When respondent's place of business was being searched by
federal agents under a warrant issued in connection with a gambling
investigation and specifying that the object of the search was to
discover and seize bookmaking records and wagering paraphernalia,
one agent, knowing of a pending federal investigation of
loansharking activities, discovered and seized a suspected
loansharking record. Subsequently, a grand jury investigating
loansharking activities subpoenaed respondent to query him on the
seized evidence, but he refused to testify on Fifth Amendment
grounds. After the Government then requested transactional immunity
for respondent, the District Court granted respondent's suppression
motion on the grounds that the affidavit supporting the warrant was
insufficient and that the search exceeded the scope of the warrant,
and further ordered that respondent need not answer any of the
grand jury's questions based on the suppressed evidence. The Court
of Appeals affirmed.
A witness summoned to appear and testify before a
grand jury may not refuse to answer questions on the ground that
they are based on evidence obtained from an unlawful search and
seizure. Pp. 414 U. S.
(a) The exclusionary rule, under which evidence obtained in
violation of the Fourth Amendment or the fruits of such evidence
cannot be used in a criminal proceeding against the victim of the
illegal search and seizure, is a judicially created remedy designed
to safeguard Fourth Amendment rights generally through its
deterrent effect on future unlawful police conduct, rather than a
personal constitutional right of the party aggrieved. Pp.
414 U. S.
(b) Despite its broad deterrent purpose, the rule does not
proscribe the use of illegally seized evidence in all proceedings
or against all persons, and its application has been restricted to
those areas where its remedial objectives are thought most
efficaciously served. P. 414 U. S.
(c) Allowing a grand jury witness to invoke the exclusionary
rule would unduly interfere with the effective and expeditious
Page 414 U. S. 339
of the grand jury's duties, and extending the rule to grand jury
proceedings would achieve only a speculative and minimal advance in
deterring police misconduct at the expense of substantially
impeding the grand jury's role. Pp. 414 U. S.
(d) Grand jury questions based on evidence obtained from an
unlawful search and seizure involve no independent governmental
invasion of privacy, but rather the usual abridgment thereof common
to all grand jury questioning. Such questions are only a derivative
use of the product of a past unlawful search and seizure, and work
no new Fourth Amendment wrong. Pp. 414 U. S.
465 F.2d 1218, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, WHITE, BLACKMUN, and REHNQUIST, JJ., joined.
BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and
MARSHALL, JJ., joined, post,
p. 414 U. S.
MR. JUSTICE POWELL delivered the opinion of the Court.
This case presents the question whether a witness summoned to
appear and testify before a grand jury may refuse to answer
questions on the ground that they are based on evidence obtained
from an unlawful search and seizure. The issue is of considerable
importance to the administration of criminal Justice.
Page 414 U. S. 340
On December 11, 1970, federal agents obtained a warrant
authorizing a search of respondent John Calandra's place of
business, the Royal Machine & Tool Co. in Cleveland, Ohio. The
warrant was issued in connection with an extensive investigation of
suspected illegal gambling operations. It specified that the object
of the search was the discovery and seizure of bookmaking records
and wagering paraphernalia. A master affidavit submitted in support
of the application for the warrant contained information derived
from statements by confidential informants to the Federal Bureau of
Investigation (FBI), from physical surveillance conducted by FBI
agents, and from court-authorized electronic surveillance.
The Royal Machine & Tool Co. occupies a two-story building.
The first floor consists of about 13,000 square feet, and houses
industrial machinery and inventory. The second floor contains a
general office area of about 1,500 square feet and a small office
occupied by Calandra, president of the company, and his secretary.
On December 15, 1970, federal agents executed the warrant directed
at Calandra's place of business and conducted a thorough, four-hour
search of the premises. The record reveals that the agents spent
more than three hours searching Calandra's office and files.
Although the agents found no gambling paraphernalia, one
discovered, among certain promissory notes, a card indicating that
Dr. Walter Loveland had been making periodic payments to Calandra.
The agent stated in an affidavit that he was aware that the United
Page 414 U. S. 341
office for the Northern District of Ohio was investigating
possible violations of 18 U.S.C. §§ 892, 893, and 894, dealing with
extortionate credit transactions, and that Dr. Loveland had been
the victim of a "loansharking" enterprise then under investigation.
The agent concluded that the card bearing Dr. Loveland's name was a
loansharking record, and therefore had it seized along with various
other items, including books and records of the company, stock
certificates, and address books.
On March 1, 1971, a special grand jury was convened in the
Northern District of Ohio to investigate possible loansharking
activities in violation of federal laws. The grand jury subpoenaed
Calandra in order to ask him questions based on the evidence seized
during the search of his place of business on December 15, 1970.
Calandra appeared before the grand jury on August 17, 1971, but
refused to testify, invoking his Fifth Amendment privilege against
self-incrimination. The Government then requested the District
Court to grant Calandra transactional immunity pursuant to 18
U.S.C. § 2514. Calandra requested and received a postponement of
the hearing on the Government's application for the immunity order
so that he could prepare a motion to suppress the evidence seized
in the search.
Calandra later moved pursuant to Fed.Rule Crim.Proc. 41(e) for
suppression and return of the seized evidence on the grounds that
the affidavit supporting the warrant was insufficient, and that the
search exceeded the scope of the warrant. On August 27, the
District Court held a hearing at which Calandra stipulated that he
would refuse to answer questions based on the seized materials. On
October 1, the District Court entered its judgment ordering the
evidence suppressed and returned to Calandra and further ordering
that Calandra need not answer any of the grand jury's questions
based on the
Page 414 U. S. 342
suppressed evidence. 332 F.
(1971). The court held that
"due process . . . allows a witness to litigate the question of
whether the evidence which constitutes the basis for the questions
asked of him before the grand jury has been obtained in a way which
violates the constitutional protection against unlawful search and
at 742. The court found that the search warrant had
been issued without probable cause and that the search had exceeded
the scope of the warrant.
