Was the Detective Correct About His Authority?
No, he was not. Without mincing words, there does not seem to be a legal justification under Utah law for Payne’s assertions that he had authority to draw the unconscious patient’s blood without a warrant.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons … against unreasonable searches and seizures.”
The Supreme Court has routinely upheld the principle that warrantless searches are per se unreasonable unless they fall into one of several narrow exceptions. Essentially, where police can feasibly obtain a warrant prior to conducting a search, they should.
It is a longstanding rule that drawing blood is a “search” within the meaning of the Fourth Amendment. Why? Because in the language of Missouri v. McNeely, “an invasion of bodily integrity implicates an individual’s most personal and deep-rooted expectations of privacy.”
In the 2016 decision in Birchfield v. North Dakota, the Supreme Court reinforced its disfavor for warrantless blood draws. It struck down state “implied consent” laws criminalizing a DUI suspect’s refusal to submit to mandated blood testing, stating only the most exigent of circumstances could allow for the warrantless invocation of such an invasive procedure.
It is likely that Payne was referring to these unconstitutional laws when he stated he had “implied consent” from the patient. This invalid defense is even more disconcerting given the fact that the patient at issue was not even suspected of a crime, much less under arrest for driving while intoxicated.
Even if implied consent laws were still valid post-Birchfield, they would hardly be applicable in this situation.
Without a warrant, there are two ways Payne could have legally conducted a search of Wubbel’s patient. First, the patient could voluntarily allow his blood to be drawn. But because the patient was unconscious, this wasn’t feasible.
Second, as Payne suggests in the video, there is an exception for “exigent circumstances.”
This exception, outlined in Schmerber v. California, requires probable cause to place the patient under arrest for a crime, and a reasonable belief that delaying the search to obtain a warrant would destroy evidence of that crime.
But Payne readily admitted the patient was not under arrest and was not suspected of a crime. Further, the only criminal suspect in the crash was dead.
It remains unclear why officers thought a test for illicit substances from the victim was needed for a criminal investigation, or whether there was probable cause to believe such substances would be found. Payne can be heard repeatedly stating it was “to protect the patient.”
Taking Payne at his word, these good intentions are not enough to justify a very personal invasion of privacy by a government official on an unconscious patient.