Volume 44 Issue 1 Spring

Spring 2014

Do Warrantless Breathalyzer Tests Violate the Fourth Amendment

Paul A. Clark

Recommended Citation Paul A. Clark, Do Warrantless Breathalyzer Tests Violate the Fourth Amendment, 44 N.M. L. Rev. 89 (2014). Available at: https://digitalrepository.unm.edu/nmlr/vol44/iss1/5

This Article is brought to you for free and open access by The University of New Mexico School of Law. For more information, please visit the New Mexico Law Review website: www.lawschool.unm.edu/nmlr 33996-nmx_44-1 Sheet No. 50 Side A 02/06/2014 10:11:19 Although Missouri v. 4 unreasonable Skinner v. Rail- per se , courts had generally The Supreme Court has The Supreme Court 1 amend. XIV. . McNeely ONST On April 17, 2013, in On April 17, 2013, 2 Although breath testing is less in- 6 the Supreme Court explicitly held 5 U.S. C 89 , see Paul A. Clark* Paul A. I. INTRODUCTION involved a search and seizure of a defendant’s involved a search and seizure of amend. IV. The Fourteenth Amendment mandates the same amend. IV. The Fourteenth Amendment . McNeely , State v. Blank, 90 P.3d 156, 164 (Alaska 2004) (“Many courts have ONST the U.S. Supreme Court clarified that the exigent circum- the U.S. Supreme Court clarified 3 at 8–9 would com- (explaining that further delay securing a search warrant , VIOLATE THE FOURTH AMENDMENT? THE FOURTH VIOLATE See, e.g. Id. U.S. C The Fourth Amendment provides that “[t]he right of the people to provides that “[t]he right The Fourth Amendment DO WARRANTLESS BREATHALYZER TESTS BREATHALYZER WARRANTLESS DO 5. 489 U.S. 602, 617–18 a person to a breathalyzer test . . . (1989) (“Subjecting 6. 2. Katz v. United States, 389 Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting 3. Missouri v. McNeely, No. 11–1425 (U.S. Apr. 17, 2013). 4. * of Chicago, 2005; Ph.D. The Catholic University of America, J.D. University 1. M K promise evidence). . . . implicates similar concerns about bodily integrity and, like the blood-alcohol test should also be deemed a search.”) (internal citations omitted). implicitly or explicitly held that the dissipation of alcohol always creates sufficient U.S. 347, 357 (1967)). standards on the states, although strictly speaking the Fourth Amendment itself ap- standards on the states, although strictly plies only to the federal government; 1995. The author has clerked for the Hon. Robert Eastaugh, Alaska Supreme Court, 1995. The author has clerked for the Hon. Circuit Court of Appeals. and the Hon. Consuelo Callahan, Ninth \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown Seq: 1 6-FEB-14 10:00 stances exception to the search warrant requirement requires the govern- stances exception to the search warrant time to obtain a search warrant before ment to prove that there was no is admissible at trial. evidence seized in a warrantless search be secure in their persons, houses, papers, and effects, against unreasona- persons, houses, papers, and effects, be secure in their seizures, shall not be violated.” ble searches and that breathalyzer tests are searches subject to the same Fourth Amend- that breathalyzer tests are searches to ment limitations as blood tests. Prior held that such breath test searches fell under the exigent circumstances held that such breath test searches exception to the warrant requirement. McNeely repeatedly held that “searches conducted outside the judicial process, that “searches conducted outside repeatedly held by judge or magistrate, are without prior approval under the Fourth Amendment—subjectFourth estab- only to a few specifically the under exceptions.” lished and well-delineated the search in searches, such as searches of a defen- blood, the rule applies to other tests. Indeed, in dant’s breath in the form of breathalyzer way Labor Executives’ Association C Y 33996-nmx_44-1 Sheet No. 50 Side A 02/06/2014 10:11:19 A 02/06/2014 50 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 50 Side B 02/06/2014 10:11:19 . M K C Y But See, Mc- , 392 [Vol. 44 Terry v. McNeely Schmerber or did not pro- which the Terry v. Ohio 7 , that the Supreme 9 , Schmerber Katz v. United States Mapp v. Ohio to allow a nonconsensual warrantless blood to allow a nonconsensual warrantless Schmerber v. California , there are two important Supreme Court , there are two important are fairly simple; the legal issues are more are fairly simple; the legal issues II. BACKGROUND Schmerber , 389 U.S. 347, 360 (1967) (Harlan, J., concurring), first NEW MEXICO LAW REVIEW McNeely McNeely while Fourth Amendment law was very much in flux, while Fourth Amendment Schmerber Schmerber Katz v. United States It was only five years earlier, in 8 Court discussed at some length. For almost fifty years, at some length. For almost fifty years, Court discussed Before looking at Before looking at The facts in . 7. 384 U.S. 757 (1966). 8. 9. 367 U.S. 643, 655 (1961). , Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1450 (9th Cir. 1986). , Burnett v. Municipality of Anchorage, State v. McNeely, 358 S.W.3d 65, 72 n.5 (Mo. 2012) (en banc) (“To the extent that State v. McNeely, 358 S.W.3d 65, 72 n.5 1. of Background exigency to dispense with the warrant requirement, although at least one court has exigency to dispense with the warrant on a case-by-case basis.”) (footnotes re- held that the state must prove exigency is permitted under a different exception moved). A few courts held that breath testing “search incident to arrest” exception. to the warrant requirements, namely the e.g. trusive than blood testing, this fact does not negate the state’s obligation the not negate fact does this testing, than blood trusive the so without jeopardizing it can do a warrant when to seek investigation. A. Warrants Blood Testing and Search \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown90 Seq: 2 6-FEB-14 10:00 cases that deal with blood testing and form the background of blood testing and form the background cases that deal with The most important precedent is The most important see [prior precedents] interpret are no draw incident to arrest in DWI cases without other exigent circumstances, they longer to be followed.”). articulated the “reasonable expectation of privacy” standard, while U.S. 1 (1968), created the now ubiquitous “Terry stop” exception to warrant requirement. Neely however, during the precedent involving blood testing; was the primary interpretations it has given rise to significantly different past few decades as the Court These deviations are not very surprising in the lower courts. decided in before the groundbreaking decisions vide any clear rules to apply in such cases and merely used an ad hoc, vide any clear rules to apply in such Additionally, the Court cautioned that totality of the circumstances test. facts of that case. Thus, in recent its holding was limited to the specific the 1966 decision. cases, courts have struggled to apply complicated. Mr. Schmerber was in an automobile accident and taken to complicated. Mr. Schmerber was in Court held that the Fourteenth Amendment prohibited the states from Court held that the Fourteenth Amendment and seizures, thus in effect applying conducting unreasonable searches Moreover, the Fourth Amendment to the states. Ohio 33996-nmx_44-1 Sheet No. 50 Side B 02/06/2014 10:11:19 B 02/06/2014 50 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 51 Side A 02/06/2014 10:11:19 91 These facts 12 is chiefly famous for is chiefly , however, held that the The government later used The government Later precedents would es- 11 17 Schmerber Schmerber couched its limited exception to the warrant require- couched its limited exception to the warrant The Court examined a variety of earlier cases and The Court examined The Court in 14 18 WARRANTLESS BREATHALYZER TESTS BREATHALYZER WARRANTLESS Schmerber Additionally, the Court considered the fact that “the Court considered the fact that Additionally, the , 384 U.S. at 771–72. , 384 U.S. at 758–59. 16 The Court next turned to whether the blood search was an to whether the blood search The Court next turned Police arrested him and ordered him not to resist while not to him and ordered him arrested Police , Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971) (“[T]here must 13 10 19 at 770–71 omitted). As the Missouri Supreme Court ex- (internal citation at 770–72. at 769. at 767 (“Such testing procedures plainly constitute searches of ‘persons’ at 767 (“Such testing procedures plainly at 770–71. at 759. at 761. See, e.g. Schmerber Id. Id. Id. Id. Id. Id. Schmerber Id. The Court then explained that the officer may have believed that explained that the officer may have The Court then The first issue, which the court disposed of quite easily, was that a quite easily, was court disposed of issue, which the The first 15 18. 19. 17. 15. 16. 14. 13. 12. 10. 11. M K plained, “[a]lthough of ment in terms of a search incident to arrest, it has since been read as an application (Mo. the exigent circumstances exception. . . .” State v. McNeely, 358 S.W.3d 65, 70 2012) (en banc) (citing United States v. Berry, 866 F.2d 887, 891 (6th Cir. 1989)). be a showing by those who seek exemption . . . that the exigencies of the situation 456 made that course imperative.” (quoting McDonald v. United States, 335 U.S. 451, (1948) (footnote and internal quotation marks omitted))). . . . .”). the hospital. \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown 2014] Spring Seq: 3 6-FEB-14 10:00 he was facing an emergency situation where any delay threatened to de- emergency situation where any delay he was facing an stroy evidence. medical personnel extracted a blood sample. extracted medical personnel unreasonable search. percentage of alcohol in the blood begins to diminish shortly after drink- in the blood begins to diminish percentage of alcohol the system” and con- functions to eliminate it from ing stops, as the body of evidence” made the search cluded that the threatened “destruction arrest.” “appropriate incident to petitioner’s discussed the search incident to arrest exception, noting that valid incident to arrest exception, discussed the search the body’s sur- to arrest do not include searches beyond searches incident face. factors: the lawfulness of the search was justified based on two deferential permit the officer the time to obtain arrest and an emergency that did not a warrant. tablish that the burden was on the prosecution to prove that exigent cir- tablish that the burden was on the cumstances existed. the blood sample to convict Mr. Schmerber of drunk driving. Mr. Schmerber sample to convict the blood raised numerous constitutional issues, but constitutional raised numerous its holding on the Fourth Amendment. on the Fourth its holding of the Fourth was definitely a “search” for purposes forced blood draw Amendment. C Y 33996-nmx_44-1 Sheet No. 51 Side A 02/06/2014 10:11:19 A 02/06/2014 51 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 51 Side B 02/06/2014 10:11:19 M K A C Y 24 [Vol. 44 Addi- 20 Dale v. State, 209 21 25 see also seems to be based on the interpret it as permitting decision indicates that the 22 Schmerber Schmerber Schmerber NEW MEXICO LAW REVIEW decision did not provide rules to guide courts in decision did not provide rules to State v. Rodriguez, 156 P.3d 771, 772 (Utah 2007) (explaining Despite the decision’s explicit caution that the holding does Despite the decision’s explicit caution 23 Schmerber at 772. (internal citation omitted). at 771. See generally See id. Id. Id. Id. The The Court concluded that the search was reasonable overall. reasonable search was that the Court concluded The measure petitioner’s test chosen to satisfied that the [W]e are Extraction of blood reasonable one. level was a blood-alcohol the of determining effective means testing is a highly samples for Such person is under the influence of alcohol. degree to which a exami- in these days of periodic physical tests are a commonplace and . . . the of blood extracted is minimal, nations . . . the quantity virtually no risk, trauma, or pain. procedure involves 25. 23. 24. State v. Bohling, 494 N.W.2d 399, 402 (Wis. 1993); 22. 21. 20. P.3d 1038, 1042 (Alaska Ct. App. 2009); State v. Machuca, 227 P.3d 729, 736 (Or. P.3d 1038, 1042 (Alaska Ct. App. 2009); State v. Machuca, 227 P.3d 729, 736 2010) (en banc); State v. Netland, 762 N.W.2d 202, 212–13 (Minn. 2009); State v. Shriner, 751 N.W.2d 538, 545 (Minn. 2008). dissipation of alcohol in blood without more evidence does not create exigent circum- courts stance); State v. Johnson, 744 N.W.2d 340, 344 (Iowa 2008) (noting that some reject “evanescence of blood-alcohol” as sufficient to constitute “exigent circum- Summarizing its holding, the Court described blood tests as minor intru- holding, the Court described blood Summarizing its does not forbid the today told that the Constitution sions: “That we under stringently lim- into an individual’s body States’ minor intrusions substantial intru- no way indicates that it permits more ited conditions in under other conditions.” sions, or intrusions \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown92 Seq: 4 6-FEB-14 10:00 warrantless blood draws whenever the state needs to confirm the pres- warrantless blood draws whenever As the Wisconsin Supreme Court ence of alcohol in a suspect’s blood. wrote: “A logical analysis of the not apply “under other conditions,” lower courts relied on its holding for not apply “under other conditions,” of blood and breath testing. decades in deciding the constitutionality Generally, lower courts applying Fourth Amendment cases. Instead, Fourth Amendment cases. Instead, exigency of the situation presented was caused solely by the fact that the exigency of the situation presented stream diminishes over time.” amount of alcohol in a person’s blood rather subjective feelings of the justices that blood draws were “minor rather subjective feelings of the justices intrusions.” tionally, the Court emphasized the “commonplace” nature of the blood nature the “commonplace” the Court emphasized tionally, test: few lower courts, however, require a specific showing that police had no few lower courts, however, require a blood draw. time to obtain a search warrant before 33996-nmx_44-1 Sheet No. 51 Side B 02/06/2014 10:11:19 B 02/06/2014 51 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 52 Side A 02/06/2014 10:11:19 93 for Court EARCH AND involved a involved , the Court S Schmerber , even though Skinner Katz is the second ma- second is the Skinner . The Court then de- . In quite explicitly held quite explicitly 30 McNeely Burnett v. Municipality of Katz § 1987). 