ular photographs, had had an opportunity to read and examine private
notes and correspondence during the search.
As a practical matter, there is no way a search of this kind can be
confined to only the material sought. There is no way of assuring that
confidential and private materials, other than those sought, would not
So it seems to me that when Assistant Attorney General Heymann
talks about the difficulties in distinguishing between items in a lawyers
files, some of which are privileged and others of which are not, the
difference between a search and a subpena becomes crucial. In a sub-
pena situation, there is an opportunity to go through the file and pull
those items which are privileged and to segregate them. That oppor-
tunity is lost in the context of a search pursuant to a warrant. The
police have an opportunity to see everything.
In the course of Assistant Attorney General Heymann's testimony,
he said several times that this is not a new problem ; that the Daily case
did not change the prol)lem except as it made us aware of its existence ;
that it only changed it in the context of the press. I very strongly
Part of the answer, it seems to me, of why we have this problem
today in 1978 is given in Justice Stevens dissenting opinion in Avhich he
provides important historical perspective.
He points out that prior to fhe decision of the Supreme Coui't in
Warden v. Haydcju which you discussed earlier, it was generally un-
derstood that the power to search was limited to searches for instru-
mentalities by which crimes are committed such as burglary tools and
tlie like, fruits of crime, weapons, and contraband. Mere evidence, pri-
marily including documents, was not a lawful object of search.
In Wojxlen v. Hayden the court overturned the mere evidence rule.
As Justice Stevens observed in his Daily dissent, "the persons who
possess evidence that may help to identify an offender or explain an
aspect of a criminal transaction far outnumber those who have custody
of Aveapons or plunder."
^Moreover, those persons in possession of heroin, a quantity of coun-
terfeit money, or machineguns are not likely to be innocent third
parties; the very possession of such property makes one in almost any
instance that one can conceive of a "suspect." So it was the overruling
of the more evidence rule in 19()7 that made the third-party search of
the Daily in 1971 legally possible.
The Daily case was almost literally a case of first impression.
Although unhappily it was not the last of its kind, insofar as we can
tell it was the first. We could find no evidence — and I think it is now
generally conceded — that any search of a newspaper office prior to
that time had ever before been conducted.
"Wo found four appellate cases, that are cited in our briefs and in
the Supreme Court opinion, which dealt with third-party searches. We
road them and, as far as we could tell, those were the only times in
which the issue of third-party searches had ever been litigated. I think
that I can go further and say that, to our knowledge, it is the only
time in which it has ever been suggested or reported.
When it is said that this is a new problem, and when ]\Ir. Justice
White said — speaking for the majority of five in the Daily decision —
that the district court's prohibition of searches was a "sweeping re-
vision of the fourth amendment," it seems to me that that charge was
unfair and inaccurate. While it is true that the Federal courts had
never before condemned a third-party search as such, they had until
1067 insured that third-party searches would not be conducted by for-
bidding searches for mere evidence altogether.
Searches of institutional third parties of the kind I just described
will vei-y often result in the broach of privacy of documents and ma-
terials which are by custom, common understanding, or even but not
necessarily common law or statutory privilege, regarded as confiden-
tial. It is far from clear whether State evidentiary privileges — which
of course may be assorted in opposition to a subpena — are as a matter
of State law also a barrier to third-party searches.
It is now clear — at least I think it is clear — that Federal law pro-
A'idos no protection in that regard because the Daih/ opinion asserts
that, "State shield law objections that might be asserted in opposition
to compliance with a subpoena aiv largdv irrelevant to determining
the leiralitv of a senrch warrant under the fourth amendment."
