Request By:
Honorable Charles M. Johnson
Chief of Police
Mayfield Police Department
City Hall Building
Mayfield, Kentucky 42066
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert W. Hensley, Assistant Attorney General
This is in response to your letter in which you ask if the police may require a suspect in a rape case to provide samples of his blood, saliva, combed and pulled pubic hair or swabs from the pubic area.
Before answering your letter, we would like to point out that though in common parlance we are talking about a "suspect" it is obvious that since the police have decided upon this particular individual from whom to request the various items ". . . the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect."
Escobedo v. Illinois, 378 U.S. 478, 490-491, 12 L.Ed2d 977, 84 S. Ct. 1758 (1964). Thus you would be well advised to advise this individual of the rights set out in
Miranda v. Arizona, 384 U.S. 436, 479, 16 L.Ed2d 694, 86 S. Ct. 1602 (1966). Since your letter does not concern those rights per se, and since as a police officer you are undoubtedly familiar with advising of same, we will not set them out here.
First, since you ask your question in the context of a search and seizure issue, we would point out that insofar as the accused's Fourth Ammendment rights under the United States Constitution and § 10 of the Constitution of Kentucky, i.e., one's protection against unreasonable searches and seizures, presuming the law enforcement officers have reasonable grounds or probable cause to arrest the individual for commission of a felony, it appears that the officer can seize any evidence on the arrestee's person. In
Chimel v. California, 395 U.S. 752, 23 L.Ed2d 685, 89 S. Ct. 2034 (1969), the United States Supreme Court had this to say at page 763: "[I]t is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. "
Concerning the officer's right to seize any evidence on the arrestee's person in order to prevent its concealment or destruction we would admonish you, as you and I discussed on the telephone, not to seize such evidence by force which would be violative of Due Process. For example, consider
Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952), which is not a rape case but is quite applicable to our discussion on the use of force by law enforcement authorities. Rochin involved a case where a doctor, at the direction of a deputy sheriff of Los Angeles County, forced an emetic solution through a tube into the stomach of a suspected narcotics dealer. This "stomach pumping" produced vomiting which yielded two capsules which proved to contain morphine. Because of the action of the law enforcement officer(s) the United States Supreme Court, on Due Process grounds, reversed the decision of the appellate Court in California which had denied a petition for rehearing.
You first ask if the police may require an accused to provide blood samples. In
Schmerber v. California, 384 U.S. 757, 16 L.Ed2d 908, 86 S. Ct. 1826 (1966), the United States Supreme Court, finding by a divided Court no constitutional violation, upheld a conviction for driving while under the influence where the evidence of the convicted driver's intoxication came in part from a sample of his blood withdrawn by a physician at the direction of the arresting officer through the driver, on advice of counsel, refused to voluntarily perform the test. Also see
Breithaupt v. Abram, 352 U.S. 432, 1 L.Ed2d 448, 77 S. Ct. (1957), a case preceding Schmerber with the same result as Schmerber though in Breithaupt the driver was unconscious at the time of the blood test.
We therefore are of the opinion that law enforcement officers acting upon probable cause, can request -- or obtain a court order if met with a refusal -- a sample of an accused's blood in a rape investigation.
Concerning saliva, we were unable to find any recent Kentucky cases or cases from other states. However, we did find one recent federal case,
Brent v. White, Warden, 276 F. Supp. 386 (U.S. Dist. Ct. E.D.La., 1967). In Brent the petitioner, as we read the case, had voluntarily signed a waiver authorizing the police to take a blood sample but apparently nothing more. However, the petitioner claimed that he had been forced to also give penis scrapings and saliva samples. The United States District Court for the Eastern District of Louisiana, citing Schmerber, quickly disposed of the petitioner's self incrimination argument. "While the Schmerber case dealt only with the taking of blood samples, nevertheless its rationale clearly applies to the evidence obtained from the person of petitioner in this case." Brent at page 389.
Although it is not discussed in Brent it seems probable that the force the petitioner claimed in turning over his penis scrapings and saliva was not force violative of Due Process.
Concerning combed and pulled pubic hair from the pubic area in
Bouse v. Bussey, 573 F.2d 548 (9th Cir., 1977), law enforcement authorities allegedly unzipped the arrestee's jail uniform and forcibly pulled a sample of public hair from his person. The Court, finding that the search and seizure was an unreasonable one under the Fourth Amendment, reversed the United States District Court's dismissal of the plaintiff's 42 U.S. § 1983 suit. However, in
United States ex rel. Parson v. Anderson, 354 F. Supp. 1060 (U.S. Dist. Ct. D. Del., 1972) the Court noted at page 1085:
At 7:40 A.M. on February 1, 1964 Parson was given a comb and asked to comb his pubic area. He did this while Trooper Kuratle held a white paper underneath the area to catch the combings.
Although it is not entirely clear, defense counsel may have tried to raise a Fifth Amendment issue based upon the length of the accused's detention prior to the accused's combing of his pubic hairs. See Aprson at page 1088. However, the Court found no Due Process violation in the admission into evidence of the pubic hair combings.
Although at this time we do not have any cases dealing with swabs from the public area of an accused in a rape investigation, we are of the opinion that the foregoing discussion on the other points is dispositive of this one as well, i.e., you can obtain the swab. However, unlike the action of the law enforcement officers in the Bouse opinion discussed above, you would want to request the swab in a manner similar to that of the law enforcement officers in the United States ex rel. Parson case discussed above.
In conclusion, we are of the opinion that law enforcement officers, acting upon probable cause or reasonable grounds, can obtain physical samples of the type you mention, provided, of course, that the officers do not act in a coercive manner.