Fourth Amendment:

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.

While search warrants have long been issued to seize contraband and the fruits and instrumentalities of crime,1 in 1921, a unanimous Court in Gouled v. United States,2 limited property subject to seizures to contraband and the fruits and instrumentalities of crime and refused to permit a seizure of “mere evidence,” consisting of the defendant’s papers for use as evidence against him at trial. The Court recognized that there was “no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure,” 3 but their character as evidence rendered them immune. The Court explained that immunity “was based upon the dual, related premises that historically the right to search for and seize property depended upon the assertion by the Government of a valid claim of superior interest, and that it was not enough that the purpose of the search and seizure was to obtain evidence to use in apprehending and convicting criminals.” 4

In 1967, the Court overturned the “mere evidence” rule in Warden v. Hayden.5 It is now settled that such evidentiary items as fingerprints,6 blood,7 urine samples,8 fingernail and skin scrapings,9 voice and handwriting exemplars,10 conversations,11 and other demonstrative evidence may be obtained through the warrant process or without a warrant where “special needs” of government are shown.12 However, the Court has held some medically assisted bodily intrusions impermissible, for example, forcible administration of an emetic to induce vomiting13 and surgery under general anesthetic to remove a bullet lodged in a suspect’s chest.14 In determining which medical tests and procedures are reasonable, the Court has considered the extent to which the procedure threatens the individual’s safety or health, “the extent of the intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity,” and the importance of the evidence to the prosecution’s case.15

Footnotes

1

United States v. Lefkowitz, 285 U.S. 452, 465–66 (1932). Of course, evidence seizable under warrant is subject to seizure without a warrant in circumstances in which warrantless searches are justified.

2

255 U.S. 298 (1921). United States v. Lefkowitz, 285 U.S. 452 (1932), applied the rule in a warrantless search of premises. The rule apparently never applied in case of a search of the person. Cf. Schmerber v. California, 384 U.S. 757 (1966).

3

Gouled v. United States, 255 U.S. 298, 306 (1921).

4

Warden v. Hayden, 387 U.S. 294, 303 (1967). See Gouled v. United States, 255 U.S. 298, 309 (1921). The holding was derived from dicta in Boyd v. United States, 116 U.S. 616, 624–29 (1886).

5

Warden v. Hayden, 387 U.S. 294 (1967).

6

Davis v. Mississippi, 394 U.S. 721 (1969).

7

Schmerber v. California, 384 U.S. 757 (1966); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (warrantless blood testing for drug use by railroad employee involved in accident).

8

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (warrantless drug testing of railroad employee involved in accident).

9

Cupp v. Murphy, 412 U.S. 291 (1973) (sustaining warrantless taking of scrapings from defendant’s fingernails at the station house, on the basis that it was a very limited intrusion and necessary to preserve evanescent evidence).

10

United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S. 19 (1973) (both sustaining grand jury subpoenas to produce voice and handwriting exemplars, as no reasonable expectation of privacy exists with respect to those items).

11

Berger v. New York, 388 U.S. 41, 44 n.2 (1967). See also id. at 97 n.4, 107–08 (Harlan and White, JJ., concurring), 67 (Douglas, J., concurring).

12

An important result of Warden v. Hayden is that third parties not suspected of criminal culpability are subject to warrants for searches and seizures of evidence. Zurcher v. Stanford Daily, 436 U.S. 547, 553–60 (1978).

13

Rochin v. California, 342 U.S. 165 (1952).

14

Winston v. Lee, 470 U.S. 753 (1985).

15

Winston v. Lee, 470 U.S. 753, 761–63 (1985). Chief Justice Burger concurred on the basis of his reading of the Court’s opinion “as not preventing detention of an individual if there are reasonable grounds to believe that natural bodily functions will disclose the presence of contraband materials secreted internally.” Id. at 767. Cf. United States v. Montoya de Hernandez, 473 U.S. 531 (1985).