876 F. Supp. 2d 445
S.D.N.Y.2012Background
- A group of defendants faced grand jury subpoenas requiring disclosure of tattoos or scars.
- The government planned to photograph the defendants’ tattoos/scars outside the grand jury, then present them to the grand jury.
- Defendants moved to quash the subpoenas; court granted a temporary stay and later ordered photographed, sealed pending ruling.
- The government asserted ongoing grand jury investigations into violent activity connected to a racketeering enterprise.
- The government argued tattoos/scars could aid identification and further ongoing investigations; defendants argued Fourth Amendment protections apply.
- Judge denied the motions to quash and vacated the sealing order, finding the subpoenas reasonable and properly issued.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the grand jury subpoenas legitimate under the scope of investigation? | Government: investigations ongoing; subpoenas proper to further those inquiries. | Defendants: subpoenas are irregular and mainly for trial preparation. | Subpoenas properly issued; legitimate grand jury purpose maintained. |
| Do the tattoos/scars subpoenas violate the Fourth Amendment? | Displaying tattoos/scars is not a prohibited search when areas are not normally exposed. | Subpoenas invade privacy; constitute an unreasonable bodily intrusion absent probable cause. | Search is reasonable under Fourth Amendment due to ongoing investigations and relevance to identify offenders. |
| Is the intrusion limited and properly conducted to avoid undue rights violations? | Subpoenas limit display to arms, legs, and torso; conducted privately with counsel present. | Intrusive and broader exposure of body parts violates privacy. | Intrusion appropriately limited; privacy interests balanced against investigative needs. |
Key Cases Cited
- United States v. Calandra, 414 U.S. 338 (1974) (grand jury power broad; legitimate scope)
- United States v. R. Enterprises, Inc., 498 U.S. 292 (1991) (presumption of reasonableness; burden on recipient)
- United States v. Dionisio, 410 U.S. 1 (1973) (grand jury subpoenas may involve searches; not all are seizures)
- Simels, 767 F.2d 26 (2d Cir. 1985) (contrast post-indictment subpoenas with grand jury subpoenas)
- United States v. Jones, 129 F.3d 718 (2d Cir. 1997) (post-indictment investigative authority; limits on improper purposes)
- United States v. Ohle, 678 F. Supp.2d 215 (S.D.N.Y. 2010) (dominant purpose proper; assess irregularity against ongoing investigations)
- United States v. Doe, 457 F.2d 895 (2d Cir. 1972) (possible Fourth Amendment concerns for unexposed body parts)