Supreme Court

Justice Kennedy to Government Lawyer: 'You're Asking Us to Make It a Crime to Exercise What Many People Think Of As a Constitutional Right'

SCOTUS hears arguments in Birchfield v. North Dakota.

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Credit: C-SPAN

This week the U.S. Supreme Court heard oral arguments in Birchfield v. North Dakota, an important case that pits the Fourth Amendment right to be free from warrantless government searches against the government's desire to impose warrantless DUI tests on suspected drunk drivers. At issue are state laws from North Dakota and Minnesota that make it a crime for a suspected drunk driver to refuse to submit to a warrantless breath or blood test. The specific legal question before the Court is, "Whether, in the absence of a warrant, a State may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person's blood?"

Multiple justices expressed doubts about the constitutionality of the actions taken by North Dakota and Minnesota. "You're asking for an extraordinary exception here," Justice Anthony Kennedy told Thomas McCarthy, the lawyer representing North Dakota. "You're asking for us to make it a crime to exercise what many people think of as a constitutional right," meaning the right to say no to a warrantless government search. "There is some circularity there," Kennedy noted. "And you could point to no case which allows that."

"If you're taking them to the police station anyway to do the breath test, and it just requires a phone call to get the warrant, what's the problem?" Justice Stephen Breyer queried Kathryn Keena, the lawyer for Minnesota, who had just explained that the only breath test results that are admissible in court are the ones that are conducted at the police station after the suspect is arrested. "Why can't you just call the magistrate, and at least we have some kind of safeguard against total arbitrary behavior."

Charles Rothfeld, the lawyer representing Danny Birchfield and the two other petitioners challenging the state laws, faced his sharpest interrogation on the question of whether the Court should treat warrantless breath tests differently than it treats warrantless blood tests. This line of questioning centered on the idea that breath tests really aren't that invasive and may perhaps be constitutional as part of the valid search that police may conduct without a warrant incident to a suspect's arrest.

"It's an intrusion when you pat down someone having probable cause to believe he's committing a crime," observed Justice Breyer, "Pat-down is a much more intrusive form of search than saying would you blow into a straw." In other words, Breyer asked, if the Court permits the police to pat-down suspects without a warrant, why shouldn't the Court permit the police to tell suspects to "blow into a straw" without a warrant?

Justice Elena Kagan made a similar point. "There are searches and then, again, there are searches. There are more invasive searches and less invasive searches." Perhaps the less invasive breath test should be judged under a more lenient standard than the far more invasive blood test, which requires a trip to the hospital, she seemed to suggest.

Judging by the oral arguments, it seems conceivable that the Supreme Court will void the state refusal laws that govern warrantless blood tests while at the same time allow the states to maintain their criminal sanctions against suspects who refuse to submit to warrantless breath tests.

A decision in Birchfield v. North Dakota is expected by June.

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  1. “Pat-down is a much more intrusive form of search than saying would you blow into a straw.”

    Not if you’re drunk.

    1. Now that they’ve gone down the road of parsing ‘intrusive’, enquiring minds want to know

      How intrusive is it if the cop tells you to strip down without touching you? How about hopping on one leg and barking like a dog? How about (assuming the crime is driving while black) asking for a minstrel song and a tap dance?

      1. Plus, the pat down was originally for weapons, not evidence. Officer safety morphed into officer brownie points.

  2. so now it is all breath tests in MN…got it. Avoid MN.

    1. Fuckin’ A.

      Oh, wait…

      1. Since alcohol is not everyone’s’ choice of poison, some of us would have not worry about failing. But, with my attitude being in full obstinate, I would refuse blowing on principle!

  3. Judging by the oral arguments, it seems conceivable that the Supreme Court will void the state refusal laws that govern warrantless blood tests while at the same time allow the states to maintain their criminal sanctions against suspects who refuse to submit to warrantless breath tests.

    Er, what?

    1. Means that they’re likely to consider the ‘intrusiveness’ of a breathalyzer to be small enough to let the government get away with this warrantless search while considering the blood draw to be too invasive.

      Unless they remember that lots of states allow or are thinking of allowing roadside blood draws by police officers. Then there’s no more ‘inconvenience’ to the suspect than for a breathalyzer.

