Swabbing a car door handle in a public lot to collect DNA is a Fourth Amendment trespass search
By Orin Kerr
Apr 24 2017
In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court added a second test for what government action counts as a Fourth Amendment “search.” Since the 1970s, the Supreme Court had held that the government commits a search when it violates a person’s reasonable expectation of privacy. Jones added that the government also commits a search when it trespasses on to a person’s “persons, houses, papers, and effects.” As I explained in an article responding to Jones, it is hardly clear what kind of trespass test Jones adopts. Although Jones purports to restore a preexisting trespass test, no trespass test existed that the court could restore. As a result, the significance of Jones hinges on just what kind of trespass test courts interpret Jones to have adopted.
In light of that uncertainty, I was fascinated by a new decision, Schmidt v. Stassi, from the Eastern District of Louisiana last week. Michael Schmidt is a suspect in the 1997 murder of Eugenie Boisfontaine. You may have heard of the case, as the investigation is the subject of the Discovery Channel TV show “Killing Fields.” Investigators wanted to get a DNA sample from Schmidt, so they followed his car. When Schmidt drove to a local strip mall, parked and went inside a store, an agent used a cotton swab to wipe the exterior door handle on Schmidt’s Hummer to collect a DNA sample. Schmidt sued the officers, claiming that swabbing his car door handle was an unlawful Fourth Amendment search.
In the new decision, Judge Lance M. Africk holds that collecting the DNA from the door handle using the cotton swab was a Fourth Amendment search because it trespassed on to the car. From the opinion:
Here, the search involved the physical touching of Schmidt’s Hummer in a public parking lot. The search, however, did not damage the Hummer in any way. Accordingly, this Court has to make two determinations when evaluating whether a Fourth Amendment search occurred:
• Does the trespass-trigger for Fourth Amendment coverage extend to a trespass to chattels?
• If so, was the physical touching a trespass to chattels even though the touching did not harm or otherwise affect the Hummer?
Jones—which addressed a trespass against a car—settles that a trespass to chattles can constitute a Fourth Amendment search regardless of whether there is a reasonable expectation of privacy. See 565 U.S. at 410 (observing that officers “trespassorily inserted” the GPS tracker on the Jeep); see also id. at 419 & n.2 (Alito, J., concurring) (implying Court was concluding that search was a trespass to chattles). Thus, just as a trespass to land can constitute a Fourth Amendment search, a trespass to chattles may as well. See, e.g., United States v. Ackerman, 831 F.3d 1292, 1307-08 (10th Cir. 2016). And there is no question that an automobile—unlike an open field—is protected by the Fourth Amendment: an automobile is “an effect as that term is used” in the Fourth Amendment. Jones, 565 U.S. at 404.4
But was this a trespass to chattles? That is a trickier issue. As Justice Alito’s Jones concurrence explained, the elements of the tort have changed since the founding. “At common law, a suit for trespass to chattels could be maintained if there was a violation of the dignitary interest in the inviolability of chattels.” 565 U.S. at 419 & n.2 (Alito, J., concurring) (internal quotation marks omitted). Meanwhile, “today there must be some actual damage to the chattel before the action can be maintained.” Id. (internal quotation marks omitted). So the choice of a particular understanding of trespass can be outcome determinative when applying Jones if a search does not damage or otherwise affect a particular chattel.
The Court concludes that it should follow the view that an officer need not cause damage before committing a trespass to chattels. Not only is that the view of the Second Restatement of Torts, see Restatement (Second) of Torts § 217,5 but it also has the added advantage of not making the scope of the Fourth Amendment turn on whether someone scratches the paint.