                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-29-2004

Coddington v. Evanko
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3850




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"Coddington v. Evanko" (2004). 2004 Decisions. Paper 184.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/184


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                                               NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     ___________

                         No. 03-3850
                         ___________

                 WILLIAM E. CODDINGTON,
                                Appellant
                             v.

     PAUL EVANKO, in his capacity as Commissioner of the
   Pennsylvania State Police; FRED STREET, in his capacity as
  Lieutenant of Pennsylvania State Police; MARY POWELL, in
    her capacity as Lieutenant of the Pennsylvania State Police;
 BYRON LOCKE, in his capacity as Sergeant of the Pennsylvania
State Police; CHRISTOPHER WALSH, in his capacity as Corporal
   of the Pennsylvania State Police; DARRELL G. OBER, in his
       capacity as a Captain of the Pennsylvania State Police;
DONALD T. CARNAGHAN, in his capacity as a Lieutenant of the
                      Pennsylvania State Police

                         ___________

  APPEAL FROM THE UNITED STATES DISTRICT COURT
   FOR THE WESTERN DISTRICT OF PENNSYLVANIA

                      (D.C. No. 00-cv-2340)
        District Judge: The Honorable Robert J. Cindrich
                          ___________

                   ARGUED MAY 12, 2004

BEFORE: NYGAARD, M cKEE, and CHERTOFF, Circuit Judges.


                    (Filed October 29, 2004)
                          ___________
Eric C. Stoltenberg, Esq. (Argued)
Lightman & Welby
220 Grant Street, 6th Floor
Pittsburgh, PA 15219
              Counsel for Appellant


Kemal A. Mericli, Esq. (Argued)
Office of Attorney General of Pennsylvania
564 Forbes Avenue, 6 th Floor
Manor Complex
Pittsburgh, PA 15219
              Counsel for Appellees

                                       ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

              In this appeal, we must determine whether the District Court erred by

concluding that William Coddington’s Fourth Amendment rights were not violated when

his superiors in the Pennsylvania State Police required that he provide a hair sample for a

drug test. We will affirm the District Court because, as we held in In re Grand Jury

Proceedings (Appeal of Mills), the cutting of one’s hair for the purpose of obtaining a

sample does not constitute a search under the Fourth Amendment. 686 F.2d 135, 137-40

(3d Cir. 1982).

                                             I.




                                             2
              Coddington, a Pennsylvania State Trooper, reported for duty on April 5,

1999.1 At the beginning of his shift, he was told by several of his superior officers that

they had received confidential information that he was using cocaine. As a result of this

information, Coddington was ordered to submit to the collection of a hair sample so that it

could be tested for the presence of illegal drugs.

              According to Coddington, his hair was initially cut by Sergeant Byron

Locke in a crime room at a Pennsylvania State Police station. Locke cut hair from

Coddington’s head, neck, and a small section in the area of his left shoulder blade. After

Locke finished, Coddington was informed that additional hair had to be taken and he was

given the option of going to a barber shop, a salon or the home of a retired state police

trooper whose wife, a former beautician, could take the additional hair sample.

Coddington opted to go to the private home and, once there, the additional hair was taken.

The test results on the hair came back negative for cocaine or any other illegal drug.

              Coddington sued the various individual appellees in their capacities as

employees of the Pennsylvania State Police. After an initial motion to dismiss was

granted with respect to three counts in Coddington’s complaint, the District Court

permitted Coddington to continue his suit on two remaining counts. In one of the

remaining counts, Coddington alleges that the appellees violated his Fourth Amendment




1.      We summarize the facts of this case viewing the record in a light most favorable
to Coddington. See Fed. R. Civ. Proc. 56(c).

                                              3
rights by taking the hair sample without reasonable suspicion. In the other, he claims that

the manner in which the appellees took his hair sample violated his Fourth and Fourteenth

Amendment rights to privacy.

              On cross motions for summary judgment, the Magistrate Judge issued a

report and recommended that the District Court grant the appellees’ motion for summary

judgment as to both of the remaining counts. The District Court adopted this report and

recommendation as its opinion and granted the appellees’ motion. It is from this order

that Coddington appeals.

                                             II.

              We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and

exercise plenary review over the District Court’s decision on a motion for summary

judgment. Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003). Summary judgment is

appropriate when, viewed in a light most favorable to the non-moving party, the record

“show[s] that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. Proc. 56(c).

                                            III.

              The District Court concluded that the hair sample taken from Coddington

did not implicate his Fourth Amendment rights. It based this decision on two cases:

Mills, 686 F.2d at 137-40 and Drieble v. City of Milwaukee, 298 F.3d 622, 638 (7th Cir.

2002).



