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UNITED STATES v. BAILEY

June 15, 1971

UNITED STATES OF AMERICA
v.
MELVIN BAILEY, ALSO KNOWN AS "LEFTY" ET AL.



The opinion of the court was delivered by: Will, District Judge.

OPINION

The United States has petitioned for an order directing certain defendants in this criminal action to furnish examplars of their handwriting to agents of the Federal Bureau of Investigation. The issue presented by this motion is whether the order would, if granted, violate those defendants' Fourth Amendment rights to be free from unreasonable searches and seizures.

The indictment involved in this action contains 132 counts against a total of 23 defendants. Summarized, the indictment charges that all 23 defendants conspired to and that certain of them in fact did defraud the United States of America through their involvement in a program funded by the Office of Economic Opportunity to provide basic education and employment opportunities for approximately 800 members of two Chicago street gangs. The indictment's first count is a conspiracy count charging all 23 with a violation of 18 U.S.C. § 371. The remaining 131 counts charge individual defendants with violations of 18 U.S.C. § 1001 and 42 U.S.C. § 2703. These counts primarily concern the alleged making of fraudulent written statements and the forging of signatures. The defendants involved in this petition, Herman Holmes, Lee Jackson and Andrew McChristian, are not charged in any of counts 2 through 132 but are named as defendants solely in the conspiracy count. According to the Government's petition, the sought examplars are essential and necessary to its case and will be used as a standard of comparison in order to determine whether or not each of the defendants is the author of certain writings.

As a point of departure, we note that the Fourth Amendment, by its terms and by consistent judicial interpretation, does not prohibit all searches and seizures but only those which are unreasonable. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). A determination of whether a search or seizure is unreasonable depends upon the particular facts and circumstances of each case, with an exact formula to determine reasonableness being impossible to formulate. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Smith v. United States, 103 U.S.App.D.C. 48, 254 F.2d 751 (1958), cert. denied, 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552 (1958). The narrow issues presented for determination by the Government's petition are (1) whether a compelled handwriting examplar comes within the search and seizure provisions of the Fourth Amendment and, if the answer to this question is in the affirmative, (2) whether the ordering of the exemplars would be an unreasonable search and seizure.

I

The issue of whether the Constitution prohibits the Government from compelling an individual to produce handwriting exemplars or from using such forced exemplars in a criminal trial has come to the fore in recent years. Decisions of the United States Supreme Court clearly indicate that the Fifth Amendment does not prohibit the compelling or using of such exemplars and that handwriting is not a personal communication of a defendant but rather "an identifying physical characteristic." United States v. Wade, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); cf., Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

As to the relationship of compelled handwriting exemplars to the Fourth Amendment, all doubts as to the application of this Amendment to physical evidence seized from an individual which is merely an element of his physical characteristics were resolved by the Supreme Court in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). In that case, the Supreme Court established that law enforcement officials may not compel the production of physical evidence, absent a showing of the reasonableness of the seizure, even if that physical evidence is an element of an individual's physical characteristics such as fingerprint evidence. The Court stated:

    "* * * (W)e find no merit in the suggestion * *
  * that fingerprint evidence, because of its
  trustworthiness, is not subject to the
  proscriptions of the Fourth and Fourteenth
  Amendments.[2] Our decisions recognize no
  exception to the rule that illegally seized
  evidence is inadmissible at trial, however
  relevant and trustworthy the seized evidence may
  be as an item of proof. The exclusionary rule was
  fashioned as a sanction to redress and deter
  overreaching governmental conduct prohibited by
  the Fourth Amendment. To make an exception for
  illegally seized evidence which is trustworthy
  would fatally undermine these purposes.
  [2] Fingerprint evidence would seem no more
  `trustworthy' than other types of evidence
  — such as guns, narcotics, gambling equipment —
  which are routinely excluded if illegally
  obtained." 394 U.S. at 723-724, 89 S.Ct. at 1396.

In a similar vein, the Court of Appeals for the Seventh Circuit, in ruling upon the reasonableness of a grand jury subpoena requiring certain individuals to provide voice exemplars, concluded that "(c)ompelling a person to furnish an exemplar of his voice is as much within the scope of the fourth amendment as is compelling him to produce his books and papers." Dionisio v. United States, 442 F.2d 276, 279 (7th Cir. 1971). As we can see no distinction between fingerprints, voice exemplars, and handwriting exemplars, and because the Government does not contend to the contrary, we conclude that the ordering of handwriting exemplars is subject to the Fourth Amendment's prohibition against unreasonable searches and seizures.

II

Our focus of inquiry then narrows to the issue of whether the proposed seizure of the handwriting exemplars is a reasonable seizure. If the conclusion is reached that such compelling of exemplars would be an unreasonable seizure, this Court may not compel their production because it is clear that the Fourth Amendment's protection against unreasonable search and seizure may be violated by a court order to produce evidence as well as by the more typical search conducted by police officials. Hill v. Philpott, 445 F.2d 144 (7th Cir. 1971). In any event, this Court would not compel production of exemplars knowing that such production would violate the Fourth Amendment because that Amendment is designed not merely to redress the prohibited intrusion, but to prevent that intrusion prior to its occurrence. Chimel v. California, supra, 395 U.S. 752, 766 n. 12, 89 S.Ct. 2034.

We agree with the Government's observation that Dionisio v. United States, supra, and Davis v. Mississippi, supra, are not precise precedent because the determination we must make herein of the reasonableness of the seizure can only be decided in the concrete factual context of each individual case. Sibron v. State of New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). The Government in this proceeding makes no argument to indicate why the type of seizure that it is seeking is reasonable. Rather, it indicates simply that the Fourth Amendment is satisfied with a showing of probable cause and that this requirement for probable cause has been fully met by the return of the indictment herein.

The strict "probable cause" test would, however, appear not to be absolutely equivalent to a "reasonableness" test, although it is not entirely clear precisely at what points in their parameters these two tests diverge in scope or effect. In Dionisio, where, as here, the Court was dealing with a situation where no warrants would be involved, both the Government and the appellants argued that the test to determine the Fourth Amendment validity of grand jury subpoenas for voice exemplars was one of probable cause. The Seventh Circuit disagreed and stated that the Fourth Amendment not only prohibits the issuance of warrants without probable cause, "but also prohibits searches and seizures which are unreasonable." The Court thus apparently manifested its belief that the test of "probable cause" required for the issuance of warrants may be different from the test of "reasonableness" in a situation where no warrant is involved. It is possible, however, that these two yardsticks for measuring the constitutionality of a search and seizure are in fact substantively identical and are merely designed to apply in the differing situations of warranted versus warrantless searches. This conclusion is suggested by the Supreme Court's statement that it "has insisted upon probable ...


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