In Re Grand Jury Proceedings GJ-98-011-M 12/04/98 P UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
In Re Grand Jury Proceedings Involving William Harry Vickers and Joseph Haas.
Case No. 98-GJ-ll
O R D E R
On October 29, 1998, William Harry Vickers was served with a
grand jury subpoena, directing him to provide major case prints
(i.e., fingerprints and palm prints), saliva, and hair samples to
the federal grand jury investigating recent pipe bombing
incidents in Concord, New Hampshire.1 On November 2, 1998,
Joseph Haas, Jr., received a similar subpoena, seeking major case
prints, saliva, and hair samples. Neither man provided the grand
jury with the reguested samples. Conseguently, on application of
the government, the court ordered them to appear and show cause
why they should not be held in contempt.
On November 6, 1998, a show cause hearing was held. Mr.
Haas appeared, pro se, and Mr. Vickers appeared with counsel.
1 The subpoena also directed Mr. Vickers to provide the grand jury with handwriting exemplars and fingernail scrapings. However, after receiving additional information from the FBI, the Assistant United States Attorney, acting as counsel to the grand jury, withdrew the reguests for handwriting exemplars and fingernail scrapings. Attorney Paul McEachern. After determining that the government
did not plan to reference any information pertinent to the grand
jury's investigation not already known to the public, the court
concluded, and the government agreed, that the hearing need not
be sealed. The general public was, therefore, permitted to
attend.2
Attorney McEachern explained that he had been retained by
Mr. Vickers that afternoon, so was not adeguately prepared to
address the legal issues he thought relevant. He reguested, and
was granted, an opportunity to file a written motion to guash the
subpoena served upon his client, supported by a legal memorandum.
Mr. Haas sought to join in that anticipated motion. The
government had no objection and the court allowed it.
Conseguently, the court deferred ruling on whether either Mr.
Vickers or Mr. Haas (collectively, "respondents") should be held
in contempt for failing to comply with the subpoenas, pending
review of the anticipated motions to guash and supporting
memoranda, which have since been filed.
2 However, because the government's Ex Parte Petition for Order to Show Cause (document no. 1) discloses matters and evidence pending before the grand jury, it shall remain subject to seal.
2 Many of the arguments raised by respondents focus on the
government's alleged failure to comply with the provisions of the
United States Attorney's Manual (e.g., failure to provide an
advice of rights form, failure to provide "subject" or "target"
letters, etc.) and/or relate to items of evidence no longer
sought by the grand jury (i.e., fingernail scrapings and
handwriting exemplars). Those claims do not warrant much
discussion as they are adeguately and correctly addressed in the
government's objection to the motion to guash (document no. 12).
Moreover, neither the United States Attorney nor the grand jury
is strictly bound by the administrative guidelines set forth in
the United States Attorney's Manual when issuing a grand jury
subpoena. See In re Grand Jury Proceedings, 632 F.Supp. 374
(E.D . Texas 198 6) .
The core of respondents' remaining argument is based upon
the assumption that the only basis for the grand jury's subpoena
is their outspoken and constitutionally protected views critical
of the government. Thus, they claim that the subpoenas at issue
violate their First Amendment rights. They also assert that the
grand jury subpoenas violate their Fourth Amendment right to be
free from unreasonable searches and seizures. Conseguently, they
say that the only means by which the grand jury can obtain the
3 requested evidence without unlawfully imposing on their
constitutional rights is by obtaining a search warrant, supported
by probable cause and issued by a neutral and detached judicial
officer.
First, it is important to note that matters pending before,
and evidence presented to, the grand jury are kept secret.
Accordingly, respondents do not know what evidence is before the
grand jury, nor why the grand jury might be interested in
particular information. Similarly, the FBI agent who interviewed
Mr. Vickers (and upon whose alleged statements respondents rely
in support of what are essentially claims of harassment) likely
was also unaware of such evidence (or, even if he was aware of
it, he was legally obligated not to share it with respondents).
Consequently, respondents' assertion that they have been
"targeted" by the grand jury based solely upon their outspoken
but constitutionally protected views is, at best, unsupported
speculation.
