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In re Grand Jury Investigation No. 2184 -86

Decided: March 5, 1987.

IN RE GRAND JURY INVESTIGATION NO. 2184-86


Ciolino, A.j.s.c.

Ciolino

The question presented in this motion to quash a Grand Jury subpoena for fingerprints, palm prints and handwriting exemplars is whether a witness, here a potential target, may refuse to comply with that subpoena arguing that it contravenes the Fourth and Fifth Amendments to the U.S. Constitution.

On January 26, 1987, petitioner was served with a subpoena issued from one of the Grand Juries sitting in Bergen County requesting that he appear on January 29, 1987 to provide fingerprint, palm print and handwriting exemplars. At oral argument the assistant prosecutor stated that an investigation had begun into an illegal gambling operation and the Grand Jury was investigating that alleged illegal activity. It was further revealed that on December 22, 1986, pursuant to a search warrant, the Prosecutor's Office searched petitioner's home and seized cash and other papers. The Prosecutor's Office did observe, by way of surveillance, petitioner enter into what was found to be an illegal gambling establishment. This establishment was searched and certain gambling paraphernalia was seized. The Grand Jury sought through the use of the subpoena to match petitioner's physical characteristics with those obtained from the lawfully seized paraphernalia.

Petitioner did submit to fingerprints and palm prints pursuant to an Order of the Court issued on January 28, 1987. However, he now argues that the taking of handwriting exemplars violates his rights under the Fourth and Fifth Amendments to the U.S. Constitution.

The Prosecutor's investigation has, pursuant to search warrant, uncovered 60 names and 100 numbers including plus or minus signs which they allege to be of evidential value. The State requests that petitioner be compelled to present 15 repetitions of these 60 names and 15 repetitions of 100 numbers with the plus or minus signs in order to ensure a worthwhile analysis. They further indicate that the period of time involved in providing the exemplars will not exceed five hours.

Petitioner seeks to quash the Grand Jury subpoena for failure to satisfy the Fourth Amendment's reasonableness requirement and for violation of the Fifth Amendment's privilege against self-incrimination. As a preface to any consideration, it has historically been held that the Grand Jury has broad investigative authority. "Our Supreme Court is in accord with the general concept that a Grand Jury is to be permitted wide latitude in conducting its investigation." In re Grand Jury Subpoena Duces Tecum, 143 N.J. Super. 526, 535 (Law Div.1976). See also, U.S. v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973); Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972); In re Grand Jury Impanelled March 1, 1971, 348 F. Supp. 1001 (N.D.Ohio 1972).

Counsel for petitioner cites In re Riccardi, 337 F. Supp. 253 (D.N.J.1972), as authority for his argument that the subpoena seeking the handwriting exemplar falls within the protection afforded the witness under the Fourth Amendment prohibiting unreasonable searches and seizures. In Riccardi the Court held that "the Fourth Amendment must be consulted where the government applies for an Order to compel the taking of handwriting exemplars." Id. at 255. The Court also focused on the inquiry of whether the circumstances surrounding the

request for exemplars are reasonable and clearly indicated that the Fourth Amendment "proscribes only those searches and seizures which are unreasonable." Id. The decision turned upon the standard to be applied under the facts of that particular case. The Court stated, "In applying the standard of reasonableness, a precise formula cannot be fixed. This Court must examine the totality of circumstances in reaching its decision." Id., citing Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). The request for exemplars was supressed after the Court noted that the government had been offered photostatic copies of Riccardi's signatures, which the Court felt would be more accurate specimens, having been spontaneously made and without any motive to disguise. It was held that the invasion of one's privacy should not be ordered where the very information sought can be easily acquired by other means.

The facts of the present application and subpoena are clearly distinguishable from those set forth in Riccardi. In Riccardi, the Court noted that the standard is one of reasonableness and that this standard is rather inexact but requires an examination of the totality of the circumstances. Citing Mara v. U.S., 454 F.2d 580 (7 Cir.1971), it stated that reasonableness in the particular factual setting requires (1) the government show a proper purpose and authorization, (2) that the information sought is relevant, and (3) that the request for the exemplars is adequate and not excessive.

The reasonable standard as applied to the instant set of facts, i.e., that there is an ongoing Grand Jury investigation; that there was a surveillance of the petitioner; that petitioner was seen going to/or from an establishment where gambling paraphernalia was found; and, that the handwriting and fingerprinting exemplars would aid the Grand Jury in its investigation satisfies the first two prongs of the above test. The third prong, or the one dealing with the scope of the subpoena, poses another ...


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