William Bouse v. Donald L. Bussey, Oregon State Police Officer, Crook County, Prineville, Oregon , 573 F.2d 548 ( 1977 )

PER CURIAM:

Appellant William Bouse, a prison inmate, brought suit in propria persona under 42 U.S.C. § 1983 against Donald L. Bussey, an Oregon state police officer, in essence alleging that Bussey had violated his right under the fourth and fourteenth amendments to be free from an unreasonable search and seizure. The district court granted appellee’s motion to dismiss the complaint. Since Bouse’s allegations, if true, are sufficient to constitute a claim on which relief might be granted, we reverse.

The pleadings, viewed in the light most favorable to appellant, Belt v. Johnson Motor Lines, Inc., 458 F.2d 443, 444 (5th Cir. 1972); see Boddicker v. Arizona State Dental Association, 549 F.2d 626, 628 (9th Cir. 1977), disclose the following facts: During appellant’s incarceration as a pretrial detainee in the county jail on a charge of rape, he was taken to a small holding cell. While appellant was in the cell Officer Bussey demanded that appellant give him a sample of pubic hair, apparently for the purpose of comparing the sample to hair believed to have come from the perpetrator of the rape. Appellant repeatedly refused to comply. Officer Bussey, with the help of another officer, then allegedly unzipped appellant’s jail uniform and forcibly pulled a sample of pubic hair from appellant’s person. Officer Bussey had not obtained a search warrant for the sample.

It is true that some investigative procedures designed to obtain incriminating evidence from the person are such minor intrusions upon privacy and integrity that they are not generally considered searches or seizures subject to the safeguards of the fourth amendment. See United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (voice exemplar); United States v. Mara, 410 U.S. 19, 22, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (handwriting exemplar). We cannot, however, characterize the intrusion allegedly perpetrated by the police in this case as minor. It was sufficiently severe to constitute a search. The search of the appellant’s person “went beyond mere ‘physical characteristics constantly exposed to the public,’ and constituted the type of ‘severe, though brief, intrusion upon cherished personal security’ that is subject to constitutional scrutiny.” Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 2003, 36 L.Ed.2d 900 (1973) (citation omitted). If appellant’s contentions are true, he was subjected to a painful and humiliating invasion upon the most intimate parts of his anatomy, and when the police perform such an investigation, they are bound to comply with the requirements of the fourth and fourteenth amendments.

None of the circumstances of this case justified conducting the search without a warrant. “Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned.” Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908 (1966). The warrantless search cannot be justified by exigent circumstances. Appellant was being held in custody pending trial, and there was no danger that the evidence sought might be destroyed before a warrant could be obtained. Compare Schmerber v. California, supra (evanescent alcohol content in blood); Cupp v. Murphy, supra (incriminating evidence beneath the suspect’s fingernails); United States v. Smith, 152 U.S.App.D.C. 229, 470 F.2d 377 (1972) (benzidine test to detect presence of blood on defendant’s person).

United States v. D’Amico, 408 F.2d 331 (2d Cir. 1969), holding that investigators could clip a few strands of hair from a defendant’s head while he was in custody, is not to the contrary. The court in that case concluded that no warrant was required because the intrusion was so minor that the seizure was reasonable. By contrast, the conduct alleged in this case presents an invasion into personal privacy of a different magnitude, requiring fourth amendment protection.

In border crossing cases, where there is no per se requirement for a warrant to conduct a body search, we have noted that the failure to obtain a warrant is relevant to deciding whether a search was unreasonable. United States v. Cameron, 538 F.2d 254, 258 (9th Cir. 1976). We have also stated that “[a]ny body search, if it is to comport with the reasonableness standard of the fourth amendment, must be conducted with regard to the subject’s privacy and be designed to minimize emotional and physical trauma.” Id. These considerations are applicable here, both in determining that the intrusion constituted a search and that a warrant was required. We con-elude that the warrantless search and seizure, if true as alleged in Bouse’s complaint, violated appellant’s constitutional rights, and that the district court erred in dismissing the complaint.

Appellant also argues that the trial court erred in denying his motion to amend his complaint to state that the defendant’s conduct violated his fourth and fifth amendment rights. Under the Federal Rules of Civil Procedure, complaints are to be liberally construed. See generally 5 C. Wright & A. Miller, Federal Practice and Procedure § 1215 (1969). The proposed amendment would have added nothing new to Bouse’s complaint, which alleged violations of his fourteenth amendment rights and of his constitutional and civil rights under 42 U.S.C. § 1983. The district court therefore properly exercised its discretion in denying leave to amend. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

Our holding is confined to reversal of the lower court’s determination that the conduct alleged here did not constitute a violation of the right secured to the appellant by the constitution and law of the United States. We express no view as to the merits of any defenses that might be raised, such as the immunity of government officers.

REVERSED AND REMANDED for further proceedings.