(dissenting).
The majority decision has the following effects:
1. What was formerly a limited exclusionary rule of evidence operating on behalf of defendants in criminal proceedings is now an unqualified witness privilege.
2. That unqualified witness privilege applies in every proceeding, state or federal, civil, criminal or administrative.1
3. A decision on the recognition or nonreeognition of the witness privilege will result in an appealable order.2
4. The privilege, at least according to Judge Adams, applies not only to witnesses who have been subjected to electronic surveillance, but to witnesses whose fourth amendment rights have been violated in any way.
An appreciation of the full reach of this new witness privilege can be gained by hypothesizing a situation which could conceivably arise in the very proceedings out of which this case arose. Suppose that there was in fact unlawful electronic surveillance of Sister Egan’s telephone, *222and suppose that from that surveillance the government learned that Sister Egan has information which is decidedly helpful to the defense of one of those indicted; Father Berrigan, for example. If the government disclosed to Father Berrigan that Sister Egan would be a helpful witness, a disclosure compelled by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Sister Egan could nevertheless under the majority holding refuse to testify. That hypothetical illustrates, for me at least, the tremendous difference between an exclusionary rule of evidence operating for the benefit of a party to litigation and thus within the party’s control, and an unqualified witness privilege.
Indeed, there is much language in Judge Adams’ opinion from which one could conclude that more than a witness privilege is operating; language to the effect that the judicial process is flatly barred from availing itself of the “tainted" truth of which the witness has knowledge.3 I am not convinced that either the framers of the fourth amendment or the members of the Ninetieth Congress intended any such result.
Certainly nothing in the history of the exclusionary rule as it was developed by the Supreme Court under the fourth amendment and under § 605 of the Federal Communications Act, 47 U.S.C. § 605 (1964), lends support for turning a limited exclusionary rule of evidence into a witness privilege or a flat prohibition. Indeed, as I will develop hereinafter, the cases in the Supreme Court show that this was not the intention. Congress, I believe, intended to go no further than the court had gone.
I start by calling to mind two fundamental considerations. First, it has been recognized for at least three centuries that the public has the right to every person’s testimony. Every witness privilege is seriously in derogation of a general and fundamental duty. United States v. Bryan, 339 U.S. 323, 333, 70 S.Ct. 724, 94 L.Ed. 884 (1950); Black-mer v. United States, 284 U.S. 421, 438, 52 S.Ct. 252, 76 L.Ed. 375 (1932); Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919). That duty exists despite the fact that it always involves a sacrifice not only of time and convenience but also of the privacy to which so much of the majority opinion is devoted. The witness’ privacy yields to a paramount public interest even though his testimony may subject him to enmity, ridicule, danger or disgrace. That paramount public interest outweighs considerations of witness privacy because the whole life of the community depends upon how well the institutions of justice perform their role of social lubricator.
Next, we must keep before us the nature of the American judicial process. It resolves cases and controversies in an adversary setting. It does not have machinery for righting all wrongs which may surface in any given case or controversy. Determination of the rights of third parties inevitably interrupts, delays and confuses the primary litiga*223tion. Especially is this so when the third party may pursue appeals which, as to the main litigation, are interlocutory. When the determination of the rights of third parties is done, as here, for the purpose of imposing sanctions for past injury to the third party, the litigants and the judicial process, rather than the wrongdoer, are made to incur the sanction. In a criminal trial if the government is deprived of the third party testimony it is the commonweal rather than the wrongdoer which has been punished.4 If the defendant is deprived of the third party testimony the defendant has been deprived of a fundamental civil right; a right so important it is enshrined in the compulsory process clause of the sixth amendment.5 If in a civil action a witness is permitted to claim this privilege, a worthy and innocent litigant may be denied relief.
In light of these two fundamental considerations: the need for witness testimony, and the inconvenience of righting third party wrongs in a given case, the creation of a witness privilege is not a step to be taken lightly. Speaking of the less drastic step of an exclusionary rule to which a party may resort, Justice Frankfurter wrote:
“Any claim for the exclusion of evidence logically relevant in criminal prosecutions is heavily handicapped. It must be justified by an over-riding public policy expressed in the Constitution or the law of the land.” Nardone v. United States, 308 U.S. 338, 340, 60 S.Ct. 266, 267, 84 L.Ed. 307 (1939).
