Mr. Pertto. We appreciate your giving us a full opportunity to re-
spond to the concerns of NDAA.
Senator Bayh. I appreciate your time, your frankness and candor.
We appreciate it.
Mr. Zagel. Thank you. Senator.
[l^liereupon, at 1 :10 p.m., the meeting was recessed.]
[The statements submitted by Messrs. Perito and Zagel follow :]
Prepared Statement of the National District Attorneys Association by
Paul L. Perito, Esquire
Mr. Chairman and members of the subcommittee: My name is Paul L. Perito,
and I am a member of the law firm of Perito. Duerk and Carslon, P.C, Wash-
iuRton. D.C. I am appearing today on behalf of the National District Attorneys
Association in my capacity as Special Washington Counsel. I sincerely appreciate
the opportunity which you. Mr. Chairman, and members of the Subcommittee
and your able staffs have afforded NDAA in allowing us to express our views on
S. 3164 and other similar bills now pending before this Subcommittee (S. .3222.
S. 3261, S. 325S and S. 3225). As we understand the thrust of this proposed
legislation, these bills would overturn or substantially modify the recent Supreme
Court decision in Zurcher v. The Stanford Daily, â€” U.S. â€” (1978). This de-
cision was handed down by the Supreme Court on May 31. 1978.
NDAA supports the Supreme Court's decision in this case which, in our judg-
ment, simply restates long-standing constitutional law in the area of searcli and
seizure. Perhaps it is rather unfortunate that the issue has been focused as a
result of a search of a newspaper office (as a third party) as opposed to the
traditional search for evidence of crimes against third parties which are not
elevated to the status of national attention which has shrouded this decision.
NDAA resi>ectfully, l)ut strenuously, opposes S. 31G4 and all other pending bills
which, if enacted, would overturn this decision. In the .iudgment of NDAA, such
a result would adversely affect their members' ability to investigate and prosecute
state and local offenses. Further, NDAA's po.'iition is that any legislation which
would have a serious or detrimental effect on the investigation and prosecution of
criminal activity b.v responsil)le law enforcement officials should be considered
by the Congress only after lengtliy deliberation and after affected law enforce-
ment agencies and personnel have an opportunity to express their views and
manifest their grave concern with the possible results. Knowing of this Subcom-
mittee's sensitivity to responsible investigation and prosecution of criminal acts.
we feel assured that you will give serious consideration to views of local and
state prosecut(n-s, especially since tliis legislation, if enacted, could potentially
hinder the prosecution of offenses in state and local jurisdictions ranging from
murder and violent assaults to economic crimes of every variety and even anti-
trust and securities violations in some Jurisdictions.
Perhaps I should take a few moments to briefly state the nature of NDAA's
particular interest in S. 3164 and other legislation now pending of a similar
nature. NDAA is a non-profit, non-political, tax exempt corporation numbering
approximately 7,000 members. NDAA's members include prosecutors in all of our
50 states. NDAA is the largest association of prosecuting ofiicials in the United
NDAA's Board of Governors, which numbers 83 prosecutors from across the
country, at its recent annual meeting in Hershey, Pennsylvania, took a nearly
unanimous position in opposition to any change from the existing law as ex-
pressed by the Supreme Court in the Zurchcr decision. I say nearly unanimous
because 81 out of the 83 Board members were in total agreement to oppose
these pending bills for the reasons which I will attempt to set forth as cogently
and brielly as possible for your consideration.
In this instance, the Board of Governors has taken a virtually unanimous
position in opposition to S. 3164 and other similar legislation because of NDAA's
deep concern that such legislation would severly and adversely affect the
ability of its meml>ers to responsibly investigate and prosecute criminal activity,
particularly in the area of sophisticated economic crime.
The Supreme Court's decision in Zurcher, supra, which we assume formed
the basis for this Subcommittee's consideration that remedial legislation (S.
3164) might be necessary, was not a revolutionary constitutional (like Mapp v.
Ohio. 367 U.S. 643 (1961) and Miranda v. Arizona, 384 U.S. 436(1966) ) decision.
