UNITED STATES v. DIONISIO
Legal provision: Amendment 4: Fourth Amendment
Argument of Philip A. Lacovara
Chief Justice Warren E. Burger: We will hear argument first in Number 71-229, United States against Dionisio.
Mr. Lacovara you may proceed.
Mr. Philip A. Lacovara: Thank you Mr. Chief Justice and may it please the Court.
This case, United States against Dionisio and the next case on the Court's calendar this morning, United States against Mara, both raised important questions about the ability of federal grand juries to obtain exemplar evidence from recalcitrant witnesses.
Both cases are here on writs of certiorari applied for by the United States to the United States Court of Appeals for the Seventh Circuit.
In this case, the proceedings began when a special federal grand jury sitting in the Northern District of Illinois, the special February 1971 grand jury, subpoenaed Mr. Dionisio and approximately 20 others in a gambling investigation that the special grand jury was conducting.
Mr. Dionisio and others were ordered by the grand jury foreman to give voice exemplars and this was explained to them to be the reading of a transcript over a telephone connected to a recording device.
Mr. Dionisio refused to give the exemplars as directed by the grand jury foreman and as did other grand jury witnesses and the government, thereafter filed petitions to obtain court orders to compel the furnishing of the voice exemplars.
The government’s petition against Mr. Dionisio alleged that the special grand jury was investigating violations of federal criminal statutes that the grand jury thought it necessary and essential to obtain a voice exemplar of Mr. Dionisio’s voice on the telephone for the sole purpose of comparing his voice as recorded with voices intercepted pursuant to court orders issued by the Federal District Court.
The government also alleged that the transcript that Mr. Dionisio had been asked to read was special grand jury Exhibit 13, which the petition stated consisted of names, numbers and races, names of horses, numbers of horses and races and certain other information.
A hearing on petition in this matter, as well as the petitions with respect to the other 20 or so recalcitrant witnesses was held before Chief Judge Robson of the District Court.
And at that hearing, it was brought out that what the government was seeking was compliance with what was termed a reasonable order of the grand jury.
And this was explained to mean that if an exemplar that was clear was given only one exemplar would be necessary that on the basis of similar requests, several days earlier, exemplars had been given by other witnesses and the time consumed had been no more than 10 or 20 minutes.
That the government would preserve any and all original exemplars for subsequent comparison and expert analysis including by the defense and that counsel could be present during the taking of the exemplars, because the expected procedure would be that the exemplar would be given before a specially designated agent of the grand jury outside the grand jury room.
Chief Judge Robson entered orders directing each of the witnesses including Mr. Dionisio to provide the exemplars.
19 of the 21 witnesses did provide the exemplars under court order.
Mr. Dionisio and one other witness whose petition was ultimately dismissed by the government refused to give the exemplars asserting Fourth and Fifth Amendment defenses.
The Court entered an opinion, which is reprinted in the Appendix to our certiorari petition in which both the Fourth Amendment and Fifth Amendment claims were rejected.
On the Fourth Amendment issue, Chief Judge Robson held that since the grand jury subpoenas were lawful, the witnesses were properly subject to these directions, were not in unlawful detention within the meaning of this Court’s decision in Davis against Mississippi and relying on this Court's decisions in Gilbert, Wade and other cases held that no Fifth Amendment values are impinged upon by requiring a person to give exemplars.
When Mr. Dionisio refused an open court to give the exemplars, he was committed for contempt until he complied with the order or until the expiration of 18 months which is the maximum statutory imprisonment for civil contempt.
On appeal, after Mr. Dionisio had been released on bond by the Seventh Circuit, the Court Of Appeals rejected Fifth Amendment claims, as well as any possible Sixth Amendment claim, but found that the Fourth Amendment defense was a valid one.
The Court ruled that before a grand jury may compel a witness before it to give exemplars of his voice, the government must make an affirmative factual showing that this request is reasonable.
The Court apparently believed that the petition and the hearing that were -- was held on the government’s petition did not satisfy that reasonable -- reasonableness of request and the Court reversed the contempt judgment.
The ground for decision by the Seventh Circuit was essentially that exemplars maybe covered by the Fourth Amendment relying here on the same case that the District Court had found not applicable, Davis against Mississippi.
And also that the Fourth Amendment applies to grand jury proceedings and the Court relied on one or two decisions of this Court in which the Court stated that grand jury subpoenas for the production of documents might be so broad and ill-defined as to constitute an unreasonable search.
The government petition for rehearing en banc that was denied by a 5:3 vote and in August of 1971 we filed the petition for certiorari.
In May of 1972, after we filed a supplemental memorandum calling to the Court’s attention in intervening decision by Chief Judge Friendly of the Second Circuit, which had explicitly rejected the rationale of the Dionisio case, Court granted certiorari.
The issue then in this first case is whether, when a grand jury witness has been properly called before an investigating grand jury, the Fourth Amendment requires that before a witness can be compelled to give exemplars of his voice, or as in Mara exemplars of his handwriting, the government must make an affirmative factual showing that this request is reasonable.
It’s the government’s petition -- position that no such requirement of affirmative factual showing of reasonableness is necessary under the Fourth Amendment and that the decision below constitutes a departure from settled principles of grand jury practice and settled principles of the application of the Fourth Amendment.
We think the appropriate place to start in this case, as Chief Judge Friendly in the Schwartz case has done, is with the nature of the grand jury itself.
There is no need, I think, for us to rehearse at any great length the principles governing grand jury investigations, since only last term the Court had a number of such cases before it.
But briefly the relevant context here is this.
A grand jury is the touchstone of the criminal process under the Federal System since only a grand jury can initiate felony prosecutions.
The grand jury for several hundred years has had the undisputed right to compulsory process.
This Court has explained that compulsory process involves not only the justifiable demand that every witness appear before the grand jury, but that every witness unless his testimony is privileged must testify before the grand jury in its search for truth.
