2.17: Chapter 18 The Warrant Requirement - Exceptions

In this chapter, we conclude our review of exceptions to the warrant requirement. In particular, we will examine: (1) searches of persons in jails, (2) searches of persons on probation and parole, (3) inventory searches, (4) administrative searches, and (5) DNA tests of arrested persons.

Warrant Exception: Searches of Persons in Jails and Prisons

To maintain order and safety in jails and prisons, correctional officers must conduct searches of inmates and their effects. The next case explores the limits of this authority, as well as whether the offense for which someone is jailed affects what searches are reasonable.

Supreme Court of the United States

Albert W. Florence v. Board of Chosen Freeholders of the County of Burlington

Decided April 2, 2012—566 U.S. 318

Justice KENNEDY delivered the opinion of the Court, except as to Part IV.¹

I

In 1998, seven years before the incidents at issue, petitioner Albert Florence was arrested after fleeing from police officers in Essex County, New Jersey. He was charged with obstruction of justice and use of a deadly weapon. Petitioner entered a plea of guilty to two lesser offenses and was sentenced to pay a fine in monthly installments. In 2003, after he fell behind on his payments and failed to appear at an enforcement hearing, a bench warrant was issued for his arrest. He paid the outstanding balance less than a week later; but, for some unexplained reason, the warrant remained in a statewide computer database.

Two years later, in Burlington County, New Jersey, petitioner and his wife were stopped in their automobile by a state trooper. Based on the outstanding warrant in the computer system, the officer arrested petitioner and took him to the Burlington County Detention Center. He was held there for six days and then was transferred to the Essex County Correctional Facility. It is not the arrest or confinement but the search process at each jail that gives rise to the claims before the Court.

Burlington County jail procedures required every arrestee to shower with a delousing agent. Officers would check arrestees for scars, marks, gang tattoos, and contraband as they disrobed. Petitioner claims he was also instructed to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. (It is not clear whether this last step was part of the normal practice.) Petitioner shared a cell with at least one other person and interacted with other inmates following his admission to the jail.

When petitioner was transferred [to the Essex County facility], all arriving detainees passed through a metal detector and waited in a group holding cell for a more thorough search. When they left the holding cell, they were instructed to remove their clothing while an officer looked for body markings, wounds, and contraband. Apparently without touching the detainees, an officer looked at their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings. This policy applied regardless of the circumstances of the arrest, the suspected offense, or the detainee’s behavior, demeanor, or criminal history. Petitioner alleges he was required to lift his genitals, turn around, and cough in a squatting position as part of the process. After a mandatory shower, during which his clothes were inspected, petitioner was admitted to the facility. He was released the next day, when the charges against him were dismissed.

Petitioner sued the governmental entities that operated the jails, one of the wardens, and certain other defendants. Seeking relief under 42 U.S.C. § 1983 for violations of his Fourth and Fourteenth Amendment rights, petitioner maintained that persons arrested for a minor offense could not be required to remove their clothing and expose the most private areas of their bodies to close visual inspection as a routine part of the intake process. The District Court certified a class of individuals who were charged with a nonindictable offense under New Jersey law, processed at either the Burlington County or Essex County jail, and directed to strip naked even though an officer had not articulated any reasonable suspicion they were concealing contraband.

After discovery, the court granted petitioner’s motion for summary judgment on the unlawful search claim. A divided panel of the United States Court of Appeals for the Third Circuit reversed. This Court granted certiorari.

II

The difficulties of operating a detention center must not be underestimated by the courts. Jails (in the stricter sense of the term, excluding prison facilities) admit more than 13 million inmates a year. The largest facilities process hundreds of people every day; smaller jails may be crowded on weekend nights, after a large police operation, or because of detainees arriving from other jurisdictions. Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face. The Court has confirmed the importance of deference to correctional officials and explained that a regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.”

The Court has [] recognized that deterring the possession of contraband depends in part on the ability to conduct searches without predictable exceptions. [C]orrectional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities. The task of determining whether a policy is reasonably related to legitimate security interests is “peculiarly within the province and professional expertise of corrections officials.”

In many jails officials seek to improve security by requiring some kind of strip search of everyone who is to be detained. Persons arrested for minor offenses may be among the detainees processed at these facilities.

III

The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband. The Court has held that deference must be given to the officials in charge of the jail unless there is “substantial evidence” demonstrating their response to the situation is exaggerated. Petitioner has not met this standard, and the record provides full justifications for the procedures used.

A

Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process. The admission of inmates creates numerous risks for facility staff, for the existing detainee population, and for a new detainee himself or herself. The danger of introducing lice or contagious infections, for example, is well documented. The Federal Bureau of Prisons recommends that staff screen new detainees for these conditions. Persons just arrested may have wounds or other injuries requiring immediate medical attention. It may be difficult to identify and treat these problems until detainees remove their clothes for a visual inspection.

Jails and prisons also face grave threats posed by the increasing number of gang members who go through the intake process. “Gang rivalries spawn a climate of tension, violence, and coercion.” The groups recruit new members by force, engage in assaults against staff, and give other inmates a reason to arm themselves. Fights among feuding gangs can be deadly, and the officers who must maintain order are put in harm’s way. These considerations provide a reasonable basis to justify a visual inspection for certain tattoos and other signs of gang affiliation as part of the intake process. The identification and isolation of gang members before they are admitted protects everyone in the facility.

Detecting contraband concealed by new detainees, furthermore, is a most serious responsibility. Weapons, drugs, and alcohol all disrupt the safe operation of a jail. Correctional officers have had to confront arrestees concealing knives, scissors, razor blades, glass shards, and other prohibited items on their person, including in their body cavities. They have also found crack, heroin, and marijuana. The use of drugs can embolden inmates in aggression toward officers or each other; and, even apart from their use, the trade in these substances can lead to violent confrontations.

Contraband creates additional problems because scarce items, including currency, have value in a jail’s culture and underground economy. Correctional officials inform us “[t]he competition … for such goods begets violence, extortion, and disorder.” They “orchestrate thefts, commit assaults, and approach inmates in packs to take the contraband from the weak.” This puts the entire facility, including detainees being held for a brief term for a minor offense, at risk. Gangs do coerce inmates who have access to the outside world, such as people serving their time on the weekends, to sneak things into the jail. These inmates, who might be thought to pose the least risk, have been caught smuggling prohibited items into jail.

It is not surprising that correctional officials have sought to perform thorough searches at intake for disease, gang affiliation, and contraband. Jails are often crowded, unsanitary, and dangerous places. There is a substantial interest in preventing any new inmate, either of his own will or as a result of coercion, from putting all who live or work at these institutions at even greater risk when he is admitted to the general population.