The majority opinion attempts to minimize the potential effect on the judicial process o,f litigating a new third party privilege by saying, “We assume that the Government will attempt to conduct surveillance within statutory and constitutional limits, and that only in a slight number of cases will there be a violation of the rules governing wiretapping.” This assumption, supported by no empirical foundation, undermines the only public policy which could possibly be weighed in favor of the witness privilege. By hypothesis the invasion of privacy about which a given witness complains has already occurred. The only public policy consideration favoring imposition of an evidentiary sanction on the government is that such a sanction is needed to deter anticipated future violations.6 If violations are, as the majority *224opinion assumes, likely to be rare, how does the need for the sanction outweigh both the need for the testimony and the harm of litigating third party claims ?
The majority opinion also suggests that in most instances the third party litigation will not be a serious interference. It suggests that, “in most cases the Government will simply represent to the court that no electronic surveillance has been employed by the Government,” and that, “[o]nly in a minimal number of cases do we expect that the Government will be found to have conducted electronic surveillance in violation of the statute * * *.” Both suggestions unrealistically conceal the practicalities which courts will face. In the first place, to the extent that the decision is based upon the fourth amendment rather than on 18 U.S.C. § 2515, the third party witness will be able to litigate any search and seizure question, not only questions arising out of electronic surveillance. This will include litigation over the propriety of the magistrate’s action in authorizing the warrant. In the second place the statute reaches not only electronic surveillance made by the federal government, but all such surveillance, even by private persons. The discovery procedure specified in Alderman v. United States, supra, even as limited by the Organized Crime Control Act of 1970, 18 U.S.C.A. § 3504 (Supp.1971), requires disclosure to the witness of all such surveillance, assuming the witness has the rights created by the majority opinion. Undoubtedly in many cases the raw files of the Justice Department will contain references to surveillances conducted by state agencies or private persons. Particularly is this true in the area of organized crime. If any such information is in the Justice Department’s files a witness will demand a hearing as to whether the information about which the government proposes to inquire has an origin independent of the electronic source.
The majority suggests that, “ * * * the primary matter of inquiry would be whether the Government can demonstrate an independent basis, aside from the illegal surveillance, upon which to justify the questions propounded before the grand jury.” This implies that the issue of witness privilege will arise only at the grand jury stage. But if it is a witness privilege it can be asserted at any stage of all of the proceedings listed in 18 U.S.C. § 2515. It will certainly be asserted in many civil actions; government antitrust suits, for example. The privilege, asserted at the trial stage in any civil or criminal trial and resulting in an appealable order, will provide a new means for interfering with the orderly disposition of cases, the full consequences of which cannot be disregarded as easily as the majority suggest.
Thus I reject categorically the assumption that the impact of the majority ruling will be slight. It will have a significant impact on a system of justice already overburdened by the disposition of disputes between parties directly concerned. Adding any number of third party witness controversies, even a small number, will be harmful to the administration of justice.
Of course if the result is compelled by case law or statute my judgment that the result is harmful to the public interest counts for little. But I do not agree that either the case law construing fourth amendment or the statute, enlightened by its legislative history, compels the result reached by the majority.
Before discussing either the case law or the statute we can set to one side a non-issue — standing in the Article III sense. It is perfectly clear that a witness can create a case or controversy to test the existence of a witness privilege by standing in contempt of an order to testify. E. g., Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951) (claim of privilege against self-incrimination) ; Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951) (claims of privilege against self-incrimination and husband-wife communications privilege); Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (claim of attorney-client privilege); Caldwell v. United States, *225434 F.2d 1081 (9 Cir. 1970), cert, granted, 402 U.S. 942, 91 S.Ct. 1616, 29 L.Ed. 2d 109, (1971) (claim of news source privilege). Moreover, it makes no difference that the witness asserts his privilege in a grand jury proceeding. If it exists it can be raised. The omission of the word grand jury in 18 U.S.C. 2518 (10) (a) is not, for standing purposes, significant since the contempt proceeding becomes a separate proceeding from the grand jury inquiry. Furthermore, the omission of the term “grand jury” in Section 2518(10) (a) of the Omnibus Crime Control Act of 1968 would seem to have been corrected by Section 702 of the Organized Crime Control Act of 1970. 18 U.S.C.A. § 3504(a) (Supp., 1971). The fact of standing to litigate the issue of witness privilege, however, does not support the conclusion that the privilege exists.