The last term in a decision which has been rendered by this Court since the Seventh Circuit’s decision in the two cases before the Court this morning, the Court rejected the very kind of preliminary showing that the Seventh Circuit has imposed in these cases in Branzburg, Caldwell, and Pappas, will be recalled where important First Amendment rights were unquestionably involved as none of the justices of the Court disputed.
The Court nevertheless said that in light of the historic function of the grand jury even where it was possible that there might be some collateral impact on First Amendment values.
Nevertheless, a newsman subpoenaed before a grand jury had an obligation to appear and had an obligation to testify and in rendering that decision the Court explicitly rejected the suggestion that even in order to protect these First Amendment rights some preliminary showing should be made before the newsman was compelled to respond to the subpoena.
The showing that was suggested by the lower courts by the dissent in Branzburg was remarkably similar to the showing of reasonableness that the Seventh Circuit has imposed in these cases.
And it’s our position that a showing, in this context, is no more justified than in the Branzburg, Caldwell, and Pappas context.
Justice Potter Stewart: But that’s a -- if there's no invasion of either the Fourth and Fifth Amendment, you don’t even get to this question of what kind of a proceeding is involved here?
Mr. Philip A. Lacovara: Yes sir.
The second case this morning involves the follow up decision by the Seventh Circuit of the -- nature of the proceeding that must be held to demonstrate reasonableness and the substantive content of the reasonableness.
But if this Court decides that the Seventh Circuit erred in Dionisio in saying that there is this kind of constitutional requirement, the second case, in our judgment, becomes academic.
The contention by the Seventh Circuit which is, of course, defended by the respondents in these cases is that compelling a witness to provide this kind of exemplar evidence is covered by the Fourth Amendment, even though, as the Seventh Circuit itself is conceded, the Fourth Amendment, governing unreasonable seizures of persons, does not apply to summoning a witness before a grand jury.
It has never been held and no court that I am aware of has ever suggested that a general -- as a general principle, the Government or the grand jury must make a preliminary showing of reasonableness before a witness can be compelled to appear and testify before a grand jury.
Justice Thurgood Marshall: But this is not a testimony, is it?
Mr. Philip A. Lacovara: Well it is.
It’s the giving of evidence.
Justice Thurgood Marshall: Well, I thought you said that --
Mr. Philip A. Lacovara: It’s not testimonial -- pardon me.
Justice Thurgood Marshall: I thought you said this was done out -- was to be done outside of the grand jury room by an agent of the grand jury.
Mr. Philip A. Lacovara: That was the procedure that was contemplated.
The order, the petition --
Justice Thurgood Marshall: Well, is that a testimony?
Mr. Philip A. Lacovara: Yes sir.
If this is the giving of evidence before the grand jury -- that’s a grand jury’s direction.
Justice Thurgood Marshall: Well, I thought all these provisions you're talking about that have never disputed and all, that’s testimony before a grand jury, isn’t it?
Mr. Philip A. Lacovara: Well, I can answer that question --
Justice Thurgood Marshall: Good!
Mr. Philip A. Lacovara: -- by saying that the petition that the Government filed and the order that was entered in both of these cases did not require that the evidence and the testimony, if you will, be given outside the grand jury room.
This was the procedure that the Government proposed so that counsel could be present during the taking of the exemplars.
This was thought to be a benefit before the witness.
Justice Thurgood Marshall: Well, would this man be ever refused to testify in the grand jury room pursuant to subpoena by the grand jury?
Mr. Philip A. Lacovara: He was asked that he would give exemplars, and he refused on Fourth and Fifth Amendment grounds.
Justice Thurgood Marshall: Now, this is not the -- I think you understand what I’m talking about, did he ever refuse to testify before the grand jury pursuant to a grand jury subpoena?
Mr. Philip A. Lacovara: My answer to that question and I don’t think it’s evasive, it’s that yes.
What he was ordered to do by the District Court, and that’s what’s on challenge here, was to provide exemplars as it deemed necessary by the grand jury either before and to the grand jury --
Justice Thurgood Marshall: Do you think an exemplar is testimony?
Mr. Philip A. Lacovara: Well, it’s testimony in the sense that --
Justice Thurgood Marshall: Is it or is it not?
Mr. Philip A. Lacovara: Well, I can’t answer yes or no and be fair to the Court.
It’s testimony in the sense that it’s -- what he is -- it is evidence that he is obliged to give in the presence of the grand jury pursuant to the grand jury subpoena.
Justice Thurgood Marshall: In the presence of the grand jury?
Mr. Philip A. Lacovara: Yes.
Justice Thurgood Marshall: But what did he refuse to do in the presence of the grand jury?
Mr. Philip A. Lacovara: He can refuse --
Justice Thurgood Marshall: What did this man refuse to do?
Mr. Philip A. Lacovara: He refused to give an exemplar.
Justice Thurgood Marshall: In the presence of a grand jury?
Mr. Philip A. Lacovara: Yes sir.
The order that’s been entered states --
Justice Thurgood Marshall: But what did the grand jury -- how did this come up? Did the grand jury called him in and say, “We want you to testify.”
Mr. Philip A. Lacovara: The grand jury called him, explained that he was a potential defendant and that he had Fifth and Sixth Amendment rights, and asked him whether he would give a voice exemplar if ordered to give one.
It was explained to him and I understand the thrust of your question that the procedure that was contemplated was that the telephone into which he was being directed to speak was in another office on that same floor.
He did not object on that ground in the District Court, I must say, either before the grand jury or in court and I think the order that has been entered against him on the government’s petition would be satisfied if Mr. Dionisio had said, “I will give this testimony in the grand jury room but not outside.”
Justice Thurgood Marshall: Suppose the grand jury said, “Mr. Dionisio, whatever your name is, we order you to go into the other room and give a statement to an FBI agent.”
Would that come under the same rule?
Mr. Philip A. Lacovara: Well, there we have a Fifth Amendment problem.