B

Petitioner acknowledges that correctional officials must be allowed to conduct an effective search during the intake process and that this will require at least some detainees to lift their genitals or cough in a squatting position. These procedures [] are designed to uncover contraband that can go undetected by a patdown, metal detector, and other less invasive searches. Petitioner maintains there is little benefit to conducting these more invasive steps on a new detainee who has not been arrested for a serious crime or for any offense involving a weapon or drugs. In his view these detainees should be exempt from this process unless they give officers a particular reason to suspect them of hiding contraband. It is reasonable, however, for correctional officials to conclude this standard would be unworkable.

Experience shows that people arrested for minor offenses have tried to smuggle prohibited items into jail, sometimes by using their rectal cavities or genitals for the concealment. They may have some of the same incentives as a serious criminal to hide contraband. A detainee might risk carrying cash, cigarettes, or a penknife to survive in jail. Others may make a quick decision to hide unlawful substances to avoid getting in more trouble at the time of their arrest.

Even if people arrested for a minor offense do not themselves wish to introduce contraband into a jail, they may be coerced into doing so by others. This could happen any time detainees are held in the same area, including in a van on the way to the station or in the holding cell of the jail. If, for example, a person arrested and detained for unpaid traffic citations is not subject to the same search as others, this will be well known to other detainees with jail experience. A hardened criminal or gang member can, in just a few minutes, approach the person and coerce him into hiding the fruits of a crime, a weapon, or some other contraband. As an expert in this case explained, “the interaction and mingling between misdemeanants and felons will only increase the amount of contraband in the facility if the jail can only conduct admission searches on felons.” Exempting people arrested for minor offenses from a standard search protocol thus may put them at greater risk and result in more contraband being brought into the detention facility. This is a substantial reason not to mandate the exception petitioner seeks as a matter of constitutional law.

It also may be difficult, as a practical matter, to classify inmates by their current and prior offenses before the intake search. Jails can be even more dangerous than prisons because officials there know so little about the people they admit at the outset. An arrestee may be carrying a false ID or lie about his identity. The officers who conduct an initial search often do not have access to criminal history records.

IV

This case does not require the Court to rule on the types of searches that would be reasonable in instances where, for example, a detainee will be held without assignment to the general jail population and without substantial contact with other detainees. Petitioner’s amici raise concerns about instances of officers engaging in intentional humiliation and other abusive practices. There also may be legitimate concerns about the invasiveness of searches that involve the touching of detainees. These issues are not implicated on the facts of this case, however, and it is unnecessary to consider them here.

V

Even assuming all the facts in favor of petitioner, the search procedures at the Burlington County Detention Center and the Essex County Correctional Facility struck a reasonable balance between inmate privacy and the needs of the institutions. The Fourth and Fourteenth Amendments do not require adoption of the framework of rules petitioner proposes.

The judgment of the Court of Appeals for the Third Circuit is affirmed.

Justice ALITO, concurring.

I join the opinion of the Court but emphasize the limits of today’s holding. It is important to note [] that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population. Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate. In some cases, the charges are dropped. In others, arrestees are released either on their own recognizance or on minimal bail. In the end, few are sentenced to incarceration. For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible. For example, the Federal Bureau of Prisons (BOP) and possibly even some local jails appear to segregate temporary detainees who are minor offenders from the general population.

The Court does not address whether it is always reasonable, without regard to the offense or the reason for detention, to strip search an arrestee before the arrestee’s detention has been reviewed by a judicial officer. The lead opinion explicitly reserves judgment on that question. In light of that limitation, I join the opinion of the Court in full.

Justice BREYER, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN join, dissenting.

The petition for certiorari asks us to decide “[w]hether the Fourth Amendment permits a … suspicionless strip search of every individual arrested for any minor offense….” This question is phrased more broadly than what is at issue. The case is limited to strip searches of those arrestees entering a jail’s general population. And the kind of strip search in question involves more than undressing and taking a shower (even if guards monitor the shower area for threatened disorder). Rather, the searches here involve close observation of the private areas of a person’s body and for that reason constitute a far more serious invasion of that person’s privacy.

In my view, such a search of an individual arrested for a minor offense that does not involve drugs or violence—say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor—is an “unreasonable searc[h]” forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband. And I dissent from the Court’s contrary determination.

A strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person’s body, is a serious invasion of privacy. Even when carried out in a respectful manner, and even absent any physical touching, such searches are inherently harmful, humiliating, and degrading. And the harm to privacy interests would seem particularly acute where the person searched may well have no expectation of being subject to such a search, say, because she had simply received a traffic ticket for failing to buckle a seatbelt, because he had not previously paid a civil fine, or because she had been arrested for a minor trespass.

I doubt that we seriously disagree about the nature of the strip search or about the serious affront to human dignity and to individual privacy that it presents. The basic question before us is whether such a search is nonetheless justified when an individual arrested for a minor offense is involuntarily placed in the general jail or prison population.

The majority, like the respondents, argues that strip searches are needed (1) to detect injuries or diseases, such as lice, that might spread in confinement, (2) to identify gang tattoos, which might reflect a need for special housing to avoid violence, and (3) to detect contraband, including drugs, guns, knives, and even pens or chewing gum, which might prove harmful or dangerous in prison.

Nonetheless, the “particular” invasion of interests must be “‘reasonably related’” to the justifying “penological interest” and the need must not be “‘exaggerated.’” It is at this point that I must part company with the majority. I have found no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses are necessary in order to further the penal interests mentioned. And there are strong reasons to believe they are not justified.

The lack of justification is fairly obvious with respect to the first two penological interests advanced. The searches already employed at Essex and Burlington include: (a) pat-frisking all inmates; (b) making inmates go through metal detectors (including the Body Orifice Screening System (BOSS) chair used at Essex County Correctional Facility that identifies metal hidden within the body); (c) making inmates shower and use particular delousing agents or bathing supplies; and (d) searching inmates’ clothing. In addition, petitioner concedes that detainees could be lawfully subject to being viewed in their undergarments by jail officers or during showering (for security purposes). No one here has offered any reason, example, or empirical evidence suggesting the inadequacy of such practices for detecting injuries, diseases, or tattoos. In particular, there is no connection between the genital lift and the “squat and cough” that Florence was allegedly subjected to and health or gang concerns.

The lack of justification for such a strip search is less obvious but no less real in respect to the third interest, namely that of detecting contraband. The information demonstrating the lack of justification is of three kinds. First, there are empirically based conclusions reached in specific cases. The New York Federal District Court [] conducted a study of 23,000 persons admitted to the Orange County correctional facility between 1999 and 2003. These 23,000 persons underwent a strip search of the kind described. Of these 23,000 persons, the court wrote, “the County encountered three incidents of drugs recovered from an inmate’s anal cavity and two incidents of drugs falling from an inmate’s underwear during the course of a strip search.” The court added that in four of these five instances there may have been “reasonable suspicion” to search, leaving only one instance in 23,000 in which the strip search policy “arguably” detected additional contraband.

