MISSOURI v. MCNEELY
On October 3, 2010, Missouri state police officer Mark Winder saw Tyler McNeely driving above the speed limit. When Winder followed McNeely to pull him over, he saw McNeely cross the centerline three times. Upon making contact with McNeely, Wilder observed that his eyes were red and glassy, and that his breath smelled like alcohol. McNeely performed poorly on four field sobriety tests and refused to submit to a portable breath test. Wilder arrested McNeely for driving while intoxicated and transported him to a hospital to obtain a blood sample. Wilder read McNeely the Missouri Implied Consent statement, and McNeely still refused to submit the sample. Wilder ordered the sample taken anyway, and the blood test revealed McNeely’s blood alcohol level was far above the legal limit.
The state charged McNeely with driving while intoxicated, and McNeely moved to suppress the evidence of the blood sample because it was obtained without a warrant. The trial court granted the defendant’s motion. The state appealed and argued that the risk of McNeely’s blood alcohol level decreasing over time represented an exigent circumstance requiring a blood draw. The Missouri Court of Appeals held that the trial court erred, but that the case represented a departure from current case law; it transferred the case to the Missouri Supreme Court. The Supreme Court of Missouri affirmed the trial court’s decision.
Does the Fourth Amendment prevent the taking of a warrantless blood sample under exigent circumstances?
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
MISSOURI, PETITIONER v. TYLER G. McNEELY
on writ of certiorari to the supreme court of missouri
[April 17, 2013]
Justice Sotomayor announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, and an opinion with respect to Parts II–C and III, in which Justice Scalia, Justice Ginsburg, and Justice Kagan join.
In Schmerber v. California, 384 U. S. 757 (1966) , this Court upheld a warrantless blood test of an individual arrested for driving under the influence of alcohol because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.” Id., at 770 (internal quotation marks omitted). The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.I
While on highway patrol at approximately 2:08 a.m., a Missouri police officer stopped Tyler McNeely’s truck after observing it exceed the posted speed limit and repeatedly cross the centerline. The officer noticed several signs that McNeely was intoxicated, including McNeely’s bloodshot eyes, his slurred speech, and the smell of alcohol on his breath. McNeely acknowledged to the officer that he had consumed “a couple of beers” at a bar, App. 20, and he appeared unsteady on his feet when he exited the truck. After McNeely performed poorly on a battery of field-sobriety tests and declined to use a portable breath-test device to measure his blood alcohol concentration (BAC), the officer placed him under arrest.
The officer began to transport McNeely to the station house. But when McNeely indicated that he would again refuse to provide a breath sample, the officer changed course and took McNeely to a nearby hospital for blood testing. The officer did not attempt to secure a warrant. Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver’s license for one year and could be used against him in a future prosecution. See Mo. Ann. Stat. §§577.020.1, 577.041 (West 2011). McNeely nonetheless refused. The officer then directed a hospital lab technician to take a blood sample, and the sample was secured at approximately 2:35 a.m. Subsequent laboratory testing measured McNeely’s BAC at 0.154 percent, which was well above the legal limit of 0.08 percent. See §577.012.1.
McNeely was charged with driving while intoxicated (DWI), in violation of §577.010. 1 He moved to suppress the results of the blood test, arguing in relevant part that, under the circumstances, taking his blood for chemical testing without first obtaining a search warrant violated his rights under the Fourth Amendment. The trial court agreed. It concluded that the exigency exception to the warrant requirement did not apply because, apart from the fact that “[a]s in all cases involving intoxication, [McNeely’s] blood alcohol was being metabolized by his liver,” there were no circumstances suggesting the officer faced an emergency in which he could not practicably obtain a warrant. No. 10CG–CR01849–01 (Cir. Ct. Cape Giradeau Cty., Mo., Div. II, Mar. 3, 2011), App. to Pet. for Cert. 43a. On appeal, the Missouri Court of Appeals stated an intention to reverse but transferred the case directly to the Missouri Supreme Court. No. ED 96402 (June 21, 2011), id., at 24a.
The Missouri Supreme Court affirmed. 358 S. W. 3d 65 (2012) (per curiam). Recognizing that this Court’s decision in Schmerber v. California, 384 U. S. 757 , “provide[d] the backdrop” to its analysis, the Missouri Supreme Court held that “Schmerber directs lower courts to engage in a totality of the circumstances analysis when determining whether exigency permits a nonconsensual, warrantless blood draw.” 358 S. W. 3d, at 69, 74. The court further concluded that Schmerber “requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case.” 358 S. W. 3d, at 70. According to the court, exigency depends heavily on the existence of additional “ ‘special facts,’ ” such as whether an officer was delayed by the need to investigate an accident and transport an injured suspect to the hospital, as had been the case in Schmerber. 358 S. W. 3d, at 70, 74. Finding that this was “unquestionably a routine DWI case” in which no factors other than the natural dissipation of blood-alcohol suggested that there was an emergency, the court held that the nonconsensual warrantless blood draw violated McNeely’s Fourth Amendment right to be free from unreasonable searches of his person. Id., at 74–75.
We granted certiorari to resolve a split of authority on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations. 2 See 567 U. S. ___ (2012). We now affirm.II A
The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” Our cases have held that a warrantless search of the person is reasonable only if it falls within a recognized exception. See, e.g., United States v. Robinson, 414 U. S. 218, 224 (1973) . That principle applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s “most personal and deep-rooted expectations of privacy.” Winston v. Lee, 470 U. S. 753, 760 (1985) ; see also Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 616 (1989) .
We first considered the Fourth Amendment restrictions on such searches in Schmerber, where, as in this case, a blood sample was drawn from a defendant suspected of driving while under the influence of alcohol. 384 U. S., at 758. Noting that “[s]earch warrants are ordinarily required for searches of dwellings,” we reasoned that “absent an emergency, no less could be required where intrusions into the human body are concerned,” even when the search was conducted following a lawful arrest. Id., at 770. We explained that the importance of requiring authorization by a “ ‘neutral and detached magistrate’ ” before allowing a law enforcement officer to “invade another’s body in search of evidence of guilt is indisputable and great.” Ibid. (quoting Johnson v. United States, 333 U. S. 10 –14 (1948)).
As noted, the warrant requirement is subject to exceptions. “One well-recognized exception,” and the one at issue in this case, “applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. King, 563 U. S. ___, ___ (2011) (slip op., at 6) (internal quotation marks and brackets omitted). A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement’s need to provide emergency assistance to an occupant of a home, Michigan v. Fisher, 558 U. S. 45 –48 (2009) (per curiam), engage in “hot pursuit” of a fleeing suspect, United States v. Santana, 427 U. S. 38 –43 (1976), or enter a burning building to put out a fire and investigate its cause, Michigan v. Tyler, 436 U. S. 499 –510 (1978). As is relevant here, we have also recognized that in some circumstances law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence. See Cupp v. Murphy, 412 U. S. 291, 296 (1973) ; Ker v. California, 374 U. S. 23 –41 (1963) (plurality opinion). While these contexts do not necessarily involve equivalent dangers, in each a warrantless search is potentially reasonable because “there is compelling need for official action and no time to secure a warrant.” Tyler, 436 U. S., at 509.
To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances. See Brigham City v. Stuart, 547 U. S. 398, 406 (2006) (finding officers’ entry into a home to provide emergency assistance “plainly reasonable under the circumstances”); Illinois v. McArthur, 531 U. S. 326, 331 (2001) (concluding that a warrantless seizure of a person to prevent him from returning to his trailer to destroy hidden contraband was reasonable “[i]n the circumstances of the case before us” due to exigency); Cupp, 412 U. S., at 296 (holding that a limited warrantless search of a suspect’s fingernails to preserve evidence that the suspect was trying to rub off was justified “[o]n the facts of this case”); see also Richards v. Wisconsin, 520 U. S. 385 –396 (1997) (rejecting a per se exception to the knock-and-announce requirement for felony drug investigations based on presumed exigency, and requiring instead evaluation of police conduct “in a particular case”). We apply this “finely tuned approach” to Fourth Amendment reasonableness in this context because the police action at issue lacks “the traditional justification that . . . a warrant . . . provides.” Atwater v. Lago Vista, 532 U. S. 318, 347, n. 16 (2001) . Absent that established justification, “the fact-specific nature of the reasonableness inquiry,” Ohio v. Robinette, 519 U. S. 33, 39 (1996) , demands that we evaluate each case of alleged exigency based “on its own facts and circumstances.” Go-Bart Importing Co. v. United States, 282 U. S. 344, 357 (1931) . 3
Our decision in Schmerber applied this totality of the circumstances approach. In that case, the petitioner had suffered injuries in an automobile accident and was taken to the hospital. 384 U. S., at 758. While he was there receiving treatment, a police officer arrested the petitioner for driving while under the influence of alcohol and ordered a blood test over his objection. Id., at 758–759. After explaining that the warrant requirement applied generally to searches that intrude into the human body, we concluded that the warrantless blood test “in the present case” was nonetheless permissible because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’ ” Id., at 770 (quoting Preston v. United States, 376 U. S. 364, 367 (1964) ).
In support of that conclusion, we observed that evidence could have been lost because “the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.” 384 U. S., at 770. We added that “[p]articularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.” Id., at 770–771. “Given these special facts,” we found that it was appropriate for the police to act without a warrant. Id., at 771. We further held that the blood test at issue was a reasonable way to recover the evidence because it was highly effective, “involve[d] virtually no risk, trauma, or pain,” and was conducted in a reasonable fashion “by a physician in a hospital environment according to accepted medical practices.” Ibid. And in conclusion, we noted that our judgment that there had been no Fourth Amendment violation was strictly based “on the facts of the present record.” Id., at 772.
Thus, our analysis in Schmerber fits comfortably within our case law applying the exigent circumstances exception. In finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the particular case and carefully based our holding on those specific facts.B
The State properly recognizes that the reasonableness of a warrantless search under the exigency exception to the warrant requirement must be evaluated based on the totality of the circumstances. Brief for Petitioner 28–29. But the State nevertheless seeks a per se rule for blood testing in drunk-driving cases. The State contends that whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because BAC evidence is inherently evanescent. As a result, the State claims that so long as the officer has probable cause and the blood test is conducted in a reasonable manner, it is categorically reasonable for law enforcement to obtain the blood sample without a warrant.
It is true that as a result of the human body’s natural metabolic processes, the alcohol level in a person’s blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated. See Skinner, 489 U. S., at 623; Schmerber, 384 U. S., at 770–771. Testimony before the trial court in this case indicated that the percentage of alcohol in an individual’s blood typically decreases by approximately 0.015 percent to 0.02 percent per hour once the alcohol has been fully absorbed. App. 47. More precise calculations of the rate at which alcohol dissipates depend on various individual characteristics (such as weight, gender, and alcohol tolerance) and the circumstances in which the alcohol was consumed. See Stripp, Forensic and Clinical Issues in Alcohol Analysis, in Forensic Chemistry Handbook 437–441 (L. Kobilinsky ed. 2012). Regardless of the exact elimination rate, it is sufficient for our purposes to note that because an individual’s alcohol level gradually declines soon after he stops drinking, a significant delay in testing will negatively affect the probative value of the results. This fact was essential to our holding in Schmerber, as we recognized that, under the circumstances, further delay in order to secure a warrant after the time spent investigating the scene of the accident and transporting the injured suspect to the hospital to receive treatment would have threatened the destruction of evidence. 384 U. S., at 770–771.
But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U. S. 451, 456 (1948) (“We cannot . . . excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made [the search] imperative”). We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect. Richards, 520 U. S., at 393.
The context of blood testing is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a “ ‘now or never’ ” situation. Roaden v. Kentucky, 413 U. S. 496, 505 (1973) . In contrast to, for example, circumstances in which the suspect has control over easily disposable evidence, see Georgia v. Randolph, 547 U. S. 103 , n. 6 (2006); Cupp, 412 U. S., at 296, BAC evidence from a drunk-driving suspect naturally dissipates over time in a gradual and relatively predictable manner. Moreover, because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant. See State v. Shriner, 751 N. W. 2d 538, 554 (Minn. 2008) (Meyer, J., dissenting). This reality undermines the force of the State’s contention, endorsed by the dissent, see post, at 3 (opinion of Thomas, J.), that we should recognize a categorical exception to the warrant requirement because BAC evidence “is actively being destroyed with every minute that passes.” Brief for Petitioner 27. Consider, for example, a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an exception to the warrant requirement.
The State’s proposed per se rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple. The Federal Rules of Criminal Procedure were amended in 1977 to permit federal magistrate judges to issue a warrant based on sworn testimony communicated by telephone. See 91Stat. 319. As amended, the law now allows a federal magistrate judge to consider “information communicated by telephone or other reliable electronic means.” Fed. Rule Crim. Proc. 4.1. States have also innovated. Well over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing. 4 And in addition to technology-based developments, jurisdictions have found other ways to streamline the warrant process, such as by using standard-form warrant applications for drunk-driving investigations. 5
We by no means claim that telecommunications innovations have, will, or should eliminate all delay from the warrant-application process. Warrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review. Telephonic and electronic warrants may still require officers to follow time-consuming formalities designed to create an adequate record, such as preparing a duplicate warrant before calling the magistrate judge. See Fed. Rule Crim. Proc. 4.1(b)(3). And improvements in communications technology do not guarantee that a magistrate judge will be available when an officer needs a warrant after making a late-night arrest. But technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s essential role as a check on police discretion, are relevant to an assessment of exigency. That is particularly so in this context, where BAC evidence is lost gradually and relatively predictably. 6
Of course, there are important countervailing concerns. While experts can work backwards from the BAC at the time the sample was taken to determine the BAC at the time of the alleged offense, longer intervals may raise questions about the accuracy of the calculation. For that reason, exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process. But adopting the State’s per se approach would improperly ignore the current and future technological developments in warrant procedures, and might well diminish the incentive for jurisdictions “to pursue progressive approaches to warrant acquisition that preserve the protections afforded by the warrant while meeting the legitimate interests of law enforcement.” State v. Rodriguez, 2007 UT 15, ¶46, 156 P. 3d 771, 779.
In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.C
In an opinion concurring in part and dissenting in part, The Chief Justice agrees that the State’s proposed per se rule is overbroad because “[f]or exigent circumstances to justify a warrantless search . . . there must . . . be ‘no time to secure a warrant.’ ” Post, at 6 (quoting Tyler, 436 U. S., at 509). But The Chief Justice then goes on to suggest his own categorical rule under which a warrantless blood draw is permissible if the officer could not secure a warrant (or reasonably believed he could not secure a warrant) in the time it takes to transport the suspect to a hospital or similar facility and obtain medical assistance. Post, at 8–9. Although we agree that delay inherent to the blood-testing process is relevant to evaluating exigency, see supra, at 10, we decline to substitute The Chief Justice’s modified per se rule for our traditional totality of the circumstances analysis.