We’re talking here --
Justice Thurgood Marshall: What’s the difference between that and this?
Mr. Philip A. Lacovara: Well, we’re talking here about evidence which I believe the grand jury was entitled lawfully to compel Mr. Dionisio to give in the grand jury room and the fact that --
Justice Thurgood Marshall: But would you still -- we keep you saying, “In the grand jury room.”
Mr. Philip A. Lacovara: The alternative procedure that was set up here was not a condition, on the government’s part, it made no difference.
Justice Thurgood Marshall: Well, did he -- did he, at any time, refuse to make these statements in the grand jury room?
Mr. Philip A. Lacovara: He was asked to refer -- to the grand jury testimony, he was asked whether he would give voice exemplars, and he said, “No” and he claimed the Fourth and Fifth Amendment --
Justice Thurgood Marshall: Was that in the grand jury room?
Mr. Philip A. Lacovara: After he was told what the procedure was, he was asked whether he could give exemplars.
Justice Thurgood Marshall: Well, then he never refused to testify in the grand jury room?
Mr. Philip A. Lacovara: No sir, no, because at the hearing --
Justice Thurgood Marshall: Did he ever refuse to make -- to read these figures and numbers and horses’ names in the grand jury room?
Mr. Philip A. Lacovara: Yes sir.
I think the reading of the transcript of the hearing before Chief Judge Robson, will show that the orders that were being entered, were to direct the witnesses to give these exemplars and at that time they were being entered and argued on the merits, it was not clear to Judge Robson that the procedure that was expected for purposes of defense counsel being in attendant was to have them given in before specially designated agent of the grand jury outside the grand jury room.
But what Judge Robson asked the counsel and the respondent in each of these cases was, “Will you give the exemplars?”
It was not, “Will you give them outside the grand jury room?”
And as I say, the order that was entered was not limited to giving them outside the grand jury room and there would have been no contempt here.
Justice Thurgood Marshall: Well, what -- he didn’t refuse to answer any questions in the grand jury room, did he?
Mr. Philip A. Lacovara: Well, he refused, while in the grand jury room, to give exemplars.
Justice Thurgood Marshall: Did he refuse any questions?
Mr. Philip A. Lacovara: No, the only evidence that he was asked to give in the grand jury room by the grand jury was the exemplars.
On this point, I reiterate that the order that was entered by Chief Judge Robson and the order that was asked for by the government provide it with a giving of exemplars either before and to the grand jury or to a specially designated agent of the grand jury who had been sworn by the grand jury previously to receive this evidence so that, as I say, there was also no objection on the ground that this was beyond the power of the grand jury to do.
And we suggest the case of Bryan against the United States in 339 U.S. is dispositive of this point, since this objection was not made by the witnesses, it was not the basis for his objection and if that objection had been made, the government of course would have been quite willing to receive the exemplars in the grand jury room.
But as the transcript of the hearing makes it clear, Mr. Justice Marshall, the government counsel said that the procedure that was contemplated was outside the grand jury room so that respondent’s counsel could be present at the taking of these exemplars.
And that, in fact, is the procedure that was followed for -- until by the 19 witnesses who did provide the exemplars.
Justice Thurgood Marshall: Well, the occurrence of 19 witnesses doesn’t affect this case at all?
Mr. Philip A. Lacovara: No sir.
But I’m trying to set the context in which this came up to show that it was not "material" to the obligation or the lack of obligation of Mr. Dionisio to give this exemplars that the grand jury for other purposes directed him to provide the exemplars to its agent down the hall.
That was not an --
Justice Thurgood Marshall: Who was the agent?
Mr. Philip A. Lacovara: He was an agent of the FBI sworn by the grand jury to receive these exemplars and then to testify what further processing they received.
Justice Thurgood Marshall: So it’s like -- my hypothetical, you'd go down the hall, and talk to an FBI agent.
Mr. Philip A. Lacovara: No sir.
Justice Thurgood Marshall: What's the difference?
Mr. Philip A. Lacovara: We have a clear Fifth Amendment problem there.
We’re talking about evidence that the grand jury putting aside the location of the giving of the testimony, we think that there is no Fifth or Fourth Amendment obstacle to the order that was entered here.
Chief Justice Warren E. Burger: Would you turn it or turn your attention at least to the bottom of Page 9 of the Appendix where Mr. Dionisio, after being asked the question, said, “I refuse to give any voice exemplar based on the rights guaranteed me under the Fourth and Fifth Amendments.”
Now was that inside the grand jury room or outside?
Mr. Philip A. Lacovara: That was inside the grand jury room and that’s the thrust of my position that his refusal was categorical just like the refusal in the Bryan case, which is also a contempt case.
And there was never, at any time, a objection based on the locale for the giving of the exemplar and the government would have been quite willing as the court order itself reflects that to receive the exemplar in the grand jury room if the witness didn’t want counsel present outside the grand jury room.
Justice Thurgood Marshall: Where is that in the Appendix?
Mr. Philip A. Lacovara: That appears in the transcript.
It’s not printed in the Appendix, but the transcript I believe is before the Court and the --
Justice Harry A. Blackmun: Mr. Lacovara, the Chief Justice was reading on Page 9 and then again on Page 10; Answer: “I refuse to give a voice exemplar based on the rights guaranteed me under the Fourth and Fifth Amendments.”
Mr. Philip A. Lacovara: Yes sir.
Justice Harry A. Blackmun: No qualification whatsoever?
Mr. Philip A. Lacovara: Absolutely none.
The -- I might say that on Page 21 of the transcript of the hearing before the Chief Judge Robson on February 19th, a government counsel brought out that -- and this was after one counsel from another respondent, had asked the permission to be present in the grand jury room when his witness gave the exemplar under compulsion.
