Supreme Court

Supreme Court Says 4th Amendment Prohibits Warrantless Blood Tests of Suspected Drunk Drivers

But SCOTUS does allow warrantless DUI breath tests incident to arrest.

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U.S. Supreme Court

Today the U.S. Supreme Court struck down a North Dakota law that imposes criminal penalties on suspected drunk drivers who refuse to submit to a warrantless blood test. At the same time, the Court declined to strike down statutes from North Dakota and Minnesota that impose similar criminal penalties on suspected drunk drivers who refuse to submit to warrantless breath tests. Writing for the majority in Birchfield v. North Dakota, Justice Samuel Alito held that the Fourth Amendment forbids the police from conducting warrantless blood tests. Warrantless breath tests, on the other hand, were deemed constitutionally permissible by today's decision.

"The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great," Alito wrote. But "we reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant."

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote separately to concur with the Court's stance on warrantless blood tests while dissenting from the Court's acceptance of warrantless breath tests. "Because no governmental interest categorically makes it impractical for an officer to obtain a warrant before measuring a driver's alcohol level, the Fourth Amendment prohibits such searches without a warrant, unless exigent circumstances exist in a particular case," Sotomayor wrote. In other words, Sotomayor would have voided both types of warrantless DUI tests for violating the Fourth Amendment.

Justice Clarence Thomas also wrote separately, taking the exact opposite position of Sotomayor. Thomas concurred in the majority's judgment to allow warrantless breath tests, but he dissented from the majority's refusal to allow warrantless blood tests. In Thomas' view, the Fourth Amendment should be read to permit both types of warrantless searches of suspected drunk drivers. "Both searches contemplated by the state laws at issue in these cases would be constitutional under the exigent-circumstances exception to the warrant requirement," Thomas wrote.

The Supreme Court's opinion in Birchfield v. North Dakota is available here.

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  1. “The impact of breath tests on privacy is slight, and the need for BAC testing is great,” Alito wrote.

    That doesn’t even rhyme.

    1. Might makes right.

      Does rhyme.

  2. Thomas lets us down again.

    Who was it that said he was a libertarian?

    1. I have to think he’s channeling Scalia’s ghost.

    2. While I certainly side with Wise Latina on this one, Thomas isn’t incorrect based upon the Court’s previously accepted exigency standards. Basically, where evidence is at risk of destruction, exigent circumstances exist (again, in previous court rationale). A deteriorating BAC is evidence at risk of destruction.

      I wish he would say “fuck off slavers” but he’s really being more logically consistent than the majority is.

      1. Except that the Court specifically held in Missouri v. McNeely that deteriorating BAC is NOT sufficient in and of itself to create an exigency.

        1. Oh, holy shit. That’s what I get for not staying up on crim law opinions post law school. Whelp, I guess I can retract even that mealymouthed defense of Thomas. Thanks for the info.

        2. Not sure if Missouri v. McNeely was altogether clear. I just found this:

          “When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. Circumstances may make obtaining a warrant impractical such that the alcohol’s dissipation will support an exigency, but that is a reason to decide each case on its facts….”

    3. John

    4. Who was it that said he was a libertarian?

      On 1A and property rights, yes, he is. But he has always been a total bootlicker to state authority (remember the strip search case of the 13 year old girl at school?).

      1. 1A isn’t even that good. Remember “Bong hits for Jesus”?

      2. He’s also great on cases dealing with the commerce clause, the 6th Amendment, and eminent domain. He’s just awful when comes to police powers and the national security state.

  3. “…The impact of breath tests on privacy is slight,…”

    She’s only a little bit pregnant.

  4. Balko on Twitter-

    Warrantless DWI breath tests fine, but not blood tests. Thomas would have allowed both. Sotomayor, neither.

    Thomas is both the most frustrating yet liberty supporting Justice on the court. I cannot for the life of me figure out why he’s so good on most liberty issues yet so terrible when it comes to law enforcement infringing on liberty.

    1. I wonder if Thomas supports warrantless rape-searches.

        1. Jesus Christ. I WAS JOKING, AMERICA.

    2. He’s a police groupie.

      1. Either that or he has some personal tragedy that’s clouding his judgement. You know, like the anti-drug nut they sicced on GJ last night.

