Ex parte Love

• Decision Date: 05 June 1987
• Parties: Ex parte Kim Ray LOVE (Re Kim Ray Love v. State) 86-128.
• Court: Alabama Supreme Court

Page 24

513 So.2d 24

Ex parte Kim Ray LOVE (Re Kim Ray Love v. State)

86-128.

Supreme Court of Alabama.

June 5, 1987.

Rehearing Denied July 24, 1987.

Thomas B. Hanes of Hanes & Cotton, Birmingham, for petitioner.

Charles A. Graddick, Atty. Gen., and Tommie Wilson, Asst. Atty. Gen., for respondent.

BEATTY, Justice.

This Court granted certiorari to determine whether the Court of Criminal Appeals was correct in approving the admissibility of a blood sample taken from the petitioner while he was not under arrest. Concluding that Code of 1975, § 32-5-190 et seq., does not provide the "exclusive means for admitting blood alcohol test results," that court held that such test results were admissible as evidence "when there is probable cause to believe the motorist was driving while intoxicated and exigent circumstances are present," even though the motorist was not lawfully arrested. 513 So.2d 19.

The facts are reported in the opinion below. That opinion relates that, while the petitioner was told by a medical technologist that he "needed" to draw some blood, no evidence of consent to that procedure was shown, nor was there any factual indication that petitioner was incapable of consenting.

The tortuous history of legal intrusions upon the body for evidence of alcohol content is traced in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In that case, the United States Supreme Court considered the constitutionality of the withdrawal of a blood sample from an objecting patient in a hospital who had previously been placed under arrest. Rejecting claims that this practice violated the petitioner's right of due process, his privilege against self-incrimination, and his right to counsel, that Court additionally held that the taking of this blood sample was not the product of an illegal search and seizure under the Fourth and Fourteenth Amendments. We quote from pertinent portions of the discussion on that issue:

"We begin with the assumption that once the privilege against self-incrimination has been found not to bar compelled intrusions into the body for blood to be analyzed for alcohol content, the Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner. In other words, the questions we must decide in this case are whether the police were justified in requiring petitioner to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness.

"In this case, as will often be true when charges of driving under the influence of alcohol are pressed, these questions arise in the context of an arrest made by an officer without a warrant. Here, there was plainly probable cause for the officer to arrest petitioner and charge him with driving an automobile while under the influence of intoxicating liquor. The police officer who arrived at the scene shortly after the accident smelled liquor on petitioner's breath, and testified that petitioner's eyes were 'bloodshot, watery, sort of a glassy appearance.' The officer saw petitioner again at the hospital, within two hours of the accident. There he noticed similar symptoms of drunkenness. He thereupon informed petitioner 'that he was under arrest and that he was entitled to the services of an attorney, and that he could remain silent, and that anything that he told me would be used against him in evidence.'

"While early cases suggest that there is an unrestricted 'right on the part of the government always recognized under English and American law, to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of crime,' Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652; People v. Chiagles, 237 N.Y. 193, 142 N.E. 583 (1923) (Cardozo, J.), the mere fact of a lawful arrest does not end our inquiry. The suggestion of these cases apparently rests on two factors--first, there may be more immediate danger of concealed weapons or of destruction of evidence under the direct control of the accused, United States v. Rabinowitz, 339 U.S. 56, 72-73; 70 S.Ct. 430, 437, 438, 94 L.Ed. 653 (Frankfurter, J., dissenting); second, once a search of the arrested person for weapons is permitted, it would be both impractical and unnecessary to enforcement of the Fourth Amendment's purpose to attempt to confine the search to those objects alone. People v. Chiagles, 237 N.Y., at 197, 198, 142 N.E., at 584. Whatever the validity of these considerations in general, they have little applicability with respect to searches involving intrusions beyond the body's surface. The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.

"Although the facts which established probable cause to arrest in this case also suggested the required relevance and likely success of a test of petitioner's blood for alcohol, the question remains whether the arresting officer was permitted to draw these inferences himself, or was required instead to procure a warrant before proceeding with the test. Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned. The requirement that a warrant be obtained is a requirement that inferences to support the search 'be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, 333 U.S. 10, 13, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436; see also Aguilar v. State of Texas, 378 U.S. 108, 110, 111, 84 S.Ct. 1509, 1511, 1512, 12 L.Ed.2d 723. The importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great.

"The officer in the present case, however, 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,' Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777. We 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. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest.

"Similarly, we are satisfied that the test chosen to measure petitioner's blood-alcohol level was a reasonable one. Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. See Breithaupt v. Abram, 352 U.S. at 436, n. 3, 77 S.Ct. at 410, 1 L.Ed.2d 448. Such tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain. Petitioner is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the 'breathalyzer' test petitioner refused, see n. 9, supra. We need not decide whether such wishes would have to be respected.

"Finally, the record shows that the test was performed in a reasonable manner. Petitioner's blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment--for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

We thus conclude that the present record shows no violation of petitioner's right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions." 384 U.S. at 768-772, 86 S.Ct. at 1834-36.

An analysis of Schmerber reveals that the Court proceeded "in the context of an arrest made by an officer without a warrant." The Court recognized the existence of probable cause "for the officer to arrest petitioner and charge him with driving an automobile while under the influence of intoxicating liquor." Yet the Court acknowledged that "the mere fact of a lawful arrest does not end our inquiry." Then it went on to find "special facts" in the nature of alcohol's diminishment in the human body which made the taking of the blood sample "an appropriate incident to petitioner's arrest." Nevertheless, the Court used cautionary language in summing up its decision: "It bears...