And Chief Judge Robson denied that motion saying that counsel aren’t allowed in the grand jury room and government counsel said, “Your Honor we’ve anticipated that problem and that’s why we’ve set up a procedure to allow this exemplars to be taken out of the -- outside the grand jury room, so that counsel can be present.”
That appears on Page 21 of the transcript of the February 19th hearing, and it appears later on that the counsel were actually present.
The context that we find ourselves in then is one in which a witness lawfully before the grand jury has been ordered to give evidence, which is essentially evidence that he carries with him, and this is not even a subpoena duces tecum to bring in his personal effects from somewhere else.
This is evidence, evidence of his own physical characteristics, identifying characteristics that he has been ordered to provide to the grand jury, which is no different, we submit for Fourth Amendment purposes than would be compelling him to give testimonial evidence.
Again assuming no Fifth Amendment problem, the witness under what we con -- we believe to be settled principles, is obliged to cooperate in the grand jury’s investigation in its search for truth by providing whatever information or evidence he can provide at that time.
In typical grand jury proceedings that involves his formulation of an answer to a particular question that calls for information that he has within himself.
In this context, what the witnesses is asked for is to give information, evidence that is similarly important to the grand jury for its investigation as the petition alleged.
This is also evidence that he has with him at that time, its evidence about his own physical characteristics.
Now, Chief Judge Friendly in the Schwartz case, which rejects the rationale of the Seventh Circuit here, says that, “This doesn’t implicate any Fourth Amendment rights at all, because these identifying physical characteristics, voice, or in Mara, handwriting are not characteristics as to which any person has a reasonable expectation of privacy.”
And for this reason -- in Judge Friendly’s analysis were not even talking about a search or a seizure within Fourth Amendment terms.
This is simply the requirement of giving of testimony or evidence which is no different from the formulation of oral responses by a grand jury witness lawfully before the grand jury.
Justice Potter Stewart: Do you suppose a grand jury could tell a man that, “To go to that table and put your fingerprints on each -- on that ink pad, we want the fingerprint of every one of your fingers?”
Mr. Philip A. Lacovara: Well, we’d have a slightly different analysis, because of the reasonable expectation of privacy, but I’d be prepared to say the grand jury could insist on that too.
And I think that that brings us right to Davis against Mississippi, which is perhaps the heart of the case.
The Seventh Circuit, I think, misunderstood that and I’m happy to be able to rely on Judge -- Chief Judge Friendly as having correctly, in our view, understood Davis.
In Davis, the Court’s analysis was not whether fingerprints, abstractly considered are protected by the Fourth Amendment whether it’s a right to privacy in a man’s fingerprints.
The analysis there was, as the Court formulated the question, can fingerprints, taken in the course of unlawful police detention, be used against the 14-year old black to convict him with rape?
We don’t have that problem here.
The witness was lawfully before the grand jury. Chief Judge Robson recognized that that was the determinative factor.
Chief Judge Friendly has said the same thing.
And I think the court’s own an explanation in Davis that there is no prying into private thoughts or personal information when fingerprints are obtained, supports Judge Friendly’s analysis that this really isn’t a search or seizure problem, assuming that the police -- that the government citizen contact itself is lawful, as we submit it is under the Fourth Amendment when a grand jury process is being used not a street confrontation during the police investigation.
Justice Potter Stewart: In other words, it’s your submission as I understand it that the compulsory giving of fingerprints is not of itself a violation of either the Fourth or the Fifth Amendment?
Mr. Philip A. Lacovara: Not of it self.
Justice Potter Stewart: And that the rationale of Davis was that this was done during an unlawful detention which violated the Fourth Amendment.
Mr. Philip A. Lacovara: Yes sir.
We regard Davis as a taint case, a Wong Sun kind of case and whatever evidence he had given would have been inadmissible --
Justice Potter Stewart: And that here there is no unlawful detention, there is merely a summoning of a person before the grand jury.
That’s your argument?
Mr. Philip A. Lacovara: That’s our position.
If there are no further questions I would like to reserve any further time for rebuttal.
Chief Justice Warren E. Burger: Very well Mr. Lacovara.
Argument of John Powers Crowley
Mr. John Powers Crowley: Mr. Chief Justice and may it please the Court.
I believe the statement of facts as given by the Solicitor is generally insufficient.
I would like to add one further thing which I think I had some dimension to the problems here presented with.
The witness, Dionisio, refused to give voice exemplars, a witness, Charles Bishop Smith during the same investigation also refused to give voice exemplars.
Mr. Smith after being held in contempt and after the Seventh Circuit had reversed his contempt on -- in the same opinion as here below.
Mr. Smith was indicted by the special February 1971 grand jury and I believe it was, I expect, after the governments’ petition for certiorari had been filed in this case.
Mr. Smith was indicted by this grand jury for alleged violations of the federal laws probably gambling.
Mr. and the Solicitor sought leave of court and obtained pursuant to Rule 60, the dismissal of the petition against Mr. Smith on the grounds that his exemplar, his voice exemplar was no longer desired since he had been indicted.
The wiretap evidence, which formed the basis for Mr. Smith’s indictment and presumably formed the basis for the request for the grand jury exemplars was found by the United States District Court for the Northern District of Illinois in United States versus Smith et al to have been unlawfully obtained and not properly authorized.
That decision, the government has sought appeal from that decision.
If that decision is affirmed by the Seventh Circuit, of course, then Mr. Dionisio would have an additional reason for a refusal to furnish the exemplar under the principles set forth in this case and by this court in Gilbert versus United States.
It is the basis of the respondent’s argument --
Justice William J. Brennan: Is that case the in the Seventh Circuit now?
Mr. John Powers Crowley: It is in the Seventh Circuit as of --
Justice William J. Brennan: Has it been argued?
Mr. John Powers Crowley: Briefs are filed -- it is has not been set for argument it is anticipated Mr. Justice Brennan that that case will be argued in January, in the January session of the Court.
Justice Potter Stewart: At the risk of repeating --
Mr. John Powers Crowley: Yes, we would guess so.
