United States v. Alan McSurely United States of America v. Margaret McSurely

473 F.2d 1178, 154 U.S. App. D.C. 141, 1972 U.S. App. LEXIS 6203

Opinions

MATTHEWS, Senior District Judge:

On June 26, 1970, before a jury in the United States District Court for the District of Columbia, Alan and Margaret McSurely (husband and wife), the appellants herein, were each found guilty of two counts of contempt of Congress.¹ Imprisonment terms were imposed upon them. These convictions provide the basis for their appeals.

The alleged contempts of which appellants were convicted occurred before the Permanent Subcommittee on Investigations of the United States Senate Committee on Government Operation (hereinafter “the Subcommittee”).² Subpoenas directing the appellants to testify before the Subcommittee, and to bring with them and produce certain records³ were issued by the Subcommittee Chairman, Senator John L. McClellan of Arkansas. Appellants appeared before the Subcommittee on March 4, 1969, but refused to comply with the Chairman’s demand for production of these documents. Chairman McClellan then advised the appellants that the subpoenas would remain in full force and effect and that appellants were ordered and directed to comply with the subpoenas by noon, Friday, March 7. Neither appellant appeared at any time after this March 4 hearing, nor were the subpoenaed documents produced as directed by the Chairman.

Subsequently, on March 24, 1969, the Subcommittee voted to seek contempt citations against appellants. The full Committee presented the matter to the Senate by resolution. This resolution was passed by the Senate on May 5, 1969,⁴ and certified to the United States Attorney for the District of Columbia to proceed against appellants for their con-tempts. Indictments followed, and appellants were tried and convicted on June 26, 1970. Their appeals have been consolidated.

This is yet another stage in a long and complex siege of litigation which began in Kentucky in August of 1967. From the time the Kentucky officials first seized their papers and personal property, appellants have protested the use thereof in every official action taken against them, asserting their Fourth Amendment rights and resisting what they believed to be official lawlessness. For more than three years the courts have had occasion to pass upon their claims, and appellants have been consistently sustained until their convictions for contempt (the subject of this appeal) ..

Appellants base their appeal on a variety of reasons and reasoning. But the thrust of their appeal is upon the basic constitutional issue of unlawful search and seizure, not only by the Kentucky officials, but later by a United States Senate Subcommittee. It is their position that their refusal to comply with the Subcommittee subpoenas cannot support contempt convictions when the subpoenas themselves were based upon an unauthorized inspection by the Subcommittee investigator of documents which had been seized by state officials in Kentucky in violation of the Fourth Amendment and under an unconstitutional statute.4a

I

FACTUAL BACKGROUND

Alan and Margaret McSurely were field organizers for Southern Conference Educational Fund, Inc., in Pike County, Kentucky. Alan McSurely was also a field organizer for the National Conference of New Politics and had distributed literature of Vietnam Summer, both unincorporated associations. According to the McSurelys, their official duties were to investigate the socio-eco-political milieu of Pike County, to inform the people of their rights, and to help local citizens organize to overcome their problems.

The search and seizure challenged here was initiated under a section of the sedition statute of Kentucky, which reads:

“KRS 432.040 — Any person who by word or writing advocates, suggests or teaches the duty, necessity, propriety or expediency of criminal syndicalism or sedition, or who prints, publishes, edits, issues or knowingly circulates, sells, distributes, publicly displays or has in his possession for the purpose of publication or circulation any written or printed matter in any form advocating, suggesting or teaching criminal syndicalism or sedition, or who organizes or helps to organize, or becomes a member of or voluntarily assembles with any society or assemblage of persons that teaches, advocates or suggests the doctrine of criminal syndicalism or sedition shall be confined in the penitentiary for not more than twenty-one years, or fined not more than ten thousand dollars, or both.”

On August 11, 1967, acting under this statute and pursuant to an affidavit, a Pike County Judge issued a search warrant for the premises occupied by appellant Alan McSurely and a warrant for his arrest. That same night officials of Pike County and their deputies conducted a search of the McSurely residence; they seized and impounded 564 loose books, twenty-six posters, twenty-two boxes of books, pamphlets, and other private and published documents found in their home. “They also impounded a suitcase of clothes and several personal items which were caught up in the whirlwind of the search.” ⁵ Both Alan and Margaret McSurely were arrested and charged with violation of the sedition statute.⁶

Following their arrest the McSurelys filed a complaint in the United States District Court for the Eastern District of Kentucky, challenging the constitutionality of the Kentucky sedition statute and requesting that the matter be heard by a three-judge court pursuant to 28 U.S.C. §§ 2281-84. On September 1, 1967, a three-judge district court was convened.

On September 11, the Grand Jury of Pike County returned an indictment against appellants charging them with seditious activities against the Commonwealth in violation of KRS 432.040. However on September 14, 1967, the three-judge court entered an order, one judge dissenting, declaring the Kentucky sedition statute unconstitutional and permanently enjoining the Commonwealth of Kentucky and the Pike Circuit Court from proceeding further with the prosecution of the McSurelys.⁷

In its order the court directed the Commonwealth Attorney for Pike County, one Ratliff, to continue to hold in safekeeping all materials seized from the McSurelys until final disposition of the case by appeal or otherwise. No appeal was ever filed.

