Over respondent's protest and without a warrant, police in the
course of station house questioning in connection with a murder
took samples from the respondent's fingernails and discovered
evidence used to convict him. Respondent had come to the station
house voluntarily, and had not been arrested, although he was
detained and there was probable cause to believe that he had
committed the murder. In reversing the District Court's denial of
habeas corpus, the Court of Appeals concluded that, absent arrest
or other exigent circumstances, the search was
In view of the station house detention upon
probable cause, the very limited intrusion undertaken to preserve
highly evanescent evidence was not violative of the Fourth and
Fourteenth Amendments. Pp.
412 U. S. 293
461 F.2d 1006, reversed.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST,
JJ., joined. WHITE, J., filed a concurring statement,
p. 412 U. S. 297
MARSHALL, J., filed a concurring opinion, post,
412 U. S. 297
BLACKMUN, J., filed a concurring opinion, in which BURGER, C.J.,
p. 412 U. S. 300
POWELL, J., filed a concurring opinion, in which BURGER, C.J., and
REHNQUIST, J., joined, post,
p. 412 U. S. 300
DOUGLAS, J., post,
p. 412 U. S. 301
and BRENNAN, J., post,
p. 412 U. S. 305
filed opinions dissenting in part.
Page 412 U. S. 292
MR. JUSTICE STEWART delivered the opinion of the Court.
The respondent, Daniel Murphy, was convicted by a jury in an
Oregon court of the second-degree murder of his wife. The victim
died by strangulation in her home in the city of Portland, and
abrasions and lacerations were found on her throat. There was no
sign of a break-in or robbery. Word of the murder was sent to the
respondent, who was not then living with his wife. Upon receiving
the message, Murphy promptly telephoned the Portland police and
voluntarily came into Portland for questioning. Shortly after the
respondent's arrival at the station house, where he was met by
retained counsel, the police noticed a dark spot on the
respondent's finger. Suspecting that the spot might be dried blood,
and knowing that evidence of strangulation is often found under the
assailant's fingernails, the police asked Murphy if they could take
a sample of scrapings from his fingernails. He refused. Under
protest and without a warrant, the police proceeded to take the
samples, which turned out to contain traces of skin and blood
cells, and fabric from the victim's nightgown. This incriminating
evidence was admitted at the trial.
The respondent appealed his conviction, claiming that the
fingernail scrapings were the product of an unconstitutional search
under the Fourth and Fourteenth Amendments. The Oregon Court of
Appeals affirmed the conviction, 2 Ore.App. 251, 465 P.2d
, and we denied certiorari, 400 U.S. 944. Murphy then
commenced the present action for federal habeas corpus relief.
Page 412 U. S. 293
The District Court, in an unreported decision, denied the habeas
petition, and the Court of Appeals for the Ninth Circuit reversed,
461 F.2d 1006. The Court of Appeals assumed the presence of
probable cause to search or arrest, but held that in the absence of
an arrest or other exigent circumstances, the search was
at 1007. We granted certiorari, 409
U.S. 1036, to consider the constitutional question presented.
The trial court, the Oregon Court of Appeals, and the Federal
District Court all agreed that the police had probable cause to
arrest the respondent at the time they detained him and scraped his
fingernails. As the Oregon Court of Appeals said,
"At the time the detectives took these scrapings they knew:
"The bedroom in which the wife was found dead showed no signs of
disturbance, which fact tended to indicate a killer known to the
victim rather, than to a burglar or other stranger."
"The decedent's son, the only other person in the house that
night, did not have fingernails which could have made the
lacerations observed on the victim's throat."
"The defendant and his deceased wife had had a stormy marriage,
and did not get along well."
"The defendant had, in fact, been at his home on the night of
the murder. He left and drove back to central Oregon, claiming that
he did not enter the house or see his wife. He volunteered a great
deal of information without being asked, yet expressed no concern
or curiosity about his wife's fate."
2 Ore.App. at 259-260, 465 P.2d at 904. The Court of Appeals for
the Ninth Circuit did not disagree with the conclusion that the
police had probable cause to make an arrest, 461 F.2d at 1007, nor
Page 412 U. S. 294
It is also undisputed that the police did not obtain an arrest
warrant or formally "arrest" the respondent, as that term is
understood under Oregon law. [Footnote 1
] The respondent was detained only long enough
to take the fingernail scrapings, and was not formally "arrested"
until approximately one month later. Nevertheless, the detention of
the respondent against his will constituted a seizure of his
person, and the Fourth Amendment guarantee of freedom from
"unreasonable searches and seizures" is clearly implicated, cf.
