§ 11.02 INTRUSIONS INSIDE THE HUMAN BODY

• Jurisdiction: United States

§ 11.02. Intrusions Inside the Human Body⁸

The Supreme Court has wrestled with the question of whether, and under what circumstances, the government may compel a search that involves intrusion inside the body of a suspect. In some cases, police methods to obtain evidence in this manner may "offend 'a sense of justice,' "⁹ and consequently violate the Due Process Clause. However, in the Fourth Amendment context: (1) the fact that a search will involve intrusion inside a person's body does not in itself bar the government, in appropriate circumstances, from proceeding without a warrant; but (2) with or without a warrant, a search inside the body is not reasonable unless special criteria are met.

Schmerber v. California¹⁰ demonstrates both of these points. S was arrested at a hospital for driving under the influence of alcohol. On the order of the arresting officer, a physician took a blood sample from S to test for alcohol content. Although the Court stated that there was "plainly probable cause" for the arrest, the search and seizure of blood were without a warrant. The Court held that the warrantless taking of the blood sample was justifiable on the ground that the evidence — the alcohol in the bloodstream —would have been lost if the police had been required to obtain a warrant: The evidence was in the process of being "destroyed" as S's body eliminated it from its system. In short, an exigency justified dispensing with the warrant requirement.¹¹

Although the warrantless search here was permissible, the Court warned that any intrusive bodily search would violate the Fourth Amendment unless: (1) the police are justified in requiring the individual to submit to the test; and (2) the means and procedures employed to conduct the test are reasonable. The first requirement was met here: the officer had, in Schmerber's words, "plainly probable cause" to arrest S for driving under the influence of alcohol; the blood test, therefore, was not conducted "on the mere chance" that alcohol would be found in the bloodstream, but rather on the basis of a "clear indication" that such evidence would be discovered.

The second requirement was also met here. The procedure involved—extraction of blood—is highly effective, commonplace, and rarely painful or traumatic. Also, the test was performed in a reasonable manner: by a physician, in a hospital environment, under accepted medical practices. Therefore, the warrantless search was reasonable.

The Court has since considered...