Monday, February 10, 2014

This line of reasoning terrifies me a little

So, I've talked before about the McNeely/Brooks decisions on DWI cases in previous posts, here, here, and here.  We've now been in court battling these issues and there are plenty of varied arguments that are being utilized by both the prosecution and the defense to support their positions. 

For the most part, I understand why the prosecutors are going with certain arguments that they are using.  I disagree w/ the application of the legal concepts they are relying on, but I can at least understand the logic that got them to that argument. 

But, I have seen one that has been argued that I find truly mind-boggling.  If I were a prosecutor, I would not be able to argue it because I have such a visceral reaction to it. 

The argument, in sum, is that DWI cases should be considered a "special needs" situation and should be completely exempted from the warrant requirement and the protections of the 4th Amendment. 

If you didn't choke a little right then, you're not understanding the implications that argument has for you and for everyone if it were to prevail. 

Regular readers will probably find this next piece a bit repetitive, but it's worth repeating since it's easy for people to forget important things like your rights when we're dealing with "criminals." Here's the basic nutshell civics refresher about the 4th Amendment and warrants. 

1. You are protected by the 4th Amendment from unreasonable searches and seizures. Meaning the police can't just decide to dig around in your personal stuff because they are curious, nosy, etc. 

2. The government needs a warrant to search your stuff. The warrant safeguards you against unreasonable searches/seizures, because a (supposedly) neutral, third-party judge looks at the reasons the police want to look in your backpack or purse or whatnot and decides if that's a reasonable search given the information. 

3. SCOTUS has created 6 specific, narrowly-drawn exceptions to the warrant requirement.  If one of those narrow exceptions apply, then the police can search without a warrant and it's not considered a violation of your rights.  Keep in mind--it's only those 6 particular reasons that have been stated by the Supreme Court.

4. If the police don't have a warrant and none of the 6 exceptions apply to the situation, then the search is unlawful and violates your rights.  Any evidence they find in the unlawful search cannot be used against you because they shouldn't have ever had it in the first place if they hadn't violated your rights. 

Okay, so now we're on all the same page. So, one of the exceptions is what's called "special needs."  It's basically the least reliable of all the exceptions because it's a very squishy, amorphous sort of exception and the courts don't really like it all that much, but they keep it around because it's kind of the catch-all for situations that they can't quite figure out what to do with.  It's not a commonly used exception and until recently, I've never seen it argued by the State in a motion. That's because, for the most part, the "special needs" exception is used for non-law-enforcement situations. Drug testing of railroad employees is the common one being used right now in the DWI argument. 

There was a case where someone apparently thought it was a bad idea to let people operate a train while drunk or high (who would have guessed?!) and so they started testing employees to make sure they were sober.  The court determined that this was a "special needs" situation that was exempt from the warrant requirement.  Notice that people weren't criminally prosecuted based on the test results...because it's a non-law-enforcement situation.  

There are other types of "special needs" cases that have come through the court system and again, a majority of the time, this exception applies to non-law-enforcement types of searches. Which is why it's not one that's commonly argued by the prosecution, since it usually doesn't apply and because there's probably a better, clearer, more directly-on-point exception that does apply. 

But, the special needs exception has been paraded out to try to skirt the requirement that police need a warrant to collect a blood, breath, or urine sample.  McNeely and Brooks both held that obtaining a person's blood, breah, or urine sample is a search and falls w/in the protections of the 4th Amendment. So, that's been established--no way to really argue about whether or not it's a search because the courts have determined it is.  Now it's just a question of whether police have a warrant or an exception that applies. 

The prosecutors have argued that all DWI cases should be considered "special needs" cases by the courts and that they should be exempt from the warrant requirement. The abbreviated version of the argument is that DWI cases are 1) numerous in volume, 2) a danger to society, 3) cause accidents and fatalities, and 4) are basically super awful and egregious and pose a HUGENORMOUS threat to society as a whole.  Ergo, they should be considered to fall under the "special needs" exception and the police shouldn't have to get a warrant. 

This line of reasoning is really frightening to me, because it's opening the door for everything to be considered a "special need."  The arguments that DWIs are egregious and numerous in volume aren't without their merit; the problem is that there are many other types of crimes that are also egregious and numerous in volume.  So, if egregious and numerous in volume = special needs = no warrants, we're basically gutting the 4th Amendment.  