Justice Potter Stewart: Would you summarize again on what happened with this other man?
Mr. John Powers Crowley: I most certainly will.
Mr. Charles Bishop Smith appeared before this grand jury with Mr. Dionisio.
Mr. Smith refused to give voice exemplars.
He was held in contempt.
His contempt was reversed by the Seventh Circuit in this same opinion.
Justice William J. Brennan: Same opinion.
Mr. John Powers Crowley: Subsequent to the filing of the petition for certiorari, Mr. Smith along with approximately 18 or 19 others was indicted by this special February 1971 grand jury.
Subsequent to that indictment, the Solicitor sought and obtained leave of this Court pursuant to Rule 60 to dismiss the petition for certiorari.
So, Mr. Smith’s counsel and other counsel in the case filed motions to suppress the wiretap evidence which formed the basis for Mr. Smith’s indictment and formed the basis for the grand jury inquiry in this case originally.
The District Court granted those motions to suppress on the basis that the orders authorizing the wiretaps were not lawfully obtained.
Unless Your Honor wants me to, I won't go into the merits of that decision.
I don’t think that’s properly before this Court but the --
Justice William J. Brennan: Well, is Mr. Dionisio one of those who made that motion?
Mr. John Powers Crowley: Mr. Dionisio was never indicted by this special grand jury.
Justice William J. Brennan: Oh no!
Oh, I see.
So only those who had been indicted made this motion, is that it?
Mr. John Powers Crowley: That is correct; that is correct.
Justice Potter Stewart: And that was -- those were motions to suppress.
Mr. John Powers Crowley: Motions to suppress.
Justice Potter Stewart: And they were upheld by the District Court.
Mr. John Powers Crowley: By the District Court after indictment.
Justice Potter Stewart: Right.
And then the government appealed that?
Mr. John Powers Crowley: The government appealed that.
Justice Potter Stewart: And that’s not pending in the Court of Appeals of the Seventh Circuit.
Mr. John Powers Crowley: It is pending in the Seventh Circuit Court of Appeals and it’s reflected in the -- that is reflected in my brief under the statement on Page 3 that it’s pending in the Court of Appeals --
Justice William J. Brennan: But so far, I gather, Mr. Dionisio has never raised this point?
Mr. John Powers Crowley: No he had -- well, was he was not given, he -- no, he has not raised the point, assuming just for the purposes of argument that this Court holds that Mr. Dionisio was not protected under the Fourth Amendment just to give voice exemplars per se.
I believe that under this Court’s opinion in Gilbert, that Mr. Dionisio would have a right to refuse to give the voice exemplars alleging that the evidence upon which the grand jury sought the exemplars was unconstitutionally obtained.
At least what it might constitute just cause for refusal to answer.
Justice William J. Brennan: Or if this Court sustains his contempt conviction, how does he do that?
Mr. John Powers Crowley: No Your Honor.
If it reverses the Seventh Circuit, Mr. Dionisio would then, I assume, be given an opportunity to appear again in the District Court in which he could raise the issue that the evidence which the grand jury sought to compare at and sought to compare it -- compel the exemplar had been unconstitutionally obtained and would appear to be just cause for --
Justice William J. Brennan: But if this Court reverses to Seventh Circuit, will that not reinstate the judgment, the contempt conviction?
Mr. John Powers Crowley: I think it would Your Honor, I would Your Honor but I think then Mr. Dionisio would have other collateral proceedings available to him.
Chief Justice Warren E. Burger: Would you mean he could go the grand jury, he’d --
Mr. John Powers Crowley: Go to the grand jury and again refuse to give the exemplars, I think he have to do that on other grounds, on another grounds.
Justice William H. Rehnquist: Saying in effect he would give them say, for the unconstitutional obtaining of the evidence for --
Mr. John Powers Crowley: Without binding -- Your Honor again, I -- looking into the future as to what I would do or what his counsel at that time would do, I would assume that our -- a procedure similar to that would have to be followed in order to protect his record, and to comply with the order of this Court.
Justice William J. Brennan: Mr. Crowley, you are not suggesting, are you that this issue which you’ve been discussing is before the Court on the present record?
Mr. John Powers Crowley: No I’m not, no I’m not Your Honor, no I’m not.
It is the position of the respondent here that the decision of the Seventh Circuit does not as contended by the government present a novel issue.
It has been law, in Hale versus Henkel that the Fourth Amendment applies to grand jury proceeding.
In Hale versus Henkel this Court held or struck a subpoena requirement production of documentary evidence before a grand jury as the overbroad in violation of the Fourth Amendment.
It is also interesting to know that this Court’s decision in Hale versus Henkel as did the decision of the Seventh Circuit below, this Court indicated in Hale versus Henkel that it might very well appear at some future time in the grand jury proceeding that the request for this overbroad production of documentary evidence might very well be a reasonable request and therefore reasonable within the meaning of the Fourth Amendment and that the person then could be compelled to produce the papers.
What the government would ask this Court to hold is that the Fourth Amendment’s application to grand jury proceeding applies solely to the production of documentary evidence.
We submit that to place this limitation upon the Fourth Amendment is to give an unduly restrictive meaning to the Fourth Amendment.
What the government -- if their position is sustained here, what they would then allow the grand jury to do would be to do under the ages of a simple grand jury subpoena to violate the Fourth Amendment where normal investigative procedures of law enforcement at agencies could not do.
Chief Justice Warren E. Burger: Well, haven’t the grand jury powers traditionally been one of the broadest powers that are possessed by government?
Mr. John Powers Crowley: Mr. Chief Justice they have in the sense of their -- the broadness of the scope of the investigation, the admissibility before the grand jury of hearsay evidences carried by this Court in Costello and many other cases that the grand jury may -- its investigation may take many, many different channels and go in many, many different areas, but still the grand jury must -- the grand jury in its investigation cannot, because it wishes to investigate, cannot violate the privileges under the Fourth Amendment.
