OPINION OF THE COURT
Our primary task upon this appeal is to determine whether either the Suffolk County Financial Disclosure Law (the Disclosure Law),
“(1) To insure to the citizens of Suffolk County a county government that is administered free from any conflicts of interest by employees who affect the integrity of the county government;
“(2) To recognize that the citizens of Suffolk County are entitled to a high standard of candor from their public servants;
“(3) To provide a means by which those County employees may disclose those aspects of their business and personal affairs, which, even though they may not relate to the specific duties of the county employee, that [sic] reflect upon the integrity of the county government;
“(4) To discourage and detect corruption and the appearance of corruption;
“(5) To instill in the public a sense of confidence and integrity and partiality [sic] of its public servants.”
In furtherance of this policy, the law requires all employees of the county who are elected county officials, department heads, chief deputy department heads or “exempt personnel graded 32 and above” (§4, subd [1]) to file annually with the Board of Public Disclosure
The law requires the board to “review all filed statements to determine whether a conflict of interest or impropriety exists between the public duties of the employee and his private activities” (Local Laws, 1978, No. 12 of Suffolk County, § 6, subd [c]). It is silent with respect to when or how often this review is to occur, or what kind of investigation, if any, is to precede the making of the board’s determination.
The Disclosure Law further provides that an employee’s continued refusal to file a statement or his filing of a fraudulent statement “shall be deemed a misconduct of office” and shall be grounds for dismissal or removal (§ 10, subd [a]). In addition, it contains the following provision (§ 10, subd [b]) with respect to criminal penalties. “Criminal. If any employee files a statement with the intent to deceive, intentionally misrepresent, or to otherwise fraudulently answer any question set forth in the statement, or to intentionally withhold any information asked or demanded in the statement, and if such deception or misrepresentation is found to be both intentional and material as defined in section 4(7) herein, then such employee shall, upon conviction, be guilty of a Class B Misdemeanor, punishable by a fine of not more than Five Hundred ($500.00) Dollars or imprisonment of not more than three (3) months or both. In all criminal proceedings, the Board, through a designated representative, shall act as the complaining witness.”
The law also contains confidentiality provisions which, by their terms, severely restrict disclosure of the financial statement of any employee who does not consent thereto. Thus, section 3 of the law states the following as one of its four “legislative findings”: “(4) All information obtained by the Board as hereinafter created, and not made public pursuant to this law, shall be considered confidential and any disclosure shall be an unwarranted invasion of
The law also provides that it shall be a “violation of the law” for a board member or other person to disclose any information contained on a disclosure statement “except as authorized by this local law.” The violation of the law is
The Disclosure Law was drawn into this case in the following way. Early in 1981, a Grand Jury impaneled in Suffolk County commenced an investigation into the facts and circumstances surrounding transactions between certain vendors and consultants and the Suffolk County Department of Labor. On or about May 11, 1981, the Grand Jury called as a witness respondent Lou V. Tempera, the commissioner of that department and, as such, its chief executive officer. Tempera testified without having waived immunity. By so testifying, he automatically received “transactional” immunity with respect to the subjects of his responsive testimony, but not with respect to the crimes of perjury and contempt (CPL 50.10, subd 1; 190.40, subd 2). On May 21, 1981, as a result of his testimony before it, the Grand Jury indicted Tempera on 11 counts of perjury in the first degree. The indictment alleged, among other things, that Tempera had given perjurious testimony before the Grand Jury in denying that he had ever received “cash money” from anyone employed by having an interest in, or representing an entity doing business with the Department of Labor or from any vendor or consultant with whom he had personally negotiated a contract between the vendor or consultant and the department. It also alleged that Tempera had committed perjury when he had denied that he had ever received “cash money” in excess of $10,000 in connection with the awarding of any “summer program” administered by the Suffolk County Department of Labor. Five other counts alleged Tempera’s perjurious denial of his receipt of certain cash moneys “[i]n or about and between 1972 and 1978”.
About one week after the Grand Jury had indicted Tempera for perjury, a subpoena duces tecum was served on its behalf upon the Suffolk County Board of Public Disclosure.
Over the People’s opposition, the County Court granted respondents’ consolidated motions to quash (
In its decision, the County Court first addressed, and rejected, the Fifth Amendment claim which, it stated, had been raised by both respondents. The essence of the County Court’s holding on this point (
However, the County Court (p 599) found merit in Tempera’s contention that the board’s compliance with the subpoena would violate “his Fourth Amendment protections against unreasonable searches and seizures” and quashed the subpoena on that ground.
