United States v. Alan McSurely United States of America v. Margaret McSurely

рroduction demand for docu- of these WILKEY, Before TAMM and Circuit ments. ad- Chairman McClellan then Judges, and MATTHEWS* U. S. Senior appellants subpoenas vised Judge District for the District of Co would remain in full force and effect lumbia. appellants and di- ordered and were comply by rected to with the MATTHEWS, Judge: District Senior noon, Friday, appel- March Neither appeared lant jury time after On before in the June hearing, subpoe- March 4 were nor States District Court by produced naed Columbia, Margar- documents as directed District Alan and wife), McSurely (husband ap- Chairman. et and pellants herein, guilty were each found Subsequently, on March Congress.1 contempt of two counts Subcommittee voted to seek ci- Imprisonment imposed upon terms were against appellants. tations full provide them. These the ba- convictions presented Committee to the matter sis appeals. for their by Senate resolution. This resolution alleged contempts appel passed by May 5, which the Senate on 1969,4 lants were convicted occurred and certified before to the United States Investiga Attorney Permanent Subcommittee on for the District of Columbia proceed against appellants tions of the United States Com con- Senate for their Operation (here tempts. followed, ap- mittee on Government Indictments and Subcommittee”).2 pellants Subpoe inafter “the were tried and convicted directing appellants testify appeals nas June 1970. Their been have bring Subcommittee, before the and consolidated. * Sitting designation pursuant sought to 28 The records in the 294(e) (1970). relating § U.S.C. cluded documents ings to certain meet- Nashville, April held Tennessee on pertinent statute, 1. The § U.S.C.A. through 1967, prior to the dis- civil states: turbances which occurred in Nashville “Every person having who been sum- month; pertaining later documents authority moned as a witness appellants’ membership, employment, Congress give either House of testi- political or activities five action mony produce papers upon any or to organizations, viz: Southern Conference inquiry matter under before either Fund; Educational National Conference House, any joint or committee estab- Politics; Summer; Ap- for New Vietnam joint lished or concurrent resolu- palachian Planning Volunteers; United Congress, tion of the Houses two or Organizations Metropolitan Washing- any committee of either House Con- C.; ton, D. records and which gress, willfully default, who, makes past present membership in relate to having appeared, refuses to answer employment Non- Student question pertinent question under Coordinating Committee; Violent records inquiry, guilty shall be deemed of a mis- and documents which relate to member- demeanor, punishable by a fine of not ship in activities of Students $1,000 than more nor than less $100 Society a Democratic Southern and/or imprisonment jail in a common for not Organizing Students Committee. Sched- less than one month nor more than A, listing subpoenaed ule the documents twelve months.” reproduced Subeommitte, pursuant Subcommittee, 2. The 2, p. Appendix, its basic Defendants’ enabling resolutions, continuing (cid:127) Cong.Rec. 4. 115 investigation subject riots, into the throughout civil and criminal disorders the United States. stage long Summer, yet un- in a literature of Vietnam both another This According incorporated siege litigation complex be- which associations. McSurelys, Kentucky August gan their of 1967. official duties investigate socio-eco-political mi- officials From the time peo- County, personal papers lieu of Pike to inform the their first seized rights, help protested ple property, local of their and to citi- have organize prob- every their taken zens use thereof official action overcome them, asserting Fourth their lems. resisting what Amendment challenged The search and seizure they to be official lawlessness. believed initiated under a section here was years For more than the courts three Kentucky, sedition statute pass had have occasion to reads: appellants claims, consist- and have been by Any person who “KRS 432.040— ently sustained until their convictions advocates, suggests writing or word ap- contempt (the subject for of this necessity, proprie- duty, or teaches peal) .. syndical- ty expediency or criminal Appellants appeal base their on a vari pub- sedition, prints, or who ism lishes, edits, or reasoning. ety reasons and But knowingly cir- or issues appeal upon thrust their the basic distributes, culates, sells, publicly dis- constitutional issue of unlawful search plays possession or for has his seizure, Kentucky by not publication purpose or circulation officials, by but later a United States printed written or matter posi Senate their Subcommittee. It is advocating, suggesting or teach- form comply tion that their refusal with sedition, syndicalism or sup subpoenas the Subcommittee cannot organize, organizes helps to or who or port contempt convictions when the sub voluntarily of or or a member becomes poenas themselves were based any society or assem- assembles with inspection by unauthorized the Subcom teaches, blage persons advo- investigator mittee documents which suggests of crim- cates or the doctrine by had been seized state officials syndicalism shall be sedition inal or Kentucky in violation of the Fourth penitentiary in the for confined Amendment and under an unconstitutional twenty-one years, fined more than stat ute.4a dollars, or not more than ten thousand both.” I acting August 11, 1967, under On FACTUAL BACKGROUND affidavit, pursuant a to an statute Judge County war- a search Pike issued Margaret McSurely Alan and were by appel- premises occupied rant for the organizers field for Conference Southern McSurely Alan and a warrant County, lant Fund, Inc., Educational in Pike night officials That his arrest. same Kentucky. McSurely a Alan was also County deputies conduct- and their Pike organizer field for the National Confer- residence; McSurely of the ed a search ence of Politics had distributed New March Appellants questions fore Subcommittee on 4a. also as to raise grant- negated broad; overly was ing Subcommittee’s whether the were days appellants in which properly three additional stated whether comply subpoenas; in- whether objections Subcommittee; whether upon appellants’ March infringed action contempt; whether rights; a second constituted misrepresentations First Amendment whether prosecu- pertinent made un- documents were matters Jury in- Subcommittee; invalidated inquiry tor to the Grand wheth- der appellants; authority returned dictments and, finally, em- er the of the Subcommittee subject whether the Court which braced matter about errors appel- various quiry being made; trial committed whether appellants. alleged by alleged contemptuous be- lants’ conduct proceeding further with impounded loose Court from they seized and McSurelys.7 twenty-two prosecution twenty-six books, posters, books, pamphlets, other boxes order directed the court private published found Attorney for Pike Coun- Commonwealth impounded “They in their home. also ty, Ratliff, hold in one to continue personal and several of clothes suitcase safekeeping all seized from materials caught up in the items McSurelys disposition of the until final Alan Both of the search.” whirlwind appeal appeal case No otherwise. Margaret McSurely were arrested was ever filed. charged the sedi- with violation Following order, the the above court tion statute.6 the aforesaid Sen- Assistant Counsel for Following their arrest telephoned ate Subcommittee Common- complaint filed in the United States Attorney inquired wealth Ratliff and District Eastern District Court belonging to about the seized materials Kentucky, challenging the constitu- McSurelys. Prior thereto Ratliff tionality sedition stat- publicly had stated that he intended requesting matter be ute and make the seized materials available pursuant by three-judge heard court result committees. As a September 28 U.S.C. 2281-84. On §§ telephone of this conversation between three-judge district court Ratliff, the Assistant Counsel and convened. investigator Senate went Subcommittee Jury occasions in Octo- September 11, Pikeville on several of the Grand On ber, (prior expiration of the County to the indictment Pike against returned an judgment appeal of charging appellants time for the them with three-judge court), against Rat- the visited and seditious activities the Common- materials, liff, inspected the seized wealth in of 432.040. violation KRS therefrom, provided September the made notes on and However Further, three-judge order, copies the one of 234 documents. court entered an judge Kentucky investigator dissenting, declaring was allowed take these the copies the sedition statute unconstitutional and with him to Subcommittee’s permanently enjoining Washington, in At no the offices D. C. Common- Kentucky attempt time wealth of the Pike Circuit was there contact syndi- McSurely Ratliff, F.Supp. beyond ‘goes far far afield and thought (E.D.Ky.1967). calism and He sedition.’ would ‘take out of this law courts 6. There was no warrant for the arrest of dangerous’, and sections which make it Margaret McSurely. in affidavit ‘Those concluded with this statement: support of the warrant does not mention [government] who seek its overthrow Appendix, 2, pp. her. Defendants’ violence, or those who counsel force or 943, 945. by unlawful resistance to its laws McSurely Ratliff, supra right destroyed, note 5. Cir- but means must be Judge Combs, blood-bought speech cuit who delivered free is of opinion three-judge pal- every of heritage court stated it is the citizen: page liberties, 849: and it must ladium of our ” “Kentucky’s passed preserved.’ in sedition law was shall be page 852, Judge 1920 in I the aftermath of World War observed: And at Combs capable and the in Russia. Bolshevik Revolution believe that “It is difficult slightly seriously lawyers The law was amended in contend could * * * unchanged otherwise it has remained constitutional. this statute is through years. expect- inescap- addition, As would be the conclusion ed, comprehen- prosecutions the statute is broad were able that the criminal good politics instituted, part, sive. It was to be in order to in at least signed organizing stop [McSurelys’] Communism. The Governor activities County.” bill but was fearful it too drew in Pike publicly it much water. He stated that restraining prohibit counsel, temporary order McSurelys, or seek Attorney from re permit- the Commonwealth approval the court formal leasing subpoenaed materials to investigator ting access to Additionally, they filed stipulated Subcommittee. Also, materials.8 seeking separate order investigator di motion the Subcommittee recting Attorney to three-judge order Commonwealth court aware fact, return materials. Between he, the seized in exam- September but July 1968, there was October file of the case October ined the litigation involving dis copy substantial said requested mail a the Clerk to culminating position documents, of these Inventory of seized mate- order and the Washington a decision rendered Cir Sixth office.9 to him at rials his Appeals.11 cuit Court Cir Sixth investigator’s Upon return for the cuit ruled that District Court appel- copies Washington Eastern erred District McClellan, documents, lants’ Senator refusing appellants their to return to Chairman, determined Subcommittee in aid of a were seized records, books, docu- that certain prosecution under an unconstitutional papers ments, correspondence other statute, appeal since the time for had pos- belonging expired. However, the Court declined Attorney Rat- session Commonwealth advisory opinion render an as to wheth to the Subcom- liff value would er the Subcommittee were investigation of the occur- mittee riots valid or violated constitutional ring April, Nashville, Tennessee, stating: McSurelys, ques “These subpoenas issued The contested may adjudicated ap tions under the by the to the propriate procedure challenging sub inspec- product of this fact poenas Committees.”12 by the tion and search of the documents Acting pursuant Circuit de Sixth investigator.10 ini- Subcommittee’s cision, the Rat District Court directed signed by subpoenas Chairman tial liff to return all of the seized materials McClellan on October served p.m. at 2:00 on November upon and on October Ratliff Immediately 1968. after these mate 8. upon appellants on October 1967— returned, McSurelys the rials had been days being the the latter date five after pre subpoenas were served with new expiration permitted by of the time law pared by the Subcommittee. new appeal the the Commonwealth to subpoenas original ones) (similar to the three-judge September court order of McSurelys are those with which the comply refused to the before Subcom day appellants On the the received for the mittee and which form the basis subpoenas, they seeking contempt filed a motion convictions. prior granting Appendix, 2, p. 1032, 8. Ratliff indicated that 9. Defendants’ Vol. investigator permission Stipulation the Subcommittee No. 10. inspect documents, sought the the he government purposes conceded permission judges the three- the on that, seizure of this but for said case judge panel. He failed to locate two officials, the state the and Subcommittee them, Ratliff but contacted the third. agents have would not members acknowledged also that did seek he not the documents known of the existence of approval the Mar- United States subpoenas directing and hence that shal for the district who was co-custodian production their before Subcommittee Ap- for the seized materials. Defendants’ pendix, Finding would not have been issued. See However, 1, pp. 406, 408. Vol. Appendix, 3, Defendants’ Fact No. there is no evidence that Ratliff received 2, pp. 971-72. permission form of fоrmal (6th McSurely Ratliff, authorizing inspection 398 F.2d 817 court order McSurelys’ 1968). property by Cir. the Sub- seized investigator. committee Id. at 818. stems from ac- background, to the tee are based turn we With investiga- appeal. tion taken a Subcommittee on this primary presented issues authority who, tor a shadow without give it, position ex- anyone II McSurely copies of the amined made PRIMARY ISSUES THE illegally been which had argue McSurelys First, investigator the inva- Kentucky, said seized having Kentucky and sei- lidity knowledge at the time full (1) grounds: made because zure two on these documents under which the statute Kentucky (the statute an invalid under declared unconsti- were seized had been (2) affi- law); tutional; therefore, because sedition Sub- supporting warrant the search product davit committee are establish- to state circumstances failed of their Fourth Amendment an invasion cause, did ing probable the warrant rights. things particularly describe the relying Finally, Weeks seized. L. 34 S.Ct. (1914), Lum- Ed. 652 and Silverthorne ground, the Govern- As first States, 251 ber v. United specifically Co. that the conceded ment has (1920), the L.Ed. original made of documents was seizure McSurelys that because the pursuant subsequent- maintain to a statute which subpoenas are based Subcommittee ly unconstitutional. As declared second, information an invasion ground, obtained has Government rights, Fourth Amendment ignored McSurelys’ claim Government should have barred been warrant were insufficient affidavit and using trial from as evi- argument and has made no whatsoever subpoenas. dence the validity support affidavit Instead, the warrant. sought Government consistently has Government Since has to divert the issue. maintained has been no that there inva- Kentucky three-judge court held the McSurelys’ sion of the Fourth Amend- sedition statute to unсonstitutional rights, ment either of- of the Mc- the search and seizure ficials or But in after Subcommittee. Surely documents, the Government argues event, it that the cases inap- cited argues presump- the statute was upon by relied plicable tively constitutional at the time subpoenas. to the Subcommittee hence, made, search and seizure begin We our examination of the now not that and seizure should by Kentucky search and seizure offi- retroactively be invalid. The fal- made McSurely cials of As documents. argument lacy is of the Government’s Court has stated: validity that it assumes of the determining “In whether there has prem- search and seizure when made-—a been an unreasonable search and sei- hotly by McSurelys. ise contested by officers, zure state a federal court independent inquiry, must make an Clearly question validity or whether not there has been such an the search and seizure must de- first be inquiry by court, irrespec- a state cided. If the affidavit and may inquiry tive of how such invalid, by warrant are as contended have turned out.” McSurelys, that would foreclose question “retroactivity” to be accord- III holding ed the court decision the Ken- THE AND SEARCH SEIZURE tucky sedition statute unconstitutional.

