On one level, the Supreme Court’s ruling in Birchfield v. North Dakota seems like the kind of opinion we hope for. It gives us a rule, a bright line test, as to what the police are authorized to do and what they’re not.  The holding is that after an arrest, they can compel a breath test, but they can’t compel a blood test without a warrant.  A job well done (finally)?

Absolutely. Except for the lingering questions about how this plays out in real life. The perennial bugaboo of law is that final official decisions are made in an ornate, quiet, impressive, dignified courthouse, while it’s executed on dirty, mean, nasty streets.

Putting aside the obvious detail that makes this ruling somewhat less significant than it might appear, that a cop can get a warrant to do pretty much anything he wants at any time of the day or not with a quick phone call, rendering the rest of the ruling rather silly, at least it forces the process to pretend to be a little closer to the unloved warrant clause than it might otherwise be. But then there are the easy words used by the majority that seem so very clear but get all fuzzy on the road.

You’re under arrest.

Sometimes those words are used. Most times they’re not. Often, an arrest consists of something more along the lines of “shut up, motherfucker, or I’ll kill you.” This is just cop-talk for “please do as I command so I can get home for dinner.” Birchfield involves the post-arrest testing for blood alcohol content, which does not, in itself, save a life or protect the world. Rather, it’s a means to collect evidence to prove guilt.

Notably, since the driver is theoretically already under arrest, and the decision is founded on the “search incident to arrest” exception to the Fourth Amendment, there is already probable cause (because if not, there could be no lawful arrest, and no lawful search incident to it). the important societal concerns about getting drunk drivers off the road are already satisfied.  From this point forward, it’s just nailing down the proof of guilt to add to the proof already in hand.

Ironically, if the post-arrest testing was critical to establishing the commission of the offense, then there is no judicial approval for a warrantless process.  Unless, that is, because the court just decided Strieff, giving rise to the Flagrantly Unlawful Cop Konundrum of post hoc justification for arrest being close enough to make an unlawful seizure smell less unpleasant.  So, a seizure for drunk driving absent evidence, followed by a forced blow, producing proof of drunk driving, and all is well. Sequence is for kids.

Will every cop now announce “you’re under arrest,” even if the driver actually isn’t, or can’t tell if he is or isn’t, or there’s no probable cause, just to invoke the Birchfield rule that allows a forced breath test? There isn’t much harm to it, it that’s what they’re inclined to do.

But when they cannot do, as the majority holds in its bright line test, is “pierce the skin” to take a blood draw without a warrant.  So the trend toward pushing a driver down on the sterile environment of the hood of the patrol car for a forced blood draw at will without a warrant crosses the line. Good. It should. Now, cops will have to make a call first, get the warrant that no judge will refuse (“Hey, Judge? Got a drunk here and need a blood test. Thanks.”). No, it’s not much.

And the line drawn by the Supremes, “piercing the skin,” makes for a sound conceptual ledge to stop the slide down the slippery slope that has been ongoing for a while, as drunk driving enforcement has become increasingly aggressive, making MADD a very happy club. What makes that clear delineation, piercing the skin, particularly notable is that no skin is pierced when a cop, as a search incident or just for kicks, chooses to insert a finger or two into a vagina or rectum.

Is the Court telling cops to finger away? Did it dawn on the justices that by drawing the line at skin piercing, they set up a situation where the non-skin-piercing digital examination of body parts that most people will find sufficiently outrageous that when done by someone other than a cop, it deserves a punishment of life plus cancer, is cool with them?

When the Court finally gets around to determining where cops’ fingers are allowed to go, how will they come up with a rule that prohibits digital insertions in light of this bright “piercing the skin” line? This is going to be a problem, unless you’re good with cops sticking their fingers in your wife’s vagina or your husband’s (yes, or wife’s, since gender is not a social construct but an anatomical fact) butt at will.

But while Birchfield may otherwise be much ado about nothing, assuming that the real message is “just make a phone call first” and then cops get to do whatever they please, there was a dissent by Justice Clarence Thomas that offers this insight:

Today’s decision chips away at a well-established exception to the warrant requirement.

There might, at first, seem to be some weird merit to this line, particularly given how susceptible we’ve become to an artful twist of rhetoric. But, no, this is quite the bizarre assertion.  Here’s the flaw: Exceptions chip away at rules. Rules do not chip away at exceptions. The warrant requirement is the rule. Search incident to arrest is the exception. Limiting, even to the minimal extent here, the scope of the exception to the rule isn’t chipping away at the exception, but enforcing the rule.

What this line shows is how the exceptions to the Fourth Amendment have so swallowed the rule that, in the mind of at least one Supreme Court justice, the “right” to the exception has become more important that the rule of the Fourth Amendment’s warrant clause.  Think about that the next time some cop inserts a foreign object into your body, whether by piercing the skin or enjoying a convenient orifice, no piercing needed.