The Court of Appeals for the Sixth Circuit affirmed, holding
that the District Court had properly entertained the suppression
motion and that the exclusionary rule may be invoked by a witness
before the grand jury to bar questioning based on evidence obtained
in an unlawful search and seizure. [Footnote 2
] 465 F.2d 1218 (1972). The offer to grant
Calandra immunity was deemed irrelevant. Id.
We granted the Government's petition for certiorari, 410 U.S.
925 (1973). We now reverse.
The institution of the grand jury is deeply rooted in
Anglo-American history. [Footnote
] In England, the grand jury
Page 414 U. S. 343
served for centuries both as a body of accusers sworn to
discover and present for trial persons suspected of criminal
wrongdoing and as a protector of citizens against arbitrary and
oppressive governmental action. In this country, the Founders
thought the grand jury so essential to basic liberties that they
provided in the Fifth Amendment that federal prosecution for
serious crimes can only be instituted by "a presentment or
indictment of a Grand Jury." Cf. Costello v. United
States, 350 U. S. 359
350 U. S.
-362 (1956). The grand jury's historic functions
survive to this day. Its responsibilities continue to include both
the determination whether there is probable cause to believe a
crime has been committed and the protection of citizens against
unfounded criminal prosecutions. Branzburg v. Hayes,
408 U. S. 665
408 U. S.
Traditionally, the grand jury has been accorded wide latitude to
inquire into violations of criminal law. No judge presides to
monitor its proceedings. It deliberates in secret, and may
determine alone the course of its inquiry. The grand jury may
compel the production of evidence or the testimony of witnesses as
it considers appropriate, and its operation generally is
unrestrained by the technical procedural and evidentiary rules
governing the conduct of criminal trials.
"It is a grand inquest, a body with powers of investigation and
inquisition, the scope of whose inquiries is not to be limited
narrowly by questions of propriety or forecasts of the probable
result of the investigation, or by doubts whether any particular
individual will be found properly subject to an accusation of
Blair v. United States, 250 U.
, 250 U. S. 282
The scope of the grand jury's powers reflects its special role
in insuring fair and effective law enforcement. A grand jury
proceeding is not an adversary hearing in which the guilt or
innocence of the accused is adjudicated. Rather, it is an ex
investigation to determine
Page 414 U. S. 344
whether a crime has been committed and whether criminal
proceedings should be instituted against any person. The grand
jury's investigative power must be broad if its public
responsibility is adequately to be discharged. Branzburg v.
at 408 U. S. 700
Costello v. United States, supra,
at 350 U. S.
the Court had occasion to reaffirm the
importance of the grand jury's role:
"[T]he investigation of crime by the grand jury implements a
fundamental governmental role of securing the safety of the person
and property of the citizen. . . ."
408 U.S. at 408 U. S.
"The role of the grand jury as an important instrument of
effective law enforcement necessarily includes an investigatory
function with respect to determining whether a crime has been
committed and who committed it. . . . 'When the grand jury is
performing its investigatory function into a general problem area .
. . , society's interest is best served by a thorough and extensive
investigation.' Wood v. Georgia, 370 U. S.
, 370 U. S. 392
grand jury investigation 'is not fully carried out until every
available clue has been run down and all witnesses examined in
every proper way to find if a crime has been committed.' United
States v. Stone,
429 F.2d 138, 140 (CA2 1970). Such an
investigation may be triggered by tips, rumors, evidence proffered
by the prosecutor, or the personal knowledge of the grand jurors.
Costello v. United States,
350 U.S. at 350 U. S.
. It is only after the grand jury has examined the
evidence that a determination of whether the proceeding will result
in an indictment can be made. . . ."
at 408 U. S.
The grand jury's sources of information are widely drawn, and
the validity of an indictment is not affected
Page 414 U. S. 345
by the character of the evidence considered. Thus, an indictment
valid on its face is not subject to challenge on the ground that
the grand jury acted on the basis of inadequate or incompetent
evidence, Costello v. United States, supra; Holt v. United
States, 218 U. S. 245
(1910); or even on the basis of information obtained in violation
of a defendant's Fifth Amendment privilege against
self-incrimination, Lawn v. United States, 355 U.
The power of a federal court to compel persons to appear and
testify before a grand jury is also firmly established.
Kastigar v. United States, 406 U.
(1972). The duty to testify has long been
recognized as a basic obligation that every citizen owes his
Government. Blackmer v. United States, 284 U.
, 284 U. S. 438
(1932); United States v. Bryan, 339 U.
, 339 U. S. 331
(1950). In Branzburg v. Hayes, supra,
at 408 U. S. 682
and 408 U. S. 688
the Court noted that "[c]itizens generally are not constitutionally
immune from grand jury subpoenas . . . ," and that "the
longstanding principle that the public . . . has a right to
every man's evidence' . . . is particularly applicable to grand
jury proceedings." The duty to testify may on occasion be
burdensome, and even embarrassing. It may cause injury to a
witness' social and economic status. Yet the duty to testify has
been regarded as "so necessary to the administration of justice"
that the witness' personal interest in privacy must yield to the
public's overriding interest in full disclosure. Blair v.
United States, 250 U.S. at 250 U. S. 281.
Furthermore, a witness may not interfere with the course of the
grand jury's inquiry. He "is not entitled to urge objections of
incompetency or irrelevancy, such as a party might raise, for this
is no concern of his." Id. at 250 U. S. 282.
Nor is he entitled "to challenge the authority of the court or of
the grand jury" or "to set limits to the investigation that the
grand jury may conduct."
Page 414 U. S. 346
Of course, the grand jury's subpoena power is not unlimited.
] It may consider
incompetent evidence, but it may not itself violate a valid
privilege, whether established by the Constitution, statutes, or
the common law. Branzburg v. Hayes, supra; United States v.
