The Fourth Amendment includes the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.11 min read
“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.”
To pass muster under the Fourth Amendment, detention must be ‘reasonable.’ See:
In the context of a criminal arrest, a detention of longer than 48 hours without a probable cause determination violates the Fourth Amendment as a matter of law in the absence of a demonstrated emergency or other extraordinary circumstance. See County of Riverside v. McLaughlin, 111 S.Ct. 1661, 670 (’91). However, the Supreme Court arrived at this rule by considering the time it takes to complete administrative steps typically incident to arrest.
Non-consensual extraction of blood implicates Fourth Amendment privacy rights. Some examples include:
Even in the law enforcement context, the State may interfere with an individual’s Fourth Amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes. For example,
The gathering of fingerprint evidence from ‘free persons’ constitutes a sufficiently significant interference with individual expectations of privacy that law enforcement officials are required to demonstrate that they have probable cause, or at least an articulable suspicion, to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person’s connection to the offense. For example:
Nevertheless, everyday ‘booking’ procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence. See:
Thus, in the fingerprinting context, there exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state.
The drawing of blood from free persons generally requires a warrant supported by probable cause to believe that a person has committed a criminal offense and that his blood will reveal evidence relevant to that offense. See: Schmerber, 384 U.S. at 768-71; U.S. v. Chapel, ___ F.3d ___, slip op. at 5753-54 (9th Cir.’95) (en banc), but the absence of such a warrant does not a fortiori establish a violation of the plaintiffs’ Fourth Amendment rights.
The Supreme Court has noted repeatedly that the drawing of blood constitutes only a minimally intrusive search, as in the following cases:
“An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.” Skinner, 489 U.S. at 421-2 (holding that a warrant was not required in part because “in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate”).
The Supreme Court recently reaffirmed and expanded the principle first enunciated in Skinner, stating that, in some contexts, “testing based on ‘suspicion’ of [wrongful activity] would not be better, but worse than suspicionless testing.” Acton, 1995 WL 373274, at *8. In Acton, the Supreme Court upheld as constitutional a school district’s practice of conducting random, suspicionless urine testing of school athletes for drug use. The Court rejected the proposition that the school district could “conduct such testing only if school officials had suspicion that a specific athlete was using drugs, holding that this alternative ‘entails substantial difficulties — if it is indeed practicable at all.” Id. Accusatory drug testing would “transform the process into a badge of shame” and would increase the risk that school officials would impose testing arbitrarily upon disfavored, but not drug-using, students. Id.
Except in certain narrowly limited cases, the Court repeatedly has stated its “insist[ence] upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.” Chambers v. Moreny, 399 U.S. 42, 51 (’70). Because “[t]he integrity of an individual’s person is a cherished value in our society,” searches that invade bodily integrity cannot be executed as mere fishing expeditions to acquire useful evidence: “The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.” Schmerber, 384 U.S. at 772, 769-70.
Only when law enforcement faces an exigent circumstance, such as a need to preserve evanescent blood alcohol evidence, and has probable cause to link the sought-after information to a crime under investigation is it constitutional to conduct nonconsensual blood testing without a warrant. Id. at 770-71. Therefore, forced extraction of blood not only ‘implicates the Fourth Amendment,’ as the majority notes, but also falls squarely within the area of privacy interests for which the traditional probable cause requirement determines reasonableness in the law enforcement context. Forced blood extraction intrudes on the private personal sphere and infringes upon an individual’s ‘most personal and deep-rooted expectations of privacy.’ Winston v. Lee, 470 U.S. 753, 60 (’85).
Schmerber v. California, 384 U.S. 757, 69 (’66). The Schmerber Court posed two questions:
In answering the first question, the Court recognized that it was ‘writ[ing] on a clean slate’ regarding the treatment of searches that involve intrusions into the human body. Id. at 767-8. It concluded that such searches require probable cause. Id. at 770-1.
Similarly, the Supreme Court in Winston v. Lee, 470 U.S. 753 (’85), recognized that Schmerber’s threshold standard was a requirement of probable cause “where intrusions into the human body are concerned,” which implicate “deep-rooted expectations of privacy.” Id. at 761, 760. The Winston Court then acknowledged “other factors” [b]eyond these standards that must be considered in determining whether a particular intrusion is reasonable. For instance, whether “the procedure threatens the safety or health of the individual” and “the extent of the intrusion upon the individual’s dignitary interests.” Id. at 761 (emphasis added).
