tions. In addition, there are sound policy reasons why a broad First Amendment
bill is preferable to third party legislation.
The primary weakness of broad third party search proposals is that they are
likely to pi-ove innvorkahle. Unlike a First Amendment oriented proposal, which
can focus protections on the fundamental work product materials of a narrower
class of third parties, a broad third party bill would constrain law enforce-
ment investigations in an extremely large number of .situations. The breadth
of this third party coverage would necessitate more and vaguer exceptions, which
significantly limit the nature of the protection afforded.
Congressional proposals to safeguard third parties generally exclude from pro-
tection a holder of evidence who either is "involved" in the criminal activity or
is likely to destroy or conceal the evidence sought. If magistates rule that these
exceptions are triggered liy simply establishing a relationship l)etween the third
party and the suspect (most often a friend or relative), the protections will often
be useless. But if greater proof of proltable destruction or involvement is
required, law enforcement authorities are unlikely to be able to substantiate
their judgment during the early stages of investigation. For example, even the
identity of conspirators is frequently xuikuown duriing the period when the
evidence is sought.
The difficulty of determining who is actually an innocent third party leads to
more than draftiing problems. Broad third party safeguards are more likely to
create evidence sanctuaries then are First Amendment protections. Law enforce-
ment officers would be put in the unenviable position of having to determine
whether friends, relatives, or associates of a susi)ect were willing to .secrete or
destroy evidence. The task of iiroving the involvement of potential sympathizers
would drain resources, perhaps prove more intrusive than a search, and could
alert suspects.
The burdens of third party protections extend to the operations of the judicial
system. The chalhnge of defining and proving third party involvement will
permit additional litigation concerning the validity of warrants. Tlie govern-
ment may be forced to litigate, for all search warrants, the issue of whether the
subject was a suspect or whether a suiipoena would have sufficed. In addition,
since grand juries are not in continuous session in many federal districts, a
requirement of "subpoena first" or "subpoena only" for all third parties is likely
to involve considerable delny in investigations.
These concerns about third party search prohibitions are reinforced by a sur-
vey we conducted of the third party search policies and practices of the ITnited
States Attorneys throughout the nation. In general, we found that although
third party searches are relatively rare, limits on their use are likely to inter-
fere with a number of important investigations.
In summation, after reviewing the serious constitutional questions, the polic.v
problems, and the empirical evidence, we believe that broad third party protec-
tion would clearly cause more problems than it could prevent.
COXCLUSIOX
The preservation of a free press, and of First Amendment values generally,
involves providing assurance that the confidentiality of sources and of informa-
tion-gathering activities is secure from the government's power to search files
and newsrooms. The Administration l)elieves that this proposal strikes the appro-
priate balance between freedom of the ])ress and the maintenance of public
safety. AVe suggest that those materials which are fundamental to the work of
people who disseminate information in interstate or foreign commerce should be
guarded more carefully than they would be under virtually any of the proposals
tliat have been introduced to date. All documents held in connection with publi-
cation are protected to avoid dangers of rummaging. Our proposal also nmkes it
345
possible for the evidence basic to law enforcement and not closely related to
information-gathering and dissemination to be acquired by the government under
legal process.
Moreover, this proposal is workable and constitutional. It limits court argu-
ments over conditions which justify a searcli by avoiding questionable excep-
tions. It circumvents a battle over defining the press by malcing a broad con-
struction acceptable to law enforcement. And it relies on the farthest reach of
the Commerce power to ensure the fullest protection of First Amendment
materials.
Department of .Tustice.
Washinffton, D.C., August 21, 197S.
Hon. Birch Bayh,
U.S. Sointe,
Washinfffo)), D.C. • â–
Dear Sexator Bayh : I have enclosed a copy of the results of our survey of
United States Attorneys on tlie third party search issue. As you may note, we re-
ceived an excellent proportion of responses (76 percent). I believe the summaries
of replies address those questions I left unanswered at your hearings of June 22.
If I can be of further lielp, please do not hesitate to call.
Very truly yours,
Philip B. Heymann,
Assistant Attorney General, Criminal Division.
