Talk:Schmerber v. California

Article Overhaul
Hi everyone! I am in the process of overhauling and expanding this article. I plan to return in the next few days to add new sections, including a discussion of the history of the exclusionary rule and a section about subsequent developments. Notecardforfree (talk) 00:11, 29 June 2015 (UTC)
 * Regarding mind reading: Is it non-intrusive? If so, how do you distinguish it from making an infra-red scan of an apartment to see if heat lamps are in use inside for growing marijuana? Would you make an expectation of privacy argument? Not my field...Just wondering PraeceptorIP (talk) 19:58, 6 October 2015 (UTC)
 * , to answer your first question, I think it depends what you mean by "intrusive." I'm not an expert in this area of science, but my understanding is that most brain scanners (e.g, an MRI) do not enter or penetrate the human body. However, a brain scan may be "intrusive" in the sense that it could reveal thoughts or other medical information that would not have been discovered were it not for the technology. In that sense, an MRI may be just as "intrusive" as a machine that can look through the walls of a home. As for your second question, I've never really considered the intersection between Schmerber's protections against warrantless intrusions into the body and Kyllo's protections against thermal scans of the home. I think there is definitely an interesting overlap between the cases. Just as the home has been recognized as an area of "special significance" in Fourth Amendment jurisprudence, I think the human body is another place worthy of special protection. One of the concerns in Kyllo was that the thermal scanners could potentially reveal "intimate details" about activity in the home, and I think the same concerns are present for brain scans as well, which may inadvertently reveal deep, dark secrets or other intimate details. In the context of the Fifth Amendment, I don't think there have been any cases that have held that information from brain scans is "testimonial," but I don't think it is entirely outside the realm of possibility that we will one day have machines that can reveal thoughts. I'll have to think more about Kyllo's intersection with Schmerber ... this may be a good subject for a law review article sometime in the future. -- Notecardforfree (talk) 23:00, 6 October 2015 (UTC)