United States v. Alan McSurely United States of America v. Margaret McSurely , 473 F.2d 1178 ( 1972 )

WILKEY, Circuit Judge,

concurring:

While I concur in the result, and vote to reverse the McSurelys’ convictions, I disagree strongly with the majority’s formulation of this case and so feel compelled to set forth my own views.

I. Relevance of the Exclusionary Rule to the Proceeding Here

A. Subpoena or Knowledge

At the outset, let us be clear that what the appellants urge upon this court is indeed a novel formulation of the “exclusionary rule.” It is necessary to state and develop why this is so, because it appears that the novelty of the theory upon which reversal is ordered is not recognized in the majority opinion, which concludes: “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” (p. 1194). So the items of evidence which are relevant to the contempt convictions, and which we are urged to suppress, are the subpoenas themselves, not the documents which the subpoenas demand and which were illegally seized in Pike County, Kentucky, by state and local officials.

I agree that this state police search and seizure was illegal. It would follow that any documents so seized could be excluded in subsequent criminal proceedings against the McSurelys. However, the subpoenas themselves were never illegally sought or taken. They may not be “excluded” under the traditional formulation of the exclusionary rule.

Two examples suffice to illustrate both the novelty and the confusion inherent in the appellants’ formulation of the exclusionary rule as applied to the subpoenas, which the majority opinion accepts as the decisive issue. The opinion at one. point states, “The trial court seems to have taken the position that the ‘exclusionary rule’, which forbids the use of unlawfully seized items of evidence against the victim of the seizure, applies only to criminal prosecutions and, hence, is not applicable to legislative subpoenas” (p. 1192). And at another point, in quoting Olmstead v. United States,¹ “The striking outcome of the Weeks case . . . was . . . 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” (p. 1193). It is readily apparent that the subpoenas, the only evidence relevant to the contempt conviction which the appellants ask us to suppress, were never seized from the defendants or anyone else. Nor did government officers obtain these subpoenas through any violation of anyone’s Fourth Amendment rights; they no doubt were dutifully typed by Subcommittee staff stenographers, purely the product of and originally the property of the Subcommittee.

Of course, it can immediately be said that the content of the subpoenas, i. e. the list of documents belonging to the McSurelys, was derived from the illegal state search and seizure. True, but is what should be suppressed here the knowledge or use of the knowledge, which the Subcommittee acquired? If so, the court opinion should clearly so' state, and then face up to the available justifications and consequences of such an extraordinary holding.

But, yet, the appellants only argued this obliquely, and this cannot be what the majority intends. For (1) the holding is squarely that it is the subpoenas which should be suppressed, and (2) the majority opinion tells us that the Subcommittee had ample knowledge of the McSurelys’ activities without these subpoenas, as the Subcommittee investigator talked to the state official on the phone, visited him, “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 office in Washington, D. C.” (p. 1182). I suggest that the McSurelys’ Fourth Amendment rights were just as effectively violated before the subpoenas were issued, and there is no way the “exclusionary rule” could operate to bar this knowledge so derived from the Subcommittee’s ken. Nor would the purpose of the exclusionary rule be served, for the majority opinion reminds that the Supreme Court has told us “[t]he purpose of the ‘exclusionary rule’ is ‘to prevent, not to repair. Its purpose is to deter . . .’” (p. 1193).

It thus begins to appear from this analysis that what we have here is not an exclusionary rule case at all, certainly not according to any previously accepted meaning. The complete inappropriateness of applying the exclusionary rule to a Congressional subpoena, as an item of evidence to be suppressed, is only the first of several reasons why the exclusionary rule does not apply here.

I suggest that the appellants have really argued for an exclusionary rule applicable to an evidentiary situation in a hearing before a Congressional committee, which might someday occur, but which did not occur in this case. If the McSurelys had complied with the subpoena, tendered the documents called for, and then at the stage when the documents were being placed in the hearing record, objected to their being received in evidence as the indirect product of an illegal search and seizure — then we would have had a situation comparable to a criminal trial in which the exclusionary rule applies. Then we would have had the straightforward question, as yet undecided by the Supreme Court, as to whether the exclusionary rule in criminal trials applies in Congressional hearings.

