[9] Other scholars, including Nita A. Farahany, Benjamin Holley, and John G. New, have suggested courts may use the ruling in Schmerber to justify the use of mind reading devices against criminal suspects.

[11] In the 1950s, the Supreme Court of the United States issued two key rulings clarifying the constitutionality of physical intrusions into the human body by police and other government agents.

In Rochin v. California, police officers broke into the home of an individual suspected of selling narcotics and observed him place several small objects into his mouth.

[13] A unanimous Supreme Court held the involuntary stomach pump was an unlawful violation of substantive due process because it "shocked the conscience", and was so "brutal" and "offensive" that it did not comport with traditional ideas of fair play and decency.

[24] On the night of November 12, 1964, Armando Schmerber and a passenger were driving home after drinking at a tavern and bowling alley in the San Fernando Valley region of Los Angeles, California, when their car skidded off the road and struck a tree.

Relying upon the Court's holding in Breithaupt v. Abram, he concluded that the police did not violate Schmerber's Fifth Amendment right against self-incrimination because the extraction and chemical analysis of the blood sample did not involve "even a shadow of testimonial compulsion.

[39] However, the involuntary blood draw was justified under the Fourth Amendment's exigent circumstances exception because if the officers had waited to receive a search warrant, evidence of intoxication would have been lost through the body's natural metabolism of alcohol in the bloodstream.

Justice Harlan disagreed with the Court's ruling in Miranda and even stated that the case "represents poor constitutional law and entails harmful consequences for the country at large.

Chief Justice Earl Warren reiterated his dissenting opinion in Breithaupt v. Abram, where he argued that involuntary blood samples violate substantive due process.

[46] He wrote, "[b]elieving with the Framers that these constitutional safeguards broadly construed by independent tribunals of justice provide our best hope for keeping our people free from governmental oppression, I deeply regret the Court's holding.

In 1973, the Court ruled in Cupp v. Murphy that the police were permitted to extract a tissue sample from underneath a suspect's fingernails to recover "evanescent" physical evidence.

[51] The Court applied its previous holding in Schmerber to conclude that the surgery would constitute an unreasonable search under the Fourth Amendment and that a crucial factor for evaluating any bodily intrusion "is the extent to which the procedure may threaten the safety or health of the individual.

[65] States that recognized this per se exigency argued that "[o]nce police arrest a suspect for drunk driving, each passing minute eliminates probative evidence of the crime.

[68] Instead, the court affirmed the basic principle from Schmerber that absent "an emergency that justifie[s] acting without a warrant," police may not conduct warrantless blood testing on suspects.

"[74] Anne Marie Schubert has also argued that Schmerber served as the genesis for a long line of Supreme Court cases ordering the compelled production of physical evidence.

[82] E. John Wherry, Jr., former Dean of the University of Orlando School of Law, wrote that "[b]lindly following Schmerber as authorization for all non-consensual blood seizure for forensic purposes is, in this day and age, an outrage.

[84] Other scholars have expressed concern that the Court's decision to exclude physical evidence from protections against self-incrimination may one day lead to the use of mind reading devices when prosecuting criminal suspects.

[86] Additionally, in an article in the journal Developments in Mental Health Law, Benjamin Holley suggested that "neurotechnological lie detection" could be used in criminal prosecutions, as long as a suspect's words are not "linked with the physical manifestations sought to be introduced at trial.

"[87] Likewise, in an article in the Journal of Legal Medicine, John G. New suggested that non-testimonial evidence gathered from electroencephalography or magnetic resonance imaging may be admissible to demonstrate a suspect's thoughts.