Is Your Scalp a Constitution-Free Zone?
A Federal Appeals Court Approves Suspicionless Hair Sampling

By SHERRY F. COLB

Wednesday, Nov. 17, 2004

At the end of last month, in the case of Coddington v. Evanko, the U.S. Court of Appeals for the Third Circuit ruled that police officers may constitutionally shave large amounts of hair from a suspect's head, neck, and shoulders, without a warrant, probable cause, or any basis for suspecting that the hair would provide evidence of crime. The Fourth Amendment guarantees the people the right to be free from unreasonable searches and seizures. But according to the court, the Fourth Amendment does not apply to hair removal.

In so ruling, the Third Circuit followed its own 1982 precedent, In re Grand Jury Proceedings (Appeal of Mills), which held that taking hair samples from visible parts of a suspect's body does not invade any reasonable expectation of privacy. Such investigation therefore does not qualify as a Fourth Amendment "search."

The court in Coddington did not specifically address the question of whether shaving a large amount of hair from a suspect might constitute an unconstitutional "seizure." But it did reaffirm what it understood to be the holding of Mills: "that the taking of hair is not subject to restrictions imposed by the Fourth Amendment." Since the Fourth Amendment governs seizures as well as searches, it follows that there is no right under any part of the Fourth Amendment to be secure from police unreasonably shaving large amounts of hair from the visible parts of one's body.

This ruling is wrong as a matter of logic. It also misinterprets the constitutional right of the people to be secure against unreasonable searches and seizures.

The Facts of Coddington v. Evanko: Cutting Hair For Drug Testing

The case before the Third Circuit arose from the following facts, taken in the light most favorable to the plaintiff (as they must be taken when a court considers granting summary judgment against a plaintiff): When William Coddington, a Pennsylvania State Trooper, reported for work on April 5, 1999, several of his superior officers told him that they had received confidential information indicating that he was using cocaine. There was no finding by a court -- either then or after the fact -- that the informant providing the confidential information was either credible or had some basis for knowing whether Coddington was using drugs. Coddington was nonetheless ordered to submit to hair sampling so that his hair could be tested for cocaine and other drugs.

A sergeant at the police station cut hair from Coddington's head, neck, and part of his left shoulder blade. Coddington was then informed that additional hair had to be taken. He was given the choice of undergoing this further hair removal at a barber shop, at a salon, or at the home of a retired police officer whose wife used to be a beautician. He chose the last option of the three, and the subsequent shaving resulted in bare spots on his scalp. When police sent the hair to the laboratory to test for cocaine (along with other illicit drugs), the results were negative.

Coddington's Fourth Amendment Claim - and the Trial Court's Ruling

After his experience, Coddington brought a lawsuit against various officers in their capacities as employees of the Pennsylvania State Police. He argued that they had violated his Fourth Amendment rights by taking hair samples without reasonable suspicion.

The trial court dismissed the lawsuit on a motion for summary judgment, finding that there was no genuine issue of material fact, even if the judge believed the plaintiff's account of what had happened to him. In the court's view, the Fourth Amendment simply did not apply to the taking of Coddington's hair.

The Appellate Court's Ruling

The Court of Appeals then affirmed the trial court's grant of summary judgment, stating that "the taking of hair is not subject to restrictions imposed by the Fourth Amendment."

Under Mills, the court of appeals explained, the taking of hair samples did not intrude upon any reasonable expectation of privacy and thus did not constitute a Fourth Amendment "search." Even the degrading manner in which his hair was taken -- in particular, the quantity and the fact that it left Coddington with prominent bald spots on his head -- did not make a constitutional difference.

If the Fourth Amendment did not apply, it followed necessarily that the police activity did not have to be "reasonable" (that is, based upon an adequate level of suspicion). Coddington was therefore left with no case.

The "Search" Question: Supreme Court Precedents Define What Counts

In determining whether police have violated the Fourth Amendment, one must always ask a threshold question: does the Fourth Amendment apply at all? The answer depends on whether the official conduct in question constitutes either a "search" or a "seizure" under Fourth Amendment precedents.

As I explained in an earlier column about the Fourth Amendment significance of DNA sampling of ex-convicts, the "search" question boils down to whether police have invaded a suspect's "reasonable expectation of privacy." In contrast, the seizure question - at least where, as here, an inanimate object, rather than a person, has allegedly been seized - is whether police have asserted dominion and control over something belonging to an individual. Either a search or seizure will trigger application of the Fourth Amendment, which in turn requires that police act reasonably.

