Missouri v. McNeely,
569 U.S. ___ (2013)

Annotate this Case



No. 11–1425



on writ of certiorari to the supreme court of missouri

[April 17, 2013]

     Chief Justice Roberts, with whom Justice Breyer and Justice Alito join, concurring in part and dissenting in part.

     A police officer reading this Court’s opinion would have no idea—no idea—what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test. I have no quarrel with the Court’s “totality of the circumstances” approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.

     In my view, the proper rule is straightforward. Our cases establish that there is an exigent circumstances exception to the warrant requirement. That exception applies when there is a compelling need to prevent the imminent destruction of important evidence, and there is no time to obtain a warrant. The natural dissipation of alcohol in the bloodstream constitutes not only the imminent but ongoing destruction of critical evidence. That would qualify as an exigent circumstance, except that there may be time to secure a warrant before blood can be drawn. If there is, an officer must seek a warrant. If an officer could reasonably conclude that there is not, the exigent circumstances exception applies by its terms, and the blood may be drawn without a warrant.


     The Fourth Amendment provides:

“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.”

That language does not state that warrants are required prior to searches, but this Court has long held that warrants must generally be obtained. See Kentucky v. King, 563 U. S. ___, ___ (2011) (slip op., at 5). We have also held that bodily intrusions like blood draws constitute searches and are subject to the warrant requirement. See Schmerber v. California, 384 U. S. 757, 767, 770 (1966) .

     However, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ ” Brigham City v. Stuart, 547 U. S. 398, 403 (2006) , and thus “the warrant requirement is subject to certain reasonable exceptions,” King, 563 U. S., at ___ (slip op., at 6). One of those exceptions is known as the “exigent circumstances exception,” which “applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” Ibid. (internal quotation marks and alterations omitted).

     Within the exigent circumstances exception, we have identified several sets of exigent circumstances excusing the need for a warrant. For example, there is an emergency aid exception to the warrant requirement. In Brigham City, supra, at 403, we held that “law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” There is also a fire exception to the warrant requirement. In Michigan v. Tyler, 436 U. S. 499, 509 (1978) , we held that “[a] burning building clearly presents an exigency of sufficient proportions to render a warrantless entry ‘reasonable.’ ” And there is a hot pur-suit exception to the warrant requirement as well. In United States v. Santana, 427 U. S. 38 (1976) , and Warden, Md. Penitentiary v. Hayden, 387 U. S. 294 (1967) , we recognized “the right of police, who had probable cause to believe that an armed robber had entered a house a few minutes before, to make a warrantless entry to arrest the robber and to search for weapons.” Santana, supra, at 42. In each of these cases, the requirement that we base our decision on the “totality of the circumstances” has not prevented us from spelling out a general rule for the police to follow.

     The exigency exception most on point here is the one for imminent destruction of evidence. We have affirmed on several occasions that “law enforcement officers may make a warrantless entry onto private property . . . to prevent the imminent destruction of evidence.” Brigham City, supra, at 403 (citing Ker v. California, 374 U. S. 23, 40 (1963) (plurality opinion)); see also, e.g., King, supra, at ___ (slip op., at 6). For example, in Ker, the police had reason to believe that the defendant was in possession of marijuana and was expecting police pursuit. We upheld the officers’ warrantless entry into the defendant’s home, with the plurality explaining that the drugs “could be quickly and easily destroyed” or “distributed or hidden before a warrant could be obtained at that time of night.” 374 U. S., at 40, 42.

     As an overarching principle, we have held that if there is a “compelling need for official action and no time to secure a warrant,” the warrant requirement may be excused. Tyler, supra, at 509. The question here is whether and how this principle applies in the typical case of a police officer stopping a driver on suspicion of drunk driving.



     The reasonable belief that critical evidence is being destroyed gives rise to a compelling need for blood draws in cases like this one. Here, in fact, there is not simply a belief that any alcohol in the bloodstream will be destroyed; it is a biological certainty. Alcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour. Stripp, Forensic and Clinical Issues in Alcohol Analysis, in Forensic Chemistry Handbook 440 (L. Kobilinsky ed. 2012). Evidence is literally disappearing by the minute. That certainty makes this case an even stronger one than usual for application of the exigent circumstances exception.

     And that evidence is important. A serious and deadly crime is at issue. According to the Department of Transportation, in 2011, one person died every 53 minutes due to drinking and driving. National Highway Traffic Safety Admin. (NHTSA), Traffic Safety Facts, 2011 Data 1 (No. 811700, Dec. 2012). No surprise then that drinking and driving is punished severely, including with jail time. See generally Dept. of Justice, Bureau of Justice Statistics, L. Maruschak, Special Report, DWI Offenders under Correctional Supervision (1999). McNeely, for instance, faces up to four years in prison. See App. 22–23 (citing Mo. Ann. Stat. §§558.011, 577.010, 577.023 (West 2011)).

