Forced Blood Draws & Implied Consent Laws Make a Mockery of the Fourth Amendment
Forced Blood Draws & Implied Consent Laws Make a Mockery of the Fourth Amendment By John W. Whitehead for Rutherford
“The Fourth Amendment was designed to stand between us and arbitrary governmental authority. For all practical purposes, that shield has been shattered, leaving our liberty and personal integrity subject to the whim of every cop on the beat, trooper on the highway and jail official.”—Herman Schwartz, The Nation
You think you’ve got rights? Think again.
All of those freedoms we cherish—the ones enshrined in the Constitution, the ones that affirm our right to free speech and assembly, due process, privacy, bodily integrity, the right to not have police seize our property without a warrant, or search and detain us without probable cause—amount to nothing when the government and its agents are allowed to disregard those prohibitions on government overreach at will.
This is the grim reality of life in the American police state.
Our so-called rights have been reduced to technicalities in the face of the government’s ongoing power grabs.
Consider a case before the U.S. Supreme Court (Mitchell vs. Wisconsin) in which Wisconsin police officers read an unconscious man his rights and then proceeded to forcibly and warrantlessly draw his blood while he was still unconscious in order to determine if he could be charged with a DUI.
To sanction this forced blood draw, the cops and the courts have hitched their wagon to state “implied consent” laws (all of the states have them), which suggest that merely driving on a state-owned road implies that a person has consented to police sobriety tests, breathalyzers and blood draws.
More than half of the states (29 states) allow police to do warrantless, forced blood draws on unconscious individuals whom they suspect of driving while intoxicated.
Seven state appeals courts have declared these warrantless blood draws when carried out on unconscious suspects are unconstitutional. Courts in seven other states have found that implied consent laws run afoul of the Fourth Amendment. And yet seven other states (including Wisconsin) have ruled that implied consent laws provide police with a free pass when it comes to the Fourth Amendment and forced blood draws.
With this much division among the state courts, a lot is riding on which way the U.S. Supreme Court rules in Mitchell and whether it allows state legislatures to use implied consent laws as a means of allowing police to bypass the Fourth Amendment’s warrant requirement in relation to forced blood draws and unconscious suspects.
Mind you, this is the third time in as many years that the Supreme Court has taken up the issue of warrantless blood draws.
In 2016, the Court ruled 7-1 in Birchfield v. North Dakota that states may not prosecute suspected drunken drivers for refusing warrantless blood draws when they are arrested. However, the Court also tossed the cops a bone by giving them a green light to require a warrantless breath test incident to arrest. Writing for the majority, Justice Samuel Alito rightly recognized the danger of allowing the government to warrantlessly take possession of—and preserve indefinitely—one’s biological and genetic material.
In 2013, a divided Supreme Court held in Missouri v. McNeely that people suspected of drunken driving can’t automatically be subjected to blood tests without a warrant and without their consent.
The differences between McNeely, Birchfeld and Mitchell are nuanced, but it is in these nuances that the struggle to preserve the Fourth Amendment can best be seen.
The Fourth Amendment has been on life support for a long time.
Our freedoms—especially the Fourth Amendment—continue to be strangulated by a prevailing view among government bureaucrats that they have the right to search, seize, strip, scan, spy on, probe, pat down, taser, and arrest any individual at any time and for the slightest provocation.
Forced cavity searches, forced colonoscopies, forced blood draws, forced breath-alcohol tests, forced DNA extractions, forced eye scans, forced inclusion in biometric databases: these are just a few ways in which Americans are being forced to accept that we have no control over our bodies, our lives and our property, especially when it comes to interactions with the government.
Worse, on a daily basis, Americans are being made to relinquish the most intimate details of who we are—our biological makeup, our genetic blueprints, and our biometrics (facial characteristics and structure, fingerprints, iris scans, etc.)—in order to clear the nearly insurmountable hurdle that increasingly defines life in the United States: we are now guilty until proven innocent.
Such is life in America today that individuals are being threatened with arrest and carted off to jail for the least hint of noncompliance, homes are being raided by police under the slightest pretext, property is being seized on the slightest hint of suspicious activity, and roadside police stops have devolved into government-sanctioned exercises in humiliation and degradation with a complete disregard for privacy and human dignity.
Remember what happened to Utah nurse Alex Wubbels after a police detective demanded to take blood from a badly injured, unconscious patient without a warrant?
