In re Calandra

• Decision Date: 01 October 1971
• Docket Number: No. CR 71-300.,CR 71-300.
• Citation: 332 F. Supp. 737
• Parties: In re Application for Immunity of John P. CALANDRA.
• Court: U.S. District Court — Northern District of Ohio

332 F. Supp. 737

In re Application for Immunity of John P. CALANDRA.

No. CR 71-300.

United States District Court, N. D. Ohio, E. D.

October 1, 1971.

Robert Gary, Steven R. Olah, Cleveland, Ohio, Organized Crime Strike Force, for Government.

Gerald S. Gold, Robert Rotatori, Cleveland, Ohio, for Calandra.

BATTISTI, Chief Judge.

On August 17, 1971, John Calandra appeared before a Federal Grand Jury. On the same day the United States Attorney requested that John Calandra be granted immunity pursuant to Title 18, Section 2514 of the United States Code. Prior to the granting of the immunity, Calandra filed a "request for postponement of hearing on application for immunity order" in order that he might move to suppress certain evidence which he claims to have been seized in violation of the requirements of the Fourth Amendment. Calandra alleges, and the Government acknowledges, that the questions put to Calandra before the Grand Jury were based upon this evidence. The Government wishes to immunize Calandra and he has stipulated that he will refuse to answer any questions before the Grand Jury. The questions presented in this motion are whether a district court may consider a motion to suppress in a proceeding ancillary to a grand jury hearing and, if so, whether the evidence upon which the questions were based was illegally seized either because the affidavit for the search warrant did not allege probable cause for a search of the Royal Machine and Tool Company, or because the search of the Royal Machine and Tool Company was too broad in that it went beyond the allowable limits prescribed by the search warrant and the strictures of the Fourth Amendment.

I. The Propriety of the Hearing.

In a recent case, In the Matter of Egan, 450 F.2d 199 (3d Cir. 1971), the Third Circuit en banc examined a similar but not so far reaching set of facts. Sister Joques Egan, an alleged co-conspirator, but not a co-defendant in an indictment returned in the Middle District of Pennsylvania, was called before a federal grand jury and refused to testify because, among other grounds, "the information which caused the Government to subpoena her and which prompted the questions propounded to her flowed from illegal wire tapping and electronic surveillance." 450 F.2d at 201. She was subsequently held in contempt. The Third Circuit, with which this Court concurs, held the District Court was required to hold a hearing as to the alleged violation of Sister Egan's Fourth Amendment rights because it was required by 18 U.S.C. § 2518(10), 18 U.S.C. § 2515, and the Fourth Amendment itself. In the instant case, Calandra is raising a much broader issue. He seeks to extend the narrow holding of the Third Circuit to the limit of the Fourth Amendment thus necessitating the Court's ruling upon any Fourth Amendment violation which becomes relevant within the context of the Grand Jury's examination.

The Government contends that "it is settled law that motions to suppress are not entertained in the context of a grand jury proceeding." It seems, however, that this is not settled law, that in fact it is the subject of considerable controversy. (Compare In the Matter of Egan, 450 F.2d 199 3d Cir. 1971 and United States v. Gelbard United States v. Parnas, 443 F.2d 837 9th Cir. 1971. See Greenspan and White, Standing to Object to Search and Seizure, 118 U.Pa.L. Rev. 333 (1970). It is the position of the Government that this motion is premature because it is being considered prior to the grant of immunity rather than in connection with a contempt hearing. This Court cannot agree. It has been stipulated that the Government intends to immunize Calandra and that Calandra intends not to answer its questions even at the risk of a contempt citation. Thus, in substance, the situation is in the same posture as it would be in connection with a contempt hearing. The scope of review is no larger here than it would be after Calandra had gone through the revolving door which would bring him back here raising the same issues in a defense to a contempt citation. The fact that he is not in jail is not significant, because he, like Sister Egan, would be allowed reasonable bail pending this hearing and any appeal.

