98
based on that affidavit of information and belief, would then issue a
search â– warrant.
Tliere then can be tlie knock on the door and the entry into the
residence or into the newsroom, as the case may lx».
'Sh'. Cliairman, as you well know, and as the rankino^ minority mem-
ber well lc!iow«. when an affidavit on information and belief is given,
it is awf ullly liard to disprove that the moving party is acting in bad
faith.
As a matter of fact, it is almost impossible to prove it.
So, I ap])laiid yon. ]\rr. Chairman, T have my own bill in. I would
like to submit for the record a letter from Arnold & Porter of this
city, addressed to mvself. whom I asked to look into the question and
asked to draw up a bill, which I introduced.
The attempt was to draw the bill as to tlie broadest possible pro-
tection. I think the letter will speak itself. I do not think this com-
mittee wants legal arguments, which, in any event, I am not prepared
to give.
Senator Bath, "Without objection, that vrill appear in the record.
Senator Haskell. I think you are taking up a very serious matter.
I want to wish you the greatest of good luck in getting it promptly
to the floor. I hope this dangerous decision can be overturned by
legislation.
Senator Bayit. Thank you. "We appreciate your initiative in this re-
gard. Senator. Do you suppose that letter will be followed by a bill
for services rendered ?
Senator Haskkll. If so. T will turn it over to somobodv else.
Xo; I asked them to do this pro bono, obviouslv. They did a very
conscientious job. I did not feel that I, or anybody in my office, had the
expertise to draw up a bill that woidd have the broadest reach.
As you know, one of the problems is covering State courts, as well as
Federal courts. It is an intricate question, which I am not really compe-
tent to deal with,
I assure you, ]\Ir, Chairman, that they did it on the pro bono
basis.
Senator Bayit. Let the record show that the question was asked in
jest and not anger, [Laughter,]
Senator Haskell. Thank you.
Senator Bayii. "We thank you for being with us. W"e Icnow how
busv you are.
fThe prepared statement and letter submitted by Senator Haskell
follows :]
Prepared Statement of Sexatok Floyd K. Haskell
Mr. Chairman. Thank you for the opportunity to join you here this mornins:.
The Supreme Court's decision in the case of Zurcher against the Stanford Daily
was shockinc: to many of us. In my view, the right of eacli citizen to privacy, is
an essential and unalterable guarantee that must be guarded jealously and with
great vigilance.
This decision could begin a landslide of erosion of that principle. As Ameri-
cans, we can recognize with great pride that we have generally sought to ensure
that personal liberties be protected from overzealous law enforcement. We
prohibit self-incrimination; we defend against capricious use of surveillance, we
require that suspects be apprised of their rights. Similarly we must prohibit the
invasion of privacy from searches under warrants of uninvolved third parties.
Mr. Chairman, this decision affects not only members of the press, but every
99
citizen. It means that the records of a physician, a psychiatrist, a clergyman, a
lawyer — and who knows how many other people — can be searched indiscrimi-
nately. It means that the tlimsiest justilication can be used to obtain a warrant
to search someone's records if they may be in possession of information relating
to a crime.
At a time when we are seeking to i-e-establish confidence and trust in govern-
ment — this decision marks a reversal. It means that government can unnecessar-
ily intrude into our private lives.
For these reasons, I introduced the Privacy Protection Act of 1978. My bill
is very similar in its theme to legislation introduced by Senator Bayh.
Our bills would prohibit the use of warrants to search the premises of all third
parties who have no involvement in a crime. They are not limited to protection
of the press alone — as are some bills introduced on this subject.
Further, our bills prohibit improper use of warrants by state as well as federal
law enforcement officials, borrowing from precedents established in Katzcnbach v.
j\I(>f(/an.
I believe my bill leaves less to judicial construction than other bills on the
subject. Specifically, it prohibits the use of warrants where there is no reason-
able cause to believe that a third party is implicated in a crime. It does not
rely on court interpretation of a "a reasonable expectation of privacy."
However, I want to emphasize that I am ready to assist in the passage of any
legislation reported by this committee that protects all citizens from abuses of
their rights by either federal or state officials. In my view, it is crucial that this
committee and this Congress act on such legislation this year.
Mr. Chairman I applaud your quick response to this far-reaching decision by
the Supreme Court. And, I applaud this distinguished subcommittee for holding
this important hearing. I offer my aid in working for its passage this year.
