Examine individual changes

[ 0 => '{{Featured article}}', 1 => '{{Infobox SCOTUS case', 2 => ' |Litigants=Schmerber v. California', 3 => ' |ArgueDate=April 25', 4 => ' |ArgueYear=1966', 5 => ' |DecideDate=June 20', 6 => ' |DecideYear=1966', 7 => ' |FullName=Armando Schmerber, Petitioner v. State of California', 8 => ' |USVol=384', 9 => ' |USPage=757', 10 => ' |ParallelCitations=86 S.Ct. 1826; 16 L.Ed.2d 908; 1966 U.S. LEXIS 1129', 11 => ' |Prior=Certiorari to the Appellate Department of the Superior Court of California, County of Los Angeles', 12 => ' |Subsequent=', 13 => ' |Holding={{flush left|1=', 14 => '# The forced extraction and analysis of a blood sample is not compelled testimony and therefore does not violate the Fifth Amendment privilege against self-incrimination', 15 => '# Intrusions into the human body require a warrant', 16 => '# Here, the warrantless blood test was permissible under the exigent circumstances exception to prevent the destruction of alcohol in the blood stream through the body's natural metabolic processes', 17 => '}}', 18 => ' |SCOTUS=1965-1967', 19 => ' |Majority=Brennan', 20 => ' |JoinMajority=Clark, Harlan, Stewart, White', 21 => ' |Concurrence=Harlan', 22 => ' |JoinConcurrence=Stewart', 23 => ' |Dissent=Warren', 24 => ' |Dissent2=Black', 25 => ' |JoinDissent2=Douglas', 26 => ' |Dissent3=Douglas', 27 => ' |Dissent4=Fortas', 28 => ' |LawsApplied=[[Fourth Amendment of the United States Constitution|U.S. Const. amends. IV]], [[Fifth Amendment of the United States Constitution|V]], [[Sixth Amendment of the United States Constitution|VI]], [[Fourteenth Amendment of the United States Constitution|XIV]]', 29 => '}}', 30 => false, 31 => ''''''Schmerber v. California''''', {{Ussc|384|757|1966|el=no}}, was a [[List of landmark court decisions in the United States|landmark]]<ref>Aron Hogden, ''Reconciling A Split of Authority: A South Dakota Response to Recent Developments in Drunk Driving Law'', 59 {{smallcaps|S.D. L. Rev.}} 372, 373 (2014) (describing ''Schmerber v. California'' as a "landmark case"); see also Kelsey P. Black, [http://suffolklawreview.org/black-drinking-driving/# ''Undue Protection Versus Undue Punishment: Examining the Drinking & Driving Problem Across the United States''], 40 {{smallcaps|Suffolk U. L. Rev.}} 463, 469 (2007) (describing ''Schmerber v. California'' as a "watershed case" in the nation's Fourth Amendment jurisprudence).</ref> [[Supreme Court of the United States|United States Supreme Court]] case in which the Court clarified the application of the [[Fourth Amendment to the United States Constitution|Fourth Amendment]]'s protection against [[search warrant|warrantless]] searches and the [[Fifth Amendment to the United States Constitution|Fifth Amendment]] privilege against [[self-incrimination]] for searches that intrude into the human body. Until ''Schmerber'', the Supreme Court had not yet clarified whether state police officers must procure a search warrant before [[Venipuncture|taking blood samples]] from criminal suspects. Likewise, the Court had not yet clarified whether blood evidence taken against the wishes of a criminal suspect may be used against that suspect in the course of a criminal prosecution.{{refn|In 1957, the United States Supreme Court considered a similar case, ''[[Breithaupt v. Abram]]'', where police officers took blood from an unconscious patient suspected of driving under the influence of alcohol.<ref>''[[Breithaupt v. Abram]]'', {{ussc|volume=352|page=432|pin=439|year=1957}}.</ref> The Court ultimately held that the blood sample was admissible as evidence under the theory that procuring the sample did not violate [[substantive due process]].<ref>''Breithaupt'', 352 U.S. at 439.</ref> However, at the time the Court issued its ruling in ''Breithaupt'', the Fourth Amendment's [[exclusionary rule]] and the Fifth Amendment privilege against self-incrimination had not yet been [[Incorporation of the Bill of Rights|incorporated]] to the states.<ref>See ''[[Griffin v. California]]'', {{ussc|volume=380|page=609|year=1965}}; ''[[Aguilar v. Texas]]'', {{ussc|volume=378|page=108|year=1964}}; ''[[Malloy v. Hogan]]'', {{ussc|volume=378|page=1|year=1964}}.</ref>|group=fn}}', 32 => false, 33 => 'In a 5–4 opinion, the Court held that forced extraction and analysis of a blood sample is not compelled testimony; therefore, it does not violate the Fifth Amendment privilege against self-incrimination.<ref name="Schmerber v. California 1966">''Schmerber v. California'', {{ussc|volume=384|page=757|pin=765|year=1966}}.</ref> The Court also held that intrusions into the human body ordinarily require a search warrant.<ref name="Schmerber 770">''Schmerber'', 384 U.S. at 770.</ref> However, the Court ruled that the involuntary, warrantless blood sample taken in this case was justified under the Fourth Amendment's [[exigent circumstance]]s exception because evidence of blood alcohol would be destroyed by the body's natural [[metabolism|metabolic]] processes if the officers were to wait for a warrant.