US v. Ingram

• Decision Date: 12 June 1992
• Docket Number: Civ. No. LR-CR-92-112.
• Parties: UNITED STATES of America, Plaintiff, v. Kevin INGRAM, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

797 F. Supp. 705

UNITED STATES of America, Plaintiff, v. Kevin INGRAM, Defendant.

Civ. No. LR-CR-92-112.

United States District Court, E.D. Arkansas, W.D.

June 12, 1992.

Robert L. Scull, Robert L. Scull & Associates, Little Rock, Ark., for Kevin Ingram.

Michael D. Johnson, U.S. Attys. Office, Little Rock, Ark., for U.S.

ORDER

EISELE, District Judge.

I

On April 20, 1992, a grand jury returned a three count indictment charging the defendant, Kevin Ingram, and a co-defendant with conspiring to rob and then robbing two banks in Little Rock, Arkansas on December 16, 1991. Little Rock law enforcement officers placed Mr. Ingram under arrest on April 4, 1992. He remained in State custody until he was released to federal authorities, pursuant to a writ of habeas corpus ad prosequendum, for a plea and arraignment hearing held on April 22, 1992. After entering a plea of not guilty, Mr. Ingram posted bond and was released from federal custody.

The government has submitted a Motion for Production of Physical Evidence, in which it requests the Court to order the defendant to appear at the United States Attorney's Office so that hair samples may be taken from his head. The motion states that "this sample is necessary to compare with hair fibers from the coat worn during the robbery for which the defendant has been charged." The defendant has opposed this motion, arguing that an order to produce hair samples would violate his rights under the Fourth and Fifth Amendments to the United States Constitution.

The government does not argue that it has made any showing of cause to believe, or even to suspect, that the hair fibers found on the coat will match those it wishes to take from Mr. Ingram. In fact, the government does not even represent that it has formed such an expectation, let alone set forth its reasons for having done so. The motion is not accompanied by evidence or affidavits, and the government is not seeking a warrant. So, the Motion for Production of Physical Evidence raises the question: Does the Fourth Amendment permit the issuance of an order compelling an individual, who has been charged with a crime and released on bail pending trial, to appear so that the government may take hair samples, absent any showing of a reason to believe that the samples will connect the individual to the crime with which he is charged?

For the reasons set forth below, the Court answers this question in the negative and will deny the government's motion.

II

A. THE DEFENDANT'S FIFTH AMENDMENT OBJECTION

As a preliminary matter, the Court finds no merit in the defendant's Fifth Amendment objection. While the defendant does not explain which Fifth Amendment right is at stake here, or why the taking of a hair sample would violate that right, the Court can only surmise that he is talking about due process or self-incrimination.

In Rochin v. California, 342 U.S. 165, 172-73, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952), the Supreme Court held that the due process clause prohibits the introduction of evidence that the state recovers by subjecting someone to a type of physical examination that "shocks the conscience" or "offends a sense of justice." Rochin involved the forcible pumping of a suspect's stomach. The forcible combing or plucking of a suspect's hair is hardly comparable. The examination the government wants to conduct here involves no more than what people often do in their rear view mirror. Unlike the stomach pumping discussed in Rochin, taking a hair sample would not "offend even hardened sensibilities" or elicit comparison to "the rack and screw". Id. at 172, 72 S.Ct. at 209. The Court perceives no possibility of a due process violation from the production of physical evidence at issue here.

Any self-incrimination argument that Mr. Ingram might make is foreclosed by Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), where the Supreme Court held that the privilege against self-incrimination bars the state from compelling "testimony" or "communication," but does not extend to "that compulsion which makes a suspect or accused the source of `real or physical evidence'" such as a blood test. Id. 86 S.Ct. at 1832.

B. THE DEFENDANT'S FOURTH AMENDMENT OBJECTION

1. First Principles

The defendant's Fourth Amendment objection requires much more careful consideration. The Fourth Amendment provides, in relevant part: "The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause...."

In addressing Fourth Amendment questions, courts must consider the threshold question of whether a "search" or "seizure" has occurred.¹ The Supreme Court has explained that "a person has been `seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). A more difficult question concerns the meaning of the term "search". In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) — a decision that represented a significant change in Fourth Amendment jurisprudence and created a new starting point for this type of analysis — the Supreme Court defined a search as state action that "violates the privacy on which an individual justifiably relied". Justice Harlan, in his Katz concurrence, formulated this definition in a way that was soon adopted by lower courts and then, in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), by a majority of the Supreme Court. According to Harlan, a search must meet "a twofold requirement, first, that a person have exhibited an actual (subjective) expectation of privacy, and, second, that the expectation be one that society is prepared to accept as `reasonable.'" Katz, 88 S.Ct. at 516 (Harlan, J., concurring).

If the challenged state action does not amount to a search or seizure, then it is outside the scope of Fourth Amendment protection, and the inquiry is over. If the Fourth Amendment does apply, however, the Court then asks whether the search or seizure was a "reasonable" one. Traditionally, that determination turns on whether the state has satisfied the warrant requirement. "Except in certain well-defined circumstances, a search or seizure ... is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause." Skinner, 109 S.Ct. at 1414. Absent "well-defined" or "exigent" circumstances, the strongest showing of probable cause fails to justify an already completed search. As Justice Jackson observed in Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 (1948),

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity....

The facts of this case do not suggest the presence of exigent circumstances that would permit a warrantless search. Therefore, those exceptions to the warrant requirement are not at issue here.²

In addition to the "well-defined" exceptions to the warrant requirement, the Court has, on occasion, held that certain forms of "lesser intrusions" should not be subjected to the same test for reasonableness applied to typical searches or seizures. In these cases, instead of reasoning that warrantless searches are presumptively unreasonable, the Court has made an independent determination of reasonableness by balancing the state's need to conduct a given search against the invasion of the individual's privacy that the search entails. For example, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court employed a balancing test to hold that a police officer whose observations lead him to reasonably suspect that an individual is planning or engaged in criminal activity, and that the individual is armed and presently dangerous, may briefly detain the individual without a warrant to conduct a carefully limited search of the outer clothing in order to discover weapons. And in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) and its companion case See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), the Court considered the balance of interests involved in administrative inspections of residences and businesses; it concluded that while officials conducting these investigations must obtain a warrant to enter without consent, magistrates issuing such warrants may employ a significantly more liberal standard of what constitutes probable cause. The types of state action recognized as "lesser intrusions" still involve searches and seizures, and thus still are subject to Fourth Amendment scrutiny. The bottom-line determination of reasonableness, however, turns on a more case-specific balancing of interests, as compared to the presumptive rule derived from the warrant requirement.

The Court's decision concerning the government's motion must comport with these principles of Fourth Amendment law.

2. United States v. Weir

Each party cites United States v. Weir, 657 F.2d 1005 (8th Cir.1981) (per curiam) as support for its position. Weir is the only Eighth Circuit case that addresses the issue of hair samples, and the Supreme Court has not decided or discussed the question. Therefore, the Court must first determine if Weir controls...