OUI URINE TESTS & THE SEARCH WARRANT REQUIREMENT.
Posted by Edmund R. Folsom, Esq., March 29, 2017
This is part of my continuing efforts to explore implications of the U.S. Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016) (and its earlier Missouri v. McNeely case), on Maine’s efforts to collect blood, breath and urine samples in OUI cases. Initially, I explored Birchfield, itself. More recently, I discussed the Maine Law Court’s State v. Boyd, 2017 ME 36 decision, in which the Court decided that people who drive in Maine are not deemed to impliedly consent to the taking of a blood sample. In State v. Fitzgerald, KEN-16-503, presently pending before the Law Court, the issue is whether “consent” to the taking of a blood sample is valid if it is coerced by the threat of a mandatory jail sentence for failure to submit. Birchfield tells us that the warrantless taking of a breath sample from a person under arrest is a reasonable search and seizure under the 4th Amendment, because it falls within the “search incident to arrest” exception to the search warrant requirement. We also know, from Birchfield, that it is a legitimate exercise of State power to impose criminal penalties on a person for failing to provide a breath sample. On the other hand, Birchfield tells us that the State cannot legitimately take a sample of a person’s blood as a search incident to arrest, and that it is improper for the state to threaten a person with criminal penalties for failing to submit to the warrantless taking of a blood sample. That takes care of breath and blood, but what about urine samples?
Urine testing is the “go-to,” in Maine, for people suspected of operating under the influence of drugs. In OUI-drugs cases, police bring in a so-called “drug recognition expert” (DRE) to perform certain tests on an arrestee. DRE’s are police officers who are trained by other police officers to detect whether a person appears to be under the influence of a particular drug or category of drugs. The DRE protocol calls for the arrested person to be given a breath test before being subjected to a series of physical tests and observations. Once the testing and observations are done, if the DRE suspects that the person is impaired by drugs the DRE is trained to obtain a blood or urine sample from the person. A person who balks at providing a sample is read so-called “implied consent warnings” (which we now know, from Boyd, should be called “duty to submit” warnings), that threaten, among other things, a mandatory minimum jail sentence upon conviction of OUI if the person fails or refuses to provide the sample. Again, Birchfield teaches us that taking a blood sample in these circumstances is not reasonable as a search incident to arrest. And, Birchfield tells us that a person does not validly “consent” to the taking of a blood sample if the “consent” is coerced by the threat of criminal penalties for non-compliance. From Boyd, we know that a person does not “impliedly consent” to the taking of a blood sample by driving on Maine roads. Therefore, if the DRE wants a blood sample, the DRE either needs to secure a search warrant or be able to demonstrate that a recognized exception to the requirement of a search warrant applies. As for possible recognized exceptions to the requirement of a search warrant, again, the search incident to arrest exception is out. That leaves the possibility of valid consent — in serious doubt when police read “implied consent warnings” that threaten a jail sentence for non-compliance – or the probable cause and exigent circumstances exception. Birchfield did not, though, speak directly to whether a urine sample can be validly obtained by a search incident to arrest.
The Minnesota Supreme Court Holds That Taking a Urine Sample is not Valid as a Search Incident to Arrest.
Recall that Birchfield consolidated three people’s appeals. One of those people was William Robert Bernard, Jr. Bernard refused to submit to a breath test and was prosecuted for the crime of refusal under Minnesota law. His circumstances led the U.S. Supreme Court to tell us that breath tests are valid searches incident to arrest, and that it was therefore fine for Minnesota to impose criminal penalties on him for failing to submit to one. In reaching that conclusion, the U.S. Supreme Court upheld the judgment of the Minnesota Supreme Court. After Birchfield was decided, the Minnesota Supreme Court was called upon to decide whether the warrantless taking of a urine sample is a legitimate search incident to arrest, under the same Minnesota refusal statute involved in Birchfield. In State v. Thompson, 886 N.W.2d 224 (Minn. 2016), the Minnesota Supreme Court concluded that taking a urine sample is more like taking a blood sample than taking a breath sample, and that taking a urine sample is therefore not valid as a search incident to arrest.
In Thompson, the Minnesota Supreme Court applied the same balancing test that the U.S. Supreme Court used in Birchfield. When the Birchfield Court decided that taking a breath sample is a valid search incident to arrest but taking a blood sample is not, it did so using a test that balanced the degree of intrusion on individual interests involved in obtaining the samples against the state’s interest in obtaining them. The Court found that breath testing is so minimally intrusive that it is categorically reasonable as a search incident to arrest, in the same way it is categorically reasonable to search an arrestee and all containers found on the arrestee incident to that person’s arrest. On the other hand, the Birchfield Court found that obtaining a blood sample is much more intrusive. Blood tests involve probing beneath the skin to pierce a person’s veins. Also, a breath test involves a sample that is used-up by the testing process and that only reveals a person’s alcohol level. Blood samples, on the other hand, are not immediately used up. A blood sample remains available for further testing, and can be used to determine many things about the person beyond the person’s alcohol level. Taking a blood sample therefore intrudes much more deeply on a person’s privacy interests than taking a breath sample.
