DOUGLAS, J., concurring

were convicted of contempt. In reversing those judgments, this Court, through Mr. Justice Holmes, held that the Government was barred from reaping any fruit from its forbidden act and wove into our constitutional fabric the celebrated maxim that "[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all." 251 U. S., at 392.

Petitioners Gelbard and Parnas and respondents Egan and Walsh occupy positions which are virtually identical to that of the Silverthornes and their company. They desire to demonstrate that but for unlawful surveillance of them the grand jury would not now be seeking testimony from them. And, as in Silverthorne, they are the victims of the alleged violations, seeking to mend no one's privacy other than their own. Finally, here, as there, the remedy preferred is permission to refuse to render the requested information.

Unless Silverthorne is to be overruled and uprooted from those decisions which have followed it, such as Nardone v. United States, 308 U. S. 338, 340–341; Benanti v. United States, 355 U. S. 96, 103; Elkins v. United States, 364 U. S. 206, 210; Mapp v. Ohio, 367 U. S. 643, 648; Wong Sun v. United States, 371 U. S. 471, 484-485; Harrison v. United States, 392 U. S. 219, 222; and Alderman v. United States, 394 U. S. 165, 171, 177, these witnesses deserve opportunities to prove their allegations and, if successful, to withhold from the Government any further rewards of its "dirty business." Olmstead v. United States, 277 U. S. 438, 470 (Holmes, J., dissenting).

The Solicitor General does not propose that Silverthorne be overruled. Nor does he deny its remarkable similarity. Indeed, his analysis of the constitutional issue at stake here fails even to mention that landmark de

Douglas, J., concurring

408 U.S.

MR. JUSTICE DOUGLAS, concurring.

Although I join in the opinion of the Court, I believe that, independently of any statutory refuge which Congress may choose to provide, the Fourth Amendment shields a grand jury witness from any question (or any subpoena) which is based upon information garnered from searches which invade his own constitutionally protected privacy.

I would hold that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 offends the Fourth Amendment, as does all wiretapping and bugging, for reasons which I have often expressed elsewhere. E. g., Cox v. United States, 406 U. S. 934; Williamson v. United States, 405 U. S. 1026; Katz v. United States, 389 U. S. 347, 359; Berger v. New York, 388 U. S. 41, 64; Osborn v. United States, 385 U. S. 323, 340; Pugach v. Dollinger, 365 U. S. 458, 459; On Lee v. United States, 343 U. S. 747, 762. In each of the present cases a grand jury witness seeks to prove and suppress suspected unconstitutional seizures of his own telephone conversations. And, in every relevant respect, the proceedings below were in striking parallel to those in Silverthorne Lumber Co. v. United States, 251 U. S. 385.

In that case, after federal agents unlawfully seized papers belonging to the Silverthornes and to their lumber company, the documents were returned upon order of the court. In the interim, however, the agents had copied them. After returning the seized originals, the prosecutor attempted to regain possession of them by issuing a grand jury subpoena duces tecum. When the petitioners refused to comply with the subpoena they

Government now denies that there was any overhearing, in view of our affirmance that is a matter for the District Court to consider in the first instance.


Opinion of the Court

(10)(a) may well reflect congressional acceptance of that procedure as adequate in these cases. Consequently, we cannot suppose that Congress, by providing procedures for suppression motions, intended to deprive grand jury witnesses of the $ 2515 defense that would otherwise be available to them. Although the Government points to statements in the Senate report to the effect that $ 2518 (10)(a) “limits” § 2515, we read those statements to mean that suppression motions, as a method of enforcing the prohibition of $ 2515, must be made in accordance with the restrictions upon forums, procedures, and grounds specified in $ 2518 (10)(a).21

The judgment of the Court of Appeals for the Ninth Circuit in No. 71-110 is reversed, and the case is remanded for further proceedings consistent with this opinion.22 The judgment of the Court of Appeals for the Third Circuit in No. 71–263 is affirmed.23

It is so ordered.

