What warrants a warrant?

After the Supreme Court decided the case of Missouri v. McNeely, the question of when a warrant is required, before law enforcement may draw a person's blood became more interesting to say the least.  On one side of the issue was the position that a blood alcohol concentrations is constantly changing, thus, there is a justification for law enforcement to bypass the traditional warrant requirement.

The contrary, and as it turns out the prevailing position, is that our Constitution does not allow law enforcement unfettered discretion to decided if they can stick a needle in your arm without a warrant (i.e. probable cause presented to a judge who issues a warrant).  The reality of modern technology is that a telephonic warrant can be obtained in about 15 minutes for most cases.  Accordingly, the exigent circumstances reasoning for bypassing the warrant requirement is unsound.  As the U.S. Supreme Court stated in their rejection of such a per se rule in DUI cases:

But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici.  In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed 153 (1948).

Missouri v. McNeely, 133 S.Ct. at 1555 (2013).

Is it really so surprising that what warrants a warrant is what is reasonable under the circumstances?

The Toughest Cases Can Have the Best Results

"If you are going through hell, keep going."
- Sir Winston Churchill (1874-1965)

The goal of every criminal defense attorney is to win.  However, in some cases the facts are so difficult to overcome, even an experienced defense attorney cannot envision winning.  This mindset is almost always fatal to a case. 

Nothing great ever came about easily.  You must believe that you can have success in order to be successful.  While you need to be realistic about the case to advise your client properly, you still must start the case with the mindset that you can win.  You cannot forclose on the possiblity of success.

Here is a real life example from one my cases.  The allegations were my client was driving a car and as it entered an intersection he struck a police officer.  Not a car carrying a police officer, but a police officer standing in the intersection directing traffic.  Prior to driving, it was also alleged that he drank a substantial amount of alcohol.  The police basically stated that he was so drunk that after the accident he was vomiting alcohol.

These are horrible facts.  It would be ridiculous for an attorney to think he could win this case.  Well I did have this case.  It may have been ridiculous for me to entertain the possibility I could win the case.  However, we did win.

Continue Reading...