For one thing, making exigency completely dependent on the window of time between an arrest and a blood test produces odd consequences. Under The Chief Justice’s rule, if a police officer serendipitously stops a suspect near an emergency room, the officer may conduct a nonconsensual warrantless blood draw even if all agree that a warrant could be obtained with very little delay under the circumstances (perhaps with far less delay than an average ride to the hospital in the jurisdiction). The rule would also distort law enforcement incentives. As with the State’s per se rule, The Chief Justice’s rule might discourage efforts to expedite the warrant process because it categorically authorizes warrantless blood draws so long as it takes more time to secure a warrant than to obtain medical assistance. On the flip side, making the requirement of independent judicial oversight turn exclusively on the amount of time that elapses between an arrest and BAC testing could induce police departments and individual officers to minimize testing delay to the detriment of other values. The Chief Justice correctly observes that “[t]his case involves medical personnel drawing blood at a medical facility, not police officers doing so by the side of the road.” Post, at 6–7, n. 2. But The Chief Justice does not say that roadside blood draws are necessarily unreasonable, and if we accepted The Chief Justice’s approach, they would become a more attractive option for the police.III
The remaining arguments advanced in support of a per se exigency rule are unpersuasive.
The State and several of its amici, including the United States, express concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers deciding whether to conduct a blood test of a drunk-driving suspect without a warrant. The Chief Justice and the dissent also raise this concern. See post, at 1, 9–10 (opinion of Roberts, C. J.); post, at 5–7 (opinion of Thomas, J.). While the desire for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake. Moreover, a case-by-case approach is hardly unique within our Fourth Amendment jurisprudence. Numerous police actions are judged based on fact-intensive, totality of the circumstances analyses rather than according to categorical rules, including in situations that are more likely to require police officers to make difficult split-second judgments. See, e.g., Illinois v. Wardlow, 528 U. S. 119 –125 (2000) (whether an officer has reasonable suspicion to make an investigative stop and to pat down a suspect for weapons under Terry v. Ohio, 392 U. S. 1 (1968) ); Robinette, 519 U. S., at 39–40 (whether valid consent has been given to search); Tennessee v. Garner, 471 U. S. 1 –9, 20 (1985) (whether force used to effectuate a seizure, including deadly force, is reasonable). As in those contexts, we see no valid substitute for careful case-by-case evaluation of reasonableness here. 7
Next, the State and the United States contend that the privacy interest implicated by blood draws of drunk-driving suspects is relatively minimal. That is so, they claim, both because motorists have a diminished expectation of privacy and because our cases have repeatedly indicated that blood testing is commonplace in society and typically involves “virtually no risk, trauma, or pain.” Schmerber, 384 U. S., at 771. See also post, at 3, and n. 1 (opinion of Thomas, J.).
But the fact that people are “accorded less privacy in . . . automobiles because of th[e] compelling governmental need for regulation,” California v. Carney, 471 U. S. 386, 392 (1985) , does not diminish a motorist’s privacy interest in preventing an agent of the government from piercing his skin. As to the nature of a blood test conducted in a medical setting by trained personnel, it is concededly less intrusive than other bodily invasions we have found unreasonable. See Winston, 470 U. S., at 759–766 (surgery to remove a bullet); Rochin v. California, 342 U. S. 165 –174 (1952) (induced vomiting to extract narcotics capsules ingested by a suspect violated the Due Process Clause). For that reason, we have held that medically drawn blood tests are reasonable in appropriate circumstances. See Skinner, 489 U. S., at 618–633 (upholding warrantless blood testing of railroad employees involved in certain train accidents under the “special needs” doctrine); Schmerber, 384 U. S., at 770–772. We have never retreated, however, from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.
Finally, the State and its amici point to the compelling governmental interest in combating drunk driving and contend that prompt BAC testing, including through blood testing, is vital to pursuit of that interest. They argue that is particularly so because, in addition to laws that make it illegal to operate a motor vehicle under the influence of alcohol, all 50 States and the District of Columbia have enacted laws that make it per se unlawful to operate a motor vehicle with a BAC of over 0.08 percent. See National Highway Traffic Safety Admin. (NHTSA), Alcohol and Highway Safety: A Review of the State of Knowledge 167 (No. 811374, Mar. 2011) (NHTSA Review). 8 To enforce these provisions, they reasonably assert, accurate BAC evidence is critical. See also post, at 4–5 (opinion of Roberts, C. J.); post, at 4–5 (opinion of Thomas, J.).
“No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it.” Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 451 (1990) . Certainly we do not. While some progress has been made, drunk driving continues to exact a terrible toll on our society. See NHTSA, Traffic Safety Facts, 2011 Data 1 (No. 811700, Dec. 2012) (reporting that 9,878 people were killed in alcohol-impaired driving crashes in 2011, an average of one fatality every 53 minutes).
But the general importance of the government’s interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case. To the extent that the State and its amici contend that applying the traditional Fourth Amendment totality-of-the-circumstances analysis to determine whether an exigency justified a warrantless search will undermine the governmental interest in preventing and prosecuting drunk-driving offenses, we are not convinced.
As an initial matter, States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense. See NHTSA Review 173; supra, at 2 (describing Missouri’s implied consent law). Such laws impose significant consequences when a motorist withdraws consent; typically the motorist’s driver’s license is immediately suspended or revoked, and most States allow the motorist’s refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution. See NHTSA Review 173–175; see also South Dakota v. Neville, 459 U. S. 553 –564 (1983) (holding that the use of such an adverse inference does not violate the Fifth Amendment right against self-incrimination).
It is also notable that a majority of States either place significant restrictions on when police officers may obtain a blood sample despite a suspect’s refusal (often limiting testing to cases involving an accident resulting in death or serious bodily injury) or prohibit nonconsensual blood tests altogether. 9 Among these States, several lift restrictions on nonconsensual blood testing if law enforcement officers first obtain a search warrant or similar court order. 10 Cf. Bullcoming v. New Mexico, 564 U. S. ___, ___ (2011) (slip op., at 3) (noting that the blood test was obtained pursuant to a warrant after the petitioner refused a breath test). We are aware of no evidence indicating that restrictions on nonconsensual blood testing have compromised drunk-driving enforcement efforts in the States that have them. And in fact, field studies in States that permit nonconsensual blood testing pursuant to a warrant have suggested that, although warrants do impose administrative burdens, their use can reduce breath-test-refusal rates and improve law enforcement’s ability to recover BAC evidence. See NHTSA, Use of Warrants for Breath Test Refusal: Case Studies 36–38 (No. 810852, Oct. 2007).
To be sure, “States [may] choos[e] to protect privacy beyond the level that the Fourth Amendment requires.” Virginia v. Moore, 553 U. S. 164, 171 (2008) . But wide-spread state restrictions on nonconsensual blood testing provide further support for our recognition that compelled blood draws implicate a significant privacy interest. They also strongly suggest that our ruling today will not “severely hamper effective law enforcement.” Garner, 471 U. S., at 19.IV
The State argued before this Court that the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every case. The State did not argue that there were exigent circumstances in this particular case because a warrant could not have been obtained within a reasonable amount of time. In his testimony before the trial court, the arresting officer did not identify any other factors that would suggest he faced an emergency or unusual delay in securing a warrant. App. 40. He testified that he made no effort to obtain a search warrant before conducting the blood draw even though he was “sure” a prosecuting attorney was on call and even though he had no reason to believe that a magistrate judge would have been unavailable. Id., at 39, 41–42. The officer also acknowledged that he had obtained search warrants before taking blood samples in the past without difficulty. Id., at 42. He explained that he elected to forgo a warrant application in this case only because he believed it was not legally necessary to obtain a warrant. Id., at 39–40. Based on this testimony, the trial court concluded that there was no exigency and specifically found that, although the arrest took place in the middle of the night, “a prosecutor was readily available to apply for a search warrant and a judge was readily available to issue a warrant.” App. to Pet. for Cert. 43a. 11
The Missouri Supreme Court in turn affirmed that judgment, holding first that the dissipation of alcohol did not establish a per se exigency, and second that the State could not otherwise satisfy its burden of establishing exigent circumstances. 358 S. W. 3d, at 70, 74–75. In petitioning for certiorari to this Court, the State challenged only the first holding; it did not separately contend that the warrantless blood test was reasonable regardless of whether the natural dissipation of alcohol in a suspect’s blood categorically justifies dispensing with the warrant requirement. See Pet. for Cert. i.
Here and in its own courts the State based its case on an insistence that a driver who declines to submit to testing after being arrested for driving under the influence of alcohol is always subject to a nonconsensual blood test without any precondition for a warrant. That is incorrect.
Although the Missouri Supreme Court referred to this case as “unquestionably a routine DWI case,” 358 S. W. 3d, at 74, the fact that a particular drunk-driving stop is “routine” in the sense that it does not involve “ ‘special facts,’ ” ibid., such as the need for the police to attend to a car accident, does not mean a warrant is required. Other factors present in an ordinary traffic stop, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can obtain a warrant in an expeditious way and therefore may establish an exigency that permits a warrantless search. The relevant factors in determining whether a warrantless search is reasonable, including the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence, will no doubt vary depending upon the circumstances in the case.
Because this case was argued on the broad proposition that drunk-driving cases present a per se exigency, the arguments and the record do not provide the Court with an adequate analytic framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required. No doubt, given the large number of arrests for this offense in different jurisdictions nationwide, cases will arise when anticipated delays in obtaining a warrant will justify a blood test without judicial authorization, for in every case the law must be concerned that evidence is being destroyed. But that inquiry ought not to be pursued here where the question is not properly before this Court. Having rejected the sole argument presented to us challenging the Missouri Supreme Court’s decision, we affirm its judgment.* * *
We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.
The judgment of the Missouri Supreme Court is affirmed.
It is so ordered.
1 As a result of his two prior drunk-driving convictions, McNeely was charged with a class D felony under Missouri law, which carries a maximum imprisonment term of four years. See Mo. Ann. Stat. §§558.011, 577.023.1(5), 577.023.3 (West 2011).
2 Compare 358 S. W. 3d 65 (2012) (case below), State v. Johnson, 744 N. W. 2d 340 (Iowa 2008) (same conclusion), and State v. Rodriguez, 2007 UT 15, 156 P. 3d 771 (same), with State v. Shriner, 751 N. W. 2d 538 (Minn. 2008) (holding that the natural dissipation of blood-alcohol evidence alone constitutes a per se exigency), State v. Bohling, 173 Wis. 2d 529, 494 N. W. 2d 399 (1993) (same); State v. Woolery, 116 Idaho 368, 775 P. 2d 1210 (1989) (same).
3 We have recognized a limited class of traditional exceptions to the warrant requirement that apply categorically and thus do not require an assessment of whether the policy justifications underlying the ex-ception, which may include exigency-based considerations, are im-plicated in a particular case. See, e.g., California v. Acevedo, 500U. S. 565, 569–570 (1991) (automobile exception); United States v. Robinson, 414 U. S. 218 –235 (1973) (searches of a person incident to a lawful arrest). By contrast, the general exigency exception, which asks whether an emergency existed that justified a warrantless search, naturally calls for a case-specific inquiry.
4 See Ala. Rule Crim. Proc. 3.8(b) (2012–2013); Alaska Stat. §12.35.015 (2012); Ariz. Rev. Stat. Ann. §§13–3914(C), 13–3915(D), (E) (West 2010); Ark. Code Ann. §16–82–201 (2005); Cal. Penal Code Ann. §1526(b) (West 2011); Colo. Rule Crim. Proc. 41(c)(3) (2012); Ga. Code Ann. §17–5–21.1 (2008); Haw. Rules Penal Proc. 41(h)–(i) (2013); Idaho Code §§19–4404, 19–4406 (Lexis 2004); Ind. Code §35–33–5–8 (2012); Iowa Code §§321J.10(3), 462A.14D(3) (2009) (limited to specific circumstances involving accidents); Kan. Stat. Ann. §§22–2502(a), 22–2504 (2011 Cum. Supp.); La. Code Crim. Proc. Ann., Arts. 162.1(B), (D) (West 2003); Mich. Comp. Laws Ann. §§780.651(2)–(6) (West 2006); Minn. Rules Crim. Proc. 33.05, 36.01–36.08 (2010 and Supp. 2013); Mont. Code Ann. §§46–5–221, 46–5–222 (2012); Neb. Rev. Stat. §§29–814.01, 29–814.03, 29–814.05 (2008); Nev. Rev. Stat. §§179.045(2), (4) (2011); N. H. Rev. Stat. Ann. §595–A:4–a (Lexis Supp. 2012); N. J. Rule Crim. Proc. 3:5–3(b) (2013); N. M. Rules Crim. Proc. 5–211(F)(3), (G)(3) (Supp. 2012); N. Y. Crim. Proc. Law Ann. §§690.35(1), 690.36(1), 690.40(3), 690.45(1), (2) (West 2009); N. C. Gen. Stat. Ann. §15A–245(a)(3) (Lexis 2011); N. D. Rules Crim. Proc. 41(c)(2)–(3) (2012–2013); Ohio Rules Crim. Proc. 41(C)(1)–(2) (2011); Okla. Stat. Ann., Tit. 22, §§1223.1, 1225(B) (West 2011); Ore. Rev. Stat. §§133.545(5)–(6) (2011); Pa. Rules Crim. Proc. 203(A), (C) (2012); S. D. Codified Laws §§23A–35–4.2, 23A–35–5, 23A–35–6 (2004); Utah Rule Crim. Proc. 40(l) (2012); Vt. Rules Crim. Proc. 41(c)(4), (g)(2) (Supp. 2012); Va. Code Ann. §19.2–54 (Lexis Supp. 2012); Wash. Super. Ct. Crim. Rule 2.3(c) (2002); Wis. Stat. §968.12(3) (2007–2008); Wyo. Stat. Ann. §31–6–102(d) (2011); see generally 2 W. LaFave, Search and Seizure §4.3(b), pp. 511–516, andn. 29 (4th ed. 2004) (describing oral search warrants and collecting state laws). Missouri requires that search warrants be in writing and does not permit oral testimony, thus excluding telephonic warrants. Mo. Ann. Stat. §§542.276.2(1), 542.276.3 (West Supp. 2012). State law does permit the submission of warrant applications “by facsimile or other electronic means.” §542.276.3.
5 During the suppression hearing in this case, McNeely entered into evidence a search-warrant form used in drunk-driving cases by the prosecutor’s office in Cape Girardeau County, where the arrest took place. App. 61–69. The arresting officer acknowledged that he had used such forms in the past and that they were “readily available.” Id., at 41–42.
6 The dissent claims that a “50-state survey [is] irrelevant to the actual disposition of this case” because Missouri requires written warrant applications. Post, at 8. But the per se exigency rule that the State seeks and the dissent embraces would apply nationally because it treats “the body’s natural metabolization of alcohol” as a sufficient basis for a warrantless search everywhere and always. Post, at 1. The technological innovations in warrant procedures that many Stateshave adopted are accordingly relevant to show that the per se rule is overbroad.
