Earl Warren: -- 658 Armando Schmerber, Petitioner, versus California. Mr. McGurrin.
Thomas M. McGurrin: Yes, Mr. Chief Justice, if it please the Court. This case is a case which arose in the San Fernando Valley, County of Los Angeles wherein the defendant was driving an automobile somewhere in the neighborhood of midnight and struck a tree. The defendant actually -- or the petitioner denied the fact that he was driving a car, but it was held that he had in fact then driving the car. Sometimes subsequent to the petitioner exiting from the car, two police officers arrived at the scene -- one of them observed the petitioner standing by an ambulance and then the petitioner was placed in the ambulance and transported to a hospital. At the hospital, the officer who had observed the petitioner at the scene, inquired of the passenger of the car and talked with the petitioner and asked the petitioner whether or not he would be willing to take a breathalyzer test to which the petitioner said no. The officer asked him whether or no he would be willing to take a blood test, according to the officer, the petitioner said yes and the officer went out to obtain a doctor and a nurse. But when the doctor and the nurse returned, the petitioner then stated no, he would not take a blood test because his attorney had told him not to submit to such a test. The petitioner in his testimony or in his affidavit indicated that he always refused to take the test. But, be that as it may, the officer then went out, spoke to his superior officer who apparently directed him to proceed with the test anyway, and the officer advised the doctor to proceed and to extract blood from the petitioner. The blood was taken and the Los Angeles police officer chemist ran an analysis on the blood test or blood, and arrived at a reading of 0.18 which the chemist testified to would indicate that a person was at the alcohol reading -- at the time, he would be under the influence of intoxicating liquor.
Speaker: When this blood test initiated to the person, (Inaudible) are there any struggle or --
Thomas M. McGurrin: No, there was no struggle. The defendant stipulated at the trial that it was administered in a orderly fashion. And also though in the affidavit of the defendant, if this may become an issue as far as Your Honor is concerned, the fact is that the defendant had a broken leg or ankle and one fractured rib and was -- and have various lacerations on his body and he told the police, “I won't fight with you but I don't want you to take test in essence.”
Abe Fortas: That is also the testimony of the police officer, wasn't it?
Thomas M. McGurrin: Yes. There is no dispute about the fact that he said, “Don't, my attorney told me not to.”
Abe Fortas: And also that he said, “I won't fight you, because even if you take blood, the police officers agreed but they had noted that it was being taken on his objection.
Thomas M. McGurrin: That's correct. Yes, Your Honor.
Tom C. Clark: The test is taken only for the purpose of the violation?
Thomas M. McGurrin: Yes.
Tom C. Clark: And they want to take it in the regular course or the administration of the --
Thomas M. McGurrin: No, it was taken on the direction of the police officer.
Tom C. Clark: It wasn't taken like in Breithaupt, along with the usual techniques that the doctor used in determining the illness?
Thomas M. McGurrin: No. There was apparently no question relative at that time to any injury which would necessitate the removal of blood and there was never any testimony anywhere in the case or any indication that it was for any other purpose other than the purpose of extracting the blood for the blood alcohol test, because in the officer's testimony, in the presence of the jury, he said that -- for the first time, he said this, that he asked him first with a breathalyzer test which the defendant refused and then he followed that with immediately with the request for the blood.
Tom C. Clark: He was -- though unconscious at that time?
Thomas M. McGurrin: No, he was conscious Your Honor.
Tom C. Clark: Breithaupt was unconscious.
Thomas M. McGurrin: Was unconscious, that's correct.
Tom C. Clark: And the test isd taken in the ordinary routine of the hospital, in the checking of blood and other things that they do with the patients of that type. Isn't that right in Breithaupt?
Thomas M. McGurrin: In Breithaupt I -- when I read the case, probably 50 times, I don't recall that particular aspects Your Honor, whether or not that was an ordinary course of the hospital routine. I really honestly don't recall that. But I have to point of course, I think it was important, the fact that the defendant in that case was unconscious although I -- still I don't really feel that that should be the --
Tom C. Clark: Would we have to overrule Breithaupt in order to study the case with you?
Thomas M. McGurrin: Not necessarily. I'm requesting that your Court do that because I feel that recent decisions and actually reason require it, but as far as actuality in making a decision in reversing this case, this Court could reverse and very well distinguish it from Breithaupt by reason of the consciousness or unconsciousness of the individual involved.
Tom C. Clark: Do you ask us to overrule it?
Speaker: (Inaudible)
Tom C. Clark: I beg your pardon, Your Honor?
Speaker: Do you think that it would be (Inaudible)?
Tom C. Clark: I do not. No. The --
Tom C. Clark: I thought they took the blood test in order to determine whether they should give the patient, we'll say, cortisone or penicillin or some drugs of that type. And when they took it, they found that he had this alcoholic content, do you think that would be a -- in the face of this -- were conscious at that time?
Thomas M. McGurrin: Your Honor, of course, I'm not a medical doctor but I know from mere practice that if one takes blood for the purpose of determining whether or not the individual needs certain type of medical attention, one of the test that is run is not an alcoholic test to determine the alcoholic content of the blood. Other tests are run such as blood count or if it's a Wassermann test to determine if the individual has venereal disease. But --
Tom C. Clark: Is there --
Thomas M. McGurrin: -- there is no necessity for running an alcohol content test on a blood sample if one is doing it for the sole purpose of medical care. So I think that's --
Tom C. Clark: It wouldn't show up.
Thomas M. McGurrin: No, not if you're running a blood count. It only shows up when you run certain analysis on the blood sample itself for the sole purpose of determining how much alcohol remains in the sample that the -- an analyst uses.
Hugo L. Black: Is there any dispute as to whether the evidence was -- whether the blood was taken?
Thomas M. McGurrin: I beg your –-
Hugo L. Black: Is there any dispute as to whether the blood was taken in order to test it, to use as evidence against him?
Thomas M. McGurrin: There has never been -- no, Your Honor, there has never been any dispute in this case at all about that.
Tom C. Clark: I don't see why then you would insist to overrule Breithaupt?
Thomas M. McGurrin: I beg your pardon?
Tom C. Clark: I don't see why that you insist to overrule Breithaupt because there, there was no such evidence, was there? That the test --
Thomas M. McGurrin: No.
Tom C. Clark: -- were taken solely for that purpose?
