Schmerber v. California, 384 U.S. 757 (1966), is a landmarkAron Hogden, Reconciling A Split of Authority: A South Dakota Response to Recent Developments in Drunk Driving Law, 59 372, 373 (2014) (describing Schmerber v. California as a "landmark case"); see also Kelsey P. Black, Undue Protection Versus Undue Punishment: Examining the Drinking & Driving Problem Across the United States, 40 463, 469 (2007) (describing Schmerber v. California as a "watershed case" in the nation's Fourth Amendment jurisprudence). United States Supreme Court case in which the Court clarified the application of the Fourth Amendment's protection against warrantless searches and the Fifth Amendment right against self-incrimination for searches that intrude into the human body. Until Schmerber, the Supreme Court had not yet clarified whether state police officers must procure a search warrant before taking blood samples from criminal suspects. Likewise, the Court had not yet clarified whether blood evidence taken against the wishes of a criminal suspect may be used against that suspect in the course of a criminal prosecution.
In a 5–4 opinion, the Court held that forced extraction and analysis of a blood sample is not compelled testimony; therefore, it does not violate the Fifth Amendment right against self-incrimination.Schmerber v. California, . The Court also held that intrusions into the human body ordinarily require a search warrant.Schmerber, 384 U.S. at 770. However, the Court ruled that the involuntary, warrantless blood sample taken in this case was justified under the Fourth Amendment's exigent circumstances exception because evidence of blood alcohol would be destroyed by the body's natural metabolic processes if the officers were to wait for a warrant.Schmerber, 384 U.S. at 770 ("in the present case, however, [the officer] might reasonably have believed that he was confronted with an emergency in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence") (internal quotations omitted). In 2013, the Supreme Court clarified in Missouri v. McNeely that the natural metabolism of alcohol in the bloodstream is not a per se exigency that would always justify warrantless blood tests of individuals suspected of driving under the influence of alcohol.Missouri v. McNeely, 133 S.Ct. 1552 (2013).
In the years following the Court's decision in Schmerber, many legal scholars feared the ruling would be used to limit civil liberties.Kelsey P. Black, Undue Protection Versus Undue Punishment: Examining the Drinking & Driving Problem Across the United States, 40 463, 478–79 (2007). Other scholars, including Nita A. Farahany, Benjamin Holley, and John G. New, have suggested courts may use the ruling in Schmerber to justify the use of mind reading devices against criminal suspects.Nita A. Farahany, Incriminating Thoughts, 64 351, 355 (2012); Benjamin Holley, It's All in Your Head: Neurotechnological Lie Detection & the Fourth & Fifth Amendments, 28 1, 18 (2009); John G. New, If You Could Read My Mind: Implications of Neurological Evidence for Twenty-First Century Criminal Jurisprudence, 29 179, 197 (2008); cf. Kiel Brennan-Marquez, A Modest Defense of Mind Reading, 15 214 (2013) ("The modern era of self-incrimination jurisprudence began with Schmerber v. California."). Because the Court's ruling in Schmerber prohibited the use of warrantless blood tests in most circumstances, some commentators argue that the decision was responsible for the proliferation of breathalyzers to test for alcohol and urine analyses to test for controlled substances in criminal investigations.See, e.g., John A. Scanlan, Jr., Playing the Drug-Testing Game: College Athletes, Regulatory Institutions, & the Structures of Constitutional Argument, 62 (1987); Commonwealth v. Brennan, 386 Mass. 772, 776–77 (1982) (discussing impacts of the Court's ruling in Schmerber on "the breathalyzer test").
Background
In the 1950s, the Supreme Court of the United States issued two key rulings clarifying the constitutionality of physical intrusions into the human body by police and other government agents. In Rochin v. California, police officers broke into the home of an individual suspected of selling narcotics and observed him place several small objects into his mouth.Rochin v. California, . Officers were unable to force his mouth open, so they transported him to a local hospital where his stomach was pumped against his will.Rochin, 342 U.S. at 166. A unanimous Supreme Court held the involuntary stomach pump was an unlawful violation of substantive due process because it "shocked the conscience", and was so "brutal" and "offensive" that it did not comport with traditional ideas of fair play and decency.Rochin, 342 U.S. at 172–73. In 1957, the Court held in Breithaupt v. Abram that involuntary blood samples "taken by a skilled technician" neither "shocked the conscience" nor violated substantive due process.Breithaupt, 352 U.S. at 433–39. In Breithaupt, police took a blood sample from a patient suspected of driving under the influence of alcohol while he lay unconscious in a hospital.Breithaupt, 352 U.S. at 433. The Court held that the blood samples were justified, in part, because "modern community living requires modern scientific methods of crime detection."Breithaupt, 352 U.S. at 439. Additionally, the Court mentioned in dicta that involuntary blood samples may violate the constitution if officers do not provide "every proper medical precaution" to the accused.Breithaupt, 352 U.S. at 438.
