The Court That Cried “Exigency”

Posted in: Criminal Procedure

In June, the U.S. Supreme Court handed down a decision in Mitchell v. Wisconsin. A majority of justices voted to uphold the admission in evidence of blood-alcohol test results that police obtained after ordering a blood draw without first getting a warrant. In this column, we will propose some alternative approaches that might yield the same outcome as Mitchellbut with a sounder foundation.


Wisconsin police officers had probable cause to believe that Gerald Mitchell had been driving while intoxicated. They received a report about it and then found the man wandering near a lake. The State of Wisconsin, where the alleged crime took place, has an implied consent law. It provides that police may draw blood for a blood-alcohol-content (BAC) test from anyone who drives in the state and against whom police have probable cause to suspect drunk driving. What gives police the authority is the idea that driving in Wisconsin implicitly gives consent to a warrantless blood draw for a BAC test. If a suspect is unconscious, his implied consent is effectively irrevocable, because he must be conscious to revoke consent.

Mitchell was conscious when the police found him. They gave him a preliminary breathalyzer test, and he registered a BAC of triple the legal limit. He later lost consciousness, and police had his blood taken at a hospital. He scored above the legal limit. The incriminating test results became prosecution evidence, and he was convicted of DWI. He later challenged the conviction on the ground that it rested on evidence obtained in violation of the Fourth Amendment. He said that police have no authority to perform a blood test on a suspect in the absence of a warrant or any exception to the warrant requirement. Specifically, he challenged the Wisconsin statute that “implied” consent to a warrantless search by people who happened to have driven in the state. Taken to its logical conclusion, the implied consent notion could lead to some very troubling results: What if Wisconsin law said that living in the state represents implied consent to a search of your residence? What if the consent overrode not only a missing warrant but the lack of probable cause too?

The U.S. Supreme Court agreed with the State, at least as to the outcome in this case. The justices relied on the exigent circumstances exception to the warrant requirement. An exigency is an urgent state of affairs—such as the risk of injury or the loss of evidence—that justifies proceeding without a warrant. Under this theory, a plurality concluded that the blood test was lawful because Mitchell’s drunken state meant that if police had taken the time to obtain a search warrant before drawing the suspect’s blood, then some of the alcohol in his system would have dissipated by the time of the test, reducing the apparent concentration of alcohol in his system.

A number of justices disagreed and weighed in with their views. Justices Gorsuch and Sotomayor each wrote a dissenting opinion, and Justices Ginsburg and Kagan joined Sotomayor. The dissenters pointed out that the question that the parties actually presented to the Court was whether a state could declare by statute that all who drive there give up the right to have police obtain a warrant before testing their blood. The parties did not argue exigent circumstances, the ground on which the Court chose to rely. Indeed, Justice Sotomayor said, the government had conceded that there was no exigency in the case. The Supreme Court thus effectively approved the government’s conduct, explained the dissent, on the basis of a justification that the government had denied even having. Imagine a parent excusing a teen’s absence from school, saying “she was too weak to leave the house,” while the child simultaneously acknowledges having mowed the neighbors’ lawns while she was missing class.

Warranted and Warrantless Searches

We share Justice Sotomayor’s frustration with the majority’s embrace of exigency here. Not only did the government concede that there was no exigency in this case, but, as the Court held in Missouri v. McNeely,it is simply not true that alcohol metabolization inevitably creates exigent circumstances. As the Court said in Birchfield v. North Dakota, sometimes police officers can obtain a warrant—perhaps electronically—before they arrive at the hospital or while they are still in the waiting area of a hospital. In a case like that, there is no exigency, and police lose nothing by seeking a warrant. Another way of looking at this is that police sometimes have downtime, even when they are in a hurry. Productively using downtime to seek a warrant does not alter the results of a subsequent blood test. Accordingly, the word “exigency” is overinclusive if we apply it to all drunk driving suspects.

