In Re Grand Jury Proceedings Cecil Mills. Appeal of United States of America. In Re Grand Jury Proceedings Cecil Mills. Appeal of Cecil Mills

686 F.2d 135

• Court: Court of Appeals for the Third Circuit
• Decided: November 15, 1982
• Docket: 81-2703, 81-2808
• Status: Published

Opinions

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 “does not involve the ‘severe, though brief, intrusion upon cherished personal security’ effected [for example] by the ‘pat-down’ in Terry [v. Ohio, 392 U.S. 1, 24-25, 88 S.Ct. 1868, 1881-82, 20 L.Ed.2d 889 (1968)]”, and hence did not implicate any interest protected by the Fourth Amendment. Dionisio, 410 U.S. at 15, 93 S.Ct. at 772. The Court reasoned that voice and handwriting exemplars are not protected because the Fourth Amendment “provides no protection for what ‘a person knowingly exposes 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.” Id. at 14, 93 S.Ct. at 771. The Court cited Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), for the proposition that an individual has no expectation of privacy with respect to that which he knowingly exposes to the public at large, such as voice and appearance. See also United States v. Doe (Schwartz), 457 F.2d 895 at 898-899 (2nd Cir.). The Court distinguished Schmerber because of the extent of the intrusion into the body entailed by blood sampling.

Shortly thereafter in the same term, the Court again applied this distinction based on the extent and nature- of the intrusion. In Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), the Court held that police action in taking involuntary and warrantless scrapings from under the fingernails of a suspect which had yielded traces of skin, blood and fabric from the victim must be subjected to Fourth Amendment analysis. The Court held that “[ujnlike the fingerprinting in Davis, the voice exemplar obtained in United States v. Dionisio ... or the handwriting exemplar obtained in United States v. Mara ... the search of the respondent’s fingernails went beyond mere ‘physical characteristics . . . constantly exposed to the public,’ ” id. at 295, 93 S.Ct. at 2003, although it also held that the search was justified because of exigent circumstances.

Thus, the issue before us is whether the compulsion to produce facial and scalp hair samples to a grand jury is more akin to fingerprinting and voice and handwriting exemplars which have been held outside the ambit of Fourth Amendment protection or whether it is more closely aligned with the extraction of blood samples or fingernail scrapings which have been subjected to Fourth Amendment analysis as to reasonableness. Although the issue is admittedly close, we conclude that there is no greater expectation of privacy with respect to hair which is on public display than with respect to voice, handwriting or fingerprints. In the case of blood samples and fingernail scrapings, the bodily seizure requires production of evidence below the body surface which is not subject to public view. In the case of facial and head hair, as well as fingerprints, voice and handwriting exemplars, the evidence is on public view. In his concurring opinion, Judge Gibbons makes the distinction that it is only the “appearance of one’s hair that we offer to the public’s view.” Concurring Typescript op. at 2. When we offer our voice for public consumption, we do not do so with the expectation that the tone, inflections and modulations will be subjected to minute technical analysis any more than we expect that the fingerprints we inadvertently leave will be microscopically analyzed. The latter cannot be distinguished from the possibility of analyzing hair strands which we also normally shed. Judge Gibbons is undoubtedly correct that “while one can expect that his fingerprint might be lifted from a door knob, he does not expect that the offending fingertip will be lopped off,” Concurring Typescript op. at 2, but the cutting of a few strands of hair is hardly akin to the amputation of a finger. Nor is it the sort of “annoying, frightening, and perhaps humiliating experience” involved in the police pat-down in Terry v. Ohio, 392 U.S. at 25, 88 S.Ct. at 1882, which the Court distinguished in Dionisio, 410 U.S. at 15, 93 S.Ct. at 772. Rather, in terms of intrusiveness, it is more like the involuntary touching, inking, and pressing of one’s finger involved in the process of fingerprinting. If the fingerprints can be subject to compelled disclosure by the grand jury without implicating the Fourth Amendment, it follows logically that the hair strands can as well.

This ease arises in the context of a grand jury request, as did Dionisio and Mara. In those cases, the Supreme Court did not consider whether the same rationale would apply when a suspect is detained by the police, although the reliance on Davis in those cases suggests that it would. Police searches, however, present the threshold question of the legality of the initial seizure of the person which, as previously discussed, is not a problem in the grand jury context. As the Court noted in Dionisio, 410 U.S. at 11, 15, 93 S.Ct. at 770, 772, in Davis the seizure of the persons, held to be illegal, was distinguished from their subsequent fingerprinting, which the Court has since stated was legal. We consider only the applicability of the Fourth Amendment under the facts and in the context before us.

