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is 'reasonable' only when there is 'probable cause' to believe they will be uncovered in a particular dwelling." 387 U.S. at 535.
The fact that § 702 (a) of this Act authorizes normal search warrants suggests that the administrative warrants of § 703 can be utilized during a criminal investigation when there is not enough evidence to obtain a regular search warrant.
The Supreme Court has strongly condemned just this use of administrative warrants to conduct a criminal investigation. In the case of Abel v. United States, 362 U.S. 217 (1960), the defendant argued that the government had relied on an administrative warrant issued as part of the deportation process to gather evidence for use against him in a prosecution for espionage. The Court found the facts did not support the defendant's allegation. However, the Court said: "Were this claim justified by the record, it would indeed reveal a serious misconduct by law enforcement officers. The deliberate use by the government of an administrative warrant for the purpose of gathering evidence in a criminal case must meet stern resistance by the courts. The preliminary stages of the criminal prosecution must be pursued in strict obedience to the safeguards and restrictions of the Constitution and laws of the United States." 362 U.S. at 226. That practice which the Court so strongly condemned is precisely what is contemplated by § 703.
Warrantless administrative inspections
Section 703 authorizes "administrative inspections" on a showing that they are justified by a "valid public interest in the effective enforcement of the Act." (§ 1703 (a) (1)) It then goes on, in § 703 (b) (4), to authorize such inspections without warrants. Since this section is intended as a supplement to the regular search warrant procedure outlined in § 702, it seems clear that, in authorizing warrantless "inspections," the drafters are attempting to create new circumstances under which warrantless searches would be authorized.
Warrantless searches are permissible only if they fit within an exception to the general rule that searches must rest upon search warrants. Jones v. United States, 357 U.S. 493 (1958); United States v. Jeffers, 342 U.S. 48 (1951). As the Supreme Court said in Jeffers, supra:
valid arrest . . 342 U.S. at 51.
“Over and again this Court has emphasized that the mandate of the amendment requires adherence to judicial processes Only where incident to a ... or in 'exceptional circumstances' . . . may an exemption lie." Section 703 (b) (4) certainly cannot be justified as authorizing inspections incident to a lawful arrest. As indicated above, § 702 is designed to cover situations where probable cause as normally defined does not exist, precluding the official from obtaining a search warrant. And even if it were incident to a lawful arrest, the scope of the inspection permitted under § 703 (a) goes far beyond the limits which the Supreme Court has very recently imposed upon warrantless searches incident to a lawful arrest. In Chimel v. California, 37 U.S.L.W. 4613 (June 23, 1969), the Court held that the scope of such a search was limited to ". . . a search of the arrestee's person and the area 'within his immediate control'-construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." There is no sign of any such limitation here.
The other exception in which the Supreme Court has said warrantless searches might be tolerable depends on the existence of "exceptional circumstances.” However, despite its use of this phrase, the Supreme Court has never actually found a warrantless search lawful due to exceptional circumstances except perhaps in cases involving moving automobiles. And even there the Supreme Court has recently indicated that warrantless searches of moving vehicles may be valid, but only where probable cause exists. Chimel v. California, supra at 4617 (1967). And looking to earlier cases, while Carroll v. United States, 267 U.S. 132 (1925), might suggest that the search of a moving automobile is permissible without an accompanying arrest, the Court has later emphasized that the search in Carroll was incident to an arrest. See Brinegar v. United States, 338 U.S. 160 (1949): Preston v. United States, 376 U.S. 364 (1964). To the extent that § 703 (b) (4) (c) is intended to apply to cases where no valid arrest could take place, it falls outside any recognized exception to the Fourth Amendment's search warrant requirement.
The drafters of this bill appear to be relying upon one other line of cases to justify its provision for warrantless searches. The Supreme Court, as it in
dicated in Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967), has in the past upheld warrantless searches in certain emergency situations. The Court there referred to seizure of unwholesome food, North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908), the need to administer compulsory smallpox vaccinations, Jacobson v. Massachusetts, 197 U.S. 11 (1905), and a health quarantine, Compagnie Francaise v. Louisiana State Board of Health, 186 U.S. 380 (1902).
These cases can be distinguished from the present proposal in three very significant ways. First, as outlined above, these cases, as well as Frank v. Maryland, 359 U.S. 360 (1959), Camara v. Municipal Court of San Francisco, supra, and See v. City of Seattle, 387 U.S. 541 (1967), did not involve criminal investigations as this Act clearly does. Second, the inspection of premises which is here sought to be accomplished by administrative inspection involves absolutely no element of urgency. There is no compelling need which justifies dispensing with a warrant. And lastly, in those cases in which "emergency" searches were permitted without a warrant, it would appear that probable cause, as that phrase is normally defined, would have existed so that, had there been time, a valid warrant could have been obtained. The central fact here is that the probable cause necessary to support a search warrant will never exist because, by definition, this section will not even be invoked unless the probable cause required to obtain a search warrant under § 702 is absent.