  5. What i dislike about the reasoning here is that they seem to think the invasiveness of the search is relative to the “need”

    i.e. the greater the need, the less-essentially invasive it is.

    they say blood-testing is NG now – but what happens when technology develops that allows blood-scans without drawing blood? Will the ease of a thing make the “need” now more justifiable?

    The problem is that they seem to think that the contents of a human body are in theory “searchable” on demand. its a far cry from the “sobriety test”-approach, which actually measures whether a person is capable of operating a vehicle. in the new approach, a person’s actual physical/mental acuity is irrelevant, and the content of blood is de-facto commission of a crime.

    Extend that logic to other areas; what stops police from doing ‘routine’ blood-scans when arresting people? will minor violations be elevated to more-significant crimes when committed “under the influence”?

    1. It’s “interest-balancing” all the way down.

    2. There are no sobriety tests that accurately measures a person’s ability to drive. Breathalyzers are junk science.

      1. Pish Posh! Driving a car is EXACTLY like reciting the alphabet backwards.

        1. That is the part that always makes me nervous to where I sit there and practice it while sober. And it’s so non-specific. Like, how fast do I have to say it? Every time I have to sing it in my head, and I can only start from A or N or else it all just doesn’t work.

          1. I think they just want to get you to try, since that would indicate a hyper-willingness to comply.
            I think a sober person would tell him “I can’t, I never learned it that way”.

      2. i suppose i should have phrased it,

        “”… the “sobriety test”-approach, which actually pretends to measure whether a person is capable of operating a vehicle””

        the point was that the “test” being applied is at least theoretically based on an assessment of mental/physical capability – not the technical contents of one’s bloodstream, regardless of how they’re actually affecting you (or not)

    3. I don’t think they should be able to search the contents of your body even with a warrant. Warrants are way to fucking easy to get. One’s bodily integrity should be harder to violate than that.

      1. I think it should be looked at as a violation of the 5th amendment

    4. In short, to answer your overall question, yes. They will at some point automatically ‘blood scan’ every person they come into contact with. You see, otherwise it isn’t a deterrent and by these methods they will know if you’ve recently done any type of drugs or had more than the approved of amount of an intoxicant. How else do you expect them to enforce what was once considered unenforceable?

      You see, the expansion of technology easily doubles as an easier route to slavery for the populace. Biometrics, facial recognition, fingerprint scanning, RFID chips, Stingray Scanners, even technology that allows the police to look through walls. All of this, and more, easily violate your rights more than what was ever possible before. However, since these methods are ‘unobtrusive’ people don’t mind.

      It turns out what people don’t like is the inconvenience factor rather than the profound intrusion into your personal life. This holds true right up until they’re found in violation of one of the far-reaching and impossible to avoid infractions they’re invariably caught up in.

      Welcome, Citizen. Welcome to 1984. It is even bigger, and more brothery, than imagined. Remember, Citizen, Submission is Strength.

      1. All of this, and more, easily violate your rights more than what was ever possible before. However, since these methods are ‘unobtrusive’ people don’t mind.

        Yet a private company using less invasive methods to provide a free product that allows them to efficiently sell advertising…that’s basically 1984.

        1. Not sure what this is a direct reference to, perhaps Google Analytics, but this is more or less the position of most of the so-called illiberal left. They will be vehemently against thing A when done by a private company that can be held accountable for their actions though a variety of redress.

          When thing A is done by the government with no method of redress it is a good and wonderful thing.

          So, in short, people are sheep and essentially thoughtless animals. This is known. Eventually, on a long enough timeline, the people will happily place the shackles on themselves.

          People cock their heads with that quizzical-dog look any time I tell them the government has no interest in regulating itself, but one day I imagine they’ll get what I was saying. Sadly, by then, well…it will be too late.

      2. That’s not exactly what i was suggesting, but i suppose the Reductio ad Sheeple is to be expected.

    5. It’s not reasoning. These cocksuckers couldn’t reason their way out of a fucking paper bag. Reasoning has rules like the affirming antecedents and denying the consequent. When someone finds a contradictions in a logicians argument., they are duly mocked. Not these fucks. Fuck SCOTUS and fuck their illegitimate opinions.

  6. Justice Clarence Thomas also wrote separately, taking the exact opposite position of Sotomayor. Thomas concurred in the majority’s judgment to allow warrantless breath tests, but he dissented from the majority’s refusal to allow warrantless blood tests. In Thomas’ view, the Fourth Amendment should be read to permit both types of warrantless searches of suspected drunk drivers.

