In re Shabazz

• Decision Date: 23 April 2002
• Docket Number: No. Civ.A. 202MC0007.,Civ.A. 202MC0007.
• Citation: 200 F.Supp.2d 578
• Parties: In re Shaddie Clark SHABAZZ.
• Court: U.S. District Court — District of South Carolina

200 F.Supp.2d 578

In re Shaddie Clark SHABAZZ.

No. Civ.A. 202MC0007.

United States District Court, D. South Carolina, Charleston Division.

April 23, 2002.

COPYRIGHT MATERIAL OMITTED

Rhett DeHart, Assistant United States Attorney, Charleston, SC, for government.

Joseph Leroy Smalls, Jr., Columbia, SC, for respondent.

ORDER

NORTON, District Judge.

This case is before the court upon the magistrate judge's recommendation that defendants' motion to quash be denied. This record includes a report and recommendation of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1)(B).

I. Background

Petitioner Shaddie Clark Shabazz, a female prison guard at the federal prison in Estill, S.C., is under investigation by the F.B.I. for allegedly engaging in sexual relations with inmates and for extortion related to this misconduct. On December 12, 2001, the federal grand jury in Charleston, S.C., served a subpoena duces tecum ordering Petitioner to appear on January 15, 2002, and provide an oral sample of her saliva for DNA testing. On January 8, 2002, Petitioner filed a motion to quash the subpoena duces tecum on the grounds that a saliva sample for DNA testing is an "invasive procedure," and she cannot be forced to submit to such testing without a showing of probable cause. (Mem.Supp. Mot. Quash at 1-2.)

II. Review of Magistrate Judge's Report

A party may object, in writing, to a magistrate judge's report within ten days after being served with a copy of that report. See 28 U.S.C. § 636(b)(1). This court is charged with conducting a de novo review of any portion of the magistrate judge's report to which a specific objection is registered and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. See 28 U.S.C. § 636(b)(1) (1994). The magistrate judge filed his report and recommendation denying Petitioner's motion to quash on February 1, 2002. Petitioner timely filed her written objections on February 11, 2002.

III. Legal Analysis

"Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law." U.S. v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). "The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials." Id. However, "the grand jury's subpoena power is not unlimited. It may consider incompetent evidence, but it may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law." Id. at 346, 94 S.Ct. 613 (internal citations omitted). Accordingly, "[t]he grand jury is ... without power to invade a legitimate privacy interest protected by the Fourth Amendment." Id.¹

The Fourth Amendment guarantees that all people shall be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. In deciding whether a Fourth Amendment violation has occurred, the threshold question is to determine whether the challenged governmental act is a "search" or "seizure" within the scope of the Fourth Amendment. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). The Fourth Amendment is implicated when the person invoking its protection can claim a "legitimate expectation of privacy" in the place searched or the item seized. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (citing Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)); U.S. v. Simons 206 F.3d 392, 398 (4th Cir.2000). A "legitimate expectation of privacy" is "one that society is prepared to recognize as objectively reasonable." Simons 206 F.3d at 398 (internal citation omitted).

"[T]he obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels—the `seizure' of the `person' necessary to bring him into contact with government agents and the subsequent search for and seizure of the evidence." U.S. v. Dionisio, 410 U.S. 1, 8, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (internal citation omitted). "[A] subpoena to appear before a grand jury is not a `seizure' in the Fourth Amendment sense, even though that summons may be inconvenient or burdensome[,]" because there is an "historically grounded obligation of every person to appear and give his evidence before the grand jury." Id. at 9-10, 93 S.Ct. 764.² As to the subsequent search for and seizure of the evidence, it is well-established that "a physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable." Skinner, 489 U.S. at 616, 109 S.Ct. 1402; see Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood test for alcohol); Winston v. Lee, 470 U.S. 753, 760-61, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) (surgical intrusion to remove a bullet). However, "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz, 389 U.S. at 351, 88 S.Ct. 507. Accordingly, grand jury subpoenas compelling voice samples, Dionisio, 410 U.S. at 15, 93 S.Ct. 764, and handwriting samples, U.S. v. Mara, 410 U.S. 19, 21-22, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), are not "searches" and therefore do not implicate the Fourth Amendment. See also Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) (stating in dicta that "[f]ingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search"); In re Grand Jury Proceedings (Mills), 686 F.2d 135, 139 (3d Cir.1982) (finding that "there is no greater expectation of privacy with respect to hair which is on public display than with respect to voice, handwriting or fingerprints.")

