driveway. Lumsden then returned to the 4th Street address to secure the assistance of other agents to effect the arrest of Hayes. When Lumsden returned with other agents to the West 8th Street address, the Volkswagen was no longer in the driveway. As the agents approached the front door they noticed a white male looking out a front window. The front door was opened by a female, later identified as Linda Hayes. When informed that the agents were there to arrest her husband, she stated that she was the only person in the house.
The agents then entered the house. Once inside, they determined that the white male observed in the window was not Hayes. Lumsden, while standing in the living room with Mrs. Hayes and the male, observed on the top of the television set an envelope postmarked Cali, Columbia. The observed envelope was similar in several respects to other envelopes which Lumsden knew had been used to mail cocaine to Erie.
We find that the warrantless entry of the residence at 949 West 8th Street was, under the circumstances, completely justified. The agents had reason, especially following Mrs. Hayes denial, to believe that Hayes was in the house. They had every reason to suspect that Hayes had the missing booklet and its contents in his possession when he left Mertens' home. Unless an early arrest could be effected it was very possible that this evidence would not be recovered. We also note that the entry was effected in an entirely peaceable manner.
The search of the premises at 5467 Glenwood Park Avenue is also challenged. Hayes claims that the Magistrate issued a warrant for the search of said premises in consideration of facts which could occur in the future and not on existing factual matters. It appears that it was only the execution of the warrant which was contingent upon future happenings and not the issuance of the warrant by the Magistrate. We find ample probable cause had been presented to the Magistrate before issuing this warrant.
Both Hayes and Mertens claim error in the government's implication to the jury that Edward Mertens had pleaded guilty to the conspiracy charge in the indictment. Both defendants admit, however, that no explicit mention of Edward Mertens' plea of guilty to the conspiracy charge was made within the hearing of the jury. The only statement made within the hearing of the jury was that Edward Mertens had plead guilty to his "involvement" in the matter. The jury was not aware of the specific crimes with which Edward Mertens was charged because the indictment was not sent out with the jury during their deliberations nor was it introduced into evidence. We find no error in this procedure.
Defendant Mertens claims error in the admission into evidence of a handwriting examplar taken October 7, 1974 in which Mertens copies, at the direction of the government agent, the text of incriminating letters alleged to have been written by him. We find no error in submitting this examplar to the jury. The circumstances under which this examplar was obtained were explained to the jury and, since the original was properly in evidence, we see no error in admitting the copy.
The final issue which we will consider in detail is our denial of motions to suppress documents seized from Patrick Mertens on November 12, 1974. It is on the basis of these documents that the government's handwriting expert was able to identify Patrick Mertens as the writer of certain incriminating letters. On November 12th, a non-jury hearing was held on a motion of co-defendant Edward Mertens to withdraw his guilty plea. Patrick Mertens was seated in the first row of spectator seats in the courtroom, and Patrick Mertens' counsel was seated at counsel table. At the conclusion of testimony on Edward Mertens' motion, the United States Attorney approached the bench and informed the court that Patrick Mertens had been writing during the hearing. Patrick Mertens' handwritten materials were then visible both to the United States Attorney and to the judge sitting on the bench. The United States Attorney also reported that handwriting exemplars previously secured from Patrick Mertens under this court's order had proven unsatisfactory.
The United States Attorney asked that the defendant be ordered to surrender the papers in his hands to the United States Marshal for handwriting comparison. The court orally directed the defendant to surrender and the Marshal to seize the papers which were in view. The Marshal was ordered to seal the papers in an envelope and deposit the envelope with the Clerk.
After the hearing the court delivered the envelope to the counsel for the defendant for examination prior to their being viewed by any other party. Counsel was allowed to claim and receive any of the papers, without their examination by any other party, including the judge, to which he made a claim of privilege, either of self-incrimination or of attorney-client communications. There were four sheets of paper and counsel claimed a privilege with respect to three of them. These three were returned to him without examination by any other person. The counsel stated that he had no claim of such privilege with respect to the fourth sheet of paper, and this was delivered to the United States Attorney for the sole purpose of comparing handwriting. No part of the writing was to be used for any other purpose and no part of the text was to be used for any purpose except the comparison of handwriting.
Patrick Mertens moved to suppress introduction of the evidence for any purpose. Mertens based this motion on claims of violation of the right of protection against unreasonable search and seizure under the 4th Amendment, the rights to be protected against compulsory self-incrimination under the 5th Amendment and the privilege of confidentiality of communication between lawyer and client.
Requiring a defendant to produce examples of his handwriting does not violate the privilege against self-incrimination under the 5th Amendment:
"A mere handwriting exemplar, in contrast to the contents of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection." Gilbert v. California, 388 U.S. 263, at pp. 266-267, 87 S. Ct. 1951, at p. 1953, 18 L. Ed. 2d 1178 (1967).
There is no violation of 4th Amendment protection against unreasonable search and seizure by compelling the production of handwriting exemplars. United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973); Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); United States v. Doe (Schwartz) 457 F.2d 895, 898-899 (3rd Cir. 1972).
There is no violation of the protection against unreasonable search and seizure when the objects seized are in plain view of a person lawfully present at the moment of the view.
The papers were not in a place protected by the 4th Amendment. They were visible in the hands of a spectator in a public courtroom. They were not concealed upon the person of the spectator requiring a search. Thus we have no question as to whether the exigencies of the situation would require a warrant. Such a doctrine applies only when there is a claim of "plain view" of the object seized where otherwise a warrant would be required, such as a seizure connected with an arrest of a suspect.
Fed.R.Cr.P. 17(c) allows the court to command a witness to produce books and papers . . . before the time of trial and may permit them to be inspected by the parties and their attorneys. This rule can be invoked by the United States as well as a defendant. United States v. Eli Lilly & Company, 24 F.R.D. 285 (D.N.J.1959). A defendant may comply with such an order and still object to the production of the material or its fruits as evidence against him in his trial. United States v. Ryan, 402 U.S. 530, 91 S. Ct. 1580, 29 L. Ed. 2d 85 aff'g, 444 F.2d 1095 (9th Cir. 1971).
The court in Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886) said: "(Any) forcible and compulsory extortion of a man's own testimony or his private papers to be used as evidence to convict him of crime, or to forfeit his goods, is within the condemnation of the [4th and 5th Amendments]." But it is only evidence of a testimonial nature that cannot be compelled from an accused. 8 Wigmore, Evidence § 2263 (McNaughton ed.) See also United States v. White, 444 F.2d 1274 (5th Cir. 1971) and United States v. Rogers, 475 F.2d 821 (7th Cir. 1973).
Chief Justice Burger, when a judge of the Court of Appeals recognized the dual nature of a handwritten text.
"Words can be used as physical evidence apart from their communicative content; even if an accused were coerced to write out a full confession, random words of that confession could be used as an example of the accused's handwriting, provided of course the jury did not learn they were from a confession." Lewis v. United States, 127 U.S.App.D.C. 269, 382 F.2d 817 (1967).