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Another look at Schmerber

Missouri v. McNeely presented a simple issue:  can the cops, without a warrant, order hospital personnel to draw the defendant's blood for use in a potential drunk driving prosecution?  Here's a tip:  when the announcement of the Court's decision begins,

SOTOMAYOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and IV, in which SCALIA, KENNEDY, GINSBURG, and KAGAN, JJ., joined, and an opinion with respect to Parts II-C and III, in which SCALIA, GINSBURG, and KAGAN, JJ., joined. KENNEDY, J., filed an opinion concurring in part. ROBERTS, C. J., filed an opinion concurring in part and dissenting in part, in which BREYER and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion

you know that the answer isn't nearly as simple as the question.  Of course, you guys pay me the big bucks to parse through all this, so let's take a look at the Court's decision last week.

Back in 1966, the Court had held in Schmerber v. California that a blood test was a search within the meaning of the 4th Amendment.  The Court nonetheless upheld the test there, despite the lack of a warrant, because the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence."  In McNeely, the government was trying to double down on that proposition:  their claim was that the body's natural metabolization of alcohol is per se an exigency, dispensing with the need for a warrant in every case where a defendant is arrested for drunk driving.

On the surface, it's an easy call.  The rule is that a warrantless search is unreasonable unless it falls into some "well-recognized" exception to the warrant requirement.  To be sure, there are some categorical rules:  a police officer can always search a suspect incident to an arrest, for example.  But for the most part, the phrase "totality of the circumstances" rules the day:  the officer (and eventually the courts) must weigh the facts in each case and decide whether a warrant was required. 

That's especially true for the "exigent circumstances" exception, which allows the police to conduct a warrantless search where evidence might be lost or destroyed if they have to take time out and get a warrant.  That's what happened in Schmerber:  the Court determined there that the "special facts" of the case -- the officer had to take the suspect to the hospital and investigate the scene of the accident, leaving "no time to seek out a magistrate and secure a warrant" -- dispensed with the need for a warrant.  Not so here:  only twenty-seven minutes passed from the time the cop stopped McNeely on the highway to the time the sample was obtained at the hospital.

Plus, you've come a long way, baby.  Or rather, cops and prosecutors have.  The opinion details "the advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications."  Rules modifications now allow warrants to be issued based on sworn testimony communicate by telephone, radio, email, and video conferencing.  Several jurisdictions have streamlined the warrant process even more, "such as by using standard-form warrant applications for drunk driving investigations."  Somehow, I doubt that some judge being roused from bed at 2:30 in the morning so he can scribble his signature on a warrant after quickly scanning the checklisted form that's been faxed to him is the "neutral, detached magistrate" contemplated by the Framers.  The opinion's later reference to the "technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge's essential role as a check on police discretion" rings hollow in that light, reducing what should be a critical stage in the 4th Amendment process, the procurement of a warrant, to little more than a pro forma exercise.

So if it's an easy call, why all the concurring and dissenting opinions?  Thomas is the only true dissenter, buying into the state's argument  that a warrant wasn't ever needed for a blood draw in a DUI case.  Roberts, joined by Breyer and Alito, go for an "exigent circumstances lite" approach:  they'd adopt a categorical rule that a warrantless blood draw was permissible as long as "an officer could reasonably con­clude that there is not sufficient time to seek and receive a warrant."  Kennedy concurs in everything except two parts of the Court's opinion because he doesn't think those two parts are necessary.

The net result isn't significant, except in the sense that it rejects the idea that the police don't need a warrant to get a blood test.  But another thought occurred to me as I read the opinion:  how much of the policy decisions the Court makes are based on bad data.

A couple of weeks back, I was doing a brief on a traffic stop.  In 1977, the Court developed a categorical rule in Pennsylvania v. Mims: following a traffic stop, the police could ask the driver of the vehicle to step out of the car.  (That rule was later extended to passengers.)  Mims was prompted by the prevalent belief that traffic stops pose a special danger for police officers, and having the occupants outside the car reduces that danger.  "Prevalent"?  Damn near universal:  Google "traffic stops police fatalities" and you'll get all kinds of articles about extraordinarily dangerous traffic stops are for the police.  But you'll also find this article which actually examined the data and concluded that the risk of a police officer being killed in a traffic stop was somewhere between one in 6.7 million and 20.1 million. 

Same thing here.  The opinions in McNeely are replete with references to the "terrible toll" that drunk driving causes, citing the National Highway Traffic Safety Administration report that "9,878 people were killed in alcohol-impaired driving crashes in 2011, an average of one fatality every 53minutes."

If you do some checking, though, you'll find that the NHTSA counts a death a result of alcohol impairment if any of the participants had any amount of alcohol in their system.  You're driving past a tavern and hit a drunk who's wandered out into the road, it's alcohol related.  You're the designated driver with the three other guys in your car sleeping it off, and a truck crosses the center line and sends you all to your glorious reward, there's three alcohol related fatalities.  The actual figure of what we would consider as deaths caused by drunk drivers -- the guy with a .24 BA reading who runs a red light and t-bones a van carrying a mother and her three kids -- is a fraction of what the government stats report.

That gets into the "one death is too many" argument, and maybe that's true, but I'm of the belief that there's no such thing as one right too many.  The Court came down on the correct side of that issue this time, but that it had to decide the issue at all is a little scary.

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