Following the above court order, the Assistant Counsel for the aforesaid Senate Subcommittee telephoned Commonwealth Attorney Ratliff and inquired about the seized materials belonging to the McSurelys. Prior thereto Ratliff had publicly stated that he intended to make the seized materials available to Congressional committees. As a result of this telephone conversation between the Assistant Counsel and Ratliff, a Senate Subcommittee investigator went to Pikeville on several occasions in October, 1967 (prior to the expiration of the time for appeal from the judgment of the three-judge court), and visited Ratliff, inspected the seized materials, made notes therefrom, and was provided copies of 234 documents. Further, the investigator was allowed to take these copies with him to the Subcommittee’s offices in Washington, D. C. At no time was there any attempt to contact the McSurelys, their counsel, or seek formal approval from the court permitting the investigator access to these materials.⁸ Also, it is stipulated that the Subcommittee investigator was not only aware of the three-judge court order of September 14, but he, in fact, examined the file of the case on October 9, and requested the Clerk to mail a copy of said order and the Inventory of seized materials to him at his Washington office.⁹

Upon the investigator’s return to Washington with the copies of appellants’ documents, Senator McClellan, Subcommittee Chairman, determined that certain of the books, records, documents, correspondence and other papers belonging to appellants and in the possession of Commonwealth Attorney Ratliff would be of value to the Subcommittee investigation of the riots occurring in Nashville, Tennessee, in April, 1967. The contested subpoenas issued by the Subcommittee to the McSurelys were in fact the product of this inspection and search of the documents by the Subcommittee’s investigator.¹⁰ The initial subpoenas were signed by Chairman McClellan on October 16, 1967, served upon Ratliff on October 17, 1967, and upon appellants on October 19, 1967— the latter date being five days after the expiration of the time permitted by law for the Commonwealth to appeal the three-judge court order of September 14, 1967.

On the day appellants received the subpoenas, they filed a motion seeking a temporary restraining order to prohibit the Commonwealth Attorney from releasing the subpoenaed materials to the Subcommittee. Additionally, they filed a separate motion seeking an order directing the Commonwealth Attorney to return the seized materials. Between October 1967, and July 1968, there was substantial litigation involving the disposition of these documents, culminating in a decision rendered by the Sixth Circuit Court of Appeals.¹¹ The Sixth Circuit ruled that the District Court for the Eastern District of Kentucky erred in refusing to return to appellants their documents which were seized in aid of a prosecution under an unconstitutional statute, since the time for appeal had expired. However, the Court declined to render an advisory opinion as to whether the Subcommittee subpoenas were valid or violated constitutional rights of the McSurelys, stating: “These questions may be adjudicated under the appropriate procedure for challenging subpoenas of Congressional Committees.”¹² Acting pursuant to the Sixth Circuit decision, the District Court directed Ratliff to return all of the seized materials to appellants at 2:00 p.m. on November 8. 1968. Immediately after these materials had been returned, the McSurelys were served with new subpoenas prepared by the Subcommittee. The new subpoenas (similar to the original ones) are those with which the McSurelys refused to comply before the Subcommittee and which form the basis for the contempt convictions.

With this background, we turn to the primary issues presented on this appeal.

II

THE PRIMARY ISSUES

First, the McSurelys argue the invalidity of the Kentucky search and seizure on two grounds: (1) because made under an invalid statute (the Kentucky sedition law); and (2) because the affidavit supporting the search warrant failed to state circumstances establishing probable cause, and the warrant did not particularly describe the things to be seized.

As to the first ground, the Government has specifically conceded that the original seizure of documents was made pursuant to a statute which subsequently was declared unconstitutional. As to the second, ground, the Government has ignored the McSurelys’ claim that the affidavit and warrant were insufficient and has made no argument whatsoever to support the validity of the affidavit and warrant. Instead, the Government has sought to divert the issue. Since the three-judge court held the Kentucky sedition statute to be unconstitutional after the search and seizure of the Mc-Surely documents, the Government argues that the statute was presumptively constitutional at the time the search and seizure was made, and hence, that the search and seizure should not be made retroactively invalid. The fallacy of the Government’s argument is that it assumes the validity of the search and seizure when made- — a premise hotly contested by the McSurelys.

Clearly the question of the validity of the search and seizure must first be decided. If the Kentucky affidavit and warrant are invalid, as contended by the McSurelys, that would foreclose any question of “retroactivity” to be accorded the court decision holding the Kentucky sedition statute unconstitutional.

Next, the McSurelys argue that the information upon which the Subcommittee subpoenas are based stems from action taken by a Subcommittee investigator who, without a shadow of authority from anyone in a position to give it, examined and made copies of the McSurely documents which had been illegally seized in Kentucky, said investigator having full knowledge at the time that the statute under which these documents were seized had been declared unconstitutional; and therefore, that the Subcommittee subpoenas are the product of an invasion of their Fourth Amendment rights.

Finally, relying on Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L. Ed. 652 (1914), and Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), the McSurelys maintain that because the Subcommittee subpoenas are based upon information obtained by an invasion of their Fourth Amendment rights, the Government should have been barred at the contempt trial from using as evidence the Subcommittee subpoenas.

The Government has consistently maintained that there has been no invasion of the McSurelys’ Fourth Amendment rights, either by the Kentucky officials or by the Subcommittee. But in any event, it argues that the cited cases relied upon by the McSurelys are inapplicable to the Subcommittee subpoenas.

