Application of Rodgers
| Decision Date | 06 June 1973 |
| Docket Number | No. 73 C 706.,73 C 706. |
| Citation | 359 F. Supp. 576 |
| Parties | Application of Connie RODGERS for a Protective Order. |
| Court | U.S. District Court — Eastern District of New York |
Robert A. Morse, U. S. Atty., E.D.N.Y., Brooklyn, N. Y., by Denis E. Dillon, Attorney in Charge, Organized Crime Section, David J. Ritchie, Sp. Atty., U. S. Dept. of Justice Brooklyn, N. Y., of counsel, for the Government.
Greenspan & Aurnou by Joel Martin Aurnou, White Plains, N. Y., for petitioner.
Connie Rodgers, who appeared as a witness before the Special May 1972 Grand Jury, Eastern District of New York, and was photographed, moves for a protective order directing the destruction of the photograph and the suppression of any evidence obtained directly or indirectly by use of such photograph. For the reasons set forth below the motion is denied.
On May 14, 1973, petitioner, pursuant to subpoena ad testificandum, appeared before the Special May 1972 Grand Jury to give testimony in an ongoing investigation. At the close of her testimony petitioner was ordered to stand in order that her photograph might be taken. Her attorney objected and all parties appeared before the court for a ruling. Petitioner's attorney demanded a representation from government counsel that petitioner had not been subpoenaed as a result of evidence garnered by wiretapping or eavesdropping. The assurance was given and petitioner then consented, on advice of counsel, to being photographed.
Petitioner, now wishing to revoke her consent to further use of her photograph in the Grand Jury investigation, argues that it was given without knowledge that the procedure was violative of her Fourth and Fifth Amendment rights.
United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67, and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99, recently decided by the Supreme Court, are dispositive of the issue. In Dionisio the Court, citing Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1965), Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1966), and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1966), held ". . . that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against self incrimination." Particularly apposite here is the Court's quotation from Schmerber reaffirming "that the privilege offers no protection against compulsion to submit to fingerprinting, photographing or measurements . . ." Id. at 5 of 410 U. S., at 767 of 93 S.Ct. emphasis supplied. Thus petitioner's Fifth Amendment claim must be rejected.
In Dionisio the Court again looked to Schmerber for the teaching that obtaining physical evidence from a person harbors potential for Fourth Amendment violations at two 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." Id. at 6, at 769 of 93 S.Ct.
As to the first, the Court found that lacking extraordinary circumstances, a subpoena to appear before a grand jury raises no Fourth Amendment issue. No such claims are proffered here.
As to the second, the Court, in discussing the compulsion of voice exemplars, found no reasonable expectation of privacy meriting Fourth Amendment protection, saying:
The physical characteristics of a person's voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world. Dionisio, supra at 14, at 771 of 93 S.Ct., emphasis supplied.
There is no reason not to apply this teaching to the photographing of petitioner.
Two final issues deserve comment. Petitioner raises the spectre that use of her photograph in the course of the grand jury investigation harbors...
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