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UNITED STATES v. DIONISIO

CERTIORARI TO THE UNITED STATES COURT OF APPEAL
THE SEVENTH CIRCUIT

No. 71-229. Argued November 6, 1972-Decided January 22

A grand jury subpoenaed about 20 persons, including responde give voice exemplars for identification purposes. Responde Fourth and Fifth Amendment grounds, refused to comply. District Court rejected both claims and adjudged responde contempt. The Court of Appeals agreed in rejecting respon Fifth Amendment claim but reversed on the ground tha Fourth Amendment required a preliminary showing of reaso ness before a grand jury witness could be compelled to f a voice exemplar and that here the proposed "seizures" wou unreasonable because of the large number of witnesses subpo to produce the exemplars. Held:

1. The compelled production of the voice exemplars woul violate the Fifth Amendment privilege against compulsory incrimination, since they were to be used only for identifi purposes, and not for the testimonial or communicative co of the utterances. Pp. 5-7.

2. Respondent's Fourth Amendment claim is also in Pp. 8-18.

(a) A subpoena to compel a person to appear bef grand jury does not constitute a "seizure" within the mean the Fourth Amendment, and the fact that many others b respondent were ordered to give voice recordings did not r

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Opinion of the Court

the subpoena unconstitutional. Davis v. Mississippi, 394 U distinguished. Pp. 8-13.

(b) The grand jury's directive to make the voice infringed no valid Fourth Amendment interest. Pp. 13 (c) Since neither the summons to appear before th jury nor its directive to give a voice exemplar contrav Fourth Amendment, the Court of Appeals erred in rec preliminary showing of reasonableness before respondent compelled to furnish the exemplar. Pp. 15-16.

442 F. 2d 276, reversed and remanded.

STEWART, J., delivered the opinion of the Court, in which C. J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, J. BRENNAN, J., filed an opinion concurring in part and diss part, post, p. 22. DOUGLAS, J., post, p. 23, and MARS post, p. 31, filed dissenting opinions.

Philip A. Lacovara argued the cause for the States. On the brief were Solicitor General G Assistant Attorney General Petersen, Wm. E Reynolds, Beatrice Rosenberg, and Sidney M. C

John Powers Crowley argued the cause and brief for respondent.

MR. JUSTICE STEWART delivered the opinion Court.

A special grand jury was convened in the I District of Illinois in February 1971, to investig sible violations of federal criminal statutes re gambling. In the course of its investigation, t jury received in evidence certain voice recordi had been obtained pursuant to court orders.1

1 The court orders were issued pursuant to 18 U. S. a statute authorizing the interception of wire communica a judicial determination that "(a) there is probable belief that an individual is committing, has committed, to commit a particular offense enumerated in section 2 chapter [including the transmission of wagering inf

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d in the Northern to investigate posstatutes relating to tigation, the grand ice recordings that orders.1

to 18 U. S. C. § 2518, e communications upon is probable cause for committed, or is about in section 2516 of this vagering information];

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The grand jury subpoenaed approximately 20 sons, including the respondent Dionisio, seeking to c from them voice exemplars for comparison with th corded conversations that had been received in evic Each witness was advised that he was a potential de ant in a criminal prosecution. Each was asked t amine a transcript of an intercepted conversation to go to a nearby office of the United States Attorn read the transcript into a recording device. The nesses were advised that they would be allowed to their attorneys present when they read the transe Dionisio and other witnesses refused to furnish the exemplars, asserting that these disclosures would v their rights under the Fourth and Fifth Amendr The Government then filed separate petitions United States District Court to compel Dionisic the other witnesses to furnish the voice exempla the grand jury. The petitions stated that the exen were "essential and necessary" to the grand jury in gation, and that they would "be used solely as a sta of comparison in order to determine whether or ne witness is the person whose voice was intercepted

Following a hearing, the District Judge rejecte witnesses' constitutional arguments and ordered th comply with the grand jury's request. He reasoned voice exemplars, like handwriting exemplars or f prints, were not testimonial or communicative evic and that consequently the order to produce them

(b) there is probable cause for belief that particular communi concerning that offense will be obtained through such interce (c) normal investigative procedures have been tried and have or reasonably appear to be unlikely to succeed if tried or too dangerous; (d) there is probable cause for belief th facilities from which, or the place where, the wire or ora munications are to be intercepted are being used, or are ab be used, in connection with the commission of such offense, leased to, listed in the name of, or commonly used by such p Opinion of the Court

not compel any witness to testify against himself District Judge also found that there would be no Amendment violation, because the grand jury su did not itself violate the Fourth Amendment, a order to produce the voice exemplars would inv unreasonable search and seizure within the pros of that Amendment:

"The witnesses are lawfully before the gra pursuant to subpoena. The Fourth Ame prohibition against unreasonable search and applies only where identifying physical ch istics, such as fingerprints, are obtained as of unlawful detention of a suspect, or wher trusion into the body, such as a blood test, i taken without a warrant, absent an em situation. E. g., Davis v. Mississippi, 39 721, 724-728 (1969); Schmerber v. Califor U. S. 757, 770–771 (1966).” 2

When Dionisio persisted in his refusal to respor grand jury's directive, the District Court adjud in civil contempt and ordered him committed to until he obeyed the court order, or until the exp 18 months.

The Court of Appeals for the Seventh Circuit 442 F. 2d 276. It agreed with the District rejecting the Fifth Amendment claims, but ( that to compel the voice recordings would vi Fourth Amendment. In the court's view, t

* The decision of the District Court is unreported. * The life of the special grand jury was 18 months, b extended up to an additional 18 months. 18 U. S. C. §:

* The court also rejected the argument that the procedure violated the witnesses' Sixth Amendment righ It found the contention particularly without merit in option afforded the witnesses to have their attorneys p they made the voice recordings. 442 F. 2d 276, 278.

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