YOU, MR. CHIEF JUSTICE, AND MAY IT PLEASE THE COURT: IN THE COURSE OF A DRUNK DRIVING INVESTIGATION QUICKLY SECURING BLOOD ALCOHOL EVIDENCE WITH AS LITTLE...

HONOR. >> I THINK

BACK IN 2003 THERE WAS AN APPELLATE COURT CASE FROM MISSOURI THAT DEALT WITH THE IMPORTANCE OF THE WORDS -- >> NO, NO, I UNDERSTAND WHY

IGNORES THE FACT THAT HAD HE SOUGHT A WARRANT, NO QUESTION THAT HE WOULD HAVE BEEN ABLE TO SECURE A WARRANT. THE ISSUE WAS IT WAS GOING TO TAKE A CONSIDERABLE...

HONOR. >> AND HE DIDN'T TESTIFY TO

PARTICULAR CASE IT WAS GOING TO TAKE 90 MINUTES TO TWO HOURS TO SECURE THE WARRANT. AND DURING THAT PERIOD OF TIME, THE MOST PROBATIVE EVIDENCE WAS...

JUSTICE GINSBURG. HE NEVER HAD A PROBLEM SECURING A WARRANT, BUT THERE WAS A DELAY. AND THAT'S THE DIFFERENCE. WE'RE LOOKING AT A DELAY AND QUICKLY...

JUSTICE SOCIETY MY OR YOUR, I THINK THAT -- SOTOMAYOR, I THINK THAT IS SOMETHING WE SHOULD ALWAYS STRIVE FOR, TO BE ABLE TO GET THE BEST POSSIBLE EVIDENCE...

WELL -- >> THAT IT HAS TO GET

FOURTH AMENDMENT ANALYSIS IS THE REASONABLENESS OF THE SEARCH. >>

I WOULD DISAGREE WITH THAT. IF THE COURT RULES IN OUR FAVOR, I THINK THE END RESULT WILL BE MORE PEOPLE WILL AGREE TO TAKE THE BREATHALYZER TEST. IN...

PRACTICAL -- >> WHAT IS THE

TESTS ARE VERY RELIABLE. WE RELY ON THE BREATHALYZER TESTS ON A DAILY BASIS, BUT FOR PRACTICAL REASONS IT'S VERY DIFFICULT TO FORCE A DRUNK DRIVER...

AS THE RESPONDENT POINTS OUT, THERE ARE 25 STATES THAT WOULD BE OPPOSED TO THE WARRANTLESS BLOOD DRAW IN THIS CASE. AND AS I POINT OUT IN THE REPLY ...

ANYWAY. >> AND -- >> AND IF WE SEE

BELIEVE IT DOES, JUSTICE KENNEDY. I THINK AS VIRGINIA V. MOORE PLAINLY TEACHES, INDIVIDUAL STATE LAWS DO NOT EFFECT WHETHER OR NOT THIS ACTIVITY WAS...

THINK THIS COURT'S DECISION IN SAMPSON V. CALIFORNIA IS INSTRUCT I. IN THAT PARTICULAR CASE THE COURT APPROVES SUSPICIONLESS SEARCHES, AND I THINK A...

THAT IS A POSSIBILITY, JUSTICE SCALIA. >> ANY ISSUE IN THE

I THINK THE NATIONAL DISTRICT ATTORNEYS' ASSOCIATION CITED A STUDY. I KNOW THE RESPONDENT ALSO CITED A STUDY THAT SHOWS IT'S, IT DOESN'T HAVE ANY BEARING....

NO. JUSTICE SOTOMAYOR, I THINK AS LONG AS A POLICE OFFICER HAS PROBABLE CAUSE, WHAT WE'RE SAYING IS IT'S OBJECTIVELY -- >> PROBABLE CAUSE IS NOT

ABSOLUTELY RIGHT, JUSTICE GINSBURG. PROBABLE CAUSE IS NOT ENOUGH. BUT PROBABLE CAUSE COUPLED WITH THE INDISPUTABLE FACT THAT ALCOHOL IS ELIMINATED FROM...

PARTICULAR JURISDICTION HAD PERFECTED THE WARRANT PROCESS TO THE POINT WHERE THEY COULD ROUTINELY OBTAIN SEARCH WARRANTS IN 15 MINUTES, I THINK WE WOULD...

IN PRACTICAL APPLICATION IT IS GOING TO BE MORE OF A TIME-CONSUMING PROCESS, THOUGH, TO OBTAIN THE SEARCH -- >> WHY WOULDN'T IT TAKE,

SEARCH WARRANT -- >> YOU DO JUST WHAT I SAID,

THAT'S WHY I DREW THE ANALOGY BETWEEN THE TELEPHONIC SEARCH WARRANTS THAT WERE APPROVED BACK IN THE 1970s. IT SOUNDS LIKE THAT WOULD BE AN INSTANTANEOUS...

IS ABSOLUTELY -- >> IS THAT THE

THAT IS THE CASE IN MISSOURI. >> AND IN SOME

RIGHT, MR. CHIEF JUSTICE. I THINK IF WE WERE TO THE POINT WHERE WE WERE APPROVING SEARCH WARRANTS IN THREE MINUTES, IT WOULD ESSENTIALLY BE A RUBBER...

JUSTICE -- >>

DIFFERENT CASE. I'M WONDERING WHERE YOU WOULD DRAW THE LINE. >>

OF THE SEARCH WARRANT SUGGEST THERE'S A CONSTITUTIONAL RIGHT, SUGGEST THAT WE SHOULD JUDGE REASONABLENESS BY THE PEOPLE WHO ARE THE LEAST EFFICIENT...

POLICE JURISDICTIONS. >> AND, OF

ABSOLUTELY. BUT SHOULD THEY, SHOULD WE PERMIT THEM TO VARY IN TERMS OF INEFFICIENCY, OR SHOULD WE BE ENCOURAGING THEM TO VARY WITHIN A REASONABLE...

YEAH. MEMBERS OF THE COURT HAVE INTRUDED ON YOUR REBUTTAL TIME, INCLUDING ME, SO WE'LL GIVE YOU A LITTLE EXTRA. >> THANK

IT PLEASE THE COURT, HERE THE POLICE ARE FACING THE CERTAIN DESTRUCTION OF CRITICAL BLOOD ALCOHOL EVIDENCE. EVERY MINUTE COUNTS, AND IT'S REASONABLE...

THINK THAT THAT'S TRUE AT ALL. THE POLICE DO NOT -- >> YOU MEAN SOMEBODY

THE WORLD CHANGED SO THAT EVERY POLICE OFFICER HAD AN iPAD AND JUDGES WERE ALWAYS ON DUTY AND THAT WARRANTS COULD BE GOTTEN THAT QUICKLY, YOU WOULD...

RIGHT? >> RIGHT. BUT THE TOTALITY OF THE CIRCUMSTANCES ARE WITH RESPECT TO THE DESTRUCTION OF EVIDENCE AND WHAT THE POLICE ARE WITNESSING. THEY KNOW...

THERE ARE LEGAL PROBLEMS WITH THAT AND PRACTICAL PROBLEMS WITH THAT. THE LEGAL PROBLEMS, THE COURT HAS NEVER SUGGESTED THE POLICE REQUIRE A WARRANT --...

CIRCUMSTANCE. >> RIGHT. I MEAN, IN ALL OF THE DESTRUCTION OF EVIDENCE CASES, THE COURT HAS SAID IF THERE'S DESTRUCTION OF EVIDENCE, WE'RE NOT GOING TO...

MINUTES. >> RIGHT. AND WHAT I'M SAYING IS AS A PRACTICAL MATTER, I THINK IT WOULD BE VERY DIFFICULT TO SUSPECT THAT NATIONWIDE FOLKS COULD GET WARRANTS...

WELL, A COUPLE OF RESPONSES. FIRST OF ALL, THIS COURT MAKES NATIONWIDE RULES, AND THE QUESTION IS WHETHER IT'S REASONABLE TO DO IT IN MISSOURI OR HERE...

THINK IT MATTERS -- >> WE LOOK AT IT ALL THE

A GENERAL MATTER WHETHER WARRANTS TAKE TIME TO GET AND WHETHER EVIDENCE IS LOST, BUT THE COURT HAS NEVER SECOND GUESSES THE POLICE IN THE WAY THE COURT...

IT CORRECTLY, I THINK OUR POINT IS THIS, WHICH IS THAT THE POLICE OFFICERS HAVE TO ACT REASONABLY IN THE SITUATION. IN THE SITUATION THEY KNOW FOR ...

WE DISAGREE. THIS EVIDENCE IS CRITICAL, AND THE NUMBER MATTERS. I MEAN, IT IS THE CASE THAT BLOOD ALCOHOL EVIDENCE IS THE MOST IMPORTANT EVIDENCE. THIS...

OF TWO HOURS, BUT THAT WAS NOT A CRITICAL PORTION OF ITS ANALYSIS. WE DON'T THINK THAT MATTERED BECAUSE THE COURT SAID, FIRST, THERE WAS CLEAR PROBABLE...

IN THE OPINION IF YOU LOOK AT IT. THE COURT SAYS WE'RE TOLD THE PERCENTAGE OF ALCOHOL IN THE BLOOD BEGINS TO DISSIPATE. TIME HAS TO BE TAKEN TO INVESTIGATE

SAID PARTICULARLY. WHAT WE'D SAY IS IF THERE WAS SOME UNCERTAINTY -- >>

ME TO THE SECOND PART OF MY ANSWER WHICH IS THAT THE COURTS ARE RELIED ON THIS EVIDENCE, WINSTON V. AND EVEN IN A FOOTNOTE IN KENTUCKY V. KING. THIS...

I THINK THEY'RE WILLING TO TAKE THEIR CHANCES THAT THE EVIDENCE IS GOING TO DISSIPATE BELOW THE .08 STANDARD AND THEN BE ABLE TO CHALLENGE IT AS OPPOSED...

JUSTICE SCALIA RAISES A POINT WHICH IS YOU ALWAYS HAVE SOME DELAY UNLESS YOU'RE TALKING ABOUT STICKING A NEEDLE IN SOMEBODY ROADSIDE. YOU HAVE TO...

FAIR. HE DOESN'T HAVE TO PREPARE A WRITTEN AFFIDAVIT IN A NUMBER OF OF THESE STATES. IT'S A TELEPHONIC WARRANT. >> EVEN IN SOME OF

THE POLICE OFFICERS TAKE THE BLOOD? BLEL, WE THINK THAT'S A DIFFERENT QUESTION AND ONE THAT THE COURT RESERVED IN SCHMERBER. THERE WAS A MEDICAL PERSONNEL...

SURE THAT THAT'S TRUE. THE REASON THAT A FEW STATES HAVE CONSIDERED IS BASICALLY OUT OF NECESSITY. IT IS JUST IN RURAL JURISDICTIONS IT'S TOO FAR TO...

IS THAT THERE ARE ONLY A FEW STATES THAT ARE DOING IT NOW, AND I THINK IT IS -- IT SHOULD BE, THE COURT SHOULD WAIT UNTIL IT ACTUALLY HAS A RECORD TO...

WARRANTLESS BLOOD TEST? >> YES. AS A GENERAL MATTER, YOU WOULD NOT NEED TO OBTAIN A BLOOD TEST PRACTICALLY BECAUSE THE EVIDENCE IS NOT THE SAME, BUT...

YOU ASK IS REASONABLE BALANCING TESTS BUT I THINK THE GOVERNMENT INTERESTS ON THE SIDE OF THAT BALANCE WOULD BE DIFFERENT FROM THE ONE AT ISSUE HERE....

COURT DID. IT LOOKED A INTRUSIVENESS AND NEED FOR THE EVIDENCE IN THE CASE AND POSITING WE SUSPECT THE COURT IS NOT AS STRONG AS EVIDENCE HERE. JUST...

ENTIRELY CLEAR. I THINK TWO HOURS TOTAL. PAGE 70 OF THE JOINT APPENDIX, MADE IT LIKE 1 1/2 HOURS TO TWO HOURS TOTAL. >> FINISH THE

PIECE OF DATE WHICH IS A NHTSA STUDY REFERRED TO IN THE BRIEFS WHERE FOLKS IN FOUR STATES WHERE WARRANTS WERE REQUIRED TRIED TO GET THEM AS QUICKLY...

JUSTICE AND MAY IT PLEASE THE COURT. THE ISSUE IN THIS CASE WHETHER THE CASE MAY STICK A NEEDLE IN THE ARM OF EVERYONE ARRESTED ON SUSPICION OF DRUNK...

THE QUESTION IS, IT IS NOT CLEAR TO ME, NUMBER ONE, YOUR HONOR, NOTHING IN THE RECORD TO SUGGEST THAT THE DRIVER IS ALWAYS FIRST OFFERED OPPORTUNITY,...

OFFERED

THAT'S CORRECT, YOUR HONOR. UNDER MISSOURI'S PROPOSED RULE THERE IS NO ROLE FOR NEUTRAL AND DETACHED MAGISTRATE. THE DECISION WHETHER AN INDIVIDUAL...

I WOULD BE HAPPY TO ANSWER THAT QUESTION RIGHT NOW, YOUR HONOR. I THINK THERE ARE TWO RESPONSES. ONE IS MISSOURI SPECIFIC AND CASE SPECIFIC AND ONE...

HONOR I DO NOT KNOW THE ANSWER. >> I

TRUE, YOUR HONOR, THAT WARRANTS IN GENERAL ARE RARELY TURNED DOWN. THAT THE OVERWHELMING PERCENTAGE OF WARRANT REQUESTS IN ALL CRIMINAL CASES ARE GRANTED...

COURT'S ENTIRE FOURTH AMENDMENT JURISPRUDENCE, YOUR HONOR RESTS ON THE PROPOSITION THE PRIVACY SAFEGUARD OF THE FOURTH AMENDMENT HAVING NEWT TALL AND...

WELL THAT IS SOMETHING VERY CLOSE TO WHAT MISSOURI ALREADY HAS, YOUR HONOR. IN CAPE GIRARDEAU COUNTY THE PROSECUTOR PREPARED STANDARDIZED FORMS WHICH...

NEED A WARRANT TO HAVE THE FIELD SOBRIETY TESTS? IS THAT THE QUESTION, JUSTICE GINSBURG? I DON'T THINK YOU NEED A WARRANT TO REQUIRE SOMEBODY TO PUT...

DO NEED A WARRANT FOR A BREATHALYZER, YOUR HONOR. BUT, MISSOURI'S POSITION IS, YOU NOT ONLY DON'T NEED A WARRANT FOR A BREATHALYZER, YOU DON'T NEED...

IT, I WOULD SAY THAT REQUIRING SOMEBODY TO PRODUCE, TO BREATHE INTO A MACHINE FOR, IN ORDER TO GATHER EVIDENCE FOR THE STATE'S PROSECUTION IS A STATE,...

BITE OFF --. >> WHAT IS

HONOR, I CERTAINLY WANT TO BITE OAF AS LITTLE AS I HAVE TO CHEW IN THIS CASE BUT THERE ARE TWO SALIENT FACTS BECAUSE I THINK IT IS IMPORTANT TO FOCUS...

THAT IS EXACTLY CORRECT, YOUR HONOR. I THINK THE COURT GOAT IT RIGHT IN SMERBER I THINK THE QUESTION IS ARE THERE SPECIAL FACTS EX-FOR INSTANCEANT TO...

HONOR, CAPE GIRARDEAU COUNTY IS A RURAL COUNTY IN SOUTHEASTERN MISSOURI. >> I'M ASKING

NO, YOUR HONOR. I DON'T THINK THE STATE OUGHT TO BE ABLE TO TAKE ADVANTAGE OF ITS OWN FAILURE TO MODERNIZE AND EXPEDITE ITS -- >> SUPPOSE

THAT IS DIFFERENT SITUATION, YOUR HONOR. >> WOULD YOU

WELL IF THE MAGISTRATE WERE UNAVAILABLE AND THERE WERE NO ALTERNATIVE MAGISTRATE. BUT THE SECOND SALIENT FACT -- >> THAT IS

IS CORRECT, YOUR HONOR. >> ONE

JUSTICE KAGAN. THE SECOND FACT I WANT TO COME BACK TO, AND THIS CAME UP BRIEFLY DURING MY OPPONENT'S ARGUMENT, WE KNOW THAT THERE ARE HALF THE STATES...

SAY SEVERAL THINGS. FIRST OF ALL, YOUR HONOR, I REALLY DO HAVE NO REASON TO BELIEVE THERE'S ANY JURISDICTION IN THE COUNTRY AT THIS POINT THAT IS NOT...

IN YOUR JUDGEMENT. >>

KNOW, OUR POSITION AND I'M NOT SURE WHETHER YOU'RE CLASSIFYING THIS AS OUR FIRST POSITION OR SOMETHING ELSE, OUR POSITION IS THAT WITHIN THE CONTEXT...

THERE IS SOME ADVANTAGE TO HAVING IT, CERTAINLY. A SEARCH CONDUCTED PURSUANT TO A WARRANT IS MUCH LESS SUBJECT TO SUPPRESSION THAN A SEARCH THAT IS...

THEN? >> EXCUSE ME. I DON'T THINK THE FOURTH AMENDMENT RULE TURNS ON THE AMOUNT OF BLOOD THAT YOU TAKE OUT OF SOMEBODY'S BODY. I THINK THE FOURTH,...

SAID THAT IN A VARIETY OF CIRCUMSTANCES IN DRUG TESTING CASES WHERE THEY WEREN'T EVEN LAW ENFORCEMENT CASES. THEY WERE SPECIAL NEEDS >> WHAT ABOUT

IS PROBABLY CORRECT, YOUR HONOR. YOU PRESUMABLY DO NOT NEED A SEARCH WARRANT FOR THAT AND THIS COURT HELD FIRST IN SCHMERBER AND REAFFIRMED IN SOUTH...

IS UNREASONABLE, YOUR HONOR. THE EVIDENCE IN THESE CASES ARE RELATIVELY STANDARDIZED AND PROCEDURES ARE RELATIVELY STANDARDIZED. THERE DOESN'T MEAN THERE...

TO ANSWER THAT QUESTION, JUSTICE SOTOMAYOR IF I CAN COMPLETE MY ANSWER TO THE CHIEF JUSTICE FOR ONE SECOND. MY ANSWER WOULD BE EVEN IF THERE ARE BOXES...

SPECIAL FACTS, YOUR HONOR, WERE THE ACCIDENT AND INJURIES AT THE SCENE WHICH DELAYED THE POLICE TWO HOURS BEFORE THEY COULD EVEN GET TO THE HOSPITAL...

THINK THAT PRACTICAL LIMIT TAKES, WHETHER OR NOT WERE OTHER OFFICERS ON THE SCENE THAT COULD HAPPEN SENT TO THE SCENE, WE'LL NOT ASKING FOR A RULE...

IS, IT IS NOT TRUE IN EVERY, WON'T BE TRUE IN EVERY CASE, MR. CHIEF JUSTICE, THAT THE STATE IS LOSING EVIDENCE WITH EACH PASSING MOMENT. >> SO DEPENDS

THOUGH, DEPENDING UPON WHAT THE PERSON IS WILLING TO TELL YOU. ALL I'M SAYING IS, IN EVERY CASE, IN EVERY CASE IT IS NOT A SITUATION FROM THE MOMENT...

DRAIN. >> RIGHT. >> HE DOESN'T

IS VERY DIFFERENT PROCESS. IN THE TYPICAL DRUG CASE WHICH IS WHAT THIS COURT HAS CONSIDERED, WHEN IT HAS, EXAMINED THE QUESTION WHETHER DESTRUCTION...

NOW OR NEVER. >> VERY

OR NEVER. BUT NOT ONLY IS IT NOW OR NEVER, BUT IN MOST OF THOSE CASES NOT ALL, IN MOST OF THE CASES THE STATE'S CASE WILL DISAPPEAR DOWN THE DRAIN ALONG...

UNRELIABLE. >> THAT MAY -- >> YOU WOULD MUCH

OF THE INTEGRITY OF YOUR HOME IS SOMEWHAT LESS THAN THE VIOLATION OF THE INTEGRITY OF YOUR BODY. >> WELL, I THINK THAT

THE REASONABLENESS INTERPRETATION. >>

THERE IS NO DOUBT, I WILL NOT DENY THE STATE'S CASE WILL BE EASIER IF IT DOES NOT HAVE TO OBTAIN WARRANT. BUT THIS COURT HAS RECOGNIZED THAT MANY TIMES...

SAY THREE THINGS, YOUR HONOR. I DON'T THINK IT IS AS INTRUSIVE, AND THOUGH IN -- [INAUDIBLE] V. MURPHY, THE COURT DESCRIBED IT AS A BRIEF BUT SERIOUS...

THANK YOU. EVERYONE AGREES THAT THE CLOSER A CHEMICAL TEST IS TAKEN TO THE TIME OF DRIVING, THE MORE RELIABLE THE EVIDENCE OF INTOXICATION IS, THE MORE...