      1. These fethers are actually suggesting that a breathalyzer test is not an unreasonable search since it inconveniences you so little, especially compared to other forms of searches.

        This.

        “Sure, we’re stopping and searching you at routine checkpoints throughout the city, but at least it’s only in THIS city. For now.”

        1. Justice Breyer has consistently demonstrated that he views categorical prohibitions on government power in the Constitution as merely suggestions to be balanced against issues like convenience, safety, and benefit to the government.

          1. When is a search not a “search”?

      2. Yeah, after the breathalyzer it will be the blood test.

        After the blood test it will be an alcohol detector in every car.

        After that it will be multispectrum sensors installed in your body.

        After that, you get a brain chip.

        After that, there is nothing but ‘Utopia’.

        1. Yes, a full on neural transceiver will be constructed by invasive nano-probes injected into the bloodstream. Once complete, the transceiver will carry instructions directly from the collective into the brain of the individual drone. Adding to the perfection of the collective.

          1. You’ll be able to let your kid play in the yard unsupervised, but ONLY if he’s got his RFID chip implant.

            1. And then we would all finally be free to do exactly what we’re told.

  4. Wow.

    I…uh…just wow.

    So whether or not something constitutes a search is relative to something else that constitutes a search?

    “Pat-down is a much more intrusive form of search than saying would you blow into a straw.” In other words, Breyer asked, if the Court permits the police to pat-down suspects without a warrant, why shouldn’t the Court permit the police to tell suspects to “blow into a straw” without a warrant?

    I mean, walking into someone’s house is much more intrusive than a pat down, so why not?

    Hacking into all their communication devices, monitoring their movements, stopping them at random checkpoints is much more intrusive than that (okay, maybe not, but you see where I’m going), so why not?

    Actually, we already do all of those things, so why not just do all of it without a warrant? I mean, compared to sticking your finger up their butt (which they also do), it’s not that intrusive.

    1. Isn’t the justification for the pat downs supposed to be entirely officer safety? Even if you are drunk, you aren’t going to use blood alcohol content as a weapon to injure the officer.
      And warrantless patdowns are bullshit anyway. It’s a search, get a fucking warrant. If you can’t and fear for your safety, go somewhere else.

      1. And warrantless patdowns are bullshit anyway. It’s a search, get a fucking warrant. If you can’t and fear for your safety, go somewhere else.

        This. I can’t see how anything other than an absolute adherence to 4A, regardless of ‘special circumstances’, doesn’t end up being abused.

        Just do your job and slap these fuckers down, SCOTUS.

        1. Has the SCOTUS ever really come down on the side of individual rights in any sort of ahead of the curve kind of way? They’ll bring up the rear when a given policy is something from the dark ages and is an embarrassment to humanity, but for the most part their inclination is to serve the interests of the state and authority in general. If they really did what they were supposed to do, they would all be Bill of Rights absolutists.

      2. That’s correct.

        My comment was sarcasm. He makes it sound like he’s using the justification that since a pat-down is much more intrusive than blowing into a straw, then people should be forced to blow into a straw without a warrant.

        1. I got the sarcasm. Just seemed like a good place to add some thoughts.

          1. *thumbs up*

      3. “I’m patting you down for weapons. Is that a pipe? You’re under arrest.”

        1. I have a friend who had that happen, but without the arrest. Cop picked him up while hitchhiking and found a pipe but just made him smash it on the road.
          This was 15-20 years ago and I have no idea how often one decides to be reasonable like that. Seems to me that if the search is only allowed for the purpose of making sure the person has no weapons, then nothing else found should be permissible evidence, even if you have an ounce of coke in your pants.

          1. Seems to me that if the search is only allowed for the purpose of making sure the person has no weapons, then nothing else found should be permissible evidence, even if you have an ounce of coke in your pants.

            If that was the case then you can bet the cop would fabricate some reasonable suspicion or probable cause (lie on the report and in court) to justify the search.

            1. Of course they would.

              1. But it would be nice if the actual rules were at least reasonable.

          2. Is that an ounce of coke in your pants, or are you just happy to see me?

            1. If you have an ounce of coke in your pants, then I am certainly happy to see YOU.

              1. I miss the days when I didn’t have to get a good night’s sleep and get up early every single fucking day of the week. But I think having a family is a fair trade.

