(concurring in part and dissenting in part):
Judge Wilkey’s opinion for the majority contains much that is analytic, reflective and insightful. It has a sweep that carries the reader along with persuasive momentum. Upon reflection, however, I must confess to a gnawing dissatisfaction with some important aspects.
I.
I do not agree with the majority’s conclusion that investigator Brick’s alleged actions in knowingly selecting and carrying to Washington materials which were totally unrelated to the Subcommittee’s investigation (172 U.S.App.D.C. pp. ---( 521 F.2d pp. 1040-1041) come within the Speech or Debate Clause immunity and thus cannot be questioned by appellees in a court of law. In essence, the majority grants congressional investigators absolute license to examine, transport, and distribute among members of Congress and their staff any and all personal papers no matter how private the correspondence — here it seems they included a love letter written by a nationally prominent newspaper columnist to Mrs. McSurely — or how clearly irrelevant the papers are to the pending legislative inquiry.
It is only when the actions of legislators (and their aides) fall “within the ‘sphere of legitimate legislative activity’ ” that they are entitled to the protection of the Speech or Debate Clause which prohibits their being “questioned in any other Place.”1 I cannot accept that the knowing selection and circulation of such documents — of a private character, and not even arguably relevant to a legislative inquiry — is within the sphere of legitimate legislative activity safeguarded by the Speech or Debate Clause.2 In my view, the majority’s holding immunizing such activity invites “gratuitous injury to citizens for little if any public purpose.”3 It is at odds with the approach adopted by the Supreme Court in mapping the contours of the Speech or Debate Clause protection.
The majority errs, I believe, by assuming that as long as the inquiry is “within the jurisdiction of Congress and [the] particular committee” (172 U.S.App.D.C. -, 521 F.2d p. 1037) and therefore “facially legislative in character” (172 U.S.App.D.C. p. -, 521 F.2d p. 1038), and lawful legislative means are employed, Members of Congress and their aides are immunized by the Speech or Debate Clause from all judicial scrutiny. In Brick’s case, given the Subcommittee’s broad mandate to investigate civil disorders, which rationally could include the McSurelys’ activities relating to the April, 1967 riot in Nashville, Tennessee, the majority holds that Brick’s knowing selection and conveyance of *1049documents of a private character,4 which was conceded by him to be irrelevant to the Subcommittee’s inquiry,5 is exempt legislative activity, provided he did not himself use illegal means in procuring the material. In the face of Brick’s admission that much of the material garnered and transported to Washington was irrelevant and useless to the Subcommittee, the majority nonetheless argues that Brick could “bring to Washington copies of all materials which might prove useful to the Subcommittee’s investigation” (172 U.S.App.D.C. p.-, 521 F.2d p. 1040). The fact that Brick’s actions cannot be reconciled with this justification — since he concededly knew that the materials were not relevant to the performance of his duties — is sidestepped by saying that courts may not engage in a “detailed assessment of the relevancy of particular items garnered by employees or Members of Congress pursuant to a facially valid inquiry” (172 U.S.App.D.C. p. -, 521 F.2d p. 1041).
While I agree that the courts must tread gingerly in this area, lest they hamstring legislative investigations by second-guessing the legislators’ judgment regarding the relevancy of the information sought, this case involves congressional access to information that is not arguably relevant, and was not brought to the committee on the premise that it might be relevant. The Speech or Debate Clause prohibits the judiciary from acting as the overseer of congressional investigations, but as the Supreme Court has repeatedly ruled, there are “finite limits” to this barrier to judicial review.6 Brick’s activities, in my opinion, breach those limits.
