ment as well as Fourth Amendment values. In that case the Court invalidated a
warrant authorizing the seizure of "any book, records, pamphlets, cards, receipts,
lists, memoranda, pictures, recordings or any written instruments showing that
a person or organization is violating or has violated" a Texas statute regulating
certain alleged radical activities. IStanford Daily cast doubt on these apparently
settled and salutary principles.

A number of bills addressed to the threat posed by Stanford Daily have al-
ready been introduced in the U.y. Congress, and we urge the introduction of
.similar legislation in the New York State Legislature to protect the privacy of
innocent people against surprise searches. We applaud in particular the ap-
proach of Senate bill S. 3104, sponsored by Sen. Birch Bayh (D.-Ind.) Under that
bill "anyone acting under color of law who has probable cause to believe evidence
of a crime is located on or about premises in which the person in possession of
the evidence has a reasonable expectation of privacy" shall proceed only by-
subpoena duces tecum unless there is probable cause to believe (a) that "the
person (s) in possession of the evidence may be involved in the crime under
investigation," or (b) that "the evidence sought would be destroyed, hidden or
moved" if the subpoena process were followed. The bill provides for appropriate
civil damages as well as punitive damages not to exceed $10,000 for each viola-
tion. We believe that S. 3104 would be improved by language making it more
concrete, but we strongly support its general approach.

There is a clear need for a response to Stanford Daily on all levels of govern-
ment, in state legislatures as well as the U.S. Congress. There is no question that
the New York State Legislature has the power to enact similar legislation. We
commend this Committee for its concern and hope that its efforts will lead tO'
speedy enactment of strong remedial legislation.



State of New York

(914)

1979-1980 Regular Sessions

Ix Assembly

(Pre filed)

January 3, 1V)70

Introduced by M. of A, GOTTFRIED — read once and referred to the Commit-
tee on Codes

AX ACT to amPiKl the criminal procedure law, in relation to "third party" search -warrants

and sulipoeuas

The People of the State of Netv York, represented in Senate and Assembly, do
enact as follows:

Section 1. The criminal procedure law is amended by adding a new section
r.90.07 to read as follows :

g f!!)0.07 Search tcarrants; preference for vse of siihpocna duces tecum.

Property otheririf<e subject to .leizure pursuant to a search warrant as de-
scribed in sc<-tion 690.10 shall only be obtained by means of a subpoena duces
tecum except where there is reasonable cause to believe that:

1. A person in possession of the property is a participant in the offense under
invest if/at ion; or

2. The prnyerty ivould be destroyed, concealed or altered if a subpoena rccre
used ; or

3. Special circuinxitnicrf; csfahlish a compeUiny rca-^on for use of a srnrch war-
rant instead of a subpoena.

§ 2. Paragraph (b) of subdivision two of section 600.35 of such law is amended
to read as follows :

(b) A statement that there is reasonable cause to believe that property of a
kind of character described in section G90.10 may be found in or upon a



460

desigoated or described place, vehicle or person ; includinq a statement of the
grounds under section 600.07 for using a search ivarrant instead of a subpoena
duces tecum; and

§ 3. Section 690.40 of such law is amended by adding a new subdivision three
to read as follows :

3. The court shall deny the application unless it finds that there is reasonable
cause to believe that grounds undei' section 690.07 exist for using a search warrant
instead of a subpoena duces tecum.

Explanation. — Matter in italics is new ; matter in brackets [ ] is old law to be omitted

§ 4. Section 610.20 of such law is amended by adding a new subdivision four
to read as follows :

.'/. Any criminal court may. upon the request of a prrson otheririse nulhorized
to apply for a search ivarrant under article 690 of this chapter, issue a subpoena
duces tecum for property othericise subject to seizure pursuant to a search
ivarrant.

