You can swab my cheek, but don’t draw my blood

February 27, 2014

Police stopDuring 2013, the United States Supreme Court issued rulings addressing the validity of blood draws from drunk-driving suspects and buccal swabs of the inside of arrestees’ cheeks under the Fourth Amendment. Those cases illustrate the balancing of interests that is required under the Fourth Amendment.

In Maryland v. King, 133 S.Ct. 1958, the Supreme Court held that a search using a buccal swab to obtain an arrestee’s DNA after an arrest for a serious offense was reasonable under the Fourth Amendment. In King, the defendant was arrested and charged with assault for menacing a group of people with a shotgun. As part of the routine booking procedure for serious offenses, a DNA sample was taken by applying a cotton swab or filter paper to the inside of the defendant’s cheeks. That DNA sample led to the defendant’s conviction for rape. The Supreme Court emphasized the legitimate government interest in providing law enforcement officers with a safe and accurate way to process and identify the persons and possessions they must take into custody. The court noted that DNA identification was an advanced technique superior to fingerprinting in many ways.

While the Supreme Court saw the use of buccal swabs as reasonable in King, the Court rejected a per se rule allowing warrantless blood draws of drunk-driving suspects in Missouri v. McNeely, 133 S.Ct. 1552. The Court held that the natural metabolization of alcohol in the bloodstream did not present a per se exigency that justified an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. The Court concluded that an exigency in the drunk-driving context had to be determined case by case based on the totality of the circumstances. In McNeely, the defendant was arrested after he performed poorly on a battery of field-sobriety tests. The defendant refused to submit to a blood draw. However, the police officer directed a hospital lab technician to take a blood sample. The Court noted that blood alcohol concentration (BAC) evidence from a drunk-driving suspect naturally dissipates over time in a gradual and relatively predictable manner. In addition, advances in technology had allowed for more expeditious processing of warrant applications.

Using KeyCite, a researcher can quickly locate negative treatment of a case. For example, the McNeely case was distinguished by the Minnesota Supreme Court in State v. Brooks, 838 N.W.2d 563.  In Brooks, the defendant was convicted of multiple counts of driving while impaired. The United States Supreme Court vacated the judgments and remanded for further consideration in light of McNeely. The Minnesota Supreme Court concluded that the defendant, unlike the defendant in McNeely, consented to the searches. As a result, the convictions were affirmed.