Wubbels refused to go along with the cop’s order, citing hospital policy that requires police to either have a warrant or permission from the patient in order to draw blood.
The detective had neither.
Irate, the detective threatened to have Wubbels arrested if she didn’t comply. Backed up by her supervisors, Wubbels respectfully stood her ground only to be roughly grabbed, shoved out of the hospital, handcuffed and forced into an unmarked car while hospital police looked on and failed to intervene (take a look at the police body camera footage, which went viral, and see for yourself).
Michael Chorosky didn’t have an advocate like Wubbels to stand guard over his Fourth Amendment rights. Chorosky was surrounded by police, strapped to a gurney and then had his blood forcibly drawn after refusing to submit to a breathalyzer test. “What country is this? What country is this?” cried Chorosky during the forced blood draw.
What country is this indeed?
Unfortunately, forced blood draws are just the tip of the iceberg when it comes to the indignities and abuses being heaped on Americans in the so-called name of “national security.”
For example, 21-year-old Charnesia Corley was allegedly being pulled over by Texas police for “rolling” through a stop sign. Claiming they smelled marijuana, police handcuffed Corley, placed her in the back of the police cruiser, and then searched her car for almost an hour. No drugs were found in the car.
As the Houston Chronicle reported:
Returning to his car where Corley was held, the deputy again said he smelled marijuana and called in a female deputy to conduct a cavity search. When the female deputy arrived, she told Corley to pull her pants down, but Corley protested because she was cuffed and had no underwear on. The deputy ordered Corley to bend over, pulled down her pants and began to search her. Then…Corley stood up and protested, so the deputy threw her to the ground and restrained her while another female was called in to assist. When backup arrived, each deputy held one of Corley’s legs apart to conduct the probe.
The cavity search lasted 11 minutes. This practice is referred to as “rape by cop.”
Corley was eventually charged with resisting arrest and with possession of 0.2 grams of marijuana. Those charges were subsequently dropped.
David Eckert was forced to undergo an anal cavity search, three enemas, and a colonoscopy after allegedly failing to yield to a stop sign at a Wal-Mart parking lot. Cops justified the searches on the grounds that they suspected Eckert was carrying drugs because his “posture [was] erect” and “he kept his legs together.” No drugs were found.
During a routine traffic stop, Leila Tarantino was subjected to two roadside strip searches in plain view of passing traffic, while her two children—ages 1 and 4—waited inside her car. During the second strip search, presumably in an effort to ferret out drugs, a female officer “forcibly removed” a tampon from Tarantino. No contraband or anything illegal was found.
Thirty-eight-year-old Angel Dobbs and her 24-year-old niece, Ashley, were pulled over by a Texas state trooper on July 13, 2012, allegedly for flicking cigarette butts out of the car window. Insisting that he smelled marijuana, the trooper proceeded to interrogate them and search the car. Despite the fact that both women denied smoking or possessing any marijuana, the police officer then called in a female trooper, who carried out a roadside cavity search, sticking her fingers into the older woman’s anus and vagina, then performing the same procedure on the younger woman, wearing the same pair of gloves. No marijuana was found.
Sixty-nine-year-old Gerald Dickson was handcuffed and taken into custody (although not arrested or charged with any crime) after giving a ride to a neighbor’s son, whom police suspected of being a drug dealer. Despite Dickson’s insistence that the bulge under his shirt was the result of a botched hernia surgery, police ordered Dickson to “strip off his clothes, bend over and expose all of his private parts. No drugs or contraband were found.”
Meanwhile, four Milwaukee police officers were charged with carrying out rectal searches of suspects on the street and in police district stations over the course of several years. One of the officers was accused of conducting searches of men’s anal and scrotal areas, often inserting his fingers into their rectums and leaving some of his victims with bleeding rectums.
It’s gotten so bad that you don’t even have to be suspected of possessing drugs to be subjected to a strip search.
A North Carolina public school allegedly strip-searched a 10-year-old boy in search of a $20 bill lost by another student, despite the fact that the boy, J.C., twice told school officials he did not have the missing money. The assistant principal reportedly ordered the fifth grader to disrobe down to his underwear and subjected him to an aggressive strip-search that included rimming the edge of his underwear. The missing money was later found in the school cafeteria.
Suspecting that Georgia Tech alum Mary Clayton might have been attempting to smuggle a Chik-Fil-A sandwich into the football stadium, a Georgia Tech police officer allegedly subjected the season ticket-holder to a strip search that included a close examination of her underwear and bra. No contraband chicken was found.