    So much for the argument that Republicans respect the Constitution.

    Only when it duzent interfere with muh prefered brand of statism.

    1. So much for the argument that Republicans respect the Constitution.

      I think only team RED says that. I mean, team BLUE says that their team is the only one that cares about it.

      1. They both respect it insofar as it is correctly interpreted, i.e., rewritten from scratch to mean whatever they hope it does.

      2. Yet there are folks (even here) who will argue Team R & B are not simply two sides of the same coin.

        They both want your money, albeit to spend on different shit, they both want more power and they both want to enslave you.

        1. Choose the form of the Destructor!

          1. Choose the form of the Destructor!

            Pikichu, I choose you!

          2. What happens if you choose freedom?

            I’m guessing a giant heroin needle falls on you from the heavens…

    2. Once the Founders put that word in there – unreasonable – nothing could be expected to be safe.
      Millions, upon millions, of dollars have been made trying to come up with a concrete definition.
      I think a whole specialty within the legal profession could be created out of the arguments of what is, and what isn’t, “reasonable”.

      “Allow me to introduce myself. My name is retiredfire, esquire, a lawyer specializing in reasonableness arguments”.
      I think I’m on to something, here.
      Now if I could just got to law school, pass the bar and set up a practice.
      Details, details.

  7. The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great,

    My copy of the Constitution doesn’t say the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, unless the impact on privacy is slight and the need for searches and seizures is great.

    I wonder what version of the Constitution the Justices are using.

    1. Well it’s a living document, so the version is never really the same from one reading to the next.

      1. It’s alive! It wandered off one night and now they have to reconstruct it from memory.

    2. RC, do you have any insight as to why Thomas is so anti-4th but pro pretty much all the others?

      1. I’m not RC, and I don’t play him on TV or as a hobby in real life. But I’m pretty sure it’s just because he’s a true conservative, pro-police, and not a libertarian.

      2. What, people can’t have fetishes?

      3. I really don’t have a clue. I don’t know which puzzles me more – Sotomayor’s defense of the 4A, or Thomas’s defecation on the 4A.

    3. Top Men are Top Men because they know the right balance to strike between your rights and the state’s. Top Man or Woman’ing is all about great compromises.

    4. Let this be a lesson in contractual construction, RC: the words “reasonable” and “unreasonable” are holes you could drive a truck through.

    5. “…against unreasonable searches and seizures…”

      IANAL, RC, but it appears to this simple country doctor that is precisely what they were determing today – whether or not either the breath test or blood test, or the refusal thereof, constitutes, “…unreasonable…”

      They essentially said, “OK, a mouthpiece is fine, and refusal is actionable, since mouth is in plain sight and the mouthpiece isn’t painful nor discomforting physically, and BAC degrades. Parenteral route, well don’t have X-ray vision, and that needle can hurt like the dickens. Besides, needles are icky, and we have the breath route. Needles are out, and failure to submit is not actionable.”

      Did I about get that right?

      1. Wrong.

        The founders never imagined the sheer number of victimless crimes we have today.

        An “reasonable” search to the founders would mean a search for evidence of a crime that involved an actual victim.

        1. Apparently, SCOTUS disagreed, since being in excess of the BAC whilst operating a motor vehicle is in violation of the agreement to drive on a public road. (yes, yes, I know SLD, ROADZ!! LICENCES ARE SLAVERY…etc.) The victim here, is the issuer of the driver’s licence, since the recipient agreed to the use by acknowledging not to drive whilst drinking.

          SCOTUS found using the breath test is “reasonable”, but the “blood” isn’t; in this case, as the means of enforcing the terms of that agreement, and The Founders did believe in enforcement of contracts, and wrote about it extensively.

          Which is about what they were ruling: Whether or not the search is reasonable. Full. Stop. What was *not* at issue before SCOTUS was whether or not driving with a certain BAC is victimless or not.

        2. Yeah. But they didn’t define what was reasonable. Reasonable is a normative judgement, so it can change as culture and law changes.

          The constitution doesn’t always say what we want it to say. It’s not perfect. The “reasonable” in there does imply that some searches are reasonable without a warrant, but it doesn’t tell us which are reasonable. So courts have to figure it out. I don’t like it, but that’s what it is.