Bryan, supra; Blackmer v. United States, supra;
8 J. Wigmore,
Evidence §§ 2290-2391 (McNaughton rev. ed.1961). Although, for
example, an indictment based on evidence obtained in violation of a
defendant's Fifth Amendment privilege is nevertheless valid,
Lawn v. United States, supra,
the grand jury may not force
a witness to answer questions in violation of that constitutional
guarantee. Rather, the grand jury may override a Fifth Amendment
claim only if the witness is granted immunity coextensive with the
privilege against self-incrimination. Kastigar v. United
Similarly, a grand jury may not compel a person
to produce books and papers that would incriminate him. Boyd v.
United States, 116 U. S. 616
116 U. S.
-635 (1886). Cf. Couch v. United States,
409 U. S. 322
(1973). The grand jury is also without power to invade a legitimate
privacy interest protected by the Fourth Amendment. A grand jury's
subpoena duces tecum
will be disallowed if it is "far too
sweeping in its terms to be regarded as reasonable" under the
Fourth Amendment. Hale v. Henkel, 201 U. S.
, 201 U. S. 76
(1906). Judicial supervision is properly exercised in such cases to
prevent the wrong before it occurs.
Page 414 U. S. 347
In the instant case, the Court of Appeals held that the
exclusionary rule of the Fourth Amendment limits the grand jury's
power to compel a witness to answer questions based on evidence
obtained from a prior unlawful search and seizure. The exclusionary
rule was adopted to effectuate the Fourth Amendment right of all
citizens "to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures. . . ." Under
this rule, evidence obtained in violation of the Fourth Amendment
cannot be used in a criminal proceeding against the victim of the
illegal search and seizure. Weeks v. United States,
232 U. S. 383
(1914); Mapp v. Ohio, 367 U. S. 643
(1961). This prohibition applies as well to the fruits of the
illegally seized evidence. Wong Sun v. United States,
371 U. S. 471
(1963); Silverthorne Lumber Co. v. United States,
251 U. S. 385
The purpose of the exclusionary rule is not to redress the
injury to the privacy of the search victim:
"[T]he ruptured privacy of the victims' homes and effects cannot
be restored. Reparation comes too late."
Linkletter v. Walker, 381 U. S. 618
381 U. S. 637
(1965). Instead, the rule's prime purpose is to deter future
unlawful police conduct and thereby effectuate the guarantee of the
Fourth Amendment against unreasonable searches and seizures:
"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
Elkins v. United States, 364 U.
, 364 U. S. 217
Page 414 U. S. 348
Accord, Mapp v. Ohio, supra,
at 367 U. S. 656
Tehan v. Schott, 382 U. S. 406
382 U. S. 416
(1966); Terry v. Ohio, 392 U. S. 1
392 U. S. 29
(1968). In sum, the rule is a judicially created remedy designed to
safeguard Fourth Amendment rights generally through its deterrent
effect, rather than a personal constitutional right of the party
aggrieved. [Footnote 5
Despite its broad deterrent purpose, the exclusionary rule has
never been interpreted to proscribe the use of illegally seized
evidence in all proceedings or against all persons. As with any
remedial device, the application of the rule has been restricted to
those areas where its remedial objectives are thought most
efficaciously served. The balancing process implicit in this
approach is expressed in the contours of the standing requirement.
Thus, standing to invoke the exclusionary rule has been confined to
situations where the Government seeks to use such evidence to
incriminate the victim of the unlawful search. Brown v. United
States, 411 U. S. 223
(1973); Alderman v. United States, 394 U.
(1969); Won Sun v. United States, supra;
Jones v. United States, 362 U. S. 257
(1960). This standing rule is premised on a recognition that the
need for deterrence, and hence the rationale for excluding the
evidence, are strongest where the Government's unlawful conduct
would result in imposition of a criminal sanction on the victim of
the search. [Footnote 6
Page 414 U. S. 349
In deciding whether to extend the exclusionary rule to grand
jury proceedings, we must weigh the potential injury to the
historic role and functions of the grand jury against the potential
benefits of the rule as applied in this context. It is evident that
this extension of the exclusionary rule would seriously impede the
grand jury. Because the grand jury does not finally adjudicate
guilt or innocence, it has traditionally been allowed to pursue its
investigative and accusatorial functions unimpeded by the
evidentiary and procedural restrictions applicable to a criminal
trial. Permitting witnesses to invoke the exclusionary rule before
a grand jury would precipitate adjudication of issues hitherto
reserved for the trial on the merits, and would delay and disrupt
grand jury proceedings. Suppression hearings would halt the orderly
progress of an investigation, and might necessitate extended
litigation of issues only tangentially related to the grand jury's
primary objective. [Footnote 7
Page 414 U. S. 350
result would be "protracted interruption of grand jury
proceedings," Gelbard v. United States, 408 U. S.
, 408 U. S. 70
(1972) (WHITE, J., concurring), effectively transforming them into
preliminary trials on the merits. In some cases, the delay might be
fatal to the enforcement of the criminal law. Just last Term, we
reaffirmed our disinclination to allow litigious interference with
grand jury proceedings:
"Any holding that would saddle a grand jury with mini-trials and
preliminary showings would assuredly impede its investigation and
frustrate the public's interest in the fair and expeditious
administration of the criminal laws."
United States v. Dionisio, 410 U. S.
, 410 U. S. 17
(1973). Cf. United States v. Ryan, 402 U.
(1971); Cobbledick v. United States,
309 U. S. 323
(1940). In sum, we believe that allowing a grand jury witness to
invoke the exclusionary rule would unduly interfere with the
effective and expeditious discharge of the grand jury's duties.
Against this potential damage to the role and functions of the
grand jury, we must weigh the benefits to be derived from this
proposed extension of the exclusionary rule. Suppression of the use
of illegally seized evidence against the search victim in a
criminal trial is thought to be an important method of effectuating
the Fourth Amendment. But it does not follow that the Fourth
Amendment requires adoption of every proposal that might deter
police misconduct. In Alderman v. United States,
at 394 U. S.