Because the County Court had quashed the subpoena under the Fourth Amendment and the “public interest privilege”, it found it “unnecessary to reach [Tempera’s] remaining contention” without identifying the nature of that contention.
i.
Before turning to the claims of privilege advanced in this case, we first consider Tempera’s contention that the subpoena in question was improperly issued for the “sole” or “dominant” purpose of preparing his pending perjury indictment for trial (see Matter of Hynes v Lerner,
From the face of the perjury indictment, it is apparent that the Grand Jury has received evidence which, in its view, establishes prima facie that Tempera has received cash from persons who had had dealings with the Suffolk County Department of Labor. The financial disclosure statement which Tempera was required to complete annually under the Disclosure Law requests, among other things, that the public official, under oath, “list *** all sources of income for you and your spouse for the current
Our conclusion in this regard is supported in some respects by Judge Seidell’s decision denying Tempera’s motion to quash a postindictment Grand Jury subpoena duces tecum which sought production of certain of his bank records. That decision states as follows, in pertinent part: “Having reviewed the transcript of the Grand Jury minutes provided by the defense counsel and portions of the transcript of the Grand Jury proceedings forwarded by the District Attorney’s office and after an In Camera hearing the Court finds that this Grand Jury * * * is * * * investigating other possible offenses in connection with certain contracts between vendors and the Suffolk County Department of Labor.”
Finally, our own review of the minutes of the Grand Jury testimony taken before the issuance of the subpoena in question convinces us that the subpoena was not issued for an improper purpose.
Concededly, the subpoenaed statements might be of potential use to the People in establishing some of their allegations that Tempera committed perjury in his testimony before the Grand Jury. “However, where the purpose of the Grand Jury investigation is directed to other offenses, its scope should not be circumscribed and any collateral or incidental evidence from bona fide inquiries may be used by the prosecutor against the defendant at the trial of the pending indictment” (Matter of Hynes v Lerner,
Accordingly, absent any legally cognizable privilege, which may be asserted on behalf of Tempera or the board (see Matter of New York State Dept. of Taxation & Fin. v New York State Dept. of Law, Statewide Organized Crime Task Force,
n.
In our examination of the privileges asserted in this case, we turn first to the contention raised by both respondents at County Court, but only in the brief of the respondent board in this court, that the Disclosure Law, in and of itself, provides a proper basis for quashing the subpoena in question. As we read its decision, this issue was addressed by the County Court only to the extent that it held that the Disclosure Law was intended to bar the disclosure of the documents in question to the Grand Jury and that that law gave Tempera certain expectations which not only operated to trigger the protection of the Fourth Amendment, but also provided the basis for the application of the “public interest” privilege in his favor. We consider these holdings later. However, the County Court left unanswered the question whether the Disclosure Law, standing alone, is
Although the Disclosure Law makes no reference to the Grand Jury or its proceedings, the County Court concluded that that law was intended to prohibit disclosure of financial statements pursuant to Grand Jury subpoena primarily because, while carefully spelling out the circumstances and procedure under which disclosure would be permissible, the law contained no express exception permitting disclosure in connection with judicial proceedings like those of the Grand Jury.
Preliminarily, we observe that we are not convinced beyond doubt that the Disclosure Law is properly construed as expressing the intent of the County Legislature to prohibit compliance with a Grand Jury subpoena seeking financial disclosure statements filed by county employees as part of an investigation into official corruption. The Grand Jury is possessed of investigative powers that are unique in their breadth. “Traditionally, our courts have afforded the Grand Jury the widest possible latitude in the exercise of [its] powers [to inquire into the commission of crimes] and insisted that in the absence of a clear constitutional or legislative expression they may not be curtailed” (People v Stern,
Whether the Disclosure Law contains a “clear *** legislative expression” by the county prohibiting compliance with a Grand Jury subpoena is open to question. Indeed, there is good reason to infer that the nondisclosure provisions of the law were addressed solely to the circumstances under which disclosure to the public at large would be permitted or not and that, therefore, those provisions were not intended to foreclose compliance with a subpoena of the Grand Jury, an arm of the courts whose proceedings
Concededly, the law makes no reference to an exception in favor of disclosure in connection with Grand Jury or judicial proceedings. However, unlike the provisions of the Tax Law involved in Matter of New York State Dept, of Taxation & Fin. v New York State Dept, of Law, Statewide Organized Crime Task Force (
However, we need not resolve the question of whether the Disclosure Law was intended by the County Legislature to prohibit compliance with a Grand Jury subpoena for the production of financial disclosure statements because, even if so intended, the Disclosure Law, being local in nature, cannot lawfully have that effect.