Next, McSurelys argue Sufficiency Sup- that the A. of the Affidavit port information Subcommit- of the Warrant States, 206, 223-224, 1437, 1447, (1960). 13. Elkins v. United U.S. 4 L.Ed.2d 1669 enough. picion is not Nathanson Amendment to the United The Fourth provides: States Constitution (1933). 78 L.Ed. 159 right people be se- “The purpose is to en- houses, papers, of the affidavit persons, cure in their magistrate to determine wheth- effects, against able the unreasonable sup- “probable required to seizures, er the cause” vio- shall not be searches and magistrate port issue, lated, exists. warrant shall but and no Warrants persuasive- judge cause, for himself upon probable supported must ness of the facts relied on a com- affirmation, particularly or Oath searched, plaining probable cause. describing place officer to show to be accept question things persons He should not without and the or to be complainant’s mere conclusion. seized.” States, Giordenello v. United U.S. descrip- The affidavit14 contains a full 2 L.Ed.2d premises tion of the location of the sub- (1958). ject to the search. When affidavit is based on Comp- The affidavit is of one James “hearsay” magistrate information, ton, stating reputable that he is a citizen must be informed of some of under County, of Pike he has reason- lying in circumstances from which the grounds suspect able and believe “suspect” formant concluded that printed print- “that seditious matter and engaged illegal conduct, and some ing press machinery print or other underlying circumstances being and circulate seditious matter which the the in affiant concluded kept premises MeSurely.” on the of Alan formant was “credible” and his informa grounds He states his belief Otherwise, tion the infer “reliable.” August information to “[o]n ences facts which lead to the 1967 he was informed James Madison complaint drawn, will a neu Compton, reputable citizen of Pike magistrate tral and detached as the Con County, August Kentucky, that on said requires, po stitution instead but noon, approximately at 12:00 lice officer who business of fer Compton the said James Madison Aguilar Texas, reting out crime. materials, did observe certain seditious 108, 84 S.Ct. 12 L.Ed.2d 723 being pamphlets, films, pictures and ar- Aguilar, the affidavit stat equipment teaching ticles used in the ed: printing circulating sedition and received infor- “Affiants have reliable seditious matter at or on the de- above * * person mation from a do credible premises scribed * * * other believe that heroin pro Fourth Amendment’s * * * being kept narcotics at are scriptions enforced premises the above for the described through States the Fourteenth Amend purpose contrary sale and use ment, and the standard of reasonable provisions of the law.” 378 U.S. ness is the same under the Fourth and 109, 84 S.Ct. at 1511. Fourteenth Ker v. Cali Amendments. The Court found the vice in this affida- fornia, 374 U.S. vit to be that the mere conclusion that L.Ed.2d 726 petitioner possessed narcotics was not An may officer properly himself; is even that the of affiant it was sue private warrant to search a dwell that of an unidentified informant. ‍‌​​​​​​​‌‌​​​‌​​‌‌​​‌​‌‌​‌​‌​‌​​‌‌‌‌​‌​‌​‌​‌​‌‌‌‍The ing probable unless he can find cause affidavit contained no alle- affirmative therefor from gation or spoke circumstances personal that affiant with facts presented to him under knowledge oath or affirma of the matters contained tion. Mere affirmance of belief appeared, or sus- therein. For all that the