§ ."). Subdivision one of section 610.25 of such law. as added by cbapter foivr
hundred fifty-one of the laws of nineteen hundred seventy-seven, is amended to
read ns follows :

1. Where a subpoena duces tecum is issued on rensonable notice to the portion
subpoenaed, the court or grand jury shall have the right to possession of the
subpoenaed evidence. Such evidence may be retained by the court, grand jury
or district attorney on behalf of the grand juiy. Tn the ease of a subpoena issued
pursuant to subdivision four of section 610.20. the court shall treat the eridenen
prod need in response to the subpoena as if it had been .'ieizrd pursuant to a seaivh
ivarrant, subject to the provisions of subdivision tiro of this section.

§ 6. Subdivision five of section 710.10 of such law is amended to read as
follows :

5. "Aggrieved." An "aggrieved person" includes, but is in no [wise3 n'ay
limited to, an "aggrieved person" as defined in subdivision two of section forty-
five himdred six of the civil practice law and rules, and includes a defendant tvho
has reasonable cause to believe that ui\lairf}illu or improperly acquired < ridcnce
may be offered against him in a criminal action.

§ 7. The opening paragraph of section 710.20 of such law. as amended by
chapter eight of the laws of nineteen hundred seventy-six, is amended to read as
follows :

Upon motion of a defendant who (a) is aggrieved by unlawful or improper
acquisition of evidence [and has reasomable cause to believe that such m.-iy be
offered against him in a criminal actionl. or fb) claims that improper
identification testimony may be offered asainst him in a criminal action, a court
may. under circumstances prescribed in this article, order that such evidence be
suppressed or excluded upon the ground that it:

§ S. This act shall take effect on the ninotiofh day after it shall have become a
law.



The Assfmri.y. State of New York. AT,B.\>rY

MEAfORANDTTM IN SUPPORT OF LEGISLATION

AX ATT to nineiul the criminal procedure bnv. ir relation to "Ibii'd jiarty" search

warrant and subpoenaes

PURPOSE OF THE BILL

Tliis bill would generally require law enforcement officers, in cases where
evidence of crime is in the possession of innocent "third parties", to seek to ob-
tain that evidence by means of a subpoena duces tecnm rather than by an unau-
nonnced .search of the person's premises pursuant to a ."search warrant. The liill
would also trive "standinc:' 'to move to suppress auv evidcnco nnlawfullv sei'/pd
to any criminal defendant against whom such evidence will be introduced at
trial.

SUMMARY OF PROVISIONS

5 1 (^reatos a new r.P.T;. § 600.07 renuiring use of a subpoena to secure evidence
of crime, except where the person in possession of tbe 'Evidence is himself a
suspected participant in the crime, or is believed likely to destroy or alter the



461

evidence if he has advauce notice, or where special circumstances create a com-
pelling i-eason for permitting seizure of the evidence by means of a warrant rather
rlian through a .subpoena.

§ 2 amends C.P.L. § 690.35 to require a search warrant application to state
the reason for resort to a warrant in.stead of a subpoena.

§ 3 amends C.l'.L. § ()i)0.4() to require the court to deny a search warrant applica-
tion where the application contains inadequate reasons for not using a subpoena.

§ 4 amend C.P.L. S U10.20 to authorize those per.sons who are otherwise en-
titled to apply for a search warrant to apply for a sul)poena.

§ 5 amends C.P.L. § 610.25 to provide for tlie retention and return of property
produced pursuant to a subpoena instead of a search warrant.

§§6 and 7 amend C.l'.L. Article 710 to expand the definition of an "aggrieved
person" for purposes of making a motion to suppress evidence to include any
defendant against whom unlawfully seized evidence will be introduced at triaL

JUSTIFICATION

In Z'irchcr v. Stanford Dallii. 436 U.S. 547 (May 31. 1978), the U.S. Supreme
Court, in a 5-3 decision, held that the Fourth Amendment does not prohibit tbe
police from conducting, pursuant to an ex parte warrant, an unannounced search
<if any premises, even if no one in possession of the premises is suspected of
criminal involvement, and even if the premises are tliose of a news organization.
The Court ruled that a search of such premises is permissible under the Fourth
Amendment so long as the police have probable cause to believe that evidence of
crime can be found there.