This kind of injury to privacy interests is dangerous and unneces-
sarv. An institutional third party, such as the Daily^ or a bank or any
other kinds of institutions T have mentioned, will virtually by defini-
tion involve none of the ambiguity about whether a person is a non-
suspect, a third party, or in fact a suspect to which the court alluded
wh(Mi it wrote of the "=;eemingly blameless third party * ^ * may not be
innorent at all" or who may be closolv related to the suspects. ^
T notice \\\w\\ Assistant Attorney General Hoymann spoke in his
testimony to you, ho spoke as if it were a polar problem, as if there
is nobody in between. He says you have the press over here and they
ouirht to be protected, and yoii liave on the other liand the brother-in-
law, the fatlier, or the sister of the dope dealer. However, tliei-e is a
hu^e cateo:orv in between, the cateo-ory of tlie institutional third party
Avho has no interest in destroying evidence and who can be tnisted to
obe}^ the law. I submit this is the likely place for the third-party
searches of the future once the full potential of this kind of search
is realized by prosecutors and police.
Senator livYir. INIay I put in a question here ?
Mr. Heyniann seemed to recognize this. The law, prior to Zurcher
and Tlaydcv, recognized certain exceptions. If you have someone who
is about to destroy evidence you should use a warrant, but that is an
(exception which has been pretty well recognized, has it not ?
INIr. Falk. It was conceded by us through the Daily case, yes.
Senator Bayii. I see. That determhiation Avould have to be made by
Mr. Falk. Yes.
Senator Bayh. So it does not seem to me that my position would be a
dramatic departure or a revolutionary recodification of the fourth
amendment. The judge continues to exercise discretion with regard to
Mr. Falk. Yes, but the Dally opinion is a revision. The Dally deci-
sion suggests that that danger of destruction may not even be con-
sidered by the magistrate and that he can authorize a third party search
simply on a showing that the evidence is there. Perhaps it is not useful
io point a finger and ask what is a revision and w^hat is a change, but
it is certainly clear that that is a change in the practice. It may be
that no court has ever squarely passed on it before, but it seems to me
clearly a change in the practice.
In a moment I will give some examples of real third party searches
that I think will curl one's hair.
Senator Bayii. Yes. Please proceed.
Mr. Falk. "When we talk about the institutional third parties, it
seems to me fair to say that there is absolutely no reason in the law,
in logic, or human experience to presume that a bfink. a law firm, an
•accounting finn, or any business unrelated to a criminal suspect would
destroy evidence in the teeth of a subpena.
To illustrate the problem, Mr. Chairman, I would ask you to con-
sider with me two examples that we put to the Supreme Court in the
petition for rehearing, which has been made a part of the record. I will
read them if I may. They illustrate the problem.
The first is this '.
A lawyer's file contains evidence relevant to a criminal investigation of his
client. Tlie docnments sought are kept in a file room containinii: files of numerous
clients. As would ordinarily he the case with an attorney's files, the specified
documents are in a file surrounded hy other documents not sought hy the warrant,
protected hy the attorney-client privilege. The police have no reason to helieve the
lawyer, who is lielieved to he reputable, would disregard a subpoena or destroy
the evidence. They nevertheless obtain a warrant and appear, without warning,
and demand immediate access to the file room. The lawyer's request that he he
permitted to locate the documents sought by tlie wari'ant is denied, the police
explaining that they are entitled to lool< and select for themselves in accordance
with the warrant.
The second example is this. It is familiar to you because you have
liad some testimony about it :
In furtherance of a criminal investigation of a sex offense, the police desire
to examine the psychiatric records of the victim, who had sought help after the
ofCense. There was no reason to believe that the psychiatrist would disregard
a subix)ena or destroy the evidence. Nevertheless, rather than afford the psy-
chiatrist an opportunity to produce the records in response to a subpoena,
the i)olice obtain a warrant to search the file room of the psychiatric clinic
where the victim was treated. In an unsuccessful attempt to locate the records,
the investigators look through all the patient files of the clinic, seeing (at the
least) the names of each person who had sought psychiatric help at that
These examples are not farfetched. The problem that we have
today is more than, as Assistant Attorney General He3'mann expressed
At least two warrants have been issued for the search of law offices
in California since the Daily search. The facts in one of these cases
are even more chilling than the example which I just read and which
we put to the Supreme Court. Indeed, since I have prepared my testi-
mony, I have learned even more of the facts of that case.
