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
conÂclude 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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