2.6(b) (2d ed. Skinner , there is an immediate dif- court decided the issue. In Skinner see also The Court cited We will return to the issue of We will return 27 28 Skinner MENDMENT A Schmerber ’s statement that warrantless searches are ’s statement that warrantless searches Thus in OURTH 26 29 F HE T Skinner N O WARRANTLESS BREATHALYZER TESTS BREATHALYZER WARRANTLESS REATISE , the Court looked at all of the circumstances and made a judg- , the Court looked at all of the circumstances at 619. at 616–17citations omitted); (internal at 617. only made two passing references to two passing references only made : A T Additionally, Id. Id. Id. Id. 31 Skinner v. Railway Labor Executives’ Association Executives’ Labor v. Railway Skinner held that blood, for our purposes, the Court Most importantly The Court then addressed the crux of the matter: whether the search the crux of the matter: whether The Court then addressed 31. 29. marks omitted). 489 U.S. at 619 (internal citations and quotation 30. 28. 26. v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 610–11 Skinner (sus- (1989) 27. M K EIZURE Anchorage, 806 F.2d 1447, 1449 (9th Cir. 1986) (“It is not disputed that the adminis- tration of a breath test is a search within the meaning of the Fourth Amendment daily . . .”); Shoemaker v. Handel, 795 F.2d 1136, 1141 (3d Cir. 1986) (parties agreed breathalyzer amounted to search or seizure); 1 Wayne R. LaFave, McNeely jor precedent that is an important backdrop to important backdrop that is an jor precedent facial challenge to a federal regulation that required railroad employees required railroad regulation that to a federal facial challenge The regu- for alcohol or drugs. or urine testing blood, breath, to undergo from work for employees must suspend that the railroad lations provided refused. nine months if they S stance by itself”); State v. D’Andrea, No. 95890, 2006 WL 3411101, at *4 (Conn. stance by itself”); State v. D’Andrea, Super. Ct. Nov. 8, 2006). to a hearing “concerning their refusal to pended employees were nonetheless entitled take the test.”). \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown 2014] Spring Seq: 5 6-FEB-14 10:00 unreasonable mirrors the Court’s language in unreasonable mirrors the Court’s breath, and urine tests were “searches.” breath, and urine ference from the way that the Schmerber In comparison, the ment about overall reasonableness. certain well-defined circumstances, a stated a clear rule: “Except in unless it is accomplished pursuant search or seizure . . . is not reasonable probable cause.” to a judicial warrant issued upon breathalyzer tests later in this article, but breathalyzer tests tests are searches. that breathalyzer that “a search or Amendment. The Court explained violated the Fourth unless it is accomplished pursuant seizure in such a case is not reasonable probable cause. We have recognized to a judicial warrant issued upon exceptions to this rule. . . .” cided if the government had established that a recognized exception ap- cided if the government had established plied. the principle that a blood test was a search and then explained: “[A] a blood test was a search and the principle that considered in Schmer- . . . like the blood-alcohol test we breathalyzer test be deemed a search.” ber, should also C Y 33996-nmx_44-1 Sheet No. 52 Side A 02/06/2014 10:11:19 A 02/06/2014 52 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 52 Side B 02/06/2014 10:11:19 M K C Y and We 40 [Vol. 44 Schmerber United States v. We will return 39 , No. 12–207, slip op. rule and applied a rule and applied Katz the Court explained: “We the Court explained: 34 , unreasonable under the Fourth Yet again, in 35 In recent years, the Court has years, the Court In recent Maryland v. King 32 per se 33 Bright Line Breaking Point: Embracing Justice Bright Line Breaking Point: Embracing 37 . 77 (2007). Ohio v. Robinette EV NEW MEXICO LAW REVIEW . L. R UL , 389 U.S. at 357)). T Katz , 82 , Edwin J. Butterfoss, Justice Scalia noted in a 1991 concurring opinion that the Justice Scalia noted in a 1991 concurring . For example, in 38 the Court concluded that “the search of Knights was reasona- that “the search of Knights the Court concluded (citation omitted). Most recently in at 39 (citation omitted). 36 , See, e.g. Id. Id. The Court does not give a reason why it applies one test rather than give a reason why it applies one The Court does not Nonetheless, despite the Court’s repeated statements that warrant- statements that Court’s repeated despite the Nonetheless, 39.(Scalia, J., concurring). California v. Avecedo, 500 U.S. 565, 582 (1991) 40. test in drug and alcohol Some lower courts use a generalized reasonableness 38. 36. 112 (2001). 534 U.S. 37. 32. United States, 389 U.S. 347, 357 (1967). Katz v. 33.19–2017, U.S. 469 Louisiana, v. (1984) (“In a long line of cases, Thompson 34. 33 (1996). 519 U.S. 35. testing cases. For example, the Ninth Circuit, in ruling whether police could compel a testing cases. For example, the Ninth Circuit, in ruling whether police could compel war- suspect to submit a urine sample, did not explicitly state what exception to the rant requirement applied in the case but simply compared the case to held: “We are persuaded that requiring an arrestee to submit to a urine test is reason- of able under the Fourth Amendment. It is a less intrusive search than the withdrawal Cir. blood from the human body.” United States v. Edmo, 140 F.3d 1289, 1292 (9th Scalia’s Call for the Supreme Court to Abandon an Unreasonable Approach to Fourth Scalia’s Call for the Supreme Court to Abandon Amendment Law at 10 (U.S. June 3, 2013), the Supreme Court applied a generalized reasonableness at 10 (U.S. June 3, 2013), the Supreme suspects—againarrested of seizures DNA to without any clear explanation of test why they used such a test in that case. this Court has stressed that ‘searches conducted outside the judicial process, without this Court has stressed that ‘searches conducted are prior approval by judge or magistrate, Amendment—subject only to a few specifically established and well delineated excep- tions.’” (quoting created the fundamental rule that warrantless searches are per se unrea- are per searches that warrantless rule the fundamental created one of the search falls within prove that the the state can sonable unless exceptions. established few specifically \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown94 Seq: 6 6-FEB-14 10:00 the other. less searches are per se unreasonable unless they fall within a specific they fall within unreasonable unless are per se less searches has occasionally ignored the exception, the Court Court had “lurched back and forth between imposing a categorical war- Court had “lurched back and forth alone.” rant requirement and looking to reasonableness ble under our general Fourth Amendment approach of ‘examining the Fourth Amendment approach ble under our general totality of the circumstances.’” more generalized reasonableness test like the one the Court used in reasonableness test like the one more generalized Schmerber repeatedly affirmed this basic rule. affirmed this basic repeatedly Knights have long held that the ‘touchstone of the Fourth Amendment is reasona- the ‘touchstone of the Fourth Amendment have long held that objective terms by ex- in turn, is measured in bleness.’ Reasonableness, of the circumstances.” amining the totality to this issue later, but for the moment I want to highlight this tension to this issue later, but for the moment every Fourth Amendment case. because it is a potential issue in 33996-nmx_44-1 Sheet No. 52 Side B 02/06/2014 10:11:19 B 02/06/2014 52 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 53 Side A 02/06/2014 10:11:19 95 Schmer- The Court 46 as good law, , the Court explained , the Court After determining that After determining Schmerber 44 The Court recognized “that The Court recognized . applied the search incident to ar- 45 Skinner Skinner Schmerber The Court’s reference to the “exigent 47 The Court explained: “The Government’s explained: “The The Court 42 Court decided whether the exigent circumstances Court decided whether the exigent 41 WARRANTLESS BREATHALYZER TESTS BREATHALYZER WARRANTLESS Skinner , State v. Ravotto, 777 A.2d 301, 316 (N.J. 2001) (holding that blood , State v. Ravotto, 777 A.2d 301, 316 (N.J. at 624. did state (incorrectly) that Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 620 (1989). A primary reason the Court upheld the search under the special the Court upheld the search under A primary reason at 623 (citation omitted). at 620–21. at 620 (citations and quotation marks omitted). 43 Id. Id. See id. Id. See, e.g. See Id. Edmo Returning to the Court’s decision in to the Court’s Returning When the and the way the Court decided 47. 46. 45. 44. 41. 42. 43. M K rest exception, and may have simply been assuming that the same exception applied rest exception, and may have simply been courts start with the per se rule that war- in Edmo’s case. In general, however, lower exception. rantless searches must fall within a recognized 1998). draw generally fell under exigent circumstances exception but was not reasonable under the particular circumstances it was drawn). should also note that many jurisdictions use the two tests as a two-part as a two tests use the many jurisdictions that also note should and must be exception within an established search must fall test: the overall. reasonable \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown 2014] Spring Seq: 7 6-FEB-14 10:00 needs doctrine was that the doctrine was designed to prevent accidents, that the doctrine was designed needs doctrine was for criminal prosecutions. not to obtain evidence that the blood and breath tests fell within the “special needs” exception the “special needs” tests fell within blood and breath that the requirement. of the warrant circumstances” exception as an alternate basis for their holding suggests circumstances” exception as an alternate alcohol “as soon as possible” gave the that the need to test for drugs or with the search warrant require- government wide discretion to dispense to regard ment. Moreover, the Court continued and urine tests, the Court applied exception applied to the blood, breath, interest in regulating the conduct of railroad employees to ensure safety the conduct of railroad employees interest in regulating that may needs’ beyond normal law enforcement . . . presents ‘special require- from the usual warrant and probable-cause justify departures ments.” despite the obvious conflict between the way the Court decided despite the obvious conflict between ber the special needs exception applied, the Court then held that the exigent exception applied, the Court then the special needs justified the search. circumstances exception the Government’s interest in dispensing with the warrant requirement is interest in dispensing with the warrant the Government’s a warrant is likely as here, ‘the burden of obtaining at its strongest when, behind the search.’”to frustrate the governmental purpose agreed with the Federal Railroad Administration, recognizing that “alco- agreed with the Federal Railroad from the bloodstream at a constant hol and other drugs are eliminated taken to measure whether these sub- rate, and blood and breath samples when a triggering event occurred must stances were in the bloodstream be obtained as soon as possible.” C Y 33996-nmx_44-1 Sheet No. 53 Side A 02/06/2014 10:11:19 A 02/06/2014 53 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 53 Side B 02/06/2014 10:11:19 M K C Y [Vol. 44 as stating that, court went on to 53 51 court addressed the Skinner Skinner The 50 Winston v. Lee The Court stated that because stated that The Court 48 NEW MEXICO LAW REVIEW The Court quoted The Court quoted 49 at 624. at 642-643 (Marshall, J., dissenting) (“Although the importance of col- at 625–26 (citation omitted). at 628. (quoting Winston v. Lee, 470 U.S. 753, 762 (1985)). at 625. This language indicates that the This language indicates that the See id. Id. Id. Id. See id. Id. 52 Finally, the Court dictated that “[b]y contrast, the Government in- Finally, the Court dictated that “[b]y The breath tests . . . are even less intrusive than the blood tests . . are even less intrusive than the The breath tests . and may be do not require piercing the skin . . . . Breath tests with a mini- a hospital environment and conducted safely outside tests re- or embarrassment. Further, breath mum of inconvenience and alcohol in the employee’s bloodstream veal the level of procedures . . . which can be nothing more. Like the blood testing of alcohol or controlled sub- used only to ascertain the presence tests reveal no other facts in stances in the bloodstream, breath privacy interest. In all the which the employee has a substantial that the administration of a circumstances, we cannot conclude concerns. breath test implicates significant privacy 53. 52. 51. 50. 48. 49. lecting blood and urine samples before drug or alcohol metabolites disappear justifies waiving the warrant requirement for those two searches under the narrow “exigent secur- circumstances” exception . . . , no such exigency prevents railroad officials from ing a warrant before chemically testing the samples they obtain.”). a very deferential balancing test, balancing the privacy interest against interest privacy the test, balancing balancing deferential a very need for evidence. the state’s \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown96 Seq: 8 6-FEB-14 10:00 “[B]lood tests do not constitute an unduly extensive imposition on an not constitute an unduly extensive “[B]lood tests do and bodily integrity.” individual’s privacy applicability of the exigent circumstances test by balancing the privacy applicability of the exigent circumstances the government’s interest. The Court interests of the individuals against the exigent circumstances exception. did not give any per se rules about did not hold that the government must For example, the Court certainly there was no time to obtain a warrant. show on a case-by-case basis that the opposite. In fact, the Court’s treatment suggested terest in testing without a showing of individualized suspicion is compel- terest in testing without a showing ling.” “[o]rdinarily, an employee consents to significant restrictions in his free- restrictions consents to significant an employee “[o]rdinarily, Court con- employment,” the necessary for his where dom of movement freedom a railroad employee’s with “additional interference cluded that blood, breath, to procure a in the time it takes that occurs of movement to infringe significant testing cannot, by itself, be said or urine sample for privacy interests.” explain: 33996-nmx_44-1 Sheet No. 53 Side B 02/06/2014 10:11:19 B 02/06/2014 53 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 54 Side A 02/06/2014 10:11:19 97 55 Skin- Although 58 involved a facial chal- a facial involved in the criminal context. in the criminal Instead, the police officer 59 Skinner as “unquestionably a routine Police arrested McNeely after he Schmerber 57 ANALYSIS McNeely III. , the Court would find a way to permit the state , the Court would There were no individual plaintiffs and no individ- plaintiffs and no no individual There were 54 WARRANTLESS BREATHALYZER TESTS BREATHALYZER WARRANTLESS McNeely The officer testified that, after reading an article in “Traf- The officer testified that, after reading 60 A police officer stopped McNeely at 2 a.m. because they A police officer stopped McNeely 56 at 1556. at 1557. at 1557. at 614. Id. Id. Id. Id. Id. Id. Justice Sotomayor wrote the majority opinion, which only three Justice Sotomayor wrote the majority The trial court described It should be recalled, however, that however, recalled, be It should The Supreme Court’s prior precedents permitted warrantless blood prior precedents permitted warrantless The Supreme Court’s did not involve a criminal prosecution is crucial because it explains crucial because prosecution is involve a criminal did not 59. 