The court is obviously sensitive to the need to keep secret
those matters and that evidence pending before the grand jury.
Based on an _in camera review of the government's submissions, the
court is satisfied that the grand jury's purpose in issuing the
4 subpoenas is not to infringe respondents' First Amendment rights
or otherwise harass them because of whatever social or political
views they may espouse. It is, therefore, sufficient to note
that respondents are incorrect in asserting that the "exercise of
[their] protected First Amendment right of petition was the
criterion underpinning the government's decision to initiate
[its] investigation." Respondents' motion (document no. 10) at
4. Accordingly, the court will focus exclusively on respondents'
Fourth Amendment claims.3
I. Scope of the Court's Review.
The grand jury occupies a unigue position in the criminal
justice system.
3 Even if the court were to accept respondents' claim that the government must make a heightened showing justifying the issuance of the subpoenas at issue (on the strength of vague notions that such a showing is necessary whenever someone claims that First Amendment rights are implicated by a grand jury subpoena), the court would conclude that the government has made such a showing. See Government's Ex Parte Petition for Order to Show Cause. See generally, Branzburq v. Haves, 408 U.S. 665 (1972) (rejecting the claim that a reporter has a conditional privilege under the First Amendment to refuse to appear and testify before a grand jury, but recognizing that a grand jury would have no justification for undertaking an investigation in bad faith or solely for the purpose of harassing or otherwise interfering with a reporter's relationship with his or her sources). As noted above, in this case there is absolutely no basis upon which to suggest, much less conclude, that the grand jury is acting in bad faith or that it is seeking to harass respondents.
5 [T]he grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It 'is a constitutional fixture in its own right.' In fact the whole theory of its function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people. Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm's length. Judges' direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office.
United States v. Williams, 504 U.S. 36, 47 (1992) (citations
omitted). Because grand jury proceedings are "other than a
constituent element of a 'criminal prosecution,'" the Court has
held that certain constitutional protections afforded in the
context of a criminal prosecution (e.g.. Fifth Amendment
protections of the Double Jeopardy Clause, the Sixth Amendment's
right to counsel, etc.) are inapplicable in proceedings before a
grand jury. See id., at 49 (citing cases).
In light of those holdings, and recognizing the historical
function of the grand jury as an independent investigatory body
which acts as a buffer between the citizenry and government, the
Court has been reluctant to measure the enforceability of grand
6 jury subpoenas against the same standards applicable to search
warrants. See, e.g.. Hale v. Henkel, 201 U.S. 43, 76 (1906)
(holding that while a grand jury subpoena for the production of
books and papers may implicate the Fourth Amendment, when
presented with a challenge to such a subpoena a court need only
determine whether the reguest is "far too sweeping in its terms
to be regarded as reasonable."); United States v. Calandra, 414
U.S. 338, 346 (1974) (guoting Henkel and again suggesting that
Fourth Amendment rights are adeguately protected when grand jury
subpoenas are subjected to court review for reasonableness, but
not for "probable cause").
In fact, the Court has held the Fourth Amendment applicable
in the context of a grand jury's subpoena duces tecum only by
analogy, concluding that the subpoena constitutes only a
"figurative" or "constructive," and not an "actual" search and
seizure. Accordingly, the Court has observed (at least with
regard to subpoenas duces tecum reguiring the production of
corporate documents):
It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of the law be pending or that the order be made pursuant to one. It is enough that the investigation be for a lawfully authorized purpose, within the power of Congress to command. This has been ruled most often perhaps in relation to grand jury investigations . . . . The
7 requirement of "probable cause, supported by oath or affirmation," literally applicable in the case of a warrant, is satisfied in that of an order for production by the court's determination that the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry. Beyond this the requirement of reasonableness, including particularity in "describing the place to be searched, and the persons or things to be seized," also literally applicable to warrants, comes down to specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry.
Oklahoma Press Publishing Co. v. Wallace, 327 U.S. 186, 209
(1946) .
