statutes, which would, in nuiny cases, cover the person wlio has possession of in-
criminating evidence and does not brinj;- it to the attention of the proper authori-
ties. Tf destruction or conceahnent of evidence is a crime, then an express excep-
liiiu allowinj;- warrants to issue for its seizure is unnecessary. The general ex-
ception allowing warrants directed at persons engaging in criminal activity would
be suiHcient.
Third, whether destruction or concealment of evidence is a crime or not, I
have no reason to believe that news persons have any greater disposition to
destroy or conceal evidence than any other person. I am certain that, upon re-
ceiving a reasonable re<iuest from the police, news reporters will cooperate by
furnislung whatever evidence of crime they have which is not inconsistent with
ilieir news reporting responsibilities and professional ethics. Deputy Att()rn€\v
General Civiletti recently noted the success of the Justice Department in ob-
taining evidence by voluntary approach. If compulsion is needed, the ordinary
civil process, such as a subpena, is quite adequate to protect the interests of law
enforcement officers in obtaining evidence of crime.
C. ADVANTAGES OF ADVEKSARY PROCEEDING
Tu closing let me emphasize the significant practical differences between the
use of a warrant to obtain evidence and the ii.se of other civil process, such as a
sulipena. after an adversary proceeding. The warrant will issue ex parte based
solely on the information presented by the law enforcement officiaLs. Although
some jurisdictions require that it be executed only in the daytime, many states
allow it to be served at night. While police are generally required to knock and
announce their intentions before entering the premises, forced entries, which
follow quickly upon such announcements, are very common and authorized. In
addirion. if the police are aware that no one is present on the premises, they
.•nv not even reijuired to knock and announce their purixt.se for being tliere.
Thus the police could execute a search warrant without the occupants of the
premises ever knowing they were there.
In sharp contrast, the protections which are markedly absent from the warrant
;irrx-edure are present if the police are required to use civil process after an
ndversarial hearing. The possessor of the evidence is first given notice and an
opportunity to be heard. Second, if the court orders the evidence produced, it
will require the ijerson in possession to deliver the evidence to the police. No
intrusive search will be authorized. Third, the contempt power, after notice
and a liearing. is available to enforce the court order if the per.son should fail
to comply. Thus all the procedural safeguards which surround the use of ordi-
nary civil process would be available if this path is chosen while most of those
protections would be absent if the police are allowed routinely to use warrants.
CONCLUSION
In conclusion, I underscore the importance of enacting legislation to protect
the gathering and dissemination of the news. Throughout our history, the press
has played a vital role in maintaining the integrity of our democratic institutions.
I >uring those times of its greatest contribution, the press has exposed corruption,
disclosed improprieties by high ranking officials, and revealed the undue in-
fluence of special interests on the proces.ses of Government. In pursuing this
noble role, the press needs a great deal of breathing space to investigate and
ferret out unlawful or improjier conduct.
The decision in the Stanford Daily case will jeopardize the precarious position
of the press in achieving these goals. The sweep of the Court's opinion would
allow the police to search the premises of a newspaper and seize whatever docu-
ments they thought within the scope of the warrant. In sucli instances, the
warrant will i)rovide very little prottK-tion against abuses, though the news-
pai»er could ultimately force the return of unlawfully obtained materials. Be-
cause confidential sources and deadlines play such a critical role in a news
npf>rati(m. the seizure by the police of such documents could strike a fatal blow
tr. the reporting and disclosure of a particidarly devastating story. These prac-
tical effects lead .lames J. Kilpatrick to observe that the Supreme Court decision
42-190 — 79 3
28
displayed "an astonishing ignorance of the real-world nature of the news-gather-
ing process."
The task of the Congress is to recognize these realities and enact into law
adequate protections for them. I urge this Subcommittee to move quickly on,
these l)ills so that we will have sound legislation by the conclusions of the 95th.
Congress.
Senator Bayii. Congressman Jacobs, shall we proceed with you ?
TESTIMONY OF HON. ANDREW JACOBS, JE., A U.S. EEPRESENTA-^
TIVE IN CONGRESS PROM THE STATE OF INDIANA
Mr. Jacobs. Thank you, Mr. Chairman.