The Grand Jury derives its powers from the Constitution (NY Const, art I, § 6) and the laws of New York (CPL 190.05 et seq.) and from the common law. Since no person may be prosecuted for a felony without his consent except upon an indictment of the Grand Jury (NY Const, art I, §6), the Grand Jury plays a fundamental role in the administration of our criminal justice system. It is defined
As already indicated, because of its vital role in the administration of the laws of this State, the Grand Jury has traditionally enjoyed very broad investigatory powers (see People v Stern,
As stated in People ex rel. Livingston v Wyatt (supra, pp 391-392): “[G]rand juries *** are clothed by the common law with inquisitorial powers and, of their own motion, may make full investigation to see whether a crime has been committed, and if so, who committed it. They may investigate on their own knowledge, or upon information of any kind derived from any source deemed reliable; may swear witnesses generally and may originate charges against those believed to have violated the criminal laws.” (Emphasis added.) Moreover, it has been stated that the Grand Jury may even act on rumor or suspicion (People ex rel. Travis v Knott,
Further, “[ujnlike searches and seizures, where a preliminary showing of probable cause is required before a warrant may issue, a Grand Jury is not saddled with such a requirement in issuing a subpoena duces tecum. To do so would assuredly impede its broad investigative powers to determine whether a crime has been committed and who has committed it.” (Matter of Hynes v Moskowitz,
However, the powers of the Grand Jury to gather evidence are not unlimited. For one thing, they must “be exercised in accordance with the procedural and evidentiary rules laid down in the Criminal Procedure Law and other statutes” (Matter of New York State Dept. of Taxation & Fin. v New York State Dept. of Law, Statewide Organized Crime Task Force,
However, a local law need not be inconsistent with a specific provision of the Constitution or a general law in order to run afoul of the “home rule” provision. As explained in People v Cook (
In the context of this case, the nondisclosure provisions of the Disclosure Law, as construed by the Board of Public Disclosure, may be fairly regarded as establishing a “qualified privilege” in favor of persons who file financial disclosure statements and do not consent to such statements being made public. Unless the board, in its sole discretion, determines that such a person is involved in a conflict of interest or other impropriety, his financial disclosure statements may be disclosed to no one. However, if the board determines that a conflict of interest or other impropriety does exist, then the statements may be made a
Whether and under what circumstances an asserted privilege will be recognized is generally regarded as a matter of the procedural and evidentiary law that governs the proceedings in the forum in which the privilege is asserted to apply. The nature of the Grand Jury, its powers, its proceedings, and the evidentiary rules to be applied therein are matters that have received extensive attention in the Criminal Procedure Law, in addition to other statutes such as those cited above. CPL 190.40 (subd 1) provides that “[e]very witness in a grand jury proceeding must give any evidence legally requested of him”. CPL 60.10 provides that “[ujnless otherwise provided by statute or by judicially established rules of evidence applicable to criminal cases, the rules of evidence applicable to civil cases are, where appropriate, also applicable to criminal proceedings.” CPL 190.30 (subd 1) provides that “the provisions of article sixty, governing rules of evidence and related matters with respect to criminal proceedings in general, are, where appropriate, applicable to grand jury proceedings.” Considering the nature and function of the Grand Jury, we think that the extensive and specific attention paid by the State Legislature in these statutes to the procedural and evidentiary rules to be applied with respect to Grand Jury proceedings evidences a desire that those general rules “pre-empt the possibility of varying local regulations” (People v Cook,
We note that a similar result has obtained in cases in the Federal courts in which “the conflict between state confidentiality provisions and Congressional or constitutional investigatory powers has resulted in enforcement of federal grand jury subpoenas [under the supremacy clause] despite state statutes which would otherwise prohibit compliance. Matter of Special April 1977 Grand Jury,
For these reasons we conclude that, as a matter of State law, it is only the State Legislature that can authorize the placing of the disclosure statements in issue beyond the reach of the Grand Jury.
in.
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”.