Interpreting Supreme Court precedent on this issue. Judge
Friendly observed:
These decisions, and the reasoning behind them, suggest that the Court may be moving toward the position, urged by Mr. Justice Miller in Boyd and Mr. Justice McKenna in Hale v. Henkel and strongly intimated in Oklahoma Press Publishing Co. v. Walling, that restriction on overbroad subpoenas duces tecum rests not on the Fourth Amendment but on the less rigid requirements of the due process clause.
In Re Grand Jury Subpoena Served upon Simon Horowitz, 482 F.2d
72, 79 (2d Cir. 1973). So, while the Constitution undoubtedly
protects a citizen from an overly broad grand jury subpoena, the subpoena is not subject to the same type or degree of scrutiny
under the Fourth Amendment as are search warrant applications.
When a grand jury subpoena arguably implicates a citizen's
rights under the Fourth Amendment, the means by which those
rights are vindicated usually involves two steps. First, the
subject of the subpoena normally files a motion to guash, setting
forth in detail why he or she believes the subpoena is improper,
unreasonable, or overly broad. Next, a judicial officer reviews
those claims, determines whether the citizen's constitutional
rights are, in fact, implicated by the subpoena and, if so,
balances those rights against the grand jury's need for the
reguested information. As a starting point in its inguiry,
however, the reviewing court must be mindful that a "presumption
of regularity attaches to grand jury proceedings and hence to a
grand jury subpoena." In re Lopreato, 511 F.2d 1150, 1152 (1st
Cir. 1975). Accordingly, "[t]hose challenging such a subpoena
have the burden of showing that irregularity exists." Id.
(citation omitted). See also United States v. R. Enterprises,
Inc., 498 U.S. 292, 301 (1991) (holding that because "a grand
jury subpoena issued through normal channels is presumed to be
reasonable, . . . the burden of showing unreasonableness must be
on the [subpoena] recipient who seeks to avoid compliance," but recognizing that a court may be justified, under some
circumstances, in reguiring the government to "reveal the general
subject of the grand jury's investigation before reguiring the
challenging party to carry its burden of persuasion.").
With those principles in mind, then, this court must
determine whether: (1) respondents' constitutional rights are
implicated by the subpoenas (which will determine the appropriate
level of scrutiny); and (2) whether respondents have stated
adeguate grounds to justify guashing the subpoenas. See
generally Fed. R. Grim. P. 17(c) (authorizing the court to guash
a subpoena for the production of documentary evidence or "other
objects" if compliance would be unreasonable or oppressive).
However, it is important to remember that even when a citizen's
Fourth Amendment rights are arguably implicated by a grand jury's
subpoena, the relevant inguiry is not whether the subpoena is
supported by "probable cause." Instead, the court must simply
determine whether the subject matter and scope of the subpoena
are reasonable under the circumstances, including consideration
of the subpoenaed person's constitutional rights. See, e.g..
Hale. 201 U.S. at 76.
10 The following questions are pertinent to that
"reasonableness" assessment: (1) Does the subpoena command the
production of things relevant to the investigation being pursued
by the grand jury?; (2) Does the subpoena specify with sufficient
particularity the things being sought?; (3) Is the subpoena
sufficiently narrow in scope to be considered reasonable?;
(4) Has the subpoena issued for reasons other than to harass the
subject?; and (5) Can the subject provide the requested evidence
without unnecessary risk of personal harm (e.g., potentially
dangerous invasive surgery) and/or personal humiliation (e.g.,
unnecessary invasion of bodily integrity or dignitary interests)?
In short, the court must determine whether protected
constitutional values or rights are likely to be unduly burdened
or violated if the subpoena is not quashed. See, e.g.. In re
Grand Jury Subpoena Duces Tecum, 391 F.Supp. 991 (D.R.I. 1975).
See generally Winston v. Lee, 470 U.S. 753 (1985); C u p p v .
Murphy, 412 U.S. 291 (1973); Schmerber v. California, 384 U.S.
757 (1966) .
I. Grand Jury Subpoena of Fingerprints and Hair Samples.
To the extent the subpoenas issued in this case seek to
compel the production of fingerprint samples, they plainly do not
implicate respondents' Fourth Amendment rights.
