Biology and the

Fourth Amendment

Mark Cohen & Tiffany Middleton

November 1, 2013

www.ambar.org/publicedevents

Four

th A

men

dmen

t to

the

U.S.

Con

stitu

tion

The right of the people to be

secure in their persons,

houses, papers, and effects,

against unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be

searched, and the persons

or things to be seized.”

4th A

men

dmen

t as a

Twee

t No unreasonable searches, seizures; warrant must be sworn, with probable cause, specific details on person, stuff searched, seized #Fourth

Comm

on Fourth

Amendm

ent CasesWhat government activities

constitute "search" and "seizure";

What constitutes probable cause

for these actions;

Whether a warrantless search is

justified;

At what point a search is or

becomes unreasonable;

How should violations be treated.

Frequent Questions

Seizure: A person is seized within the

meaning of the Fourth Amendment

only when, by means of physical force

or show of authority, his freedom of

movement is restrained and, in the

circumstances surrounding the

incident, a reasonable person would

believe that he was not free to leave. (U.S. v. Mendhall)

A Note About Seizures

Weeks v. U.S. (1914)

Olmsted v. U.S. (1928)

Mapp v. Ohio (1961)

Katz v. U.S. (1967)

U.S. v. Jones (2012)

Searches: The Case Law

Sear

ches

: Th

e Nu

b of

It

The 4 th Amendment applies

to states;The penalty for violations is

exclusion of the evidence;The 4 th Amendment protects

reasonable expectations of

privacy;A physical intrusion on body

or property is more likely to

be viewed as a violation than a pure privacy intrusion

The Body Is Still Special“[T]his Court has never

retreated from its

recognition that any

compelled intrusion into

the human body

implicates significant,

constitutionally protected

privacy interests.”

-- Justice Sonia

Sottomayor

Missouri v. McNeely

(2013)

Skinner v. Railway

Labor Executives’

Association 1988

Board of Education of

Independent School District

No. 92 of

Pottawatom

ie County v.

Earls, et al. 2002

Safford U

nified

School District v.

Redding

2006

Florence v. County

of Burlington 2012

Missouri v.

McN

eely 2013

2013

:Ma

ryla

nd v.

Kin

g

How accurate?Fingerprint

sDNA

1 in 60,000,000,0001 in 100,000,000,000,000

Maryland v. King (2013)

When officers make an arrest

supported by probable cause to hold a

suspect for a serious offense and bring

him 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.

Ruling 5-4

Wha

t is o

ur

futu

re?

Contact UsTiffany Middleton

Tiffany.Middleton@americanbar.o

rg(312) 988-5739

Mark Cohen

Mark.Cohen@americanbar.org

(312) 988-5728