Second, there is the plethora of recommendations of professional bodies, such as correctional associations, that have studied and thoughtfully considered the matter. The American Correctional Association (ACA)—an association that informs our view of “what is obtainable and what is acceptable in corrections philosophy”—has promulgated a standard that forbids suspicionless strip searches. And it has done so after consultation with the American Jail Association, National Sheriff’s Association, National Institute of Corrections of the Department of Justice, and Federal Bureau of Prisons. Moreover, many correctional facilities apply a reasonable suspicion standard before strip searching inmates entering the general jail population, including the U.S. Marshals Service, the Immigration and Customs Service, and the Bureau of Indian Affairs.

Third, there is general experience in areas where the law has forbidden here-relevant suspicionless searches. Laws in at least 10 States prohibit suspicionless strip searches. At the same time at least seven Courts of Appeals have considered the question and have required reasonable suspicion that an arrestee is concealing weapons or contraband before a strip search of one arrested for a minor offense can take place. Respondents have not presented convincing grounds to believe that administration of these legal standards has increased the smuggling of contraband into prison. The majority is left with the word of prison officials in support of its contrary proposition. And though that word is important, it cannot be sufficient.

For the reasons set forth, I cannot find justification for the strip search policy at issue here—a policy that would subject those arrested for minor offenses to serious invasions of their personal privacy. I consequently dissent.

Notes, Comments, and Questions

The Court in Florence did not conclude that the challenged jail policy was in keeping with best correctional practices. Indeed, organizations of officials who run jails and prisons recommend against the kind of strip searches at issue in the case, and the Court was fully aware of this opposition. Why then did the Court find against Florence?

The dissenting Justices mention the Body Orifice Screening System (BOSS) chair, which allows jail officials to search inmates for hidden contraband without the sort of invasive physical contact complained of by Florence. More information about these scanners is available at the XECU Corporation website: bodyorificescanner.com.

Compare how the Court treats searches in jail with those of public school students. Unsurprisingly, the Court is more receptive to privacy claims from school children than from jail inmates. Yet in both contexts, the Court tends to defer to public officials.

Warrant Exception: Searches of Probationers and Parolees

Although persons on probation and parole are not subjected to the sort of control and scrutiny experienced by jail and prison inmates, probationers and parolees must submit to searches that would be “unreasonable” if required of other persons.

Because probationers and parolees by definition have been convicted of crimes, they are often known to police and may be suspected of ongoing criminal activity. In United States v. Knights, 534 U.S. 112 (2001), the Court considered the search of a probationer’s house. When Mark Knights was convicted of a drug crime, his probation order included what is sometimes described as a “search condition.” The order stated that he would: “[s]ubmit his … person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.”

Soon afterward, police investigating a series of arsons suspected Knights and a partner of involvement in the crimes, and an officer searched Knights’s apartment. Evidence found during the search would have helped prosecutors convict him of federal crimes, and he challenged the searches as unreasonable under the Fourth Amendment. The trial court suppressed the evidence “on the ground that the search was for ‘investigatory’ rather than ‘probationary’ purposes,” and the Ninth Circuit affirmed. The Supreme Court reversed, holding that the searches were reasonable. The Court noted that “nothing in the condition of probation suggests that it was confined to searches bearing upon probationary status and nothing more.”

Previously, in Griffin v. Wisconsin, 483 U.S. 868 (1987), the Court had upheld the search of a probationer under a state law allowing “any probation officer to search a probationer’s home without a warrant as long as his supervisor approves and as long as there are ‘reasonable grounds’ to believe the presence of contraband.” Knights argued that searches of probationers are allowed only if, as in Griffin, they are “special needs” searches conducted to verify whether the probationer is obeying conditions of probation, such as abstaining from drug use. The Knights Court disagreed, holding that the search condition reduced Knights’s reasonable expectation of privacy. That reduction, combined with the reasonable suspicion police had of his involvement in the arsons under investigation, justified the search of his residence. The Court explicitly declined to decide whether his acceptance of the search condition was a form of “consent” that would have made the search lawful under the holdings of Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (Chapter 11), and similar cases.

Then, in Samson v. California, 547 U.S. 843 (2006), the Court approved the suspicionless search of a parolee on the street. The case concerned a “California law provid[ing] that every prisoner eligible for release on state parole ‘shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.’” Upon seeing Donald Samson on the street, an officer searched him “based solely on petitioner’s status as a parolee,” and the search revealed methamphetamine. Samson challenged the search as unreasonable, and the Court disagreed. Relying on Knights, the Court again declined to consider whether the “consent” exception to the warrant requirement applied. The Court held instead that the search of parolees is reasonable because (1) awareness of the state law authorizing such searches lowers a parolee’s reasonable expectation of privacy, and (2) the state has substantial interest in monitoring convicted criminals released on parole because they “are more likely to commit future criminal offenses” than the general population.

In a dissent joined by Justices Souter and Breyer, Justice Stevens argued that “neither Knights nor Griffin supports a regime of suspicionless searches, conducted pursuant to a blanket grant of discretion untethered by any procedural safeguards, by law enforcement personnel who have no special interest in the welfare of the parolee or probationer.”

Although the Court has not formally relied upon the “consent” exception when approving searches of probationers (with reasonable suspicion) and parolees (with no individualized suspicion at all), it is hard to ignore the Court’s reliance on the searched person’s knowledge of and acceptance of the search conditions. Probation and parole are alternatives to imprisonment, and convicted defendants generally prefer probation to incarceration, just as inmates generally prefer parole to continued confinement. The Court’s opinions in Knights and Samson seem based, in part, on the idea that someone who is unhappy with the state’s parole or probation system can choose not to participate. The dissenters in Samson attacked this theory and rejected the state’s argument that participation is a form of consent. They wrote that a convict “has no ‘choice’ concerning the search condition” and argued that equating acquiescence with consent “is sophistry.”

For a handful of lower court cases examining searches of parolees and probationers, see: [casetext.com].

Note that there is a circuit split about whether an officer may (consistent with the Fourth Amendment) search a probationer’s home without a warrant even without a search condition. See [UChicago].

Warrant Exception: Inventory Searches

When police impound an illegally parked car, they may tow it to a government parking lot. Similarly, police may tow the car of a driver who is arrested for a traffic violation. These are just two of the many ways in which government agents can lawfully take possession of property. Another common scenario arises when police store the effects of a person who is jailed, keeping them until the person is released. The Court has held that government officials may search property that comes into their possession in circumstances such as these, as long as they follow proper procedures.

Supreme Court of the United States

South Dakota v. Donald Opperman

Decided July 6, 1976 – 428 U.S. 364

Mr. Chief Justice BURGER delivered the opinion of the Court.

We review the judgment of the Supreme Court of South Dakota, holding that local police violated the Fourth Amendment to the Federal Constitution, as applicable to the States under the Fourteenth Amendment, when they conducted a routine inventory search of an automobile lawfully impounded by police for violations of municipal parking ordinances.

