioner.[9] Others hold that the burden of showing the correct amount of the tax remains with the taxpayer.[10] However that may be, the debate does not extend to the situation where the assessment is shown to be naked and without any foundation. The courts then appear to apply the rule of the Taylor case. See United States v. Rexach, 482 F. 2d 10, 16-17, n. 3 (CA1), cert. denied, 414 U. S. 1039 (1973); Pizzarello v. United States, 408 F. 2d 579 (CA2), cert. denied, 396 U. S. 986 (1969); Suarez v. Commisioner, 58 T. C. 792, 814-815 (1972). But cf. Compton v. United States, 334 F. 2d 212, 216 (CA4 1964).
Certainly, proof that an assessment is utterly without foundation is proof that it is arbitrary and erroneous. For purposes of this case, we need not go so far as to accept the Government's argument that the exclusion of the evidence in issue here is insufficient to require judgment for the respondent or even to shift the burden to the Government. We are willing to assume that if the District Court was correct in ruling that the evidence seized by the Los Angeles police may not be used in formulating the assessment (on which both the levy and the counterclaim were based), then the District Court was also correct in granting judgment for Janis in both *443 aspects of the present suit. This assumption takes us, then, to the primary issue.[11]
III
This Court early pronounced a rule that the Fifth Amendment's command that no person "shall be compelled in any criminal case to be a witness against himself" renders evidence falling within the Amendment's prohibition inadmissible. Boyd v. United States, 116 U. S. 616 (1886). It was not until 1914, however, that the Court held that the Fourth Amendment alone may be the basis for excluding from a federal criminal trial evidence seized by a federal officer in violation solely of that Amendment. Weeks v. United States, 232 U. S. 383. This comparatively late judicial creation of a Fourth Amendment exclusionary rule is not particularly surprising. In contrast to the Fifth Amendment's direct command against the admission of compelled testimony, the issue of admissibility of evidence obtained in violation of the Fourth Amendment is determined after, and apart from, the violation.[12] In *444 Weeks it was held, however, that the Fourth Amendment did not apply to state officers, and, therefore, that material seized unconstitutionally by a state officer could be admitted in a federal criminal proceeding. This was the "silver platter" doctrine.[13]
In Wolf v. Colorado, 338 U. S. 25 (1949), the Court determined that the Due Process Clause of the Fourteenth Amendment reflected the Fourth Amendment to the extent of providing those protections against intrusions that are " `implicit in the concept of ordered liberty.' " Id., at 27. Nonetheless, the Court, in not applying the Weeks doctrine in a state trial to the product of a state search, held:
"Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State's reliance upon other methods which, if consistently enforced, would be equally effective." 338 U. S., at 31.
Not long thereafter, the Court ruled that means used by a State to procure evidence could be sufficiently offensive to the concept of ordered liberty as to make admission of the evidence so procured a violation of the Due Process Clause, Rochin v. California, 342 U. S. 165 (1952), but that such a violation would exist only in the most extreme case, Irvine v. California, 347 U. S. 128 (1954).
*445 Thus, as matters then stood, the Fourth Amendment was applicable to the States, but a State could allow an official to engage in a violation thereof with no judicial sanction except in the most extreme case. In addition, federal authorities, if they happened upon a State so inclined, could profit from the State's action by receiving on a silver platter evidence unconstitutionally obtained. The federal authorities, profiting thereby, had no judicially created reason to discourage unconstitutional searches by a State, and the States, having no judicially mandated controls, were free to engage in such searches.[14]
Elkins v. United States, 364 U. S. 206, was decided in 1960. Invoking its "supervisory power over the administration of criminal justice in the federal courts," id., at 216, the Court held that
"evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant's immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant's timely objection in a federal criminal trial." Id., at 223.
The rule thus announced apparently served two purposes. First, it assured that a State, which could admit the evidence in its own proceedings if it so chose, *446 nevertheless would suffer some deterrence in that its federal counterparts would be unable to use the evidence in federal criminal proceedings. Second, the rule discouraged federal authorities from using a state official to circumvent the restrictions of Weeks.
Only one year later, however, the exclusionary rule was made applicable to state criminal trials. Mapp v. Ohio, 367 U. S. 643 (1961). The Court ruled:
"Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government." Id., at 655.
The debate within the Court on the exclusionary rule has always been a warm one.[15] It has been unaided, unhappily, by any convincing empirical evidence on the effects of the rule. The Court, however, has established that the "prime purpose" of the rule, if not the sole one, "is to deter future unlawful police conduct." United States v. Calandra, 414 U. S. 338, 347 (1974). See United States v. Peltier, 422 U. S. 531, 536-539 (1975). Thus,
"[i]n sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calandra, 414 U. S., at 348.