Arnold & Porter,
WasJdngton, D.C., June I'l, 197S.
Re : Privacy Protection Act of 1978.
Mr. Rob Liberatore,
Chief Legislative Assistant,
Senator Floyd K. Haskell,
Dirksen Office Building,
Washington, B.C.
Dear Rob : I enclose a draft of proposed legislation designed to overturn the
Supreme Court's recent decision in Zurcher v. Stanford Daily, Nos. 76-1484, 76-
IGUO (decided May 31. 1978). The following comments may be of assistance to
j-ou in reviewing the draft.
There is of course no question of Congress authority to impose statutory re-
strictions on the activities of federal law-enforcement officers and magistrates
more stringent than those mandated by the Constitution. However, a question
of Congressional power may arise as to State officials, over whom Congress is not
thought to have supervisory jurisdiction, especially in light of the Zurcher de-
cision. We are of the view that on the strength of Katzenhach v. Morgan, 384
U.S. 641 (1966), Congress does have the power to legislate in aid of the rights
protected by the Bill of Rights and the Fourteenth Amendment, even after the
Supreme Court has rejected an appeal that the federal courts undertake enforce-
ment of those provision as against State action in the exercise of the federal ju-
dicial power. The question of the authority of Congress to overcome by legisla-
tion such judicial construction of the constitutional amendments was considered
and resolved favorably to Congress in the Morgan decision, a copy of which I en-
close for your convenience. Accordingly, we do not think it necessary to consider
more elaborate arrangements to ensure the constitutionality of the legislation,
such as the conditioning of federal funding upon State observance of Congres-
sionally prescribed restrictions upon the issuance of warrants. Cf., e.g., Steward
Machine Co. v. Davis, 301 U.S. 547 (1937). We should caution, however, that
changes may undermine the on-going vitality of that precedent.
Section 2 of the proposed legislation would make legislative findings tending
to overcome the implicit factual premise that underlines Zurcher. Similar find-
ings in the Voting Rights Act facilitated judicial approval in the past.
Section 3 would restrict warranted searches of premises of persons not sus-
pected of crime, with expectations along the lines proposed by Senator Bayh in
his S. 3164. You should note that the restriction extends only to evidence of crime,
and does not reach fruits or instrumentalities of crime or contraband.
100
Section 4 would deal with nnwarranted searches to the extent of forbiddinsr
their use as a device to avoid the restrictions of this lesisbition. while incorporat-
ing decisional law on the reasonableness of such searches apart from the warrant
context.
Section 5 provides for judicial enforcement through private actions. Subsec-
tion (d) is designed to overcome the obstacle to civil actions against judicial
officers presented by the Supreme Court's recent decision in the Indiana steriliza-
tion case. Stump v. Sijarktnon, No. 7r>-17.")0 (decided :\Iarch 28. 1978).
The proposed legislation does not detil with the i.ssuance of subpoenas duces
tecum or ad testificandum, which would remain subject to traditional standards
of relevance and burden as well as to pre-enforcement judicial review on or be-
fore their return date in a court of appropriate jurisdiction. T'nlike searclies
(whether with or without warrant), sulipoenas do not present the issue of unan-
nounced police intrusion that is raised by the Zitrrhrr decision.
We have reviewed previously introduced legislation and have some comments
which may l>e of u.se to you. S. 3102. introduced l)y Mr. Dole, seems limited to
federal officers by the context of its amendment to the federal criminal code,
and thus appears insufficiently broad to deal with the problem engendered by
the Zinrher decision.
S. 3164, introduced by Mr. Bayh (together witli the parallel H.R. 13017. intro-
duced by Representative Quayle) contains a potential difficulty. The operative
provisions of S. 3164 not only would restrict wai-rant searches to specified cate-
gories (as would the enclose<l draft), hut also evidently would prohil)it any
warrantless .search and seizure on any premise as to whicli "the person in
po.ssession of the evidence has a reasonable expectation of privacy," without
regard to the various justifications developed liy tlie courts over the years for
such searches, including tliose for .searches pursuant to consent, searches incident
to an arrest, searches concomitant to tlie "liot pursuit" of a felon, emergency
searclies for tlie protection of arresting officers, and searches to prevent the
imminent destruction or removal of evidence. Scr. c.fj.. United Statrx v. Cnrtrr.