Enclosure.
Survey of U.S. Attorneys on Third Party Searches
In hearings before the Sul)committee on the Constitution of the Senate .Judi-
ciary Committee the Criminal Division was asked to supply information on fed-
eral' search warrant practices with regard to third parties. In response to this
request. Assistant Attorney General Philip B. Heymann canvassed the 94 United
States Attorneys about: (1) the prevalence of third party searches: (2) stand-
ards they now use for determining whether a warrant shall be sought for evidence
possessed by third parties : and (.3) the likely effects of the enactment of one form
of the proposed legislation. ;Mr. Ileymann also invited any additional comments
on the advantages or dangers of limiting prosecutors' discretion to request search
warrants.
This paper, prepared by the Executive Office of United States Attorneys, re-
ports tlie results of the Crin)inal Division survey. The Division received seventy-
two responses (76 percent) to the questionnaire. Of the twenty-three non-respond-
ing districts, several (Guam, Canal Zone. Puerto Rico, Virgin Islands) do not
generally answer and their experience is not usually relevant to such surveys. The
number of replies is remarkably large in relation to our past experience with
similar surveys. The large number of responses, in combination with the nearly
unanimous answers given to each of the questions, shows the extent to which the
United States Attorneys consider this an imix>rtant issue.
The three specific questions and summaries of the answers are provided lielow.
Question 1. Roughly how many (or what percentage) third party searches have
I)een executed in recent years? Tlie following definition of third parties, taken
(paraphrased) from Senator Birch Bayh's proposed legislation, should be used
for purposes of this inquiry :
Answer. All Individuals who possess or control evidence, except those individ-
uals who, there is probable cause to believe, are Involved in the criminal activity
under investigation.
Xo official docket records are kept on such matters. However, all Assistants
handlins criminal cases were polled and newly appointed U.S. Attorneys con-
tacted their predecessors, district .iudges and magistrates to determine past prac-
tice. Accordingly, most responses go back eight to nine years and. in the case of
some very senior staffs, much longer. A breakdown of the figures shows :
Nuwhrr of
Incidence of iise: districts
No use at all 23
U.se in 1 percent or less of the cases 28
Use in 5 percent or less of the cases 8^
Use in 10 percent or les> of the cases 7
Use in 20 percent or less of the cases 4
346
Many of those districts falling into the 1 percent or less category gave responses
such as, "2 in five years" or "3 in ten years." The bulk of United States Attorneys
described the use of such warrants as being "infrequent, rare" or "negligible".
Of those four districts noting 20 percent or less (no district estimated a greater
figure) one was on the District of Columbia where the majority of such warrants
occurred in the Superior Court — the equivalent of a large city or county court. Of
the remaining three in this heavy use category, one was Arizona where the need
to seize drugs before their distribtuion or transfer is a common problem, and the
other two were districts which noted that their grand juries meet only several
days a month. The U.S. Attorneys in these districts were using warrants in place
of the more normal subpoena process to avoid delay.
In assessing the above figures, one should note that many U.S. Attorneys had
difficulty in defining the third party search concept and its application. Searches
made pursuant to warrants are ordinarily directed at places (homes, offices, etc.)
and things (vehicles, vessels, etc.), not at persons. To obtain a search warrant, it
is necessary only to establish probable cause to believe that the evidence sought
is located at the place or thing to be searched. No specific showing is required
with respect to any individual.
The proposed legislation requires distinguishing between a "suspect" and a
"third party". To the extent that the legislation imposes a distinction based upon
persons onto a procedure heretofore based upon places and things, U.S. Attorneys
fear it will complicate an already confused area of law.
Thus, in their replies, the U.S. Attorneys stressed the difficulty of answering
because one : (a) often never learns the identity of the third party whose premises
were searched ; (b) encounters aliases or frauds among third parties ; (c) deals
with a range of relationships among suspects and third parties' relationships
which are often difficult to establish; and (d) faces other indeterminable
situations.
Question 2. What standards are used by United States Attorneys in a deter-
mination of whether or not a search warrant should be sought for evidence in the
possession or control of third parties? Are these standards different from those
used with suspects?
