The U.S. Supreme Court will review whether police officers can read an unconscious suspect his or her “rights” then conduct a search.
The Rutherford Institute contends in a friend-of-the-court brief that the actions of Wisconsin police officers in a suspected drunk-driving case violate the Fourth Amendment, which protects Americans against unreasonable searches and seizures.
The suspect was taken into custody and was asleep when officers sought a blood sample.
They took him to a hospital, read him his rights while he was unconscious and went forward with the blood test.
The suspect later asked the court to suppress the evidence, and the lower courts have refused.
“Unfortunately, forced blood draws are just the tip of the iceberg when it comes to the indignities and abuses being heaped on Americans by law enforcement,” said constitutional attorney John W. Whitehead, president of the institute and author of “Battlefield America: The War on the American People.”
“Forced cavity searches, forced colonoscopies and forced roadside strip searches are also becoming par for the course in an age in which Americans are being taught the painful lesson that, conscious or not, we have no control over our bodies, our lives or our property when it comes to interactions with police.”
It was Gerald Mitchell who was “in distress” when police in Sheboygan, Wisconsin, were called in May 2013.
He apparently had taken vodka, soda and upward of 40 pills.
“Police found Mitchell walking unsteadily along the lake, although his van was parked elsewhere. Mitchell was given a roadside sobriety test which showed that he had a blood-alcohol concentration of .24. He was taken into custody and driven to the police station where he was placed in a holding cell. While in the cell, Mitchell began to fall asleep or pass out, although he could be roused if stimulated,” Rutherford said.
But officers wanted another blood test and didn’t bother to wake him and ask. They took him to the hospital, read him his “rights” and pushed forward.
The Wisconsin Supreme Court justified the actions of the police by stating the state has an implied consent law, “which includes a provision that an unconscious driver is presumed not to have withdrawn his consent to a blood test.”
That’s the argument now before the high court.
Rutherford’s filing argues the Wisconsin courts erred by ruling citizens forfeit their fundamental right of privacy and bodily integrity under state laws regulating and licensing drivers.
It’s because the “implied consent” simply bypasses a fundamental Fourth Amendment right to privacy and bodily integrity.
Rutherford is asking the justices to prevent police from taking blood from a suspect as part of a criminal investigation unless they have a warrant or permission.
“The rationale behind ‘implied consent’ laws is that drivers implicitly consent to breath or blood tests when applying for a driver’s license and risk having their licenses suspended by refusing to submit to such tests. Institute attorneys argue that ‘implied consent’ laws do not override the Fourth Amendment’s mandate that police have a warrant in order to search for evidence of a crime,” the organization explained.
The state court said the blood test was allowable under an exemption in state law that permits searches of “pervasively regulated business[es]” without a warrant.
“If the Fourth Amendment is to be a true guide to constitutionally compliant police action, the decision below must be overturned,” Rutherford argued.