All the logic of the majority opinion seems to be directed to supporting an affirmative answer to a question of admissibility arising from this hypothetical fact situation, where the items of evidence offered in the Congressional hearing are the same items made the subject of a previous search and seizure violating Fourth Amendment rights. But here the evidence to be suppressed— under the exclusionary rule — is the Congressional subpoena itself manufactured by the Subcommittee staff, not evidence taken illegally from the McSurelys.

If it is the physical document itself, the subpoena, which the majority would suppress — and this is the holding. — that document never belonged to the Mc-Surelys, was never in their possession, no rationale of the “exclusionary rule” has any applicability to it. If it is the knowledge reflected in the content of the subpoena, the Subcommittee already had a substantial portion of such knowledge, suppressing the subpoena itself would have no effect whatsoever in eradicating such knowledge, and no logic of the “exclusionary rule” nor previous court decision has barred Congressional use of knowledge, no matter how obtained. The extraordinary ramifications of a rule which would forbid Congressional use of information — the inherent constitutional, precedential, and practical problems — are nowhere discussed or even hinted at in the majority opinion.

B. Subpoena Enforcement or Suppression as Evidence

Taking the subpoena itself as the critical issue, Judge Matthews’ opinion appears to rest on dicta in Silverthorne Lumber Co. v. United States,² which at least does focus on the more relevant question of when a subpoena will be enforced, in contrast to the confusing concept of suppressing the subpoena document as an item of evidence under the exclusionary rule. With all due respect, I believe that refusal here to enforce a legislative subcommittee’s subpoenas duces tecum, demanding production of documents of which it learned as a result of an illegal search by state officials, constitutes a most unfortunate and unwarranted extension of overbroad and ill-chosen language in Silverthorne.

In Silverthorne Justice Holmes properly refused to allow a subsequent regular subpoena to remove the taint on evidence which had been discovered in a previous illegal search, for the purposes of a grand jury investigation in a criminal case. It must be noted that the investigation there was aimed solely at criminal proceedings against the same parties whose Fourth Amendment rights had been violated. Since the established rule barred use of evidence illegally obtained, the Fourth Amendment would indeed have been reduced to “a mere form of words” if the subsequent resulting “legal” subpoena process was allowed to serve its sole intended purpose of “washing” the evidence to allow its admission in one stage of a criminal- case.³ Since the subpoenas could serve no other valid purpose, the Court refused to enforce them.

It thus appears that Silverthorne was centrally premised on the established doctrine excluding illegally obtained evidence in a criminal case directed against the person whose Fourth Amendment rights had been violated. When the Court there said that such evidence •‘shall not be used at all”, it can only be reasonably understood to have referred to use of the evidence in any fashion in such a criminal case⁴

If there were a similarly established principle that “tainted” evidence may not be introduced before a legislative inquiry (which is not directed “against” anyone),⁵ and may not be considered in any fashion for any purpose, I would have to agree with the majority’s view of this case. However, the application of the exclusionary rule to Congress has not been established; and that question has emerged as the most important controverted issue in this case. Although the majority appears to assume such an application, I feel strongly that blanket exclusion of all “tainted” evidence from legislative inquiries or consideration should not be established as a principle of law. If, as I will attempt to show, illegally sought and taken evidence may not be “excluded” from Congressional consideration, the Subcommittee had a right to insist on its production.⁶ And the McSurelys had no right, under the indirect Silverthome analysis, to refuse. II. Rationale for Applying Exclusionary Rule to Congressional Inquiries

A. Congress and Courts — Distinctions

Although the Fourth Amendment right to be free from unreasonable searches and seizures does apply, like many other constitutional protections, to Congressional inquiries,⁷ the landmark cases which have established and expanded the exclusionary rule nowhere suggest that it applies outside of the context of criminal proceedings.⁸ Two important distinctions are decisive in analyzing any rationale for applying the exclusionary rule to Congressional inquiries.

