recognizing but not deciding that “[S]ince the decision ... in Cupp v. Murphy, [412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900], it has been held ... that the taking of a blood sample is proper under the rationale of that case without either express consent or an arrest, at least when the defendant is in a ‘medical environment’ in a hospital and in a serious physical condition”
How later courts described this case
- recognizing but not deciding that “[S]ince the decision ... in Cupp v. Murphy, [412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900], it has been held ... that the taking of a blood sample is proper under the rationale of that case without either express consent or an arrest, at least when the defendant is in a ‘medical environment’ in a hospital and in a serious physical condition”
- adopting view that, under ORS 17.320, the jury could play a tape recording received in evidence because “the tape was evidence which the jury was entitled to consider during its deliberations pursuant to ORS 17.320”
- existence of probable cause to arrest sufficient (adopting rule of Cupp v. Murphy, infra )
- holding same under earlier version of statute
Written by the judges who cited it.
Later courts went against this
Questioned by State v. Langevin, 84 Or. App. 376 (1987)
Although Caraher does not, as defendant contends, render Heintz a non-authority for that reason alone, the substance of the decision in that case may cast doubt on the validity of the search of defendant incident to his arrest.
The opinion
*255 LINDE, J.,
concurring.
While I concur in the decision, it seems worthwhile to draw attention to the premises on which it is based and to other premises not presented in this case.
The Court of Appeals thought that a warrantless search of a suspect not under restraint, in this case by drawing some of his blood, could validly avoid the constitutional warrant requirement if there was probable cause for the search and exigent circumstances requiring speedy action. This Court’s opinion does not accept that premise. The Court concludes that the blood taken on police request by a qualified hospital employee from the hospitalized defendant and then obtained from the hospital under a warrant was the product of a search incident to an arrest, as defined in ORS 133.005(1), 1 and justified in advance of the eventual search warrant by the exigency of dissipation of alcohol from the blood.
In other words, the decision involves two distinct questions: (1) the propriety of the warrantless search of the person as being incident to an arrest and (2) the propriety of the particular bodily intrusion of taking a suspect’s blood under the concrete circumstances of this case. As to the first question, since the defendant was immobilized in a hospital in any event, there might be a potential risk of circular reasoning if the decision depended on the search itself as the "actual or constructive restraint” that placed the defendant under "arrest” within the meaning of ORS 133.005(1); but, as described in the Court’s opinion, the police officers no doubt had made that decision before and independently of the blood test. The search therefore followed upon a "restraint,” whether "actual or constructive,” for which there was probable cause. Accordingly, the court is careful not to approve the opinions *256 of some state courts that have approved a warrantless body search without prior arrest. As illustrated by the excerpts quoted by the Court, some of these opinions confuse the legal event of "arrest,” which depends upon the officer’s actions, with the officer’s inability or unwillingness to communicate the "arrest” to an unconscious or semi-conscious person. 2
The significance of an arrest before a search is that for the duration of the detention the officers have legal authority over the detained person. He is in their legal control. If he struggles or tries to leave, he is "resisting arrest” or "attempting to escape.” In this situation, a search of his person becomes a "search incident to” an arrest or a legal detention, and the remaining issue is whether its scope is supported by probable cause and exigency and whether a bodily invasion like a blood test is sufficiently more intrusive than a search of, say, clothing to require stricter standards. Of course, once a valid arrest is made, it does not follow that an accompanying search may extend to all kinds of bodily intrusions. In this case, so far as constitutional law is concerned, there was also adequate probable cause to seek a sample of defendant’s blood from the hospital, and to ask the hospital to secure such a sample before obtaining the warrant on which the hospital turned over the two samples to the police. 3
*257 The bald notion that police officers could constitutionally make a warrantless "search” of persons not under arrest by taking their blood without their consent has striking implications. If a driver is stopped on suspicion of driving under the influence of intoxicants and requested to submit to having a sample of his blood taken, is he under any obligation to comply without being arrested? If he declines, may officers forcibly hold him while the blood is taken, or is the person privileged to resist or to depart? Does it make sense to speak of an unconsented investigative search without a prior arrest, which in turn must be justified on probable cause? Or is the search for a blood sample in cases like the present limited to the fortuitous circumstances of individuals disabled, hospitalized, or otherwise institutionalized? 4 That seems an unlikely rule of law.