60. 58. 57. 55. (2013) (quoting Schmerber v. Missouri v. McNeely, 133 S.Ct. 1552, 1556 56. 54. M K United States, 384 U.S. 757, 770 (1966)). DWI case.” lenge to the statute. lenge to \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown 2014] Spring Seq: 9 6-FEB-14 10:00 to conduct warrantless searches in drunk driving cases. to conduct warrantless searches in Sections II(C) and III of Sotomayor’s other justices joined in its entirety. support; however, eight justices con- opinion did not receive majority case: the exigent circumstances ex- curred with the basic holding of the only applies when there is no time to ception to the warrant requirement destruction of important evidence. obtain a search warrant before the The fact that the two most important precedents involving blood and two most important precedents The fact that the ample reason for the outdated and inconsistent gave breath testing were 2013. revisit these issues once more in Supreme Court to observed several signs he was drunk. ual criminal defendants. Accordingly, the decision did not address what decision did not the defendants. Accordingly, ual criminal fact that The of a criminal prosecution. in the context would happen ner to rely on courts continue why lower A. Circumstances Exception McNeely and the Exigent one might have showing of need. Accordingly, tests on a fairly minimal thought that, in no warrant was needed because fic Safety News,” he believed that took McNeely to the hospital where hospital personnel forcibly drew Mc- took McNeely to the hospital where Neely’s blood. refused to provide either a breath sample or a blood sample. refused to provide either a breath one officer later conceded that there was plenty of time for him to apply one officer later conceded that there not do so. for a search warrant, the officer did C Y 33996-nmx_44-1 Sheet No. 54 Side A 02/06/2014 10:11:19 A 02/06/2014 54 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 54 Side B 02/06/2014 10:11:19 M K C Y In 65 .” The [Vol. 44 This is a true 63 These cases indi- 68 no matter how minor emphasized that drawing blood was a emphasized that drawing blood was The Court again noted that this was a The Court again noted that this 67 Similarly, the Court has held that a purely Similarly, the Court has held that 64 McNeely Moreover, the Court reasoned that this principle the Court reasoned Moreover, NEW MEXICO LAW REVIEW 62 because the case “involved a compelled physical in- “involved a compelled physical because the case the police scraped the blood from the suspect’s finger the police scraped the blood from 66 , the Court began its analysis by explaining the well-set- by explaining began its analysis , the Court , McNeely at 295. at 292. 61 McNeely Id. Id. Id. In 68. under the exigent The Court ultimately held that the search was permissible 61.McNeely, 358 S.W.3d 65, 68 (Mo. 2012). State v. 62. v. McNeely, 133 S.Ct. 1552, 1558 (2013) (citation omitted). Missouri 63. 64. United States v. Robinson, 414 U.S. 218, 223–24 (1973). 65. Terry v. Ohio, 392 U.S. 1, 20 (1968). 66. 412 U.S. 291 (1973). 67. circumstances exception because the time needed to acquire a warrant would have circumstances exception because the time needed to acquire a warrant would permitted the suspect to rub the blood from his hand. However, two justices dissented for a arguing police could have arrested and restrained the suspect while they applied warrant. tled law that warrantless searches are presumptively unconstitutional: searches are presumptively that warrantless tled law falls within a only if it the person is reasonable search of “[A] warrantless exception.” recognized Missouri’s “implied consent law” permitted him to draw blood without a without blood to draw him permitted law” consent “implied Missouri’s warrant. \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown98 Seq: 10 6-FEB-14 10:00 and used it as evidence at trial. applied to to obtain a sample of skin and into his veins trusion beneath McNeely’s as evidence in a criminal investigation.” his blood for use external pat down of a suspect for weapons when police believe the sus- external pat down of a suspect for is a search that is only constitutional if pect is both armed and dangerous to the warrant requirement. it falls within a recognized exception search and unconstitutional unless the state could show that the search search and unconstitutional unless requirement. fell within an exception to the warrant particularly intrusive type of search: “Such an invasion of bodily integrity particularly intrusive type of search: and deep-rooted expectations of implicates an individual’s ‘most personal cate that the same legal principle—a of the person is warrantless search a recognized exception to the warrant reasonable only if it falls within requirement—applies regardless of whether the intrusion was minor. Nevertheless, the Court in statement of precedent, but it would have been equally true had the but it would have been statement of precedent, search of the per- cases have held that a warrantless Court stated: “Our exception and that only if it falls within a recognized son is reasonable to all searches of the person principle applies are searches sub- held that fairly minor intrusions Court has repeatedly For example, the Amendment warrant requirement. ject to the Fourth police arrested him of a suspect’s coat pocket after Court upheld a search only after it found an exception to the for driving with a revoked license warrant requirement applied. Cupp v. Murphy 33996-nmx_44-1 Sheet No. 54 Side B 02/06/2014 10:11:19 B 02/06/2014 54 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 55 Side A 02/06/2014 10:11:19 99 Court char- McNeely Perhaps another view 72 With respect to the exigent cir- With respect to The prosecution’s argument was Indeed, the 71 76 73 The Court held that “[i]n those 74 Thus, the Court noted that: “the percent- 77 75 have held as a matter of law that there is never have held as a matter WARRANTLESS BREATHALYZER TESTS BREATHALYZER WARRANTLESS section D(1). , 133 S.Ct. at 1556. 70 Schmerber at 1565. It is unclear how the search’s level of intrusiveness affects the affects intrusiveness level of search’s how the unclear It is 69 at 1562 (noting that “technological developments that enable police of- at 1563. at 1561. at 1559 (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)). at 1559 (quoting Michigan v. Tyler, 436 Id. Id. See infra McNeely Id. See id. Id. The Court was skeptical of the claim that there was never time to The Court was skeptical of the claim In any event, after stating the basic rule that a search must fall stating the basic rule that a In any event, after 77. 76. 72. 73. law is so compli- This is one reason, in particular, why Fourth Amendment 74. 75. 69. v. McNeely, 133 S.Ct. 1552, 1558 (2013) (quoting Winston v. Lee, 470 Missouri 70. 71. M K a warrantless search (no matter how minor) is per se unreasonable unless is per se unreasonable how minor) search (no matter a warrantless ficers to secure warrants more quickly . . . are relevant to an assessment of exigency”). cated. Even when there are clear rules, there are exceptions to the rules, and there are cated. Even when there are clear rules, there are exceptions to the rules, and there even exceptions to the exceptions. U.S. 753, 760 (1985)). privacy.’” \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown 2014] Spring Seq: 11 6-FEB-14 10:00 analysis because, under the per se test, there is no balancing of interests— is no balancing per se test, there under the analysis because, intrusiveness discussion about exception. This a recognized it falls within how- have been constitutional; search might that a less intrusive suggests search is that a warrantless the per se rule notion contradicts ever this Court’s view that it falls within an exception. The unreasonable unless only confuses the particularly intrusive is dictum that blood draws are legal analysis. obtain a warrant in blood draw cases. within an established exception, the Court noted that there is a well-rec- exception, the Court noted that within an established for official action when “there is (1) compelling need ognized exception to secure a warrant.” and (2) no time acterized the issue as “whether the natural metabolization of alcohol in acterized the issue as “whether the exigency that justifies an exception to the bloodstream presents a per se requirement for nonconsensual blood the Fourth Amendment’s warrant testing in all drunk-driving cases.” drunk-driving investigations where police officers can reasonably obtain a drunk-driving investigations where be drawn . . . the Fourth Amendment warrant before a blood sample can mandates that they do so.” cumstances exception, the rule has long been that the exception only ap- the rule has long been that cumstances exception, many courts is no time to obtain a warrant. Nonetheless, plies when there interpreting alcohol test. time to obtain a warrant for a blood that, with each passing minute, the human body metabolizes alcohol, re- that, with each passing minute, the ducing the blood alcohol level. is that alcohol absorption creates an exception to the rule that police is that alcohol absorption creates must seek a warrant if they have time. C Y 33996-nmx_44-1 Sheet No. 55 Side A 02/06/2014 10:11:19 A 02/06/2014 55 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 55 Side B 02/06/2014 10:11:19 M K C Y [Vol. 44 In McNeely’s 80 Although the Su- 81 The Court’s opinion fur- 83 Hence, there would be no delay 84 Thus, conceivably, a delay of as little a delay Thus, conceivably, 79 Furthermore, the officer testified that Furthermore, the officer testified 82 In other words, the blood alcohol content de- alcohol content words, the blood In other 78 NEW MEXICO LAW REVIEW Justices Alito and Breyer joined his opinion. What is Justices Alito and Breyer joined 85 , 133 S.Ct. at 1563. , 133 S.Ct. at 1561 (noting that “an officer can take steps to secure a at 1569 (Roberts, C.J., concurring in part and dissenting in part). at 1557. at 1561. Id. McNeely Id. McNeely Id. Id. Our cases establish that there is an exigent circumstances excep- Our cases establish that there is an That exception applies when tion to the warrant requirement. While the Court acknowledged that a delay of a few minutes could acknowledged that a delay of a few While the Court Chief Justice Roberts wrote an opinion concurring in part and dis- Chief Justice Roberts wrote an opinion 82. (en banc). State v. McNeely, 358 S.W.3d 65, 68 (Mo. 2012) 83. 84. 85. 79. testing is not quite that simple, and even blood tests have a margin Of course, 80. 81. 78. of error, but for the sake of argument let us assume the exact level of BAC can be of error, but for the sake of argument tested. warrant while the suspect is being transported to a medical facility”). age of alcohol in an individual’s blood typically decreases by decreases typically blood an individual’s in of alcohol age the alcohol per hour once to 0.02 percent 0.015 percent approximately fully absorbed.” has been \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown100 Seq: 12 6-FEB-14 10:00 most interesting is that Justices Roberts, Breyer, and Alito agreed with most interesting is that Justices Roberts, The Chief Justice wrote: the central holding of the majority. creases by .001 every three to four minutes. Therefore, a person tested at Therefore, a person to four minutes. .001 every three creases by at 2:33 a.m. might well test level of .080 with a blood alcohol 2:30 a.m. of .079. alcohol level with a blood the only reason he had not obtained a warrant in McNeely’s case was his the only reason he had not obtained necessary. belief that warrants were no longer as three minutes could affect a conviction. Moreover, a police officer will could affect a conviction. Moreover, as three minutes was to the limit until of knowing how close the suspect likely have no way after the test. how it takes time to prosecution’s case, they discussed indeed harm the a medical professional to the hospital and arrange for transport a suspect that the need to there was no reason to assume to draw blood. Therefore, draw. necessarily delay the blood get a warrant would in the blood testing. senting in part. ther notes that, given the ability to obtain search warrants through tele- ther notes that, given the ability to obtain search warrants while they phonic testimony, police could often transported the suspect to the hospital. preme Court did not emphasize this fact, the Missouri Supreme Court preme Court did not emphasize McNeely had regularly obtained noted that the officer who arrested search warrants to draw blood. case, for example, he was stopped at 2:08 a.m., and “the sample was se- he was stopped at 2:08 a.m., and case, for example, 2:35,” some 27 minutes later. cured at approximately 33996-nmx_44-1 Sheet No. 55 Side B 02/06/2014 10:11:19 B 02/06/2014 55 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 56 Side A 02/06/2014 10:11:19 89 101 Chief Justice 88 contend that apply- Nonetheless, black 91 amici 86 Thus, this section simply muddies the legal waters. Thus, this section simply muddies 92 WARRANTLESS BREATHALYZER TESTS BREATHALYZER WARRANTLESS As noted above, in section IIA of the opinion, the Court As noted above, in section IIA of 90 at 1565–66 (“To the extent that the State and its at 1564–65. at 1558–59. at 1574. at 1572. The Chief Justice’s only disagreement with the majority was that only disagreement with the majority The Chief Justice’s 87 Id. Id. Id. Id. Id. Id. Id. Finally, I want to look briefly at Section III of Justice Sotomayor’s Finally, I want to look briefly at Section there is a compelling need to prevent the imminent destruction of destruction imminent the to prevent need is a compelling there The a warrant. to obtain no time there is and evidence, important not constitutes in the bloodstream of alcohol natural dissipation of critical evidence. destruction imminent but ongoing only the except that there circumstance, qualify as an exigent That would If can be drawn. before blood to secure a warrant may be time a warrant. an officer must seek there is, Yet, instead of simply stating that the black letter rules dictate the Yet, instead of simply stating that 92. 