United States v. Dionisio 8212 229

• Decision Date: 22 January 1973
• Docket Number: No. 71,71
• Citation: 35 L.Ed.2d 67,93 S.Ct. 764,410 U.S. 1
• Parties: UNITED STATES, Petitioner, v. Antonio DIONISIO. —229
• Court: U.S. Supreme Court

410 U.S. 1

93 S.Ct. 764

35 L.Ed.2d 67

UNITED STATES, Petitioner,

v Antonio DIONISIO.

No. 71—229.

Argued Nov. 6, 1972.

Decided Jan. 22, 1973.

Syllabus

A grand jury subpoenaed about 20 persons, including respondent, to give voice exemplars for identification purposes. Respondent, on Fourth and Fifth Amendment grounds, refused to comply. The District Court rejected both claims and adjudged respondent in contempt. The Court of Appeals agreed in rejecting respondent's Fifth Amendment claim but reversed on the ground that the Fourth Amendment required a preliminary showing of reasonableness before a grand jury witness could be compelled to furnish a voice exemplar and that here the proposed 'seizures' would be unreasonable because of the large number of witnesses subpoenaed to produce the exemplars. Held:

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

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

(a) A subpoena to compel a person to appear before a grand jury does not constitute a 'seizure' within the meaning of the Fourth Amendment, and the fact that many others besides respondent were ordered to give voice recordings did not render the subpoena unconstitutional. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676, distinguished. Pp. 8—13.

(b) The grand jury's directive to make the voice recording infringed no valid Fourth Amendment interest. Pp. 13—15.

(c) Since neither the summons to appear before the grand jury, nor its directive to give a voice exemplar contravened the Fourth Amendment, the Court of Appeals erred in requiring a preliminary showing of reasonableness before respondent could be compelled to furnish the exemplar. Pp. 15—16.

442 F.2d 276, reversed and remanded.

Philip A. Lacovara, New York City, for petitioner.

John Powers Crowley, Chicago, Ill., for respondent.

Mr. Justice STEWART delivered the opinion of the Court.

A special grand jury was convened in the Northern District of Illinois in February 1971, to investigate possible violations of federal criminal statutes relating to gambling. In the course of its investigation, the grand jury received in evidence certain voice recordings that had been obtained pursuant to court orders.¹

The grand jury subpoenaed approximately 20 persons, including the respondent Dionisio, seeking to obtain from them voice exemplars for comparison with the recorded conversations that had been received in evidence. Each witness was advised that he was a potential defendant in a criminal prosecution. Each was asked to examine a transcript of an intercepted conversation, and to go to a nearby office of the United States Attorney to read the transcript into a recording device. The witnesses were advised that they would be allowed to have their attorneys present when they read the transcripts. Dionisio and other witnesses refused to furnish the voice exemplars, asserting that these disclosures would violate their rights under the Fourth and Fifth Amendments.

The Government then filed separate petitions in the United States District Court to compel Dionisio and the other witnesses to furnish the voice exemplars to the grand jury. The petitions stated that the exemplars were 'essential and necessary' to the grand jury investigation, and that they would 'be used solely as a standard of comparison in order to determine whether or not the witness is the person whose voice was intercepted . . ..'

Following a hearing, the District Judge rejected the witnesses' constitutional arguments and ordered them to comply with the grand jury's request. He reasoned that voice exemplars, like handwriting exemplars or fingerprints, were not testimonial or communicative evidence, and that consequently the order to produce them would not compel any witness to testify against himself. The District Judge also found that there would be no Fourth Amendment violation, because the grand jury subpoena did not itself violate the Fourth Amendment, and the order to produce the voice exemplars would involve no unreasonable search and seizure within the proscription of that Amendment:

'The witnesses are lawfully before the grand jury pursuant to subpoena. The Fourth Amendment prohibition against unreasonable search and seizure applies only where identifying physical characteristics, such as fingerprints, are obtained as a result of unlawful detention of a suspect, or when an intrusion into the body, such as a blood test, is undertaken without a warrant, absent an emergency situation. E.g., Davis v. Mississippi, 394 U.S. 721, 724—728 (89 S.Ct. 1394, 1396—1398, 22 L.Ed.2d 676;) (1969); Schmerber v. California, 384 U.S. 757, 770—771 (86 S.Ct. 1826, 1835—1836, 16 L.Ed.2d 908.) (1966).'²

When Dionisio persisted in his refusal to respond to the grand jury's directive, the District Court adjudged him in civil contempt and ordered him committed to custody until he obeyed the court order, or until the expiration of 18 months.³

The Court of Appeals for the Seventh Circuit reversed. 442 F.2d 276. It agreed with the District Court in rejecting the Fifth Amendment claims,⁴ but concluded that to compel the voice recordings would violate the Fourth Amendment. In the court's view, the grand jury was 'seeking to obtain the voice exemplars of the witnesses by the use of its subpoena powers because probable cause did not exist for their arrest or for some other, less unusual, method of compelling the production of the exemplars.' Id., at 280. The court found that the Fourth Amendment applied to grand jury process, and that 'under the fourth amendment law enforcement officials may not compel the production of physical evidence absent a showing of the reasonableness of the seizure. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 . . ..' Ibid.

In Davis this Court held that it was error to admit the petitioner's fingerprints into evidence at his trial for rape, because they had been obtained during a police detention following a lawless wholesale roundup of the petitioner and more than 20 other youths. Equating the procedures followed by the grand jury in the present case to the fingerprint detentions in Davis, the Court of Appeals reasoned that '(t)he dragnet effect here, where approximately twenty persons were subpoenaed for purposes of identification, has the same invidious effect on fourth amendment rights as the practice condemned in Davis.' Id., at 281.

In view of a clear conflict between this decision and one in the Court of Appeals for the Second Circuit,⁵ we granted the Government's petition for certiorari. 406 U.S. 956, 92 S.Ct. 2056, 32 L.Ed.2d 343.

I

The Court of Appeals correctly rejected the contention that the compelled production of the voice exemplars would violate the Fifth Amendment. It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination. In Holt v. United States, 218 U.S. 245, 252, 31 S.Ct. 2, 6, 54 L.Ed. 1021, Mr. Justice Holmes, writing for the Court, dismissed as an 'extravagant extension of the Fifth Amendment' the argument that it violated the privilege to require a defendant to put on a blouse for identification purposes. He explained that 'the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.' Id., at 252—253, 31 S.Ct., at 6.

More recently, in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, we relied on Holt, and noted that:

'(B)oth federal and state courts have usually held that (the privilege) it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it.' Id., at 764, 86 S.Ct., at 1832 (footnote omitted).

The Court held that the extraction and chemical analysis of a blood sample involved no 'shadow of testimonial compulsion upon or enforced communication by the accused.' Id., at 765, 86 S.Ct., at 1832.

These cases led us to conclude in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, that handwriting exemplars were not protected by the privilege against compulsory self-incrimination. While '(o)ne's voice and handwriting are, of course, means of communication,' we held that a 'mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection.' Id., at 266—267, 87 S.Ct., at 1953. And similarly in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, we found no error in compelling a defendant accused of bank robbery to utter in a lineup words that had allegedly been spoken by the robber. The accused there was 'required to use his voice as an identifying physical characteristic, not to speak his guilt.' Id., at 222—223, 87 S.Ct., at 1930.

Wade and Gilbert definitively refute any contention that the compelled production of the voice exemplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses' voices, not for the testimonial or communicative content of what was to be said.⁶

II

The Court of Appeals held...