We now begin our examination of the search and seizure by the Kentucky officials of the McSurely documents. As the Supreme Court has stated:

“In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out.” ¹³

III

THE SEARCH AND SEIZURE

A. Sufficiency of the Affidavit in Support of the Warrant

The Fourth Amendment to the United States Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The affidavit¹⁴ contains a full description of the location of the premises subject to the search.

The affidavit is of one James Compton, stating that he is a reputable citizen of Pike County, and that he has reasonable grounds to suspect and believe “that seditious printed matter and printing press or other machinery to print and circulate seditious matter is being kept on the premises of Alan MeSurely.” He states the grounds for his belief or information to be that “[o]n August 4, 1967 he was informed by James Madison Compton, a reputable citizen of Pike County, Kentucky, that on said August 4, 1967, at approximately 12:00 noon, that the said James Madison Compton did observe certain seditious materials, being pamphlets, films, pictures and articles or equipment used in the teaching of sedition and printing and circulating seditious matter at or on the above described premises * *

The Fourth Amendment’s proscriptions are enforced against the States through the Fourteenth Amendment, and the standard of reasonableness is the same under the Fourth and Fourteenth Amendments. Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

An officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough. Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 78 L.Ed. 159 (1933).

The purpose of the affidavit is to enable the magistrate to determine whether the “probable cause” required to support a warrant exists. The magistrate must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant’s mere conclusion. Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).

When an affidavit is based on “hearsay” information, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the “suspect” was engaged in illegal conduct, and some of the underlying circumstances from which the affiant concluded that the informant was “credible” and his information “reliable.” Otherwise, the inferences from the facts which lead to the complaint will be drawn, not by a neutral and detached magistrate as the Constitution requires, but instead by a police officer who is in the business of ferreting out crime. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In Aguilar, the affidavit stated:

“Affiants have received reliable information from a credible person and do believe that heroin * * * and other narcotics * * * are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.” 378 U.S. at 109, 84 S.Ct. at 1511.

The Court found the vice in this affidavit to be that the mere conclusion that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit contained no affirmative allegation that affiant spoke with personal knowledge of the matters contained therein. For all that appeared, the source merely suspected, believed, or concluded that narcotics were in petitioner’s possession. The magistrate could not judge from this information alone that an adequate showing of probable cause existed. The application failed to set forth any of the underlying circumstances necessary to enable the magistrate to independently judge the informant’s conclusions. The affiant did not attempt in any way to support the claim of the informer’s reliability and reputation for truthfulness except for the bald conclusion that he was “credible” and his information was “reliable.”

Testing the Compton affidavit here against the foregoing guidelines, we observe, first, that the magistrate had before him the sworn statement of “James Compton”, who merely states that he is “a reputable citizen of Pike County.” There is nothing to indicate his capacity in the investigation of the McSurelys. While the veracity of an affidavit is not questioned when the affiant is one of the investigating police officers,¹⁵ this is not necessarily true of someone who simply asserts that he is a reputable citizen of the County. Next, the affiant states that he suspects and believes that “seditious” matter is being kept on the premises of Alan McSurely. This much, standing alone, is insufficient under the teachings of Nathanson.

Add to this the affiant’s statement that he bases his “suspicion and belief”, not on his own observations, but on information received from another party, whom he states to be a “reputable citizen.” This is precisely the type of conclusional statement which the Aguilar Court found inadequate, and from whence came the rule that when hearsay information is involved, the affiant must state some of the underlying circumstances from which he concluded that the informant was “credible” and his information “reliable.” In Spinelli v. United States,¹⁶ the Court said that “[t] hough the affiant [an FBI officer] swore that his confidant was ‘reliable,’ he offered the magistrate no reason in support of this conclusion.” The same deficiency obtains here. The affidavit does not meet the standards of either Aguilar or Spinelli.

Second, there is an additional reason for finding the affidavit insuffient. The Kentucky sedition statute, supra, from whence this search and seizure sprang, made it a criminal offense merely to possess, with intent to circulate, literature on the subject of “sedition.” One definition of “sedition” found in the 1920 Act is “the advocacy or suggestion by word, act, deed or writing * * * of the change or modification of the Government of the United States or of the Commonwealth of Kentucky, or of the Constitution or laws of either of them, * * * by means other than by lawful means * * ¹⁷ (Emphasis added.) This definition would at least purport to guide a magistrate in determining what constitutes “seditious materials”, the possession of which was an essential element of the crime. But affiant herein speaks only of “seditious” materials. His informant speaks only of “seditious” materials. Even assuming arguendo the validity of the Kentucky sedition statute¹⁸ how could a “neutral and detached” magistrate glean from the contents of the affidavit that the pamphlets, films, .pictures and articles observed by the informant on McSurely’s premises were, by definition, “seditious”; or that the articles and equipment which informant saw were such as are used in the teaching of “sedition” and the printing and circulating of “seditious” matter? There is nothing in the affidavit whereby the magistrate can make his own independent decision as to whether these papers and equipment are “seditious” and in violation of law. Further, there is nothing in the affidavit whereby the magistrate can determine what the informant considered to be “seditious” materials. The magistrate was left to accept the naked conclusion of the informant that the materials viewed were “seditious.” He became then nothing more than the “rubber stamp for the police”, which was condemned in Ventresca, supra.19