Thomas M. McGurrin: Well again, I -- I'm not really sure about that point Your Honor. As I say, I don't recall that particular aspect of it but I -- if I may, I can probably get into my point --
Tom C. Clark: Well, you could go right ahead, sure.
Thomas M. McGurrin: Thank you. The trial court and my motion for suppression denied the motion previous to the trial, and the motion for suppression included the motion to suppress any testimony or evidence relative to the fact that the defendant refused to take the blood test as well as the actual fact that the blood test was administered and the analysis resulted. During the course of the trial, the same motion was renewed and again denied. Basically, the petitioner contends that the entry into the body of a accused, by law enforcement or police officers, per se constitutes a violation of the Due Process Clause and also constitutes a violation of privilege against self-incrimination and constitutes a violation of the prohibition against unreasonable search and seizure. In --
Speaker: Is there a California statute that provides for blood test?
Thomas M. McGurrin: No. (Voice Overlap) No, it's judicial decision.
Speaker: Yes.
Thomas M. McGurrin: The legislature has --
Speaker: This case has (Inaudible)
Thomas M. McGurrin: Yes, they do indeed, the variations on the percentage of alcohol is required. It would probably be easier to -- I think write an opinion, no reflection on the Court, but these particular points of due process, self-incrimination, and search and seizure in some cases, such as this, that they kind of run into each other and it's difficult to differentiate. But if I may, I would like to take the theory of due process and say that when law enforcement agencies, take it upon themselves which they did in this case, they instructed the doctor to remove the blood. When they take it upon themselves to invade the body of an individual who's accused of a crime for the purpose of obtaining evidence from him to utilize in the trial, to prosecute him, and convict him, that this constitutes a violation of due process. Now when the constitution was enacted, there were no blood test to my knowledge. There was bloodletting but no blood test, no analysis that could be run on blood. So when the framers of our constitution said due process, they had to say -- it means something -- that was to be a living non-static thing. Now, in our society, we have enumerable methods of ascertaining particular characteristics of an individual, for instance the Nalline test injected into an individual whether or not his pupils dilate indicate that he is then under the influence of a narcotic. We have the blood test. We have the Wassermann test. We have enumerable means now of looking into a person's body by entering in the body and ascertaining certain things.
Potter Stewart: Well, a breathalyzer test, I gathered, does not involve what you call invasion of the body, does it?
Thomas M. McGurrin: Not per se, no it does not.
Potter Stewart: That's a matter of breathing into it --
Thomas M. McGurrin: That is correct, right. A different issue might arise and relative to the force utilized if it was utilized --
Potter Stewart: And so the arguments you make -- you're making now would not -- would not be an argument for excluding a breathalyzer test, would it?
Thomas M. McGurrin: No, not unless we have --
Potter Stewart: You have given emphasis on invasion --
Thomas M. McGurrin: That's is correct.
Potter Stewart: -- that is applied?
Thomas M. McGurrin: That is correct, yes Your Honor. So that when we determine whether or not in a case such as this, due process prohibits this type of conduct. I think we have to look at our society today in the light of such things as a hydrogen bomb and comparing it with -- at the time due process was enacted, what type of lighting was used, whale oil or something. Nowadays, we have the -- the problems of the individual, the problems of society, the advances of science, so that we have to say, doesn't due process really, really include a prohibition against the police using the body -- the inside portion of the body, of an individual for the purpose of convicting him. He --
Speaker: There's also -- the relevant circumstance in which (Inaudible)?
Thomas M. McGurrin: I would hate to say that that should be a basis for making a constitutional decision. I feel that way Your Honor. And maybe I will argue the other way if -- if it were presented to me in a different way. But I feel that we can't say, “Well look, if we have to cut down and slaughter the highway so therefore let's -- just kind of ignore a certain aspect of the constitution.” I think we have to look at the constitution and say, doesn't the state have to adhere to the provisions of the constitution? They just -- must do more expeditious police work and there's nothing that says if a defendant doesn't consent, I mean that if he does consent they can utilize it. This is the case of no consent.
Abe Fortas: Is this blood test considered more reliable than the breath test for purposes of determining --
Thomas M. McGurrin: It -- may I say that -- in most cases that I've tried, it depends on who's testifying and whether or not that particular law enforcement agency is utilizing the blood test exclusively or utilizing the breathalyzer test. I've had the same expert testify that when they were using a breathalyzer, that it was -- that the -- or when they're using the blood test, that that was the most accurate. Then when they use the breathalyzer they say, “Well, that's the equivalent of accuracy.”
Abe Fortas: But in any event, it is not established that the blood test is substantially more reliable than breath test is, is that a fair statement?
Thomas M. McGurrin: I would think the experts I've spoken to would probably say off the witness stand that the blood test is more reliable. And that a tissue test from the brain is the most reliable but of course, that's difficult on a living individual.
Abe Fortas: But you're telling us that the breath test is -- in your experience, adequately reliable or has been accepted --
Thomas M. McGurrin: Yes.
Abe Fortas: -- by the courts and juries?
Thomas M. McGurrin: Never had a court disallow it by reason of the fact that it was deemed inadequate or inaccurate.
Abe Fortas: Is there any reason in which we can take cognizance why the police here insisted on the blood test and then insist on the breath test?
Thomas M. McGurrin: It would be a practical difficulty to administer a breathalyzer, it would be really a problem in forcing an individual to --
Abe Fortas: Do you call it then really “forcing” here in the sense of political -- of physical strength because --
Thomas M. McGurrin: No, that's right.
Abe Fortas: -- agreed that if they -- it would be pleaded as I understand it as if they have forced him.
Thomas M. McGurrin: Right. But they -- in a breathalyzer test, one has to blow into a tube which then goes into a machine so a certain amount of breath has to be exhaled -- exhaled through the tube to get into the machine and it might cause a more practical problem. So, I think that might be one of the reasons.
Abe Fortas: I see, thank you.