The privilege must be found either in the Omnibus Crime Control Act of 1968 or in the Supreme Court’s exegesis of the fourth amendment. Starting with the statute, Section 2515 reads:
“Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence * * * if the disclosure of that information would be in violation of this chapter.” (Emphasis supplied)
This section applies to the contents and fruit of every interception, both lawful and unlawful, but it applies only if some other section of the chapter makes disclosure unlawful. Section 2515 is not self-operating. The only section of the chapter which makes disclosure unlawful is 18 U.S.C. § 2511(1) (c):
“(1) Except as otherwise specifically provided in this chapter any person who—
*******
(c) wilfully discloses, or endeavors to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection; * * * shall be fined not more than $10,000 or imprisoned not more than five years, or both.”
Section 2517 lists the “otherwise specifically provided” instances in which disclosure of intercepted communications may be made. Significantly, that section shows that Congress was aware of the distinction between an exclusionary rule of evidence and a personal privilege, for subsection (4) provides:
“(4) No otherwise privileged wire or oral communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character.”
Of that subsection the Senate Report on the bill says:
“Traditionally, the interest of truth in the administration of justice has been subordinated in the law to the interest of preserving privileged communications where four relationships have been involved: physician-patient, lawyer-client, clergyman-confidant, and husband-wife. The scope and existence of these privileges varies from jurisdiction to jurisdiction. The proposed provision is intended to vary the existing law only to the extent it provides that an otherwise privileged communication does not lose its privileged character because it is intercepted by a stranger.” S.Rep.No. 1097, 90th Cong., 2d Sess. (1968), 1968 U.S.Code Cong. & Adm.News at p. 2189.
If a witness privilege was created by Title III of the Omnibus Crime Control Act of 1968 it was created by the language of 18 U.S.C. § 2511(1) (c) quoted above. Since Congress was well aware of the distinction between exclusionary rules of evidence and witness privileges, and at one point treated the latter separately, I cannot read into § 2511(1) (c) the intention ascribed to it by the majority. That language is broadly prohibitory. Yet it cannot be given a literal *226reading that would flatly prevent any use of a conversation once that conversation has been intercepted. Were this the case, if my telephone was tapped and I learned of the tap I would thereafter be prohibited from testifying to the contents of the overheard conversation. Short of a literal prohibitory reading which would apply § 2511(1) (c) to the victim as well as the interceptor, there is no language from which a witness privilege may be implied.
Additional light on congressional intention can be gained from the Senate Report’s discussion of § 2517(1) and (2), the’ subsections authorizing disclosure of certain interceptions:
“Neither paragraphs (1) or (2) are limited to evidence intercepted in accordance with the provisions of the proposed chapter, since in certain limited situations disclosure and use of legally intercepted communications would be appropriate to the proper performance of the officers’ duties. For example, such use and disclosure would be necessary in the investigation and prosecution of an illegal wiretapper himself. (See United States v. Gris, 146 F.Supp. 293 (S.D.N.Y.1956), affirmed 247 Fed. 860 (2d 1957)) [sic].” S.Rep. No. 1097, supra, at p. 2188.
Another instance where disclosure of even an illegally intercepted communication would be required by the proper performance of the officers’ duties would be the furnishing of information help-jful to the defense in a criminal case. Brady v. Maryland, supra. Certainly in the case of the prosecution of a wiretapper or in the case o,f discovery of a wit- ^ ness helpful to the defense Congress did not intend to preserve the officers’ duty to prosecute or to disclose, but give the witness a privilege not to cooperate.
