July 11, 2018 at 6:21 p.m.
Yet another bad decision on the Fourth Amendment
Yet another bad decision on the Fourth Amendment
Without a strong Fourth Amendment, the government can undertake general searches of homes and properties - even of your body - at will and for no reason at all. When a government has the power to do that, its people are no longer free.
They no longer run the government, but are prisoners of it. Without a robust Fourth Amendment, a police state is inevitable.
Here in Wisconsin in recent years, the state Supreme Court has been shredding the Fourth Amendment in a series of bad decisions. In the last five years, the court has authorized warrantless searches for minor traffic violations; sanctioned warrantless police entry into the constitutionally protected curtilage of homes for failure to stop for minor traffic violations; and dangerously expanded the community caretaker doctrine, which allows police to enter without a warrant or suspicion of a crime to help distressed citizens, by allowing entry when such distress is merely theoretically possible rather than actually suspected.
What's scary about these decisions is that so-called conservatives have driven them. Apparently, being viewed as tough on crime is more important than the conservative task of curbing the power of the state and its law enforcement regime.
Now, in a case that resulted in the right determination but for dangerously wrong reasons, the court has ruled 5-2 that the state was within its rights to withdraw blood without a warrant from an unconscious person who had been arrested on suspicion of drunk driving.
In State v. Mitchell, justices determined that the Fourth Amendment rights of Gerald Mitchell were not violated when police ordered a blood draw without a warrant while Mitchell was unconscious.
Now it's pretty obvious from the case that the man was inebriated and that waiting would allow critical blood alcohol evidence to dissipate. There was clearly probable cause to withdraw blood, even if the man was not conscious and so was not able to refuse a blood draw, as statutes give him the opportunity to do.
Two liberals, of course, said no blood draw should have been performed, but, in typical fashion, they simply ignored the probable cause at hand, not to mention the exigent circumstance of a dissipating blood alcohol level, as well as the public safety threat.
The existence of probable cause was the key to the blood draw. Just as a person doesn't have to be present for the police to search his or her house when they have probable cause to do so, you don't have to be present - that is to say, conscious - for the police to search your body, provided that real probable cause exists.
It is the lead opinion that is more troubling, however.
Three justices - chief justice Patience Roggensack, and justices Annette Ziegler and Michael Gableman - ruled not only that probable cause existed but that drivers give implied consent to withdraw blood when they drive.
In other words, once you drive out onto a public highway, you have already given the police an "implied consent" to search your body. That's scary.
Thankfully, two justices - Daniel Kelly and Rebecca Bradley - disagreed that implied consent laws justified the warrantless blood draw.
For them, probable cause was what mattered, and we agree.
The lead opinion, written by chief justice Patience Roggensack, said the regulation of driving was akin to the regulation of industries involved with liquor and firearms, noting they are subject to close supervision and warrantless inspection.
By choosing to participate in certain businesses, Roggensack wrote, those persons had in effect consented to the restrictions placed upon them.
And so it was with driving, she wrote: By accepting the privilege to drive, voluntary consent to be subjected to significant governmental regulation is given. Drivers agree to drive on the right side of the road; to comply with posted speed limits; and not to drive with a prohibited blood alcohol concentration. They also agree to an evidentiary drawing of blood upon a showing of probable cause to believe that they operated vehicles while intoxicated, the lead opinion asserted.
Justices Kelly and Bradley rejected this reasoning and rightly pointed to the Fourth Amendment dangers it posed.
In a very insightful concurrence, Kelly pointed out that, in the case of driving, "implied consent" is actually consent granted by the Legislature, not the suspect, and legislative consent cannot satisfy the mandates of state and federal constitutions.
As such, he wrote, "I do not believe the state can waive the people's constitutional protections against the state."
Well said. Certainly, driving is a right and not a privilege. Certainly, people agree to all sorts of regulations when they drive. But it is also true that, in modern society, driving is not so much a choice as it is a necessity.
Most people are compelled to drive to get to work, to get to school, to carry out the necessary chores of daily life. To say they are consenting to a government search of their bodies and property because they do what they must do is the same as saying the government has a right search your computer merely because you use the Internet.
As Kelly pointed out, if using anything the government pervasively regulates means you are waiving your Fourth Amendment rights in that area, that destroys a good deal of the Fourth Amendment.
"That is to say, because driving is pervasively regulated, those who travel on Wisconsin's highways have no reasonable expectation of privacy as they engage in that activity," he wrote. "And if that is true, it would sweep away a large body of Fourth Amendment jurisprudence as it relates to traffic stops, searches of automobiles, searches of drivers and passengers, et cetera. Wielding this doctrine as the court does today, if we are serious about its application, calves off a substantial piece of the Fourth Amendment."
Equally important, Kelly wrote, if increased regulation decreases the areas in which individuals have a reasonable expectation of privacy, then the Fourth Amendment's protections are effectively contingent on the reach of the regulatory state.
"Through combined legislative and executive activity, oceans of regulations can wear away zones of privacy, allowing warrantless inspection regimes to follow in their wake," he wrote.
Kelly also said the lead opinion misunderstood the reasons certain searches of pervasively regulated businesses such as liquor and firearms do not require warrants.
"The searches considered there were not reasonable because a legislature said they were; they were reasonable because they did not intrude on the affected person's reasonable expectation of privacy," he wrote.
Regulation of the liquor industry dates back to England of the 18th century, Kelly wrote, and history demonstrates that a liquor retailer has no reasonable expectation his premises would be free from regular governmental inspection.
What's important in this case is not the blood draw itself but what justified it. Obviously police have probable cause to take blood when people drink themselves unconscious and are suspected of having been driving.
But probable cause is enough to decide the case. The three justices on the lead opinion did not have to take the issue further by declaring that we give the police implied consent to search our cars and our bodies.
We do no such thing, and declaring that that is the case takes us down a slippery slope to the point - in an era of regulation - that we have no reasonable expectation of privacy anywhere.
True, probable cause was still needed in the case, but it becomes less important when police can hide behind the implied consent of a search rather than having full scrutiny placed on the probable cause justification.
So it was another bad ruling by the state's high court on Fourth Amendment protections. At least this time two conservative justices actually produced a conservative critique of the lead opinion's reasoning, a critique that question such empowerment of government.
That's a start but only a start.
Comments:
You must login to comment.