Posted by Orin Kerr:
Swiping Doorknobs and the Fourth Amendment:
[1]Talkleft links to an interesting story about some Fourth Amendment
cases currently winding their way through the lower courts. The
question is whether the police need a warrant to swipe a person's home
doorknob with a drug-detecting cloth; the police then test the cloth
to see if contains microscopic particles of a controlled substance.
(You may have seen this at airports when they inspect bags for traces
of explosives by swabbing them with a special cloth and then analyzing
the cloth.) If traces of illegal drugs are found, the police can then
use this evidence as support for probable cuase to search the house.
The theory, apparently, is that drug residue found on a house doornob
increases the likelihood that there are drugs inside the home, and
thus can help establish probable cause.
The question is, does swiping the doorknob and analyzing it for
controlled substances violate the Fourth Amendment absent a warrant?
It's a difficult question, I think. On one hand, pulling the particles
off a doorknob by swiping it with a special cloth constitutes a Fourth
Amendment "seizure." The doorknob is the homeowner's property, and
pulling particles from that property seizes those particles. The
subsequent analysis is not a "search" under [2]United States v.
Jacobsen, but the initial removal is a seizure. On the other hand, the
residue on a doorknob may be seen as analogous to the garbage bags
left out on the street in [3]California v. Greenwood. I suppose I
would want to know whether the swab only pulls away particles that are
routinely picked up when people use a doorknob to open a door, or
whether it has some special properties that allow the cloth to pull
away particles that a normal door-opening would not. Either way, very
interesting case.
References
1. http://talkleft.com/new_archives/007822.html#007822
2. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=466&invol=109
3. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=486&invol=35
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