A. The Warrant Is Unconstitutional Because It Authorizes A Search For And The Seizure Of Items That Are Not Evidence Of Any Crime.

The seizure of Mr. *Is blood is unquestionably a seizure under the Fourth Amendment. Barlow v. Ground, 943 F.2d at 1137 (citing Schmerber v. California, 384 U.S. at 766-68). Because the instant application for a search warrant involves a bodily intrusion, a heightened standard is applicable. Winston v. Lee, 470 U.S. 753, 759 (1985). Indeed, as a result of this heightened standard, such an intrusion may be unreasonable even if it might produce evidence of a crime. Id. Moreover, application of the heightened standard set forth in Winston v. Lee is particularly appropriate here where the stigma attached to infection by HIV is so severe. See generally Note, Compulsory AIDS Testing Of Individuals Who Assault Public Safety Officers: Protecting The Police Or The Fourth Amendment? (hereinafter "Compulsory Testing"), 38 Wayne L. Rev. 461, 479 n.119-24 (1991).

The Fourth Amendment authorizes the issuance of a search warrant upon a showing of probable cause to believe that (1) an offense has been committed and (2) that evidence, fruits or instrumentalities of the offense can be found at the place to be searched. See generally Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294 (1967). In other words, there must be "a fair probability that contraband or evidence of a crime will be found in a specific place." Illinois v. Gates, 462 U.S. 213, 238 (1983) .

More specifically, it is reasonable, within the terms of the Fourth Amendment, to conduct otherwise permissible searches for the purpose of obtaining evidence which would aid in apprehending and convicting criminals. The requirements of the Fourth Amendment can secure the same protection of privacy whether the search is for mere evidence" or for fruits, instrumentalities or nexus--automatically provided in the case of fruits, instrumentalities or contraband--between the item to be seized and criminal behavior. Thus in the case of mere evidence," probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. Id. at 306-07.

Thus, in order to justify a search, the government must show a nexus between the item to be seized and the criminal behavior. Id. This nexus must take the form of a showing that "the evidence sought will aid in a particular apprehension or conviction." Id.

Because the government has not -- and cannot -- show that Mr. * could have infected either of the Border Patrol agents, the government cannot meet the nexus requirement articulated in Hayden.HIV is "transmitted only through the exchange of semen or cervical or vaginal secretions during sexual contact, from transfusions of blood products that have been contaminated with the virus, by the shared use of hypodermic needles that have been contaminated, and between an infected pregnant woman and her fetus."

Barlow, 943 F.2d at 1138 (quoting Green, "The Transmission of AIDS," in AIDS and the Law 28-31 (H. Dalton & S. Burris eds. 1987)). Accord, United States v. Moore, 846 F.2d 1163, 1168 (8th Cir. 1988) ("[Tlhere are no well-proven cases of AIDS transmission by a bite; and . . . contact with saliva has never been shown to transmit the disease; . . . on one case a person who had been deeply bitten by a person with AIDS tested negative several months later."); Thomas v. Atascadero Unified School Dist., 662 F. Supp. 376, 380 (C.D. Cal. 1986) ("The overwhelming weight of medical evidence is that the AIDS virus is not transmitted by human bites, even bites that break the skin."). Indeed, as of the time that Barlow was written, "[o]f 85,000 AIDS cases documented, none have resulted from a bite by an infected person." Id. (citation omitted).

There is substantial agreement with Barlow's assessment of the likelihood of transmission through the saliva passed in a biting incident. "Although small traces of the HIV virus have been found in human saliva, medical experts do not consider saliva to be a medically-significant source of infection." Comment, The Fourth Amendment's Challenge To Mandatory AIDS Testing Of Convicted Sexual Offenders -- Has The AIDS Virus Attacked Our Constitutional Right To Privacy?, 4 Seton Hall Const. L.J. 279, 285 (1993) (citing AIDS Law Today A New Guide For The Public, 21 (Scott Burris et al. eds., 1992)). Indeed, in the challenge to California's mandatory testing law, experts for all parties "were essentially in agreement that the risk of HIV saliva transmission was, as variously phrased, 'extremely low,' 'remote,' 'exceedingly low,' 'clearly remote' or 'highly remote."' Johnetta J. v. Municipal Court, 218 Cal. App. 3d 1255, 1268, 267 Cal. Rptr. 666 , 672 (1990).

Finally, counsel has reviewed the results of a Nexus search of news articles referring to transmission of HIV in cases involving human bites. The most recent information available indicates that there are no documented cases of HIV transmission by virtue of contact with saliva during a human bite. World wide there are only two suspected cases of HIV infection being transmitted by a human bite. Both of these, however, involve bites in which the assailant was bleeding in the mouth as well as an allegation that the victim's skin was broken. Here, there is no indication in the application that Mr. * was bleeding in his mouth.

In face of a solid wall of scientific thought indicating that the chance of infection is, at most, remote, and, most likely, non-existent, the government provided Magistrate Judge McKee with absolutely no evidence to the contrary. In short, they failed utterly even to attempt to establish the constitutionally mandated "nexus" articulated in Hayden.

As a practical matter, the government must show that there is a "fair probability" that the results of an analysis Mr. *Is blood will result in the recovery of "evidence of a crime." Illinois v. Gates, 462 U.S. at ___. But if the chance of transmission of HIV is "'extremely low,' 'remote,' 'exceedingly low,' 'clearly remote,' or 'highly remote,"' Johnetta J. v. Municipal Court, 218 Cal. App. 3d at 1268, 267 Cal. Rptr. at 672, the government simply cannot show a "fair probability" that Mr. *Is HTV status is evidence of anything; the government cannot show that there is a "fair probability" that a "highly remote" event actually occurred. Cf. Note, Compulsory Testing, 38 Wayne L. Rev. at 483-84 ("When the possibility of transmission is medically insignificant, the intrusion on the assailant's fourth amendment privacy interests should outweigh the state's interests in conducting HIV tests"). This inability, when evaluated in light of the heightened standard applicable to the proposed intrusion, Winston v. Lee, 470 U.S. at 759, compels the conclusion that the warrant should be quashed.

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