          1. The “reasonable” in there does imply that some searches are reasonable without a warrant,

            I don’ think it does. The structure of the actual sentence does not create an allowance for warrantless searches. It says, essentially, no unreasonable searches of any kind, and all warrants have to be specific. I don’t see an implication in there that you don’t need a warrant for reasonable searches.

          2. Actually, having read the 4th amendment text and seeing RC’s comment below at 1:11, I may want to retract some of that. The question remains, are any searches permitted without a warrant? Policing was such a different thing in the 18th century, I have no idea what the original intent would have been.

            Still, important to remember that the Constitution doesn’t necessarily mean what we wish it did. It’s pretty good, but not perfect.

      2. Groovus, you are correct that they are keying off of the “unreasonable” word. However, they are doin’ it wrong.

        “Unreasonable” originally meant warrantless, as in, warrantless searches are per se unreasonable. Otherwise, you get to the point where you really only need warrants for unreasonable searches. You’d think an unreasonable search would be prohibited regardless of whether there is a warrant, but somehow we now have this almost completely backwards.

        The case uses the (entirely judge-made) doctrine of exigent circumstances to justify a warrantless search. Yet another clause that apparently their Consitution has that is absent from mine. The idea that “reasonableness” turns on whether it inconveniences the state or not is one that I doubt the Founders would have been friendly to. Reasonableness should go only to the scope of the search, and not to balancing an otherwise uqualified Constitutional right against how badly the state wants to violate it.

        1. Thank you, RC! This is what I wanted to know. BTW, folks, I just want to know exactly *how* and *why* the court arrived at their respective opinions; whether I think it’s right or wrong is irrelevant.

          So, I have a question then: If, in this era of instant e-mail, e-scripts, e-charting, e-whatever, does an, “e-warrant” apply? Meaning, let’s say a Terry stop applies, and suspected drunk driver – using a smartphone app, would simply getting an “e-warrant” allow the stop and subsequent search. In this case, the breath test (since now, as a matter of law, blood tests are out – unless the “e-warrant” could apply to them also?).

          I guess what I am asking is, would a “e-warrant” system, where a judge has an app than dispenses “e-warrants” based upon what the officer reports and requests?

          1. Last sentence correction:

            “I guess what I am asking is, would a “e-warrant” system, where a judge has an app than dispenses ‘e-warrants’ based upon what the officer reports and requests, be valid, necessary, and proper, and likely survive judicial scrutiny?”

          2. Format shouldn’t matter. Oath and affirmation with the required degree of particularity SHOULD take time for proper application and review.

            1. Format shouldn’t matter. Oath and affirmation with the required degree of particularity SHOULD take time for proper application and review.

              But that can now be done as easily as I can Skype you now, or as easily as I can write you an E-Script RX.

              If what you postulate holds, then The Oath and Affirmation can be as easily done as agreement to software EULAs, correct?

            2. HTML FAIL!

          3. I think (not sure) that they can pretty much already get warrants over the phone, if they can get hold of a judge. So we aren’t too far from that now.

            1. The rubberstamping of warrant overturns the 4th just as readily as this does.

              1. Yeah, that’s really the big problem. If warrants are just rubber stamped, none of these decisions really have much practical effect.

            2. Why don’t we just give police officers some low-level judge powers so they can go ahead and approve their own warrants? Efficiency!

      3. You are also trusting whoever is sticking you with a needle not to give you a fatal, communicable disease in so doing. How do I know the cop didn’t just use it on some clown with Hep-C or HIV? – Kevin R

        1. How do you know that your tattoos artist or say, surgeon (like me), didn’t just use needles or surgical instruments on previous patient, and didn’t sterilise them?

          The first, just the cop, is going to use an individually wrapped, sterile needle, just like your tattoo artist, or nurse or phlebotomist for a blood draw. The surgeon, well, you have to trust me and my sterile processing techs, as well as my surgical tech, who actually sets up theatre.

    6. Where did you go to law school R C? Was it Harvard? Yale? No? Then shut the fuck up and do what your told. You think 2+2 = 4. Well obviously you havnen’t taken math at an ivy league school

  8. Shouldn’t this be a 5th amendment right too?! I don’t get it. I’ll take it, though.

    1. Are we not our bodies, and our bodies us? How can we separate the mind for the body as we define the “self” in self incrimination?

      1. That’s why I think that no searches of the contents of your body should be allowed, warrant or not, unless there has been some kind of trial or similarly high bar cleared.

