permitting entrance and literally millions of us have voluntarily gone through the same, though a longer, routine, in becoming blood donors. Likewise, we note that a majority of our States have either enacted statutes in some form authorizing tests of this nature or permit findings so obtained to be admitted in evidence. We therefore conclude that a blood test taken by a skilled technician is not such 'conduct that shocks the conscience".
To quote the above is to distinguish Breithaupt from the instant case. For the swabbing of the penis by law enforcement officers is by no means standard operating procedure for those in any walk of life. The use of force by police officers to compel an individual to submit to such an invasion of his privacy is certainly conduct which 'shocks the conscience' and is highly 'offensive'. It is the Court's view that Rochin and Breithaupt read together require the conclusion that were this a state prosecution and the defendant protected by the due process clause of the Fourteenth Amendment, his rights would have been violated by the actions of the officers in this case.
However, the standard to be applied in this case is the due process clause of the Fifth, not the Fourteenth, Amendment.
The due process clause of the Fourteenth Amendment, as applied by the Supreme Court, does not serve as the basic protection of the rights of defendants in State criminal trials. That function is reserved to the States.
The due process clause as applied to state cases by the Supreme Court serves only to provide a check on state action, to prevent convictions based upon conduct which 'shocks the conscience', which is 'offensive' or 'brutal'.
However, due process under the Fifth Amendment, along with the other guarantees of the Bill of Rights, when applied by federal courts, does serve as the basic protection of the citizen against unjust federal action.
In such cases there is neither an intervening state court system nor an intervening state constitution. It is, therefore, the Court's view that Fifth Amendment due process must be given an even broader connotation than Fourteenth Amendment due process. However, it is unnecessary here to discuss at any greater length the nature of the Fifth Amendment provision. Suffice it to say that even if the Court were incorrect in its view that the forceful extraction of the evidence here involved would be violative of the Fourteenth Amendment were this state action, the Court would still conclude that, as federal action, it violates the Fifth Amendment.
The Court would like to add that whether or not it is the force involved which renders the obtaining of evidence of this nature 'offensive' when a state prosecution is under federal scrutiny,
that element cannot be said to be determinative in cases involving federal action. For, basically, what is 'offensive' herein is that the suspect was compelled by police authorities to submit to the tests involved. To say otherwise is to say that hardened criminals willing to risk a struggle with the police could successfully overcome the right of law enforcement officers to obtain evidence, while less aggressive suspects, whose resistance stops at the use of force, could be compelled to submit to the identical tests. If such a rule is necessary because of the Supreme Court's asserted limited jurisdiction to review state prosecutions, it is not necessary for the purposes of federal courts determining the constitutionality of actions of federal officers.
With the development of new techniques of law enforcement and the progress of scientific knowledge, courts must be constantly alert to the problem of measuring new fact situations against the strict constitutional mandate that the rights of all citizens be guarded. For it is only these rights which stand between the citizens of any country and the police state -- a phenomenon not unknown to today's world. In guarding these rights courts are not concerned with the innocence or guilt of the particular defendant, for our system of justice provides that no man may be convicted except by due process of law. But far more is at stake here than the rights of the particular defendant. For the preservation of his rights is of vital importance to all the rest of the community, not only because we are here determining what kind of police procedures are appropriate under our form of government, but because the future rights of all citizens, including the innocent, are established hereby. When courts strike down evidence acquired in a manner held to be unconstitutional, they make available to all law enforcement officers a guide to future conduct. To uphold the challenged evidence in the instant case would be to say that citizens suspected of future crimes may properly be subjected to the same treatment the defendant received in this case. To strike down the evidence is to say that citizens suspected of crimes in the future may not be dealt with in so offensive a manner.