By Robert J. Olson and Herbert W. Titus
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.
Historically, the Fourth Amendment first and foremost protected an individual’s right to be secure in his “person” — because a person has a property right in his own body. Unless the government first demonstrates that it has a superior property interest giving it the right to intrude on that bodily property right, the government has no more rights than a common law trespasser.
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.
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