Johnetta J. v. Municipal Court for San Francisco Judicial District3/20/1990
e it fails to provide for a balancing test to determine whether the character of the intrusion is appropriate to the circumstances.
Real party does not dispute that "a 'compelled intrusio into the body for blood to be analyzed . . .' must be deemed a Fourth Amendment search." (Skinner v. Railway Labor Executives Ass'n (1989) 489 U.S. 602, [103 L.Ed.2d 639, 658, 109 S.Ct. 1402, 1412], quoting Schmerber v. California (1966) 384 U.S. 757, 767-768 [16 L.Ed.2d 908, 918, 86 S.Ct. 1826].) The Fourth Amendment applies to an expectation of privacy "that society accepts as objectively reasonable. [Citations.]" (California v. Greenwood (1988) 486 U.S. 35, 39 [100 L.Ed.2d 30, 36, 108 S.Ct. 1625, 1628]; see Katz v. United States (1967) 389 U.S. 347, 361 [19 L.Ed.2d 576, 587, 88 S.Ct. 507] [Harlan, J., conc.].) "In light of our society's concern for the security of one's person, [citation], it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable. The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested [person's] privacy interests. [Citation.]" (Skinner, supra, 489 U.S. at p. 616 [103 L.Ed.2d at p. 659, 109 S.Ct. at p. 1412].) Indeed, because of privacy "concerns about bodily integrity" and the potential revelation of "private medical facts," even the nonsurgical collection of breath and urine for chemical testing must be considered a search under the Fourth Amendment. (Id., at p. 616 [103 L.Ed.2d at 659, 109 S.Ct. pp. 1412-1413]; National Treasury Employees Union v. Von Raab (1989) 489 U.S. 656, 665 [103 L.Ed.2d 685, 701, 109 S.Ct. 1384, 1390].) "The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State." (Schmerber v. California, supra, 384 U.S. at p. 767 [16 L.Ed.2d at p. 917].)
The Fourth Amendment's applicability to the mandatory testing scheme of Proposition 96 is not diminished by the fact that the testing is ordered in a civil proceeding and is not designed to discover evidence of crime. The parties essentially agreed below that the filing of a petition for blood testing under Proposition 96 creates a civil proceeding ancillary to the underlying criminal charges. The applicability of the Fourth Amendment, however, is not limited to criminal proceedings. " his Court has never limited the Amendment's prohibition on unreasonable searches and seizures to operations conducted by the police. Rather, the Court has long spoken of the Fourth Amendment's strictures as restraints imposed upon 'governmental action' -- that is, 'upon the activities of sovereign authority.' [Citation.] Accordingly, we have held the Fourth Amendment applicable to the activities of civil as well as criminal authorities . . . ." (New Jersey v. T. L. O. (1985) 469 U.S. 325, 335 [83 L.Ed.2d 720, 730, 105 S.Ct. 733], quoting Burdeau v. McDowell (1921) 256 U.S. 465, 475 [65 L.Ed. 1048, 1051, 41 S.Ct. 574, 13 A.L.R. 1159].) "It is surely anomalous to say that the individual and his [or her] private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior."
(Camara v. Municipal Court (1967) 387 U.S. 523, 530 [18 L.Ed.2d 930, 936, 87 S.Ct. 1727], fn. omitted.)
The United States Supreme Court in Skinner has removed all doubt that compulsory blood tests are searches subject to the Fourth Amendment, not only because of physical penetration for removal of bodily fluid, but because of subsequent chemical testing leading to the revelation of private medical information. The applicability of the Fourth Amendment, however, is only the
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