Chapter 13: Bodily Intrusion Searches

[1] CAL: P v.
Robinson (2010) 47 C4 1104, 1119 [“Invasions of the body,
including nonconsensual extractions of an incarcerated felon’s
blood for DNA profiling, are searches entitled to the protections
of the Fourth Amendment.”].

[2] CAL: Jauregui v.
Superior Court (1986) 179 CA3 1160, 1166; P v.
Scott (1979) 21 C3 284, 292; P v.
Osband (1996) 13 C4 622, 673.

[3] USSC: Schmerber v.
California (1966) 384 US 757, 768. CAL: P v.
Fulkman (1991) 235 CA3 555, 562 [“police officers may not
use brutal or excessive force to recover evidence [but] must act
reasonably and use only that degree of force which is necessary to
overcome the defendant’s resistance”]; P v.
Johnson (1991) 231 CA3 1, 15; P v.
Jones (1989) 209 CA3 725, 729; P v.
Sugarman (2002) 96 CA4 210, 216. NOTE: The Court of
Appeal has noted that although courts often review police conduct
under the “shock the conscience” test announced in Rochin
v. California (1952) 342 US 165, “modern Supreme
Court decisions are grounded on whether the search was
‘reasonable’ under the circumstances.” P v.
Cappellia (1989) 208 CA3 1331, 1337-38; P v.
Fulkman (1991) 235 CA3 555, 562.

[4] CAL: P v. Kraft (1970)
3 CA3 890, 899 [DUI is a very serious crime because it frequently
“victimizes innocent people and not infrequently wipes out whole
families.”]; P v. Fulkman (1991) 235 CA3 555, 563.

[5] CAL: P v. Kraft (1970)
3 CA3 890, 899 [drunk drivers are “typically recalcitrant,
obstreperous and—not infrequently—belligerent. Greater restraints
are necessary and, we think, to be condoned.”]; Carleton
v. Superior Court (1985) 170 CA3 1182, 1191
[“Carleton was controlled by six persons all of whom were
necessary to permit the withdrawal of his blood in a medically
approved fashion.”]. NOTE: In Carleton, the court
also observed, “The degree of force necessary to overcome a
defendant’s resistance to the taking of a blood sample turns on
the size and strength of the individual defendant. Less force will
be necessary to restrain the proverbial 98-pound weakling.
Considerably more force will be required to subdue the 280-pound
weight lifting champion.”].

[6] USSC: Winston v.
Lee (1985) 470 US 753, 761. CAL: P v.
Cappellia (1989) 208 CA3 1331, 1338; P v.
Fulkman (1991) 235 CA3 555, 563.

[7] USSC: Winston v.
Lee (1985) 470 US 753, 761. CAL: P v.
Cappellia (1989) 208 CA3 1331, 1338.

[8] CAL: Veh. Code§ 23612(a)(1)(A).

[9] NOTE: The Supreme Court noted the
illogic of this nomenclature in
Mitchell v. Wisconsin (2019) __ US 439, __ [139 S.Ct. 2525,
2533 when it said that, despite the “general concept of
implied-consent laws that impose civil penalties and evidentiary
consequences on motorists who refuse to comply, our decisions have
not rested on the idea that these laws do what their popular name
might seem to suggest—that is, create actual consent to all the
searches they authorize,” edited]. Also note the inconsistency of
Veh. Code§§ 23612(a)(2)(C) which, at one point, says that
officers may “request” the driver to submit to a blood test then
says that the driver is “required to submit” to a blood test.

[10] CAL: Veh. Code§
23612(a)(1)(B)-(C) [“A person who drives a motor vehicle is deemed
to have given his or her consent to chemical testing of his or her
blood for the purpose of determining the drug content of his or
her blood, if lawfully arrested for an offense allegedly committed
in violation of Section 23140, 23152, or
23153. I.”].

[11] NOTE: Because blood tests are so
safe and nonintrusive, a warrantless blood test will not be
invalidated merely because the crime under investigation was a
misdemeanor that did not involve violence or result in injury;
e.g., non-injury, non-accident DUI. Winston v.
Lee (1985) 470 US 753, 762-63; P v.
Ford (1992) 4 CA4 32, 38-40.

