dissenting:
This case grows out of an investigation by the Post Office of a mail fraud scheme. Inmates of an Alabama state prison were operating, in true entrepreneurial spirit, a small business of their own during off hours. After receiving postal money orders mailed to them from accomplices not yet incarcerated, the inmates would alter the amounts and then pass the forged paper back to the outside world by means of the mails and cooperative guards.
In the course of the investigation, but before indictments had been filed or a grand jury called, postal inspectors through the United States Attorney petitioned United States District Court Judge Frank Johnson to grant them an order compelling ap*676pellant William Holland, along with other inmates, to provide a handwriting sample. The application was accompanied by an affidavit reciting that a friendly guard had admitted passing a forged money order , at Holland’s behest. The order was granted and served, but Holland refused to comply.
The district court, pursuant to Federal Rule of Criminal Procedure 42, then ordered Holland to show cause why he should not be held in contempt. A hearing was held, and the defendant did not deny that he had wilfully disobeyed the court order. In fact, he continued in his recalcitrance. The court found him guilty of criminal contempt and imposed a sentence of six months to begin after his present term of incarceration was completed.
The majority today has set aside Holland’s contempt conviction because they could not find a basis for jurisdiction for the district court’s original order.1 With this I cannot concur. Due in large part, I believe, to a miscomprehension of the importance of the fourth amendment'considerations involved in this case, the majority has failed to realize that the order compelling the handwriting sample is nothing more than a type of search warrant. Since this was the case, Judge Johnson had ample authority to issue the order upon the showing of probable cause.2
I
The majority relates that the “taking of ■handwriting exemplars does not violate ..... the Fourth Amendment protection from unreasonable searches and seizures.” This is not always true.
*677The proper analysis in a case such as this where physical evidence from a person has been sought is composed of two steps. First, the government officers must legitimately have control of the body. This is the first seizure that must pass constitutional muster. Second, the seizure of the physical evidence must be examined to determine whether it was reasonable. This dual process was recently outlined in the context of a grand jury proceeding in United States v. Dionisio, 410 U.S. 1, 8-9, 93 S.Ct. 764, 769, 35 L.Ed.2d 67 (1973):
As the Court made clear in Schmerber [v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908], the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels — the “seizure” of the “person” necessary to bring him into contact with government agents, see Davis v. Mississippi, 394 U.S. 721, [89 S.Ct. 1394, 22 L.Ed.2d 676,] and the subsequent search for the seizure of the evidence. In Schmerber, we found the initial seizure of the accused justified as a lawful arrest, and the subsequent seizure of the blood sample from his body reasonable in light of the exigent circumstances. And in Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889], we concluded that neither the initial seizure of the person, an investigatory “stop” by a policeman, nor the subsequent search, a “patdown” of his outer clothing for weapons, constituted a violation of the Fourth and Fourteenth Amendments. The constitutionality of the compulsory production of exemplars from a grand jury witness necessarily turns on the same dual inquiry — whether either the initial compulsion of the person to appear before the grand jury, or the subsequent directive to make a voice recording is an unreasonable “seizure” within the meaning of the Fourth Amendment.
