State v. Sharpe

200 S.E.2d 44 (1973) 284 N.C. 157

STATE of North Carolina
v.
Terry Franklin SHARPE.

No. 28.

Supreme Court of North Carolina.

November 14, 1973.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Walter E. Ricks, III, Raleigh, for the State.

George S. Daly, Jr., Charlotte, for defendant-appellant.

MOORE, Justice.

The sole assignment of error preserved by defendant and brought forward on appeal is whether hairs taken from defendant's head and arm were obtained in violation of the Fourth and Fourteenth Amendments to the United States Constitution.

Defendant does not contend, and properly so, that the plucking and seizure of his hair was a violation of his Fifth Amendment privilege against self-incrimination. In Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826, 1832, 16 L. Ed. 2d 908, 916 (1966), a case involving the extraction of a blood sample, it was noted:

". . . [B]oth federal and state courts have usually held that [the privilege] offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ``communications' or ``testimony,' but that compulsion which makes a suspect or accused the source of ``real or physical evidence' does not violate it."

Defendant does contend, however, that his Fourth Amendment rights have been violated. The Fourth Amendment expressly provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . .." (Emphasis ours.) The obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two distinct levels: (1) The seizure of the "person" necessary to bring him into contact with government agents, and (2) the subsequent search for and seizure of the evidence. See United States v. Dionisio, 410 U.S. 1, 8, 93 S. Ct. 764, 769, 35 L. Ed. 2d 67, 76 (1973); Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969).

Unlike the defendant in Davis v. Mississippi, supra, defendant's rights in this case were not violated by an unlawful seizure of the person. In Davis the defendant and some twenty-three other persons were detained in police headquarters for fingerprinting without probable cause for arrest. The United States Supreme Court held that such detentions were constitutionally impermissible. In the present case the hairs were plucked from defendant's head and arm incident to a lawful arrest while defendant was in custody of the officers of the Charlotte Police Department charged with the first degree murder of Thomas Ross Garrison.

Testimony concerning the comparison between hair taken from under the fingernail of the deceased and that taken from defendant was presented by the State during its rebuttal to counter defendant's defense that, although present at the scene of the crime, he did not touch the victim in an aggressive way likely to cause the victim to claw at defendant's arm. Such testimony would be competent unless the samples taken from defendant were obtained in violation of defendant's Fourth Amendment rights. State v. Barber, 278 N.C. 268, 179 S.E.2d 404 (1971); State v. Ray, 274 N.C. 556, 164 S.E.2d 457 (1968).

The question then arises: Was the plucking of the hairs, which were in plain view of the officers, and their seizure for microscopic examination, an unreasonable search and seizure within the meaning of the Fourth Amendment?

In United States v. Dionisio, supra, it is stated:

"In Katz v. United States, supra [389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576], we said that the Fourth Amendment provides no protection for what ``a person knowingly exposures to the public, even in his own home or office. . . .' 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576. The physical characteristics of a person's voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world. . . .

". . . [A seizure of a voice exemplar] is like the fingerprinting in Davis, where though the initial dragnet detentions were constitutionally impermissible, we noted that the fingerprinting itself, ``involves none of the probing into an individual's private life and thoughts that marks an interrogation or search.' Davis v. Mississippi, 394 U.S. 721, 727 [89 S. Ct. 1394, 1398, 22 L. Ed. 2d 676]; cf. Thom v. New York Stock Exchange, D. C., 306 F. Supp. 1002, 1009." 410 U.S., at 14, 93 S.Ct., at 771-772, 35 L.Ed.2d, at 79-80.

