{"id":253,"date":"2018-08-09T19:12:13","date_gmt":"2018-08-09T19:12:13","guid":{"rendered":"https:\/\/courses.lumenlearning.com\/monroecc-crj103\/?post_type=chapter&p=253"},"modified":"2018-09-05T16:42:44","modified_gmt":"2018-09-05T16:42:44","slug":"missouri-v-mcneely","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/monroecc-crj103\/chapter\/missouri-v-mcneely\/","title":{"raw":"Missouri v. McNeely","rendered":"Missouri v. McNeely"},"content":{"raw":"

UNITED STATES SUPREME COURT<\/h2>\r\n

Missouri v. McNeely\r\n569 US 141 (2013)<\/h3>\r\nRespondent McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample. McNeely\u2019s BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely\u2019s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed, relying on Schmerber v. California, 384 U.\u00a0S. 757 , in which this Court upheld a DWI suspect\u2019s warrantless blood test where the officer \u201cmight reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened \u2018the destruction of evidence,\u2019\u00a0\u201d id., at 770. This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely\u2019s right to be free from unreasonable searches of his person.\r\n\r\nHeld:\u00a0The judgment is affirmed.\r\n\r\nJustice Sotomayor delivered the opinion of the Court with respect to Parts I, II\u2013A, II\u2013B, and IV, concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.\r\n\r\n(a)\u00a0The principle that a warrantless search of the person is reasonable only if it falls within a recognized exception, see, e.g., United States v. Robinson, 414 U.\u00a0S. 218 , applies here, where the search involved a compelled physical intrusion beneath McNeely\u2019s skin and into his veins to obtain a blood sample to use as evidence in a criminal investigation. One recognized exception \u201capplies when \u201cthe exigencies of the situation\u201d make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.\u201d Kentucky v. King, 563 U.\u00a0S. ___, ___. This Court looks to the totality of circumstances in determining whether an exigency exits. See Brigham City v. Stuart, 547 U.\u00a0S. 398. Applying this approach in Schmerber, the Court found a warrantless blood test reasonable after considering all of the facts and circumstances of that case and carefully basing its holding on those specific facts, including that alcohol levels decline after drinking stops and that testing was delayed while officers transported the injured suspect to the hospital and investigated the accident scene.\r\n\r\n(b)\u00a0The State nonetheless seeks a per\u00a0se rule, contending that exigent circumstances necessarily exist when an officer has probable cause to believe a person has been driving under the influence of alcohol because BAC evidence is inherently evanescent. Though a person\u2019s blood alcohol level declines until the alcohol is eliminated, it does not follow that the Court should depart from careful case-by-case assessment of exigency. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U.\u00a0S. 451. Circumstances may make obtaining a warrant impractical such that the alcohol\u2019s dissipation will support an exigency, but that is a reason to decide each case on its facts, as in Schmerber, not to accept the \u201cconsiderable overgeneralization\u201d that a per\u00a0se rule would reflect, Richards v. Wisconsin, 520 U.\u00a0S. 385 . Blood testing is different in critical respects from other destruction-of-evidence cases. Unlike a situation where, e.g., a suspect has control over easily disposable evidence, see Cupp v. Murphy, 412 U.\u00a0S. 291, BAC evidence naturally dissipates in a gradual and relatively predictable manner. Moreover, because an officer must typically take a DWI suspect to a medical facility and obtain a trained medical professional\u2019s assistance before having a blood test conducted, some delay between the time of the arrest or accident and time of the test is inevitable regardless of whether a warrant is obtained. The State\u2019s rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence supporting probable cause is simple. The natural dissipation of alcohol in the blood may support an exigency finding in a specific case, as it did in Schmerber, but it does not do so categorically.\r\n\r\n(c)\u00a0Because the State sought a per se rule here, it did not argue that there were exigent circumstances in this particular case. The arguments and the record thus do not provide the Court with an adequate framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required.