3rd Circuit: Taking of Hair Sample Not a 'Search'

A police officer who was forced to provide a hair sample when he was suspected of drug use may not sue for alleged violations of his Fourth Amendment rights -- even if the sampling required shaving patches from his head -- because hair is "on public display," and the taking of a sample therefore cannot be considered a search, the 3rd U.S. Circuit Court of Appeals has ruled.

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A police officer who was forced to provide a hair sample when he was suspected of drug use may not sue for alleged violations of his Fourth Amendment rights — even if the sampling required shaving patches from his head — because hair is “on public display,” and the taking of a sample therefore cannot be considered a “search,” the 3rd U.S. Circuit Court of Appeals has ruled. In its eight-page unpublished decision in Coddington v. Evanko, the 3rd Circuit refused to carve out any exceptions to its 1982 decision in In re Grand Jury Proceedings (Appeal of Mills), which held that hair samples are “more akin to fingerprinting and voice and handwriting exemplars, which have been held outside the ambit of Fourth Amendment protection.” In Mills, the 3rd Circuit distinguished compelled production of hair samples from the taking of blood samples or fingernail scrapings that have been subjected to Fourth Amendment analysis as to reasonableness. In doing so, the Mills court focused on the degree of bodily intrusion. “We conclude that there is no greater expectation of privacy with respect to hair which is on public display than with respect to voice, handwriting or fingerprints. In the case of blood samples and fingernail scrapings, the bodily seizure requires production of evidence below the body surface which is not subject to public view,” the Mills court wrote. But plaintiff William E. Coddington urged the 3rd Circuit not to read Mills broadly and instead to analyze hair sampling on a case-by-case basis. In his suit, Coddington, a Pennsylvania state trooper, claimed that when he reported for duty on April 5, 1999, he was told by several of his superior officers that they had received confidential information that he was using cocaine. Coddington said he was ordered to submit to the collection of a hair sample so that it could be tested for the presence of illegal drugs. The suit said Coddington’s hair was initially cut by a fellow officer who took samples from his head, neck and an area of his left shoulder blade. But Coddington said he was later informed that additional samples had to be taken, and he was given the option of going to a barbershop, a salon or the home of a retired state police trooper whose wife was a former beautician. Coddington opted to go to the private home, and once there, the additional hair was taken. The test results on the hair came back negative for cocaine or any other illegal drug, according to the opinion. In his suit, Coddington claimed that his Fourth Amendment rights were violated in two ways. He claimed the hair sample was taken without reasonable suspicion, and that the manner in which the hair sample was taken violated his right to privacy. U.S. District Judge Robert J. Cindrich of the Western District of Pennsylvania, citing Mills, dismissed the suit on summary judgment. On appeal, Coddington’s lawyer, Eric C. Stoltenberg of Lightman & Welby in Pittsburgh, argued that Cindrich read Mills too broadly and refused to consider Coddington’s claim that the manner in which his hair samples were taken was unreasonably intrusive. Stoltenberg noted that the Mills decision explicitly declined to address the manner in which the hair sample was taken because that issue had not been raised by the appellant, and that the court went on to comment that “a snip of hair is often adequate for identification purposes.” As a result, Stoltenberg argued that deciding whether a hair sample implicates the Fourth Amendment’s protections is a case-by-case determination that must involve an analysis of the method used to obtain the hair sample. In Coddington’s case, Stoltenberg argued, the police crossed the line because they took “noticeable quantities”of hair from his head, neck and back. The search was unreasonable, Stoltenberg argued, because it was “degrading”and left Coddington with bare spots on his scalp. But the 3rd Circuit rejected that argument, finding that Stoltenberg was seizing on a fragment of a quote from Mills. Third Circuit Judge Richard L. Nygaard found that, when read in context, the full quote from Mills shows that the court was concerned only with cases in which police demanded a hair sample that included a hair root. Nygaard noted that immediately following the Mills court’s comment that “a snip of hair is often adequate for identification purposes,” the court went on to say: “We need not decide whether the result might be different were the hair root requested, since the hair root, unlike the exposed hair, is a living structure.” As a result, Nygaard found that “ Mills was clear in holding that there is a difference between the hair root and the exposed portion of hair. This difference is extremely important in a Fourth Amendment context because, while the exposed portion of hair is above the body surface, on public view and not deserving of Fourth Amendment protection, the hair root, like blood and fingernail scrapings, is ‘below the body surface…not on public view’ and may well be deserving of such protection.” Since Coddington never claimed that police took hair roots in their sample, Nygaard found that the possible limits discussed in Mills did not apply. “We decline to take Coddington’s invitation to read Mills as requiring courts, in every case, to examine the amount of hair taken from an individual’s head,” Nygaard wrote. “Coddington has presented no evidence that his hair sample was taken in a way that was intentionally degrading or humiliating or that the manner in which it was taken was sufficiently improper,” Nygaard wrote. Instead, Nygaard said, “the fact that Coddington had very short hair on his head, requiring the police officers and the beautician to shave some of his hair to the skin in order to obtain a sufficient quantity for the drug test, does not alter the fact that the only hair that was taken was above the body surface and on public display, and that hair was taken in a proper manner.” Nygaard was joined by 3rd Circuit Judges Theodore A. McKee and Michael Chertoff.

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