First, we must never obscure the highly important distinction between the constitutional right and whatever remedy may be thought appropriate, effective and necessary to protect that right. To be free from unreasonable searches and seizures is the right. The exclusionary rule is a remedy found, not in the Constitution, but in judge-made law, beginning with Weeks⁹ in 1914. This judicially-created technique for deterring illegal intrusions has certainly never been thought to follow, inexorably, in any context, merely becáuse a Fourth Amendment violation has occurred.¹⁰

Secondly, whatever the appropriateness of the exclusionary rule as a remedy in courts of law in a criminal trial, or perhaps in a civil action, the same rationale certainly does not apply in hearings before a Congressional committee.¹¹ The objectives of a Congressional hearing and a criminal trial are so obviously widely different. The criminal trial is to determine guilt or innocence of an individual subject to specific accusations. The Congressional hearing is for the gathering of information, the formulation of broad conclusions, the determination of national policy — all to be embodied subsequently in legislation, if after hearings, deliberation and debate such legislation is thought desirable or needed.

Two simple examples illustrate the unwisdom of applying the exclusionary rule to Congressional committees.

As a relevant example, let us assume that much of the identical information which the Subcommittee sought here in the MeSurelys’ documents was published in a series of newspaper articles. Subsequently, it is revealed that every fact recited was gained by an illegal search conducted by a state governmental agency, which made no effort to contact any federal agency or Congressional committee. Let us further assume that the people responsible are successfully prosecuted for the illegal search. Everything obtained by that search is inadmissible in a court proceeding. Should the Congressional committee be denied the use of any of the information contained in the newspaper story because it was based on an illegal search, which constitutes information that could not be received in a criminal trial? Could the Congressional committee be barred from follow-up leads derived from this newspaper story by the application of the “fruit of the poisonous tree” doctrine? Should subpoenas to obtain documents from the McSurelys — just as clearly as in the case at bar derived originally from illegally obtained information — be suppressed on the rationale of the exclusionary rule, as the appellants urge here? I think not. I think the Congressional committee could take this information, illegally obtained and thoroughly inadmissible in a court of law, and utilize it for whatever purpose in a Congressional hearing.

As a second example, let us suppose a series of some 100 narcotic arrests within a limited area and period of time in the District of Columbia. It turns out that all arrests were made under faulty procedures. All seized heroin is suppressed in the criminal prosecutions. But if the Congress is weighing a narcotics law for the District of Columbia, such as was passed in 1970, or some particular provision such as nighttime searches and seizures, would it not be relevant and permissible for the Congressional committee to receive evidence tendered by the police on all details of these 100 arrests? I think clearly so.The Congressional committee could not be denied knowledge of the crimes nor any of the specific details of these crimes, while the jury in the criminal case would not be permitted any knowledge of the seizure of the heroin itself.

Not only are the objectives of all Congressional actions so different from those of a criminal trial in court — as different as the constitutionally designed functions of the legislative and judicial branches — but pragmatic evaluation of the results to be obtained demonstrates that the exclusionary rule has no application to legislative hearings.

The unwisdom of applying the exclusionary rule to Congress is clear when we examine how well its primary purpose of deterring official misconduct would be served by such an application.¹² Many respected authorities have expressed doubts that law enforcement officials monitor their conduct in response to the consequences flowing from their mode of search in resulting criminal cases.¹³ It seems even more doubtful that a remote hypothetical effect on derivative Congressional use of discovered information could possibly figure significantly in these officials’ motivations.¹⁴ Will the “cop on the beat,” or even the Commonwealth’s Attorney in the mountains of Eastern Kentucky involved with the McSurelys here, alter his conduct if the exclusionary rule is applied to Congressional hearings? Enforced legislative ignorance is just too attenuated a form of discipline on the police to justify its obvious costs.¹⁵

