Monday, April 22, 2013

The Devolution of Individual Liberties on a Case by Case Basis

The Fourth Amendment prohibits unreasonable searches of people, papers, possessions and places of residence. To establish reasonableness, the Amendment requires warrants to be both specific and based upon probable cause.   The question that arose in Missouri v. McNeely, SCT Docket No. 11-1425, was whether blood alcohol content in a driving under the influence case established a per se exclusion from the warrant requirement.  That answer is "no" but the result is a bit unsteady.  True understanding of the issue requires a bit of background.

The first case really addressing the invasion of a person's body by law enforcement is Rochin v. CA, 342 U.S. 165 (1952).  In that case, the Court concluded that the use of a stomach pump to remove potential evidence from an individual shocked the conscience violating principles of due process of law.  But, the history of that case must be understood in order to grasp the blase attitude of the Court in its decision in McNeely.  In People v. Rochin, 101 Cal.App.2d 140 (1950), the case overturned in Rochin v. CA, the California Court of Appeal found that the police broke into a man's house, asked him to answer a question he need not answer, watched him swallow two capsules, handcuffed him, transported him to a hospital and had his stomach pumped...for 2 morphine pills and a 60 month jail term...YET...because California did not accept the exclusionary rule, the Court of Appeals was bound by precedent to uphold the conviction.  The decision was scathing against the actions of the police, the ethics of the physician who conducted the stomach pump, and the lack of an exclusionary rule in California. 

Although the California Supreme Court refused to hear the case, two of those justices wrote powerful dissents stating, among other things, that police when left to their own devices cannot be trusted.  The two justices waxed poetic about the history, meaning and necessity of the specific warrant requirement and of the absolute need for the exclusionary rule in order to compel police to comply with the laws they, themselves, are charged with enforcing.  One dissenting judge even declared,
We are told by our national leaders that a state of emergency now exists throughout the world-that our liberties are in jeopardy-that to preserve those liberties we must unite with other free nations of the world in establishing the most potent military force of all time to resist totalitarian aggression. What are these liberties which are threatened? Is not the right of privacy, guaranteed by the above mentioned constitutional provisions, one of those liberties? There can be no question that the right of privacy is one of these fundamental rights, guaranteed by the Bill of Rights-the charter of our civil liberties. Could anyone imagine such right being any more ruthlessly violated under a totalitarian regime than it was in the case at bar? It makes little difference whether the minion of the law who perpetrates such outrages has the official title of commissar, gestapo, sheriff, policeman, constable, game warden, or whatnot, the violation of one's right of privacy is just as deplorable. Merely to say that what the officers did in this case, was wrong, is not enough-they will do it again and again if the courts continue to hold that the evidence they obtain by such unlawful means may be used in criminal prosecutions.
This was 1950.  Those judges were the finest example of what the Framers hoped for with an independent judiciary.  No doubt, this led to the acceptance of the certiorari petition.

In Rochin v. CA, which predates the incorporation doctrine, the Court reversed under the 14th Amendment Due Process Clause.  The best thoughts in that decision emanate from the two concurring opinions: of Justice Black - who called the amorphous nature of due process of law into question, concerned about its vagaries and demanding the incorporation of the Bill of Rights under the 14th Amendment; and Justice Douglas who remarked, "I think that words taken from his lips, capsules taken from his stomach, blood taken from his veins are all inadmissible provided they are taken from him without his consent. They are inadmissible because of the command of the Fifth Amendment." Rochin v. CA, 342 U.S. at 179 (Douglas, J. concurring).  To these Justices, this was a clear violation of the right not to be compelled to bear witness against oneself.

After Rochin, the Court decided the case of Breithaupt v. Abram, 352 U.S. 432 (1957).  Mr. Breithaupt was convicted of involuntary manslaughter after he caused an accident by driving erratically.  Injured and unconscious, at the hospital, a police officer directed a physician to draw blood which was then provided directly to the officer who had it tested at a police lab.  The results, indicating a high blood alcohol content, were admitted at trial. 

This did NOT shock the conscience of the Court as it was not brutal or offensive.  And, the majority went into a long description of the scourge of alcohol related deaths on the highway as reason for extreme measures.  It was 1957.  The highways had just been invented but airbags had not.  The dissents did not disagree with the problem of dangerous highways and inebriated drivers- merely the Court's role in the application of solution.  The whole point of due process is to remove certain rights from the reach of law enforcement...such as sticking a needle into a fellow human being in order to extract bodily fluids.  The dissenting justices correctly saw no difference between a stomach pump and a blood draw; no difference between the scourge of drugs and that of drunk driving.

