Grand Jury Proceedings (Mills), In re

• Decision Date: 15 November 1982
• Docket Number: Nos. 81-2703,81-2808,s. 81-2703
• Citation: 686 F.2d 135
• Parties: In re GRAND JURY PROCEEDINGS Cecil MILLS. Appeal of UNITED STATES of America. In re GRAND JURY PROCEEDINGS Cecil MILLS. Appeal of Cecil MILLS.
• Court: U.S. Court of Appeals — Third Circuit

Page 135

686 F.2d 135

In re GRAND JURY PROCEEDINGS Cecil MILLS.

Appeal of UNITED STATES of America.

In re GRAND JURY PROCEEDINGS Cecil MILLS.

Appeal of Cecil MILLS.

Nos. 81-2703, 81-2808.

United States Court of Appeals, Third Circuit.

Argued April 1, 1982.

Decided July 28, 1982.

Certiorari Denied Nov. 15, 1982.

See 103 S.Ct. 386.

Joseph J. Farnan, Jr., U. S. Atty., Edmund D. Lyons, Jr., Asst. U. S. Atty. (argued), Wilmington, Del., for appellant/cross-appellee U. S.

David B. Stratton, Helen L. Winslow (argued), Richards, Layton & Finger, Wilmington, Del., for appellee/cross-appellant Cecil Mills.

Before GIBBONS, SLOVITER and BECKER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

On August 14, 1981, pursuant to a writ of habeas corpus ad testificandum, appellee/cross-appellant Cecil Mills appeared before a federal grand jury for the District of Delaware. The grand jury was investigating the December 17, 1980 armed robbery of a Wilmington, Delaware, bank by at least two men, ¹ one of whom wore a dark blue ski mask which was recovered from the scene of the robbery by the police shortly after the crime was completed. Mills was and is suspected of being the masked robber. ² The grand jury directed Mills to (1) furnish samples of his scalp and facial hair for the purpose of comparison with hairs found entwined in the abandoned ski mask, and (2) permit agents of the grand jury to accurately measure his height and weight for comparison with eyewitness descriptions and bank camera recordings of the robbery. Mills refused to assent to the grand jury's demands. The government immediately petitioned the district court for an order directing Mills to comply, which petition was granted that day, August 14, 1981. ³ Mills then requested and was afforded the opportunity to consult with an attorney. On August 20 Mills informed the government that despite the court order he continued to refuse to comply with the grand jury's request, unless he was first served with a valid search warrant. The government declined to seek such a warrant, and Mills subsequently moved the district court to vacate or modify its enforcement order.

On September 11, 1981 the district court, 522 F.Supp. 500, issued an opinion and order vacating its previous direction that Mills submit to the sampling of his head and facial hair. The court, however, reiterated that portion of its earlier order compelling Mills to allow the measurement of his height and weight. Relying upon United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), and In re Melvin, 550 F.2d 674 (1st Cir. 1977), the district court reasoned that grand jury compelled measurements of height and weight, like the compelled production of handwriting and voice exemplars or participation in a lineup, do not fall within the protective embrace of the Fourth Amendment since voice, handwriting, and appearance are characteristics held out to the public with respect to which individuals enjoy no expectation of privacy. The court distinguished the compelled production of head and facial hair, comparing that portion of the grand jury's demand to the police seizure of a blood sample in Schmerber v California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The court cited United States v. Allen, 337 F.Supp. 1041 (E.D.Pa.1972), which held that blood, hair and other "body components," absent exigent circumstances, can be seized only through the warrant process and upon probable cause. The district court found that there was no suggestion of probable cause sufficient to support a warrant. App. at 31a.

The government appeals pursuant to 18 U.S.C. § 3731 and 28 U.S.C. § 1291 from the district court's refusal to enforce the grand jury's demand for hair samples. See In re Grand Jury Empanelled February 14, 1978, 597 F.2d 851, 854-58 (3d Cir. 1979). We reverse and order that the district court reinstate its earlier order of August 14, 1981. With regard to Mills' cross-appeal, the district court's order compelling the measurement of his height and weight is not a "final order" appealable under 28 U.S.C. § 1291, and therefore is not properly before this court for review.

II.