In the course of its analysis, the County Court (
The County Court’s discussion of this issue contained no reference to the Grand Jury’s purpose or procedure in issuing the subpoena in question. Indeed, implicit in its decision was the conclusion that since Tempera had a legally cognizable expectation of privacy in the disclosure statements that he had filed with the board, any “search” or “seizure” of those statements would be “unreasonable” per se, regardless of not only the reason for the “search” or “seizure”, but also the manner in which it occurred.
We do not agree with Tempera’s contention that his Fourth Amendment right to be free from unreasonable searches and seizures requires that the Grand Jury subpoena served upon the Board of Public Disclosure be quashed. To the contrary, we are of the view that Tempera lacks “the Fourth Amendment interest necessary to entitle him to challenge the validity of the subpoena * * * duces
The starting point for our analysis is United States v Miller (supra). In that case, the United States Attorney’s office issued allegedly defective Grand Jury subpoenas to two banks in which Miller maintained accounts. The subpoenas sought the production of records of Miller’s accounts which the banks were required to keep under the Federal Bank Secrecy Act. Without protest or notice to Miller, the banks complied with the subpoenas and produced copies of the records, which were then used in the Grand Jury investigation of him. After his indictment by the Grand Jury, Miller moved to suppress the copies of the bank records. His motion was denied. Thereafter, copies of the records were admitted at his trial, at which he was convicted. On appeal, the Fifth Circuit Court of Appeals reversed defendant’s conviction, holding that a bank depositor’s Fourth Amendment rights were violated when bank records maintained pursuant to the Bank Secrecy Act are obtained by means of a defective subpoena (United States v Miller, 500 F2d 751). The Supreme Court reversed the Fifth Circuit’s order, without reaching the issue of whether the subpoenas were defective, because of its conclusion that the defendant “had no protectable Fourth Amendment interest in the subpoenaed documents” (United States v Miller,
In the first part of its analysis, the court observed that the subpoenaed documents were “the business records of the banks” over which Miller could “assert neither ownership nor possession” (
The County Court concluded that the second part of Justice Harlan’s test was met because Tempera’s expectation of privacy was objectively reasonable, based as it was upon his reading of the “clear” language of the Disclosure Law, a legislative enactment. For the reasons already discussed, we question the objective reasonableness of any expectation by Tempera that the Disclosure Law shielded the statements he filed from production before the Grand Jury. However, even if Tempera’s expectation of privacy was objectively reasonable, that is not enough to satisfy the second part of Justice Harlan’s test. Under that part, the expectation of privacy of a person who seeks to invoke the Fourth Amendment must not only be one that it would be objectively reasonable for that individual to hold, it must also be “one that society is prepared to recognize as ‘reasonable’ ”. As stated in United States v White (
Considering the facts and circumstances of this case, we conclude that any relevant expectation of privacy that Tempera had in the documents in question is not “one that society is prepared to accept as ‘reasonable’”. It bears emphasis that Tempera could have had no reasonable expectation that the Board of Public Disclosure would never make the statements he filed public, and, thus, available not only to the Grand Jury but also to anyone else who wished to examine them. Under even his construction of the Disclosure Law, the board, in its sole discretion, is authorized to make those statements public in their entirety if it deems such disclosure appropriate after giving Tempera an opportunity to contest disclosure. Thus, the expectation of privacy that would be disappointed if the board were to comply with the Grand Jury’s subpoena in this case is merely that it will have done so without its first having determined to its satisfaction and in accordance with its procedure that there was a conflict of interest or other impropriety warranting disclosure of the statement to the public. However, such an expectation is not one that society is prepared to accept as reasonable in light of the limited nature of the purposes and powers of the Board of Public Disclosure compared with those of the Grand Jury.
The Grand Jury occupies no lesser place within the Federal constitutional scheme than it does within the criminal justice system of our State (see Branzburg v Hayes,
In United States v Calandra (
Moreover, under the Federal Constitution, like our State Constitution, “a Grand Jury is not saddled with *** a [probable cause] requirement in issuing a subpoena duces tecum” (Matter of Hynes v Moskowitz,
Similarly, it is constitutionally unreasonable to effectively condition compliance with a Grand Jury subpoena upon a determination by a local agency that the documents sought are relevant to the Grand Jury’s investigation. This is particularly true, in the context of this case, with respect
In sum, we do not think that society is prepared to accept as reasonable an expectation by a public official that the Grand Jury may not properly obtain documents filed by him that are relevant to its investigation of possible corruption in public office, merely because a locally created, nonjudicial agency has not had occasion to determine, in accordance with its relatively limited powers and purposes, that circumstances exist that require disclosure of the documents to the public at large. This is particularly true where the documents might constitute the very instrumentalities of crimes under investigation.