Yet we are not committed to the warrant requirement for taking blood from DWI suspects. In most areas of police work, officers must make subtle judgments about whether they are witnessing or hearing something unusual but innocuous or something threatening and criminal. It is for such occasions that the Constitution wisely requires a warrant. A detached and neutral magistrate provides a check on police perception, which necessarily travels through a filter that sees crime everywhere. It is not only police; everyone has a tendency to over-register the things that they spend their days looking for. If a magistrate believes the conduct is innocuous, he will refuse to grant a warrant.

In the drunk driving context, the facts that typically give rise to probable cause are generally straightforward and uncontroversial. Someone is driving in a manner that shows significant impairment, perhaps weaving in and out of a lane of traffic or causing an accident on the road. Once stopped, drunk drivers might smell of alcohol, slur their words, and have a difficult time answering easy questions. Might all of these things be consistent at times with a sober driver? Of course, but probable cause by definition requires something less than certainty, and a magistrate would be in no better position to detect the unusual circumstance than a police officer would. In other words, we have no reason to expect that police bias in favor of believing they are in the presence of a criminal will do much to alter the basic picture of drunk driving evidence. And if we are right, then requiring police to obtain a warrant to test the blood of a drunk driving suspect in the presence of probable cause is unnecessary and a waste of everyone’s time. Stated differently, a majority of justices focused on the need for a warrantless search in light of the possibility of losing valuable evidence; we focus instead on the lack of any need for a warrant when police have probable cause to suspect drunk driving.

A Less “Extreme” Proposal

Several justices were concerned about failing to serve the government’s compelling interest in enforcing drunk-driving laws and worried about the perverse effects of a rule of law that did not allow the police to administer a reliable BAC test because a suspect had drunk to the point of unconsciousness. Had Mitchell won, and his blood-drawn BAC test results been suppressed, Justice Alito explained, “the more wanton behavior [would be] rewarded.” The more culpable person—the extremely drunk driver—would be “harder to punish.”

These concerns are valid, but we disagree with the majority’s use of exigent circumstances, as explained above. Instead of misusing exigency, the Court could simply eliminate the warrant requirement in drunk driving cases. And if this seems too radical to the reader, consider a less ambitious step in the same direction. One could avoid the negative consequences of reversing Mitchell’s conviction by allowing an exception to the exclusionary rule for when police have probable cause to draw blood but simply fail to procure a warrant.

The exclusionary rule suppresses evidence from trial that police discover in violation of the defendant’s Fourth Amendment rights. The purposes of the rule are to ensure that police comply with the right against unreasonable searches and seizures and to deter police misconduct and flagrant abuses. For all of its benefits, however, the suppression of reliable evidence exacts substantial social costs by allowing the guilty potentially to go free and by levying a toll on the truth-seeking function of courts and law enforcement. To mitigate these harms, the Supreme Court has created numerous exceptions to the rule, expressing ambivalence towards its application. Indeed, according to some critics, the exceptions almost swallow the rule.

In identifying exceptions to the rule, the justices have employed a cost-benefit analysis. In Hudson v. Michigan, the Court explained that suppression is appropriate only where “its deterrence benefits outweigh its substantial social costs.” One of us has writtenin the past that the Court’s cost-benefit analysis is “stacked against exclusion.” The Court has frequently calculated the social costs as the net loss in excluding all evidence, which, of course, is quite high. Meanwhile, the Court has regularly measured the social benefit of deterrence by attending only to what suppression would do to the conduct of the particular police officers at issue in the case. Looking at global harms versus local benefits in this way strikes us as, at best, a misguided way to evaluate the exclusionary rule (or anything else), but given the Court’s attitude toward suppression, we can see no reason not to extend this analysis to Mitchellrather than distorting the evaluation of exigent circumstances, as the Court did.

Two cases in particular are worth exploring. The first is Hudson. There, the Court held that suppression would not extend to violations of the knock-and-announce rule, which requires that police knock on a door and announce their presence before executing a warrant to search the home. The justices saw little evidence that extending the rule to such violations would deter police misconduct, because police lack much incentive to violate the rule in the first place. If anything, police have an incentive to comply. Entering someone’s home unannounced is dangerous for police officers, and it is therefore unnecessary also to punish them for their actions by suppressing the resulting evidence.