14. The Appendix, affidavit is set p. out in full in Defendants’ believed, suspected, merely or the informant was “credible” his in- source peti- Spinelli that narcotics were formation concluded “reliable.” magistrate States,16 possession. the Court that tioner’s said judge hough this information could not the affiant “[t] [an FBI officer] showing prob- ‘reliable,’ adequate of swore his alone that an that confidant was application magistrate he offered the able cause existed. no reason underlying support of failed set forth this conclusion.” same deficiency necessary enable the obtains here. The circumstances affidavit independently judge magistrate does not meet the the standards of either Aguilar Spinelli. or informant’s conclusions. The affiant attempt any way support did not Second, there is an additional reliability the of claim the informer’s finding reason for the insuf affidavit reputation except for truthfulness Kentucky statute, fient. The sedition the bald he was conclusion that supra, from whence sei this search and “credible” and his information was “re- sprang, zure made it a offense liable.” merely possess, intent circu Testing Compton affidavit late, subject literature on “sedi foregoing guidelines, here tion.” definition One “sedition” magistrate observe, first, we that advocacy found in the 1920 Act is “the him the had before sworn statement of suggestion by word, act, writ deed or merely Compton”, who states “James * ** ing change or modifi- reputable that he is of Pike “a citizen cation of the Government the United County.” nothing There is to indicate States or Ken- Commonwealth of capacity investigation his tucky, or of the Constitution or laws of McSurelys. veracity of an af While * * * them, either of oth- means questioned is not fidavit the af when * * er than means lawful investigating police fiant is one of the (Emphasis added.) This definition officers,15 necessarily this is not true of guide magis- purport would at least simply someone who asserts that he is a determining trate in what constitutes reputable County. Next, citizen materials”, possession “seditious suspects states that affiant he essential element being is believes “seditious” matter speaks But herein crime. affiant kept premises McSurely. on of Alan of “seditious” materials. His informant standing much, alone, This insuffi is speaks only of “seditious” materials. teachings cient under the of Nathanson. assuming arguendo validity Even Add to this the аffiant’s sedition how state statute18 “suspicion magis- ment he could bases his a “neutral and detached” belief”, observations, glean not on his own trate but the contents of the af- pamphlets, films, .pic- information received from another fidavit party, “reputable whom he states to tures and articles infor- observed type McSurely’s were, precisely premises citizen.” This is of mant on Agui definition, “seditious”; conclusional statement which the arti- inadequate, equipment lar Court found and from cles and which informant saw hearsay teaching whence came rule that when were such as are used involved, information printing the affiant must “sedition” and the and circulat- underlying state some of the circum “seditious” matter? There nothing whereby stances from which he concluded that in the affidavit Ventresea, Kentucky Statutes, 15. United States v. Carroll’s Baldwin’s 102, 111, 741, 85 S.Ct. L.Ed.2d 1936 13 684 Revision. (1965). 18. The statute was held unconstitutional 410, 416, McSurely supra 16. Ratliff, in note 5. (1969). 21 L.Ed.2d 637 standards, independ- is insuffi- constitutional magistrate his own can make finding probable support papers cient to ent decision as to whether in vi- equipment are “seditious” and cause. Further, noth- of law. there olation B. The Warrant. magis- whereby affidavit in the only pro The Fourth Amendment the informant determine what trate can except issuing of warrants hibits the be “seditious” materials. considered to (here, probable upon probable cause accept magistrate left was in their had cause that informant naked conclusion possession “sedi circulate with intent “seditious.” the materials viewed were materials”), requires that tious but nothing then more than the He became particularly said “things describe warrant police”, stamp for “rubber Co. v. In Go-Bart to be seized.” supra.19 Ventresca, was condemned Supreme States,22 Court said page page 357, at 158: 51 S.Ct. at Regents,20 Keyishian Board of New struck down a Court prevents the issue of warrants “This unconstitutionally York statute as loose, vague or doubtful bases vague, which, defining the emphasizes purpose without fact. It or made general words “treasonable seditious” protect all searches. or gov- or seditious” utterances “treasonable the creation of our before Since pub grounds for from the acts dismissal ernment, such searches have been system. by equating lic school Even deemed obnoxious to fundamental anarchy” de They “sedition” with “criminal principles liberty. are de- fined the New York Penal Law 160 or § in the constitutions stat- nounced organized govern as the “doctrine every utes of in the Union.” State ment should force or be overthrown us directs the The warrant before * * * violence, by any unlawful “searchers” to seize “seditious matter question means” this still left crucial machinery printing press or other of where the line was drawn between print matter.”23 or circulate seditious “seditious” and nonseditious utterances part, Perhaps due, least at or acts. The Court concluded that the vagueness of the term “seditious mat “quality statute was of the of ‘extraordi warrant, it is nonethe ter” used ” nary ambiguity,’ “lacking in pursuant apparent readily less susceptible objective ‘terms measure general search was made. The thereto a ”, ment’ telligence and that in of common “[m]en seized, purported “seditious materials” guess necessarily must its at enough to fill one-third of a voluminous meaning differ clothing jail cell,24 personal included application.” ambiguity, the lack sup McSurely, office Mrs. boxes objective standard, of an measurement checks, plies, unused check cancelled meaning guess by equally work at books, college and review examination competent differing persons with conclu notes, McSurely’s personal love let exemplified sions could not more marriage ters, certificate. clearly allegedly than the “seditious ma copies of box contained 104 Hand One terials” referred the affidavit be publish Literature, all which bill fore us. Kentucky. ed the Commonwealth stated, For the reasons we impound find that There were 564 loose books the affidavit ed, falls short of minimum and Train- which included “Tricks reproduced 19. Note at 85 S.Ct. Defend- The “warrant” p. Appendix, ants’ Vol. 20. 385 U.S. 87 S.Ct. L.Ed. (1967). inventory 2d 629 seized 24. The of materials impounded by the State Of- 21. Id. at Appendix, in Defendants’ ficials is found 22. 282 U.S. L.Ed. 2, pp. 946-60. 1188 proceeded Cats”, poetry, ing The officers de- several books “Poetry premises,27 spent and Prose” scribed and some four of which was one collecting Bryant, and hours about Cullen books William half “Washington Page Telephone the books Yellow the house. While most of McSurely

