(concurring in part; dissenting in part):

I concur in my Brother Moore’s majority opinion insofar as it condemns, on Fourth Amendment grounds, the over-breadth of the warrant and the absolutely unreasonable scope of the search. I would go further, however, and hold in favor of the appellants as to the so-called yellow sheets and green cards because their seizure, in my opinion, was thoroughly corrupted by the intolerable process under which the search and seizure were conducted. Moreover,. I do not retreat from the Fifth Amendment views originally set forth by me and which were originally endorsed by both Judges Moore and Barnes. 1 I note at *373 the beginning that I see no irreconcilable conflict between my original opinion and our court’s opinion in United States v. Murray, 492 F.2d 178 (9th Cir. 1973). In our case, the flagrant abuse of the search and seizure process necessitated our judicial disapproval. In Murray , on the other hand, despite a substantial question as to whether a certain address book was testimonial, the seizure of the book was properly upheld as resulting from a search incident to a lawful arrest.

Because the original opinion written by me for a unanimous court does not wholly conflict with the present opinion of Judge Moore, no useful purpose would be served by now reproducing the whole of my first opinion. That portion which remains pertinent, and to which I adhere, reads as follows:

As we have said, the appellants contend that the searches and seizures of their books and records violated the privilege against compulsory self-incrimination under the Fifth Amendment. It is clear that had the Government attempted to acquire possession of these records and writings pursuant to a subpoena, appellants would have been privileged under the Fifth Amendment to refuse their production. Boyd v. United States, 116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 (1886); United States v. Cohen, 388 F.2d 464 (9th Cir. 1967); United States v. Judson, 322 F.2d 460 (9th Cir. 1963). The District Court, however, ruled that the use of a warrant, rather than a subpoena, removed “the impermissible aspect of compulsion” from these seizures. It reasoned that, under the warrant procedure, appellants were “merely passive agents not required to do anything that would tend to be incriminating.” No authority was cited for this proposition, but the reasoning is consistent with that recently adopted by our Brothers of the Sixth Circuit in United States v. Blank, 459 F.2d 383, 385 (1972), cert. denied, 409 U.S. 887 , 93 S.Ct. 111 , 34 L.Ed.2d 143 (1972).

See 8 J. Wigmore, Evidence § 2264 (McNaughton rev. 1961).

We cannot accept the substantive merit of this approach. One need ask only what would happen if the addressee of a warrant refused to allow the search to be conducted to appreciate the magnitude of compulsion produced by a search warrant. Without the slightest hesitation his doors would be broken down, he would be placed under arrest, and the desired material would be seized. How the imminence of such force can be considered as anything other than compulsion escapes us. In this respect, we are in full agreement with the result reached by our Brothers of the Seventh Circuit as expressed in Hill v. Philpott, 445 F.2d 144, 149 (7th Cir. 1971); cert. denied, 404 U.S. 991 , 92 S.Ct. 533 , 30 L.Ed.2d 5 (1971), cited with approval in Couch v. United States, 409 U.S. 322, *374 330 , 93 S.Ct. 611 , 34 L.Ed.2d 548 (1973).

The facts in Hill are strikingly similar to those at bar. The affidavits in support of the warrant alleged that a doctor maintained two sets of financial records for two categories of patients and that he had instructed an employee to destroy one set “if any tax man visited the office to make an investigation. .” 445 F.2d at 145 . The Government, as in the case at bar, argued that because the records were obtained by a search warrant, the only question was whether the warrant complied with the Fourth Amendment.

445 F.2d at 146 .

Relying on Boyd v. United States, infra and Gouled v. United States, supra, the Hill court rejected the Government’s argument. It read Warden v. Hayden, 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967), as overruling only Gouled’s fourth amendment (“mere evidence rule”) pronouncements, leaving intact the Fifth Amendment holding that personal books and records are privileged against seizure by search warrant. In such a situation, the Hill court pointed out, the accused remains the unwilling source of the evidence:

445 F.2d at 149 .

Further, the suggestion that the presence of a search warrant, in and of itself, removes the impermissible aspects of compulsion, is particularly untenable in light of several Supreme Court cases describing the form of compulsion covered under the Fifth Amendment. In Boyd v. United States, 116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 (1886), the Supreme Court considered a customs statute that required the defendant to produce certain documents upon pain of an adverse finding of fact if he failed to obey. The Supreme Court, considering the Fourth and Fifth Amendments as “almost running into each other,” struck down the statute:

116 U.S. at 622 , 6 S.Ct. at 527-528 .

Thus in Boyd , the Court found a procedure requiring the production of private books and papers pursuant to a subpoena unconstitutionally compelling despite the fact that “ . . . the proceeding in question is divested of many of the aggravating incidents of actual search and seizure . . ..” The Court said:

Id. at 635 , 6 S.Ct. at 535 . See Hale v. Henkel, 201 U.S. 43, 76 , 26 S.Ct. 370, 379-380 , 50 L.Ed. 652 (1906) (“the substance of the offense is the compulsory *375 production of private papers, whether under a search warrant or a subpoena duces tecum, against which the person, be he individual or corporation, is entitled to protection.”)

At the very least, Boyd suggests that a search for private books and papers is an even more egregious form of compulsion than that struck down under a subpoena procedure. That, of course, is the antithesis of the position taken by the District Court in this case. See also Wright Federal Practice and Procedure: Criminal, § 665, n. 88 (1969) (“It is much less clear that such a distinction [between the compulsion produced by a subpoena and that produced by a search warrant] would be sound, or fully consistent with the interests protected by the privilege against self-incrimination”) ; Lipton, Search Warrant in Tax Fraud Investigations, 56 A.B.A.J. 941, 943 (1970) (“It is unthinkable that the courts will grant carte blanche for the seizure of documents that could not be reached by an administrative or judicial subpoena”).

Similarly, in Schmerber v. California, 384 U.S. 757, 761 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1965) (citing Boyd with approval) petitioner was hospitalized following an automobile accident. A police officer smelled liquor on petitioner’s breath and noticing other symptoms of drunkenness, placed him under arrest. After informing petitioner of his rights, the officer directed the physician to take a blood sample despite petitioner’s refusal, on advice of counsel, to consent thereto. A report of the chemical analysis of the blood, which indicated intoxication, was admitted into evidence over objection. On appeal, the Supreme Court upheld the admission of the evidence but said:

384 U.S. at 761 , 86 S.Ct. at 1831 . See Gilbert v. California, 388 U.S. 263, 266-267 , 87 S.Ct. 1951, 1953 , 18 L.Ed.2d 1178 (1967) (holding that the taking of handwriting exemplars is a form of compulsion within the meaning of the Fifth Amendment, but that, “A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection” because it is not the kind of “communication” covered by the privilege) (emphasis added).

Following the reasoning of the court below, and that of the Sixth Circuit, one would have expected the Court in Schmerber to hold that there was no “compulsion” involved in the taking of the blood sample. Schmerber was in no way forced to make “assurance, compelled as an incident of the process, that the articles produced are the ones demanded.” Wigmore, supra § 2264 at 380. Further, the nature of the blood sample taken was such that “the proof of [its] authenticity, or other circumstances affecting [it], may and must be made by the testimony of other persons, without any employment of the accused’s oath or testimonial responsibility.” Id. However, the Schmerber Court, as noted above, expressly held that the taking of the blood sample over defendant’s objection was “compulsion” within thfe meaning of the Fifth Amendment.

In the present case, as in Schmerber and Gilbert , appellants were “passive agents” to these searches through no choice of their own. They repeatedly objected to the searches of their home and office, specifically claiming their constitutional rights, including their fifth amendment privilege. Thus, the search warrants employed in this instance were coercive tools, and it is to *376 tally unrealistic to say that they did not involve “compulsion.”

Compulsion alone, however, is not enough to constitute a violation of the Fifth Amendment. As noted in Schmer-ber, 384 U.S. at 764 , 86 S.Ct. at 1832 , “compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture,” is not prohibited under the Fifth Amendment:

Id.

Thus, our inquiry must narrow to a determination of whether the papers, books and records seized in the instant case were “testimonial” or “communicative” in nature such that the accused were forced to bear witness against themselves.

In Schmerber , the Court expressly noted that “ . . . compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers . . is within the fifth’s privilege. 384 U.S. at 764 , 86 S.Ct. at 1832 . One year after Schmerber was decided, the Court overruled the long criticized “mere evidence” rule of Gouled v. United States, 255 U.S. 298 , 41 S.Ct. 261 , 65 L.Ed. 647 (1921), and upheld the admission of certain evidence despite petitioner’s Fifth Amendment claims. Warden v. Hayden, 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967); see also 18 U.S.C. § 3103a (authorizing the issuance of a warrant “to search for and seize any property that constitutes evidence of a criminal offense in violation of the laws of the United States”). The objects seized in Hayden were trousers, a jacket and a cap, items previously immune from seizure under Gouled . The Court’s opinion, however, contained a significant caveat:

387 U.S. at 302-303 , 87 S.Ct. at 1648. See note accompanying the recent amendments to the Federal Rules of Criminal Procedure, 48 F.R.D. 629 -630 (1970) (disclaiming any intention to abrogate the protection of the Fifth Amendment against self-incrimination and stating that, “items which are solely ‘testimonial’ or ‘communicative’ in nature might well be inadmissible on those grounds.”)