The second noteworthy case is Herring v. United States. There, the Court rejected suppression where the police in good faith relied on the erroneous inclusion of a quashed warrant in a police database of outstanding arrest warrants. The deterrence benefits of suppression in this situation were likely to be slight, the Court reasoned, because the police, at most, acted negligently, not flagrantly, deliberately, or abusively. Accordingly, a majority concluded evidence suppression would not substantially deter mere negligence.

In the case of an unconscious person who is suspected of drunk driving, we believe that the deterrence benefits of penalizing police for failing to produce a warrant before asking the hospital to draw blood are slight.

The police have little incentive to avoid requesting a warrant. Obtaining one electronically is relatively easy. If the police forget to do so, moreover, they can still seek a warrant to search the defendant’s medical records after the visit, because the hospital will likely draw blood for diagnosis and treatment purposes anyway. HIPAApermits covered entities to produce medical records to comply with a court-ordered warrant or subpoena. Thus, police can easily obtain a warrant in advance of a blood draw, and there are also readily available alternatives.

Moreover, police generally act in good faith in these situations. They may even be as concerned with the defendant’s health and safety as with gathering evidence.In a case in which the police act flagrantly, deliberately, or abusively, a court could exclude evidence. There is no indication that Mitchellwas such a case.

In addition, failing to produce a warrant in Mitchellis a rather benign violation of the Fourth Amendment (even if we assume that it was a violation). Compare Mitchellwith the failure to comply with the knock-and-announce rule, violations of which the Court held in Hudsondo not lead to exclusion. When the police enter a home without knocking and announcing, the resident experiences fear and indignation. Imagine you are in your bedroom watching television, not expecting company, and all of a sudden, you hear the sounds of one or more people entering your home. Without a knock and a shouted “police, open up, we have a warrant,” you might well think you are under attack from burglars. By contrast, when the police order the hospital to draw blood because you are intoxicated and unconscious, you experience nothing. To be sure, a medical professional has inserted a needle into your vein without consent, but the constitutional violation is rather insignificant, given that the hospital was lawfully going to draw your blood anyway, and the police did have probable cause. And even if you are conscious, you are likely to undergo a blood test for BAC whether police or a magistrate ultimately signs off on it.


To sum up, it might make sense to do away with the warrant requirement altogether in the drunk driving situation. Among other things, this approach would have the benefit of avoiding the further bloating of the exigent circumstances exception to the warrant requirement. As it is, there is no warrant requirement for automobile searchesbecause of the ready mobility of automobiles and the diminished expectation of privacy that motorists enjoy due to the “pervasive regulation of vehicles.” One could extend this idea to the drunk driving suspect who endangers people’s safety and, significantly, gives rise to observable facts that create a standardized probable cause scenario. To the extent that we gain little from running drunk-driving facts by a neutral magistrate, it may be best to eliminate the warrant requirement for these cases and—importantly—to do so honestly.

And if people are not ready to embrace a warrant exception in such cases, we propose the alternative of an exception to exclusion. We suggest that this would have made sense in a case like Mitchell, where the police had probable cause to draw the blood of an unconscious motorist but simply failed to procure a warrant. Under the Court’s exclusionary rule case law, the social costs of excluding reliable and trustworthy evidence from trial are substantial. The deterrence benefits of requiring the police to produce a warrant before asking the hospital to draw blood are slight, because the police have little incentive to avoid requesting a warrant, they generally act in good faith when they fail to do so, and their failure results in a rather benign violation of the Fourth Amendment.

Either way, we believe that the Court selected the worst of all possible worlds. It applied the exigency exception to a non-exigent circumstance and therefore left everyone wondering just how broadly to apply the ruling in Mitchell. Unlike both of our proposals, which share the virtue of honesty, the Court did little to clarify the law of search and seizures. We can only hope that the next drunk driving case will inspire better reasoning, quite independent of the substantive outcome.

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