dissenting:
Because I believe that the Supreme Court’s pronouncement in Boyd v. United States, 116 U.S. 616, 634-35, 6 S.Ct. 524, 534, 29 L.Ed. 746 (1886) that “a compulsory production of the private books and papers of the owner of goods sought to be forfeited ... is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution” remains valid, I respectfully dissent.
The proposition in Boyd regarding the Fifth Amendment protection of private papers has been repeated in a number of subsequent opinions. See Wilson v. United States, 221 U.S. 361, 377, 31 S.Ct. 538, 543, 55 L.Ed. 771 (1911); United States v. White, 322 U.S. 694, 698, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944); Couch v. United States, 409 U.S. 322, 330, 93 S.Ct. 611, 616-17, 34 L.Ed.2d 548 (1973); Beilis v. United States, 417 U.S. 85, 87, 94 S.Ct. 2179, 2182, 40 L.Ed.2d 678 (1974). The majority maintains, however, that Boyd’s foundations have been eroded by more recent Supreme Court decisions. Admittedly, certain elements of the Boyd decision have been overturned. See Warden v. Hayden, 387 U.S. 294, 301-302, 87 S.Ct. 1642, 1647-48, 18 L.Ed.2d 782 (1967) (rejecting parts of Boyd’s holding regarding the Fourth Amendment). The Boyd pronouncement at issue here, however, has never been expressly overruled, nor has a majority of the Court indicated that it would so rule in a ease dealing with personal papers.
The Supreme Court cases that the majority relies upon to support its contentions are distinguishable. In Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), the government sought to compel the production of documents prepared by accountants that related to their clients’ tax returns. In the case at bar, the government seeks to compel production of the contents of defendant’s day calendar, a document that even the majority agrees is an “intimate personal document.” In Fisher, although the Court concluded that the documents must be produced, the Court specifically stated that because the case before it did not involve the witnesses’s private papers, it was not resolving the question of whether such documents could be compelled. See id. at 414, 96 S.Ct. at 1582 (“Whether the Fifth Amendment would shield the taxpayer from producing his own tax records in his possession is a question not involved here; for the papers demanded here are not his ‘private papers.’ ”). Accordingly, the Court’s analysis in Fisher relating to the “act of production privilege” and the voluntariness of producing the document does not necessarily relate to private papers. The majority’s reference to Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), another case involving business records, is therefore equally off the mark.
In United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), yet another case dealing with the compelled production of business documents, the Court focused on whether the document was voluntarily compiled. See id. at 612 n. 10, 104 S.Ct. at 1242 n. 10. Because Doe, like Fisher, involved business records, it leaves open the question of whether the Court would apply the voluntariness analysis to personal papers. Although Justice O’Connor wrote separately to specifically state that the Fifth Amendment “provides absolutely no protection for the contents of private papers of any kind,” id. at 618, 104 S.Ct. at 1245, no other Justice joined in her opinion. Moreover, two other Justices wrote separately in order to express their opinions that the Fifth Amendment continued to protect the contents of certain personal documents. See id. at 618-19, 104 S.Ct. at 1245-46 (Marshall, J. joined by Brennan, J., concurring in part and dissenting in part).
Although the majority admits that Justice O’Connor was not speaking for the Court in Doe, it finds that the decision in Baltimore Dep’t of Social Servs. v. Bouknight, 493 U.S. 549, 110 S.Ct. 900, 107 L.Ed.2d 992 (1990), indicates that a majority of the Court now agrees with her position. Bouknight, however, involved the compelled production of a child, not the production of personal papers. I find the two incomparable. The compelled production of a diary, an unpublished, written expression of one’s innermost thoughts, forces the involuntary disclosure of the contents of one’s mind. The compelled produc*96tion of a child, on the other hand, is in no way its equivalent. A child, although the result of a private experience, is produced precisely to take his or her place in a public world. Therefore, although the Court found that the privilege against testimonial self-incrimination cannot be invoked to prevent the compelled presence of another person, it can still- be invoked to prevent the compelled production of a personal diary.
The majority relies on the decisions of three circuits that have concluded that voluntarily prepared personal papers are not protected by the Fifth Amendment. The majority, however, neglects to cite to a decision of the Third Circuit finding that “the fifth amendment protects an accused from government-compelled disclosure of self-incriminating private papers, such as purely personal date books.” In re Grand Jury Proceedings, 632 F.2d 1033, 1042 (3d Cir.1980). Furthermore, three other circuits, although refusing to decide the matter, have made statements that leave room for some kind of exception for personal papers. See Butcher v. Bailey, 753 F.2d 465, 469 (6th Cir.) (leaving open the possibility that private papers may be protected where compelled disclosure would “break the heart of our sense of privacy”)’ (citations omitted), cert dismissed, 473 U.S. 925, 106 S.Ct. 17, 87 L.Ed.2d 696 (1985); In re Steinberg, 837 F.2d 527, 530 (1st Cir.1988) (same); United States v. Mason, 869 F.2d 414, 416 (8th Cir.) (same), cert. denied, 492 U.S. 907, 109 S.Ct. 3219, 106 L.Ed.2d 569 (1989). The Eleventh Circuit, also refusing to rule on the continued vitality of Boyd, has made reference to the Supreme Court’s own reluctance to overrule Boyd. See In re Grand Jury Investigation, 921 F.2d 1184, 1187 n. 6 (11th Cir.1991). Given these decisions, it seems far from clear that Fisher and Bouknight have struck the “death knell” for Boyd as the majority maintains.
To hold that a person must divulge self-incriminating statements merely because she chose to write them down rather than keep them sealed in her head, is to strip the Fifth Amendment privilege of its intended power. Prying, open a personal diary and forcing its writer to reveal her innermost thoughts, however incriminating they may be, would no doubt have been as reprehensible to our forefathers as prying open a person’s lips to extract a confession.
In sum, although Boyd’s continued vitality has been questioned, its pronouncement that personal papers are protected by the Fifth Amendment has never been expressly overruled. Its reasoning should therefore continue to be applied until the Supreme Court directs us to do otherwise. Accordingly, I respectfully dissent.