Although we need not resolve the issue, we note in passing that, even if the Fourth Amendment were applicable, it is unclear that the board’s compliance with the Grand Jury subpoena duces tecum would amount to an “unreasonable” search or seizure under the facts and circumstances of this case. As was recognized in Katz, even if a zone of privacy is protected by the Fourth Amendment, it may be properly intruded upon as long as the intrusion is not “unreasonable” (see Katz v United States,
Nor need we decide whether the disclosure statements that Tempera filed pursuant to the Disclosure Law are “records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established” (see Wilson v United States,
iv.
In addition to quashing the subpoena on Fourth Amendment grounds, the County Court also held, sua sponte, that the “public interest” privilege described in People v Keating (
“As part of the common law of evidence, ‘official information’ in the hands of governmental agencies has been deemed in certain contexts, privileged. Such a privilege
“[W]e do not hold that all governmental information is privileged or that such information may be withheld by a mere assertion of privilege. There must be specific support for the claim of privilege. Public interest is a flexible term and what constitutes sufficient potential harm to the public interest so as to render the privilege operable must of necessity be determined on the facts of each case. Such a determination is a judicial one and requires that the governmental agency come forward and show that the public interest would indeed be jeopardized by a disclosure of the information. Otherwise, the privilege could be easily abused, serving as a cloak for official misconduct.” (Cirale v 80 Pine St. Corp.,
In our view, this privilege is inapplicable in this case because it has not been demonstrated that the public interest requires that the contents of the statements Tempera filed with the board not be divulged to the Grand Jury. Some óf our reasons for this conclusion have already been set forth. In addition, we are unconvinced that prohibiting the Grand Jury from compelling the production of financial disclosure statements of public officials, which are relevant to an investigation into official misconduct, is necessary in order to achieve full and frank financial disclosure by public officials or permit the Board of Public Disclosure to perform its function (cf. Fischer v Citizens Committee,
Titone, J. P., Rabin, Gulotta and O’Connor, JJ., concur.
Order of the County Court, Suffolk County, dated August 17, 1981, reversed, on the law, without costs or disbursements, and motions to quash denied.
Notes
. Local Laws, 1978, No. 12 of Suffolk County.
. The Board of Public Disclosure, created under the Disclosure Law, consists of seven residents of Suffolk County, appointed by the County Executive with the approval of the County Legislature (Local Laws, 1978, No. 12 of Suffolk County, § 5, subd [a]). The board members may not hold “public office” or office in any political party during their term on the board (§ 5, subd [c]). They serve without compensation (§ 5, subd [d]).
The public official involved in this case was required to file a disclosure statement with the board on or before the 120th day after the initial appointment of its members, and on April 1 of each succeeding year of his employment (§ 8). The record does not indicate the date of the initial appointment of the members of the board.
. The other three stated “legislative findings” are as follows:
“(1) The citizens of Suffolk County desire and require accountability and candor of its government, more particularly those employees who perform responsible functions on behalf of the county government.
“(2) Any conflict of interest on the part of county employees is deleterious to the county government administration and credibility.
“(3) Those persons who hold county positions as hereinafter defined constitute a distinct class of county government employees whose public and personal affairs reflect upon and relate to the credibility and quality of government administration.”
. The subpoena was delivered to William J. Kent, an Assistant County Attorney of Suffolk County who was characterized therein as “Custodian of the Records”.
. In particular, it was Kent who initiated the motion to quash. In addition, in his motion affidavit, he argued, among other things, that the custodian of the requested records was the Board of Public Disclosure, not he. However, another Assistant County Attorney submitted a separate affirmation in support of Kent’s motion to quash, apparently on behalf of the board. Thereafter, that attorney, on behalf of the board, advised the County Court that any argument that “service was made on an improper person” was “withdrawn”. Further, it is the board, and not Kent, who appears as a respondent on this appeal. Accordingly, for purposes of this appeal, we deem service upon Kent to be service upon the board and we refer to the motion initiated by Kent, but later joined in by the board, as the motion of the board.
. The record does not reveal the manner in which Tempera received notice that the board had been served with the subpoena.
. Neither movant invoked any provision of the New York Constitution. Although Tempera made a relatively brief reference to the First Amendment in his motion papers, he did not press any First Amendment claim at the County Court and does not even mention any such claim in his brief to this court.