<ref>''Schmerber'', 384 U.S. at 770 ("in the present case, however, [the officer] 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") (internal quotations omitted).</ref> In 2013, the Supreme Court clarified in ''[[Missouri v. McNeely]]'' that the natural metabolism of alcohol in the bloodstream is not a ''[[Per se (terminology)|per se]]'' exigency that would always justify warrantless blood tests of individuals suspected of driving under the influence of alcohol.<ref>''[[Missouri v. McNeely]]'', 133 S.Ct. 1552 (2013).</ref>', 34 => false, 35 => 'In the years following the Court's decision in ''Schmerber'', many legal scholars feared the ruling would be used to limit [[civil liberties]].<ref>Kelsey P. Black, [http://suffolklawreview.org/black-drinking-driving/# ''Undue Protection Versus Undue Punishment: Examining the Drinking & Driving Problem Across the United States''], 40 {{smallcaps|Suffolk U. L. Rev.}} 463, 478–79 (2007).</ref> Other scholars, including Nita A. Farahany, Benjamin Holley, and John G. New, have suggested courts may use the ruling in ''Schmerber'' to justify the use of [[Thought identification|mind reading]] devices against criminal suspects.<ref>Nita A. Farahany, [http://www.stanfordlawreview.org/sites/default/files/Farahany-64-Stan-L-Rev-351.pdf ''Incriminating Thoughts''], 64 {{smallcaps|Stan. L. Rev.}} 351, 355 (2012); Benjamin Holley, ''It's All in Your Head: Neurotechnological Lie Detection & the Fourth & Fifth Amendments'', 28 {{smallcaps|Dev. Mental Health L.}} 1, 18 (2009); John G. New, ''If You Could Read My Mind: Implications of Neurological Evidence for Twenty-First Century Criminal Jurisprudence'', 29 {{smallcaps|J. Legal Med.}} 179, 197 (2008); cf. Kiel Brennan-Marquez, [http://yjolt.org/sites/default/files/A_Modest_Defense_of_Mind_Reading.pdf ''A Modest Defense of Mind Reading''], 15 {{smallcaps|Yale J. L. & Tech.}} 214 (2013) ("The modern era of self-incrimination jurisprudence began with ''Schmerber v. California''.").</ref> Because the Court's ruling in ''Schmerber'' prohibited the use of warrantless blood tests in most circumstances, some commentators argue that the decision was responsible for the proliferation of [[breathalyzer]]s to test for alcohol and [[urine test|urine analyses]] to test for controlled substances in criminal investigations.<ref name="John A. Scanlan 1987">See, e.g., John A. Scanlan, Jr., [http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=2090&context=ilj ''Playing the Drug-Testing Game: College Athletes, Regulatory Institutions, & the Structures of Constitutional Argument''], 62 {{smallcaps|Ind. L.J. 863, 907}} (1987); ''Commonwealth v. Brennan'', 386 Mass. 772, 776-77 (1982) (discussing impacts of the Court's ruling in ''Schmerber'' on "the breathalyzer test").</ref>', 36 => false, 37 => '==Background==', 38 => false, 39 => '=== Warrantless searches of the human body ===', 40 => '{{See also|Rochin v. California|Breithaupt v. Abram}}', 41 => 'In the 1950s, the [[Supreme Court of the United States]] issued two key rulings clarifying the constitutionality of physical intrusions into the human body by police and other government agents. In ''[[Rochin v. California]]'', police officers broke into the home of an individual suspected of selling narcotics and observed him place several small objects into his mouth.<ref name="Rochin 166">''[[Rochin v. California]]'', {{ussc|volume=342|page=165|pin=166|year=1952}}.</ref> Officers were unable to force his mouth open, so they transported him to a local hospital where his stomach was pumped against his will.<ref>''Rochin'', 342 U.S. at 166.</ref> A unanimous Supreme Court held the involuntary stomach pump was an unlawful violation of [[substantive due process]] because it "shocked the conscience", and was so "brutal" and "offensive" that it did not comport with traditional ideas of fair play and decency.<ref>''Rochin'', 342 U.S. at 172–73.</ref> In 1957, the Court held in ''[[Breithaupt v. Abram]]'' that involuntary blood samples "taken by a skilled technician" neither "shocked the conscience" nor violated [[substantive due process]].<ref>''Breithaupt'', 352 U.S. at 433–39.</ref> In ''Breithaupt'', police took a blood sample from a patient suspected of driving under the influence of alcohol while he laid unconscious in a hospital.<ref>''Breithaupt'', 352 U.S. at 433.</ref> The Court held that the blood samples were justified, in part, because "modern community living requires modern scientific methods of crime detection."<ref>''Breithaupt'', 352 U.S. at 439.</ref> Additionally, the Court mentioned in [[dicta]] that involuntary blood samples may violate the constitution if officers do not provide "every proper medical precaution" to the accused.<ref>''Breithaupt'', 352 U.S. at 438.