522 F.2d 666 (D.C. Cir. 1975). Additionally, the concept of a "reasonable expec-
tation of privacy," which presumably arises from Katz x. T'nitrd Stnte-'i. 3SJ>
U.S. 347 (1967), seems susceptible of complicating interpretation.s, in which
"reasonableness" may be asse.ssed in terms of the importance of the evidence,
the state of mind of the person asserting tlie privacy interest, or other similar
factors.
Finally. H.R. 12952, introduced by Representative Drinan, would be limited
to protection of news entities and would contain no exceptions for the exigent
circumstances provided for in Section 2(b) of the encloseil draft.
If you have any questions concerning our draft, or other matters you would
like us to consider, please do not hesitate to call. I should note that in connection
with this subject, I am grateful for the a.ssistance of Robert Acker, a third-year
student at the :\Iichigan Law School who is spending the summer with us.
Sincerely yours,
Leoxard H. Becker,
Senator B.wir. Our next witness is John IT. F. Shattuck,
We appreciate your beinc; here. You personally are loiown to this
committee and your organization is certainly not a stranger to this
counnittee.
l*leaso proceed.
TESTIMONY OF JOHN H. F. SHATTUCK. DIRECTOR, AMERICAN
CIVIL LIBERTIES UNION
]\rr. SiT.\TTrcK. Thank you very much. ^Fr. Chairman.
Tt is a pri\ile£re, as ahvavs. to appear before your subcommittee, and
pai-ticnlnrly because it is invai-iablv on issues of great importance to
the Ameiican Civil Liberties T Jiion whore your subcommittee has
done stalwart work and is leadijig in this issue that we are dealing
with today.
I welcome this opportunity to appear before your subcommittee on
an issue of vital concern to the ACTA', a natioitwide, non-partisan
101
organization of approxiinatoly 200.000 members dedicated to protect-
ing and advancing individual riahts o-naranteed by the Constitution.
For manv years the ACLl' lias been in the iorciiont of the elfort to
secure the right of privacy under the Constitution. In recent years we
liave focused our attention increasingly on the threat to privacy posed
by o-ovcrninental access to private records.
'^It is in this context that Ave were shocked last month lo learn of a
o'rave threat to privacy from another qiuirter, the Supreme Court.
In its decision in Zureher v. Stanford Daily ^ 4(5 LW 4540, ]May .^1,
1978, a narrow majority of the Court shari)ly restricted its interpreta-
tion of the fourth amendment right of the people to be secure in tlieir
persons, houses, and papers.
The decision creates a double danger: First, by permitting unan-
nounced searches of ])laces owned and occupied by third parties about
whom there is no probable cause of criminal imolvemont ; and second,
by eliminating tirst amendment safeguards of the newsgathering proc-
ess against broad governmental searches.
ITnder Stanford Daily, no file, desk drawer, or attic is insulated
from surprise police scrutiny. If the olKces and houses of innocent
])eople can l>e searched without notice whenever the government: clainis
that they might contain private papers relevant to a criminal investi-
gation, there is not a newspaper, a bank, a store, a doctor's office, a law
firm, or a private home that can any longer claim the full jji'oteclion
of the fourth amendment.
Let me just add at this point, Mr. Chaiiman, and I am sure I do
not need to remind you, that the Senate has shown considerably greater
sensitivity to the right to privacy this year than the Supreme Court
by enacting under your leadership a bill which would prohibit all
wiretap])ing of American citizens who are not suspected of crimes.
The Stanford Da'ily decision shows very clearly. I think, how im-
portant the criminal standard is that we battled successfully to hare
included in tlie wiretap bill.
Unfortunately, this decision is but another step — perhaps the most
dangerous and far-reaching — in a series of recent Supreme Court de-
cisions Aveakening the privacy' rights of American citizens. Two years
ago, for example, the Court, rided that a person has no legitimate
pi-ivacy expectation regarding his bank records, on the ground that the
records belong to the bank and a person A'oluntarily discloses certain
information in opening an account and acce])ts the risk of disclosure.
I refer to Vnlted States v. Miller, 425 U.S. 485—1 076.