Answer. Sixty-four districts responded that the probable cause standards used
for third party searches were the same as for suspect searches. Regardless of who
possesses the evidence, these U.S. Attorneys believe a warrant provides a fast
means of securing evidence when there is reason to believe that evidence may be
destroyed, hidden, moved, tampered with or otherwise have its integrity
endangered.
Six districts noted the use of some additional standard or criteria before obtain-
ing a third party search warrant. Those offices required extra caution and a per-
sonal decision by the U.S. Attorney that the search was necessary. For this group
a search was deemed necessary when the evidence was : (a) not otherwise obtain-
able; (b) inherently deadly, as in the case of explosives or chemicals: or
(c) controlled by third parties whose neutrality was clearly in doubt.
Question 3. What, if any. difficulties would you envision in operating under a
legislative scheme tliat limited third party searches to situations where there is
reason to believe that tlie evidence will be destroyed, hidden or moved if sub-
poena proceflures are followed?
Answer. Sixty-six of the U.S. Attorneys responding opposed such legislation.
Two felt any difticulties such legislation might create are unknown and gave no
opinion for or against. Two districts stated that they would have no problems
\\ ith the legislation. The latter four offices each noted no previous i.ise of third
warrants.
The reasons supplied by those who opposed the legislation are stated below.
The ones listed first were tho.se mentioned most often. Virtually every office
cited the first four points :
(A) LncJc of nhifsc. — U.S. Attorneys knew of no Federal cases or suites citing
abuse (willful or negligent) of the third party search warrant. The lack of abuse
may not be surprising given the low rate of use of third party search warrants,
the special Justice Department guidelines on media searches, and the generally
high quality of federal law enforcement. Many U.S. Attorneys candidly described
the legislation as a gTO.ss overreaction to the concerns resulting from the Supreme
Court's decision in the Stanford Dally case. Their greatest concern was that a
legislative response to what they perceive as a "non-problem" will, in fact, create
ninny new prol)lems; there was a feeling that the current safeguards, relying on
centralized control by the Attorney General, are an adequate match for the real
concerns.
347
(B) Delay.— The U.S. Attorneys uotccl that ;iUhoiij;li they use w;irr:uits rela-
tively infrequentlv, there is usually an extremely pressing and immediate reason
which supports their request. The prime alternative to a search warrant, a sub-
poena, must be issued by a grand jury and may be contested before it is served.
Investigations involving violence, kidnapping, explosives and arms, or highly
mobile narcotics trathc often require immediate government action. Moreover,
in the vast majority of smaller, more rural districts, the grand jury sits only
once or twice a month and it is dillicult to obtain a subix)€na quickly.
Tlie responses pointed out that even when a grand jury is available to issue
a subpoena, the opiwrtunity to challenge it can lead to incapacitating delays in
those investigations where haste is necessary. INIotions to quash may be filed
bv well meaning, but overly cautious attorneys for tliird parties. Suspects who
learn of the subpoenas can seek to interject their own objections, perhaps through
threats to the third parties. Some replies analogized the prospective situation
to the diliiculties encountered under the newly enacted IRS third party summons
procedures.
Delays not only lower the probability that the evidence will be available if
the i;overnment wins permission to acquire it, but also can lead to additional
difficulties. The statute of limitations might run while the subpoena is being
contested. The litigation of the sul)poena might extend beyond the life of a
particular grand jury, resulting in the inefficient use of that investigative body.
Finally, the Speedy Trial Act's deadlines do not contemplate the possible delays
associated with a mandated third party subpoena process.
In an example typical of those cited by some U.S. Attorneys, a grand jury
subpoena was served on a bail bondsman to produce records relative to a crim-
inal investigation. He filed a motion to quash based on fourth and fifth amend-
ment rights, etc. The motion was denied by the district court. The defendant
appealed. Briefs were submitted and the case was argued before the circuit
court of appeals, where the district court was affirmed. This process required
approximately six months. After the circuit court affirmation, the bondsman's
answer to the subpoena was that he carried his records in the trunk of his car
at all times, that the trunk had been forcibly opened, and the records liad been
stolen.