I think for the record that we might point out that the panel con-
sists of Mr. Quayle who has experience as a newspaper publisher,,
myself — a former police officer — and Father Drinan, who is a little
bit of everything. lie is, above all, I suppose, a civil libertarian.
There is no truth to the rumor that M^ien Father Drinan arrived
in Congress a number of years ago, that he heard three confessions
one morning and threw them all out on constitutional grounds.
Solins said, approximately, that civilized government is impossible
until the concerned are as outraged as the victims.
^lost of the third-party searches, to which we refer here, involve-
the tmconcerned who, as good citizens, can be presumed to be as out-
raged as the victims. And, herefore, as inclined as the victims to assist
in the prosecution of criminal defendants alleged to have victimized"
the victims.
Therefore, I come to the conclusion that in most cases out of a mil-
lion the subpoena is adequate to obtain the cooperation of good and
decent citizens, whether they be in the newspaper, television, or radio
business, or Avhether they just be in any business and happen to possess
evidence that might help assist in the administration of criminal
justice.
]\Iost cases out of a million are not all cases out of a million.
I suppose tliat it is conceivable that there are those cases in Avhich'
third parties not alleged to have committed crimes are in such sym-
pathy with the criminal defendants in an instant case — possibly be-
cause of relationship, afl'ection of some kind, or whatever — that there
miglit be undue motivation or temptation to destroy, conceal, or alter
evidence in such person's possession.
In those cases, 1 suspect that an exception to the otherwise abso-
lute ban on the issuance of search warrants, whicli as the Chair has
said constitute either a knock at the door or a rifle butt right through
it and hobnails in the printing room, as they say
In tliose cases whore pi'obable cause can be shown, that there is
strong likelihood that the evidence might be altered and destroyed
or concealed further, then T tliiiik a search warrant probably — and
I use the adverb ad\isodly — should be issued.
But even then, 1 believe that your legislation should consider what
takes place under those dire circimistances when such a search war-
i-ant is issued.
May I say, parenthetically, that it seems to me that any search war-
rant Avith an adversary proceeding becomes, by definition, a subpoena.
But in those cases where the search warrant is issued, then I would
29
suooest tluit you consider inclu(lin<i; in vour legislation a provision for
sealing material on the premises ; and that the court itself supervise the
examination of the material — sealing either by placing it in con-
tainers or by posting reliable authorities as guards — and that privi-
leged matter in the premises be protected, even under those dire
circumstances.
I believe that it can be administered.
I think that "Slv. Quayle will probably comment on the question of
contraband. AVe have discussed that a little bit.
I i-eally have nothing to add. That is the only suggestion that I
think I have which I have not heard discussed i3efore either of the
committees on the House side or on the Senate side.
So with that, I guess I realh* want to commend the Chairman for
his work — not only in the Congress and not only in the field of civil
liberties but in a couple of my campaigns.
Senator Bayh, Thank you. It speaks Avell of your quality and ac-
ceptance by your constituents that you could survive my assistance
in your campaign.
[Laughter.]
It is good to have another colleague from Indiana, Congressman
Quayle.
TESTIMONY OF HON. J. DANFORTH QUAYLE, A U.S. REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF INDIANA
]Mr. QuAYLiE. Thank you, INIr. Chairman.
I do commend the Senior Senator from Indiana for moving very
quickly to have hearings in this area, concerning the Supreme Court
decision on Zvrcher v. Stanford Daily.
I am very aware of your concern not only of this but of other matters
that involve civil liberties.
This court decision, quite frankly, weakens the first amendment and
the fourth amendment and intrudes on the privacy not only of the
press but of all private citizens.
I thought what was quite interesting that the conclusion of the
majority decision called upon the Congress to establish nonconstitu-
tional protection against possible abuses of the search warrant
procedure.
As a result of this decision, I have introduced H.R. 13017. the
Citizen Protection Act.
The thrust of this act is to encourage the use of the subpena, rather
than the search warrant, in gathering evidence from innocent— and
I think we need to stress "innocent" — third parties.
The appalling result of the Stanford Daily is that the court author-
izes the use of the search warrant by- force' rather than the much
more preferal)le and reasonable approach, the subpena.
