State of Maine
Maryland (Baltimore County)
Maryland (Montgomery County)
Maryland (Prince Georges County)
Massachusetts (v;estern district)
Missouri (Jackson County) (Kansas City)
New York (Westchester County)
North Dakota (Burleigh County) (Bismarck)
North Dakota (Williams County)
Staie of Oregon
Pennsylvania (Bucks County)
Rhode Island (Providence County)
State of South Carolina
South Dakota (Pennington County) (Rapid City).
Tennessee (15th Judicial District)
Utali (Weber County)
Washington (Grant County)
No recorded instance.
4 yr (earlier records not readily available).
No recorded instance.
15 yr (earlier records not available).
12 yr (earlier records not available).
No recorded instance.
16 yr (earlier records not available).
No recorded instance.
30 yr (earlier records not available).
No recorded instance.
12 yr (earlier records not available).
No recorded instance.
6 yr (earlier records not readily available).
No recorded instance.
5 yr (earlier records not readily available).
No recorded instance.
25 yr (earlier records not available).
No recorded instance.
Prepared Statement of James B. Zagel
Mr. Chairman, members of the committee, my name is James B. Zagel. I appear
on behalf of the National District Attorneys Ass(K-iation. I have prosecuted crim-
inal cases for eleven and a half years and serve presently as Executive Director
of the Illinois Law Enforcement Commission. I have written and lectured a fair
amount about the relationship of the Constitution to the Criminal procedure of
the States and have studied the procedures of many jurisdictions. I oppose S. 31C4.
The itrovisioiis of S. 31(!4 would impose radical changes upon law enforcement
in :<.}\ the fifty states. Congress has rarely, if ever, .sought to exerci.se such broad
control over state criminal procedure, and the problems inherent in S. 31G4 demon-
strate the wisdom of this Congressional policy. In short, if S. SKU were to become
law. Congress would outlaw a practice permitted inuler the Constitution since the
country's birth. It would impede enforcement of important state and federal crim-
inal laws without .securing any significant gain for freedom of the press. More-
over, the language of thf bill uimecessarily creates problems in administration
and interpretation that will adversely affect the criminal justice system for sev-
eral years. My specific objections are recited below.
I. â€” S. 3164 seeks to change the outcome of tlie Supreme Court's opinion in
Zurvher v. Slanford Daihj. Attempts to change Supreme Court decisions by legis-
lative act ought to be undertaken with considerable caution particularly when
the decision involves the interpretation of the Constitution. At the very least,
hasty action is unjustified. One ought to see what occurs in the wake of an impor-
tant decision before acting to change it.
What is particularly unusual about S. 31G4. if it is viewed as a reaction to
Zurcher v. t^ianford lUiihj. is that its provisions lind little support even in the
dissenting opinions. Of three dissenting Justices, two would clearly take issue
with the application of the bill's provisions to any place other tlian newsrooms.
My .lustlce Stewart speaking for himself and Mr. Justice Marshall stated, "1
agree with the Court that the Fourth Amendment does not forbid the issuance of
search warrants 'simply because the owner or possessor of the place to be
searched is not then reasonably susjiected of criminal involvement.' " The views
stated in the opinion of Mr. Justice Stevens, the third dissenter, come closest to
the provisions of S. 3104. However, Mr. Justice Stevens would not require sub-
penas and would sustain the iise of warrants in all cases involving instruments
or fruits of the crime. Justice Stevens would assume that '"proljable cause to
believe that the custodian . . . holds a criminal's weapons, spoils or tl;e like,
justifies the fear (of disappearance of the evidence) and . . . demonstrates the
need for an unannounced search by force." This rule adopted in Justice Stevens'
dissent is absent from the text of S. 31G4.
Indeed the position of Mr. Justice Stevens makes clear the illogic of S. 3164
in contraband cases. The opinion of the Court in Zurcher on this issue is persua-
sive as well. The court noted :
"* * * as respondents themselves now concede, if the third party knows that
contraband or other illegal materials are on his property, he is sufficiently culpa-
ble to justice the issurance of a search warrant. Similarly, if his ethical stance is
the determining factor, it seems to us that whether or not he knows that the
sought after articles are secreted on his property and whether or not he knows
that the articles are in fact the fruits, instrumentalities, or evidence of crime, he
will be so informed when the search warrant is served, and it is doubtful that he
should then be permitted to object to the search, to withhold, if it is there, the
evidence of crime reasonably believed to be possessed by him or secreted on his
property and to forbid the search and insist that the officers serve him with a
subi^na duces tecum."