(1)

Local ordinances prohibit parking in certain areas of downtown Vermillion, S.D., between the hours of 2 a.m. and 6 a.m. During the early morning hours of December 10, 1973, a Vermillion police officer observed respondent’s unoccupied vehicle illegally parked in the restricted zone. At approximately 3 a.m., the officer issued an overtime parking ticket and placed it on the car’s windshield. The citation warned: “Vehicles in violation of any parking ordinance may be towed from the area.”

At approximately 10 o’clock on the same morning, another officer issued a second ticket for an overtime parking violation. These circumstances were routinely reported to police headquarters, and after the vehicle was inspected, the car was towed to the city impound lot.

From outside the car at the impound lot, a police officer observed a watch on the dashboard and other items of personal property located on the back seat and back floorboard. At the officer’s direction, the car door was then unlocked and, using a standard inventory form pursuant to standard police procedures, the officer inventoried the contents of the car, including the contents of the glove compartment which was unlocked. There he found marihuana contained in a plastic bag. All items, including the contraband, were removed to the police department for safekeeping. During the late afternoon of December 10, respondent appeared at the police department to claim his property. The marihuana was retained by police.

Respondent was subsequently arrested on charges of possession of marihuana. His motion to suppress the evidence yielded by the inventory search was denied; he was convicted after a jury trial and sentenced to a fine of $100 and 14 days’ incarceration in the county jail. On appeal, the Supreme Court of South Dakota reversed the conviction. We granted certiorari and we reverse.

(2)

This Court has traditionally drawn a distinction between automobiles and homes or offices in relation to the Fourth Amendment. Although automobiles are “effects” and thus within the reach of the Fourth Amendment, warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not.

[T]he expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office. In discharging their varied responsibilities for ensuring the public safety, law enforcement officials are necessarily brought into frequent contact with automobiles. Most of this contact is distinctly noncriminal in nature. Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.

In the interests of public safety and as part of what the Court has called “community caretaking functions,” automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.

When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger. The practice has been viewed as essential to respond to incidents of theft or vandalism. In addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned.

(3)

In applying the reasonableness standard adopted by the Framers, this Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents. [Our prior holdings] point the way to the correct resolution of this case.

The Vermillion police were indisputably engaged in a caretaking search of a lawfully impounded automobile. The inventory was conducted only after the car had been impounded for multiple parking violations. The owner, having left his car illegally parked for an extended period, and thus subject to impoundment, was not present to make other arrangements for the safekeeping of his belongings. The inventory itself was prompted by the presence in plain view of a number of valuables inside the car. [T]here is no suggestion [] that this standard procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive.

On this record we conclude that in following standard police procedures, prevailing throughout the country and approved by the overwhelming majority of courts, the conduct of the police was not “unreasonable” under the Fourth Amendment.

The judgment of the South Dakota Supreme Court is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Notes, Comments, and Questions

In Illinois v. Lafayette, 462 U.S. 640 (1983), the Court applied Opperman to a police search of the “purse-type shoulder bag” of “an arrested person [who] arrive[d] at a police station.” Because the search could not be deemed “incident” to the arrest, the Court considered “whether, consistent with the Fourth Amendment, it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police stationhouse incident to booking and jailing the suspect.” The Court found the question fairly straightforward and resolved it as follows:

“At the stationhouse, it is entirely proper for police to remove and list or inventory property found on the person or in the possession of an arrested person who is to be jailed. A range of governmental interests support an inventory process. It is not unheard of for persons employed in police activities to steal property taken from arrested persons; similarly, arrested persons have been known to make false claims regarding what was taken from their possession at the stationhouse. A standardized procedure for making a list or inventory as soon as reasonable after reaching the stationhouse not only deters false claims but also inhibits theft or careless handling of articles taken from the arrested person. Arrested persons have also been known to injure themselves—or others—with belts, knives, drugs or other items on their person while being detained. Dangerous instrumentalities—such as razor blades, bombs, or weapons—can be concealed in innocent-looking articles taken from the arrestee’s possession. The bare recital of these mundane realities justifies reasonable measures by police to limit these risks—either while the items are in police possession or at the time they are returned to the arrestee upon his release.”

Because the Court found such searches to be reasonable regardless of whether officials feared any particular bag possessed by an arrestee, the Court held that neither probable cause or any other form of individualized suspicion was needed for inventory searches of an arrestee’s belongings prior to incarceration, “in accordance with established inventory procedures.”

By contrast, in Florida v. Wells, 495 U.S. 1 (1990), the Court found that because the highway patrol lacked “standardized criteria” or an “established routine” with respect to opening closed containers while inventorying a car, officers violated the Fourth Amendment when opening a locked suitcase found in the trunk of an impounded car. The Court said such criteria were needed because of “the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.” In sum, departments have wide latitude to set inventory policies and to search cars, bags, and other items pursuant to such policies. But without a preexisting policy, searches lose the presumption of reasonableness.

A former student of your authors once told a story about Gant drawn from the student’s experience as a police officer.² He began by describing how police reacted to the Court’s decision in Gant.

“Post-Gant, law enforcement agencies scurried to train officers on search of automobiles incident to lawful arrest. A tool once frequently and heavily relied on, [SILA] was no longer an option for officers looking to get into vehicles without the availability of the automobile exception outlined in Carroll. This was particularly frustrating on pretext stops where officers would arrest local drug dealers and criminals for driver’s license violations or other mundane crimes to get into vehicles where evidence of the more serious, and sometimes violent, crimes were concealed.”

Police adjusted their tactics: “The response was shoring up vehicle tow, impound, and inventory policies.” In other words, because police could not search nearly as many cars incident to arrest, police increased the number of cars they decided to tow after arrests.

Here is where the story gets exciting: “In 2010, Officers … stopped a vehicle after complaints of careless and imprudent driving. The driver, 20, did not have a driver’s license. Officer attempts to contact the vehicle owner to remove it from the side of the road were unsuccessful. Pursuant to department policy, officers contacted a tow truck and conducted an inventory search where they located the owner of the vehicle, mother of the driver, dead in the trunk.”

As the student summed up, “Sometimes there IS a body in the trunk.”

Warrant Exception: Administrative Searches

Our next warrant exception concerns “administrative searches,” which involve government functions largely (if not entirely) unknown when the Fourth Amendment was ratified. For example, fire code and housing code inspections are important to the safety of densely populated cities. On the other hand, some might question whether inspectors should be allowed to search their homes without a warrant, perhaps even without probable cause.

Supreme Court of the United States

Roland Camara v. Municipal Court of the City and County of San Francisco

Decided June 5, 1967 – 387 U.S. 523

Mr. Justice WHITE delivered the opinion of the Court.

Appellant brought this action in a California Superior Court alleging that he was awaiting trial on a criminal charge of violating the San Francisco Housing Code by refusing to permit a warrantless inspection of his residence, and that a writ of prohibition should issue to the criminal court because the ordinance authorizing such inspections is unconstitutional on its face. The Superior Court denied the writ, the District Court of Appeal affirmed, and the Supreme Court of California denied a petition for hearing. Appellant properly raised and had considered by the California courts the federal constitutional questions he now presents to this Court.