Chief Justice Warren E. Burger: But didn’t the Davis case turn on the fact that Davis’ fingerprints were taken when he was in custody illegally and here, is it not a distinction unless you claim --
Mr. John Powers Crowley: I think --
Chief Justice Warren E. Burger: -- that unless you claim that, he is illegally before the grand jury.
Mr. John Powers Crowley: Mr. Chief Justice, I think it is a distinction without a difference.
Yes, in Davis --
Chief Justice Warren E. Burger: Well, the Davis case turned on that distinction, so how can you say it’s without a difference?
Mr. John Powers Crowley: But I think in this case -- if this Court -- if we take that analogy then all that would have been required in Davis to legalize the grand jury are or the fingerprint.
If the situation had been reversed rather than the dragnet detention in Davis where the police went up and took into custody many, many young blacks in the community.
If they did -- instead of doing that caused subpoenas to -- grand jury subpoenas to be served on every young black in the community, call him before the grand jury and forced him to give his fingerprints before the grand jury, I submit that the invidious nature would still be present.
And that the grand jury would be violating the individual Fourth Amendment rights just as much as the unlawful police detention in which the fingerprinting was a product of that unlawful detention because it is true that the grand jury can issue a subpoena to compel the appearance of anyone before it.
However, the grand jury cannot issue a subpoena to compel the production of things before it without regard to the Fourth Amendment.
And I think by analogy, proposed Rule 41, new federal Rules of Criminal Procedure provides that applications can be made to magistrates to compel individuals to submit to identification procedures such as suggested here, such as voiceprints, fingerprints, etcetera.
However, in applying to a magistrate for such an order, the agency or the government applying to the magistrate must submit papers to show probable cause and reasonable grounds before the magistrate will issue such an order.
Now, grand juries, I think are subject generally to the jurisdiction of the District Courts and to say that the grand jury then would have greater subpoena power than the District Court, I think is to ignore the function of the grand jury we can compel for example the attendance of witnesses before any District Court in the United States by proper service of the subpoena.
But we could not compel that person in a -- to compel him to appear before the District Court in a case on trial, and I don’t think then could compel him to give voice identification, handwriting exemplars or whatever other physical characteristic be required.
I think that -- yes.
Justice William H. Rehnquist: Mr. Crowley, I take it, you wouldn’t say that probable cause is required for either a grand jury or a counsel if trying a case before a petty jury to follow a particular line of inquiry where the witness were all that is being sized ordinarily -- ordinary oral question and answer testimony.
Mr. John Powers Crowley: No, it is not probable cause but it must be questions that are relevant in material to the inquiry and there must be some showing of relevancy in materiality to the issues at trial before the court will allow counsel to question into an area that does not have immediate appearance of relevance.
Justice William H. Rehnquist: How about before a grand jury?
Simply oral questions and answers without any voiceprint problem involved?
Mr. John Powers Crowley: I think there Your Honor we are seeking solely to testimony and absent a Fifth Amendment question.
I don’t think we have the same principles we have involved here.
Justice William H. Rehnquist: Your argument turns on the difference between a voiceprint, an ordinary question and answer testimony.
Mr. John Powers Crowley: I think there is a substantial difference.
Justice William H. Rehnquist: Well, is it critical to the case you’re making here?
Mr. John Powers Crowley: Yes it is.
Justice Thurgood Marshall: Well assuming that the testimony before the grand jury is taken down on tape and then tested what would you do then?
Mr. John Powers Crowley: Then, there is another problem that maybe presented, there may be a violation of the Fourth Amendment if the grand jury, if it can be established, I think that we have here, that there was no reasonable grounds to bring this man before the grand jury and he was only called before the grand jury not asked any substantive questions in the regard to their investigation but merely as a (Voice Overlap) to obtain --
Justice Thurgood Marshall: Or do you have a right to challenge -- do you have a right challenge the reason a person is brought before the grand jury?
Mr. John Powers Crowley: Not the -- not eliminate, no you do not.
Once a grand jury subpoena calling for the attendance of a person before the grand jury which is all the subpoena is called for.
The government speaks in terms of that these subpoenas were narrowly drawn when calling for --
Justice Thurgood Marshall: My question for -- very simple, which I like an answer to it.
Mr. John Powers Crowley: I’m sorry Mr. Justice.
Justice Thurgood Marshall: Your subpoena before a grand jury, do you have any redress other than to appear?
Mr. John Powers Crowley: I do not believe, you do know.
Justice Thurgood Marshall: And when you appear, they ask you your name and address and that is taken down on tape and examined, what is your complaint?
Mr. John Powers Crowley: I do not believe that we would be faced here with the voiceprint type of identification because my understanding of the voiceprint that this would -- taking your voice down on tape would not give the necessary fidelity that would allow comparison to the other (Voice Overlap) --
Justice Thurgood Marshall: My assumption was it could be done.
What would your complaint be?
Mr. John Powers Crowley: I think the complaint would be similar to the complaint here that if the witness --
Justice Thurgood Marshall: You'd moved to strike the grand jury admitting to something?
Mr. John Powers Crowley: Yes, move the sub -- no I couldn’t -- I couldn’t do anything then Your Honor but if I were subsequently indicted and this evidence that I gave before the grand jury was sought to be used against me for the purposes of that identification rather than used against me as is common for the --
Justice Thurgood Marshall: But could you move to quash the indictment?
Mr. John Powers Crowley: I don’t think I could move to quash the indictment Your Honor.
I think I could move to suppress the evidence that has been obtained.
Justice Thurgood Marshall: So the only difference between this case and the hypothetical is that they asked him to go outside and do it.
Mr. John Powers Crowley: No Your Honor, it is not.
Justice Thurgood Marshall: What is the other difference?
Mr. John Powers Crowley: There is not.
We have a completely different situation here.