The majority acknowledges that no “distinction could, or should, be made for the purpose of immunity” between committee staff investigation and the committee members’ utilization of the product of investigatory efforts. (172 U.S.App.D.C. p.-, 521 F.2d p. 1037). Yet, inexplicably, it fashions a broader privilege for preliminary investigations than the Supreme Court, in its most recent pronouncement on the Speech or Debate Clause, found proper in the context of a subcommittee subpoe*1050na. In Eastland v. United States Servicemen’s Fund, the Court faced “the question . . . whether the actions of the petitioners [in issuing the subpoena] fall within the ‘sphere of legislative activity.’ ”7 It cautioned that, since “Congress is not invested with a ‘ “general” power to inquire into private affairs,’ ” “[t]he subject of any inquiry always must be one ‘on which legislation could be had.’ ”8 In addition, it noted that the courts are empowered to determine whether “a committee’s inquiry may fairly be deemed within its province.”9 Only if these basic standards are satisfied will the Speech or Debate Clause immunize the issuance of a subpoena.
Here the investigation of the McSure-lys’ activities relating to the 1967 Nashville riot “may fairly be deemed within [the] province” of the legislative subcommittee authorized by Senate Resolution to “make a full and complete study and investigation of violent disturbances of the peace [and] . . . civil and criminal disorder . . . .”10 However, it does not follow that everything done by investigator Brick with respect to the McSurelys was privileged as “essential to legislating.”11 As the Supreme Court indicated in Gravel v. United States, for an activity to be “essential to legislating” it “must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” 12 The fact that Brick seized concededly extraneous material — and it is significant that he seized “some personal letters,” including at least one love letter, the one he showed to Senator McClellan — reveals his willingness to disregard privacy even in the absence of any Committee need. That takes this case out of the shield that has been developed for matter arguably within the Committee’s province or related to a subject on which legislation can be had. Eastland indicates that had the subcommittee knowingly issued a subpoena for such intimate and totally irrelevant correspondence, its actions would not have constituted legitimate legislative activity. And measured against the definition of “legislative acts” set out in Gravel, I cannot see how such patently irrelevant material of a private nature can be deemed “an integral part of the deliberative and communicative processes” dealing with matters within the jurisdiction of Congress.
The improper and non-legislative nature of Brick’s conduct is indicated by analogy to the authority granted by a search warrant. Where a warrant is issued that describes particular papers, objects and effects that are germane to the *1051pending inquiry, any further seizure is clearly actionable. Other material may be inspected only for the limited purpose of determining whether it comes within the matters particularly described and authorized for seizure. Brick’s examination exceeded the bounds of a threshold “search” for purposes of determining relevancy. Much like the police officer who in the course of executing a search warrant seizes material which he knows is not authorized by the warrant cannot be deemed to have engaged in a lawful search and seizure, certainly Brick’s unauthorized, knowing selection and display of private papers beyond the scope of the subcommittee’s inquiry cannot be deemed a legitimate legislative act.
A selective approach to evaluating Brick’s conduct which distinguishes between his treatment of arguably relevant and other documents is consistent with and compelled by the pertinent Supreme Court decisions interpreting the Speech or Debate Clause. The majority, on the other hand, speaks of information gathering in the large as if the legitimacy of an inquiry into a particular aspect of a person’s activities — here the McSurelys’ possible connection with the 1967 Nashville riot — provides carte blanche to pry into any and all private affairs and to carry back and circulate irrelevant but provocative discoveries. This approach treats Brick’s conduct with too broad a brush. I am simply at a loss to discern the basis for the majority’s conclusion that Brick’s retention and distribution of material which he had inspected and deemed unrelated to the performance of his investigatory duties is a legislative act to which the Clause applies. As Judge Wilkey points out in his discussion of the relationship between the prosecutor and the grand jury (172 U.S.App.D.C. p. -, 521 F.2d p. 1045), there is a critical distinction between “an examination ... of data [which] is conducted in the good faith belief that the information may be relevant” and the retention and passing on of material known “to be wholly unrelated” to the particular inquiry. If the material is not arguable relevant, however, any further actions taken by the investigator fall outside the definition of legislative acts set forth by the Supreme Court in Gravel.