In the same term, the Court upheld a search warrant which, in addi-
tion to authorizing the unannounced seizure of specific ])a])ers. also
authorized the sweeping and potentially boundless seizure of "other
fruits, instrumentalities, and evidence of crime at this (time) uu-
know." I refer to Andresen v. Maryland, 427 U.S. 463, 479-80. 1976.
This means that theie was no specificity as to the nature of the material
that was searched in that case.
Several decisions in the most recent Supreme Court term have
further eroded the privacy rights of individuals. The use of pen reg-
isters, which record the numl)ers dialed on tai-geted telephones, was
held not to be an ''interception" of comuumications governed by the
warrant procedures of Title III of the Omnibus Crime Control and
Safe Streets Act of 1968. I refer to United States v. Neio York Tele-
pJione Co., 46 LW 4033, December 7, 1077.
102
111 another decision, tlie Court ruled tliat law enforcement officials
need not "minimize" the wiretap interception of private conversations
under a court order if the factors of their investigation make it '•rea-
sonable" to listen to everything. I refer to Scott v. United States^ 46
LAV 4433, May 15, 1978.
The Court also refused to review a lower court ruling upholding an
FBI search of the premises of the Church of Scientology in Washing-
ton, based on a warrant authorizing a search for evidence "as yet
unknown." I refer to Church of Scientology v. United States, 573 F.
2d 321— D.C. Cir. 1977, cert denied. 46 LW 3S8B. March 20, 1978_.
The result of this disturbing trend, culminating in Stanford Dalh/,
is that the speeilicity and nofice requirements of the fourth amend-
ment have been severely eroded. Unless this trend is reversed by Con-
gress, the police can arrive unannounced at the premises of an inno-
cent, third party to search for evidence "as yet unknown" to the offi-
cei's or investigators themselves.
The resulting intrusion into personal privacy and the potential
disruption of business or personal activity is staggering.
This is the state of affairs to which S. 3164 — which you have intro-
duced, Mr. Chairman — and S. 3222 introduced by Senator Dole, co-
sponsored by many other Senators, and other legislative proposals in-
troduced in the wake of the Stanford Daihj decision are addressed.
"We applaud the efforts of this subcommittee to move quickly to res-
urrect the right of privacy. We endorse the broadest possible legis-
lative remedy.
The problem pi-esented by Stanford Daily is an outgrowth of a "pro-
found change" in the fourth amendment precipitated by the Supreme
Court's 1967 decision in Warden v. Hay den, 387 U.S. 294, 1967, which
overruled \\\Q "mere evidence" rule.
That ndc had restricted all unannounced searches authorized by
warrant to contraband and the fruits or instrumentalities of crime.
In cases before 1967, the Court had stressed the distinction between
searches for specific evidence in a specific location, and searches "ex-
ploratory and general and made solely to find evidence of respondents'
guilt of the alleged * * * crime." I refer to United States v. Lefkowitz,
285 U.S. 452, 1932.
The "mere evidence" rule adhered to before 1967 reflected a strong
judicial repugnance to the despised "general warrant," use by English
authorities before the Revolution to search at random for incrimi-
nating evidence in possession of the colonists.
Although the majority opinion in Stanford Daily claims to follow
Warden v. Tlayden, in fact it goes far beyond the earlier decision and
virtually restores the validity of general warrants.
Indeed, the Court in Warden clearly was not contemplating un-
limited surprise searches of innocent third parties.
In that case, pol ice officers who were informed that a suspect in an
armed robbery had entered liis house 5 minutes l^efore they arrived,
began to search for the man and the wea])ons used in the crime. Dur-
ing the search of his home, items of clothing were seized, along with
otlior items inchiding weapons and ammunition.
The Court ruled that the "exigent circumstances" which justified
entry and search of the house in "hot pursuit" without a warrant,
justified the seizure of the articles prior to or immediately contempo-
103
raneous with the suspect's arrest, as part of an effoit to find a suspected
felon. , , , ,1 .
The Court stated that since the officers knew that the suspect \vas
armed, and Avere looking for weapons when they found the clothing,
the seizure of the clothing was justified.
It is clear that the exigent circumstances justifying the search of
ITavden's home were not^present in the innocent third-party search
authorized bv the Stanford DaUij decision. The search by California
police of newspaper offices for photographs of an illegal demonstration
3 davs following the event involved no hot pursuit of a criminal sus-
pect.' The staff of the newspaper were suspected of no criminal activity
in connection with the demonstration under investigation.