This two-pronged test has been repeatedly applied by the Supreme Court. In Dionisio it was held that “a subpoena to appear before a grand jury is not a ‘seizure’ in the Fourth Amendment sense,” 410 U.S. at 9, 93 S.Ct. at 769, and in United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), another grand jury case, the Court determined that a person has no reasonable expectation of privacy, and thus no protectable fourth amendment interest, in a handwriting exemplar. A different situation was presented, however, in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). In Davis the question before the justices was whether fingerprint evidence which had been obtained in a “dragnet” investigation following a rape had been properly admitted at trial. All conceded the great probative value and yet the slight personal intrusion the obtaining of fingerprint evidence involved.3 Nevertheless, the evidence was stricken because the law enforcement officers had not had proper control over the body when the fingerprints were taken.4 The Court stated, *678“Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed ‘arrests’ or ‘investigatory detentions.’ ” Id. at 726-27, 89 S.Ct. at 1397 (footnote omitted).5
Applying the above analysis to this case, I conclude that the order was eminently proper.6 The application presented to Judge Johnson related that an altered postal money order received through the mails had been given to a cooperative guard by inmate William Holland. This was sufficient to establish probable cause that Holland was violating federal law. It justified the seizure of his person and distinguishes this situation from that presented in Davis.7
*679II
My brothers have concluded that a district court judge has no power to sanction the seizure of non-testimonial identification evidence by government agents prior to arrest, indictment or information. It seems to me that our elder brethren on the Supreme Court would be surprised at this conclusion, especially in light of their advisory words in Davis that “the general requirement that the authorization of a judicial officer be obtained in advance of detention would seem not to admit of any exception in the fingerprinting context.” Id. at 728, 89 S.Ct. at 1398.8
In my view, and I think clearly in the Supreme Court’s view as well, handwriting samples, voice exemplars, fingerprints and the like are as much property which may be seized under a warrant as is a shotgun, marijuana, or a blood-stained shirt. At least to date, there has not been to my knowledge a successful challenge to an otherwise valid search warrant on the grounds that it was granted by the magistrate before an arrest was made, the grand jury had indicted, or a case number had been acquired from the clerk. The cases are too numerous to require citation in which warrants have been legitimately acquired for purely investigative purposes prior to arrest or formal charge.
My brethren have cast about in search of a jurisdictional base for the order to provide a handwriting exemplar. They need have looked no further than the fourth amendment itself:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis added.)
Under this constitutional provision a district court has inherent judicial authority to issue a warrant and is not limited by Rule 41’s technical guidelines.9 This has been most noticeably pointed out recently in pen register cases. Application for a pen register is neither governed by Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2520 (1970),10 nor specifically comprehended by Rule 41.11 This being the case, “the permissibility of [a pen register’s] use by law enforcement authorities depends entirely on compliance with the constitutional requirements of the Fourth Amendment.”12 In this context, the Second Circuit has recently held that *680“the power to order pen register surveillance, whether considered a logical derivative of Rule 41 or a matter of inherent judicial authority, is the equivalent of the power to order a search warrant, and is thus subject to the requirements of the Fourth Amendment.”13
The instant case is indistinguishable. Judge Johnson had full authority under the fourth amendment to order the relevant handwriting exemplar seized.14 Holland’s refusal to cooperate amounted to contempt, and he was properly convicted for his recalcitrance.
Ill
The majority today has adopted a rationale which, I submit, will not withstand analysis. In reaching the conclusion that the district court lacked jurisdiction to enter the order compelling handwriting exemplars, my brothers have held by necessity that the fourth amendment is inapplicable where the seizure of nontestimonial identification evidence is questioned. They have created an anomaly which iputs tangible evidence within the Constitution’s scope, but excludes evidence the acquisition of which often more seriously implicates the “right of the people to be secure in their persons.” Such an exception violates both logic and precedent.15 Moreover, it unnaturally and unnecessarily hampers those who are charged with the important duty of investigating violations of the federal laws.16 I respectfully, but strongly, dissent.
. The appellant does not question the propriety of the criminal contempt conviction other than that it was based on an order made without jurisdiction. See Fed.R.Crim.P. 42. The majority agrees with appellant that there was no jurisdiction. To my mind, the quotation in the majority opinion from United States v. United Mine Workers, 330 U.S. 258, 294, 67 S.Ct. 677, 91 L.Ed. 884 (1947), could be somewhat misleading if taken out of context. I suspect, though, that my brothers would agree that United Mine Workers held that
except in circumstances of plain usurpation, a United States District Court has the authority to determine its own jurisdiction in a matter before it, and to maintain the status quo, as by issuance of a temporary restraining order, pending the determination of that issue. The Supreme Court concluded, therefore, that even should the district court be ultimately found, in such a case, to lack jurisdiction over the parties or the subject matter, it had power to punish violations of its prior restraining order as contempt. United States v. Thompson, 319 F.2d 665, 667 (2d Cir. 1963). See also United States v. Hall, 472 F.2d 261 (5th Cir. 1972).