In our view, notwithstanding the enormous media interest surrounding Zurcher,
this decision simply rearticulated a long-standing view of constitutional law in
the area of search and seizure. That view, briefly stated, is that a search warrant
should issue only upon the showing of probable cause before an impartial magis-
trate or judge that the items sought are evidence of a crime or the fruits or in-
strumentalities of a crime and are located in a particular place. The issue of
whether or not the owner of the premises is or is not a suspect relating to the
crime has never been considered a determining issue on whether or not such a
warrant should issue. The Constitution and Bill of Rights were never intended
to provide an additional layer of protection to third parties allegedly not in-
volved in the criminal act as opposed to persons supposedly involved in that act.
We respectfully submit that the constitutional rights of third parties are more
than adequately protected by the provisions of he so-called "Warrant Clause"
of the Fourth Amendment. See Coolidge v. New Hampshire, 403 U.S. 433 (1970),
Vnited States v. Jeffcrs, 342 U.S. 48 ( 1951 ) .
The Supreme Court in restating accepted constitutional law held that a state
is not prevented by the Fourth and Fourteenth Amendments from issuing war-
rants to search for evidence simply because the owner or possessor of the place
to be searched is not reasonably suspected of criminal involvement. The Court
noted that where the material sought to be seized may be protected by the
First Amendment, the preconditions of a warrant, i.e.. probable cause and spe-
citicitv with resi>ect to the place to be searched and things to be seized, should
afford sufficient protection against the harms that are assertedly threatened by
warrants for searching newspaper offices.
S. 3164 as introduced by yon, Mr. Chairman, would apply to federal officials
under the Fourtli Amendment and also to state and local officials under the
Fourteenth Amendment. As we understand this legislation, it would prohibit
the use of federal and state search warrants to obtain evidence of a crime or
its fruits or instrumentalities from any "premise" in which the person in pos-
session of the evidence has a "reasonable expectation of privacy" and who is then
not suspected of involvement in the crime. The only means of obtaining such in-
formation bv law enforcement officials would be by a subpoena duces tecum. The
exception to this prohibition would be where the law enforcement official has
probable cause to believe, and can make the requisite showing, that the "evi-
dence sought to be seized would be destroyed, hidden or moved" if the subpoena
procedure were used.
The other bills which ar also pending before your Subcommittee and which
were introduced after the Supreme Court's decision, are similar in one respectâ€”
they all recpiire the use of a subpoena duces tecum instead of a searcli warrant.
Some uf them, sucli as S. 3225 and S. 3258. limit their impact solely to searches
against members of tlie press. The other bills are similar to S. 3164 in that they
purport to cover all tliird parties, thereby including the news media.
NDAA is convinced that S. 3164. if enacted, will have a severe crippling
effect on reasonable law enforcement activities and on the efforts of prose-
cutors to gain oftentimes critical evidence in their investigation of criminal
activities. Most certainly NDAA does not believe that this bill should be
applied to state and local officials. Perhaps one of the strongest arguments
against the application of this bill to state and local levels is that in many
states and local jurisdictions subpoenas, as opposed to warrants, have no
legislative basis. If enacted, it would be necessary to create for state officials
an entirely new procedural approach to the investigation and prosecution of
The enormous impact of this bill upon state and local law enforcement
agencies which, under our federal system have the primary responsibility for
administering the criminal justice system, cannot be understated. Without
question, a search warrant has been the most important means of obtaining
evidence in criminal cases at the state and local level. To now require these
officials to use the subpoena procedure to obtain evidence will inevitably delay
and frustrate criminal investigations and prosecutions to the point that the
administration of justice will be unjustifiably burdened. In oi'der to respond
to the prol)lems created by such a requirement, states will be forced to make
mas.sive and complex changes in their criminal laws. Statutes of limitations
will have to be extended and grand juries multiplied or provided for so tliat
subiK>enas can be more readily obtained. These and other changes will disrtipt
the fair and efficient administration of criminal justice by the states. The
ultimate cost to society cannot be easily pi-edicted.
