Under the 4th Amendment to the US Constitution and Article I, Section 9 of the Oregon Constitution, a person has a right against unreasonable searches and/or seizures. Generally, a warrant, based upon probable cause, is required for an officer to compel a person to allow a search or seizure. Unfortunately, there are numerous exceptions to the warrant requirement. One such exception involves “exigency” in the sense that some evidence, if not obtained without delay, might disappear or become unavailable. For example, a cop might believe a suspect has a bunch of drugs in his house and if it is not searched immediately, without first going through the process of obtaining a warrant, the person might flush the drugs down the toilet and then the evidence will be gone. Thus, the courts have fashioned numerous exceptions to allow police to compel searches without first obtaining a warrant, based upon probable cause, from a judge.
The Oregon Supreme Court, in 2010, fashioned such an exception, to Article I, Section 9 of the Oregon Constitution, in DUI cases regarding forced chemical testing (blood draws or breath tests to determine BAC). The Court in State v. Machuca held that chemical tests for blood alcohol levels involved exigent circumstances and officers were not required to seek a warrant first. The Court cited it’s prior decision in State v. Milligan, in which it asserted “when he was seized, the officers had probable cause to believe that defendant was a vessel containing evidence of a crime he had committed – evidence that was dissipating with every breath he took.” Because this was the case, “[a] warrantless seizure and search under such circumstances therefore is constitutionally justified, unless a warrant can be obtained without sacrificing the evidence.” The Court followed this with “when probable cause to arrest for a crime involving the blood alcohol content of the suspect is combined with the undisputed evanescent nature of alcohol in the blood, those facts are a sufficient basis to conclude that a warrant could not have been obtained without sacrificing that evidence.”
The US Supreme Court, in April 2013, also addressed the search and seizure analysis of forced blood alcohol testing in Missouri v. McNeely. The US Supreme Court reached a ruling under the 4th Amendment to the US Constitution that appears to be in conflict with the Machuca analysis of Article I, Section 9 of the Oregon Constitution. The US Supreme Court started with the observation that forced blood draws clearly are a seizure. The search in that case involved a “compelled physical intrusion beneath [the suspect’s] skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s ‘most personal and deep-rooted expectations of privacy.’ Winston v. Lee, 470 US 753 (1985).” The Court noted that an exception to the requirement for a warrant, “’applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.’ Kentucky v. King.”
Upholding the 4th Amendment
The Supreme Court noted that to decide if a warrantless search is reasonable, it must look at the totality of the circumstances leading to the warrantless search. The Court recognized that some exceptions to the warrant requirement categorically apply, such as the automobile exception, but that the warrant requirement in exigency cases necessarily requires a case-by-case analysis. The Court rejected the government’s claim that alcohol dissipation necessarily creates exigency and therefore categorically should be an exception to the requirement for a warrant. The Court noted there might be some circumstances where this may be true, but in some cases, the police may have the time and opportunity to obtain a warrant. For example, technology has changed a lot over time and now it is possible to obtain a warrant from a judge over the telephone and one officer could call in and obtain a warrant while another transports the suspect to a hospital for the draw. Thus, the 4th Amendment requires an officer to get a warrant when he reasonably can do so. The Court did not, however, lay out what factors are to be considered, thus leaving some questions and ambiguity.
Thus, there appears to be conflict between federal 4th Amendment protections against unreasonable searches and seizures and Oregon Article I, Section 9 protections. However, because the Federal Constitution is supreme to the Oregon Constitution, the 4th Amendment analysis of the US Supreme Court in McNeely, controls. As long as the 4th Amendment argument against a warrantless search is raised, a judge should perform a “totality of the circumstances” analysis to determine if there was a reasonable opportunity to obtain a warrant and, if so, did the officer attempt to obtain one. It also is likely the Oregon Supreme Court will be forced to reevaluate it’s decision in Machuca and alter it’s analysis to fall in line with the 4th Amendment analysis of the US Supreme Court in McNeely.