-175, for example, this
Page 414 U. S. 351
Court declined to extend the exclusionary rule to one who was
not the victim of the unlawful search:
"The deterrent values of preventing he incrimination of those
whose rights the police have violated have been considered
sufficient to justify the suppression of probative evidence even
though the case against the defendant is weakened or destroyed. We
adhere to that judgment. But we are not convinced that the
additional benefits of extending the exclusionary rule to other
defendants would justify further encroachment upon the public
interest in prosecuting those accused of crime and having them
acquitted or convicted on the basis of all the evidence which
exposes the truth."
We think this observation equally applicable in the present
Any incremental deterrent effect which might be achieved by
extending the rule to grand jury proceedings is uncertain, at best.
Whatever deterrence of police misconduct may result from the
exclusion of illegally seized evidence from criminal trials, it is
unrealistic to assume that application of the rule to grand jury
proceedings would significantly further that goal. Such an
extension would deter only police investigation consciously
directed toward the discovery of evidence solely for use in a grand
jury investigation. The incentive to disregard the requirement of
the Fourth Amendment solely to obtain an indictment from a grand
jury is substantially negated by the inadmissibility of the
illegally seized evidence in a subsequent criminal prosecution of
the search victim. For the most part, a prosecutor would be
unlikely to request an indictment where a conviction could not be
obtained. We therefore decline to embrace a view that would achieve
a speculative and undoubtedly
Page 414 U. S. 352
minimal advance in the deterrence of police misconduct at the
expense of substantially impeding the role of the grand jury.
Page 414 U. S. 353
Respondent also argues that each and every question based on
evidence obtained from an illegal search and seizure constitutes a
fresh and independent violation of the witness' constitutional
rights. [Footnote 9
Ordinarily, of course, a witness has no right of privacy before the
grand jury. Absent some recognized privilege of confidentiality,
every man owes his testimony. He may invoke his Fifth Amendment
privilege against compulsory self-incrimination, but he may not
decline to answer on the grounds that his responses might prove
embarrassing or result in an unwelcome disclosure of his personal
affairs. Blair v. United States, 250 U.
(1919). Respondent's claim must be, therefore,
not merely that the grand jury's questions invade his privacy but
that, because those questions are based on illegally obtained
evidence, they somehow
Page 414 U. S. 354
constitute distinct violations of his Fourth Amendment rights.
The purpose of the Fourth Amendment is to prevent unreasonable
governmental intrusions into the privacy of one's person, house,
papers, or effects. The wrong condemned is the unjustified
governmental invasion of these areas of an individual's life. That
wrong, committed in this case, is fully accomplished by the
original search without probable cause. Grand jury questions based
on evidence obtained thereby involve no independent governmental
invasion of one's person, house, papers, or effects, but rather the
usual abridgment of personal privacy common to all grand jury
questioning. Questions based on illegally obtained evidence are
only a derivative use of the product of a past unlawful search and
seizure. They work no new Fourth Amendment wrong. Whether such
derivative use of illegally obtained evidence by a grand jury
should be proscribed presents a question, not of rights, but of
In the usual context of a criminal trial, the defendant is
entitled to the suppression of not only the evidence obtained
through an unlawful search and seizure, but also any derivative use
of that evidence. The prohibition of the exclusionary rule must
reach such derivative use if it is to fulfill its function of
deterring police misconduct. In the context of a grand jury
proceeding, we believe that the damage to that institution from the
unprecedented extension of the exclusionary rule urged by
respondent outweighs the benefit of any possible incremental
deterrent effect. Our conclusion necessarily controls both the
evidence seized during the course of an unlawful search and seizure
and any question or evidence derived therefrom (the fruits of the
unlawful search). [Footnote
] The same considerations of logic and policy apply to both
Page 414 U. S. 355
of an unlawful search and seizure and derivative use of that
evidence, and we do not distinguish between them. [Footnote 11
The judgment of the Court of Appeals is
On the basis of the same affidavit, federal agents also obtained
warrants authorizing searches of Calandra's residence and
automobile. The present case involves only the search of the Royal
Machine & Tool Co.
The Court of Appeals affirmed the District Court's finding that
the search of Calandra's business and seizure of his property were
unlawful. 465 F.2d 1218, 1226 n. 5. Although the Government does
not agree with the court's finding, it has not sought review of
this issue. In addition, the Government has not challenged the
District Court's order directing return of the illegally seized
property to Calandra.
For a discussion of the history and role of the grand jury,
see Costello v. United States, 350 U.
, 350 U. S.
-362 (1956); Blair v. United States,
250 U. S. 273
250 U. S.
-283 (1919); Hale v. Henkel, 201 U. S.
, 201 U. S. 59
(1906); 4 W. Blackstone, Commentaries *301 et seq.;
Edwards, The Grand Jury 1-44 (1906); 1 F. Pollock & F.
Maitland, History of English Law 151 (2d ed.1909); 1 W. Holdsworth,
History of English Law 321-323 (7th rev. ed.1956).
The grand jury is subject to the court's supervision in several
respects. See Brown v. United States, 359 U. S.
, 359 U. S. 49
(1959); Fed.Rules Crim.Proc. 6 and 17; 1 L. Orfield, Criminal
Procedure Under the Federal Rules § 6:108, pp. 475-477 (1966). In
particular, the grand jury must rely on the court to compel
production of books, papers, documents, and the testimony of
witnesses, and the court may quash or modify a subpoena on motion
if compliance would to "unreasonable or oppressive." Fed.Rule
There is some disagreement as to the practical efficacy of the
exclusionary rule, and as the Court noted in Elkins v. United
States, 364 U. S. 206
364 U. S. 218
(1960), relevant "[e]mpirical statistics are not available."