Though there were no judicial findings of fact in this prohibition proceeding, we shall set forth the parties’ factual allegations. On November 6, 1963, an inspector of the Division of Housing Inspection of the San Francisco Department of Public Health entered an apartment building to make a routine annual inspection for possible violations of the city’s Housing Code. The building’s manager informed the inspector that appellant, lessee of the ground floor, was using the rear of his leasehold as a personal residence. Claiming that the building’s occupancy permit did not allow residential use of the ground floor, the inspector confronted appellant and demanded that he permit an inspection of the premises. Appellant refused to allow the inspection because the inspector lacked a search warrant.

The inspector returned on November 8, again without a warrant, and appellant again refused to allow an inspection. A citation was then mailed ordering appellant to appear at the district attorney’s office. When appellant failed to appear, two inspectors returned to his apartment on November 22. They informed appellant that he was required by law to permit an inspection under § 503 of the Housing Code.

Appellant nevertheless refused the inspectors access to his apartment without a search warrant. Thereafter, a complaint was filed charging him with refusing to permit a lawful inspection in violation of § 507 of the Code. Appellant was arrested on December 2 and released on bail. When his demurrer to the criminal complaint was denied, appellant filed this petition for a writ of prohibition.

Appellant has argued throughout this litigation that § 503 is contrary to the Fourth and Fourteenth Amendments in that it authorizes municipal officials to enter a private dwelling without a search warrant and without probable cause to believe that a violation of the Housing Code exists therein. Consequently, appellant contends, he may not be prosecuted under § 507 for refusing to permit an inspection unconstitutionally authorized by § 503. [T]he District Court of Appeal held that § 503 does not violate Fourth Amendment rights because it “is part of a regulatory scheme which is essentially civil rather than criminal in nature, inasmuch as that section creates a right of inspection which is limited in scope and may not be exercised under unreasonable conditions.” [W]e reverse.

I

Though there has been general agreement as to the fundamental purpose of the Fourth Amendment, translation of the abstract prohibition against “unreasonable searches and seizures” into workable guidelines for the decision of particular cases is a difficult task which has for many years divided the members of this Court. Nevertheless, one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is “unreasonable” unless it has been authorized by a valid search warrant.

In Frank v. State of Maryland, [359 U.S. 360 (1959),] this Court upheld the conviction of one who refused to permit a warrantless inspection of private premises for the purposes of locating and abating a suspected public nuisance. Although Frank can arguably be distinguished from this case on its facts, the Frank opinion has generally been interpreted as carving out an additional exception to the rule that warrantless searches are unreasonable under the Fourth Amendment. The District Court of Appeal so interpreted Frank in this case, and that ruling is the core of appellant’s challenge here. We proceed to a re-examination of the factors which persuaded the Frank majority to adopt this construction of the Fourth Amendment’s prohibition against unreasonable searches.

We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman’s search for the fruits and instrumentalities of crime. For this reason alone, Frank differed from the great bulk of Fourth Amendment cases which have been considered by this Court. But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely “peripheral.” It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior. [A]s this case demonstrates, refusal to permit an inspection is itself a crime, punishable by fine or even by jail sentence.

[W]e hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. State of Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment’s protections. Because of the nature of the municipal programs under consideration, however, these conclusions must be the beginning, not the end, of our inquiry. The Frank majority gave recognition to the unique character of these inspection programs by refusing to require search warrants; to reject that disposition does not justify ignoring the question whether some other accommodation between public need and individual rights is essential.

II

The Fourth Amendment provides that, “no Warrants shall issue, but upon probable cause.” Borrowing from more typical Fourth Amendment cases, appellant argues not only that code enforcement inspection programs must be circumscribed by a warrant procedure, but also that warrants should issue only when the inspector possesses probable cause to believe that a particular dwelling contains violations of the minimum standards prescribed by the code being enforced. We disagree.

In cases in which the Fourth Amendment requires that a warrant to search be obtained, “probable cause” is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. Unlike the search pursuant to a criminal investigation, the inspection programs at issue here are aimed at securing city-wide compliance with minimum physical standards for private property. The primary governmental interest at stake is to prevent even the unintentional development of conditions which are hazardous to public health and safety. In determining whether a particular inspection is reasonable—and thus in determining whether there is probable cause to issue a warrant for that inspection—the need for the inspection must be weighed in terms of these reasonable goals of code enforcement.

There is unanimous agreement among those most familiar with this field that the only effective way to seek universal compliance with the minimum standards required by municipal codes is through routine periodic inspections of all structures. It is here that the probable cause debate is focused, for the agency’s decision to conduct an area inspection is unavoidably based on its appraisal of conditions in the area as a whole, not on its knowledge of conditions in each particular building.

“Where considerations of health and safety are involved, the facts that would justify an inference of ‘probable cause’ to make an inspection are clearly different from those that would justify such an inference where a criminal investigation has been undertaken. Experience may show the need for periodic inspections of certain facilities without a further showing of cause to believe that substandard conditions dangerous to the public are being maintained. The passage of a certain period without inspection might of itself be sufficient in a given situation to justify the issuance of warrant. The test of ‘probable cause’ required by the Fourth Amendment can take into account the nature of the search that is being sought.”

III

Since our holding emphasizes the controlling standard of reasonableness, nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations.

IV

In this case, appellant has been charged with a crime for his refusal to permit housing inspectors to enter his leasehold without a warrant. There was no emergency demanding immediate access; in fact, the inspectors made three trips to the building in an attempt to obtain appellant’s consent to search. Yet no warrant was obtained and thus appellant was unable to verify either the need for or the appropriate limits of the inspection. Assuming the facts to be as the parties have alleged, we therefore conclude that appellant had a constitutional right to insist that the inspectors obtain a warrant to search and that appellant may not constitutionally be convicted for refusing to consent to the inspection. It appears from the opinion of the District Court of Appeal that under these circumstances a writ of prohibition will issue to the criminal court under California law.

The judgment is vacated and the case is remanded for further proceedings not inconsistent with this opinion.

Notes, Comments, and Questions

What are the differences between the general warrant proposed in Camera and the disfavored general warrant? What other types of searches might fall under the “inspection” umbrella?

Consider a city zoning law that restricts who may live in a certain residence on the basis of family status. For example, the city code might state that no more than three unrelated persons may live in a house zoned for “single-family” occupancy.³ In such a house, an adult could live with her four children, but four unrelated roommates could not share the house (even though the four roomates would constitute one fewer total person than the alternative group of occupants). In a neighborhood near a university campus, students might occasionally rent houses (with two or three names on a lease) and use them in a way that violates the code (for example, six students living together). If a neighborhood busybody—concerned with a perceived threat to property values or simply interested in policing how neighbors behave—calls city officials with vague reports of overoccupancy, may a judge issue a warrant allowing city officials to inspect every house in the neighborhood to see who lives there and whether they are related to one another? May such warrants issue every year—allowing searches of houses in “single-family” neighborhoods near campus—even if no one complains?