The case was called People v. Driscoll. It was never fully litigated
because the defendant ultimately pled guilty. This case occurred in
My understanding is that in that case a woman was charged witli
murder. She had written a letter. My prepared testimony refers to it
as a letter to her father but I believe that is in error and that it was
a letter to a social worker. The letter was in eilect a confession.
The letter was given by the social worker to the defendant's law-
yer. Perhaps the lawyer revealed its existence. In anj^ event, the
prosecution became aware that the hivvyer had the letter.
The prosecution made a motion in the trial court to compel the law-
yer to produce the letter. The trial court ruled — incorrectly, I tliink.
but nevertheless ruled — that the letter was privileged and did not
have to be turned over.
The prosecution might have sought relief from that ruling in the
State appellate courts. However, rather than do so, they found an-
other judge, made an ex parte application, obtained a search warrant,
and arrived at the lawyer's office armed with police and the warrant
and went through his entire office. Thev went through his files until
they found the letter. Of course, that process was an end run around
•A judicial determination, correct or incorrect, that the matter was
))rivilcged. They had the opportunity to see everything in his office,
whether it was privileged, whether it involved other clients, whether
it involved this client, and so forth.
Similarly, the second example, involving the search of the psy-
chiatric clinic, is not hypothetical. Such a search was actually per-
formed by investigators employed by the Santa Clara County district
attorney, whose office was also involved in the Daily search. That
seai-ch was conducted in 1978 after Judge Peckham had made his
initial I'uling in the Stanford Daily case.
The facts of that case are in the Daily record and are summai'ized in
ivs))ondent's brief that is now part of your record at pages 6 and 7. I
undoj-stand you have also had some testimony from a witness to that
It seems to me that if the -jiresent majority of the Su]n"eme Court of
the ITjiitod States finds in the Constitution no protection against real
intrusions of privacy such as these, then the need for action by Con-
gress is apparent.
Imagine, if 3'on will, the reaction of the patients of the Stanford
Psychiatric Clinic, some of whom arc disturbed individuals, when they
learned of the police search of the file room. Of course, the sex oll'enso
victim would have been disturbed if the search had been successful
because his rights to confidentiality under the i)atient-physician priv-
ilege, or the psychotherapist-patient privilege that California law rec-
ognizes, would have been frustrated.
But imagine the other patients at the clinic who had nothing what-
ever to do with the crime under investigation, and who under any
theory of waiver or relevance maintained their right to privacy. Need-
lessly, the police had access to a file room in which the names of every
person treated at the clinic had been arranged, I presume, in alphabeti-
<>al order. INIany ])eople — and certainly the average paranoid — would
be deeply disturbed at the disclosure to representatives of the Govern-
m.ent that they had been seeking psychiatric help.
In the same vein, imagine the reaction of the typical client of a law
firm upon reading in the newspaper that his lawyer's file room or her
lawyer's file room had been searched by police in the course of investi-
gating criminal activity involving some other client of the law firm.
Against the significant privacy interests which I have been discuss-
ing. I recognize — as you did. j\Ir. Chairman, at the outset — that there
must be balance. You have the legitimate interest of law enforcement.
All of us are concerned about that as well.
But in light of the histoi-y of third party searches, or the lack of
such a history, claims that law enforcement needs to be free to conduct
third party searches ought to be viewed with considerable skepticism.
Prior to 1967, as I have indicated, such searches would have been
illegal. As I have also indictaed," I know of no instance in which this
kind of third party search was permitted. Law enforcement thus man-
ao'cd for the first 190 or 200 years of this Nation's existence to function
without searching third parties ; and it is difficult to believe that there
is now a newly discovered need.
Mv focus today has been on the institutional third party because I
think in that context the issues that are posed are the clearest. There is
no compelling justification for such searches. It can 'be presumed that
third parties will obey the law when they are institutions of that kind.
Tlie danger to privacy rights of enormous numbers of people is there.
I Ix^lieve that this is the context in which the problem is most likely to
arise because the files of instituional third parties are tempting targets
for law enforcement people seekng information.