United States v. Dionisio, 410 U. S. 1
Terry v. Ohio, 392 U. S. 1
392 U. S. 19
the Court said in Davis v. Mississippi, 394 U.
, 394 U. S.
"Nothing is more clear than that the Fourth Amendment was meant
to prevent wholesale intrusions upon the personal security of our
citizenry, whether these intrusions be termed 'arrests' or
the Court held that fingerprints obtained
during the brief detention of persons seized in a police dragnet
procedure, without probable cause, were inadmissible in evidence.
Though the Court recognized that fingerprinting "involves none of
the probing into an individual's private life and thoughts that
marks an interrogation or search," id.
at 394 U. S. 727
the Court held the station house detention in that case to be
violative of the Fourth and Fourteenth Amendments. "Investigatory
seizures would subject unlimited numbers of innocent persons to the
harassment and ignominy incident to involuntary detention,"
at 394 U. S.
The respondent in this case, like Davis, was briefly detained at
the station house. Yet here there was, as three courts have found,
probable cause to believe that
Page 412 U. S. 295
the respondent had committed the murder. The vice of the
detention in Davis
is therefore absent in the case before
us. Cf. United States v. Dionisio, supra.
The inquiry does not end here, however, because Murphy was
subjected to a search as well as a seizure of his person. Unlike
the fingerprinting in Davis,
the voice exemplar obtained
in United States v. Dionisio, supra,
or the handwriting
exemplar obtained in United States v. Mara, 410 U. S.
, the search of the respondent's fingernails went
beyond mere "physical characteristics . . . constantly exposed to
the public," United States v. Dionisio, supra,
410 U. S. 14
constituted the type of "severe, though brief, intrusion upon
cherished personal security" that is subject to constitutional
scrutiny. Terry v. Ohio, supra,
at 392 U. S.
We believe this search was constitutionally permissible under
the principles of Chimel v. California, 395 U.
stands in a long line of cases
recognizing an exception to the warrant requirement when a search
is incident to a valid arrest. Id.
at 395 U. S.
-762. The basis for this exception is that, when an
arrest is made, it is reasonable for a police officer to expect the
arrestee to use any weapons he may have and to attempt to destroy
any incriminating evidence then in his possession. Id.
395 U. S.
-763. The Court recognized in Chimel
the scope of a warrantless search must be commensurate with the
rationale that excepts the search from the warrant requirement.
] Thus, a
warrantless search incident to arrest, the Court held in
must be limited to the area "into which an
arrestee might reach." Id.
at 395 U. S.
Page 412 U. S. 296
Where there is no formal arrest, as in the case before us, a
person might well be less hostile to the police and less likely to
take conspicuous, immediate steps to destroy incriminating evidence
on his person. Since he knows he is going to be released, he might
be likely instead to be concerned with diverting attention away
from himself. Accordingly, we do not hold that a full
search would have been justified in this case
without a formal arrest and without a warrant. But the respondent
was not subjected to such a search.
At the time Murphy was being detained at the station house, he
was obviously aware of the detectives' suspicions. Though he did
not have the full warning of official suspicion that a formal
arrest provides, Murphy was sufficiently apprised of his suspected
role in the crime to motivate him to attempt to destroy what
evidence he could without attracting further attention. Testimony
at trial indicated that, after he refused to consent to the taking
of fingernail samples, he put his hands behind his back and
appeared to rub them together. He then put his hands in his
pockets, and a "metallic sound, such as keys or change rattling"
was heard. The rationale of Chimel,
circumstances, justified the police in subjecting him to the very
limited search necessary to preserve the highly evanescent evidence
they found under his fingernails, cf. Schmerber v.
California, 384 U. S. 757
On the facts of this case, considering the existence of probable
cause, the very limited intrusion undertaken incident to the
station house detention, and the ready destructibility of the
evidence, we cannot say that this search violated the Fourth and
Fourteenth Amendments. Accordingly, the judgment of the Court of
Page 412 U. S. 297
MR. JUSTICE WHITE joins the opinion of the Court, but does not
consider the issue of probable cause to have been decided here or
to be foreclosed on remand to the Court of Appeals where it has
never been considered.
Oregon defines arrest as "the taking of a person into custody so
that he may be held to answer for a crime." Ore.Rev.Stat. §
As the Court stated in Terry v. Ohio,
"our inquiry is a dual one -- whether the officer's action was
justified at its inception, and whether it was reasonably related
in scope to the circumstances which justified the interference in
the first place."
, 392 U. S.
MR. JUSTICE MARSHALL, concurring.
I join the opinion of my Brother STEWART.