Thomas M. McGurrin: Now, in Rochin, it seems that when this Court discussed Rochin and the Breithaupt case, that it actually limited Rochin to a case of brutal or offensive conduct which in reading Rochin, I don't believe it's necessarily, the conclusion that one must reach. I think that in reading Frankfurter's decision in Rochin, we can observe that he discussed interpreting constitutional phrases and he said that some of the phrases have been fixed by a gloss, which is a phrase I think he used, and that we are in effect held to this interpretation. But that in cases where the constitutional provision, and I think such as due process and fixed with a permanent gloss, that we must look at and he said, “When the gloss has thus not been fixed but is a function of the process of judgment, the judgment is bound to fall differently at different times and differently at the same time through different judges.” And this to me is more of a proper and correct analysis of the Rochin case, and to say that -- to violate due process as far as the state is concerned, one must physically and brutally take the evidence from the individual. As I indicated I think in my brief, if this individual, Schmerber, had fought with the officer with his broken leg and his fractured rib and his sutured mouth, number one, I would say it would have been painful. Number two, he would have been then possibly subjected to punishment for violating some of California statutes involving resisting arrest and the punishment meted by -- out by the judge, would or could have been more severe, so that it seems strange to say that -- if this Court holds, “Well, the police have the right to do this as long as they don't beat you up.” Then logically, wouldn't I have to return to California or to any state in effect and say to a client that, that you're not entitled to due process under our constitution unless you fight for your rights and possibly shed blood one way or the other. It -- to me, it doesn't seem logical. And where is the point of no return on the insertion of the needle. For example, is the mere insertion of the needle into the arm, we say, “That's all right.” What if the individual withdraws the arm as we've done in Duroncelay, People versus Duroncelay where the Court said that was a reasonable search in California and that that was okay. But what if he withdrew it three times? Would it take three times for the withdrawal and the insertion of the needle before this Court would then say, “Well now this -- this is a violation of due process because it's not fair to have been stuck three times.” I don't think that distinction is a logical distinction. I think it must -- will fall more definitely and basically that the insertion of a needle into the body, the performance of the surgery on an individual constitutes the violation. Or otherwise, I think we'll then have to resort to the premise that he's taken -- withdraw blood from the body which the blood is in contraband, it belongs to the individual. It's not like a narcotic -- it's his own blood. It's not a gun that was used in a burglary or a robbery which is out in the exterior of the individual. It's something which is his. Then why can't the state, if we conclude that due process doesn't prohibit this, why can't a state then insert a needle and inject Nalline into any individual who was arrested and who appears to be either one under the influence of intoxicating beverages or a narcotic. They'll take out so many cc's of blood and stick in so many cc's of Nalline. I think it follows if this Court holds that it's proper to withdraw the blood that is certainly just as proper to inject the Nalline if we're looking at the welfare of society and how we want to keep narcotic users off the street. So, I feel that this Court in determining the issue really should conclude that the Due Process Clause does prohibit the invasion of the body in this manner.
William J. Brennan, Jr.: Mr. McGurrin.
Thomas M. McGurrin: Yes.
William J. Brennan, Jr.: I gather the -- on the facts, this sample was taken by a physician?
Thomas M. McGurrin: Yes.
William J. Brennan, Jr.: And there's no contention that the -- in any way he departed from proper medical standards and --
Thomas M. McGurrin: None, they've stipulated that.
William J. Brennan, Jr.: Yes.
Thomas M. McGurrin: Now, the next point is the question of self-incriminations and I feel that although this Court and many other courts are -- the majority of this Court have held in the past that self-incrimination basically only applies to testimonial compulsion and not to “real evidence” that nevertheless in this type of case it seems analogous to a situation whereby some type of force or some subtle means, the law enforcement agency extracts a confession or an admission out of the defendant. Now, this Court has held that that's a violation of due process yet that the exact and sole purpose for the withdrawal of the blood in this case to be used against the defendant and in obviously, incrimination, and the Breithaupt citation in the Duroncelay and California all talk about the efficacy of the blood sample in proving guilt or innocence.
Potter Stewart: Now, that must be -- that is the difference isn't it?
Thomas M. McGurrin: Pardon?
Potter Stewart: A coerce confession is a coerce confession. And the only purpose of it is to coerce a confession. Here the purpose is the ascertainment of truth and that might well have turned out to completely exculpate this person from the charge of being intoxicated, that the -- and for individual, have turned out for his protection that they found that the blood sample didn't show any alcohol in it.
Thomas M. McGurrin: Your Honor, I submit the same argument -- argument can be utilized to a confession because we're -- in the argument Your Honor is assuming it's confession, let's say the law enforcement officers used force against the defendant and he admits certain facts, doesn't constitute a confession but he admits certain circumstantial facts which in the web of the whole case enables a conviction or result. And yet as far as that the defendant is concerned, and as far as Your Honor might be concerned, there are exculpatory facts. Yet it would still be excluded because it was a violation of due process and it violates his privilege against self-incrimination.
Potter Stewart: But I assume in this case that if the blood sample have showed no alcohol at all, that would have been the end of the case, there wouldn't have been any prosecution.
Thomas M. McGurrin: That's right. And the same thing can be said, I think, of the officer who breaks down the door, smashes into a house because he didn't have a search warrant but he heard someone had narcotics, and he looks through the house and lo and behold, he finds no narcotics.
Potter Stewart: Now, the point here though is that there were eyewitnesses who said that this petitioner was behaving and looked as though he was drunk, so he was intoxicated, and without -- if there had been no blood test at all, I supposed that would have been sufficient evidence to go to the trier of facts, and there it could have -- well, then a finding that he was intoxicated. But here, the blood test showed no alcohol at all that would have been for the complete protection of this man and that would have given a lie to the eyewitnesses and it would have shown -- it would have shown that they were mistaken, that instead of being intoxicated, this person was sick or whatever. Isn't that correct?
Thomas M. McGurrin: Yes, Your Honor.
Potter Stewart: And that extent it is not precisely analogous to -- towards confession or to a search and seizure.
Thomas M. McGurrin: No, but again -- you have to start all over the premise. Is it or isn't it a violation of due process, because when someone breaks down a door to go into someone's house, you don't know beforehand whether you're going to find something there. The violation of the constitution occurs when the door is broken down.
Potter Stewart: Yes.
Thomas M. McGurrin: The violation of constitution occurs when the needle is inserted. Now, that to me is the point where you have to make a decision not afterwards when you determine whether or not something bad is found or something good is found depending upon which side you are. So --
William J. Brennan, Jr.: You mean -- excuse me, would you make this argument like fingerprints?
Thomas M. McGurrin: Not at this point, I certainly wouldn't because I think there's a big --
William J. Brennan, Jr.: Well, I'm just wondering -- I'm assuming a situation in which the fingerprints not voluntarily given, but taken in which manner is this -- this thing is to indicate the blood samples were taken here, wouldn't that argument extend to the fingerprints too?