7 The dissent contends that officers in the field will be unable to apply the traditional totality of the circumstances test in this context because they will not know all of the relevant facts at the time of an arrest. See post, at 6. But because “[t]he police are presumably familiar with the mechanics and time involved in the warrant process in their particular jurisdiction,” post, at 8 (opinion of Roberts, C. J.), we expect that officers can make reasonable judgments about whether the warrant process would produce unacceptable delay under the circumstances. Reviewing courts in turn should assess those judgments “ ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’ ” Ryburn v. Huff, 565 U. S. ___, ___ (2012) (per curiam) (slip op., at 8).
8 Pursuant to congressional directive, the NHTSA conditions federal highway grants on States’ adoption of laws making it a per se offense to operate a motor vehicle with a BAC of 0.08 percent or greater. See 23 U. S. C. §163(a); 23 CFR §1225.1 (2012). Several federal prohibitions on drunk driving also rely on the 0.08 percent standard. E.g., 32 CFR §§234.17(c)(1)(ii), 1903.4(b)(1)(i)–(ii); 36 CFR §4.23(a)(2). In addition, 32 States and the District of Columbia have adopted laws that impose heightened penalties for operating a motor vehicle at or above a BAC of 0.15 percent. See NHTSA Review 175.
9 See Ala. Code §32–5–192(c) (2010); Alaska Stat. §§28.35.032(a), 28.35.035(a) (2012); Ariz. Rev. Stat. Ann. §28–1321(D)(1) (West 2012); Ark. Code Ann. §§5–65–205(a)(1), 5–65–208(a)(1) (Supp. 2011);Conn. Gen. Stat. §§14–227b(b), 14–227c(b) (2011); Fla. Stat. Ann. §316.1933(1)(a) (West 2006); Ga. Code Ann. §§40–5–67.1(d), (d.1) (2011); Haw. Rev. Stat. §291E–15 (2009 Cum. Supp.), §§291E–21(a), 291E–33 (2007), §291E–65 (2009 Cum. Supp.); Iowa Code §§321J.9(1), 321J.10(1), 321J.10A(1) (2009); Kan. Stat. Ann. §§8–1001(b), (d) (2001); Ky. Rev. Stat. Ann. §189A.105(2) (Lexis Supp. 2012); La. Rev. Stat. Ann. §§32:666.A(1)(a)(i), (2) (Supp. 2013); Md. Transp. Code Ann. §§16–205.1(b)(i)(1), (c)(1) (Lexis 2012); Mass. Gen. Laws Ann., ch. 90, §§24(1)(e), (f)(1) (West 2012); Mich. Comp. Laws Ann. §257.625d(1) (West 2006); Miss. Code Ann. §63–11–21 (1973–2004); Mont. Code Ann. §§61–8–402(4), (5) (2011); Neb. Rev. Stat. §60–498.01(2) (2012Cum. Supp.), §60–6,210 (2010); N. H. Rev. Stat. Ann. §§265–A:14(I),265–A:16 (West 2012 Cum. Supp.); N. M. Stat. Ann. §66–8–111(A) (LexisNexis 2009); N. Y. Veh. & Traf. Law Ann. §§1194(2)(b)(1), 1194(3) (West 2011); N. D. Cent. Code Ann. §39–20–01.1(1) (Lexis Supp. 2011), §39–20–04(1) (Lexis 2008); Okla. Stat., Tit. 47, §753 (West Supp. 2013); Ore. Rev. Stat. §813.100(2) (2011); 75 Pa. Cons. Stat. §1547(b)(1) (2004); R. I. Gen. Laws §§31–27–2.1(b), 31–27–2.9(a) (Lexis 2010); S. C. Code Ann. §56–5–2950(B) (Supp. 2011); Tenn. Code Ann. §§55–10–406(a)(4), (f) (2012); Tex. Transp. Code Ann. §§724.012(b), 724.013 (West 2011); Vt. Stat. Ann., Tit. 23, §§1202(b), (f) (2007); Wash. Rev. Code §§46.20.308 (2)–(3), (5) (2012); W. Va. Code Ann. §17C–5–7 (Lexis Supp. 2012); Wyo. Stat. Ann. §31–6–102(d) (Lexis 2011).
10 See Ariz. Rev. Stat. Ann. §28–1321(D)(1) (West 2012); Ga. Code Ann. §§40–5–67.1(d), (d.1) (2011); Ky. Rev. Stat. Ann. §189A.105(2)(b) (Lexis Supp. 2012); Mich. Comp. Laws Ann. §257.625d(1) (West 2006); Mont. Code Ann. §61–8–402(5) (2011); N. M. Stat. Ann. §66–8–111(A) (LexisNexis 2009); N. Y. Veh. & Traf. Law Ann. §§1194(2)(b)(1), 1194(3) (West 2011); Ore. Rev. Stat. 813.320(2)(b) (2011); R. I. Gen. Laws §31–27–2.9(a) (Lexis 2010); Tenn. Code Ann. §55–10–406(a)(4) (2012); Vt. Stat. Ann., Tit. 23, §1202(f) (2007); Wash. Rev. Code §46.20.308(1) (2012); W. Va. Code Ann. §17C–5–7 (Supp. 2012) (as interpreted in State v. Stone, 229 W. Va. 271, ___, 728 S. E. 2d 155, 167–168 (2012)); Wyo. Stat. Ann. §31–6–102(d) (2011); see also State v. Harris, 763 N. W. 2d 269, 273–274 (Iowa 2009) (per curiam) (recognizing that Iowa law imposes a warrant requirement subject to a limited case-specific exigency exception).
11 No findings were made by the trial court concerning how long a warrant would likely have taken to issue under the circumstances. The minimal evidence presented on this point was not uniform. A second patrol officer testified that in a typical DWI case, it takes between 90 minutes and 2 hours to obtain a search warrant following an arrest. App. 53–54. McNeely, however, also introduced an exhibit documenting six recent search warrant applications for blood testing in Cape Girardeau County that had shorter processing times. Id., at 70.
SUPREME COURT OF THE UNITED STATES
MISSOURI, PETITIONER v. TYLER G. McNEELY
on writ of certiorari to the supreme court of missouri
[April 17, 2013]
Justice Thomas, dissenting.
This case requires the Court to decide whether the Fourth Amendment prohibits an officer from obtaining a blood sample without a warrant when there is probable cause to believe that a suspect has been driving under the influence of alcohol. Because the body’s natural metabolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent circumstance. As a result, I would hold that a warrantless blood draw does not violate the Fourth Amendment.I A
The Fourth Amendment states that “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” Before a search occurs, “a warrant must generally be secured,” Kentucky v. King, 563 U. S. ___, ___ (2011) (slip op., at 5), but “this presumption may be overcome in some circumstances because ‘[t]he ultimate touchstone of the Fourth Amendment is “reasonableness.” ’ ” Ibid. (quoting Brigham City v. Stuart, 547 U. S. 398, 403 (2006) ; alteration in original).
The presence of “exigent circumstances” is one such exception to the warrant requirement. Exigency applies when “ ‘the needs of law enforcement [are] so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’ ” 563 U. S., at ___ (slip op., at 6) (quoting Mincey v. Arizona, 437 U. S. 385, 394 (1978) ; second alteration in original). Thus, when exigent circumstances are present, officers may take actions that would typically require a warrant, such as entering a home in hot pursuit of a fleeing suspect. 563 U. S., at ___ (slip op., at 6). As relevant in this case, officers may also conduct a warrantless search when they have probable cause to believe that failure to act would result in “ ‘imminent destruction of evidence.’ ” Ibid. (quoting Brigham City, supra, at 403).B
Once police arrest a suspect for drunk driving, each passing minute eliminates probative evidence of the crime. The human liver eliminates alcohol from the bloodstream at a rate of approximately 0.015 percent to 0.020 percent per hour, ante, at 8, with some heavy drinkers as high as 0.022 percent per hour, Brief for Petitioner 21 (citing medical studies), depending on, among other things, a person’s sex, weight, body type, and drinking history. Ante, at 8–9; Brief for United States as Amicus Curiae 23. The Court has acknowledged this fact since Schmerber v. California, 384 U. S. 757, 770 (1966) (“We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system”). In that case, the Court recognized that destruction of evidence is inherent in drunk-driving cases and held that an officer investigating a drunk-driving crime “might reasonably [believe] that he [is] confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threaten[s] ‘the destruction of evidence.’ ” Ibid. (quoting Preston v. United States, 376 U. S. 364, 367 (1964) ). The Court explained that drawing a person’s blood is “a highly effective means of determining the degree to which [he] is under the influence of alcohol” and is a reasonable procedure because blood tests are “commonplace” and “involv[e] virtually no risk, trauma, or pain.” 1 384 U. S., at 771. The Court, therefore, held that dissipation of alcohol in the blood constitutes an exigency that allows a blood draw without a warrant.
The rapid destruction of evidence acknowledged by the parties, the majority, and Schmerber’s exigency determination occurs in every situation where police have probable cause to arrest a drunk driver. In turn, that destruction of evidence implicates the exigent-circumstances doctrine. See Cupp v. Murphy, 412 U. S. 291 (1973) . In Cupp, officers questioning a murder suspect observed a spot on the suspect’s finger that they believed might be dried blood. Id., at 292. After the suspect began making obvious efforts to remove the spots from his hands, the officers took samples without obtaining either his consent or a warrant. Id., at 296. Following a Fourth Amendment challenge to this search, the Court held that the “ready destructibility of the evidence” and the suspect’s observed efforts to destroy it “justified the police in subjecting him to the very limited search necessary to preserve the highly evanescent evidence they found under his fingernails.” Ibid.
In this case, a similar exigency is present. Just as the suspect’s efforts to destroy “highly evanescent evidence” gave rise to the exigency in Cupp, the natural metabolization of blood alcohol concentration (BAC) creates an exigency once police have probable cause to believe the driver is drunk. It naturally follows that police may conduct a search in these circumstances.
A hypothetical involving classic exigent circumstances further illustrates the point. Officers are watching a warehouse and observe a worker carrying bundles from the warehouse to a large bonfire and throwing them into the blaze. The officers have probable cause to believe the bundles contain marijuana. Because there is only one person carrying the bundles, the officers believe it will take hours to completely destroy the drugs. During that time the officers likely could obtain a warrant. But it is clear that the officers need not sit idly by and watch the destruction of evidence while they wait for a warrant. The fact that it will take time for the evidence to be destroyed and that some evidence may remain by the time the officers secure a warrant are not relevant to the exigency. However, the ever-diminishing quantity of drugs may have an impact on the severity of the crime and the length of the sentence. See, e.g., 21 U. S. C. §841(b)(1)(D) (lower penalties for less than 50 kilograms of marijuana); United States Sentencing Commission, Guidelines Manual §2D1.1(c) (Nov. 2012) (drug quantity table tying base offense level to drug amounts). Conducting a warrantless search of the warehouse in this situation would be entirely reasonable.
The same obtains in the drunk-driving context. Just because it will take time for the evidence to be completely destroyed does not mean there is no exigency. Congress has conditioned federal highway grants on states’ adoption of laws penalizing the operation of a motor vehicle “with a blood alcohol concentration of 0.08 percent or greater.” 23 U. S. C. §163(a). See also 23 CFR §1225.1 (2012). All 50 States have acceded to this condition. National Highway Traffic Safety Admin. (NHTSA), Alcohol and Highway Safety: A Review of the State of Knowledge 167 (No. 811374, Mar. 2011) (NHTSA State Review); Mo. Ann. Stat. §§577.012(1)–(2) (West 2011) (establishing Missouri’s 0.08 percent BAC standard). Moreover, as of 2005, 32 States and the District of Columbia imposed additional penalties for BAC levels of 0.15 percent or higher. NHTSA State Review 175. Missouri is one such State. See, e.g., Mo. Stat. Ann. §§577.010(3)–(4), 577.012(4)–(5) (suspended sentence unavailable even for first offenders with BAC above 0.15 percent unless they complete drug treatment; mandatory jail time if treatment is not completed). As a result, the level of intoxication directly bears on enforcement of these laws. Nothing in the Fourth Amendment requires officers to allow evidence essential to enforcement of drunk-driving laws to be destroyed while they wait for a warrant to issue.II
In today’s decision, the Court elides the certainty of evidence destruction in drunk-driving cases and focuses primarily on the time necessary for destruction. In doing so, it turns the exigency inquiry into a question about the amount of evidentiary destruction police must permit before they may act without a warrant. That inquiry is inconsistent with the actual exigency at issue: the uncontested destruction of evidence due to metabolization of alcohol. See Part I, supra. Moreover, the Court’s facts-and-circumstances analysis will be difficult to administer, a particularly important concern in the Fourth Amendment context.
The Court’s judgment reflects nothing more than a vague notion that everything will come out right most of the time so long as the delay is not too lengthy. Ante, at 12 (justifying delays in part because “BAC evidence is lost gradually and relatively predictably”); ante, at 10 (same, quoting Brief for Petitioner 27). But hard percentage lines have meaningful legal consequences in the drunk-driving context. The fact that police will be able to retrieve some evidence before it is all destroyed is simply not relevant to the exigency inquiry.
The majority believes that, absent special facts and circumstances, some destruction of evidence is acceptable. See ante, at 9 (“sufficient for our purposes to note that . . . significant delay in testing will negatively affect the probative value” (emphasis added)). This belief must rest on the assumption that whatever evidence remains once a warrant is obtained will be sufficient to prosecute the suspect. But that assumption is clearly wrong. Suspects’ initial levels of intoxication and the time necessary to obtain warranted blood draws will vary widely from case to case. Even a slight delay may significantly affect probative value in borderline cases of suspects who are moderately intoxicated or suspects whose BAC is near a statutory threshold that triggers a more serious offense. See supra, at 4–5 (discussing laws penalizing heightened BAC levels). Similarly, the time to obtain a warrant can be expected to vary, and there is no reason to believe it will do so in a predictable fashion.
Further, the Court nowhere explains how an officer in the field is to apply the facts-and-circumstances test it adopts. First, officers do not have the facts needed to assess how much time can pass before too little evidence remains. They will never know how intoxicated a suspect is at the time of arrest. Otherwise, there would be no need for testing. Second, they will not know how long it will take to roust a magistrate from his bed, reach the hospital, or obtain a blood sample once there. As the Minnesota Supreme Court recognized in rejecting arguments like those adopted by the Court today:
“[T]he officer has no control over how long it would take to travel to a judge or the judge’s availability. The officer also may not know the time of the suspect’s last drink, the amount of alcohol consumed, or the rate at which the suspect will metabolize alcohol. Finally, an officer cannot know how long it will take to obtain the blood sample once the suspect is brought to the hospital. Under a totality of the circumstances test, an officer would be called upon to speculate on each of these considerations and predict how long the most probative evidence of the defendant’s blood-alcohol level would continue to exist before a blood sample was no longer reliable.” State v. Shriner, 751 N. W. 2d 538, 549 (2008) (footnote omitted).
