The 4th Amendment’s Disappearing Act

By: Saman Golestan

 

The fourth amendment protects all persons within the United States against unreasonable searches and seizures. It is one of the cornerstones of our criminal justice system. The police cannot search you arbitrarily or on a whim. They need probable cause and a warrant to search you or your possessions.  If the Federal Government and the State of Missouri have their way, that right will narrow yet again with another exception added to the already long and growing list of exceptions. The governments are arguing in favor of a new exception to the warrant rule in cases of suspected DUI. The case, Missouri v. McNeely, was argued on January 9th 2013 and a decision is expected this spring.

In McNeely, a police officer drew blood from a suspect without his consent and without a warrant. The government argues that the nature of the alcohol in blood constitutes an exigent circumstance where time is of the essence because the evidence of alcohol is dissipating as time goes on. This argument while biologically correct falls on its face for one key reason: warrants can now be obtained in a matter of minutes. For DUI cases especially, warrants are obtained via telephone or fax with minimal effort. With a warrant that is so easily obtained for these types of cases, can it really be said that such an exception is necessary? The exigent circumstance the government claims may exist in the rarest of cases such as a serious accident where an injured person needs to be rushed off to the hospital, but routine traffic stop does not constitute such an exigent circumstance.  Blood draws in cases of suspected DUI are dealt with properly and efficiently under the current model of telephonic warrants. Interestingly, the officer indicated he never had trouble obtaining warrants in the past, and there was no evidence presented that suggested he would have had such a difficulty in this case.

At oral argument Justice Roberts opined on what he believed to be a scary thought: the government coming toward you with a needle to remove your blood against your consent and without a warrant or any form of judicial oversight. Justice Roberts’s thought was scary and also spot on. Perhaps this case would be different if it involved a search of possessions or a home, but here, the search includes invading an individuals body, and removing bodily fluid. If the 4th amendment does not protect the most intimate place, one’s own body from unreasonable search and intrusion, then what does it protect? If a police officer or government agent can stick a needle in your arm and take your blood without any sort of judicial oversight or warrant process, then we have effectively destroyed the purpose of the 4th amendment.  Come this spring, pay close attention to the Supreme Court, your rights, and your blood, depend on it.

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