  9. if only it was unconstitutional to make stupid legal rulings.

    1. Much like SCOTUS, the Constitution only holds what power your belief gives it.

    2. Much like SCOTUS, the Constitution only holds what power your belief gives it.

  10. So, how does this ruling affect roadside cavity searches?

    1. If the rape was done in good faith, no foul. If done in bad faith, it’s illegal. But there’s no consequences for it and it won’t stop it from happening.

  11. Kevin D. Williamson ?@KevinNR 2h2 hours ago
    “Libertarians for Presidential Rule-by-Decree.” It is a smallish caucus.

    in response to:

    Robby Soave @robbysoave
    As a libertarian, I’m one of very few ppl who wanted the Supreme Court to strike down affirmative action but uphold the immigration plan
    7 retweets 21 likes

    1. Robby thinks the ruling was about immigration.

      *sigh

      1. Suthen, I have remarked on this board more than once, that the Reason Editorial SJW contingent may not like the way sausage is made, but they have no problems with the yummy end result, and Rico is no exception.

        I am really convinced, for many of the Reason SJW-ites, that if Obumbles gave them whatever they wanted, Constitution and Separation of Powers be damned, so be it as long as the end justifies the means.

        1. I think that is accurate and something common to proggys/ SJWs everywhere. They all long for a philosopher king. It comes from complete ignorance about the fundamental reason our constitution was written the way it was.

          1. Too much Plato in their youth, not enough Aristotle, I used to think. Now, I don’t think they read any philosophy older than Fanon.

    2. The idiots of Reason’s HnR peanut gallery and Anna Merlan aren’t the only ones who like to mock Robby.

    3. Does twitter affirmatively cause people to be stupid?

      1. Chicken or the egg argument, really.

    4. Robby Soave @robbysoave
      As a libertarian, I’m one of very few ppl who wanted the Supreme Court to strike down affirmative action but uphold the immigration plan
      7 retweets 21 likes

      Citation needed.

  12. These opinions is kind of a microcosm of everything that is wrong with 4th Amendment jurisdiction. The problem is that the courts have taken the word “unreasonable” as it is used in the 4th Amendment and turned it into an excuse for the courts to effectively run law enforcement in this country. The 4th Amendment says “no warrants shall issue…” It specifically contemplated the requirement for a warrant. And the requirement under the common law was “no search without a warrant”. It wasn’t hard. The courts, however, have made it hard because doing so gives them more power.

    This entire thing started off with search incident to arrest. When you think about it, that was a legal fiction created because cops were lazy. Why is search incident to arrest okay without a warrant? Weapons? What, cops can’t restrain and guard someone such that they can’t get to a weapon for the few hours at most it would take to get a warrant? Why does that create such a need that we need to throw out the requirement for a warrant? No one ever explained that really and it started us right down the slippery slope to where we are today.

    1. Once you allow a search without a warrant, the question is under what circumstances do you allow it? And that quickly became just arbitrary decisions made by the courts. Why is a breathalyzer okay but a blood test not? Because Samuel Alito doesn’t like needles but is okay with blowing into tubes. That is really all that this amounts to. And that is really all that is left of the 4th Amendment; you get whatever protections the appellate courts like and none of the ones they don’t.

    2. The greatest lie told this side of the “2A is a ‘collective’ right” nonsense is that the 4A allows “reasonable” searches without warrants. The amendment is not ambiguous:

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      Yet here we are, where you can be “reasonably” searched without a warrant, damn near anything can manufacture probable cause, and the cops can do just about whatever they want with a warrant.

      The only way to gut the Amendment further would be to repeal it outright.

      1. They have repealed. You don’t have a right to be secure in your person and dwelling. You have a right to the “reasonable expectation” of being so. And that means you have a right to whatever a judge thinks the prevailing standards in the community finds reasonable.

        We still have some 4th Amendment rights but we no longer have a 4th Amendment. What we have is a set of judicially created protections against police action. That is it. The only protections we have are the result of the arbitrary preferences of appellate judges. Again, Alito doesn’t like needles but doesn’t mind blowing into a tube, so blood samples require a warrant but breathalyzers don’t.

        1. Don’t forget that if the police can round up someone that they can “believe” can grant them permission to search a residence, it’s all ok, even if that person can’t give them permission.

