That the issuance of a subpoena duces tecum must comply with the provisions of the Fourth Amendment against unreasonable searches and seizures was first established in the case of Boyd v. United States. The writ was there obtained for the purpose of extracting from a person evidence which was to be used against him in a criminal proceeding or forfeiture. This compulsory process which gave the state possession of a man's personal papers to incriminate him was considered a violation of not only the Fifth, but also the Fourth Amendment. The Supreme Court could have reached the same result on the basis of the Fifth Amendment alone and it is difficult to see why it regarded as a "search and seizure" this orderly process issuing out of a court of law and leaving the actual production of the papers with the party served. But this doctrine was reaffirmed in the later case of Hale v. Henkel and was applied in aid of a corporation where the issue was not in any way clouded by an application of the Fifth Amendment. The subpoena was there issued on behalf of a grand jury investigating violations of the antitrust laws and demanded production of all books, papers, and correspondence of the corporation since its inception. The Court held this an unreasonable inquiry, too broad and sweeping in its terms and not limited to a request for relevant material suitably described. Just what constituted "reasonable inquiry" was left open for interpretation at a later period.
William C. Wetherbee, Jr.,
ADMINISTRATIVE LAW - COMPULSORY PROCESS TO OBTAIN EVIDENCE - UNREASONABLE SEARCH AND SEIZURE,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol40/iss1/5