JUSTICE POWELL delivered the opinion of the Court.
This case presents the issue whether, and to what extent, the Fifth Amendment privilege against compelled self-incrimination applies to the business records of a sole proprietorship.
Respondent is the owner of several sole proprietorships. In late 1980, a grand jury, during the course of an investigation of corruption in the awarding of county and municipal contracts, served five subpoenas on respondent. The first two demanded the production of the telephone records of several of respondent's companies and all records pertaining to four bank accounts of respondent and his companies. The subpoenas were limited to the period between January 1, 1977, and the dates of the subpoenas. The third subpoena demanded the production of a list of virtually all the business records of one of respondent's companies for the period between
Respondent filed a motion in Federal District Court seeking to quash the subpoenas. The District Court for the District of New Jersey granted his motion except with respect to those documents and records required by law to be kept or disclosed to a public agency.
The Court of Appeals for the Third Circuit affirmed. In re Grand Jury Empanelled March 19, 1980, 680 F.2d 327 (1982). It first addressed the question whether the Fifth Amendment ever applies to the records of a sole proprietorship. After noting that an individual may not assert the Fifth Amendment privilege on behalf of a corporation, partnership, or other collective entity under the holding of Bellis v. United States, 417 U.S. 85 (1974),
The Court of Appeals next considered whether the documents at issue in this case are privileged. The court noted that this Court held in Fisher v. United States, 425 U.S. 391 (1976), that the contents of business records ordinarily are
The Government contended that the court should enforce the subpoenas because of the Government's offer not to use respondent's act of production against respondent in any
We granted certiorari to resolve the apparent conflict between the Court of Appeals' holding and the reasoning underlying this Court's holding in Fisher. 461 U.S. 913 (1983). We now affirm in part, reverse in part, and remand for further proceedings.
The Court in Fisher expressly declined to reach the question whether the Fifth Amendment privilege protects the contents of an individual's tax records in his possession.
This reasoning applies with equal force here. Respondent does not contend that he prepared the documents involuntarily
Although the contents of a document may not be privileged, the act of producing the document may be. Id., at 410. A government subpoena compels the holder of the document to perform an act that may have testimonial aspects and an incriminating effect. As we noted in Fisher:
In Fisher, the Court explored the effect that the act of production would have on the taxpayer and determined that the act of production would have only minimal testimonial value and would not operate to incriminate the taxpayer. Unlike the Court in Fisher, we have the explicit finding of the District Court that the act of producing the documents would involve testimonial self-incrimination.
The Government, as it concedes, could have compelled respondent to produce the documents listed in the subpoena.
We decline to extend the jurisdiction of courts to include prospective grants of use immunity in the absence of the formal request that the statute requires.
We conclude that the Court of Appeals erred in holding that the contents of the subpoenaed documents were privileged under the Fifth Amendment. The act of producing the documents at issue in this case is privileged and cannot be compelled without a statutory grant of use immunity pursuant to 18 U. S. C. §§ 6002 and 6003. The judgment of the Court of Appeals is, therefore, affirmed in part and reversed in part,
It is so ordered.
I concur in both the result and reasoning of JUSTICE POWELL'S opinion for the Court. I write separately, however, just to make explicit what is implicit in the analysis of that opinion: that the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind. The notion that the Fifth Amendment protects the privacy of papers originated in Boyd v. United States, 116 U.S. 616, 630 (1886), but our decision in Fisher v. United States, 425 U.S. 391 (1976), sounded the death knell for Boyd. "Several of Boyd's express or implicit declarations [had] not stood the test of time," 425 U. S., at 407, and its privacy of papers concept "ha[d] long been a rule searching for a rationale. . . ." Id., at 409. Today's decision puts a long overdue end to that fruitless search.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, concurring in part and dissenting in part.