Directory.” essence, petitioner's In seized were stock from busi- ness, were home was ransacked and the officers also took a number of papers and personal library. out of cleaned all books from his “printing press No or other ma- books. pamphlets and “The books taken com- print chinery circulate seditious or separate titles, prised approximately 300 inventory of on the matter” is listed to numerous issues of several addition things seized. Among periodicals. different the books taken such diverse writ- were works remarkably com- above facts are Marx, Sartre, ers as Karl Paul Jean parable to thоse in v. Texas.25 Stanford Draper, Castro, Earl Theodore Fidel magistrate issued a a local Stanford XXIII, Browder, Pope John and Mr. pursuant of Art. 9 6889- warrant § Hugo Justice L. The officers Black. Ann. Revised Civil 3A Vernon’s peti- possession many also took Texas, Supres- as the Statutes of known private papers, tioner’s documents and Act, which the issuance sion authorizes marriage including certificate, his his purpose of of a “for the search- warrant policies, insurance his household bills records, ing seizing any books, personal receipts, his and files of lists, cards, receipts, pamphlets, memo- correspondence. All this material was randa, recordings, pictures, or writ- packed off into cartons hauled showing person ten instruments investigator’s county in the' office organization violating or has vio- did not find courthouse. officers any provision lated this Act.”25a Party’ any ‘records of the Communist which, many-faceted law The act ” 28 any ‘party payments.’ lists and dues things, among outlaws other Com- Party and indi- munist creates various seeking In a motion the annulment vidual criminal offenses for Communist prop- and the of his warrant return activity. specifically The warrant de- erty, petitioner the “search and attacked premises searched, to be scribed grounds, among seizure” on number of premises stated affiants’ belief which were that the statutes were un- “books, records, pamphlets, contained pre- constitutional, federal law had receipts, cards, lists, memoranda, pic- empted law, that warrant did state recordings tures, and other written in- sufficiently offense, specify not concerning struments Communist upon proba- warrant was issued Party of Texas”25b which unlaw- were pausing to assess ble cause. Without fully рossessed law, violation grounds, substantiality executing ordered the officers “to enter just its decision one Court rested immediately and de- above it, saying ground, “we think is clear that premises scribed items for such listed was of a kind which was warrant unlawfully possessed above in violation purpose of the Amendment Fourth 6889-3A, of Article 6889-3 Article 29 Speak- general forbid —a Statutes, Texas, warrant.” Revised Civil State possession to take of same.” Fourth Amendment’s mandate premises” where 25. 27. The “described 13 L.Ed.2d S.Ct. petitioner resided carried under mail order business licensed book 25a. “ALU OF VIEW.” Id. at name of POINTS S.Ct. at 507. Id. 477-478, 25b. Id. at at 508. 479-480, Id. at 509. S.Ct. at Id. at Id. at at 508. power,’ particularly unlawful. ‘This the warrant be describe the warrant secretary said, seized, by things he ‘so assumed Court said: be party’s all the state is an execution precise clear. words are “These papers, His house in the first instance. They the determination reflect rifled; most secrets are is his valuable Rights the Bill of those wrote who possession, taken of his before out people Nation of this new charged paper he is is found for which per- secure should forever ‘be their by competent juris- sons, houses, papers, and effects’ diction, and before he is convicted either act- officers intrusion and seizure writing, publishing, being con- authority of a under the unbridled ” 34 paper.’ cerned in the general warrant.” requirement “The that warrants shall history things particularly The Court said that what to be describe the indispensably general the Fourth Amendment searches under seized makes impossible teaches is re- prevents “that constitutional seizure them quirement particu- describing thing warrants must of one under a warrant larly ‘things taken, describe to be seized’ is As another. to what is to scrupulous nothing to be accorded the most ex- is discretion of the left to the ‘things’ books, executing (Em actitude when the officer the warrant.” added.) phasis seizure is the ideas basis Marron v. United (Citations omitted.) they States, contain. 275 U.S. 48 S.Ct. No (1927). less a standard could be faithful 72 L.Ed. 231 to First Amendment freedoms. present case, The warrant leaving impossibility constitutional which authorized the seizure “sedi- protection of those freedoms to the printing press tious matter or or other charged whim of the officers with exe- machinery print or circulate seditious cuting dramatically the warrant un- vague matter” is so to be broad as derscored what officers saw fit to very “particularity” antithesis of the seize under the warrant this case.” required by the Fourth Amendment and teachings of the above authorities. Reflecting history on the general That a search was made under Amendment, Fourth the Court summa authority here, as it this warrant rized the landmark case Entick Stanford, “dramatically under- Carrington.32 “John Entiek was the au scored the officers saw fit what publication thor of a called Monitor Having seize” under it.35 ordered been British Freeholder. A warrant was is to seize “seditious matter” the officers specifically naming sued him and that impounded books, seized and 564 loose publication, authorizing his arrest twenty-six posters, twenty-two boxes for seditious libel and the seizure of his containing books, pamphlets other papers.’ King’s ‘books and messen private published documents, a suit- gers executing the warrant ransacked personal case of clothes and other items Entick’s home for four hours and carted McSurelys, they whom arrested.36 away quantities papers. of his books and Summing up opinion, in the opinion Stanford In an which this Court has Court said: wellspring characterized as a protected passed now the Fourth “Two have centuries since Amendment,33 Carring- Lord Camden declared the historic decision in Entiek v. 483-484, 30. Id. at 85 S.Ct. at 509. 34. at 511. 379 U.S. 85 S.Ct. Texas, supra 31. Id. at 85 S.Ct. at 511. note Stanford (1765). 32. 19 How.St.Tr. 1029 supra. pages 1181, See Boyd v. United 626-627, L.Ed. 746 ton, very day. “Although previously took a con- almost government greatly changed, trary position, world and the has has nonconformity purposes now conceded for of this case voice of sometimes now tongue that, speaks which Lord Camden seizure state but for said might But officials, find to understand. the and its hard subcommittee agents Amend Fourth Fourteenth the and members would not have guarantee to John ments Stanford known of existence of docu- the the the shall ransack no official of State ments and hence that the directing production his and seize his home books the before papers authority unbridled under the subcommittee would not have been 38a general less than of a warrant —no issued.” ago years the law shielded John appellants’ position It is their re- messengers Entick from the produce fusal the documents demand- King.” by ed in issued the Subcom- guarantee The same shields Alan and support contempt mittee will not Margaret McSurely Congress unlawful where, the conviction, here, all as Kentucky offi- knowledge search and seizure of per- the of the Subcommittee’s taining cials. subpoe- to the existence of the documents, naed as the well content It is our conclusion that thereof, was the fruit of an unconstitu- particularly warrant did not describe the by tional search and seizure conducted “things” seized, in its execu state officials. “gen Kentucky tion officials as a previously day As stated39 the after flagrant warrant, eral” resulted in a MсSurelys, the raid on the Common- right appellants’ abuse of constitutional pub- Attorney Ratliff wealth announced protected to be in their home from un licly that Committees reasonable searches and seizures. In the have could access to seized materials. McSurelys contempt trial of the clearly District erred in conclud Court September 14, 1967, three-judge On Kentucky search and sei federal district court entered an order zure was lawful.38 holding Kentucky unconstitutional under statute which the state criminal light conclusion, of this we now against proceeding McSurelys turn to the convictions. based, declaring the statute vague overbroad, “upon face its so IV sweeping application and of such toas provisions run afoul of THE CONTEMPT CONVICTIONS Constitution, re United States quires regulation specific narrow and The trial court’s “FINDINGS OF protected activity.”40 in the field of FACT AND LAW OF CONCLUSIONS That court further found that under the ON DEFENDANTS’ SUPPLEMEN- presented, circumstances decision in TAL MOTION TO INDICT- DISMISS Pfister, following Finding Dombrowski include MENTS” (1965) 14 L.Ed.2d Fact: pp. Appendix, Texas, supra 38a. Defendants’ Stanford v. Vol. note 971-972, No. 85 S.Ct. 512. Holding as we do that the search and McSurelys’ following 39. The events seizure un- officials was pages fully supra at arrest are set forth stated, constitutional reasons we through We them summarize express opinion need not an as to whether clarity. here for pur- a search warrant issued and executed September 14, subsequently suant 40. The court’s order of to a statute declared Appendix, retroactively to be is found in Defendants’ unconstitutional 2, pp. valid. 961-962. Kentucky, applicable, enjoined of some of them from one of Rat Mr. taking any courts, Furthermore, officials liff’s subordinates. investigator ‍‌​​​​​​​‌‌​​​‌​​‌‌​​‌​‌‌​‌​‌​‌​​‌‌‌‌​‌​‌​‌​‌​‌‌‌‍proceeding further action or was allowed to take back C., Washington, under the sedition statute. his offices in D. over further ordered two documents.41a The court hundred “Unjustified seizure vio- papers, books, “that all documents and Amendment, lates the Fourth whatever custody other material now paper; the character whether Attorney of Pike Commonwealth paper when taken the federal officers County, Ratcliff, the In- reflected home, office, was in the or else- ventory action continue filed taking ; where whether was effected safekeeping until fi- be held him by force, by fraud, orderly disposition by appeal nal of this case process procedure.”42 of a court’s or otherwise.” the uninvited Since ear is a “search Following the above-mentioned court and seizure” within the of the ambit Duffy, order, Lavern Assistant Counsel Amendment,43 surely Fourth the unin- Subcommittee, telephoned for Mr. eye vited of the Subcommittee’s investi- Ratliff if he had the seized asked gator is likewise “search seizure.” materials. facts, From the the conclusion is Thereafter on several occasions Oc- inescapable by that issued prior expiration tober to the production for the of Subcommittee appeal judg- of the time for from the McSurely prod were the three-judge court, ment of John inspection uct of the unauthorized Brick, investigator for the Subcommit- agent by of of search the documents Ratliff, tee visited Mr. Commonwealth However, itself. the Subcommittee Attorney, holding who was the seized trial conclu court reached a different “safekeeping” pursuant materials for sion. the above-mentioned court order. With- summary court held trial getting authority anyone out having officials, the state lawful doing, gave so Mr. Ratliff the Subcom- custody doсuments, the seized lawful of investigator mittee access to seized gave investigator ly the Subcommittee’s opened materials. A locked door was permission inspect and search them investigator. for the He entered and way transport to the and to them all the spected documents, made right property Government, right safe against tional to have their to the the inspec- comprehensive from unwarranted and secure most let alone—the framing by Thus, right by the rights tions. the Sub- of most valued the upon right, the relied protect committee of civilized men. To the unjustifiable here conviction of every by intrusion the upon upon based information derived privacy the the of Government searches, by from unconstitutional both individual, em whatever means by state investigator. ployed, officials Subcommittee’s of must be deemed a violation

the Fourth Amendment.”45 “exclusionary The rule” has its roots trial to The court seems have Weeks There United States.4 position taken whether or not Supreme Court ruled ob that evidence concerning

the information the docu illegal arrest, result tained as a of an subpoenaed by ments un was obtained seizure, par search or conducted means, “exclusionary constitutional ticipated authorities, federal rule”, which forbids the use of unlawful The inadmissible federal court. ly against seized items as evidence Court said: seizure, applies only victim of the to hence, prosecutions and, criminal is effect “The of the Fourth Amend- applicable legislative subpoenas. put to ment is to the courts the United against way the victim of the seizure in a a defense to indictments * * * prosecution. legis- charging A defendants with hearing prosecu- Congrеss lative is not a criminal their because of refusal to tion, subpoenaed by legis- comply subpoenas. and items with the sub- sought poenas lative committee are not as “evi- are therefore valid and admis- “against” person dence” to be used sible evidence in this case insofar subpoena they challenged to whom the is directed. have been on Fourth None grounds of the functions which the “ex- Amendment based clusionary prior rule” invoked to serve seizure of the documents state * * * by making would be enhanced officials. applicable legislative Appendix, 2, pp. the rule to sub- Defendants’ 974- poenas. 4. The fact the subcommittee supra 45. Olmstead v. note learned of existence the sub- 277 U.S. poenaed documents as a result of the seizure the state officials neither L.Ed. provides validates nor