Thomas M. McGurrin: Not the argument -- not completely extend to it, no, I'm sure I could stand up here and make that argument but I certainly wouldn't be as convinced of it as I am at this particular point because in, one, you have the invasion of the body which I think is a big distinguishing feature. And the other, you have -- the forcing of an individual to do something with an exterior portion of his body -- standing up or giving the fingerprints. And I think another distinguishing factor is the fact that in fingerprinting you have a tremendous problem in our country of identification.
Speaker: How about the police line up?
Thomas M. McGurrin: Well, I think the counsel should be present in a police line up.I didn't feel that that's a constitutional requirement.
Abe Fortas: Is there a California statute that specifically authorizes the police to take blood sample?
Thomas M. McGurrin: No. But there are statutes, which authorizes the utilization of Nalline if the defendant consents to it.
Abe Fortas: Well this -- yes, but this is (Voice Overlap).
Thomas M. McGurrin: There's no such statute which --
Abe Fortas: -- on that, is it your feeling that this was a tort committed by the officer for which he has no immunity or privilege?
Thomas M. McGurrin: Absolutely. The doctor --
Abe Fortas: Do you think it was?
Thomas M. McGurrin: Doctor and the officers are both responsible for the tort, definitely.
Potter Stewart: Well, except as a matter of state law. I thought that this procedure had been completely judicially approved.
Thomas M. McGurrin: Yes.
Potter Stewart: So as a matter of state law, it's not a tort, is it?
Thomas M. McGurrin: I see -- alright, yes, you're right. I would say I -- I have a feeling relative to the fact that this -- the state law of course is --
Abe Fortas: It's judicially accepted, has there been any tort action brought?
Thomas M. McGurrin: No.
Abe Fortas: But all you're saying is that the evidence, so obtained, has been accepted by the courts in a proceeding against a person whose blood was taken?
Thomas M. McGurrin: Yes.
Abe Fortas: But it doesn't -- it may not necessarily follow that this state court (Inaudible), this is not a tort. It may have held that it doesn't -- it's not a tort, which has in effect of requiring the exclusion of the evidence. But you're telling me that there is no state statute that authorizes this kind of procedure.
Thomas M. McGurrin: That is correct. And the other point of course is the fact that a search and seizure made after a lawful arrest, and I'm not arguing the lawfulness of the arrest, search and seizure must be reasonable. Again, I say that I don't see how a puncturing of the skin or an entry into the body can be deemed reasonable. The searching of the individual's clothes, the searching of the immediate area has been held to be reasonable. But the entry into his body, I submit, is not reasonable and I think that both the Fifth and Fourth really run together here when we talk about search and seizure and about self-incrimination, that they run together here, and result in a conclusion that it's improper to make this type of entry. And additionally, whether or not the Court really feels this point as important that -- it's a point that's raised so frequently in California, giving the instruction to the jury that they can consider the fact that the defendant refused to give breath test or a blood test. I think, if the Court decides that the individual has the constitutional right to refuse, for example the blood test, that then it is improper and a violation of Griffin versus California to enable the Court to comment to the jury on it and enable the jury to draw a conclusion from that fact. Thank you.
Earl Warren: Mr. Davenport.
Edward L. Davenport: Mr. Chief Justice, may it please the Court. The counsel's argument says he does not contest the reasonable -- the fact that the grounds for a search was a reasonable probable cause for the search. It's our contention that the incident to a lawful arrest to police officers may make a reasonable search. The Court in this case ruled that the taking of blood was such a reasonable search incident to a lawful arrest. Now, a little bit more on the facts, the facts of this particular case were that this man had involved in extremely serious accident, had driven across the wrong side of the road gone -- probably had to go with the double line to get that wrong side of the road because the double line continues down through the road. He went up over the curve across a parkway, severed a 12-inch tree trunk, 12 inches in diameter -- excuse me Your Honor. And that he then continued on through a chain-link fence and ended up parked on the front of someone's lawn facing the opposite direction. From these facts, the officer could tell that the man had been going north bound and had driven across the wrong side of the road. With such force, according to the evidence and according to the photos submitted by the defense, the car was completely destroyed. The time the officers arrived, the other passenger was injured and the defendant indicated that he was at the scene and had some injuries. The officer at that time smelled alcohol in this person, saw his eyes were glassy, watery, bloodshot, he was staggering around the scene. The officer had a conversation at the scene indicating that this defendant was driving the car. He continued onto the receiving hospital at which time he had a conversation with the passenger, which indicated that the defendant was driving the car. From his observations at the receiving hospital, he determined that the man, in his opinion, was under the influence. From those facts, there was a conversation and he asked the man to take the breathalyzer test, he refused. He then asked him to submit to a blood test which the officer said he agreed to take at that time. Now, the counsel refers to an affidavit. Now the people did not -- prior to the submission of the affidavit, prior to the starting of the trial, we did not refute the affidavit for purposes argument on that motion. The Court continued its ruling into the trial. At the time of trial of course, we prove that that was in fact not the case, the defendant, in no time, in his testimony, ever mentioned anything about the blood test other than to say he didn't take it and he had no other conversations to that effect. Counsel also refers to a broken ankle. The P -- or Defense G, the hospital record indicates the man did not have a broken ankle but a sprained ankle with a contusion. At least, at the time at the hospital, the officer asked him and he said he agreed. The officer then obtained a doctor, an M.D. licensed in the State of California practice who prepared to take the test. At that time, he withdrew his arm and said that my attorney has told me not to take these. The officer explained to him, we will note for the record that you have objected and therefore, we'll use -- and that point, the defendants -- under those circumstances, I will submit, no one held the arm when the arm test was taken. Now we submit that taking of blood sample on a medically approved manner does not offend the such “sense of justice” as referred to in the Brown versus Mississippi or does constitute brutal or “shock the conscience,” deprived the person -- the petitioner of due process under the Rochin case. Now, in this case, as distinguished from Rochin there was no force at all used on the individual. There's no question he objected. The -- our contention --
Hugo L. Black: I understand if you're relying on Rochin, you didn't quite state all the tests, is it “shock the conscience” of the English-speaking world?
Edward L. Davenport: Well Your Honor, I don't think that we intend to limit it, just to the --
Hugo L. Black: I thought that opinion did.