Fourth Amendment exclusionary rule Until the twentieth century, courts would admit evidence at trial even if it was seized in violation of the Fourth Amendment.See Weeks v. United States, . Although the Supreme Court developed an exclusionary rule for federal cases in Weeks v. United States and Silverthorne Lumber Co. v. United States,Silverthorne Lumber Co. v. United States, ; Weeks, 232 U.S. at 394–96. the Court held in 1949 that the exclusionary rule did not apply to the states.Wolf v. Colorado, . In Rochin, the Court held that evidence obtained in a manner that "shocks the conscience" must be excluded in criminal prosecutions but the court declined to incorporate a broad exclusionary rule for all Fourth Amendment violations.E. John Wherry, Jr., Vampire or Dinosaur: A Time to Revisit Schmerber v. California?, 19 503, 510 (1996) ("[The] Rochin decision applied the exclusionary rule to state courts for the first time, but only where conscience-shocking due process issues were present."). By the middle of the twentieth century, many state courts had crafted their own exclusionary rules.E. John Wherry, Jr., Vampire or Dinosaur: A Time to Revisit Schmerber v. California?, 19 503, 510 (1996) ("State courts were left to fashion their own remedies for Fourth Amendment violations."). In 1955, the California Supreme Court ruled in People v. Cahan that the Fourth Amendment's exclusionary rule applied in California because it was necessary to deter constitutional violations by law enforcement.People v. Cahan, 44 Cal. 2d 434, 445 (1955) ("evidence obtained in violation of the constitutional guarantees is inadmissible"). In 1961, the Supreme Court of the United States relied upon Cahan to hold in Mapp v. Ohio that the exclusionary rule was incorporated to the states.Mapp v. Ohio, ; see also E. John Wherry, Jr., Vampire or Dinosaur: A Time to Revisit Schmerber v. California?, 19 503, 510 (1996) ("A closely divided United States Supreme Court, relying heavily upon Cahan, voted five to four to adopt the prophylactic exclusionary rule in the landmark decision of Mapp v. Ohio.").
Arrest and prosecution On the night of November 12, 1964, Armando Schmerber and a passenger were driving home after drinking at a tavern and bowling alley in the San Fernando Valley region of Los Angeles, California, when their car skidded off the road and struck a tree.Schmerber 384 U.S. at 758 n.2; see also , Schmerber v. California. Schmerber and his companion were injured in the crash and taken to a hospital for treatment.Schmerber, 384 U.S. at 758 n.2 (1966). When investigating police officers arrived at the hospital, they asked Schmerber to submit a sample of his blood, but Schmerber refused.Schmerber, 384 U.S. at 758–59. Although they did not possess a search warrant, officers instructed attending physicians to take a blood sample from Schmerber.Schmerber, 384 U.S. at 758. The blood sample indicated that Schmerber was intoxicated, and he was placed under arrest.Schmerber, 384 U.S. at 759. The blood sample was ultimately admitted into evidence at trial, and Schmerber was convicted for driving under the influence of intoxicating liquors.Schmerber, 384 U.S. at 758–59; see also California Vehicle Code § 23102(a). Schmerber objected to the admissibility of the blood sample, claiming that the police violated his rights to due process, his right against self-incrimination, his right to counsel, and his right not to be subjected to unreasonable searches and seizures. The Appellate Department of the California Superior Court rejected Schmerber's arguments, and the California District Court of Appeal declined to review his case.Schmerber, 384 U.S. at 759, 759 n.3.
Arguments before the Court
Schmerber submitted an appeal to the Supreme Court of the United States, which granted certiorari on January 17, 1966.Schmerber v. California, . In his brief, Schmerber argued, among other things, that the warrantless blood test violated his Fourth Amendment right to be free from unlawful searches and seizures, as well as his Fifth Amendment right against self-incrimination. The Los Angeles City Attorney's office represented the State of California on appeal.Brief for Respondent, Schmerber v. California, 384 U.S. 757 (U.S., 1966). In their brief, the City Attorney argued that the blood test did not violate the Fourth Amendment because the seizure was conducted incident to a lawful arrest. The City Attorney also argued that admitting the sample into evidence did not violate Schmerber's Fifth Amendment right against self-incrimination because blood is not testimonial evidence under the Fifth Amendment. Oral arguments were held on April 25, 1966, and the Court issued its opinion on June 20, 1966.
Opinion of the Court