United States Supreme Court - April 17, 2013

by: Jwestover • April 17, 2013 • no comments

The Supreme Court’s decision today in Missouri v. McNeely is best understood through its majority opinion and through Justice Kennedy’s partial concurrence. The majority, written by Justice Sotomayor and joined in relevant parts by Justices Scalia, Ginsburg, Kagan, and Kennedy, holds quite simply 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.” Instead, each case should be decided on its own facts, in light of the totality of the circumstances. The Court notes that because of the procedural posture of the case (the state of Missouri at no time made any arguments other than in support of a bright line, per se rule allowing warrantless blood draws in DUII cases) “a detailed discussion of all the relevant factors that can be taken into account in determining reasonableness of acting without a warrant” could not be presented.

Justice Kennedy, as the perpetual fifth vote, concurred in part, but noted that the absence of a per se rule does not necessarily preclude any rules on the matter. He writes, “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.”

For now, the exigency is alive and well, but human metabolism by itself is insufficient to trigger it. Instead, police will have to point to “special facts” that indicate something else is afoot.