Schmerber v. California
Schmerber v. California, 384 U.S. 757, was a landmark United States Supreme Court case in which the Court clarified the application of the Fourth Amendment's protection against warrantless searches and the Fifth Amendment right against self-incrimination for searches that intrude into the human body. Until Schmerber, the Supreme Court had not yet clarified whether state police officers must procure a search warrant before taking blood samples from criminal suspects. Likewise, the Court had not yet clarified whether blood evidence taken against the wishes of a criminal suspect may be used against that suspect in the course of a criminal prosecution.
In a 5–4 opinion, the Court held that forced extraction and analysis of a blood sample is not compelled testimony; therefore, it does not violate the Fifth Amendment right against self-incrimination. The Court also held that intrusions into the human body ordinarily require a search warrant. However, the Court ruled that the involuntary, warrantless blood sample taken in this case was justified under the Fourth Amendment's exigent circumstances exception because evidence of blood alcohol would be destroyed by the body's natural metabolic processes if the officers were to wait for a warrant. In 2013, the Supreme Court clarified in Missouri v. McNeely that the natural metabolism of alcohol in the bloodstream is not a per se exigency that would always justify warrantless blood tests of individuals suspected of driving under the influence of alcohol.
In the years following the Court's decision in Schmerber, many legal scholars feared the ruling would be used to limit civil liberties. Other scholars, including Nita A. Farahany, Benjamin Holley, and John G. New, have suggested courts may use the ruling in Schmerber to justify the use of mind reading devices against criminal suspects. Because the Court's ruling in Schmerber prohibited the use of warrantless blood tests in most circumstances, some commentators argue that the decision was responsible for the proliferation of breathalyzers to test for alcohol and urine analyses to test for controlled substances in criminal investigations.
Background
In the 1950s, the Supreme Court of the United States issued two key rulings clarifying the constitutionality of physical intrusions into the human body by police and other government agents. In Rochin v. California, police officers broke into the home of an individual suspected of selling narcotics and observed him place several small objects into his mouth. Officers were unable to force his mouth open, so they transported him to a local hospital where his stomach was pumped against his will. A unanimous Supreme Court held the involuntary stomach pump was an unlawful violation of substantive due process because it "shocked the conscience", and was so "brutal" and "offensive" that it did not comport with traditional ideas of fair play and decency. In 1957, the Court held in Breithaupt v. Abram that involuntary blood samples "taken by a skilled technician" neither "shocked the conscience" nor violated substantive due process. In Breithaupt, police took a blood sample from a patient suspected of driving under the influence of alcohol while he lay unconscious in a hospital. The Court held that the blood samples were justified, in part, because "modern community living requires modern scientific methods of crime detection." Additionally, the Court mentioned in dicta that involuntary blood samples may violate the constitution if officers do not provide "every proper medical precaution" to the accused.Fourth Amendment exclusionary rule
Until the twentieth century, courts would admit evidence at trial even if it was seized in violation of the Fourth Amendment. Although the Supreme Court developed an exclusionary rule for federal cases in Weeks v. United States and Silverthorne Lumber Co. v. United States, the Court held in 1949 that the exclusionary rule did not apply to the states. In Rochin, the Court held that evidence obtained in a manner that "shocks the conscience" must be excluded in criminal prosecutions but the court declined to incorporate a broad exclusionary rule for all Fourth Amendment violations. By the middle of the twentieth century, many state courts had crafted their own exclusionary rules. In 1955, the California Supreme Court ruled in People v. Cahan that the Fourth Amendment's exclusionary rule applied in California because it was necessary to deter constitutional violations by law enforcement. In 1961, the Supreme Court of the United States relied upon Cahan to hold in Mapp v. Ohio that the exclusionary rule was incorporated to the states.Arrest and prosecution
On the night of November 12, 1964, Armando Schmerber and a passenger were driving home after drinking at a tavern and bowling alley in the San Fernando Valley region of Los Angeles, California, when their car skidded off the road and struck a tree. Schmerber and his companion were injured in the crash and taken to a hospital for treatment. When investigating police officers arrived at the hospital, they asked Schmerber to submit a sample of his blood, but Schmerber refused. Although they did not possess a search warrant, officers instructed attending physicians to take a blood sample from Schmerber. The blood sample indicated that Schmerber was intoxicated, and he was placed under arrest. The blood sample was ultimately admitted into evidence at trial, and Schmerber was convicted for driving under the influence of intoxicating liquors. Schmerber objected to the admissibility of the blood sample, claiming that the police violated his rights to due process, his right against self-incrimination, his right to counsel, and his right not to be subjected to unreasonable searches and seizures. The Appellate Department of the California Superior Court rejected Schmerber's arguments, and the California District Court of Appeal declined to review his case.Arguments before the Court
Schmerber submitted an appeal to the Supreme Court of the United States, which granted certiorari on January 17, 1966. In his brief, Schmerber argued, inter alia, that the warrantless blood test violated his Fourth Amendment right to be free from unlawful searches and seizures, as well as his Fifth Amendment right against self-incrimination. The Los Angeles City Attorney's office represented the State of California on appeal. In their brief, the City Attorney argued that the blood test did not violate the Fourth Amendment because the seizure was conducted incident to a lawful arrest. The City Attorney also argued that admitting the sample into evidence did not violate Schmerber's Fifth Amendment right against self-incrimination because blood is not testimonial evidence under the Fifth Amendment. Oral arguments were held on April 25, 1966, and the Court issued its opinion on June 20, 1966.Opinion of the Court