In regard to the additional ‘dignitary’ factor (beyond the threshold inquiry of invasion of bodily integrity), the Winston Court noted Schmerber’s recognition that blood extraction is not ‘an unduly extensive imposition.’ Id. at 762. The Court contrasted this lesser bodily invasion, which the Schmerber Court had upheld upon demonstration of probable cause, with the more drastic measure of dangerous surgery to recoup criminal evidence, which the Winston Court concluded would violate the individual’s Fourth Amendment rights even when supported by probable cause.
Thus again, the context of the quotation demonstrates that the Court places blood extraction squarely within the probable cause requirement because it is an invasion of bodily integrity, while at the same time acknowledging that it is a less extensive imposition on dignitary interests than surgical removal of a bullet.
The unique situation in which the Supreme Court has approved suspicionless searches in the traditional law enforcement context includes the practice of stopping motorists at sobriety checkpoints. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (’90). The Sitz Court relied on well-settled law that motorists have a lessened expectation of privacy regarding stops and visual searches of automobiles on the nation’s roadways. Id. at 450 (explaining the importance of the context of ‘police stops of motorists on public highways’). At these sobriety checkpoints, which motorists may choose to avoid, only the initial brief stop and preliminary questioning may take place without individualized suspicion: “more extensive field sobriety testing” requires justification. Id. at 450-2.
Like the highway sobriety checkpoints, the ‘special needs beyond normal law enforcement’ rationale supports searches on lesser grounds than probable cause only in a very few, carefully tailored regulatory contexts that do not involve apprehension of criminal perpetrators. See, for example, National Treasury Employees Union v. Von Raab, 489 U.S. 656, 65-66 (’89) (applying the special needs exception to suspicionless quasi-consensual drug testing of Customs Service employees seeking transfer to positions having a direct involvement in drug interdiction).
The special needs exception covers testing which “is not designed to serve the ordinary needs of law enforcement [because] . . . results may not be used in criminal prosecution.” Von Raab, 489 U.S. at 666 (emphases added). Even so, a search in the special needs context almost always requires individualized suspicion. See the following cases:
Nonetheless, routine searches that intrude into prisoners’ bodies without probable cause may be upheld only when the search is undertaken pursuant to a valid prison regulation that is reasonably related to a legitimate penological objective. For instance:
Individuals have a categorically different and lesser expectation of privacy in their fingerprints, visual images, or voice prints.
The Fourth Amendment provides no protection for what ‘a person knowingly exposes to the public’. Like a man’s facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.
Blanket searches are unreasonable, however “even-handed” they may be, in the traditional criminal law enforcement context. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91-2, 92 n.4 (’79) (invalidating a blanket pat-down search of all patrons in a tavern, even though there was probable cause to search the bartender and the premises). The ill that the Fourth Amendment prevents is not merely the arbitrariness of police discretion to single out individuals for attention, but also the unwarranted domination and control of the citizenry through fear of baseless but “even-handed” general police searches.
In Zurcher, the Supreme Court held that a search of the offices of a university newspaper, which was not involved in any criminal activity, for photographs of demonstrators who had assaulted police officers did not offend the Fourth Amendment’s ban against unreasonable searches and seizures. The court concluded: “[T]he Amendment has not been a barrier to warrants to search property on which there is probable cause to believe that fruits, instrumentalities, or evidence of crime is located, whether or not the owner or possessor of the premises to be searched is himself reasonably suspected of complicity in the crime being investigated.” Zurcher v. Stanford Daily (’78) 436 U.S. 547, 549-50.
Fourth Amendment protects the “right of the people to be secure in their persons . . . against unreasonable searches and seizures.” The essence of that protection is a prohibition against some modes of law enforcement because the cost of police intrusion into personal liberty is too high, even though the intrusion undoubtedly would result in an enormous boon to the public if the efficient apprehension of criminals were the sole criterion to be considered. “The easiest course for [law enforcement] officials is not always one that our Constitution allows them to take.” Wolfish, 441 U.S. at 595 (Stevens, dissenting).
A permanent resident alien is entitled to constitutional protection. For example:
Martinez v. Nygaard, 831 F.2d 822, 824, 826-28 (9th Cir.’87) (analyzing whether seizures of three resident aliens complied with Fourth Amendment).
Read the original here:
Fourth Amendment | UpCounsel 2019