The opinion of the court was delivered by: I. LEO GLASSER
GLASSER, United States District Judge:
Defendant Patrick Nicolosi was indicted by a federal grand jury. He is charged with sending threatening communications through the U.S. mails in violation of 18 U.S.C. § 876. On April 5, 1995 the Government obtained a "so ordered" subpoena from this court directing the defendant to provide samples of his saliva. On April 7, 1995, defendant moved to quash the subpoena on the grounds that the Government must first obtain a search warrant to conform to the requirements of the Fourth Amendment to the United States Constitution. The issue before this court is whether the Fourth Amendment's principles which regulate governmental searches and seizures apply to the ability of the Government to obtain a saliva sample.
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation.
Supreme Court "precedents teach that where, as here, the Government seeks to obtain physical evidence from a person, the Fourth Amendment may be relevant at several levels. See, e.g., United States v. Dionisio, 410 U.S. 1, 8, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973). The initial detention necessary to procure the evidence may be a seizure of the person, Cupp v. Murphy, 412 U.S. 291, 294-295, 36 L. Ed. 2d 900, 93 S. Ct. 2000 (1973); Davis v. Mississippi, 394 U.S. 721, 726-727, 22 L. Ed. 2d 676, 89 S. Ct. 1394 (1969), if the detention amounts to a meaningful interference with his freedom of movement. INS v. Delgado, 466 U.S. 210, 215, 80 L. Ed. 2d 247, 104 S. Ct. 1758 (1984)... Obtaining and examining the evidence may also be a search, see Cupp v. Murphy, supra, at 295...if doing so infringes an expectation of privacy that society is prepared to recognize as reasonable, see, e.g., California v. Greenwood, 486 U.S. 35, 43, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988)..." Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 616, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1988) (citations omitted).
It should be noted here that Fourth Amendment doctrine contemplates two possible categories of searches: (1) Those that can only be executed pursuant to the issuance of a warrant by a judicial officer, and (2) those that may be permitted without a warrant but must be based upon probable cause to believe that the person to be searched has violated the law, New Jersey v. T.L.O., 469 U.S. 325, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985), or, when the balance of interests precludes insistence upon a showing of probable cause, a showing of "some quantum of individualized suspicion." See U.S. v. Martinez-Fuerte, 428 U.S. 543, 560, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976).
The appropriate precedent with which to begin this discussion is Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966).
There, the Court addressed the ability of the Government to obtain a blood sample for evidence of intoxication. Schmerber was taken from the scene of an automobile accident to a hospital for treatment. After a police officer smelled alcohol on his breath, Schmerber was placed under arrest for driving while intoxicated. Over his objection, a blood sample was drawn from Schmerber at the direction of the police officer. In appealing his conviction for drunk driving, Schmerber contended, inter alia, that the extraction of the blood sample violated his Fourth Amendment rights.
In addressing this contention, the Supreme Court observed that "the overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State." 384 U.S. at 767.
The Court held that the compulsory administration of blood tests "plainly constitute searches of 'persons'" within the meaning of the Fourth Amendment, and recognized the special sensitivity required with regard to allowing the invasion of a person's body. Schmerber, Id., at 767. The Court noted, at pg. 770:
Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned....The importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence is indisputable and great.
The Court went on to conclude that the "special facts" of the case rendered the securing of Schmerber's blood sample without a warrant permissible under Fourth Amendment principles. Those facts were the evanescent nature of the evidence and its being obtained incident to a lawful arrest made upon probable cause. Id., at 770-771. After holding that the blood sample was obtainable without a warrant, the Court determined that "the test chosen to measure [his] blood ...