Case from the past…interesting dissent re: search and seizure exceptions

We ran across this case from a Dissent by Justice Osborne dated 1972.  It discusses the length that courts are taking to apply exceptions to search and seizure rules.


Com., Dept. of Public Safety v. Hayden, 484 S.W.2d 97 (Ky., 1972)

OSBORNE, Justice dissenting:
“Many thoughtful persons are concerned with what appears to be a headlong rush into a police state. While some courts still appear to be upholding fundamental constitutional rights, it would appear that others are ignoring them altogether. This past week the Supreme Court of the United States struck down the practice of federal agents’ tapping telephone wires. This would appear to be a good sign and in line with the philosophy laid down by the Supreme Court many years ago Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 296 L.Ed. 746.
In this case the Supreme Court held a defendant in a criminal prosecution for failure to pay import duties on goods shipped into the United States could not be forced to produce incriminating papers, for to do so would violate his rights under the 5th Amendment. While the Supreme Court has set this tone, lower federal courts and many of the state courts seem to be driving hard in the other direction. For the student who is interested in just how far matters have gone, see the
Page 101
American Law Reports, Later Case Service Supplement, 25 ALR 1370–1379, where the following cases appear:
‘Physical examination of defendant, and removal of narcotics from his rectum, involved no violation of privilege against self-incrimination, was not unreasonable reasonable search and seizure, and did not deny due process. Blackford v. U.S. (C.A.9, Cal.), 247 F.2d 745.
Self-incrimination privilege is limited to giving of oral testimony, and is not violated by use of urine specimen, in criminal prosecution, to show whether defendant was under influence of alcohol at the time specimen was given. U.S. v. Nesmith (D.C.Dist.Colo.) 121 F.Supp. 758.
Accused in rape case was not forced to give incriminating evidence against himself when blood sample, tissue scrapings, and saliva samples were taken and used in evidence. Brent v. White (D.C.La.) 276 F.Supp. 386.
Admission in sodomy prosecution of evidence of smears and slides taken from defendant’s genitals did not violate defendant’s immunity to self-incrimination or right as against unreasonable search and seizure. People v. Morgan, 146 Cal.App.2d 722, 304 P.2d 138.
In narcotics prosecution, evidence established that heroin capsules which accused spat out when police officer seized him by the throat were not obtained as result of unreasonable search and seizure in violation of accused’s privacy, due process, and self-incrimination rights. People v. Sanches, 189 Cal.App.2d 720, 11 Cal.Rptr. 407.’”

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