Oaks, Studying the Exclusionary Rule in Search and
Seizure, 37 U.Chi.L.Rev. 665 (1970). We have no occasion in the
present case to consider the extent of the rule's efficacy in
In holding that the respondent had standing to invoke the
exclusionary rule in a grand jury proceeding, the Court of Appeals
relied on Fed.Rule Crim.Proc. 41(e). 465 F.2d at 1222-1224. Rule
41(e) provides, in relevant part, that
"[a] person aggrieved by an unlawful search and seizure may move
the district court . . . for the return of the property and to
suppress for the use as evidence anything so obtained. . . ."
It further states that "[t]he motion shall be made before trial
or hearing. . . ." We have recognized that Rule 41(e) is "no
broader than the constitutional rule." Alderman v. United
States, 394 U. S. 165
394 U. S. 173
n. 6 (1969); Jones v. United States, 362 U.
(1960). Rule 41(e), therefore, does not
constitute a statutory expansion of the exclusionary rule.
The Court of Appeals also found that the government's offer of
immunity under 18 U.S.C. § 2514 was irrelevant to respondent's
standing to invoke the exclusionary rule. 465 F.2d at 1221. We
agree with that determination for the reasons stated in Parts III,
IV, and V of this opinion.
The force of this argument is well illustrated by the facts of
the present case. As of the date of this decision, almost two and
one-half years will have elapsed since respondent was summoned to
appear and testify before the grand jury. If respondent's testimony
was vital to the grand jury's investigation in August, 1971, of
extortionate credit transactions, it is possible that this
particular investigation has been completely frustrated.
Respondent relies primarily on Silverthorne Lumber Co. v.
United States, 251 U. S. 385
(1920), which the dissent contends "plainly controls this case."
at 414 U. S. 362
In that case, federal officers unlawfully seized certain documents
belonging to the Silverthornes and their lumber company and
presented them to a grand jury that had already indicted the
Silverthornes and the company. A district court ordered the return
of the documents, but impounded photographs and copies of the
originals. Later, the prosecutor caused the grand jury to issue
subpoenas duces tecum
to the Silverthornes and the company
to produce the originals, and their refusal to comply led to a
contempt citation. In reversing the judgment, the Court held that
the subpoenas were invalid because they were based on knowledge
obtained from the illegally seized evidence, citing Weeks v.
United States, 232 U. S. 383
(1914). Mr. Justice Holmes, writing for the Court, stated that
"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
251 U.S. at 251 U. S.
is distinguishable from the present case
in several significant respects. There, plaintiffs in error had
previously been indicted by the grand jury, and thus could invoke
the exclusionary rule on the basis of their status as criminal
defendants. Moreover, the Government's interest in recapturing the
original documents was founded on a belief that they might be
useful in the criminal prosecution already authorized by the grand
jury. It did not appear that the grand jury needed the documents to
perform its investigative or accusatorial functions. Thus, the
primary consequence of the Court's decision was to exclude the
evidence from the subsequent criminal trial. Finally, prior to the
issuance of the grand jury subpoenas, there had been a judicial
determination that the search and seizure were illegal. The claim
of plaintiffs in error was not raised for the first time in a
pre-indictment motion to suppress requiring interruption of grand
By contrast, in the instant case, respondent had not been
indicted by the grand jury, and was not a criminal defendant. Under
traditional principles, he had no standing to invoke the
exclusionary rule. The effect of the District Court's order was to
deprive the grand jury of testimony it needed to conduct its
investigation. Furthermore, respondent's motion to suppress had not
been previously made, and required interruption of the grand jury
proceedings. In these circumstances, Silverthorne
certainly not controlling. To the extent that the Court's broad
dictum might be construed to suggest a different result in the
present case, we note that it has been substantially undermined by
later cases. See
Parts III and IV of this opinion.
At oral argument, counsel for respondent stated the contention
"I submit to the Court that each question asked of the
Respondent before the Grand Jury, which question was only asked
because of a past violation of the Fourth Amendment, [amounts to] a
new, immediate violation of the Fourth Amendment. . . . [A]
question derived from a past violation, a question into the privacy
of the witness amounts to another intrusion in violation of the
Tr. of Oral Arg. 17.
"[R]efusing to answer a question in which the question
conceivably is derived from a past violation of the Fourth
Amendment gives rise to an additional or new Fourth Amendment right
to resist answering that question, because the question itself
becomes an additional intrusion. . . ."
Tr. of Oral Arg.19-20.
It should be noted that, even absent the exclusionary rule, a
grand jury witness may have other remedies to redress the injury to
his privacy and to prevent a further invasion in the future. He may
be entitled to maintain a cause of action for damages against the
officers who conducted the unlawful search. Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.
(1971). He may also seek return of the illegally
seized property, and exclusion of the property and its fruits from
being used as evidence against him in a criminal trial. Go-Bart
Importing Co. v. United States, 282 U.
(1931). In these circumstances, we cannot say
that such a witness is necessarily left remediless in the face of
an unlawful search and seizure.
The dissent's reliance on Gelbard v. United States,
408 U. S. 41
(1972), is misplaced. There, the Court construed 18 U.S.C. § 2515,
the evidentiary prohibition of Tit. III of the Omnibus Crime
Control and Safe Streets Act of 1968, 82 Stat. 211, as amended, 18
U.S.C. §§ 2510-2520. It held that § 2515 could be invoked by a
grand jury witness as a defense to a contempt charge brought for
refusal to answer questions based on information obtained from the
witness' communications alleged to have been unlawfully intercepted
through wiretapping and electronic surveillance. The Court's
holding rested exclusively on an interpretation of Tit. III, which
represented a congressional effort to afford special safeguards
against the unique problems posed by misuse of wiretapping and
electronic surveillance. There was no indication, in either
or the legislative history, that Tit. III was
regarded as a restatement of existing law with respect to grand
jury proceedings. As MR. JUSTICE WHITE noted in his concurring
opinion in Gelbard,
Tit. III "unquestionably works a
change in the law with respect to the rights of grand jury
witnesses . . . . 408 U.S. at 408 U. S.
