concurring: I join in parts I and II of the majority opinion. I do not join in part III of the majority opinion. Since part III of the majority opinion does not affect the result (majority opinion, pp. 336, 341), I agree with the result reached by the majority.
Part III of the majority opinion deals with "the exclusionary rule”. In general terms, "the exclusionary rule”1 operates in certain instances to exclude illegally obtained evidence.
Although evidence is excluded under "the exclusionary rule”, most evidence exclusion problems do not fall within "the exclusionary rule”. For example, exclusion of evidence on account of hearsay (rule 802, Fed. R. Evid.), prejudice (rule 403, Fed. R. Evid.), compromise offers (rule 408, Fed. R. Evid.), the "best evidence rule” (rule 1002, Fed. R. Evid.), or any of a host of other exclusionary rules codified by the Congress in the Federal Rules of Evidence, are not in any way connected with "the exclusionary rule”. Likewise, the question of exclusion of evidence in the instant case is in no way connected with "the exclusionary rule”.
Further, the sine qua non of "the exclusionary rule”— deterrence of Government functionaries from violating a person’s constitutional or statutory rights in the seizing of or searching for property — is not present in the instant case. In the cases cited in part III of the majority opinion, the violation of rights occurred when the Government initially improperly obtained the evidence in question. Subsequent use of the evidence was not itself a part oí* the violation of rights.2
The instant case deals with what, seems to me to be an essentially different situation. In the instant case, the Government's obtaining of the information, and its use in the grand jury proceeding, did not violate petitioner’s constitutional or statutory rights.
Rather, the problem in the instant case arises from the use to which respondent apparently has put the obtained information. It is this type of use which drew the disapproval of the Supreme Court in United States v. Baggot, 463 U.S. 476 (1983).3 See also United States v. Sells Engineering, Inc., 463 U.S. 418, _ (1983).4
From the Supreme Court’s recent description of the basic considerations in application of the Fourth Amendment exclusionary rule (see notes 1 & 2 supra), when set off against the Supreme Court’s recent description of the basic considerations in rule 6(e) order cases (see notes 3 & 4 supra), it appears to me the Fourth Amendment exclusionary rule is not relevant to those rule 6(e) order cases where the argued invalidity of the rule 6(e) order depends on the way respondent uses the disclosed information.
In the instant case, under the Baggot standard, respondent might have been able to obtain the disclosed information for a proper use; however, if we were to apply the Baggot standard, then the use that respondent has made of the disclosed information is itself the wrong that is being complained of.
In order to prevent an actual use of information which would violate the Supreme Court’s understanding of the strictures of rule 6(e), Fed. R. Crim. P., as enacted by the Congress,5 we are obligated to examine the propriety of the use. I agree with part I of the majority opinion that we have authority to so examine and to act on the conclusion we. reach after such examination. However, I also agree with part II of the majority opinion that complete retroactivity of the Supreme Court’s Baggot and Sells interpretations "would have a disruptive effect on the administration of justice.” (Majority opinion at pp. 334-335.)
Accordingly, I concur in the result reached by the majority in the instant case.
The Supreme Court’s opinion in United States v. Leon, 468 U.S._(1984), refers to this as "the Fourth Amendment exclusionary rule”.
In its recent opinion in United States it- Leon,- 468 .U.S.' (1984),the Supreme Court stated . this point aS follows (468 U.S,.at I:
"The Fourth Amendment contains-no-provision ,'expressly precluding, the use of evidence obtained in violation of its commands, and an examination of its origin and purposes makes clear that the use of fruits of a past unlawful search or seizure ’worlds] ho new Fourth’ Amendment wrong.’ United States v. Calandra, 414 U.S. 338, 854 (1974).-The. wrong condemned by the Amendment is. "fully accomplished” by the unlawful search or. seizure itself, ibid., and the exclusionary rule is neither intended nór able’to "cure the invasion of the defendant’s rights which he has already súttetei.”'Stone v. Powell, supraf at 540 (White, J., dissenting).' The- rule* thus operates as; ’a judicially created remedy designed' to safeguard Fourth. Amendment rights generally through its deterrent effect, rather timn a personal constitutional right of the person aggrieved.’ United States v. Calandrar supra, at 348.”
The two requirements; though-related-in, some ways, .are independent prerequisites to disclosure. The particularized need test is a criterion of degree; the ’judicial proceeding’ language (CXi) imposes an additional criterion governing the kind of need that must be'shovim. If reflects judgment that not every beneficial purpose, or even every valid governmental purpose, is an appropriate reason for breaching grand jury secrecy. Rather, the Rule contemplates only uses related fairlydirectly to some identifiable litigation, pending or anticipated. Thus, it is not enough to show that some litigation may emerge, from the matter in which the material is to be used, or even that litigation is factually likely to emerge. The focus is on the actual use to be made of the material. If the primary purpose of disclosure is not to assist in preparation or conduct of a judicial proceeding, disclosure under (CXi) is not permitted. See United States v. Young, 494 F.Supp. 57, 60-61 (ED Tex. 1980).” [Emphasis in original; fn. ref. omitted.]
"’Second, because the Government takes an active part in the activities of the grand jury, disclosure to government attorneys for civil use poses a significant threat to the integrity of the grand jury itself. If prosecutors in a given case knew that their colleagues would be free to use the materials generated by the grand jury for a civil case, they might be tempted to manipulate the grand jury’s powerful investigative tools to root out additional evidence useful in the civil suit, or even to start or continue a grand jury inquiry where no criminal prosecution seemed likely. Any such use of grand jury proceedings to elicit evidence for use in a civil case is improper per se. Procter & Gamble, 356 U.S., at 683-684, 78 S.Ct., at 986-987. We do not mean to impugn the professional characters of Justice Department lawyers in general; nor do we express any view on the allegations of misuse that have been made in this case, see n. 36, infra. Our concern is based less on any belief that grand jury misuse is in fact widespread than on our concern that, if and when it does occur, it would often be very difficult to detect and prove. Moreover, as the legislative history discussed infra, Part III-B, shows, our concern over possible misappropriation of the grand jury itself was shared by Congress when it enacted the present version of Rule 6(e). Such a potential for misuse should not be allowed absent a clear mandate in the law.”
See part III-B of the Supreme Court’s opinion in United States v. Sells Engineering, Inc., 463 U.S. 418 (1983), for a description of the Congress’ actions, taking the text of rule 6(e), Fed. R. Crim. P., out of the hands of the Supreme Court.