In the Matter of Grand Jury Proceedings. UNITED STATES of America, Plaintiff-Appellee, v. Linda DINSIO, Defendant-Appellant.
No. 72-2413
United States Court of Appeals, Ninth Circuit
Sept. 15, 1972
Rehearing Denied Jan. 11, 1973
485 F.2d 1392
We believe that the warrant, under a nontechnical reading, see United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), authorized what the officers did here. The principal question appears to us to be whether or not the information supplied to the Commissiоner was adequate to support the breadth of the warrant. We conclude that the affidavit was sufficient in this respect.
While the affidavit supplied no information relating directly to the new Cadillac where the sawed-off shotgun was found, it did supply ample facts to establish probable cause to believе a crime was being committed. The Hazard Police Chief swore:
“[T]he facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: I, the Chief of Police of Hazard, Kentucky, on October 13, 1970, at approximately 9:30 P.M., while on official duty attempting to execute an arrest warrant, together with Police Officers Robert G. Byrgo, Edgar Reynolds, Jr., and Captain George R. Smith, saw in the house situated on the Pearl Combs premises, a large number of firearms and ammunition some of which firearms were covered with blankets and sheets, some in uncovered stacks, and some sitting in corners, behind doors, and along the walls of said house. I personally know that Pearl Combs is a convicted felon. I make this affidavit at 2:10 A.M., on October 14, 1970.”
The record indicates that the Cadillac was on “the premises” situated closely enough to the house to be within legal concept of curtilage. See Fine v. United States, 207 F.2d 324 (6th Cir. 1953); United States v. Potts, 297 F.2d 68 (6th Cir. 1961). The record also indicates thаt this house was located in a remote area. The arsenal found therein could hardly have been brought there by any means other than automobile. Undеr these circumstances we feel it was permissible for the Commissioner to infer from the facts before him probable cause to believe that vehicles on the premises contained similar weapons to those found in the house.
The District Judge appears to have decided this case on the strеngth of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). It appears to us, however, that a later case, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1969), sanctions the police station inventory which was conducted here—particularly since in fact the officers who made the search had secured a search warrant which by its terms authorized it.
The judgment of the District Court is reversed and the case is remanded for furthеr proceedings.
Michael D. Nasatir (argued), of Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for defendant-appellant.
John F. Walter, Asst. U. S. Atty. (argued), Eric A. Nobles, Andrew R.
Before CHAMBERS, HUFSTEDLER, and WALLACE, Circuit Judges.
HUFSTEDLER, Circuit Judge:
Dinsio appeals from a contempt order issued when she refused to comply with the district court‘s order to furnish finger and palm print exemplars to a federal grand jury. In refusing to submit to the grand jury‘s request for thе exemplars and to the court‘s order, she relied on the Fourth, Fifth and Sixth Amendments. We reverse the order because the procedures anteceding the contempt order deprived her of due process of law secured by the Fifth Amendment. We do not reach the other constitutional issues that she raisеs on appeal.
No evidentiary hearing was held. To support its motion to compel Dinsio to produce the exemplars, the United States attorney, representing the grand jury, submitted to the court in camera an affidavit of an FBI agent. All requests by Dinsio‘s counsel to inspect the affidavit or to examine the affiant werе denied. The court indicated that, based upon a reading of the affidavit, the grand jury‘s request for the exemplars was “reasonable.” No other evidenсe was offered.
The statutory basis of an order compelling the witness to comply with the grand jury‘s request is
“Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other informаtion, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such
information. . . .” (Emphasis added.)
Under Harris v. United States (1965) 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240, the “normal” procedure for compelling the witness to comply with a grand jury‘s demand for information is set forth by Rule 42(b) of the Federal Rules of Criminal Procedure.1 “Rule 42(b) prescribes the ‘procedural regularity’ for all contempts in the federal regime except those unusual situations envisioned by Rule 42(a) where instant action is necessаry to protect the judicial institution itself.” (382 U.S. at 167, 86 S.Ct. at 355-356) (Footnote omitted.)
The Due Process Clause requires that the rudimentary concepts of fair play reflected in Rule 42(b) be appliеd to afford Dinsio a real opportunity to meet the just-cause criterion of Section 1826(a). As applied to this case, these principles mean that the affidavit must be disclosed to Dinsio and her counsel. (Cf. Dennis v. United States (1966) 384 U.S. 855, 873, 86 S.Ct. 1840, 16 L.Ed.2d 973; Mara v. United States (7th Cir. 1971) 454 F.2d 580, 582, cert. granted United States v. Mara (1972), 406 U.S. 956, 92 S.Ct. 2058, 32 L.Ed.2d 343.) The grand jury must make a foundational showing that the exemplars have some relevance to the investigation that it is conducting. Dinsio cannot be expected to demonstrate just cause in a factual vacuum. She cannot be relegated to the status of “a blind man striking at an invisible foe.” (Chernekoff v. United States (9th Cir. 1955) 219 F.2d 721, 724.) She is entitled to an uninhibited adversary hearing in which she can develоp her proof that she has just cause to refuse the grand jury‘s demand. (Cf. Alderman v. United States (1969) 394 U.S. 165, 183-184, 89 S.Ct. 961, 22 L.Ed.2d 176, rehearing denied 394 U.S. 939, 89 S.Ct. 1177, 22 L.Ed.2d 475; Dennis v. United States, supra, 384 U.S. at 873-875, 86 S.Ct. 1840.)
Nothing in the record before us provides аny basis upon which we could conclude that these disclosures could or would impermissibly compromise the secrecy of the grand jury proceedings. Moreover, modest breaches of grand jury secrecy may well be required when nondisclosure would defeat fundamental constitutional rights, including the right to due prоcess of law. (Cf. Bursey v. United States (9th Cir. 1972) 466 F.2d 1059; Mara v. United States, supra, 454 F.2d at 583-584.)
Reversed and remanded for further proceedings consistent with the views herein expressed.
The mandate shall issue forthwith.
CHAMBERS, Circuit Judge (concurring):
I concur in holding that before a commitment order should be made, the Government must make a showing that the witness’ failure to comply with the Grand Jury command to give finger and palm prints was without just cause. This in my view would not require the government to disclose its whole case, but would require enough to show that the proceeding was not pure fishing or harassment. Here, the Government