The dissent also voices concern that today's decision will
betray "the imperative of judicial integrity,'" sanction
"illegal government conduct," and even "imperil the very foundation
of our people's trust in their Government." Post at
414 U. S. 360.
There is no basis for this alarm. "Illegal conduct" is hardly
sanctioned, nor are the foundations of the Republic imperiled, by
declining to make an unprecedented extension of the exclusionary
rule to grand jury proceedings where the rule's objectives would
not be effectively served and where other important and historic
values would be unduly prejudiced. Cf. Alderman v. United
States, 394 U. S. 165
(1969); Linkletter v. Walker, 381 U.
S. 618 (1965); and cases cited supra, at
414 U. S.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE MARSHALL join, dissenting.
The Court holds that the exclusionary rule in search and seizure
cases does not apply to grand jury proceedings because the
principal objective of the rule is "to deter future unlawful police
414 U. S. 347
, and "it is unrealistic to assume that
application of the rule to grand jury proceedings would
significantly further that goal."
Page 414 U. S. 356
at 414 U. S. 351
This downgrading of the exclusionary rule to a determination
whether its application in a particular type of proceeding furthers
deterrence of future police misconduct reflects a startling
misconception, unless it is a purposeful rejection, of the
historical objective and purpose of the rule.
The commands of the Fourth Amendment are, of course, directed
solely to public officials. Necessarily, therefore, only official
violations of those commands could have created the evil that
threatened to make the Amendment a dead letter. But curtailment of
the evil, if a consideration at all, was at best only a hoped-for
effect of the exclusionary rule, not its ultimate objective.
Indeed, there is no evidence that the possible deterrent effect of
the rule was given any attention by the judges chiefly responsible
for its formulation. Their concern as guardians of the Bill of
Rights was to fashion an enforcement tool to give content and
meaning to the Fourth Amendment's guarantees. They thus bore out
James Madison's prediction in his address to the First Congress on
June 8, 1789:
"If they [the rights] are incorporated into the Constitution,
independent tribunals of justice will
Page 414 U. S. 357
consider themselves in a peculiar manner the guardians of those
rights; they will be an impenetrable bulwark against every
assumption of power in the Legislative or Executive; they will be
naturally led to resist every encroachment upon rights expressly
stipulated for in the Constitution by the declaration of
1 Annals of Cong. 439 (1789). Since, however, those judges were
without power to direct or control the conduct of law enforcement
officers, the enforcement tool had necessarily to be one capable of
administration by judges. The exclusionary rule, if not perfect,
accomplished the twin goals of enabling the judiciary to avoid the
taint of partnership in official lawlessness and of assuring the
people -- all potential victims of unlawful government conduct --
that the government would not profit from its lawless behavior,
thus minimizing the risk of seriously undermining popular trust in
That these considerations, not the rule's possible deterrent
effect, were uppermost in the minds of the framers of the rule
clearly emerges from the decision which fashioned it:
"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. . . . The tendency of
those who execute the criminal laws of the country to obtain
conviction by means of unlawful seizures . . . should find no
sanction in the judgments of the courts which are charged at all
times with the support of the Constitution and to which people of
Page 414 U. S. 358
have a right to appeal for the maintenance of such
fundamental rights. . . .
"* * * *"
"This protection is equally extended to the action of the
Government and officers of the law acting under it. . . . To
sanction such proceedings would be to affirm by judicial decision a
manifest neglect if not an open defiance of the prohibitions of the
Constitution, intended for the protection of the people against
such unauthorized action.
Weeks v. United States, 232 U.
, 232 U. S.
-392, 394 (1914) (emphasis added).
Mr. Justice Brandeis and Mr. Justice Holmes added their enormous
influence to these precepts in their notable dissents in
Olmstead v. United States, 277 U.
(1928). Mr. Justice Brandeis said:
"In a government of laws, existence of the government will be
imperiled if it fails to observe the law scrupulously. Our
Government is the potent, the omnipresent teacher. For good or for
ill, it teaches the whole people by its example. Crime is
contagious. If the Government becomes a lawbreaker, it breeds
contempt for law; it invites every man to become a law unto
himself; it invites anarchy."
at 277 U. S. 485
And Mr. Justice Holmes said:
"[W]e must consider the two objects of desire, both of which we
cannot have, and make up our minds which to choose. It is desirable
that criminals should be detected, and, to that end, that all
available evidence should be used. It also is desirable that the
Government should not itself foster and pay for other crimes when
they are the means by which the evidence is to be obtained. . . .
We have to
Page 414 U. S. 359
choose, and, for my part, I think it a less evil that some
criminals should escape than that the Government should play an
". . . If the existing code does not permit district attorneys
to have a hand in such dirty business, it does not permit the judge
to allow such iniquities to succeed."
at 277 U. S. 470
The same principles were reiterated less than six years ago. In
Terry v. Ohio, 392 U. S. 1
392 U. S. 12
(1968), Mr. Chief Justice Warren said for the Court:
"The rule also serves another vital function -- 'the imperative
of judicial integrity.' Elkins v. United States,
364 U. S.
, 364 U. S. 222
which sit under our Constitution cannot and will not be made party
to lawless invasions of the constitutional rights of citizens by
permitting unhindered governmental use of the fruits of such
It is true that deterrence was a prominent consideration in the
determination whether Mapp v. Ohio, 367 U.
(1961), which applied the exclusionary rule to
the States, should be given retrospective effect. Linkletter v.
Walker, 381 U. S. 618
(1965). But that lends no support to today's holding that the
application of the exclusionary rule depends solely upon whether
its invocation in a particular type of proceeding will
significantly further the goal of deterrence. The emphasis upon
deterrence in Linkletter
must be understood in the light
of the crucial fact that the States had justifiably relied from
1949 to 1961 upon Wolf v. Colorado, 338 U. S.
