We recently blogged about the impact of Missouri v. McNeely and how it may affect all DWI cases in Minnesota. Since the United States Supreme Court decided McNeely last month, its aftermath is being felt in courtrooms across the state of Minnesota and elsewhere. In Minnesota, where refusal to submit to chemical testing is a crime, it seems as though attorneys are filing motions in every DWI case where law enforcement did not secure a warrant to obtain a chemical test, which is practically every DWI case. Many lawyers are scrambling to analyze warrant exceptions to see which ones may apply in this context.
It appears that one increasingly popular argument is that search incident to lawful arrest applies. In my humble opinion, this argument is futile. Once a suspect is placed under arrest, secured safely in a squad car, and transported to the police station, any searches thereafter are no longer incident to the arrest.
To be valid, a search incident to arrest must be for the purposes of: (1) protecting the safety of the arresting officer; and (2) preserving easily concealed or destructible evidence. In DWI cases, satisfying the destructible evidence element as a single factor is no longer plausible under McNeely. And, when the suspect is in custody at a police station being asked to take a breath, blood, or urine test, officer safety is no longer a primary concern. The search must be incidental to the arrest, not merely an incident of the arrest.
In 2009, the United States Supreme Court analyzed search incident to arrest in Arizona v. Gant. The Court in Gant, limited the scope of New York v. Belton by holding that a valid search incident to arrest does not occur when the arrestee is secured in a squad car while the arrestee’s vehicle is searched. Similarly, in DWI cases, an officer’s safety interests are not justifiable to permit a search once a suspect is under arrest, in custody, and transported to the police station for testing.
At its conception, search incident to arrest was created for those situations where suspects could easily grab a weapon to harm an officer. In 1969, Chimel v. California expanded the scope of a lawful search incident to arrest to include the “grab area” or an area in within a suspect’s “immediate control” where they can grab weapons or destructible evidence. This scope is limited to areas on or about a person, however, not areas beneath the surface of the human body.
In Schmerber, the Court decided human dignity and privacy interests make searches beyond the body’s surface invalid as incident to lawful arrest. Breath, blood tests, and urine samples all intrude on areas beneath the surface of the human body. Even though some of those intrusions may be minimal, the Fourth Amendment still protects people to be secure in their “persons”. The Court has long provided vigorous protection under the Fourth Amendment for a person’s privacy interests in property – namely houses and cars. As we scour through the rubble of McNeely’s aftermath, we will see see how far the Court is willing to go to extend those same protections to the human body.
By Robert Ambrose – an Associate Attorney for the Kans Law Firm, LLC.