                                             4
              In Mills, we instructed that the key question in addressing whether the

taking of a hair sample was a “search” under the Fourth Amendment was whether “the

compulsion to produce facial and scalp hair samples . . . is more akin to fingerprinting

and voice and handwriting exemplars which have been held outside the ambit of Fourth

Amendment protection or whether it is more closely aligned with the extraction of blood

samples or fingernail scrapings which have been subjected to Fourth Amendment analysis

as to reasonableness.” Id. at 139. We resolved this question with the following holding:

              We conclude that there is no greater expectation of privacy
              with respect to hair which is on public display than with
              respect to voice, handwriting or fingerprints. In the case of
              blood samples and fingernail scrapings, the bodily seizure
              requires production of evidence below the body surface which
              is not subject to public view. In the case of facial and head
              hair, as well as fingerprints, voice and handwriting exemplars,
              the evidence is on public view.


Id. Mills’ holding is clear that the taking of hair is not subject to restrictions imposed by

the Fourth Amendment.

              In an attempt to avoid this precedent, Coddington argues that the manner in

which his hair was collected was sufficiently unreasonable to trigger the Fourth

Amendment’s protections against “intrusions which are . . . made in an improper

manner.” Schmerber v. California, 384 U.S. 757, 768 (1966). In support of this

argument, he relies on two discrete portions of Mills. First, addressing the analogy



                                              5
between the cutting of hair to get a hair sample and the amputation of a finger to get a

finger print, the majority in Mills stated, “the cutting of a few strands of hair is hardly

akin to the amputation of a finger. Nor is it the sort of ‘annoying, frightening, and

perhaps humiliating experience’ involved in the policy pat-down in Terry v. Ohio, 392

U.S. [1, 25 (1968)].” Mills, 686 F.2d at 139.

              Second, Coddington seizes on the limitation Mills placed on its holding

regarding the Fourth Amendment’s restrictions on intrusions that are made in an improper

manner. “No issue as to the manner of sampling is raised . . . [a] snip of hair is often

adequate for identification purposes.” Id. at 139-40.

              Based on these statements in Mills, Coddington argues that determining

whether a hair sample implicates the Fourth Amendment’s protections is a case-by-case

determination that must involve an analysis of the method used to obtain the hair sample.

According to Coddington, when the appellees took noticeable quantities of hair from his

head, neck and back, they infringed on his Fourth Amendment rights because their

method of hair sampling was improper.

              Coddington’s argument misapprehends the limitations contained in Mills.

Mills’ statements regarding the method of obtaining hair samples expressly dealt with the

import of its holding on the taking of hair root samples. The exact language from Mills,

including relevant portions excised by Coddington in his brief, states:




                                               6
              No issue as to the manner of sampling is raised in this case,
              nor has there been any suggestions that the hair sample
              requested by the grand jury sought the hair root w ith
              which [the concurring judge] is concerned. A snip of hair
              is often adequate for identification purposes. We need not
              decide whether the result might be different w ere the hair
              root requested, since the hair root, unlike the exposed
              hair, is a living structure.

Id. (internal citations omitted)(emphasis added).

              Mills was clear in holding that there is a difference between the hair root

and the exposed portion of hair. This difference is extremely important in a Fourth

Amendment context because, while the exposed portion of hair is above the body surface,

on public view and not deserving of Fourth Amendment protection, the hair root, like

blood and fingernail scrapings, is “below the body surface . . ., not on public view” and

may well be deserving of such protection. Id. at 139. We need not address the issue of

whether the hair root is entitled to more protection than the exposed hair, however,

because Coddington is not alleging that the appellees took hair roots, or any other portion

of the hair that was below his body surface. Instead, he is claiming that his hair was

removed from his head, neck and back in such a way that was degrading and left him with

bare spots on his scalp.

              Moreover, we decline to take Coddington’s invitation to read Mills as

requiring courts, in every case, to examine the amount of hair taken from an individual’s

head. Coddington has presented no evidence that his hair sample was taken in a way that

was intentionally degrading or humiliating or that the manner in which it was taken was

                                             7
sufficiently improper. Cf. Bouse v. Bussey, 573 F.2d 548, 550-51 (9th Cir. 1977) (holding

that the forcible pulling of pubic hair from a prisoner was a search under the Fourth

Amendment). The fact that Coddington had very short hair on his head, requiring the

police officers and the beautician to shave some of his hair to the skin in order to obtain a

sufficient quantity for the drug test, does not alter the fact that the only hair that was taken

was above the body surface and on public display, and that hair was taken in a proper

manner.2

              Accordingly, the hair sample Coddington was obligated to produce does not

implicate the Fourth Amendment’s protections and the District Court was correct in

granting summary judgment for the appellees. We will affirm.




2.       Because we will affirm the District Court’s order based on Mills, we do not reach
the issue of whether the District Court also correctly applied Drieble.

                                               8