91. 89. 90. 88. 86. 87. M K ing the traditional Fourth Amendment totality-of-the-circumstances analysis to deter- ing the traditional Fourth Amendment totality-of-the-circumstances analysis to Other than this disagreement, Justices Roberts, Breyer, and Alito agreed Justices Roberts, Breyer, Other than this disagreement, with the majority’s main holding. is interesting for three reasons. First, opinion. Section III of the opinion that the privacy interest in breath test- the section discussed the argument is strong, and the court should there- ing is minimal and the state interest formulating a rule about warrantless fore balance these factors when blood testing. Most of the Chief Justice’s opinion is devoted to explaining in greater Justice’s opinion is devoted to Most of the Chief through electronic and easy it is to obtain warrants detail how fast means. \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown 2014] Spring Seq: 13 6-FEB-14 10:00 he believed that the majority answered the question presented but “of- the majority answered the question he believed that courts and police of- guidance, merely instructing fer[ed] no additional the totality of the circumstances.” ficers to consider considered the intrusiveness of the search important. considered the intrusiveness of the letter rules dictated the outcome of the case. First, any warrantless search letter rules dictated the outcome of not fall within an exception. Second, is per se unconstitutional if it does is per se not allowable if officers had an exigent circumstances exception rules decided the case regardless of the time to seek a warrant. These two state interest. intrusiveness of the search or the state failed to persuade the court that case’s outcome, section III says the to deter drunk driving and therefore the rules will affect the states’ ability if the court used a “totality-of-the- the state still would not prevail even circumstances” test. Roberts asserted that the majority could have provided “more meaning- that the majority could have provided Roberts asserted cases.” how to handle the typical [drunk-driving] ful guidance . . . about C Y 33996-nmx_44-1 Sheet No. 56 Side A 02/06/2014 10:11:19 A 02/06/2014 56 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 56 Side B 02/06/2014 10:11:19 M K C Y [Vol. 44 Justice 95 , Missouri v. aff’d South Dakota v. Neville, with 96 Missouri did not argue that a 94 NEW MEXICO LAW REVIEW , 133 S.Ct. at 1565–66 (holding that the State may not forci- 93 , 133 S.Ct. at 1566 (noting penalties “when a motorist withdraws (citations omitted). McNeely Compare McNeely Id. The second reason that section III is relevant to the issue of breath that section III is relevant to the The second reason States have a broad range of legal tools to enforce their drunk- range of legal tools to enforce States have a broad undertaking to secure BAC evidence without driving laws and all 50 States blood draws. For example, warrantless nonconsensual as a consent laws that require motorists, have adopted implied to consent a motor vehicle within the State, condition of operating on suspi- are arrested or otherwise detained to BAC testing if they con- offense. Such laws impose significant cion of a drunk-driving consent; typically the sequences when a motorist withdraws suspended or revoked, motorist’s driver’s license is immediately refusal to take a BAC test to and most States allow the motorist’s in a subsequent criminal be used as evidence against him prosecution. 94. (en banc), State v. McNeely, 358 S.W.3d 65, 68 (Mo. 2012) 95. 96. 93. McNeely, 133 S.Ct. 1552 (2013). consent”). bly draw blood without showing exigent circumstances), mine whether an exigency justified a warrantless search will undermine the mine whether an exigency justified prosecuting drunk-driving offenses, we are governmental interest in preventing and not convinced.”). One could read Justice Sotomayor’s reference to implied consent to mean One could read Justice Sotomayor’s draws under so-called “implied con- that states could justify forced blood from the fact that the arresting sent” statutes. This entire case resulted implied consent statute permit- officer mistakenly thought that Missouri’s ted him to draw blood without a warrant. One might read section III to suggest that the ruling could be different if be different ruling could that the suggest III to section might read One more signifi- the state interest important and interest was less the privacy enough, the too far or not far the Court went one thinks cant. Whether of the state ghoulish prospect that the is open to the criticism decision decision too influenced the without a warrant person’s blood sucking a much. that the state interest Sotomayor’s reasons for thinking testing was Justice wrote: not that significant. Justice Sotomayor in blood testing was \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown102 Seq: 14 6-FEB-14 10:00 state statute could override the constitutional search requirements. Jus- state statute could override the constitutional say that states could use their “im- tice Sotomayor’s comment does not the warrant requirement. In fact, plied consent” statutes to circumvent “withdraw” their consent. she notes that motorists can Sotomayor’s point is that the state can encourage suspects to cooperate Sotomayor’s point is that the state criminally. by penalizing them either civilly or 33996-nmx_44-1 Sheet No. 56 Side B 02/06/2014 10:11:19 B 02/06/2014 56 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 57 Side A 02/06/2014 10:11:19 103 Mc- , the see also Skinner , and used this to To be thorough, to see if there is 99 Skinner Skinner Is one’s breath the same as 100 as not permitting warrantless blood as not permitting no longer seems to be good law). McNeely Affect Whether Police Officers Must Obtain a Affect Whether Police Officers Must Neville , did not explicitly say that searches incident to arrest searches incident say that did not explicitly WARRANTLESS BREATHALYZER TESTS BREATHALYZER WARRANTLESS decision has wide ranging and significant implications decision has wide , 133 S.Ct. at 1566 (providing a more detailed discussion of the McNeely McNeely at 1565. McNeely 97 McNeely United States v. Dionisio, 410 U.S. 1, 13–14 (1973). See See id. See McNeely Thus, one can read Thus, one can read Court noted that there were a variety of exceptions to the warrant there were a variety of exceptions Court noted that The first question to address is whether breathalyzer tests are The first question to address is The Finally, section III is interesting for what it omits. Justice Sotomayor Justice it omits. for what III is interesting section Finally, What constitutes a “search” for purposes of the Fourth Amendment What constitutes a “search” for purposes 98 99. U.S. 602, 603 (1989); Skinner v. Railway Labor Executives’ Ass’n, 489 98. 97. 100. M K conclude that a swab of the mouth is also a search). Maryland v. King, 133 S.Ct. 1958, 1969 (2013) (noting in passing that the Court had Maryland v. King, 133 S.Ct. 1958, 1969 (2013) (noting in passing that the Court previously described a breathalyzer test as a search, citing scope of search incident to arrest). for drunk driving prosecutions in the United States. In the next section I prosecutions in the United States. for drunk driving the Fourth Amend- primary focus of this article: since want to turn to the there was no time to warrants (or a showing that ment requires search a blood test, does the Fourth obtain one) prior to the state requiring for breath tests? Amendment impose the same requirement B. How Does Test? Warrant Before Conducting a Breathalyzer As noted above, in searches under the Fourth Amendment. test is a search. Court explicitly held that a breathalyzer 459 U.S. 553, 559–60 (1983) (holding that the State could forcibly draw blood without a warrant; after \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown 2014] Spring Seq: 15 6-FEB-14 10:00 testing under the search incident to arrest exception. testing under the suggested alternative ways that the state could try to enforce drunk-driv- try to enforce that the state could alternative ways suggested did not searches. She notably warrantless other than performing ing laws a different searches under could conduct option that states include the to arrest as the search incident such to the warrant requirement exception exception. were inapplicable, but it seemed to implicitly hold this. After all, Mc- but it seemed to implicitly hold were inapplicable, Additionally, the the lawfulness of his arrest. Neely never challenged Neely circumstances excep- yet, only considered the exigent requirement and, tion. the sound of one’s voice? Like speech, the odor of a person’s breath the sound of one’s voice? Like speech, any argument that the Court has overturned or weakened this holding. any argument that the Court has Court has held that forcing a suspect is not always clear. For example, the sound of one’s voice is not normally to speak is not a search because the no one has a reasonable expecta- concealed from the public, and hence voice. tion of privacy in the sound of one’s however, I will examine recent case law since however, I will examine recent case C Y 33996-nmx_44-1 Sheet No. 57 Side A 02/06/2014 10:11:19 A 02/06/2014 57 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 57 Side B 02/06/2014 10:11:19 M K 101 . C Y [Vol. 44 , however, As the opin- 109 Katz Thermal imaging Thermal 102 The Court reasoned 104 Kyllo v. United States Kyllo v. was whether this thermal imag- this thermal was whether , “agents installed a GPS tracking , “agents installed Kyllo the Court returned to the question of the Court returned Jones 106 supports the conclusion that breath tests supports the conclusion , The answer was not obvious. In fact, the Court The answer was Kyllo 103 NEW MEXICO LAW REVIEW As such, Justice Scalia reasoned that, “such a As such, Justice Scalia reasoned 105 108 clarified that the “reasonable-expectation-of-privacy Jones at 40. Justice Scalia wrote for the majority and explained that the Justice Scalia wrote for the majority Katz v. United States, 389 U.S. 347, 357 (1967). at 949. at 948. at 34 (internal citation and quotation marks omitted). at 29. United States v. Jones 107 The problem was that for some time courts ignored the older The problem was that for some Id. See Id. Id. Id. Id. See id. Id. 110 involved thermal imaging of the suspect’s home. of the suspect’s thermal imaging involved A good case to illustrate this question is this question is case to illustrate A good In 108. 109. 110. 106. 132 S.Ct. 945 (2012). 107. 105. 103. 104. 101. 27 (2001). 533 U.S. 102. seems to be open to public observation and arguably no one has an ex- no one has and arguably public observation open to to be seems exhalations. of privacy in one’s pectation Kyllo \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown104 Seq: 16 6-FEB-14 10:00 trespass law and focused exclusively on the “reasonable expectation of trespass law and focused exclusively privacy” test. or diminish, the common-law test augmented, but did not displace Government “physically occupied private property for the purpose of ob- Government “physically occupied taining information.” physical intrusion would have been considered a ‘search’ within the physical intrusion would have been when it was adopted.” meaning of the Fourth Amendment held by only a five to four vote that it was a search. held by only a five are searches. device on the undercarriage of the Jeep while it was parked in a public device on the undercarriage of the device to track the vehicle’s move- parking lot” and then “used the ments.” what constitutes a “search.” In what constitutes that, “obtaining by sense-enhancing technology any information regard- sense-enhancing technology any that, “obtaining by have been obtained the home that could not otherwise ing the interior of area, consti- intrusion into a constitutionally protected without physical tutes a search—at not the technology in question is least where (as here) use.” in general public allowed the government to see what was going on inside the residence to on inside the see what was going the government to allowed issue in extent. The main a limited ion explained, Fourth Amendment jurisprudence was originally con- ion explained, Fourth Amendment from trespassing on private cerned with preventing the government concurring opinion in property. Justice Harlan’s famous later adopted) that violations of a announced the theory (which the Court privacy violated the Fourth Amend- person’s reasonable expectation of ment. ing constituted a search. ing constituted a 33996-nmx_44-1 Sheet No. 57 Side B 02/06/2014 10:11:19 B 02/06/2014 57 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 58 Side A 02/06/2014 10:11:19 105 This 116 provides Jones 114 the government ar- government the Jones , every state has an implied Inserting a tube into a suspect’s Inserting a tube The Court rejected this argument, The Court 115 McNeely Thus, in Thus, 112 111 . § (“A person who operates or drives 28.35.031(a) (2012) TAT WARRANTLESS BREATHALYZER TESTS BREATHALYZER WARRANTLESS S , police officer’s actions without a warrant are limited to without a warrant are limited , police officer’s actions , regardless of whether a suspect has a reasonable expecta- a suspect has a reasonable , regardless of whether LASKA Jones Furthermore, the Court held that when the government held that when the Court Furthermore, at 949–50. at 950. at 949. , 132 S.Ct. at 955 (Sotomayor, J., concurring) (explaining that the four , 132 S.Ct. at 955 (Sotomayor, J., concurring) A 113 , Jones E.g. Cf. id. See id. Jones See id. Although government-compelled breath tests are searches for Although government-compelled As Justice Sotomayor noted in Under 115. (stating that “a police officer Florida v. Jardines, 133 S.Ct. 1409, 1416 (2013) 116. 