I do waiit to conclude by saying that we oua'ht not to overlook the
individual third party. Perhaps there is a problem in some in=tances of
relatives of suspects who might destrov evidence, but I would su.ofgest
that the prol^lem can be overstated to the point that important privacy
riirhf s of all Americans can be lost.
Suppose, for example, that a friend or family member of mine were
suspected of a crime and the prosecutor believed that I held a docn-
meiit relevant to th.at investigation of that case. TTnder the Daily
decision, my home or office, or l^oth. could be searched without a majris-
trate even pausing to inquire whether there was a reason to think
that T would destroy the evidence sought bv tho ^Prosecution. Shou.ld
not a mairistrate at least be renuired to ask that question? Should
not the nature of the person holding the evidence, his relationship (o
tlie suspect, his reputation for honesty, and his record of law abiding-
be evaluated before the police take a step— a search— which can only
be justiiied on the ground that this citizen cannot be trusted to comply
with a subpena?
It may be said, as the Assistant Attorney General does say, that it
will often be difficult to determine in advance whether a citizen will
or will not destroy evidence and disregard a subpena. I think that this
is probably true. But surely no one will defend the massive intrusion of
a third party search where there is no fear that a subpena would not
The issue, then, is whether that decision of whether a subpena will or
will not suffice should be made by the police in their unfettei-ed dis-
cretion or by a disinterested magistrate applying clear legal standards.
I submit that by simply identifying the question the answer is sup-
plied. It was said best by Justice Jackson many years ago. If I may, I
Avould like to read that very short statement he'made in 1948:
The point of the fourth amendmeut, which is often not grasped by zealous
officers * * * [is that the basis for search imist be drawn by k neutral
and detached magistrate instead of being judged by the officer engaged in
the often competitive enterprise of ferreting out crimes * * - when the right
of search is, as a rule, to be decided by a judicial officer, not by a policeman or
government enforcement agent.
For these reasons, I hope your subcommittee will recommend, and
that Congress M'ill enact, legislation to remedy this serious threat to
the privacy rights of all of ns.
Senator Bayh. Thank you very much, ]\Ir. Falk. I appreciate vour
[The prepared statement of Jerome B. Falk, Jr., follows :]
Prepared Statement of Jerome B. Falk, .Tk.
Mr. Chairman and Members of the Subcommittee: It is a very great privilege
to be with you today to discuss the need for legislation to protect legitimate
rights of privacy which, in my opinion, have been jeopardized by the decisions of
the Supreme Court in Zurcher v. Stanford Daily. I was the lead counsel for the
Stanford Daily in that case, and I hope that you will accept my assurance that
my presence here reflects more than the well-recognized lawyer's inability to sit
down when the case is over. In fact, I am here because it seems to me that all
of us — every law abiding and liberty loving American — lost a great deal when
the Daily case was decided.
What I would like to do today, in addition to answering any questions you
might have for me, is to discuss some of the ramihcations of "the Daily case.
Because tliere have been some suggestions that the Court's decision is rather
limited, and perhaps may even be confined to its own facts as the case law
develops. I think it important to see just how awesomely sweeping the decision
of the Supreme Court really is. And, because most of the commentary T have read
has addressed the impact of the dec-ision on the press, I wish to i)lace special
emphasis on the impact it will have on rights of privacy in other sectors of
society. In other words, I wish to provide what might be thought of as a "damage
report" following wliich the urgent need for repairs should be evident.
In particular, T intend to focus upon the impact of the Daily decision insofar
as it .'iiibtorizcs the search of wliat I would like to call the ••institutional tliird
party." By this I mean any institution, place where confidential per.sons or
financial information relating to nnmrroua other pcrftona i/t L-ept. such as news-
paper, law office, accounting firm, bank, credit bureau, private investigation firm,
physician, i>sycliiatrist, hospital, teleithone ])usiness office, credit bureau, large
emi>loyer, security service, or even offices of Senators or meml>ei-s of the House
of Representatives. If .Tohn .Tones is the legitimate object of a criminal investiga-
tion, the prosecutor might well have a reasonable need to see files relating to
Jones maintained in any or all of those offices. In a proper case, they mav be
subpoenaed and the tiles on Jones will be produced. The issue presented by the
Daily decision is whether each of those institutional third parties may now also
be searched in furtherance of such an investigation.