In Keyishian v. Board of Regents,²⁰ the Supreme Court struck down a New York statute as unconstitutionally vague, which, without defining the words “treasonable or seditious” made “treasonable or seditious” utterances or acts grounds for dismissal from the public school system. Even by equating “sedition” with “criminal anarchy” defined in the New York Penal Law § 160 as the “doctrine that organized government should be overthrown by force or violence, * * * or by any unlawful means” this still left the crucial question of where the line was drawn between “seditious” and nonseditious utterances or acts. The Court concluded that the statute was of the “quality of ‘extraordinary ambiguity,’ ” was “lacking in ‘terms susceptible of objective measurement’ ”, and that “[m]en of common intelligence must necessarily guess at its meaning and differ as to its application.” ²¹ The ambiguity, the lack of an objective measurement standard, the guess work at meaning by equally competent persons with differing conclusions could not be exemplified more clearly than the allegedly “seditious materials” referred to in the affidavit before us.

For the reasons stated, we find that the affidavit falls short of minimum constitutional standards, and is insufficient to support a finding of probable cause.

B. The Warrant.

The Fourth Amendment not only prohibits the issuing of warrants except upon probable cause (here, probable cause that the McSurelys had in their possession with intent to circulate “seditious materials”), but it requires that said warrant particularly describe the “things to be seized.” In Go-Bart Co. v. United States,²² the Supreme Court said at page 357, 51 S.Ct. at page 158:

“This prevents the issue of warrants on loose, vague or doubtful bases of fact. It emphasizes the purpose to protect against all general searches. Since before the creation of our government, such searches have been deemed obnoxious to fundamental principles of liberty. They are denounced in the constitutions or statutes of every State in the Union.”

The warrant before us directs the “searchers” to seize “seditious matter or printing press or other machinery to print or circulate seditious matter.”²³ Perhaps due, at least in part, to the vagueness of the term “seditious matter” used in the warrant, it is nonetheless readily apparent that pursuant thereto a general search was made. The purported “seditious materials” seized, voluminous enough to fill one-third of a jail cell,²⁴ included the personal clothing of Mrs. McSurely, boxes of office supplies, cancelled checks, unused checkbooks, college examination and review notes, the McSurely’s personal love letters, and their marriage certificate. One box contained 104 copies of Handbill Literature, all of which was published by the Commonwealth of Kentucky. There were 564 loose books impounded, which included “Tricks and Train ing for Cats”, several books of poetry, one of which was “Poetry and Prose” by William Cullen Bryant, and the “Washington Yellow Page Telephone Directory.” In essence, the McSurely home was ransacked and appellants were cleaned out of all their papers and books. No “printing press or other machinery to print or circulate seditious matter” is listed on the inventory of things seized.

The above facts are remarkably comparable to those in Stanford v. Texas.²⁵ In Stanford a local magistrate issued a warrant pursuant to § 9 of Art. 6889-3A of the Vernon’s Ann. Revised Civil Statutes of Texas, known as the Supression Act, which authorizes the issuance of a warrant “for the purpose of searching for and seizing any books, records, pamphlets, cards, receipts, lists, memo-randa, pictures, recordings, or any written instruments showing that a person or organization is violating or has violated any provision of this Act.”25a The act is a many-faceted law which, among other things, outlaws the Communist Party and creates various individual criminal offenses for Communist activity. The warrant specifically described the premises to be searched, stated affiants’ belief that the premises contained “books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas”25b which were unlawfully possessed in violation of law, and ordered the executing officers “to enter immediately and search the above described premises for such items listed above unlawfully possessed in violation of Article 6889-3 and Article 6889-3A, Revised Civil Statutes, State of Texas, and to take possession of same.” ²⁶

The officers proceeded to the described premises,²⁷ and spent some four hours collecting about half the books in the house. While most of the books seized were stock from petitioner's business, the officers also took a number of books from his personal library.

“The books and pamphlets taken comprised approximately 300 separate titles, in addition to numerous issues of several different periodicals. Among the books taken were works by such diverse writers as Karl Marx, Jean Paul Sartre, Theodore Draper, Fidel Castro, Earl Browder, Pope John XXIII, and Mr. Justice Hugo L. Black. The officers also took possession of many of the petitioner’s private documents and papers, including his marriage certificate, his insurance policies, his household bills and receipts, and files of his personal correspondence. All this material was packed into 14 cartons and hauled off to an investigator’s office in the' county courthouse. The officers did not find any ‘records of the Communist Party’ or any ‘party lists and dues payments.’ ” ²⁸

In a motion seeking the annulment of the warrant and the return of his property, petitioner attacked the “search and seizure” on a number of grounds, among which were that the statutes were unconstitutional, that federal law had preempted state law, that the warrant did not sufficiently specify the offense, that the warrant was not issued upon probable cause. Without pausing to assess the substantiality of these grounds, the Court rested its decision upon just one ground, saying “we think it, is clear that this warrant was of a kind which it was the purpose of the Fourth Amendment to forbid — a general warrant.” ²⁹ Speaking to the Fourth Amendment’s mandate that the warrant particularly describe the things to be seized, the Court said:

“These words are precise and clear. They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever ‘be secure in their persons, houses, papers, and effects’ from intrusion and seizure by officers acting under the unbridled authority of a general warrant.” ³⁰

The Court said that what the history of the Fourth Amendment indispensably teaches is “that the constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain. (Citations omitted.) No less a standard could be faithful to First Amendment freedoms. The constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant is dramatically underscored by what the officers saw fit to seize under the warrant in this case.” ³¹

Reflecting on the history of the Fourth Amendment, the Court summarized the landmark case of Entick v. Carrington.³² “John Entiek was the author of a publication called Monitor or British Freeholder. A warrant was issued specifically naming him and that publication, and authorizing his arrest for seditious libel and the seizure of his ‘books and papers.’ The King’s messengers executing the warrant ransacked Entick’s home for four hours and carted away quantities of his books and papers. In an opinion which this Court has characterized as a wellspring of the rights now protected by the Fourth Amendment,³³ Lord Camden declared the warrant to be unlawful. ‘This power,’ he said, ‘so assumed by the secretary of state is an execution upon all the party’s papers, in the first instance. His house is rifled; his most valuable secrets are taken out of his possession, before the paper for which he is charged is found to be criminal by any competent jurisdiction, and before he is convicted either of writing, publishing, or being concerned in the paper.’ ” ³⁴

“The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” (Emphasis added.) Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927).

The warrant in the present case, which authorized the seizure of “seditious matter or printing press or other machinery to print or circulate seditious matter” is so vague and broad as to be the very antithesis of the “particularity” required by the Fourth Amendment and the teachings of the above authorities. That a general search was made under authority of this warrant is here, as it was in Stanford, “dramatically underscored by what the officers saw fit to seize” under it.³⁵ Having been ordered to seize “seditious matter” the officers seized and impounded 564 loose books, twenty-six posters, twenty-two boxes containing books, pamphlets and other private and published documents, a suitcase of clothes and other personal items of the McSurelys, whom they arrested.³⁶

Summing up in the Stanford opinion, the Supreme Court said:

“Two centuries have passed since the historic decision in Entiek v. Carring- ton, almost to the very day. The world has greatly changed, and the voice of nonconformity now sometimes speaks a tongue which Lord Camden might find hard to understand. But the Fourth and Fourteenth Amendments guarantee to John Stanford that no official of the State shall ransack his home and seize his books and papers under the unbridled authority of a general warrant — no less than the law 200 years ago shielded John Entick from the messengers of the King.” ³⁷

The same guarantee shields Alan and Margaret McSurely from the unlawful search and seizure of the Kentucky officials.

It is our conclusion that the warrant did not particularly describe the “things” to be seized, and in its execution by the Kentucky officials as a “general” warrant, resulted in a flagrant abuse of appellants’ constitutional right to be protected in their home from unreasonable searches and seizures. In the trial of the McSurelys for contempt the District Court clearly erred in concluding that the Kentucky search and seizure was lawful.³⁸

In light of this conclusion, we now turn to the contempt convictions.

IV

THE CONTEMPT CONVICTIONS

The trial court’s “FINDINGS OF FACT AND CONCLUSIONS OF LAW ON DEFENDANTS’ SUPPLEMENTAL MOTION TO DISMISS INDICTMENTS” include the following Finding of Fact:

“Although it previously took a contrary position, the government has now conceded for purposes of this case that, but for said seizure by the state officials, the subcommittee and its members and agents would not have known of the existence of the documents and hence that the subpoenas directing their production before the subcommittee would not have been issued.” 38a

It is appellants’ position that their refusal to produce the documents demanded in subpoenas issued by the Subcommittee will not support a contempt of Congress conviction, where, as here, all of the Subcommittee’s knowledge pertaining to the existence of the subpoenaed documents, as well as the content thereof, was the fruit of an unconstitutional search and seizure conducted by state officials.

As previously stated³⁹ the day after the raid on the McSurelys, Commonwealth Attorney Ratliff announced publicly that Congressional Committees could have access to the seized materials.

On September 14, 1967, a three-judge federal district court entered an order holding unconstitutional the Kentucky statute under which the state criminal proceeding against the McSurelys was based, and declaring the statute

“upon its face overbroad, so vague and of such sweeping application as to run afoul of the provisions of the United States Constitution, which requires narrow and specific regulation in the field of protected activity.”⁴⁰

That court further found that under the circumstances presented, the decision in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) was applicable, and enjoined Kentucky, its courts, and officials from taking any further action or proceeding against the McSurelys under the sedition statute. The court further ordered

“that all books, papers, documents and other material now in the custody of the Commonwealth Attorney of Pike County, Ratcliff, reflected by the Inventory filed in this action continue to be held by him in safekeeping until final disposition of this case by appeal or otherwise.” ⁴¹

Following the above-mentioned court order, Lavern Duffy, Assistant Counsel for the Subcommittee, telephoned Mr. Ratliff and asked if he had the seized materials.