This is no foundation for the majority’s claim (172 U.S.App.D.C. p. -, 521 F.2d p. 1039) that “[i]t would appear impossible for the courts to make detailed assessments of the propriety of each individual item of information obtained from a particular source by Congressional investigators . without engaging in exactly the kind of inquiry into motives that the Speech or Debate Clause was intended to foreclose.” The relevant threshold inquiry in assessing Brick’s conduct is the limited and proper one approved in Eastland —may the material fairly be deemed within the committee’s province.13 No probing of motive or second-guessing of legislative judgment is involved. If the material is arguably relevant to a proper committee investigation, the information gathering is privileged even if prompted by malice.14 However, once private material was examined by Brick and there was no arguable basis for appraising them as relevant, his further actions in retaining and transporting them were nonlegislative.15 Questioning concerning *1052those particular improper acts and the basis for undertaking them would no more destroy the privilege than similar inquiries related to potentially proper acts of the committee and its staff in distributing relevant material to executive agencies,16 acts of distribution which the majority agrees (172 U.S.App.D.C. pp.---, 521 F.2d pp. 1042-1043) are not entitled to the protection of the Speech or Debate Clause.
In my view, Brick’s knowing selection and transmission of private documents that are highly embarrassing and plainly unrelated to the legislative inquiry were not “essential to legislating” and thus are outside the Speech or Debate Clause immunity. I am confirmed in this position by the distinction between this case and the Supreme Court’s ruling in Doe v. McMillan, which the majority relies upon extensively for support. In Doe, the Court cautioned that it had “no authority to oversee the judgment of the Committee . . . or to impose liability on its Members if we disagree with their legislative judgment.”17 The Court there declined to second-guess a committee’s decision to include names of specific children and descriptions of their conduct in the record of its hearings on the public school system of the District of Columbia and in a committee report. “The report stated that these materials were included to ‘give a realistic view’ of a troubled school and ‘the lack of administrative efforts to rectify the multitudinous problems there.’ ”18 Since the accounts of the students’ conduct questioned by the plaintiffs in Doe were broadly related to the subject matter of the committee’s inquiry, the Court properly declined to enmesh itself in reviewing the usefulness or necessity of the degree and type of details included in the illustrative material assembled by the committee.
In contrast to the Doe plaintiffs, the McSurelys make no claim that names or descriptions of arguably extraneous activities should have been deleted by Brick or the subcommittee from documents pertinent to the Nashville disturbances. Rather they claim that material dealing with intimate subjects completely foreign to the committee’s inquiry were taken back to Washington and displayed by Brick. Where, as here, the items in question are plainly and unmistakably unrelated to the congressional inquiry, no questioning of legislative judgment is necessary to determine that the boundaries of the power to investigate have been exceeded.19
The typical case will in all likelihood involve examination of items of arguable relevancy, where the court should stay its hand. But where, as here, investigative activity falls clearly outside the proper concerns of the legislature, it is our responsibility to give meaning to the “finite limits” of the Speech or Debate Clause by refusing to stretch its protective umbrella to this action of this investigator.
II.
The majority puts it that in view of Calandra v. United States,20 there is no sustainable claim of violation of the Fourth Amendment by agents of the Committee, since such a violation had been consummated by the unlawful search and seizure of the McSurelys’ home by the state authorities.
It merits careful study whether and to what extent Calandra has application outside the functioning of the grand *1053jury. In a grand jury, evidence is kept in confidence throughout, and there is reality to the conception that a grand jury’s questioning is not an additional invasion of privacy. The general premise of legislative investigations, on the other hand, is ultimate exposure to the legislature and public of the material deemed most significant to the legislative functioning,21 with room for confidentiality and executive sessions in preliminary examination and screening. Moreover, as the Court in Calandra pointed out, in the grand jury context “[t]he 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.” 414 U.S. at 351, 94 S.Ct. at 621. With respect to legislative investigations, by contrast, there is no comparable feature to negate incentive to disregard the burden and restrictions of Fourth Amendment requirements.