H93 recog Supreme officials, in the ex- Court has Federal States and authority, require power nized that the Constitutional of their ercise against unreasonable searches and and restraints as ment under limitations power applies and au- seizures hear exercise of such ings. States,51 peo- thority, In forever secure the Watkins v. United and to houses, papers ple, persons, and Court said: against all unreasonable effects unquestionably duty of “It is all guise searches and seizures under cooperate citizens with the Con protection reaches This all of law. alike, gress in its efforts obtain facts not, crime or whether accused of intelligent legislative ac needed duty giving to it force and and the unremitting obliga It is their tion. obligatory upon all entrusted effect is respond subpoenas, re tion to system with the en- under our Federal Congress dignity spect 47 (Emphasis laws.” forcement fully testify its committees and supplied.) respect to matters within with province striking “The outcome the Weeks investigation. proper it was case and those followed This, course, con that the assumes sweeping declaration will be stitutional witnesses although Amendment, not refer- they Fourth respected by Congress as ring limiting to or the use of evidence justice. Bill court in a Rights courts, introduction, really if investigations applicable forbade through government officers obtained governmental action. as to all forms of give Amendment.”48 compelled violation of the Witnesses cannot be Ohio,49 Mapp Court said They evidence themselves. “exclusionary rule” the that without an subjected cannot be to unreasonable merely Fourth Amendment would Nor the First search and can seizure. words, form a freedom as press, valueless speech, Amendment freedoms of against upon unreasonable invasions political religion, and asso belief personal privacy, it held that abridged.” (Emphasis ciation integral part “exclusionary rule” was an supplied.)52 of the Fourteenth Amendment as well as language of Watkins taken the making We have Amendment, the Fourth ing it bind- consequences all of the that states. mean “the no less severe these are denial of purpose “exclusionary The brought merely is their denial because prevent, repair. rule” is “to not to Its by congressional subcommittee. a about purpose compel respect is to deter —to example, search an unreasonable For guaranty for the constitutional in the illegal if conducted effectively way by is no less re- and seizure available — congression- moving subpoena disregard pursuant а to a incentive to it.” agents’ 391-392, 47. that violation of Id. at the federal at 344. S.Ct. dissented Amendment. The Chief Justice supra 48. Olmstead v. United note damage “judicially created” to the 42, 462, 277 U.S. 48 S.Ct. 567. question Although remedy. he does “not 643, 1684, give 49. remedy 367 U.S. 81 S.Ct. 6 L.Ed. mean- need for some (1961). guar- 2d 1081 teeth to .the constitutional conduct unlawful antees States, supra 50. Elkins v. United note officials,”- government hesitate he “would 364 U.S. 80 S.Ct. 4 L.Ed.2d exclusionary until rule] [the to abandon Recently Supreme held Court developed meaningful is substitute some in Bivens v. Six Fed. Unknown Narcotics * * 91 S.Ct. 403 U.S. Agents, (1971), complaint L.Ed.2d that a 1 L.Ed. stated a federal 'cause of under the action 2d 1273 damages Fourth Amendment juries 187-188, allegedly resulting plaintiff at 1179. Id. at to the WILKEY, Judge, if concurring: than al subcommittee conducted Circuit law enforcement official.”53 result, IWhile concur and vote Lumber Co. United Silverthorne McSurelys’ to reverse convictions, I States,54 Court held disagree strongly majority’s with the protects party the Fourth Amendment formulation of this case and so feel com- papers compulsory production of pelled my to set forth own views. upon when the information which subpoenas framed was derived Exclusionary I. Relevance Rule through previous un- the Government Proceeding to the Here The Court said: constitutional search. Subpoena Knowledge A. forbidding provision “The of a essence acquisition of evidence a cer- outset, At let us be clear that merely way urge not evidence upon tain is that what the this court acquired shall not be used before so is indeed clusionary a novel formulation the “ex- that it shall not be used the Court but necessary rule.” It why so, at all.”55 develop state and this is because appears novelty theory it CONCLUSION upon which reversal is ordered recognized majority opinion, in the trial of the which hold that concludes: “We the ‘ex- proceeding. a criminal clusionary applies subpoe- rule’ to these of their convictions rested basis nas it and that was error for the Dis- upon subpoenas. the Subcommittee’s trict Court to them receive evidence The information Sub (p. 1194). at the trial” So items subpoenas committee were framed was evidence which relevant con- through derived tempt convictions, and which we are previous sei unconstitutional search and urged suppress, are the zure officials and the themselves, not documents which the investigator. own Subcommittee’s We subpoenas demand and which were ille- applies “exclusionary hold rule” gally County, Kentucky, seized in Pike error and that was by state and local officials. for the District Court to receive them at the trial. evidence agree police I this state illegal. judgments seizure It would follow of conviction of the seized that documents so could be reversed and the case is subsequent proceed- in- excluded in remanded to the District Court with against However, ings McSurelys. judgments acquit- the struction to enter of subpoenas il- never the themselves were tal. They sought legally may not or taken. and remanded. Reversed (possibility 311, (1958) 2 L.Ed.2d 321 Fort, U.S.App. v. 143 United States grand illegally before seized evidence 670, (1970). F.2d 678 D.C. 443 ; jury; upheld) v. Costello indictment 54. 251 L.Ed. 40 S.Ct. 64 U.S. States, 76 S.Ct. United (1956) (hearsay evidence 100 L.Ed. 397 up- presented grand jury; indictment to Although Id. at 183. at Schipani, held) ; 435 F. v. States United expansive language of Silver- this rather (proper (2d 1970) for a trial 2d 26 universally applied, Cir. thorne has not been judge deciding con- sentence to appears the it instances where that the from trial pro- sider evidence excluded it invоlve courts have deviated ; grounds) Amendment Fourth subsequent prior ceedings either Sperling v. Fitz- rel. ex United States patrick, trial, trial the itself. See and not the 1970) (2d Cir. F.2d 1161 Blue, U.S. United States (proper parole evi- to consider (il- board (1966) 16 L.Ed.2d hearing subsequent revocation dence at presented legally the seized evidence pursuant parole violator seized from grand upheld) ; jury; Lawn indictment search). unlawful v. United majority (1) the for- the “excluded” under traditional For intends. the hold- exclusionary squarely subpoenas of the rule. is mulation that is the suppressed, (2) which should be the examples suffice to illustrate Two majority opinion tells us the that Sub- novelty both the and the confusion ample knowledge committee had the appellants’ herent the formulation McSurelys’ activities without these sub- exclusionary applied to rule as poenas, investiga- as the Subcommittee majority opinion subpoenas, which talked to tor the state official on the opin- accepts as the decisive issue. him, “inspected phone, visited the seized point states, ion one. “The trial court materials, made notes therefrom and position seems to have taken the that provided copies of 234 documents. ‘exclusionary rule’, Further, investigator was allowed to unlawfully the use seized forbids copies take these with him to the Sub- items evidence the victim Washington, office in committee’s D. C.” seizure, applies only to criminal (p. 1182). suggest McSurelys’ I that prosecutions hence, and, applicable is not just Fourth Amendment were legislative subpoenas” 1192). (p. And effectively before violated point, quoting at another Olmstead issued, way there is no States,1 striking “The outcome of “exclusionary operate rule” could to bar the Weeks case . . . . . was . knowledge this so derived from the Sub- Amendment, although the Fourth not re- pur- committee’s ken. Nor would the ferring limiting to or of evi- use pose exclusionary served, rule be courts, really dence in its intro- forbade majority opinion reminds that duction, by government obtained if offi- Court has told us “[t]he through cers a violation of Amend- purpose ‘exclusionary rule’ is ‘to (p. 1193). readily apparent ment” It is prevent, repair. purpose not to Its is to subpoenas, only evidence 1193). (p. deter . .’” . relevant conviction appellants begins appear suppress, It which the thus ask us to analysis were never seized from we have here not the defendants what anyone government exclusionary certainly all, an else. Nor did of- rule case at according through any previously accepted ficers obtain these meaning. anyone’s complete inappropriate- violation Fourth applying rights; they exclusionary ness Amendment rule no doubt were dutifully typed by subpoena, to a staff as an item suppressed, stenographers, purely product evidence of and originally why property first of several reasons the exclu- the Subcom- sionary apply mittee. rule does not here. course, Of immediately it can be said suggest I have subpoenas, the content of the i. e. argued really exclusionary for an rule belonging list applicable evidentiary situation in McSurelys, illegal was derived from the hearing Congressional a before a com- True, state search and seizure. but mittee, might someday occur, which but suppressed what should be here the which did not occur in case. If the this knowledge knowledge, or use of the complied had the sub- acquired? which the Subсommittee If poena, tendered the documents called so, opinion the clearly court should so' for, ‍‌​​​​​​​‌‌​​​‌​​‌‌​​‌​‌‌​‌​‌​‌​​‌‌‌‌​‌​‌​‌​‌​‌‌‌‍stage and then when the at doc- state, up and then face available being placed hearing uments were in the justifications consequences of such being objected record, to their received extraordinary holding. in product evidence as the indirect of an But, yet, appellants only argued illegal search and seizure —then we obliquely, this and this comparable cannot be what would have had situation a

1. 277 U.S. 72 L.Ed. 944 pears the exclu- to rest on dicta in which Silverthorne trial to a criminal States,2 sionary applies. Then we would Lumber Co. United which at rule question, straightforward least does focus on more relevant have had the Court, subpoena question of yet when a en- will be as undecided forced, exclusionary confusing rule in contrast to the con- as to whether Congressional cept subpoena suppressing applies in docu- criminal trials hearings. as evidence ment an item of under the exclusionary respect, rule. all due With majority opinion logic All the I believe here to enforce that refusal a supporting an directed seems be legislative subcommittee’s question of ad- a affirmative answer demanding tecum, production duces hypotheti- missibility arising this documents which it learned a re- situation, of evi- the items cal fact where illegal sult of an search state offi- Congressional hear- dence offered ing cials, constitutes a most unfortunate and subject made the items the same unwarranted extension of overbroad previous violat- and seizure language ill-chosen in Silverthorne. rights. But Fourth Amendment suppressed— prop- be Silverthorne Holmes here the Justice evidence erly regu- exclusionary subsequent refused to under the rule —is Con- allow subpoena gressional subpoena lar itself manufactured remove the taint on evi- staff, dence which had been discovered Subcommittee evidence previous illegal search, purposes illegally McSurelys. taken grand jury investigation in a crimi- itself, physical If document it is the nal case. It must noted the in- majority subpoena, would vestigation solely there was aimed holding. suppress —that —and proceedings against same belonged never to the Mc- document parties rights whose Fourth Amendment possession, Surelys, was never had been violated. Since established “exclusionary no rationale of the rule” illegally rule barred use of ob- evidence any applicability has to it. If is the it tained, the Fourth Amendment would in- knowledge in the content of the reflected deed been have reduced to “a mere form subpoena, already had subsequent resulting words” if the portion knowledge, a substantial of such “legal” subpoena process was allowed to suppressing subpoena itself would purpose serve its sole intended of “wash- eradicating have no effect whatsoever ing” the evidence to allow its admission knowledge, logic such no of the “ex- stage in one of a criminal- case.3 Since previous clusionary rule” nor court deci- could serve no other valid Congressional sion has barred use of purpose, the Court refused to enforce knowledge, no how matter obtained. them. extraordinary ramifications of a rule which forbid would appears It thus that Silverthorne was use of information —the inherent consti- centrally premised on the established tutional, precedential, practical excluding illegally doctrine obtained evi problems nowhere discussed or —are dence in a criminal case directed majority opinion. even hinted at in the person whose Fourth Amendment Subpoena Sup- had B. been violated. When the Enforcement pression as Evidence Court there said that such evidence Taking all”, (cid:127)‘shall subpoena not be itself as the used at can crit- issue, Judge opinion ap- ical reasonably Matthews’ understood to have referred 385, 182, 2. 251 knowledge U.S. 40 illegal S.Ct. 64 L.Ed. from obtained (1920). 319 subpoenaed search would have made the documents, effect, in their own “fruit.”