Thereafter on several occasions in October 1967, and prior to the expiration of the time for appeal from the judgment of the three-judge court, John Brick, investigator for the Subcommittee visited Mr. Ratliff, Commonwealth Attorney, who was holding the seized materials for “safekeeping” pursuant to the above-mentioned court order. Without getting authority from anyone for so doing, Mr. Ratliff gave the Subcommittee investigator access to the seized materials. A locked door was opened for the investigator. He entered and inspected the documents, made notes therefrom and received xeroxed copies of some of them from one of Mr. Ratliff’s subordinates. Furthermore, the investigator was allowed to take back to his offices in Washington, D. C., over two hundred of these documents.41a

“Unjustified search and seizure violates the Fourth Amendment, whatever the character of the paper; whether the paper when taken by the federal officers was in the home, in an office, or elsewhere ; whether the taking was effected by force, by fraud, or in the orderly process of a court’s procedure.”⁴²

Since the uninvited ear is a “search and seizure” within the ambit of the Fourth Amendment,⁴³ surely the uninvited eye of the Subcommittee’s investigator is likewise a “search and seizure.”

From the facts, the conclusion is inescapable that the subpoenas issued by the Subcommittee for the production of the McSurely documents were the product of the unauthorized inspection and search of the documents by an agent of the Subcommittee itself. However, the trial court reached a different conclusion.

In summary the trial court held that the state officials, having lawful custody of the seized documents, lawfully gave the Subcommittee’s investigator permission to inspect and search them and to transport them all the way to the Subcommittee’s offices in Washington.⁴⁴ That activity might more appropriately be described (1) as an unconstitutional exercise of power by the Commonwealth attorney, Ratliff, and his subordinates at a time when Ratliff had no right whatever in and to these papers except to hold them in safekeeping (pending appeal) pursuant to the order of the three-judge court; and (2) as an unlawful encroachment by the Subcommittee investigator himself upon the rights of the McSurelys under the Fourth Amendment. Not only was the search and seizure of appellants’ property by the Commonwealth officials illegal, but the subsequent search and use of that property by the Subcommittee investigator, with the cooperation of the Commonwealth attorney, violated appellants’ constitutional right to have their property safe and secure from unwarranted inspections. Thus, the framing by the Subcommittee of the subpoenas relied upon here for conviction of the McSurelys was based upon information derived from unconstitutional searches, both by state officials and by the Subcommittee’s investigator.

The trial court seems to have taken the position that whether or not the information concerning the documents subpoenaed was obtained by unconstitutional means, the “exclusionary rule”, which forbids the use of unlawfully seized items as evidence against the victim of the seizure, applies only to criminal prosecutions and, hence, is not applicable to legislative subpoenas. There is nothing in logic nor in the history of the “exclusionary rule” to support its inapplicability to legislative subpoenas framed upon information derived by the Government through a previous unconstitutional search. As Mr. Justice Brandéis has written:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”⁴⁵

The “exclusionary rule” has its roots in Weeks v. United States.⁴⁶ There the Supreme Court ruled that evidence obtained as a result of an illegal arrest, search or seizure, conducted by or participated in by federal authorities, was inadmissible in any federal court. The Court said:

“The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws.” ⁴⁷ (Emphasis supplied.)

“The striking outcome of the Weeks case and those which followed it was the sweeping declaration that the Fourth Amendment, although not referring to or limiting the use of evidence in courts, really forbade its introduction, if obtained by government officers through a violation of the Amendment.”⁴⁸ In Mapp v. Ohio,⁴⁹ the Supreme Court said that without an “exclusionary rule” the Fourth Amendment would be merely a form of words, valueless as a freedom against unreasonable invasions upon personal privacy, and it held that the “exclusionary rule” was an integral part of the Fourteenth Amendment as well as the Fourth Amendment, making it binding on all of the states.

The purpose of the “exclusionary rule” is “to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” ⁵⁰

The Supreme Court has recognized that the Constitutional requirement against unreasonable searches and seizures applies to Congressional hearings. In Watkins v. United States,⁵¹ the Court said:

“It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation. This, of course, assumes that the constitutional rights of witnesses will be respected by the Congress as they are in a court of justice. The Bill of Rights is applicable to investigations as to all forms of governmental action. Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press, religion, or political belief and association be abridged.” (Emphasis supplied.)⁵²

We have taken the language of Watkins to mean that “the consequences of the denial of these rights are no less severe merely because their denial is brought about by a congressional subcommittee. For example, an unreasonable search and seizure is no less illegal if conducted pursuant to a subpoena of a congression al subcommittee than if conducted by a law enforcement official.”⁵³

In Silverthorne Lumber Co. v. United States,⁵⁴ the Supreme Court held that the Fourth Amendment protects a party from compulsory production of papers when the information upon which the subpoenas were framed was derived by the Government through a previous unconstitutional search. The Court said:

“The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.”⁵⁵

CONCLUSION

The contempt trial of the McSurelys was a criminal proceeding. The basis of their convictions rested upon the Subcommittee’s subpoenas. The information upon which the Subcommittee subpoenas were framed was derived by the Subcommittee through a previous unconstitutional search and seizure by the Kentucky officials and the Subcommittee’s own investigator. We hold that the “exclusionary rule” applies to these subpoenas and that it was error for the District Court to receive them in evidence at the trial.

The judgments of conviction of the McSurelys are reversed and the case is remanded to the District Court with instruction to enter judgments of acquittal.

Reversed and remanded.

Footnotes

1

. The pertinent statute, 2 U.S.C.A. § 192, states:

“Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.”

2

. The Subcommittee, pursuant to its basic enabling resolutions, was continuing its investigation into the subject of riots, and civil and criminal disorders throughout the United States.

