Coddington v. Evanko

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
10-29-2004
Coddington v. Evanko
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3850
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"Coddington v. Evanko" (2004). 2004 Decisions. Paper 184.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-3850
___________
WILLIAM E. CODDINGTON,
Appellant
v.
PAUL EVANKO, in his capacity as Commissioner of the
Pennsylvania State Police; FRED STREET, in his capacity as
Lieutenant of Pennsylvania State Police; MARY POWELL, in
her capacity as Lieutenant of the Pennsylvania State Police;
BYRON LOCKE, in his capacity as Sergeant of the Pennsylvania
State Police; CHRISTOPHER WALSH, in his capacity as Corporal
of the Pennsylvania State Police; DARRELL G. OBER, in his
capacity as a Captain of the Pennsylvania State Police;
DONALD T. CARNAGHAN, in his capacity as a Lieutenant of the
Pennsylvania State Police
___________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 00-cv-2340)
District Judge: The Honorable Robert J. Cindrich
___________
ARGUED MAY 12, 2004
BEFORE: NYGAARD, M cKEE, and CHERTOFF, Circuit Judges.
(Filed October 29, 2004)
___________
Eric C. Stoltenberg, Esq. (Argued)
Lightman & Welby
220 Grant Street, 6th Floor
Pittsburgh, PA 15219
Counsel for Appellant
Kemal A. Mericli, Esq. (Argued)
Office of Attorney General of Pennsylvania
564 Forbes Avenue, 6 th Floor
Manor Complex
Pittsburgh, PA 15219
Counsel for Appellees
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
In this appeal, we must determine whether the District Court erred by
concluding that William Coddington’s Fourth Amendment rights were not violated when
his superiors in the Pennsylvania State Police required that he provide a hair sample for a
drug test. We will affirm the District Court because, as we held in In re Grand Jury
Proceedings (Appeal of Mills), the cutting of one’s hair for the purpose of obtaining a
sample does not constitute a search under the Fourth Amendment. 686 F.2d 135, 137-40
(3d Cir. 1982).
I.
2
Coddington, a Pennsylvania State Trooper, reported for duty on April 5,
1999.1 At the beginning of his shift, he was told by several of his superior officers that
they had received confidential information that he was using cocaine. As a result of this
information, Coddington was ordered to submit to the collection of a hair sample so that it
could be tested for the presence of illegal drugs.
According to Coddington, his hair was initially cut by Sergeant Byron
Locke in a crime room at a Pennsylvania State Police station. Locke cut hair from
Coddington’s head, neck, and a small section in the area of his left shoulder blade. After
Locke finished, Coddington was informed that additional hair had to be taken and he was
given the option of going to a barber shop, a salon or the home of a retired state police
trooper whose wife, a former beautician, could take the additional hair sample.
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.
Coddington sued the various individual appellees in their capacities as
employees of the Pennsylvania State Police. After an initial motion to dismiss was
granted with respect to three counts in Coddington’s complaint, the District Court
permitted Coddington to continue his suit on two remaining counts. In one of the
remaining counts, Coddington alleges that the appellees violated his Fourth Amendment
1. We summarize the facts of this case viewing the record in a light most favorable
to Coddington. See Fed. R. Civ. Proc. 56(c).
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rights by taking the hair sample without reasonable suspicion. In the other, he claims that
the manner in which the appellees took his hair sample violated his Fourth and Fourteenth
Amendment rights to privacy.
On cross motions for summary judgment, the Magistrate Judge issued a
report and recommended that the District Court grant the appellees’ motion for summary
judgment as to both of the remaining counts. The District Court adopted this report and
recommendation as its opinion and granted the appellees’ motion. It is from this order
that Coddington appeals.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and
exercise plenary review over the District Court’s decision on a motion for summary
judgment. Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003). Summary judgment is
appropriate when, viewed in a light most favorable to the non-moving party, the record
“show[s] that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. Proc. 56(c).
III.
The District Court concluded that the hair sample taken from Coddington
did not implicate his Fourth Amendment rights. It based this decision on two cases:
Mills, 686 F.2d at 137-40 and Drieble v. City of Milwaukee, 298 F.3d 622, 638 (7th Cir.
2002).
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In Mills, we instructed that the key question in addressing whether the
taking of a hair sample was a “search” under the Fourth Amendment was whether “the
compulsion to produce facial and scalp hair samples . . . is more akin to fingerprinting
and voice and handwriting exemplars which have been held outside the ambit of Fourth
Amendment protection or whether it is more closely aligned with the extraction of blood
samples or fingernail scrapings which have been subjected to Fourth Amendment analysis
as to reasonableness.” Id. at 139. We resolved this question with the following holding:
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. In the case of facial and head
hair, as well as fingerprints, voice and handwriting exemplars,
the evidence is on public view.
Id. Mills’ holding is clear that the taking of hair is not subject to restrictions imposed by
the Fourth Amendment.
In an attempt to avoid this precedent, Coddington argues that the manner in
which his hair was collected was sufficiently unreasonable to trigger the Fourth
Amendment’s protections against “intrusions which are . . . made in an improper
manner.” Schmerber v. California, 384 U.S. 757, 768 (1966). In support of this
argument, he relies on two discrete portions of Mills. First, addressing the analogy
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between the cutting of hair to get a hair sample and the amputation of a finger to get a
finger print, the majority in Mills stated, “the cutting of a few strands of hair is hardly
akin to the amputation of a finger. Nor is it the sort of ‘annoying, frightening, and
perhaps humiliating experience’ involved in the policy pat-down in Terry v. Ohio, 392
U.S. [1, 25 (1968)].” Mills, 686 F.2d at 139.
Second, Coddington seizes on the limitation Mills placed on its holding
regarding the Fourth Amendment’s restrictions on intrusions that are made in an improper
manner. “No issue as to the manner of sampling is raised . . . [a] snip of hair is often
adequate for identification purposes.” Id. at 139-40.
Based on these statements in Mills, Coddington argues that determining
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.
According to Coddington, when the appellees took noticeable quantities of hair from his
head, neck and back, they infringed on his Fourth Amendment rights because their
method of hair sampling was improper.
Coddington’s argument misapprehends the limitations contained in Mills.
Mills’ statements regarding the method of obtaining hair samples expressly dealt with the
import of its holding on the taking of hair root samples. The exact language from Mills,
including relevant portions excised by Coddington in his brief, states:
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No issue as to the manner of sampling is raised in this case,
nor has there been any suggestions that the hair sample
requested by the grand jury sought the hair root w ith
which [the concurring judge] is concerned. A snip of hair
is often adequate for identification purposes. We need not
decide whether the result might be different w ere the hair
root requested, since the hair root, unlike the exposed
hair, is a living structure.
Id. (internal citations omitted)(emphasis added).
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. Id. at 139. We need not address the issue of
whether the hair root is entitled to more protection than the exposed hair, however,
because Coddington is not alleging that the appellees took hair roots, or any other portion
of the hair that was below his body surface. Instead, he is claiming that his hair was
removed from his head, neck and back in such a way that was degrading and left him with
bare spots on his scalp.
Moreover, 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. 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
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sufficiently improper. Cf. Bouse v. Bussey, 573 F.2d 548, 550-51 (9th Cir. 1977) (holding
that the forcible pulling of pubic hair from a prisoner was a search under the Fourth
Amendment). 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.2
Accordingly, the hair sample Coddington was obligated to produce does not
implicate the Fourth Amendment’s protections and the District Court was correct in
granting summary judgment for the appellees. We will affirm.
2. Because we will affirm the District Court’s order based on Mills, we do not reach
the issue of whether the District Court also correctly applied Drieble.
8