Further light was cast upon the meaning of the phrases “testimonial” and “communicative” in Schmerber when the .Court noted, in dictum, that the results of a compelled lie detector test would be “testimonial” for the purposes of the Fifth Amendment, notwithstanding the fact that such tests are seemingly directed towards the elicitation of “physical evidence.” 384 U.S. at 764 , 86 S.Ct. 1826 . In contrast, California v. Byers, 402 U.S. 424, 431-433 , 91 S.Ct. 1535 , 29 L.Ed.2d 9 (1971), held that it would be an “extravagant” extension of the privilege to apply the Fifth Amendment to a California statute declaring it illegal for a motorist to fail to stop after an accident and to furnish his name and address. The Court held that the requirement of stopping is no more testimonial than requiring a person in custody to speak or walk and that the disclosure requirement is an essentially neutral, non-testimonial act. See United States v. Wade, 388 U.S. 218, 222-223 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967) (requiring *377 an accused to exhibit his person to prosecution witnesses at a police lineup involved “ . . . no compulsion of testimonial significance”); Gilbert v. California, 388 U.S. 263, 266-267 , 87 S.Ct. 1951, 1953 , 18 L.Ed.2d 1178 (1967) (“A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its [Fifth Amendment] protection. . . .”) (emphasis added).

In the case here, the books and writings seized under warrant included items on which appellants alone, rather than any third party, made entries. The 30 page description in the Government’s inventory of seized items runs the gamut from personal checks to insurance applications, and includes almost anything that had writing on it. The list includes, for example: a map of Bull River, Sandei’s, Montana; several personal letters; approximately 67 pages of “miscellaneous notes;” business cards; sheets of paper with names but no dates; three pages of survey information on Montana property; miscellaneous sheets of paper “with figures appearing;” a rental contract from U-Haul; appointment books; an envelope containing “employment forms;” “letters of correspondents relative to the purchase of property;” and “design estimates.”;

The scope of these searches went well beyond a perscrutation for “real or physical evidence.” The Internal Revenue Agents were obviously looking for writings that would bespeak appellants’ guilt, and, indeed, they may have found them. The numerous sheets of notes, figures and estimates, and the several letters of correspondence are the kind of “communicative act or writing” that would reflect the author’s personal thoughts, opinions and conclusions. Schmerber v. California, supra.

Finally, the testimonial compulsion levied against these appellants violated that “private inner sanctum of individual feeling and thought” which the Fifth Amendment seeks to protect. Couch v. United States, 409 U.S. 322, 327 , 93 S. Ct. 611, 615 , 34 L.Ed.2d 548 (1973). The subject records were clearly in the possession, not to mention the ownership, of the appellants at the time of their seizure and “possession bears the closest relationship to the personal compulsion forbidden by the Fifth Amendment.” Id. at 331 , 93 S.Ct. 617 . Thus, these records were protected from seizure by the Fifth Amendment.

I would reverse the District Court’s Order in its entirety, directing that the injunction sought by the appellants be granted.

. That opinion, which has now been withdrawn, was originally issued in slip form on March 26, 1973. Its official publication was withheld pending our reconsideration, but it *373 was unofficially published at 31 AFTR. 2d 73-1075 (1973).

My original opinion’s resolution of the Fifth Amendment issue was approved by at least two law review commentators. See Filler, Protecting Your Client: Advice to Accountants and Attorneys, 2 Hofstra L. Rev. 238 , 259 n. 578 (1974) ; Comment, Use of the Summons, Intervention, and Constitutional Rights, 2 Hofstra L.Rev. 135, 177-8 (1974).

I disagree with Judge Moore’s position that there is a need for additional development of further factual elements before the need for the application of the Fifth Amendment arises. My reasons, I think, can be sufficiently discerned from the substance of my comments. If the so-called yellow sheets and green cards were not prepared by the doctor himself, it is obvious that any notations thereon could only have been placed by his amanuensis.