Out for Blood: The Expansion of Exigent Circumstances and Erosion of the Fourth Amendment.

• Date: 22 June 2020
• Author: Ludwig, Tyler M.

Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019).

1. INTRODUCTION

   The Fourth Amendment of the United States Constitution requires police officers to obtain a warrant before conducting a search of an individual. (1) However, doing so is not always possible, and courts have created exceptions to this requirement in order to deal with pragmatic limitations. (2) The need for these exceptions has often been presented to the United States Supreme Court in the context of obtaining blood alcohol concentration ("BAC") tests from drivers suspected of driving under the influence. (3) In Mitchell v. Wisconsin, the Supreme Court dealt with a new problem in this area: drawing blood from a suspected drunk driver who was unconscious. (4) The Court ruled that in virtually all such instances, police may permissibly order a blood draw without first obtaining a warrant. (5) The Court reasoned that such situations generally fall within the exigent circumstances exception to the Fourth Amendment warrant requirement, which allows for warrantless searches to prevent the imminent destruction of evidence. (6)

   Part IV of this Note examines the reasoning used by the Supreme Court in reaching this decision and argues that the Court was incorrect in its holding. Part V of this Note argues the Court should have relied on the particular facts of each case in deciding where an exigency exists rather than creating such a broad rule. Next, Part V argues that the holding erroneously shifts the burden of showing the need for Fourth Amendment warrant exceptions from the police to defendants. Finally, Part V argues that the Court failed to provide guidance for cases that do not fall within the exigency exception.

2. FACTS AND HOLDING

   In 2013, Gerald Mitchell was questioned by an officer from the City of Sheboygan Police Department on suspicions of drunk driving. (7) Police were responding to a report from a caller claiming to have seen an intoxicated Mitchell enter a grey van and drive away. (8) Approximately thirty to forty-five minutes after police were dispatched, an officer found Mitchell walking near a beach. (9) When discovered, Mitchell was slurring his speech and had difficulty maintaining balance. (10) Mitchell admitted to the officer that he had been drinking prior to driving and that he had parked his vehicle because he felt too drunk to drive. (11)

   The officer chose not to conduct field sobriety tests because he believed it would be unsafe considering Mitchell's condition. (12) A preliminary breath test revealed that Mitchell's BAC was three times the legal limit in Wisconsin. (13) Mitchell was arrested for operating a vehicle while intoxicated. (14) Once Mitchell arrived at the police station, police concluded that his physical condition had deteriorated to the point that an evidentiary breath test would not be feasible. (15)

   Police instead transported Mitchell to a nearby hospital to conduct a blood draw. (16) During the drive to the hospital, Mitchell "appeared to be completely incapacitated, [and] would not wake up with any type of stimulation." (17) At the hospital, Mitchell needed to be transported in a wheelchair, and he was unable to maintain an upright position in the chair. (18) The officer notified Mitchell of his statutory right to withdraw his consent for the blood draw, but Mitchell was too incapacitated to answer. (19) At the officer's direction, the hospital staff drew a sample of Mitchell's blood while he remained unconscious. (20) A test of the blood indicated that Mitchell had a BAC of 0.222, almost three times Wisconsin's legal limit of 0.08. (21)

   Mitchell was charged with driving with a prohibited alcohol concentration ("PAC"), as well as operating a motor vehicle while intoxicated ("OWI"). (22) In a pretrial motion, Mitchell moved to suppress the results of the blood test, alleging that the blood draw constituted a warrantless search in violation of the Fourth Amendment. (23) In response, the State claimed that Mitchell had obviated the need for a warrant by consenting to the blood draw. The State argued that, under Wisconsin's implied-consent law, Mitchell implicitly consented to having his blood drawn by driving his van on a Wisconsin public road. (24) Further, the State argued that Mitchell was presumed not to have withdrawn his consent under the law. (25) The State expressly declined to rely on the exigent circumstances exception to the Fourth Amendment warrant requirement, explaining that "[t]here is nothing to suggest that this is a blood draw on [an] exigent circumstances situation when there has been a concern for exigency." (26) The trial court denied Mitchell's motion to suppress, concluding that the officer had probable cause to believe that Mitchell was driving while intoxicated, and thus, the blood draw was lawful. (27) Mitchell was found guilty by a jury and subsequently convicted. (28) Mitchell appealed the verdict, contending that the warrantless blood draw was a violation of his Fourth Amendment right to be free from "unreasonable searches and seizures." (29)