The requirement in the bill of the use of a subpoena duces tecum instead
of a search warrant is apparently based on an assumption that law enforce-
ment officers can easily distinguish between suspects and non-suspects during
the evidence-gathering stage of an investigation. That assumption is totally
contrary to NDAA's experience throughout the U.S. In fact, in many cases
when the police officials learn of the commission of a crime or when they are
investigating the possibility of a crime, they have little or no idea of the jier-
petrators' identities. The process of obtaining evidence, including physical
evidence, may have as one of its legitimate purposes the identification of
potential or actual suspects.
If law enforcement agents are prohibited from using a search warrant and
are required to use a subpoena duces tecum to obtain evidence from any
per.son who has not yet been identified as a .suspect, there is a real possibility
tlmt the person subpoenaed may not be such an innocent third party and may
be a principal or accomplice in the crime. Thus, such a requirement creates an
mireasonable risk of destruction of evidence. The bill's exception to the sub-
poena route, i.e., a proliable cause showing that the evidence to be sought
might be destroyed if the subpoena procedure is used, is unworkable if the
person subpoenaed is an accomplice to the crime and that fact is unknown to
the hnv enforcement officials.
Moreover, the distinction between suspects and nonsuspects does not take
into account the possibility that the person to whom a subpoena is directerl
may be a friend, relative or associate of the per.son under investigation. Such
a person, although not personally involved in the crime, may be higlily
motivated to destroy evidence linking the criminal to the crime, or, at tlie
very least, put the putative defendant on notice and thereby facilitate de-
struction. Such motivation is ofen difficult to discern and more difficult to
prove. Making a showing of probable cause that evidence may be destroyed at
such a stage in an investigation would be almost impossible.
It is also possible that the targets of the investigation will have access to the
evidence being sought, and the delay involved in employing the subpoenas duces
tecum procedure could easily result in the disapi>earance of the evidence, what-
ever the good faith of the third party.
There are other i)roblems with the requirement that only subpoenas duces
tecum be used to obtain evidence from third parties : the unavailability of sub-
poenas in many jurisdictions, the slowness of the subpoena pror-ess with its pro-
tracted hearings and adversarial maneuverings and the potential futility of the
subpoena process. Because of the TÂ»eculiarities of many state laws and constitu-
tions, the grand jury as an investigating and indicting body, does not exist or. if
it does exist, it functions only rarely and with difficulty in that capacity. For
exnmnle. most criminal cases in California are prosecuted by comi)laiiit and
information, not by indictment. In 1!)74. only .3.6 percent of the over n.S.OOO
felony cases prosecuted in the California Superior Courts (their felony trial
courts) were brought by indictment. In Pennsylvania, the grand jury system as
it is kuown ou the federal level does not exist. Because of the elaborate pro-
ceuures that must be goue through to invoke a grand jury and the severe limiia-
Liuns placed ou its functions, grand juries are almost never used to bring indict-
ments. With your permission, Air. Chairman, NUAA proposes to supplement its
testimony touay with a detailed analysis of the availability and use of grand
jury or judicial subpoenas for tiie investigation of criminal activity on the state
and local levels.
lulormation or a complaint is not filed by a prosecutor until probable cause
exists to accuse a particular person. Frequently the prosecutor does not know
that probable cause exists until the investigation, including the gathering of
physical evidence, is substanrially compleied. However, until the complaint or
information is filed, the prosecutor does not have the power to issue a subpoena
compelling the production of evidence. Thus, during the evidence-gathering phase
of a criminal investigation, a judicial subpoena is not available for the produc-
tion of evidence. The only available means of obtaining evidence is via a search
iilveii if drastic changes were made in the criminal status governing subpoenas,
luuKing judicial subpoenas and grand jury subpoenas available both in fact and
law duriug the evidence gathering stage at the state and local levels, a subpoena
still would not be an adequate substitute for a search warrant. As a former
prosecutor I can state unequivocally that speed in obtaining evidence is fre-
queutly essential to a successful investigation and ultimate prosecution. When
an icem of critical evidence is obtained quickly it can often lead to the imme-
diate discovery of other physical evidence and prosi>ective prosecution witnesses.
