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UNITED STATES, v. BAILEY

October 22, 1971

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MELVIN BAILEY ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

The initial issues presented by defendants' motions to suppress handwriting exemplars given by them to the grand jury that brought the instant indictment against them are (1) did the decision of the United States Court of Appeals for the Seventh Circuit in In Re Dionisio, 442 F.2d 276 (7th Cir. 1971) announce a new rule of law as opposed merely to applying an old rule of law to new factual circumstances and, if the answer to this question is affirmative, (2) should Dionisio be applied retroactively to actions taken by grand juries prior to the date of decision. If the answer to the latter question is negative, no other issues relating to the Fourth Amendment need be considered.

Certain of the petitioning defendants are charged with the substantive offense of defrauding the United States government, in violation of 18 U.S.C. § 1001 and 42 U.S.C. § 2703, by the making of certain allegedly fraudulent written statements and forged instruments. In addition, all defendants are charged with conspiring in this way to defraud the United States government in violation of 18 U.S.C. § 371. Each of the moving defendants, under varying circumstances, provided the Federal Bureau of Investigation, acting either as an investigatory agency or as the agent of the grand jury, with the handwriting exemplars he seeks here to have suppressed. All exemplars were provided in the period from September 16, 1970, through March 2, 1971. Some of the defendants provided their exemplars only after being ordered to do so by the Chief Judge and another District Judge of this Court, who granted the motions of the government for orders directing then unindicted defendants to provide handwriting exemplars for the grand jury. On March 25, 1971, the Seventh Circuit decided Dionisio, holding that, before a grand jury may compel a witness and possible defendant to provide it with voice exemplars, some showing of the reasonableness of this type of search and seizure must be made to satisfy the requirements of the Fourth Amendment.

I

The initial issue which arises is whether or not Dionisio is a newly enunciated constitutional standard. If it is, this Court is required to decide whether it should be applied prospectively only or applied to all similar types of seizures, irrespective of the date of the seizure. If Dionisio is nothing more than another application to a new factual situation of an existing constitutional standard, on the other hand, then we will not be presented with the issue of retroactivity or lack thereof, for it will be the older principle which we would be enforcing and no question of retroactivity would be involved. A review of Dionisio and prior case law, therefore, is mandatory.

The most significant pre-Dionisio decision to which we must look is Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). In that case, the police detained and fingerprinted a large number of Negro youths in the course of investigating an alleged rape when the assailant was described only as a Negro youth. The Supreme Court invalidated a conviction derived from the use of the fingerprints so obtained, ruling that such an investigatory technique constitutes an unreasonable seizure under the Fourth Amendment. Thus, after Davis, it was patently clear to all law enforcement officials that, without any showing of probable cause, they could not effect a dragnet of all people whom they suspected might have violated the law to obtain exemplars of their physical characteristics.*fn1 Based primarily on this decision, the Seventh Circuit concluded in Dionisio that Davis applies with the same force to grand jury investigations as it does to police investigations.

The defendants contend that Davis plus older Supreme Court cases dealing with the relationship of the grand jury and the Fourth Amendment*fn2 together render perfectly clear the proposition that whatever the police may not do because of the interdictions of the Fourth Amendment, neither may the grand jury. Thus, they contend, Dionisio added nothing to the law and no need exists, therefore, for this Court to determine whether or not it applies retroactively.

We do not agree with the defendants' conclusion. We believe, as did the Seventh Circuit, that the conclusion reached in Dionisio is inescapable. But that does not mean that the decision was not a significant step forward in clarifying the application of the Fourth Amendment to searches and seizures by grand juries. The Supreme Court in Davis concluded that the police may not round up all possible suspects on mere suspicion and compel them to provide exemplars of their physical characteristics in the hope that the exemplars will provide incriminating evidence. The Seventh Circuit concluded that the same restrictions apply to a grand jury. It is obvious, however, that Davis, prior to Dionisio, applied only to police actions. Whether or not those same restrictions applied to grand juries, which are not wholly identifiable with any one of the three traditional branches of government, In Re April 1956 Term Grand Jury, 239 F.2d 263 (7th Cir. 1956), as opposed to the police or the F.B.I., which clearly have no connections with the judiciary, remained to be resolved in this Circuit until Dionisio. Although Dianisio did not reverse a prior rule which allowed grand juries to extract handwriting exemplars notwithstanding the Fourth Amendment, it is nevertheless clear that this decision did clarify the application of the Fourth Amendment and Davis to grand juries, placing them on the same plane as any other public investigative body.

The Dionisio opinion itself reflects that the Seventh Circuit was well aware it was announcing a new principle and rejecting a contrary and prior accepted rule in at least one other Circuit. The Court stated: "It may be argued that the fourth amendment applies only to overbroad grand jury subpoenas calling for documentary evidence." 442 F.2d at 279. In support of this observation, the Court cited In Re Dymo Industries, Inc., 300 F. Supp. 532 (N.D.Cal. 1969), aff'd, United States v. Dymo Industries, Inc., 418 F.2d 500 (9th Cir. 1969), cert. denied, 397 U.S. 937, 90 S.Ct. 946, 25 L.Ed.2d 116 (1970).*fn3 In Dymo, the District Court and the Ninth Circuit squarely rejected the contention that seizures made by a grand jury could be constitutionally accomplished only upon a showing of probable cause and concluded that the Fourth Amendment's only application to grand juries deals with overbroad documentary subpoenas. This view of the relationship of the Fourth Amendment to grand juries was rejected by the Seventh Circuit in Dionisio.

Based upon the foregoing, we conclude that the Seventh Circuit announced a new constitutional principle in Dionisio that equated the grand jury to the police so far as the Fourth Amendment is concerned. Only after this rule was announced, did the proscriptions of Davis against dragnet seizures by police become equally binding upon grand juries in this Circuit. We conclude, therefore, that we are compelled to determine the date from which Dionisio's mandate is to be applied. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

We have already indicated our view that Dionisio is a logical extension of Davis. We believe it also to be a necessary extension if Davis is not to become substantially meaningless. Under the rule of Davis, police may not sweep the streets to obtain evidence of a crime because to do so

  * * * would subject unlimited numbers of innocent
  persons to the harassment and ignominy incident
  to involuntary detention. Nothing is more clear
  than that the Fourth Amendment was meant to
  prevent wholesale intrusions upon the personal
  security of our citizenry * * *. Davis v.
  Mississippi, 394 U.S. at 726-727, 89 S.Ct. at
  1397.

If Dionisio is not valid, all that needs to be done to avoid the interdictions of Davis is to empanel a grand jury and have it direct law enforcement officers to round up all possible suspects and compel each of them to provide the appropriate exemplars. It would thus be possible to do indirectly that which is prohibited from being done directly. The dragnet, the harassment and ignominy would be no less offensive and violative of the personal security of our citizens because it was being done by the police under grand jury instructions than if done as in Davis.

There is yet another reason, perhaps more compelling than the one above, for concluding that the teachings of Davis must apply to grand juries. Grand juries have traditionally played two roles in Anglo-American jurisprudence, with the two functions taking the grand jury conceptually in opposite directions. On the one hand, the investigation of possible offenses is clearly a prime function of the grand jury. United States v. Neff, 212 F.2d 297 (3rd Cir. 1954); United States v. Cleary, 265 F.2d 459 (2d Cir. 1959), cert. denied, 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d 1548 (1959). On the other hand, the grand jury has traditionally been considered to be the primary bulwark of the innocent against hasty, malicious and ...


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