[12] NOTE: If there is probable cause
to arrest for DUI, there is probable cause to believe that a blood
test would provide probative evidence. Winston v.
Lee (1985) 470 US 753, 759. NOTE: For many years,
California courts ruled that probable cause to search was not
enough—that officers needed something more called a “clear
indication.” See P v. Bracamonte (1975) 15 C3 394,
403; P v. Scott (1978) 21 C3 284, 292. These rulings
were based on the California Supreme Court’s interpretation of
language in the landmark US Supreme Court decision in
Schmerber v. California (1966) 384 US 757,
770. In 1985, however, the US Supreme Court clarified its use of
the term “clear indication” in Schmerber. The Court
explained that a “clear indication” is not a new standard of proof
which is more or less than probable cause. It merely indicates
“the necessity for particularized suspicion that the evidence
sought might be found within the body of the individual.”
US v. Montoya De Hernandez (1985) 473 US 531,
540-41.

[13] USSC: Schmerber v.
California (1966) 384 US 757, 771-72; Winston
v. Lee (1985) 470 US 753, 761. CAL: Pen. Code
§ 298.1(b)(2) [“The withdrawal of blood [for DNA testing]
shall be performed in a medically approved manner. Only health
care providers trained and certified to draw blood may withdraw
the blood specimens for purposes of this section.”]; Veh.
Code§ 23158 [the following medical personnel may, at the
request of a peace officer, draw a blood sample for the purpose of
determining blood-alcohol content: “a licensed physician and
surgeon, registered nurse, licensed vocational nurse, duly
licensed clinical laboratory scientist or clinical laboratory
bioanalyst, a person who has been issued a ‘certified phlebotomy
technician’ certificate pursuant to Section 1246 of the Business
and Professions Code, unlicensed laboratory personnel regulated
pursuant to Sections 1242, 1242.5, and 1246 of the Business and
Professions Code, or certified paramedic”]. NOTE: If the
blood sample was obtained in a medically approved manner, the
results cannot be suppressed on grounds the person taking the
sample was not listed in Veh. Code§ 23158. P v.
McHugh (2004) 119 CA4 202, 213-14 [“the mere fact Dominguez
did not have the license held by those persons described in
section 23158 does not make the blood draw unreasonable within the
meaning of the Fourth Amendment,” citing P v.
Esayian (2003) 112 CA4 1031, 1039-41]. NOTE: “The
testimony of a police officer, when he or she is a percipient
witness to the blood draw in question, may properly be considered
in evaluating whether that blood draw was conducted in a
constitutionally reasonable manner.” Furthermore, it is usually
reasonable to believe the blood was drawn in a medically approved
manner if it was drawn by a medical professional, including a
trained phlebotomist or blood technician. P v. Cuevas
(2013) 218 CA4 1278, 1285.

[14] CAL: P v. Rossetti (2014)
230 CA4 1070, 1079 [“Appellant was described as ‘kicking around,’
so some amount of force was necessary to overcome his resistance
and to obtain the blood sample safely… The officers used no
more force than necessary”]; Carleton v.
Superior Court (1985) 170 CA3 1182, 1192 [“to restrain a
defendant reasonable force may be necessary to properly withdraw a
blood sample from an actively resisting defendant”];
P v. Ryan (1981) 116 CA3 168, 183 “the taking of the
defendant’s blood for an alcohol test in a medically approved
manner did not constitute brutality or shock the conscience even
if it takes place against the will of the defendant”];
P v. Fiscalini (1991) 228 CA3 1639, 1644, fn4 [“the
superior court properly found the police did not use more force
than necessary to overcome Fiscalini’s resistance”].
ALSO SEE: Breithaupt v. Abram (1957)
352 US 432 [with probable cause it was lawful for a physician, at
the request of an officer, to draw blood from an unconscious DUI
suspect].

[15] USSC:
Mitchell v. Wisconsin (2019) __ US __ [139 S.Ct. 2525].
ALSO SEE: Veh. Code§ 23612(a)(5).

[16] CAL: P v. Cruz (2019) 34
CA5 764, 771 [forcible blood draw from DUI arrestee was permitted
per the terms of probation that included warrantless searches of
“your person.”]; P v. Jones (2014) 231 CA4 1257, 1269
[blood draw falls within the “search of a person”].

[17] USSC:
Missouri v. McNeely (2013) 569 US 141, 153 [“We do not
doubt that some circumstances will make obtaining a warrant
impractical such that the dissipation of alcohol from the
bloodstream will support an exigency justifying a properly
conducted warrantless blood test.”]. NOTE: What constitutes
exigent circumstances: In the only California case in which this
issue has arisen to date, the Court of Appeal in
P v. Toure (2015) 232 CA4 1096 ruled that CHP officers
lawfully ordered a warrantless blood draw of a DUI arrestee
because, in addition to the constant loss of blood-alcohol
evidence, the following additional circumstances existed: (1) the
officers were delayed at the scene because the arrestee had caused
an injury accident that required some of their attention; (2) the
arrestee was “combative requiring the administration of physical
restraints, which delayed their investigation of the accident and
prevented the officers from conducting field sobriety tests”; (3)
the arrestee refused to tell the officers when he had stopped
drinking, thereby making it more difficult estimate his degree of
intoxication, and (4), when they arrived at the CHP office it
became necessary to “hogtie” the arrestee because he was still out
of control.