</ref>', 42 => false, 43 => '=== Fourth Amendment exclusionary rule ===', 44 => 'Until the twentieth century, courts would admit evidence at trial even if it was seized in violation of the Fourth Amendment.<ref>See ''[[Weeks v. United States]]'', {{ussc|volume=232|page=383|pin=394–96|year=1914}}.</ref> Although the Supreme Court developed an [[exclusionary rule]] for federal cases in ''[[Weeks v. United States]]'' and ''[[Silverthorne Lumber Co. v. United States]]'',<ref>''[[Silverthorne Lumber Co. v. United States]]'', {{ussc|volume=338|page=25|year=1949}}; ''Weeks'', 232 U.S. at 394–96.</ref> the Court held in 1949 that the exclusionary rule did not [[Incorporation of the Bill of Rights|apply to the states]].<ref>''[[Wolf v. Colorado]]'', {{ussc|volume=338|page=25|year=1949}}.</ref> In ''Rochin'', the Court held that evidence obtained in a manner that "shocks the conscience" must be excluded in criminal prosecutions but the court declined to incorporate a broad exclusionary rule for all Fourth Amendment violations.<ref>E. John Wherry, Jr., ''Vampire or Dinosaur: A Time to Revisit Schmerber v. California?'', 19 {{smallcaps|Am. J. Trial Advoc.}} 503, 510 (1996) ("[The] ''Rochin'' decision applied the exclusionary rule to state courts for the first time, but only where conscience-shocking due process issues were present.").</ref> By the middle of the twentieth century, many state courts had crafted their own exclusionary rules.<ref>E. John Wherry, Jr., ''Vampire or Dinosaur: A Time to Revisit Schmerber v. California?'', 19 {{smallcaps|Am. J. Trial Advoc.}} 503, 510 (1996) ("State courts were left to fashion their own remedies for Fourth Amendment violations.").</ref> In 1955, the [[California Supreme Court]] ruled in ''People v. Cahan'' that the Fourth Amendment's exclusionary rule applied in California because it was necessary to deter constitutional violations by law enforcement.<ref>''People v. Cahan'', 44 Cal. 2d 434, 445 (1955) ("evidence obtained in violation of the constitutional guarantees is inadmissible").</ref> In 1961, the Supreme Court of the United States relied upon ''Cahan'' to hold in ''[[Mapp v. Ohio]]'' that the exclusionary rule was incorporated to the states.<ref>''[[Mapp v. Ohio]]'', {{ussc|volume=367|page=643|year=1961}}; see also E. John Wherry, Jr., ''Vampire or Dinosaur: A Time to Revisit Schmerber v. California?'', 19 {{smallcaps|Am. J. Trial Advoc.}} 503, 510 (1996) ("A closely divided United States Supreme Court, relying heavily upon ''Cahan'', voted five to four to adopt the prophylactic exclusionary rule in the landmark decision of ''Mapp v. Ohio''.").</ref>', 45 => false, 46 => '=== Arrest and prosecution ===', 47 => 'On the night of November 12, 1964, Armando Schmerber and a passenger were driving home after drinking at a tavern and bowling alley in the [[San Fernando Valley]] region of [[Los Angeles, California]] when their car skidded off the road and struck a tree.<ref>''Schmerber'' 384 U.S. at 758 n.2; see also {{smallcaps|Oyez Project}}, [http://www.oyez.org/cases/1960-1969/1965/1965_658/ ''Schmerber v. California''].</ref> Schmerber and his companion were injured in the crash and taken to a hospital for treatment.<ref>''Schmerber'', 384 U.S. at 758 n.2 (1966).</ref> When investigating police officers arrived at the hospital, they asked Schmerber to submit a sample of his blood, but Schmerber refused.<ref>''Schmerber'', 384 U.S. at 758–59.</ref> Although they did not possess a [[search warrant]], officers instructed attending physicians to take a blood sample from Schmerber.<ref>''Schmerber'', 384 U.S. at 758.</ref> The blood sample indicated that Schmerber was intoxicated, and he was placed under arrest.<ref name="Schmerber 759">''Schmerber'', 384 U.S. at 759.</ref> The blood sample was ultimately admitted into evidence at trial, and Schmerber was convicted for driving under the influence of intoxicating liquors.<ref>''Schmerber'', 384 U.S. at 758–59; see also California Vehicle Code § 23102(a).</ref> Schmerber objected to the admissibility of the blood sample, claiming that the police violated his rights to [[due process]], his privilege against [[self-incrimination]], his [[right to counsel]], and his right not to be subjected to [[Search and seizure|unreasonable searches and seizure]]s.<ref name="Schmerber 759"/> The Appellate Department of the California Superior Court rejected Schmerber's arguments, and the California District Court of Appeal declined to review his case.{{refn|In 1957, the California Supreme Court held in ''People v. Duroncelay'' that warrantless, involuntary blood samples taken from an individual suspected of driving under the influence of alcohol do not violate the constitution and may be admitted into evidence at trial.<ref>''People v. Duroncelay'', 48 Cal.2d 766 (1957).</ref>|group=fn}}<ref>''Schmerber'', 384 U.S. at 759, 759 n.3.</ref>', 48 => false, 49 => '=== Arguments before the Court ===', 50 => '{{quote box|align=right|width=30em|quote="I think it follows if this Court holds that it's proper to withdraw the blood that is certainly just as proper to inject the [[Nalline]] if we're looking at the welfare of society and how we want to keep [[narcotic]] users off the street."