114. 113. 111. 112. M K not armed with a warrant may approach a home and knock, precisely because that is not armed with a warrant may approach a home and knock, precisely because ‘no more than any private citizen might do.’” (quoting Kentucky v. King, 131 S.Ct. 1849, 1862 (2011))). a motor vehicle in this state . . . shall be considered to have given consent to a chemi- a motor vehicle in this state . . . shall be considered to have given consent to a Justices concurring in the outcome would have reached the same result based on the Justices concurring in the outcome would reasonable expectation of privacy). view that the government violated Jones’s trespassory test that preceded it.” preceded that test trespassory \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown 2014] Spring Seq: 17 6-FEB-14 10:00 commits a trespass against a person’s property in order to obtain informa- in order to obtain a person’s property a trespass against commits violates the Fourth Amendment. tion, the government gued that placing the GPS device on the vehicle was not a search as the was not a device on the vehicle placing the GPS gued that privacy. not violate Jones’ search did consent statute. One possible way to address breath testing is that drivers consent statute. One possible way to warrantless searches of their breath have waived their right to object within a state’s jurisdiction. by voluntary consenting to drive what “any private citizen might do.” what “any private holding that when there is a trespass, then the expectation of privacy is the expectation is a trespass, then when there holding that irrelevant. tion of privacy in his breath, a breath test is a search because it would be his breath, a breath test is a search tion of privacy in existing Supreme Court precedent, a battery at common law. Thus, under breath tests are searches. C. Consent Statutes Constitute a Waiver of the Right to Do Implied Object to Warrantless Search? state or federal government does not Fourth Amendment purposes, the the searched person consents to the violate the Fourth Amendment if consent an exception to the warrant search. Sometimes courts consider court expresses the rule that the requirement. More commonly, the searches based on consent. Fourth Amendment does not prohibit mouth requires the police to physically touch the suspect. Without con- police to physically touch the mouth requires the at common law. It is a physical trespass or a battery sent, this touching the principles set any private citizen might do. Under goes beyond what forth in the bright-line rule: when government agents physically touch a person’s when government agents physically the bright-line rule: search occurs under the Fourth Amendment. property, then a C Y 33996-nmx_44-1 Sheet No. 58 Side A 02/06/2014 10:11:19 A 02/06/2014 58 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 58 Side B 02/06/2014 10:11:19 M K C Y the The [Vol. 44 117 McDuff v. consent see 121 is not constitutionally , NMSA 1978, § 66-8-107 (stating consent As such, the Ninth Circuit rea- As such, the Ninth e.g. , 118 See NEW MEXICO LAW REVIEW More than one State Supreme Court, rather than More than one State Supreme Court, 120 Burnett v. Anchorage, 634 F. Supp. 1029 (D. Alaska 1986) (ex- at 1451. at 1449–50; the district this was a significant change from the ruling of Commonwealth v. Kohl, 615 A.2d 308, 313 (Pa. 1992); Burnett v. Anchorage, 806 F.2d 1447, 1448–49 Burnett v. Anchorage, 806 F.2d 1447, (9th Cir. 1986). 119 E.g., See id. See See id. see generally In 1986, the Ninth Circuit addressed a challenge to Alaska’s Implied to Alaska’s addressed a challenge the Ninth Circuit In 1986, Scholars have written numerous articles on so-called implied con- Scholars have written numerous Courts across the country have generally held that breath tests are Courts across the country have generally 120. Ct. App. 2012) (emphasis State v. Wiseman, 816 N.W.2d 689, 694 (Minn. 121. 117. 119. 118. cal test or tests of the person’s breath for the purpose of determining the alcoholic cal test or tests of the person’s breath content.”). This statute appears typical. presents the basic question of whether a state may require a person to a may require a state whether of basic question the presents to refuse in have a right she would normally a chemical test that submit to Courts that obtaining a license. a condition of of a warrant as the absence state may not held that a have almost uniformly this issue have addressed in this way. Fourth Amendment bypass the to submit to a by three defendants who had refused Consent statute to do so. arguing that they had no obligation breathalyzer test, \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown106 Seq: 18 6-FEB-14 10:00 sent statutes, pointing out that courts have upheld searches under these sent statutes, pointing out that courts the plaining that the district court apparently believed that consent could justify search). original). justified under the exigent circumstances exception, not consent. As the justified under the exigent circumstances in 2012: “[T]he statutory phrase Minnesota Court of Appeals explained . . When the requirements of probable ‘implied consent’ is a misnomer . are met, cause and exigent circumstances chemical test, nor is necessary to administer a warrantless basis for the search.” State, 763 So.2d 850, 856 (Miss. 2000). reading in an exception based on exigent circumstances, has held that reading in an exception based on Fourth Amendment. “implied consent” laws violate the “[a]ny person who operates a motor vehicle within this state shall be deemed to have “[a]ny person who operates a motor vehicle breath or blood or both . . . .”). given consent . . . to chemical tests of his court, soned that a breath test is subject to the Fourth Amendment’s require- test is subject to the Fourth Amendment’s soned that a breath an exception applies, be reasonable and that, unless ments that the search such a search. obtain a warrant before conducting the government must test was constitutional Circuit held that the breath Ultimately, the Ninth the warrant require- incident to arrest exception to because the search supposedly consented to the ment applied, not because the defendant search. Ninth Circuit upheld the lower court’s conviction of the three appellants the lower court’s conviction of Ninth Circuit upheld that, under the Fourth a breath sample, explaining for refusing to provide test is a search. Amendment, a breath 33996-nmx_44-1 Sheet No. 58 Side B 02/06/2014 10:11:19 B 02/06/2014 58 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 59 Side A 02/06/2014 10:11:19 122 107 the the LASKA 124 128 , , A Spencer , asking , 5 e.g., Layland v. , see McNeely State v. Blank State v. Taylor . In In 127 Skinner Implied Consent to Intoxication Tests: A and 39 (1978). . EV 123 Alaska’s Criminalization of Refusal to Take a Breath Alaska’s Criminalization of Refusal to Take L. R S ’ Schmerber OHN . J T WARRANTLESS BREATHALYZER TESTS BREATHALYZER WARRANTLESS S For example, the court heavily relied on For example, the court heavily 125 , 53 Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 620 (1989) (ex- Skinner v. Railway Labor Executives’ Ass’n, B. Bernard Zaleha, at 1046 (stating blood testing is permissible under the exigent circum- at 162. a case that held that blood testing was constitutional if it fell a case that held that blood testing 263, 291–92 Lerblance, (1988); Penn See Id. Id. See . 126 Because breath testing is a search, the next question is whether the is a search, the next question Because breath testing State and federal courts across the country have routinely held that State and federal courts across the , EV 1. Exigent Circumstances 128. 531 A.2d 157 (Conn. App. Ct. 1987). 123. 126. 535 P.2d 1043 (Alaska 1975). 127. 124. 90 P.3d 156 (Alaska 2004). 125. 122. M K stances exception to warrantless searches). plaining that the only other potential exception is the special needs exception, but the plaining that the only other potential exception about gathering evidence to use in a “special needs” exception cannot be primarily in drunk driving cases); criminal proceeding; thus, it is not applicable v. City of Bay City, 292 F.Supp.2d 932, 946 (E.D. Mich. 2003) (ruling that special needs exception did not permit warrantless breath tests of criminal suspects). Flawed Concept L. R statutes based on other valid exceptions to the warrant requirement. warrant to the exceptions valid on other based statutes well-known to rehash these for this article there is no need Accordingly, have upheld is that courts making, however, The point worth arguments. idea that the but based on the based on consent, searches, not warrantless requirement—typically to the warrant fall within an exception searches the Supreme it is unlikely exception. Therefore, circumstances the exigent breath are constitu- that the warrantless searches of Court would find a search. driver’s implied consent to such tional based on a D. from Blood Testing? Is Breath Testing Distinguishable As noted above, it under the Fourth Amendment. government can justify in applied the same analysis used the Court has typically under one search of one’s breath is constitutional whether the warrantless could fall under enumerated exceptions. Breath testing of the specifically or the search the exigent circumstances exception one of two exceptions: incident to arrest exception. \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown 2014] Spring Seq: 19 6-FEB-14 10:00 Test: Is it a Permissible Warrantless Search Under the Fourth Amendment Test: Is it a Permissible Warrantless Search under the exigent circumstances exception. under the exigent circumstances breath testing is permitted under the exigent circumstances exception. breath testing is permitted under These cases usually cite State Alaska Supreme Court drew on earlier case law involving blood testing Alaska Supreme Court drew on earlier testing have identical constitutional and articulated that blood and breath requirements. C Y 33996-nmx_44-1 Sheet No. 59 Side A 02/06/2014 10:11:19 A 02/06/2014 59 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 59 Side B 02/06/2014 10:11:19 M K C Y Simi- [Vol. 44 129 Further- 131 Thus, when police of- 135 , the Superior Court of Pennsylvania , the Superior Court the Tennessee Court of Criminal Appeals Court of Criminal the Tennessee 130 132 , Rather, in criminal prosecutions, the state uses a Rather, in criminal prosecutions, NEW MEXICO LAW REVIEW 134 , eight justices agreed that the exigent circumstances , eight justices agreed that the exigent unambiguously answers that the state must make such a unambiguously answers that the , 133 S.Ct. at 1566. , Patrick v. State, 750 S.W.2d 391, 394 (Ark. 1988); Guerre-Chaley v. McNeely But are there differences between blood and breath testing But are there differences between Commonwealth v. Anderl Commonwealth v. California v. Trombetta, 467 U.S. 479, 481–82 (1984) (describing the qual- at 760–61. at 160–61. State v. Humphreys 133 McNeely Id. See, e.g. Id. See McNeely Courts across the country have held that breath tests are searches country have held that breath tests Courts across the Although police frequently carry portable breath test units, the Although police frequently carry 132. (Pa. Super. Ct. 1984) (internal Commonwealth v. Anderl, 477 A.2d 1356, 1364 133. 130. 752 (Tenn. Crim. App. 2001). 70 S.W.3d 131. 134. 135. 129. citations omitted). exception requires the state to show that there was no time to secure a exception requires the state to show warrant. State, 88 P.3d 539, 544 (Alaska Ct. App. 2004); State v. Faust, 682 N.W.2d 371, 374 n. State, 88 P.3d 539, 544 (Alaska Ct. App. 2004); State v. Faust, 682 N.W.2d 371, 2 (Wis. 2004). showing. In ity control procedures used in evidentiary breath testing machines). Connecticut Court of Appeals held that exigent circumstance existed be- existed circumstance exigent held that Appeals Court of Connecticut one’s bloodstream. of alcohol from the rapid dissipation cause of \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown108 Seq: 20 6-FEB-14 10:00 and that law enforcement officers can compel individuals to take breath officers can compel individuals and that law enforcement exception. tests fall under the exigent circumstances tests as long as the that there was no is whether the state must prove Therefore, the question a suspect to submit to a warrant- time to obtain a warrant prior to forcing the exigent circumstances excep- less breath test when the state invokes tion. which make the need for breath tests more pressing? Let us examine the which make the need for breath tests typical breath testing procedure. are not sufficiently accurate for use in readings from these portable units criminal prosecutions. held that “[b]ased upon the fact that evidence of blood alcohol content of blood alcohol fact that evidence “[b]ased upon the held that breath or stops, a compulsory after drinking diminish shortly begins to within the of the donor, falls the consent taken with or without blood test, exception to the warrant requirement.” exigent circumstances larger breath-testing device, which law enforcement personnel regularly larger breath-testing device, which stations. calibrate and typically keep at police ficers arrest a suspect, they must transport the suspect to a police station, ficers arrest a suspect, they must transport held that “the warrantless seizure of the appellant’s alcohol-laden breath seizure of the appellant’s held that “the warrantless search necessitated by search incident to arrest . . . or a is valid either as a of the alcohol in . . . i.e., the evanescent nature exigent circumstances; [defendant’s] bloodstream.” larly, in more, in 33996-nmx_44-1 Sheet No. 59 Side B 02/06/2014 10:11:19 B 02/06/2014 59 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 60 Side A 02/06/2014 10:11:19 109 Skin- McNeely , accurate test- , accurate After all, in 139 Skinner Thus, even if police pulled a sus- if police pulled Thus, even 137 In many ways, breath testing is more com- is more testing breath ways, In many tit. 13, § 60.040(a) (1989) (“The following procedure 136 ODE . C WARRANTLESS BREATHALYZER TESTS BREATHALYZER WARRANTLESS DMIN , 133 S.Ct. at 1565. A Nonetheless, could a lower court ignore the bright-line rule Nonetheless, could a lower court 138 Moreover the state interest in drunk driving is vastly more Moreover the state interest in , the level of intrusiveness does not appear to matter. , the level of intrusiveness does not LASKA , the Court noted that in nine years there had been a grand total , the Court noted that in nine years 140 McNeely A Courts have also held that breath testing is less intrusive than blood held that breath testing is less intrusive Courts have also , the Supreme Court already stated that breath tests were a minor in- , the Supreme Court already stated 138. 