I'd feared that, after George W. Bush and Dick Cheney and, even worse, Barack Obama, the Fourth Amendment's protection of our personal privacy had nearly vanished. But on April 17, a majority of the Supreme Court, ruling in Missouri v. McNeely, remembered a fundamental liberty we lost during the British occupation that helped ignite the American Revolution.
As John W. Whitehead of the Charlottesville, Va.-based Rutherford Institute ("Dedicated to the defense of civil liberties and human rights") put it in the organization's news release headlining this vital decision: "Fourth Amendment Victory: Citing Bodily Integrity, U.S. Supreme Court Prohibits Police From Forcibly Taking Warrantless Blood Samples From DUI (driving under the influence) Suspects."
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Whitehead had also filed an amicus brief before the court on behalf of the defendant in Missouri v. McNeely.
Here's the case: While driving erratically in October 2010, Tyler McNeely was pulled over by a Missouri state highway patrolman, who arrested him on suspicion of drunken driving and took him to a hospital to undergo a blood test for alcohol content. McNeely didn't want to subject himself to a blood test, but the officer ignored him and had his blood drawn anyhow. Based on the results of the blood test, McNeely was then charged with driving under the influence.
It's worth noting that Justice Sonia Sotomayor, writing for the majority of the court in upholding McNeely's refusal to consent, described the forced extraction of a person's blood as: "An invasion of bodily integrity (that) implicates an individual's most personal and deep-rooted expectations of privacy."
Crucial to the outcome of this case, as Whitehead emphasizes, is "at no point did the officer attempt to obtain a warrant authorizing the extraction."
The Fourth Amendment forbids "unreasonable searches and seizures," thereby first requiring a warrant from a judge to establish probable cause for a search. But there must be that judge-issued warrant to the probable cause of the search before the extraction of blood -- not just the police officer's suspicions.
Whitehead makes this crucial point concerning Missouri v. McNeely: "While public safety is of great concern, especially when it comes to serious offenses such as driving under the influence of alcohol, Americans' constitutional rights cannot be wholly discounted and conveniently discarded. This case has far-reaching implications that go beyond one man's run-in with the police."
And that's why Missouri v. McNeely is so important and should've been widely covered.
Because so few members of the media have reported on Missouri v. McNeely, it's doubtful that many American consciences have been shocked to realize how often a driver's blood is forcibly taken from him or her without consent and without any intervention by a judge-issued warrant. We don't know how often this invasion of privacy may still occur, despite the court's ruling in Missouri v. McNeely.
Were I an assignment editor for one of the media outlets, I would ask reporters to check over a period of time how often police and prosecutors apply Missouri v. McNeely as decided by the Supreme Court to drunk-driving cases. I'd also check on how many judges actually know of this decision.
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