|source=—Thomas M. McGurrin, [[Lawyer|counsel]] for Armando Schmerber, during oral argument at the Supreme Court of the United States<ref name = Oyez>{{smallcaps|Oyez Project}}, [http://www.oyez.org/cases/1960-1969/1965/1965_658/ ''Schmerber v. California''].</ref>}}', 51 => 'Schmerber submitted an appeal to the Supreme Court of the United States, which granted certiorari on January 17, 1966.<ref>''Schmerber v. California'', {{ussc|volume=382|page=971|year=1966}}.</ref> In his brief, Schmerber argued, ''[[inter alia]]'', that the warrantless blood test violated his Fourth Amendment right to be free from unlawful searches and seizures, as well as his Fifth Amendment privilege against self-incrimination.{{refn|In his brief, Schmerber also relied upon ''[[Wong Sun v. United States]]'', {{ussc|volume=371|page=471|year=1963}}, to argue that testimonial evidence discovered as a result of an unlawful search should be excluded as [[exclusionary rule|"fruit of the poisonous tree."]]<ref name="Petitioner, Schmerber v 1966">Brief for Petitioner, ''Schmerber v. California'', 384 U.S. 757 (U.S., 1966).</ref>|group=fn}}<ref name="Petitioner, Schmerber v 1966"/> The [[Los Angeles City Attorney]]'s office represented the State of California on appeal.<ref name = Respondent>Brief for Respondent, ''Schmerber v. California'', 384 U.S. 757 (U.S., 1966).</ref> In their brief, the City Attorney argued that the blood test did not violate the Fourth Amendment because the seizure was conducted [[searches incident to a lawful arrest|incident to a lawful arrest]].<ref name = Respondent/> The City Attorney also argued that admitting the sample into evidence did not violate Schmerber's Fifth Amendment right against self-incrimination because blood is not testimonial evidence under the Fifth Amendment.<ref name = Respondent/> Oral arguments were held on April 25, 1966, and the Court issued its opinion on June 20, 1966.<ref name = Oyez/>', 52 => false, 53 => '==Opinion of the Court==', 54 => '[[File:US Supreme Court Justice William Brennan - 1976 official portrait.jpg|thumb|upright=1|right|In his majority opinion, Justice [[William J. Brennan, Jr.]] emphasized that "[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State."<ref>''Schmerber'', 384 U.S. at 767.</ref>]]', 55 => 'In his majority opinion, [[Associate Justice of the United States Supreme Court|Justice]] [[William J. Brennan, Jr.]] held that Schmerber's constitutional rights were not violated when police took his blood without his consent. Relying upon the Court's holding in ''Breithaupt v. Abram'', he concluded that the police did not violate Schmerber's Fifth Amendment right against self-incrimination because the extraction and chemical analysis of the blood sample did not involve "even a shadow of testimonial compulsion."<ref>''Schmerber'', 384 U.S. at 765.</ref> Likewise, Justice Brennan held that the officers did not violate Schmerber's Fourth Amendment right against unreasonable seizures. Justice Brennan wrote that absent exigent circumstances, searches that involve intrusions into the human body require a search warrant.<ref name="Schmerber 770"/> Here, the search was not justified as a search incident to arrest because weapons and contraband are not ordinarily concealed beneath the skin.<ref>''Schmerber'', 384 U.S. at 769–70.</ref> However, the involuntary blood draw was justified under the Fourth Amendment's exigent circumstances exception because if the officers had waited to receive a search warrant, evidence of intoxication would have been lost through the body's natural metabolism of alcohol in the bloodstream.<ref>''Schmerber'', 384 U.S. at 771–72.</ref> He wrote that the responding officer "might reasonably have believed that he was confronted with an emergency," where evidence would be destroyed if he waited to receive a warrant.<ref name="Schmerber 770"/> Additionally, Justice Brennan cautioned that the Court's ruling was limited "only to the facts of the present record" and that "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."<ref>''Schmerber'', 384 U.S. at 772.</ref>', 56 => false, 57 => '===Justice Harlan's concurrence===', 58 => 'In his concurring opinion, Justice [[John Marshall Harlan II]] agreed that the involuntary blood sample did not implicate involuntary testimonial compulsion, but wrote separately to emphasize his opinion that the case before the Court "in no way implicates the Fifth Amendment."<ref>''Schmerber'', 384 U.S. at 772 (Harlan, J., concurring).</ref> Additionally, Justice Harlan cited to his dissent in ''[[Miranda v. Arizona]]'' where he argued against a broad expansion of the Fifth Amendment privilege against self-incrimination. Justice Harlan disagreed with the Court's ruling in ''Miranda'' and even stated that the case "represents poor constitutional law and entails harmful consequences for the country at large."