11 Obtaining physical evidence from someone can implicate
Fourth Amendment concerns at two different levels: the initial
"''seizure' of the 'person' necessary to bring him into contact
with government agents, and the subseguent search for and seizure
of the evidence." United States v. Dionisio, 410 U.S. 1, 8
(1973) (citations omitted). As to the first step, "[i]t is clear
that a subpoena to appear before a grand jury is not a 'seizure'
[of the person] in the Fourth Amendment sense, even though that
summons may be inconvenient or burdensome." Id. at 9. As to the
second step, respondents do not enjoy a constitutionally
protected privacy interest in their fingerprints. See generally
Cu p p v . Murphy, 412 U.S. at 295 (characterizing fingerprints as
"mere physical characteristics" which are "constantly exposed to
the public."); Dionisio, 410 U.S. at 14 (holding that a person
does not have a reasonable expectation of privacy with regard to
physical characteristics which he or she routinely exposes to
public view); Katz v. United States, 389 U.S. 347, 351 (1967)
("What a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment
protection."). See also Davis v. Mississippi, 394 U.S. 721, 727
(1969) (holding that the initial seizure of the defendant was
unlawful, but noting, with regard to the second step in the
Fourth Amendment analysis, that "[f]ingerprinting involves none
12 of the probing into an individual's private life and thoughts
that marks an interrogation or search."); In re Grand Jury
Proceedings, 632 F.Supp. at 37 6 ("The reguirement that the
witness must furnish [the grand jury with] . . . fingerprints and
palm prints does not violate his Fourth or Fifth Amendment
rights.").
Accordingly, respondents' initial position - that the grand
jury cannot lawfully issue a subpoena reguiring them to provide
fingerprint samples without first meeting the probable cause
reguirements of the Fourth Amendment and obtaining a valid search
warrant - is wrong. Because respondents' Fourth Amendment rights
are not implicated by the grand jury's reguest for fingerprints,
the court need only determine whether the evidence sought is
potentially relevant to a legitimate investigatory purpose and
whether reguiring compliance with the subpoenas would be
unreasonable or oppressive. See Fed. R. Grim. P. 17(c).
Respondents' fingerprints plainly meet the test of relevance, see
Government's Ex Parte Petition for Order to Show Cause (sealed
document no. 1), and reguiring production of the reguested
evidence will obviously impose minimal inconvenience, and
certainly neither an unreasonable nor oppressive burden.
13 For essentially the same reasons, the court also rejects
respondents' assertions with regard to the grand jury's demand
for hair samples. The Court of Appeals for the First Circuit has
held, at least implicitly, that a grand jury subpoena seeking
hair samples need not be supported by either a warrant or
probable cause. In re De Jesus Berrios, 706 F.2d 355 (1st Cir.
1983). Other circuit courts of appeals agree. See, e.g.. In re
Grand Jury Proceedings (Mills), 686 F.2d 135, 139 (3rd Cir. 1982)
("[W]e 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. ... If fingerprints can
be subjected to compelled disclosure by the grand jury without
implicating the Fourth Amendment, it follows logically that the
hair strands can as well."); In re Grand Jury Proceedings
Involving Eve Rosahn, 671 F.2d 690, 695 (2d Cir. 1982) (holding
that a grand jury's subpoena of fingerprints, handwriting
exemplars, and hair samples need not be supported by a search
warrant or a showing of reasonableness).
Thus, it follows that the grand jury's reguest for hair
samples, like fingerprints, does not implicate respondents'
Fourth Amendment rights. Conseguently, the scope of review
applicable to a grand jury subpoena seeking hair samples is guite
14 limited. Here, the subpoenas describe the evidence sought with
particularity; the evidence is reasonably related to a legitimate
aspect of the grand jury's ongoing investigation; and reguiring
compliance with those subpoenas would impose neither an
unreasonable nor oppressive burden. See Fed. R. Grim. P. 17(c).
Accordingly, to the extent the grand jury seeks major case
prints and hair samples, respondents' motion to guash the
subpoenas is denied.
II. Saliva Samples.
A more difficult issue is presented by the motion to guash
as it pertains to the grand jury's reguest for saliva samples.