(C) The gmcration of nrw litigation. — Many U.S. Attorneys view the pro-
posed legislation as providing simply one more ground for defendants to use
to challenge the government. Given the minimal empirical evidence of a problem,
the responses emphasized that the vast majority of heneficiaries would he sus-
pects who claim to be third parties. These individuals would have more than a
tool for harassment of investigation : a "reason to believe" standard is difficult
of proof and might prevent the acquisition of evidence. It is difficult to articulate
a strong suspicion of involvement in the crime by the party to be searelied and
yet this is often all the government has during the early stages of investigations
even when there is probable cause to believe that evidence sought is in a
particular location.
Moreover, some U.S. Attorneys stressed that the lines among suspects, sym-
pathizers, and innocent third parties are often unclear. The vast majority of
third party searches involve situations where a suspect has the use of a bed-
room, garage, storage shed, etc., of a parent, relative, friend or business asso-
ciate without a lease or rental relationship. Even wlien the third party is ex-
tremely cooperative, the law of search and seizure is confused (contradictory
among' courts) as to whether the party giving consent can lawfully authorize
a search. The legal tangles of consensual searches, authorized by tliird parties,
are enormous. The option of using a warrant provides a necessary safety valve.
For example, cooperative carriers have no objection to giving consent to federal
agents to search for and seize the drugs which regularly arrive at National and
Dulles airports, but search warrants must he obtained. (Case citations available.)
(D) Lo.<;-.9 of evidence. — The U.S. Attorneys added that the inevitable result
of such legislation Avill be the loss or destruction of .some evidence. Prior notice
allows sympathetic third parties to tip-off friends, employees, and relatives.
Many otlierwise neutral third parties \^â– ill he forced into tlie defendant's service.
A third party suliject to a search has a perfect "excuse" for cooperation. But
a third partj- who lias been given advance notice may he hard-pressed to explain
to a friend, relative or employer w^hy he or she cooperated instead of moving
the evidence. For many tliird parties a search warrant is a favor which forces
the resolution of a personal dilemma.
348
The resiwnses emphasized that the goveniment cannot predict the intent of
third parties. The investigation and establishment of a family or commercial
relationship, or merely an anti-law enforcement attitude which will lead to the
loss of evidence is generally impossible. Tlie attempt also might be more intru-
sive than a search. Moreover, tlie government has virtually no practical means
to punish violations of the subpoena process. Third parties wlio "tip-off" suspects
would, like most perjurers, be safely assured of no government action against
them. Finally, even cooperative third parties might not properly handle or
preserve evidence. For example, the time and cost of locating items can lead
to a less than thorough search being made for items sought pursuant to a
subpoena.
(E) OivnersJiip. — Responses noted that ownership is often unclear; the gov-
ernment cannot determine who is in possession or control of the evidence sought.
{F) Oon.9rnt. — Some replies noted that agents may respond to limits of
searche.s by pushing for more questionable "consent" searches. The proposed
legislation might create incentives we dislike, but which are difficult to monitor
and to avoid.
(G) ArailabiUiy. — ^Sulti>oenas are not available after the indictment is filed.
In selected cases, this can make a complete investigation impossible.
(H) Abuse of grand jnrp. — Limits on third party search warrants may lead to
greater use of "forthwith" or "instanter" grand jury subpoenas. The Depart-
ment's long time policy has been to discourage their u^se.
(I) "Havens". — U.S. Attorneys fear that limits on third party searches could
create "havens."
(./) Administrafinn. — A number of U.S. Attorneys see the proposal as unneces-
sarily burdensome in terms of time and effort ; they perceive it as an impediment
to efficient law enforcement.
CONCLUSION
Virtually all U.S. Attorneys strongly agree with that aspect of the ZurcJier
decision which concerns third party searches. "Corrective" legislation is con-
sidered unnecessary, since the U.S. Attorneys know of no empirical proof of
abuse and view existing safeguards as adequate. New legislation is perceived as
another restraint on law enforcement officials, yet one which fails to cure any
widespread wrong or injustice.