    3. ” legal fiction.” So basically like Santa Claus and the Tooth Fairy but backed up by thugs with guns. Sorry John but the whole fucking institution of the law is sick….like everything else.

      Fiction is make believe. Fuckng make believe We are ruled by fucking make believe. Like Santa Claus and the Tooth Fairy.

      Fuck this Court, fuck their illegitimate rulings.

      Yeah, and on top of that you have to pay some fuck who spent 3 years in a special school to try to parse this steaming pile of dog shit.

      Fuck this Court

  13. In all fairness to the majority in this case, one could make the argument that if being stopped for possible drunk driving, a breathalyzer is simply like a calibrated nose. After all, if you leave the murder weapon on the front seat and the cop stops you for a busted tail light, the murder weapon is admissable without a warrant, because no reasonable expectation of privacy if someone could see it at a glance. I suppose similar reasoning could be made in regards to breath. Whereas you can’t see blood (normally, when the driver’s body is intact), and even if you could, you could not tell anything at all about consumption of alcohol.

    I realize it is not an exact analogy, and not exactly the finest legal analysis, however, as long as DUI laws (the way they are written) are going to be permissible in the first place, then this isn’t the worst ruling.

    And, Justice Thomas, how the fuck can allowing blood tests without a warrant be considered exigent? If a person is that much of a danger, then get a warrant quickly. As long as there is any alcohol left in the person’s system, I would think that a person’s BAC could be extrapolated based on time.

    1. 1. Odor doesn’t require the defendant to physically provide evidence incriminating themselves.
      2. A cop’s nose shouldn’t be allowed as a probable cause generator in the first place.

    2. If they had a device that they could wave in front of you without requiring you to breath into it, I would agree with the calibrated nose analogy. But that is not what it is. It makes you go through this elaborate process and essentially submit to a search of the contents of your breath.

      I think the better analogy is making you submit to an x-ray. What is that other than just a calibrated eye?

      1. I see you beat me to it re: calibrated eye

        1. Great minds think alike. 😉

      2. I am not even sure on that. Consider the inrared case. That was an illegal search.

        Although car vs home seems to make a difference to them.

        1. Though the court has distinguished between Car and Home, look at US v Jones which recognized 4th amendment protection for a car.

      3. Every time you fly now, they scan you with X-rays.

        1. That bugs the hell out of me. But, in fairness, you don’t have to fly and you even if you do, you can not consent to that. It is not a crime to refuse to go through a rape scanner.

          1. You don’t have to drive or use any particular method of transportation, either. I don’t see how that makes invasive searches any better.

        2. Not that it matters from a legal perspective, but the millimeter-wave scanners are not X-ray, which has wavelengths on the order of nanometers and even picometers. Also, the backscatter X-ray scanners used at some airports are not as penetrating as a medical X-ray.

          1. One would need to admit that there is no warrant issued for being searched at the airline, and that the search is being conducted by an agent of the Federal Government.

            So, there you have it. You can make a ton of excuses, but that’s all they’ll be.

    3. No, your analogy fails. An object in plain view of an officer requires no special equipment to detect. If a breathalyzer is a “calibrated nose” then the more appropriate analogy would be an x-Ray machine which allows officers to see better, a “calibrated eye” if you will.

      1. And this thinking is why things like IR cameras are (currently) forbidden for police use to view the interiors of private areas from the outside.

        1. “Currently” being the key word. I’m sure they’ll find a “compelling interest” to gut that eventually.

          1. Well, that decision rested on ‘equipment not in widespread use among the general population’ and that, along with things like a reasonable expectation of privacy depending on what is widely considered reasonable, has left the door open for these standards to be changed as our expectations have.

            Meaning that once IR cameras become cheap enough to be common they’ll be ripe for a court case to overturn that restriction.

    4. bear, I wondered that myself. If an officer smelled alcohol and the person was obviously impaired (because it would all be on camera, right?), how much does that differ from breathing into a device? In the end, I have to agree with the poster who commented that breath & blood tests for sobriety are junk science. I can show you a career alcoholic with a BAC of 0.08 who looks stone cold sober and a 100lb coed with a BAC of 0.06 who looks like a stumbling drunk.

  14. But the Republicans assured me that they were strong advocates of the Constitution!

    1. Though in their defense, they are the only thing standing in the way between the Elizabeth Warrens of the world and the Second Amendment.