I agree, however, that this case is distinguishable from United Mine Workers because the district court was not attempting “to preserve existing conditions pending a jurisdictional determination.” Thompson, 319 F.2d at 667. Instead, it was commanding action by an individual, presumably believing itself to have jurisdictional power. See Guilford Nat’l Bank v. Southern Ry., 297 F.2d 921 (4th Cir. 1962). It is over whether that jurisdictional power existed that my brothers and I disagree.
. Federal Rule of Criminal Procedure 41 states the general requirements for issuance of a search warrant. That rule provides in relevant part,
(a) A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district wherein the property is located, upon request of a federal law enforcement officer or an attorney for the government.
(b) A warrant may be issued under this rule to search for and seize any (1) property that constitutes evidence of the commission of a criminal offense; ... or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense.
(c) A warrant shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant. If the federal magistrate or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. ... The warrant shall be directed to a civil officer of the llnited States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property specified.
. See 394 U.S. at 727-28, 89 S.Ct. 1394; id. at 730, 89 S.Ct. 1394 (Stewart, J., dissenting).
. The state conceded that it had had no probable cause to detain the defendant. Id. at 726, 89 S.Ct. 1394. The Court declined, however, to hold that probable cause was required for an investigatory detention where the purpose was only to acquire fingerprints from the detained individual. The majority opined,
Detentions for the sole purpose of obtaining fingerprints are no less subject to the constraints of the Fourth Amendment. It is arguable, however, that, because of the unique nature of the fingerprinting process, such detentions might, under narrowly defined circumstances, be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense. See Camara v. Municipal Court, 387 U.S. 523 [, 87 S.Ct. 1727, 18 L.Ed.2d 930] (1967). Detention for fingerprinting may constitute a much less serious intrusion upon personal security than other types of police searches and detentions. Fingerprinting involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person’s prints. Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper lineup and the “third degree.” Finally, because there is no danger of destruction of fingerprints, the limited detention need not come *678unexpectedly or at an inconvenient time. For this same reason, the general requirement that that authorization of a judicial officer be obtained in advance of detention would seem not to admit of any exception in the fingerprinting context. Id. at 727-28, 89 S.Ct. at 1397-1398.
The Court was not obliged to decide the question it raised, however, for the state in Davis made no attempt “to employ procedures which might comply with the requirements of the Fourth Amendment . . Id. at 728, 89 S.Ct. at 1398. It was affirmatively pointed out that the detention “was not authorized by a judicial officer.” Id.
Following the suggestion in Davis that less than probable cause might be permissible for detention in some circumstances, a new federal rule of criminal procedure was suggested concerning nontestimonial identification. That proposed Rule 41.1 added two things of significance to present Rule 41. First, it suggested procedures explicitly tailored to the nontestimonial identification situation. Second, it provided that, once probable cause to believe that a federal crime had been committed has been shown, a person could be made to give personal, nontestimonial evidence if reasonable grounds to suspect that he had committed the offense were present.
In my view, the only constitutional questions bothering the Judicial Conference in connection with the proposed rule revolved around the provision for detention on grounds amounting to less than probable cause. Although there is support in at least the District of Columbia Circuit for the constitutionality of the provision, see United States v. Allen, 133 U.S.App.D.C. 84, 408 F.2d 1287 (1969); Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574, cert. denied, 393 U.S. 1067, 89 S.Ct. 722, 21 L.Ed.2d 710 (1969), the dicta in Davis is not authoritative. (It is important to note, in view of the majority’s position in this case, that the lineup in Allen was ordered without any rule such as proposed 41.1 specifically authorizing it. The lineup in Adams was struck down only because of a violation of Fed.R.Crim.P. 5(a).) See generally McGowan, Constitutional Interpretation and Criminal Identification, 12 Wm. & Mary L.Rev. 235 (1970). It seems incredible that the conferees would be troubled by Rule 41.1’s allowance of an order prior to the arrest of the suspect since, as will be discussed in the text infra, search warrants have repeatedly been issued upon a probable cause showing before any arrests or indictments have been made.