The Court should not adopt a rule that requires police to guess whether they will be able to obtain a warrant before “too much” evidence is destroyed, for the police lack reliable information concerning the relevant variables. 2
This case demonstrates the uncertainty officers face with regard to the delay caused by obtaining a warrant. The arresting officer clearly had probable cause to believe respondent was drunk, but there was no way for the officer to quantify the level of intoxication to determine how quickly he needed to act in order to obtain probative evidence. Another officer testified at respondent’s trial that it typically took 1 ½ to 2 hours to obtain a drunk-driving warrant at night in Cape Girardeau County, Missouri. See App. 53–54. Respondent submitted an exhibit summarizing six late afternoon and nighttime drunk-driving search warrants that suggests the time may be shorter. Brief for Respondent 56; App. 70. Ultimately this factual tiff is beside the point; the spotty evidence regarding timing itself illustrates the fact that delays in obtaining warrants are unpredictable and potentially lengthy. A rule that requires officers (and ultimately courts) to balance transportation delays, hospital availability, and access to magistrates is not a workable rule for cases where natural processes inevitably destroy the evidence with every passing minute.
The availability of telephonic warrant applications is not an answer to this conundrum. See ante, at 10–12, and n. 4. For one thing, Missouri still requires written warrant applications and affidavits, Mo. Ann. Stat. §§542.276.2(1), 542.276.2.3 (West Supp. 2012), rendering the Court’s 50-State survey irrelevant to the actual disposition of this case. Ante, at 11, n. 4. But even if telephonic applications were available in Missouri, the same difficulties would arise. As the majority correctly recognizes, “[w]arrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review.” Ante, at 12. During that time, evidence is destroyed, and police who have probable cause to believe a crime has been committed should not have to guess how long it will take to secure a warrant.
* * *
For the foregoing reasons, I respectfully dissent.
1 Neither party has challenged this determination, which this Court has reaffirmed several times. See, e.g., Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 625 (1989) ; Winston v. Lee, 470 U. S. 753 –763 (1985).
2 Because the Court’s position is likely to result in delay in obtaining BAC evidence, it also increases the likelihood that prosecutors will be forced to estimate the amount of alcohol in a defendant’s bloodstream using BAC numbers obtained hours later. In practice, this backwards extrapolation is likely to devolve into a battle of the experts, as each side seeks to show that stale evidence supports its position. There is no need for this outcome. Police facing inevitable destruction situations need not forgo collecting the most accurate available evidence simply because they might be able to use an expert witness and less persuasive evidence to approximate what they lost.
SUPREME COURT OF THE UNITED STATES
MISSOURI, PETITIONER v. TYLER G. McNEELY
on writ of certiorari to the supreme court of missouri
[April 17, 2013]
Chief Justice Roberts, with whom Justice Breyer and Justice Alito join, concurring in part and dissenting in part.
A police officer reading this Court’s opinion would have no idea—no idea—what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test. I have no quarrel with the Court’s “totality of the circumstances” approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.
In my view, the proper rule is straightforward. Our cases establish that there is an exigent circumstances exception to the warrant requirement. That exception applies when there is a compelling need to prevent the imminent destruction of important evidence, and there is no time to obtain a warrant. The natural dissipation of alcohol in the bloodstream constitutes not only the imminent but ongoing destruction of critical evidence. That would qualify as an exigent circumstance, except that there may be time to secure a warrant before blood can be drawn. If there is, an officer must seek a warrant. If an officer could reasonably conclude that there is not, the exigent circumstances exception applies by its terms, and the blood may be drawn without a warrant.I
The Fourth Amendment provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
That language does not state that warrants are required prior to searches, but this Court has long held that warrants must generally be obtained. See Kentucky v. King, 563 U. S. ___, ___ (2011) (slip op., at 5). We have also held that bodily intrusions like blood draws constitute searches and are subject to the warrant requirement. See Schmerber v. California, 384 U. S. 757, 767, 770 (1966) .
However, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ ” Brigham City v. Stuart, 547 U. S. 398, 403 (2006) , and thus “the warrant requirement is subject to certain reasonable exceptions,” King, 563 U. S., at ___ (slip op., at 6). One of those exceptions is known as the “exigent circumstances exception,” which “applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” Ibid. (internal quotation marks and alterations omitted).
Within the exigent circumstances exception, we have identified several sets of exigent circumstances excusing the need for a warrant. For example, there is an emergency aid exception to the warrant requirement. In Brigham City, supra, at 403, we held that “law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” There is also a fire exception to the warrant requirement. In Michigan v. Tyler, 436 U. S. 499, 509 (1978) , we held that “[a] burning building clearly presents an exigency of sufficient proportions to render a warrantless entry ‘reasonable.’ ” And there is a hot pur-suit exception to the warrant requirement as well. In United States v. Santana, 427 U. S. 38 (1976) , and Warden, Md. Penitentiary v. Hayden, 387 U. S. 294 (1967) , we recognized “the right of police, who had probable cause to believe that an armed robber had entered a house a few minutes before, to make a warrantless entry to arrest the robber and to search for weapons.” Santana, supra, at 42. In each of these cases, the requirement that we base our decision on the “totality of the circumstances” has not prevented us from spelling out a general rule for the police to follow.
The exigency exception most on point here is the one for imminent destruction of evidence. We have affirmed on several occasions that “law enforcement officers may make a warrantless entry onto private property . . . to prevent the imminent destruction of evidence.” Brigham City, supra, at 403 (citing Ker v. California, 374 U. S. 23, 40 (1963) (plurality opinion)); see also, e.g., King, supra, at ___ (slip op., at 6). For example, in Ker, the police had reason to believe that the defendant was in possession of marijuana and was expecting police pursuit. We upheld the officers’ warrantless entry into the defendant’s home, with the plurality explaining that the drugs “could be quickly and easily destroyed” or “distributed or hidden before a warrant could be obtained at that time of night.” 374 U. S., at 40, 42.
As an overarching principle, we have held that if there is a “compelling need for official action and no time to secure a warrant,” the warrant requirement may be excused. Tyler, supra, at 509. The question here is whether and how this principle applies in the typical case of a police officer stopping a driver on suspicion of drunk driving.II A
The reasonable belief that critical evidence is being destroyed gives rise to a compelling need for blood draws in cases like this one. Here, in fact, there is not simply a belief that any alcohol in the bloodstream will be destroyed; it is a biological certainty. Alcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour. Stripp, Forensic and Clinical Issues in Alcohol Analysis, in Forensic Chemistry Handbook 440 (L. Kobilinsky ed. 2012). Evidence is literally disappearing by the minute. That certainty makes this case an even stronger one than usual for application of the exigent circumstances exception.
And that evidence is important. A serious and deadly crime is at issue. According to the Department of Transportation, in 2011, one person died every 53 minutes due to drinking and driving. National Highway Traffic Safety Admin. (NHTSA), Traffic Safety Facts, 2011 Data 1 (No. 811700, Dec. 2012). No surprise then that drinking and driving is punished severely, including with jail time. See generally Dept. of Justice, Bureau of Justice Statistics, L. Maruschak, Special Report, DWI Offenders under Correctional Supervision (1999). McNeely, for instance, faces up to four years in prison. See App. 22–23 (citing Mo. Ann. Stat. §§558.011, 577.010, 577.023 (West 2011)).
Evidence of a driver’s blood alcohol concentration (BAC) is crucial to obtain convictions for such crimes. All 50 States and the District of Columbia have laws providing that it is per se illegal to drive with a BAC of 0.08 percent or higher. Most States also have laws establishing additional penalties for drivers who drive with a “high BAC,” often defined as 0.15 percent or above. NHTSA, Digest of Impaired Driving and Selected Beverage Control Laws, pp. vii, x–xviii (No. 811673, Oct. 2012). BAC evidence clearly matters. And when drivers refuse breathalyzers, as McNeely did here, a blood draw becomes necessary to obtain that evidence.
The need to prevent the imminent destruction of BAC evidence is no less compelling because the incriminating alcohol dissipates over a limited period of time, rather than all at once. As noted, the concentration of alcohol can make a difference not only between guilt and innocence, but between different crimes and different degrees of punishment. The officer is unlikely to know precisely when the suspect consumed alcohol or how much; all he knows is that critical evidence is being steadily lost. Fire can spread gradually, but that does not lessen the need and right of the officers to respond immediately. See Tyler, supra.
McNeely contends that there is no compelling need for a warrantless blood draw, because if there is some alcohol left in the blood by the time a warrant is obtained, the State can use math and science to work backwards and identify a defendant’s BAC at the time he was driving. See Brief for Respondent 44–46. But that’s not good enough. We have indicated that exigent circumstances justify warrantless entry when drugs are about to be flushed down the toilet. See, e.g., King, 563 U. S., at ___–___ (slip op., at 7–8). We have not said that, because there could well be drug paraphernalia elsewhere in the home, or because a defendant’s co-conspirator might testify to the amount of drugs involved, the drugs themselves are not crucial and there is no compelling need for warrantless entry.
The same approach should govern here. There is a compelling need to search because alcohol—the nearly conclusive evidence of a serious crime—is dissipating from the bloodstream. The need is no less compelling because the police might be able to acquire second-best evidence some other way. 1B
For exigent circumstances to justify a warrantless search, however, there must also be “no time to secure a warrant.” Tyler, 436 U. S., at 509; see Schmerber, 384 U. S., at 771 (warrantless search legal when “there was no time to seek out a magistrate and secure a warrant”). In this respect, obtaining a blood sample from a suspected drunk driver differs from other exigent circumstances cases.
Importantly, there is typically delay between the moment a drunk driver is stopped and the time his blood can be drawn. Drunk drivers often end up in an emergency room, but they are not usually pulled over in front of one. In most exigent circumstances situations, police are just outside the door to a home. Inside, evidence is about to be destroyed, a person is about to be injured, or a fire has broken out. Police can enter promptly and must do so to respond effectively to the emergency. But when police pull a person over on suspicion of drinking and driving, they cannot test his blood right away. 2 There is a time-consuming obstacle to their search, in the form of a trip to the hospital and perhaps a wait to see a medical pro-fessional. In this case, for example, approximately 25 minutes elapsed between the time the police stopped McNeely and the time his blood was drawn. App. 36, 38.
As noted, the fact that alcohol dissipates gradually from the bloodstream does not diminish the compelling need for a search—critical evidence is still disappearing. But the fact that the dissipation persists for some time means that the police—although they may not be able to do anything about it right away—may still be able to respond to the ongoing destruction of evidence later on.
There might, therefore, be time to obtain a warrant in many cases. As the Court explains, police can often request warrants rather quickly these days. At least 30 States provide for electronic warrant applications. See ante, at 10–12, and n. 4. In many States, a police officer can call a judge, convey the necessary information, and be authorized to affix the judge’s signature to a warrant. See, e.g., Ala. Rule Crim. Proc. 3.8(b) (2012–2013); Alaska Stat. §12.35.015 (2012); Idaho Code §§19–4404, 19–4406 (Lexis 2004); Minn. Rules Crim. Proc. 36.01–36.08 (2010 and Supp. 2013); Mont. Code Ann. §46–5–222 (2012); see generally NHTSA, Use of Warrants for Breath Test Refusal: Case Studies 6–32 (No. 810852, Oct. 2007) (overview of procedures in Arizona, Michigan, Oregon, and Utah). Utah has an e-warrant procedure where a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically re-turn a warrant to the officer. Utah, e-Warrants: Cross Boundary Collaboration 1 (2008). Judges have been known to issue warrants in as little as five minutes. Bergreen, Faster Warrant System Hailed, Salt Lake Tribune, Dec. 26, 2008, p. B1, col. 1. And in one county in Kansas, police officers can e-mail warrant requests to judges’ iPads; judges have signed such warrants and e-mailed them back to officers in less than 15 minutes. Benefiel, DUI Search Warrants: Prosecuting DUI Refusals, 9 Kansas Prosecutor 17, 18 (Spring 2012). The police are presumably familiar with the mechanics and time involved in the warrant process in their particular jurisdiction.III A
In a case such as this, applying the exigent circumstances exception to the general warrant requirement of the Fourth Amendment seems straightforward: If there is time to secure a warrant before blood can be drawn, the police must seek one. If an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant, or he applies for one but does not receive a response before blood can be drawn, a warrantless blood draw may ensue. See Tyler, supra, at 509; see also Illinois v. Rodriguez, 497 U. S. 177 –186 (1990) (“in order to satisfy the ‘reasonableness’ requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by . . . police officer[s] conducting a search or seizure under one of the exceptions to the warrant requirement . . . is not that they always be correct, but that they always be reasonable”); Terry v. Ohio, 392 U. S. 1, 20 (1968) (“police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure”).
Requiring police to apply for a warrant if practicable increases the likelihood that a neutral, detached judicial officer will review the case, helping to ensure that there is probable cause for any search and that any search is reasonable. We have already held that forced blood draws can be constitutional—that such searches can be reasonable— but that does not change the fact that they are significant bodily intrusions. See Schmerber, 384 U. S., at 770 (upholding a warrantless forced blood draw but noting the “importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt” as “indisputable and great”). Requiring a warrant whenever practicable helps ensure that when blood draws occur, they are indeed justified.
At the same time, permitting the police to act without a warrant to prevent the imminent destruction of evidence is well established in Fourth Amendment law. There is no reason to preclude application of that exception in drunk driving cases simply because it may take the police some time to be able to respond to the undoubted destruction of evidence, or because the destruction occurs continuously over an uncertain period.
And that is so even in situations where police have requested a warrant but do not receive a timely response. An officer who reasonably concluded there was no time to secure a warrant may have blood drawn from a suspect upon arrival at a medical facility. There is no reason an officer should be in a worse position, simply because he sought a warrant prior to his arrival at the hospital.B
The Court resists the foregoing, contending that the question presented somehow inhibits such a focused analysis in this case. See ante, at 20–23. It does not. The question presented is whether a warrantless blood draw is permissible under the Fourth Amendment “based upon the natural dissipation of alcohol in the bloodstream.” Pet. for Cert. i. The majority answers “It depends,” and so do I. The difference is that the majority offers no ad-ditional guidance, merely instructing courts and police officers to consider the totality of the circumstances. I believe more meaningful guidance can be provided about how to handle the typical cases, and nothing about the question presented prohibits affording that guidance.
A plurality of the Court also expresses concern that my approach will discourage state and local efforts to expedite the warrant application process. See ante, at 14. That is not plausible: Police and prosecutors need warrants in a wide variety of situations, and often need them quickly. They certainly would not prefer a slower process, just because that might obviate the need to ask for a warrant in the occasional drunk driving case in which a blood draw is necessary. The plurality’s suggestion also overlooks the interest of law enforcement in the protection a warrant provides.