By relying on the search warrant for innocent third parties, tho
judge issuing such warrant has no opportunity to hear evidence sup»
porting the third party. The evidence is all from the police officers
The Stanford Daily case, which involved a police search of a student
newspaper office following a sit-in at the campus hospital in 1971,
IS not an isolated incident. In the last 14 montlis, three news organi-
zations have been served with search warrants. '^
30
On April lU, 19TS, a justice of the peace issued a search warrant
against the Associated Press in Helena, Mont. The sheriif who served
the warrant requested a tape of telephone conversation between a re-
poiter and a jailed murder suspect.
Upon hearnig the arguments from AP, the judge promptly quashed
the search warrant. However, it should be pointed out that the police
officers were on the premises and willing to break into the rei)orter's
files before the j udge quashed the warrant.
In December, Mann County's district attorney obtained a search
warrant from a San Francisco municipal court judge against three
television stations in San Francisco — KROX, IvTVLT, and KGO —
mid one in Oakland- — KTIX.
The district attorney demanded film clips of Sausalito houseboat
owners who were protesting the construction of a marina.
A third instance occurred in September lUTT when a search warrant
was issued against Providence, E.I.'s WJAR-TV. Police sought, in
this case, the him of a teacher's picket line which they believed showed
a member of the steelworker's union assaulting a teacher who crossed
the picket line.
In all of these cases, a much preferable method could have been used.
And that would have been the subpena. Then the confidential sources,
whether it is an invasion of the first amendment or the fourth amend-
ment, could have had an adversary proceeding, rather than not having
an adversary proceeding and issuing the search warrant.
Although the facts of the /Stanford Daily case concerned a news-
X^aper, the eli'ect of this decision goes far beyond the news media.
The decision is bound to encourage the use of search warrants rather
tlum subpenas.
Supreme Court Justice John P. Stevens explained the magnitude of
this decision in his dissent, and I quote :
"Countless law-abiding citizens — doctors, lawyers, merchants, cus-
tomci'S, bystanders — may have documents in their possession that re-
late to an ongoing criminal in\estigation. The consequences of sub-
jecting this large category of persons to unamiomiced police searches
are extremely dangerous."
The guide'lines set by the court in this decision do not set a good
example of how justice should be administered.
Supreme Court Justice Byron "White was optimistic enough to state
that the hazards of search warrants could be avoided by ''neutral
magistrates*' in cariying out the fourth amendment using the tools
available to them.
I must point out that there are approximately 30,000 judges of State,
local, and Federal jurisdiction. The majority of these judges have the
l>o\ver to issue search warrants.
\[;vny — like the Justice of the Peace in Helena, ]Mont. — are in no
position to argue with the local police force.
In attempting to write this legislation to protect both citizens and
the press, I fcelthe legislation should focus on the following points:
One, to insure privacy for our citizens and protect freedom of the
press.
Two, establish guidelines in which the subpena shall be used rather
than the unannounced search warrant to imiocent third parties.
31
Three, there should be specific liut limited exceptions to the use of the
siibpena in order not to I'rnsti'ato the administration of the laAV
enforcement.
In my bill, the two exceptions to this are : If there is probable cause
to believe the person or pci-sons in possession of the evidence may be
involved in the crime under invest iiration or if there is probable cause
to belieA'e that the evidence sought to be seized would be destroyed,
hidden, or moved.
Four. I think we must make certain that these cjuidelines that we
establ ish nuist apply to Federal, State, and local officials.
In draftino- the le2:islation to protect both citizens and the press, it is
not our intent to stifle law enforcement officials. Particularly, we do
not want to prohibit the confiscation of contraband ; but on the other
liand, Ave do not want to subject law-abidiuir citizens to arbitrary search
and seizure.
As ^h\ Jacobs pointed out, this is one of the points that my bill does
not deal with yet; and I am still workin<r with it on what to do about
the question of contraband. Could we incorporate it in perhaps a sec-
ond exception?
I think it is somethino; that this committee will focus upon, and
it is a question that I have in my own mind on what to do with
contraband, as far as the search warrant is concerned, particularly
with innocent third parties who are perhaps unaware of the contra-
band beiuii" on the premises that they possess.
