IN RE GRAND JURY PROCEEDINGS (MILLS)
| Decision Date | 11 September 1981 |
| Docket Number | Misc. No. 81-36. |
| Citation | 522 F. Supp. 500 |
| Parties | In re GRAND JURY PROCEEDINGS (Cecil MILLS). |
| Court | U.S. District Court — District of Delaware |
Joseph J. Farnan, Jr., U. S. Atty. and Edmund D. Lyons, Jr., Asst. U. S. Atty., Wilmington, Del., for the United States of America.
David B. Stratton, of Richards, Layton & Finger, Wilmington, Del., for Cecil Mills.
The Federal Grand Jury of the United States District Court of Delaware is investigating the armed robbery of a local bank branch. One of the participants in this robbery was disguised by a ski mask which completely covered his face and hair making identification difficult, although there are eyewitness descriptions of the height and weight of the robber. Cecil Mills is suspected of being this disguised participant.
On August 14, 1981 he was summoned before the Federal Grand Jury and was asked to permit the taking of hair samples in order to determine whether his hair matched what appear to be human hairs from a head or beard found in a ski mask recovered from the scene of the robbery shortly after the crime was completed. Mills was further requested to permit accurate height and weight measurements to be taken. He refused both requests.
Thereupon, the United States filed a petition in the Court seeking an Order mandating that Mills agree to the Grand Jury's demands. This petition was supported by the affidavit of Assistant United States Attorney Edmund D. Lyons, Jr. In response to the Government's petition, the Court entered an Order requiring Mills to permit the taking of hair samples and the measurement of his height and weight by a doctor or other trained medical personnel under the supervision of an agent of the Grand Jury.
Counsel was appointed to represent Mills after the Order was issued. Through counsel, Mills informed the Government that he would agree neither to the taking of hair samples nor physical measurements unless the Government obtained a search warrant authorizing their production. Thereafter, Mills filed a motion to vacate or modify the aforementioned order of this Court.
It is settled that the Fourth Amendment offers no protection for physical qualities which are normally exposed to public view. The reasonable expectation of privacy which usually summons the protection of the Amendment against unreasonable searches and seizures cannot be reasonably said to exist in the case of manifest physical characteristics. See United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67 (1973). For this reason, the courts have held that Fourth Amendment coverage does not extend to Grand Jury compelled voice exemplars, United States v. Dionisio, supra, handwriting exemplars, United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), and lineup appearances, In re Melvin, 550 F.2d 674 (1st Cir. 1977).
A comparison of the weight and height measurements in the instant case with the involuntary lineup appearance ordered by a Grand Jury in In re Melvin, supra, is especially apposite. In Melvin the Court sustained a Grand Jury's power to compel a lineup appearance on the grounds that a person has no reasonable expectation of privacy in his facial characteristics. This reasoning applies as forcefully to Mills' expectation of privacy concerning his height and weight. Furthermore, the simple procedure of recording Mills' height and weight is surely a less inconvenient and humiliating intrusion than a compelled lineup.
The issue of whether a Grand Jury may compel a person to submit to the taking of hair samples is more problematical. Support for the warrantless clipping of the hair of a person, incident to a lawful arrest, without his permission may be found in the cases. One court held that the taking of hair samples from a person while he is in custody represented a minor intrusion which even in the absence of a search warrant could be considered reasonable. United States v. D'Amico, 408 F.2d 331 (2d Cir. 1969). However, there the accused was already in custody incident to a lawful arrest when the samples were taken, a situation markedly different than in the instant case. In fact, one state court went to some pains to note that the existence of strong probable cause influenced its decision that the warrantless seizure of hair samples without the permission of the accused was constitutionally proper. Commonwealth v. Tarver, 369 Mass. 302, 345 N.E.2d 671 (1975).
In the present case, the proposed search of Mills is not to be made incident to a lawful arrest and, in addition, there is no suggestion...
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Abe A., Matter of
...U.S. 1062, 97 S.Ct. 788, 50 L.Ed.2d 779; United States v. Jennings, 9 Cir., 177 U.S.App.D.C. 165, 468 F.2d 111, 115; Matter of Grand Jury Proceedings 522 F.Supp. 500, 30 Crim.L.Rep. True it is that in Cupp and in Schmerber, judicial determination of probable cause was not made prior to the ......
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Grand Jury Proceedings (Mills), In re
...and Mills subsequently moved the district court to vacate or modify its enforcement order. On September 11, 1981 the district court, 522 F.Supp. 500, issued an opinion and order vacating its previous direction that Mills submit to the sampling of his head and facial hair. The court, however......