                1. My comment was a reply to Suicidy.

      4. Yep, it was for officer safety, not evidence collection.

  5. There are searches and then, again, there are searches. There are more invasive searches and less invasive searches

    Why should the invasiveness of the search matter? The question ought to be “does this violate someone’s person or property?”

    1. *** snort ***

      And you call yourself a “lawyer”.

      1. Them’s fightin’ words.

    2. Exactly. The 4A just says “searches”. It doesn’t mention anything about how invasive the search is. But then again, the meaning of the word “infringe” has been trampled to death, why not the meaning of the word “search”?

      1. The 4th amendment protects against *unreasonable* searches. The point of the warrant requirement is to get a third party to judge the facts and weigh in on a search’s reasonableness.

        These fethers are actually suggesting that a breathalyzer test is not an unreasonable search since it inconveniences you so little, especially compared to other forms of searches.

        1. Ok, true. I forgot about the cop-opt qualifier in the 4A. I always understood a “reasonable” search to be one that the officer can conduct without touching you/your property or requiring you to touch anything, anyway.

          1. A ‘reasonable’ search that doesn’t require a warrant is the ‘in plain view’ standard. If the cop is somewhere he’s otherwise authorized to be and sees evidence he can seize it. But that’s the limit.

            For example, if you let a cop in your home and he sees an open kitchen drawer with a block of hash in it, he can seize it, arrest you, look around the kitchen – but he’s not authorized to open other drawers or cabinets.

            IMO he shouldn’t even be allowed to enter other rooms of the house but he’ll get away with that under the ‘search incident to arrest’ loophole that they’ve expanded into a full-sized doorway.

        2. The 4th amendment does not require a warrant for ANY search.

    3. The Fourth protects against “unreasonable” searches. Once you allow as how one kind of search isn’t unreasonable it’s entirely reasonable that they’re going to argue that the next isn’t unreasonable either. Field sobriety test based on probable cause to breathalyzer checkpoint to blood draw for all to a chip installed in your neck so you can be monitored 24/7 – it’s completely reasonable to think that’s where we’re headed. And the Fourth doesn’t protect against reasonable.

  6. Justice Elena Kagan made a similar point. “There are searches and then, again, there are searches. There are more invasive searches and less invasive searches.” Perhaps the less invasive breath test should be judged under a more lenient standard than the far more invasive blood test, which requires a trip to the hospital, she seemed to suggest.

    Y’know kinda like rape vs. rape-rape. There’s rape, which is only kinda rape, but then there’s rape-rape, which is a more invasive kind of rape.

    What kind of evil voodoo idiocy does this woman practice?

    1. I believe it’s called “progressivism.”

  7. Seems like a no brainer. It’s a search, get a damn warrant.

    If I were in charge, it would be almost impossible to compel a blood test. A search involving violation of one’s bodily integrity should require more than just probably cause, or whatever the standard is.

    1. I’m pretty sure the minimum basic requirement for a warrant is “cuz the police asked for it.”

      1. Shut up and let me have my fantasy time.

    2. If I were in charge, it would be almost impossible to compel a blood test.

      If I were in charge, the drug war would be over and there would not be any reason for blood tests.

  8. Sotomayor better do her thing.

    1. Base her decision on the race of the litigants? That’s her thing as far as I have been able to tell…

  9. “Why can’t you just call the magistrate, and at least we have some kind of safeguard against total arbitrary behavior.”

    “Well, Justice Kennedy, because then we wouldn’t be able to behave totally arbitrarily… Um, is it too late to just call it a penaltax?”

    1. “Well, is there a way to reword it retroactively that will make it constitutional but preserve our intent to act extra-constitutionally?”

  10. “Justice Elena Kagan made a similar point. “There are searches and then, again, there are searches. There are more invasive searches and less invasive searches.”

    No, there are just goddamned searches.

    Fucking Kagan.

    While Obama is probably kicking himself for nominating Sotomayor, he’s probably doing a happy dance every time he thinks about getting Kagan onto the bench.

    1. Yeah, I’d love to see the constitutional definition of the second type of search she references here. Kagan is barely qualified to be a Lawyer, let alone a Justice. She was never even a regular judge. Democrats should be ashamed of this ‘learn on the job’ ‘legal scholar’ that substitutes her own unjustified opinion for constitutional intent.