\r\n\r\nJustice Sotomayor, joined by Justice Scalia, Justice Ginsburg, and Justice Kagan, concluded in Part III that other arguments advanced by the State and amici in support of a per\u00a0se rule are unpersuasive. Their concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers may make the desire for a bright-line rule understandable, but the Fourth Amendment will not tolerate adoption of an overly broad categorical approach in this context. A fact-intensive, totality of the circumstances, approach is hardly unique within this Court\u2019s Fourth Amendment jurisprudence. See, e.g., Illinois v. Wardlow, 528 U.\u00a0S. 119 \u2013125. They also contend that the privacy interest implicated here is minimal. But motorists\u2019 diminished expectation of privacy does not diminish their privacy interest in preventing a government agent from piercing their skin. And though a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, this Court has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests. Finally, the government\u2019s general interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case. <\/a> <\/a>\r\n\r\nWe hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.\r\n\r\nThe judgment of the Missouri Supreme Court is affirmed. <\/a> <\/a>\r\n\r\nJustice Thomas, dissenting.\r\n\r\nThis case requires the Court to decide whether the Fourth Amendment prohibits an officer from obtaining a blood sample without a warrant when there is probable cause to believe that a suspect has been driving under the influence of alcohol. Because the body\u2019s natural meta- bolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent circumstance. As a result, I would hold that a warrantless blood draw does not violate the Fourth Amendment.\r\n\r\nI\r\n\r\nA\r\n\r\nThe Fourth Amendment states that \u201c[t]he right of the people to be secure in their persons .\u00a0.\u00a0. against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.\u201d Before a search occurs, \u201ca warrant must generally be secured,\u201d Kentucky v. King, 563 U.\u00a0S. ___, ___ (2011) (slip op., at 5), but \u201cthis presumption may be overcome in some circumstances because \u2018[t]he ultimate touchstone of the Fourth Amendment is \u201creasonableness.\u201d \u00a0\u2019\u00a0\u201d Ibid. (quoting Brig- ham City v. Stuart, 547 U.\u00a0S. 398, 403 (2006) ; alteration in original).\r\n\r\nThe presence of \u201cexigent circumstances\u201d is one such exception to the warrant requirement. Exigency applies when \u201c\u00a0\u2018the needs of law enforcement [are] so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.\u2019\u00a0\u201d 563 U.\u00a0S., at ___ (slip op., at 6) (quoting Mincey v. Arizona, 437 U.\u00a0S. 385, 394 (1978) ; second alteration in original). Thus, when exigent circumstances are present, officers may take actions that would typically require a warrant, such as entering a home in hot pursuit of a fleeing suspect. 563 U.\u00a0S., at ___ (slip op., at 6). As relevant in this case, officers may also conduct a warrantless search when they have probable cause to believe that failure to act would result in \u201c\u00a0\u2018imminent destruction of evidence.\u2019\u00a0\u201d Ibid. (quoting Brigham City, supra, at 403).\r\n\r\nB\r\n\r\nOnce police arrest a suspect for drunk driving, each passing minute eliminates probative evidence of the crime. \u2026.The Court has acknowledged this fact since Schmerber v. California, 384 U.\u00a0S. 757, 770 (1966) (\u201cWe are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system\u201d). In that case, the Court recognized that destruction of evidence is inherent in drunk-driving cases and held that an officer investigating a drunk-driving crime \u201cmight reasonably [believe] that he [is] confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threaten[s] \u2018the destruction of evidence.\u201d\u2026The Court explained that drawing a person\u2019s blood is \u201ca highly effective means of determining the degree to which [he] is under the influence of alcohol\u201d and is a reasonable procedure because blood tests are \u201ccommonplace\u201d and \u201cinvolv[e] virtually no risk, trauma, or pain.\u201d 384 U.\u00a0S., at 771. The Court, therefore, held that dissipation of alcohol in the blood constitutes an exigency that allows a blood draw without a warrant.