In his majority opinion, [Associate Associate Justice of the United States Supreme Court|Justice of the United States Supreme Court|Justice] William J. Brennan, Jr. held that Schmerber's constitutional rights were not violated when police took his blood without his consent. Relying upon the Court's holding in Breithaupt v. Abram, he concluded that the police did not violate Schmerber's Fifth Amendment right against self-incrimination because the extraction and chemical analysis of the blood sample did not involve "even a shadow of testimonial compulsion." Likewise, Justice Brennan held that the officers did not violate Schmerber's Fourth Amendment right against unreasonable seizures. Justice Brennan wrote that absent exigent circumstances, searches that involve intrusions into the human body require a search warrant. Here, the search was not justified as a search incident to arrest because weapons and contraband are not ordinarily concealed beneath the skin. However, the involuntary blood draw was justified under the Fourth Amendment's exigent circumstances exception because if the officers had waited to receive a search warrant, evidence of intoxication would have been lost through the body's natural metabolism of alcohol in the bloodstream. He wrote that the responding officer "might reasonably have believed that he was confronted with an emergency," where evidence would be destroyed if he waited to receive a warrant. Additionally, Justice Brennan cautioned that the Court's ruling was limited "only to the facts of the present record" and that "minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions."Justice Harlan's concurrence
In his concurring opinion, Justice John Marshall Harlan II agreed that the involuntary blood sample did not implicate involuntary testimonial compulsion, but wrote separately to emphasize his opinion that the case before the Court "in no way implicates the Fifth Amendment." Additionally, Justice Harlan cited to his dissent in Miranda v. Arizona where he argued against a broad expansion of the Fifth Amendment right against self-incrimination. Justice Harlan disagreed with the Court's ruling in Miranda and even stated that the case "represents poor constitutional law and entails harmful consequences for the country at large."Dissenting opinions
All four dissenting Justices wrote separate dissenting opinions in Schmerber. Chief Justice Earl Warren reiterated his dissenting opinion in Breithaupt v. Abram, where he argued that involuntary blood samples violate substantive due process. Justice Hugo Black authored an impassioned dissent in which he argued that the officers violated Schmerber's right against self-incrimination. He wrote, "elieving with the Framers that these constitutional safeguards broadly construed by independent tribunals of justice provide our best hope for keeping our people free from governmental oppression, I deeply regret the Court's holding." Justice William O. Douglas also reiterated his dissent in Breithaupt v. Abram, but added that physical invasions into the human body violate the right to privacy enumerated in Griswold v. Connecticut and that "o clearer invasion of this right of privacy can be imagined than forcible bloodletting of the kind involved here." Finally, Justice Abe Fortas wrote that the involuntary blood sample was an act of violence that violated substantive due process and that states may not resort to acts of violence when prosecuting crimes.Subsequent developments
In the 1970s and 1980s, the Supreme Court revisited questions about the constitutionality of involuntary bodily intrusions in several key cases. In 1973, the Court ruled in Cupp v. Murphy that the police were permitted to extract a tissue sample from underneath a suspect's fingernails to recover "evanescent" physical evidence. The suspect in Cupp was suspected of strangling his wife and voluntarily went to a police station to answer questions. Officers noticed bloodstains under the suspect's fingernails and detained him, but did not place him under arrest. Against the suspect's wishes, the police scraped out a tissue sample from under his fingernails to retrieve the evidence. The biological material found under the suspect's fingernails was later found to have come from the victim. Citing Schmerber, the Court held that this warrantless search was justified under the exigent circumstances exemption of the Fourth Amendment because the search was necessary to preserve the “highly evanescent evidence” under the defendant's fingernails.Twelve years later, the Court again revisited the topic of involuntary bodily intrusions in Winston v. Lee, where the Court held that the State of Virginia could not force an individual to undergo surgery to extract a bullet that may be evidence of a crime. The Court applied its previous holding in Schmerber to conclude that the surgery would constitute an unreasonable search under the Fourth Amendment and that a crucial factor for evaluating any bodily intrusion "is the extent to which the procedure may threaten the safety or health of the individual." Writing for the Court's majority, Justice Brennan concluded that forcing a patient to undergo major surgery intrudes too far upon individual privacy rights and that surgical intrusions "can only be characterized as severe."
In 1989, the Court ruled in Skinner v. Railway Labor Executives’ Association that warrantless blood tests of railroad employees were reasonable under the Fourth Amendment. The Court reaffirmed that the “compelled intrusio into the body for blood to be analyzed for alcohol content” is a search under the Fourth Amendment, but that warrantless blood tests of railroad employees were necessary to "prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.” The Court also concluded that when individuals “participate in an industry that is regulated pervasively to ensure safety,” these individuals “have a reduced expectation of privacy.” Because these employees had a "diminished expectation of privacy," the warrantless blood tests were permissible. Justice Thurgood Marshall and Justice Brennan wrote a dissenting opinion in which they argued that this case was distinguishable from Schmerber because "no such exigency prevents railroad officials from securing a warrant before chemically testing the samples they obtain."