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.

I like this guy's style.

Mark provides million-dollar legal advice.

Even better than TV

The CATO Institute archives most of their events in RealAudio format.
Something fun to watch tonight after work (if your work ever does end) is available here.

Why the goverment almost always wins

From time to time people groan that the government wins around 45% of its cases before the Supreme Court. Many times, these same people allege some sort of conspiracy between the OSG and the Court.

However, after listening to at least 100 oral arguments at Oyez, and reading at least 100 briefs before the Court, I know why the government almost always wins: Their briefs and oral arguments are always top flight.

Unfortunately, although every constitutional case before the Supreme Court affects us all; the rules we live often result because of sub-par advocacy. Let's face it, almost no lawyer would turn down the opportunity to argue before the Supreme Court. And of course, no lawyer could ever comprehend his (in)ability to argue before any tribunal. Thus, we get stuck with poor advocacy for a position with which we might agree. We lose because a lawyer put his interest (the bragging rights or other perks of arguing before the Court) above his client's interest. WHen the case was a constitutional one, the lawyer put his own interest above the rights of every American.

Fortunately, the Respondent's brief in Yarborough v. Alvarado (No. 03-1684) (which asks whether age should be a factor in determining whether someone is "in custody" under Miranda), is first class. Alvarado should matter to every person who has a child or younger brother or sister. We teach our children to respect the police, to turn to them we they need help. What we don't teach them is that when the police want to talk to you; your only option is to pull out your bust card.

I know of one case where young person shot a drug dealer. Em then ditches the gun; goes to the police station to them what happened; and gives a full statement. The reward for em turning to the police was that the prosecution sought and obtained the statutorily allowed maximum sentence. The irony is that had em lawyered-up and kept quiet, the prosecution would have offered a sweetheart deal because the only eye-witness was the girlfriend/crack-***** of the drug dealer.

A good chuckle.

One of the reasons the government offers in its brief for allowing the police to search and seize a car after an arrest is that, were the court to not allow them to do this, there would be the danger that "if the arrestee appeared to get out of the car voluntarily, the arrestee nevertheless [might have done] so to avoid the application of Belton []."

If people had this nuanced understanding of con law, the government's conviction rate would decrease by at least 25%. Anyone who has worked around criminal defendants can recount dozens (or hundreds depending upon the number of years in the field) of examples where clients consent to searches, give incriminating statements, allow the police to enter their house 'just to talk' (which allows the police to both elicit incriminating statements as well as conduct a 'plain view' search of the suspect's home). In fact, I doubt many non-criminal defense lawyers know the holding in New York v. Belton.

It is pretty funny to think that many people likely buy into such reasoning.

"Students host coming out day"

These days, coming out as a Republican is more dangerous than coming out for being gay.

Congress and federal crimes.

A great exercise in studying Constitutional Law is to do the following: Read the Constitution to find examples wherein Congress is given the power to define or punish crimes, or both. Then pick up Title 18 of the United States Code. Which one is bigger?

Challenge to Sentencing Rules Rebuffed

...So begins this article on the Feeney Amendment.

Yet another reason to stay out of federal court. Now, if only some activist judge would limit Congress to its constitutionally enumerated powers.

Job Opening

The National Federation of Independent Business has a job opening for a licensed attorney with 1-3 years of experience. For further details, contact them at: "Attention: Legal Foundation, 1201 F Street, NW, Suite 200, Washington, DC 20004, Email: resumes@nfib.org"

I don't know anything else about the position or the organization. Nor am I one of their representatives. I simply received the notice from the Fed-Soc mailing list and thought I would further it to you non-Fed-Soc types.

SSA SDRAWKCAB.

This person , who said: "The 'overly-restrictive view of individual rights and liberties' is called a written Constitution and the rule of law", in reference to this interview, should read this book.

Anyhow, the poster has things backwards. The written Constitution was meant to limit the powers of the Federal Government. The Federalist No. 45, p. 292-293 (C. Rossiter ed. 1961) (“The powers delegated by the proposed Constitution to the federal government are few and defined.”). The powers of the state were also limited. See, for example, Article IV, U.S. Const.

However, Congress and the States ran wild because the Court did not construe their powers narrowly. Thus, individual rights had to be "created." Yes, their creation is false. But it is no more false than allowing states to breach contracts and deny the right to privileges and immunities. And certainly no more false than allowing Congress to enact thousands of federal criminal laws. See, generally, Title 18 of the United States Code.

Annoyed

It annoys me to find myself agreeing with almost everything a person says. But yet again, CrimLaw makes very valuable points.

I have said for years that if the Democrats ruled the world, we would all be assigned a psychologist. After all, anyone who disagrees with their social platform must be mentally ill. If Republicans ruled the world, we would all be assigned a probation officer. Everything to them is a crime. We would all be convicted felons. Unless, of course, we were William Bennett.

As a fiscal conversative, the Republicans love for criminalizing conduct enrages me. I can cite to dozens of examples where a taxpayer is arrested at work (and thereafter fired) for some bs offense that ends up getting dismissed. Often, these are petty drug crimes. So what have we wrought?

We have taken a taxpayer from accounts receivable because he was arrested at work, fired, and therefore no longer paying taxes. We have placed him (and his wife and children) into accounts payable because now that their dad is out of work, the family must apply for welfare. Worse, we often send people to jail for petty drug offenses or other bs crimes. Thus, we must pay for the person to sit in jail or prison. We must feed him, clothe him, and provide him shelter. And of course, we have to pay for the prisons to be constructed, etc. Plus, once dad is in prison, the children begin getting into more and more trouble, until we are paying for them to sit in jail, too.

Tell me again why we accuse the Democrats as being in favor of the welfare state? When will the fiscal conservatives of the world unite?

Legal Humor?

View this article here on Amicus Humoriae, which is pretty funny.

Also, check out LAW HA HA.com.

More on recess appointments from the Office of Legal Counsel, circa. 1992.

Scroll down to the bottom of this link to access an advisory opinion from the Office of Legal Counsel dated Jan. 14, 1992 regarding recess appointments. The conclusion? "The President may make interim recess appointments during an intrasession recess of eighteen days."

While not dealing with judges, it does talk about the Recess Appointments Clause.

Howard "How Appealing" Bashman's Press Release for his new firm

... is available here.

Can you hear it, "And in the blue corner, weighing in with 12-point Book Antiqua font, is Howard HOW APPEALING Bashman!"

"Free Martha Now"

Interesting commentary on the Martha Stewart case is provided here. Free registration is required.

Poisoned well? Or frivolous lawyer gets cat scratch fever?

CrimLaw discusses the cat-scratch case, where a plaintiff sued for 1.5 million dollars because a cat scratched his guide dog.

The losing lawyer unhappily said:

"After that first juror (in jury selection) said the word 'frivolous,' and so did the next five, I thought the whole panel should have been thrown out. I truly think the well got poisoned right there."

This shows me that the plaintiff's lawyer wasn't any good. One of the best things that can happen in jury selection is to get the jurors hostile to your case, talking. Perhaps this lawyer should attend the Trial Lawyers College to find out why.

UPDATE: CrimLaw rightly informed me that the plaintiff proceeded pro se. Thank you.

Working on this blog, if nothing else, has provided me a deep sense of empathy. I won't so quickly assume that those who don't get the facts right are motivated by an intent to deceive.

Prison loaf.

Ugh. Via CrimLaw, I was linked to this recipe for something called prison loaf.