\r\n\r\nThe rapid destruction of evidence acknowledged by the parties, the majority, and Schmerber\u2019s exigency determination occurs in every situation where police have probable cause to arrest a drunk driver. In turn, that destruction of evidence implicates the exigent-circumstances doctrine\u2026..\r\n\r\nIn this case, a similar exigency is present\u2026..the natural metabolization of blood alcohol concentration (BAC) creates an exigency once police have probable cause to believe the driver is drunk. It naturally follows that police may conduct a search in these circumstances.\r\n\r\nA hypothetical involving classic exigent circumstances further illustrates the point. Officers are watching a warehouse and observe a worker carrying bundles from the warehouse to a large bonfire and throwing them into the blaze. The officers have probable cause to believe the bundles contain marijuana. Because there is only one person carrying the bundles, the officers believe it will take hours to completely destroy the drugs. During that time the officers likely could obtain a warrant. But it is clear that the officers need not sit idly by and watch the destruction of evidence while they wait for a warrant. The fact that it will take time for the evidence to be destroyed and that some evidence may remain by the time the officers secure a warrant are not relevant to the exigency. However, the ever-diminishing quantity of drugs may have an impact on the severity of the crime and the length of the sentence\u2026\u2026.Conducting a warrantless search of the warehouse in this situation would be entirely reasonable.\r\n\r\nThe same obtains in the drunk-driving context. Just because it will take time for the evidence to be completely destroyed does not mean there is no exigency\u2026..\r\n\r\nThe majority believes that, absent special facts and circumstances, some destruction of evidence is acceptable. See ante, at 9 (\u201csufficient for our purposes to note that .\u00a0.\u00a0. significant delay in testing will negatively affect the probative value\u201d (emphasis added)). This belief must rest on the assumption that whatever evidence remains once a warrant is obtained will be sufficient to prosecute the suspect. But that assumption is clearly wrong. Suspects\u2019 initial levels of intoxication and the time necessary to obtain warranted blood draws will vary widely from case to case. Even a slight delay may significantly affect probative value in borderline cases of suspects who are moderately intoxicated or suspects whose BAC is near a statutory threshold that triggers a more serious offense. See supra, at 4\u20135 (discussing laws penalizing heightened BAC levels). Similarly, the time to obtain a warrant can be expected to vary, and there is no reason to believe it will do so in a predictable fashion.\r\n\r\nFurther, the Court nowhere explains how an officer in the field is to apply the facts-and-circumstances test it adopts. First, officers do not have the facts needed to assess how much time can pass before too little evidence remains. They will never know how intoxicated a suspect is at the time of arrest. Otherwise, there would be no need for testing. Second, they will not know how long it will take to roust a magistrate from his bed, reach the hospital, or obtain a blood sample once there. As the Minnesota Supreme Court recognized in rejecting arguments like those adopted by the Court today:\r\n\r\n\u201c[T]he officer has no control over how long it would take to travel to a judge or the judge\u2019s availability. The officer also may not know the time of the suspect\u2019s last drink, the amount of alcohol consumed, or the rate at which the suspect will metabolize alcohol. Finally, an officer cannot know how long it will take to obtain the blood sample once the suspect is brought to the hospital. Under a totality of the circumstances test, an officer would be called upon to speculate on each of these considerations and predict how long the most probative evidence of the defendant\u2019s blood-alcohol level would continue to exist before a blood sample was no longer reliable.\u201d State v. Shriner, 751 N.\u00a0W. 2d 538, 549 (2008) (footnote omitted).\r\n\r\nThe Court should not adopt a rule that requires police to guess whether they will be able to obtain a warrant before \u201ctoo much\u201d evidence is destroyed, for the police lack reliable information concerning the relevant variables.\r\n

