The Fourth Amendment and the Supreme Court’s 2012-2013 Term

By: Erin Mee

The Supreme Court greatly expanded the scope of the Fourth Amendment during its recent term. The Court decided that blood testing DUI suspects without the suspects’ consent is permissible, as is swabbing arrestees’ cheeks for DNA samples when the suspects are booked into police custody. The expansion of permissible forcible search capabilities under the Fourth Amendment is alarming because of the potential for abuse and the intrusion into suspects’ bodily integrity. While these new search options may lead to advances in the fight against crime, at what cost are these search measures to liberty, personal autonomy, and the integrity of the Constitution?

In Missouri v. McNeely, a 5-4 opinion written by Justice Sotomayor, the Court held that nonconsensual blood testing on a DUI suspect constitutes a search under the Fourth Amendment and that a warrant must be obtained before nonconsensual blood testing is performed if it is reasonable to do so.

The Court reasoned in Missouri that it may not be possible to obtain a warrant in time for accurate blood testing in DUI cases because of the natural dissipation of alcohol in the blood stream. However, the Court found that the natural metabolizing process is not enough on its own to categorize suspected driving under the influence as an exigent circumstance. In circumstances where it is not reasonable to obtain a warrant, the Court found that a person suspected of a DUI may be forcibly blood tested on a case-by-case basis by considering all of the facts of the case.

In Maryland v. King, a 5-4 decision written by Justice Kennedy, the Court held that a mandatory cheek swab of an arrestee’s DNA as a police booking procedure may be reasonable under the Fourth Amendment when police officers make an arrest supported by probable cause to hold someone for a serious offense.

The Court did not specify what constitutes a “serious offense” therefore prompting  a cheek swab. As such, there is likely to be a wide range of differing interpretations between jurisdictions as to what constitutes a serious offense appropriate for a cheek swab search. A disproportionate application of the DNA swab search capability is highly problematic in terms of the equitable application of the law, especially because forcible searches of bodily tissue are highly intrusive.
The expansion of search powers under the Fourth Amendment into the realms nonconsensual blood testing and DNA categorizing is unprecedented. The expansion of these powers is alarming due to the potential for abuse and because of the highly personal nature of how the searches are carried out and what they are testing. Although questions remain as to exactly what exigent circumstances must exist for nonconsensual blood testing to be carried out and questions remain as to what exactly the Court meant by a “serious offense” as it pertains to DNA swab searching, by allowing these searches in the first place, the Court has placed individual liberties behind the broader power of the state. Time will tell as to what precedent these cases set for liberty and the Fourth Amendment.

In a departure from Missouri v. McNeely and Maryland v. King, the Court utilized the Fourth Amendment to limit police search powers in Florida v. Jardines. The Court decided that the warrantless use of drug-sniffing dogs constitutes a search under the Fourth Amendment in Florida v. Jardines. This 5-4 opinion was written by Justice Scalia, and joined by Justice Thomas, Ginsberg, Sotomayor, and Kagan. The composition of the Justices writing in favor of this decision is interesting to note because Justices Scalia and Thomas are known as the most conservative members of the court while Justice Ginsberg, Sotomayor, and Kagan are known as the most liberal members.

In this case, a police dog indicated it smelled marijuana while standing on the defendant’s front porch. The trial court suppressed this evidence because it found that the police officers had engaged in a Fourth Amendment search unsupported by probable cause by taking the drug-sniffing dog onto the defendant’s front porch. The Florida Supreme Court affirmed this decision, as did the United States Supreme Court.

The dissent, written by Justice Alito, argues that the Court’s decision is counter to Anglo-Saxon trespass law. The dissent notes that members of the public are allowed to use a walkway to walk up to a house’s front porch and stand there for a short time. According to the dissent, it does not matter if the person using the walkway or standing near the front of the house actually speaks with the occupant or even intends to do so. Therefore, the dissent argues that the police officers in this case were following the law by using the walkway and standing near the house for a short time, and did not need a warrant to do so. This dissent is similar to the outcomes of Maryland v. King and Missouri v. McNeely because it would allow the government broad search powers onto individual’s private property.

The Supreme Court dealt with a variety of issues regarding the Fourth Amendment during its 2012-2013 term. While it expanded search powers for nonconsensual blood testing and allowed for DNA swabs of arrestees, it required that police obtain warrants for searching outside of private homes. It is important to note that each of these cases was decided in a 5-4 vote. Therefore, when the composition of the Court changes, it is highly likely that there will also be changes to the Fourth Amendment’s application.

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