On May 4, 2010, the Minnesota Court of Appeals held in Harrison v. Commissioner of Public Safety that no Fourth Amendment search occurs when the government actually tests the alcohol concentration of a blood sample that was previously drawn and preserved. Harrison challenged the revocation of his driving privileges, arguing that any exigency that made the initial warrantless draw of his blood reasonable ceased to exist when the sample was taken and preserved. Any later testing of the blood sample for its alcohol concentration, Harrison continued, required a warrant or some additional exception to the warrant requirement. The Court of Appeals rejected this argument in a brief and rather dismissive decision. The subsequent testing of the blood, the court held, is not “a search that implicates constitutional protection.” That holding is not supported by even the scant authority cited by the court, and it ignores United States Supreme Court precedent in the area.
Specifically, the Harrison court ignores SCOTUS’s decision in Skinner v. Ry. Labor Executives’ Ass’n. Skinner deals with blood alcohol testing in the employment context. The Court held that, following a blood draw, “[t]he ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested employee’s privacy interests.” The Court was concerned because “chemical analysis of urine, like that of blood, can reveal a host of private medical facts about a [person], including whether he or she is epileptic, pregnant, or diabetic.” Accordingly, said the Court, “the collection and subsequent analysis of the requisite biological samples must be deemed Fourth Amendment searches.”
Skinner remains good law and was, notably, cited by the Minnesota Supreme Court in a case that Harrison in turn cited, State v. Netland. Netland itself implicitly includes the testing of a breath sample in its constitutional analysis, rather than limiting that analysis to the collection of the breath sample (“the search in this case [was] to obtain Netland’s blood-alcohol content,” and holding that under certain described circumstances, “no warrant is necessary to secure a blood-alcohol test”).
Harrison reaches its erroneous conclusion by misstating the Katz standard for when the Fourth Amendment is implicated. Justice Harlan’s oft-quoted concurrence specifies that there is “a twofold requirement” for Fourth Amendment protection to arise: “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” The expectation of privacy applies to the place searched, not the thing sought.
In contrast, the Harrison court reasons that once “the state has lawfully obtained a sample of a person’s blood under the implied-consent law . . . , the person has lost any legitimate expectation of privacy in the alcohol concentration derived from analysis of the sample.” This is an erroneous application of Katz and its progeny. In no prior case has the analysis of the privacy interest been limited to the thing sought rather than the place searched. Were this rule extended, the police could enter a person’s home looking for contraband without the Fourth Amendment being implicated, on the ground that no person has a legitimate expectation of privacy in contraband. Such a rule is unworkable and would eviscerate all Fourth Amendment protections.
Even the cases cited by Harrison do not support its conclusion. In United States v. Jacobsen, the United States Supreme Court considered whether a field test of a suspicious powder believed to be cocaine was a search. The test was held not to be a search because “governmental conduct that can reveal whether a substance is cocaine, and no other arguably ‘private’ fact, compromises no legitimate privacy interest.” The field test was compared to the use of drug-sniffing dogs to examine luggage, which sniffs are not considered searches because they do not “expose noncontraband items that otherwise would remain hidden from public view.” United States v. Place. In both cases, the Fourth Amendment is found inapplicable only because the intrusions at issue could not possibly reveal information regarded as legitimately private. The intrusion is measured not by what is sought but by what might be found.
Harrison’s citation to the extra-jurisdictional case of United States v. Kincade is most troubling. The citation appears in this context:
“We conclude that when the state has lawfully obtained a sample of a person’s blood under the implied-consent law, specifically for the purpose of determining alcohol concentration, the person has lost any legitimate expectation of privacy in the alcohol concentration derived from analysis of the sample. See United States v. Kincade, 379 F.3d 813, 837 (9th Cir. 2004) (holding, in connection with statutory DNA testing of individuals convicted of certain crimes, that after a defendant’s identity has become a matter of state interest due to conviction of certain crimes, the defendant has lost any legitimate expectation of privacy in the identifying information derived from blood sampling). ”
As portrayed in Harrison, Kincade holds that the chemical analysis of a convicted offender’s blood is not deemed to be a search. The Harrison court intimates that the court in Kincade did not bother to apply a Fourth Amendment analysis to the DNA testing. That is just wrong. What the Kincade actually said was as follows:
“We believe that such a severe and fundamental disruption in the relationship between the offender and society, along with the government’s concomitantly greater interest in closely monitoring and supervising conditional releasees, is in turn sufficient to sustain suspicionless searches of his person and property even in the absence of some non-law enforcement ‘special need’—at least where such searches meet the Fourth Amendment touchstone of reasonableness as gauged by the totality of the circumstances.”
Kincade thus upheld the collection and analysis of DNA samples as a reasonable search, considering the reduced privacy expectations of “lawfully adjudicated criminals whose proven conduct substantially heightens the government’s interest in monitoring them.” At no point does Kincade declare the DNA profile analysis not to be a search; rather, the fact that it can reveal “only a record of the defendant’s identity—otherwise personal information in which the qualified offender can claim no right of privacy once lawfully convicted of a qualifying offense” is discussed in the context of the Fourth Amendment analysis, in which the court balanced the governmental and privacy interests involved to measure the reasonableness of that search.
As discussed in Kincade, the rule that warrantless searches must be justified by an established exception within well-defined circumstances is not without exception itself. The courts have recognized that there are times “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” Griffin v. Wisconsin “When faced with such special needs, [the courts] have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context.” Skinner.
There are therefore two roads by which Harrison could have legitimately reached its result. The court might have been able to conclude that the chemical analysis was not a search if the record contained facts sufficient to demonstrate the analysis could reveal no private information whatsoever other than alcohol concentration. Alternatively (and, in the view of this author, preferably), the court could have found the analysis to be a search that was nonetheless reasonable under the totality of the circumstances. Such a finding would be well-supported, since the privacy intrusion is slight, the government interest is great, the testing procedures are well-defined, and the benefits of imposing a warrant requirement would be de minimus.
One wonders if the Harrison court simply forgot about this residual, general exception to the warrant requirement. Its failure to mention Skinner, the most apposite United States Supreme Court case on the issue, is bewildering. In the push to ensure the efficient prosecution of impaired driving offenses, and in light of the myriad ongoing legal battles relating to chemical tests for intoxication, it may be tempting for a court to dismiss a novel argument as unworthy of serious legal analysis. The short-cut taken by Harrison, though, is an unacceptable rejection of well-established Fourth Amendment precedent. Constitutional protections do not evaporate on probable cause for DWI. A free society is not one that is ungoverned, but one in which the government must constantly demonstrate the legitimacy of its decisions to the people. Harrison appears to fall short of that responsibility.