“This pro

21 “This definition [$ 2510 (11)] defines the class of those who are entitled to invoke the suppression sanction of section 2515 . through the motion to suppress provided for by section 2518 (10) (a) ...Id., at 91. “The provision [$ 2515] must, of course, be read in light of section 2518 (10)(a) ... which defines the class entitled to make a motion to suppress.Id., at 96. vision [$ 2518 (10)(a)] must be read in connection with sections 2515 and 2517 which it limits. It provides the remedy for the right created by section 2515.Id., at 106.

22 Because the District Court and the Court of Appeals erroneously held that grand jury witnesses have no right to invoke a § 2515 defense in contempt proceedings under $ 1826 (a), we need not decide whether Gelbard and Parnas may refuse to answer questions if the interceptions of their conversations were pursuant to court order. That is a matter for the District Court to consider in the first instance.

23 The Court of Appeals vacated the judgments of contempt and remanded for hearings to determine whether the questions asked respondents resulted from the illegal interception of their communications. 450 F. 2d, at 217. Although, in this Court, the

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cability of $ 2518 (10)(a) in grand jury proceedings, so far as it is discernible from the Senate report, was apparently that defendants and potential defendants might be able to utilize suppression motions to impede the issuance of indictments: “Normally, there is no limitation on the character of evidence that may be presented to a grand jury, which is enforcible by an individual. [United States v. Blue, 384 U. S. 251 (1966).] There is no intent to change this general rule.” S. Rep. No. 1097, 90th Cong., 2d Sess., 106 (1968). The "general rule,” as illustrated in Blue, is that a defendant is not entitled to have his indictment dismissed before trial simply because the Government “acquire[d] incriminating evidence in violation of the [law],” even if the "tainted evidence was presented to the grand jury.” 384 U. S., at 255 and n. 3; see Lawn v. United States, 355 U. S. 339 (1958); Costello v. United States, 350 U. S. 359 (1956). But that rule has nothing whatever to do with the situation of a grand jury witness who has refused to testify and attempts to defend a subsequent charge of contempt. Hence, we cannot agree that the Senate report expressed the view that a grand jury witness would be foreclosed from raising the $ 2515 defense in a contempt proceeding under $ 1826 (a).

Furthermore, grand jury witnesses do not normally discover whether they may refuse to answer questions by filing motions to suppress their potential testimony. The usual procedure is, upon the Government's motion, to have a court order a grand jury witness to testify upon penalty of contempt for noncompliance. Section 1826 (a) embodies that traditional procedure. The asserted omission of grand jury proceedings from $ 2518

grand jury proceeding.” S. Rep. No. 1097, 90th Cong., 2d Sess., 106 (1968). This assertion is not ambiguous, for motions to suppress evidence to be presented to a grand jury would presumably be made in court.


Opinion of the Court


The Government argues, finally, that while § 2515 could be construed to allow a grand jury witness to invoke its prohibition as a defense to a contempt charge, “[i]f this section were the only relevant portion of [Title III],” Brief for the United States in No. 71–263, p. 19, proceedings before grand juries are omitted from another provision of Title III, § 2518 (10)(a), that authorizes “[a]ny aggrieved person,” 18 in specified types of proceedings, to “move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom." But it does not follow from the asserted omission of grand jury proceedings from the suppression provision that grand jury witnesses cannot invoke $ 2515 as a defense in a contempt proceeding under 28 U. S. C. § 1826 (a).20 The congressional concern with the appli

18 An "aggrieved person," for purposes of $ 2518 (10)(a), is "a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed.” 18 U. S. C. § 2510 (11); see S. Rep. No. 1097, 90th Cong., 2d Sess., 91, 106 (1968).

19 Section 2518 (10) provides in pertinent part:

“(a) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom ...." While on its face § 2518 (10)(a) applies to grand jury proceedings, when compared with the list of proceedings in § 2515, see n.

2, supra, it appears that "grand jury” was omitted from the list in § 2518 (10) (a).

20 "Because no person is a party as such to a grand jury proceeding, the provision does not envision the making of a motion to suppress in the context of such a proceeding itself. . . . It is the intent of the provision only that when a motion to suppress is granted in another context, its scope may include use in a future

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