Schmerber v. California, 384 U.S. 757 (1966)

Fundamental Cases on the Fourth Amendment by Adam J. McKee

JUSTICE BRENNAN delivered the opinion of the Court.

Petitioner was convicted in Los Angeles Municipal Court of the criminal offense of driving an automobile while under the influence of intoxicating liquor.  He had been arrested at a hospital while receiving treatment for injuries suffered in an accident involving the automobile that he had apparently been driving.  At the direction of a police officer, a blood sample was then withdrawn from petitioner’s body by a physician at the hospital.  The chemical analysis of this sample revealed a percent by weight of alcohol in his blood at the time of the offense which indicated intoxication, and the report of this analysis was admitted in evidence at the trial.  Petitioner objected to receipt of this evidence of the analysis on the ground that the blood had been withdrawn despite his refusal, on the advice of his counsel, to consent to the test.  He contended that in that circumstance the withdrawal of the blood and the admission of the analysis in evidence denied him due process of law under the Fourteenth Amendment, as well as specific guarantees of the Bill of Rights secured against the States by that Amendment: his privilege against self-incrimination under the Fifth Amendment; his right to counsel under the Sixth Amendment; and his right not to be subjected to unreasonable searches and seizures in violation of the Fourth Amendment.  The Appellate Department of the California Superior Court rejected these contentions and affirmed the conviction.  …. we granted certiorari.  We affirm. 


Breithaupt was also a case in which police officers caused blood to be withdrawn from the driver of an automobile involved in an accident, and in which there was ample justification for the officer’s conclusion that the driver was under the influence of alcohol.  There, as here, the extraction was made by a physician in a simple, medically acceptable manner in a hospital environment.  There, however, the driver was unconscious at the time the blood was withdrawn and hence had no opportunity to object to the procedure.  We affirmed the conviction there resulting from the use of the test in evidence, holding that under such circumstances the withdrawal did not offend “that ‘sense of justice’ of which we spoke in Rochin v. California.”  Breithaupt thus requires the rejection of petitioner’s due process argument, and nothing in the circumstances of this case or in supervening events persuades us that this aspect of Breithaupt should be overruled. 


Breithaupt summarily rejected an argument that the withdrawal of blood and the admission of the analysis report involved in that state case violated the Fifth Amendment privilege of any person not to “be compelled in any criminal case to be a witness against himself,” citing Twining v. New Jersey.  But that case, holding that the protections of the Fourteenth Amendment do not embrace this Fifth Amendment privilege, has been succeeded by Malloy v. Hogan.  We there held that “the Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement —the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence.”  We therefore must now decide whether the withdrawal of the blood and admission in evidence of the analysis involved in this case violated petitioner’s privilege.  We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.

It could not be denied that in requiring petitioner to submit to the withdrawal and chemical analysis of his blood the State compelled him to submit to an attempt to discover evidence that might be used to prosecute him for a criminal offense.  He submitted only after the police officer rejected his objection and directed the physician to proceed.  The officer’s direction to the physician to administer the test over petitioner’s objection constituted compulsion for the purposes of the privilege.  The critical question, then is whether petitioner was thus compelled “to be a witness against himself.”

If the scope of the privilege coincided with the complex of values it helps to protect, we might be obliged to conclude that the privilege was violated.  In Miranda v. Arizona, the Court said of the interests protected by the privilege: “All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government—state or federal —must accord to the dignity and integrity of its citizens.  To maintain a ‘fair state-individual balance,’ to require the government ‘to shoulder the entire load’ . . . to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.”  The withdrawal of blood necessarily involves puncturing the skin for extraction, and the percent by weight of alcohol in that blood, as established by chemical analysis, is evidence of criminal guilt.  Compelled submission fails on one view to respect the “inviolability of the human personality.”  Moreover, since it enables the State to rely on evidence forced from the accused, the compulsion violates at least one meaning of the requirement that the State procure the evidence against an accused “by its own independent labors.”

As the passage in Miranda implicitly recognizes, however, the privilege has never been given the full scope which the values it helps to protect suggest.  History and a long line of authorities in lower courts have consistently limited its protection to situations in which the State seeks to submerge those values by obtaining the evidence against an accused through “the cruel, simple expedient of compelling it from his own mouth. . .  In sum, the privilege is fulfilled only when the person is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own will.”  The leading case in this Court is Holt v. United States.  There the question was whether evidence was admissible that the accused, prior to trial and over his protest, put on a blouse that fitted him.  It was contended that compelling the accused to submit to the demand that he model the blouse violated the privilege.  Mr. Justice Holmes, speaking for the Court, rejected the argument as “based upon an extravagant extension of the Fifth Amendment,” and went on to say: “The prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.  The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof.”

It is clear that the protection of the privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers.  On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.  The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling “communications” or “testimony,” but that compulsion which makes a suspect or accused the source of “real or physical evidence” does not violate it.

Although we agree that this distinction is a helpful framework for analysis, we are not to be understood to agree with past applications in all instances.  There will be many cases in which such a distinction is not readily drawn.  Some tests seemingly directed to obtain “physical evidence,” for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial.  To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment.  Such situations call to mind the principle that the protection of the privilege “is as broad as the mischief against which it seeks to guard.”