Whether a grand jury may compel a citizen to submit saliva
samples, absent some showing beyond the test set forth in Rule
1 7 (c) (unreasonableness or oppressiveness), is a fairly open
guestion. Respondents argue that because taking a saliva sample
involves an undeniable intrusion compromising their right to
bodily integrity, their Fourth Amendment right to be free from
unreasonable searches and seizures is implicated. The court is
inclined to agree: a grand jury subpoena compelling a citizen to
provide saliva samples does implicate his or her Fourth Amendment
rights. Therefore, it is necessary to balance the grand jury's
15 legitimate interest in conducting a thorough investigation and
obtaining relevant evidence against respondents' constitutionally
protected interests, to determine whether what is effectively a
search and seizure is, nevertheless, reasonable.
The Supreme Court has not directly confronted the issue,
commentators generally lament the state of confusion in this area
of the law,4 and the guestion appears to be one of first
impression in this circuit. However, a brief survey reveals that
at least two federal district courts have ruled on the guestion,
at least indirectly. See United States v. Nicolosi, 885 F.Supp.
50 (E.D.N.Y. 1995); Henry v. Ryan, 775 F.Supp. 247 (N.D. 111.
1991). Other courts have addressed it in the related context of
a grand jury subpoena seeking to compel the production of blood
samples. See, e.g.. In re Grand Jury Proceedings (T.S.), 816
F.Supp. 1196 (W.D. Ky. 1993).
In Nicolosi, the district court was presented with a motion
to guash a subpoena issued by the prosecution (not a grand jury),
4 See, e.g., Paul S. Diamond, Federal Grand Jury Practice and Procedure, § 6.02 (3d ed. 1997); Floralynn Einesman, Vampires Among Us - Does a Grand Jury Subpoena for Blood Violate the Fourth Amendment?, 22 Am. J. Crim. L. 327 (1995); Rosemary Elizabeth-Ann Smith, A Proposal to Prevent Unlawful Bodily Intrusion in the Context of a Grand Jury Subpoena Duces Tecum, 19 U. Dayton L. Rev. 633 (1994).
16 after the subject of the subpoena had already been indicted.
Factually, therefore, Nicolosi is distinguishable from the
present case, in which neither respondent has been indicted (nor
has either respondent been served with a "subject" or "target"
letter). Nevertheless, the Nicolosi court's reasoning is
instructive and helpful.
In Nicolosi, Judge Glasser observed that, in terms of
implicating constitutional rights, evidence a grand jury might
seek in the course of conducting a legitimate investigation
should be viewed as falling along a continuum. Where particular
evidence lies on that continuum will dictate the extent of the
showing the government must make in order to justify enforcement
of a subpoena.
Cast in terms of those items upon which the courts have already spoken, on one end of the continuum are things such as voice, hair and handwriting samples. These items are outwardly manifested and in the public domain. Obtaining these samples does not implicate any privacy or dignity interests and can be affected without a full Fourth Amendment procedure. . . .
On the other end of the continuum is a blood sample and presumably other internal fluids which could only be obtained by extracting them from the body. Obtaining such samples reguires full compliance with Fourth Amendment procedures. These items are not in the public domain and privacy and dignitary interests are implicated by the method of obtaining the sample - an individual is reguired to submit to an agent of the
17 state who extracts the sample by penetrating the subject's body.
Nicolosi, 885 F.Supp. at 55. The court then concluded that
saliva samples arguably "fall sguarely in the middle of this
continuum." Id., at 55.
In In re Grand Jury Proceedings (T.S.), supra, the district
court addressed a related guestion: "whether a grand jury
subpoena, rather than a warrant, can be used to obtain blood
samples." Id., at 1205. Relying upon Schmerber v. California,
384 U.S. 757 (1966), the court concluded that a "demand for blood
does constitute a search within the protection of the Fourth
Amendment." Id. Acknowledging that the Supreme Court had not
yet addressed whether a grand jury subpoena may compel the
production of blood, the district court reasoned that employing a
grand jury subpoena in that manner would constitute an abuse of
the grand jury's subpoena power. Conseguently, the court held
that if the grand jury sought blood samples, the government would
be reguired to obtain such evidence via a search warrant,
supported by probable cause, and issued by a neutral and detached
judicial officer. Id. at 1205-06.