The majority opinion relies upon the definition of aggrieved person in § 2510 (11):
“ ‘Aggrieved person’ means a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed.”
The Senate Report says:
“This definition defines the class of those who are entitled to invoke the suppression sanction of section 2515 discussed below, through the motion to suppress provided for by section 2518 (10) (a), also discussed below. It is intended to reflect existing law (Jones v. United States, 80 S.Ct. 725, 362 U. S. 257 [4 L.Ed.2d 697] (1960); Goldstein v. United States, 62 S.Ct. 1000, 316 U.S. 114 [86 L.Ed. 1312] (1942); Wong Sun v. United States, 83 S.Ct. 407, 371 U.S. 471 [9 L.Ed.2d 441] (1963); see United States ex rel. De Forte v. Mancusi, 379 F. 897 (2d 1967) (sic), certiorari granted, Jan. 22, 1968, No. 844, (1967 Term).” 7 S. Rep. No. 1097, supra, at pp. 2179-80.
Each of the cases cited in the Senate Report involved a suppression motion by a defendant in a criminal case in his capacity as a defendant. In Jones v. United States, supra, Justice Frankfurter wrote:
“Rule 41(e) [Fed.R.CrimProc.] applies the general principle that a party will not be heard to claim a constitutional protection unless he ‘belongs to the class for whose sake the constitutional protection is given.’ ” 362 U.S. at 261, 80 S.Ct. at 731 (emphasis added)
Goldstein v. United States, supra, holds that despite the decisions in Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298 (1939) and Nardone v. United States, supra, testimony o,f co-conspirators obtained as a result of wiretaps which violated 47 U.S.C. § 605 is properly admissible in evidence against a defendant not a party to the intercepted conversation. It seems clear that in defining aggrieved person in § 2510(11) Congress intended no more than to refer to the same persons who would have been aggrieved persons under Rule 41(e) *227or under § 605 of the Federal Communications Act. Standing, in the sense of who may make a Rule 41(e) motion, as distinguished from standing in the conventional Article III sense, is an issue. But stating the issue as one of standing is only another way of asking if the witness privilege exists. The majority opinion cites no cases and I have found none, in which the court permitted a suppression motion under § 605 of the Federal Communications Act on behalf of a person not a defendant. The majority opinion cites no case, and I have found none, holding that a stranger to a criminal proceeding can make a motion under Rule 41 (e). Grant v. United States, 282 F.2d 165 (2 Cir. 1960) is certainly not such a case. The court there held that an ex parte order directing the United States Attorney to show cause why certain evidence should not be presented to the grand jury was not an appealable order. Judge Friendly expressed doubt about the propriety of granting the relief requested, a doubt amply vindicated by the subsequent decision of the Supreme Court in United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed. 510 (1966). United States v. Foley, 283 F.2d 582 (2 Cir. 1960) is even less in point. It is merely another phase of the litigation in Grant v. United States, supra. The cases involved taxpayers who were target defendants in a tax fraud investigation not yet indicted. Thus the taxpayers were not moving merely as witnesses. After the Grant decision they sought discovery of certain documents in the government’s possession in connection with the hearing on the order to show cause. The govemment sought review by way of mandamus of an order of the district court directing the submission to it of such documents for its inspection. The Second Circuit declined to issue the writ. Insofar as the case bears on the issue presented here, Judge Friendly reiterated his doubt about the sufficiency of the taxpayer’s motion. He held, however, that the motion was not so clearly lacking in merit as to warrant interference by mandamus before the district court heard the matter. Centracchio v. Garrity, 198 F.2d 382 (1 Cir. 1952), cert, denied, 344 U.S. 866, 73 S.Ct. 108, 97 L.Ed. 672 (1952), involved a target defendant who by the time the case reached the court o,f appeals had actually been indicted. Judge Magruder discussed those cases which suggest that when a potential defendant makes a pre-indictment suppression motion there may be federal jurisdiction to hear the motion based upon the court’s inherent power to discipline the United States Attorney as an officer of the court. He held, however, that a pre-indictment petition seeking suppression lacks equity and should be dismissed without prejudice to its renewal, pursuant to Rule 41(e), after the indictment. Thus the case is a square holding that even a target defendant lacks standing to make a Rule 41(e) motion prior to an indictment.8 Compare In re Fried, 161 F.2d 453 (2 Cir.); cert, denied, 331 U.S. 858, 67 S.Ct. 1751, 91 L.Ed. 1865 (1947).