U97 any Applying in II. Rationale of the evidence in Exclusion- to use fashion ary Congressional Inquiries Rule to such a criminal case4 similarly established If there Congress A. and Courts —Distinc- may principle that “tainted” evidence tions legislative in introduced before not be Although the Fourth “against” Amendment (which quiry not directed right free from be unreasonable anyone),5 may not be considered apply, searches and seizures does like purpose, I fashion for would many protections, other constitutional agree majority’s view with the have to Congressional inquiries,7 the landmark However, application this case. cases which have established ex- Congress exclusionary has rule to panded exclusionary rule nowhere established; question not that been suggest applies that outside of the emerged important con has as the most proceedings.8 context Two Although troverted issue this case. important distinctions are decisive majority appears to assume such analyzing any applying rationale for application, strongly I feel thаt blanket Congressional exclusionary rule in- exclusion of all “tainted” evidence quiries. legislative inquiries or consideration principle should First, not established aas we must never obscure the If, attempt show, highly of law. I will il important distinction between the sought may legally taken evidence right constitutional and whatever reme- may be “excluded” from dy thought appropriate, effective consideration, the Subcommittee had a protect right. necessary To right production.6 on its And insist be free from unreasonable searches and right, no right. had under the exclusionary seizures is the analysis, indirect Silverthome remedy found, to refuse. rule is a not in the Con- majority opinion just 4. The another tion of the Fourth Amendment to Con- juice gressional stance in which Investigations, “the [Justice 52 Minn.L.Rev. Holmes’ squeezed (1968). words’] context has been 665 them, and the husks used premise syllogism as a for a exclusionary is, all, he never 8. Since the rule after contemplated.” Egan, evidence, re 1971) appear 450 F.2d a rule of it would 199, (3rd (Gibbons, J., 230 “logical” Cir. its next extension would be to dissenting). Judge language Adams’ civil cases in which the is a Government contrary majority opinion party. Significantly, Supreme Court Appeals gone Court of Note, in this case was has never that far. Constitu- impliedly rejected opinion for the tional Exclusion of Evidence Civil Egan, Litigation, Virginia Court in United States v. 55 Law Review 1484 41, 2357, 408 92 (1969) ; Cleary U.S. Bolger, 392, 33 L.Ed.2d 371 U.S. (decided 26, 1972). 403, (1963) June 83 S.Ct. 9 L.Ed.2d 390 (Goldberg, J., concurring). Fort, U.S.App. Congress could, course, provide by See United States v. (1970), D.C. exclusionary 443 F.2d statute for an rule rela- denied, cert. investigations. 403 U.S. 91 S.Ct. tion to its own As the 29 L.Ed.2d notes, Government respect it has done so illegal wiretaps in 18 U.S.C. part opinion 6. As the However, latter of this will § 2515. it should also be noted demonstrate, speciаl provision statutory has that no such .right production necessary judge- insist on the of evi- would have been if the pertinent subject exclusionary already dence of its in- made rule extended quiry. quite ground, legis- On that distinct as far as the claim. The history Congress, these convictions must be reversed. lative indicates passed 2515, clearly when it § understood States, “exclusionary See Watkins v. United the traditional rule” proceedings. 1 L.Ed.2d limited to criminal See (1954) ; Sen.Rep. U.S.Code, Cong. McPhaul v. United No. 372, 382-383, Admin.News, p. & 5 L.Ed. (I960) ; Note, Applica- 2d 136 cf. 1198 begin- law, stitution, hearings, judge-made in but deliberation and debate such judi- legislation thought

ning in 1914. This is with Weeks9 desirable or need- technique deterring cially-created il- ed.

legal certainly never has been intrusions simple examples Two illustrate the un- any thought inexorably, follow, in applying wisdom of exclusionary context, merely becáuse a Fourth Congressional rule to committees. Amendment has occurred.10 violation example, As a relevant let us assume appropriate- much Secondly, of the identical whatever information sought exclusionary which the rule as a reme- ness of the here in trial, MeSurelys’ published dy in in a criminal courts law in action, newspaper perhaps series of or in a civil same ra- articles. Sub- sequently, certainly apply every it is in hear- revealed that fact tionale does not gained illegal ings Congressional by recited was committee.11 an before a Congressional governmental agen- objectives conducted a state of a hear- cy, obviously any which made no effort a criminal trial are so contact agency Congressional widely federal or trial is commit- different. The criminal guilt tee. Let us or further to determine innocence assume that peoplе responsible subject specific successfully prose- are dividual accusations. illegal Congressional hearing Everything cuted for the is search. gathering information, obtained that search is the formula- inadmissible proceeding. in conclusions, tion broad court the determina- Should the Con- gressional policy tion of committee national to be embod- be denied the use —all subsequently legislation, of the ied if information after contained States, 383, Nor are Weeks v. the next United authorities cited 232 U.S. helpful. 341, Weeks, supra, quoted 34 more S.Ct. 58 L.Ed. 652 duty to the effect: “. . . The States, 10. See Costello v. United 350 U.S. giving to it [Fourth Amendment] force 359, 406, (1956) ; 76 S.Ct. 100 L.Ed. 397 obligatory upon and effect is all entrusted States, 339, Lawn v. United 355 U.S. 78 system under our Federal with the en- 311, (1958) ; 2 L.Ed .2d 321 United 383, the laws.” 232 U.S. forcement of Blue, 251, States v. 384 U.S. 86 S.Ct. 392, 341, 344, at But, at 58 L.Ed. 652. 1416, (1966) ; 16 L.Ed .2d 510 Alderman course, Congress is not “entrusted States, 165, v. United 89 S.Ct. laws”; with the enforcement 961, (1969) ; 22 L.Ed.2d 176 United is the role of the Executive and ‍‌​​​​​​​‌‌​​​‌​​‌‌​​‌​‌‌​‌​‌​‌​​‌‌‌‌​‌​‌​‌​‌​‌‌‌‍Judicial Schipiani, (2d States v. 435 F.2d 26 Cir. branches, Congress maker, is the law 1970) ; Sperling United States ex rel. quite may different considerations come Fitzpatrick, (2d 1970). 426 F.2d Cir. play, into as the text illustrates. majority opinion up Certainly States, nowhere faces Watkins v. United Judge 178, two vital distinctions. U.S. at 77 S.Ct. at nothing Matthews (1957), asserts “There is 1 L.Ed.2d 1273 holds that “The logic history ‘exclusionary Bights applicable [Congres- of the rule’ Bill of support inapplicability legis investigations sional] governmental as to all forms of upon lative framed information action. Witnesses . through derived subjected the Government cannot to unreasonable previous search”, again, unconstitutional search and seizure.” But quotes then way questions ap- Mr. Justice Brandeis dis no settles the of the senting propriate remedy applicability Olmstead v. United or the remedy at at the same in a trial and cоurt protect, right, every L.Ed. unjustifiable Congressional hearing. 944: “To And government U.S.App.D.C. Fort, intrusion States v. 255 at privacy individual, (1971), what 443 F.2d relied employed, ever the means majority here, must be deemed when we cited a violation of immediately the Fourth Amendment.” Watkins we commented “But respect, With all applicable due how does this settle which constitutional questions (1) appropriate depends consequences as to on the nature and remedy violation, (2) ap governmental for the might action.” We plicability remedy of the same to court well have in similar added comment trials investigations? applicable vein as to remedies.