*447 And
"[a]s with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." Ibid.[16]
In the complex and turbulent history of the rule, the Court never has applied it to exclude evidence from a civil proceeding, federal or state.[17]
IV
In the present case we are asked to create judicially a deterrent sanction by holding that evidence obtained by a state criminal law enforcement officer in good-faith reliance on a warrant that later proved to be defective shall be inadmissible in a federal civil tax proceeding. Clearly, 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.[18]
*448 In evaluating the need for a deterrent sanction, one must first identify those who are to be deterred. In this case it is the state officer who is the primary object of the sanction. It is his conduct that is to be controlled. Two factors suggest that a sanction in addition to those that presently exist is unnecessary. First, the local law enforcement official is already "punished" by the exclusion of the evidence in the state criminal trial.[19] That, necessarily, is of substantial concern to him. Second, the evidence is also excludable in the federal criminal trial, Elkins v. United States, supra, so that the entire criminal enforcement process, which is the concern and duty of these officers, is frustrated.[20]
Jurists and scholars uniformly have recognized that the exclusionary rule imposes a substantial cost on the societal interest in law enforcement by its proscription *449 of what concededly is relevant evidence. See, e. g., Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 411 (1971) (BURGER, C. J., dissenting); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 429 (1974). And alternatives that would be less costly to societal interests have been the subject of extensive discussion and exploration.[21]
Equally important, although scholars have attempted to determine whether the exclusionary rule in fact does have any deterrent effect, each empirical study on the *450 subject, in its own way, appears to be flawed.[22] It would not be appropriate to fault those who have attempted empirical studies for their lack of convincing data. The *451 number of variables is substantial,[23] and many cannot be measured or subjected to effective controls. Record-keeping before Mapp was spotty at best, a fact which *452 thus severely hampers before-and-after studies. Since Mapp, of course, all possibility of broad-scale controlled or even semi-controlled comparison studies has been eliminated.[24] "Response" studies are hampered by the *453 presence of the respondents' interests.[25] And extrapolation studies are rendered highly inconclusive by the changes in legal doctrines and police-citizen relationships that have taken place in the 15 years since Mapp was decided.[26]
We find ourselves, therefore, in no better position than the Court was in 1960 when it said:
"Empirical statistics are not available to show that the inhabitants of states which follow the exclusionary rule suffer less from lawless searches and seizures than do those of states which admit evidence unlawfully obtained. Since as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could ever be assembled. For much the same reason, it cannot positively be demonstrated that enforcement of the criminal law is either more or less effective under either rule." Elkins v. United States, 364 U. S., at 218.
If the exclusionary rule is the "strong medicine" that its proponents claim it to be, then its use in the situations in which it is now applied (resulting, for example, in this case in frustration of the Los Angeles police officers' good-faith duties as enforcers of the criminal laws) must be assumed to be a substantial and efficient deterrent. Assuming this efficacy, the additional marginal deterrence provided by forbidding a different sovereign from using the evidence in a civil proceeding surely does not outweigh *454 the cost to society of extending the rule to that situation.[27] If, on the other hand, the exclusionary rule does not result in appreciable deterrence, then, clearly, its use in the instant situation is unwarranted. Under either assumption, therefore, the extension of the rule is unjustified.[28]
In short, we conclude that exclusion from federal civil proceedings of evidence unlawfully seized by a state criminal enforcement officer has not been shown to have a sufficient likelihood of deterring the conduct of the state police so that it outweighs the societal costs imposed by the exclusion. This Court, therefore, is not justified in so extending the exclusionary rule.[29]
*455 Respondent argues, however, that the application of the exclusionary rule to civil proceedings long has been recognized in the federal courts. He cites a number of cases.[30] But respondent does not critically distinguish between those cases in which the officer committing the unconstitutional search or seizure was an agent of the sovereign that sought to use the evidence, on the one hand, and those cases, such as the present one, on the other hand, where the officer has no responsibility or duty to, or agreement with, the sovereign seeking to use the evidence.[31]
*456 The seminal cases that apply the exclusionary rule to a civil proceeding involve "intrasovereign" violations,[32] a situation we need not consider here. In some cases the courts have refused to create an exclusionary rule for either intersovereign or intrasovereign violations in proceedings other than strictly criminal prosecutions. See United States ex rel. Sperling v. Fitzpatrick, 426 F. 2d 1161 (CA2 1970) (intrasovereign/parole revocation); United States v. Schipani, 435 F. 2d 26 (CA2 1970), cert. denied, 401 U. S. 983 (1971) (intersovereign/sentencing).[33] And in Compton v. United States, 334 F. 2d 212, 215-216 (1964), a case remarkably like this one, the Fourth Circuit held that the presumption of correctness given a tax assessment was not affected by the fact that the assessment was based upon evidence unconstitutionally seized by state criminal law enforcement officers. Only one case cited by the respondent squarely holds that there must be an exclusionary rule barring use in a civil proceeding by one sovereign of material seized in violation of the Fourth Amendment by an officer of another sovereign.[34] In Suarez v. Commissioner, 58 T. C. 792 *457 (1972) (reviewed by the court, with two judges dissenting), the Tax Court determined that the exclusionary rule should be applied in a situation similar to the one that confronts us here. The court concluded that
"any competing consideration based upon the need for effective enforcement of civil tax liabilities (compare Elkins v. United States . . .) must give way to the higher goal of protection of the individual and the necessity for preserving confidence in, rather than encouraging contempt for, the processes of Government." Id., at 805.