. I attach no constitutional significance to the fact that Holland was incarcerated at the time the district court ordered him to give the handwriting exemplars. Despite his being under lock and key, he was entitled to be free from harassment and intrusions concerning offenses unrelated to his confinement.
. I realize that in applying the test to this case I perhaps unnecessarily belabor the analysis. If Judge Johnson had the jurisdiction to enter the order, as I argue infra, then whether he correctly decided the appropriate fourth amendment questions is of no real significance in a contempt case. The defendant had other means of challenging the taking of the evidence, see Fed. R.Crim.P. 41(e) & (f), and he should have availed himself of those means and not have disobeyed a direct order of the court. Compare Walker v. Birmingham, 388 U.S. 307, 316 n. 6, 318, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967), with In re Green’s Petition, 369 U.S. 689, 82 S.Ct. 1114, 8 L.Ed.2d 198 (1962). See generally C. Wright, 3 Federal Practice and Procedure § 702, at 151-52 (1969), at 76-77 (Supp.1976). See also United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971); United States v. Dickinson, 465 F.2d 496, 511 (5th Cir. 1972). In light of the cursory treatment given the fourth amendment considerations by the majority, however, I think it appropriate to flesh out the proper analysis as I see it.
. If the seizure of the person is permissible, it must then be questioned whether the subsequent search and seizure of the evidence, in this case a handwriting sample, would be permissible. Mara mandates an affirmative response to that question. Handwriting exemplars do not, of course, impinge the fifth amendment right against self-incrimination. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
. Justice Harlan in concurrence opined, “There may be circumstances, falling short of the ‘dragnet’ procedures employed in this case, where compelled submission to fingerprinting would not amount to a violation of the Fourth Amendment even in the absence of a warrant, and I would leave that question open.” Id. at 728-29, 89 S.Ct. at 1398. (Harlan, J., concurring).
. For text of Rule 41 see note 2 supra. Congress may, of course, expressly restrict the authority of the federal courts if it sees fit. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974); Ex parte McCardle, 74 U.S. (7 Wall.) 506, 19 L.Ed. 264 (1868). An article III judge is in a very different posture, of course, than a United States commissioner or magistrate, whose power is strictly controlled by congressional enactment and judicial rules. See Kempf v. United States, 33 F.2d 4 (1st Cir. 1929).
. United States v. Giordano, 416 U.S. 505, 553, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) (Powell, J., concurring in part and dissenting in part); United States v. Clegg, 509 F.2d 605, 610 n. 6 (5th Cir. 1975); United States v. Falcone, 505 F.2d 478 (3d Cir. 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975); United States v. Finn, 502 F.2d 938 (7th Cir. 1974); United States v. Brick, 502 F.2d 219 (8th Cir. 1974).
. As is true with handwriting exemplars, recordation of numbers dialed does not itself implicate an expectation of privacy protected by the fourth amendment. United States v. Clegg, 509 F.2d 605, 610 (5th Cir. 1975). Rule 41 is not explicitly directed to either personal identification procedures or pen registers. See United States v. Illinois Bell Tel. Co., 531 F.2d 809 (7th Cir. 1976).
. United States v. Giordano, 416 U.S. 505, 553-54, 94 S.Ct. 1820, 1845, 40 L.Ed.2d 341 (1974) (Powell, J., concurring in part and dissenting in part (footnote omitted)). The Giordano majority did not disagree with their brothers on this point. They held, however, that Title III commanded suppression of the *680evidence acquired from the pen registers because it was inextricably bound up with illegally monitored conversations. See id. at 511 n.2, 533 n.19, 94 S.Ct. 1820.