Kapid investigation minimizes the hazards of fading memories, loss or destruc-
tion of physical evidence aud intimidation or corruption of witnesses. Moreover,
since litigation on the validity of a search warrant follows rather than proceeds
the securing of evidence pursuant to a warrant such litigation does not impede
By contrast a subpoena duces tecum involves slow process. Unlike a search
warrant a subpoena cannot be issued (in most jurisdictions) until the identity
of the possessor of evidence is learned. It cannot be served until its location is
determined. If the person to whom it is directed is not present, within the local
or state jurisdiction, special proceedings must be undertaken. Moreover, since
a subpoena commands an appearance before a Court or a Grand Jury the time
of production of evidence depends upon the convenience of the proper forum. In
some jurisdictions, grand juries meet only once or twice a year. Mnally, litiga-
tion involving the validity of a subpoena precedes production of evidence. In the
hands of an innovative and creative defense counsel such litigation can consume
months of time. Irrevocable damage to an investigation is almost inevitable. The
hazards attendant to the inherent delays in the subpoena procedure are too great
to make a subpoena an adequate substitute for a search warrant.
The final reason for objecting to the subpoena requirement is the potential
futility of the process. Considering the enormous difficulty in overcoming a claim
of privilege under the Fifth Amendment self-discrimination clause (see Mancss
v. Mojcrs. 419 U.S. 449 (1975) ), a person in possession of evidence can success-
fully resist a subpoena by asserting a claim of personal Fifth Amendment privi-
lege. That same person, however, cannot successfully resist a search warrant
(Andrcscn v. Maryland. 427 U.S. 4G3 (1976)). Thus, a search warrant provides
greater certainty that the evidence will be obtained and at the same time fully
protects under tlie Fourth and Fifth Amendment rights of the person involved.
Another point that 1 hope you, Mr. Chairman, and the members of this Sub-
committee will consider is that to the best of our knowledge there has been no
widespread use or abuse of search warrants directed to third parties, thereby
justifying this remedial legislation. We re.spectfully believe that there is no
record of al)use by state and local prosecutors in the issuance and execution of
searrh warrants against third parties which would justify the far-reaching impact
of S. 3104. The Fourth Amendment is designed to prevent unreasonable searches
and at the same time provide a means for obtaining evidence with certainty,
speed and security. In meeting this balance between the need for individual
privacy and protection and the counterbalancing need of the government to
ohtJiin" evidence of criminal activity, the Fourth Amendment's warrant clause
provides adecpiate protections against and remedies for unlawful intrusions of
individual privacy. A search pursuant to a warrant cannot occur until a magis-
trate or judge has determined the cause to be sufficient and has authorized Die
search carefully circumscribing its scope. A search warrant can be issued only
by a magistrate or judge and not by a policomau or pros'ecutor involved in tbe
beat of the iuvesligatiou or iirusecution of tbe alleged crime. Tbis constitutional
interposition of a magistrate between tbe police and tbe citizen constitutes the
chief protection against unlawful searches pursuant to a warrant.
It should not be overlooked that a search w-arrant requires a higher standard
of proof than a subpoena duces tecum and that traditionally tbe judiciary has
more control over search warrants than it does over grand jury subpoenas. To
obtain a search warrant from an impartial magistrate it must be shown under
oath that there is probable cause to believe that the items sought are evidenete
of a crime and will be found in the place to be searched. However, a grand jury
subpoena may be issued before a probable cause has been found to believe any
crime has been committed. Thus, the search warrant process provides more pro-
tection and places courts in a better position to restrain abuses than the subpoena
S. 3164, Mr. Chairman, woTild also create the anomal.v where persons not sus-
pected of a crime may be entitled to greater protection under the Fourth Amend-
ment than those suspected of a crime, assuming for ])urposes of our discussion
that the distinction between suspects and non-suspects could be easily made.
Neither tbe Fourth nor the Fourteenth Amendments suggests that persons
regarded by law enforcement officials as suspects should receive less protection
and tliat those regarded as non-suspects should receive more protection. All
persons, suspect and non-suspect alike, are protected equally against unreason-
able searches and, conversely, are subject equally to reasonable searches. As
the Supreme Court said in WceKs v. United States, 232 U.S. 383 (1914), the pro-
tection of the Fourth Amendment "reaches all alike, whether accused of crime
or not". There is no support in tbe Constitution or tbe case law for tbe proposition
that some persons are entitled to greater protection under the Fourth Amend-
ment than others.