In part, the exclusionary rule is designed to protect against the double indignity of conviction resulting from a Fourth Amendment violation.¹⁶ It has no direct relationship to other adverse consequences of the illegal search, such as embarrassing publication of the discovered facts.¹⁷ Its inappositeness in a legislative investigation setting is highlighted by asking exactly what result “suppression” would be expected to produce. Could the legislation suggested by the Subcommittee be invalidated for insufficient “evidence” in the official record? Assuming the facts are first widely publicized by the state officials, as they were here, how are the victims of the illegal search further injured in their expectations of privacy by the requirement that the documents be produced in a closed committee hearing? If serious narcotics problems, or indeed the misconduct of government officials, are exposed by police inquiries which violate the Fourth Amendment, derivative evidence may of course be inadmissible before a court — and the searchers may in fact be liable for damages or guilty of a crime. Would that circumstance alone justify foreclosing Congressional access to the best possible sources of information on subjects of vital national concern?

Congress, as even its critics will agree, desperately needs information upon which to act. It has traditionally been given broad powers of investigation with which to meet that need.¹⁸ Unless we are to assume that Congress should remain pristine and naive, much of the data it should consider will inevitably come to its attention in thoroughly unadmirable ways.

Conscious disregard of unquestioned facts, merely because they have come out in the open in a particular manner, has been vigorously challenged even as an artificial judicial nicety. This attempt to impose such an ivory tower mentality on the legislative battlefield is even more unreal and unworkable.

Whereas exclusion in the criminal area may reassure citizens in their confidence that their government’s executive will be a law abider, denial of information to Congress will neither provide meaningful deterrence nor reassure citizens that their government’s legislature will be a worldly-wise lawmaker. While the courts may refuse to allow their criminal processes to become tainted by eating the “fruit of the poisonous tree,” it would be folly to forbid Congressional knowledge that bad apples exist and to stymie Congressional action on the basis of all information, good or bad in origin. It must be remembered that the subpoenas, and not the documents sought, were the relevant (and unpoisoned) fruits which the trial court was asked to eat in this contempt case. As the analysis of Silverthorne above shows, the subpoenas must fail only if Congress may never eat the fruit of a tree which someone else has poisoned.

B. Effect of Congressional Participation in Search

Arguably, some degree of active participation by the Subcommittee’s investigator in a violation of the McSurelys’ Fourth Amendment rights, if that violation was also the sole source of the information upon which the subpoenas were issued, might justify refusal to enforce the subpoenas. As previously noted, the Fourth Amendment does apply to Congressional committees.¹⁹ If an agent of the Subcommittee had searched the McSurelys’ home,²⁰ perhaps refusal to enforce the resulting subpoenas would be the only available or effective deterrent of such official lawlessness ²¹

Mr. Brick’s inspection of the documents in Mr. Ratliff’s custody²² might be viewed as an illegal search by an agent of the Subcommittee which should be deterred by denying any further enforceable subpoena power to the Subcommittee regarding information so discovered.²³ However, such a view of this case would create more problems than it solved.

First it would require a remand to determine whether what Brick passively learned from Ratliff and others, rather than what he found in his active examination of the documents, provided a sufficient foundation for the issuance of the subpoenas.²⁴ If Brick’s illegal search took place after the Subcommittee had enough information on which to draw the subpoenas, the subpoenas could not be said to have derived from the search, and overturning the contempt convictions would appear less appropriate as a deterrent.

Second, although Brick’s examination of the McSurelys’ documents may be characterized as an illegal subcommittee action, passive reception of illegally seized information from others cannot even properly be termed a “search.” The preceding discussion makes clear that mere reception by the legislature of “tainted” evidence should not be prohibited. If Mr. Ratliff, the court-appointed custodian, had disclosed the documents to the whole world, the Subcommittee could listen in without being held to have an active role in that violation of the McSurelys’ expectations of privacy. Thus, barring these subpoenas because Brick and the press were not merely told everything by the custodian would amount to excluding evidence from Congressional consideration because the McSurelys’ rights to privacy had not been violated thoroughly enough!