In See v. City of Seattle, 387 U.S. 541 (1967), decided the same day as Camara, the Court held that the rule of Camara applied to commercial warehouses. “As we explained in Camara, a search of private houses is presumptively unreasonable if conducted without a warrant. The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property.”

Two decades later, however, the Court was less protective of a business owner’s right to avoid warrantless administrative searches. In New York v. Burger, 482 U.S. 691 (1987), the Court considered a different kind of business premises—a junkyard. After stating (somewhat implausibly) that the junkyard was a “closely regulated industry,” the Court held that proprietors of such businesses have lowered expectations of privacy. That finding, combined with the state interest in supervising such industries (in this case, to combat car theft by preventing stolen parts from being bought and sold at junkyards), made the warrantless search reasonable. Students should note that the Burger Court went even further than the Court’s decision in Camara. In Camara, the Court required inspectors to obtain a warrant, which if suspiciously similar to the detested “general warrants” of old was at least issued by a judge. In Burger, the Court held that New York’s statute allowing for the inspection of junkyards was a “constitutionally adequate substitute for a warrant.”

In a dissent joined in full by Justice Marshall and in part by Justice O’Connor, Justice Brennan argued that “Burger’s vehicle-dismantling business is not closely regulated (unless most New York City businesses are).” Objecting to the Court’s acceptance of the New York statute in lieu of a warrant, he argued that “the Court also perceives careful guidance and control of police discretion in a statute that is patently insufficient to eliminate the need for a warrant.” Accordingly, he concluded that the decision “renders virtually meaningless the general rule that a warrant is required for administrative searches of commercial property.”

The Court revisited administrative searches in City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015), deciding by a 5-4 vote that certain regulations of Los Angeles hotels violated the Fourth Amendment. In particular, the city required “hotel operators to record and keep specific information about their guests on the premises for a 90-day period” and to make the records “available to any officer of the Los Angeles Police Department for inspection … at a time and in a manner that minimizes any interference with the operation of the business.” Refusal to make the records available was a crime. Hotel operators brought a facial challenge to the regulation and prevailed.

The majority noted that it did not strike down the provisions of the regulation requiring that the records be kept, nor did it prevent officers from viewing the records by consent or by obtaining a proper administrative warrant (or with some other exception to the warrant requirement). Instead, the Court struck down only the provision forcing hotel owners to show the records on demand to any officer without a warrant, on pain of criminal prosecution—without even the opportunity for a precompliance judicial review. The Court rejected the city’s argument that the regulation was valid under prior precedents related to “closely regulated industries.” Perhaps retreating a bit from the broad definition of such industries in Burger, the Patel Court stated, “Over the past 45 years, the Court has identified only four industries that ‘have such a history of government oversight that no reasonable expectation of privacy … could exist for a proprietor over the stock of such an enterprise.’” Those industries are “liquor sales,” “firearms dealing,” “mining,” and—of course—“running an automobile junkyard.”

In a dissent joined by Chief Justice Roberts and Justice Thomas, Justice Scalia wrote: “[T]he Court today concludes that Los Angeles’s ordinance is ‘unreasonable’ inasmuch as it permits police to flip through a guest register to ensure it is being filled out without first providing an opportunity for the motel operator to seek judicial review. Because I believe that such a limited inspection of a guest register is eminently reasonable under the circumstances presented, I dissent.” He noted “that the motel operators who conspire with drug dealers and procurers may demand precompliance judicial review simply as a pretext to buy time for making fraudulent entries in their guest registers.”

Justice Alito dissented as well, joined by Justice Thomas. Objecting in particular to the Court’s finding that the regulation was facially invalid—as opposed to invalid in limited cases—he presented five examples of circumstances in which he believed it would be reasonable for the city to enforce the law as written. Here is one:

“Example Two. A murderer has kidnapped a woman with the intent to rape and kill her and there is reason to believe he is holed up in a certain motel. The Fourth Amendment’s reasonableness standard accounts for exigent circumstances. When the police arrive, the motel operator folds her arms and says the register is locked in a safe. Invoking [the challenged regulation], the police order the operator to turn over the register. She refuses. The Fourth Amendment does not protect her from arrest.”

* * *

DNA Tests of Arrestees

We conclude with a case challenging a Maryland policy under which police collected DNA from arrestees as part of “routine booking procedure.”

Supreme Court of the United States

Maryland v. Alonzo Jay King

Decided June 3, 2013 – 569 U.S. 435

Justice KENNEDY delivered the opinion of the Court.

In 2003 a man concealing his face and armed with a gun broke into a woman’s home in Salisbury, Maryland. He raped her. The police were unable to identify or apprehend the assailant based on any detailed description or other evidence they then had, but they did obtain from the victim a sample of the perpetrator’s DNA.

In 2009 Alonzo King was arrested in Wicomico County, Maryland, and charged with first- and second-degree assault for menacing a group of people with a shotgun. As part of a routine booking procedure for serious offenses, his DNA sample was taken by applying a cotton swab or filter paper—known as a buccal swab—to the inside of his cheeks. The DNA was found to match the DNA taken from the Salisbury rape victim. King was tried and convicted for the rape. Additional DNA samples were taken from him and used in the rape trial, but there seems to be no doubt that it was the DNA from the cheek sample taken at the time he was booked in 2009 that led to his first having been linked to the rape and charged with its commission.

On July 13, 2009, King’s DNA record was uploaded to the Maryland DNA database, and three weeks later, on August 4, 2009, his DNA profile was matched to the DNA sample collected in the unsolved 2003 rape case. Once the DNA was matched to King, detectives presented the forensic evidence to a grand jury, which indicted him for the rape. Detectives obtained a search warrant and took a second sample of DNA from King, which again matched the evidence from the rape. He moved to suppress the DNA match on the grounds that Maryland’s DNA collection law violated the Fourth Amendment. The Circuit Court Judge upheld the statute as constitutional. King pleaded not guilty to the rape charges but was convicted and sentenced to life in prison without the possibility of parole. The Court of Appeals of Maryland, on review of King’s rape conviction, ruled that the DNA taken when King was booked for the 2009 charge was an unlawful seizure because obtaining and using the cheek swab was an unreasonable search of the person. It set the rape conviction aside. This Court granted certiorari and now reverses the judgment of the Maryland court.