The threshold issue is whether a demand by a grand jury that a witness submit to hair sampling is a search or seizure protected by the Fourth Amendment. We begin with the ruling established in Dionisio that a grand jury's subpoena to appear is not a "seizure" of the individual within the context of the Fourth Amendment, stating "It is clear that a subpoena to appear before a grand jury is not a 'seizure' in the Fourth Amendment sense, even though that summons may be inconvenient or burdensome." 410 U.S. at 9, 93 S.Ct. at 769. The Court distinguished the situation before it, where the grand jury had summoned by subpoena approximately 20 people to give voice exemplars, from the "lawless dragnet detention" of 24 individuals by the police for fingerprinting in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969): "Davis is plainly inapposite to (Dionisio ) where the initial restraint does not itself infringe the Fourth Amendment." Id. 410 U.S. at 11, 93 S.Ct. at 770. Mills argued that the district court should vacate or modify the original enforcement order because of "the disquieting possibility that the United States may be operating a simple dragnet aimed at every black male of appropriate physical stature in the Wilmington area to obtain hair samples and weight and height information." App. at 16a. The assertion that such a "grand jury dragnet" would be prohibited by the Fourth Amendment cannot survive the Supreme Court's conclusion in Dionisio.

The conclusion that a grand jury summons is not a seizure for purposes of the Fourth Amendment is not dispositive of whether a subsequent demand, in this case for hair samples and height and weight measurements, may be a search or seizure falling within Fourth Amendment protection. As the Court stated in Dionisio, 410 U.S. at 8, 93 S.Ct. at 769, "the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels-the 'seizure' of the 'person' necessary to bring him into contact with government agents ... and the subsequent search for and seizure of the evidence." In Davis v. Mississippi, supra, the focus of the Fourth Amendment scrutiny was the lawless wholesale roundup and detention. The Court recognized that the fingerprinting process might, "under narrowly defined circumstances, be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense." 394 U.S. at 727, 89 S.Ct. at 1398. Earlier, in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Court held the Fourth Amendment prohibited the warrantless intrusion by the police into an individual's body for the purpose of extracting a blood sample absent an emergency situation. Neither case involved a grand jury directive, but both opinions contain the language which forms the basis of the demarcation which the Court subsequently limned between seizure of physical evidence subject to Fourth Amendment scrutiny and that which is not.

In Davis, the Court commented upon the limited intrusion which was caused by fingerprinting. The Court stated that "(d)etention for fingerprinting may constitute a much less serious intrusion upon personal security than other types of police searches and detentions. Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search." 394 U.S. at 727, 89 S.Ct. at 1398. Other characteristics of fingerprinting noted in Davis were that fingerprint detention need not be "employed repeatedly to harass any individual, since the police need only one set of each person's prints"; "fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the 'third degree' "; and that "the limited detention need not come unexpectedly or at an inconvenient time" because there is no danger of destruction of fingerprints. Id. In Schmerber, the Court subjected the warrantless extraction of blood samples to Fourth Amendment scrutiny and found that the extraction was reasonable under the circumstances. The Court, however, employed the relevant Fourth Amendment standard of reasonableness because the search and seizure involved "intrusions beyond the body's surface," and "(t)he interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence may be obtained." 384 U.S. at 769-70, 86 S.Ct. at 1835.

In United States v. Dionisio, supra, and United States v. Mara, supra, the Court was presented with seizures in a different context: the evidence requested was as a result of a grand jury directive. In Dionisio, the witness was compelled to provide a voice exemplar; in Mara, the witness was compelled to provide a handwriting exemplar. In each case the Court of Appeals had held that the government must first make a showing of need for the exemplars which was "reasonable" albeit not necessarily synonymous with probable cause, the same type of showing to which Judge Gibbons in his concurring opinion would subject the directive for hair sampling in this case. In each case, the Supreme Court reversed the Court of Appeals and held that there was "no justification for requiring the grand jury to satisfy even the minimal requirement of 'reasonableness' imposed by the Court of Appeals" before enforcing its directives ordering production of the physical evidence. Dionisio, 410 U.S. at 15, 93 S.Ct. at 772; see also Mara, 410 U.S. at 22, 93 S.Ct. at 776. The reason for the distinction was that the seizure of the physical evidence involved ...