1199 story newspaper specific the it was because the details these illegal search, crimes, jury which consti- based on the in while the criminal permitted any tutes information that could not be re- case would not be knowl- edge ceived in a criminal trial? the Could seizure heroin itself. Congressional committee from be barred objectives Not are the of all Con- follow-up from news- leads derived gressional actions so different paper story by application those of a criminal trial in court —as poisonous “fruit of the tree” doctrine? constitutionally different as de- Should to obtain documents signed legislative functions of the McSurelys just clearly from the as as — judicial pragmatic branches —but evalua- originally in the case derived at bar tion of the results to demon- be obtained illegally obtained information —be exclusionary no strates rule has suppressed on the rationale of the exclu- application legislative hearings. sionary rule, urge as here? I think not. I think the Con- applying The unwisdom of the exclu gressional committee could take this in- Congress sionary rule to is clear when formation, illegally obtained and thor- primary pur we examine how well its oughly law, inadmissible in court of a pose deterring official misconduct purpose utilize it for in whatever a application.12 would be served such an Congressional hearing. Many respected authorities ex have example, pressed As suppose a second let us doubts that of law enforcement response series of some 100 narcotic arrests with- ficials monitor in their conduct period flowing in consequences a limited area of time in from their resulting the District of Columbia. It turns out mode search in faulty that all arrests were made under cases.13 It seems even more doubtful procedures. sup- hypothetical All seized heroin is that a remote effect on de pressed prosecutions. Congressional in the criminal rivative use of discovered Congress signif But if the weighing possibly figure is a nar- information could icantly cotics law for Columbia, District in officials’ motivations.14 these passed such as 1970, par- beat,” “cop or some on or even the Will provision ticular nighttime Attorney such as moun Commonwealth’s seizures, searches and would it not be tains of Eastern involved with permissible relevant here, conduct if Con- alter his gressional exclusionary applied committee to receive evidence rule is police tendered Congressional hearings? leg on all Enforced details ignorance clearly 100 just arrests? I think is too so.- islative attenuated Congressional discipline police jus committee could a form of on the not knowledge be denied tify of the crimes nor costs.15 obvious 12. “The rule prevent, police is acting .agents calculаted to state for the repair. purpose is, Its to deter —to Subcommittee. compel respect constitutional opinion Mapp guaranty majority only effectively relies v. available way by 1684, removing Ohio, 6 L. 367 81 S.Ct. U.S. incentive dis- — regard (1961), it.” Elkins Elkins Ed.2d 1081 States, v. United 364 U.S. 80 1437 S.Ct. U.S. L. (1960), (1960) ; comparing Terry Ed.2d 1669 the role ever without see also Ohio, investigation a state of a prose prosecution (Mapp) L.Ed.2d to a federal by the cution based on evidence obtained 13. See Bivens v. Six Unknown Federal federal state turned over Agents, 388, 415-416, Narcotics platter” (Elkins). authorities on “silver (1971) 29 L.Ed.2d 619 time, (1914) long It was from Weeks (Burger, .1., dissenting). C. (1960), Elkins before the Court 14. It important exclusionary to note that there has decided that rule fed suggestion been possibly no in this case that eral courts be effective could protecting against illegal searches may for dam- exclusionary be liable searchers fact part, rule ages guilty crime. designed protect double Would foreclosing resulting justify indignity from circumstance alone conviction Congressional possible It to access the best violation.16 Amendment Fourth subjects relationship to other vi- sources of information on no direct has illegal national consequences of tal concern? adverse embarrassing publi- search, such as Congress, will as even its critics Its facts.17 cation of the discovered desperately information agree, needs legislative inappositeness investi- traditionally upon to act. It has asking highlighted by gation setting is investiga- given powers of broad been “suppression” exactly would result what need.18 Un- tion with which to meet that legis- expected produce. Could Congress less we are assume suggested by lation Subcommittee naive, pristine much should remain insufficient “evidence” for invalidated inevi- it should consider will the data Assuming the in the official record? tably thoroughly come to its attention widely publicized by the facts are first ways. unadmirable here, officials, they how state were disregard unquestioned Conscious illegal fur- are the victims of the facts, merely they have come because injured expectations pri- ther in their open particular manner, in the in a out vacy by requirement docu- challenged vigorously has been even as produced in a closed ments be committee judicial nicety. an artificial This at- hearing? problems, If narcotics serious tempt impose ivory such an tower government or indeed the misconduct legislative mentality on the battlefield is officials, exposed by police inquiries more unreal even and unworkable. Amendment, which violate the Fourth Whereas exclusion the criminal may in- derivative evidence of course be may area reassure con- citizens their admissible before a court —and clearly rights ment have been violated can the seizures majority state officials. How compliance blithely cannot excuse him from future assume that here imposed by application (to exclusionary with the duties law. Sub- of the rule questions, stantial never Congressional subpoena) constitutional in federal contemplated by will, be, the authors of the ex- courts or should effective in illegal clusionary rule, past Congressional if regulating would arise the conduct of Or, put way, intrusions executive branch state committees? it another compliance majority are to excuse with the future how can the assume that legislature. application (to citizen’s duties the federal exclusiоnary of the rule originally documents or information ob- may, course, remedies be avail- Other illegally) tained state authorities in a actively in- able those who have Congressional hearing will, be, or should legal right published truded or without a regulating effective in the conduct of state to do so. authorities ? necessity-of phrasing ques- The the above investigate Congress may not of course alternately tion what I illustrates con- persecute potential solely witnesses. perhaps obscurity sider to be the con- convincingly have not just majority fusion what thinks acting alleged the Subcommittee exclusionary should be barred rule legitimate any purpose than the other IA, supra. See here. Part gathering of information on which legislative proposals. argument base See Walder v. United 62, 64-65, made that since the Subcom- could be L.Ed. already agent, Brick, integrity argument had mittee’s Mr. of the issuance seen the documents before of the courts would suffer from subpoenas, they have been “dirty could volvement business” of purposes violating To harassment. issued constitutional seems most contrary, could forceful when the court refuses to con- all such documents whether it had know vict someone the law for violation of subpoenas, and, gathered through on the face the basis of evidence might seeking ones which hand, additional official lawlessness. On the other person’s have existed. the fact that a Fourth Amend- gator government’s McSurelys’ execu- a violation their fidence that rights, abider, of infor- Fourth Amendment if that law denial will viola tive be a Congress provide tion sole neither was also the source of the in will mation to meaningful citi- nor reassure formation which the deterrence legislature might government’s issued, justify refusal to en zens that worldly-wise subpoenas. previously force the lawmaker. While As not will abe ed, may apply allow their the Fourth refuse Amendment does the courts Congressional agent processes tainted to become If committees.19 tree,” eating poisonous “fruit of the Subcommittee had searched the folly to McSurelys’ it would be forbid perhaps refusal to en home,20 knowledge apples and to resulting that bad exist force the would be stymie Congressional the basis only action the or available effective deterrent origin. information, good in of or all bad of such official 21 lawlessness subpoe- the It that must be remembered sought, were nas, documents the inspection Mr. Brick’s of the docu (and unpoisoned) fruits the relevant might ments in Mr. Ratliff’s custody22 eat court to the trial was asked which illegal be viewed an an analysis contempt in case. As the this agent of the Subcommittee which should subpoe- shows, the Silverthorne above by denying any be deterred further en may Congress only never must if nas fail subpoena power forceable to the Sub tree someone eat of a the fruit which regarding committee information so poisoned. else has However, such a view of discovered.23 problems this case would create more Congressional Partici- B. Effect than it solved. pation in Search require it degree First would Arguably, par a remand de- active some passively ticipation termine whether what the Brick Subcommittee’s investi copies. States, 19. But would be hard to dis- Watkins v. United 354 U.S. tinguish copies 178, 187-188, view of Brick’s the 1 L.Ed.2d phone hearing (1957) ; his them read over see also v. United States reading reprints Fort, supra in news- verbatim note 443 F.2d at 678. paper. issue, deciding I Withоut Compare Nelson v. United would find it hard to characterize U.S.App.D.C. 14, (1953), 208 F.2d 505 latter two activities as “search.” agent’s in which a il- Senate committee legal search led to exclusion the evi- appear that the custodian’s 23. It would not subsequent dence seized operate legalize this consent should trial. by the was directed “search.” Ratliff keep- papers “in safe court to hold If Mr. Brick is shown to have believed II, p. appeal. ing” pending D.A. Vol. good faith that Mr. Ratliff had author- original had been seizure 962. Since the ity documents, him show it seems illegal, inference the natural declared doubtful that his examination could be holding them he was would that be for possible considered a crime. It is also subject McSurelys, the benefit of personal liability damages that would course, appeal. They, reversal on be barred the doctrine im- of official given to voice a chance never notified munity. Doe, McMillan, See et al. v. objections strong “search.” U.S.App.D.C. 280, 459 F.2d Party Note, to Search Consent See Third (1972) ; 1316-1318 see also Dombrowski Chicago Seizure, L.Rev. 33 U. Burbank, U.S.App.D.C. argument (1966), actual that 812 authority F.2d 821 necessary consent appears It also Mr. search. See Brick first validate a warrantless copies California, examined xeroxed of the docu- Stoner (hereafter Appendix (1964), ments. Defendant’s 11 L.Ed.2d 856 “D.A.”), II, p. good implies, alia, faith If he had inter stopped there, might he has belief searcher be different of the official might case. validate consent does not have violated the obtained valid Ratliff McSurelys’ rights by Fourth Amendment his act. xeroxing displaying the material and original others, agency’s rather if the custodian seizure from Ratliff learned exclusionary exami- was held unlawful. active he found his than what documents, provided any descriptive nomen- a suf- rule now makes nation sampling on the issuance clature of items foundation for the ficient illegal platter” subpoenas.24 “silver irrelevant If Brick’s search tarnished regard place had admission evidence took after enough on which to draw criminal case. The evidence is barred information subpoenas, could not court consideration of whether without search, what officers did was a from the federal said to have derived However, overturning convic- search or not. questions troublesome concerning appear appropriate as a would arise less tions would personal liability of of- law enforcement deterrent. recog- a second ficers if “search” were although Second, examination Brick’s nized in those circumstances. Given may McSurelys’ cooperation enforcement, need for in law illegal subcommittee characterized as view; adopt I would be reluctant illegally reception passive action, myriad possible problems but seized information from others cannot drawing extrapo- a line short of such an properly be termed a “search.” even lation are evident. preceding clear that discussion makes reception by legislature mere Finally, likely the most effect of such prohib- “tainted” evidence should not be ruling slight change would be a in the Ratliff, court-appointed ited. If Mr. behavior of subcommittee staff investi- custodian, had disclosed the documents gators. they Once were contacted world, to the whole the Subcommittee custodian of documents such as Mr. Rat- being in to could listen without held liff, willing to violаte the com- court’s have an active role in that violation of McSurelys’ rights, they mand and the McSurelys’ expectations privacy. merely request every- would that he leak barring Thus, because thing press, along only send xe- press merely Brick and the were not told copies, place roxed or in documents everything by the would custodian plain view and stand to turn the excluding to amount evidence Con- pages.25 gressional consideration because Rather than McSurelys’ rights wander into the privacy thicket to had not troubling of overfine and enough! distinctions thoroughly been violated generated by theory of the case based Third, if Brick’s examination role, prefer on Mr. Brick’s I would to search, documents can termed rest ground the decision here on a less inspection by agen- one law enforcement likely produce to a remand in this case cy of custody of anoth- open dangerous might, by extrapolation, extrapolation er to less also be char- possibly illegal acterized as a in others. search— 24. The claim that the Govern 25. The exact nature of subcommittee action place ment concedes that would which would suffice to an “ac- not have been issued without tive” Sub role is unclear. What cannot be de- “opportunity legislative illegally committee’s to nied is examine the that use of II, p. 940, hardly documents.” D.A. Vol. No. seized evidence would end even if However, investigators per- the court below found committee all avoided the Subcommittee would not have known sonal involvement official misconduct. dispensing of the request documents “but for [the] Even with an overt probably seizure discourage the state officials.” D.A. Vol. would law en- II, p. stipulation McSurely sending along A forcement officials Ratliff appeared indicates likely that Mr. Brick learned a documents which to be of great Congress. deal about the nature of the docu interest to merely by questioning ments Mr. Ratliff (which hardly could be characterized as a search), II, p. D.A. Vol. general Pertinency riots III. disorders. Chair- man of the Subcommittee articulated ground upon sounder purpose opening in his statement.30 contempt McSurelys’ convictions subpoenas’ argua- Some of demands is the of the must reversed failure bly inquiry. to related such an How- nec- one of the Government establish many ever, apparent have no such con- essary pertinency elements of case: nection. subject of of its demands to the valid legislative inquiry. nothing Notably, absolutely there is pertinency is an affirmative Proof suggest the record31 to the Mc- element case in Government’s Surelys’ relationship Appalachian prosecution under U.S.C. § Volunteers, Planning Organiza United States;26 Deutch v. Bowers tion, Summer, Vietnam National Con Although United States.27 words anything ference New Politics had sug literally the statute can be read to do crime, at with all to violence riots. gest applies requirement only existed, up If some connection it was questions, pertinency requirement to show that connection Government correctly apply has been construed trials. contrast legislative aspects investiga all of the organizations, these four the Govern subpoena including a duces tecum tion — for did ment demonstrate at trial production of documents.28 pertinency regard inquiry legislature While the can demand organizations, showing three other wishes, only punish documents it it can рossible connection the riots cooperate refusal when its demands legitimate objects which were the permissi shown to be limited to the inquiry.32 Subcommittee’s In the ab actually scope ble and authorized of the appears showing, sence of such a inquiry.29 organizations regard to four broadly legisla- construed, Most this above the named was di Subcommittee inquiry tive concerned the causes investigation verted from of riots to 456, 1587, 26. 367 U.S. 81 S.Ct. 6 L.Ed.2d pertinency documents sub- of the dence (1961). 963 poenaed.) subject U.S.App.D.C. 79, 32. 92 Subcommittee’s 27. 202 F.2d 447 disorders, prevalent vestigation, (1953). the then subsidiary perti- obviously included 148, Orman, 28. United States v. 207 F.2d concerning possibility questions nent (3rd ; 1953) 153 Cir. Marshall v. United large-scale rioting. conspiracy to foster States, U.S.App.D.C. 184, 85 F.2d 176 Unquestionably, evidence that there was 473, (1949), denied, 474 cert. 339 U.S. several meet- had attended 933, 663, 1352, 70 S.Ct. 94 L.Ed. rehear immediately preceding ings in Nashville ing denied, 959, 976, 339 70 94 U.S. meetings involved riots there. These possible argument L.Ed. 1369. One SNCC, and SSOC. SCEF members reading require statute not pp. seq. II, ‍‌​​​​​​​‌‌​​​‌​​‌‌​​‌​‌‌​‌​‌​‌​​‌‌‌‌​‌​‌​‌​‌​‌‌‌‍et Vol. 1041 Some D.A. pertinence subpoena of a is that the Con place meetings the “SSOC took gressional precisely committee cannot organiza- They official included House.” articulate the relevance of be meetings At least one tional SCEF. here, However, fore it has seen them. promi- meeting featured an address argument pales light of the fact member, apparently entitled nent SNCC agent was, that an Subcommittee “SNCC, Communism.” Black Power say least, thoroughly familiar with escape not the Subcommittee’s It could McSurelys’ personal most of effects. par- that at least certain attention Bowers, meetings appeared supra, p. ticipants 202 F.2d at these precipitation instigаtion or be involved Thus, I, pp. Mc- 30. D.A. Vol. Nashville 536-48. riots. Surelys’ three connections with pertinent II, pp. organizations seq. (Ex- 31. D.A. have been 1041 would et cerpts Hearings inquiry objects if before the Subcom- limited. so mittee stated had been Government evi- to be 1204 entirety not and it is McSurelys 33—a in its investigation punishment person cull con who faces