     Evidence of a driver’s blood alcohol concentration (BAC) is crucial to obtain convictions for such crimes. All 50 States and the District of Columbia have laws providing that it is per se illegal to drive with a BAC of 0.08 percent or higher. Most States also have laws establishing additional penalties for drivers who drive with a “high BAC,” often defined as 0.15 percent or above. NHTSA, Digest of Impaired Driving and Selected Beverage Control Laws, pp. vii, x–xviii (No. 811673, Oct. 2012). BAC evidence clearly matters. And when drivers refuse breathalyzers, as McNeely did here, a blood draw becomes necessary to obtain that evidence.

     The need to prevent the imminent destruction of BAC evidence is no less compelling because the incriminating alcohol dissipates over a limited period of time, rather than all at once. As noted, the concentration of alcohol can make a difference not only between guilt and innocence, but between different crimes and different degrees of punishment. The officer is unlikely to know precisely when the suspect consumed alcohol or how much; all he knows is that critical evidence is being steadily lost. Fire can spread gradually, but that does not lessen the need and right of the officers to respond immediately. See Tyler, supra.

     McNeely contends that there is no compelling need for a warrantless blood draw, because if there is some alcohol left in the blood by the time a warrant is obtained, the State can use math and science to work backwards and identify a defendant’s BAC at the time he was driving. See Brief for Respondent 44–46. But that’s not good enough. We have indicated that exigent circumstances justify warrantless entry when drugs are about to be flushed down the toilet. See, e.g., King, 563 U. S., at ___–___ (slip op., at 7–8). We have not said that, because there could well be drug paraphernalia elsewhere in the home, or because a defendant’s co-conspirator might testify to the amount of drugs involved, the drugs themselves are not crucial and there is no compelling need for warrantless entry.

     The same approach should govern here. There is a compelling need to search because alcohol—the nearly conclusive evidence of a serious crime—is dissipating from the bloodstream. The need is no less compelling because the police might be able to acquire second-best evidence some other way. [ 1 ]


     For exigent circumstances to justify a warrantless search, however, there must also be “no time to secure a warrant.” Tyler, 436 U. S., at 509; see Schmerber, 384 U. S., at 771 (warrantless search legal when “there was no time to seek out a magistrate and secure a warrant”). In this respect, obtaining a blood sample from a suspected drunk driver differs from other exigent circumstances cases.

     Importantly, there is typically delay between the moment a drunk driver is stopped and the time his blood can be drawn. Drunk drivers often end up in an emergency room, but they are not usually pulled over in front of one. In most exigent circumstances situations, police are just outside the door to a home. Inside, evidence is about to be destroyed, a person is about to be injured, or a fire has broken out. Police can enter promptly and must do so to respond effectively to the emergency. But when police pull a person over on suspicion of drinking and driving, they cannot test his blood right away. [ 2 ] There is a time-consuming obstacle to their search, in the form of a trip to the hospital and perhaps a wait to see a medical pro-fessional. In this case, for example, approximately 25 minutes elapsed between the time the police stopped McNeely and the time his blood was drawn. App. 36, 38.

     As noted, the fact that alcohol dissipates gradually from the bloodstream does not diminish the compelling need for a search—critical evidence is still disappearing. But the fact that the dissipation persists for some time means that the police—although they may not be able to do anything about it right away—may still be able to respond to the ongoing destruction of evidence later on.

     There might, therefore, be time to obtain a warrant in many cases. As the Court explains, police can often request warrants rather quickly these days. At least 30 States provide for electronic warrant applications. See ante, at 10–12, and n. 4. In many States, a police officer can call a judge, convey the necessary information, and be authorized to affix the judge’s signature to a warrant. See, e.g., Ala. Rule Crim. Proc. 3.8(b) (2012–2013); Alaska Stat. §12.35.015 (2012); Idaho Code §§19–4404, 19–4406 (Lexis 2004); Minn. Rules Crim. Proc. 36.01–36.08 (2010 and Supp. 2013); Mont. Code Ann. §46–5–222 (2012); see generally NHTSA, Use of Warrants for Breath Test Refusal: Case Studies 6–32 (No. 810852, Oct. 2007) (overview of procedures in Arizona, Michigan, Oregon, and Utah). Utah has an e-warrant procedure where a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically re-turn a warrant to the officer. Utah, e-Warrants: Cross Boundary Collaboration 1 (2008). Judges have been known to issue warrants in as little as five minutes. Bergreen, Faster Warrant System Hailed, Salt Lake Tribune, Dec. 26, 2008, p. B1, col. 1. And in one county in Kansas, police officers can e-mail warrant requests to judges’ iPads; judges have signed such warrants and e-mailed them back to officers in less than 15 minutes. Benefiel, DUI Search Warrants: Prosecuting DUI Refusals, 9 Kansas Prosecutor 17, 18 (Spring 2012). The police are presumably familiar with the mechanics and time involved in the warrant process in their particular jurisdiction.



