determining, in accordance with Chimel, that a limited search to “preserve the highly evanescent evidence” under a detainee’s fingernails to be appropriate, agreeing with the Court “that exigent circumstances existed making it likely that the fingernail scrapings ... might vanish if [the detainee] were free to move about”
How later courts described this case
- determining, in accordance with Chimel, that a limited search to “preserve the highly evanescent evidence” under a detainee’s fingernails to be appropriate, agreeing with the Court “that exigent circumstances existed making it likely that the fingernail scrapings ... might vanish if [the detainee] were free to move about”
- explaining that a search that goes “beyond mere physical 12 characteristics . . . constantly exposed to the public . . . constitute[s] the type of severe, though brief, 13 intrusion upon cherished personal security that is subject to constitutional scrutiny” (internal citation 14 and quotation marks omitted)
- holding that the "ready destructibility of the evidence" and the suspect's observed efforts to destroy it "justified the police in subjecting him to the very limited search," the scraping of his fingernails, which was "necessary to preserve the highly evanescent evidence they found under his fingernails"
- holding that, unlike fingerprints and voice or handwriting exemplars, the warrantless search of the defendant's fingernails went beyond mere physical characteristics constantly exposed to the public and constituted the type of intrusion upon personal security that is subject to constitutional scrutiny
Written by the judges who cited it.
The opinion
*301 Mr. Justice Douglas,
dissenting in part.
I agree with the Court that exigent circumstances existed making it likely that the fingernail scrapings of suspect Murphy might vanish if he were free to move about. The police would therefore have been justified in detaining him while a search warrant was sought from a magistrate. None was sought and the Court now holds there was probable cause to search or arrest, making a warrant unnecessary.
Whether there was or was not probable cause is difficult to determine on this record. It is a question that the Court of Appeals never reached. We should therefore remand to it for a determination of that question.
The question is clouded in my mind because the police did not arrest Murphy until a month later. It is a case not covered by Chimel v. California, 395 U. S. 752 , on which the Court relies, for in Chimel an arrest had been made.
As the Court states, Oregon defines arrest as “the taking of a person into custody so that he may be held to answer for a crime.” Ore. Rev. Stat. § 133.210. No such arrest was made until a month after Murphy’s fingernails were scraped. As we stated in Johnson v. United States, 333 U. S. 10 , 15 n. 5, “State law determines the validity of arrests without warrant.” The case is therefore on all fours with Davis v. Mississippi, 394 U. S. 721 , where a suspect was detained for the sole purpose of obtaining fingerprints but at the time the police were not detaining him to charge him with the crime. Like the seizure in this case, Davis involved an investigative seizure. In Davis , at 727, as in Terry v. Ohio, 392 U. S. 1, 19 , the Court rejected the view that the Fourth Amendment does not limit police conduct “if the officers stop short of something called a 'technical arrest’ or a 'full-blown search.’ ”
*302 The reason why no arrest of Murphy was made on the day his fingernails were scraped creates a nagging doubt that they did not then have probable cause to make an arrest and did not reach that conclusion until a month later. Why was Murphy allowed to roam at will, a free man, for the next month? The evolving pattern of a conspiracy offense might induce the police to turn a suspect loose in order to tail him and see what other suspects could be brought into their net. But no such circumstances were present here.
What the decision made today comes down to, I fear, is that “suspicion” is the basis for a search of the person without a warrant. Yet “probable cause” is the requirement of the Fourth Amendment which is applicable to the States by reason of the Fourteenth Amendment. Mapp v. Ohio, 367 U. S. 643 . Suspicion has never been sufficient for a warrantless search, save for the narrow situation of searches incident to an arrest as was involved in Chimel . That exception is designed (see Schmerber v. California, 384 U. S. 757, 769-770 ) to protect the officer against assaults through weapons within easy reach of the accused or to save evidence within that narrow zone from destruction. However, this is a case where a warrant might have been sought but was not. It is therefore governed by the rule that the rights of a person “against unlawful search and seizure are to be protected even if the same result might have been achieved in a lawful way.” Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392 . No warrant could have been issued by the police, for as we held in Coolidge v. New Hampshire, 403 U. S. 443, 453 , a warrant must be issued by “the neutral and detached magistrate required by the Constitution.” And see Mancusi v. DeForte, 392 U. S. 364, 371 . As stated in Johnson v. United States, 333 U. S., at 14 , “When the right of privacy must reasonably yield to the right of search is, *303 as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.” In that case the officers, smelling opium, asked for entrance, which was given. On entry, discovering that the accused was the sole occupant, the police arrested her. “Thus the Government is obliged to justify the arrest by the search and at the same time to justify the search by the arrest. This will not do.” Id., at 16-17 .
It will not do here either. As Boyd v. United States, 116 U. S. 616 , stated, the Fourth Amendment is closely related to the Self-Incrimination Clause of the Fifth. * A warrantless search on suspicion, today sustained, gives the police evidence otherwise protected by the Self-Incrimination Clause of the Fifth Amendment. It was in that regard that the Court in Boyd said: “[T]he Fourth and Fifth Amendments run almost into each other.” Id., at 630 . And that Court went on to say: “For the ‘unreasonable searches and seizures’ condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man ‘in a criminal case to be a witness against himself,’ which is condemned in the Fifth Amendment, throws light on the question as to what is an ‘unreasonable search and seizure’ within the meaning of the Fourth Amendment. And we have been unable to perceive that the seizure of a man’s private books and papers to be used in evidence against him is substantially different from compelling him to be a *304 witness against himself. We think it is within the clear intent and meaning of those terms.” Id., at 633 .
The same can be said of incriminating evidence found under a suspect’s fingernails. See Rochin v. California, 342 U. S. 165 . Moreover, the Fourth Amendment guarantees the right of the people to be secure “in their persons.” Scraping a man’s fingernails is an invasion of that privacy and it is tolerable, constitutionally speaking, only if there is a warrant for a search or seizure issued by a magistrate on a showing of “probable cause” that the suspect had committed the crime. There was time to get a warrant; Murphy could have been detained while one was sought; and that detention would have preserved the perishable evidence the police sought. A suspect on the loose could get rid of it; but a suspect closely detained until a warrant is obtained plainly could not.
Our approval of the shortcut taken to avoid the Fourth and Fifth Amendments may be typical of this age. Erosions of constitutional guarantees usually start slowly, not in dramatic onsets. As stated in Boyd “illegitimate and unconstitutional practices get their first footing ... by silent approaches and slight deviations from legal modes of procedure.” 116 U. S., at 635 .
The issue of probable cause should be considered by the Court of Appeals. On the record before us and the arguments based on it I cannot say there was “probable cause” for an arrest and for a search, since the arrest came after a month’s delay. The only weight we can put in the scales to turn suspicion into probable cause is Murphy’s conviction by a jury based on the illegally obtained evidence. That is but a simple way of making the end justify the means — a principle wholly at war with our constitutionally enshrined adversary system.
My Brother Marshall says that this privilege is confined to cases where the evidence can be obtained only with the defendant’s cooperation. But that extends even the boundaries set by Schmerber v. California, involving forced giving of blood, 384 U. S. 757, 761 , with which my Brother Marshall disagrees. United States v. Dionisio, 410 U. S. 1 .