18 Regarding the subpoenas at issue in this case, the court is
not persuaded that the reasoning of In re Grand Jury Proceedings
(T.S .) should counsel the same result. First, it is worth noting
that the cited case involved a grand jury subpoena seeking blood
(evidence at the far end of the posited Fourth Amendment privacy
continuum), while the material sought here is saliva (evidence
falling more toward the middle of that continuum). Moreover,
Supreme Court precedent in this area suggests that when a
person's Fourth Amendment rights are implicated by production
demands found in a grand jury subpoena (regardless of the type of
evidence sought), the proper remedy is not to reguire the
government (or grand jury) to obtain a search warrant. See,
e.g., Dionisio, 410 U.S. at 15 (holding that a grand jury
subpoena seeking a voice exemplar did not implicate Fourth
Amendment rights, but suggesting that even if it had, at most the
government would have been reguired to demonstrate that the grand
jury subpoena was "reasonable."). Additionally, reguiring the
government or grand jury to obtain a search warrant before it
could compel the production of a saliva sample would intrude to
an unnecessary extent upon the grand jury's independent
investigatory function.
19 That is not to say, however, that a citizen is without
constitutional protection or a means by which constitutional
guarantees can be enforced when confronted with a grand jury
subpoena. When a legitimate constitutional right is implicated
by a grand jury subpoena, a reviewing court will, in considering
a motion to guash, ensure that the subject's constitutional
rights are protected by determining whether the subpoena is
"reasonable" under the circumstances. See Hale, supra; Fed. R.
Crim. P. 17(c). And, during its inguiry into the
"reasonableness" of the challenged subpoena, the court will
balance the legitimate and protected privacy interests of those
subpoenaed against the grand jury's legitimate need to conduct
its investigation and obtain evidence relevant to its inguiry
into possible criminal wrongdoing. See Winston v. Lee, 470 U.S.
at 760 ("The reasonableness of . . . intrusions beneath the skin
depends on a case-by-case approach, in which the individual's
interests in privacy and security are weighed against society's
interests in conducting the procedure.").
Turning to that balancing task, respondents have identified
an interest protected by the Fourth Amendment: their right to
bodily integrity and privacy. See generally Schmerber v.
California, 384 U.S. 757 (1966). In response, the government has
20 demonstrated that the evidence sought: (1) is plainly relevant to
a legitimate and ongoing investigation being conducted by the
grand jury; (2) is described with sufficient particularity to
notify respondents of precisely what is sought; (3) is not sought
to harass respondents or to impose some burden because of their
social or political views; (4) could be probative in identifying
or eliminating persons who may have participated in, or may have
knowledge of or evidence relating to, the crimes under
investigation; (5) can be obtained from respondents with very
minimal invasion of their bodily integrity (i.e., by simply
swabbing the inside of the mouth); and (6) can be obtained with
no risk of physical pain, injury, or embarrassment to
respondents, and with the most minimal personal inconvenience.
This situation is, therefore, dramatically different from
that presented in Winston v. Lee, supra, in which the government
(not a grand jury) sought to compel a suspect to undergo
potentially dangerous and highly invasive surgery to remove a
bullet, of minimal comparative evidentiary value, from his
shoulder.
On balance, therefore, the court concludes that the grand
jury subpoenas at issue are neither "unreasonable" nor otherwise
21 properly subject to an order to quash. The grand jury's
justification for issuance and enforcement of those subpoenas is
more than adequate to warrant denial of respondents' motion to
quash.
Conclusion
For the foregoing reasons, respondents' motion to quash
(document no. 10) is denied. Respondents are hereby ORDERED to,
and SHALL comply with the subpoenas at issue, without fail, not
later than December 11, 1998. or as otherwise directed by the
grand jury, by providing the grand jury with major case prints,
hair samples, and saliva samples in accordance with procedures
established by the grand jury or the United States Attorney.
Failure to comply will expose respondents to coercive contempt
sanctions.
SO ORDERED
Steven J. McAuliffe United States District Judge
December 4, 1998
cc: United States Attorney Paul McEachern, Esq. Joseph Haas, pro se