Academic journal article The Review of Litigation

Warrantless Blood Tests, Drunk Driving, and "Exigent Circumstances": Preserving the Liberty Guarantee of the Fourth Amendment While Evolving the Exceptions to the Warrant Requirement

Academic journal article The Review of Litigation

Warrantless Blood Tests, Drunk Driving, and "Exigent Circumstances": Preserving the Liberty Guarantee of the Fourth Amendment While Evolving the Exceptions to the Warrant Requirement

Article excerpt

PREFACE............................................................................................28

I. INTRODUCTION..........................................................................30

II. THE FOURTH AMENDMENT AND WARRANTLESS SEARCHES: ESTABLISHING THE FOUR CORNERSTONES OF THE LIBERTY GUARANTEE PROHIBITING UNREASONABLE SEARCHES AND SEIZURES...................................................................................34

A. The First Cornerstone: Reasonableness as an Imperative for Warrantless Searches..................................................36

B. The Second Cornerstone: When the Clear and Present Danger of the Destruction of Evidence Excuses a Warrantless Search...........................................................39

C. The Third Cornerstone: Brigham City v. Stuart and the Advent of the Totality of the Circumstances Test..............43

D. The Fourth Cornerstone: ''Exigent Circumstances " and the Fourth Amendment-The Kentucky v. King Formulation.......................................................................47

III. SCHMERBER AS THE ROOT OF THE MODERN CONTROVERSY......56

IV. MCNEELY: A CONFIRMATION OF THE TOTALITY OF THE CIRCUMSTANCES TEST..............................................................66

V. A POSTSCRIPT: MARYLAND V. KING AND THE FUTURE OF THE FOURTH AMENDMENT...............................................................90

VI. ANALYSIS AND COMMENTARY..................................................94

A. Ker 's Reasonableness Requirement..................................94

B. The Destruction-of-Evidence Doctrine as a Check on Warrantless Searches........................................................96

C. Brigham City's Totality of the Circumstances................106

D. King 's Exigent Circumstances........................................108

E. McNeely's Incorporation of the Four Cornerstones......Ill

VII. OUR CODA..............................................................................115

VIII. CONCLUSION...........................................................................116

PREFACE

"The right of the people to be secure in their persons . . . shall not be violated, and no Warrants shall issue, but upon probable cause ... ."1

In the noble experiment of American freedom, the Fourth Amendment serves as a protection for our system of ordered liberty. The Fourth Amendment is unyielding in requiring governmental agents to obtain a warrant before conducting a search of a citizen or property. A warrant is issued only upon a showing of good cause made before a "neutral and detached magistrate."2 The Fourth Amendment keeps the American people free from insidious or petty governmental intrusions into their homes, their properties or possessions, and most of all, their persons.

Yet as inviolate as the liberty guaranteed by the Fourth Amendment is known to be, it has its exceptions-"[A] warrantless search of the person is reasonable only if it falls within a recognized exception."3 Over many decades, the Supreme Court has meticulously crafted a parsimonious set of exceptions to the warrant requirement. Grounded upon what the Supreme Court has decreed as "exigent circumstances," the Justices have further combined these exceptions by creating a body of limitations based upon both the totality of the circumstances and reasonableness.4

At the confluence of these many facets of Fourth Amendment jurisprudence is a surprising issue: drunk-driving arrests5 and the subsequent warrantless taking of the suspect's blood sample for testing.6 Decades ago, the Supreme Court held that in proper and strictly delimited circumstances, a warrantless blood test taken in a drunk-driving scenario might pass constitutional muster.7 The Supreme Court continues to wrestle with the boundaries of that exception, as the Justices remain overtly vigilant in confining the exception within the borders erected by the Court over the years. …

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