Melvin, In re

• Decision Date: 09 February 1977
• Docket Number: No. 77-1004,77-1004
• Citation: 550 F.2d 674
• Parties: In re James Francis MELVIN.
• Court: U.S. Court of Appeals — First Circuit

Page 674

550 F.2d 674

In re James Francis MELVIN.

No. 77-1004.

United States Court of Appeals, First Circuit.

Argued Feb. 3, 1977.

Decided Feb. 9, 1977.

Martin G. Weinberg, Boston, Mass., with whom Judith H. Mizner and Oteri & Weinberg, Boston, Mass., were on brief for appellant.

Robert B. Collings, Asst. U. S. Atty., Chief, Crim. Div., Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief for appellee.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This appeal presents the question whether it is within a grand jury's power to order a person suspected of a crime to participate in a lineup. ¹ Appellant is a suspect in the August 19, 1975, armed robbery of the West Yarmouth Branch of the First National Bank of Yarmouth. In connection with the grand jury's investigation, appellant was subpoenaed in March, 1976, and requested by the grand jury to submit to fingerprinting and photographing. After appellant declined to submit voluntarily, the United States Attorney obtained from the district court an order directing compliance with the grand jury's request, and appellant complied. Four months later, the United States Attorney sought an order in the district court requiring appellant to participate in a lineup, representing that "it is necessary for the Grand Jury's investigation that he be viewed in a line-up by various witnesses." Although there was no showing either that the grand jury had sought appellant's participation in a lineup or that the Government's request was supported by probable cause to arrest, the district court issued an ex parte order directing appellant to participate in a lineup. Appellant sought mandamus in this court to set aside that order, and we granted the requested relief holding that the district court had exceeded its authority because the order "was not shown to have been in aid of an appropriate directive of the grand jury issued to Melvin, and was lacking any other basis of authority". In re Melvin, 546 F.2d 1, 5 (1st Cir. 1976).

Following our decision, the grand jury subpoenaed appellant to appear before it. He appeared but declined to indicate whether he would participate in a lineup voluntarily. The grand jury then issued a formal order requiring him to appear in a lineup. On appellant's refusal to comply voluntarily, the United States Attorney sought and the district court issued an order directing him to comply. ² The lineup was scheduled for a specific time and place, and after appellant failed to appear, the district court found him in contempt. It is from the order of contempt that appellant brings this appeal.

The positions of the parties can be stated briefly. Appellant argues that the grand jury's historic powers have never included a right to order a suspect to appear in a lineup, ³ and that such an order violates the fourth amendment's proscription of unreasonable seizures. Additionally, the order is said to violate Fed.R.Crim.P. 6(d) & (e) limiting who may be present while the grand jury is "deliberating or voting" and requiring grand jury proceedings to be kept secret. The Government's case rests essentially on United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). In Dionisio the Court sustained a grand jury's power to compel a suspect to furnish a voice exemplar, and in Mara a similar order of a grand jury directing a suspect to produce handwriting and printing exemplars was upheld. These cases, it is contended, are controlling in the present circumstances and support the grand jury's order.

The Supreme Court's analysis in Dionisio seemingly answers, in a manner favorable to the Government's position here, all of the essential claims advanced by appellant except, perhaps, the secrecy argument. In addressing the claimed fourth amendment violation, the Court began by noting that there were two parts to its inquiry.

"(T)he 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, see Davis v. Mississippi, 394 U.S. 721, (89 S.Ct. 1394, 22 L.Ed.2d 676), and the subsequent search for and seizure of the evidence."

410 U.S. at 8, 93 S.Ct. at 769, citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). At the first level, the Court held that the inconvenience and burdensomeness of being forced to appear before a session of the grand jury or elsewhere for the purpose of providing a voice exemplar does not make a grand jury subpoena a "seizure" within the meaning of the fourth amendment. Id. at 8-11, 93 S.Ct. 764; see Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). At least this is true, the Court said, so long as the grand jury's investigatory powers are not abused so as to transform the body into an "instrument of oppression". 410 U.S. at 12, 93 S.Ct. 764. The Court's rationale in finding that the "seizure" of a "person" necessary to bring him before the grand jury for the purpose of furnishing a voice exemplar does not implicate the fourth amendment seems controlling in the present context. Appearance at a lineup could take longer and be more distasteful, but it is difficult to see that the procedure is so much more burdensome as to be distinguishable for that reason from the ordered identification procedures accepted in Dionisio and Mara. ^*

In reaching the second level of analysis, the Supreme Court went on to hold in Dionisio that a claim of unconstitutional "seizure" could not rest on being forced to disclose such physical characteristics as the tone and manner of one's voice. 410 U.S. at 14, 93 S.Ct. at 771. The Court said:

"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."

Id.; see Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus whatever the differences between a lineup and the production of voice exemplars, it seems clear that one has no more reasonable expectation of privacy in one's face than in one's voice, and that being forced to stand in a lineup does not result in an unconstitutional "seizure".

Appellant argues, however, that there is a crucial difference between a lineup and the identification procedures at issue in Dionisio and Mara : a lineup is inherently a less reliable identification procedure than the providing of voice and handwriting exemplars. See Note, Detention to Obtain Physical Evidence Without Probable Cause: Proposed Rule 41.1 of the Federal Rules of Criminal Procedure, 72 Colum.L.Rev. 712, 741-44 (1972); Note, Proposed Federal Rule of Criminal Procedure 41.1, 56 Minn.L.Rev. 667, 694 (1972). But as neither the inconvenience of responding to the grand jury's directive nor the forced display of physical characteristics such as one's voice or face make the challenged order a "seizure" within the meaning of the fourth amendment, considerations such as the reliability of the identification procedure are largely irrelevant to whether the grand jury directive to appear violates the fourth amendment. It is simply immaterial to the constitutional analysis whether a lineup is less "scientific" than fingerprinting, voice and handwriting comparison, or other identification procedures. As the...