Prepared by Lawyer Patriot
May 21, 2008
The summons requires Ms. McCammon’s appearance “to provide handwriting exemplars, photographs, fingerprints, palm prints.”
The Fifth Amendment is a bar against compelling ‘communications' or ‘testimony.’ However, there is generally no protection against compulsion to submit to handwriting, fingerprinting, or photographing for “identification” purposes.
For the IRS to demand exemplars, these exemplar should be ‘essential and necessary’ to the investigation and would be used solely as a standard of comparison to determine whether, for example, a person is the author of certain writings that are in evidence.
Since this is a tax issue, then how could fingerprints, for example, be considered “essential and necessary” to whether a person had filed tax return or how much is owed? What evidence does the IRS has – including handwriting, photographs, fingerprints, or palm prints – that the IRS suspects belong to Ms. McCammon and seeks to identify them?
In the absence of such evidence or the lack of “identification” purposes, the IRS summons would fall outside the scope that exemplars be used solely as a standard of comparison.
In addition to the Fifth, the Fourth Amendment could also be argued. To compel the production of physical evidence, the IRS is required to show that its request for exemplars is reasonable, and ‘reasonableness' included – among other things – proof that the information sought is relevant to the inquiry and that the exemplars could not be obtained from other sources. How fingerprints are relevant or “material” to the issue of a person’s tax liabilities or whether a person filed taxes?
It could be argued that the Fourth Amendment has been infringed by an overly broad request. In this case, the request for fingerprinting may be classified as an unreasonable government intrusion. Certainly, more research and review of other cases could be conducted in this regard.
From all the cases mentioned by the IRS in Ms. McCammon’s summons, none of them relates to a tax issue.
SUMMARY OF CASES
I. Schmerber
Petitioner was (1) convicted (2) for driving an automobile while under influence of intoxicating liquor. Exemplar sought: analysis of petitioner’s blood.
COURT RULING: The blood test evidence (although incriminating) was neither “testimony” nor “communications”, and it was not inadmissible on privilege grounds.
The Fifth Amendment: The right of a person to remain silent and to suffer no penalty for such silence.
The privilege is against self-incrimination and guarantees against federal infringement. The critical question is whether a person is compelled to be a witness against one’s self.
The privilege is a bar against compelling ‘communications' or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it. There are many cases in which such a distinction is not readily drawn.
Both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification….
The Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.
The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion.
The values protected by the Fourth Amendment substantially overlap those that the Fifth Amendment helps to protect. For example, if compulsory administration of a blood test does not implicate the Fifth Amendment, it plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment.
Testing procedures plainly constitute searches of ‘persons,’ and depend antecedently upon seizures of ‘persons,’ within the meaning of that Amendment.
We are dealing with intrusions into the human body rather than with state interferences with property relationships or private papers
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. In other words, the questions we must decide in this case are whether the police were justified in requiring petitioner to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness.
Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned. The requirement that a warrant be obtained is a requirement that inferences to support the search ‘be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’
The integrity of an individual's person is a cherished value of our society. That we today told that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.II. Mara
The case relates to theft of interstate shipments.
The court ruled that compelling grand jury witness to produce handwriting and printing exemplars, to be used solely as standard of comparison in order to determine whether witness was author of certain writings, did not violate Fifth Amendment privilege.
However, if the Government should seek more than the physical characteristics of the witness' handwriting – if, for example, it should seek to obtain written answers to incriminating questions or a signature on an incriminating statement – then the witness could assert his Fifth Amendment privilege against compulsory self-incrimination.
The exemplars were ‘essential and necessary’ to the grand jury investigation and would be used solely as a standard of comparison to determine whether Mara was the author of certain writings.
The Government was under no obligation to make preliminary showing of reasonableness.
To establish ‘reasonableness' the Government would have to make a substantive showing:
III. Dionisio
A special grand jury was convened to investigate possible violations of federal criminal statutes relating to gambling. The grand jury subpoenaed approximately 20 persons, including Dionisio, seeking to obtain from them voice exemplars for comparison with the recorded conversations that had been received in evidence.
The District Judge reasoned that voice exemplars, like handwriting exemplars or fingerprints, were not testimonial or communicative evidence, and that consequently the order to produce them would not compel any witness to testify against himself.
The Court of Appeals agreed with the District Court in rejecting the Fifth Amendment claims, but concluded that to compel the voice recordings would violate the Fourth Amendment. ‘Under the fourth amendment, law enforcement officials may not compel the production of physical evidence absent a showing of the reasonableness of the seizure. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 . . ..’
a ‘mere handwriting exemplar, in contrast to the content of what is written, is an identifying physical characteristic outside its protection.’ no Fifth Amendment interests are jeopardized.
The Supreme Court held that requiring grand jury witness to produce voice exemplars did not violate his Fourth or Fifth Amendment rights.
Where voice exemplar was to be used only for identification purposes and not for testimonial or communicative content of utterance, compelled production of voice exemplar did not violate grand jury witness' Fifth Amendment privilege against compulsory self-incrimination.
The Fourth Amendment guarantees that all people shall be ‘secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . ..’ Any Fourth Amendment violation in the present setting must rest on a lawless governmental intrusion upon the privacy of ‘persons' rather than on interference with ‘property relationships or private papers.’ Schmerber v. California, 384 U.S., at 767, 86 S.Ct., at 1833; see United States v. Doe (Schwartz), 2 Cir., 457 F.2d 895, 897. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the Court explained the protection afforded to ‘persons'**769 in terms of the statement in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, that ‘the Fourth Amendment protects people, not places,’ id., at 351, 88 S.Ct., at 511, and concluded that ‘wherever an individual may harbor a reasonable ‘expectation of privacy,’ . . . he is entitled to be free from unreasonable governmental intrusion.' Terry v. Ohio, supra, 392 U.S., at 9, 88 S.Ct., at 1873.
As the Court made clear in Schmerber, supra, the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels
The constitutionality of the compulsory production of exemplars from a grand jury witness necessarily turns on the same dual inquiry - whether either the initial compulsion of the person to appear before the grand jury, or the subsequent directive to make a voice recording is an unreasonable ‘seizure’ within the meaning of the Fourth Amendment.
In Katz v. United States, supra, we said that the Fourth Amendment provides no protection for what ‘a person knowingly exposes to the public, even in his own home or office . . ..’ 389 U.S., at 351, 88 S.Ct., at 511. The physical characteristics of a person's voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed 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. As **772 the Court of Appeals for the Second Circuit stated:
no intrusion into an individual's privacy results from compelled execution of handwriting or voice exemplars; nothing is being exposed to the grand jury that has not previously been exposed to the public at large.’ United States v. Doe (Schwartz), 2 Cir., 457 F.2d, at 898-899.
fingerprinting itself ‘involves none of the probing into an individual's private life and thoughts that marks an interrogation or search.’ Davis v. Mississippi, 394 U.S., at 727, 89 S.Ct., at 1398; cf. Thom v. New York Stock Exchange, D.C., 306 F.Supp. 1002, 1009.
United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99, where the Court held that the Government was required to show in an adversary hearing that its request for exemplars was reasonable, and ‘reasonableness' included proof that the exemplars could not be obtained from other sources.
Minimal requirement of reasonableness ….. In Hale v. Henkel, 201 U.S., at 77, 26 S.Ct., at 380, the Court found that such a standard had not been met, but as noted supra, at 770, that was a case where the Fourth Amendment had been infringed by an overly broad subpoena to produce books and papers.
IV. Balliro
A grand jury's directive to furnish identifying exemplars such as handwriting, fingerprints and photographs does not violate any Fourth or Fifth Amendment rights of the witness.