The Fourth Amendment: Policing the Police and the Warrantless Search

19 Pages Posted: 12 Mar 2014

Date Written: March 10, 2014


Withdrawing blood of a driver to determine the alcohol content in an arrest for drinking and driving constitutes a search of the driver’s person, and as such, it must be conducted with regard to search and seizure requirements of the Fourth Amendment. The purpose of the Fourth Amendment is to protect citizens from unwarranted searches and seizures by the state. As a measure of protection, law enforcement officers are generally required to secure a warrant prior to performing a search. This requirement encourages inferences to be drawn by neutral and detached judges to support searches instead of allowing officers to be the judge while fighting crime. A key exception to the warrant requirement is the exigency exception. Under this exception, an officer may conduct a warrantless search when compellingly sufficient exigencies of a situation make the search objectively reasonable. Without a compelling exigency, a search warrant must be granted before any intrusion can be made into the human body.

In this case note, the author will first address the legal concepts underlying the 2013 U.S. Supreme Court case McNeely v. Missouri, which held that natural dissipation of alcohol in the bloodstream alone is not sufficient in every DWI case to evade the search warrant requirement. Next, the author will analyze the Court’s decision. Then, the author will address how the Court’s decision will affect subsequent cases. Finally, the author will provide an overview of the issue presented in McNeely, the importance of the Court’s ruling, and the dangers an alternative ruling could present.

Keywords: Fourth Amendment, Unwarranted Searches, Searches and Seizures, Warrantless Search, Search Warrant, Exigency Exception, McNeely v. Missouri, Arrest for Drinking and Driving, Drawing Blood to Determine Alcohol Content, Blood Draw by Police, Law Enforcement

JEL Classification: K40, K41, K42, K49

Suggested Citation

Musgrove, Shalyn, The Fourth Amendment: Policing the Police and the Warrantless Search (March 10, 2014). Available at SSRN: or

Shalyn Musgrove (Contact Author)

Southern University Law Center ( email )

P.O. Box 9294
Baton Rouge, LA 70813
United States

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