In Zurcher the Court adhered to a rule never seriously questioned since the
adoption of the Fourth Amendment. The simple truth is that search warrants
are not easy to get; the requirement that w^arrants be secured upon a showing
of probable cause has been a more than adequate protection of privacy through
our first two centuries, and it remains an adequate protection.
II. â€” S. 3164 is founded on the t-ironeous assumption that delay in a criminal
investigation will never impede the investigation. Ihe subpoena requirement in
the bill will unquestionably lead to delay. There is the time given to respond, the
time needed to resolve a challenge in the trial court and the potential for years of
delay in the appeal process. 1 bis delay may well destroy a case, the evidence
sought may be unavailable elsewhere, the evidence sought may i>rovide leads and
clues which are required for the progress of the investiganon. While the sul)poena
is being litigated the statute of limitations continues to run and. wh( re the de-
fendant has been charged, the speedy trial time limits expired. Delay may not
destroy the evidence, but it may well destroy its usefulness. The provisions of
the bill were drafted in apparent disregard of these pi-oblems.
Other problems are similarly ignored. IMany jurisdictions simply do not make
subi>oenas readily available to law enforcement officers and in some jurisdictions
they are, for all jtractical puri)Oses, unavailable. The effect of S. 31(>4 in these
juri.sdictions may be catastrophic.
The very real problems cau.'^ed by Congressional regulation of state criminal
procedure are particularly manifest in the provisions of this Itill. Mandating the
use of a subpoena duces tecumis a directive to which many states ciinnot conform
without significant changes in state legislation and state judicial rules and, i^er-
haps, state constitutions.
A warrant is directed against a place. Prol>able cause is the reasonable ground
to believe tbnt there is evidence of a crime m:h1 tbat it is located at !i certain
place. A subpoena is directed to a person. Tliis difference l)ecomes crucial under
S. 3H(4. An officer may not know who is in possession of the evidence sought.
42-100 â€” 79 22
An officer may not be able to serve the subpoena. If this occurs, S. Sl&l makes
no provision for the use of tlie warrant.
Moreover, the subpoena is not the legal equivalent of a search warrant, and a
warrant may be valid where the subpoena is not. A person served with a subpoena
is retjuired to produce evidence and by virtue of that act may he said to admit
possession and some degi-ee of knowledge about the evidence sought. He may
be entitled to defeat the subpoena on a self-incrimination claim. When a warrant
is served, the person need not take such potentially incriminating actions and
liis rights are not violated. The subiwena then may be validly quashed where the
warrant cannot. S. 3164 does not provide for the use of a warrant where a sub-
poena would be invalid and thus impedes law enforcement. This undesirable
consequence occurs when valid legal objections are made to subpoenas which could
not prevail against the warrant. The problem is exacerbated by the spectre of
spurious objections to subpoenas. A spectre raised specitically by the Supreme
Court is Ziirchcr when it noted : "The burden of overcoming an assertion of the
Fifth Amendment privilege, even if prompted by a desire not to cooperate rather
than any real fear of self-incrimination, is one which prosecutors would rarely
be able to meet in the early stages of an investigation despite the fact that they
did not regard the witness as a suspect. Even the time spent litigating such mat-
ters could seriously impede criminal investigations."
Requiring the use of subpoenas is objectionable on other grounds. The proposed
law will, in fact, require the use of subiK)enas in cases where there is a serious,
luit not readily apparent, risk of destruction or loss of evidence. At early stages of
investigation the identity of the offender may not be known. The apparently
blameless third party may not be innocent or may be related or sympathetic to
the offender. Further, as the Supreme Court stated : "it is likely that the real
culprits will have access to the property, and the delay involved in employing
the subpoena * * * could easily result in the disappearance of the evidence,
whatever the good faith of the third party."
It is also significant that not all blameless third parties will prefer subpoenas
to warrants. Subpoenas may impose unacceptable burdens on citizens. In some
places in this country, a person who gives any help or cooperation to government
authorities risks disapproval and harassment by elements in his community.