The Court is correct when it says that every case must be considered on its particular facts. But the pertinent facts in drunk driving cases are often the same, and the police should know how to act in recurring factual situations. Simply put, when a drunk driving suspect fails field sobriety tests and refuses a breathalyzer, whether a warrant is required for a blood draw should come down to whether there is time to secure one.
Schmerber itself provides support for such an analysis. The Court there made much of the fact that “there was no time to seek out a magistrate and secure a warrant.” 384 U. S., at 771. It did so in an era when cell phones and e-mail were unknown. It follows quite naturally that if cell phones and e-mail mean that there is time to contact a magistrate and secure a warrant, that must be done. At the same time, there is no need to jettison the well-established exception for the imminent destruction of evidence, when the officers are in a position to do something about it.* * *
Because the Missouri courts did not apply the rule I describe above, and because this Court should not do so in the first instance, I would vacate and remand for further proceedings in the Missouri courts.
1 And that second-best evidence may prove useless. When experts have worked backwards to identify a defendant’s BAC at the time he was driving, defense attorneys have objected to that evidence, courts have at times rejected it, and juries may be suspicious of it. See, e.g., 1 D. Nichols & F. Whited, Drinking/Driving Litigation §2:9, pp. 2–130 to 2–137 (2d ed. 2006) (noting counsel objections to such evidence); State v. Eighth Judicial District Court, 127 Nev. ___, 267 P. 3d 777 (2011) (affirming rejection of such evidence); L. Taylor & S. Oberman, Drunk Driving Defense §6.03 (7th ed. 2010) (describing ways to undermine such evidence before a jury).
2 This case involves medical personnel drawing blood at a medical facility, not police officers doing so by the side of the road. See Schmerber v. California, 384 U. S. 757 –772 (1966) (“Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse”); Brief for Respondent 53, and n. 21 (describing roadside blood draws in Arizona). A plurality of the Court suggests that my approach could make roadside blood draws a more attractive option for police, but such a procedure would pose practical difficulties and, as the Court noted in Schmerber, would raise additional and serious Fourth Amendment concerns. See ante, at 14–15.
SUPREME COURT OF THE UNITED STATES
MISSOURI, PETITIONER v. TYLER G. McNEELY
on writ of certiorari to the supreme court of missouri
[April 17, 2013]
Justice Kennedy, concurring in part.
I join Parts I, II–A, II–B, and IV of the opinion for the Court.
For the reasons stated below this case does not call for the Court to consider in detail the issue discussed in Part II–C and the separate opinion by The Chief Justice.
As to Part III, much that is noted with respect to the statistical and survey data will be of relevance when this issue is explored in later cases. The repeated insistence in Part III that every case be determined by its own circumstances is correct, of course, as a general proposition; yet it ought not to be interpreted to indicate this question is not susceptible of rules and guidelines that can give important, practical instruction to arresting officers, instruction that in any number of instances would allow a warrantless blood test in order to preserve the critical evidence.
States and other governmental entities which enforce the driving laws can adopt rules, procedures, and protocols that meet the reasonableness requirements of the Fourth Amendment and give helpful guidance to law enforcement officials. And this Court, in due course, may find it appropriate and necessary to consider a case permitting it to provide more guidance than it undertakes to give today.
As the opinion of the Court is correct to note, the instant case, by reason of the way in which it was presented and decided in the state courts, does not provide a framework where it is prudent to hold any more than that always dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the Fourth Amendment.
ORAL ARGUMENT OF JOHN N. KOESTER, JR. ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We'll hear argument first this morning in Case Number 11-1425, Missouri v. McNeely.
John N Koester Jr: Thank you.
Mr. Chief Justice, and may it please the Court:
In the course of a drunk driving investigation, quickly securing blood alcohol evidence with as little delay as possible is incredibly important--
Justice Sonia Sotomayor: How come it took so long for this State to figure out that it needed to do this without a warrant?
John N Koester Jr: --Well--
Justice Sonia Sotomayor: The officer testified that he's been making drunk driving arrests for years--
John N Koester Jr: --Yes, Your Honor.
Justice Sonia Sotomayor: --and I think in only one circumstance did he need to do it without a warrant.
So what made the need here eminently the sense of impractical to get the warrant?
John N Koester Jr: Well, Your Honor, back in 2003, there was an appellate court case from Missouri that dealt with the importance of the words--
Justice Sonia Sotomayor: No, I understand why he decided to do it, to forego getting a warrant.
Isn't his testimony dispositive of this case?
He had time to get it.
John N Koester Jr: --Your Honor, that -- that ignores the fact that had he sought a warrant -- there's no question that he would have been able to secure a warrant.
The issue was, it was going to take a considerable amount of time.
Justice Sonia Sotomayor: But it took a considerable amount of time for all the years he did it.
John N Koester Jr: That's true, Your Honor.
Justice Sonia Sotomayor: And -- and he didn't testify to it causing a loss of any particular case.
John N Koester Jr: But in this particular case, it was going to take 90 minutes to 2 hours to secure the warrant.
And during that period of time, the most probative evidence was going to be dissipating, was going--
Justice Ruth Bader Ginsburg: But he said -- he said in the ten or so cases he had had in the past, I had -- I encountered no difficulty getting a warrant in prior cases.
There was nothing that distinguished this case on the facts from other cases on the facts.
John N Koester Jr: --That's correct, Justice Ginsburg, he never had a problem securing a warrant, but there was a delay; and that's -- that's the difference.
We're -- we're looking at a delay, and quickly securing blood alcohol evidence is important, because the evidence is being lost at a significant rate with every minute that passes.
Justice Sonia Sotomayor: What constitutional right exists for a State to get the best evidence?
John N Koester Jr: Well, Justice Sotomayor, I think that that is something that we should always strive for, to be able to get the best possible evidence in the case.
Justice Sonia Sotomayor: No, no, no.
You, the State, want to strive for that.
But what in the Fourth Amendment contemplates that that's a right the State must have, that is has to get the very best evidence it can?
John N Koester Jr: The -- the touchstone of any Fourth Amendment analysis is the reasonableness of the search.
And it's reasonable--
Justice Sonia Sotomayor: So how can it be reasonable to forego the Fourth Amendment in a procedure as intrusive as a needle going into someone's body?
I say this because breathalyzers in my mind have a much different intrusion level.
They don't intrude into your body.
And I think almost all jurisdictions use breathalyzers instead of blood tests.
A small fraction that actually use blood tests.
The ruling by us today is going to change that and is going to -- if in your favor is going to change that and is going to -- if in your favor, is going to change that and put sort of a print, the Court's print, on: Use the most intrusive way you can to prove your case.
John N Koester Jr: --And, Justice Sotomayor, I would disagree with that.
If the Court rules in our favor, I think the end result will be more people will agree to take the breathalyzer test.
In this case the arresting officer gave the defendant an option to take the breathalyzer test and when he clearly told him he was not going to take it, that's when he decided to take him to the hospital in order to draw the blood.
Justice Antonin Scalia: Why don't you force him to take the breathalyzer test, instead of forcing him to have a needle shoved in his -- in his arm?
John N Koester Jr: For practical--
Justice Antonin Scalia: What is the difference between the reliability or the acceptability by juries of a breathalyzer test as opposed to a blood draw?
John N Koester Jr: --Justice Scalia, both tests are very reliable.
We rely on the breathalyzer test on a daily basis, but for practical reasons it's very difficult to force a drunk driver to take a breath test.
The breathalyzer instruments, they measures deep lung alveolar air.
And you have to take a very deep breath.
And one police officer told me it's sort of like you can put a balloon in front of somebody's mouth, but you can't make him blow it up.
It's very difficult for practical reasons to force someone to -- to blow into the breathalyzer.
Justice Anthony Kennedy: If we are talking about reasonableness, do you think it's relevant for us to look to the rules and practices of other States?
John N Koester Jr: Justice Kennedy, as the Respondent points out, there are 25 states that would be opposed to -- to the warrantless blood draw at issue in this case.
And as I point out in the reply brief, 15 of those States have joined amicus Delaware urging this Court to reverse the decision of the Missouri Supreme Court, and I think--
Justice Anthony Kennedy: But the fact that those States do have a warrant requirement and from what we can best tell make it work very well, including some expedited procedures where you can get warrants within minutes -- it takes usually the policemen, say, 20 minutes to get just to the hospital or the police station anyway.
And if -- if we see that other States, a significant amount of other States, number one, require the warrant, number two, many of those have expedited procedures, does that bear on our determination of reasonableness?
John N Koester Jr: --I don't believe it does, Justice Kennedy.
I think, as Virginia v. Moore plainly teaches, individual State laws do not affect whether or not this activity was reasonable under the Constitution.
Justice Anthony Kennedy: But we have always -- correct me if I'm wrong.
I think that we have always thought of Fourth Amendment reasonableness standards as being a national standard.
Suppose 40 states -- you know, we can play the game.
Suppose 40 states had rules that you have warrants and many of them had expedited procedures.
That's still irrelevant?
We don't look at that at all?
John N Koester Jr: Your Honor, I think this Court's decision in Sampson vs. California is instructive.
In that particular case, the Court approved suspicion-less searches of parolees, and I think a vast majority of States disapproved of that particular law enforcement practice.
But that does not bear on the issue of whether or not that violates the Fourth Amendment.
Justice Antonin Scalia: Of course we don't know why they disapproved.
And I guess your point is they may well not have permitted it because they were under what you would call the mistaken belief that it was unconstitutional.
John N Koester Jr: I suppose that is a possibility, Justice Scalia.
Justice Anthony Kennedy: Is there any showing that conviction rate in those States is lower than in the States where the practice is to take the test without the warrant?
John N Koester Jr: Your Honor, I think amici National District Attorneys Association cited a study.
I know the Respondent also cited a study that shows it doesn't have any bearing.
But I think it's -- it's pretty clear that if you have concrete evidence of a drunk driver's blood alcohol content, concrete evidence, that gives you a far greater case, a far greater chance of securing a conviction at trial.
Justice Sonia Sotomayor: So the new rule is we have to strengthen -- the Fourth Amendment is going to be suspended whenever the prosecution can't get the best evidence to make its case out?
John N Koester Jr: No, Justice Sotomayor.
I think as long as a police officer has probable cause, what we're saying is it's objectively--
Justice Ruth Bader Ginsburg: Probable cause is not enough.
If you have probable cause, then you can get a warrant.
But it was and I think still is the main rule that if you can get a warrant, you must do that.
Probable cause is surely not enough.
Then we'd never need a warrant when there's probable cause.
John N Koester Jr: --You are absolutely right, Justice Ginsburg, probable cause is not enough.
But probable cause coupled with the indisputable fact that alcohol is eliminated from the human body with every minute that passes after a drunk driver is pulled over--
Justice Elena Kagan: Mr. Koester, suppose that, instead of waiting 2 hours, there were procedures in place in Missouri and, indeed, across the country where it was possible to get a warrant in these circumstances within 15 or 20 minutes.
Would you still be saying that there is a sufficient exigency to avoid the warrant requirement?
John N Koester Jr: --I think if a particular jurisdiction had perfected the warrant process to the point where they could routinely obtain search warrants in 15 minutes, I think we would have a different outcome.
I think that would affect the analysis of the case.
But with all due respect to the hypothetical, I think it is a time-consuming process to obtain search warrants.
Justice Stephen G. Breyer: So why can't you do that?
I mean, the only virtue I see in saying you have to go get a warrant is the officer picks up the phone, there is usually somebody on duty, a magistrate somewhere, he phones him up and says: I have a drunk driver here; he's wobbling, he can't cross the center line; and he won't take a breathalyzer; I want to give him a test.
Now, you have a second judgment and the officer has to talk to somebody, so he's a little more careful.
And that's a protection, not necessarily for this person, but a protection for others who maybe weren't wobbling.
So I think that's the question you're being asked.
Why -- what's the problem with doing that?
Which adds a little bit of security that this warrant really is -- this search is really necessary.
John N Koester Jr: Justice Breyer, I think in practical application it is going to be more of a time-consuming process, though, to obtain the search--
Justice Stephen G. Breyer: Why wouldn't it take -- let's see, how long did it take me to say that?
It took me about 30 seconds.
So -- so even if you are a lot more careful, why would it take more than, say, 3 minutes?
John N Koester Jr: --To obtain a search warrant--
Justice Stephen G. Breyer: Well, what you do is you have a system, and you phone up and you do just what I said.
And this man or woman who is there is not a policeman.
The virtue of it is this man or woman is trained to listen to policemen and others say things and try to pin him down a little bit and make an independent judgment.
So -- so why would it take more than 5 minutes?
John N Koester Jr: --Well, Justice Breyer, that's why I drew the analogy between the telephonic search warrants that were approved back in the 1970s.
It sounds like that would be an instantaneous procedure, but some of the lower courts that have actually examined the process, they came to the conclusion that it's still a time consuming process--
Justice Antonin Scalia: Mr. Koester, in most jurisdictions, unless I'm mistaken, the cop on the beat cannot apply for and get a search warrant.
He has to go through a prosecuting attorney or someone in the prosecutor's office first.
So it's not just getting hold of a judge.
It's getting hold of the prosecutor first and then getting hold of the judge if the prosecutor approves it, right?
John N Koester Jr: --That is absolutely correct.
Justice Antonin Scalia: Is that the case in Missouri?
John N Koester Jr: That is the case in Missouri.
The prosecution attorney--
Chief Justice John G. Roberts: In some cases I suppose the judges actually want to read the affidavit and give it some thought.
It's not going to be 3 minutes.
John N Koester Jr: --That's exactly right, Mr. Chief Justice.
I think if we were to the point where we were approving search warrants in 3 minutes, it would essentially be a rubber stamp--
Justice Ruth Bader Ginsburg: But we do have -- we do have, I think, an indication that there are jurisdictions that do it inside of a half-hour.
John N Koester Jr: --That may be true, Justice Ginsburg.
Justice Sonia Sotomayor: So do you define reasonableness--
Justice Elena Kagan: You suggest that 15 or 20 would be a different case.
I am wondering where you would draw the bright line.
John N Koester Jr: That's a difficult question, to draw a bright line for exactly when we would draw the line where -- where the exigency would disappear.
Justice Sonia Sotomayor: --So would the importance of the search warrant suggest, as a constitutional right, suggest that we should judge reasonableness by the people who are the least efficient or by the people who are the most reasonably efficient?
John N Koester Jr: Well, Justice Sotomayor--
Justice Sonia Sotomayor: Meaning people, police jurisdictions.
John N Koester Jr: --Of course, local law enforcement practices are going to vary from jurisdiction to jurisdiction.
Justice Sonia Sotomayor: Absolutely, but should they -- should we permit them to vary in terms of inefficiency or should we be encouraging them to vary within a reasonable range?
John N Koester Jr: Well, I think prosecutors are always going to strive to obtain search warrants as efficiently as possible.
