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]

     Justice Thomas, dissenting.

     This case requires the Court to decide whether the Fourth Amendment prohibits an officer from obtaining a blood sample without a warrant when there is probable cause to believe that a suspect has been driving under the influence of alcohol. Because the body’s natural meta- bolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent circumstance. As a result, I would hold that a warrantless blood draw does not violate the Fourth Amendment.



     The Fourth Amendment states that “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” Before a search occurs, “a warrant must generally be secured,” Kentucky v. King, 563 U. S. ___, ___ (2011) (slip op., at 5), but “this presumption may be overcome in some circumstances because ‘[t]he ultimate touchstone of the Fourth Amendment is “reasonableness.”  ’ ” Ibid. (quoting Brig- ham City v. Stuart, 547 U. S. 398, 403 (2006) ; alteration in original).

     The presence of “exigent circumstances” is one such exception to the warrant requirement. Exigency applies when “ ‘the needs of law enforcement [are] so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’ ” 563 U. S., at ___ (slip op., at 6) (quoting Mincey v. Arizona, 437 U. S. 385, 394 (1978) ; second alteration in original). Thus, when exigent circumstances are present, officers may take actions that would typically require a warrant, such as entering a home in hot pursuit of a fleeing suspect. 563 U. S., at ___ (slip op., at 6). As relevant in this case, officers may also conduct a warrantless search when they have probable cause to believe that failure to act would result in “ ‘imminent destruction of evidence.’ ” Ibid. (quoting Brigham City, supra, at 403).


     Once police arrest a suspect for drunk driving, each passing minute eliminates probative evidence of the crime. The human liver eliminates alcohol from the bloodstream at a rate of approximately 0.015 percent to 0.020 percent per hour, ante, at 8, with some heavy drinkers as high as 0.022 percent per hour, Brief for Petitioner 21 (citing medical studies), depending on, among other things, a per- son’s sex, weight, body type, and drinking history. Ante, at 8–9; Brief for United States as Amicus Curiae 23. The Court has acknowledged this fact since Schmerber v. California, 384 U. S. 757, 770 (1966) (“We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system”). In that case, the Court recognized that destruction of evidence is inherent in drunk-driving cases and held that an officer investigating a drunk-driving crime “might reasonably [believe] that he [is] confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threaten[s] ‘the destruction of evidence.’ ” Ibid. (quoting Preston v. United States, 376 U. S. 364, 367 (1964) ). The Court explained that drawing a person’s blood is “a highly ef- fective means of determining the degree to which [he] is under the influence of alcohol” and is a reasonable procedure because blood tests are “commonplace” and “involv[e] virtually no risk, trauma, or pain.” [ 1 ] 384 U. S., at 771. The Court, therefore, held that dissipation of alcohol in the blood constitutes an exigency that allows a blood draw without a warrant.

     The rapid destruction of evidence acknowledged by the parties, the majority, and Schmerber’s exigency determination occurs in every situation where police have probable cause to arrest a drunk driver. In turn, that destruction of evidence implicates the exigent-circumstances doctrine. See Cupp v. Murphy, 412 U. S. 291 (1973) . In Cupp, officers questioning a murder suspect observed a spot on the suspect’s finger that they believed might be dried blood. Id., at 292. After the suspect began making obvious efforts to remove the spots from his hands, the officers took samples without obtaining either his consent or a warrant. Id., at 296. Following a Fourth Amendment challenge to this search, the Court held that the “ready destructibility of the evidence” and the suspect’s observed efforts to destroy it “justified the police in subjecting him to the very limited search necessary to preserve the highly evanescent evidence they found under his fingernails.” Ibid.

     In this case, a similar exigency is present. Just as the suspect’s efforts to destroy “highly evanescent evidence” gave rise to the exigency in Cupp, the natural metabolization of blood alcohol concentration (BAC) creates an exigency once police have probable cause to believe the driver is drunk. It naturally follows that police may conduct a search in these circumstances.