[18] USSC:
Missouri v. McNeely (2013) 569 US 141, 152-53.

[19] CAL: P v. Meza (2018) 23 CA
5 604, 611.

[20] USSC:
Birchfield v. North Dakota (2016) 579 US 438, 462 [“Just
recently we described the process of collecting a DNA sample by
rubbing a swab on the inside of a person’s cheek as a ‘negligible’
intrusion.”]; Maryland v. King (2013) 569 US 435, 446 [“The
fact than an intrusion is negligible is of central relevance to
determining reasonableness, although it is still a search as the
law defines that term.”]. ALSO SEE:
Maryland v. King (2013) 569 US 425, 446 [buccal swabbing
“is still a search as the law defines the term”];
P v. Robinson (2014) 47 C4 1104, 1119 [“Invasions of the
body, including nonconsensual extractions of an incarcerated
felon’s blood for DNA profiling, are searches entitled to
the protections of the Fourth Amendment.”].

[21] USSC:
Maryland v. King (2013) 569 US 425, 445. CAL:
P v. Buza (2018) 4 C5 658, 679 [during booking, officers
may, without a warrant, take DNA samples from people who have been
arrested for a felony]; Pen. Code§ 296(a)(2). CAL:
P v. Roberts (2021) 68 CA5 64, 392 [California’s DNA Act,
as it pertains to uncharged arrestees is constitutional];
P v. Marquez (2019) 31 CA5 402, 409 [“Following an arrest
supported by probable cause, the collection of a suspect’s DNA by
taking a cheek swab during a routine booking procedure is now a
valid exception to the warrant requirement.”]. OTHER:
US v. Lassiter (D D.C. 2009) 607 FS2 162, 167 [buccal swab
procedure “is considerably less invasive and poses less of a
threat to the health and safety of the defendant than taking
blood”]. NOTE: “Buccal swab” defined: “A buccal swab test
involves rubbing a swab on the interior surface of the cheek to
obtain cells that are then evaluated for [DNA] analysis.”
Commonwealth v. Draheim (Mass. 2006) 849 NE2 823, 825,
fn.2. 9th CIR: Haskell v. Harris (9C 2014) 745 F3
1269, 1271 [“‘Is California’s DNA collection scheme constitutional
as applies to anyone arrested for, or charged with, a
felony offense by California state or local officials?’ After
Maryland v. King, 133 S.Ct. 1958 (2013), the answer is
clearly yes.”].

[22] CAL: Pen. Code§ 296(a)(1).

[23] CAL: P v. Jones (2014) 231
CA4 1257, 1269 [“Jones’s mandatory PRCS search and seizure
condition authorized the blood draw without the necessity of a
warrant and offends no interest the Fourth Amendment is intended
to protect.”]; P v. Perkins (2016) 5 CA5 454 [DNA penile
swab of parolee arrested for kidnapping and rape].

[24] CAL: P v.
Robinson (2010) 47 C4 1104, 1123 [“a lawfully convicted and
incarcerated felon does not have a Fourth Amendment right to
prevent state authorities from collecting a blood sample for DNA
profiling”].

[25] CAL: P v.
Fulkman (1991) 235 CA3 555, 562 [“In order to prevent the
destruction of evidence, the police may reach into a person’s
mouth to recover evidence if there is sufficient probable cause to
believe a crime is being, or has been, committed. Notably, the
mouth is not a ‘sacred orifice’ and there is no constitutional
right to destroy or dispose of evidence. At the same time, police
officers may not use brutal or excessive force to recover
evidence.”]; P v. Cappellia (1989) 208 CA3 1331,
1336; P v. Johnson (1991) 231 CA3 1, 15.

[26] CAL: P v.
Cappellia (1989) 208 CA3 1331, 1336 [“The police may, in
order to prevent the destruction of evidence, reach into a
person’s mouth to recover evidence if there is sufficient probable
cause to believe a crime is being, or has been, committed. The
mouth is not a ‘sacred orifice’ and “there is no constitutional
right to destroy or dispose of evidence.”]; P v.
Fulkman (1991) 235 CA3 555, 563.

