19 DOUGLAS, J., dissenting for purposes of identification, was just the kind of invasion that the Davis case sought to prevent. Facial features can be presented to the public regardless of the cooperation or compulsion of the owner of the features. But to get the exemplars, the individual must be involved. So, although a person's handwriting is used in everyday life and speech is the vehicle of normal social intercourse, when these personal characteristics are sought for purposes of identification, the Government enters the zone of privacy and, in my view, must make a showing of reasonableness before seizures may be made. The Government contends that since the production was before the grand jury, a different standard of constitutional law exists because the grand jury has broad investigatory powers. Blair v. United States, 250 U. S. 273. Cf. United States v. Bryan, 339 U. S. 323. The Government concedes that the Fourth Amendment applies to the grand jury and prevents it from executing subpoenas duces tecum that are overly broad. Hale v. Henkel, 201 U. S. 43, 76. It asserts, however, that that is the limit of its application. But the Fourth Amendment is not so limited, as this Court has held in Davis, supra, and reiterated in Terry v. Ohio, 392 U. S. 1, where it held that the Amendment comes into effect whether or not there is a fullblown search. The essential purpose is to extend its protection "wherever an individual may harbor a reasonable 'expectation of privacy.'" Id., at 9. Just as the nature of the Amendment rebels against the limits that the Government seeks to impose on its coverage, so does the nature of the grand jury itself. It was secured at Runnymede from King John as a cornerstone of the liberty of the people. It was to serve as a buffer between the state and the offender. For no matter how obnoxious a person may be, the United States cannot prosecute for a felony without an indict DOUGLAS, J., dissenting 410 U. S. ment. The individual is therefore protected by a body of his peers who have no axes to grind or any Government agency to serve. It is the only accusatorial body of the Federal Government recognized by the Constitution. "The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.” Stirone v. United States, 361 U. S. 212, 218. But here, as the Court of Appeals said, "It is evident that the grand jury is seeking to obtain the voice exemplars of the witnesses by the use of its subpoena powers because probable cause did not exist for their arrest or for some other, less unusual, method of compelling the production of the exemplars." In re Dionisio, 442 F. 2d 276, 280. See 2 As Mr. Justice Black said in In re Groban, 352 U. S. 330, 346– 347: "The traditional English and American grand jury is composed of 12 to 23 members selected from the general citizenry of the locality where the alleged crime was committed. They bring into the grand jury room the experience, knowledge and viewpoint of all sections of the community. They have no axes to grind and are not charged personally with the administration of the law. No one of them is a prosecuting attorney or law-enforcement officer ferreting out crime. It would be very difficult for officers of the state seriously to abuse or deceive a witness in the presence of the grand jury. Similarly the presence of the jurors offers a substantial safeguard against the officers' misrepresentation, unintentional or otherwise, of the witness' statements and conduct before the grand jury. The witness can call on the grand jurors if need be for their normally unbiased testimony as to what occurred before them." Although that excerpt is from a dissent on the particular facts of the case, there could be no disagreement as to the accuracy of the description of the grand jury's historical function. The tendency is for government to use shortcuts in its search for instruments more susceptible to its manipulation than is the historic grand jury. See Hannah v. Larche, 363 U. S. 420, 505 (DougLAS, J., dissenting); Jenkins v. McKeithen, 395 U. S. 411. 