139. (Scalia, J., concurring). California v. Avecedo, 500 U.S. 565, 582 (1991) 140.489 U.S. 602, 625 (1989). Skinner v. Railway Labor Executives’ Ass’n, 136. McNeely, No. ED 96402, 2011 WL 2455571, at *2 (Mo. Ct. App. June State v. 137. M K must be used to obtain and analyze a breath sample on a breath test instrument: (1) must be used to obtain and analyze a breath sample on a breath test instrument: to observe the person to be tested for at least 15 minutes immediately before testing, mouth ensure that the person does not regurgitate or place anything in his or her during that period”). 21, 2011) (detailing transportation following McNeely’s arrest). 21, 2011) (detailing transportation following which could be miles away. be miles could which \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown 2014] Spring Seq: 21 6-FEB-14 10:00 and apply a more general reasonableness test, balancing the intrusiveness and apply a more general reasonableness in the search? The strongest argu- of the search with the state’s interest getting around the apparent bright- ment a lower court could make for complaint that Supreme Court “juris- line rule stems from Justice Scalia’s imposing a categorical warrant prudence lurched back and forth between alone.” requirement and looking to reasonableness of 100 people killed or injured in train accidents due to alcohol or drug of 100 people killed or injured in consumption—aboutcannot begin to com- 10 casualties each year. This important than the state interest in regulating railroad employees. In important than the state interest Skinner clarified that there is a bright-line rule when the state invokes the exigent clarified that there is a bright-line must show there was no time to obtain circumstances exception: the state a warrant. plicated than blood testing. As the Court noted in As the Court noted than blood testing. plicated Therefore, an breath. (or “deep-lung”) on testing alveolar ing depends at least fifteen the subject for someone observe test requires that accurate alcohol into no regurgitation of ensure there is prior to the test to minutes the test. that could affect the mouth pect over in front of a police station the breath test could not take place of a police station the breath test pect over in front period for blood test- minutes. There is no observation for at least fifteen than blood test- breath testing inherently takes longer ing, meaning that Court would say that is even more unlikely that the ing. Therefore, it of law or fact. Courts to obtain a warrant as a matter there is no time basis because to conduct this analysis on a case-by-case would still need reasonable to obtain a might affect whether it is individual circumstances a breathalyzer test. warrant before conducting exception in the analysis of the exigent circumstances testing. But given McNeely ner trusion. C Y 33996-nmx_44-1 Sheet No. 60 Side A 02/06/2014 10:11:19 A 02/06/2014 60 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 60 Side B 02/06/2014 10:11:19 M K 143 see C Y . The [Vol. 44 144 McNeely decision relied on King applied a generalized rea- applied a generalized ) a court would have to simply , which seems to require applying King appears to support a generalized reasona- appears to support McNeely Maryland v. King King NEW MEXICO LAW REVIEW and somehow exempt breath tests; until that day, and somehow exempt breath tests; acknowledged that any intrusion beyond the surface of any intrusion beyond the surface acknowledged that McNeely King at 1972 (“Like a fingerprint, the 13 CODIS loci are not themselves evi- at 1977. at 1980. At first glance, 141 Id. Id. Id. 142 at 1983 (Scalia, J., dissenting) (distinguishing DNA collection for identification Moreover, the Court in Moreover, the Court Accordingly, for a court to use a generalized balancing test ap- Accordingly, for a court to use As Chief Justice Roberts discussed, Supreme Court precedent dic- As Chief Justice Roberts discussed, approach is inapplicable here because breath or blood samples are approach is inapplicable here because 144. 143. 141. v. King, 133 S.Ct. 1958, 1970 (2013). Maryland 142. dence of any particular crime, in the way that a drug test can by itself be evidence of dence of any particular crime, in the way that a drug test can by itself be evidence a illegal narcotics use. A DNA profile is useful to the police because it gives them form of identification to search the records already in their valid possession.”); also id. purposes from DNA collection for evidentiary purposes) (“It is only when a govern- mental purpose aside from crime-solving is at stake that we engage in the free-form ‘reasonableness’ inquiry that the Court indulges at length today.”). sonableness test to uphold a swab of a suspect’s mouth to obtain a DNA uphold a swab of a suspect’s mouth sonableness test to sample. In fact, the majority decision explicitly distinguished DNA sampling from decision explicitly distinguished In fact, the majority evidence of a particular crime. “a drug test” designed to gather pare to the thousands of deaths and injuries due to drunk driving each driving due to drunk injuries and of deaths to the thousands pare for breath obtain a warrant the need to question of whether year. The laws would of drunk-driving the enforcement interfere with testing would intrusion” of the “minor merely to balance If a court were still exist. driving, the to limit drunk interest in trying with the state breath tests would prevail. state interest \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown110 Seq: 22 6-FEB-14 10:00 the central premise that law enforcement officers did not take DNA sam- that law enforcement officers did the central premise of suspects. but used them in the identification ples to collect evidence bleness approach to breath testing; however, the bleness approach the body was constitutionally significant, but the Court ultimately held significant, but the the body was constitutionally interest in their outweighed a person’s privacy that the state interest DNA. King crime and are easily distinguish- intended to seize evidence of a particular identification purposes. able from DNA samples used for proach (such as the Court used in the per se rule to searches for evidence of intoxication beneath the sur- the per se rule to searches for evidence the Supreme Court will reverse or limit face of the body. Perhaps one day its holding in per se rule set forth in the lower courts have to apply the ignore the clear mandate of tates that the existence of exigent circumstances is one exception to the tates that the existence of exigent Roberts also explained that the “ex- warrant requirement. Chief Justice need to prevent the imminent ception applies when there is a compelling and there is no time to obtain a war- destruction of important evidence, 33996-nmx_44-1 Sheet No. 60 Side B 02/06/2014 10:11:19 B 02/06/2014 60 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 61 Side A 02/06/2014 10:11:19 111 In 148 stated The Su- 149 Chimel explicitly stated that the search inci- which the Court decided three years 147 , , police obtained an arrest warrant, went to , police obtained an arrest warrant, Schmerber Chimel Court recognized “that the scope of a warrantless Court recognized “that the scope to implicitly prohibit blood draws under this excep- to implicitly prohibit WARRANTLESS BREATHALYZER TESTS BREATHALYZER WARRANTLESS . In Chimel Chimel v. California McNeely The modern constitutional doctrine of search incident to arrest The modern constitutional doctrine at 763. at 754. Accordingly, if the state attempts to introduce a warrantless introduce to state attempts if the Accordingly, 146 Id. Id. 145 Schmerber We already saw that The exigent circumstances exception is not the only exception that exception is not the only The exigent circumstances 2. to Arrest Search Incident 149. 145. (Roberts, C.J., concurring in Missouri v. McNeely, 133 S.Ct. 1552, 1569 (2013) 146. Schmerber v. California, 384 U.S. 757, 769–70 (1966). 147. 395 U.S. 752 (1969). 148. M K part and dissenting in part). rant.” \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown 2014] Spring Seq: 23 6-FEB-14 10:00 breath test into evidence and invokes the search incident to arrest excep- incident to and invokes the search into evidence breath test time to there was insufficient to prove that the state will need tion then would be lost. evidence warrant before important obtain a dent to arrest exception did not extend to searches beyond the body’s dent to arrest exception did not surface. is rooted in tion; however, because this is an implicit prohibition it is necessary to this is an implicit prohibition tion; however, because has held that the more closely. The Supreme Court look at the exception to searches inside a arrest exception does not extend search incident to contemporaneous in such searches must be relatively suspect’s body and makes blood the arrest. Either of these limitations time and place with and breath testing impermissible. after might apply to justify breath tests. Another potential exception is the breath tests. Another potential might apply to justify have used to per- arrest exception, which a few courts search incident to above, I think one or breath searches. As noted mit warrantless blood must read Chimel’s home, arrested him in the living room and “the officers then Chimel’s home, arrested him in the house, including the attic, the looked through the entire three-bedroom this a search incident to arrest. garage, and a small workshop” calling preme Court also explained the search incident to arrest exception, not- preme Court also explained the search ing that the the rationale that excepts the search search must be commensurate with a warrantless search incident to ar- from the warrant requirement. Thus, area ‘into which an arrestee might rest . . . must be limited to the explaining the proper limits to a search incident to arrest, explaining the proper limits to a search the basic principle that “it is reasonable for the arresting officer to search the basic principle that “it is reasonable any weapons . . . [and] for the the person arrested in order to remove seize any evidence on the arrestee’s arresting officer to search for and or destruction.” person in order to prevent its concealment C Y 33996-nmx_44-1 Sheet No. 61 Side A 02/06/2014 10:11:19 A 02/06/2014 61 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 61 Side B 02/06/2014 10:11:19 M K 151 C Y [Vol. 44 Lower 155 More impor- 152 ’s comment on the ’s comment at 646. Id. Schmerber search would have been justified in , the Court explained that “[t]he jus- that “[t]he Court explained , the Chimel 156 the Court also stated that the purpose of the Court also stated 154 , Robinson NEW MEXICO LAW REVIEW , Gallagher v. United States, 406 F.2d 102, 107 n.3 (8th Cir. 1969) A suspect cannot “reach” into his blood stream or lungs to “reach” into his blood stream A suspect cannot Furthermore, in Furthermore, 153 at 645. The Court held that a different exception to the warrant require- Illinois v. Lafayette 150 See, e.g. Id. In Although these decisions did not explicitly examine searches inside examine searches did not explicitly these decisions Although 156. 151. States v. Robinson, 414 U.S. 218, 234 (1973). United 152.v. Thronsen, 809 P.2d 941, 943 (Alaska Ct. App. 1991) (“All of the cases State 153. is that a suspect could vomit and thus purge the stomach of One possibility 154. 462 U.S. 640 (1983). 155. 150. v. Murphy, 412 U.S. 291, 295 (2000) (internal citations and footnotes Cupp ment applied once the suspect arrived at the station and his or her belongings needed to be administratively inventoried—“the inventory search.” this case without a formal arrest and without a warrant.”). this case without a formal arrest and without that a defendant cannot be convicted for we have reviewed support the conclusion These cases conclude that a person who has possession of cocaine in his or her body. over the cocaine and therefore does not cocaine in his or her body has no control have possession.”). level from rising; however, whether we could alcohol to prevent one’s blood alcohol doubtful, in part because alcohol in the stom- consider this destruction of evidence is not affect a suspect’s sobriety level. ach, which has not yet been digested, does (“lawful arrest will support a properly limited incidental search”); Giles v. Ackerman, 746 F.2d 614, 616 (9th Cir. 1984) (“[I]ntrusions into the arrestee’s body, including by ar- body cavity searches as authorized by the County’s policy, are not authorized omitted) (“[W]e do not hold that a full omitted) (“[W]e do not hold that a full reach.’” \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown112 Seq: 24 6-FEB-14 10:00 remove alcohol. tification or reason for the authority to search incident to a lawful arrest incident to a authority to search or reason for the tification to take him suspect in order need to disarm the as much on the rests quite his person.” evidence on the need to preserve as it does on into custody of a suspect’s body, they are consistent with consistent with body, they are of a suspect’s limits of searches incident to arrest. First, we do not normally consider a incident to arrest. First, we do not limits of searches For exam- blood stream to be “in his possession.” substance in a person’s it is legal and then marijuana in a country where ple, if a person consumes in his blood States, the person may have chemicals flies to the United not regard this as in his possession. stream, but we do the search incident to arrest exception placed limits on the search of the to arrest exception placed limits the search incident a search incident to arrest would person, noting: “the interests supporting on the street, but the practical necessi- hardly justify disrobing an arrestee may even justify taking a prisoner’s ties of routine jail administration that step would be rare.” clothes before confining him, although tantly, however, the suspect in custody has no ability to “destroy” the the suspect in custody has no ability tantly, however, evidence. courts have also widely held that the search incident to arrest exception courts have also widely held that searches, and other types of searches does not justify strip searches, cavity that invade an arrestee’s body. 33996-nmx_44-1 Sheet No. 61 Side B 02/06/2014 10:11:19 B 02/06/2014 61 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 62 Side A 02/06/2014 10:11:19 113 Gant 163 A suspect is Additionally, 164 161 At trial, the government At trial, 158 also indicates that the search of , police arrested the suspect for a the suspect , police arrested Finally, the Court dictated that: “if Finally, the Court Gant 162 Gant for the proposition that “a search inci- for the proposition The Court held that where evidence is The Court held 159 , 395 U.S. at 763). Chimel Chimel is the most important recent Supreme Court case Supreme recent most important is the 157 WARRANTLESS BREATHALYZER TESTS BREATHALYZER WARRANTLESS at 337. at 339 (quoting at 336. The Court cited The Court cited Id. Id. Id. Id. Id. Id. Id. 160 Arizona v. Gant Arizona 162. 