No appeal was taken.
We disagree with the broad implications of this statement of the Tax Court for two reasons. To the extent that the court did not focus on the deterrent purpose of the exclusionary rule, the law has since been clarified. See United States v. Calandra, 414 U. S. 338 (1974); United States v. Peltier, 422 U. S. 531 (1975). Moreover, the court did not distinguish between intersovereign and intrasovereign uses of unconstitutionally seized material. Working, as we must, with the absence of convincing empirical data, common sense dictates that *458 the deterrent effect of the exclusion of relevant evidence is highly attenuated when the "punishment" imposed upon the offending criminal enforcement officer is the removal of that evidence from a civil suit by or against a different sovereign. In Elkins the Court indicated that the assumed interest of criminal law enforcement officers in the criminal proceedings of another sovereign counterbalanced this attenuation sufficiently to justify an exclusionary rule. Here, however, the attenuation is further augmented by the fact that the proceeding is one to enforce only the civil law of the other sovereign.
This attenuation, coupled with the existing deterrence effected by the denial of use of the evidence by either sovereign in the criminal trials with which the searching officer is concerned, creates a situation in which the imposition of the exclusionary rule sought in this case is unlikely to provide significant, much less substantial, additional deterrence. It falls outside the offending officer's zone of primary interest. The extension of the exclusionary rule, in our view, would be an unjustifiably drastic action by the courts in the pursuit of what is an undesired and undesirable supervisory role over police officers.[35] See Rizzo v. Goode, 423 U. S. 362 (1976).
*459 In the past this Court has opted for exclusion in the anticipation that law enforcement officers would be deterred from violating Fourth Amendment rights. Then, as now, the Court acted in the absence of convincing empirical evidence and relied, instead, on its own assumptions of human nature and the interrelationship of the various components of the law enforcement system. In the situation before us, we do not find sufficient justification for the drastic measure of an exclusionary rule. There comes a point at which courts, consistent with their duty to administer the law, cannot continue to create barriers to law enforcement in the pursuit of a supervisory role that is properly the duty of the Executive and Legislative Branches. We find ourselves at that point in this case. We therefore hold that the judicially *460 created exclusionary rule should not be extended to forbid the use in the civil proceeding of one sovereign of evidence seized by a criminal law enforcement agent of another sovereign.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE STEVENS took no part in the consideration or decision of this case.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs, dissenting.
I adhere to my view that the exclusionary rule is a necessary and inherent constitutional ingredient of the protections of the Fourth Amendment. See United States v. Calandra, 414 U. S. 338, 355-367 (1974) (BRENNAN, J., dissenting), and United States v. Peltier, 422 U. S. 531, 550-562 (1975) (BRENNAN, J., dissenting). Repetition or elaboration of the reasons supporting that view in this case would serve no useful purpose. My view of the exclusionary rule would, of course, require an affirmance of the Court of Appeals. Today's decisions in this case and in Stone v. Powell, post, p. 465, continue the Court's "business of slow strangulation of the rule," 422 U. S., at 561. But even accepting the proposition that deterrence of police misconduct is the only purpose served by the exclusionary rule, as my Brother STEWART apparently does, his dissent persuasively demonstrates the error of today's result. I dissent.
MR. JUSTICE STEWART, dissenting.
The Court today holds that evidence unconstitutionally seized from the respondent by state officials may be introduced against him in a proceeding to adjudicate his *461 liability under the wagering excise tax provisions of the Internal Revenue Code of 1954. This result, in my view, cannot be squared with Elkins v. United States, 364 U. S. 206. In that case the Court discarded the "silver platter doctrine" and held that evidence illegally seized by state officers cannot lawfully be introduced against a defendant in a federal criminal trial.
Unless the Elkins doctrine is to be abandoned, evidence illegally seized by state officers must be excluded as well from federal proceedings to determine liability under the federal wagering excise tax provisions. These provisions, constituting an "interrelated statutory system for taxing wagers," Marchetti v. United States, 390 U. S. 39, 42, operate in an area "permeated with criminal statutes" and impose liability on a group "inherently suspect of criminal activities." Albertson v. SACB, 382 U. S. 70, 79, quoted in Marchetti v. United States, supra, at 47. While the enforcement of these provisions results in the collection of revenue, "we cannot ignore either the characteristics of the activities" which give rise to wagering tax liability "or the composition of the group" from which payment is sought. Grosso v. United States, 390 U. S. 62, 68. The wagering provisions are intended not merely to raise revenue but also to "assist the efforts of state and federal authorities to enforce [criminal] penalties" for unlawful wagering activities. Marchetti v. United States, supra, at 47.