Edward L. Davenport: There is a quote to that effect in the opinion. But I think that that's just goes back to the fact that we derived our system of justice from England rather than the -- I don't think that fact is material to the determination of the case, one way or the other. The point and I think that our -- as we see the case, we submit that Breithaupt versus Abram should still be the law of this Court in view of the later decision of Mapp versus Ohio, Malloy versus Hogan, and Escobedo versus Illinois. We feel that the importance -- the question to be determined, we have the officers have a right to make a reasonable search of the person at the time of the arrest. We feel that the questions is -- one of the reasons of this search and we submit that the taking of blood test is not, in the least, unreasonable. At the time -- shortly after Breithaupt, California came down with the case of People versus Duroncelay. At that time, California had already accepted the exclusionary rule prior to Mapp and the People versus Cahan. And the Court at that time considered whether or not this was a reasonable search incident to a lawful arrest, and they determined it was. And they went back and said, in one of these circumstances, it should be considered as to reasonableness, is of course the great incident of death or injury on our highways that they consider it caused by the use of alcohol and driving. But it should be considered too that this test was -- extracting of blood was so common with no resulting injury to the individual. There was so reliable to this effect, both to convict them and to exonerate, to show the true state of the individual at the time, which was in question, that this was in fact a reasonable search and seizure. And I submit the blood test is a very minor deal with my own three-year-old daughter who submitted too last week without a whimper, so I see no shocking or the community standards about that sort of thing attest. That the importance of the blood test, its probity value has to be taken as soon as possible after the accident. But therefore, that any time, it has allowed it to diminish, the person, as you know sobers up against the burn of the alcohol, it does not have the probity value. But it is a reliable method, the testing, and the blood analysis, and chemical analysis -- it has been upheld by the courts. But I would say in California under -- in a case law, to deny an individual arrested for a charge involving intoxication, to make a phone call for his own doctor to take a test, is a denial of due process. For the police at any time to interfere with the man after he's released is denial of due process and no government agency can do anything to interfere with this taking of blood test even though he may be inquiring at a city-owned hospital, they have a duty to give him that blood test. So I therefore say that this is merely the taking of real evidence which will prove the issue of fact. The question of reasonableness warrants for each case, we cannot take and conjure up hypotheticals, which a situation be unreasonable, we are limited to the facts of this case. Under the facts of this case, the search incident to a lawful arrest, the taking of blood was in all certainly reasonable, it had no brutal force, it didn't upset the community standards, this is something that is readily accepted by them.
Earl Warren: Mr. Davenport, may I ask, if it would make any difference if this man had resisted physically and it had to be taken by force --
Edward L. Davenport: As a question of law or as question into our -- what we have done in the circumstances?
Earl Warren: I beg your pardon?
Edward L. Davenport: As to my opinion of the law Mr. Chief Justice or as to what would have happen under the circumstances?
Earl Warren: No, I ask you as a matter of law, that it would make any difference in your case if the man resisted physically and as well as resisted mentally?
Edward L. Davenport: Well, Your Honor, I think that the question is one of the right to make a reasonable search so the question on each case must be determined as what was done reasonable. In the Duroncelay case, the man resisted to some extent of trying to move his arm away. They held his arm and the blood was taken. The Court said that that was not a violation of the Rochin rule, the brutal force. The question becomes one of -- when you use excessive force and that point re-arises, then that is no longer reasonable search and no longer a reasonable seizure. I submit, as counsel said, that we are not about to take a test. In fact in our policy in Los Angeles, we do not take blood test under any -- if there was any resistance. We are not going to approach the Rochin rule. But as a matter of law, I think that is -- the question determined in each case is whether or not the taking was reasonable. The man as I say in Duroncelay merely tries to pull his arm away. The holding of that arm is certainly not to make the blood take -- the taking of the sample unreasonable, but if we get to the situation where -- of Rochin, it certainly does.
Speaker: Well, does the state has a right to take the blood (Inaudible)?
Edward L. Davenport: Yes, I believe they have Your Honor. That's our position.
Speaker: Whether the state (Inaudible)?
Edward L. Davenport: Right.
Speaker: (Inaudible)
Edward L. Davenport: Well Your Honor, I submit that the Rochin --
Earl Warren: Well, Mr. Davenport wasn't the liquor beyond the reach of them too, unless they went into his veins and got -- got his blood?
Edward L. Davenport: Oh yes --
Earl Warren: -- as opposed to the narcotics that went into his stomach?
Edward L. Davenport: Well, if Your Honor please, in answering both Mr. Justice Harlan's questions and your question, I think that the question again is one of reasonableness in each individual case. That if the taking is reasonable under the particular circumstance of that case, there is no problem. If we go so far as to get this brutal, aggressive, excessive force, then the search at that time becomes unreasonable. We certainly have a right to take an incident to a lawful arrest I believe and that is the Duroncelay rule and I think that the question, if we do, could become excessive, then you may no longer reasonable.
Earl Warren: Well I just -- I just wanted to get the -- your answer to the question as to whether it made any difference to your case if the man said, “No, my counsel has advised me not to -- not to permit this and I won't do it.”
Edward L. Davenport: Well --
Earl Warren: And the -- and they proceed then to take it or whether he said, “No. Now, you can't do it and if you do, I'm going to fight it out with you.” And he -- and he become belligerent and wants to fight it out with him, can they then force him to do it as they can the other way, that's all I want to know.
Edward L. Davenport: I would say yes --
Earl Warren: Does it make any difference?
Edward L. Davenport: Yes, if they're able to do it without using excessive brutal force. If they're able to take and hold his arm and nothing more happens, I don't see -- there are no -- they have a right to take the blood, they have the right to use reasonable force to do it.
Earl Warren: Suppose, he's a little stronger than the people who were -- who were trying to take it, would it make any difference then if he --
Edward L. Davenport: Then you're beginning to --
Earl Warren: -- if he fight them off and perhaps beat them in the -- in the room that they're in?
Edward L. Davenport: Then you are getting to a problem and that's the time when we would not take a blood test.
Earl Warren: And you would say that that --
Edward L. Davenport: You may still have a -- we may still have a right --
Earl Warren: -- that fighting in the state -- on the part of the a man who is under arrest would make the difference and would eliminate him on the necessity of having one of those where a man who is perhaps a good citizen, otherwise would say I'm -- I really on my constitutional rights, and the advise of my lawyer, and I refuse to let you take it. If that man -- if that man is -- has his blood taken, you say that's all right. But if he acts like a hoodlum in there, and wants to fight it out with the police and he's able to prevail to some extent, then you say that that they couldn't do it.