In footnote 15 the majority opinion cites Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931), for the proposition that victims of illegal searches who were *228not defendants and not parties to any criminal proceeding could prior to the adoption of Rule 41(e) move to suppress. The case deals with a pre-indictment motion for return and suppression made by two persons who had been named in a criminal complaint and arrested. The motion was joined in by their corporate employer, technically a stranger to the criminal proceedings. The Supreme Court ordered the fruit of the seizure to be suppressed and returned, thus implying that the corporation was a proper movant. However, the interest of the corporation in the return of its documents was distinct from that of the defendants in having the evidence suppressed. While the case can possibly be read as allowing a stranger to criminal proceedings to move for the return of its unlawfully taken property, it does not hold that such a stranger may properly move to suppress evidence. The actual limited holding is that because the complaint filed before the Commissioner was defective and because no indictment was pending at the time of the appeal the denial of relief could be treated as a final order in a collateral proceeding for purposes of appellate jurisdiction. Go-Bart is not authority for the proposition for which it is cited, since the suppression motion was made in a criminal proceeding by defendants in that proceeding. That is made clear in DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962), which overrules Go-Bart insofar as it distinguishes, for purposes of finality, between pre-indictment and post-indictment suppression motions. In DiBella the Court wrote:
“We hold, accordingly, that the mere circumstance o,f a pre-indictment motion does not transmute the ensuing evidentiary ruling into an independent proceeding begetting finality even for purposes of appealability. Presentations before a United States Commis-
sioner, Go-Bart Importing Co. v. United States, 282 U.S. 344, 352-354, 51 S.Ct. 153, 75 L.Ed. 374, as well as before a grand jury, Cobbledick v. United States, 309 U.S. 323, 327, 60 S.Ct. 540, 84 L.Ed. 783, are parts of the federal prosecutorial system leading to a criminal trial. Orders granting or denying suppression in the wake of such proceedings are truly interlocutory, for the criminal trial is then fairly in train. When at the time of ruling there is outstanding a complaint, or a detention or release on bail following arrest, or an arraignment, information, or indictment — in each such case the order on a suppression motion must be treated as ‘but a step in the criminal trial preliminary to the trial thereof.’ Cogen v. United States, 278 U.S. 221, 227, 49 S.Ct. 118, 73 L.Ed. 275. Only if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant can the proceedings be regarded as independent.” 369 U.S. at 131-132, 82 S.Ct. at 660.
For such an independent proceeding looking to the return of property there must, of course, be an independent basis for federal jurisdiction.9 Such an independent basis cannot be created by giving nonparties standing under Rule 41(e), and no case that has come to my attention has ever done so. If there is standing in this case it exists only because Congress has created a new witness privilege, not because nonparties have standing to make a suppression motion under Rule 41(e).
The congressional intention not to create such a privilege is clear when one considers the language of § 2518(10) (a) under which the Senate Report makes cross-reference to § 2510(11). That subsection says:
“Any aggrieved person in any trial, hearing, or proceeding in or before any *229court * * * may move to suppress * * (emphasis added)
The motion to suppress can only be made by a person aggrieved in a trial; that is, by an aggrieved party. The Senate Report makes clear what was intended:
“This provision must be read in connection with sections 2515 and 2517, discussed above, which it limits. It provides the remedy for the right created by section 2515. Because no person is a party as such to a grand jury proceeding, the provision does not envision the making of a motion to suppress in the context of such a proceeding itself. Normally, there is no limitation on the character of evidence that may be presented to a grand jury, which is enforcible by an individual. (Blue v. United States, 86 S.Ct. 1416, 384 U.S. 251 [16 L.Ed.2d 510] (1965)). There is no intent to change this general rule. It is the intent of the provision only that where a motion to suppress is granted in another context, its scope may include use in a future grand jury proceeding.” S. Rep. No. 1097, supra, at p. 2195. (emphasis added)
Congress intended, in other words, that only parties to a proceeding have standing to make a suppression motion. No one is a party to a grand jury proceeding. Blair v. United States, supra.