Federal officials responsible for the enforcement of the wagering tax provisions regularly cooperate with federal and local officials responsible for enforcing criminal laws restricting or forbidding wagering. See 390 U. S., at 47-48. Similarly, federal and local law enforcement personnel regularly provide federal tax officials with information, obtained in criminal investigations, indicating *462 liability under the wagering tax.[*] The pattern is one of mutual cooperation and coordination, with the federal wagering tax provisions buttressing state and federal criminal sanctions.
*463 Given this pattern, our observation in Elkins is directly opposite:
"Free and open cooperation between state and federal law enforcement officers is to be commended and encouraged. Yet that kind of cooperation is hardly promoted by a rule that . . . at least tacitly [invites federal officers] to encourage state officers in the disregard of constitutionally protected freedom." 364 U. S., at 221-222.
To be sure, the Elkins case was a federal criminal proceeding and the present case is civil in nature. But our prior decisions make it clear that this difference is irrelevant for Fourth Amendment exclusionary rule purposes where, as here, the civil proceeding serves as an adjunct to the enforcement of the criminal law. See Plymouth Sedan v. Pennsylvania, 380 U. S. 693.
The Court's failure to heed these precedents not only rips a hole in the fabric of the law but leads to a result that cannot even serve the valid arguments of those who would eliminate the exclusionary rule entirely. For under the Court's ruling, society must not only continue to pay the high cost of the exclusionary rule (by forgoing criminal convictions which can be obtained only on the basis of illegally seized evidence) but it must also forfeit the benefit for which it has paid so dearly.
If state police officials can effectively crack down on gambling law violators by the simple expedient of violating their constitutional rights and turning the illegally seized evidence over to Internal Revenue Service agents on the proverbial "silver platter," then the deterrent *464 purpose of the exclusionary rule is wholly frustrated. "If, on the other hand, it is understood that the fruit of an unlawful search by state agents will be inadmissible in a federal trial, there can be no inducement to subterfuge and evasion with respect to federal-state cooperation in criminal investigation." Elkins v. United States, supra, at 222.
NOTES
[1] Officer Weissman's affidavit, App. 69-74, stated: He and Sergeant Briggs of the Los Angeles Police Department each had received information from an informant concerning respondent Janis and Levine and concerning telephone numbers the two men used for bookmaking. Police investigation disclosed that Janis had two telephones with unpublished numbers, including the number given by Weissman's informant, and that there was a third published number at the same address in the name of Nancy L. Janis. The unpublished numbers given by Weissman's informant as being used by Levine were found to be maintained by Levine at a different address, and that address was the one given by Briggs' informant as being Levine's base of operations. Both informants stated that Levine and Janis were working in concert. Each officer regarded his informant as reliable; the informant had given information in the past that led to arrests for bookmaking and, in the case of Briggs' informant, to convictions as well. Preliminary hearings and trials were pending for persons arrested with the aid of Weissman's informant. Each officer and his informant believed that it was necessary for the informant's safety, and his future usefulness to law enforcement officers, that his identity be kept secret.
Weissman further stated:
"From the nature and context of the information supplied by the informant to this affiant, and from the nature and context of the information which was supplied to Sgt. Briggs, as told to this affiant, it is believed that the informants . . . at all times mentioned in this affidavit, unless otherwise specified, were speaking with personal knowledge." Id., at 73.
The affidavit, taken in its entirety, bears some similarity to the affidavit the Court later considered in Spinelli v. United States, 393 U. S. 410, 420-422 (1969). Spinelli was a 5-3 decision handed down two months after the Los Angeles warrant in the present case had been issued. MR. JUSTICE WHITE joined the opinion in Spinelli, id., at 423-429, but, in doing so, referred, id., at 427, to the "tension between Draper [v. United States, 358 U. S. 307 (1959)]," on the one hand, and Nathanson v. United States, 290 U. S. 41 (1933), and Aguilar v. Texas, 378 U. S. 108 (1964), on the other, and, "[p]ending full-scale reconsideration" of Draper "or of the Nathanson-Aguilar cases," joined "the opinion of the Court and the judgment of reversal, especially since a vote to affirm would produce an equally divided Court." 393 U. S., at 429.
[2] The Internal Revenue Service's Certificate of Assessments and Payments, App. 81, shows a credit of $5,097, the amount actually seized by the police and subjected to the Service's subsequent levy. The Government acknowledges, however, that $157 of this amount was money belonging to Levine. It wa