But whether or not this was a reasonable search does not depend upon local police practices.
If there are no further questions, I would like to reserve the balance of my time.
Chief Justice John G. Roberts: Members of the Court have intruded on your rebuttal time, including me, so we will give you a little extra.
John N Koester Jr: Thank you.
ORAL ARGUMENT OF NICOLE A. SAHARSKY, ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER
Nicole A. Saharsky: Mr. Chief Justice, and may it please the Court:
Here the police are facing a destruction of critical blood alcohol evidence.
Every minute counts, and it's reasonable for the officers to proceed without a warrant.
I would like to pick up where some of the Court's questions led off: This idea that we might live in a world where warrants could be gotten so quickly that there is not true exigency.
First of all, that is not state of the world now.
There is substantial variation from jurisdiction to jurisdiction, and we are just not in a place where the time to get the warrant everywhere is 15 minutes or less.
Justice Antonin Scalia: But I mean, once we say that you don't need a warrant, you know, even if things improve, the game's up, right?
Nicole A. Saharsky: No, I don't think that that's true at all.
The police do not have--
Justice Antonin Scalia: You mean somebody can come up 10 years from now and say, although you approved it 10 years ago without a warrant, things have changed, so now you need a warrant?
Nicole A. Saharsky: --I think that if the world changed so that every police officer had an iPad and that judges were always on duty and that the warrants could be gotten that quickly, you would consider that and you would also consider the other sources of delay, which are the time to get to the hospital, etcetera, etcetera.
But yes, I would--
Justice Antonin Scalia: But if that's the case, then why shouldn't that determination be made case by case?
Nicole A. Saharsky: --Because--
Justice Antonin Scalia: Case by case, whether in fact it would have taken that long to get a warrant?
And if it -- if it would have taken too long, then it's okay without a warrant.
If it wouldn't have taken that long, it's bad.
Nicole A. Saharsky: --The question--
Justice Antonin Scalia: Totality of the circumstances test, right?
Nicole A. Saharsky: --Right, but the totality of the circumstances are with respect to the destruction of evidence and what the police are witnessing.
They know there is certain destruction of evidence and what they are weighing that against is uncertainty about whether there's time to get a warrant.
They have no idea what this person's blood alcohol content is.
They have no idea how fast it's decreasing.
Justice Ruth Bader Ginsburg: Ms. Saharsky, what about saying at least they should try, since a number of jurisdictions can do this within a half hour, say, initiate the process while you are going to the hospital; when a half-hour is up you proceed; but at least there has been an effort to get a warrant.
Nicole A. Saharsky: --I think there are legal problems with that and practical problems with that.
The legal problems is that the Court has never suggested that the police are both simultaneously in require-a-warrant land and not in require-a-warrant land.
Justice Anthony Kennedy: Well, we have -- I don't want to, because you have multiple answers -- but on that point, we do talk about exigent circumstances.
If we proceed as Justice Ginsburg's suggestion indicates, then the fact that you can't get a warrant within 45 minutes is the exigent circumstance.
Nicole A. Saharsky: Right.
I mean, in all of the destruction of evidence cases the Court has said: There's destruction of evidence; we're not going to make you wait until half of it is destroyed or three-fourths of it is destroyed or something like.
And that's the rule really that Respondents want.
Justice Anthony Kennedy: But Justice Ginsburg said 30 minutes.
Nicole A. Saharsky: --Right.
And what I'm saying is as a practical matter, I think it would be very difficult to suspect that nationwide folks could get warrants in those circumstances.
You typically have one police officer on the scene who is making the traffic stop, asking the person questions, taking him through the field sobriety test.
That would have to be the officer who would do the affidavit in support of the search warrant because he's the one who's witnessing--
Justice Samuel Alito: Jurisdictions have an incentive to get a warrant, I would think.
Even if they -- even if we were to say that they don't need one, they certainly have a strong incentive to get warrants because it insulates the search to a much greater degree from later challenge at a suppression hearing.
So why shouldn't it depend on the practicalities in a particular jurisdiction?
Not every jurisdiction has prosecutors and judges who are staying up at, you know, 3:00 o'clock in the morning on Sunday morning waiting for the phone to ring or for -- to receive some sort of an electronic message that there has been a stop and somebody wants a -- wants a search warrant.
Maybe, you know, big jurisdictions can do that, but small ones can't.
So why -- but if you are in a big jurisdiction that -- or one that feels that they can afford that, then why should -- you know, why should the Fourth Amendment permit the search to take place without the warrant when it could have been obtained--
Nicole A. Saharsky: --Well, I mean, a couple of responses.
First of all, this Court makes nationwide rules and the question is whether it's reasonable to do what Missouri did here even if other jurisdictions would choose to or could do it differently.
But second, you know, this idea with respect to -- that it should matter based on the time to get a warrant is something the Court has never done in its Fourth Amendment exigency cases.
And it may be the case that a court looking backwards could say, well, we think you had enough time to get a warrant.
But the police officer where he stands with the person, he knows a few things.
He knows one thing for sure: That evidence is going to be lost, and it's critical evidence.
It's not just to get above.08, but you have these laws that are enhanced with--
Justice Anthony Kennedy: I thought -- I thought that we often said that you look at whether or not you can get a warrant before you can break in so that the drugs aren't flushed down the toilet and so forth.
We make that judgment all the time.
Nicole A. Saharsky: --Right.
Justice Anthony Kennedy: And if that showing is not made, you must get a warrant.
Nicole A. Saharsky: But the Court--
Justice Anthony Kennedy: So I think it's quite incorrect to say that we -- we don't look at the time factor.
Nicole A. Saharsky: --I think it matters as a general--
Justice Anthony Kennedy: We look at it all the time.
Nicole A. Saharsky: --I think it matters as a general matter whether warrants take time to get and whether evidence is lost.
But the Court has never gone jurisdiction to jurisdiction.
It has never second-guessed the police in the way that the Court is suggesting today.
In Kentucky v. King, for example, an exigency case, the Court said the police could have proceeded a couple of different ways here; we are not going to make them use the least restrictive way; we are just going to ask whether what they did was reasonable.
Justice Anthony Kennedy: I agree that there is a uniform standard.
But -- and I don't know if you ever did finish the answer to Justice Ginsburg, but she had suggested that we have a uniform rule of exigent circumstances.
That -- her suggestion complies with your objection.
Nicole A. Saharsky: Well, if I am understanding it correctly, I think our point is this, which is that the police officers have to act reasonably in the situation.
And in a situation they know for sure the evidence is going to be lost, they know that every minute is critical.
For example, Respondent here's blood--
Justice Sonia Sotomayor: But there are so many situations in which we require a warrant, nevertheless.
When there is drug dealing in a house, every time people enter that house, it's almost a certainty that they're going to use the drugs and that evidence is going to disappear.
You rely on hope -- on knowing that there's likely to be telltale signs left over.
And that's the same thing you do in an alcohol situation.
You rely on the testimony of the police officer, you rely on the implied consent presumption.
It's not as if this is destruction of all evidence, and not like a fleeing situation where someone gets away, you have nothing left.
This is -- this is vastly different.
Nicole A. Saharsky: --I mean, with respect, we disagree.
This evidence is critical, and the number matters.
I mean, it is the case that blood alcohol evidence is the most important evidence.
This Court has recognized this in several cases -- Schmerber, Skinner -- and since then the law has only changed to make it more important.
In 2005 you had--
Justice Ruth Bader Ginsburg: You mentioned Schmerber.
Why did the Court go through all of the -- why -- it could have made it a much shorter opinion by simply saying, yes, blood alcohol dissipates.
But it didn't.
It pointed out that in that particular case there was a delay to investigate the accident, the person had to be taken to the hospital for care, so how much time elapsed?
I think it was 2 hours, wasn't it?
Nicole A. Saharsky: --The Court made a mention of 2 hours, but that was not a critical portion of its analysis.
We don't think that that mattered to Schmerber because the Court said, first, there was clear probable cause in that situation.
Second of all--
Justice Ruth Bader Ginsburg: What was all the -- why was it in the opinion?
Nicole A. Saharsky: --Well, it's one line in the opinion.
If you look at it, the Court says, we are told the percentage of alcohol in the blood begins to diminish shortly after drinking stops, the body functions to eliminate it from the system.
Particularly in a case like this, time had to be taken to bring the accused to a hospital and to investigate the scene--
Justice Ruth Bader Ginsburg: Yes.
They didn't need to say any of that.
Nicole A. Saharsky: --Well, they said particularly it means there's an extra thing.
But it doesn't mean that the first thing wasn't enough.
And what we say is if there was some uncertainty in Schmerber, the Court's--
Justice Antonin Scalia: That doesn't mean that it was enough, either, right?
Nicole A. Saharsky: --Well, that gives me the second part of my answer, which is the Court's cases since Schmerber have relied on the destruction of this evidence being enough for exigency.
And I would just point the Court to look at Skinner, at South Dakota vs. Neville, at Winston vs. Lee, and even in a footnote in Kentucky vs. King.
This Court has not said anything about the person having to go to the hospital and whether there was an investigation--
Justice Antonin Scalia: Counsel for Missouri tells us, Ms. Saharsky, that the breathalyzer is just as good and that in fact he expects that the consequence of our ruling in his favor in this case will be that drunken drivers will agree to the breathalyzer test.
But I don't know why it isn't adequate to produce that result simply to put the drunk driver in a -- in a paddy wagon and on the way to the hospital say: You know, we're going to be in the hospital in 20 minutes; we're applying for a warrant; when we get there, we're going to -- we're going to, you know, stick a needle in your arm, unless, of course, you agree to take the breathalyzer test.
Why isn't that enough to -- to force them into the breathalyzer test, so that they will blow up the balloon.
Nicole A. Saharsky: --Well, because in that situation, I think they're willing to take their chances that the evidence is going to dissipate below the.08 standard or below these higher enhanced penalties,.15, and then be able to challenge it, as opposed to if they gave the evidence that they potentially wouldn't be able to challenge it.
But I think the point that comes--
Justice Elena Kagan: Or maybe they're drunk.
But, but, but -- I mean, Justice Scalia raises a point, which is you always have some delay.
Unless you are talking about sticking a needle in somebody roadside, you have to take them to the hospital.
So there's going to be some amount of time which you're going to lose, and why can't you use that amount of time, if you can, to try to get a warrant?
Nicole A. Saharsky: --Well, I think there are two answers.
One, you typically as a practical matter have one officer on the scene who's proceeding with this and he's the one that would have to prepare the affidavit, typically the one to consult with the prosecutor.
He's the one who's going to drive to the hospital.
Presumably, we don't want him texting during driving, et cetera.
The second answer is a legal answer, which is that the Court has been very hesitant to second-guess the police in these circumstances and to say when the police are in a fluid situation they have to, say, try to get a second officer on the scene and maybe do the--
Justice Anthony Kennedy: Now, I think you should be fair.
He doesn't have to prepare a written affidavit in a number of these States.
It's a telephonic warrant.
You have to give us that.
Nicole A. Saharsky: --Well, even in some of the telephonic -- telephonic warrant procedures, you still have to have a written document.
You just write it out and then you read it to the judge and then actually a record needs to be made of it.
The case United States v. Reid in the Fourth Circuit actually considered this and said: You know, it sounds like it won't take that long, but it turns out these procedures actually take a while.
And it's not just the time to get a warrant.
It's the initial time that had been taken at the stop, the investigation, the field sobriety test.
Then there's the time to get to the hospital.
And, you know, sometimes these people, these folks, get to the hospital and they're not given first priority, so there's sometimes some waiting at the hospital.
So, a significant--
Justice Sonia Sotomayor: So is it okay -- is it okay to let police officers take the blood?
Nicole A. Saharsky: --Well, we think that's a different question and one that the Court reserved in Schmerber.
The Court said there was medical personnel in a medical setting taking the blood in that case.
That's the exact same thing that's happening here.
But it said if we had a different case, we'd ask whether the -- the situation invited an unjustified element of personal risk of infection and pain.
So we think the Court should get a case that has a record on this and then it could make a determination as to whether there is that risk.
Justice Sonia Sotomayor: Oh, I bet that if we rule in your favor, we will.
Nicole A. Saharsky: I'm not sure that that's true.
The reason that a few States have considered having police officers get trained in this way is basically out of necessity.
It is just in rural jurisdictions it's too far to get to the nearest hospital.
But it's fair to say that police officers do not want to be in this business of taking blood.
It diverts them from their other activities.
It's, you know, it's an extensive training process.
So I'm not sure that that's true, but it's not something the Court has to decide--
Justice Sonia Sotomayor: Do you want to be in those rural places and be stopped without an independent magistrate approving a field officer taking blood from you?
Nicole A. Saharsky: --Well, what I'm saying is that there are only a few States that are doing it now, and I think it is -- it should be -- the Court should wait until it actually has a record to make that determination.
But, you know, there has been training along those lines.
That's something, for example, that NHTSA at the Department of Transportation has helped these States investigate whether it's a real option, because the police officers are very far away from, you know, the nearest hospital and that it's -- it's all based on this concern about destruction of evidence.
But just to get back to--
Justice Elena Kagan: Going back to Justice Scalia's question, if a person does take a breathalyzer, is there ever a reason for a warrantless blood test?
Nicole A. Saharsky: --Yes.
As a general matter, you would not need to obtain a blood test, you know, practically, because the evidence is not the same, but, you know, substantially as good.
The blood test is a little better in that you have a sample that sticks around as opposed to one that is gone.
You also get two samples, so the defense can test it, and it is better evidence with respect to whether it's susceptible to challenge.
You also might have someone who consents to a breath test, but because, as you pointed out, they're so drunk they can't give a good sample, like they say they'll provide a sample, but they really just can't.
And then there's another case that is not the fact here, but something we would want the Court to be careful about, which is driving under the influence of drugs.
Those do not show up on a breath test, but the police officers might have very good reason to believe that the person is under the influence, such that they might take a breath test and get a zero reading, but still want to take a warrantless blood test.
So, all the Court needs to do to resolve this case is say where this person refused a breathalyzer -- actually, the exact same facts of Schmerber -- it was -- it was reasonable for the police to say, we know this evidence is going away, we know it's going to be lost, maybe we can get a warrant quickly, maybe we can't, we don't know what his blood alcohol is, we don't know when it's going to dip below.15,.08, let's just go ahead and proceed.
Justice Elena Kagan: All this talk about, you know, losing evidence every second, I mean, I suppose the exact same thing could be said in other alcohol-related crimes, public drunkenness, underage drinking.
You wouldn't be making the same arguments there, would you?
Or would you?
Nicole A. Saharsky: No.
I mean, the -- the question you'd ask will be the same, which would be a reasonableness balancing test, but I think the government interest on the side of that balance would be very different from the ones at issue here.
You know, the Court here has said that drunk driving is a serious public safety problem.
We're talking about one person being killed every 51 minutes, despite everything we've done in the last 3 decades.