<ref>''[[Miranda v. Arizona]]'', {{ussc|volume=384|page=436|pin=504|year=1966}}.</ref>', 59 => false, 60 => '===Dissenting opinions===', 61 => '[[File:Justice William O Douglas.jpg|thumb|upright=1|right|In his dissenting opinion, Justice [[William O. Douglas]] wrote that involuntary blood samples violate the right to privacy enumerated in ''[[Griswold v. Connecticut]]''.<ref name = Douglas779>''Schmerber'', 384 U.S. at 779 (Douglas, J., dissenting).</ref>]]', 62 => 'All four dissenting Justices wrote separate dissenting opinions in ''Schmerber''. [[Chief Justice of the United States Supreme Court|Chief Justice]] [[Earl Warren]] reiterated his dissenting opinion in ''Breithaupt v. Abram'', where he argued that involuntary blood samples violate substantive due process.<ref>''Schmerber'', 384 U.S. at 772 (Warren, C.J., dissenting) (citing ''Breithaupt'', 352 U.S. at 442 (Warren, C.J., dissenting)).</ref> Justice [[Hugo Black]] authored an impassioned dissent in which he argued that the officers violated Schmerber's privilege against self-incrimination.<ref name = Black778>''Schmerber'', 384 U.S. at 778 (Black, J., dissenting).</ref> He wrote, "[b]elieving with the Framers that these constitutional safeguards broadly construed by independent tribunals of justice provide our best hope for keeping our people free from governmental oppression, I deeply regret the Court's holding."<ref name = Black778/> Justice [[William O. Douglas]] also reiterated his dissent in ''Breithaupt v. Abram'', but added that physical invasions into the human body violate the right to privacy enumerated in ''[[Griswold v. Connecticut]]'' and that "[n]o clearer invasion of this right of privacy can be imagined than forcible bloodletting of the kind involved here."<ref name = Douglas779/> Finally, Justice [[Abe Fortas]] wrote that the involuntary blood sample was an act of violence that violated substantive due process and that states may not resort to acts of violence when prosecuting crimes.<ref>''Schmerber'', 384 U.S. at 779 (Fortas, J., dissenting).</ref>', 63 => false, 64 => '==Subsequent developments==', 65 => 'In the 1970s and 1980s, the Supreme Court revisited questions about the constitutionality of involuntary bodily intrusions in several key cases. In 1973, the Court ruled in ''[[Cupp v. Murphy]]'' that the police were permitted to extract a tissue sample from underneath a suspect’s fingernails to recover "evanescent" physical evidence.<ref>''[[Cupp v. Murphy]]'', {{ussc|volume=412|page=291|pin=296|year=1973}}.</ref> The suspect in ''Cupp'' was suspected of strangling his wife and voluntarily went to a police station to answer questions.<ref name="Cupp 292">''Cupp'', 412 U.S. at 292.</ref> Officers noticed bloodstains under the suspect’s fingernails and detained him, but did not place him under arrest.<ref name="Cupp 292"/> Against the suspect’s wishes, the police scraped out a tissue sample from under his fingernails to retrieve the evidence.<ref name="Cupp 292"/> The biological material found under the suspect’s fingernails was later found to have come from the victim.<ref name="Cupp 292"/> Citing ''Schmerber'', the Court held that this warrantless search was justified under the exigent circumstances exemption of the Fourth Amendment because the search was necessary to preserve the “highly evanescent evidence” under the defendant’s fingernails.<ref>''Cupp'', 412 U.S. at 296.</ref>', 66 => false, 67 => 'Twelve years later, the Court again revisited the topic of involuntary bodily intrusions in ''[[Winston v. Lee]]'', where the Court held that the State of [[Virginia]] could not force an individual to undergo surgery to extract a bullet that may be evidence of a crime.<ref>''[[Winston v. Lee]]'', {{ussc|volume=470|page=753|pin=767|year=1985}}.</ref> The Court applied its previous holding in ''Schmerber'' to conclude that the surgery would constitute an unreasonable search under the Fourth Amendment and that a crucial factor for evaluating any bodily intrusion "is the extent to which the procedure may threaten the safety or health of the individual."<ref>''Winston'', 470 U.S. at 761, 762–63.</ref> Writing for the Court's majority, Chief Justice [[Warren E. Burger]] concluded that forcing a patient to undergo major surgery intrudes too far upon individual privacy rights and that surgical intrusions "can only be characterized as severe."<ref>''Winston'', 470 U.S. at 766.</ref>', 68 => false, 69 => 'In 1989, the Court ruled in ''[[Skinner v. Railway Labor Executives Ass'n|Skinner v. Railway Labor Executives’ Association]]'' that warrantless blood tests of railroad employees were reasonable under the Fourth Amendment.<ref>''[[Skinner v. Railway Labor Executives Ass'n]]'', {{ussc|volume=489|page=602|pin=624|year=1989}}.