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  16. Thomas, Sotomayor and Ginsburg are right. The majority is wrong.

    Which way it should go is another question, but distinguishing between the two is pragmatic bullshit.

    1. And just to clarify, Thomas is also wrong, but at least consistent.

  17. At least it’s something.

  18. Pity the poor bastards with auto-brewery syndrome.

  19. Supreme Court Says 4th Amendment Prohibits Warrantless Blood Tests of Suspected Drunk Drivers

    But didn’t the SC *just* say that an illegal search, while still an illegal search, no longer has any remedy available to the defendant?

    That one where the guy was subject to an illegal traffic stop, was found to have a warrant, and in the process of the search that should never have happened, they found drugs which they used as evidence for further charges? The one where the SC said that was perfectly fine?

    So, at this point, what difference does it make?

    1. We have to pass it to find out what’s in it.

    2. We’ve already got the ‘cops can legitimately stop you for things that aren’t actually illegal – as long as the cop doesn’t know its not illegal’ loophole, the latest case has pretty much smashed any possible remedy and now . . .

      Now we’re left with solely with Scalia’s ‘New Professionalism’ – simply hope the police don’t violate your rights because if they find evidence of a crime in the process you’re fucked.

  20. Anyone who votes for Trump because he will put a ‘principled conservative’ on the bench is completely delusional.

    1. “Principled Conservative” is code for oppressive police state. Between the attack on gun rights from the left and attack on civil liberties from the right, we might find ourselves unarmed and in a police state before long.

  21. What about anal probes? Are those OK?

    1. Can you get five members of the Court who don’t have a problem with it? If yes, then you are good to go.

      1. I like those odds.

        1. It is completely arbitrary. You tell me any real difference between brethalizers and blood draws because I don’t see any.

          1. You tell me any real difference between brethalizers and blood draws because I don’t see any.

            Seriously, John? One measures your breath (Exactly what it says on the tin.) and does not require the skin to be broken or otherwise medically traumatised (meaing any type of temporary or permanent injury, such as laceration, contusion, etc.), unlike the parenteral route or subdermal route (needles, scalpels, lancets) to break a the skin and blood vessel to acquire blood.

            If a breathalyzer is medically traumatic for you, please don’t use straws, and better yet, get liquid nutrition in your tummy via a PEG tube.

            I understand your point, but that was an uncharacteristically stupid distinction you are trying to make.

            1. It is a difference of degree only. Are blood draws more invasive than breathalyzers? Sure. But why is the line there and not at anal probes? No court can ever explain why one thing is an unreasonable intrusion but another is not. It all comes down to arbitrary preference. There is no real reasoning or principle behind it.

              That is my point.

              1. Look down. I just made the medical distinction for those, too. Anal probes ain’t gonna be used for a BAC. EVER.

                1. I am sure they won’t. But that will be because judges as a general rule don’t like anal probes. These lines are all totally arbitrary. Why is a breathalyzer not a big enough intrusion to not only not need a warrant but make it criminal to refuse one?

                  Think about that for a moment. If this is so non intrusive, why would there be a need to criminalize refusal? Refusal doesn’t even make any sense in the context of a search. Of course you don’t consent to the search. If you did, we wouldn’t be litigating its legality.

                  All the court is doing here is drawing an arbitrary line saying “the police can force you to do things without a court order if we don’t mind those things ourselves”.

                  1. Why is a breathalyzer not a big enough intrusion to not only not need a warrant but make it criminal to refuse one?

                    Ask SCOTUS on that one, John. RC has kindly explained upthread why they misapplied a “reasonable” rationale. By the way, he explained it, yes, they should get warrants.

                    However, as Zebulon and SugarFree pointed out, warrants are rubber stamped, and could even be rubber stamped as easily and as quickly as us posting on this forum, texting, or emailing each other. That kind of instant communication arrives at today’s decision, ultimately.

                    I’ll bet they would shoot down blood, even with a field warrant, and require transport to a clinic or summon an ambulance to get a disinterested third party to fulfill the warrant.

                    I dunno, IANAL, as you already know,

          2. ” You tell me any real difference between brethalizers and blood draws because I don’t see any.”

            There isn’t a difference. Just because you got a majority of very arrogant political hacks to say so doesn’t make it so.

            These cocksuckers really believe that just because they put magic words together like “we Hold” ‘that the emperor is wearing clothes’ the stupid sheep take that at true despite what their eyes tell them.