The figui'es seem to indicate that issuance of a third party search warrant
is certainly the exception, not the rule; it is especially rare when the third party
is not suspected of any criminal complicity. However, the few cases in which
warrants are used are important ones with conditions which frequently necessi-
tate a search, not a subpoena. IT.S. Attorneys obviously feel that their past per-
formance justifies a presumption of fairness by the offices of government
prosecutors.
Statement of Attorney General Griffin B. Bell, to Members of the Press,
Wednesday December 13. 197S
A few minutes ago at the White House, the President announced to a group
of editors of the Gannett newspaper chain his recommendations to the Congress
for legislation tliat deals with the question of law enforcement searches of media
facilities.
The President has asked that Phil Heymann. the Assistant Attorney General in
charge of the Criminal Divisicn. and I explain these proposals in more detail to
you this afternoon.
By way of background, as you no doubt are acutely aware, the Supreme Court
on May 31 of this year ruled in Znrrher v. Stanford Dailii that the Constitution
permits the i«snance of warrants to search newsjiapf^r offices for evidence of a
crime, even where no one connected with the newsi)aper is suspected of criminal
conduct.
At the re<piest of the Supreme Court, the Department of .Justice participated
in the Stanford Daily case by filing an amicus curne. or friend of the coTirt, brief.
The TVpartnient's brief, while arguing that the Conv:titntion did not forbid the
court authorized search by warrant of tlie Stanford Daily offices of evidence of
a crime, noted tli;it iiolicy considerations may justify legislation placing restric-
tions on the use of such search warrants.
Tlie Pre,sident and I, fully cognizant of our responsibilities both to law en-
349
foreement aud fo the first amendment, believe (hat applying the usual rules
re;;ardin? searches to the media pose a particular threat to the independeui-e and
funclion of a free i)ress in a denKH-ratic society. Those who gather and dissfuii-
nate information to the public nuist rely heavily on persons botli within and
without government to disclose instances of wrongdoing, inedicicncy, or neglect
of duty. At the heart of the new.^gathering function is the sensitive, fragile rela-
tionship between a reporter and his or her source. That relationship could be
seriously jeopardized liy the fear that (he reporter's .solemn pledge of c<^)nriden-
tiality will be negated by a police search of the rep(»rter's tiles. The interest of
the media in this regard is not unlike tiiat we in law enforcement have as it
concerns our informants and sources.
The danger is not diminished merely becau.se the power to search may be
invoki^l only on rare occasions by the law enforcement officials, since the poten-
tial exercise of tliat power alone may chill sources on which the media and the
pidilic at large depend.
Even before the Stanford Daily dtn-ision. I announced in a .speech before the
American Society of Newspaper Editors that the federal government at least
should not use .search warrants to obtain evidence from the media unless the
same stringent standards tliat now apply to media subpoenas were used, includ-
ing the recpiirement that any such reipiest receive my personal approval. As you
know, we know of no federal searches of media fac-ilities.
Following the decision. President Carter in June asked me to ci*eate a siKK-ial
task force within the Department of Justice to study the issue of media searches.
This task force, which involved representatives from throughout the Department,
including investigative and prosecution personnel, chaired by Philip B. Heymann,
who heads the Criminal Division, and produced an extensive report accompanied
by recommendations for legislation. The result of their study, which has been
fully considered by Deputy Attorney General Benjamin Civiletti, myself, and
the President, led to today's proposals.
The Administration's proposal for this legislation reflects a basic conviction
that the work product of persons preparing material for dissemination to the
public should \>e protected from police searches. The media, no less than law
enforcement, needs to protect its confidential sources from disclosure. Xot oidy
would fundamental First Amendment interests be furthered l)y ruling out
searches for a reporter's notes, drafts, and other work product materials Imt
law enforcement efforts, which often are aided by press accounts luicovering
wrongdoing, will benefit from such a rule.
The heart of the Administration's proposal is a "no search" rule protecting
the work product of any person preparing material for dissemination to the