II

A

The Act authorizes Maryland law enforcement authorities to collect DNA samples from “an individual who is charged with … a crime of violence or an attempt to commit a crime of violence; or … burglary or an attempt to commit burglary.” Maryland law defines a crime of violence to include murder, rape, first-degree assault, kidnaping, arson, sexual assault, and a variety of other serious crimes. Once taken, a DNA sample may not be processed or placed in a database before the individual is arraigned (unless the individual consents). It is at this point that a judicial officer ensures that there is probable cause to detain the arrestee on a qualifying serious offense. If “all qualifying criminal charges are determined to be unsupported by probable cause … the DNA sample shall be immediately destroyed.” DNA samples are also destroyed if “a criminal action begun against the individual … does not result in a conviction,” “the conviction is finally reversed or vacated and no new trial is permitted,” or “the individual is granted an unconditional pardon.”

The Act also limits the information added to a DNA database and how it may be used. Specifically, “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” No purpose other than identification is permissible: “A person may not willfully test a DNA sample for information that does not relate to the identification of individuals as specified in this subtitle.” Tests for familial matches are also prohibited. The officers involved in taking and analyzing respondent’s DNA sample complied with the Act in all respects.

Respondent’s DNA was collected in this case using a common procedure known as a “buccal swab.” “Buccal cell collection involves wiping a small piece of filter paper or a cotton swab similar to a Q-tip against the inside cheek of an individual’s mouth to collect some skin cells.” The procedure is quick and painless. The swab touches inside an arrestee’s mouth, but it requires no “surgical intrusio[n] beneath the skin,” and it poses no “threa[t] to the health or safety” of arrestees.

B

Respondent’s identification as the rapist resulted in part through the operation of a national project to standardize collection and storage of DNA profiles. Authorized by Congress and supervised by the Federal Bureau of Investigation, the Combined DNA Index System (CODIS) connects DNA laboratories at the local, state, and national level. All 50 States require the collection of DNA from felony convicts, and respondent does not dispute the validity of that practice. Twenty-eight States and the Federal Government have adopted laws similar to the Maryland Act authorizing the collection of DNA from some or all arrestees. At issue is a standard, expanding technology already in widespread use throughout the Nation.

III

It can be agreed that using a buccal swab on the inner tissues of a person’s cheek in order to obtain DNA samples is a search. Virtually any “intrusio[n] into the human body” will work an invasion of “‘cherished personal security’ that is subject to constitutional scrutiny.” 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.

To say that the Fourth Amendment applies here is the beginning point, not the end of the analysis. “[T]he Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” “As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’” In giving content to the inquiry whether an intrusion is reasonable, the Court has preferred “some quantum of individualized suspicion … [as] a prerequisite to a constitutional search or seizure. But the Fourth Amendment imposes no irreducible requirement of such suspicion.”

The Maryland DNA Collection Act provides that, in order to obtain a DNA sample, all arrestees charged with serious crimes must furnish the sample on a buccal swab applied, as noted, to the inside of the cheeks. The arrestee is already in valid police custody for a serious offense supported by probable cause. The DNA collection is not subject to the judgment of officers whose perspective might be “colored by their primary involvement in ‘the often competitive enterprise of ferreting out crime.’” “[T]here are virtually no facts for a neutral magistrate to evaluate.” Here, the search effected by the buccal swab of respondent falls within the category of cases this Court has analyzed by reference to the proposition that the “touchstone of the Fourth Amendment is reasonableness, not individualized suspicion.”

Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution. Urgent government interests are not a license for indiscriminate police behavior. To say that no warrant is required is merely to acknowledge that “rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.” This application of “traditional standards of reasonableness” requires a court to weigh “the promotion of legitimate governmental interests” against “the degree to which [the search] intrudes upon an individual’s privacy.” An assessment of reasonableness to determine the lawfulness of requiring this class of arrestees to provide a DNA sample is central to the instant case.

IV

A

The legitimate government interest served by the Maryland DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody. It is beyond dispute that “probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.” Also uncontested is the “right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested.” When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests.

First, “[i]n every criminal case, it is known and must be known who has been arrested and who is being tried.” An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment. Identity has never been considered limited to the name on the arrestee’s birth certificate. An “arrestee may be carrying a false ID or lie about his identity,” and “criminal history records … can be inaccurate or incomplete.”

A suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention. Police already seek this crucial identifying information. They use routine and accepted means as varied as comparing the suspect’s booking photograph to sketch artists’ depictions of persons of interest, showing his mugshot to potential witnesses, and of course making a computerized comparison of the arrestee’s fingerprints against electronic databases of known criminals and unsolved crimes. In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides.

The task of identification necessarily entails searching public and police records based on the identifying information provided by the arrestee to see what is already known about him. A DNA profile is useful to the police because it gives them a form of identification to search the records already in their valid possession. In this respect the use of DNA for identification is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene. Finding occurrences of the arrestee’s CODIS profile in outstanding cases is consistent with this common practice. It uses a different form of identification than a name or fingerprint, but its function is the same.

Second, law enforcement officers bear a responsibility for ensuring that the custody of an arrestee does not create inordinate “risks for facility staff, for the existing detainee population, and for a new detainee.” DNA identification can provide untainted information to those charged with detaining suspects and detaining the property of any felon. For these purposes officers must know the type of person whom they are detaining, and DNA allows them to make critical choices about how to proceed.

Third, looking forward to future stages of criminal prosecution, “the Government has a substantial interest in ensuring that persons accused of crimes are available for trials.” Fourth, an arrestee’s past conduct is essential to an assessment of the danger he poses to the public, and this will inform a court’s determination whether the individual should be released on bail. Knowing that the defendant is wanted for a previous violent crime based on DNA identification is especially probative of the court’s consideration of “the danger of the defendant to the alleged victim, another person, or the community.”

Present capabilities make it possible to complete a DNA identification that provides information essential to determining whether a detained suspect can be released pending trial. The facts of this case are illustrative. Though the record is not clear, if some thought were being given to releasing the respondent on bail on the gun charge, a release that would take weeks or months in any event, when the DNA report linked him to the prior rape, it would be relevant to the conditions of his release. The same would be true with a supplemental fingerprint report.

Finally, in the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense. “[P]rompt [DNA] testing … would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of … innocent people.”

Because proper processing of arrestees is so important and has consequences for every stage of the criminal process, the Court has recognized that the “governmental interests underlying a station-house search of the arrestee’s person and possessions may in some circumstances be even greater than those supporting a search immediately following arrest.”

B

DNA identification represents an important advance in the techniques used by law enforcement to serve legitimate police concerns for as long as there have been arrests. Law enforcement agencies routinely have used scientific advancements in their standard procedures for the identification of arrestees. “Police had been using photography to capture the faces of criminals almost since its invention.” By the time that it had become “the daily practice of the police officers and detectives of crime to use photographic pictures for the discovery and identification of criminals,” the courts likewise had come to the conclusion that “it would be [a] matter of regret to have its use unduly restricted upon any fanciful theory or constitutional privilege.”