We would hope that tbe interest shown by tbe media in this legislation will
not becloud tbe question of whether third parties' warrants have been so abused
that this type of remedial legislation is. in fact, nece.ssary. We believe, in all
due deference to your long-stated concern and sensitivity about individual
privacy, that tbis bill, S. 3164, is not needed to protect individual privacy. If
enacted, we believe it will adversely binder criminal investigations, especially
in the so-called white collar and organized crime areas. The Supreme Court's
decision stated that where materials sought to be seized may be protected by
the First Amendment, tbe requirements of tbe Fourth Amendment must be
"applied with scrupulous exactitude". NDAA finds that prosecutors across the
country, from tbe Attorney General of tbe Ignited States to small county prosecu-
tors, are vei*y sensitive to the First Amendment and press and media concerns.
Most have adopted policies which permit the application for search warrants
again.st pre.ss premises under very limited circumstances: (1) only where abso-
lutely necessary, (2) only when all other reasonable alternatives have been
suitably explored and may include a request for voluntary compliance, tbe use
of the subpoena duces tecum in lieu of a search warrant when such a procedure
is available, the resort to other evidence when that is sufficient, etc.. and (3)
only when approval of tbe search warrant is obtained from tbe District Attorney
to insure that the search warrant is approved at the highest level of each juris-
diction. For example, the State of Connecticut has adojited tbe following guide-
lines for the issuance of search warrants for press facilities :
1. If practicable, reasonable attempts should he made to obtain tbe evidence
from non-media sources before there is action to obtain a warrant to search a
news media organization.
2. Xo request for a warrant to search a news media organization shall be
made without express authorization of the State's Attorney for tbe Judicial
3. There should be reasonable grounds to believe that tbe evidence sought is
essential to a successful investigation, particularly with reference to directly
establishing guilt or innocence. A .search warrant should not be used to obtain
4. All search warrants, regardless of whether the search is of a news media
organization or any other establishment or individual, should be framed with
scrupulous exactitude as to the place to be searclied and what is to be seized.
5. In the event evidence is seized pursuant to such a search warrant, tbe news
meflia organization should be given a reasonable opportunity to make copies
of whatever documents and other materials are taken.
As a re-sult of these enlightened policies of restraint on search warrants in
the State of Connecticut and elsewhere, it is our judgment that search warrants
issue<l against press premises are a rare occurrence. NDAA's position is sup-
porteil by Assistant Attorney General Philip B. Ileymann when he testified ear-
lier before your Subcommittee, "The state exi>erience does not show a pattern
of abuse of the power to search the press". XDAA has recently undertaken an
extensive survey to determine the number and type of search-warrants issued
against the press to obtain the source of news stories. When this survev is
completed, we would appreciate the opportunity, Mr. Chairman, to supplement
our testimony in this record with that information. The preliminary but in-
complete data received to date shows no instance of search warrants issued
against the press to obtain the source of news stories in multiple juri!?dictions.
A Qoixy of a chart setting forth this preliminai-y data is attached by my state-
ment, and I ask respectfully that it be included in the record.
In light of the limited data of which we are aware supporting a conclusion
that there is a need for remedial legislation, we would hope that this Subcom-
mittee would move cautiously forward to secure as much information as is
reasonably possible before requesting the full Committee to act on S. 3164.
We appreciate your time and consideration for the views of our members.
NDAA SURVEY AS TO SEARCH WARRANTS ISSUED AGAINST THE PRESS TO OBTAIN THE SOURCE OF A NEWS STORY
Time period covered by response/comments
Arizona (Maricopa County) (Phoenix)
Arkansas (9th Ju'iicial District)
Califcrnia (San Diego County)
State of Colorado
State cf Connecticut
Florida (Palm Beach County)
State of Georgia
State of Indiana
Kansas (3d Judicial Dist'ict) (Topeka)
Kentucky (16th Judicial District)