163. 164. 159. 160. 161. 157. 556 U.S. 332 (2009). 158. M K rest alone.”); Chapman v. Nichols, 989 F.2d 393, 395–96rest alone.”); Chapman v. Nichols, 989 F.2d (10th Cir. 1993) (holding that a “strip search,” which is generally not arrest alone does not permit police to conduct 97 N.Y.2d 209 (2002) (holding that search allowed prior to booking); People v. More, body cavity searches); Smith v. State, 557 incident to arrest does not alone justify (“A search for blood cannot be based on the S.W.2d 299, 302 (Tex. Crim. App. 1977) Moss v. Commonwealth, 516 S.E.2d 246, 250 incident to a lawful arrest exception.”); ‘clear indication’ that contraband was located (Va. App. 1999) (“Even if there was a present in this case justifying a warrantless in Moss’ body, there were no exigencies that Moss had a concealed weapon, nor was search. Nothing in the record suggests there a risk of destruction of evidence.”). \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown 2014] Spring Seq: 25 6-FEB-14 10:00 traffic offense, “handcuffed, and locked [the suspect] in the back of a suspect] in and locked [the “handcuffed, traffic offense, cocaine his car and discovered searched [while] police officers patrol car on the backseat.” of a jacket in the pocket on searches incident to arrest. In incident to arrest. on searches dent to arrest may only include ‘the arrestee’s person and the area ‘within only include ‘the arrestee’s person dent to arrest may within which he might . . . [that is,] the area from his immediate control’ a weapon or destructible evidence.” gain possession of not at risk of destruction the search incident to arrest exception does not the search incident to arrest not at risk of destruction apply. there is no possibility that an arrestee could reach into the area that law that an arrestee could reach there is no possibility for the search-in- seek to search, both justifications enforcement officers and the rule does not apply.” cident-to-arrest exception are absent sought to introduce this evidence, claiming police obtained it during a police obtained evidence, claiming introduce this sought to to arrest. valid search incident the Court discussed how that limitation defined the boundaries of the how that limitation defined the Court discussed arrest exception. search incident to unable to reach into his lungs or blood stream to remove alcohol and unable to reach into his lungs or that the search incident to arrest ex- destroy evidence, making it unlikely ception would apply to breath tests. dictates that arrest justifies a search of the person. A breath test is a dictates that arrest justifies a search search of the person. Nonetheless, control is limited to the dual “purposes the person and the area under his safeguarding any evidence of the of- of protecting arresting officers and conceal or destroy.” fense of arrest that an arrestee might C Y 33996-nmx_44-1 Sheet No. 62 Side A 02/06/2014 10:11:19 A 02/06/2014 62 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 62 Side B 02/06/2014 10:11:19 M K C Y [Vol. 44 searches, . The Court . The , 133 S.Ct. 1958, Terry McNeely Maryland v. King , members of the Court were dis- of the Court were , members Id. at 582 (quoting Bradley, Two Models of the 1468, 1473–74 (1985)). “Since then,” Scalia , the State proposed a “broad reading proposed a “broad , the State . Id. EV McNeely Gant and . L. R In contrast, there are relatively few warrants. In contrast, there are relatively few 168 NEW MEXICO LAW REVIEW that “[e]ven before today’s decision, the ‘warrant that “[e]ven before ICH 166 M Gant Thus, I think we see a common concern in many of see a common concern in many Thus, I think we 167 169 Court was concerned that the search incident to arrest Court was concerned that the search Justice Scalia’s scathing dissent in In both appears to have much in common with with in common much to have appears Gant 165 at 350. See also Id. Indeed, in 1991, Justice Scalia noted in his concurring opinion in Justice Scalia noted in his concurring Indeed, in 1991, The Gant to think that the search incident There is also a more general reason stops by local police. Floyd v. City of New York, 283 F.R.D. 153, 159 (S.D.N.Y. 168.and 2009 there were 2.8 million For example, in New York City between 2004 169. 166. v. Acevedo, 500 U.S. 565 (1991) (Scalia, J., concurring). California 167. Scalia quoted a law review article that found “nearly 20 such excep- Justice 165. 1980 (arguing that the warrant requirement has been severely eroded.) added, “we have added at least two more.” Terry 2012). tions, including ‘searches incident to arrest . . . automobile searches . . . border tions, including ‘searches incident to businesses . . . exigent circumstances searches . . . administrative searches of regulated there is probable cause to arrest . . . boat . . . search[es] incident to nonarrest when searches . . . inventory searches . . . airport boarding for document checks . . . welfare searches . . . school search[es]. . . .’” Fourth Amendment, 83 has repeatedly stated that courts should narrowly construe exceptions to construe courts should narrowly stated that has repeatedly In requirement. the warrant of” the search incident to arrest exception, which the Court called “un- which the Court arrest exception, incident to of” the search founded.” \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown114 Seq: 26 6-FEB-14 10:00 turbed that courts and officers stretched the exceptions to the warrant the exceptions to stretched courts and officers turbed that them. Thus, the beyond the justifications that created requirement well needed to draw a line. Court felt that it California v. Acevedo exception was overused. If this analysis is correct, the Court is sticking to exception was overused. If this analysis incident to arrest. Therefore, it is hard a narrow interpretation of search willing to permit the stretching of the to imagine that the Court would be to permit searches inside an arrestee’s search incident to arrest exception body. to blood or breath testing. All of the to arrest exception does not apply are premised on the idea that a exceptions to the warrant requirement exigent circumstances searches, searches incident to arrest and automo- searches, searches incident exigent circumstances bile exception searches. these recent search and seizure cases: the vast majority of searches occur and seizure cases: the vast majority these recent search United States each to the warrant requirement. In the under exceptions of millions of special needs searches, year, there are tens Justice Scalia, at least, seems concerned that the exceptions have swal- Justice Scalia, at least, seems concerned lowed the rule. requirement’ had become so riddled with exceptions that it was basically become so riddled with exceptions requirement’ had unrecognizable.” 33996-nmx_44-1 Sheet No. 62 Side B 02/06/2014 10:11:19 B 02/06/2014 62 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 63 Side A 02/06/2014 10:11:19 171 , 115 the 177 , Preston v. This indi- In his con- 173 172 In 174 Chimel v. Califor- Terry v. Ohio Terry v. In 170 The Ninth Circuit has see also Commonwealth v. Pierre, 178 see also United States v. Chadwick , 376 U.S. at 367). Preston ’s exact language. , Chief Justice Roberts quoted this proposi- , Chief Justice Roberts Similarly, in 176 Preston McNeely WARRANTLESS BREATHALYZER TESTS BREATHALYZER WARRANTLESS the Court explained that the justifications for the search the Court explained that the justifications and further explained that “[r]equiring police to apply for that “[r]equiring police to apply and further explained 175 , Terry at 20 (internal citations omitted). Id. Finally, there is yet another potential problem in applying the search Finally, there is yet another potential 177. 433 U.S. 1 (1977). 178. United States v. Chadwick, 433 U.S. 1, 15; 173. v. McNeely, 133 S.Ct. 1552, 1573 (2013) (Roberts, C.J. concurring in Missouri 174. States v. Ventresca (1965) 380 U.S. 102, 107, n.2 (1965) (“The rule United 175. 376 U.S. 364 (1964). 176. Preston v. United States, 376 U.S. 364, 367 (1964); 170. v. Ramirez, 540 U.S. 551, 560 (2004) (quoting McDonald v. United Groh 171. 1 (1968). 392 U.S. 172. M K 893 N.E.2d 378, 384 (Mass. App. Ct. 2008) (“The case law interpreting the Fourth part and dissenting in part). to arrest) is justified, for example, by allowing contemporaneous searches (incident which might be used to assault an officer the need to seize weapons and other things to prevent the destruction of evidence of or effect an escape, as well as by the need the crime—things or evidence is on the which might easily happen where the weapon accused’s person or under his immediate control.”). nia, 395 U.S. 752, 764 (1969) (quoting States, 335 U.S. 451, 455 (1948)). warrant is impractical in certain circumstances. The Supreme Court has Court The Supreme circumstances. in certain is impractical warrant Amend- the Fourth some grave emergency, noted: “Absent repeatedly police. This the citizen and the between interposed a magistrate ment has to invade weigh the need mind might . . . so that an objective was done the law.” to enforce privacy in order [the citizen’s] obtain whenever practicable, “the police must, explained that the Court through the warrant approval of searches and seizures advance judicial with the warrant in most instances, failure to comply procedure, [and] only be excused by exigent circumstances.” requirement can \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown 2014] Spring Seq: 27 6-FEB-14 10:00 incident to arrest exception “are absent where a search is remote in time incident to arrest exception “are absent or place from the arrest.” tion from a neutral, detached increases the likelihood that a warrant if practicable that there is proba- review the case, helping to ensure judicial officer will search and that any search is reasonable.” ble cause for any curring opinion in curring opinion in United States cates the Court’s preference that when police have time to obtain a preference that when police have cates the Court’s could easily obtain a do so. Accordingly, if police warrant they should which they cannot conduct a breath warrant in the one-hour period in could apply. test it is hard to see how any exception searches. The case law discussing incident to arrest exception to breath applicable if the search is conducted this exception holds that it is only place of the arrest. “contemporaneous” to the time and Supreme Court quoted C Y 33996-nmx_44-1 Sheet No. 63 Side A 02/06/2014 10:11:19 A 02/06/2014 63 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 63 Side B 02/06/2014 10:11:19 M K 180 C Y [Vol. 44 181 United States v. . Additionally, af- McNeely , 477 A.2d 1356, 1364 (Pa. Super. Ct. Furthermore, in 183 185 The Massachusetts Court of Appeals of Court Massachusetts The 179 , the Maine Supreme Court concluded that the , the Maine Supreme NEW MEXICO LAW REVIEW Commonwealth v. Anderl Schmerber People v. Ingham, 6 Cal. Rptr. 2d 756 (Cal. Ct. App. 1992) (holding that People v. Ingham, 6 Cal. Rptr. 2d 756 at 891 (internal citation omitted). the Sixth Circuit explicitly rejected the search incident to arrest the Sixth Circuit explicitly rejected See Id. The Missouri Supreme Court did so in The Missouri Supreme 184 , With respect to breath and blood searches in drunk-driving cases, a and blood searches in drunk-driving With respect to breath held that the search incident to Most other courts have implicitly 182 179. Tarazon, 989 F.2d 1045, 1051 (citing United States v. Turner, 926 F.2d U.S. v. 180. v. Pierre, 893 N.E.2d 378, 383 (Mass. App. Ct. 2008) (internal Commonwealth 181. 182. under the search incident to One court has allowed a warrantless breath test 183. State v. Baker, 502 A.2d 489, 492 (Me. 1985). 184. 866 F.2d 887 (6th Cir. 1989). 185. ter analyzing Supreme Court did not “sanction an involuntary blood test based on the Supreme Court did not “sanction doctrine of search incident to arrest.” Amendment demonstrates, however, that the contemporaneity requirement contin- Amendment demonstrates, however, that case, where the search did not occur at the ues to have meaning. Accordingly, this crossed that line.”). time or at the place of arrest, has surely 883, 887–88 1991)) (noting that the search incident to arrest exception ap- (9th Cir. delay occurs and where the arrestee is not far plies “to situations in which only a short removed from the area searched”). citations omitted). and police failed to search the purse at the when a suspect was arrested with her purse the purse without first obtaining a warrant). time of arrest, police cannot later search arrest exception. In also made this same observation. made this also a reasonable might constitute of time that the precise amount Although suspect’s breath con- it is doubtful that a search of a delay is debatable, of the arrest would and miles away from the place ducted an hour later if police had time to delay. This is especially true constitute a reasonable generally cannot in the interim. Thus, the government obtain a warrant a search officers con- to arrest exception to justify use the search incident an arrestee to another location. ducted after transporting \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown116 Seq: 28 6-FEB-14 10:00 exception in drunk driving cases, stating: “[t]he rationale for a search inci- exception in drunk driving cases, stating: directly support the taking of a blood dent to arrest exception does not test without the suspect’s consent.” 