Next came Schmerber v. CA, 384 U.S. 757 (1966) and perhaps the most remarkable aspect of the case is that by the time Mr. Schmerber was in the hospital arrested for driving under the influence, he already had a lawyer - who told him not to consent to a blood draw...so he did not consent and yet a doctor (allegedly treating him for his injuries) at the behest of a police officer drew his blood and gave it to law enforcement for analysis.  The Court found nothing wrong with this picture; indeed the majority opinion made up - with no supporting facts - that the police officer felt he had inadequate time to obtain a warrant and then with the stroke of a pen sanctioned police officers to order physicians to draw blood from suspects.

Again, the dissenters charged back: Justice Warren reiterating his dissent in Breithaupt and Justices Douglas and Black reiterated that compelling an individual to permit extraction of his bodily fluids is a violation of the 5th Amendment.  Indeed, they illustrate that the notion of "testimonial" and "communicative" evidence as a touchstone for acting as a witness against oneself has no foundation in precedent.  As to the 4th Amendment analysis, Justice Fortas even remarked in dissent that extracting blood by the state, particularly over protest, amounted to tortious violence.

Onward to Missouri v. McNeely where the Court remarkably combines all of the worst aspects of each of the prior cases to come to no real conclusion regarding the warrant requirement for extracting blood from one suspected of driving under the influence.  The Court ignores the significance of the Breithaupt case where Mr. Breithaupt was not only suspected of driving while inebriated, he killed people.  He was prosecuted for involuntary manslaughter, not driving under the influence.  The blood extracted from him while he was unconscious may or may not have influenced the guilty verdict.  But, once convicted, he did not even appeal.  His case came in through post-conviction habeas corpus, as an afterthought which may (or may not have) influenced the state and then the federal courts.

These massive procedural and factual differences were lost on the Court - they could not see the slippery slope and so slid down blindly.  Putting aside that appellate courts are not concerned with guilt or innocence, the other cases, Rochin and Schmerber - and McNeely - were prosecutions for the sins of drugs and drink and all came up on direct appeal.  They were policy-driven and not crime driven cases.  No one was hurt and nobody died.  Rochin was arrested in 1949 for morphine pills - the tactics were horrific and for what?  For a sixty day misdemeanor sentence.  In Schmerber, while the defendant was injured, no one else was involved.  He refused to blow into a newfangled Breathalyzer test (and his refusal entered in evidence without objection - the reason that 5th Amendment claim was rejected by the Court).  And, the purpose of the driving under the influence laws had been accomplished - he was off the road and would be for some time for the refusal of the breath test.  Still, he was more like Mr. Rochin and less like Mr. Breithaupt; but not to the Court, now bent on evidentiary science to prove guilt rather than constitutional principles to protect liberty.

By Mr. McNeely's case, all of the rules had changed: uniform rules on blood alcohol content came about due to federal funds for highway development and maintenance wherein Congress would only disperse funds to states that criminalized driving with blood alcohol content of .08 or higher.  That is, there is no magic number that indicates impairment - simply one Congress could agree upon before handing out money.  Breathalyzers became commonplace by the 1980's and are far less invasive: most states suspend licenses of anyone who refuses to submit, regardless of conviction.  Video is ubiquitous so that officers can film all of the roadside tests for view by a jury - or by a magistrate to issue a warrant for a blood draw.  And, communication has sped to the point of instantaneous connection wherein some states have developed a warrant procedure via email or Skype.

So, instead of walking through the history and rationale even of Breithaupt (where no other means had been developed to test blood alcohol content and the actual offense involved death), and revisitng the wisdom of Rochin, the Court veers into statistics and popularity of certain techniques - a course proper for a legislature, not a Court.  It then merely claims that there is no per se exigence related to driving under the influence and if a warrant can be obtained it should be...but if it's too much trouble, then it's not really a big deal.

At the same time, the Court acknowledges that most states have a warrant requirement and indicates that there are better, more consistent results with the warrant requirement and so obtaining and executing a warrant for a blood draw improves law enforcement overall.  Even though the results are more fair and less challenged when the police establish probable cause and present that to a detached magistrate for a ruling - and even though this enhances due process of law - the Court refuses to require it.

The McNeely decision splits up like this: Justice Sotomayor joined in full by Scalia, Ginsburg and Kagan makes this wishy-washy-cop-can-use-his-judgment-to-get-or-not-get-a-warrant determination and there is nothing inherently exigent about a "routine" driving under the influence case so the totality of the circumstances will dictate exigence.  In direct opposition is Justice Thomas who dissents (with a hypothetical about police watching a man carrying bundles of marijuana to a bonfire; it makes no sense but it is funny, though not intentionally so) by declaring that all driving under cases establish exigent circumstances to draw blood - no warrant, no problem.  Justice Kennedy joins the majority in part but really limits his decision to the statement that always dispensing with a warrant requirement is inconsistent with the Fourth Amendment.  