nonpertinent inquiry for which the good from the bad.35 tempt powers are not available. subpoe- Accordingly, as some of the Dairy Co. v. United In Bowman per- not shown nas’ demands were

States,34 held Court legislative inquiry, the Dis- tinent grant refusing held in not be trict Court erred appellants’ One should good part judgment subpoena of ac- motion for under a McSurelys’ part quittal convictions The burden and the bad. good subpoena is to see that should be reversed. court “ 95 ‘[P]ertinent’, L.Ed. to describe 71 S.Ct. as used U.S. inquiry, congressional (1951). requisite for valid prop- subject pertinent matter means perti- generally inquiry, erly 35. 341 under person interrogation.” under L.Ed. 879. court nent Followed U.S.App. respect comply Rumely to refusal with v. United aff’d, subpoena. (1952), States v. F.2d D.C. U.S.App.D.C. 222, 97 L.Ed. 770 Patterson 92 206 F.2d (1953). notes Washington.44 Subcommittee’s offices in copies therefrom and received xeroxed [holding unconstitu- the sedition statute Id. prosecution enjoining of de- and] tional Testimony Investigator Brick, 41 a. De- statute. fendants for violation of said Appendix, 2, pp. fendants’ 726-741.

Notes

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[*] had therefore States, 2. The state officials 42. Olmstead v. United custody docu- 438, 477-478, of the lawful and valid L.Ed. they returned (dissenting opinion Brandeis, J.) until such time as ments pursuant to the (1928). them to defendants Appeals. of custody, the Court direction 43. Alderman Having lawful and valid 165, 171, 203, 22 L.Ed.2d granted agents they permission inspect the docu- of the subcommittee holding lawful. The text of the court’s is as fol- ments was by the stаte if seizure Even lows: retroactively unlaw- made 1. The seizure defendants’ docu- officials court, by by the district ful the decision ments the state officials incident afford defendants their the state fact would arrest for violation of comply refusing justification with sedition statute was lawful at the time subpoenas. The “ex- made subcommittee [it] occurred and was not clusionary un- retroactively by the use of rule” forbids unlawful sub- only lawfully sequent as evidence items seized court decision of the district nothing logic his- nor in the might appropriately There activity more That sup- “exclusionary tory rule” to (1) an unconstitutional as be described legislative inapplicability sub- port power the Commonwealth exercise upon poenas derived information framed Ratliff, subordinates attorney, and his through previous right the Government no had Ratliff at a when time As Mr. Justice search. except unconstitutional papers to these in and whatever has written: (pending Brandéis safekeeping to hold them pursuant order of appeal) Constitution makers of our “The court; (2) three-judge as an unlaw- conditions favor to secure undertook pursuit happiness. ful encroachment able to They investigator significance recognized himself feelings Amend- under the Fourth spiritual nature, of his man’s only and sei- They was the search ment. Not knew and of intellect. his property appellants’ pleasure Com- part pain, zure of illegal, but sub- officials found monwealth life are satisfactions property sought sequent things. They of that and use in material investigator, beliefs, protect the Subcommittee in their Americans cooperation thoughts, the Commonwealth their emotions attorney, appellants’ conferred, constitu- They violated their sensations.

Case Details

Case Name: United States v. Alan McSurely United States of America v. Margaret McSurely

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 20, 1972

Citation: 473 F.2d 1178

Docket Number: 24812, 24813

Court Abbreviation: D.C. Cir.