Assuming Calandra can be fully extended to congressional investigations, the majority, I fear, errs in distinguishing rigidly between a completed, albeit unconstitutional, search, and any subsequent use of the materials gained thereby. Suppose material has been constitutionally seized by state authorities. There could still be a subsequent unconstitutional taking from the state custody by federal agents, if they seize without consent, warrant, or probable cause. Even if the state authorities consent, there may still be problems — certainly if the federal authorities arranged the transfer in advance, prior to the state raid, and perhaps even if the awareness of an available “fence” contributed to an unlawful taking. These are not unlike problems pondered under the “silver platter” doctrine, when federal agents hobbled by the exclusionary rule would arrange for the use of their illegally acquired evidence by state agents and state proceedings.22
Moving from the abstract to the particular case, however, we have a situation here which plainly does raise serious Fourth Amendment questions, and questions of a kind which are by no means even addressed, much less disposed of, by Calandra.
I am concerned that the majority skirts a key question and distorts the decision of this court in the prior case of McSurely v. United States, 154 U.S.App.D.C. 141, 473 F.2d 1178 (1972) (MeSurely I). The majority argues that although this court in MeSurely I found Brick’s examination of the documents independently violative of the Constitution, it may be read to have done so on the ground that those documents were the “forbidden fruits” of Ratliff’s initial unlawful search (172 U.S.App.D.C. p. -, 521 F.2d p. 1043).
What the prior MeSurely opinion says to me, however, is something quite different — that Brick’s examination of the materials was an unconstitutional search and seizure because he knew that a three-judge federal district court had found that the materials were illegally seized, and had ordered Ratliff to hold the materials in safekeeping, and yet, without obtaining permission from either the court or the McSurelys, Brick examined them in the Court House and sent copies back to Washington. See 154 U.S.App.D.C. at 145-46, 154-55, 473 F.2d at 1182-83, 1191-92.23 The court stated *1054that “the conclusion is inescapable that the subpoenas issued by the Subcommittee for the production of the McSurely documents were the product of the unauthorized inspection and search of the documents by an agent of the Subcommittee itself.” Id. at 154, 473 F.2d at 1191 (emphasis added). Similarly, on the next page this court described the activity “as an unlawful encroachment by the Subcommittee investigator himself upon the rights of the McSurelys under the Fourth Amendment.” These statements, and two later statements,24 make clear to me that the court was saying that since Brick had neither a warrant, subpoena, nor consent of the three-judge court or the McSurelys, and Ratliff had no authority to consent to Brick’s examination, Brick committed an independent violation of the Fourth Amendment.25
Had Brick broken into Ratliff’s office without a warrant, there would plainly have been an independent Fourth Amendment violation. Why is not the same principle applicable where, as here, Brick knew that Ratliff was under a court decision to hold fast, for safekeeping, papers that had been illegally seized and nonetheless went through a door unlocked by Ratliff’s aide to examine the materials in the courthouse. The only distinction between an unconstitutional break-in and Brick’s challenged conduct is Ratliff’s consent and assistance.26 *1055But, as Judge Wilkey noted in his concurrence in the prior McSurely case, Ratliff’s consent cannot operate to validate Brick’s search:
It would not appear that the custodian’s consent should operate to legalize this “search.” Ratliff was directed by the court to hold the papers “in safe keeping” pending appeal. D.A. Vol. II, p. 962. Since the original seizure had been declared illegal, the natural inference would be that he was holding them for the benefit of the McSurelys, subject to reversal on appeal. They, of course, were never notified or given a chance to voice their strong objections to the “search.” See Note, Third Party Consent to Search and Seizure, 33 U. of Chicago L.Rev. 797, 812 (1966), for the argument that actual authority to consent is necessary to validate a warrantless search. See also Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), which implies, inter alia, that the good faith belief of the official searcher that he has obtained valid consent does not validate his act.