      1. Scalia thought she was a brilliant legal mind and recommended her for the position.

        Just an interesting thought. Personally, I can’t think of a thing I’ve ever agreed with Kagan about, but Scalia knew the woman better than I did.

        1. But Scalia might have known she wasn’t too bright and set her up as an easy pin to knock down.

          1. Word on the street was that, realizing the minimal chances of politicians offering him a coworker he agreed with, he wanted them to at least give him a worthy opponent.

            1. And look where it got him!

    2. I’m reminded of a joke (possibly based on a true story) where a guy rolls through a stop sign and a police officer pulls him over, yanks him out of the car, and begins beating him savagely with his baton. The driver starts yelling, “STOP! STOP!” and the officer shouts back “Do you want me to slow down or do you want me to stop?”

      I suggest that the Justices be subjected to the least invasive search and then searched progressively more invasively against their will. Then, when asked to stop, it can be asked, “Stop being more invasive or stop searching altogether?”

      1. I’m reminded of a joke (possibly based on a true story) where a guy rolls through a stop sign and a police officer pulls him over, yanks him out of the car, and begins beating him savagely with his baton. The driver starts yelling, “STOP! STOP!” and the officer shouts back “Do you want me to slow down or do you want me to stop?”

        Haaaaaa…

        Sorry, I actually kind of chuckled at that since people here don’t know how to drive.

        1. People don’t know how to drive anywhere. Or rather, they know, but feel that they are special and the rules don’t apply to them. Of course, they’ll slow down on their street, but everybody else’s kids better just be on their toes.

          1. Or rather, they know, but feel that they are special and the rules don’t apply to them.

            More like it’s the only taste of freedom they have left.

  11. So, yet another 4/4 split? Nah, this election doesn’t really matter. Nothing to see here folks. The supreme court is definitely not partisan.

  12. Playing devil’s advocate for a moment, in MA, I think there is “implied consent”. Certainly, I have argued against the theory that driving is a privilege rather than a right, and this would give the lie to “implied consent”, but if you do accept that driving is a privilege and that a license comes with implied consent, do they actually need a warrant?

    Dunno, just asking. Feel free to point out any errors.

    1. In my world, the government doesn’t get to decide who is allowed to drive.

    2. NY is also an implied consent state. So NY does not consider the penalty (license revocation) to be a “criminal” one. Rather they call it an “administrative” penalty. Regardless of what you call it, it’s equally harsh.

      1. I think that’s how it usually works. You can’t be criminally charged for revoking your consent. But you can be administratively penalized.

        I’d say loss of license is less harsh than imprisonment. Not that I think that the “administrative suspensions” are reasonable to apply to someone who hasn’t been convicted of anything. Either charge them with a crime or leave them the fuck alone.

      2. Tacking the word “administrative” in front of things is a handy way the government circumvents a lot of those annoying parts of the Constitution.

    3. In this case, refusal is treated as a crime, so fines/jail time in addition to yanking the license.

      In most states it is not considered a crime and all they do is just take your license.

    4. Right now, with implied consent, you could lose your license for refusing – you withdrew your consent which is required to exercise the ‘privilege’ of travel so they withdrew permission for you to exercise that privilege.

      And that’s it.

      This case is about an attempt to make it a *crime* to refuse a warrantless test.

      1. Good clarification!

        Thanks!

  13. “There are searches and then, again, there are searches.

    I’m so glad we have these sharp legal minds protecting our liberties.

    1. They’ll know it when they see it.

      1. Top. Men.

  14. So we have a state government wanting to criminalize a peon for the impudence of asserting his rights? Of course there is no way that is abusive.

  15. Is it just me or does Kennedy in that picture look like he’s about to break out into some kick-ass drunken style kung fu? That or he’s just an old Irish guy picking a fight outside a bar.

  16. Two things, McCarthy isn’t a ‘government lawyer’ in the sense he is an employee of the government. His firm was hired by ND to represent them. Second, this was his first argument in front of SCOTUS.
    Okay 3 things. His firm also represented the plaintiffs in Evenwel.