In conclusion, Mr. Chairman, it is the role of the Congress to
insure that the rights of Americans are protected in 1978, as the
framers of the Constitution intended in 1776.
It is our duty to respond to the court's challenge — and they did
challenge us in the majority opinion's concluding ]iaragraph — and
establish ncmconstitutional standards which will mandate the use of
the preferable subpena, rather than the forced unannounced searcK
warrant to innocent third parties — whether they be the press or-
ordinary citizens.
Again, I compliment the chairman for his expeditious handling;
in calling hearings on this very important matter to all citizens.
Senator Baytf. Gentlemen. I appreciate your taking the time from
very busy schedules to be with us this morning. We will look forward
to working with you in the House, so that together we can resolve
this very important question.
Senator Scott, do you ha^'e any questions?
Senator Scott. I would yield to my colleague from ^Maryland.
Senator Bath. Senator Mathias?
Senator ^Matttias. Thank you, Mr. Chairman.
To lay the groimrlwork for my question. 1 would like to quote
very briefly the statement of Douglas Kneel and, a reporter for the
New York Times.
He was quoted in the brief that was filed in the Supreme Court.
He says:
The more sophisticated sources know tliat newsmen may he snhject to snh-
pena. But they also know that recent court opinions provide a basis for lawful
challenge to suhi)enas.
On the other hand, the intrusion of a search is indiscriminate. Scope and
propriety cannot ho .iudioially testod in advance, and flu* mere possihility of
its uso reiulprs vuliiornl)le al! conlldential material.
32
Witli that quotation in mind. I would like to pose a question to the
panel — and perhaps direct it at lirst to Father JDrinan.
I suppose that the most famous confidential source of our time —
and pornaps the most famous confidential source of all time — is Deep
Tliroat.
If we translate ourselves back 5 years or if we assume that
Stanford Daily rule was in effect 5 years ago, what can you see that
migiit have occurred downtown, looking f<>r traces of Deep Throats
Do you think that the press Asould have been adequately protected
with the iStanford Daily rule^
Mr. Drinan. The good news is that we might have found out who
Deep Throat was. llie law enforcement people could have obtained
a warrant, gone into the office, and seen telephone numbers, or even
confidential memos.
I think that obviously would have been an invasion of the confiden-
tiality of the newspaper people.
1 think that the gentleman from the New York Times states it
well when he indicates that the Stanford Daily decision could allow
these people to go in when they could give any plausible evidence to
the magistrate that they might have the evidence of the crime.
Senator MathlilS. If Deep Thioat knew that
Mr. Drixan. Deep Tliroat would never have spoken.
Senator Mathias. Yes; Deep Throat may never have surfaced.
I think that is the conclusion I have come to.
^Ir. Drixax. It is more than a chilling effect ; it has an absolutely
terrifving effect.
Senator ]SL\thl\s. If we can lift our eyes up a little from the
Stanford case and look at the larger question of the whole law of
prnacy, I wonder if the panel has any observation on the possible
relationship between the Stanford and the Miller cases.
That, as you will recall, was the case in which the court said that
the bank's records of the depositor's accounts was not the depositor's
property but was the bank's property; and therefore, the records
coiifd be disclosed to law enforcement agents or other officials upon
proper lequest — even without warrant or subpena.
Is this a trend in which the law is moving — to destroying the tradi-
tional protections of privacy that we have enjoyed in this country?
Mr. Jacobs. I think there should be some protection in the case of
the Miller case in the situation there. But, on the other hand, I think
I rwn see the legal logic by which the case was decided.
if I understand it correctly, the bank has a debtor relationship to
the depositor, rather than a custodial relationship.
I think in terms of private records that it is something that ought
to be acted upon.
An exception should be made, but I think it has to be made to the
general body of law covering the relationship.
Senator Mathias. Taking" the law of privacy as a whole in its
totality, it seems to me that these two cases deal fairly grievous
blows.
;Mr. Jacohs. There is no question about it, and I think both merit
congressional action for protection: but I am not sure I would hang
the justices for coming to that conclusion, particularly in the Miller
case.
33
I suppase logic would almost lead you there.