     A hypothetical involving classic exigent circumstances further illustrates the point. Officers are watching a warehouse and observe a worker carrying bundles from the warehouse to a large bonfire and throwing them into the blaze. The officers have probable cause to believe the bundles contain marijuana. Because there is only one person carrying the bundles, the officers believe it will take hours to completely destroy the drugs. During that time the officers likely could obtain a warrant. But it is clear that the officers need not sit idly by and watch the destruction of evidence while they wait for a warrant. The fact that it will take time for the evidence to be destroyed and that some evidence may remain by the time the offi- cers secure a warrant are not relevant to the exigency. However, the ever-diminishing quantity of drugs may have an impact on the severity of the crime and the length of the sentence. See, e.g., 21 U. S. C. §841(b)(1)(D) (lower penalties for less than 50 kilograms of marijuana); United States Sentencing Commission, Guidelines Manual §2D1.1(c) (Nov. 2012) (drug quantity table tying base offense level to drug amounts). Conducting a warrantless search of the warehouse in this situation would be entirely reasonable.

     The same obtains in the drunk-driving context. Just because it will take time for the evidence to be completely destroyed does not mean there is no exigency. Congress has conditioned federal highway grants on states’ adoption of laws penalizing the operation of a motor vehicle “with a blood alcohol concentration of 0.08 percent or greater.” 23 U. S. C. §163(a). See also 23 CFR §1225.1 (2012). All 50 States have acceded to this condition. National Highway Traffic Safety Admin. (NHTSA), Alcohol and Highway Safety: A Review of the State of Knowledge 167 (No. 811374, Mar. 2011) (NHTSA State Review); Mo. Ann. Stat. §§577.012(1)–(2) (West 2011) (establishing Missouri’s 0.08 percent BAC standard). Moreover, as of 2005, 32 States and the District of Columbia imposed additional penalties for BAC levels of 0.15 percent or higher. NHTSA State Review 175. Missouri is one such State. See, e.g., Mo. Stat. Ann. §§577.010(3)–(4), 577.012(4)–(5) (suspended sentence unavailable even for first offenders with BAC above 0.15 percent unless they complete drug treatment; mandatory jail time if treatment is not completed). As a result, the level of intoxication directly bears on enforcement of these laws. Nothing in the Fourth Amendment requires officers to allow evidence essential to enforcement of drunk-driving laws to be destroyed while they wait for a warrant to issue.


     In today’s decision, the Court elides the certainty of evidence destruction in drunk-driving cases and focuses primarily on the time necessary for destruction. In doing so, it turns the exigency inquiry into a question about the amount of evidentiary destruction police must permit before they may act without a warrant. That inquiry is inconsistent with the actual exigency at issue: the un- contested destruction of evidence due to metabolization of alcohol. See Part I, supra. Moreover, the Court’s facts-and-circumstances analysis will be difficult to administer, a particularly important concern in the Fourth Amendment context.

     The Court’s judgment reflects nothing more than a vague notion that everything will come out right most of the time so long as the delay is not too lengthy. Ante, at 12 (justifying delays in part because “BAC evidence is lost gradually and relatively predictably”); ante, at 10 (same, quoting Brief for Petitioner 27). But hard percentage lines have meaningful legal consequences in the drunk-driving context. The fact that police will be able to retrieve some evidence before it is all destroyed is simply not relevant to the exigency inquiry.

     The majority believes that, absent special facts and circumstances, some destruction of evidence is acceptable. See ante, at 9 (“sufficient for our purposes to note that . . . significant delay in testing will negatively affect the probative value” (emphasis added)). This belief must rest on the assumption that whatever evidence remains once a warrant is obtained will be sufficient to prosecute the suspect. But that assumption is clearly wrong. Suspects’ initial levels of intoxication and the time necessary to obtain warranted blood draws will vary widely from case to case. Even a slight delay may significantly affect probative value in borderline cases of suspects who are moderately intoxicated or suspects whose BAC is near a statutory threshold that triggers a more serious offense. See supra, at 4–5 (discussing laws penalizing heightened BAC levels). Similarly, the time to obtain a warrant can be ex- pected to vary, and there is no reason to believe it will do so in a predictable fashion.