This man is being compelled under threat of imprisonment to give voice exemplars.
In the other case he is not being compelled under threat of imprisonment, he had been -- he just ordered before the grand jury, answered questions.
If he were to answer, just be called before --
Justice Thurgood Marshall: Well, in my case, if he didn’t answer the question, what would happen to him?
Mr. John Powers Crowley: In this -- in your case, he could take the Fifth Amendment and I don’t think there would be a -- I think it’ll be a perfectly valid claim of the Fifth Amendment.
Justice Thurgood Marshall: Well, if you had anything, if he didn’t answer the question he goes to jail.
Mr. John Powers Crowley: In this case he would not and you’re hypothetically correct.
Justice Thurgood Marshall: That’s right.
So I can’t see the difference you’ve -- I just don’t see the Fourth Amendment part here.
Mr. John Powers Crowley: Well, Your Honor I think under the Fourth Amendment that the physical identifying characteristics such as in Schmerber versus California recognized that the taking of the blood sample was protected under the Fourth Amendment.
If we take Dionisio, and Dionisio and 20 others are compelled before to appear before the grand jury -- properly compelled to appear before the grand jury and then compelled under threat of contempt to furnish blood, we have the Schmerber case before it.
They could similarly be called under the government’s theory that the government has prevailed in this case, dragnet subpoenas could constantly be used to investigate, to bring people before the grand jury to compel him to give blood, to compel him to give hair samples, to compel him to give semen, compel him to give voiceprints, the handwriting as the case in Mara.
And what you are then authorizing the grand jury to do is allow the government through the vehicle of the grand jury and in violation of Rule 41 of the federal rules of criminal procedure just to bypass the magistrate and not ask the magistrate for the order because there they must show a probable cause and it is recognized under the rule that that probable cause for that type of compulsive testimonial identification must be -- must -- that the compulsion for testimonial identification must be supported by probable cause.
But then to allow the grand jury to turn around and do the exactly the same thing, we submit is just as much protected by the Fourth Amendment as it would be protected in an application to a magistrate.
We submit that these -- for example, the voice exemplar or the person’s voice as is his handwriting which would be covered of course by counsel for the respondent Mara, are not those types of physical characteristics which are necessarily exposed to plain view, such as a person’s stature or his facial characteristic.
A person can choose to speak or not to speak and to do that requires a conscious act of will, something that he possesses within himself and requires his act of will to expose to the general public whereas his facial characteristics are exposed to the general public and to everyone concerned without any active will on his part unless he would have become a permit.
Justice Potter Stewart: How about it --
Mr. John Powers Crowley: Yes, Mr. Justice.
Justice Potter Stewart: What if the grand jury asked the witness to bring before to roll up his sleeves so they could see whether or not he had a tattoo on his upper arm?
Mr. John Powers Crowley: I think that’d be the physical characteristics as just as his face.
Justice Potter Stewart: So that would require an act of will.
Mr. John Powers Crowley: It would react in -- well, that would be such as the person putting on a coat to see if a coat fits it which has been approved by this Court but I think Your Honor that they go to things such as that go to a -- to a mere physical characteristics of a person.
For example --
Justice Potter Stewart: Could ask him to strip down to his shorts to see if he had something on his back or chest?
Mr. John Powers Crowley: This -- possibly be done, yes.
Because if a -- within a reasonable limitations of decency, I would suppose yes.
Justice Potter Stewart: Well, I said, “Strip down to his shorts.”
Mr. John Powers Crowley: Right.
But to [Laughter] just I think that if a man for example refute, when I talk about the act of will, if a man refused there to exhibit his arms to see if there were a tattoo, his coat or his shirt could be removed from him by someone else.
He could not by his own act completely hide from anyone else what appeared, the tattoo on his arm because others could take his coat off and the tattoo would then become visible.
But no act of anyone else could force a man to speak.
And I think that there is a valid distinction there.
Justice William H. Rehnquist: Well of course --
Mr. John Powers Crowley: Yes, Mr. Justice Rehnquist.
Justice William H. Rehnquist: -- or perhaps I’m pursuing into an area where neither you nor I at least, certainly I don’t know very much but certainly what one technique of narcosynthesis and psychotherapy is administration of pentathol or something like that to get a man to speak where he does not in fact want to and where his unconscious takes over.
If you rigorously pursue that distinction between will and not, I am not so sure which side of the thing that the speaking comes out of?
Mr. John Powers Crowley: Mr. Justice Rehnquist, I -- but it's certainly an area beyond my expertise but it is my understanding just generally that the speaking, there is a speaking of with the release of all inhibitions and to speak what is in the subconscious, to answer questions that are in this -- that the answers to which are in the subconscious and that the man in answering the question will not color his answer and theoretically will speak the truth to the question put.
I don’t know if those drugs administer -- I just don’t know if those drugs administered to a person overcome his entire will so that he speaks against his will.
I don’t believe they do.
I believe that the answer may not have the inhibitions given by the conscious mind but I -- and be free of that -- of those -- of that conscious mind and be dictated solely by the subconscious.
But I don’t think that the administration of the drugs themselves, a fortiori just brings forth a vocal response.
And I think that in -- if we were to take that position, if persons were dragnet and I think here the evidence shows that there was a dragnet similar to that in Davis that 20 people were called before the grand jury and that absolutely no showing whatsoever as to the reasonableness of their being called before the grand jury but I don’t think the grand jury has to show that but the reasonableness of the grand jury’s asking for their voice exemplars.
Chief Justice Warren E. Burger: Do you make any point to the fact that the grand jury had directed the exercise to be carried outside of the courtroom?
Mr. John Powers Crowley: No I don’t, no I don't Your Honor that that --
Chief Justice Warren E. Burger: He had refused while he was in the grand jury room and the refusal outside was merely a repetition, was it not?
Mr. John Powers Crowley: I think the record here is this as the Solicitor points out would indicate that the witness when he appeared before the grand jury refused to testify in the grand jury and at in -- he was never requested to give the exemplars in front of the grand jury per se.