Our conclusion does not necessarily end the Fourth Amendment inquiry. There is a two-pronged inquiry which must be made when considering a claim of Fourth Amendment violation. As the Court stated in Schmerber, “the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” 384 U.S. at 768, 86 S.Ct. at 1834. No issue as to the manner of sampling is raised in this case,⁴ nor has there been any suggestion that the hair sample requested by the grand jury sought the hair root with which Judge Gibbons is concerned. A snip of hair is often adequate for identification purposes. See Imwinkelried, Forensic Hair Analysis: The Case Against the Underemployment of Scientific Evidence, 39 Wash. & Lee L.Rev. 41, 53-58 (1982). We need not decide whether the result might be different were the hair root requested, since the hair root, unlike the exposed hair, is a living structure. At times, constitutional distinctions are as thin as a razor’s edge.

III.

Mills cross-appeals from that portion of the district court’s order denying his motion to vacate the grand jury’s demand that he submit to the measurement of his height and weight. While the preceding discussion bears heavily upon the soundness of that denial, nonetheless we are without jurisdiction to rule squarely on this issue.

Denials of motions to quash grand jury subpoenas are not final orders appealable under 28 U.S.C. § 1291. Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940). In United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 1581-82, 29 L.Ed.2d 85 (1971), “the Court reiterated the continued validity of the holding in Cobbledick ‘that one to whom a subpoena is directed may not appeal the denial of a motion to quash that subpoena but must either obey its commands or refuse to do so and contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey.’ ” In re Establishment Inspection of Consolidated Rail Corp., 631 F.2d 1122, 1123 (3d Cir. 1980). The rule of Cobbledick

is solidly grounded in the policy that the workings of the investigatory process should remain unfettered. If an ongoing grand jury proceeding could be interrupted each time that a potential witness or holder of relevant records wished to contest an appearance or disclosure, the ability of grand juries promptly to perform their task would be seriously compromised ....

In re Grand Jury Empanelled August 14, 1979, 638 F.2d 1235, 1236 (3d Cir. 1981). Cross-appellant Mills argues that this supporting rationale does not apply in the instant case since “Mills did not interrupt the grand jury’s investigation in this matter; he simply cross-appealed from the government’s interruption thereof.” Brief of Appellee/Cross-Appellant at 1. This argument fails to recognize that the interruption of the grand jury’s investigation was occasioned initially by Mills’ refusal to comply with the grand jury’s directive, and subsequently by the court’s grant of Mills’ motion to vacate the order compelling production of the hair sample, not by the government’s appeal from that court order. See Cobbledick, 309 U.S. at 329 n.6, 60 S.Ct. at 543 n.6. Furthermore, Mills’ assertion that adjudication of the cross-appeal now, in connection with the government’s appeal, will actually expedite rather than impede the grand jury investigation is unsupportable. As noted by the government, if not for the cross-appeal, the grand jury might now be in possession of sufficient information relating to Mills’ physical dimensions to clear him of suspicion or possibly to indict him, assuming that Mills would have chosen to comply with the court order rather than face contempt. In addition, although review by this court of the cross-appeal now might serve the sound judicial policy against piecemeal appellate adjudication, that policy is itself grounded in the desire for expeditious administration of justice, Cobbledick, 309 U.S. at 325, 60 S.Ct. at 541, and therefore the goal of unified appellate presentation must yield to the necessity of avoiding unnecessary obstructions to the orderly progress of the grand jury’s investigation. Id. at 327-28, 60 S.Ct. at 542-43; In re Grand Jury Empanelled August 14, 1979, 638 F.2d at 1236.

Accordingly, Mills’ cross-appeal falls squarely within the holding and rationale of Cobbledick. The district court’s denial of Mills’ motion is not a final order appealable under § 1291 and Mills is left “to a choice between compliance with a trial court’s order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt.” United States v. Ryan, 402 U.S. at 533,⁵ 91 S.Ct. at 1582.

IY.

In No. 81-2703 the order appealed from will be reversed. In No. 81-2808 the appeal will be dismissed.

1 . The government believes that a third participant, who did not enter the bank during the robbery, may have driven the get away car. The undisguised robber who entered the bank was subsequently apprehended and convicted of violating 18 U.S.C. § 2113(a) and (b) for his role in the armed robbery. App. at 4a.

2 . Although the government states that Mills is suspected, no basis for the grand jury’s suspicion has been offered, other than the district court’s speculation that Mills’ height and weight approximate that of the masked robber described by eyewitnesses. App. at 32a.

3 . In addition to limiting the uses to which the samples and measurements were to be put, the initial district court order provided that:

Both the taking of hair samples and the measurement of Mr. Mills’ height and weight shall be accomplished under the supervision of a duly authorized agent of the Grand Jury and shall actually be effected by a doctor or other trained medical personnel.

App. at 7a.

4 . By the terms of the district court’s original order sampling is to be accomplished under the supervision of a duly authorized agent of the Grand Jury and is to be effected by a doctor or other trained medical personnel, see note 3 supra.

5 . We need not reach the further issue of the timeliness of Mills’ cross-appeal, and the predicate question of whether a grand jury investigation is a “criminal case” within the meaning of Fed.R.App.P. 4(b).