Third, if Brick’s examination of the documents can be termed a search, the inspection by one law enforcement agency of documents in the custody of another might, by extrapolation, also be characterized as a search — possibly illegal if the custodian agency’s original seizure was held unlawful. The exclusionary rule now makes any descriptive nomenclature of the sampling of items on the tarnished “silver platter” irrelevant with regard to admission of evidence in a criminal case. The evidence is barred in court without consideration of whether what the federal officers did was a search or not. However, troublesome questions would arise concerning the personal liability of law enforcement officers if a second “search” were recognized in those circumstances. Given the need for cooperation in law enforcement, I would be reluctant to adopt that view; but the myriad possible problems in drawing a line short of such an extrapolation are evident.

Finally, the most likely effect of such a ruling would be a slight change in the behavior of subcommittee staff investigators. Once they were contacted by a custodian of documents such as Mr. Ratliff, willing to violate the court’s command and the McSurelys’ rights, they would merely request that he leak everything to the press, send along only xeroxed copies, or place the documents in plain view and stand by to turn the pages.²⁵

Rather than wander into the thicket of overfine and troubling distinctions generated by a theory of the case based on Mr. Brick’s role, I would prefer to rest the decision here on a ground less likely to produce a remand in this case and less open to dangerous extrapolation in others.

III. Pertinency

The sounder ground upon which the McSurelys’ convictions for contempt must be reversed is the failure of the Government to establish one of the necessary elements of its case: pertinency of its demands to the valid subject of the legislative inquiry.

Proof of pertinency is an affirmative element of the Government’s case in any prosecution under 2 U.S.C. § 192. Deutch v. United States;²⁶ Bowers v. United States.²⁷ Although the words of the statute literally can be read to suggest that this requirement only applies to questions, the pertinency requirement has been correctly construed to apply to all aspects of the legislative investigation — including a subpoena duces tecum for the production of documents.²⁸ While the legislature can demand any documents it wishes, it can only punish refusal to cooperate when its demands are shown to be limited to the permissible and actually authorized scope of the inquiry.²⁹

Most broadly construed, this legislative inquiry concerned the causes of riots and general disorders. The Chairman of the Subcommittee articulated that purpose in his opening statement.³⁰ Some of the subpoenas’ demands arguably related to such an inquiry. However, many have no such apparent connection.

Notably, there is absolutely nothing in the record³¹ to suggest that the Mc-Surelys’ relationship to Appalachian Volunteers, United Planning Organization, Vietnam Summer, or National Conference for New Politics had anything at all to do with crime, violence or riots. If some connection existed, it was up to the Government to show that connection at the contempt trials. In contrast to these four organizations, the Government did demonstrate at the trial the pertinency of the inquiry in regard to three other organizations, by showing their possible connection with the riots which were the legitimate objects of the Subcommittee’s inquiry.³² In the absence of such a showing, it appears that in regard to the four organizations named above the Subcommittee was diverted from its investigation of riots to an investigation of the McSurelys ³³ — a nonpertinent inquiry for which the contempt powers are not available.

In Bowman Dairy Co. v. United States,³⁴ the Supreme Court held that

One should not be held in contempt under a subpoena that is part good and part bad. The burden is on the court to see that the subpoena is good in its entirety and it is not upon the person who faces punishment to cull the good from the bad.³⁵

Accordingly, as some of the subpoenas’ demands were not shown to be pertinent to the legislative inquiry, the District Court erred in refusing to grant appellants’ motion for judgment of acquittal and the McSurelys’ convictions should be reversed.

1 . 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928).

2 . 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

3 . The knowledge obtained from the illegal search would have made the subpoenaed documents, in effect, their own “fruit.”

4 . The majority opinion is just another instance in which “the juice of [Justice Holmes’ words’] context has been squeezed from them, and the husks used as a premise for a syllogism he never contemplated.” In re Egan, 450 F.2d 199, 230 (3rd Cir. 1971) (Gibbons, J., dissenting). Judge Adams’ language to the contrary in the majority opinion for the Court of Appeals in this case was impliedly rejected by the opinion for the Supreme Court in United States v. Egan, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (decided June 26, 1972).

