Law and Disorder

H ide and seek: Considering Fourth Amendment protections

By A.J. Wagner

The Fourth Amendment of the United States Constitution states: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” So, if a police officer or agent of the government wants to search or seize something or someone they would need an affidavit or sworn statement showing probable cause to a judge or magistrate that a search is needed. If the judicial officer believes that probable cause exists, a warrant will be signed that states, with some specificity, what place can be searched and what things or person can be seized.

Exceptions to the warrant requirement are made for exigent or emergency situations. Cars are often searched without a warrant because they can be moved and the evidence lost in the time it takes to get a warrant. A house may be immediately searched if there are screams from inside. Pockets are often searched for safety purposes on suspicion of the presence of a weapon.

But, what about taking blood from a suspected drunk to determine alcohol levels? Is there an emergency or exigency created by the fact that alcohol will dissipate from the bloodstream over the time it takes to get a warrant?

The United States Supreme Court tackled this issue so that I could answer that very question.

From the syllabus of Missouri v. McNeely decided last week: McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample. McNeely’s BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed, relying on Schmerber v. California in which this court upheld a DWI suspect’s warrantless blood test where 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,’” This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely’s right to be free from unreasonable searches of his person.

The principle that a warrantless search of the person is reasonable only if it falls within a recognized exception applies here, where the search involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a blood sample to use as evidence in a criminal investigation. One recognized exception applies when “‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.”

This court looked to the totality of circumstances in determining whether an exigency exits. Applying this approach in Schmerber, the court found a warrantless blood test reasonable after considering all of the facts and circumstances of that case and carefully based its holding on those specific facts, including that alcohol levels decline after drinking stops and that testing was delayed while officers transported the injured suspect to the hospital and investigated the accident scene.

Though a person’s blood alcohol level declines until the alcohol is eliminated, it does not follow that the court should depart from careful, case-by-case assessment of exigency. When officers in drunk driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. Circumstances may make obtaining a warrant impractical such that the alcohol’s dissipation will support an exigency, but that is a reason to decide each case on its facts, as in Schmerber.

The court concluded that in drunk driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. Because the record in this case did not provide evidence that could be considered in determining the reasonableness of acting without a warrant, the test was deemed improper.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein. 


A.J. Wagner is an attorney
with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.


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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

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