I concur in the Court's affirmance of the Court of Appeals' ruling that the act of producing the documents could not be compelled without an explicit grant of use immunity pursuant to 18 U. S. C. §§ 6002 and 6003. I dissent, however, with respect to that part of the Court's opinion reversing the Court of Appeals. The basis for the reversal is the majority's disagreement with the Court of Appeals' discussion of whether the Fifth Amendment protected the contents of the documents respondent sought to withhold from disclosure. Inasmuch as the Court of Appeals' judgment did not rest upon the disposition of this issue, this Court errs by reaching out to decide it. As JUSTICE STEVENS rightly insists, " `[t]his Court . . . reviews judgments, not statements in opinions.' " Post, at 619 (quoting Black v. Cutter Laboratories, 351 U.S. 292, 297 (1956)).
Were it true that the Court's opinion stands for the proposition that "the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind," ibid., I would assuredly dissent. I continue to believe that under the Fifth Amendment "there are certain documents no person ought to be compelled to produce at the Government's request." Fisher v. United States, 425 U.S. 391, 431-432 (1976) (MARSHALL, J., concurring in judgment).
JUSTICE STEVENS, concurring in part and dissenting in part.
"This Court . . . reviews judgments, not statements in opinions." Black v. Cutter Laboratories, 351 U.S. 292, 297
The question in this case is whether, without tendering statutory immunity, the Government can compel the sole proprietor of a business to produce incriminating records pursuant to a grand jury subpoena. Except for the records that are required by law to be kept or to be disclosed to public agencies, the District Court held that production could not be required. The basis for that decision turned, not on any suggestion that the contents of the documents were privileged, but rather on the significance of the act of producing them. As the District Court explained:
The Court of Appeals agreed with the District Court's reasoning and affirmed. It explained:
In addition, the Court of Appeals noted that the Government had had an opportunity to obtain the documents by providing the respondent with statutory immunity, but had declined to do so. It wrote:
This Court's opinion is entirely consistent with both the reasoning of the Court of Appeals and its disposition of the case. This Court agrees that the subpoena directed to respondent should have been quashed — which is all that the judgment we review today contains. Accordingly, the Court of Appeals' judgment should be affirmed.
To the extent that the Court purports to reverse the judgment of the Court of Appeals, I respectfully dissent.
"Within the limits imposed by the language of the Fifth Amendment, which we necessarily observe, the privilege truly serves privacy interests; but the Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the Court's view, did not involve compelled testimonial self-incrimination of some sort." 425 U. S., at 399.
In Andresen v. Maryland, 427 U.S. 463 (1976), the petitioner also relied on Boyd. In rejecting his argument, we observed that "the continued validity of the broad statements contained in some of the Court's earlier cases [has] been discredited by later opinions." 427 U. S., at 472. See also United States v. Nobles, 422 U.S. 225, 233, n. 7 (1975).
"With few exceptions, enforcement of the subpoenas would compel [respondent] to admit that the records exist, that they are in his possession, and that they are authentic. These communications, if made under compulsion of a court decree, would violate [respondent's] Fifth Amendment rights. . . . The government argues that the existence, possession and authenticity of the documents can be proved without [respondent's] testimonial communication, but it cannot satisfy this court as to how that representation can be implemented to protect the witness in subsequent proceedings." 541 F. Supp., at 3.
"In the matter sub judice, however, we find nothing in the record that would indicate that the United States knows, as a certainty, that each of the myriad documents demanded by the five subpoenas in fact is in the appellee's possession or subject to his control. The most plausible inference to be drawn from the broad-sweeping subpoenas is that the Government, unable to prove that the subpoenaed documents exist — or that the appellee even is somehow connected to the business entities under investigation — is attempting to compensate for its lack of knowledge by requiring the appellee to become, in effect, the primary informant against himself." 680 F. 2d, at 335 (footnote omitted).
"Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to —
"(1) a court or grand jury of the United States,
"(2) an agency of the United States, or
"(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House,
"and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order."
Section 6003 provides:
"(a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States or a grand jury of the United States, the United States district court for the judicial district in which the proceeding is or may be held shall issue, in accordance with subsection (b) of this section, upon the request of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this part.
"(b) A United States attorney may, with the approval of the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General, request an order under subsection (a) of this section when in his judgment —
"(1) the testimony or other information from such individual may be necessary to the public interest; and
"(2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination."