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Blank v. State5/19/2000
consent to obtain a blood sample. Layland declined that request. Although the police had probable cause to arrest Layland for negligent homicide arising out of the accident, they did not arrest him. Instead, the police seized a blood sample from Layland without a warrant. Our supreme court held that the warrantless seizure of Layland's blood was unconstitutional under both the federal and the state constitutions.
In Schmerber v. California, the Supreme Court held that a warrant was not required to seize blood from a driver under arrest for driving while intoxicated. On first blush, it appeared that the Supreme Court held that the search was justified because it was incident to Schmerber's arrest. Besides the seeming requirement of an arrest, the Supreme Court required that the police have "clear indication" that the seizure of blood would provide evidence, and required that the police reasonably believe that there was an emergency because the evidence would be lost if the search was delayed for the time needed to obtain a warrant. In Layland, the Alaska Supreme Court followed Schmerber and interpreted the Alaska search and seizure clause, article I, section 14, to permit a warrantless seizure of blood only if a suspect had been arrested and only if there were exigent circumstances justifying the search.
But later cases cast doubt on our supreme court's interpretation of Schmerber. It now appears that the Fourth Amendment permits a warrantless search of a suspect who has not been arrested if the police have (1) probable cause to believe that the suspect committed a crime; (2) probable cause to believe that a search of the suspect's person would produce evidence; and (3) there are exigent circumstances requiring immediate action. In Cupp v. Murphy, the Supreme Court approved the warrantless seizure of scrapings from under a suspect's fingernails. The suspect was not under arrest and was not arrested after the police completed the search. The Court assumed that there was probable cause that the suspect had committed a homicide by strangling the victim with his hands and found that exigent circumstances justified the immediate seizure of the fingernail scrapings because the suspect had been alerted to the police interest in the evidence and the evidence may have been destroyed if the police did not act. Furthermore, in Winston v. Lee, the Supreme Court discussed Schmerber and stated: "Because [Schmerber] fell within the exigent-circumstances exception to the warrant requirement, no warrant was necessary." No mention was made in Winston that an arrest was required. And, in U.S. v. Chapel, an en banc panel of the Ninth Circuit held that the Fourth Amendment does not require the police to arrest a motorist suspected of driving while intoxicated before the motorist's blood could be seized without a warrant. As long as the warrantless seizure meets the other requirements of Schmerber ((1) the police must have probable cause to believe that the suspect was driving while intoxicated; (2) the police must reasonably believe there is an emergency in which the delay in obtaining a warrant threatens the loss of evidence; (3) the procedure to obtain the evidence must be reasonable), the seizure is authorized under the Fourth Amendment.
This approach is endorsed by Professor LaFave in his treatise on the Fourth Amendment: " he better view is . . . that a 'warrantless search is proper if the officer had probable cause to believe that a crime had been committed and probable cause to believe that evidence of the crime in question will be found' and that 'an immediate, warrantless search is necessary in order to . . . prevent the destruction or loss of evidence.'"
Nonetheless, although the Fou
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