Murphy's freedom of movement was unquestionably limited when the
police did not acquiesce in his refusal to permit them to take
scrapings from his fingernails. But that detention, although a
seizure of the person protected by the Fourth Amendment, did not
amount to an arrest under Oregon law. See
133.210. The police, understanding this, did not, for example, take
Murphy promptly before a magistrate after this detention, as state
law requires after an arrest. Id.
§ 133.550. [Footnote 2/1
] As we have said before,
"It is quite plain that the Fourth Amendment governs 'seizures'
of the person which do not eventuate in a trip to the station house
and prosecution for crime -- 'arrests' in traditional terminology.
It must be recognized that, whenever a police officer accosts an
individual and restrains his freedom to walk away, he has 'seized'
Terry v. Ohio, 392 U. S. 1
392 U. S. 16
(1968). See also id.
at 392 U. S. 19
16, 392 U. S. 26
Sibron v. New York, 392 U. S. 40
392 U. S. 67
Murphy argues, however, that the detention was unlawful because
the police did not satisfy "the general requirement that the
authorization of a judicial officer be obtained in advance of
detention," Davis v. Mississippi, 394 U.
, 394 U. S. 728
(1969). See also Terry v. Ohio,
Page 412 U. S. 298
at 392 U. S. 20
until the officer saw a dark spot under Murphy's thumbnail, and
remembered that he had seen lacerations on the throat of the
deceased, he had no reason to detain Murphy for the limited purpose
of taking fingernail scrapings. Then, when he brought to Murphy's
attention his interest in taking such scrapings, he was dealing
with a suspect alerted to the desire of the police to inspect his
fingernails. At that point, there was no way to preserve the
while a warrant was sought, and there was good
reason to believe that Murphy might attempt to alter the status
unless he were prevented from doing so. The police could
not assure the preservation of the evidence simply by placing
Murphy under close surveillance, because of the nature of the
evidence. And, for purposes of Fourth Amendment analysis, detaining
him while a warrant was sought would have been as much a seizure as
detaining him while his fingernails were scraped. If the Fourth
Amendment permits a stop-and-frisk when the police have specific
articulable facts from which they may infer that a person, who they
suspect is about to commit a crime, is armed and dangerous,
Terry v. Ohio, supra,
it also permits detention, where the
police have probable cause to arrest, [Footnote 2/2
] to take fingernail scrapings in the
circumstances of this case. [Footnote
Murphy's argument is, of course, a troublesome one, and, if the
police had done more than take fingernail
Page 412 U. S. 299
scrapings, I would be inclined to hold the search illegal. For,
as a general principle of the law of the Fourth Amendment, the
scope of a search must be strictly limited in terms of the
circumstances that justify the search. See, e.g., Terry v.
at 392 U. S. 19
Chimel v. California, 395 U. S. 752
(1969). When a person is detained but not arrested, the detention
must be justified by particularized police interests other than a
desire to initiate a criminal proceeding against the person they
detain. The police therefore cannot do more than investigate the
circumstances that occasion the detention. In this case, the police
limited their intrusion to precisely the area that led them to
restrict Murphy's freedom; he was not searched as extensively as he
might have been had an arrest occurred. Indeed, in my view, the
Fourth Amendment would have barred a more extensive search, for the
police had no reason at all to believe that Murphy had on his
person more evidence relating to the crime, or, in light of the
fact that this case involved a strangulation, a weapon that he
might use at the station house.
I realize that exceptions to the warrant requirement may be
established because of "powerful hydraulic pressures . . . that
bear heavily on the Court to water down constitutional guarantees,"
Terry v. Ohio, supra,
at 392 U. S. 39
(DOUGLAS, J., dissenting), and that those same pressures may lead
to later expansion of the exceptions beyond the narrow confines of
the cases in which they are established, Adams v.
Williams, 407 U. S. 143
407 U. S.
-162 (1972) (MARSHALL, J., dissenting). But I cannot
say that, in the precise circumstances of this case, the police
violated the Fourth Amendment in detaining Murphy for the limited
purpose of scraping his fingernails. I emphasize, as does the
opinion of the Court, that the search conducted incident to this
detention was extremely narrow in scope, and that its scope was
tied closely to the reasons justifying
Page 412 U. S. 300
the detention. On this understanding, I join the opinion of the
Thus, this case does not require us to determine whether the
police were required to obtain a warrant for Murphy's arrest at the
relevant time. Cf. Jones v. United States, 357 U.
, 357 U. S.
