This is an appeal by Antonio Dionisio and Charles Bishop Smith from separate orders finding them in contempt of court and committing them to custody for failing to furnish voice exemplars to the Special February 1971 Grand Jury for the Northern District of Illinois.
On February 17 and 19, 1971, Dionisio and Smith, having been called before the grand jury and advised that they were potential defendants in its investigations, refused the jury's request that they furnish voice exemplars which would be compared with voices contained on Federal Bureau of Investigation tape recordings of telephone messages intercepted pursuant to a court-ordered wiretap.
On February 19 (Dionisio) and February 23 (Smith), the district court ordered that the two witnesses:
The manner in which it was proposed to take these voice exemplars is as follows. The witness would be taken to an office of the United States Attorney and would be requested by FBI agents to read from a transcript of the conversations which the FBI had recorded earlier pursuant to the court-ordered wiretap and with which the witness' voice was to be compared. While reading from this transcript, the witness would speak into a telephone and his voice would be recorded on a machine operated by other FBI agents in some other room in the building. The witnesses would be permitted to have their counsel present at the United States Attorney's office where the scripts were to be read.
Both Dionisio and Smith refused to furnish the requested voice exemplars; and on February 22 (Dionisio) and February 23 (Smith), they were committed for contempt for their refusal to comply with the district court's order. Dionisio and Smith filed notices of appeal on February 23.
The district court, having determined that the appeals were frivolous and taken for delay, refused the witnesses' motions to set bail or to stay the commitment order pending appeal. See 28 U.S.C. § 1826(b). On the witnesses' emergency motions, this court found the constitutional questions raised too substantial to justify characterizing the appeals as frivolous and ordered the witnesses admitted to bail.
Appellants contend that the procedure attempted by the grand jury violated their fifth amendment privilege against self-incrimination. This is not the law. United States v. Wade, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); cf. Gilbert v. California, 388 U.S. 263, 265-267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). They further contend that the procedure violated their sixth amendment right to counsel. That contention is also without merit, particularly in view of the option extended to the appellants under which their attorneys would be permitted to be present. Cf. Gilbert v. California, 388 U.S. 263,
Appellants also urge that the compelled production of voice exemplars for the grand jury upon its subpoena violates their rights under the fourth amendment. This argument raises an important and seemingly novel question.
It is now settled that the fourth amendment is applicable to the grand jury process. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906). That case dealt with the production of documents under a subpoena duces tecum. The Court believed that a grand jury "order for the production of books and papers may constitute an unreasonable search and seizure within the Fourth Amendment." Id. at 76, 26 S.Ct. at 379. Applying the test of reasonableness, the Court held the subpoena to be overbroad, stating that, "A general subpoena of this description is equally indefensible as a search warrant would be if couched in similar terms." Id. at 77, 26 S.Ct. at 380.
Since Hale v. Henkel, courts have struck down grand jury subpoenas which were unreasonable under the fourth amendment. Schwimmer v. United States, 232 F.2d 855 (8th Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L. Ed.2d 52 (1956); see Application of Linen Supply Cos., 15 F.R.D. 115 (S.D. N.Y.1953). As stated in Application of Certain Chinese Family Benevolent & Dist. Ass'ns, 19 F.R.D. 97, 99 (N.D.Cal. 1956), the grand jury's subpoena power "must not be so exercised as to impinge upon the prohibition against unlawful searches and seizures."
It may be argued that the fourth amendment applies only to overbroad grand jury subpoenas calling for documentary evidence.
The Government argues that it is premature to consider these fourth amendment
The record shows that the instant grand jury is investigating possible violations of federal criminal statutes relating to gambling and that pursuant to its investigation it has received in evidence voice recordings which were obtained under orders issued by the district court pursuant to 18 U.S.C. § 2518. Since the Government was apparently unable to identify some or all of the voices recorded, the grand jury seeks to obtain voice exemplars from those whom the Government suspects of having participated in the recorded conversations. The interception order is not part of the record nor has it been furnished to appellants. The Government does not claim that the order named Smith or Dionisio or was based on probable cause for belief that either was committing, had committed, or was about to commit an offense enumerated in 18 U.S.C. § 2516, or that the facilities involved were leased to, listed in the name of, or commonly used by either of them. Thus, we do not reach the question whether compulsion to furnish voice exemplars is the ultimate permissible step in the invasion of someone's privacy authorized by the antecedent interception order and whether the probable cause underlying the order makes such compulsion reasonable. For all that appears, Smith and Dionisio may be persons who were suspected of being the other parties to conversations with individuals whose privacy the Government had obtained the right to invade, thus being persons whose privacy was still constitutionally protected.
We believe the proposition to be clearly established that under the fourth amendment law enforcement officials may not compel the production of physical evidence absent a showing of the reasonableness of the seizure. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L. Ed.2d 746 (1886). It is evident that the grand jury is seeking to obtain the voice exemplars of the witnesses by the use of its subpoena powers because probable cause did not exist for their arrest or for some other, less unusual, method of compelling the production of the exemplars.
The Government and appellants assert that whether the fourth amendment bars the procedure here attempted is really a question of whether probable cause must exist for the compelled production of physical evidence by a grand jury. The fourth amendment, however, not only proscribes the issuance of warrants without probable cause — a proscription not applicable here because no warrant was involved — but also prohibits searches and seizures which are unreasonable. It is the proper application of the standard of reasonableness to seizures in the grand jury context with which we must be concerned.
In Davis v. Mississippi, supra, the police detained and fingerprinted a large number of Negro youths in their investigation of an alleged rape where the assailant was described only as a
We think this language applies with equal force to the instant situation. The fourth amendment bans "wholesale intrusions" upon personal security whether such intrusions stem from illegal arrests or from grand jury subpoenas ostensibly issued only because of the Government's bald statement that the witnesses are potential defendants. The fact that the investigation in this case was conducted under the aegis of the grand jury does not excuse its unreasonableness. The dragnet effect here, where approximately twenty persons were subpoenaed for purposes of identification, has the same invidious effect on fourth amendment rights as the practice condemned in Davis.
We agree with the Government's observation that the grand jury is not required to have a factual basis for commencing an investigation and can pursue rumors and clues which further investigation may prove groundless. The grand jury does not need probable cause to subpoena witnesses. But that is not to say that the grand jury may misuse its subpoena power to effect a seizure which in other contexts would be violative of the fourth amendment.
We reverse and remand to the district court with directions to vacate its contempt judgments and commitments.