The U.S. Supreme Court suggested in United States v. Dionisio that taking a voice or handwriting exemplar does not constitute a Fourth Amendment search. In other words, asking a suspect to say a phrase - so that a listener, for example, can determine whether the suspect is the person who robbed him - does not invade any reasonable expectation of privacy and is therefore not a search. In the same case, the Supreme Court seemed to indicate in dicta -- that is, words that are not necessary to the disposition of the case - that the taking of fingerprints would also not constitute a search. Taking blood, by contrast, does constitute a search, under the Supreme Court's ruling in Schmerber v. California.

According to the U.S. Court of Appeals for the Third Circuit, taking a hair sample is more like obtaining voice exemplars or fingerprints than it is like taking blood. Particularly if the hair that is sampled grows on a visible part of a person's body, the court said, nothing private has been exposed.

Therefore, the court concluded, taking a hair sample is not a search and does not implicate the protections of the Fourth Amendment against unreasonable searches. Police could take hair samples without having a good reason to do so.

Why the Court's Conclusion is Bizarre: The Fourth Amendment Should Apply

Certainly, taking blood is more intrusive than cutting visible hair. Many men shave every day without experiencing any anxiety. Giving blood, on the other hand, is more intrusive, and for many people, causes serious anxiety. (Indeed, we have recurring blood shortages in this country in part as a result of that simple reality.).

Nonetheless, the right to be secure in one's person from unreasonable searches and seizures seems at odds with the notion that police can shave large quantities of a person's hair without some justification. One might well feel violated by having one's hair shaven without consent, even if the hair - while still attached to one's body - was visible to the world.

In addition, unlike voice exemplars and fingerprints - which can be given without an individual's "losing" her voice or her fingerprints - a portion of one's hair, once shorn, has been taken away from one's possession. It has thus, on any plausible reading of the word, been "seized."

Consider the following hypothetical cases to illustrate the point. You are holding a string attached to an apple-shaped helium balloon on which appear the words "I LOVE NEW YORK." Imagine that you tie the balloon to your wrist so that you do not lose it. As you are walking, a police officer comes along with scissors and cuts the string. He then takes the balloon and explains to you that he's sorry, but he really wanted it. Has he seized the balloon? Of course he has. Is the seizure a reasonable one? No, although you probably won't bring a lawsuit over a balloon.

Now imagine that you are wearing a gold chain around your neck. A police officer comes by with kitchen scissors and clips open the chain. It falls into the officer's hands, and he tells you that he wanted it because he was curious about how much it weighed compared to his gold chain. Seizure? Of course. Reasonable seizure? No way.

So what about your hair? What's the difference? Well, one difference is that it is actually attached to your body - unlike the balloon or gold chain. In Coddington's case, moreover, taking his hair made him look peculiar, because the appearance of his shorn hair - visible as it was - contributed to his overall "look."

But is hair worth that much? Perhaps not as much as a gold chain, but probably more than a balloon. Some people, for example, spend a great deal of money to have professionals cut their hair in an attractive way, rather than inviting a random person to shave off pieces of it for free. They pay good money, in other words, to retain enough hair to make them look good.

It also seems that because shaving one's hair is a somewhat intimate act, cutting hair without consent may also invade what many of us would consider a reasonable expectation of privacy. One expects privacy, in the sense of the right to be left alone, when it comes to parts of one's body, including even those parts that are not made up of living tissue.

Unfortunate Decision: The Third Circuit Ought to Rethink Its Position

The Third Circuit - both in its 1982 Mills case, and the recent Coddington case -- is therefore wrong, as a matter of logic and of constitutional analysis. The Fourth Amendment certainly ought to govern the taking of substantial amounts of hair - even visible hair - from a person's body.

For the police to behave as they allegedly did toward Coddington, without having to act on suspicion or otherwise justify their actions, is a frightening prospect. And make no mistake. Under the Third Circuit's approach, the police can shave the hair of anyone who appears in public at any time. They do not need to have any reason whatsoever for suspecting the unwitting shavee of a crime.

Fortunately, police will likely not often utilize this power - by going to movies or concerts, for example, armed with electric razors. Still, we should not have to rely for the exercise our rights on the self-restraint of the police, who are - to use the Supreme Court's words - in the "often competitive enterprise of ferreting out crime." I would respectfully dissent.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark. Her earlier columns, including columns on criminal law and procedure issues, may be found in the archive of her work on this site.

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