154 U.S.App.D.C. at 164 n.23, 473 F.2d at 1201 n.23.
The majority’s assertion (172 U.S.App.D.C. p. -, 521 F.2d p. 1047) that Calandra permits a government agent to inspect documents “in the custody of another [government agent]” speaks too broadly, if it is taken to include possession by a government agent not in his capacity as a government agent but as a trustee for the benefit of others and their right of privacy.
The seriousness of this situation is not mitigated by the possibility that the three-judge federal court might have deemed it appropriate to honor a request from the subcommittee to permit its investigator to examine pertinent papers. Indeed, that only accentuates the gravity of the situation. Instead of acting lawlessly, the subcommittee’s staff should have used proper process which in turn would have permitted the court, if it granted the request, or the McSurelys, if their permission had been sought, to safeguard against encroachment, beyond the legitimate legislative sphere, into personal and private papers that lacked even an arguable relevance to the legislative inquiry.
Assuming arguendo that we must decide the Fourth Amendment question in order to decide the issue of privilege, I do not think that Calandra undercuts the validity of this court’s prior ruling that there was a Fourth Amendment violation in Brick’s searching, without legal foundation, through the materials that the three-judge federal court had sequestered as material that properly belonged to the McSurelys and had been unconstitutionally removed by the state executive officials. I would abide by the prior ruling.
But even if there was no constitutional violation, I think that Brick’s action was not merely “improper” but so contemptuous of lawful writ as to be beyond the pale of what is rendered immune from judicial inquiry, in an action for damages, because it is within the general scope of “legitimate legislative activity” or “essential to lawmaking.”
III.
Moving from Brick to the other defendants, plaintiffs have alleged that they were acting in concert with Brick in the actions that are pertinent. If that is so, the other defendants would not have a constitutional privilege or immunity unavailable to Brick, their agent. Of course, an allegation is not proof. But at this stage of the case I don’t think it can be said on the basis of the undisputed facts that the defendants are constitutionally entitled to a summary judgment, which excuses them from further inquiry, even though Brick is not. Of *1056course plaintiffs must prove their cases through evidence which “does not draw in question the legislative acts of the defendant member[s] of Congress or [their] motives for performing them.”27
. See, e.g., Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 95 S.Ct. 1813, 1820, 44 L.Ed.2d 324 (1975), and cases cited.
. Id. at 501-503, 95 S.Ct. 1813, 1820-21.
. See Doe v. McMillan, 412 U.S. 306, 316-17, 93 S.Ct. 2018, 2027, 36 L.Ed.2d 912 (1973).
. Among the 234 items which Brick carried back to Washington were “some personal letters,” as Brick conceded to Government counsel. See Transcript of Proceedings, June 25, 1970, at 727-28. Appellees had focused particularly on the fact that one of these was a love letter to plaintiff Margaret McSurely from a prominent columnist (Document No. 201), because Brick’s testimony at McSurelys’ contempt trial establishes that he not only examined the love letter in Kentucky, took it to Washington, but also singled it out to show to Senator McClellan because it was a letter involving a person prominent nationally. (Tr. 730-31). Appellees allege that Brick “showed these private love letters to various members of the subcommittee staff and others, and made them (and the plaintiffs) an object of ridicule, derision, and ribald comment.” Brief for Appellees at 7; see Amended and Supplemental Complaint at fl 18(b), 19, App. 44, 45.
. The transcript of the McSurely contempt trial reveals that Brick “went to Pikeville to examine the documents in the Court House.” (Tr. 737). He looked through the documents and determined that there were “many” items that he “didn’t need at all.” (Tr. 736). The record contains the following exchange between the McSurelys’ counsel, Mr. Stavis, and Brick (Tr. 734-35):
Q (Mr. Stavis): Did you tell Mr. Dotson or any of the folk with whom you met there that there was some of that stuff that you didn’t think you needed?