[27] CAL: P v.
Jones (1989) 209 CA3 725, 730 [“California law has not
recognized distinctions in the degree of choking, but rather has
drawn the line of illegality at choking.”]; P v.
Johnson (1991) 231 CA3 1, 16 [“choking someone to recover
evidence violates due process, without any need to inquire into
the precise degree of choking involved”]. NOTE: “Choking”
does not result simply because the suspect’s breath was restricted
or he was “gagging.” Such a response may be caused by the
obstruction resulting from the object in the suspect’s mouth and
the suspect’s refusal to open his mouth, especially if the suspect
was violently resisting and was therefore in need of additional
oxygen. P v. Johnson (1991) 231 CA3 1, 17 [“We also
bear in mind that [the suspect] was fighting to keep a chunk of
rock cocaine in his mouth, an object which could cause obstruction
independent of the officers’ actions.”].

[28] CAL: P v.
Cappellia (1989) 208 CA3 1331, 1338 [“it makes little sense
to say that the minimal pressure necessary to prevent swallowing
is excessive”].

[29] CAL: P v.
Cappellia (1989) 208 CA3 1331, 1338 [court notes that “if
the drugs are swallowed the defendant may be harmed by them and
may have to submit to an even more disagreeable procedure for his
own protection or for retrieval of the evidence.”]; P v.
Fulkman (1991) 235 CA3 555, 564 [“defendant admittedly was
attempting to swallow a very large object that contained heroin
and there was a very real danger that the object would become
lodged in his throat, as well as potentially being harmful if
swallowed”].

[30] CAL: P v.
Cappellia (1989) 208 CA3 1331, 1339-40; P v.
Fulkman (1991) 235 CA3 555, 564.

[31] USSC: Rochin v.
California (1952) 342 US 165, 172. CAL: P v.
Bracamonte (1975) 15 C3 394, 404.

[32] CAL: P v.
Bracamonte (1975) 15 C3 394, 401; P v.
Jones (1971) 20 CA3 201, 209.

[33] CAL: P v.
Jones (1971) 20 CA3 201, 209. ALSO SEE:
P v. Bracamonte (1975) 15 C3 394, 401.

[34] USSC: US v.
Montoya De Hernandez (1985) 473 US 531, 543-44 [Court
upheld 16-hour detention of a woman at the US-Mexico border who
was reasonably suspected of being an alimentary canal smuggler;
the court noted among other things, “Respondent’s detention was
long, uncomfortable, indeed humiliating; but both its length and
its discomfort resulted solely from the method by which she chose
to smuggle illicit drugs into this country.”]. CAL:
P v. Bracamonte (1975) 15 C3 394, 401-2, fn.5;
Jauregui v. Superior Court (1986) 179 CA3
1160, 1166; P v. Jones (1989) 209 CA3 725, 730.

[35] CAL: P v.
Cappellia (1989) 208 CA3 1331, 1339-40 [“No one can know
for sure what the precise effect will be when packaged drugs are
swallowed and this is especially true when the packages appear
unsealed.”].

[36] CAL: P v.
Osband (1996) 13 C4 622, 672 [“We need not decide under
what circumstances taking hair samples might constitute a search
or seizure”]. OTHER: US v.
De Parias (11C 1986) 805 F2 1447, 1456-57 [“Federal courts
are undecided as to whether the involuntary removal of hair
samples constitutes a search and seizure under the Fourth
Amendment.” Citations omitted].

[37] OTHER: US v.
D’Amico (2C 1969) 408 F2 331, 333 [clipping a few strands
of hair from appellant’s head was so minor an intrusion that the
Fourth Amendment was not implicated].

[38] USSC: Winston v.
Lee (1985) 470 US 753. CAL: P v.
Scott (1978) 21 C3 284; P v. Nokes (1986) 183
CA3 468, 479 [“any genital or rectal examination has a vastly
higher privacy quotient than examination of the eyes, the throat,
or the extremities, for example”]. 9th CIR:
US v. Fowlkes (9C 2015) 804 F3 954, 967 [“the LBPD
conducted a warrantless forcible seizure of an unidentified item
of unknown size from Fowlkes’ rectum by non-medical personnel who
(1) did nothing to assure that the removal was safe and performed
under sanitary conditions; (2) were aided by the use of a taser
but not by lubricant; (3) seized the object in the absence of
exigent circumstances; and (4) acted in violation of LBPD policy.
No single factor is dispositive, but under the totality of the
circumstances presented here, we conclude that the manner of this
seizure was unreasonable”]; George v. Edholm (9C 2014) 752
F3 1206, 1218 [anal probing was “highly intrusive and
humiliating”]. OTHER: US v. Booker (6C 2013) 725 F3
535, 547 [“Here, there is not only a probe into a tranquilized
subject. Booker, naked and handcuffed, was paralyzed, incubated,
and anally probed without his consent.”].