Edward L. Davenport: No, Your Honor, I say the right is the same in both cases. If we -- it's reasonable -- if we determine that's a reasonable search, we could do it in both cases, because all I'm saying is that if we reach the situation where the force is so great that we get into our fact situation tantamount to that in Rochin, then that search could become unreasonable under the circumstances. I think that -- that when -- there are numerous cases where law-abiding citizens do not get the same rights as one who has a complete -- “brute” as you put it.
Earl Warren: Where for instance?
Edward L. Davenport: Well, we have numerous situations in the law now where one who obeys the law doesn't have the problems. We have the situation in our courts that one who obeys --
Earl Warren: If he obeys the law, he isn't in any -- in any troubles.
Edward L. Davenport: Probably, suppose he's charged with a crime, it becomes --
Earl Warren: I beg pardon?
Edward L. Davenport: -- charge with a crime, if he comes to the court timely, he will -- he waives his rights, he does not get the benefit. And some of the others who do not do this were able to prefect the rights because they completely disobey the law. I think there are lots of times in society without going into law that where someone is a law abiding citizen, doesn't get all the same rights and benefits that someone who just disregard the law do.
Earl Warren: You mean, after he's in custody that the -- that the law has the right to give a belligerent fellow who will not obey any -- any rules and regulations, more benefits than a man who is decent and who does comply with --
Edward L. Davenport: No, Your Honor, I do not --
Earl Warren: Well, what --
Edward L. Davenport: The law and the right remains the same in both cases.
Earl Warren: Well, how do you differentiate them here then if you -- if in one situation they're entitled to take the man's blood and in another they are not.
Edward L. Davenport: They are entitled to take the blood in both cases Your Honor. But it had, it would still have to be done in a reasonable manner. I say that we have the right to take it and possibly go back to Rochin, if they could done that in a reasonable manner, we cover that, there would never been any holding as it was.
Earl Warren: Well, what -- what is reasonable here if the man is in the hospital bed with a broken leg, or supposedly broken leg and other -- and other wounds and so forth, then the police then come in and demand to take his blood. And he objects madly but hasn't strike to make any physical resistance, you would say, “Because of that fact, it's perfectly alright.”
Edward L. Davenport: I would say that Your Honor whether he resist physically or he submits, those objections should make no difference at all. The case we have before us, the man was sitting in a treatment room in a receiving hospital where he had -- where he had been given a tetanus shot, where his lips had been sewn up, all much more, he had much more punctures there than you would have when taking a blood test and there no objections with those. I think that under the circumstances, your basic rules and rights are different than -- neither in -- than not at all.
William O. Douglas: Where was he arrested, in the hospital room?
Edward L. Davenport: He was -- yes, Your Honor he was arrested in the -- he's in the hospital.
William O. Douglas: At the same time he would take this test?
Edward L. Davenport: He was arrested at 1:45 when the blood test was taken. And he was given his rights to counsel, has a right to remain silent, he were told that anything he said would be used against him.The blood was taken at 2 A.M.
William O. Douglas: He was warned and he said -- he was warned and he said he -- his counsel has told him not to -- not to take it.
Edward L. Davenport: Well, he said that he had -- first he agreed he would take it. Then when the doctor came in and presented to him -- according to police officers testimony, presented himself ready to take it. But he said, he had been told by his attorney not to take such test.
William J. Brennan, Jr.: But when was the warning took place?
Edward L. Davenport: The warning was in between that time, between the time he was arrested and the time when the blood was taken.
William J. Brennan, Jr.: And what was the precise warning?
Edward L. Davenport: The warning was precisely that -- you have a right to obtain -- to have counsel, you have the right to remain silent, anything that you say will be used against you.
William J. Brennan, Jr.: Anything that you've said?
Edward L. Davenport: Yes.
William J. Brennan, Jr.: I gather you don't -- that does not in privilege terms encompass taking of the blood, does it?
Edward L. Davenport: We feel it does not Your Honor, no.
Hugo L. Black: You've contested no ordinary layman's language. Would you say that they did or did not compel him to give the blood?
Edward L. Davenport: Oh, in an ordinary language, in layman's language Your Honor, he submitted to the blood test but he noted he did not voluntarily submit.
Hugo L. Black: Why did he submit?
Edward L. Davenport: I couldn't say why he submitted. The only thing he was interested in --
Hugo L. Black: Isn't it just plain words to say he didn't -- they didn't compel him to that amount of blood?
Edward L. Davenport: The blood test was taken without his consent. There's no question to that.
Hugo L. Black: What?
Edward L. Davenport: The blood test was taken without his consent. The point of saying that he submitted was to indicate there was no force used or no resistance.
Hugo L. Black: But the purpose of it was to use it as evidence against him?
Edward L. Davenport: I would -- yes, Your Honor, the taking of blood test was to be able to use it --
Hugo L. Black: He had to compel to give his blood against his consent so that the state can use it as evidence against him.
Edward L. Davenport: Or we can use it as evidence to exonerate him and to --
Hugo L. Black: Well, (Inaudible) it seems to me like you practically had enough without all of these -- going to this trouble. But what you have is that -- is you haven't used the word, you haven't mentioned the word compel.
Edward L. Davenport: Well, the blood was taken without his consent.
Hugo L. Black: Well, then -- you've mentioned about unreasonableness according to the laws of rules of decency of the civilized world, but you haven't mentioned the fact that the Fifth Amendment says the man shall not be compelled to be a witness against himself. You mentioned Malloy and Hogan which says that's applicable to the state.
Edward L. Davenport: That's correct.
Hugo L. Black: So that what you have here, that he was compelled to give blood against his consent for the purpose of using it as evidence against him, in the trial against him, and that's correct?
Edward L. Davenport: That is correct basically, yes.
Earl Warren: Mr. Davenport, may I ask you this, suppose when -- in your case, after the doctor had taken his blood, the doctor found that he was not intoxicated, that he didn't have enough alcohol in his blood, and the police then concluded that well he had some of the symptoms also of the use of narcotics. Could they get -- could then have given him the Nalline test and gone it into his veins for -- for that purpose?