It is also clear that the exclusionary rule announced in § 2515 is intended to be available only to parties. The Senate Report states:
“The provision [§ 2515] must, of course, be read in light of section 2518 (10) (a) discussed below, which defines the class entitled to make a motion to suppress. It largely reflects existing law. It applies to suppress evidence directly (Nardone v. United States, 58 S.Ct. 275, 302 U.S. 379 [82 L.Ed. 314] (1937)) or indirectly obtained in violation of the chapter. (Nardone v. United States, 60 S.Ct. 266, 308 U.S. 338 [84 L.Ed. 307] (1939)). There is, however, no intention to change the attenuation rule. See Nardone v. United States, 127 F.2d 521 (2d) [sic], certiorari denied, 62 S.Ct. 1296, 316 U.S. 698 [86 L.Ed. 1767] (1942) ; Wong Sun v. United States, 83 S.Ct. 407, 371 U.S. 471 [9 L.Ed.2d 441] (1963). Nor generally to press the scope of the suppression role beyond present search and seizure law. See Walder v. United States, 74 S.Ct. 354, 347 U.S. 62 [98 L.Ed. 503] (1954).” S.Rep. No. 1097, supra, at p. 2185 (emphasis added).
Congressional reference to Walder is significant. That case holds that evidence illegally obtained and suppressed in one trial can nevertheless be used against the defendant from whom it was illegally seized to contradict his perjury in a later trial. Walder puts the problem in perspective. The view of the Supreme Court is that the principal evil against which both the fourth amendment exclusionary rule and the statute are directed is the use of illegally obtained evidence for the purpose of incriminating the victim of that illegality. In Justice Frankfurter’s words:
“The Government cannot violate the Fourth Amendment — in the only way the Government can do anything, namely through its agents — and use the fruits of such unlawful conduct to secure a conviction. Weeks v. United States, supra. Nor can the Government make indirect use of such evidence for its case, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, or support a conviction on evidence obtained through leads from the unlawfully obtained evidence, cf. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307. All these methods are outlawed, and the convictions obtained by means of them are invalidated, because they encourage the kind of society that is obnoxious to free men.
It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the de*230fendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.” Walder v. United States, supra, 347 U.S. at 64-65, 74 S.Ct. at 356.
The Supreme Court has never applied the exclusionary rule in favor of anyone except a party. It has never read Silver-thorne Lumber Co. v. United States, supra, to have the reach proposed by the majority. Justice Holmes used the words which the majority opinion quotes, but the juice of their context has been squeezed from them, and the husks used as a premise for a syllogism he never contemplated. The Government cannot affirmatively use illegally seized evidence to incriminate the victim of their illegality. It can use such evidence, even against the victim, to overcome perjury. Walder v. United States, supra. It can use such evidence against parties other than the victim of the illegality. Aider-man v. United States, supra; Goldstein v. United States, supra.
In the one instance in which the Supreme Court has addressed itself to the electronic surveillance provisions of the Omnibus Crime Control Act of 1968 it has rejected the construction of the statute and of the fourth amendment announced by the majority. In Alderman v. United States, supra, the court said:
“The exclusionary rule .fashioned in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), excludes from a criminal trial any evidence seized from, the defendant in violation of his Fourth Amendment rights.” 394 U.S. at 171, 89 S.Ct. at 965 (emphasis added)
The court then expressly approved Gold-stein v. 'United States, supra and Jones v. United States, supra; 394 U.S. at 172-173, 89 S.Ct. 961. In discussing Jones it noted:
“The ‘person aggrieved’ language is from Fed.Rule Crim.Proc. 41(e). Jones makes clear that Rule 41 conforms to the general standard and is no broader than the constitutional rule.” 394 U.S. at 173 n. 6, 89 S.Ct. at 966.
