Property Subject to Seizure.

There has never been any doubt that search warrants could be issued for the seizure of contraband and the fruits and instrumentalities of crime.148 But, in Gouled v. United States,149 a unanimous Court limited the classes of property subject to seizures to these three and refused to permit a seizure of “mere evidence,” in this instance papers of the defendant that were to be used 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,”150 but their character as evidence rendered them immune. This 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.”151 More evaded than followed, the “mere evidence” rule was overturned in 1967.152 It is now settled that such evidentiary items as fingerprints,153 blood,154 urine samples,155 fingernail and skin scrapings,156 voice and handwriting exemplars,157 conversations,158 and other demonstrative evidence may be obtained through the warrant process or without a warrant where “special needs” of government are shown.159

However, some medically assisted bodily intrusions have been held impermissible, e.g., forcible administration of an emetic to induce vomiting,160 and surgery under general anesthetic to remove a bullet lodged in a suspect’s chest.161 Factors to be weighed in determining which medical tests and procedures are reasonable include 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.162

In Warden v. Hayden,163 Justice Brennan for the Court cautioned that the items there seized were not “ ‘testimonial’ or ‘communicative’ in nature, and their introduction therefore did not compel respondent to become a witness against himself in violation of the Fifth Amendment. . . . This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.” This merging of Fourth and Fifth Amendment considerations derived from Boyd v. United States,164 the first case in which the Supreme Court considered at length the meaning of the Fourth Amendment. Boyd was a quasi-criminal proceeding for the forfeiture of goods alleged to have been imported in violation of law, and concerned a statute that authorized court orders to require defendants to produce any document that might “tend to prove any allegation made by the United States.”165 The entire Court agreed that there was a self-incrimination problem, but Justice Bradley for a majority of the Justices also used the Fourth Amendment.

Although the statute did not authorize a search but instead compelled the production of documents, the Justice concluded that the law was well within the restrictions of the Search and Seizure Clause.166 With this point established, the Justice relied on Lord Camden’s opinion in Entick v. Carrington167 for the proposition that seizure of items to be used as evidence only was impermissible. Justice Bradley announced that the “essence of the offence” committed by the government against Boyd “is not the breaking of his doors, and the rummaging of his drawers . . . but it is the invasion of his indefeasible right of personal security, personal liberty and private property. . . . Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other.”168

Although it may be doubtful that the equation of search warrants with subpoenas and other compulsory process ever really amounted to much of a limitation,169 the Court currently dispenses with any theory of “convergence” of the two amendments.170 Thus, in Andresen v. Maryland,171 police executed a warrant to search defendant’s offices for specified documents pertaining to a fraudulent sale of land, and the Court sustained the admission of the papers discovered as evidence at his trial. The Fifth Amendment was inapplicable, the Court held, because there had been no compulsion of defendant to produce or to authenticate the documents.172 As for the Fourth Amendment, because the “business records” seized were evidence of criminal acts, they were properly seizable under the rule of Warden v. Hayden; the fact that they were “testimonial” in nature (records in the defendant’s handwriting) was irrelevant.173 Acknowledging that “there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers,” the Court observed that, although some “innocuous documents” would have to be examined to ascertain which papers were to be seized, authorities, just as with electronic “seizures” of telephone conversations, “must take care to assure that [searches] are conducted in a manner that minimizes unwarranted intrusions upon privacy.”174

Although Andresen was concerned with business records, its discussion seemed equally applicable to “personal” papers, such as diaries and letters, as to which a much greater interest in privacy exists. The question of the propriety of seizure of such papers continues to be the subject of reservation in opinions,175 but it is far from clear that the Court would accept any such exception should the issue be presented.176

Footnotes

148
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. back
149
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). back
150
Gouled v. United States, 255 U.S. 298, 306 (1921). back
151
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). back
152
Warden v. Hayden, 387 U.S. 294 (1967). back
153
Davis v. Mississippi, 394 U.S. 721 (1969). back
154
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). back
155
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (warrantless drug testing of railroad employee involved in accident). back
156
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). back
157
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). back
158
Berger v. New York, 388 U.S. 41, 44 n.2 (1967). See also id. at 97 n.4, 107–08 (Justices Harlan and White concurring), 67 (Justice Douglas concurring). back
159
Another important result of Warden v. Hayden is that third parties not suspected of culpability in crime are subject to the issuance and execution of warrants for searches and seizures of evidence. Zurcher v. Stanford Daily, 436 U.S. 547, 553–60 (1978). Justice Stevens argued for a stiffer standard for issuance of warrants to nonsuspects, requiring in order to invade their privacy a showing that they would not comply with a less intrusive method, such as a subpoena. Id. at 577 (dissenting). back
160
Rochin v. California, 342 U.S. 165 (1952). back
161
Winston v. Lee, 470 U.S. 753 (1985). back
162
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). back
163
387 U.S. 294, 302–03 (1967). Seizure of a diary was at issue in Hill v. California, 401 U.S. 797, 805 (1971), but it had not been raised in the state courts and was deemed waived. back
164
116 U.S. 616 (1886). back
165
Act of June 22, 1874, § 5, 18 Stat. 187. back
166
Boyd v. United States, 116 U.S. 616, 622 (1886). back
167
Howell’s State Trials 1029, 95 Eng. Rep. 807 (1765). back
168
Boyd v. United States, 116 U.S. 616, 630 (1886). back
169
E.g., Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209–09 (1946). back
170
Andresen v. Maryland, 427 U.S. 463 (1976); Fisher v. United States, 425 U.S. 391, 405–14 (1976). Fisher states that “the precise claim sustained in Boyd would now be rejected for reasons not there considered.” Id. at 408. back
171
427 U.S. 463 (1976). back
172
427 U.S. at 470–77. back
173
427 U.S. at 478–84. back
174
427 U.S. at 482, n.11. Minimization, as required under federal law, has not proved to be a significant limitation. Scott v. United States, 425 U.S. 917 (1976). back
175
E.g., United States v. Miller, 425 U.S. 435, 440, 444 (1976); Fisher v. United States, 425 U.S. 391, 401 (1976); California Bankers Ass’n v. Shultz, 416 U.S. 21, 78–79 (1974) (Justice Powell concurring). back
176
See, Note, Formalism, Legal Realism, and Constitutionally Protected Privacy Under the Fourth and Fifth Amendments, 90 HARV. L. REV. 945 (1977). back