* * * * *<\/p>\r\nThe availability of telephonic warrant applications is not an answer to this conundrum. \u2026.For one thing, Missouri still requires written warrant applications and affidavits, difficulties would arise. As the majority correctly recognizes, \u201c[w]arrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review.\u201d During that time, evidence is destroyed, and police who have probable cause to believe a crime has been committed should not have to guess how long it will take to secure a warrant.\r\n\r\nFor the foregoing reasons, I respectfully dissent.\r\n\r\n<\/a> Concurring opinions and footnotes omitted.","rendered":"

UNITED STATES SUPREME COURT<\/h2>\n

Missouri v. McNeely
\n569 US 141 (2013)<\/h3>\n

Respondent McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample. McNeely\u2019s BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely\u2019s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed, relying on Schmerber v. California, 384 U.\u00a0S. 757 , in which this Court upheld a DWI suspect\u2019s warrantless blood test where the officer \u201cmight reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened \u2018the destruction of evidence,\u2019\u00a0\u201d id., at 770. This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely\u2019s right to be free from unreasonable searches of his person.<\/p>\n

Held:\u00a0The judgment is affirmed.<\/p>\n

Justice Sotomayor delivered the opinion of the Court with respect to Parts I, II\u2013A, II\u2013B, and IV, concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.<\/p>\n

(a)\u00a0The principle that a warrantless search of the person is reasonable only if it falls within a recognized exception, see, e.g., United States v. Robinson, 414 U.\u00a0S. 218 , applies here, where the search involved a compelled physical intrusion beneath McNeely\u2019s skin and into his veins to obtain a blood sample to use as evidence in a criminal investigation. One recognized exception \u201capplies when \u201cthe exigencies of the situation\u201d make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.\u201d Kentucky v. King, 563 U.\u00a0S. ___, ___. This Court looks to the totality of circumstances in determining whether an exigency exits. See Brigham City v. Stuart, 547 U.\u00a0S. 398. Applying this approach in Schmerber, the Court found a warrantless blood test reasonable after considering all of the facts and circumstances of that case and carefully basing its holding on those specific facts, including that alcohol levels decline after drinking stops and that testing was delayed while officers transported the injured suspect to the hospital and investigated the accident scene.<\/p>\n

(b)\u00a0The State nonetheless seeks a per\u00a0se rule, contending that exigent circumstances necessarily exist when an officer has probable cause to believe a person has been driving under the influence of alcohol because BAC evidence is inherently evanescent. Though a person\u2019s blood alcohol level declines until the alcohol is eliminated, it does not follow that the Court should depart from careful case-by-case assessment of exigency. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U.\u00a0S. 451. Circumstances may make obtaining a warrant impractical such that the alcohol\u2019s dissipation will support an exigency, but that is a reason to decide each case on its facts, as in Schmerber, not to accept the \u201cconsiderable overgeneralization\u201d that a per\u00a0se rule would reflect, Richards v. Wisconsin, 520 U.\u00a0S. 385 . Blood testing is different in critical respects from other destruction-of-evidence cases. Unlike a situation where, e.g., a suspect has control over easily disposable evidence, see Cupp v. Murphy, 412 U.\u00a0S. 291, BAC evidence naturally dissipates in a gradual and relatively predictable manner. Moreover, because an officer must typically take a DWI suspect to a medical facility and obtain a trained medical professional\u2019s assistance before having a blood test conducted, some delay between the time of the arrest or accident and time of the test is inevitable regardless of whether a warrant is obtained. The State\u2019s rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence supporting probable cause is simple. The natural dissipation of alcohol in the blood may support an exigency finding in a specific case, as it did in Schmerber, but it does not do so categorically.<\/p>\n

(c)\u00a0Because the State sought a per se rule here, it did not argue that there were exigent circumstances in this particular case. The arguments and the record thus do not provide the Court with an adequate framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required.<\/p>\n

