Photographing defendant’s face with ultraviolet light shining on it is not a search

Photographing defendant’s face to determine what type of “mace” he was sprayed with by the officer was not an illegal search. The photograph put the lie on the defendant’s story, and he was prosecuted for assault on an officer. Williams v. State, 2008 Ala. Crim. App. LEXIS 81 (April 4, 2008):

Professor LaFave cites Commonwealth v. DeWitt, 314 A.2d 27 (1973), as illustrative of those cases in which courts have determined that use of an ultraviolet light in such instances does not constitute a search. In that case, customs agents found hashish hidden in a table with a false top, which had been shipped into the United States from overseas. The agents treated the hashish with fluorescent grease, repackaged it, and allowed it to be delivered. Agents then went to the address where the delivery had been made to execute a warrant for the hashish. While there, they passed an ultraviolet light over the hands of the defendants and learned that they had handled the hashish. Just as in the instant case, the defendants claimed that use of the ultraviolet light constituted an illegal search. The Pennsylvania Superior Court disagreed and wrote as follows:

“[D]efendants had no reasonable expectation of privacy as to the presence of foreign matter on their hands independent of the expectation of the privacy of their premises, which had been legitimately invaded by the police. The grease may be compared to a physical characteristic, such as a fingerprint or one’s voice, which is ‘constantly exposed to the public.’, 410 U.S. 1, 14, 93 S.Ct. 764, 35 L.Ed. 2d 67 (1973). The Fourth Amendment provides no protection for what ‘a person knowingly exposes to the public.’ Katz v. United States, [389 U.S. 347] at 351 [(1967)]…. It is true that the grease could not be detected with the naked eye, but then, neither may a fingerprint be examined until there has been an application of ink. Furthermore, the examination was both limited and controlled, affording no opportunity to learn any information other than that specifically sought: Have the person’s hands been in contact with the treated contraband? In this respect, the examination was more circumscribed than any eavesdropping, electronic surveillance, long-distance viewing with binoculars, or even the use of a flashlight. Also, it involved no personal indignities or physical discomfort, and was neither annoying, frightening, or humiliating. Terry v. Ohio, 392 U.S. 1, 25, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968).

“In these circumstances the use of the ultraviolet light to examine defendants’ hands did not amount to a search. It may well be that in other circumstances an examination by ultraviolet light would amount to a search.”

DeWitt, 314 A.2d at 30-31. See also United States v. Ukomadu, 236 F.3d 333, 338 (6th Cir. 2001) (citing with approval United States v. Richardson, 388 F.2d 842, 845 (6th Cir. 1968) (holding “[w]e do not regard the examination of appellant’s hands under the ultraviolet light as a search within the meaning of the Fourth Amendment”)); United States v. Williams, 902 F.2d 678, 680-81 (8th Cir. 1990) (an ultraviolet light examination does not constitute a search for purposes of the Fourth Amendment); Williams v. City of Lancaster, 639 F.Supp. 377, 682 (E.D. Pa. 1986); and United States v. DeMarsh, 360 F.Supp. 132, 137 (E.D. Wis. 1973).