On June 27 of this year, the United States Supreme Court took another step toward erasing drivers’ constitutional right against warrantless searches and seizures. In Mitchell v. Wisconsin, 588 U.S. _____(2019), a plurality of the Court issued an opinion which created a whole new category of “exigent circumstances” searches. Perhaps the most frustrating part of the Court’s ruling in Mitchell v. Wisconsin, 588 U.S. _____(2019), is that it was unnecessary. In a scathing dissent, Justice Sotomayor, joined by Justices Ginsburn, and Kagan, noted that the decision in Mitchell rested on “the false premise” that it was “necessary to spare law enforcement from a choice between attending to emergency situations and securing evidence.” For the dissent the question was narrow: “What must police do before ordering a blood draw of a person suspected of drunk driving who has become unconscious?” And their answer simple: “If there is time, get a warrant.” Justice Sotomayor noted that Wisconsin had conceded that it had time to obtain a warrant and that should have been the end of the matter. She decried the plurality for “needlessly cast[ing] aside the established protections of the warrant requirement in favor of a brand new presumption of exigent circumstances that Wisconsin [did] not urge, the state courts did not consider, and that contravenes this Court’s precedent.”
Furthermore, the dissent points out that the holdings in Schmerber and McNeely, “establish that there is no categorical exigency exception for blood draws, although exigent circumstances might justify a warrantless blood draw on the facts of a particular case.” Additionally, from the Court’s recent ruling in Birchfield, “warrantless blood draws cannot be justified as searches incident to arrest.” Accordingly, based on precedent, Mitchell had already been resolved and the answer was: “unless there is too little time to do so, police officers must get a warrant before ordering a blood draw.”
The plurality of the Court attempted to justify its whittling away of constitutional protections by insisting that it was answering only a very narrow question, to wit: “what police officers may do in a narrow but important category of cases: those in which the driver is unconscious and therefore cannot be given a breath test.” The Court held “[i]n such cases…the exigent circumstances rule almost always permits a blood test without a warrant.” The Court went on to say that “when a driver is unconscious, the general rule is that a warrant is not needed.” This ruling is clearly a departure from its recent rulings in McNeely and Birchfield.