Later in the opinion the court says:
“Of course, Congress or state legislatures may extend the exclusionary rule and provide that illegally seized evidence is inadmissible against anyone for any purpose.9
"9. Congress has not clone so. In its recent wiretapping and eavesdropping legislation, Congress has provided only that an ‘aggrieved person’ may move to suppress the contents of a wire or oral communication intercepted in violation of the Act. Title III, Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 221 (18 U.S.C. § 2518(10) (a) (1964 ed., Supp. IV)). The Act’s legislative history indicates that ‘aggrieved person,’ the limiting phrase currently found in Fed.Rule Crim. Proc. 41(e), should be construed in accordance with existent standing rules. See S.Rep.No.1097, 90th Cong., 2d Sess., at 96, 106.” 394 U.S. at 175 & n. 9, 89 S.Ct. at 967-968.
* -x- -x- * * * *
The footnotes, granted, are dicta. But considering the source they are persuasive dicta. What to me is most convincing is the equating of “aggrieved person” in the statute to “aggrieved person” in Rule 41(e). If the majority opinion contained a citation to a single case in which a witness, in the capacity of witness only, was held to have standing to make a Rule 41(e) motion I would find more persuasive its effort to distinguish away the Alderman discussion.
The result in this case illustrates the a priori methodology of the appellate process. The courts started with the premise that an exclusionary rule of evidence would deter future unlawful police conduct. That premise had no empirical foundation. Satisfied with the perfection of its created rule the appellate process next elevated the rule to constitutional rather than pragmatic dignity. A rule which started as a means to a desired end thus became a constitutional right even though its effectiveness toward the desired end had never been demonstrat*231ed. It has never been demonstrated. It has never been demonstrated, for example, what proportion of electronic surveillance is resorted to by law enforcement personnel for preventive rather than conviction purposes. If, in an internal security situation, for example, the primary police object is to prevent the occurrence of terrorist acts, the exclusionary rule will have no pragmatic deterrent effect. But because the Supreme Court has said the exclusionary rule is a constitutional right the majority reasons that the right must now be vindicated on behalf of a class of persons with whom the Supreme Court did not deal, regardless of public interests which compete with the end first sought to be protected. Of course my conclusion that the new witness privilege will be harmful to the administration of justice, like the deterrence premise of the exclusionary rule, also lacks the support of empirical data. At least here, however, my prediction of the effect of the new rule is made in an area in which judges presumably have some expertise. But both sides would do well to look outside the reported decisions for guidance before choosing alternative public policies. Instead for the most part we regrind the grist which we ourselves have created.
In this case since Sister Egan has been granted transactional immunity she is before the court solely in the capacity of a witness. Assuming the truth of her allegation that she was the subject of unlawful electronic surveillance,10 she nevertheless should have no privilege, in that capacity, to withhold her testimony. Carter v. United States, 417 F.2d 384, 388 (9 Cir. 1969), cert denied, 399 U.S. 935, 90 S.Ct. 2253, 26 L.Ed.2d 807 (1970); United States ex rel. Rosado v. Flood, 394 F.2d 139, 141 (2 Cir.), cert, denied, 393 U.S. 855, 89 S.Ct. 111, 21 L.Ed.2d 124 (1968). I would affirm the order of the district court adjudging the appellant in civil contempt for refusing to obey a court order to testify before the grand jury.
. 18 U.S.C. § 2515 (Supp. V, 1970).
. Whether in a contempt proceeding or otherwise, such a decision is a final order in a collateral proceeding. Compare Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.E'd.2d 1442 (1957), and Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275 (1929), with Bes-sette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997 (1904), Steele v. United States (I), 267 U.S. 498, 45 S.Ot. 414, 69 L.Ed. 757 (1925), and Steele v. United States (II), 267 U.S. 505, 45 S.Ct. 417, 69 L.Ed. 761 (1925).