Hair, like fingerprints or a man's facial characteristics or the body itself, is an identifying physical characteristic and is constantly exposed to public view. Here defendant's hair was in plain view of all who saw him. Unquestionably the plucking of defendant's hairs by the police constituted a "seizure" that might conceivably be subject to the constraints of the Fourth Amendment. The law does not, however, prohibit a seizure without a warrant by an officer in the discharge of his official duties when the article seized is in plain view. Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968); Ker v. California, 374 U.S. 23, 42-43, 744, 83 S. Ct. 1623, 1635, 10 L. Ed. 2d 726 (1963); State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968); State v. Craddock, 272 N.C. 160, 158 S.E.2d 25 (1967).

Moreover, although the United States Supreme Court in Schmerber v. California, supra, held that certain official intrusions into an individual's person require a search warrant in order for the intrusions to be deemed reasonable and not violative of the Fourth Amendment, as stated in United States v. D'Amico, 408 F.2d 331 (2d Cir. 1969):

". . . This holding does not comprehend that all official intrusions into an individual's person require, in the absence of extenuating circumstances, a search warrant in order to be reasonable. Some official in-custody investigative techniques designed to uncover incriminating evidence from a person's body are such minor intrusions into or upon the ``integrity of an individual's person' (384 U.S. at 772, 86 S. Ct. 1826), that they are not, in the absence of a search warrant, unreasonable intrusions."

See also United States v. Richardson, 388 F.2d 842 (6th Cir. 1968); United States v. Caruso, 358 F.2d 184 (2d Cir. 1966); United States v. Collins, 349 F.2d 863 (2d Cir. 1965). Thus it has been held that "the obtaining of hair samples after lawful arrest, where the means employed are reasonable, is not a violation of [one's] constitutional right." Grimes v. United States, 405 F.2d 477 (5th Cir. 1968). See also United States v. D'Amico, supra.

There is nothing in the record to indicate that the hair samples taken from the defendant were taken in a forceful or unreasonable manner, or in such a way as to cause defendant to suffer any true humiliation or affront to his "integrity." Mrs. Mary Jane Burton, who was not an officer but a trained laboratory technician, testified that she asked defendant to pull his own hair and that he pulled the hair sample from his head and handed it to her in the presence of his lawyer. The record does not disclose how the arm hair sample was removed. Under these circumstances, it would have been a vain exercise to procure a search warrant to authorize an officer to search for something that was exposed to all who saw defendant.

In Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973), the United States Supreme Court held that taking scrapings from under a defendant's fingernails went beyond a seizure of "physical characteristics . . . constantly exposed to the public," (citing United States v. Dionisio, supra) but held that the seizure of the scrapings without a warrant was proper since the blood and skin tracings found there could have easily been destroyed had the officer waited to obtain the warrant. Defendant here contends that the hair samples taken from him were not destructible evidence as in Cupp, and that the State had ample time and could easily have procured a search warrant. This may be true, but this is not the determining factor for procuring a search warrant. "The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances — the total atmosphere of the case." United States v. Rabinowitz, 339 U.S. 56, 66, 70 S. Ct. 430, 435, 94 L. Ed. 653, 660 (1950). ". . . Of course, the limits of reasonableness which are placed upon searches are equally applicable to seizures, State v. Chinn, 231 Or. 259, 373 P.2d 392, and whether a search or seizure is reasonable is to be determined on the facts of the individual case. Cooper v. State of California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730; Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777." State v. Howard, 274 N.C. 186, 202, 162 S.E.2d 495, 506 (1968). Although no search was required in the present case, there was a seizure of the hair samples. Such seizure, however, was certainly reasonable. We fail to see how the taking of these few hairs from defendant while he was in custody could have been more prejudicial or offensive than the taking of his fingerprints or his photograph. United States v. D'Amico, supra.

We hold that the seizure of the hairs in the present case was not an unreasonable one or one violative of the Fourth Amendment and, therefore, that the testimony concerning the comparison of the hair found under the fingernail of the deceased and the hairs taken from the head and arm of defendant was properly admitted in evidence.

Defendant's own testimony is sufficient to sustain the verdicts, and our examination of the entire record reveals nothing that would justify disturbing the verdicts and the judgments in this case.

No error.