Application of the Fourth Amendment to federal grand jury proceedings

Question Presented
Whether a person subpoenaed before a grand jury to present physical evidence has a Fourth Amendment right to have the reasonableness of the request reviewed by a neutral and detached magistrate?

Summary of Arguments
The Fourth Amendment protects a person's privacy interest in her bodily integrity so long as the privacy interest sought is reasonable. DNA contains confidential information that a reasonable person would want to keep confidential. The desire to keep medical information confidential has long been recognized by society as reasonable. Consequently, Jane Doe (a pseudonym) is reasonable to request that a neutral and detached magistrate review the reasonableness of the grand jury subpoena because she does not surrender her Fourth Amendment right to bodily integrity simply because she is subpoenaed before a grand jury.

I. A Search Conducted Without Probable Cause Is Per Se Unreasonable Under the Fourth Amendment.

The Fourth Amendment provides that a person shall be secure in her person from unreasonable searches and seizures. United States v. Katz, 389 U.S. 347 (1967). The constitutional prohibition against unreasonable searches and seizures must liberally construed in order to safeguard this right of privacy. Boyd v. United States, 116 U.S. 616, 635 (1886) (“[C]onstitutional provisions for the security of person and property should be liberally construed. . . . It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon."). The Fourth Amendment protection against unreasonable searches and seizures is so important that evidence obtained from an unreasonable search is excluded from evidence at trial. Weeks v. United States, 232 U.S. 383 (1914) (establishing exclusionary rule in federal courts for illegally obtained evidence); Mapp v. Ohio, 367 U.S. 643 (1961) (applying exclusionary rule to state court proceedings).

Absent exigent circumstances or consent, a search going beyond a Terry stop and frisk, Terry v. Ohio, 392 U.S. 1 (1968), is per se unreasonable if conducted without probable cause. Zurcher v. Stanford Daily, 436 U.S. 547 (1978) ("[T]he Framers took the enormously important step of subjecting searches to the test of reasonableness and to the general rule requiring search warrants issued by neutral magistrates.")

A. Analyzing DNA from hair is a "search" under the Fourth amendment.

In Skinner v. Railway Labor Executive's Ass'n, 489 U.S. 602 (1989), a case involving federal regulations that mandated drug and alcohol testing of any railroad employee involved in a train accident, the Supreme Court addressed the issue whether a breathalyzer or urinalysis were "searches" under the Fourth Amendment. Answering in the affirmative, the Court said that although the collection and testing of urine do not entail any intrusion into the body, they nevertheless constitute searches, since they intrude upon expectations of privacy as to medical information that society has long recognized as reasonable. Id. at 616.

B. Jane Doe's privacy interest in the confidential medical information contained in her DNA is one society recognizes as reasonable.

In Skinner, above, the Court affirmed a principle long before understood by society as reasonable: Namely, a person has a privacy interest in her medical information. Skinner at 618. Doctors have codified this privilege in the Hippocratic Oath. Oath of Hippocrates, Fourth Century, B.C.E. (“Whatsoever things I see or hear concerning the life of men [ ] I will keep silence thereon, counting such things to be as sacred secrets.”).

At law, "The physician-patient privilege is applicable in criminal prosecutions." Charles E. Torcia, Wharton's Criminal Evidence, § 519 (Fourth ed.) (collecting cases). The policy underlying the physician-patient privilege is that medical information is among those things we keep most private. Whalen v. Roe, 429 U.S. 589 (1977). Few people would take pleasure in having his medical records read by sixteen people, which is what the grand jury seeks to here. Indeed, most jurisdictions provide a cause of action for such egregious breaches of privacy.

DNA is even more revealing than a medical chart, urine, or breath. A person's DNA tells more about a person than outward physical characteristics such as hair color or voice tone. A person's DNA reveals the very essence of a person's being. That insurance companies wish to obtain valuable DNA information on potential insureds has rallied not only privacy groups such as the ACLU: It has awoken the sleeping majority of American citizens. And Congress has responded. H.R. 1910, The Genetic Nondiscrimination in Health and Employment Act.

Society has long recognized that a person has the right to keep some things confidential. DNA falls into this category. Jane Doe is therefore very reasonable to jealously guard the secrets of her very life being.

C. Jane Doe does not willingly reveal her DNA to the public and thus has not surrendered any expectation of privacy in it.

The Fourth Amendment provides no protection for what a person knowingly exposes to the public. United States v. Dionisio, 410 U.S. 1 (1973). Characteristics that a person exposes to the public include "[t]he physical characteristics of a person's voice, its tone and manner … or handwriting." Fraser v. United States, 452 F.2d 616 (7th Cir. 1971). Thus, the Fourth Amendment does not protect these non-private characteristics.

However, Jane Doe has not knowingly or freely exposed her DNA to the general public. Rather, she fights hard to protect her privacy. Indeed, she prays that this court will not allow her right to privacy in her DNA be violated without probable cause.

D. There are no exigent circumstances allowing for an exception to the Fourth Amendment's no search without probable cause requirement.