     In a case such as this, applying the exigent circumstances exception to the general warrant requirement of the Fourth Amendment seems straightforward: If there is time to secure a warrant before blood can be drawn, the police must seek one. If an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant, or he applies for one but does not receive a response before blood can be drawn, a warrantless blood draw may ensue. See Tyler, supra, at 509; see also Illinois v. Rodriguez, 497 U. S. 177 –186 (1990) (“in order to satisfy the ‘reasonableness’ requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by . . . police officer[s] conducting a search or seizure under one of the exceptions to the warrant requirement . . . is not that they always be correct, but that they always be reasonable”); Terry v. Ohio, 392 U. S. 1, 20 (1968) (“police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure”).

     Requiring police to apply for a warrant if practicable increases the likelihood that a neutral, detached judicial officer will review the case, helping to ensure that there is probable cause for any search and that any search is reasonable. We have already held that forced blood draws can be constitutional—that such searches can be reasonable— but that does not change the fact that they are significant bodily intrusions. See Schmerber, 384 U. S., at 770 (upholding a warrantless forced blood draw but noting the “importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt” as “indisputable and great”). Requiring a warrant whenever practicable helps ensure that when blood draws occur, they are indeed justified.

     At the same time, permitting the police to act without a warrant to prevent the imminent destruction of evidence is well established in Fourth Amendment law. There is no reason to preclude application of that exception in drunk driving cases simply because it may take the police some time to be able to respond to the undoubted destruction of evidence, or because the destruction occurs continuously over an uncertain period.

     And that is so even in situations where police have requested a warrant but do not receive a timely response. An officer who reasonably concluded there was no time to secure a warrant may have blood drawn from a suspect upon arrival at a medical facility. There is no reason an officer should be in a worse position, simply because he sought a warrant prior to his arrival at the hospital.


     The Court resists the foregoing, contending that the question presented somehow inhibits such a focused analysis in this case. See ante, at 20–23. It does not. The question presented is whether a warrantless blood draw is permissible under the Fourth Amendment “based upon the natural dissipation of alcohol in the bloodstream.” Pet. for Cert. i. The majority answers “It depends,” and so do I. The difference is that the majority offers no ad-ditional guidance, merely instructing courts and police officers to consider the totality of the circumstances. I believe more meaningful guidance can be provided about how to handle the typical cases, and nothing about the question presented prohibits affording that guidance.

     A plurality of the Court also expresses concern that my approach will discourage state and local efforts to expedite the warrant application process. See ante, at 14. That is not plausible: Police and prosecutors need warrants in a wide variety of situations, and often need them quickly. They certainly would not prefer a slower process, just because that might obviate the need to ask for a warrant in the occasional drunk driving case in which a blood draw is necessary. The plurality’s suggestion also overlooks the interest of law enforcement in the protection a warrant provides.

     The Court is correct when it says that every case must be considered on its particular facts. But the pertinent facts in drunk driving cases are often the same, and the police should know how to act in recurring factual situations. Simply put, when a drunk driving suspect fails field sobriety tests and refuses a breathalyzer, whether a warrant is required for a blood draw should come down to whether there is time to secure one.

     Schmerber itself provides support for such an analysis. The Court there made much of the fact that “there was no time to seek out a magistrate and secure a warrant.” 384 U. S., at 771. It did so in an era when cell phones and e-mail were unknown. It follows quite naturally that if cell phones and e-mail mean that there is time to contact a magistrate and secure a warrant, that must be done. At the same time, there is no need to jettison the well-established exception for the imminent destruction of evidence, when the officers are in a position to do something about it.

*  *  *

     Because the Missouri courts did not apply the rule I describe above, and because this Court should not do so in the first instance, I would vacate and remand for further proceedings in the Missouri courts.


1  And that second-best evidence may prove useless. When experts have worked backwards to identify a defendant’s BAC at the time he was driving, defense attorneys have objected to that evidence, courts have at times rejected it, and juries may be suspicious of it. See, e.g., 1 D. Nichols & F. Whited, Drinking/Driving Litigation §2:9, pp. 2–130 to 2–137 (2d ed. 2006) (noting counsel objections to such evidence); State v. Eighth Judicial District Court, 127 Nev. ___, 267 P. 3d 777 (2011) (affirming rejection of such evidence); L. Taylor & S. Oberman, Drunk Driving Defense §6.03 (7th ed. 2010) (describing ways to undermine such evidence before a jury).
2  This case involves medical personnel drawing blood at a medical facility, not police officers doing so by the side of the road. See Schmerber v. California, –772 (1966) (“Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse”); Brief for Respondent 53, and n. 21 (describing roadside blood draws in Arizona). A plurality of the Court suggests that my approach could make roadside blood draws a more attractive option for police, but such a procedure would pose practical difficulties and, as the Court noted in Schmerber, would raise additional and serious concerns. See ante, at 14–15.
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