Edward L. Davenport: The Nalline test in California Your Honor is covered by a statute. It can --
Earl Warren: Well, I know but --
Edward L. Davenport: -- only be given with consent --
Earl Warren: -- but statute or not, let's --
Edward L. Davenport: I (Voice Overlap) -- Your Honor --
Earl Warren: It makes no difference whether there's a statute or not because you have no statute here so let's -- let's try with a case where it got the statute --
Edward L. Davenport: Alright, Your Honor --
Earl Warren: Would you say that they have the right to do that?
Edward L. Davenport: Not from a separate crime, Your Honor. You go back to arrest. Arrest was based on reasonable and probable cause to things that he had committed, the crime of driving while under the influence of intoxicating liquor --
Earl Warren: Well under the --
Edward L. Davenport: -- under the felony --
Earl Warren: -- under the law of California, isn't it just as much a crime? And isn't it incorporated in the same code --
Edward L. Davenport: We would not have --
Earl Warren: -- if a man drives an automobile under the influence of narcotics?
Edward L. Davenport: It is Your Honor, but we would not have reasonable and probable cause to make the arrest, we could therefore not base a search requiring a reasonable and probable cause on an illegal arrest. Otherwise, our basis for the arrest is the intoxication elements we have before the arrest therefore, we can search only in relation to the alcohol -- driving while under the intoxication of liquor. In other words we -- we contend the whole thing as to this incident to a lawful arrest. Therefore, that's why we have probable cause.
Hugo L. Black: Well, as such might be perfect and reasonable, might it not, and still if you search and you've got evidence against the man which he objected (Inaudible), you would have another problem wouldn't you?
Edward L. Davenport: That's -- that is possible, yes Your Honor.
Hugo L. Black: That was true in the Boyd case wasn't it?
Edward L. Davenport: Well, Your Honor, in Boyd versus United States?
Hugo L. Black: Yes.
Edward L. Davenport: Well, Boyd is a little different in our case, I submit. Boyd is a double rule case. Boyd they said either one, you haven't -- the Court said that they're requiring the man to bring his books to court was in fact tantamount to a search. They he held it was unreasonable.
Hugo L. Black: The concurring opinion says it was not tantamount to a search.
Edward L. Davenport: Well, the majority opinion Your Honor said it was tantamount to a search and if he brought it to court, it was the same as an unlawful search. In other words, there was no probable cause. Then you get into the situation, they said if you don't bring it to court, therefore you confess. If you confess, therefore, it's a confession by law and that's against the Fifth Amendment self-incrimination.
Hugo L. Black: And didn't both the concurring opinion and the majority opinion rely on its admissibility of evidence -- in the admissibility of evidence, on the fact that it compelled them to give evidence against himself.
Edward L. Davenport: But compelled him to confess, if he didn't -- if he didn't bring the material for the Fourth Amendment, he confessed by law under the Fifth Amendment. He was deemed to confession. He confessed every element in the People's case, charging the complaint. So it's the same as an oral compunction.
Hugo L. Black: Well, did the majority and the minority -- didn't it -- the gentleman who wrote the -- the judge who wrote for the majority, whether it's a judge who wrote the concurring opinion -- then so far as the inadmissibility of that evidence was concerned, on the fact that it compelled him to produce evidence against himself.
Edward L. Davenport: Well, yes, Your Honor. They did to this extent. The two were controlled. Again, they said one, if you bring it -- it's an unlawful search without probable cause, situation we don't have. If you don't, you confess and therefore you're deemed by law to give a confession to all the charges of the Government, because things can be distinguished, at least the way I read in case Your Honor, those are the two distinguishing points.
William J. Brennan, Jr.: Mr. Davenport, you answered me earlier that the warning was “anything you said.”
Edward L. Davenport: That's correct Your Honor.
William J. Brennan, Jr.: And that you drew a distinction between say and anyone might say, and something like the blood test. I take it you make the same distinction between what one said whether in writing or orally, had a fingerprint for a lineup and such?
Edward L. Davenport: Yes, Your Honor. We don't feel that every aid that a defendant or suspect is required to give the prosecution amounts to a privilege against self-incrimination.
William J. Brennan, Jr.: Well, I just -- I just noticed when you answered --
Edward L. Davenport: I --
William J. Brennan, Jr.: -- Justice Black earlier, that there's a compulsion again in giving evidence, of course the privilege was phrased “to be a witness against himself.”
Edward L. Davenport: That is --
William J. Brennan, Jr.: I gather your argument is that the privilege then is limited to testimonial --
Edward L. Davenport: That is correct Your Honor --
William J. Brennan, Jr.: -- evidence, that is either oral or written?
Edward L. Davenport: That is correct -- or something that is tantamount to that, such as the Boyd case.
William J. Brennan, Jr.: Well, the Boyd being that -- it's statutory presumption that --
Edward L. Davenport: -- he could not --
William J. Brennan, Jr.: -- not doing something was to be deemed a confession.
Edward L. Davenport: That is correct, Your Honor.
Hugo L. Black: Because Boyd also being, that the fact they've summoned him to bring papers, it was compelling him to give witness against -- to be a witness against himself.
Edward L. Davenport: Well, Your Honor I don't wish to disagree with you. But as I read that case, the Court in the majority opinion said that that was tantamount to a search requiring to bring it -- it was unreasonable because there's no probable cause. And that's the way I understand that case.
Earl Warren: You don't think this tantamount to a search?
Edward L. Davenport: Taking the blood, yes I do, Your Honor. I think that's a reasonable search incident to a lawful arrest. That's our position.
Earl Warren: What are you searching for?
Edward L. Davenport: We are searching for the physical evidence which was in evidence at that time, the condition of the man whether or not he was intoxicated.
Earl Warren: Would the search warrant lie for searching for the evidence?
Edward L. Davenport: Well, search warrant would not be practical, Your Honor because --
Earl Warren: Oh, then the question is whether it would be practical enough?Suppose it was, would a search warrant lie for obtaining evidence?
Edward L. Davenport: Search warrants would lie for obtaining evidence on reasonable and probable cause. Under the circumstances, I suppose that we could state our probable cause for his -- taking the blood under the circumstances.
Earl Warren: Well, this isn't anything that can be used in further acts of crime and aren't search warrants limited to that?