Justice Sotomayor, joined by Justice Scalia, Justice Ginsburg, and Justice Kagan, concluded in Part III that other arguments advanced by the State and amici in support of a per\u00a0se rule are unpersuasive. Their concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers may make the desire for a bright-line rule understandable, but the Fourth Amendment will not tolerate adoption of an overly broad categorical approach in this context. A fact-intensive, totality of the circumstances, approach is hardly unique within this Court\u2019s Fourth Amendment jurisprudence. See, e.g., Illinois v. Wardlow, 528 U.\u00a0S. 119 \u2013125. They also contend that the privacy interest implicated here is minimal. But motorists\u2019 diminished expectation of privacy does not diminish their privacy interest in preventing a government agent from piercing their skin. And though a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, this Court has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests. Finally, the government\u2019s general interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case. <\/a> <\/a><\/p>\n

We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.<\/p>\n

The judgment of the Missouri Supreme Court is affirmed. <\/a> <\/a><\/p>\n

Justice Thomas, dissenting.<\/p>\n

This case requires the Court to decide whether the Fourth Amendment prohibits an officer from obtaining a blood sample without a warrant when there is probable cause to believe that a suspect has been driving under the influence of alcohol. Because the body\u2019s natural meta- bolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent circumstance. As a result, I would hold that a warrantless blood draw does not violate the Fourth Amendment.<\/p>\n

I<\/p>\n

A<\/p>\n

The Fourth Amendment states that \u201c[t]he right of the people to be secure in their persons .\u00a0.\u00a0. against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.\u201d Before a search occurs, \u201ca warrant must generally be secured,\u201d Kentucky v. King, 563 U.\u00a0S. ___, ___ (2011) (slip op., at 5), but \u201cthis presumption may be overcome in some circumstances because \u2018[t]he ultimate touchstone of the Fourth Amendment is \u201creasonableness.\u201d \u00a0\u2019\u00a0\u201d Ibid. (quoting Brig- ham City v. Stuart, 547 U.\u00a0S. 398, 403 (2006) ; alteration in original).<\/p>\n

The presence of \u201cexigent circumstances\u201d is one such exception to the warrant requirement. Exigency applies when \u201c\u00a0\u2018the needs of law enforcement [are] so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.\u2019\u00a0\u201d 563 U.\u00a0S., at ___ (slip op., at 6) (quoting Mincey v. Arizona, 437 U.\u00a0S. 385, 394 (1978) ; second alteration in original). Thus, when exigent circumstances are present, officers may take actions that would typically require a warrant, such as entering a home in hot pursuit of a fleeing suspect. 563 U.\u00a0S., at ___ (slip op., at 6). As relevant in this case, officers may also conduct a warrantless search when they have probable cause to believe that failure to act would result in \u201c\u00a0\u2018imminent destruction of evidence.\u2019\u00a0\u201d Ibid. (quoting Brigham City, supra, at 403).<\/p>\n

B<\/p>\n

Once police arrest a suspect for drunk driving, each passing minute eliminates probative evidence of the crime. \u2026.The Court has acknowledged this fact since Schmerber v. California, 384 U.\u00a0S. 757, 770 (1966) (\u201cWe are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system\u201d). In that case, the Court recognized that destruction of evidence is inherent in drunk-driving cases and held that an officer investigating a drunk-driving crime \u201cmight reasonably [believe] that he [is] confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threaten[s] \u2018the destruction of evidence.\u201d\u2026The Court explained that drawing a person\u2019s blood is \u201ca highly effective means of determining the degree to which [he] is under the influence of alcohol\u201d and is a reasonable procedure because blood tests are \u201ccommonplace\u201d and \u201cinvolv[e] virtually no risk, trauma, or pain.\u201d 384 U.\u00a0S., at 771. The Court, therefore, held that dissipation of alcohol in the blood constitutes an exigency that allows a blood draw without a warrant.<\/p>\n

The rapid destruction of evidence acknowledged by the parties, the majority, and Schmerber\u2019s exigency determination occurs in every situation where police have probable cause to arrest a drunk driver. In turn, that destruction of evidence implicates the exigent-circumstances doctrine\u2026..<\/p>\n