  17. I’m surprised at Justice Kennedy’s language when he said “You’re asking for us to make it a crime to exercise what many people think of as a constitutional right.” I would have thought he’d be more sensitive to the niceties of legislative v. judicial roles, and said something like “You’re asking us to say it can be a crime.” The practical import would amount to the same thing, but still…

  18. “Why can’t you just call the magistrate, and at least we have some kind of safeguard against total arbitrary behavior.”

    “Because we’re not really interested in safeguards on ourselves, Your Honor.”

  19. The two lawyers arguing for North Dakota are, just, spectacularly bad at their job:

    http://slate.me/1T0bWKy

    “When Sotomayor gives Keena a brutally frank summary of her untenable position, Keena does not respond.

    ‘Justice Sotomayor is assuming that you’re going to lose,’ Alito quips, filling the silence. ‘So she wants to know what your reaction is to that.’

    All the justices laugh hysterically, including Sotomayor, who looks down the bench at Alito with a fond grin. Keena stays absolutely stone-faced.

    ‘I don’t like it,’ she says quietly. ‘I don’t like it one bit.’ She then quietly retreats.”

  20. This is fucking stupid

    it should never be a crime to reject a ‘demand’ of govt to search you

    And a blood test is especially intrusive

    I gave no problem with implied consent laws that impose CIVIL penalty (license suspension) for refusal ASSUMING probable cause otoh

    I’ve written PLENTY of warrants for a blood sample

    It’s EASY. And quick these days with bring able to email or fax a warrant

    The weirdest things about my states implied consent is when the person is unconscious (like if under anesthesia)

    You still HAVE to read him his implied consent warnings before getting a sample EVEN THOUGH HES UNDER ANESTHESIA

    for the reason authors he recently complained about ‘hyper technical’ law – it’s because of the way the statute is written requiring you to read it

    It doesn’t make exception for ‘unless dude is unconscious’

    Law is SUPPOSED to be that way – hyper technical
    Otherwise it’s to easy to interpret exceptions that erode away rights

  21. Why isn’t the right against self-incrimination being evaluated here? The government should not be permitted to force a suspect to produce evidence against themselves on-demand; breath, blood, whatever. There is a constitutional question, but it’s not the 4A, it’s the 5A.

    I would add this to the case of a DUI checkpoint stop, where the “crime” is a mere potential for a Bad Thing Happening, discovered under a mass, warrantless search. It’s like saying everyone carrying a gun is on their way to kill someone, and should be prosecuted as such.

  22. Pitiful that Kennedy doesn’t recognize that the same is true of the right (constitutional or not) to self-medicate, which is a great deal older than the right to be free of warrantless searches.

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  24. Nobody despises government overreach more than me. But this is a different situation. It is law everywhere that a cop can only require a breathylizer of a driver on a public road. It is obvious why he needs to b able to do this. The cop can’t require a breathylizer of passengers or pedestrians, only of the driver, who could get somebody killed. The argument that this is unconstitutional search and seizure is one that only a lawyer could love.

    1. Nobody despises government overreach more than me.

      And then you immediately contradict yourself. Well done.

      It is obvious why he needs to b able to do this.

      No, it isn’t. There is no obvious reason why we need to sacrifice our liberties for safety, even if that safety is real. I prefer freedom. The idea that you implicitly agree to surrender your liberties merely by doing something innocuous like driving is a perfect example of government overreach.

      The cops can follow the 4th amendment if they want to do any such thing. If that’s difficult, or lets some ‘bad guys’ get away, then too bad.

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  26. As Breyer should know, the broad allowance for pat-down searches is largely based on officer safety, not evidence gathering. Police are allowed to find out whether the person they are questioning is armed and possibly dangerous. The breathalyzer is pure evidence gathering. That is why it should meet a stricter standard.

  27. I agree too that this is more a 5th Amendment case than 4th. The main difference between “blowing into a straw” and being forcibly searched is that blowing into a straw requires the voluntary participation of the blower (unless they are talking about forcing the apparatus into his mouth and holding his mouth shut around it and holding his nose and waiting for him him to breathe, which would surely require a warrant, and even then might be excluded as a forced confession). Blowing into the straw is providing possibly self-incriminating evidence, which the law cannot compel.

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