There are two fiuidamental differences between a subpoena of Mr. Jones' tile
directed to his bank, doctor, or accountant and a search ot their ofiices. The lirst
is that a search frustrates the opportunity to raise any ol)jections which might
legitimately be asserted in opposition to compelled production. A subpoena of
materials which are privileged, or otherwise exempt from production, can be-
challenged by a timely motion to quash. But under tlie law of Calif(u-nia. and I
am sure of every other state, a seai'ch warrant may not be resisted. Thus the
opportunity for judicial review in a proceeding in which both sides are represented
is foreclosed by use of the warrant process.
The second objection is that searches are ba.sically indisci-iminate while sub-
poenas are precise and targeted. A subpoena requires the possessor of the evidence
sought to produce that evidence. A search warrant autliDrizes the police to entei:
and to search everything until the evidence has l)een Iwated or its altsf^u-e con-
fiiTued. In the Daily search, tJie police examined tiling cabinets, deslc drawers,
shelves and wastebaskets. Although the officers denied it, the Daily witnesses
testified that the officers — who were supposed to be looking for i(thotographs —
had an opportuniity to read private notes and correspondence during the search.
There is, as a practical matter, no way that a search of this kind can be confined
so that confidential and private materials other than those soiujht by the police
will not be seen and examined.
These two aspects — the lack of opportunity for a judicial determination of
possible grounds of objection, and the indiscriminate nature of the intrusion —
will be especially serious in the context of a search of institutional third parties.
Very often, such third parties will have legitimate grounds for objection, for in
many cases there will be statutory or common-law pi-i\-ileges that apply, as in
the case of files of a law office, ph.vsician. or psychiatrist. And. inevitaldy. an in-
stitutional third party's file room will contain confidential information about
numerous persons other than tlie object of investigation.
A threshold question which many of you might be asking is ^^■hy, suddenly in
1978, has this pi^oblem surfaced? Part of the answer is found in Mr. Justice
Stevens' dissenting opinion, in which he provides an important historical i[\er-
spective. Prior to the decison of the Supreme Court in Warden v. Hayden. 387
U.S 2.94 (1967). it was generall.v understood that the power to search was limited
to searches for instrumentalities by which crimes are committed (such as
burglar tools), fruits of crime, weapons, and conti-aband. "]Mere evidence", .siich
as documents, was not a lawful oliject of search. In Warden v. Haydcv, the Court
overruled the "mere evidence" rule. As Mr. .Justice Stevens observed in his Daily
dissent, "the persons who possess evidence that may help to identify an offender,
or explain an a.^qiect of a criminal transaction, far outnumber those who havt»
custod.v of weapons or plunder." 56 L. Ed. 2d at 5.50. Moreover, those persons in
possession of hei-oin, a quantity of counterfeit money, or machine guns are not
likely to be innocent third parties ; the very i>osse.ssiou of such propert.v makes one
a "suspect." Thus the overruling of the "mere evidence'' rale in 19(37 made the
third party search possible.
The Daily ease was almost literally a case of first impression. Although nn-
happil.v the search of the Daily offices in 1971 was not the last of its kind, it ap-
pears to have been the first. We coidd find no evidence that such a search of a
newspaper office had ever before been conducted. And, except for four state court
decisions which suggested that third i>arty searches were illegal, it was also the
finst time the issue of third party searches of anybod.v liad been litigated.
Therefore, when Mr. Justice White, speaking for the majority of five in the
Daily case, referred to the District Court's decision in the Daily's favor as a
"sweeping revision of the Fourth Amendment" (56 Ij. FA. 2d at 584), the charge
was more than a bit unfair. While it is true that the federal courts had never
before condemned a third part.v search as such, they had until 1967 ensured that
third party searches would not be conducted by forl)idding searches for "mere
Put whether the decision of the Daily case be thought to create a "new" rule
or affirm the "old" one. the rule it ado])ts is an exceedingly tolerant one. For