The outcome(s) of the consolidated Brooks cases will doubtless have huge practical consequences for DWI practice in Minnesota, but that is not even what is most interesting about the cases. Forget the mechanistic and uninspiring field of law that used to be called DWI — now we have the United States Supreme Court’s decision in McNeely. In McNeely’s aftermath, the Minnesota Supreme Court must decide Brooks, which showcases — and gives the Minnesota Supreme Court an opportunity to weigh in on — the most significant Fourth Amendment debate of the last several decades.
Part 1 of the Brooks oral argument post will address the special needs and search incident to arrest issues. Part 2 will address consent and the Court’s potential adoption of some sort of good faith exception to the exclusionary rule.
Categorical Warrant Rule vs. Reasonableness Balancing
The text of the Fourth Amendment does not mandate that searches be preceded by warrants. The amendment requires only that searches not be “unreasonable.” But the United States Supreme Court has held repeatedly that the warrant requirement is an indispensable component of reasonableness. The resulting rule has come to be known as the categorical warrant rule. You know that SCOTUS is about to invoke the categorical warrant rule when it begins its analysis by reciting that the warrant requirement is subject
On other occasions, however, SCOTUS has disregarded the categorical rule in favor of a “reasonableness alone” balancing test. Justice Scalia has tweaked the Court for “lurch[ing] back and forth” between the two approaches. SCOTUS is teeing up reasonableness when it opens with the maxim that
McNeely is a categorical warrant case. The State of Missouri was asking for a categorical non-warrant rule for blood testing in DWI cases. SCOTUS held that the metabolization of alcohol in a driver’s bloodstream does not, of itself, create a sufficient exigency to justify a warrantless blood draw.
“In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”
Minnesota’s Justice Stras read this passage out loud a couple of times during the Brooks arguments, observing that “it sounds pretty categorical.” Though McNeely calls for case by case adjudication and totality of the circumstances assessments, it is a categorical warrant case, not a reasonableness balancing one. The rule is the warrant. Yet most of the arguments against applying McNeely beyond its facts involve reasonableness methodology. And the oral arguments in Brooks featured a contest between categorical rule and reasonableness balancing proponents.
Off the Hook: Special Needs & Reasonableness Balancing
Mr. Brooks’s counsel, Jeffrey Sheridan, emphasized that the Court’s starting point should be the purpose of the search, rather than the nature of the intrusion. The former refers to categorical warrant rule methodology, the latter to reasonableness balancing. Because the purposes of the searches in the consolidated Brooks cases was evidence gathering, argued Sheridan, the Court could rule out the “special needs” rationale as a potential justification for the searches. The free-wheeling special needs category green-lights warrantless and suspicionless searches in non-criminal contexts including administrative investigations, employment and school drug testing, border checkpoints, and custodial post-conviction DNA collection.
While there did not seem to be much interest from the Court in trying to rationalize DWI blood alcohol testing as a special needs search, Chief Justice Gildea did linger over the idea, asking whether the special needs analysis would be different if test refusal had not been made a criminal offense in Minnesota. The discussion shifted elsewhere, and the point did not get followed up. Presumably, however, removing the criminal refusal sanction would bolster the claim that Minnesota has a dual- or mixed-purpose alcohol testing scheme, with a purely administrative implied consent side. That might open the door to special needs treatment.
Assistant Scott County Todd Zettler did not, in any event, claim to be relying on the special needs rationale. He explained, rather, that his theory was “inherent reasonableness” under the United States Supreme Court’s Samson v. California. Samson upheld a statute permitting suspicionless searches of California parolees. Samson is notable for permitting a more improvisational form of reasonableness balancing than even the special needs cases. (The Samson dissenters charged that “the Court for the first time upholds an entirely suspicionless search unsupported by any special need.”) Chief Justice Gildea asked Zettler whether SCOTUS has ever applied pure reasonableness balancing in a situation (like Brooks’s) where there was probable cause for searches intended to yield evidence in a criminal prosecution. Zettler demurred a bit, but the answer is no. I cannot imagine that the Minnesota Supreme Court would do so, either.
Is There Room for Reasonableness Balancing in SIA Analysis?
The parties seemed to talk particularly at cross purposes when it came to search incident to arrest. Sheridan’s argument was classic categorical rule. Gant‘s prong one holding, said Sheridan — namely, that police may search a vehicle incident to arrest only when there is a genuine possibility that, at the time of the search, the arrestee can get at the passenger compartment to destroy evidence — underscores that the SIA exception is concerned with an arrestee’s ability to deliberately destroy evidence. A driver does not deliberately destroy evidence when his body metabolizes alcohol. The causal agent is simply the passage of time, which McNeely treated as an exigent circumstances factor, not a search incident to arrest factor.
Zettler relied on a patchwork of cases from around the country that hold that certain inspection-of-the-body procedures are so petty that they are considered reasonable when made incident to custodial arrest. Zettler urged the Court to adopt this form of reasonableness balancing, and to find that breath and urine testing are relatively inconsequential intrusions that fail to move the unreasonableness needle. Justice Dietzen appeared to like Zettler’s argument, comparing breath and urine to fingerprints. But Justice Stras expressed misgivings. Doesn’t Skinner treat urine more like blood than breath? (Skinner describes peeing as “an excretory function traditionally shielded by great privacy.”) Urine is a “negligible” intrusion, replied Zettner, citing SCOTUS’s Vernonia. That is one of the problems with reasonableness analysis. It puffs up intrusions when searches are struck down, and deprecates them when searches are upheld. And characterizations such as “shielded by great privacy” and “negligible” are not just subjective and inconsistent. They are doctrinally silly.
As is illustrated by the following exchange, a graver problem may be what happens to traditional Fourth Amendment protections if nature-of-the-intrusion analysis becomes the dominant SIA paradigm:
Justice Page: Would your SIA theory would permit the police to swab a suspect’s cheek for DNA without a warrant in a criminal sexual conduct investigation?
Zettler: A cheek swab would involve a bodily intrusion, which would differentiate it from breath and urine testing.
Justice Page: Why would it be different from urine?
Zettler: Because there’s no intrusion into the body with urine testing.
Justice Page: But there’s an intrusion into privacy.
Justice Stras: Would your theory permit the police to do a rape kit on a suspected perpetrator? You have the same evidence preservation issues. Presumably, he could go into the bathroom and wipe off the evidence.
Zettler: You would have to balance the privacy interest . . . and there would be no intrusion into the human body . . . so I believe that it probably would.
That, I expect, was the proverbial bridge too far.