The United States can now appeal an adverse decision on a suppression motion made under Title III of the Omnibus Crime Control Act of 1968. 18 U.S.C. § 2518(10) (b) (Supp. V, 1970) ; cf. 18 U.S.C. § 3731 (Supp. V, 1970).
. Early in Iiis opinion Judge Adams eschews this result, stating : “ [W] e suggest that it unqualifiedly bars the party making the illegal tap; not the party who has been victimized — the ‘aggrieved party.’ ” Later, however, he says :
‘‘In the present case the District Court had a duty to follow the express direction of Congress found in § 2515. By ordering Sister Egan to testify before the grand jury when Congress has legislated the exclusion of such evidence, the District Court simply acted inconsistently with the legislative mandate.”
If, as he urges, the purpose of the statute is to protect the integrity of the courts from the use of “tainted” evidence, it is difficult to understand why the decision as to such use should be left to the witness rather than to the court. I suggest that the purpose of the statute is to protect defendants — parties—from the use of evidence obtained in violation of their constitutional rights, and that it should not be extended beyond this purpose. Moreover, the statement that the statute bars only “the party making the illegal tap” is plainly wrong. Certainly Congress did not intend to revive the silver platter doctrine.
. 18 U.S.C. § 2515 applies not only to government wiretapping but to any wiretapping. 18 U.S.C. § 2511. The wrongdoer may not even be in the control of the governmental authority which incurs the sanction.
. Scholarly discussion of the full reach of the compulsory process clause has not been extensive. One commentator suggests that the availability of compulsory process is subject to recognized privileges. 8 Wigmore, Evidence, 69 (McNaughton rev., 1961). This is not at all a necessary interpretation of the sixth amendment. It is inconceivable that the right of a criminal defendant to compulsory process for the attendance of witnesses guaranteed by that amendment is subject to the unrestrained power of Congress to create privileges. How far, for example, would the courts permit Congress to extend the sovereign’s privilege to conceal relevant facts by enlarging the persons and subject matters covered by executive privilege? See Totten, Adm’r v. United States, 92 U.S. 105, 23 L.Ed. 605 (1875) ; cf. 18 U.S.C.A. § 3500 (Supp.1971) ; 46 U.S.C. § 784 (1964) ; 45 U.S.C. § 41 (1964) ; 49 U.S.C. § 1441(e) (1964). Our best guess is that the witness in this case sides with the defendants and would waive her privilege if her testimony would be helpful. But the constitutional interpretation announced in the majority opinion will operate both ways. Foresight is important in decision making. This year’s hard case may be next year’s nightmare. The majority opinion may in the future be cited as authority for congressional authority to erode the compulsory process guarantee.
. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) ; Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) ; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ; Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) ; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).
. Aff’d, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968).
. United States v. Bell, 120 F.Supp. 670 (D.D.C.1954) is even farther off the mark. It involved the procedure for obtaining the return of property lawfully seized and possibly contraband. See 28 U.S.C. § 2461(b). The court merely put a time limit on the time within which the government must institute forfeiture proceedings. Cf. United States v. Fields, 425 F.2d 883 (3 Cir. 1970), holding that a Rule 41(e) motion is not the appropriate means for a third party to obtain the return of property, and remitting the third party to statutory remedies. Rodgers v. United States, 158 F.Supp. 670 (S.D.Cal.1958) involved a pre-indictment civil action for injunctive relief by a potential defendant. The court suggested that a Rule 41(e) motion was an adequate remedy at law. Language in that opinion indicating that a Rule 41(e) mov-ant can be a nonparty must be read in the' context of the facts of that ease.
. See Carroll v. United States, supra,, 354 U.S. at 404 n. 17, 77 S.Ct. 1332; Cogen v. United States, supra, 278 U.S. at 226, 49 S.Ct. 118; United States v. Ponder, 238 F.2d 825 (4 Cir. 1956) ; cf. Smith v. Katzenbach, 122 U.S.App.D.C. 113, 351 F.2d 810 (1965).
. One among numerous objections to testifying.