Beginning in 1887, some police adopted more exacting means to identify arrestees, using the system of precise physical measurements pioneered by the French anthropologist Alphonse Bertillon. Bertillon identification consisted of 10 measurements of the arrestee’s body, along with a “scientific analysis of the features of the face and an exact anatomical localization of the various scars, marks, &c., of the body.” As in the present case, the point of taking this information about each arrestee was not limited to verifying that the proper name was on the indictment. These procedures were used to “facilitate the recapture of escaped prisoners,” to aid “the investigation of their past records and personal history,” and “to preserve the means of identification for … future supervision after discharge.”

Perhaps the most direct historical analogue to the DNA technology used to identify respondent is the familiar practice of fingerprinting arrestees. From the advent of this technique, courts had no trouble determining that fingerprinting was a natural part of “the administrative steps incident to arrest.” By the middle of the 20th century, it was considered “elementary that a person in lawful custody may be required to submit to photographing and fingerprinting as part of routine identification processes.”

DNA identification is an advanced technique superior to fingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to either the forensic expert or a layperson. The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, and DNA is a markedly more accurate form of identifying arrestees. A suspect who has changed his facial features to evade photographic identification or even one who has undertaken the more arduous task of altering his fingerprints cannot escape the revealing power of his DNA.

In sum, there can be little reason to question “the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.” To that end, courts have confirmed that the Fourth Amendment allows police to take certain routine “administrative steps incident to arrest—i.e., … book[ing], photograph[ing], and fingerprint[ing].” DNA identification of arrestees, of the type approved by the Maryland statute here at issue, is “no more than an extension of methods of identification long used in dealing with persons under arrest.” In the balance of reasonableness required by the Fourth Amendment, therefore, the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest.

V

A

By comparison to this substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a minimal one.

The reasonableness of any search must be considered in the context of the person’s legitimate expectations of privacy. The expectations of privacy of an individual taken into police custody “necessarily [are] of a diminished scope.” A search of the detainee’s person when he is booked into custody may “‘involve a relatively extensive exploration,’” including “requir[ing] at least some detainees to lift their genitals or cough in a squatting position.”

In this critical respect, the search here at issue differs from the sort of programmatic searches of either the public at large or a particular class of regulated but otherwise law-abiding citizens that the Court has previously labeled as “‘special needs’” searches. Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial [] his or her expectations of privacy and freedom from police scrutiny are reduced. DNA identification like that at issue here thus does not require consideration of any unique needs that would be required to justify searching the average citizen.

The reasonableness inquiry here considers two other circumstances in which the Court has held that particularized suspicion is not categorically required: “diminished expectations of privacy [and] minimal intrusions.” This is not to suggest that any search is acceptable solely because a person is in custody. Some searches, such as invasive surgery or a search of the arrestee’s home, involve either greater intrusions or higher expectations of privacy than are present in this case. A brief intrusion of an arrestee’s person is subject to the Fourth Amendment, but a swab of this nature does not increase the indignity already attendant to normal incidents of arrest.

B

In addition the processing of respondent’s DNA sample’s 13 CODIS loci did not intrude on respondent’s privacy in a way that would make his DNA identification unconstitutional. In light of the scientific and statutory safeguards, once respondent’s DNA was lawfully collected the STR analysis of respondent’s DNA pursuant to CODIS procedures did not amount to a significant invasion of privacy that would render the DNA identification impermissible under the Fourth Amendment.

In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

The judgment of the Court of Appeals of Maryland is reversed.

Justice SCALIA, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN join, dissenting.

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. [T]he Court elaborates at length the ways that the search here served the special purpose of “identifying” King. But that seems to me quite wrong—unless what one means by “identifying” someone is “searching for evidence that he has committed crimes unrelated to the crime of his arrest.”

[I]f anything was “identified” at the moment that the DNA database returned a match, it was not King—his identity was already known. (The docket for the original criminal charges lists his full name, his race, his sex, his height, his weight, his date of birth, and his address.) Rather, what the August 4 match “identified” was the previously-taken sample from the earlier crime. That sample was genuinely mysterious to Maryland. King was not identified by his association with the sample; rather, the sample was identified by its association with King. The Court effectively destroys its own “identification” theory when it acknowledges that the object of this search was “to see what [was] already known about [King].” No minimally competent speaker of English would say, upon noticing a known arrestee’s similarity “to a wanted poster of a previously unidentified suspect,” that the arrestee had thereby been identified. It was the previously unidentified suspect who had been identified—just as, here, it was the previously unidentified rapist.

That taking DNA samples from arrestees has nothing to do with identifying them is confirmed not just by actual practice (which the Court ignores) but by the enabling statute itself (which the Court also ignores). The Maryland Act at issue has a section helpfully entitled “Purpose of collecting and testing DNA samples.” (One would expect such a section to play a somewhat larger role in the Court’s analysis of the Act’s purpose—which is to say, at least some role.) That provision lists five purposes for which DNA samples may be tested. By this point, it will not surprise the reader to learn that the Court’s imagined purpose is not among them.

So, to review: DNA testing does not even begin until after arraignment and bail decisions are already made. The samples sit in storage for months, and take weeks to test. When they are tested, they are checked against the Unsolved Crimes Collection—rather than the Convict and Arrestee Collection, which could be used to identify them. The Act forbids the Court’s purpose (identification), but prescribes as its purpose what our suspicionless-search cases forbid (“official investigation into a crime”). Against all of that, it is safe to say that if the Court’s identification theory is not wrong, there is no such thing as error.

I therefore dissent, and hope that today’s incursion upon the Fourth Amendment [] will some day be repudiated.

Notes, Comments, and Questions

The dissent points out that the police did not really use the DNA to identify King; they used it to identify the source of sample obtained elsewhere; that is, they used the DNA test of King to match him to the pre-existing sample. In recent years, police have used DNA evidence to create profiles and search for family matches in ancestry DNA databases. What outcome under the Fourth Amendment?

Imagine a small community where two children are murdered. Police believe they have a serial killer and obtain a confession for one of the murders from a local boy with developmental disabilities. DNA evidence proves the two victims had the same killer, but the evidence also exonerates the boy. The police want to obtain DNA samples from every male resident in the small town to find the murderer. What outcome under the Fourth Amendment? What if the police convince the entire male population to consent to giving DNA evidence; one man has a friend give DNA evidence on his behalf. Then later the friend comes forward to confess the subterfuge. Analyze whether the police can require a DNA test from the man who sent the friend in his place. (Note: This question is based on a real case from England, in which Colin Pitchfork was eventually proven to have murdered two victims: Lynda Mann and Dawn Ashworth.)

This marks the end of our review of exceptions to the warrant requirement, as well as of searches more generally. While questions about unlawful searches will arise again during the semester—for example, when we consider what remedies are appropriate for different kinds of constitutional violations—we are now ready to shift our view to seizures and arrests, to which we will devote our next few chapters.

After that, the remainder of the course materials will focus on rights enumerated in the Fifth, Sixth, and Fourteenth Amendments, with the regulation of interrogations receiving particular attention.