Justice Elena Kagan: So it's not just exigency that you're -- you're saying that there should be a weighing of the costs and benefits here.
Nicole A. Saharsky: Yes.
That's what the Court did in Schmerber.
It looked at the intrusiveness of the blood test in this context and then it looked at the government's need for the evidence.
And the need for the evidence in the cases you're positing we suspect the Court would not think as strong as the evidence here.
But just to get back to some of the questions the Court has had about the time to get warrants, I mean, the evidence that the Court has before it is that it would take at least an hour and a half to 2 hours to get a warrant here.
That's in the Joint Appendix, page 54.
Even though the person said -- one officer said he could get in touch with the prosecutor and judge, he did not quantify how long it would take.
There's also an exhibit that the defense--
Justice Anthony Kennedy: Incidentally, it wasn't clear to me: Is that 1 hour from the time of the -- pardon me -- 2 hours from the time of the stop or 2 hours from the time he put him in the back of the patrol car?
Do we know?
Nicole A. Saharsky: --It's not entirely clear, but I think it's 2 hours total.
There was also on page 70 of the Joint Appendix an exhibit that the defense put in that make it look like one and a half hours to 2 hours total.
Chief Justice John G. Roberts: You can finish your thought.
Nicole A. Saharsky: --There's one other piece of data, which is a NHTSA study that's referred to in the briefs, about where the court -- where folks in four States where warrants were required tried to get them quickly as possible.
They put the judges on staff, they tried to do it electronically as much as possible, and still there it was one and half to 2 hours.
That's on page 37 of that study.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF STEVEN R. SHAPIRO ON BEHALF OF THE RESPONDENT
Steven R. Shapiro: Mr. Chief Justice, and may it please the Court:
The issue in this case is whether the State may stick a needle in the arm of everyone arrested on suspicion of drunk driving without a warrant and without consent.
Missouri's answer to that question is yes, even in routine DWI cases like this and regardless of how quickly and easily a warrant could be obtained.
Justice Stephen G. Breyer: I thought the question was if -- if in fact the person won't agree to a breathalyzer.
Steven R. Shapiro: The question is -- it's not clear to me.
Number one, Your Honor, there's nothing in the record to suggest that the driver is always first offered the opportunity, the choice of choosing a breathalyzer as opposed to--
Justice Stephen G. Breyer: Was your client was offered the breathalyzer twice?
Steven R. Shapiro: --This client was offered the breathalyzer, Your Honor.
Justice Stephen G. Breyer: How many times?
Steven R. Shapiro: And declined it twice, that's correct, Your Honor.
But under Missouri's proposed rule, there is no role at all for a neutral and detached magistrate.
The decision whether an individual can be required to submit to a nonconsensual blood draw, often while handcuffed and physically restrained as my client was--
Justice Stephen G. Breyer: I mean, aside from all -- the thing, what it boils down to, at least in my mind, is, is yes, of course it would be better to -- to have a neutral person hear what the policeman has to say and to act as a second judgment on that; it would make it less likely that people who are really innocent in fact have this happen to them and so forth.
But they're arguing that that's a -- that's a considerable burden in many, but not all States.
And at some point -- and the addition in respect to the second judgment, namely the magistrates that you get, is not worth really what you're going to lose, which are going to be people who are drunk driving around on roads and -- and possibly killing people.
We all know how that side can be built up, too.
Steven R. Shapiro: --Right.
Justice Stephen G. Breyer: So at some point, I would wish you would spend some time addressing that, that practical argument.
Steven R. Shapiro: I'd be happy to answer that question right now, Your Honor.
I think there are two responses.
One is Missouri specific and case specific and one is more generic, because I think it's important to remember they are not asking simply to reverse the suppression motion in this case on the grounds that the facts of this case made it reasonable to do a warrantless blood draw.
What Missouri and the United States are urging is a categorical exemption to the warrant requirement in all DWI cases nationwide.
So we have to think not only about--
Justice Antonin Scalia: Is this a lot of sound and fury signifying nothing?
I mean, what -- what advantage do you think your client would -- would really get from the warrant requirement other than the delay that that would entail allowing his blood alcohol to reduce itself?
Are the -- for some warrants, let's say a warrant to go into a building where the police contend there may be drugs, the policeman -- you know, the magistrate will say, What evidence do you have that there's drugs?
Well, you know, two weeks ago we had this informer, yesterday we saw this and so, you know, all sorts of different factors.
In these DUI cases it's always going to be the same thing.
The policeman is going to say, well, you know, his breath smelled of alcohol; we gave him the walk a straight line and turn around test, he flunked it; he couldn't touch his nose with his index finger.
What is the impartial magistrate possibly going to do except to say, hey, you know, that's probable cause.
Are any of these warrants ever turned down?
Are they ever turned down in your experience?
Steven R. Shapiro: --Your Honor, I do not know the answer to that.
Justice Antonin Scalia: I bet you they're not.
Steven R. Shapiro: But I think it's also true, Your Honor, that warrants in general are never turned down, that the overwhelming percentage of warrant requests in all criminal cases are granted -- are granted by magistrates.
Justice Antonin Scalia: But in many of them there is a lot of judgment that has to be brought to bear: Is this a reliable informant, how long ago did he tell you, and so forth.
Whereas, in all of these cases it's going to be the same thing: His breath smelled of alcohol, he couldn't walk a straight line, and whatnot.
And that's the probable cause.
And I don't see how the independent magistrate is going to do you a whole lot of good, except for the fact that it will delay the process.
Steven R. Shapiro: This Court's entire Fourth Amendment jurisprudence, Your Honor, rests on the proposition that the privacy safeguards of the Fourth Amendment benefit by having a neutral and detached magistrate review the evidence before the State does something as intrusive as putting a needle in somebody's arm.
And I could imagine a situation--
Justice Samuel Alito: What if the State has a form; we have forms in the Joint Appendix.
What if it has a form for the officer to fill out?
He checks certain boxes, and then you send this electronically to a magistrate, and if the right boxes are checked, the magistrate will grant the warrant.
Is that -- do you think that is consistent with the Fourth Amendment?
Steven R. Shapiro: --Well, it's something very close to what Missouri already has, Your Honor.
In Cape Girardeau County the prosecutor has prepared standardized forms which the police officer then fills out, presents to the prosecutor, the prosecutors sends on to the magistrate and the magistrate decides whether to grant the warrant.
But I think that cuts in exactly the opposite direction, which it shows that the process of obtaining a warrant is not very elaborate and it need it not be very timely.
And I can imagine, in answer to Justice Scalia's questions, I can imagine circumstances in which an officer might apply for a warrant in a situation where they have not asked the driver, for example, to go through the field sobriety test; said as they -- as we stopped the driver on the road, he was going 10 miles over the speed limit, I questioned him, his speech was slurred, his eyes seemed bloodshot, I want to do a blood test.
And the magistrate in that circumstance might say, did you at least perform the field sobriety test?
Did you at least offer--
Justice Ruth Bader Ginsburg: What about that field sobriety test?
Suppose the person who is apprehended and is suspected of being drunk says, I'm not going to walk a straight line.
I'm just going to sit here.
You can't make me do anything without a warrant.
Do you need -- if the defendant doesn't consent, do you need a warrant to have the standard sobriety test?
Steven R. Shapiro: --Do you mean do you need a warrant to have the field sobriety test?
Justice Ruth Bader Ginsburg: Yes.
Steven R. Shapiro: Is that the question, Justice Ginsburg?
I don't think you need a warrant to require somebody to put his finger to his nose or to walk a straight line or to stand on one foot.
I would not say that that is a search within the meaning of the Fourth Amendment that triggers the warrant requirement.
But there is no doubt that putting a needle in somebody's arm triggers a warrant requirement.
And I think there are really two--
Chief Justice John G. Roberts: What about a breathalyzer, do you need a warrant for that?
Steven R. Shapiro: --I think you probably do need a warrant for a breathalyzer, Your Honor.
But Missouri's position is you not only don't need a warrant for a breathalyzer, you don't need a warrant for a blood test.
And we don't -- this is not a breathalyzer case.
Chief Justice John G. Roberts: I know what Missouri's position is, and I know it's not a breathalyzer test.
But if the logic of your position leads to the requirement of a warrant for breathalyzer, that would be pertinent in analyzing your position.
Steven R. Shapiro: I think, Your Honor, it -- I would say that requiring somebody to produce, to breathe into a machine for -- in order to gather evidence for the State's prosecution is a state -- is a search that should probably trigger the warrant requirement, but it is certainly a less -- it is certainly less intrusive, Your Honor, it is certainly less intrusive than -- than the blood test--
Justice Antonin Scalia: It bears considerably on the reasonableness, doesn't it?
I don't know why you want to bite off more than you can chew.
Steven R. Shapiro: --Well, I certainly don't want to bite -- I want to bite off--
Justice Antonin Scalia: It's a different case and what is reasonable for sticking a needle in your arm is not necessarily reasonable for asking you to blow up a balloon.
Steven R. Shapiro: --Your Honor, I certainly want to bite off as little as I have to chew in this case, but there are two salient facts because I think it is important to focus on what is before the Court in this case.
And what is before the Court in this case is a warrantless blood draw, and the two salient facts in my mind are, one, as I said, case specific.
You have a state trooper here who has been doing this for 17 and a half years.
He testifies at the suppression hearing that he has only been required to seek a warrant fewer than ten times.
Why is that?
That is because the overwhelming number of drivers, in fact, give their consent.
And in the ten cases over those 17 years where he had to seek a warrant, he testifies that he never had any difficulty obtaining a warrant, and there is certainly no indication that those warrants in any way interfered with the State's ability to prosecute those cases.
Justice Sonia Sotomayor: Mr. Shapiro, could you tell me, and what I am deeply troubled about in your argument, is you incant the totality of the circumstances test.
But what circumstances is the Court actually looking at to determine whether forgoing the warrant was necessary or not under that circumstance?
We know one.
We know where a fatality has occurred or a serious accident, because we -- presumably you have to secure the scene and you have to take care of injured people or have cars towed, whatever else it is.
But I'm not sure what other circumstances under your theory would really justify a magistrate -- a court below saying, you -- you know, it's okay, you can get a warrant here.
It can't be merely because it takes too long to get the warrant because that shows inefficiency.
It was part of my question earlier.
Steven R. Shapiro: Yes, so that's exactly correct, Your Honor.
I think the Court got it right in Schmerber.
I think the question is: Are there special facts that are extrinsic to the warrant process itself and that are beyond the control of the police that significantly impede the ability of the police even to initiate the warrant process.
Justice Samuel Alito: Suppose you are in a rural jurisdiction and it takes a long time to rouse a prosecutor and a magistrate at 3:00 in the morning to get the warrant.
You would say, that's too bad, everybody has -- the whole country has to operate like New York City, you have to have somebody on duty all the time.
Steven R. Shapiro: Well, Your Honor, Cape Girardeau County is a rural county in southeastern Missouri--
Justice Samuel Alito: But I'm asking you a hypothetical question.
I bet there are places like that.
I have encountered magistrate -- federal magistrate judges who were unreceptive to receiving warrant applications in the middle of the night, and that is known to -- to exist.
Suppose you have a jurisdiction like that?
Does that count as a circumstance that would justify a warrantless taking of blood?
Steven R. Shapiro: --I would say no, Your Honor.
I don't think the State ought to be able to take advantage of its own failure to modernize an expedited--
Justice Anthony Kennedy: Suppose the magistrate is unavailable because he or she is ill?
Steven R. Shapiro: --Then I think that's a different situation, Your Honor.
I think that--
Justice Anthony Kennedy: Would you agree that that's an exigent circumstance which would allow a warrantless blood sample?
Steven R. Shapiro: --I think it might well if the magistrate were unavailable and there were no alternative magistrate.
But the second salient fact, Your Honor--
Justice Elena Kagan: That's a separate question, isn't it?
I mean, one prong of your argument is you need individualized circumstances, you can't have a per se rule.
And now this other set of questions about what you get to count in the totality of the circumstances test; is that right?
Steven R. Shapiro: --That is correct, Justice Kagan.
Justice Elena Kagan: So one could disagree with you and one could think, as Justice Alito and Justice Kennedy suggested, you know, you do take into account that it's the middle of the night in a rural county and it's going to take two hours, but still think, well, that's the analysis you had to go through.
Steven R. Shapiro: That is correct, Justice Kagan.
And the second fact I just wanted to come back to, and this came up briefly during my opponent's argument, is we know that there are half the states in the country by our count, 26 states in the country that by statute have prohibited warrantless blood draws in routine DWI cases.
They are listed on page 31 of the red brief in Footnote 9.
Given that fact, in the face of that reality, I don't think Missouri can plausibly claim that a categorical rule that would then apply nationwide if this Court were to announce it in the context of this case that warrants are never required in routine DWI cases, could satisfy the standard that this Court has established, namely that the exception to the warrant requirement that is being proposed serves law enforcement needs so compelling that a warrantless search is objectively reasonable in every case.
There is no evidence that I am aware of, in response to Justice Kennedy's question, and there is certainly no evidence in the record in this case or in the briefs in this case that those 25 states that prohibit warrantless blood draws in the circumstances that my client confronted here have a lower conviction rate, are less concerned--
Justice Stephen G. Breyer: A lot of States have varying degrees to which they want to enforce strict rules against drunk driving.
And a State -- that's exactly the kind of thing that worries me on your side.
The -- you have a bunch of States that don't -- you know, it's not easy to get hold of a magistrate in 15 minutes or so forth.
And so what to do about that?
If you say, well, you don't have to because you haven't got it provided, you give them every incentive not to make the magistrate available.
That's cutting in your favor.
On the other hand, it's pretty tough to say that all these States have to have the best possible magistrate available 24 hours a day so somebody can call in ten instances a year because the guy won't take the blood test -- won't take the breathalyzer.
That's where I am in a dilemma.
So I'm looking for an answer to that.
And you don't have an absolute rule or I don't see an absolute rule.
Should you say, look, here's what you have to do, it's better to have a second opinion there, which is the magistrate's?
And so on the way to the hospital, it's just that's where we started, you have to phone and try to get one, and if you don't have one by the time you're at the hospital, tell them again: It's your last chance, give us the breathalyzer or else.
And if he says no, then you take the blood test.
Well, that's a solution, or do you have a better solution?
What's the solution to the problem if you are willing to reject, which you aren't, but hypothetically you might be, that there's the absolute rule.
Steven R. Shapiro: --Well, I would say several things.
First of all, Your Honor, I really do have no reason to believe that there's any jurisdiction in the country at this point that is not deeply concerned about drunk driving, or recognizes that drunk driving is a serious problem.
That is certainly not our position.
Secondly, the reason I think that there is no evidence that in the States that prohibit warrantless blood draws in routine DWI cases like this have lower conviction rates is, number one, in most cases, they can obtain consent; number two, in cases where they can't obtain consent, they have been able to obtain warrants in a timely -- in a timely fashion.