Thus, the drafters of this provision, by redefining “probable cause" to permit administrative inspections on merely a showing of a “valid public interest" and then by permitting such inspections without warrants, have created an entirely new category of warrantless searches which are unjustified by any showing of "exceptional need" and which represent a dangerous and unwarranted infringement on the protection guaranteed to each citizen by the Fourth Amendment. Administrative subpoenas
Section 606 (a), which empowers the Attorney General to "subpoena witnesses, compel their attendance and testimony, and require the production of any records (including books, papers, documents and tangible things which constitute or contain evidence) which the Attorney General finds relevant or material to the investigation," fails to meet the requirement of the Fourth Amendment that warrants be specific.
It is well settled that administrative authorities may be empowered to summon witnesses and require the production of books and papers. Interstate Commerce Commission v. Brimson, 154 U.S. 447 (1894). It is also well established that when an administrative agency subpoenas books or records, it must comply with the requirements of the Fourth Amendment. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186; Boyd v. United States, 116 U.S. 616 (1886). The Fourth Amendment requires that he subpoena be "sufficiently limited in scope, relevant in purpose, and specific and directed so that compliance will not be unreasonably burdensome . The agency . . . must delimit the confines of a search by designating the needed documents in a formal subpoena." See v. City of Seattle, 387 U.S. 541, 544 (1967). Section 606 should clearly require that records "which the Attorney General finds relevant or material" be listed with specificity in the subpoena. Cf. Stanford v. Teras, 379 U.S. 476 (1985). Unless this were done, § 606(a) would permit a "fishing expedition" of the kind the court has called unreasonably burdensome. Commission v. Morton Salt Co., 338 U.S. 632 (1950); Federal Trade Commission v. American Tobacco Co., 264 U.S. 298 (1924); Hale v. Henkel, 201 U.S. 43 (1906).
Inadequate standard for warrant
The Fourth Amendment is violated by § 702(a) which authorizes the issuance of a search warrant by a judge or magistrate, servable at any time of the day or night, if there is probable cause "to believe that grounds exist for the warrant and for its service at such time." Standing alone, this standard-"a belief that grounds exist for the warrant"-is not sufficiently specific to meet the burden imposed on the warrant seeker by the Fourth Amendment. The general rule is that warrants shall not be issued except for probable cause to believe that an offense has been committed and that specific seizable material will be found in a specific place. Carroll v. United States, 267 U.S. 132 (1925). In addition, a valid warrant must describe with particularity the things to be seized. Stanford v. Texas, 379 U.S. 476 (1965). As the Supreme Court has pointed out on numerous occasions, the very purpose of the Fourth Amendment was to prohibit "general warrants" which in England and in colonial American had been relied upon
to justify totally unlimited searches conducted anywhere and at any time. Stanford v. Texas, supra; Marcus v. Property Search Warrant, 367 U.S. 717, 724-29 (1961); Weeks v. United States, 232 U.S. 383 (1914).
It may be that the drafters of this provision intend that other federal laws and rules shall govern the issuance of warrants, incorporating all of them into "belief that grounds exist." However, in light of the other provisions of the bill which attempt to create new looser and lower standards for the issuance of administrative inspection warrants and subpoenas, that intention does not come through clearly. If this provision is adopted it should be amended to make it crystal clear that there is no intent to create a new federal standard for the issuance of search warrants in cases involving "controlled dangerous substances." "No knock" warrants
Section 702(b) of this bill allows an officer to enter a home without notice if the issuing magistrate is satisfied that there is probable cause to believe that (1) a crime has been committed, and (2) if such notice were given the "property sought... may be easily and quickly destroyed or disposed of." We believe that permitting a government officer to enter a man's home without any notice solely because evidence might be destroyed violates the principles embodied in the Fourth Amendment to the United States Constitution.
The rule that government authorities should announce their presence before entering a home is deeply rooted in our heritage and in common law. Miller v. United States, 357 U.S. 301 (1958). However, because a federal statute, 18 U.S.C. § 3109, requires prior announcement, the Supreme Court has never been called upon to determine the constitutional basis of this principle regarding federal officers. The Court has, however, examined this question with respect to state officers. As Senators Ervin and Hart so ably demonstrated in their dissenting views on S. 3246 (S. Rept. 91-613), at least eight members of the Court in Ker v. California, 374 U.S. 23 (1963) considered the announcement principle to be a constitutional requirement under the Fourth Amendment.
