Attached is the Birchfield v. North Dakota amicus brief on the merits, as filed in the U.S. Supreme Court.
This is another effort that we are all making to expand the original property (not privacy) basis of the Fourth Amendment, following our successful beginning in the Antoine Jones case.
The summary of argument, below, explains the essence of the brief:
These consolidated cases involve two states laws which criminalize an automobile driver’s refusal to consent giving blood and breath samples as part of a traffic stop and subsequent arrest. This Court already has refused to create an “exception” to the Fourth Amendment requirement that the police obtain a warrant before conducting these tests. But now, in an effort to do indirectly what this Court has ruled they cannot do directly, various states are now conditioning the right to drive an automobile on the waiver of a driver’s constitutional rights.
In analyzing the state statutes, both the state supreme courts below assumed that the only Fourth Amendment issue was whether drivers have a “reasonable expectation of privacy.” The Supreme Court of Minnesota decided that a blood or breath search is simply a “search incident to arrest,” and that since a person has no privacy interest in his body once he has been arrested, the state has unlimited power to do with him whatever it wishes. On the other hand, the Supreme Court of North Dakota concluded that, by obtaining a driver’s license, a person is deemed to have given “consent” to such searches, and, in any event, the requirement to participate in chemical tests is “reasonable.” Neither court paused to consider whether Americans have a protected property interest — rather than an expectation of privacy interest — which is protected by the Fourth Amendment.
In United States v. Jones, this Court restored the Fourth Amendment’s private property “baseline.” Finding that a search occurred when a GPS tracking device was placed on a vehicle, it was unnecessary to consider whether the owner also had a “privacy” interest, because it was clear that the government had committed a trespass to property. The next year in Florida v. Jardines, the Court applied that same principle to a drug dog search of a home, finding not only that a search had occurred, but also that the search was unreasonable because the government violated his property rights. Since Jones and Jardines., however, this Court has failed to apply these Fourth Amendment property principles consistently. Rather, for the most part, the Court has reverted to a narrow focus on expectations of privacy.
The Fourth Amendment first and foremost protects an individual’s right to be secure in his “person” — which is to say, his own body. Unless the government first demonstrates that it has a superior property interest giving it the right to intrude on that property right, the government becomes a common law trespasser. Thus, while the government obtains a limited authority to safely seize and detain a person who has been arrested, that authority does not grant the government carte blanche power to do whatever it wishes to the person’s body incident to arrest. This conclusion is in line with the Court’s recent decision in Riley v. California, which held that the government does not obtain complete authority to do whatever it wishes with a person’s cell phone simply because it has taken it away from him upon arrest.
Finally, no state may, as North Dakota has done here, invoke its police power to regulate automobile traffic to justify criminalizing the refusal to submit to a breath, blood or urine test without regard for the Fourth Amendment-protected property right in one’s person.