In short, notliing in the liaydcn decision even remotely suggests
that, the Supreme Court was inviting the police to ignore the usual
subpena process — including prior notice and an opportunity to con-
test — to obtain "mere evidence" from innocent i)ailic_s.
Privacy is disturbed far more by a search for evidentiary material
than for contraband, fruits, or instrumentalities of crime. A search
for contraband or instrumentalities is generally based on a specific
description of the weapon, narcotic, or other item to be seized.
pjven a search foi- a weapon "as yet unknown" would not be offensive
if there were probable cause that a weapon was located on the premises
to be searched, since the searching officer's life might be endangered.
An unannounced search for evidentiary materials, however, is justified
by no such danger, and allows a wide-ranging intiiision into many
areas of a home or office.
A search for mere documentary evidence may involve the rifling
of filing cabinets, desks, and even wastebaskets, affording the police
an opportunity to read notes and correspondence totally unrelated to
the crime under investigation. Since virtually any document could
contain evidentiary material relevant to an investigation, such a
search is potentially boundless.
The impact of such a sweeping power to rummage through private
records will be severe — even if the power is exercised with great res-
traint, as the Justice Department assures us it will be.
The specter of a surprise search will chill both freedom of the press
and freedom of association. News sources cannot be assured of pro-
tection if a reporters notes can be seized without notice by the police.
Prospective contributors to and members of controversial organiza-
tions will think twice before participating if they cannot be sure that
tlieir lawful activities will not be investigated by Government agents
rummaging through organizational records.
Senator ScoTT.IMr. Chairman. I would like to interrupt at this
point.
You talk about "rummaging through." I do not find anywhere in
the Court decision in the Stanford case that anybody has the right
to rTimmage through.
Tiie fourth amendment. I think, just as you indicated, protects
against general warrants. You have to describe in particular, what
you are looking for.
I see tliis plirase used in the newspapers all tlie (ime; that is, "rum-
mage through a newspaper office." "What is the basis for this?
Mr. Shattuck. Senator Scott, in the warrant that was issued that
104
justified the searcli of Stanford Daily, there was a general reference
to negatives of photographs that might assist the police in investigat-
ing the demonstration. There was no indication where those photo-
graphs might be.
Tlie police, I think, reasonably interpreted the warrant to mean
that they could literally search through the entire office for a matter
of liours.
In fact, that is what occurred.
In the case of people who are not suspected of a crime, not just
newspaper people, but others, that seems, to us, to be virtually "rum-
maging through" the files.
This is precisely why it is necessary to proceed by subpena. Tlie
bills that we are considering today do that.
So. the rummaging is a necessary result of the fact that the warrant
in effect said : "Go and get some negatives out of the newspaper office.
^Ve do not know where they are."
Those are not proofs or instrumentalities of a crime or contraband
or anything else.
Senator Scott. The first paragraph of the decision reads like this.
T have a copy of it. It does refer to the tenns of the fourth amend-
ment. Those are the rights of a person to be secured as well as his
house and effects to be protected against unreasonable searches and
f^eizures. It says no warrant shall be issued, but upon prdbable cause
and affirmation in particular described and so on.
"The things to be seized" were particularly described. They were
looking for some photographs. Someone from the newspaper had been
at the scene of this disturbance and had been taking pictures and had
published some pictures. So the warrant was issued to find out if
they had more pictures that might enlighten the police and prosecu-
tors as to other events that may have taken place.
It does not seem like a wild search, just on the surface. I have no
])crsonal knowledge. My knowledge is obtained from the opinion of
the Sui)reme Court.
Mr. Shattuck. Senator, I think you are right in one respect, which
is that it might be appi'opriate to conduct a search of this kind in some
manner. The question is how.
The manner in which the search was conducted here was bv an un-
announced entry pursuant to a broad warrant.
It would have been perfectly easy — and no one can contest the fact
that it would have been possible for the police to have obtained a
subpena and then to have given tlie newspaper an opportunity to
contest or raise any defense that they might have including the fact
that the entire offices of the newspaper should not be searched to try
to identify the material.
Senator Scott. Is it not ordinarily true that really in asking for a
f^ubpena that the warrant, while it has to show what you are looking
for, may be needed by the person lookiup- to obtain that warrant in
order to determine where the evidence is. They may not know vrho the