OFF THE WIRE
By Robert J. Olson and Herbert W. Titus
Regardless of what you think the punishment for drunk driving should be, this SCOTUS case could go very badly all Americans.
Even suspected drunk drivers have rights. Some states are essentially
claiming that you give up most of your rights by the mere act of driving
on the road. If this decision goes against the people and in favor of
the police, it's going to infect every area of law enforcement and other
government interactions.
On Wednesday, April 20, 2016, the U.S. Supreme Court will hear oral argument in the case of Birchfield v. North Dakota, an important Fourth Amendment case that should be of interest to everyone who drives a car.
In
recent years, the legislatures of some states have criminalized a
driver’s choice to assert his constitutional right not to be subject to
an unlawful search and seizure. These legislatures have enacted laws
which make it a crime for a driver to refuse to consent to searches and
seizures via breathalyzer and blood chemical tests after being placed
under arrest after a routine traffic stop.
On February 11, 2016, our firm filed an amicus curiae brief
in the U.S. Supreme Court, opposing such state laws in North Dakota and
Minnesota, and explaining, once again, to the High Court the historic
property basis of the Fourth Amendment.
In a recent case decided
in 2013, the U.S. Supreme Court refused to expand the “exigent
circumstances” exception to the Fourth Amendment’s warrant requirement
for DUI arrests, rejecting the government’s theory that every DUI case
involved exigent circumstances because in a short time, alcohol passes
out of the blood stream.
Certain state legislatures were so
displeased with this ruling that they decided to create an end run on
the Fourth Amendment. Unable to compel drivers to give blood or breathe
into a machine, these states made it a crime for a person to refuse to
submit to a police demand to do so. These states justify their laws
based on two legal fictions — that driving is a “privilege, not a
right,” and that by driving a car that the driver impliedly consents to
have his blood and breath searched. In effect, these states give a
driver the choice to either surrender his rights or go directly to jail.
Our brief in Birchfield
attacked the opinions of the Supreme Courts of Minnesota and North
Dakota, which had upheld their respective state statutes on the grounds
that a person has no “reasonable expectation of privacy.” On the
contrary, we argued, as the Supreme Court made clear in 2012 in United States v. Jones (involving putting a GPS transmitter on the defendant’s Jeep Cherokee), and again in 2013 in Florida v. Jardines
(involving bringing a drug sniffing dog to the defendant’s front porch)
the Court ruled that the Fourth Amendment first and foremost protects
fixed property rights, not evolving privacy expectations.
r.
Based on its “privacy
rights” analysis, the Supreme Court of Minnesota came to the bizarre
conclusion that the government can do literally anything it wants to a
person’s body “incidental” to his being arrested. Not so, our brief
argued. At common law, the right to arrest a person gives the
government a property interest in his body, which is limited only to
safely effectuating the arrest and keeping the person detained. But
that is all. That is why the Supreme Court in 2014 in California v. Riley
ruled that the government may take a cell phone away from a person
arrested, but it may not search the data in the cell phone for
incriminating evidence. Likewise, we contend that, although the
government may search the person arrested to make sure he does not have
weapons or implements of escape, it may not search his breath, blood, or
urine for incriminating evidence.
North Dakota not only claimed
complete sovereignty over the body of an arrested person, but, by doing
so, the state denigrated the right of the people to use an automobile to
facilitate full participation in the nation’s economy. In our brief,
we argue that the Fourth Amendment’s standard of “reasonableness” is not
met by raw appeals to the state’s police power on the nation’s
highways, but must be tempered to protect private property rights
constitutionally secured to the people.
Our brief was filed on
behalf of Downsize DC Foundation, DownsizeDC.org, United States Justice
Foundation, Gun Owners Foundation, Gun Owners of America, Inc.,
Conservative Legal Defense and Education Fund, and Institute on the
Constitution.