    2. What about anal probes? Are those OK?

      No, those are medically traumatic, and there are less invasive means to determine a BAC. At least in the USA in Europe. Now Kenya, OTOH… I would suggest not being accused of smugging blood diamonds in your bum.

      1. Who decided that something not being medically traumatic is the standard of reasonablity? And even if it is, just what makes something traumatic enough to be unreasonable?

        1. Because I can demonstrably prove the level of trauma in immediately discernable, real time, John. I break your skin (or in the case of the anus, mucous membranes) and cause bleeding. That’s demonstrable trauma, and i can test, confirm, falsify, and repeat that test with as many needles and breath tubes as I need. I will get the same result every time, and that creates a demonstrable standard..

          Putting a straw in your mouth and collecting air doesn’t break skin, cause bleeding, or any other outwardly discernable pain or discomfort.

          1. Putting a straw in your mouth and collecting air doesn’t break skin, cause bleeding, or any other outwardly discernable pain or discomfort.

            Setting up an infrared scanner on the sidewalk outside your home doesnt either, but it is an illegal search.

            I am with John, I don’t see a difference.

            1. Than take it up with SCOTUS robc, about the legality of search (wait, they already ruled). Again, whether you like the difference or not is irrelevant.

              John asked me what the physical and medical difference is, and I made that distinction. Any legal qualifiers at this point are moot, no matter contrarian you want to be.

              The infrared scanner is different because I am not even touching you, so like John, you are making a distinction you are already know to be true because you don’t like the SCOTUS ruling.

              Fine, just don’t be dishonest or deliberately obtuse, please.

              1. My point is that if they are going to make a decision based on pain or discomfort, then they need to also overrule their previous decision wrt infrared scanners.

                I am saying SCOTUS is not being consistent. Which, you know, is what Thomas said too. Even though I think he was wrong on both counts.

              2. GM,

                You are here.

                If Kennedy shows up in the comments section, I will take it up with him.

          2. Because I can demonstrably prove the level of trauma in immediately discernable, real time,

            That is great. And since you are a doctor, I am sure you can do that and do it to a much better level than I can. But that begs the larger question of what the hell that has to do with the 4th Amendment and what gave the courts the power to decide some violations of the warrant rule are reasonable and others are not? Once you started granting exceptions, you just ended up with judicial tyranny.

            1. Then once again, take it up with SCOTUS, John. You’re the atty, I’m sure they will listen to your briefs and arguments much more willingly than mine.

              The problem is they have already ruled.

              1. Yes. My beef is with the courts.

        2. It does seem like that is the distinction that the court is making. But you are right, it is somewhat arbitrary to decide that is the standard.

          I’ll just stick with get a warrant for any search of the contents of my body by any means. I also kind of like the idea of any coerced search of the contents of one body being a violation of the 5th amendment. Though maybe the SC insists on a real mind/body distinction and doesn’t consider your body to be part of your self.

      2. Except as pointed out above by Brochettaward, the Supremes have already given their blessing to probes for all – obviously not for BAC but I’m assuming you’re not making that distinction?

        1. Where did Brochettaward point this out, Rhywun? The distinction I am making, primarily, is the difference in the routes of administration and collection (and yes, each of these *do* have peculiar, discrete, distinctions medically), and then for BAC, which what John asked about, “What’s the difference between blood and breath?” I can’t really even think of a reason why police would use anal probes anyway, and certainly not for BAC.

        2. Well, I’m not sure strip search includes anal probes.

          I wasn’t expecting so much serious discussion to follow the “anal probe” comment.

          1. WE ARE ALL WHITLEY STREIBER!

  22. Good ruling

    3rd win for due process in Freddie Gray death…

    ACLU opposes no fly list as reason for denying gun rights

    In 1963, MLK was a gun owner on an FBI watch list

    SPD releases dashcam video of textbook shooting of a man involved in DV incident with his husband

    http://spdblotter.seattle.gov/…..ence-call/

    1. As long as cops can waive their right to a trial by jury and have another cop (the judge) acquit, you’ll never get a cop convicted regardless of the merits of the case.

  23. Justice Clarence Thomas also wrote separately, taking the exact opposite position of Sotomayor

    Of course he did. Those poor, oppressed police officers; when will we untie their hands and allow them to protect us from the dregs of society?

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