Thus, for example. If a newspaper reporter has taken photographs of a civil
disturbance for purposes of writing an article altout it. the police may now search
his files for the pictures, di.-^covering in the process confidential notes relating to
a. different story on police corruption the reporter was also intending to write
about. Or. if a lawyer or doctor has information in his files concerning a client or
potient who is a criminal suspect, the police may search tho.se files in an att(>mpt
to find the information, discovering and possil)ly even reading in the process the
files of other clients or patients.

The Zurcher decision prompted an outcry in Xew York, as it did elsewhere, not
only from the news media, but from other quarters as well. In response to the
widespread concern generated by tlie deei.sion .the Assembly Codes Committee,
together with Speaker Stanley Steingut. held a public hearing on October 26, 197S,
to investigate the implications of Zurcher for freedom of the press, personal
privacy, and effective law enfoi-cement in Xew York. (The testimony of the wit-
nesses and written material submitted at the hearing have been published by the
Codes Committee in a volume entitled. Taken hy Surprise: The Implications of
Zurcher v. Stanford Daily for Neu's Media and the Pnhlic.) The hearing demon-
strated clearly and concretely the worri.some implications of the Zurcher decision.

In the news media context, confidential informants, who are crucial for effective
news gathering, will be less likely to impart their information to reporters for
fear that their identities and the information they have supplied, often at great
personal ri.sk, will be discovered, either accidentally or intentionally, in the
course of a police .search of a news organization's files. Moreover, such unan-
nounced police searches of newsrooms like that of the Stanford Daily will have
an unavoidably disruptive etfect on the entire news dis.«emlnation process gen-
erally, particularly in view of the tight deadlines under which most news orga-
nizations operate.

P.eyond the First Amendment implications of police searches of newsrooms,
liowever. such searches also jeopardize other confidential relation.'^hips the law
recognizes — e.g.. attorney and client, doctor and patient, priest and penitent, and
husband and wife. In short, the privacy rights of all citizens are placed at risk
by the kind of unannounced searches that the Zurcher decision permits. Indeed,
since it appears that newsroom searches are comparatively rare, or at least the.v
were before Zurcher was decided, the real impact of the Supreme Court's deei.sion
vr\M fall most frequently on those who have no connection to the media.

While the New York Court of Appeals has never directly addressed the Zurcher
issue, it has suggested its disapproval of the practice of "obtain fing] a search
warrant when the same result could be obtained by fthe less intrusivel sub-
poena * * *" Matter of B.T. Prodycfs r. Barr. 44 X.Y!2d 226. 237 (1978). Indeod,
the Court cited with approval the lower court decisions in Zurcher which for-
bade police searches of third party premises but which were later rever.sed by
the Supreme Court. Ibid.



462

The present bill woiilfl remove the danger to freedom of the press and personal
privacy implicit in the ZurcJicr decision, withont impairing effective law en-
forcement. The bill accomplishes this salutary end by generally prohibiting th«j
police from conducting unannounced searches of premises in possession of people
who are not involved in crime. The police would be required instead to seek
the desired evidence by means of a snlipoena duces tecum, therel)y allowing the
uninvolved citizen to produce the evidence himself. The police would be ex-
empted from the subpoena requirement, however, where there is reasonable
cause to believe that the person in possession of the evidence is involved in
crime or would destroy, alter or couceal the evidence if advance notice were
given, or where "special circumstances" create a "compelling reason" for resort
to a warrant instead of a suJipoena, such as immediate danger to life.

Moreover, this bill would permit a criminal defendant to challenge the law-
fulness of the seizure of any evidence, regardless of whose privacy rights had
been violated by the searr-h. This provision makes particular sense in the context
of third party searches since, by definitioTi. the person from whom the evidence
is seized will not be chai'ged with a crime and will therefore not have an oppor-
tunity to challenge the lawfulness of the search and seizure himself in the result-
ing criminal proceedings. Under present law, the actual defendant would nor-
mally not be able to do so either. Thus without the amendment this bill pro-
poses, the police may seize evidence unlawfully from third parties in the knowl-
edge that no one will be able to contest it.

PRIOR LEGISLATH'E HISTORY

New bill. Hearings held by Assembly Codes Committee, October, 1978.

FISCAL IMPLICATIONS

None.