A (Brick): Yes.
Q: Did you give it back to them?
A: No.
Q: Did you need that letter signed Dearest Cucumber or addressed, Dearest Cucumber? Mr. Bress (Government counsel): Objection. Irrelevant.
The Court: He may answer the question.
The Witness: No. Didn’t you say signed Dearest Cucumber and when in fact it says addressed to Dearest Cucumber.
Mr. Stavis: No, I didn’t.
The Witness: Was the question, did I need that letter?
Mr. Stavis: Yes. For the performance of your duties.
A: No, Sir.
Q: As a matter of fact, in respect to the performance of your duties, you didn’t need most of the items in that list, did you?
A: Some of them.
. Doe v. McMillan, 412 U.S. at 317, 93 S.Ct. 2018.
. 421 U.S. 491, 501, 95 S.Ct. 1813, 1820, 44 L.Ed.2d 324 (1975).
. Id. at 504, 95 S.Ct. at 1822 n.15. The Court found that the power to investigate falls within the definition of legislative acts. However, it qualified that determination, stating that, “[a]Ithough the power to investigate is necessarily broad it is not unlimited. Its boundaries are defined by its source.” Id. The Court cited with approval Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957). There the Court ruled that “[t]here is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress,” and “there is no congressional power to expose for the sake of exposure.” Id. at 187, 200, 77 S.Ct. at 1179.
. 421 U.S. at 506, 95 S.Ct. at 1823.
. See sources cited at n.66 of the majority opinion.
I assume that the broad investigation was an “adjunct to the legislative process” (as contrasted with inquiry “for the sake of exposure”) (see footnote 8), in that it was a subject on which “legislation could be had”; appel-lees’ brief does not argue to the contrary and that issue is not focused for detailed consideration.
. See Eastland v. United States Servicemen’s Fund, 421 U.S. at 508, 95 S.Ct. 1813, 1824; Doe v. McMillan, 412 U.S. at 315, 93 S.Ct. 2018; Gravel v. United States, 408 U.S. 606, 621, 92 S.Ct. 2614 (1972).
. 408 U.S. at 625, 92 S.Ct. at 2627.
. 421 U.S. at 506, 95 S.Ct. 1813, 1823, quoting Tenney v. Brandhove, 341 U.S. 367, 378, 71 S.Ct. 783, 95 L.Ed. 1019 (1950).
. See Eastland v. United States Servicemen’s Fund, 421 U.S. at 508-509, 95 S.Ct. 1813, 1824; United States v. Brewster, 408 U.S. 501, 525, 92 S.Ct. 2531 (1972); Tenney v. Brandhove, 341 U.S. at 377, 71 S.Ct. 783.
. The investigator does not probe at his peril for “the legitimacy of a congressional inquiry” is not “defined by what it produces.” East-land v. United States Servicemen’s Fund, 421 U.S. at 509, 95 S.Ct. at 1824. But once the material is found to be devoid of any conceivable legislative interest, further display or distribution can serve no legitimate legislative function and can have “no relation to the business before” Congress. Knowing retention and circulation of papers that are highly private, embarrassing and irrelevant are not legitimate legislative activity.
. See Doe v. McMillan, 412 U.S. at 316-17, 93 S.Ct. 2018; Gravel v. United States, 408 U.S. at 626-27, 92 S.Ct. 2614; United States v. Johnson, 383 U.S. 169, 172, 86 S.Ct. 749 (1966).
. 412 U.S. at 313, 93 S.Ct. at 2025.
. Id. at 308-09, 93 S.Ct. at 2022.
. Cf. Eastland v. United States Servicemen’s Fund, 421 U.S. at 504-507, 95 S.Ct. 1813, 1822-23 & n.15.
. 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).