And number three, even in the absence of warrants, all the facts that lead to probable cause often create a very compelling case for conviction in the absence of the blood alcohol--
Justice Stephen G. Breyer: My question is what you don't want to do and you don't have to, but if you think of a second-best solution it might always be better than what I think of as a second-best solution.
Steven R. Shapiro: --I have enormous confidence in you, Justice Breyer.
Justice Stephen G. Breyer: I -- I want to know if you want to say anything that would suggest -- we have a number of them floating around -- and I just wonder if you want to express any view on a second-best solution.
Steven R. Shapiro: Well, well -- well, our -- our position, and I'm not sure whether you're classifying this as our first position or something else -- our position is that within the context of Schmerber, if there are special facts external to the warrant requirement, then you have to apply a totality of the circumstances test, and you ought to apply a reasonableness standard.
In the context of the delays that are intrinsic to the warrant requirement, absent any evidence that those intrinsic delays have interfered with the ability of 25 States in the country to enforce their drunk driving laws, this Court ought not to adopt a categorical exception to the -- to the warrant requirement.
And the risk of doing it, as you pointed out, Justice Breyer, is then you create this odd disincentive, which is the States that have the slowest and most cumbersome warrant procedures are the States that get a free pass and are able to override the Fourth Amendment.
That seems to me--
Justice Samuel Alito: That's not true, because there's a great advantage to the prosecution in having a search with a warrant as opposed to a warrantless search in terms of suppression; isn't that correct?
Steven R. Shapiro: --Well, there is some advantage to having -- certainly, a search that is conducted pursuant to a warrant is much less subject to suppression than a search that is subject not pursuant to a warrant.
But -- but there is generally speaking in these cases a probable cause that is derived from the officer's observations on the scene and the defendant's performance in the field sobriety test, that -- that, you know, can support the warrant -- support -- support the search.
But I think--
Justice Samuel Alito: Can I ask you this question?
How much blood has to be taken in order to test for blood alcohol?
What if medical technology advances to -- I gather it's a -- it's a substantial amount.
But what if it advances to the point that you don't need any more blood than you need now to test blood sugar, and you just have a little machine that makes a tiny prick in somebody's finger and you've got enough blood to do a blood alcohol test.
Does it change then?
Steven R. Shapiro: --I don't -- excuse me -- I don't think the Fourth Amendment rule turns on the amount of blood that you take out of somebody's body.
I think the Fourth -- an important, maybe not the important dividing line, an important dividing line for Fourth Amendment purposes is puncturing the skin, and the Court has recognized this in other circumstances.
And I think--
Chief Justice John G. Roberts: So does that mean -- the last footnote in the Solicitor General's brief talks about some other methods, including a urine sample.
Not as accurate as blood, but it can help achieve the same result.
One of the things that I think affects the view in this case is it's a pretty scary image of somebody restrained, and, you know, a representative of the State approaching them with a needle.
But I take it you would say you need a search warrant for a urine sample, too?
Steven R. Shapiro: --This Court has said that, Your Honor--
Chief Justice John G. Roberts: Yes.
Steven R. Shapiro: --in a variety of circumstances with drug testing cases, where they weren't even law enforcement cases, they were special needs cases.
Chief Justice John G. Roberts: What about -- what about this device that you just sort of hold in front of it, you don't have to blow up the balloon, you just hold it in front of the individual and it measures to some extent blood alcohol content, or at least whether the individual's been drinking?
Surely you don't need a search warrant for that.
Steven R. Shapiro: --I think that -- I think that's probably -- I think that's probably correct, Your Honor.
You presumably do not need a search warrant, a search warrant for that.
And this Court held, first in Schmerber and then reaffirmed in South Dakota v. Neville, that there is no Fifth Amendment issue in requiring the defendant to produce the evidence that can then be used against you.
So we know we're not talking about a self-incrimination problem; we're talking about a search and seizure problem.
And if the government were able to obtain the evidence in a way that did not rise to the level of a search, then the warrant requirement wouldn't apply.
But we are not there.
We're not there.
And -- and the -- the warrant process that -- that Missouri has described is -- is not as complicated.
There are many places now that, number one, permit not only telephonic warrants but electronic warrants, where officers are equipped in their patrol cars with laptop computers.
They can fill out these pre-prepared forms in a matter of minutes -- e-mail them to the--
Chief Justice John G. Roberts: You're in an odd -- odd position to be making -- it's an understandable position -- your argument is these warrants are just easy as -- as pie.
You just send in this thing, the judge does it in an instant, it doesn't take very long at all.
It seems to me that that diminishes the protection of the Fourth Amendment to a far -- far greater extent.
The idea is that the prosecuting attorney is supposed to spend some time looking at this before submitting it to the judge and the judge is supposed to spend some time examining it.
But the idea that you're going to do these things in a half hour seems unreasonable to me.
Steven R. Shapiro: --But I don't think it's unreasonable, Your Honor, and it's because we all recognize that the evidence in these cases is relatively routinized, and the procedures are relatively standardized.
But that does not mean there is not a value to the warrant process, and to the second look by a mutual detached magistrate.
And the value of--
Justice Sonia Sotomayor: Mr. Shapiro, could you go back to what in this conversation we sort of have lost focus of, which is the question presented, and which is the essence, I think, of your adversary's arguments.
I'm not sure you've really put forth -- the essence of their argument is that you can forego the warrants requirement when you know for a fact that evidence is going to dissipate over time.
Basically, they're saying this process undermines our right to get a warrant, because the evidence is dissipating.
We certainly have cases that talk about destruction of evidence being a reason to forego the warrant.
What makes this case different from those?
Steven R. Shapiro: --I'd be happy to answer that question, Justice Sotomayor, if I could just complete my answer to the Chief Justice for one second.
Justice Sonia Sotomayor: Sure.
Steven R. Shapiro: And my answer would be that even if there are boxes on a standardized form, there is value to making sure that the prosecutor and the police have checked off all the right boxes before they engage in a process as intrusive as putting a needle in somebody's arm.
Now, in answer to Justice Sotomayor's question, I think -- I think there are multiple answers, Your Honor.
First, this Court has on two previous occasions considered and rejected the notion that the mere fact that alcohol dissipates over time is itself sufficient to proceed without a warrant.
As Justice Ginsburg pointed out, in Schmerber, the Court's discussion of what the Court itself called special facts would have been unnecessary if all the Court needed to say was that this natural dissipation of alcohol in the blood automatically would lead to--
Justice Elena Kagan: Mr. Shapiro, Schmerber is an odd case, because Justice Ginsburg are exactly right, that they spend a lot of time talking about special facts, and particularly so, but then you read the opinion kind of backwards and forwards, and you can't find the special facts.
Steven R. Shapiro: --I think the special facts, Your Honor, were the accident and the injuries at the scene, which delayed the police for 2 hours before they could even get to the hospital and initiate the process of applying for a warrant, at a time when there were no cell phones, there were no faxes, there were no internets, and all warrant applications had to be presented in person.
That's a very different situation.
Justice Samuel Alito: Well, if they had sent more police officers to the scene, they could have done everything faster.
Steven R. Shapiro: Excuse me?
Justice Samuel Alito: If they had sent more police officers to the scene of the accident, if they -- then they could have done it faster.
Steven R. Shapiro: Perhaps.
Justice Samuel Alito: So what's the difference between that practical limitation and the limitation that exists in a world -- in a rural jurisdiction?
Steven R. Shapiro: Well, I think that practical limitation, whether or not there were other officers on the scene, right, or that could have been sent to the scene, we're not asking for a rule in which this Court would direct police officers how they -- they ought to deploy their resources.
If there are multiple police officers on the scene, I don't think it's unreasonable to say one can attend to the accident and the other one can search -- can search for a warrant, and that becomes part of the totality of the circumstances.
But Schmerber is not the only case, Your Honor.
In -- in Welsh v. Wisconsin, the Court expressly said that the mere dissipation of alcohol in the blood was not sufficient to justify a warrantless entry into a defendant's home in order to arrest the defendant on DWI charges.
It's explicit holding, it's not simply an inference that one has to draw from Schmerber.
The second thing I would say in response to your question, Justice Sotomayor, is -- is -- is biology.
And that it is true that alcohol dissipates over time through natural body processes.
But that's only after the blood alcohol level has reached its peak, and that is generally about half an hour after somebody has had his last drink.
So there is a period of time in which the blood -- the body is continuing to absorb alcohol and then -- and the blood alcohol level is continuing to rise.
Only at peak does it then start to dissipate.
Chief Justice John G. Roberts: Well, I'm sorry, what's the relevance of that?
Steven R. Shapiro: The relevance of that is that it is not true that in every -- it won't be true in every case, Mr. Chief Justice, that the State is losing evidence with each passing moment.
Chief Justice John G. Roberts: But it depends upon when the last -- if a person left the restaurant right after they had a nightcap and then left, but if they just had drinks before, I mean, the problem seems to be there in either case.
Steven R. Shapiro: Well--
Chief Justice John G. Roberts: You don't know when the person's last drink was.
Steven R. Shapiro: --Well, you may or may not know, depending on what the -- the person is willing to tell you.
All I'm saying is that in every case, in every case, it's not the situation that from the moment you stop the driver, his blood alcohol level is going down.
There will be some cases where it is going up.
Justice Stephen G. Breyer: I am probably just -- but a policeman has probable cause to believe that somebody inside the house has drugs.
He hears the toilet flushing and he thinks they're flushing the drugs down the drain.
Steven R. Shapiro: Right.
Justice Stephen G. Breyer: He doesn't have to get a warrant as long as he reasonably believes that the evidence is disappearing.
Now, the difference between your case here and that is specifically what?
Suppose we were just to refer to those cases--
Steven R. Shapiro: Right.
Justice Stephen G. Breyer: --and say it's the same thing.
Steven R. Shapiro: Because the process is a very different process.
In the typical drug case, which is what this Court has considered when it has examined the question of whether the destruction of evidence qualifies as an exigent circumstance, that question has almost always arisen in what I'll call a typical drug case, Richards v. Wisconsin, Kentucky v. King.
And in those situations, what the Court is worried about is that the suspect inside the house is going to flush the drugs down the toilet.
Justice Ruth Bader Ginsburg: What you're saying is if it's now or never--
Steven R. Shapiro: It is now or--
Justice Ruth Bader Ginsburg: --where the other is a slow process.
Steven R. Shapiro: --It is now or never and not only is it now or never, that -- but in most of those cases, probably not all, but in most of the cases, the State's case is going to disappear down the drain along with the drugs and the ability to destroy the drugs lies entirely within the control of the defendant.
The defendant gets to decide whether he's going to put the drugs down the toilet or not and when he does, the destruction is immediate and total.
In this situation, the process is gradual.
It takes hours.
It can take hours, depending upon how much alcohol is -- is in the system and it is outside the control of the suspect.
There is nothing that the suspect can do to expedite the process of the destruction of evidence.
Justice Anthony Kennedy: Well, we -- we know the defense attorneys love it when there's a delay, because then the retrograde analysis has more and more contingencies that make it unreliable.
Steven R. Shapiro: That may be -- that may--
Justice Anthony Kennedy: I mean, you'd much rather examine the State's expert if the sample was taken three hours than if it were -- after the arrest than one.
I mean, that's a given.
Steven R. Shapiro: --There is -- there is -- there is no doubt, Justice Kennedy, first of all, the retrograde extrapolation evidence, which is now being considered in various courts around the country is controversial.
It's subject to cross-examination.
The -- the -- we haven't resolved whether -- whether the state of that -- the state of that -- the state of that evidence yet.
But having said that--
Justice Antonin Scalia: I thought -- I thought you would also distinguish the drug flush cases on -- on the ground that violation of the integrity of your home is somewhat less than violation of the integrity of your body.
Steven R. Shapiro: --Well, I think that that is certainly -- that is certainly true -- that is certainly true as well, Your Honor.
Justice Antonin Scalia: And that goes into the reasonableness determination.
Steven R. Shapiro: Right.
And there -- and there is no doubt, I will not deny, the State's case will be easier if it does not have to obtain a warrant, but this case -- Court has recognized that many times in the past.
Criminal investigations are always easier if the State does not have to comply with the warrant process.
Justice Ruth Bader Ginsburg: Mr. Shapiro, before your time runs out, the case of the fingernail--
Steven R. Shapiro: Mm-hmm.
Justice Ruth Bader Ginsburg: --scrapings has been raised as saying well, that's -- somebody is going to scrape your fingernails, that's as intrusive as a blood test.
Steven R. Shapiro: Well, I would say three things, Your Honor.
I don't think it is as intrusive, although even in Cupp v. Murphy, which is that case, the Court described it as a serious but brief intrusion on the cherished value of personal security.
The Court recognized that even the -- the fingernail scrape was -- was a serious Fourth Amendment issue.
Secondly, that evidence, unlike the blood alcohol evidence, was under the control of the defendant and in that case, on the facts of that case, much like many of the Court's other exigent circumstances cases, there was evidence that suggests that the defendant was actively engaged in the process of degrading the evidence at the time that the police stepped in and said we're going to preserve what is left rather than allow you to be the agent of your own destruction.
And as the Court said in Kentucky v. King, it is a very different situation when you have the defendant himself destroying evidence.
Under those circumstances, it may be reasonable for the Court to say you can't simultaneously destroy evidence and then protest that the destruction of the evidence -- evidence has created the exigency that requires the State to act without a warrant.
But there is no agency in this case on behalf of the defendant.
The defendant has no capacity.
And I come back to what I said before.
It is true, I think this question came -- came up earlier, when Mr. Koester was being -- was being questioned.
Fourth Amendment standards are not determined by State law.
The Court has said that in Virginia v. Moore.
We all understand that.
But in the determination of what is reasonable under the Fourth Amendment, this Court has often looked to State practices in response to Justice Kennedy's question.
In Tennessee v. Garner, you have the Court say half the States have abrogated the Common Law Rule that would have allowed the police to shoot any fleeing felon.
In Richards v. Wisconsin, you have half the States that not support an exception to the No Knock Rule.
Here we have half the States in the country that would not have permitted what went on in this case.
Thank you very much.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Koester, you have -- we'll give you three minutes.
REBUTTAL ARGUMENT OF JOHN N. KOESTER, JR., ON BEHALF OF THE PETITIONER
John N Koester Jr: Thank you.
Everyone agrees that the closer a chemical test is taken to the time of driving, the more reliable the evidence of intoxication is, the more reliable the evidence of impairment is.
So under the Respondent's approach, it would be mandated that we're going to allow the most reliable evidence to dissipate and degrade over a period of time in favor of admittedly less reliable evidence taken at a later time.
And I -- that's simply inconsistent with -- with Fourth Amendment jurisprudence and -- and other destruction of evidence cases.
I believe the Respondent's proposed rule here is completely impractical and unworkable.
If there are no further questions, I--
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.