There are arguably way more egregious crimes than someone driving a car at a .08.  Murdering someone, breaking into a house and raping someone, kidnapping a kid, etc., etc.  Those are much more egregious than a misdemeanor DWI charge.  Should those all be considered "special needs" because those crimes pose a huge threat to society?  Where does it end? 

By asking the court to make one particular type of case a "special needs" warrant exception type of case, that opens the door to make the same argument on all types of cases.  If "special needs" exceptions aren't restricted to primarily non-law-enforcement types of searches/seizures, then it's easy to argue it should apply to any and all criminal cases and therefore, the warrant requirement would no longer be necessary.  Is a crime egregious? Is it a danger to society? Is it a high-volume case that would require a lot of police work to require a warrant?  Well, let's just call it "special needs" and get the evidence we need regardless of not having a warrant! 

It's a dangerous argument. There are other arguments to be made for the State's position in these DWI cases, but I don't think that's one that should be made.  I wouldn't be able to make it if I were a prosecutor because the implications of that argument beyond the DWI case I'd be working on would terrify me too much.  

Our Constitution protects the rights of the guilty as well as the innocent.  The police can't just pull your car over for no reason at all, because you have the right be free from unreasonable seizures.  The police can't demand that you let them search your home or your personal items just because they want to, because you have the right to be free from unreasonable searches.  You have the right to refuse to consent to searches, to refuse to answer police questions, and the right to be free from the police/government interfering in your personal life simply because they want to because of the rights in the Constitution.  

It's easy to assume that no one in power would do those things unless they had a real reason to do so, even without the rights laid out in the Constitution.  We are used to a society where that's not supposed to happen (I won't say it never does, because it does happen, but when it does, there are remedies for it).  We are lulled into a false sense of security that those of us who are truly innocent need not worry about being bullied by police, because we don't do bad things and the police would only target criminals, even without the Constitution protecting us. 

That's a dangerous way to think.  The Founding Fathers didn't trust the government to be so benevolent and neither should we in today's world.  History has shown that more often than not, governments do not respect the rights of their citizens.  Absolute power corrupts absolutely.  We tend to forget the atrocities of a tyrannical government in today's society because we are a couple hundred years removed from living under one.  We should not take those rights for granted, simply because we assume that those in power will do the right thing. 

Even with the protections in the Constitution, history still shows that there is still the desire by those in power to use that power in terrible ways.  In 1936, the United States Supreme Court had to tell police that brutally beating someone until they confess to a crime violates that person's due process rights. That's something that we should have known as a society, but apparently, those in power felt that was perfectly fine.  We have to be vigilant in maintaining the protections our Founding Fathers put in place for us, never letting ourselves be lulled into a false sense of security because we always had those protections in place and because we believe the lie that the government wouldn't abuse the power we give it and would only target those "guilty" people. 

So, the argument that one particular type of crime should be singled out as a "special needs" type of case and be unmoored from the protections of the 4th Amendment is scary to me.  The reasons being offered for why DWIs should be "special needs" apply to a wide variety of criminal cases, so how can we ever be sure it would be limited to just DWIs? 

As Justice Scalia so aptly stated in the King decisionThe Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. 

In this case, the courts haven't ruled DWIs are a "special needs" case yet that I've seen, and I can only hope they never do, because they would be promising a limitation they cannot deliver. 


  1. I'm afraid your explanation of "special needs" confounds my non-lawyer mind. I can't see what would distinguish a "special needs" case from every other crime. I guess that is kind of your point, but I can't understand why the Court would think otherwise.

    On the other hand, the use of "numerous in volume" as an excuse for taking shortcuts past the 4th Amendment always makes me angry. If DWI cases are too numerous that applying for warrants would overwhelm the cops and the courts, then quit whining and hire more cops and judges, or take them off of less important tasks. It's as if they're saying, "Your rights aren't as important as our staffing budget."

  2. Yeah, that's the problem w/ the special needs exception. it's squishy & not very well defined. and I completely agree about the budgeting vs. our rights thing. It's ridiculous that "number of cases" is even a consideration in a 4th amendment analysis. thankfully the courts generally refuse to allow "police efficiency" to dictate requirements of the 4th Amendment.

  3. History suggests that somewhere, at some time, some cop will use this new power to harass someone he feels deserves it.