Senator ;Matiiias. If vou haiiir anyi)ody in the MiUer case, Ave are
the ones that should be^iuno:: bocaiisc wc drafted a sloppy law to
give access for a very narrow i)urpose in tracing the international
banking transactions *of organized crime.
Mr. I)rixan. If I may respond, you were the distinguislied autlior
of a bill in \hc Senate which came out of a subconunittee on wliich I
serve on the House Judiciary Connuittee in the last Congress, H.K.
214.
It would have rectified the Miller decision.
Uufortunately, the full Judiciary Committee didn't reach that in
the last Congress. I hope that we and the Senate Avill be able to enact
some typo of alternative or some type of substitute for U.K. 2M.
Senator jNLvtiiias. I think it would l)e a good companion piece to the
bill that we are discussing liere today.
Mr. QuAYLE. From the Supreme Court decisions, apparently, there
is a lack of genuine concern for privacy — whether it is the Miller case
or the Stanford Daily case and whether it applies to ordinary citizens
or to the news media.
Senator ]Mathias. Either one would concern me, but taken together
it seems to be a
Mr. Qfayle. It seems to be a direction that they are going in.
Senator Mattitas. Thank you.
Senator Bayii. Gentlemen. "vou have been \'ery kind to be here, and
we appreciate it vei7 much. We look forward to working with you.
Our next witness is the distinoiiished Assistant Attorney General-
Designate of the Criminal Division of the Department of Justice, the
Honorable Philip Heymann.
Senator jVIathtas. Mi-. Chairman, T have a statement which I would
like to have included in the record at a convenient time.
Seiiator Bayh. Your statement will be included in the record,
Senator ?.[athias.
[Material follows :]
Prepared Statement of Senator Charles McC. Mathias, .Jr.
Mr. Chairman, I welcome the opportunity to be here today as the Senate .Tu-
diciary Sulwommittee on the Constitution begins its consideration of proposals
to overcome the United States Supreme Court's decision in Zurchcr v. Stanford
Daily.
The Court's rulinp; in Stanford Dally came as a shock to those of us who hnd
hoped that the Court would strike a mighty blow in favor of the privacy rights of
Americans by holding that, barring extraordinary circumstances, warrants could
not I>e used to searcli the liomes and offices of nonsuspects. By ruling to the con-
trary, the Court ignored the reasonable expectations of millions of American.*!,
and as the New York Times noted, struck "a double blow at individual privacy
and Dress freedom."
I don't think tliat the American people were expecting too much. They had
good renson to expect that surprise searches of non-suspects were the exception
and not the nonn : and. that ordinarily, third parties would linve an opportunity
to go to court and press their ohiections to the government's request. Regrettably,
tlie Court saw things qnite differently. Not onlv does the de<'ision threaten the
ability of the press to fulfill its awesome resi)onsibilities. it also provides a means
for government oflficials to circumvent the confidential relntiouships that we have
long cherished, including those lietween doctor and pntient. lawyer and client,
and priest and penitent.
As the Court acknowledged in its opinion, the Congress and state legislatures
are not precluded from passing legislation to provide the safeguards that the
34
Court nilerl were not compelled by onr Constitution. To its credit Congress has
not ignored the Courfs statement. Members of both Houses have already in-
troduced proposals to overcome the effects of the decision. And, you Mr. Chair-
man, deserve great credit, not only for proffering your own proposal, but for
promptly scheduling these hearings.
The Congressional response to this important problem is certainly a welcome
one. But, we must understand that the task before us is difficult and complex.
The Vice President made this point last week when he expressed the Adraiius-
tration's concern over the Courfs holding. lie stated, "the issues are enormous-
ly complex. They involve First Amendment rights, issues of privacy, principles
of federalism and state sovereignty and intricate problems of draftmanship and
enforcement. The Stanford Daily case opens up all of these questions and more.
And the stakes are too high to ignore them."
In considering this legislation, we have some tough choices to make. Should
the legislation cover all third party searches, or as some have argued, should
its protections be confined to the press? Should the proposals cover state and
local law enforcement officials alike? Under what limited circumstances would
it be permissable for a magistrate to issue a third party search warrant? And,
sliould the limitation of warrants apply to all requests for non-suspect searches
or only those dealing with documentary evidence?