(1949), and consequently, that application of
would have required the wholesale release of
innumerable convicted prisoners, few of whom could have been
successfully retried. In that circumstance, Linkletter
held not only that retrospective application of Mapp
not further the goal of deterrence, but
Page 414 U. S. 360
that it would not further "the administration of justice and the
integrity of the judicial process." 381 U.S. at 381 U. S. 637
Cf. Kaufman v. United States, 394 U.
, 394 U. S. 229
Thus, the Court seriously errs in describing the exclusionary
rule as merely "a judicially created remedy designed to safeguard
Fourth Amendment rights generally through its deterrent effect. . .
at 414 U. S. 348
Rather, the exclusionary rule is "part and parcel of the Fourth
Amendment's limitation upon [governmental] encroachment of
individual privacy," Mapp v. Ohio, supra,
at 367 U. S. 651
and "an essential part of both the Fourth and Fourteenth
at 367 U. S. 657
"gives to the individual no more than that which the
Constitution guarantees him, to the police officer no less than
that to which honest law enforcement is entitled, and, to the
courts, that judicial integrity so necessary in the true
administration of justice."
at 367 U. S.
summation crystallizes the series of
decisions that developed the rule and with which today's holding is
plainly at war. For the first time, the Court today discounts to
the point of extinction the vital function of the rule to insure
that the judiciary avoid even the slightest appearance of
sanctioning illegal government conduct. This rejection of "the
imperative of judicial integrity," Elkins v. United
States, 364 U. S. 206
364 U. S. 222
(1960), openly invites "[t]he conviction that all government is
staffed by . . . hypocrites[, a conviction] easy to instill and
difficult to erase." Paulsen, The Exclusionary Rule and Misconduct
by the Police, 52 J.Crim.L.C. & P.S. 255, 258 (1961). When
judges appear to become "accomplices in the willful disobedience of
a Constitution they are sworn to uphold," Elkins v. United
at 364 U. S. 223
we imperil the very foundation of our people's trust in their
Government on which our democracy rests. See On Lee v.
Page 414 U. S. 361
States, 343 U. S. 747
343 U. S.
-759 (1952) (Frankfurter, J., dissenting). The
exclusionary rule is needed to make the Fourth Amendment something
real; a guarantee that does not carry with it the exclusion of
evidence obtained by its violation is a chimera. Moreover,
"[I]nsistence on observance by law officers of traditional fair
procedural requirements is, from the long point of view, best
calculated to contribute to that end. However much in a particular
case insistence upon such rules may appear as a technicality that
inures to the benefit of a guilty person, the history of the
criminal law proves that tolerance of shortcut methods in law
enforcement impairs its enduring effectiveness."
Miller v. United States, 357 U.
,3 357 U. S. 13
The judges who developed the exclusionary rule were well aware
that it embodied a judgment that it is better for some guilty
persons to go free than for the police to behave in forbidden
fashion. A similar judgment led the Court to decide in
Silverthorne Lumber Co. v. United States, 251 U.
(1920), that a grand jury must be denied access
to plainly relevant but illegally seized papers. In that case,
after federal agents unlawfully seized papers belonging to the
Silverthornes and their corporation, and presented the documents to
a grand jury which had previously indicted the Silverthornes, a
district court ordered the documents returned and copies that had
been prepared in the interim impounded. After returning the
originals, the grand jury attempted to recoup them by issuance of a
subpoena duces tecum.
Compliance with the subpoena was
refused, and contempt convictions followed. In reversing the
judgment of convictions, the Court, speaking through Mr. Justice
Holmes, held that the Government was barred from utilizing any
fruits of its forbidden act,
Page 414 U. S. 362
"[t]he 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 291 U. S.
plainly controls this case. Respondent,
like plaintiffs in error in Silverthorne,
] seeks to avoid furnishing the grand
jury with evidence that he would not have been called upon to
supply but for the unlawful search and seizure. The Court would
on the ground that there, the
plaintiffs in error had been indicted, and could invoke the
exclusionary rule "on the basis of their status as criminal
defendants," since the Government's effort to obtain the documents
was "founded on a belief that they might be useful in the criminal
prosecution already authorized by the grand jury." Ante
251 U. S. 352
n. 8. The effort was clearly not founded on any such belief.
Overlooked is the fact that the grand jury's interest in again
obtaining the documents in Silverthorne
may well have been
to secure information leading to further criminal charges,
especially since indictments of three other individuals, as well as
additional indictments of the Silverthornes, had been the
consequence of initial submission of the documents to the grand
Brief on Behalf of Plaintiffs in Error in No.
358, O.T. 1919, pp. 4, 119. [Footnote
Page 414 U. S. 363
Only if Silverthorne
is overruled can its precedential
force to compel affirmance here be denied.
Congressional concern with the Silverthorne
clearly evidenced in enactment of 18 U.S.C. § 2515, providing
"[w]henever any wire or oral communication has been intercepted,
no part of the contents of such communication and no evidence
may be received in evidence in any . . .
proceeding in or before any . . . grand jury
. . . if the
disclosure of that information would be in violation of this
(Emphasis added.) In Gelbard v. United States,
408 U. S. 41
(1972), we set aside the adjudication in criminal contempt of a
grand jury witness who refused to comply with a court order to
testify on the ground that interrogation was to be based upon
information obtained from the witness' communications allegedly
intercepted by federal agents by means of illegal wiretapping and
electronic surveillance. Our reasons track the grounds advanced in
"The purposes of § 2515 and Title III as a whole would be
subverted were the plain command of § 2515 ignored when the victim
of an illegal interception is called as a witness before a grand
jury and asked questions based upon that interception. Moreover, §
2515 serves not only to protect the privacy of communications, but
also to ensure that the courts do not become partners to illegal
conduct; the evidentiary prohibition was enacted also 'to protect
the integrity of court and administrative proceedings.'
