During an armed robbery of a local bank, one of the suspected participants was disguised by a ski mask which completely covered his face and hair, making identification difficult. Police obtained eyewitness descriptions of the height and weight of the robber. The suspect was summoned before a federal grand jury and asked to permit the taking of hair samples to determine whether his hair matched what appeared to be human hairs found in a ski mask recovered from the crime scene shortly after the crime occurred. The suspect was further asked to permit accurate height and weight measurements to be taken. The suspect refused both requests. The federal prosecutor filed a petition seeking an order mandating that the suspect agree to the grand jury's demands.

It is settled law that the Fourth Amendment offers no protection for physical qualities that are normally exposed to public view. U.S. v. Dionisio, 410 U.S. 1 (1973). However, when the proposed search of the suspect is not to be made incident to a lawful arrest and, in addition, there is not suggestion of probable cause, can the grand jury order a suspect to submit to giving hair samples?

See In re Grand Jury Proceedings (Cecil Mills), 686 F.2d 135 (3d Cir. 1982). See also Schmerber v. California, 384 U.S. 757 (1966); Davis v. Mississippi, 394 U.S. 727 (1969).

Submitted by Susannah Frost

Emory University School of Law

Answer
Taking the physical samples of hair (like fingerprints, is not a search or seizure protected by the Fourth Amendment; therefore, probable cause is not required.  Additionally, the Fifth Amendment right against self incrimination only applies to testimonial or communicative evidence, it would not apply to hair samples such as those named above.