Fourth Amendment [U.S. Constitution]


To pass muster under the Fourth Amendment, detention must be 'reasonable.' See:



Unreasonable Searches and Seizures

Non-consensual extraction of blood implicates Fourth Amendment privacy rights. Some examples include:

  • Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 16 ('89) ("this physical intrusion, penetrating beneath the skin, infringes [a reasonable] expectation of privacy").
  • Schmerber v. California, 384 U.S. 757, 67 ('66) (compulsory blood test 'plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment'). For the Fourth Amendment does not proscribe, or forbid by law, all searches and seizures, but only those that are unreasonable.
  • Skinner, 489 U.S. at 619; accord Vernonia School Dist. 47J v. Acton, No. 95-590, 1995 WL 373274, at *3 (June 26,'95) ("the ultimate measure of the constitutionality of a governmental search is 'reasonableness'''). A search's reasonableness under the Fourth Amendment generally depends on whether the search was made pursuant to a warrant issued upon probable cause. U.S. v. Place, 462 U.S. 696, 701 ('83).


  • Michigan State Police Dept v. Sitz, 496 U.S. 444, 450 ('90).
  • Terry v. Ohio, 392 U.S. 1, 20 ('68).

Taking Fingerprints


  • Hayes v. Florida, 470 U.S. 811, 813-18 ('85).


  • Smith v. U.S., 324 F.2d 879, 882 (D.C. Cir.'63) (Burger, J.) ("it is elementary that a person in lawful custody may be required to submit to . . . fingerprinting . . . as part of the routine identification processes").
  • Napolitano v. U.S., 340 F.2d 313, 314 (1st Cir.'65) ("Taking fingerprints [prior to bail] is universally standard procedure, and no violation of constitutional rights.").


Blood Drawing

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:

  • Skinner, 489 U.S. at 625 (blood tests do not 'infringe significant privacy interests').
  • Schmerber, 384 U.S. at 771 ('commonplace').

"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.


Searches Involving Intrusions Beyond The Body's Surface


  1. Whether the police were justified in imposing a nonconsensual blood test.
  2. Whether the procedures themselves were reasonable. Id. at 768.


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).



Investigatory Stops of Motorists at Sobriety Checkpoints

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.

Special Needs Beyond Normal Law Enforcement


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:

  • Von Raab, at 671, 677 (noting that "certain forms of employment may diminish privacy expectations" for the "employees who seek to be promoted" to certain positions).
  • Vernonia School Dist. v. Acton, 1995 WL 373274, *6-*7 (U.S. June 26, '95) (noting that schools are highly regulated and "like adults who choose to participate in a 'closely regulated industry,' students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy").


  • Turner v. Safley, 482 U.S. 78, 87-91 ('87).
  • Walker v. Sumner, 917 F.2d 382, 387 (9th Cir.'90) (remanding for evidence of a specific penological objective because "general protestations of concern for the welfare of the citizens of Nevada and the prison community are simply insufficient to render the involuntary seizure of blood specimens, even from prison inmates, constitutionally reasonable').

Privacy of Fingerprints, Visual Images, and Voice Prints


  • Fingerprints: Like the compelled production of other aspects of an individual's identification that are routinely exposed to and superficially observable by the public at large, such as voice prints, handwriting exemplars, and photographs, fingerprints simply belong to a different category of search that "represents a much less serious intrusion upon personal security than other types of searches and detentions." Hayes v. Florida, 470 U.S. 811, 14 ('85).*fn10 The majority's analysis obliterates this critical constitutional distinction between coerced fingerprinting and blood extraction for DNA genetic pattern analysis.


Blanket Searches

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).

Protection of Permanent Resident Aliens

A permanent resident alien is entitled to constitutional protection. For example:

  • Landon v. Plasencia, 459 U.S. 21, 32-4 ('82) ("[O]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly."). In particular, to Fourth Amendment protection against unlawful seizures.