The thrust of the Government's position is that Calandra has no standing to raise search and seizure question as a witness before a grand jury. The standard for determining whether an individual possesses the requisite standing, as the Supreme Court stated, "* * * concerns, apart from the `case' or `controversy' test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). Normally when an illegal search and seizure has been directed against a citizen, he has standing to complain of the Fourth Amendment violation. "The fact that the question of standing arises in a grand jury investigation does not alter the result." In the Matter of Egan, 450 F.2d at 210.¹ The Government urges that since the witness will never reach the status of defendant, he is in no jeopardy and therefore he may not raise his Fourth Amendment claim. See Carter v. United States, 417 F.2d 384 (9th Cir. 1969), cert. den. 399 U.S. 935, 90 S.Ct. 2253, 26 L.Ed.2d 807 (1970). See also Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919). This argument is buttressed by the language of In re Shead, 302 F.Supp. 569 at 571 (N.D.Cal.1969).

"The constitutionally exclusionary rule of illegally-obtained evidence is based on the necessity for an effective deterrent to illegal police action. * * * The risk of not being able to achieve conviction serves this purpose. It is a truism that the deterrent is strengthened by extending the exclusionary rule to grand jury proceedings while they are in progress. However, this would be an unduly burdensome restriction on the administration of justice."

Since the question of standing seems to be a "non-issue," to quote the words of dissenting Judge Gibbons in Egan, 450 F.2d at 224, the issue of the restriction on the administration of justice stands alone at the core of the argument of the United States. The Government relies heavily on the dissenting opinion in Egan. Instead of repeating the careful analysis of the Fourth Amendment question in the opinion of the Third Circuit, an examination of that dissenting opinion seems in order.

The dissenting opinion agrees with the prevalent view of the Ninth Circuit, Carter v. United States, supra, and the Second Circuit, United States ex rel. Rosado v. Flood, 394 F.2d 139 (2d Cir. 1968) that the protections of the Fourth Amendment do not extend to a witness before the grand jury. Judge Gibbons objects to what he classifies as an unqualified witness privilege, which he contends the majority of the Third Circuit has created in the place of a limited exclusionary rule of evidence which operates on behalf of defendants in criminal proceedings. To prove his point, Judge Gibbons hypothesized an example. Suppose A's telephone is unlawfully tapped and further suppose that through this unlawful electronic surveillance the Government learns that A has information helpful to the defense of B, someone under indictment. If the Government discloses to B that A would be a helpful witness, A may nevertheless refuse to testify. The fact that A will not so refuse is not considered by Judge Gibbons. However, assuming that A does refuse to testify, what has the Government lost that will not be corrected next time when a lawful electronic surveillance is in operation? Consider the alternative. If a witness may not raise the Fourth Amendment claim at this time, what is to force the Government to obtain search warrants or wire tap warrants whenever it wants evidence for a grand jury investigation. Suppose A has evidence in his possession that would incriminate B. A is involved in an illegal operation with B, but B is a much more important figure in the organization supervising this illegal activity. Agents of the Government without a warrant enter A's business and examine every cubic foot of it. After this thorough search in which certain evidence is found, A is then called to testify before the grand jury and is immunized. His only defense to this violation of his privacy is a term in jail for civil contempt. He may, of course, testify and incriminate B and ignore the invasion of his privacy.² Certainly if these are the only alternatives, as they seem to be, the sanctity of the Fourth Amendment protections will win out against the efficient administration of the grand jury. Judge Gibbons disagrees.

"The witness' privacy yields to a paramount public interest even though his testimony may subject him to enmity, ridicule, danger or disgrace. That paramount public interest outweighs considerations of witness privacy because the whole life of the community depends upon how well the institutions of justice perform their role of social lubricator." 450 F.2d at 222.

Judge Gibbons fails to include in his equation the fact that if the Government is allowed to violate a person's privacy only when it has the requisite probable cause, he will have the needs of the grand jury satisfied without being subject to the criticism that the Fourth Amendment is suspended in the context of a grand jury investigation.

Judge Gibbons next characterizes the rights of the witness as third party rights and then states that the litigants and the judicial process, rather than the wrongdoer, are the victims of the delay that results from the adjudication of those rights. Judge Gibbons rests his position, as does the Government, in the case at bar, on the delay that will be caused by the adjudication of third-party rights. The majority opinion in Egan attempted to minimize the...