. It appears that the County Court actually left undecided two of Tempera’s contentions. These were that the subpoena had been improperly issued for the sole or dominant purpose of preparing the pending perjury indictment and that the Disclosure Law (Local Laws, 1978, No. 12 of Suffolk County), standing alone, required that the subpoena be quashed.
. In addition, wholly apart from its function of gathering evidence of possible criminal offenses, the Grand Jury is empowered to submit a report “[c]onceming misconduct, non-feasance or neglect in public office by a public servant as the basis for a recommendation of removal or disciplinary action” (CPL 190.85, subd 1, par [a]).
. We note that the Freedom of Information Law authorizes a governmental agency to deny to the public records that “are specifically exempted from disclosure by state or federal statute”, but not by local law (Public Officers Law, § 87, subd 2, par [a]).
. The terms of the Tax Law involved in Matter of New York State Dept, of Taxation & Fin. v New York State Dept, of Law, Statewide Organized Crime Task Force (
. Of course, the mere fact that the Disclosure Law (Local Laws, 1978, No. 12 of Suffolk County) states that it is a class B misdemeanor for a county employee to intentionally file a materially false disclosure statement does not divest the Grand Jury of the power to investigate crimes defined in the Penal Law which also arise out of such a filing, most of which are more serious than a class B misdemeanor. In addition, although subdivision (b) of section 10 provides that the board shall act as the complaining witness "[i]n all criminal proceedings”, this provision may reasonably be read as referring only to all criminal proceedings related to a prosecution for the crime defined in that section. To the extent that the provision refers to prosecutions for other crimes, it may reasonably be read as requiring merely that the board, rather than an individual member thereof, be the complaining witness and not that the board have exclusive power to initiate all criminal proceedings by bringing an employee’s disclosure statement to the attention of the Grand Jury.
. We are mindful that subdivision 1 of section 806 of the General Municipal Law provides that, as part of its effort to prevent conflicts of interest on the part of governmental employees, a county may by local law adopt a “code of ethics” which may, among other things, “provide for the prohibition of conduct or disclosure of information and the classification of employees or officers.” However, apart from the fact that the Disclosure Law is not part of the Suffolk County “Code of Ethics”, which was apparently enacted in 1968, we read this generally worded provision merely as authorizing the county legislature to require the filing of financial disclosure statements, but not to prohibit the Grand Jury from directly obtaining the information disclosed in the course of its proper investigation into possible official corruption and the integrity of the very statements themselves.
. We assume that the board’s compliance with the Grand Jury subpoena duces tecum would amount to a “search” or “seizure” within the meaning of the Fourth Amendment, in line with Boyd v United States (
In this regard the differences between a search and the production of evidence in compliance with a Grand Jury subpoena duces tecum described in Matter of Hynes v Moskowitz (
“Th[e] constitutional guarantee [against unreasonable searches and seizures] seeks to balance the interests of society in discovering evidence of criminal activity with the right of the individual to be free from unjustifiable governmental intrusions. To be sure, an intrusion imposed on a person subject to a search and seizure is substantial. A search is conducted without advance notice and the scene of the search may be an individual’s home. Where resistance is encountered, the search may be effected by the threat or use of force. These considerations demand that a warrant issue only if supported by probable cause.
“But these considerations do not apply with equal force to the Grand Jury subpoena duces tecum. (Hale v Henkel,
. The test applied by the County Court was first announced by Justice Harlan in his concurring opinion in Katz v United States (
. Although we follow the County Court’s lead in applying this test, we note that Katz involved a warrantless intrusion into a public telephone booth occupied by the defendant and not a subpoena duces tecum seeking documents. We also observe that the Miller court, in a case involving a subpoena duces tecum seeking documents, did not specifically apply Justice Harlan’s test from Katz, even though it made other references to Katz.
. Although the County Court’s decision states (
. Thus one commentator has concluded, albeit somewhat reluctantly that “in light of Andresen and Fisher [u United States,
It is quite evident that to the extent that the .disclosure statements in question are exclusively records of the board, their production would not amount to an “unreasonable” search or seizure. In this context, records of the board are hardly different from corporate records. As to the limits the Fourth Amendment places upon a subpoena duces tecum for the production of corporate records, the Supreme Court has held that “the Fourth [Amendment], if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be ‘particularly described’ ” (Oklahoma Press Pub. Co. v Walling,