Sidebilder
PDF
ePub

41

REHNQUIST, J., dissenting

used that language, nor would it have cited United States v. Blue, 384 U. S. 251 (1966).

The fact that the report states the reason for the policy adopted in terms of the rights of an "individual," rather than in terms of the rights of a "defendant," makes the Court's discussion of the doctrine of various cases, ante, at 60, of doubtful help in construing the statute. Whatever United States v. Blue, supra, may be said to "hold" after careful analysis by this Court, the drafters of the Senate Report undoubtedly took it to stand for the proposition for which they cited it. As stated by Mr. Justice Frankfurter, concurring in Green v. United States, 356 U. S. 165, 189:

"The fact that scholarship has shown that historical assumptions regarding the procedure for punishment of contempt of court were ill-founded, hardly wipes out a century and a half of the legislative and judicial history of federal law based on such assumptions."

Not only does the report dealing with § 2518 (10) (a) make clear that it is to be construed in connection with § 2515, which it limits, but the section of the same report dealing with § 2515 re-emphasizes this conclusion. Speaking of the latter section, the report says:

"The provision must, of course, be read in light of section 2518 (10) (a) discussed below, which defines the class entitled to make a motion to suppress. It largely reflects existing law. . . . Nor generally [is there any intention] to press the scope of the suppression rule beyond present search and seizure law. See Walder v. United States, 347 U. S. 62 (1954). . The provision thus forms an integral part of the system of limitations designed to protect privacy. Along with the criminal and

[ocr errors]

REHNQUIST, J., dissenting

408 U.S.

indicates as plainly as possible that the exclusion of grand juries from the language of § 2518 (10) (a) was deliberate:

"This provision [§ 2518 (10) (a)] must be read in connection with sections 2515 and 2517, discussed above, which it limits. It provides the remedy for the right created by section 2515. 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. 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. 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 grand jury proceeding." S. Rep. No. 1097, 90th Cong., 2d Sess., 106 (1968). (Emphasis added.)

There is an intimation in the opinion of the Court that the reason this language was used may have been that grand juries do not pass upon motions to suppress, while courts do. This intimation is not only inconsistent with the language of the section itself, as pointed out, supra, at 80, but it attributes to the drafters of the report a lower level of understanding of the subject matter with which they were dealing than I believe is justified. It is also rather squarely contradicted by the statement that there is no limitation on the character of evidence that may be presented to a grand jury "which is enforcible by an individual." Had the report meant to stress the presumably well-known fact that grand juries do not themselves grant motions to suppress, it would not have

41

REHNQUIST, J., dissenting

Healey Act; 50 U. S. C. App. § 2155, Defense Production Act of 1950; 47 U. S. C. §§ 409 (f) and (g), Communications Act of 1934; 46 U. S. C. § 1124, Merchant Marine Act, 1936; 26 U. S. C. § 7604, Internal Revenue Code of 1954; 16 U. S. C. § 825f (c), Electric Utility Companies Act; 15 U. S. C. § 717m (d), Natural Gas Act; 7 U. S. C. § 511n, Tobacco Inspection Act. This general mode of enforcement of agency investigative subpoenas was discussed in the context of the Fair Labor Standards Act in Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186 (1946).

Thus, if Congress in § 2518 had intended to focus on the forum in which the hearing as to the legality of the subpoena is to be determined, rather than the forum in which the testimony is sought to be adduced, it would have omitted not only grand juries, but departments, officers, agencies, and regulatory bodies as well from the coverage of § 2518 (10)(a). For questions as to the legality of subpoenas issued by all these bodies are resolved in the courts. By omitting only grand juries in § 2518, Congress indicated that it was dealing with the forum in which the testimony was sought to be adduced, and that the suppression hearing authorized by the section was not to be available to grand jury witnesses.

In the light of these conflicting implications from the statutory language itself, resort to the legislative history is appropriate. Passages from the legislative history cited by the Court in its opinion do not focus at all on the availability of a suppression hearing in grand jury proceedings; they simply speak in general terms of the congressional intent to prohibit and penalize unlawful electronic surveillance, of which intent there can, of course, be no doubt. But several parts of the legislative history address themselves, far more particularly than any relied upon by the Court in its opinion, to the actual issue before us. The Senate Report, for example,

REHNQUIST, J., dissenting

408 U.S.

to other sections. Other sections provide several remedies; criminal and civil sanctions are imposed by §§ 2511 and 2520, whereas § 2518 (10) (a) accords a right to a suppression hearing in specified cases. Thus the fact that one who may be the victim of alleged unlawful surveillance on the part of the Government is not accorded an Alderman-type suppression hearing (Alderman v. United States, 394 U. S. 165 (1969)) under the provisions of § 2518 (10) (a) is not left remediless to such a degree that it must be presumed to have been an oversight; he is remitted to the institution of civil proceedings, or the filing of a complaint leading to the institution of a criminal prosecution. While the latter two remedies may not be as efficacious in many situations as a suppression hearing, the remission of an aggrieved party to those remedies certainly does not render nugatory the general proscription contained in § 2515.

The omission of "grand jury" from the designated forums in § 2518 (10) (a) is not explainable on the basis that though the testimony is sought to be adduced before a grand jury, the motion to suppress would actually be made in a court, which is one of the forums designated in § 2518 (10) (a). The language "in any trial, hearing, or proceeding in or before" quite clearly refers to the forum in which the testimony is sought to be adduced. But even more significant is the inclusion among the designated forums of "department," "officer," "agency," and "regulatory body." Congress has almost without exception provided that issues as to the legality and propriety of subpoenas issued by either agencies or executive departments should be resolved by the courts. It has accomplished this result by requiring the agency to bring an independent judicial action to enforce obedience to its subpoena. See, e. g., 15 U. S. C. § 79r, Public Utility Holding Company Act of 1935; 15 U. S. C. § 78u, Securities Exchange Act of 1934; 41 U. S. C. §§ 35-45, Walsh

41

REHNQUIST, J., dissenting

intercepted wire or oral communication, or evidence derived therefrom, on the grounds that—

"(i) the communication was unlawfully intercepted;

"(ii) the order of authorization or approval under which it was intercepted is insufficient on its face;

or

"(iii) the interception was not made in conformity with the order of authorization or approval. . . .” § 2518 (10) (a).

Here is presented at the very least an implied conflict between two separate sections of the same Act. Section 2515 proscribes generally the use of unlawfully intercepted communications as evidence before a number of specified bodies, including a grand jury. Section 2518 (10) (a) provides for the type of hearing that petitioners sought and were denied by the District Court; it provides such hearings in connection with a number of specified legal proceedings, but it conspicuously omits proceedings before a grand jury. The method by which the Court solves this dilemma is to state that if petitioners succeed after their discovery in establishing their claim of unlawful electronic surveillance, their questioning before the grand jury on the basis of such electronic surveillance would violate § 2515 as, of course, it presumptively would. Therefore, says the Court, petitioners must be entitled to the discovery and factual hearing which they seek, even though § 2518 (10) (a) rather clearly denies it to them by implication.

A construction which I believe at least equally plausible, based simply on the juxtaposition of the various sections of the statute, is that § 2515 contains a basic proscription of certain conduct, but does not attempt to specify remedies or rights arising from a breach of that proscription; the specification of remedies is left

« ForrigeFortsett »