In this case, a similar exigency is present\u2026..the natural metabolization of blood alcohol concentration (BAC) creates an exigency once police have probable cause to believe the driver is drunk. It naturally follows that police may conduct a search in these circumstances.<\/p>\n

A hypothetical involving classic exigent circumstances further illustrates the point. Officers are watching a warehouse and observe a worker carrying bundles from the warehouse to a large bonfire and throwing them into the blaze. The officers have probable cause to believe the bundles contain marijuana. Because there is only one person carrying the bundles, the officers believe it will take hours to completely destroy the drugs. During that time the officers likely could obtain a warrant. But it is clear that the officers need not sit idly by and watch the destruction of evidence while they wait for a warrant. The fact that it will take time for the evidence to be destroyed and that some evidence may remain by the time the officers secure a warrant are not relevant to the exigency. However, the ever-diminishing quantity of drugs may have an impact on the severity of the crime and the length of the sentence\u2026\u2026.Conducting a warrantless search of the warehouse in this situation would be entirely reasonable.<\/p>\n

The same obtains in the drunk-driving context. Just because it will take time for the evidence to be completely destroyed does not mean there is no exigency\u2026..<\/p>\n

The majority believes that, absent special facts and circumstances, some destruction of evidence is acceptable. See ante, at 9 (\u201csufficient for our purposes to note that .\u00a0.\u00a0. significant delay in testing will negatively affect the probative value\u201d (emphasis added)). This belief must rest on the assumption that whatever evidence remains once a warrant is obtained will be sufficient to prosecute the suspect. But that assumption is clearly wrong. Suspects\u2019 initial levels of intoxication and the time necessary to obtain warranted blood draws will vary widely from case to case. Even a slight delay may significantly affect probative value in borderline cases of suspects who are moderately intoxicated or suspects whose BAC is near a statutory threshold that triggers a more serious offense. See supra, at 4\u20135 (discussing laws penalizing heightened BAC levels). Similarly, the time to obtain a warrant can be expected to vary, and there is no reason to believe it will do so in a predictable fashion.<\/p>\n

Further, the Court nowhere explains how an officer in the field is to apply the facts-and-circumstances test it adopts. First, officers do not have the facts needed to assess how much time can pass before too little evidence remains. They will never know how intoxicated a suspect is at the time of arrest. Otherwise, there would be no need for testing. Second, they will not know how long it will take to roust a magistrate from his bed, reach the hospital, or obtain a blood sample once there. As the Minnesota Supreme Court recognized in rejecting arguments like those adopted by the Court today:<\/p>\n

\u201c[T]he officer has no control over how long it would take to travel to a judge or the judge\u2019s availability. The officer also may not know the time of the suspect\u2019s last drink, the amount of alcohol consumed, or the rate at which the suspect will metabolize alcohol. Finally, an officer cannot know how long it will take to obtain the blood sample once the suspect is brought to the hospital. Under a totality of the circumstances test, an officer would be called upon to speculate on each of these considerations and predict how long the most probative evidence of the defendant\u2019s blood-alcohol level would continue to exist before a blood sample was no longer reliable.\u201d State v. Shriner, 751 N.\u00a0W. 2d 538, 549 (2008) (footnote omitted).<\/p>\n

The Court should not adopt a rule that requires police to guess whether they will be able to obtain a warrant before \u201ctoo much\u201d evidence is destroyed, for the police lack reliable information concerning the relevant variables.<\/p>\n

* * * * *<\/p>\n

The availability of telephonic warrant applications is not an answer to this conundrum. \u2026.For one thing, Missouri still requires written warrant applications and affidavits, difficulties would arise. As the majority correctly recognizes, \u201c[w]arrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review.\u201d During that time, evidence is destroyed, and police who have probable cause to believe a crime has been committed should not have to guess how long it will take to secure a warrant.<\/p>\n

For the foregoing reasons, I respectfully dissent.<\/p>\n

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