Just Because They Can Seize It Doesn't Mean They Can Test It
by: Rjohnson • June 9, 2012 • no comments
This is a follow-up to my recent posting on Machuca and urine tests. Assuming that, under State v. McMullen (May 31, 2012) and related cases, the police are allowed to seize urine without a warrant, do they get to test it? I don't think so. Compare: State v. Binner, 131 Or App 677 (1994) (consent to search blood for alcohol does not permit a search for drugs) with State v. Langevin, 84 Or App 376 (1987) (when there is PC that blood contains alcohol and it is lawfully seized, no warrant required to search it.) Langevin is based on cases like State v. Owens, 302 Or 196 (1986) permitting warrantless confirmatory testing of drugs. What I get out of those cases is that testing is okay if it confirms what the police already know. In the case of a DRE urine test, the DRE does not know what drug or metabolite is in the urine; the DRE only guesses categories, not drugs. That means that a chemical test of the urine reveals private information, and, therefore, is a search requiring a warrant.