3

. The records sought in the subpoenas included documents relating to certain meetings held in Nashville, Tennessee on April 5 through 8, 1967, prior to the civil disturbances which occurred in Nashville later that month; documents pertaining to appellants’ membership, employment, or activities in five political action organizations, viz: Southern Conference Educational Fund; National Conference for New Politics; Vietnam Summer; Appalachian Volunteers; United Planning Organizations of Metropolitan Washington, D. C.; records and documents which relate to past and present membership in or employment by the Student NonViolent Coordinating Committee; records and documents which relate to membership in and the activities of Students for a Democratic Society and/or Southern Students Organizing Committee. Schedule A, listing the documents subpoenaed by the Subeommitte, is reproduced in Defendants’ Appendix, Vol. 2, p. 902.

4

. 115 Cong.Rec. 11278 (1969). •

4a

. Appellants also raise questions as to whether the subpoenas were overly broad; whether appellants properly stated their objections to the Subcommittee; whether the subpoenas infringed upon appellants’ First Amendment rights; whether the documents were pertinent to matters under inquiry by the Subcommittee; whether the authority of the Subcommittee embraced the subject matter about which inquiry was being made; whether appellants’ alleged contemptuous conduct before the Subcommittee on March 4, 1969, was negated by the Subcommittee’s granting of three additional days in which to comply with the subpoenas; whether inaction by appellants on March 7, 1969, constituted a second contempt; whether misrepresentations made by the prosecutor to the Grand Jury invalidated the indictments returned against appellants; and, finally, whether the Court at the contempt trial committed various errors alleged by appellants.

5

. McSurely v. Ratliff, 282 F.Supp. 848, 850 (E.D.Ky.1967).

6

. There was no warrant for the arrest of Margaret McSurely. The affidavit in support of the warrant does not mention her. Defendants’ Appendix, Vol. 2, pp. 943, 945.

7

. McSurely v. Ratliff, supra note 5. Circuit Judge Combs, who delivered the opinion of the three-judge court stated at page 849:

“Kentucky’s sedition law was passed in 1920 in the aftermath of World War I and the Bolshevik Revolution in Russia. The law was amended slightly in 1922, otherwise it has remained unchanged through the years. As would be expected, the statute is broad and comprehensive. It was good politics to be against Communism. The Governor signed the bill but was fearful that it drew too much water. He publicly stated that it ‘goes far afield and far beyond syndicalism and sedition.’ He thought the courts would ‘take out of this law the sections which make it dangerous’, and concluded with this statement: ‘Those who seek its [government] overthrow by force or violence, or those who counsel resistance to its laws by unlawful means must be destroyed, but the right of free speech is the blood-bought heritage of every citizen: it is the palladium of our liberties, and it must and shall be preserved.’ ”

And at page 852, Judge Combs observed:

“It is difficult to believe that capable lawyers could seriously contend that this statute is constitutional. * * *

In addition, the conclusion is inescapable that the criminal prosecutions were instituted, at least in part, in order to stop [McSurelys’] organizing activities in Pike County.”

8

. Ratliff indicated that prior to granting the Subcommittee investigator permission to inspect the documents, he sought the permission of the judges on the three-judge panel. He failed to locate two of them, but contacted the third. Ratliff also acknowledged that he did not seek the approval of the United States Marshal for the district who was co-custodian for the seized materials. Defendants’ Appendix, Vol. 1, pp. 406, 408. However, there is no evidence that Ratliff received any formal permission in the form of a court order authorizing inspection of the McSurelys’ seized property by the Subcommittee investigator.

9

. Defendants’ Appendix, Vol. 2, p. 1032, Stipulation No. 10.

10

. The government conceded for purposes of this case that, but for said seizure by the state officials, the Subcommittee and its members and agents would not have known of the existence of the documents and hence that the subpoenas directing their production before the Subcommittee would not have been issued. See Finding of Fact No. 3, Defendants’ Appendix, Vol. 2, pp. 971-72.

11

. McSurely v. Ratliff, 398 F.2d 817 (6th Cir. 1968).

12

. Id. at 818.

13

. Elkins v. United States, 364 U.S. 206, 223-224, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960).

14

. The affidavit is set out in full in Defendants’ Appendix, Vol. 2, p. 945.

15

. United States v. Ventresea, 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

16

. 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969).

17

. Carroll’s Kentucky Statutes, Baldwin’s 1936 Revision.

18

. The statute was held unconstitutional in McSurely v. Ratliff, supra note 5.

19

. Note 15, 380 U.S. at 109, 85 S.Ct. 741.

20

. 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed. 2d 629 (1967).

21

. Id. at 604, 87 S.Ct. at 684.

22

. 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931).

23

. The “warrant” is reproduced in Defendants’ Appendix, Vol. 2, p. 943.

24

. The inventory of materials seized and impounded by the Kentucky State Officials is found in Defendants’ Appendix, Vol. 2, pp. 946-60.

25

. 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965).

25a

. Id. at 477, 85 S.Ct. at 507.

25b

. Id. at 477-478, 85 S.Ct. at 508.

26

. Id. at 479, 85 S.Ct. at 508.

27

. The “described premises” were where petitioner resided and carried on a licensed mail order book business under the name of “ALU POINTS OF VIEW.” Id.