. It should be noted in this regard that the majority would approve distribution to executive agencies of material relevant to executive functions (172 U.S.App.D.C. p. -, 521 F.2d p. 1047), and Doe v. McMillan, supra, 412 U.S. at 317, 93 S.Ct. 2018, permits the public and press to inspect documents internally distributed within Congress, and presumably publish what they find.
. Compare Rea v. United States, 350 U.S. 214, 217, 76 S.Ct. 292, 100 L.Ed. 233 (1956).
. The majority in this case argues that “[t]here was no implication in the [three-judge court’s protective] order that investigatory bodies which would otherwise be entitled to utilize unlawfully seized materials were barred from such utilization by the court’s formal rul*1054ing” (172 U.S.App.D.C. pp.---, 521 F.2d pp. 1046-1047).
The majority’s reading of the protective order would defeat the very purpose for which it was issued. This is evident from the factual context underlying the court’s order — arrests and seizures of books and other ideational matter pursuant to a statute proscribing mere advocacy of ideas as sedition, prosecutions instituted to stop organizing activities in the county by the McSurelys and their supporters, and official calls to halt federal funding for those activities. See McSurely v. Ratliff, 282 F.Supp. 848, 851-53 (E.D.Ky.1967). It strains credulity that a court’s “safekeeping” directive regarding illegally seized books, posters and pamphlets issued in the face of a systematic official effort to freeze, let alone chill, the exercise of First Amendment rights, id. at 852-53, can be read to have authorized disclosure of the impounded materials without either the court’s or the McSurelys’ permission.
. The court was careful to make clear its conclusion that Brick’s examination constituted an independent constitutional violation. It stated:
Not only was the search and seizure of appellants’ property by the Commonwealth officials illegal, but the subsequent search and use of that property by the Subcommittee investigator, with the cooperation of the Commonwealth attorney, violated appellants’ constitutional right to have their property sate and secure from unwarranted inspections.
And it found that “the framing by the Subcommittee of the subpoenas relied upon here for conviction of the McSurelys was based upon information derived from unconstitutional searches, both by state officials and by the Subcommittee’s investigator.” 154 U.S.App.D.C. at 155, 473 F.2d at 1192.
. While in the present case Judge Wilkey says that the ruling in the prior panel opinion that there was an unconstitutional search by the subcommittee’s investigator was only dictum, that is simply not the thrust of the prior opinion. On the contrary, the dictum in McSurely I was the court’s discussion of the applicability of the exclusionary rule to congressional investigations, 154 U.S.App.D.C. at 155-57, 473 F.2d at 1192-93, which was inserted merely to counter the trial court’s position, rather than being essential to the appellate holding. Moreover, Judge Wilkey’s discussion of Brick’s conduct in part 11(B) of his concurrence, 154 U.S.App. at 164-65, 473 F.2d at 1201-02, belies his current characterization of the majority ruling as dictum. After consideration of the issue he concluded: “Rather than wander into the thicket of overfine and troubling distinctions generated by a theory of the case based on Mr. Brick’s role, I would prefer to rest the decision here on a ground less likely to produce a remand in this case and less open to dangerous extrapolation in others.” Id. at 165, 473 F.2d at 1202. The clear impression left by Judge Wilkey’s concurrence is that the majority did rest, at least in part, “on Mr. Brick’s role” but that Judge Wilkey preferred to reverse the conviction on “[t]he sounder ground” of the lack of pertinency of some of the subpoenaed material “to the valid subject of the legislative inquiry.” Id. at 166, 473 F.2d at 1203.
. The majority writes: “Ratliff himself, however, invited the Subcommittee to come to Pikeville to examine the materials. He alerted the Subcommittee to the fact that the product *1055of his search of the McSurelys’ home might be relevant to its investigation” (172 U.S.App.D.C. p. -, 521 F.2d p. 1047).
. See United States v. Brewster, 408 U.S. at 526, 92 S.Ct. at 2544, quoting United States v. Johnson, 383 U.S. at 185, 86 S.Ct. 749.