19 DOUGLAS, J., dissenting Hannah v. Larche, 363 U. S. 420, 497-499 (DOUGLAS, J., dissenting). Are we to stand still and watch the prosecution evade its own constitutional restrictions on its powers by turning the grand jury into its agent? Are we to allow the Government to usurp powers that were granted to the people by the Magna Carta and codified in our Constitution? That will be the result of the majority opinion unless we continue to apply to the grand jury the protection of the Fourth Amendment. As the Court stated in Hale v. Henkel, 201 U. S., at 59, "the most valuable function of the grand jury" was "to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will." The Court held in that case that the Fourth Amendment was applicable to grand jury proceedings and that a sweeping, all-inclusive subpoena was "equally indefensible as a search warrant would be if couched in similar terms." Id., at 77. Of course, the grand jury can require people to testify. Hale v. Henkel makes plain that proceedings before the grand jury do not carry all of the impedimenta of a trial before a petit jury. To date, the grand jury cases have involved only testimonial evidence. To say, as the Government suggests, that nontestimonial evidence is free from any restraint imposed by the Fourth Amendment is to give those who today manipulate grand juries vast and uncontrollable power. The Executive, acting through a prosecutor, could not have obtained these exemplars as it chose, for as stated by the Court of Appeals for the Eighth Circuit, "We conclude that the taking of the handwriting exemplars . was a search and seizure under the Fourth Amendment." United States v. Harris, 453 F. 2d 1317, 1319. As Katz v. United States, supra, makes plain, the searches that may be made without prior approval by judge or magis DOUGLAS, J., dissenting 410 U. S. trate are "subject only to a few specifically established and well-delineated exceptions." 389 U. S., at 357. The showing required by the Court of Appeals in the Mara case was that the Government's showing of need for the exemplars be "reasonable," which "is not necessarily synonymous with probable cause." 454 F. 2d 580, 584. When we come to grand juries, probable cause in the strict Fourth Amendment meaning of the term does not have in it the same ingredients pointing toward guilt as it does in the arrest and trial of people. In terms of probable cause in the setting of the grand jury, the question is whether the exemplar sought is in some way connected with the suspected criminal activity under investigation. Certainly less than that showing would permit the Fourth Amendment to be robbed of all of its vitality. In the Mara case, the prosecutor submitted to the District Court an affidavit of a Government investigator stating the need for the exemplar based on his investigation. The District Court passed on the matter in camera, not showing the affidavit to either respondent or his counsel. The Court of Appeals, relying on Alderman v. United States, 394 U. S. 165, 183, held that in such cases there should be an adversary proceeding. 454 F. 2d, at 582-583. If "reasonable cause" is to play any function in curbing the executive appetite to manipulate grand juries, there must be an opportunity for a showing that there was no "reasonable cause." As we stated in Alderman: "Adversary proceedings will not magically eliminate all error, but they will substantially reduce its incidence by guarding against the possibility that the trial judge, through lack of time or unfamiliarity with the information contained in and suggested by the materials, will be unable to provide the scrutiny which the Fourth 19 MARSHALL, J., dissenting Amendment exclusionary rule demands." 394 U. S., at 184. The District Court in the Dionisio case went part way by allowing the witness to have his counsel present when the voice exemplars were prepared in the prosecutor's office. 442 F. 2d, at 278. The Court of Appeals acted in a traditionally fair way when it ruled that the reasonableness of a prosecutor's request for exemplars be put down for an adversary hearing before the District Court. It would be a travesty of justice to allow the prosecutor to do under the cloak of the grand jury what he could not do on his own. In view of the disposition which I would make of these cases, I need not reach the Fifth Amendment question. But lest there be any doubt as to where I stand, I adhere to my position in United States v. Wade, 388 U. S. 218, 243 (separate statement), and in Schmerber v. California, 384 U. S. 757, 773 (Black, J., dissenting, joined by DOUGLAS, J.), 778 (DOUGLAS, J., dissenting), to the effect that the Fifth Amendment is not restricted to testimonial compulsion. MR. JUSTICE MARSHALL, dissenting.* I The Court considers United States v. Wade, 388 U. S. 218, 221-223 (1967), and Gilbert v. California, 388 U. S. 263, 265-267 (1967), dispositive of respondent Dionisio's contention that compelled production of a voice exemplar would violate his Fifth Amendment privilege against compulsory self-incrimination. Respondent Mara also argued below that compelled production of the handwriting and printing exemplars sought from him would *This opinion applies also to No. 71-229, United States v. Dionisio, ante, p. 1. |