-500 (1958); Coolidge v. New Hampshire,
403 U. S. 443
403 U. S.
The Court of Appeals assumed that there was probable cause to
arrest, and I proceed on that assumption. I agree with MR. JUSTICE
WHITE that the question of probable cause to arrest is open on
MR. JUSTICE DOUGLAS suggests that the taking of fingernail
scrapings might violate the Fifth Amendment privilege against
self-incrimination. In my view, however, that privilege is confined
to situations in which the evidence could be secured by the State
only with the defendant's "affirmative cooperation," United
States v. Dionisio, 410 U. S. 1
410 U. S. 31
(1973) (MARSHALL, J., dissenting).
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins,
The Court today permits a search for evidence without an arrest
but under circumstances where probable cause for an arrest existed,
where the officers had reasonable cause to believe that the
evidence was on respondent's person, and where that evidence was
highly destructible. The Court, however, restricts the permissible
quest to "the very limited search necessary to preserve the highly
evanescent evidence they found under [respondent's]
While I join the Court's opinion, I do so with the understanding
that what the Court says here applies only where no arrest has been
made. Far different factors, in my view, govern the permissible
scope of a search incident to a lawful arrest.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST join, concurring.
In this case, the District Court and the Court of Appeals
entertained a habeas corpus attack upon a state court conviction on
the ground that the evidence seized in violation of the Fourth
Amendment had been wrongly admitted at the state trial. For the
reasons set forth in my concurring opinion in Schneckloth v.
p. 412 U. S. 250
I think a claim such as this is properly available in federal
habeas corpus only to the extent of ascertaining whether the
prisoner was afforded a fair opportunity to raise and have
adjudicated the question in state courts. The Court today, however,
reaches the merits of the respondent's Fourth Amendment claim, and,
on the merits, I join the Court's opinion.
Page 412 U. S. 301
MR. JUSTICE DOUGLAS, dissenting in part.
I agree with the Court that exigent circumstances existed making
it likely that the fingernail scrapings of suspect Murphy might
vanish if he were free to move about. The police would therefore
have been justified in detaining him while a search warrant was
sought from a magistrate. None was sought, and the Court now holds
there was probable cause to search or arrest, making a warrant
Whether there was or was not probable cause is difficult to
determine on this record. It is a question that the Court of
Appeals never reached. We should therefore remand to it for a
determination of that question.
The question is clouded in my mind because the police did not
arrest Murphy until a month later. It is a case not covered by
Chimel v. California, 395 U. S. 752
which the Court relies, for, in Chimel,
an arrest had been
As the Court states, Oregon defines arrest as "the taking of a
person into custody so that he may be held to answer for a crime."
Ore.Rev.Stat. § 133.210. No such arrest was made until a month
after Murphy's fingernails were scraped. As we stated in
Johnson v. United States, 333 U. S.
, 333 U. S. 15
5, "State law determines the validity of arrests without warrant."
The case is therefore on all fours with Davis v.
Mississippi, 394 U. S. 721
where a suspect was detained for the sole purpose of obtaining
fingerprints, but, at the time, the police were not detaining him
to charge him with the crime. Like the seizure in this case,
involved an investigative seizure. In
at 394 U. S. 727
as in Terry v. Ohio, 392 U. S. 1
392 U. S. 19
Court rejected the view that the Fourth Amendment does not limit
police conduct "if the officers stop short of something called a
technical arrest' or a `full-blown search.'"
Page 412 U. S.
The reason why no arrest of Murphy was made on the day his
fingernails were scraped creates a nagging doubt that they did not
then have probable cause to make an arrest and did not reach that
conclusion until a month later. Why was Murphy allowed to roam at
will, a free man, for the next month? The evolving pattern of a
conspiracy offense might induce the police to turn a suspect loose
in order to tail him and see what other suspects could be brought
into their net. But no such circumstances were present here.
What the decision made today comes down to, I fear, is that
"suspicion" is the basis for a search of the person without a
warrant. Yet "probable cause" is the requirement of the Fourth
Amendment, which is applicable to the States by reason of the
Fourteenth Amendment. Mapp v. Ohio, 367 U.
. Suspicion has never been sufficient for a
warrantless search, save for the narrow situation of searches
incident to an arrest as was involved in Chimel.
exception is designed (see Schmerber v. California,
384 U. S. 757
384 U. S.
-770) to protect the officer against assaults through
weapons within easy reach of the accused or to save evidence within
that narrow zone from destruction. However, this is a case where a
warrant might have been sought, but was not. It is therefore
governed by the rule that the rights of a person "against unlawful
search and seizure are to be protected even if the same result
might have been achieved in a lawful way." Silverthorne Lumber
Co. v. United States, 251 U. S. 385
251 U. S. 392
No warrant could have been issued by the police, for, as we held in
Coolidge v. New Hampshire, 403 U.