I said above that there was adequate probable cause to seek a sample of defendant’s blood in this case so far as constitutional law was involved. Of course, that alone does not authorize an officer to take anyone’s *258 blood; it merely removes one constitutional objection to a search that is otherwise authorized by law. We have been presented with no information or argument on the issue whether police officers in Oregon are authorized by law to secure blood samples from a person who is suspected of driving while under the influence of intoxicants, and under what circumstances they may obtain such blood samples. This is the consequence of briefing search and seizure issues only from the United States Supreme Court’s fourth amendment opinions downward, and not very far downward. See State v. Greene, 285 Or 337, 346-349 (concurring opinion). 5
*257
(Continued from previous page)
*258 One might well wonder as a matter of Oregon law whether a legislature that has forbidden the administration of a mere breath test for alcohol over the driver’s refusal has left the police free to take a person’s blood for the same inquiry without his consent. See ORS 487.805(2). Perhaps there are other sources bearing on Oregon’s public policy on the question of police authority to conduct body searches. Possibly the answer may differ whether the inquiry arises in enforcing the traffic laws, or the drug or liquor laws, or a homicide as in this case. These issues of police authorization have not been briefed, and the Court expresses no view on them. Nor are we likely to *259 clarify them as long as cases with "Schmerbertyipe” facts are briefed simply by matching them against the Supreme Court’s constitutional opinion in Schmerber v. California, 384 US 757 , 86 S Ct 1826 , 16 L Ed 2d 908 (1966) and other judicial opinions with similar facts, as if the public law of law enforcement in the several states were some kind of national common law.
Lent, J., joins in this concurring opinion.
ORS 133.005(1):
"Arrest” means to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging him with an offense. A "stop” as authorized under ORS 131.605 to 131.625 is not an arrest.
This seems also to be meant by the occasional phrases distinguishing arrest from "formal” arrest. While an officer is normally expected to make it clear to a person whether or not he or she is free to leave, it obviously is possible to place an unconscious or uncomprehending person under "actual or constructive restraint.” The importance of the legal event of arrest prior to a warrantless and unconsented search is not that the arrested person has been "formally” informed of his arrest, but that the officer has acted to place the person under legal restraint on the information available to the officer before the search.
One cause of confusion in search and seizure issues is the practice of asserting that the police had "probable cause” without finishing the phrase, i.e., "probable cause” for what?
The constitutional phrase is that "no warrant[s] shall issue but upon probable cause .. . and particularly describing the place to be searched, and the person[s] or thingfs] to be seized.” Or Const art I, §9, US Const amend 4 *257 (the plural forms appear in the fourth amendment). "Exigency,” that is to say, circumstances of compelling importance in substance and urgency in time, can excuse proceeding without a warrant. But the "probable cause” to make the particular warrantless search or seizure must be such that a magistrate should, upon having the officer’s information before him, properly have issued a warrant describing that particular place to be searched, or person or thing to be seized.
If that involves both an arrest and a search (beyond the search necessary for the officer’s security), there must be probable cause for each in turn. "Probable cause” in the abstract justifies no more than the general warrants that the constitutional guarantees were designed to prohibit.
Of course, nothing in the court’s present decision suggests that the hospital or its personnel had any obligation to accede to the police request for a blood sample from one of its patients.
In Cupp v. Murphy, 412 US 291 , 93 S Ct 2000 , 36 L Ed 2d 900 (1973), relied on by the Court, the Supreme Court made the point that although Murphy was not "formally ’arrested’ . . . the detention of the respondent against his will constituted a seizure of his person,. ..” 412 US at 294 . The fact in Cupp v. Murphy was that the suspect was in the police station, and although he was not under "formal arrest,” he predictably would have found himself moving from "constructive” to "actual” restraint if he had got up to leave the station without having his fingernail scrapings taken.
As Justice Lent and I there stated:
"Of course, the state and federal constitutions impose outer limits on the permissible range of authority to conduct searches and seizures, as today’s cases show. But the constitutions neither grant such authority to anyone, nor prescribe who may exercise it, nor define the circumstances and manner in which, within those outer constitutional limits, the authority should or should not be employed. . . . When a court is called upon to decide only whether a particular search or seizure crossed the constitutional boundary, its decision marks only that boundary; it does not prescribe the law with respect to the officer’s authority to conduct the search or seizure apart from that outer limit. Within this limit, the question of his authority is not a constitutional question but one of ordinary law.
Of course, when an officer’s act exceeds his legal authority, there is no occasion to consider its constitutionality. State v. Valdez, 277 Or 621 , 561 P2d 1006 (1977).” 285 Or at 346-347 .