Attack on the 4th Amendment

The Supreme Court spends much of its time defining terms, and will soon address when circumstances permit warrantless searches. Photo: Judge Dredd, Britain comic book

WASHINGTON, D.C., January 20, 2013 — The United States and Missouri seem to think it is okay to ignore the Fourth Amendment. Appeal arguments in the case of Missouri v. McNeely are now before the US Supreme Court.

Amendment IV: “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.”

The US Supreme Court is reviewing Tyler McNeely’s DWI conviction, which occurred after he was stopped for speeding. When they approached his car, the police, believing he was intoxicated, performed field sobriety tests on McNeely. 

When he failed the field tests, officers asked McNeely to submit to a “breathalyzer” test that would measure his alcohol levels at the time of the stop. When he refused to submit to a breath test using a portable device, the police arrested McNeely for DWI and took him to a local hospital where his blood was drawn while McNeely was in handcuffs. 

No warrant was obtained before drawing his blood.

The Missouri Supreme Court ruled that the blood draw was unconstitutional and overturned McNeely’s conviction. The State of Missouri appealed, and now the US Supreme Court will decide the matter.

The Supreme Court spends much of its time defining terms, and much of the Constitution, including the Fourth Amendment, is written in language that creates that necessity.

Rights granted under the Fourth Amendment are not absolute, and the balance between your privacy and the government’s interests has been, and probably forever will be, debated and refined, defined and crafted to meet circumstances of particular cases. 

An analysis, if not a definition, is coming from the Court in this case, and it will address when circumstances permit warrantless searches.

It is important to remember that search warrants are vital to the protection of our privacy rights. The US Supreme Court is now going to decide whether situational facts permit police authorities to stick a needle into your arm when you are suspected of drunk driving.  

Blood is drawn, of course, so that it can be analyzed and the analysis used as evidence of your suspected intoxication. It is also the search and seizure of your property; your blood is as certainly yours as your wallet is. 

In thinking about this, remember that the Fourth Amendment protection against unreasonable searches and seizures has an exception: situational facts. These are called exigent, or pressing, circumstances. They occur when police officers have reason to believe that waiting for a warrant will cause the loss of life or property, and immediate action is required to prevent the loss. 

Exigent circumstances also allow for action without a warrant if evidence could be destroyed by the delay caused in obtaining a warrant. Losing valuable evidence is an important concern. Some cases require immediate action because without the action, evidence will be lost and the bad guy gets off. 

In deciding these constitutional issues, courts attempt to balance our privacy rights against the degree to which a warrantless search is necessary; to advance what are called “legitimate government interests”. 

The government interest asserted here is to get drunks off the streets. A warrantless search does not accomplish that goal. Obtaining blood only assists in convictions.

Twenty-one states allow police to use a telephone to obtain search warrants. The conversation certainly might sound like this:

Police officerJudge, we have a probable DWI here, the gentleman cannot stand up, slurs his speech and cannot touch his nose. Failed roadside tests. Need a warrant. Okay with you?


What is the judge, or magistrate, going to say? It may be a “rubber stamp” process, but few of us would quibble with that. The process should be there, and the judge or magistrate certainly might ask questions. 

A police officer might be overreaching and might not answer the questions to the judge’s satisfaction. Hence the warrant requirement is a needed and desirable safeguard.

The conversation is necessary as a second level of protection for our rights. The police officer, like Britain’s Judge Dredd, cannot be the sole arbiter entrusted to assure our constitutional rights are protected.

The police offer that the necessity of getting a warrant would create a delay in obtaining the blood sample as evidence, eliminating evidence of McNeely’s intoxication.

Missouri and the United States similarly argue that the evidence of McNeely’s intoxication would have disappeared if they had not taken the blood sample, which was in fact beyond-the-shadow-of-a-doubt proof that McNeely was drunk at the time of the stop. 

They argue that the intrusion on McNeely’s privacy was not as important as the government’s interest in protecting innocent motorists from the dangers of drunk driving. They argue that a prompt blood test, taken with as little delay as possible, provides the most reliable evidence of intoxication. 

Alcohol does indeed dissipate from the body over time, approximately .015 to .020 per hour. The argument misses the point, though, on three counts. First, not all the evidence disappears; only the chemical analysis disappears. There is other ample evidence, albeit not as compelling, but historically often more than enough to convict, namely the police officer’s testimony about the suspect’s demeanor, failure of roadside tests, etc. 

The “evidence” sought by this invasive action does not rise to calling the need “exigent.” 

Second is the fact that we, as Americans, have and should be able to enjoy Constitutional protections.

The third count is that this is not about protecting citizens on the roadways. The moment McNeely was stopped, citizens were protected. This is about proving someone was drunk.

The fact that law enforcement is easier and more efficient when we dispense with the Fourth Amendment does not justify ignoring the Fourth Amendment.

“Slippery slope” arguments are often lobical fallacies, but not always. Consider another (real) case involving a gentleman who was stopped by police for suspected drug use. 

Testing for drug use doesn’t always involve drawing blood; sometimes urine is required. 

A 22-year-old college student has filed an $11 million federal lawsuit against police in central Utah, claiming they forced his catheterization after he refused to consent to a search for marijuana. A catheter was inserted, an invasive and possibly painful process, without his consent and without a warrant.

If drawing blood is okay without first obtaining a warrant, does it follow that this next, more invasive step is also okay?

After listening to the Justices’ questions during oral arguments of McNeely’s case, most legal commentary suggests that the Supreme Court will decide that the police must obtain a warrant before they can have someone stick a needle in your arm to draw your blood.

Good thing. 

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, in Washington, D.C., on the Andy Parks show, the featured legal analyst for America’s Radio News Network, heard in 165 markets nationwide, and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.

This article is the copyrighted property of the writer and Communities @ Written permission must be obtained before reprint in online or print media. REPRINTING TWTC CONTENT WITHOUT PERMISSION AND/OR PAYMENT IS THEFT AND PUNISHABLE BY LAW.

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Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

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