5 . See United States v. Fort, 143 U.S.App. D.C. 255, 443 F.2d 670, 679 (1970), cert. denied, 403 U.S. 932, 91 S.Ct. 2255, 29 L.Ed.2d 710 (1971).

6 . As the latter part of this opinion will demonstrate, the Subcommittee only has a .right to insist on the production of evidence pertinent to the subject of its inquiry. On that quite distinct ground, these convictions must be reversed.

7 . See Watkins v. United States, 354 U.S. 178, 188, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1954) ; McPhaul v. United States, 364 U.S. 372, 382-383, 81 S.Ct. 138, 5 L.Ed. 2d 136 (I960) ; cf. Note, The Application of the Fourth Amendment to Congressional Investigations, 52 Minn.L.Rev. 665 (1968).

8 . Since the exclusionary rule is, after all, a rule of evidence, it would appear that its next “logical” extension would be to civil cases in which the Government is a party. Significantly, the Supreme Court has never gone that far. Note, Constitutional Exclusion of Evidence in Civil Litigation, 55 Virginia Law Review 1484 (1969) ; Cleary v. Bolger, 371 U.S. 392, 403, 83 S.Ct. 385, 9 L.Ed.2d 390 (1963) (Goldberg, J., concurring).

Congress could, of course, provide by statute for an exclusionary rule in relation to its own investigations. As the Government notes, it has done so with respect to illegal wiretaps in 18 U.S.C. § 2515. However, it should also be noted that no such special statutory provision would have been necessary if the judge-made exclusionary rule already extended as far as the appellants claim. The legislative history indicates that Congress, when it passed § 2515, clearly understood that the traditional “exclusionary rule” was limited to criminal proceedings. See Sen.Rep. No. 1097, 1968 U.S.Code, Cong. & Admin.News, p. 2112.

9 . Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).

10 . See Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956) ; Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed .2d 321 (1958) ; United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed .2d 510 (1966) ; Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) ; United States v. Schipiani, 435 F.2d 26 (2d Cir. 1970) ; United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970).

11 . The majority opinion nowhere faces up to these two vital distinctions. Judge Matthews asserts “There is nothing in logic or history of the ‘exclusionary rule’ to support its inapplicability to legislative subpoenas framed upon information derived by the Government through a previous unconstitutional search”, and then quotes Mr. Justice Brandeis dissenting in Olmstead v. United States, 277 U.S. 438, at 478, 48 S.Ct. 564, at 572, 72 L.Ed. 944: “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.” With all due respect, how does this settle the questions as to (1) the appropriate remedy for the violation, or (2) the applicability of the same remedy to court trials and Congressional investigations? Nor are the next authorities cited any more helpful. Weeks, supra, is quoted to the effect: “. . . The duty of giving to it [Fourth Amendment] force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws.” 232 U.S. 383, at 392, 34 S.Ct. 341, at 344, 58 L.Ed. 652. But, of course, Congress is not “entrusted with the enforcement of the laws”; that is the role of the Executive and Judicial branches, Congress is the law maker, and quite different considerations may come into play, as the text illustrates. Certainly Watkins v. United States, 354 U.S. 178, at 188, 77 S.Ct. 1173, at 1179, 1 L.Ed.2d 1273 (1957), holds that “The Bill of Bights is applicable to [Congressional] investigations as to all forms of governmental action. Witnesses . cannot be subjected to unreasonable search and seizure.” But again, this in no way settles the questions of the appropriate remedy or the applicability of the same remedy in a court trial and Congressional hearing. And in United States v. Fort, 143 U.S.App.D.C. 255 at 263, 443 F.2d 670 at 678 (1971), relied on by the majority here, when we cited Watkins we immediately commented “But which constitutional rights are applicable depends on the nature and consequences of the governmental action.” We might well have added a comment in similar vein as to applicable remedies.

12 . “The rule is calculated 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.” Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L. Ed.2d 1669 (1960) ; see also Terry v. Ohio, 392 U.S. 1, 12, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

13 . See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 415-416, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Burger, C. .1., dissenting).