Persons living in such places can explain their conduct when police seize evidence
pur.suant to a warrant ; they cannot ju.stify voluntarily getting and then bringing
the evidence to court in response to a subpoena.
We must at least pause to consider the nature of the obligations we place upon
private citizens to preserve and protect evidence, particularly in cases involving
crimes of violence. Are they to defend evidence with their lives? Suppose a private
citizen has in his possession evidence which will implicate another in a murder.
He is served with a subpoena and a day later, the offender appears and demands
the surrender of the evidence. Does the private citizen resist even if the demand
is accompanied by implied or explicit threats, by the use of force, deadly or other-
wise? By requiring subpoenas, we may also be subjecting innocent persons to
serious risks which we cannot predict in advance.
Finally, the provisions of S. 3164 offer a special refuge to a particular class of
offenders. White collar offenders, coriiorate officers and union officials who commit
crimes in connection with Iheir duties are the single class of offenders most likely
to be involved in cases where evidence of their offenses is in the hands of third
parties. Organized criminnl enterpi-ises will also alter their operations to take
advantage of the requirements of S. 3164 by using shadow corporations and other
III. â€” S. 3164 cannot be defended as a measure designated to protect the press.
The news media does not want a procedure, it wants a privilege. In recent years,
virtually every one of the cases involving confrontations between the court and
the press arose not from the use of warrants but from the use of subpoenas.
Ultimately the news media believe their papers and materials miist be exempt
from compelled production by court issued warrants or subpoenas. If the press is
right, the remedy is to enact a statute conferring such an exemption. S. 3164 does
not create the exemption and does not respond to media claims. Parenthetically,
I note that much recent difficulty for media has arisen, not from state efforts to
secure evidence, but from efforts by defense counsel to secure evidence to excul-
pate their clients.
Tliere is simply no showing of pnrticular abuse of warrants In media cases or
that warrants have chilled the ox(>rcise of freedom of the press. The Supreme
Court has indicated that if abuÂ«e were shown, the Court would deal with it.
There has been no abuse of warrants in media cases. The phiin fact is that courts
and prosecutors have been sensitive to the concerns voiced by news media and
have not impinged on the freedom of the press.
It is a tinal irony that, even under the provisions of S. 3164, searches of news-
rooms will be allowable and not only in rare cases. Under most state law, a re-
porter who possesses records or papers taken without authority from private
organizations or government agencies is guilty of a criminal offense. In such a
case a warrant would issue under the projjosed section li:02(l). In other ca.ses,
the news organization may indicate that it would refuse to produce materials
it considered privileged regardless of what a court told it to do. Here a war-
rant may issue under the provisions of 1202(2). Indeed, in Zurchcr the news-
paper there involved had specifically announced that it would destroy any
photographs that would aid prosecution. (^See concurring opinion of Mr. Justice
IV. â€” There are exceptionally serious collatei-al consequences inherent in S.
3164. At a minimum these consequences require considerable reworking of the
First, under present practice probable cause is not required for the issuance
of a subpoena duces tecum. S. 3164 can be read to require probable cause as a
predicate to use of the subpoena duces tecum. The importation of probable cause
concepts into subpoena practice would destroy the investigative grand jury.
Second, S. 3164 apparently abolishes warrantless searches and seizures. It
requires that "anyone . . . with probable cause . . . shall attempt to secure that
evidence only through a subpoena duces tecum." The only exceptions to this
rule require the use of a warrant. I doubt it was the intent to abolish the rules
allowing for searches incident to arrest, warrantless automobile searches, plain
view seizures, consent searches and so forth, but the language achieves tliis
In sum, S. 3104 ought not to become law.
CITIZENS PRIVACY PROTECTION ACT
TUESDAY, DECEMBER 19, 1978
SuBCOailMITTEE ON THE CONSTITUTION
OF THE Committee on the Judiciary,
The subcoiiiinitteo met, pursiiiuit to notice, at 10:10 u.m., in room
2228, Dirksen Senate Office Building, Senator J^irch Bayh (chairman
of the subcommittee) presiding.
Present : Senator Bayh.