</ref> The Court reaffirmed that the “compelled intrusio[n] into the body for blood to be analyzed for alcohol content” is a search under the Fourth Amendment,<ref>''Skinner'', 489 U.S. at 616 (internal quotations omitted).</ref> but that warrantless blood tests of railroad employees were necessary to "prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.”<ref>''Skinner'', 489 U.S. at 620–21 (citing 49 CFR § 219.1(a) (1987)).</ref> The Court also concluded that when individuals “participate in an industry that is regulated pervasively to ensure safety,” these individuals “have a reduced expectation of privacy.”<ref>''Skinner'', 489 U.S. at 627.</ref> Because these employees had a "diminished expectation of privacy," the warrantless blood tests were permissible.<ref>''Skinner'', 489 U.S. at 628.</ref> Justice [[Thurgood Marshall]] and Justice Brennan wrote a dissenting opinion in which they argued that this case was distinguishable from ''Schmerber'' because "no such exigency prevents railroad officials from securing a warrant before chemically testing the samples they obtain."<ref>''Skinner'', 489 U.S. at 642 (Marshall, J., dissenting).</ref>', 70 => false, 71 => '===''South Dakota v. Neville'' and self-incrimination===', 72 => '{{See also|South Dakota v. Neville}}', 73 => '[[File:US Supreme Court Justice John Paul Stevens - 1976 official portrait.jpg|thumb|upright=1|In his dissenting opinion in ''[[South Dakota v. Neville]]'', Justice [[John Paul Stevens]] wrote that ''Schmerber'' intended to adopt a broad and liberal interpretation of the Fifth Amendment privilege against self-incrimination.<ref>''[[South Dakota v. Neville]]'', {{ussc|volume=459|page=553|pin=570|year=1983}} (Stevens, J., dissenting) ("[T]his Court's opinion in Schmerber v. California [citations] had assumed that the Fifth Amendment should be construed as broadly as the more liberal state language.").</ref>]]', 74 => 'After the Court issued its decision in ''Schmerber'', a split of authority emerged in lower courts with regard to whether the Fifth Amendment's privilege against self-incrimination prohibited the use of a suspect's refusal to submit to a blood test as evidence of guilt.<ref>''Neville'', 459 U.S. at 558 ("we granted certiorari to resolve the conflict").</ref> The United States Supreme Court resolved this split in authority in ''[[South Dakota v. Neville]]'', where the Court held that prosecutors could use a suspect's refusal to submit to a blood test as evidence of guilt, and the introduction of this evidence at trial does not violate the suspect's Fifth Amendment privilege against self-incrimination.<ref>''Neville'', 459 U.S. at 561–62.</ref> Writing for the Court's majority, Justice [[Sandra Day O'Connor]] concluded that "the state did not directly compel respondent to refuse the test" and that a "simple blood-alcohol test is so safe, painless, and commonplace" a suspect would not feel coerced to refuse the test.<ref>''Neville'', 459 U.S. at 562–63.</ref> Justice [[John Paul Stevens]] wrote a dissenting opinion, joined by Justice [[Thurgood Marshall]], in which he argued that the Court in ''Schmerber'' intended to adopt a broad and liberal interpretation of the Fifth Amendment privilege against self-incrimination.<ref>''Neville'', 459 U.S. at 570 (Stevens, J., dissenting).</ref>', 75 => false, 76 => '===''Missouri v. McNeely'' and the exigent circumstances exception===', 77 => '{{See also|Missouri v. McNeely}}', 78 => 'Over time, a split of authority grew among lower courts with regard to whether the Fourth Amendment's exigent circumstances exception allowed officers to ''always'' conduct warrantless blood tests on individuals suspected of driving under the influence of alcohol because evidence of alcohol was being destroyed by the body's natural metabolic processes.<ref>''McNeely'', 133 S. Ct. at 1558 (discussing split of authority).</ref> States that recognized this ''[[Per se (terminology)|per se]]'' exigency argued that "[o]nce police arrest a suspect for drunk driving, each passing minute eliminates probative evidence of the crime."<ref>''McNeely'', 133 S. Ct. at 1575 (Thomas, J., dissenting).</ref> In 2012, the Court granted review in ''[[Missouri v. McNeely]]'' to resolve this question.<ref>''McNeely'', 133 S.Ct. at 1552 (2013) ("[w]e granted certiorari to resolve a split of authority on the question").</ref> In a 5–4 opinion, the Court rejected the theory that the natural dissipation of blood alcohol constituted a ''per se'' exigency.<ref>''McNeely'', 133 S. Ct. at 1558, 1568.</ref> Instead, the court affirmed the basic principle from ''Schmerber'' that absent "an emergency that justifie[s] acting without a warrant," police may not conduct warrantless blood testing on suspects.<ref>''McNeely'', 133 S. Ct. at 1559.</ref> Consequently, exigency in drunk driving cases "must be determined case by case based on the [[totality of the circumstances]]."<ref>''McNeely'', 133 S. Ct. at 1556.