However, this category of "non-searches" of publicly displayed physical evidence is limited. The Supreme Court held that unlike voice exemplars, handwriting exemplars, and fingerprints, a search of scrapings below a defendant's fingernails went "beyond mere physical characteristics constantly exposed to the public and constituted the type of severe, though brief, intrusion upon cherished personal security that is subject to constitutional scrutiny." Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) (internal citations omitted). Moreover, breathalyzer tests and urine samples are "searches" within the meaning of the Fourth Amendment. Skinner, 489 U.S. at 613-614, 109 S.Ct. 1402. The Court explained that forcing a person to produce "deep lung" breath "implicates similar concerns about bodily integrity" as a blood test. Id. at 616-17, 109 S.Ct. 1402. In addition, the Court noted that a chemical analysis of a urine sample to obtain physiological data is a further invasion of a person's privacy interests because it "can reveal a host of private medical facts about [a person], including whether he or she is epileptic, pregnant, or diabetic." Id.

Courts that have addressed the issue of saliva samples have found them to be a "searches" within the meaning of the Fourth Amendment. In re Grand Jury Proceedings Involving Vickers, 38 F.Supp.2d 159, 165 (D.N.H.1998) ("A grand jury subpoena compelling a citizen to provide saliva samples does implicate his or her Fourth Amendment rights."); United States v. Nicolosi, 885 F.Supp. 50, 56 (E.D.N.Y.1995) (holding that a saliva sample is "properly deemed a search under the Fourth Amendment"); Henry v. Ryan, 775 F.Supp. 247, 253 (N.D.Ill.1991) (holding that a saliva sample is a Fourth Amendment search because "extracting a saliva sample seems to involve the same sort of intrusion that goes beyond the physical characteristics exposed to the public and into the security of the person").

This court agrees that a grand jury subpoena duces tecum requiring Petitioner to submit a saliva sample for the purpose of DNA testing invades a "legitimate expectation of privacy" and is therefore a "search" within the meaning of the Fourth Amendment.³ The subpoena duces tecum would require Petitioner to allow an agent of the grand jury to place a swab on the interior of her mouth and obtain a sample of saliva. Although the invasion of privacy is not as great as the blood test in Schmerber, 384 U.S. at 757, 86 S.Ct. 1826, or the bullet-removal procedure in Winston, 470 U.S. at 753, 105 S.Ct. 1611, it nonetheless involves more than "physical characteristics constantly exposed to the public," Cupp, 412 U.S. at 295, 93 S.Ct. 2000. It is reasonable to expect that the interior of one's mouth will not come into unwanted physical contact with the public. The expectation of privacy as to the interior of the mouth is at least as great as the privacy interest in "deep lung" breath recognized by the Court in Skinner, 489 U.S. at 617-18, 109 S.Ct. 1402, or the fingernail scrapings in Cupp, 412 U.S. at 295, 93 S.Ct. 2000. Moreover, Petitioner has a separate privacy interest in preventing the government from obtaining the vast array of data that can be ascertained through an analysis of the DNA. Skinner, 489 U.S. at 617-18, 109 S.Ct. 1402.

However, a determination that the subpoena duces tecum is a "search" within the scope of the Fourth Amendment does not end the analysis. "[T]he Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable." Skinner, 489 U.S. at 619, 109 S.Ct. 1402. "Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, ... reasonableness generally requires the obtaining of a judicial warrant [and] ... the showing of probable cause required by the Warrant Clause." Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (citing Skinner, 489 U.S. at 619,...