Birchfield v. North Dakota: A New Exception to the Warrant Requirement
By: Alex Lindvall
The United States Supreme Court recently issued its opinion in Birchfield v. North Dakota. At issue in this case was North Dakota’s “implied consent” statute, which subjected motorists to criminal penalties if they refused to consent to breath or blood alcohol tests. In other words, once pulled over on suspicion of drunk driving, a driver had two choices: (1) submit to the officer’s tests; or (2) refuse to submit to the officer’s tests and be charged with a crime equivalent to a DUI. In addressing this statute, the Court held that the State may not criminally punish a motorist for refusing to submit to a warrantless blood test. The Court, however, also categorically exempted breath alcohol tests from the warrant requirement under the search-incident-to-arrest doctrine.
In deciding this case, the Court was forced to interpret the ambiguous language of the Fourth Amendment. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Typically, the Fourth Amendment requires the police to obtain a warrant, issued by a neutral magistrate, before searching any person or their property. However, the court has held that certain circumstances subject the warrant requirement to “a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). These exceptions are of two kinds: (1) case-by-case exceptions, where the particulars of an individual case justify a warrantless search in that instance; and (2) categorical exceptions, where an entire class of cases justify dispensing with the warrant requirement.
An example of a case-by-case exception is the “exigency” doctrine. If the “needs of law enforcement [are] so compelling that a warrantless search is objectively reasonable,” then the warrant requirement does not apply. See, e.g., Missouri v. McNeely, 569 U.S. ___, ___ (2013) (slip op. at 5). The courts will determine whether exigent circumstances exist by looking at the facts of a particular case in their totality.
In contrast, the Supreme Court has held that searches of persons “incident to arrest” are categorically exempt from the warrant requirement. This allows arresting officers to “remove any weapons that the [arrestee] might seek to use in order to resist arrest” and to “seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.” Chimel v. California, 395 U.S. 752, 763 (1969).
In sum, if an officer conducted a search without a warrant, the courts will ask whether a legitimate state interest justified that warrantless search. If the state interest is sufficient, the courts must then determine whether that governmental interest is served by a case-by-case exception (limited) or a categorical exception (broad) to the warrant requirement.
Birchfield v. North Dakota.
Birchfield, primarily, focused on two arrestees: Danny Birchfield and William Bernard. After their arrests, Birchfield refused to submit to a blood test; Bernard refused to submit to a breath test. These two men were each criminally charged under their State’s implied consent statute. The Court applied the aforementioned framework to these cases to determine whether these arrestees were justified in refusing to submit to the requested tests—i.e., whether they were exercising their Fourth Amendment right to be free from an unreasonable search.
The Supreme Court overturned Birchfield’s conviction, holding that a motorist cannot be compelled to submit to a blood draw absent a warrant. Birchfield v. North Dakota, No. 14–1468, slip op. at 37 (S. Ct. 2016). “Blood tests are…different,” the Court held. Id. at 22. “They require piercing the skin and extract a part of the subject’s body.” Id. Therefore, because these bodily intrusions are so significant, police must obtain a warrant before administering these tests.
The Court, however, upheld Bernard’s conviction, holding that a warrant is not required to subject an arrestee to a breath alcohol test. Id. at 33. Justice Alito, writing for the five-member majority, balanced the government’s interests against individual privacy interests, and determined that “[t]he impact of breath tests on privacy is slight, and the need for BAC testing is great.” Id. As a result—because these tests involve no more than “blowing into a tube” and the State has such a strong interest in preventing drunk driving—the Fourth Amendment “permits warrantless breath tests incident to arrests for drunk driving.” Id. at 23, 33.
In short, the Birchfield Court held that police must obtain a warrant before subjecting arrestees to blood draws. Police, however, do not need to obtain a warrant before subjecting arrestees to breath alcohol tests, because breath alcohol tests fall categorically within the search-incident-to-arrest exception to the warrant requirement. For better or for worse, the Birchfield Court has expanded the “few specifically established and well-delineated exceptions” to the warrant requirement.