The most interesting - and bizarre - opinion is of the concurring in part and dissenting in part Justices Roberts, Alito and Breyer who desperately want to make a special exception for driving under the influence that would swallow the warrant requirement (which Justice Thomas just comes out and says) but they just...can't...get...there.  So, they like this idea better: driving under the influence presents presumptively exigent circumstances unless the police officer feels that he might be able to get a timely warrant.  They provide the examples of exigence and equate the need to extract blood from a lone driver pulled over for erratic driving to any of the following circumstances: a burning building (where police go in to SAVE people) or hot pursuit (where police are seeking to LIMIT damage of fleeing felons) or like having information about an injured person and entering a home to assist her.  That is NOT what blood alcohol content evidence is like at all.  It is not an exigent circumstance - it is simply very, very good evidence to convict someone for driving under the influence that dissipates over time.  But, investigating a crime and gathering evidence is not a reason to dispense with the Constitution.

In "routine" driving under cases, the refusal to blow into a breathalyzer or have a blood draw is enough, in most if not all states, to suspend a driver's license for several months.  Whether or not there is a conviction, that might be enough to keep the roads safer and wake the individual up to the potential danger involved in impaired driving.  And, isn't that the point of the policy?  No one is injured, no buildings are burning and no one is in further danger.  Taking blood under this rubric is much, much more like Rochin than it is like Breithaupt.   A plausible argument could be made that Mr. Breithaupt's treating physicians needed to draw his blood since he was unconscious and perhaps in need of more profound care requiring the medical personnel to know what was in his system to know what drugs not to give him.  Not perfect, but plausible.  All of the other cases involve police officers directing civilians to invade another person's body for evidence of a suspected crime where no one else was harmed - and the civilians DOING it with no court order - which is just mind-boggling, and terrifying, when one thinks about it.  There is not a chance that the Framers - who fought against the presence of an authoritative police state - intended this result.  It is just wrong.

The correct decision is the one lamented in the first Rochin case; the one where the frustrated judges adhered, kicking and screaming, to irrational precedent, practically begging the legislature to advance an exclusionary rule - and admonishing the tactics of the police and the ethics of the physician who pumped the defendant's stomach.  They waxed poetic about the role of government and the rights of the citizen.  Their eloquence persuaded, no doubt, the Court to take the certiorari and reverse the conviction out of sheer horror that the police could barge into someone's home and haul him out in handcuffs to have the contents of his stomach pumped into a bucket so they could prosecute him for essentially being a drug addict.  

The voices of the great Justices Douglas and Black harken to us to dispense with this idiocy that courts are here to enforce the will of the legislature or popular sentiment.  Courts are here to enforce the constraints of the Constitution whether people like it or they do not, whether it makes a police officer's job easier or it does not, whether it forces legislators back to law drafting or it does not.  Courts are here to protect individual liberties from the will of the masses.  That is exactly why Article III judges were given lifetime tenure.  

McNeely is a worthless non-decision that makes no change for the rights of individuals.  It does not enforce a warrant requirement to extract bodily fluids from a fellow human being.  It does not review the rationale behind any of the prior cases and reverse the misbegotten findings that blood is not testimonial in the same way that putting on a shirt is not testimonial.  It does not  venture into the meaning and purpose of being secure in one's person from an overeager government official.  

Recently, the Court ruled that it was trespass for drug sniffing dogs to poke around a yard thus requiring a warrant for that activity.  In McNeely, the very same Court ruled that it was NOT trespass for the police to order a civilian to perform a needless medical test by placing a sharp object into that person and - in the words of Justice Douglas - bloodletting.  Is there any more clear invasion of privacy than literally entering a body and removing its substances?  

This idea that the results of the blood test are somehow not testimonial, too, is laughable: asking someone to walk a certain way or put on a shirt is not the same as forcing him to sit still while a medical professional (whom he can now no longer trust to assist him in any medical treatment as the physician has become an agent of the government) draws his blood for the sole purpose of prosecuting him.   As Justice Black remarked, "[i]t is a strange hierarchy of values that allows the State to extract a human being's blood to convict him of a crime because of the blood's content but proscribes compelled production of his lifeless papers." Schmerber v. CA, 384 U.S. at 775 (Black, J. dissenting). 

The Court had the chance to do something profound, something grand, to restore so many rights taken away while promoting disastrous policies prohibiting alcohol and drugs; it could have required a warrant for every single medical invasion; it could have made a warrantless entry into a body presumptively unconstitutional as it does for entries into homes; it could have concluded that bodily fluids were encompassed in a privacy sphere requiring either the prohibition of use as testimonial evidence when taken by compulsion or a directive that due process requires significant protections to shield individuals from indignities and affronts to bodily integrity. Instead, it left everything in the hands of the police.  Not only does this result fail to provide any guidance, it is without question, the exact opposite of what Framers intended.

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