In applying the Birchfield test to urine sampling, the Thompson Court noted that, unlike with a blood sample, taking a urine sample does not involve penetrating a person’s body (setting aside the possibility of forced catheterization, which did not occur in Thompson). However, like a blood sample (and unlike a breath sample), a urine sample is not used up by the testing process. A urine sample is also capable of revealing a great deal about the person it is taken from; for instance, whether the person is pregnant, diabetic or epileptic. The Thompson Court found that, because of the large amount of information that can be gleaned from a urine sample, Birchfield’s logic regarding the amount of information obtainable from blood samples applies with equal force to urine samples. The Thompson Court further noted that the taking of a urine sample involves an element of personal embarrassment that breath sampling does not. Proper procedures for obtaining a urine sample involve direct police monitoring of the person’s act of urination. This involves a substantial invasion of privacy interests beyond the arrest itself. On the government-interests side of the equation, the Thompson Court found that the government has the same interest in deterring and prosecuting impaired drivers that it had in Birchfield. In this balance, the Thompson Court concluded that the taking of a urine sample is not justified as a search incident to arrest. Thompson was tried and convicted of refusing to submit to a blood or urine test – tests that the State of Minnesota had no right to force him to comply with. The Minnesota Supreme Court therefore set aside Thompson’s conviction, holding that the statute under which he was convicted was unconstitutional as applied.
How About Maine’s Scheme for Taking Urine Samples in OUI-Drugs Cases?
What are the implications for Maine’s scheme of securing urine samples without a search warrant in OUI-drugs cases? First, Thompson involved a refusal to provide a blood or urine sample in a DUI case where intoxication by alcohol, not drugs, was suspected. This played into the Court’s analysis of the State’s interest. The Thompson Court found the circumstances it faced analogous to the circumstances the Supreme Court analyzed in Birchfield. In both cases, the Courts dealt with police attempts to obtain samples that involved significant intrusion into privacy interests – blood tests, urine tests — when they had the less intrusive option of breath testing available to satisfy the State’s interests. Prosecutors (and, dare I say, courts looking to reach a desired result?) might seize on this difference to declare that the State’s interests in obtaining a urine sample are significantly greater in an OUI-drugs case than in an OUI-alcohol case — so much so that the individual privacy/State’s interest balance tips in favor of allowing urine tests as a search incident to arrest in OUI-drugs cases. After all, breath testing has no value in detecting or quantifying the presence of drugs. On the other hand, in Birchfield, the Supreme Court dealt with the fact that breath testing cannot detect substances other than alcohol that might be a source of impairment. The Birchfield Court pointed out that, when substances other than alcohol are suspected, police can always either obtain a search warrant or establish the existence of probable cause and exigent circumstances. What is true for blood is true for urine in this regard. Also, the search incident to arrest exception is categorical, not only as to the scope of the particular search it allows but also as to the circumstances in which the search is allowed – incident to an arrest. A search that is justified incident to arrest is justified incident to any lawful arrest, no matter what the arrest is for.
A Chimel search of an arrestee and areas within the arrestee’s immediate control is categorically justified whether the person is arrested for murder or for disorderly conduct. A Robinson search of all containers located on an arrestee is categorically justified whether the person is arrested for gross sexual assault or operating after suspension. There is nothing in Birchfield to indicate that the Supreme Court intended to alter the categorical nature of searches incident to arrest, to limit certain types of searches incident to arrest only to arrests for certain types of offenses. In fact, the Birchfield majority took great pains to point out that searches incident to arrest are categorically reasonable and are not to be examined for reasonableness on a case-by-case basis. Birchfield teaches that a breath test is justified as a search incident to arrest no matter what the person is arrested for, because a breath test is so minimally intrusive. A blood sample cannot be taken as part of a search incident to arrest, no matter what the person is arrested for, because taking a blood sample incident to an arrest is too intrusive. According to the Thompson Court, taking a urine sample is much more intrusive than taking a breath sample. Taking a urine sample is therefore not justified as a search incident to arrest. Birchfield tells us that the categorical nature of searches incident to arrest means this is true no matter whether the arrest is for OUI-alcohol or OUI-drugs. If it were otherwise, the categorical nature of searches incident to arrest would be undermined.
State v. Thompson is persuasive, and its reasoning applies equally to urine samples sought by Maine police in suspected OUI-drugs cases. The warrantless taking of a urine sample is not justified as a search incident to arrest. As per Birchfield, obtaining a sample by threatening a person with criminal penalties is not a legitimate exercise of State power. If a person is coerced by that threat to provide a urine sample, the sample is not obtained by valid consent. Maine’s “implied consent” warnings threaten the criminal penalty of mandatory jail time for failure to submit to a test. It is not a legitimate exercise of State power to impose a mandatory jail sentence for failing to comply with a demand for a urine or blood sample. As Boyd tells us, a person does not impliedly consent to provide a blood or urine sample simply by driving in Maine. That leaves three possible means for the State to legitimately obtain a urine or blood sample in an OUI-drugs case: (1) by search warrant; (2) by consent untainted by the threat of jail for non-compliance; or (3) by establishing the existence of probable cause and exigent circumstances.
As to probable cause and exigent circumstances, exigent circumstances should rarely, if ever, be found to exist for the warrantless taking of a urine sample. In blood, biological processes cause levels of alcohol or drugs to fall as the body metabolizes those substances. Once drugs or metabolites are in a person’s urine, those biological processes have stopped. And, in fact, the State Health and Environmental Testing Laboratory (HETL) does not even analyze the concentration of drugs or their metabolites in urine. Instead, they merely report the presence of drugs or their metabolites. In the case of suspected intoxication by cannabis, the HETL tests for the presence of Carboxy THC. The manual under which DRE’s are trained points out that there is no evidence that Carboxy THC is even psychoactive, and that it may be found in a person’s urine for several days after the person uses cannabis. In other words, when it comes to what the State tests for in a urine sample, there is no hurry. Exigency, schmexigency. To steal and displace words from Chief Justice Roberts’s Riley v. California, 573 U.S. __ (2014), opinion, when it comes to the question of what police need to do to obtain a urine sample from someone arrested for OUI, the answer is simple — “get a warrant.”