The common law, of course, recognizes certain exceptions to the announcement rule which are permissible under the Fourth Amendment. Justice Brennan summarized these exceptions in Ker v. California as, “(1) where the person within already knew of the officer's authority and purpose, or (2) where the officers are justified in the belief that persons within are in imminent peril of bodily harm, or (3) where those within made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is being attempted" 374 U.S. at 47.
The reference in § 702(b) to property which can be "quickly destroyed or disposed of" is clearly subject to the interpretation that it refers to the nature of the property sought rather than to the circumstances of a particular case.2 Mr. Jusice Brennan has, in his Ker opinion, clearly identified the defect in permitting reliance upon evidence that "... other narcotics suspects had responded to police announcements by attempting to destroy evidence." He said:
"Clearly such a basis for the exception fails to meet the requirements of the Fourth Amendment; if police experience in pursuing other narcotics suspects justified an unannounced police intrusion into a home the Fourth Amendment would afford no protection at all." 374 U.S. at 61.
He would require some evidence in the particular case where a warrant is sought that authorization to enter without prior notice is necessary. In short, he would return to the common law exception already available to law enforcement officers and avoid what he considered to be an unconstitutional extension of that exception.
The Supreme Court of California has held, in the case of People v. Gastelo, 67 Cal. 2d 586, 432 P. 2d 708, that unannounced forcible entry on the basis of a blanket rule violates the Fourth Amendment. The court in that case stated: "Under the Fourth Amendment, a specific showing must always be made to justify any kind of police action tending to disturb the security of the people in their homes. Unannounced forcible entry is in itself a serious disturbance of that security and cannot be justified on a blanket thesis. Otherwise the constitutional test of reasonableness would turn only on practical expediency. . . Just as the police must have sufficiently particular reason to enter at all, so must they have
2 Even & 702(b) in S. 3246, which was amended to refer to property which "may, and if such notice is given, will be easily and quickly destroyed or disposed of" does not completely remove this possibility.
some particular reason to enter in the manner chosen. 67 Cal. 2d at 588, 432 P. 2d at 708.
We strongly believe that the Supreme Court of the United States would reach the same conclusion in reviewing the provision proposed here. The risk of abuse in this provision is great. There can be no doubt that once "no-knock” authorization is given, it will be relied upon in every case in which the presence of drugs could arguably be established. Section 702(b) of this bill is even broader than the "no knock" provision contained in S. 3246 which authorized such warrants only in relation to "offenses involving controlled dangerous substances the penalty for which is imprisonment for more than one year." No such limitation appears here. The temptation to pretend to be searching for drugs so as to enter without notice in other situations will be enormous. Efforts to extend this rule to other easily destroyed property will be the next step. We will be moving towards a situation where the exceptions devour the rule established by the Fourth Amendment.
Lastly, we cannot forget the increased danger to the police themselves which is inherent in this practice. As the Black Panther incident in Chicago has so unfortunately demonstrated, people are apt to react with suspicion to the unannounced entry of persons not required to identify themselves, especially during the middle of the night. Furthermore there is no way to know with certainty that the intruder is a police official, rather than a robber or murderer. In the absence of meaningful gun control legislation, the danger to the police will be enormous— especially from law abiding citizens, who will react instinctively, if not wisely, to an unknown intruder breaking in, in the middle of the night.
Immunity and self-incrimination
Section 707 permits the Attorney General, "in any case or proceeding before any grand jury or court in the United States," to compel a witness to testify or produce evidence "necessary to the public interest" even if that witness claims his privilege against self-incrimination. The bill further provides :
"... no such witness shall be prosecuted or subjected to any penalty or forfeiture for, or on account of, any transaction, matter, or thing concerning which he is compelled . . . nor shall testimony so compelled be used as evidence in any criminal proceeding, except . . . prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion as provided in this section."
We oppose this section on the grounds that it fails to provide a person compelled to speak with sufficiently complete immunity and, even if it did, it severely undermines the Fifth Amendment privilege against self-incrimination.
Since Counselman v. Hitchcock, 142 U.S. 547 (1892), the Supreme Court has repeatedly held that immunity statutes providing absolute immunity were constitutional. Brown v. Walker, 161 U.S. 591 (1896); Ullman v. United States, 350 U.S. 422 (1956); Hale v. Henkel, 201 U.S. 43 (1906); and Reina v. United States, 364 U.S. 507 (1960).