1984), the Pennsylvania Superior Court held that breath tests were admissible under 1984), the Pennsylvania Superior Court held that breath tests were admissible both the exigent circumstances and the search incident to arrest exceptions, without providing its reasoning. few courts have explicitly rejected the search incident to arrest excep- explicitly rejected the search incident few courts have tion. blood or breath tests. For example, in arrest exception does not justify surveyed the case law and concluded that: “[t]he Federal Circuit cases . . . “[t]he Federal Circuit concluded that: the case law and surveyed and an other- an arrest delay between to allow a ‘reasonable’ do purport issue was no the delay at but in each instance search, wise permissible the arrest.” at the scene of and the search was a few minutes more than Berry 33996-nmx_44-1 Sheet No. 63 Side B 02/06/2014 10:11:19 B 02/06/2014 63 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 64 Side A 02/06/2014 10:11:19 117 While the reasoning, searches as 187 to invoke the United States v. the New Hamp- 188 , ‘fell within the exigent- Schmerber 189 Schmerber Schmerber , the Ninth Circuit has gen- Burnett v. Municipality of Schmerber searches as searches incident did not explicitly say that law State v. Stern However, in Chapel 191 Chapel Schmerber 194 re-characterized warrantless WARRANTLESS BREATHALYZER TESTS BREATHALYZER WARRANTLESS that the seizure of blood in the North Carolina Supreme Court held: “Since the held: “Since Court Supreme North Carolina the 186 , . It is clear then that the breathalyzer examination in question is an . It is clear then that the breathalyzer examination the Ninth Circuit heavily relied on the Ninth Circuit heavily relied on Chapel Harvey 190 , the Ninth Circuit, sitting en banc, overruled its prior line of the Ninth Circuit, sitting en banc, 193 at 1418–19 (“We now know from the Supreme Court’s reasoning in a case at 1450 (“[T]he breath test sought by the Alaska law enforcement officials at 1450 (“[T]he breath test sought by the at 68 (“To be constitutional, the exigent circumstances exception to the at 68 (“To be constitutional, the exigent at 793. 192 , Id. Id. Id. Id. Id. Schmerber In drunk driving cases, a handful of courts have used the search inci- cases, a handful of courts have used In drunk driving 192. 55 F.3d 1416 (9th Cir. 1995) (en banc). 193. 194. 190. 1447 (9th Cir. 1986). 806 F.2d 191. 188. 64 (N.H. 2004). 846 A.2d 189. 186. 789 (N.C. 1986). 342 S.E.2d 187. M K decided after circumstances exception to the warrant requirement.’”)470 Lee, v. Winston (quoting U.S. 753, 759 (1985)). is clearly a less objectionable intrusion than the compulsory blood samples allowed is clearly a less objectionable intrusion under consti- appropriate and reasonable search incident to arrest which appellants have no tutional right to refuse.”). warrant requirement must apply.”). exigent circumstances searches. State v. Welch State \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown 2014] Spring Seq: 29 6-FEB-14 10:00 cases, which had required custodial arrest as a prerequisite to warrantless cases, which had required custodial searches and had characterized dent to arrest exception in an attempt to follow the in an attempt to follow the dent to arrest exception to arrest. withdrawal of a blood sample is subject to [F]ourth [A]mendment re- to [F]ourth [A]mendment is subject of a blood sample withdrawal may be before a suspect must be procured a search warrant quirements, and exigent probable cause a procedure unless to submit to such required search.” justify a warrantless exist that would circumstances although many of the courts that once invoked search incident to arrest in the courts that once invoked search although many of exception in favor of have since abandoned that blood or breath testing In the exigent circumstances exception. Anchorage search incident to arrest exception. enforcement officers could never use the search incident to arrest excep- enforcement officers could never tion to support a blood test, but, since Chapel shire Supreme Court implicitly held that the search incident to arrest implicitly held that the search shire Supreme Court when it explicitly justify a warrantless search of blood exception did not only exception that circumstances exception was the held that the exigent draw in drunk driving cases. could justify a blood Court did not explicitly reject search incident to arrest, the comment that to arrest, the search incident not explicitly reject Court did circumstances logi- a warrant unless there are exigent the law requires other exception. In cally precludes any C Y 33996-nmx_44-1 Sheet No. 64 Side A 02/06/2014 10:11:19 A 02/06/2014 64 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 64 Side B 02/06/2014 10:11:19 M K C Y [Vol. 44 State v. State search, In 195 United States v. the Mississippi Schmerber 198 , the Alaska Court of the Alaska Court 203 , Court relied on the search incident to 204 , 140 F.3d 1289, 1291–92 (9th Cir. 1998), Additionally, in Additionally, in Gregg v. State Gregg v. 200 Wing v. State Schmerber to forbid blood draws under the search inci- to forbid blood draws under the Finally, in NEW MEXICO LAW REVIEW 202 Similarly, in Similarly, United States v. Edmo 197 McNeely , Holloman v. State, 820 So. 2d 52, 55 (Miss. Ct. App. 2002) (“A war- the Wisconsin Supreme Court explained that the search inci- Court explained Supreme the Wisconsin In recent years Mississippi courts, however, have relied on exi- courts, however, have relied In recent years Mississippi at 1304 (“[O]ur decision here upholds the ‘intrusion’ into Gregg’s body at 1304 (“[O]ur decision here upholds at 1109–10. at 400. Later Wisconsin cases, however, allow blood searches under the at 400. Later Wisconsin cases, however, 196 , 199 the Fourth Circuit also held that breathalyzer searches are justifi- also held that breathalyzer searches the Fourth Circuit , State v. Faust, 682 N.W.2d 371, 377–78 (Wis. 2004) (requiring an emergency See, e.g. Id. Id. Id. Id. If one reads 201 , 200. 198. 2d 1301 (Miss. 1979). 374 So. 199. 201. 929 F.2d 990 (4th Cir. 1991). 202. 203. 268 P.3d 1105, 1110 (Alaska Ct. App. 2012). 204. 196. 399 (Wis. 1993). 494 N.W.2d 197. 195. in Nonetheless, (extracting blood) as an incident to the officer’s lawful arrest of him and the prevail- (extracting blood) as an incident to the ing exigencies.”). exigent circumstances exception, not under the search incident to arrest exception. exigent circumstances exception, not under See, e.g. law, but continuing to require a prior sufficient to justify an exigency under federal lawful arrest). rantless search is permissible in certain exigent circumstances if it can be shown that rantless search is permissible in certain exigent circumstances if it can be shown grounds existed to conduct the search that, had time permitted, would have reasona- bly satisfied a disinterested magistrate that a warrant should properly issue.”). dent to arrest exception because that exception does not permit searches dent to arrest exception because that then the same reasoning would beyond the external body of the suspect, suspect’s breath. One could make an appear to apply to searches of a a blood search, does not intrude argument that the breath search, unlike does not intrude inside the sus- beneath a suspect’s skin and (perhaps) a breathalyzer test only analyzes a sus- pect’s body at all. That is to say, arrest exception. the Ninth Circuit discussed how the erally relied on exigent circumstance to justify blood tests. blood to justify circumstance on exigent relied erally \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown118 Seq: 30 6-FEB-14 10:00 able under either the search incident to arrest exception or exigent cir- the search incident to arrest exception able under either cumstances exception. dent to arrest exception might justify a warrantless blood search in cer- blood justify a warrantless exception might dent to arrest tain circumstances. gent circumstances to justify blood searches and have not applied the to justify blood searches and gent circumstances arrest exception. search incident to Reid Bohling Supreme Court also upheld blood draws as a hybrid blood draws Court also upheld Supreme the search incident breath tests are permissible under Appeals held that on the fact that however, the court based this holding to arrest doctrine; and offered no conceded that the exception applied the defendant had support its decision. other reasoning to which they described as part incident to arrest and part exigent circum- and part exigent incident to arrest described as part which they stances. 33996-nmx_44-1 Sheet No. 64 Side B 02/06/2014 10:11:19 B 02/06/2014 64 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 65 Side A 02/06/2014 10:11:19 119 Skinner As Chief Justice Rob- 206 noted this was a search, in was a search, noted this Skinner is worth noting. The Court has yet to decide is directly relevant to this analysis. If elimination McNeely IV. CONCLUSION 205 McNeely WARRANTLESS BREATHALYZER TESTS BREATHALYZER WARRANTLESS Atwater v. City of Largo Vista, 532 U.S. 318, 340 n.11 (2001). Atwater v. City of Largo Vista, 532 U.S. held that, “[i]n those drunk-driving investigations where held that, “[i]n those drunk-driving See Only Justice Thomas dissented from this basic principle, and Only Justice Thomas dissented from 207 at 1569 (Roberts, C.J., concurring in part and dissenting in part). Id. Thus, the argument that a breath test does not examine beneath the that a breath test does not examine Thus, the argument McNeely 205. application of One final 206. Missouri v. McNeely, 133 S.Ct. 1552, 1555 (2013). 207. M K part because the test relies on testing deep lung, alveolar breath. Also, lung, alveolar on testing deep the test relies part because into a tube and blowing by breathing deeply must cooperate the suspect air from deep in the Thus, the test is about analyzing placed in her mouth. Of course, one a passive detection of exhalations. lungs and is not simply tests do not intrude reasoning to argue that urine could use the same collecting urine from surface because police are not beneath the body’s once the suspect but are only collecting the urine the bladder directly such an argument seen, courts are unlikely to accept expels it. As we have for breath. is only slightly less implausible for urine. The argument The other two consid- a suspect’s body seems dubious. external surface of erations—thatpolice officers be contemporaneous and that a search must had no time to obtain a warrant—are to breath tests as just as applicable difficult to provide any acceptable to blood tests. Therefore, it appears and breath testing with respect to basis for distinguishing between blood search incident to arrest. pect’s breath once it has left the suspect’s body. Additionally, though the though Additionally, body. suspect’s left the once it has breath pect’s go down the the tube does not suspect’s mouth, slightly into the tube goes that this argument is problem with throat. One major suspect’s rejected it. to have already appears \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown 2014] Spring Seq: 31 6-FEB-14 10:00 whether misdemeanors which do not occur in the presence of police require a warrant whether misdemeanors which do not occur prior to arrest. nor- States have arrest statutes which explicitly exempt drunk driving arrests from the to mal rule that misdemeanors not occurring in the presence of police require police obtain a warrant. The justification for this seems to be that the exigent circumstances require immediate arrest. police officers can reasonably obtain a warrant before a blood sample can police officers can reasonably obtain the efficacy of the search, the be drawn without significantly undermining they do so.” Fourth Amendment mandates that of alcohol is not necessarily sufficient to justify a warrantless search, it would also not of alcohol is not necessarily sufficient to justify a warrantless search, it would also be sufficient to justify warrantless seizure of the person. erts summarized in his concurring opinion: “Our cases establish that there erts summarized in his concurring to the warrant requirement. That is an exigent circumstances exception compelling need to prevent the immi- exception applies when there is a and there is no time to obtain a nent destruction of important evidence, warrant.” C Y 33996-nmx_44-1 Sheet No. 65 Side A 02/06/2014 10:11:19 A 02/06/2014 65 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 65 Side B 02/06/2014 10:11:19 M K C Y [Vol. 44 is that the state will undoubtedly McNeely Schmerber NEW MEXICO LAW REVIEW ’s effective overruling of ’s effective , it is hard to see how such warrantless searches of blood warrantless searches to see how such , it is hard McNeely at 1574–78 (Thomas J., dissenting). McNeely Id. This holding seriously calls into question the practice of warrantless into question the seriously calls This holding 208 208. endorsed a per se exception to the warrant requirement for alcohol test- for alcohol requirement the warrant to se exception a per endorsed ing. \\jciprod01\productn\N\NMX\44-1\NMX103.txt unknown120 Seq: 32 6-FEB-14 10:00 will need to either establish that there was no time to apply for a warrant establish that there was no time will need to either will need to obtain a a blood or breath test or the state before conducting drunk driving cases. breath, and/or urine tests in all warrant for blood, breathalyzer testing. If courts apply the bright-line rules the Court articu- rules the apply the bright-line testing. If courts breathalyzer lated in need. Ad- of particularized without a showing are constitutional or breath ditionally, driving cases for effects on the prosecution of drunk have widespread of the principle results of years to come. One 33996-nmx_44-1 Sheet No. 65 Side B 02/06/2014 10:11:19 B 02/06/2014 65 Side Sheet No. 33996-nmx_44-1