14 . It is important to note that there has been no suggestion in this case that the state police were acting as .agents for the Subcommittee.

15 . The majority opinion relies on Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and Elkins v. United States, 364 U.S. 217, 80 S.Ct. 1437 (1960), without ever comparing the role of a Congressional investigation to a state prosecution (Mapp) or to a federal prosecution based on evidence obtained by the state and turned over to federal authorities on a “silver platter” (Elkins). It was a long time, from Weeks (1914) to Elkins (1960), before the Supreme Court decided that the exclusionary rule in federal courts could possibly be effective in protecting against illegal searches and seizures by state officials. How can the majority here blithely assume that the application of the exclusionary rule (to a Congressional subpoena) in federal courts will, or should be, effective in regulating the conduct of Congressional committees? Or, to put it another way, how can the majority assume that the application of the exclusionary rule (to documents or information originally obtained by state authorities illegally) in a Congressional hearing will, or should be, effective in regulating the conduct of state authorities ?

The necessity-of phrasing the above question alternately illustrates what I consider to be the obscurity and perhaps confusion in just what the majority thinks should be barred by the exclusionary rule here. See Part IA, supra.

16 . See Walder v. United States, 347 U.S. 62, 64-65, 74 S.Ct. 354, 98 L.Ed. 503 (1954). The argument that the integrity of the courts would suffer from any involvement with the “dirty business” of violating constitutional rights seems most forceful when the court refuses to convict someone for violation of the law on the basis of evidence gathered through official lawlessness. On the other hand, the fact that a person’s Fourth Amendment rights have been violated clearly cannot excuse him from future compliance with the duties imposed by law. Substantial constitutional questions, never contemplated by the authors of the exclusionary rule, would arise if past illegal intrusions by a state executive branch are to excuse future compliance with the citizen’s duties to the federal legislature.

17 . Other remedies may, of course, be available against those who have actively intruded or published without a legal right to do so.

18 . Congress may not of course investigate solely to persecute potential witnesses. The McSurelys have not convincingly alleged that the Subcommittee was acting for any purpose other than the legitimate gathering of information on which to base legislative proposals. The argument could be made that since the Subcommittee’s agent, Mr. Brick, had already seen the documents before issuance of the subpoenas, they could only have been issued for purposes of harassment. To the contrary, the Subcommittee could not know whether it had all such documents and, on the face of the subpoenas, was seeking any additional ones which might have existed.

19 . Watkins v. United States, 354 U.S. 178, 187-188, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957) ; see also United States v. Fort, supra note 5, 443 F.2d at 678.

20 . Compare Nelson v. United States, 93 U.S.App.D.C. 14, 208 F.2d 505 (1953), in which a Senate committee agent’s illegal search led to exclusion of the evidence seized in a subsequent criminal trial.

21 . If Mr. Brick is shown to have believed in good faith that Mr. Ratliff had authority to show him the documents, it seems doubtful that his examination could be considered a crime. It is also possible that personal liability for damages would be barred by the doctrine of official immunity. See Doe, et al. v. McMillan, 148 U.S.App.D.C. 280, 459 F.2d 1304, 1316-1318 (1972) ; see also Dombrowski v. Burbank, 123 U.S.App.D.C. 190, 358 F.2d 821 (1966).

22 . It appears that Mr. Brick first examined only xeroxed copies of the documents. Defendant’s Appendix (hereafter “D.A.”), Vol. II, p. 1032. If he had stopped there, this might be a different case. Ratliff might have violated the McSurelys’ Fourth Amendment rights by xeroxing the material and displaying the copies. But it would be hard to distinguish Brick’s view of the copies from his hearing them read over the phone or reading verbatim reprints in the newspaper. Without deciding the issue, I would find it hard to characterize the latter two activities as a “search.”