The drafters of § 707 have attempted to meet the constitutional requirements by a grant of absolute immunity from prosecution. However, the language of the provision does not appear to accomplish this result. The use of the phrase "penalty or forfeiture," against which the person compelled to speak is protected, is nowhere defined. The cases in which the Supreme Court has considered the scope of similarly worded immunity statutes have involved criminal prosecutions and have not, therefore, resulted in any definition of "penalty" or "forfeiture." See, e.g., Counselman v. Hitchcock, supra; Ullman v. United States, supra; Hale v. Henkel, supra; and Reina v. United States, supra. We cannot be sure that the government will not define this phrase narrowly, so as to permit, for example, the withholding, suspension, or revocation of the registration required elsewhere in this Act. And, furthermore, § 707 only prohibits the use of the testimony in a criminal proceeding. The testimony or evidence presumably could still be used in a state proceeding to deny a person, such as a doctor, the license he needs to practice.
The Supreme Court has generally treated this privilege as being applicable only to protect a man from future criminal prosecution, but not against testimony which is merely self-degrading or embarassing. Reina v. United States, 364 U.S. 507 (1960); Hale v. Henkel, 201 U.S. 43 (1906). But as the Court noted in Ullman v. United States, 350 U.S. 422 (1956):
3 In this connection, it should be noted that the provision in § 702(b) of S. 3246, which requires the officer to identify himself "as soon as practicable" after entry, has been omitted from H.R. 13743.
"... this Court has often held . . . the immunity granted need only remove those sanctions which generate the fear justifying invocation of the privilege
[a] witness . . . has of course, when a particular sanction is sought to be imposed against him, the right to claim it is criminal in nature." 305 U.S. at 431. The imposition of non-criminal penalties fall somewhere between criminal prosecutions and degradation. The possibility of disbarment or revocation of a license needed to practice certainly generates the same kind of fear as the risk of criminal sanctions. Non-criminal sanctions are in many ways equally as serious as criminal penalties. The loss of many years of income which could result from losing a needed license can be far more serious than the imposition of even the largest fine contemplated by this bill. Deprivation of a chosen livelihood itself has an enormously serious impact on the individual. To interpret the privilege against self-incrimination to exclude these serious disabilities quite clearly compels the person to speak at a risk to himself far more serious than mere embarrassment. The Constitution should not be read to sanction requiring a man to bring these serious consequences on himself through his own words. Cf. Spevack v. Klein, 385 U.S. 511 (1967).
Regardless of the constitutionality, however, the ACLU objects to any general grant of immunity in that it seriously undermines the Fifth Amendment privilege against self-incrimination.
Former Dean, and now Solicitor General, Erwin N. Griswold, in his famous re-affirmation of the privilege against self-incrimination, The Fifth Amendment Today, described the privilege in the following words, to which we subscribe:
"If we are not willing to let the Amendment be invoked, where over time, are we going to stop when police, prosecutors, or chairmen want to get people to talk? Lurking in the background here are really ugly dangers which might transform our whole system of free government. In this light, the frustrations caused by the Amendment are a small price to pay for the fundamental protection it provides.
"One of the functions of government, based on long experience, is at times to protect the citizen against the government. This function has been performed. to some extent, by the Fifth Amendment, although not always perfectly, and not always without some loss to legitimate government interests. While protecting the citizen against the government, the Fifth Amendment has been a firm reminder of the importance of the individual.
". . . [T]he Fifth Amendment can serve as a constant reminder of the high standards set by the Founding Fathers, based on their experience with tyranny. It is an ever-present reminder of our belief in the importance of the individual, a symbol of our highest affirmations . . ." p. 81.
This suggests that the grant of immunity, even if it could be really complete should be used only very sparingly so as to preserve what the Fifth Amendment seeks to protect. No evidence has been presented in support of this provision which would suggest that this is a special case which justifies exchanging the privilege against self-incrimination for a grant of immunity.
This provision is defective as well in the procedure which it establishes for compelling the giving of testimony or evidence. It contemplates that, if a U.S. Attorney (with the approval of the Attorney General) believes that the evidence or testimony is "necessary to the public interest," the court shall issue an order requiring an individual to give testimony or information. Apparently there is to be no check on the propriety or relevance of the questions to be posed or the information to be sought by the U.S. Attorney. Placing such totally unrestricted power in the hands of prosecutors is unwarranted and reduces the requirement of a court order to a mere paper procedure.
Narcotic addicts registry
I would like to comment on one additional provision which appears both in H.R. 12882 and H.R. 11701. Both of these bills seek to amend the Public Health Service Act, (41 U.S.C. 252a (a) and 242), so as to authorize the establishment of a National Registry of Narcotic Addicts "to facilitate research in drug addiction." Both bills provide that the information shall be used "only for statistical and research purposes," and that no names or identifying characteristics "shall be divulged without the approval of the Secretary and the consent of the person concerned” except to personnel who operate the Registry. Further, the Secretary may "authorize" persons connected with such research to protect the privacy of individual subjects by withholding from all persons not connected with the research any names or identifying characteristics. These persons cannot be compelled to reveal this information in any federal or state proceeding.