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Johnetta J. v. Municipal Court for San Francisco Judicial District3/20/1990
F-->124 Cal. Rptr. 528, 540 P.2d 624].) Relying on Schmerber and other federal cases, Scott indicated that such warrantless intrusions had to be based on "clear indication" that desired evidence would be obtained, as opposed to a "mere chance" (Schmerber v. California, supra, 384 U.S. at pp. 769-770 [16 L.Ed.2d at p. 919]), and that "the degree of the intrusion, reliability and humaneness, and the conditions under which it is performed have been considered in deciding whether a warrantless intrusion was 'reasonable.'" (People v. Scott, supra, 21 Cal. 3d at p. 292.)
The Supreme Court derived a similar test from federal constitutional law for a bodily intrusion compelled by warrant or other court order. Noting
that the Fourth Amendment bars only unreasonable searches, and that " he human body is not . . . a sanctuary in which evidence may be concealed with impunity," Scott ruled that a warrant could authorize a bodily intrusion if (1) there was probable cause to believe that the desired evidence would be discovered, plus (2) "an additional balancing test . . . determine whether the character of the requested search is appropriate." (People v. Scott, supra, 21 Cal. 3d at p. 293.) "Factors which must be considered include the reliability of the method to be employed, the seriousness of the underlying criminal offense and society's consequent interest in obtaining a conviction [citations], the strength of law enforcement suspicions that evidence of crime will be revealed, the importance of the evidence sought, and the possibility that the evidence may be recovered by alternative means less violative of Fourth Amendment freedoms. [Citation.]" (Ibid.) "These considerations must, in turn, be balanced against the severity of the proposed intrusion. Thus, the more intense, unusual, prolonged, uncomfortable, unsafe or undignified the procedure contemplated, or the more it intrudes upon essential standards of privacy, the greater must be the showing for the procedure's necessity." (Ibid.) Scott applied this test to the forced massage at issue and concluded the substantial intrusion, which resulted in an involuntary ejaculation, was "a very significant invasion of both dignity and privacy" which could not be justified given the fact that the testing process was not one of significant reliability. (Id., at pp. 294-295.)
This "probable cause-plus" test was applied in several subsequent Court of Appeal decisions. In People v. Browning (1980) 108 Cal. App. 3d 117 [166 Cal. Rptr. 293], the court concluded it was unreasonable under the Scott test to force an assault victim to undergo surgery to retrieve a bullet which the defendant claimed would be of a certain caliber, and thereby support his version of a shooting incident. In Shults v. Superior Court (1980) 113 Cal. App. 3d 696 [170 Cal. Rptr. 297], the court upheld an order compelling a woman charged with welfare fraud, as well as her child, to submit to blood testing for the paternity of the child's alleged father. The court noted the blood tests yielded scientifically reliable evidence, that the issue of paternity was highly relevant to the People's claim the defendant had lied about living with the child's father, and there were no less intrusive alternatives to establish paternity. The court also noted that unlike the rectal massage in Scott, the taking of blood in a medically approved manner was "neither intense, unusual, prolonged, uncomfortable or undignified." (Id., at p. 700, fn. omitted.) "The taking of blood samples by skilled technicians has long been a routine procedure [citation]
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