28

. Id. at 479-480, 85 S.Ct. at 509.

29

. Id. at 480, 85 S.Ct. at 509.

30

. Id. at 481, 85 S.Ct. at 509.

31

. Id. at 485, 85 S.Ct. at 511.

32

. 19 How.St.Tr. 1029 (1765).

33

. Boyd v. United States, 116 U.S. 616, 626-627, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

34

. 379 U.S. at 483-484, 85 S.Ct. at 511.

35

. Stanford v. Texas, supra note 25, 379 U.S. 485, 85 S.Ct. 512.

36

. See pages 1181, 1182 supra.

37

. Stanford v. Texas, supra note 25, 379 U.S. 486, 85 S.Ct. 512.

38

. Holding as we do that the search and seizure by the Kentucky officials was unconstitutional for the reasons stated, we need not express an opinion as to whether a search warrant issued and executed pursuant to a statute subsequently declared to be unconstitutional is retroactively invalid.

38a

. Defendants’ Appendix, Vol. 2, pp. 971-972, No. 3.

39

. The events following the McSurelys’ arrest are fully set forth supra at pages 1182 through 1184. We summarize them here for clarity.

40

. The court’s order of September 14, 1967 is found in Defendants’ Appendix, Vol. 2, pp. 961-962.

41

. Id.

41a

a. Testimony of Investigator Brick, Defendants’ Appendix, Vol. 2, pp. 726-741.

42

. Olmstead v. United States, 277 U.S. 438, 477-478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (dissenting opinion of Brandeis, J.) (1928).

43

. Alderman v. United States, 394 U.S. 165, 171, 203, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

44

. The text of the court’s holding is as follows:

1. The seizure of defendants’ documents by the state officials incident to their arrest for violation of the state sedition statute was lawful at the time that [it] occurred and was not made retroactively unlawful by the subsequent decision of the district court [holding the sedition statute unconstitutional and] enjoining prosecution of defendants for violation of said statute.

* * * * *

2. The state officials therefore had lawful and valid custody of the documents until such time as they returned them to defendants pursuant to the direction of the Court of Appeals. Having lawful and valid custody, the permission which they granted to agents of the subcommittee to inspect the documents was lawful.

3. Even if the seizure by the state officials were made retroactively unlawful by the decision of the district court, that fact would not afford defendants justification for refusing to comply with the subcommittee subpoenas. The “exclusionary rule” forbids the use of unlawfully seized items only as evidence against the victim of the seizure in a criminal prosecution. * * * A legislative hearing is not a criminal prosecution, and items subpoenaed by a legislative committee are not sought as “evidence” to be used “against” the person to whom the subpoena is directed. None of the functions which the “exclusionary rule” is invoked to serve * * * would be enhanced by making the rule applicable to legislative subpoenas.

4. The fact that the subcommittee learned of the existence of the subpoenaed documents as a result of the seizure by the state officials neither invalidates the subpoenas nor provides in any way a defense to these indictments charging defendants with contempt of Congress because of their refusal to comply with the subpoenas. The subpoenas are therefore valid and admissible in evidence in this case insofar as they have been challenged on Fourth Amendment grounds based upon the prior seizure of the documents by state officials.

Defendants’ Appendix, Vol. 2, pp. 974-975.

45

. Olmstead v. United States, supra note 42, 277 U.S. 478, 48 S.Ct. 572.

46

. 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).

47

. Id. at 391-392, 34 S.Ct. at 344.

48

. Olmstead v. United States, supra note 42, 277 U.S. 462, 48 S.Ct. 567.

49

. 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081 (1961).

50

. Elkins v. United States, supra note 13, 364 U.S. 217, 80 S.Ct. 1444, 4 L.Ed.2d 669. Recently the Supreme Court held in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), that a complaint stated a federal 'cause of action under the Fourth Amendment for damages for injuries allegedly resulting to the plaintiff from the federal agents’ violation of that Amendment. The Chief Justice dissented as to the “judicially created” damage remedy. Although he does “not question the need for some remedy to give meaning and teeth to .the constitutional guarantees against unlawful conduct by government officials,”- he “would hesitate to abandon [the exclusionary rule] until some meaningful substitute is developed * * 403 U.S. 415, 91 S.Ct. 2014.

51

. 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed. 2d 1273 (1957).

52

. Id. at 187-188, 77 S.Ct. at 1179.

53

. United States v. Fort, 143 U.S.App. D.C. 255, 263, 443 F.2d 670, 678 (1970).

54

. 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

55

. Id. at 392, 40 S.Ct. at 183. Although this rather expansive language of Silver-thorne has not been universally applied, it appears that the instances where the courts have deviated from it involve proceedings either prior or subsequent to the trial, and not the trial itself. See United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966) (illegally seized evidence presented to the grand jury; indictment upheld) ; Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958) (possibility of illegally seized evidence before grand jury; indictment upheld) ; Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956) (hearsay evidence presented to grand jury; indictment upheld) ; United States v. Schipani, 435 F. 2d 26 (2d Cir. 1970) (proper for a trial judge in deciding upon sentence to consider evidence excluded from trial on Fourth Amendment grounds) ; and United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970) (proper for parole board to consider evidence at subsequent revocation hearing seized from parole violator pursuant to unlawful search).