Justice Powell went on to disclose that a court order in a pen register situation is tantamount to a search warrant: “In this case the Government secured a court order, the equivalent for this purpose of a search warrant, for each of the two extensions of its authorization to use a pen register.” Id. at 554, 94 S.Ct. at 1845. This common-sense approach to the problem is also fully applicable to a court’s order to provide identification evidence. The order in such a case is the equivalent of a search warrant. See Davis, 394 U.S. at 728-29, 89 S.Ct. 1394.
. In re Order Authorizing Use of a Pen Register, 538 F.2d 956, 960 (2d Cir. 1976). Accord, United States v. Illinois Bell Tel. Co., 531 F.2d 809, 813 (7th Cir. 1976): “The common-sense approach used by the district court in issuing an order based on probable cause and following a procedure designed to comply with Fourth Amendment considerations in authorizing the use by the government of the pen register was a valid exercise of authority.” See also Ex parte Jackson, 96 U.S. 727, 733, 735, 24 L.Ed. 877 (1878). But see United States v. Jones, 230 F. 262 (N.D.N.Y.1916) (dicta).
. The handwriting order can also be viewed, similarly to a pen register order, as a logical extension of Rule 41. See In re Order Authorizing Use of a Pen Register. In United States v. Fulcher, 229 F.Supp. 456 (D.Md.1964), it is explained how the Espionage Act of 1917, 40 Stat. 217, 228-30 (formerly 18 U.S.C. §§ 611-25), was construed as permitting a search warrant to be issued with respect to “any felony arising under statutes of the United States.” 229 F.Supp. at 457, quoting Conyer v. United States, 80 F.2d 292, 294 (6th Cir. 1935). Rule 41(b) was intended to take the place of this former provision of the Espionage Act. See Notes of Advisory Committee, Fed.R.Crim.P. 41(b). It in no way, therefore, limits a district court’s power to order a search and seizure upon a proper showing of probable cause. Indeed, its intent is to allow any such permissible seizure.
In any event Rule 41 is not coextensive with the fourth amendment. It is more specific and stringent. United States v. Haywood, 150 U.S.App.D.C. 247, 464 F.2d 756 (1972); United States v. Navarro, 429 F.2d 928, 932 (5th Cir. 1970) (Simpson, J., concurring). If Rule 41 dictated the reach of the federal courts, then all cases (such as Haywood) which upheld searches under the Constitution despite technical violations of Rule 41 were decided incorrectly. The warrants should have been voided as outside the jurisdiction of the issuing court.
Since in my view the fourth amendment provides a jurisdictional base for the district courts to issue a warrant, the All Writs Act, 28 U.S.C. § 1651 (1970), is an additional source of power. Cf. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (implied cause of action found in fourth amendment for violation of individual’s rights).
. It is of no moment, of course, that an order to seize identification evidence requires the cooperation of the suspect, since no fourth or fifth amendment interest can be successfully asserted. Mara; Dionisio.
. The majority has put crushing weight on the slender reed that the United States Attorney in his original application ostensibly sought a writ *681of habeas corpus ad testificandum to produce Holland before a grand jury. The implied principle giving this fact relevance must be that the power of a district court is limited by the written application of the prosecutor, for the order did not purport to be a writ of habeas corpus ad testificandum, nor did it direct the prisoner to appear before the grand jury. It simply instructed Holland to provide a handwriting exemplar. A corollary of this implied principle must be that a prosecutor cannot orally suggest, and a judge cannot grant, any order more expansive than that requested in writing, despite the fact that accompanying affidavits might support the broader order. To these postulates I must demur.
But leaving this reasoning to one side, there certainly could have been no doubt about the character of the order by the time of the contempt hearing. At that point it was clear to all parties that Holland was not flaunting a purported writ of habeas corpus ad testificandum for production before a grand jury. He was simply in violation of an order to give a handwriting exemplar, which had been granted on the Government’s application. At the hearing, the district judge again ordered Holland to produce the exemplar, and again he refused. As I have discussed supra, such an order was well within the judge’s jurisdictional bounds under the fourth amendment as the equivalent to a search warrant. The adjudication of criminal contempt which followed was clearly appropriate.