   The Wisconsin Court of Appeals certified two questions for the Supreme Court of Wisconsin: (1) whether "implied consent" arising through driving a vehicle on public roadways is constitutionally sufficient consent, and (2) whether a warrantless blood draw from an unconscious person as prescribed by the Wisconsin statute violates the Fourth Amendment. (30) The Supreme Court of Wisconsin upheld Mitchell's convictions. (31) The majority held that Mitchell's voluntary conduct of driving on Wisconsin roads after consuming enough alcohol to evidence probable cause was enough to constitute voluntary consent, and thus, the blood draw was permissible under the Fourth Amendment. (32) In a concurring opinion, Justice Kelly argued that the blood draw was permissible not on the grounds of consenting to a search, but instead under the Fourth Amendment exigent circumstances exception. (33) In a dissenting opinion, Justice Bradley argued that implied consent laws could not be used to establish voluntary consent. (34)

   The United States Supreme Court granted Mitchell's petition for writ of certiorari to review the decision reached by the Supreme Court of Wisconsin. (35) On appeal, the Court considered the issue of whether an officer can order a blood draw without the use of a warrant. (36) In a plurality decision, the Court ruled that Mitchell's blood draw was permissible under the exigent circumstances doctrine unless Mitchell could prove on remand that his blood would not have been drawn absent the BAC investigation and that police could not have reasonably believed seeking a warrant would interfere with other pressing duties. (37)

3. LEGAL BACKGROUND

   Since 1906, state governments have attempted to deal with the public safety concerns involving drunk driving by imposing criminal penalties. (38) In the years following the end of prohibition, the American Medical Association and the National Safety Council established committees to study the issue of drunk driving. Both committees concluded that a driver with a BAC of 0.15 or higher could be presumed inebriated. (39) States began adopting laws presuming intoxication based on this standard before moving towards adoption of laws making driving with BAC levels of .10 or higher per se illegal. (40) In 1992, the National Highway Traffic Safety Administration of the United States Department of Transportation recommended to Congress that all states set a BAC limit of .08 for all drunk driving offenses. (41) Since Congress made the award of federal highway funds conditional on states adopting this limit, all states have done so. (42)

   As a mechanism for enforcing BAC limits, all fifty states as well as the District of Columbia have adopted "implied consent" laws for motorists. (43) While the laws vary slightly from state to state, the basic rule is that a person operating a vehicle on a public roadway is deemed to have impliedly consented to a chemical BAC test upon arrest for the commission of any offense while driving under the influence of alcohol. (44) Such tests often consist of analyzing a driver's breath or blood sample. (45) When asked to submit to a BAC test, the driver has the opportunity to "withdraw" his or her consent and refuse the test, but the driver will face penalties for doing so. (46) In the past, states have assigned criminal penalties for refusing to submit to any type of BAC test. However, states may now impose criminal penalties for refusing to submit to breath tests but not blood tests. (47) A state does have the right to suspend an individual's driver's license for refusing to submit to any type of test, and the individual's refusal may be admitted as evidence against him or her in a criminal proceeding. (48) The statutes generally contain a provision calling for police to issue a verbal warning informing the arrested individual of his or her rights under the implied consent law. (49) Additionally, the statutes ordinarily provide that if the driver is unconscious or otherwise incapacitated at the time police wish to obtain a blood sample, the driver is deemed not to have withdrawn consent. (50) Wisconsin's implied consent statute contains all of these provisions. (51)

   Enforcing BAC limits requires police to investigate suspects and collect evidence against them, subject to the limits of the Fourth Amendment. The Fourth Amendment prohibits unreasonable searches and seizures by the government. Per that prohibition, the government is generally required to obtain a warrant justified by probable cause from a neutral judge or magistrate in order to conduct searches. (52) The Supreme Court has said "[T]he most basic constitutional rule in this area is that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well delineated exceptions." (53) Over...