</ref>', 79 => false, 80 => '==Analysis==', 81 => 'Scholars have described ''Schmerber v. California'' as a [[landmark case]]<ref>Aron Hogden, ''Reconciling A Split of Authority: A South Dakota Response to Recent Developments in Drunk Driving Law'', 59 {{smallcaps|S.D. L. Rev.}} 372, 373 (2014) (describing ''Schmerber v. California'' as a "landmark case"); Michael A. Sabino & Anthony Michael Sabino, ''Warrantless Blood Tests, Drunk Driving, & "Exigent Circumstances": Preserving the Liberty Guarantee of the Fourth Amendment While Evolving the Exceptions to the Warrant Requirement'', 34 {{smallcaps|Rev. Litig.}} 27, 68 (2015) (same); Floralynn Einesman, ''Vampires Among Us – Does A Grand Jury Subpoena for Blood Violate the Fourth Amendment?'', 22 {{smallcaps|Am. J. Crim. L.}} 327, 328 (1995) (same); H. Richard Uviller, [http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6653&context=jclc ''Self-Incrimination by Inference: Constitutional Restrictions on the Evidentiary Use of A Suspect's Refusal to Submit to A Search''], 81 {{smallcaps|J. Crim. L. & Criminology}} 37, 76 (1990) (discussing "Justice Brennan's landmark pronouncement in ''Schmerber v. California''").</ref> and a "watershed moment" in the history of Fourth Amendment jurisprudence.<ref>Kelsey P. Black, [http://suffolklawreview.org/black-drinking-driving/# ''Undue Protection Versus Undue Punishment: Examining the Drinking & Driving Problem Across the United States''], 40 {{smallcaps|Suffolk U. L. Rev.}} 463, 469 (2007).</ref> Likewise, John D. Castiglione described the case as "seminal for its place in the annals of Fifth Amendment jurisprudence."<ref>John D. Castiglione, [http://wayback.archive.org/web/20141023162524/http://wisconsinlawreview.org/wp-content/files/1-Castiglione.pdf ''Human Dignity Under the Fourth Amendment''], 2008 {{smallcaps|Wis. L. Rev.}} 655, 682 (2008).</ref> Constitutional law scholar [[Akhil Reed Amar]] identified ''Schmerber'' as a turning point in the Fifth Amendment's "distinction between words and physical evidence."<ref>Akhil Reed Amar & Renee B. Lettow, [http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1957&context=fss_papers ''Fifth Amendment First Principles: The Self-Incrimination Clause''], 93 {{smallcaps|Mich. L. Rev.}} 857, 885 (1995).</ref> Anne Marie Schubert has also argued that ''Schmerber'' served as the genesis for a long line of Supreme Court cases ordering the compelled production of physical evidence.<ref>Anne Marie Schubert, ''Compelled Consent to Release of Foreign Records-Taking the Fifth:'' Doe v. United States, 23 {{smallcaps|U.S.F. L. Rev.}} 291, 297 (1989).</ref> Because ''Schmerber'' foreclosed the use of warrantless blood tests in most circumstances, some scholars, including John A. Scanlan, argue that the Court's ruling was responsible for the proliferation of [[breathalyzer]]s to test for alcohol and [[urine test|urine analysis]] to test for controlled substances in criminal investigations.<ref name="John A. Scanlan 1987"/>', 82 => false, 83 => '===Immediate reaction===', 84 => 'Soon after the Court's ruling, analysts predicted that the effects of the case would be "far-reaching."<ref>Wendell J. Willmore, ''The Implications of'' Schmerber v. California, 9 {{smallcaps|A.F.L. Rev.}} 26, 27 (1967).</ref> Some analysts feared the ruling would be used to justify "other intrusive searches."<ref>''Intrusive Border Searches – Is Judicial Control Desirable?'', 115 {{smallcaps|U. Pa. L. Rev.}} 276, 283 (1966).</ref> Other commentators also observed that the Court's holding in ''Schmerber'' seemed to "reverse direction" from the court's decision in ''[[Miranda v. Arizona]]'' one week earlier, where the Court enlarged protections against the police for criminal suspects.<ref>See, e.g., Wendell J. Willmore, ''The Implications of'' Schmerber v. California, 9 {{smallcaps|A.F.L. Rev.}} 26, 26 (1967).</ref> However, in his assessment of ''Schmerber'', Charles L. Berry praised the decision as a "successful effort to find a practical solution to the problem of the drinking motorist."<ref>Charles L. Berry, ''Constitutional Law Compulsory Blood Tests Do Not Violate Fifth Amendment Privilege Against Self-Incrimination or Fourth Amendment Prohibition Against Unreasonable Search & Seizure:'' Schmerber v. California, 384 U.S. 757, 44 {{smallcaps|Tex. L. Rev.}} 1616, 1621 (1966).</ref> Additionally, many [[law journals]] also offered commentary of the case's significance. For example, a November 1966 article in the ''[[Harvard Law Review]]'' opined that Justice Brennan's majority opinion was "a good exposition of his view of the interrelationship between the fourth and fifth amendments,"<ref>Stephen J. Friedman, [http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1295&context=lawfaculty ''Mr. Justice Brennan: The First Decade''], 80 {{smallcaps|Harv. L. Rev.}} 7, 11 (1966).</ref> and a February 1967 article in the ''[[Texas Law Review]]'' argued that ''Schmerber'' "exemplifies the proposition that the fifth amendment is not absolute."