What these incidents show is that while forced searches may span a broad spectrum of methods and scenarios, the common denominator remains the same: a complete disregard for the dignity and rights of the citizenry.
In fact, in the wake of the U.S. Supreme Court’s ruling in Florence v. Burlison, any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a strip search by police or jail officials without reasonable suspicion that the arrestee is carrying a weapon or contraband.
Examples of minor infractions which have resulted in strip searches include: individuals arrested for driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, riding a bicycle without an audible bell, making an improper left turn, engaging in an antiwar demonstration (the individual searched was a nun, a Sister of Divine Providence for 50 years).
Police have also carried out strip searches for passing a bad check, dog leash violations, filing a false police report, failing to produce a driver’s license after making an illegal left turn, having outstanding parking tickets, and public intoxication. A failure to pay child support can also result in a strip search.
As technology advances, these searches are becoming more invasive on a cellular level, as well.
For instance, close to 600 motorists leaving Penn State University one Friday night were stopped by police and, without their knowledge or consent, subjected to a breathalyzer test using flashlights that can detect the presence of alcohol on a person’s breath.
These passive alcohol sensors are being hailed as a new weapon in the fight against DUIs. (Those who refuse to knowingly submit to a breathalyzer test are being subjected to forced blood draws. Thirty states presently allow police to do forced blood draws on drivers as part of a nationwide “No Refusal” initiative funded by the federal government.
Not even court rulings declaring such practices to be unconstitutional in the absence of a warrant have slowed down the process. Now police simply keep a magistrate on call to rubber stamp the procedure over the phone.)
The National Highway Safety Administration, the same government agency that funds the “No Refusal” DUI checkpoints and forcible blood draws, is also funding nationwide roadblocks aimed at getting drivers to “voluntarily” provide police with DNA derived from saliva and blood samples, reportedly to study inebriation patterns.
In at least 28 states, there’s nothing voluntary about having one’s DNA collected by police in instances where you’ve been arrested, whether or not you’re actually convicted of a crime.
All of this DNA data is being fed to the federal government.
Airline passengers, already subjected to virtual strip searches, are now being scrutinized even more closely, with the Customs and Border Protection agency tasking airport officials with monitoring the bowel movements of passengers suspected of ingesting drugs. They even have a special hi-tech toilet designed to filter through a person’s fecal waste.
Iris scans, an essential part of the U.S. military’s boots-on-the-ground approach to keeping track of civilians in Iraq and Afghanistan, are becoming a de facto method of building the government’s already mammoth biometrics database. Funded by the Dept. of Justice, along with other federal agencies, the iris scan technology is being incorporated into police precincts, jails, immigration checkpoints, airports and even schools. School officials—from elementary to college—have begun using iris scans in place of traditional ID cards. As for parents wanting to pick their kids up from school, they have to first submit to an iris scan.
As for those endless pictures everyone so cheerfully uploads to Facebook (which has the largest facial recognition database in the world) or anywhere else on the internet, they’re all being accessed by the police, filtered with facial recognition software, uploaded into the government’s mammoth biometrics database and cross-checked against its criminal files. With good reason, civil libertarians fear these databases could “someday be used for monitoring political rallies, sporting events or even busy downtown areas.”
While the Fourth Amendment was created to prevent government officials from searching an individual’s person or property without a warrant and probable cause—evidence that some kind of criminal activity was afoot—the founders could scarcely have imagined a world in which we needed protection against widespread government breaches of our privacy, including on a cellular level.
Yet that’s exactly what we are lacking and what we so desperately need.
Unfortunately, the indignities being heaped upon us by the architects and agents of the American police state—whether or not we’ve done anything wrong—are just a foretaste of what is to come.
As I make clear in my book Battlefield America: The War on the American People, the government doesn’t need to tie you to a gurney and forcibly take your blood or strip you naked by the side of the road in order to render you helpless. It has other methods—less subtle perhaps but equally humiliating, devastating and mind-altering—of stripping you of your independence, robbing you of your dignity, and undermining your rights.
With every court ruling that allows the government to operate above the rule of law, every piece of legislation that limits our freedoms, and every act of government wrongdoing that goes unpunished, we’re slowly being conditioned to a society in which we have little real control over our bodies or our lives.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at www.amazon.com. Whitehead can be contacted at email@example.com.
Publication Guidelines / Reprint Permission
John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact firstname.lastname@example.org to obtain reprint permission.