Thoughts on the Oral Argument in Missouri v. McNeely

Today the Supreme Court heard argument in Missouri v. McNeely, a Fourth Amendment case on whether the police need a warrant to do a forced blood draw following a DUI arrest. Here are a few thoughts about the argument.

1) Does technology expand the scope of the warrant requirement? Today’s argument suggests that it might. In analyzing the reasonableness of a warrantless search in light of possible exigent circumstances, the amount of time that it would take to get a warrant is relevant. That led the Justices to ponder an intriguing question: How much time should they assume it takes to get a warrant? As communications technologies such as the phone and the Internet get better, it becomes easier to get a warrant more quickly. As the time it takes to get a warrant shrinks, the need for a warrantless search shrinks along with it — and therefore a warrantless search becomes less constitutionally reasonable. As a result, changing technology may expand the scope of the warrant protection. On the other hand, this can be a difficult question to predict empirically. Every jurisdiction is different, and the Justices can’t be sure how different jurisdictions might respond to a rule that requires warrants for such searches. Maybe they’ll be able to set up a system of fast warrants and maybe they won’t. The Justices can’t be sure.

2) Over at SCOTUSblog, Lyle Denniston thinks it is very clear that the Court will require a warrant at least in the ordinary DUI case. If so, it may turn out to be example of the current Justices having a more liberal take on the Fourth Amendment than the Warren Court did. In Schmerber v. California, in 1966, Justice Brennan wrote a majority opinion approving a warrantless blood draw in a drunk-driving case. There are some factual differences between this case and Schmerber, and it’s a rather cryptic opinion. But the general thrust of today’s argument seemed more defense-friendly than does Justice Brennan’s opinion in Schmerber.

Maybe the changing technology explains that — it’s hard to know. But it’s particularly interesting so soon after the Court’s recent 9-0 vote for the defense in the GPS case, United States v. Jones. Academics like to say that the Fourth Amendment is dead, but maybe it’s not so dead after all. Or at least maybe it’s not so dead when you’re talking about rights not remedies — and perhaps, more cynically, when you’re focusing on facts like a DUI arrest that have been known to happen to peers of the Justices.

3) I wonder, how much does this case actually matter? Several Justices caught on to one of the reasons why it might not matter much: The warrant protection doesn’t mean very much here because the facts of DUI cases and blood draws are very standardized. Requiring a warrant may amount to a formality. Along the same lines, there’s an interesting question as to whether the inevitable discovery exception would apply were a court to require a warrant that an agent does not obtain. If the court requires a warrant and an agent conducts a warrantless search anyway, can the agent argue that the blood recovered should be admitted anyway under the inevitable discovery exception to the exclusionary rule because he would have successfully obtained a warrant if he had not conducted the warrantless search? Cf. State v. Beckwith, 31 Conn. L. Rptr. 655 (Conn. Super. 2002). Lower courts have generally said “no” to those kind of arguments on the theory that they would negate the warrant requirement.

4) Finally, on the subject of remedies, I was interested to see that Justice Alito twice suggested that the police will want to get a warrant anyway, even if none is required, because it will help stave off suppression. Here’s Alito at page 19: “Even if they — even if we were to say that they don’t need [a warrant], 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.” And at page 47: “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?”

That used to be correct, but I’m not sure it’s correct any more — thanks in large part to recent decisions written and joined by Justice Alito. A decade ago, officers had an incentive to get warrants because the good faith exception to the exclusionary rule applied only if the officers had obtained a warrant. With the benefit of a warrant and its accompanying good faith standard, suppression was very unlikely. So officers had a strong incentive to get the warrant. But thanks to language in Herring v. United States in 2009, expanded considerably by Justice Alito’s 2011 decision in Davis v. United States, the good faith exception now applies in the warrantless context, too. We don’t know exactly how far the Court will be extending the good-faith exception in the future, but the old idea that officers would try to get warrants to get the benefit of the lower suppression standard of the good-faith exception appears to be outdated by more recent opinions joined and even authored by Justice Alito. And even without the good faith exception, in a case such as this the inevitable discovery exception may apply for the reason I noted above.

UPDATE: I have amended this a bit shortly after posting it.