<ref>Charles T. Newton, Jr., ''The Mere Evidence Rule: Doctrine or Dogma?'', 45 {{smallcaps|Tex. L. Rev.}} 526, 552 (1967).</ref>', 85 => false, 86 => '===Impact===', 87 => 'Some legal scholars have criticized the Court's ruling in Schmerber for infringing too far upon [[civil liberty]] and privacy.<ref>See, e.g., Kelsey P. Black, [http://suffolklawreview.org/black-drinking-driving/# ''Undue Protection Versus Undue Punishment: Examining the Drinking & Driving Problem Across the United States''], 40 {{smallcaps|Suffolk U. L. Rev.}} 463, 478–79 (2007); E. John Wherry, Jr., ''Vampire or Dinosaur: A Time to Revisit Schmerber v. California?'', 19 {{smallcaps|Am. J. Trial Advoc.}} 503 (1996).</ref> E. John Wherry, Jr., former Dean of the [[Dwayne O. Andreas School of Law|University of Orlando School of Law]], wrote that "[b]lindly following ''Schmerber'' as authorization for all non-consensual blood seizure for forensic purposes is, in this day and age, an outrage."<ref>E. John Wherry, Jr., ''Vampire or Dinosaur: A Time to Revisit Schmerber v. California?'', 19 {{smallcaps|Am. J. Trial Advoc.}} 503, 540 (1996).</ref> Writing for the ''Notre Dame Law Review'', Blake A. Bailey, Elaine M. Martin, and Jeffrey M. Thompson observed that although the Court limited the holding in ''Schmerber'' to the facts of the case, prior to ''Winston v. Lee'', many lower courts relied upon the ruling to order criminal defendants to undergo surgery to remove bullets that may have been evidence of a crime.<ref>Blake A. Bailey, et al., [http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=2309&context=ndlr ''Criminal Law – ''Lee v. Winston'': Court-Ordered Surgery & the Fourth Amendment-A New Analysis of Reasonableness?''], 60 {{smallcaps|Notre Dame L. Rev.}} 149, 152 (1984).</ref> Other scholars have expressed concern that the Court's decision to exclude physical evidence from protections against self-incrimination may one day lead to the use of [[Thought identification|mind reading]] devices when prosecuting criminal suspects.<ref>Nita A. Farahany, [http://www.stanfordlawreview.org/sites/default/files/Farahany-64-Stan-L-Rev-351.pdf ''Incriminating Thoughts''], 64 {{smallcaps|Stan. L. Rev.}} 351, 355 (2012); cf. Kiel Brennan-Marquez, [http://yjolt.org/sites/default/files/A_Modest_Defense_of_Mind_Reading.pdf ''A Modest Defense of Mind Reading''], 15 {{smallcaps|Yale J. L. & Tech.}} 214 (2013).</ref> For example, the ''[[Harvard Law Review]]'' suggested that the Court's decision may be used to justify monitoring brain waves.<ref>[http://www.jstor.org/stable/1339322 ''Anthropotelemetry: Dr. Schwitzgebel's Machine''], 80 {{smallcaps|Harv. L. Rev.}} 403, 409 (1966).</ref> Additionally, in an article in the journal ''Developments in Mental Health Law'', Benjamin Holley suggested that "neurotechnological lie detection" could be used in criminal prosecutions, as long as a suspect's words are not "linked with the physical manifestations sought to be introduced at trial."<ref>Benjamin Holley, ''It's All in Your Head: Neurotechnological Lie Detection & the Fourth & Fifth Amendments'', 28 {{smallcaps|Dev. Mental Health L.}} 1, 18 (2009).</ref> Likewise, in an article in the ''Journal of Legal Medicine'', John G. New suggested that non-testimonial evidence gathered from [[electroencephalography]] or [[magnetic resonance imaging]] may be admissible to demonstrate a suspect's thoughts.<ref>John G. New, ''If You Could Read My Mind: Implications of Neurological Evidence for Twenty-First Century Criminal Jurisprudence'', 29 {{smallcaps|J. Legal Med.}} 179, 197 (2008).</ref>', 88 => false, 89 => '==See also==', 90 => '* [[List of United States Supreme Court cases, volume 384]]', 91 => '* [[List of United States Supreme Court cases by the Warren Court]]', 92 => false, 93 => '==Notes==', 94 => '{{Reflist|group=fn}}', 95 => false, 96 => '==References==', 97 => 'The citations in this Article are written in [[Bluebook]] style.', 98 => '{{reflist|30em}}', 99 => false, 100 => '==External links==', 101 => '{{Wikisource}}', 102 => '* {{caselaw source', 103 => '| case =''Schmerber v. California''', 104 => '| findlaw =http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=384&page=757', 105 => '| justia =http://supreme.justia.com/us/384/757/case.html', 106 => '| other_source1 =Food and Drug Administration', 107 => '| other_url1 =http://www.fda.gov/ohrms/DOCKETS/dockets/04p0349/04p-0349-ref0001-79-Tab-75-Schmerber-v-California-384-US-757-(1966)-vol7.pdf', 108 => '}}', 109 => false, 110 => '[[Category:United States Supreme Court cases]]', 111 => '[[Category:United States Fourth Amendment case law]]', 112 => '[[Category:United States Fifth Amendment self-incrimination case law]]', 113 => '[[Category:1966 in United States case law]]', 114 => '[[Category:1966 in California]]', 115 => '[[Category:Legal history of California]]', 116 => '[[Category:United States Supreme Court cases of the Warren Court]]', 117 => '[[Category:Blood tests]]' ]