In the present case, however, no such problem of application is presented.  Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner’s testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone.  Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner’s testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds. 


This conclusion also answers petitioner’s claim that, in compelling him to submit to the test in face of the fact that his objection was made on the advice of counsel, he was denied his Sixth Amendment right to the assistance of counsel.  Since petitioner was not entitled to assert the privilege, he has no greater right because counsel erroneously advised him that he could assert it.  His claim is strictly limited to the failure of the police to respect his wish, reinforced by counsel’s advice, to be left inviolate.  No issue of counsel’s ability to assist petitioner in respect of any rights he did possess is presented.  The limited claim thus made must be rejected. 


In Breithaupt, as here, it was also contended that the chemical analysis should be excluded from evidence as the product of an unlawful search and seizure in violation of the Fourth and Fourteenth Amendments.  The Court did not decide whether the extraction of blood in that case was unlawful, but rejected the claim on the basis of Wolf v. Colorado.  That case had held that the Constitution did not require, in state prosecutions for state crimes, the exclusion of evidence obtained in violation of the Fourth Amendment’s provisions.  We have since overruled Wolf in that respect, holding in Mapp v. Ohio, that the exclusionary rule adopted for federal prosecutions in Weeks v. United States must also be applied in criminal prosecutions in state courts.  The question is squarely presented therefore, whether the chemical analysis introduced in evidence in this case should have been excluded as the product of an unconstitutional search and seizure.

The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.  In Wolf we recognized “the security of one’s privacy against arbitrary intrusion by the police” as being “at the core of the Fourth Amendment” and “basic to a free society.”  We reaffirmed that broad view of the Amendment’s purpose in applying the federal exclusionary rule to the States in Mapp.

The values protected by the Fourth Amendment thus substantially overlap those the Fifth Amendment helps to protect.  History and precedent have required that we today reject the claim that the Self-Incrimination Clause of the Fifth Amendment requires the human body in all circumstances to be held inviolate against state expeditions seeking evidence of crime.  But if compulsory administration of a blood test does not implicate the Fifth Amendment, it plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment.  That Amendment expressly provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ….”  It could not reasonably be argued, and indeed respondent does not argue, that the administration of the blood test in this case was free of the constraints of the Fourth Amendment.  Such testing procedures plainly constitute searches of “persons,” and depend antecedently upon seizures of “persons,” within the meaning of that Amendment.

Because we are dealing with intrusions into the human body rather than with state interferences with property relationships or private papers—”houses, papers, and effects”—we write on a clean slate.  Limitations on the kinds of property which may be seized under warrant, as distinct from the procedures for search and the permissible scope of search, are not instructive in this context.  We begin with the assumption that once the privilege against self-incrimination has been found not to bar compelled intrusions into the body for blood to be analyzed for alcohol content, the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.  In other words, the questions we must decide in this case are whether the police were justified in requiring petitioner to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness.

In this case, as will often be true when charges of driving under the influence of alcohol are pressed, these questions arise in the context of an arrest made by an officer without a warrant.  Here, there was plainly probable cause for the officer to arrest petitioner and charge him with driving an automobile while under the influence of intoxicating liquor.  The police officer who arrived at the scene shortly after the accident smelled liquor on petitioner’s breath, and testified that petitioner’s eyes were “bloodshot, watery, sort of a glassy appearance.”  The officer saw petitioner again at the hospital, within two hours of the accident.  There he noticed similar symptoms of drunkenness.  He thereupon informed petitioner “that he was under arrest and that he was entitled to the services of an attorney, and that he could remain silent, and that anything that he told me would be used against him in evidence.”

While early cases suggest that there is an unrestricted “right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime,” the mere fact of a lawful arrest does not end our inquiry.  The suggestion of these cases apparently rests on two factors—first, there may be more immediate danger of concealed weapons or of destruction of evidence under the direct control of the accused; second, once a search of the arrested person for weapons is permitted, it would be both impractical and unnecessary to enforcement of the Fourth Amendment’s purpose to attempt to confine the search to those objects alone.  Whatever the validity of these considerations in general, they have little applicability with respect to searches involving intrusions beyond the body’s surface.  The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.  In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.

Although the facts which established probable cause to arrest in this case also suggested the required relevance and likely success of a test of petitioner’s blood for alcohol, the question remains whether the arresting officer was permitted to draw these inferences himself, or was required instead to procure a warrant before proceeding with the test.  Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned.  The requirement that a warrant be obtained is a requirement that the inferences to support the search “be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”  The importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great.

The officer in the present case, however, 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.”  We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.  Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.  Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.

Similarly, we are satisfied that the test chosen to measure petitioner’s blood-alcohol level was a reasonable one.  Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol.  Such tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.  Petitioner is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the “breathalyzer” test petitioner refused.  We need not decide whether such wishes would have to be respected.

Finally, the record shows that the test was performed in a reasonable manner.  Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices.  We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse.  To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

We thus conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures.  It bears repeating, however, that we reach this judgment only on the facts of the present record.  The integrity of an individual’s person is a cherished value of our society.  That we today hold that the Constitution does not forbid the States 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. 


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