, 403 U. S. 453
a warrant must be issued by "the neutral and detached magistrate
required by the Constitution." And see Mancusi v. DeForte,
392 U. S. 364
392 U. S. 371
As stated in Johnson v. United States,
333 U.S. at
333 U. S.
"When the right of privacy must reasonably yield to the right of
Page 412 U. S. 303
as a rule, to be decided by a judicial officer, not by a
policeman or government enforcement agent."
In that case, the officers, smelling opium, asked for entrance,
which was given. On entry, discovering that the accused was the
sole occupant, the police arrested her . "Thus, the Government is
obliged to justify the arrest by the search and at the same time to
justify the search by the arrest. This will not do." Id.
at 333 U. S.
It will not do here either. As Boyd v. United States,
116 U. S. 616
stated, the Fourth Amendment is closely related to the
Self-Incrimination Clause of the Fifth. *
search on suspicion, today sustained, gives the police evidence
otherwise protected by the Self-Incrimination Clause of the Fifth
Amendment. It was in that regard that the Court in Boyd
said: "[T]he Fourth and Fifth Amendments run almost into each
at 116 U. S. 630
And that Court went on to say:
"For the 'unreasonable searches and seizures' condemned in the
Fourth Amendment are almost always made for the purpose of
compelling a man to give evidence against himself, which, in
criminal cases, is condemned in the Fifth Amendment; and compelling
a man 'in a criminal case to be a witness against himself,' which
is condemned in the Fifth Amendment, throws light on the question
as to what is an 'unreasonable search and seizure' within the
meaning of the Fourth Amendment. And we have been unable to
perceive that the seizure of a man's private books and papers to be
used in evidence against him is substantially different from
compelling him to be a
Page 412 U. S. 304
witness against himself. We think it is within the clear intent
and meaning of those terms."
at 116 U. S.
The same can be said of incriminating evidence found under a
suspect's fingernails. See Rochin v. California,
342 U. S. 165
Moreover, the Fourth Amendment guarantees the right of the people
to be secure "in their persons." Scraping a man's fingernails is an
invasion of that privacy, and it is tolerable, constitutionally
speaking, only if there is a warrant for a search or seizure issued
by a magistrate on a showing of "probable cause" that the suspect
had committed the crime. There was time to get a warrant; Murphy
could have been detained while one was sought; and that detention
would have preserved the perishable evidence the police sought. A
suspect on the loose could get rid of it; but a suspect closely
detained until a warrant is obtained plainly could not.
Our approval of the shortcut taken to avoid the Fourth and Fifth
Amendments may be typical of this age. Erosions of constitutional
guarantees usually start slowly, not in dramatic onsets. As stated
"illegitimate and unconstitutional practices get
their first footing . . . by silent approaches and slight
deviations from legal modes of procedure." 116 U.S. at 116 U. S.
The issue of probable cause should be considered by the Court of
Appeals. On the record before us and the arguments based on it, I
cannot say there was "probable cause" for an arrest and for a
search, since the arrest came after a month's delay. The only
weight we can put in the scales to turn suspicion into probable
cause is Murphy's conviction by a jury based on the illegally
obtained evidence. That is but a simple way of making the end
justify the means -- a principle wholly at war with our
constitutionally enshrined adversary system.
Page 412 U. S. 305
* My Brother MARSHALL says that this privilege is confined to
cases where the evidence can be obtained only with the defendant's
cooperation. But that extends even the boundaries set by
Schmerber v. California,
involving forced giving of blood,
384 U. S. 757
384 U. S. 761
with which my Brother MARSHALL disagrees. United States v.
Dionisio, 410 U. S. 1
MR. JUSTICE BRENNAN, dissenting in part.
Without effecting an arrest, and without first seeking to obtain
a search warrant from a magistrate, the police decided to scrape
respondent's fingernails for destructible evidence. In upholding
this search, the Court engrafts another, albeit limited, exception
on the warrant requirement. Before we take the serious step of
legitimating even limited searches merely upon probable cause --
without a warrant or as incident to an arrest -- we ought first be
certain that such probable cause in fact, existed. Here, as my
Brother DOUGLAS convincingly demonstrates "[w]hether there was or
was not probable cause is difficult to determine on this record."
at 412 U. S. 301
And, since the Court of Appeals did not consider that question, the
proper course would be to remand to that court so that it might
decide in the first instance whether there was probable cause to
arrest or search. There is simply no need for this Court to decide,
upon a disputed record and at this stage of the litigation, whether
the instant search would be permissible if probable cause