The opinion of the court was delivered by: Robson, Chief Judge.
MEMORANDUM AND ORDER ON GOVERNMENT'S PETITION TO COMPEL VOICE
On behalf of the February 1971 Special Grand Jury, the United
States Attorney petitions this court for orders directing certain
witnesses to furnish exemplars of their voices. For the reasons
stated below, this court is of the opinion the petitions should
The February 1971 Special Grand Jury is presently investigating
possible violations of federal criminal statutes. Each witness
who is the subject of these petitions has been called before the
grand jury and has been fully advised that he or she is a
potential defendant in its investigation. The grand jury has
requested that each of these witnesses furnish voice exemplars,
and each witness has refused to do so. The grand jury states that
it needs these voice exemplars as a standard of comparison in
order to identify voices intercepted by agents of the Federal
Bureau of Investigation pursuant to orders entered by this court
in 70 C 2510 and 70 C 2601. The witnesses here contend that to
compel them to furnish such voice exemplars would violate their
constitutional rights under the Fourth and Fifth Amendments. This
court does not agree.
The witnesses are lawfully before the grand jury pursuant to
subpoena. The Fourth Amendment prohibition against unreasonable
search and seizure applies only where identifying physical
characteristics, such as fingerprints, are obtained as a result
of unlawful detention of a suspect, or when an intrusion into the
body, such as a blood test, is undertaken without a warrant,
absent an emergency situation. E.g., Davis v. Mississippi,
394 U.S. 721, 724-728, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969);
Schmerber v. California, 384 U.S. 757, 770-771, 86 S.Ct. 1826, 16
L.Ed.2d 908 (1966). The voice exemplars sought clearly do not
fall within the scope of an illegal search and seizure, and to
compel these witnesses to furnish such evidence of physical
characteristics in order to assist the grand jury does not
violate their rights under the Fourth Amendment.
The Fifth Amendment privilege against self-incrimination
protects a suspect or accused from being compelled to testify
against himself or otherwise provide the government with evidence
of a testimonial or communicative nature. Schmerber v.
California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908
(1966). Voice exemplars, just as handwriting exemplars or
fingerprints, do not have testimonial or communicative qualities
within the meaning of the Fifth Amendment. Schmerber v.
California, supra, at 764, 86 S.Ct. 1826. The Supreme Court has
ruled that to compel a defendant to repeat certain words
allegedly used in the perpetration of a crime for identification
purposes does not violate his Fifth Amendment rights. United
States v. Wade, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 18 L.Ed.2d
1149 (1967). See also Higgins v. Wainwright, 424 F.2d 177, 178
(5th Cir. 1970); Schmidt v. United States, 380 F.2d 22, 23 (5th
Cir. 1967), cert. den. 390 U.S. 908, 88 S.Ct. 830, 19 L.Ed.2d 876
(1968). This court therefore concludes that the orders sought do
not violate these witnesses' rights against self-incrimination.
Several of the witnesses have raised objections on the grounds
that voiceprints obtained from the voice exemplars in question
would not be admissible evidence at trial. These objections are
premature. The sole question before this court is whether such
exemplars may be involuntarily obtained for use by the grand jury
to assist them in investigating possible violations of federal
law. A witness may not impede the collection of evidence by a
grand jury, even if the issues he seeks to raise could later be
successfully litigated by an indicted defendant. Whatever
remedies are available to these witnesses, should they be
indicted, with respect to allegedly tainted or inadmissible
evidence do not affect the right of the grand jury to collect the
evidence it now seeks. Cf., United States ex rel. Rosado v.
Flood, 394 F.2d 139, 142 (2nd Cir. 1968).
The petitions requested by the United States Attorney on behalf
of the September 1971 Special Grand Jury will therefore be
granted, and orders will be entered accordingly.
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