But I think that there the Solicitor’s interpretation of the record here is reasonably correct.
And we did not raise that issue below.
The Seventh Circuit mentioned it in a footnote primarily in relation to the authority of the grand juries to appoint agents to hear a testimony but that is not raised in the District Court.
It was not raised in the Court of Appeals by the respondent Dionisio.
Justice Thurgood Marshall: So your whole point is if you talked to the grand jury, you’ll say anything and answer any question but you’ll not give an exemplar?
Mr. John Powers Crowley: No, no Your Honor.
Justice Thurgood Marshall: Before the grand jury?
Is that your point?
Mr. John Powers Crowley: No, no Your Honor.
That was not, that --
Justice Thurgood Marshall: So what is your --
Mr. John Powers Crowley: That is pure expectation.
Justice Thurgood Marshall: Well, then you please tell me what your point is?
Mr. John Powers Crowley: The point is this that the compelling of a witness before the grand jury is the position of this respondent, to give identifying characteristics which are normally not exposed to public view is protected by the Fourth Amendment.
Justice Thurgood Marshall: Exemplify and character is his talking?
Mr. John Powers Crowley: His voice, that is correct.
Justice Thurgood Marshall: His voice which he has been using in the grand jury.
Mr. John Powers Crowley: He has been using them in the grand jury but Justice, he has --
Justice Thurgood Marshall: He has been using it in the grand jury.
But he cannot --
Mr. John Powers Crowley: Mr. Justice Marshall --
Justice Thurgood Marshall: But he does not allow the grand jury to make an exemplar out of it.
Mr. John Powers Crowley: Just as he is bringing his --
Justice Thurgood Marshall: Is that your point?
Mr. John Powers Crowley: He is bringing his fingerprints into the grand jury also but without having placed the fingerprints on an inkpad and then transferred them to another pad for the purposes of expert comparison that no comparison can be made and the same is true with the voice and as I understand the procedure that to obtain voice exemplars for any comparison to be made and whether -- and we don’t raise the question here of the validity of such experiments.
But for the only, the only way that any comparison can be made is if one speaks into a specific type of device which records the vibrations and the tonal effects of the voice and that they can then be compared to other unknown samples.
But the mere talking before the grand jury would not allow the grand jury as I understand the procedure in voice exemplars to make a comparison to a unknown sample.
Justice Thurgood Marshall: (Inaudible).
Mr. John Powers Crowley: I don’t.
That is beyond my expertise.
Thank you very much.
Chief Justice Warren E. Burger: Thank you Mr. Crowley.
Mr. Lacovara you have four minutes, do you have anything further?
Rebuttal of Philip A. Lacovara
Mr. Philip A. Lacovara: Yes two points Mr. Chief Justice.
First of all on the question of what the government’s contentions are in this case, I should point out that we are not here pressing the notion that nothing that a grand jury might demand would be covered by the Fourth Amendment.
We do not have a case where the grand jury was demanding that a person strip down to his shorts or beyond, do not demand -- have a grand jury demand for semen, not have a grand jury demand that someone bring in a gun from his home.
We simply have a grand jury demand that a witness properly before the grand jury make available to the grand jury those identifying physical characteristics as to which there is no reasonable expectation of privacy, here voice and in the Mara case, handwriting.
That’s far as we are going in these cases, I think that’s as far as we need to go.
Justice Thurgood Marshall: And that can be done in the grand jury room?
Mr. Philip A. Lacovara: Yes sir.
Justice Thurgood Marshall: Or outside the grand jury room depending on whether or not the witness wants a lawyer present.
Mr. Philip A. Lacovara: Yes sir.
That’s the limit of all we’ve urged through all the lower courts and here.
Secondly, on the question of the so-called dragnet while it's not clear that a grand jury has to believe that every person that it calls before it has relevant evidence, in fact I think the laws to the contrary.
Here the record will show that each of the witnesses who was called and was asked for an exemplar was asked to read a different transcript, a different grand jury exhibit.
So we don’t have even the case of 20 different people being asked to read the same transcript to see which of those 20 might have been the voice intercepted in giving that transcript.
Also, related to that is the reference that my counsel have -- for the respondent has mentioned about the subsequent indictment return by this grand jury in the subsequent suppression, 20 of the 21 people who were called before the grand jury, all but Mr. Dionisio have been indicted.
And that also, I think under cuts of dragnet of possibility on the Gilbert problem, we should point out that the District Judge that suppressed the evidence here did not rule that there was no probable cause or that the search, the interceptions were unconstitutional.
In fact, the sufficiency of the indictments has been upheld.
The evidence, the interceptions have been suppressed because the District Judge believed, the Justice Department followed improper internal procedures in securing approval for applying to the court for the interceptions.
That issue is before this Court in the Piscano case, its number 71-1410, the Second Circuit again speaking through Judge Friendly has explicitly upheld the validity of the procedure that the Department followed in applying for this wiretaps.
The Eight Circuit has apparently also upheld it.
The issue is pending en banc in the Third and the Fifth Circuits and I believe has been argued in the Fourth and the Ninth but essentially the presentation here is that the evidence that was to be used as the basis for the exemplars has not been suppressed on any constitutional or lack of probable cost grounds but simply on what the District Judge thought was the improper internal procedure in applying for the court orders.
Justice Byron R. White: And in that sense violating the statute?
Mr. Philip A. Lacovara: In that sense as the District Courts found violate the statute.
Justice Byron R. White: Suppose that should ultimately prevail, what happens to this case?
Mr. Philip A. Lacovara: I think counsel’s argument is a very reasonable one that if the District Court is ultimately sustained in suppressing the evidence of the 25, 15 would preclude the use by the government of this evidence before the grand jury.
Chief Justice Warren E. Burger: Thank you Mr. Lacovara.
The case is submitted.