EFFECTIVE DATE

90 days after becoming a law.

Mr. Faley. Withont objection, tlie written testimony of Senator Jinv
Sasser will be made part of the record in its entirety.
[Material follows :]

Prepared Statement of Hox. .Jim F?assep.. a U.S. Senator From the State of

Tennessee

Mr. Chairman, first let me say I appreciate the opportunity to testify here
today. Your prompt .'scheduling of hearings is indicative of your understanding
of the need to move quickly on .search protection legislation.

As you know. I shared your concern last summer following the Supreme Court's
Zxircher v. Stanford Dnihi decision, and I introduced a bill of my own, S. 325S,
which was similar to your bill.

Now, the Carter administration has its own proposal, a proposal I wish to
applaud. I applaud this initiative not only for its content, which is certainly
acceptable, but also because of the attitude it represents in the .Justice Depart-
ment and in the White House.

This legislation comes about because of the Supreme Court's Stanford DaiJp
decision. In tliat decision, rhe Court snnctloned sui]iiise searches by the govern-
ment for private papers and other documents, although those holding the records
had engaged in no criminal conduct. I coiLsider the decision an unfortunate
abridgment of the privacy rights of all of us. But it is potentially even more
dangerous when applied to news gathering organizations, which have constitu-
tional protection to be free from government interference in going about their
work.

As Justice Stewart said in his dis.sent in that case :

"Perhaps as a matter of abstract policy a newspaper office should receive no
more protection from unannounced searches than, say, the office of a doctor or
the offic(> of a bank. But we are here to uphold a Constitution. And our consti-
tution does not (explicitly protect the pra( tice of miMlicine or the business of bank-
ing from all abridgment by the government. It does explicitly protect the free-
dom of the press."



463

I think we need leprislation because thL=; ndministratinn's respoiisible atti-
tude in not taking advantaj;e of the opportunities ariorded by ^'Stanford Daily
might not be the attitude of the next administration, and also because protec-
tion for innocent third parties against surprise searclies is sorely needed at the
state and local levels, where citiiceus particularly need protection against ovei'-
zealous law enforcers.

1 also support this legislation because its drafting has overcome one of the
principal objections to such a bill : that press freedoms should not be recognized
legislatively, because whatever may be given legislatively may later be taken
away or unacceptably luodilied. Tlie administraliou overcomes tbi.s obstacle
by submitting a bill which protects the privacij of a Journalist's irork }>roili(ct
rather than going into the question of whetlier that work product and that
journalist are protected under the First Amendments Free Press Clause. Thus,
this legislation neither adds to nor opens up the possibility of subtracting from
the First Amendment's guarantee of press freedom; this guarantee is Con-
stitutional and should be the subject of legislation only as a very last resort.

The adminLstration's bill places certain information out of the reach ol
government search warrants and makes other information, which may be more
directly linked to a governmental interest in having it, subject to a "subpoena
rirst" criteria, a procedure which gives the person or organization being sub-
poenaed an opportunity to oppose the search in court or to seek to have it
modified.

The material covered by the bill would address the problem raised in Stanford
Daily, where a journalist's work product — in that case the negatives, films, and
pictures of a student journalist — was seized by police without any concern for
the Fii'st or Fourth Amendment rights of that Journalist and without any show-
ing that the material could not have been obtained by a means less intrusive of the
.asserted rights.

Congress should go on record in affirming the view of the lower courts that
the government must bear a hea^•y burden in gaining access to the materials of
an innocent third party. In doing so. Congress is not choosing privacy over law en-
forcement ; there is no need to make such an either-or choice. Rather, Congress
is setting down the ground rules for the proper balancing of two equally-de-
serving interests.

Congress should say that the kind of fishing expeditions authorized by Stan-
ford Daily are not within the proper Iiounds of law enforcement. When such
information is needed, proper procedures are established in this bill for the
government to secure It. But when the government has not justified such a
need, the information should remain in the hands of the innocent third party,
free from the interference of the heavy hand of government.

Mr. Falet. This subcommittee will stand in recess at this point.
["\Miereiiiion, at 1 :20 p.m., the subcommittee adjourned.]

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