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 cause 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. (This theory sounds a bit lame to me, but I suppose it depends on the specific circumstances.)
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, there is a strong argument that 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 United States v. Jacobsen, but the initial removal is arguably a seizure requiring a warrant. On the other hand, the residue on a doorknob may be seen as analogous to the garbage bags left out on the street in 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.
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