Consequently, to order a grand jury witness, on pain of
imprisonment, to disclose evidence that § 2515 bars in unequivocal
terms is both
Page 414 U. S. 364
to thwart the congressional objective of protecting individual
privacy by excluding such evidence and to entangle the courts in
the illegal acts of Government agents."
408 U.S. at 408 U. S. 51
Similarly, to allow Calandra to be subjected to questions
derived from the illegal search of his office and seizure of his
"to thwart the [Fourth and Fourteenth Amendments' protection] of
. . . individual privacy . . . and to entangle the courts in the
illegal acts of Government agents."
"And for a court, on petition of the executive department, to
sentence a witness, who is [himself] the victim of the illegal
[search and seizure], to jail for refusal to participate in the
exploitation of that [conduct in violation of the explicit command
of the Fourth Amendment] is to stand our whole system of criminal
justice on its head."
In re Evans,
146 U.S.App.D.C. 310, 323, 452 F.2d 1239,
1252 (1971) (Wright, J., concurring).
It is no answer to suggest, as the Court does, that the grand
jury witnesses' Fourth Amendment rights will be sufficiently
protected "by the inadmissibility of the illegally seized evidence
in a subsequent criminal prosecution of the search victim."
at 414 U. S. 351
This, of course, is no alternative for Calandra, since he was
granted transactional immunity, and cannot be criminally
prosecuted. But the fundamental flaw of the alternative is that to
compel Calandra to testify in the first place under penalty of
contempt necessarily "thwarts" his Fourth Amendment protection and
"entangle[s] the courts in the illegal acts of Government agents"
-- consequences that Silverthorne
To be sure, the exclusionary rule does not "provide that
illegally seized evidence is inadmissible against anyone for any
purpose." Alderman v. United States, 394 U.
, 394 U. S. 175
(1969). But clearly there is a crucial
Page 414 U. S. 365
distinction between withholding its cover from individuals whose
Fourth Amendment rights have not been violated -- as has been done
in the "standing" cases, Alderman v. United States, supra;
Jones v. United States, 362 U. S. 257
(1!60) -- and withdrawing its cover from persons whose Fourth
Amendment rights have, in fact, been abridged.
Respondent does not seek vicariously to assert another's Fourth
Amendment rights. He himself has been the victim of an illegal
search and desires "to mend no one's privacy [but his] own."
Gelbard v. United States, supra,
at 408 U. S. 63
(DOUGLAS, J., concurring). Respondent is told that he must look to
damages to redress the concededly unconstitutional invasion of his
privacy. In other words, officialdom may profit from its
lawlessness if it is willing to pay a price.
the Court thought it had "close[d] the only
courtroom door remaining open to evidence secured by official
lawlessness" in violation of Fourth Amendment rights. 367 U.S. at
367 U. S.
-655. The door is again ajar. As a consequence, I am
left with the uneasy feeling that today's decision may signal that
a majority of my colleagues have positioned themselves to reopen
the door still further and abandon altogether the exclusionary rule
in search and seizure cases, for surely they cannot believe that
application of the exclusionary rule at trial furthers the goal of
deterrence, but that its application in grand jury proceedings will
not "significantly" do so. Unless we are to shut our eyes to the
evidence that crosses our desks every day, we must concede that
official lawlessness has not abated, and that no empirical data
distinguishes trials from grand jury proceedings. I thus fear that,
when next we confront a case of a conviction rested on illegally
seized evidence, today's decision will be invoked to sustain the
conclusion in that case
Page 414 U. S. 366
also, that "it is unrealistic to assume" that application of the
rule at trial would "significantly further" the goal of deterrence
-- though, if the police are presently undeterred, it is difficult
to see how removal of the sanction of exclusion will induce more
lawful official conduct.
The exclusionary rule gave life to Madison's prediction that
"independent tribunals of justice . . . will be naturally led to
resist every encroachment upon rights expressly stipulated for in
the Constitution by the declaration of rights."
1 Annals of Cong. 439 (1789). We betray the trust upon which
that prediction rested by today's long step toward abandonment of
the exclusionary rule. The observations of a recent commentator
highlight the grievous error of the majority's retreat:
"If constitutional rights are to be anything more than pious
pronouncements, then some measurable consequence must be attached
to their violation. It would be intolerable if the guarantee
against unreasonable search and seizure could be violated without
practical consequence. It is likewise imperative to have a
practical procedure by which courts can review alleged violations
of constitutional rights and articulate the meaning of those
rights. The advantage of the exclusionary rule -- entirely apart
from any direct deterrent effect -- -is that it provides an
occasion for judicial review, and it gives credibility to the
constitutional guarantees. By demonstrating that society will
attach serious consequences to the violation of constitutional
rights, the exclusionary rule invokes and magnifies the moral and
educative force of the law. Over the long term, this may integrate
some fourth amendment ideals into the value system or norms of
behavior of law enforcement agencies."
Oaks, Studying the
Page 414 U. S. 367
Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665,
756 (1970). See also
Dellinger, Of Rights and Remedies:
The Constitution as a Sword, 85 Harv.L.Rev. 1532, 1562-1563
I dissent and would affirm the judgment of the Court of
Neither the Silverthorne Lumber Co., because it was a
corporation, see Hale v. Henkel, 201 U. S.
(106), nor respondent, because he was granted
transactional immunity, could invoke the privilege against
self-incrimination. The situations are therefore completely
The Court also argues that "[t]he [Silverthornes' claim] was not
raised for the first time in a pre-indictment motion to suppress
requiring interruption of grand jury proceedings," ante
414 U. S. 352
n. 8, and therefore, presumably, its assertion occasioned no delay.
However, the District Court in Silverthorne
had granted an
earlier application for return of the seized documents from the
grand jury after determining that they had been obtained in
violation of the Fourth Amendment. This Court made no intimation
that the District Court acted improperly in considering the initial