In Schmerber v. California, 384 U.S. 757 (1966), the Court found no violation of the Fourth amendment when a police officer took a blood sample of an unconscious driver whom the officer had reason to believe was drunk. The Court, in affirming Schmerber's conviction, held that the officer's belief that a delay in obtaining a search warrant would lead to the destruction of evidence - the dilution of the blood-alcohol ratio - was reasonable under the facts of the case. Indeed, the officer's belief was reasonable, as the liver would have synthesized the alcohol and thus "destroyed" evidence of intoxication. But here, Jane Doe is in a much, much different situation.

Jane Doe's DNA is not going to change, morph, or disappear while the prosecution or grand jury applies to a neutral and detached magistrate for a search warrant. Jane Doe's liver is not going to re-configure her DNA or synthesize it through her liver. Her DNA will be the same tomorrow, as it is today, as it was yesterday. There is, quite frankly, absolutely no risk that any evidence risks being destroyed. As such, no exigent circumstances warranting an exception to the Fourth Amendment warrant requirement are present.

II. A Grand Jury Does Not Have Unbridled Power to Obtain the Evidence it Seeks.

The grand jury's purpose was to stand as a protective bulwark between an overzealous prosecutor and ordinary citizen. Fraser v. United States, 452 F.2d 617 (7th Cir. 1971). Unfortunately, today a grand jury is the strong arm that the prosecutor uses to overpower the Fourth amendment. W. Thomas Dillard, et al., A Grand Façade: How the Grand Jury was Captured by the Prosecutor, Policy Analysis, No. 476 (available for free download at: www.cato.org/pubs/pas/pa476.pdf). But the grand jury's power is not limitless.

Although a grand jury "must be free to pursue its investigations unhindered by external influence or supervision," it may do so only, "so long as it does not trench upon the legitimate rights of any witness called before it." United States v. Dionisio, 410 U.S. 1 (1973). Jane Doe has a legitimate interest in keeping confidential the information contained in her DNA.

Jane Doe’s argument is unlike those made in other cases, where courts have allowed grand juries to demand handwriting samples and voice exemplars only because the Fifth Amendment does not apply to voice, handwriting, or other physical characteristics that are non-testimonial in nature. United States v. Dionisio, 410 U.S. 1 (1973). Jane Doe does not assert that her DNA is "testimonial." Rather, she claims that it is private. Therefore, the Fourth Amendment applies, even to grand juries.

A. A person subpoenaed before a grand jury has not surrendered her right to privacy as
a grand jury subpoena is not even a Fourth Amendment “seizure.”

A pretrial detainee or prisoner has limited Fourth Amendment protections. Lanza v. New York, 370 U.S. 139 (1962). A free person walking the street has full Fourth amendment protections, absent reasonable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1 (1968). A subpoena to appear before a grand jury is not a "seizure" under the Fourth amendment. Dionisio, 410 U.S. at 1-2. Accordingly, Jane Doe, unlike a pretrial detainee or prisoner, has a legitimate Fourth Amendment right to keep her DNA confidential.

If Jane Doe has not even been seized within the meaning of the Fourth Amendment, how can one make a straight-faced argument that she has surrendered her Fourth Amendment right to be free from unreasonable searches and seizures? The fact is that Jane Doe's level of privacy exists on the continuum somewhere between a free person walking the street and that of a prisoner. She is not in custody, but she is certainly not free to ignore a subpoena. (!) Thus, she has Fourth Amendment protections, although those protections are not limitless. She has a Fourth Amendment protection in those characteristics most private, such as the confidential information contained in her DNA.
B. Jane Doe is not a convicted sex offender, prone to recidivism, the only other group whose DNA is not considered private.

Recent Supreme Court cases have held that a state may have a DNA database of convicted sex offenders. The justification for these DNA databases is the strong evidence of recidivism. Connecticut Dept. Pub. Safety v. Doe, 538 U.S. 1 (2003). In other words, there is, based on medical evidence, "probable cause" to believe that a convicted sex offender is likely to molest a child again. Because probable cause exists, and because the person entered into the DNA database was already convicted, this is not a "search" violative of the Fourth Amendment.

However, there is no evidence showing that Jane Doe is a "recidivist" since she has not even been convicted of any crime. (!) Jane Doe clearly does not fall into the category of people whose DNA the state may collect and maintain. Moreover, DNA database registries are a narrow exception, inapplicable here.


III. The Relief Sought By Jane Does Is Quite Reasonable Under the Circumstances.

Jane Doe does not request that this court enjoin a grand jury or any other federal actor from compelling her to provide a hair sample to have its DNA analyzed. Rather, Jane Doe merely seeks her protection under the Fourth Amendment. The grand jury or prosecution can apply to a neutral and detached magistrate to determine is probable cause exists for the search of her hair for DNA.

Conclusion
Analyzing Jane Doe's hair for DNA evidence is a search within the meaning of the Fourth amendment. There are no exigent circumstances mandating that she be compelled to give her hair sample without probable cause as her DNA will be the same next week as it is today. A grand jury does not have unbridled discretion in seeking evidence and is bound by the Fourth amendment. Thus, Jane Doe has the right to have the reasonableness of the request for her hair reviewed by a neutral and detached magistrate, who will then determine whether probable cause exists for this search.