The opinion of the court was delivered by: LORD, III
On November 4, 1976, Anna Jane Feeney, Albert E. Pace, Henry Pace, Jr., Maryann Pace, Joseph Trout, Dolores Trout and Patrick Joseph Dixon appeared before the grand jury pursuant to subpoena, but refused to comply with the grand jury demand for handwriting exemplars, fingerprints, photographs and voice exemplars ("physical characteristics"). We must decide whether a defendant in a civil contempt action
stemming from the defendant's refusal to divulge physical characteristics may defend by asserting that the grand jury subpoena was the primary product of an illegal wiretap. If a witness may so defend, we must determine the appropriate scope of inquiry where the bases for the witness' defense are, as here, that a court-ordered wiretap is insufficient on its face and that the interception was not made in conformity with the wiretap authorization.
I. PHYSICAL CHARACTERISTICS AS "EVIDENCE DERIVED"
Title III of the Omnibus Crime Control and Safe Street Act of 1968, 18 U.S.C. § 2510 et seq., provides "a comprehensive scheme for the regulation of wiretapping and electronic surveillance. * * * Title III authorizes the interception of private wire and oral communications, but only when law enforcement officials are investigating specified serious crimes and receive prior judicial approval, an approval that may not be given except upon compliance with stringent conditions." Gelbard v. United States, 408 U.S. 41, 46, 33 L. Ed. 2d 179, 92 S. Ct. 2357 (1972).
When there is an interception in violation of the statutory scheme, section 2515
provides that the contents of any such communication and any "evidence derived therefrom" is not to be received in evidence before, inter alia, a grand jury. The government concedes that testimonial evidence can be "evidence derived," triggering the section 2515 defense. Cf. Gelbard v. United States, supra. The issue then is whether physical characteristics also can be "evidence derived" within the meaning of section 2515.
The purpose of the section 2515 exclusionary rule, like the exclusionary rule of the fourth amendment,
is to deter privacy-invading misconduct by denying officials the fruits of their misconduct. In determining those fruits, the fourth amendment does not distinguish testimonial evidence from physical characteristics or any other evidence. See, e.g., Davis v. Mississippi, 394 U.S. 721, 22 L. Ed. 2d 676, 89 S. Ct. 1394 (1969) (fingerprints suppressed as fruit of illegal arrest); United States v. Cassell, 452 F.2d 533, 541 (7th Cir. 1971) (handwriting exemplar suppressed as fruit of Miranda violation); Bradford v. United States, 413 F.2d 467, 471 (5th Cir. 1969) (handwriting exemplars should be suppressed if fruit of Miranda violation). The government misconceives the privacy interest at stake when it argues that grand jury witnesses have no expectation of privacy in their physical characteristics and that, therefore, Congress could not have intended section 2515 to protect a non-existent interest in privacy. See, e.g., United States v. Dionisio, 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973); United States v. Mara, 410 U.S. 19, 35 L. Ed. 2d 99, 93 S. Ct. 774 (1973). Section 2515 serves to protect the privacy of communications,
Gelbard v. United States, supra at 51, not necessarily the privacy interest in any evidence derived therefrom. The appropriate inquiry is whether the evidence sought is the fruit of an illegal wiretap; the type of evidence involved is irrelevant.
In In re Grand Jury Witness Whitnack, 544 F.2d 1245 (9th Cir. 1976), a witness refused to furnish handwriting and fingerprint samples citing her belief that the request was based upon an illegal wiretap. The court held that the government was not required to affirm or deny the existence of an illegal wiretap as mandated by 18 U.S.C. § 3504(a) because the grand jury's interest in the physical characteristics of the witness was not the primary product of any wiretap, there being legitimate independent grounds for that interest. However, the court intimated that handwriting and fingerprint samples were less protected under Title III than testimonial evidence. Judge Kennedy's concurrence took issue with that:
"I cannot agree, however, with the suggestion that simply because the grand jury demanded nontestimonial evidence, the Government need not respond as required by section 3504 to allegations of illegal wiretapping. Such nontestimonial evidence, as well as testimonial evidence, may be 'evidence derived' from illegally intercepted communications within the meaning of 18 U.S.C. § 2515. In enacting the wiretap legislation comprising sections 2515 and 3504, Congress intended to provide safeguards against violations of the privacy interests guaranteed by the fourth amendment. See Gelbard v. United States, 408 U.S. at 50-53. The manifest purpose of section 3504 is to provide procedures that insure that the Government fully complies with the mandate of section 2515, which proscribes the use in any official proceeding of evidence that is the product of illegally intercepted communications. While the testimonial nature of the evidence sought may be critical in analyzing cases involving the fifth amendment privilege against self-incrimination, the nature of the evidence is immaterial in a case like this, where the primary consideration is whether the demands of the grand jury are tainted on fourth amendment grounds." Id.
We agree with Judge Kennedy and hold that the physical characteristics requested of these witnesses can be "evidence derived" within the meaning of section 2515 and that the witnesses may raise this statutory defense to a civil contempt action.
In Gelbard v. United States, 408 U.S. 41, 33 L. Ed. 2d 179, 92 S. Ct. 2357 (1972), the Supreme Court held that a grand jury witness may refuse to give testimony derived from unauthorized electronic surveillance and then invoke the section 2515 defense in an action for contempt pursuant to 28 U.S.C. § 1826(a) based on the failure to obey a court order to answer the questions. The opinion of the Court, representing the views of four of its members, emphasized that "to order a grand jury witness, on pain of imprisonment, to disclose evidence that § 2515 bars in unequivocal terms is both to thwart the congressional objective of protecting individual privacy by excluding such evidence and to entangle the courts in the illegal acts of Government agents." Id. at 51. However, the Court left open the question whether witnesses may refuse to answer questions if the interceptions were pursuant to court order. Id. at 61, n.22.
Justice White provided the majority in Gelbard with its fifth and decisive vote. He stated in his concurring opinion:
"I agree with the Court, however, that at least where the United States has intercepted communications without a warrant in circumstances where court approval was required, it is appropriate in construing and applying 28 USC § 1826 not to require the grand jury witness to answer and hence further the plain policy of the wiretap statute. This unquestionably works a change in the law with respect to the rights of grand jury witnesses, but it is a change rooted in a ...