Unauthorized subpoena to appear was not a seizure

An unauthorized subpoena to appear at a state administrative hearing to testify is not a search and seizure under the Fourth Amendment. Older case law from SCOTUS in point is less than clear, but, applying modern case law, plaintiff cannot prevail because appearing under a subpoena to testify just will not be found to be an unreasonable seizure. Caldwell v. Jones, 2007 U.S. Dist. LEXIS 70702 (N.D. Ind. September 21, 2007):

In the instant matter, like Dawson in Wheeldin, to the extent that Caldwell alleges a Fourth Amendment violation based on the mere issuance and service of the threatening “subpoena” on him, without reference to the fact that he attended the administrative hearing and gave testimony, Caldwell’s Fourth Amendment claim must fail. In their briefs, Defendants correctly note that, like Dawson in Wheeldin, Caldwell was neither arrested, detained, nor held in contempt as a result of the “subpoena.” However, unlike Dawson, Caldwell did respond to the “subpoena” by attending the administrative hearing and giving testimony. See Wheeldin, 373 U.S. at 649-50.

Nevertheless, the Supreme Court’s cursory Fourth Amendment analysis in Wheeldin is limited to the paragraph cited above, and the court’s decision does not provide any further guidance on its reasoning as to what would have been required to constitute a Fourth Amendment violation. Moreover, Wheeldin was decided in 1963, prior to the series of cases that has led to the Supreme Court’s current Fourth Amendment “seizure” jurisprudence, including Terry v. Ohio in 1968, Mendenhall in 1980, and Hodari D. in 1991, the relevant holdings of which are cited above. No explanation is given in Wheeldin as to why the court considered an unauthorized administrative subpoena from the House Un-American Activities Committee as the potential basis for a Fourth Amendment seizure.

Under the modern standards of Mendenhall and Hodari D., Caldwell has not stated a claim for a Fourth Amendment seizure because there was not a sufficient show of authority. Although Caldwell responded to the “subpoena” by attending the hearing, the only threat or show of authority that compelled him to appear at the hearing was the administrative “subpoena” and the threat of possible disciplinary action by his employer. However, the threat of job loss is not protected by the Fourth Amendment. See Driebel v. City of Milwaukee, 298 F.3d 622, 642 (7th Cir. 2002) (citing INS v. Delgado, 466 U.S. 210 (1984)). There was no additional threat from law enforcement or other governmental body that would have restrained Caldwell’s freedom had he not appeared at the hearing. In addition, he could have taken other steps prior to the hearing to challenge the “subpoena;” in fact, he could have simply ignored the “subpoena,” not presented himself at the hearing, and faced the employment consequences of refusing to appear.

When contrasted with the issuance of an arrest warrant, the threat of the “subpoena” served on Caldwell is too feeble to constitute a Fourth Amendment show of authority. In Albright v. Oliver, the Supreme Court in both the plurality opinion and the concurrence opined that the issuance of an arrest warrant coupled with a subsequent self surrender to authorities constituted a seizure under the Fourth Amendment, with the issuance of the arrest warrant equaling a “show of authority” for the purposes of the Fourth Amendment. 510 U.S. at 271, 276.