SEATTLE UNIVERSITY LAW REVIEW Volume 39, No. 1, FALL 2015
Blood and Privacy: Towards a "Testing-As-Search" Paradigm Under the Fourth Amendment
Andrei Nedelcu(fn*)
CONTENTS
INTRODUCTION ..................................................................................... 195
I. BASIC TENETS OF THE FOURTH AMENDMENT ................................... 196
II. GUIDANCE FROM THE SUPREME COURT ON TESTING OF BLOOD SAMPLES ............................................................................................... 197
III. TRENDS IN THE FEDERAL AND STATE COURTS ............................... 201
IV. WASHINGTON'S MARTINES DECISION ............................................. 207
V. A NEW PARADIGM FOR TESTING OF BLOOD SAMPLES UNDER THE FOURTH AMENDMENT .......................................................................... 209
VI. DNA DATABANKS AND RELATED PRIVACY CONCERNS ................ 214
A. HYPOTHETICAL #1 ............................................................................ 216
B. HYPOTHETICAL #2 ............................................................................ 217
CONCLUSION ......................................................................................... 218
INTRODUCTION
A vehicle on a public thoroughfare is observed driving erratically and careening across the roadway. After the vehicle strikes another passenger car and comes to a stop, the responding officer notices in the driver the telltale symptoms of intoxication-bloodshot eyes, slurred speech, and a distinct odor of intoxicants. On these facts, a lawfully-procured warrant authorizing the extraction of the driver's blood is obtained. However, the document fails to circumscribe the manner and variety of testing that may be performed on the sample. Does this lack of particularity render the warrant constitutionally infirm as a mandate for chemical analysis of the blood? And, more broadly speaking, is there reason to posit that testing of the blood is a distinct Fourth Amendment event relative to its initial procurement?
This Note-against prevailing trends in national search and seizure jurisprudence-answers both of the preceding questions in the affirmative. In reaching these conclusions, I explore a novel "testing-as-search" paradigm that rebuts longstanding presumptions in Fourth Amendment case law. In essence, I use this analytical template to argue that DUI defendants (among others) retain a reasonable, ongoing privacy interest in their blood once it has been extracted as evidence in a prosecution. As a necessary corollary to this thesis, I also submit that police should not exploit chemical analysis of a defendant's blood in the absence of a warrant narrowly tailoring the scope of testing that may be performed.
This work proceeds in several parts. Part I begins with a cursory recital of the Supreme Court's search and seizure jurisprudence, elucidating familiar principles of Fourth Amendment law. Part II then proceeds to examine the Court's case law as it relates to the procurement and analysis of biological samples, such as blood, via search warrant. Part III surveys federal and state decisions that offer competing perspectives on what law enforcement officials are entitled to do with blood samples once they have been lawfully extracted. Part IV provides an overview of Washington State's Martines decision. Part V introduces the testing-as-search paradigm to contend that, given the sui generis nature of blood, legitimate privacy interests are being compromised under a construct of the Fourth Amendment that fails to distinguish between biological and nonbiological evidence. Accordingly, it contemplates certain remedial measures in the issuance of search warrants intended to curb the limitless and unaccountable testing of biological evidence. Finally, Part VI briefly touches upon the phenomenon of DNA databanks to illustrate the stakes associated with continued adherence to an approach that gives law enforcement unjustified latitude in analyzing a defendant's blood.
I. BASIC TENETS OF THE FOURTH AMENDMENT
It is well settled that searches conducted outside the judicial process, without prior approval by a judge or magistrate, are generally regarded as per se unreasonable under the Fourth Amendment.(fn1) Of course, a defendant can only invoke this protection when legitimate privacy interests are imperiled. As Justice Harlan observed in his oft-cited concurrence in Katz v. United States, the Fourth Amendment circumscribes a state's conduct only when an individual meets a "twofold requirement": first, the defendant must "exhibit[] an actual (subjective) expectation of privacy," and secondly, that "expectation [must] be one that society is prepared to recognize as 'reasonable.'"(fn2) Perhaps the most explicit guidance in Katz as to the reasonableness of a privacy expectation was the pronouncement that "what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."(fn3) This basic two-dimensional inquiry provides the essential constitutional paradigm through which most Fourth Amendment challenges are construed.
Once a defendant prevails under the Katz threshold, other constitutional principles dictate the manner in which a search warrant must be composed in order to pass muster. The Supreme Court has observed that "indiscriminate searches and seizures conducted under the authority of 'general warrants' were the immediate evils that motivated the framing and adoption of the Fourth Amendment."(fn4) General warrants "do not specify the place or sphere of a search, thereby granting unrestricted discretion to executing officers";(fn5) as such, they are categorically prohibited under the Constitution.(fn6) The problem posed by the general warrant is not precisely interpreted as merely one of intrusion, but "a general, exploratory rummaging in a person's belongings" that the framers sought to guard against.(fn7) The Fourth Amendment addresses this problem by requiring a particular description of the things to be seized.(fn8) This crucial element of each warrant "makes general searches . . . impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant."(fn9)
II. GUIDANCE FROM THE SUPREME COURT ON TESTING OF BLOOD SAMPLES
Within the particularized realm of criminal prosecutions involving the withdrawal of blood from a defendant's person, the Supreme Court has "long recognized that a 'compelled intrusio[n] into the body for blood to be analyzed for alcohol content' must be deemed a Fourth Amendment search."(fn10) However, not only is the case law substantiating this tradition relatively sparse, but there is even less authority from which to infer the Court's willingness to treat the chemical analysis of blood as a distinct Fourth Amendment event.
The seminal decision for purposes of this discussion is Schmerber v. California.(fn11) In Schmerber, the Court reasoned that because "[s]earch warrants are ordinarily required for searches of dwellings," a less stringent requirement would be implausible "where intrusions into the human body are concerned."(fn12) Moreover, the Court stressed that the importance of requiring authorization by a neutral and detached magistrate before a law enforcement officer can "invade another's body in search of evidence of guilt is indisputable and great."(fn13)
The Court in Schmerber nonetheless proceeded to uphold the constitutionality of a blood draw from a DUI defendant under circumstances where the law enforcement officer had failed to secure a warrant before-hand.(fn14) It did so by justifying the extraction on a well-established exception to the Fourth Amendment's warrant requirement: the officer had been confronted with an emergency that threatened the destruction of evidence, since "the percentage of alcohol in the blood begins to diminish shortly after drinking stops."(fn15) Still, the Court emphasized that the ultimate constitutionality of such warrantless blood draws depends equally on whether the test chosen to measure blood alcohol content is a reasonable one and whether that test is performed in a reasonable manner.(fn16)
Given these latter caveats, there is concededly some merit to the argument that, under Schmerber, any chemical analysis of blood need be "reasonable," irrespective of whether a warrant authorizing specific testing has been procured or not.(fn17) However, such a conclusion is by no means irrefutable given that the defendant in Schmerber did not attempt to distinguish the extraction of his blood from its subsequent testing; he challenged only the constitutionality of the former.(fn18) Accordingly, there was no justiciable basis on which to reach the question of blood testing as a discrete Fourth Amendment event.(fn19)
The Court seemingly clarified its interpretation of the relationship between the extraction of biological samples and their subsequent analysis in Skinner v. Railway Labor Executives' Ass'n.(fn20) Skinner concerned the Federal Railroad Safety Act (FRSA) of 1970, which "authorize[d] the Secretary of Transportation to 'prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety.'"(fn21) Pursuant to the statute, the Federal Railroad Administration promulgated...
