Oles v. State

KELLER, J.,

delivered this concurring opinion.

The question here is whether appellant had a reasonable expectation of privacy in his clothing against the type of testing that the police conducted. If he had no reasonable expectation of privacy, then there was no “search" implicating the Fourth Amendment, and so the question of search warrants or exigent circumstances becomes irrelevant. And, because the only evidence of which appellant complains is the blood found on his shoes, police testing of other items of clothing is irrelevant to our inquiry. The only question actually before us, then, is whether testing the shoes for blood constitutes a “search” under the Fourth Amendment.

The outside of a person’s shoes while being worn are constantly exposed to the public. When appellant was arrested and incarcerated, the police obtained lawful possession of his shoes. Given that the outside of the shoes are constantly exposed to the public, appellant could not have a reasonable expectation of privacy against a visual inspection of the shoes, on the outside, with the naked eye. And because the police could legitimately handle and store the shoes, even the inside of the shoes would be exposed to police officers, so appellant would not have a reasonable expectation of privacy against the inspection of that portion of the shoes either.

The real question is whether law enforcement may perform tests that would enable them to discover information that a naked-eye examination would not give them. I believe the answer to that question is “yes,” and I find two Supreme Court cases that appear to give useful guidance on the matter. In United States v. Jacobsen, 466 U.S. 109 , 104 S.Ct. 1652 , 80 L.Ed.2d 85 (1984), agents for a private mail carrier (Federal Express), in accordance with a company policy regarding insurance claims, opened a cardboard package wrapped in brown paper. Id. at 111 , 104 S.Ct. 1652 . They discovered plastic zip-lock bags containing white powder. id. The Federal Express agents notified the Drug Enforcement Agency (DEA), and a DEA agent was dispatched to the scene. Id. The DEA agent opened the plastic bags and obtained a trace amount of the powder from each of them. Id. at 111-112 , 104 S.Ct. 1652 . He subsequently performed a chemical field test on the powder that revealed it to be cocaine. Id. at 112 , 104 S.Ct. 1652 .

The Supreme Court held that the defendant’s privacy interest in the package had largely been frustrated by the actions of private agents, to whom the Fourth Amendment did not apply. Id. at 120-121 , 104 S.Ct. 1652 . The actions of government agents infringed no legitimate expectation of privacy because government agents did not, by handling the package and visually inspecting its contents, learn anything that *112 had not already been learned during the private search. Id. The Court further held that the chemical test infringed no expectation of privacy that society was willing to recognize as reasonable because the test was designed only to determine whether the white powder was illegal contraband, which no person has a legitimate interest in possessing. Id. at 122-124 , 104 S.Ct. 1652 .

The other case of interest involves an aerial inspection of Dow Chemical Plant. Dow Chemical Co. v. United States, 476 U.S. 227 , 106 S.Ct. 1819 , 90 L.Ed.2d 226 (1986). In Dow Chemical, the Environmental Protection Agency (EPA) “employed a commercial aerial photographer, using a standard floor-mounted, precision aerial mapping camera, to take photographs of the facility from altitudes of 12,000, 3,000, and 1,200 feet.” Id. at 229 , 106 S.Ct. 1819 . Simple magnification of the photographs would permit identification of power lines as small as a half-inch in diameter. Id. at 238 , 106 S.Ct. 1819 . 1 The Supreme Court held that the aerial inspection was not a “search” under the Fourth Amendment. Id. at 239 , 106 S.Ct. 1819 . The Supreme Court stated, however, that a very different case would be presented if the government had used “[a]n electronic device to penetrate walls or windows so as to hear and record confidential discussions.... ” Id. (ellipsis and brackets inserted).

As in Jacobsen , the present case involves expectations of privacy that have been largely frustrated by legitimate means. Whatever privacy expectation appellant had in his clothing in general, and his shoes in particular, that expectation was largely frustrated after his legitimate arrest and the lawful confiscation of his clothing. And, as in both Jacobsen and Dow Chemical, authorities in the present case used a form of technology capable of obtaining information not available to the naked eye. Serology and DNA testing are designed to determine the presence of blood and whether that blood matches a particular person. It seems unlikely that a person can have any privacy expectation concerning the presence of blood on his clothing and it seems even less likely that society would recognize as reasonable a privacy expectation concerning whether the blood matches a known crime victim.

With these comments, I join the majority opinion.

JOHNSON, J., filed concurring opinion.

. The Supreme Court noted however, that the power lines were observable in part because of distinctive markings and that other objects of that size could not be seen under magnification. Id. at 238 n. 5, 106 S.Ct. 1819 .