Staff pre.'-ent : Xels Ackerson. cl^ief counsel and executive director;
]\rary K. Jolly, staff director; Kevin O. Faley. general counsel; Ted
Humes, minority counsel; and Linda Roaers-Kingsburv, chief clerk.
Senator Bayh. The subcommittee will come to order.
OPENING STATEMENT OF SENATOR BIECH BAYH, CHAIRMAN
Senator Bayh. Today the Subcommittee on the Constitution will
continue its hearings on legislation which has been introduced in re-
sponse to the Supreme Court's decision in the case of Zurcher v. Stan-
ford Daily. In that decision the majority held that police armed with a
warrant could, forcibly and without notice, search a person's home or
business for evidence of a crime even if that person is in no way sus-
pected of being involved in that crime.
I tliink it is critical for ns to understand that we are not talking
al'Out tlie right of law enforcement agfencies to enter the i)remises
of a bank roljber or a lieroin peddler. We are talking about the right
of law enforcement officers to enter the home or place of business of an
ir:dividual citizen who is not susjiicioned of having committed any
cT-ime. We are talking about the need to protect the premises and the
home of individual citizens who are innocent of committing any crime.
It seems to me that is a rather critical question.
As several of our previous witnesses have pointed out, the Zarrher
decision has left us with a serious potential foi- governmental abuse
of our right to privacy â€” the most fundamental and comprehensive
of all constitutional riglits. This right to privacy is the keystone of
our Bill of Rights and our concept of civil liberties. It is this funda-
mental principle more than any other which separates our form of
government from those totalitarian regimes Avhich do not recognize
the supremacy of the individual.
Throusrh the years the Amei-ican society has reflected a delicate
balance between the rig'hts of individual citizens and the rights of
the public at large. I ])e]ieve it is one of the most imooi-tant functions
of government to protect that balance â€” to insure that the rights of
individuals are not ignored in our haste to meet the needs of the public.
Many citizens toclav are concerned that this balance is being: lost.
At times, the raw power of the Government, the size of the bureaucracy,
the blizzard of regulations, and the tax burden seem to overwhelm the
individual American citizen. With the Stanford Daily decision, we
have encountered a new and even moi-e disturbing issue â€” the right of
t]ie Government to search through confidential information for evi-
dence of someone else's crimes. The Citizens' Privacy Protection
Amendnient, S. olG-i, which I introduced in June, is designed to restore
that delicate balance. It would establish special procedures for search-
ing and seizing evidence Avlien that evidence is in possession of a
person not implicated in criminal activity.
^"Miile we would all agree that prosecutors should have access to
necessary evidence of criminal activity. I don't believe that forcible,
surprise searclies are an appropriate method of seeking evidence from
innocent third parties. The proper enforcement of our criminal law
does not require that we surrender our right to privacy.
I have been particularly concerned over the impact of the Stanford
Daily decision on the press and our first amendment freedoms'. As
our previous hearings have shoAvn, the very nature of the news media
requires them to gather information concerning a wide variety of peo-
ple and organizations. AMien investigating corru])tion, tlie fruits
of these investigations could almost routinely be considered "evidence"
relating to crimes and would therefore be subject to seizure in unan-
nounced police raids of newspapers, radio, and television stations.
Because of this tremendous potential for liarm to our first amend-
ment freedoms, I am pleased that the President's legislative position
announced last week seeks to i)rotect newsrooms from unannounced
searches. I particularly welcome i\\e President's support for the ap-
plication of these safeguards to local. Stnte. and Federal law enforce-
ment agencies. Tlie ap)ilication to all levels of law enforcement is a kev
ingredient of the Citizens' Privacy Protection Amendment, and I
believe it is crucial to any action taken to redress the Supreme Court
decision in the Stanfo)rl DaiJy case.
T am somewhat concerned, however, that the Justice Department's
approach does not extend to other innocent third aprties. Our hear-
ings have demonstrated that these protections are particularly neces-
sary for the ])ropor maintenance of other confidential relationsliips rec-
ognized by our traditions and laws, such as those between a patient and
a doctor or a lawyer and a client.