23 . It would not appear that the custodian’s consent should operate to legalize this “search.” Ratliff was directed by the court to hold the papers “in safe keeping” pending appeal. D.A. Vol. II, p. 962. Since the original seizure had been declared illegal, the natural inference would be that he was holding them for the benefit of the McSurelys, subject to reversal on appeal. They, of course, were never notified or given a chance to voice their strong objections to the “search.” See Note, Third Party Consent to Search and Seizure, 33 U. of Chicago L.Rev. 797, 812 (1966), for the argument that actual authority to consent is necessary to validate a warrantless search. See also Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), which implies, inter alia, that the good faith belief of the official searcher that he has obtained valid consent does not validate his act.

24 . The appellants claim that the Government concedes that the subpoenas would not have been issued without the Subcommittee’s “opportunity to examine the documents.” D.A. Vol. II, p. 940, No. 10. However, the court below found only that the Subcommittee would not have known of the documents “but for [the] seizure by the state officials.” D.A. Vol. II, p. 972. A stipulation in McSurely v. Ratliff indicates that Mr. Brick learned a great deal about the nature of the documents merely by questioning Mr. Ratliff (which could hardly be characterized as a search), D.A. Vol. II, p. 1031.

25 . The exact nature of subcommittee action which would suffice to place it in an “active” role is unclear. What cannot be denied is that legislative use of illegally seized evidence would hardly end even if committee investigators avoided all personal involvement in official misconduct. Even dispensing with an overt request would probably not discourage law enforcement officials from sending along documents which appeared likely to be of interest to Congress.

26 . 367 U.S. 456, 81 S.Ct. 1587, 6 L.Ed.2d 963 (1961).

27 . 92 U.S.App.D.C. 79, 202 F.2d 447 (1953).

28 . United States v. Orman, 207 F.2d 148, 153 (3rd Cir. 1953) ; Marshall v. United States, 85 U.S.App.D.C. 184, 176 F.2d 473, 474 (1949), cert. denied, 339 U.S. 933, 70 S.Ct. 663, 94 L.Ed. 1352, rehearing denied, 339 U.S. 959, 70 S.Ct. 976, 94 L.Ed. 1369. One possible argument for reading the statute not to require pertinence of a subpoena is that the Congressional committee cannot precisely articulate the relevance of documents before it has seen them. However, here, that argument pales in light of the fact that an agent of the Subcommittee was, to say the least, thoroughly familiar with most of the McSurelys’ personal effects.

29 . Bowers, supra, 202 F.2d at p. 448.

30 . D.A. Vol. I, pp. 536-48.

31 . D.A. Vol. II, pp. 1041 et seq. (Excerpts of Hearings before the Subcommittee stated by the Government to be evidence of pertinency of the documents subpoenaed.)

32 . The subject of the Subcommittee’s investigation, the then prevalent disorders, obviously included subsidiary and pertinent questions concerning the possibility of conspiracy to foster large-scale rioting. Unquestionably, there was evidence that the McSurelys had attended several meetings in Nashville immediately preceding the riots there. These meetings involved members of SNCC, SCEF and SSOC. D.A. Vol. II, pp. 1041 et seq. Some of the meetings took place at the “SSOC House.” They included official organizational meetings of SCEF. At least one meeting featured an address by a prominent SNCC member, apparently entitled “SNCC, Black Power for Communism.” It could not escape the Subcommittee’s attention that at least certain of the participants in these meetings appeared to be involved in instigation or precipitation of the Nashville riots. Thus, the Mc-Surelys’ connections with these three organizations would have been pertinent objects of inquiry if the Subcommittee subpoenas had been so limited.

33 . “ ‘[P]ertinent’, as used to describe a requisite for valid congressional inquiry, means pertinent to a subject matter properly under inquiry, not generally pertinent to the person under interrogation.” Rumely v. United States, 90 U.S.App. D.C. 382, 197 F.2d 166, 177 (1952), aff’d, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770 (1953).

34 . 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951).

35 . 341 U.S. 214, 221, 71 S.Ct. 675, 679, 95 L.Ed. 879. Followed by this court with respect to refusal to comply with a Congressional subpoena. United States v. Patterson 92 U.S.App.D.C. 222, 206 F.2d 433 (1953).