     Further, the Court nowhere explains how an officer in the field is to apply the facts-and-circumstances test it adopts. First, officers do not have the facts needed to assess how much time can pass before too little evidence remains. They will never know how intoxicated a suspect is at the time of arrest. Otherwise, there would be no need for testing. Second, they will not know how long it will take to roust a magistrate from his bed, reach the hospital, or obtain a blood sample once there. As the Minnesota Supreme Court recognized in rejecting arguments like those adopted by the Court today:

“[T]he officer has no control over how long it would take to travel to a judge or the judge’s availability. The officer also may not know the time of the suspect’s last drink, the amount of alcohol consumed, or the rate at which the suspect will metabolize alcohol. Finally, an officer cannot know how long it will take to obtain the blood sample once the suspect is brought to the hospital. Under a totality of the circumstances test, an officer would be called upon to speculate on each of these considerations and predict how long the most probative evidence of the defendant’s blood-alcohol level would continue to exist before a blood sample was no longer reliable.” State v. Shriner, 751 N. W. 2d 538, 549 (2008) (footnote omitted).

The Court should not adopt a rule that requires police to guess whether they will be able to obtain a warrant before “too much” evidence is destroyed, for the police lack reli- able information concerning the relevant variables. [ 2 ]

     This case demonstrates the uncertainty officers face with regard to the delay caused by obtaining a warrant. The arresting officer clearly had probable cause to believe respondent was drunk, but there was no way for the officer to quantify the level of intoxication to determine how quickly he needed to act in order to obtain probative evidence. Another officer testified at respondent’s trial that it typically took 1 ½ to 2 hours to obtain a drunk-driving warrant at night in Cape Girardeau County, Missouri. See App. 53–54. Respondent submitted an exhibit summarizing six late afternoon and nighttime drunk-driving search warrants that suggests the time may be shorter. Brief for Respondent 56; App. 70. Ultimately this factual tiff is beside the point; the spotty evidence regarding timing itself illustrates the fact that delays in obtaining warrants are unpredictable and potentially lengthy. A rule that requires officers (and ultimately courts) to balance transportation delays, hospital availability, and ac- cess to magistrates is not a workable rule for cases where natural processes inevitably destroy the evidence with every passing minute.

     The availability of telephonic warrant applications is not an answer to this conundrum. See ante, at 10–12, and n. 4. For one thing, Missouri still requires written warrant applications and affidavits, Mo. Ann. Stat. §§542.276.2(1), 542.276.2.3 (West Supp. 2012), rendering the Court’s 50-State survey irrelevant to the actual disposition of this case. Ante, at 11, n. 4. But even if telephonic applications were available in Missouri, the same difficulties would arise. As the majority correctly recognizes, “[w]arrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review.” Ante, at 12. During that time, evidence is destroyed, and police who have probable cause to believe a crime has been committed should not have to guess how long it will take to secure a warrant.

*           *           *

     For the foregoing reasons, I respectfully dissent.


1  Neither party has challenged this determination, which this Court has reaffirmed several times. See, e.g., Skinner v. Railway Labor Executives’ Assn., ; Winston v. Lee, –763 (1985).
2  Because the Court’s position is likely to result in delay in obtaining BAC evidence, it also increases the likelihood that prosecutors will be forced to estimate the amount of alcohol in a defendant’s bloodstream using BAC numbers obtained hours later. In practice, this backwards extrapolation is likely to devolve into a battle of the experts, as each side seeks to show that stale evidence supports its position. There is no need for this outcome. Police facing inevitable destruction situations need not forgo collecting the most accurate available evidence simply because they might be able to use an expert witness and less persuasive evidence to approximate what they lost.
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