Despite these reservations. T am tiemiMidously encouraged that the
administration has come as far as it has in supportinir this effort to
shore up some our our most basic constitutional rights and protec-
tions. T look forward to working with the administi-ation in proceed-
in<r along the pathway which will result in the passage of leoislation.
^ye are privileired this mornino- tliat the Assistant Attorney Gen-
eral for the Criminal Division. Philip TTeymann. is once again l)e fore
us. He is of course the one wlio has the principal responsibility for
this within the administration. He was helpful to us as we initiated
these hearinp-s earlier in the year.
T would Ijke to emphasize also at the beginning that, although the
administration position as enunciated and discussed here does not oo
as far as I would like for it to go, it is still a sigiiificant step. It
touches the veiy important area of protection of our first amendment
rights for a free press. This is criticah
I Avant to emphasize that Ave aie on opposite sides of the Avitness
table here but we are on the same side of these issues. "We are not
adA'ersaries in the pursuit of protecting the rights of indiA'iduals.
Togetlier Ave hope to be able to see Iioaa' far we can go to stay Avithin
tlie constitutional jnovince of Congress. This is a delicate balance.
Mr. Heymann, we appreciate your presence.
TESTIMONY OF PHILIP HEYMANN, ASSISTANT ATTORNEY GEN-
ERAL FOR THE CRIMINAL DIVISION, DEPARTMENT OF JUSTICE
Mr. Heymaxx. Thank you, Mr. Chairman.
I, too, feel that AAe are proceeding along a connnon path. There Avill
be questions during the course of the legislatiA^e process as to how far
Ave should go. There were many questions about details of the adminis-
tration's proposal. We purposely did not put it in statutory form in
order to be able to address those questions Avith the Senate and the
House. I think, hoAveA-er, that Ave are on a similar path. I hope Ave see
legislation emerge here.
Although my statement is relatiA'ely short, if it could be put in the
record I Avould take liberties AA^ith it and try to make it a bit shorter.
Senator Bayii. Without objection, it Avill be inserted in the record.
Mr. Heymann. About 6 months ago I Avas privileged to appear be-
fore the subcommittee to discuss the Aarious problems troubling many
in Congress and around the country arising from the Supreme Court's
decision in Zurcher vs. Stanford Daily. At that time I mentioned the
difficulties invoh-ed in attempting to deal Avith these problems by
Federal legislation. FolloAving up the public announcement of June
14, I advised the subcommittee that President Carter had directed
that a task force be set up to study the problems.
As a result of the President's order, this task force was created'
in the department under my direction. The task force Avas to examine
all the issues and submit to the Deputy Attorney General and to the
Attorney General an option paper and a set of recommendations.
This was done. With some modifications the Deputy Attorney Gen-
eral and the Attorney General adopted the recommendations of the
task force. Last Aveek the President announced that the administra-
tion was accepting the Attorney General's recommendation.
The task force looked at the possibilities of broad third party
bills and bills that Avould deal Avith the press plus certain privileged
categories â€” in the sense of legal privileges such as doctors and hnv-
yers. It looked at bills that would deal Avitli the press only and Avitli
Avhat I will call our first amendment bill.
T Avould like to begin by explaininir in a positiA'c and affirmatiA'Â©
Avay AA-hy Ave focused on a first amendment lull, an approach to this
problem narrower than that of the chairman.
In many Avays it looked to us as though Avhat Avas ncAV Avas the
problem associated Avith first amendment rights of speech and press.
The question of searching third j^arties. nonsuspects. is one that was
not changed by the /Staiiford Daily decision. It was not eA'en changed
by Warden vs. Hayden in lOGT. As far as I knoAv, from the time the
fourth amendment was written, and Avell before that, it Avas under-
stood that third parties could be searched if it were believed that
evidence was in their possession. And, to the best of my knowledge,
tiiey were searched.
I say "to the best of my knowledge" because nobody has ever kept
records, either at the State or Federal level, indicating whether the
subject of a search was himself a suspect or what we are now calling
a "third party."
The new element arising from the Stanford Daily decision was
tlie infusion of insecurity into the news-gathering process. Xo one
knows of a search of the press prior to 1970. To this date, the Federal
Government has not searched a newspaper or a broadcast outlet, to the
best of our knowledge. There have been, however, 12 or so searches
by State authorities of what I will hereafter call "press," covering