Edward L. Davenport: Well, Your Honor, in the case of People versus Thayer which this Court denied certiorari last week to -- there is a -- it seems to distinguish that, that there's no basic distinction to be a probable cause under a search warrant --
William J. Brennan, Jr.: You mean, Chief Justice Traynor doesn't think this is --
Edward L. Davenport: Well, I would -- Your Honor, Chief Justice Traynor agreed in Duroncelay case, which we rely on heavily, as well as the other cases and I would -- must rely heavily on the cases --
William J. Brennan, Jr.: He finally round up, as I recall, that case by saying, “Anyway this isn't evidence, this is contraband,” isn't it?
Edward L. Davenport: Well, yes, Your Honor that's -- but that's what the Courts have been doing for a great number of years that every bit of evidence such as ledger books has always found to be confidential --
Byron R. White: Mr. Davenport what difference does it make for the state whether you can use his blood or not?
Edward L. Davenport: What difference it'll make?
Byron R. White: Yes.
Edward L. Davenport: Well, it's the same difference in taking of any evidence, it helps to prove the charge. It also --
Byron R. White: Is it -- is it really a critical piece of evidence or not?
Edward L. Davenport: Yes, Your Honor. We use the --
Byron R. White: Why?
Edward L. Davenport: In Los Angeles --
Byron R. White: Why is it?
Edward L. Davenport: Well, in very cases -- when we use it in Los Angeles where a man has injuries, then we use that -- in those situations and very few, we have 201 --
Byron R. White: Why do you use it? Well, what's your alternative if any?
Edward L. Davenport: We have none Your Honor, except the case we have. If we don't -- if a man refused to take the breathalyzer, it's very difficult as the counsel pointed out. You cannot force the man to take it without worrying about the Rochin case. In this case, it's one where it's a very simple matter to take blood, get it analyzed, the blood test is the most accurate.
Abe Fortas: Well, do you agree -- do you agree that if the -- this man had physically struggled with the police and the doctor, suppose he had thrown a punch at them and they had subdued him, and then had -- holding him now, four men were holding him. And they took his blood, and then that was offered at the trial. Do you agree that that would have been excluded?
Edward L. Davenport: No, I -- it comes back to the question of facts in the case (Voice Overlap) --
Abe Fortas: -- on these, but --
Edward L. Davenport: I'm saying Your Honor, if you could use such force without using the brutality or shocking the conscience --
Abe Fortas: What would then --
Edward L. Davenport: -- and then it would be --
Abe Fortas: What about the -- what would you have to do? Throw the -- some of the doctors' equipment that the doctors had?
Edward L. Davenport: I don't know. I really can't say, Your Honor. It have to wait to determine that case when I'd see it.
William J. Brennan, Jr.: Alright.
Abe Fortas: Well I'm -- I'm asking you this.
Edward L. Davenport: I don't know. I can't --
Abe Fortas: In terms of this case, what does -- you said that if there was brutality in subduing this man then --
Edward L. Davenport: It's provide --
Abe Fortas: Then the blood that was taken from him could not properly be used, that's the law here.
Edward L. Davenport: We have to determine that it must be reasonable taken Your Honor. We have a right to take it, if we can take it without using the excessive force (Voice Overlap) --
Abe Fortas: Well, that happened here according to the testimony of the police officer themselves on page 88 of the record. Is that this man said that -- this police officers' testimony, that the petitioner said that he wouldn't fight those who are taking it because the police officers said that he would indicate into the report the manner in which it was taken that he -- that he would indicate in his report that the petitioner had objected.
Edward L. Davenport: That's correct, Your Honor.
Abe Fortas: And the question is whether it's your position that he -- not only he has to object in this clear manner, but that he in effect has to enter into a wrestling ring and --
Edward L. Davenport: No, Your Honor.
Abe Fortas: -- in the ring for --
Edward L. Davenport: Our position is not that. Our position is if we have the right to take it, we can take it as long as we do it reasonably.
Abe Fortas: Thank you.
Byron R. White: Well, was there any evidence of --
Hugo L. Black: -- (Voice Overlap) in the Boyd's case?
Edward L. Davenport: If --
Hugo L. Black: On that --
Edward L. Davenport: There was no reasonable (Voice Overlap) -- Your Honor, I think we have to read “reasonable” in all three of these amendments, there was no reasonable --
Hugo L. Black: Does it mean that we have to --
Edward L. Davenport: -- and probable cause in the Boyd (Voice Overlap) --
Hugo L. Black: -- be reasonable then to -- into compelling a man to be a witness against himself?
Edward L. Davenport: Well, when you take the two together, I'd say yes.
Hugo L. Black: It must be a reasonable compelling?
Edward L. Davenport: Your Honor, our position is that -- as the Boyd case is distinguished from this one.
Hugo L. Black: Forget the Boyd case, I'm interested in the fact that as long as you'd take it, you tell the man to be a witness against himself apparently, if you do it reasonably, then it doesn't violate the constitution?
Edward L. Davenport: No, Your Honor. We'd come back to the question of whether or not he is compelled to be a witness against himself when we say that's limited by the cases to oral compulsion.
Hugo L. Black: Oral what?
Edward L. Davenport: Oral compulsion Your Honor.
Hugo L. Black: Is it? That it's limited to oral compulsion, what about taking papers?
Edward L. Davenport: Well, I'm sorry Your Honor we're --
Hugo L. Black: Asking him to turnover the paper.
Edward L. Davenport: Your Honor, which is why --
Hugo L. Black: Well, it couldn't be (Inaudible) --
Edward L. Davenport: When the -- the privilege against self-incrimination as we see it is now refers to testimonial evidence, and not to non-testimonial evidence.
Hugo L. Black: Well, what is testimonial except giving something to be used against him, you don't claim he has to give it in the Court, do you?
Edward L. Davenport: No, I don't. But I'd say that has to be oral statement from his lips that are tantamount to an admission or a confession.
Hugo L. Black: That gives up his -- if he gives up -- if you make him give up something else and convict him, that's alright?
Edward L. Davenport: Well, Your Honor that seems to be the law today.
Hugo L. Black: Maybe that's a contraband, maybe that's the argument.
Edward L. Davenport: No, Your Honor --
Hugo L. Black: The taking of the blood is contraband because it has liquor in it?
Edward L. Davenport: No, Your Honor.
Byron R. White: On that basis, they could take all his blood?
Edward L. Davenport: Your Honor, that wouldn't be reasonable again, any other questions (Voice Overlap), no other questions? Thank you very much.
Earl Warren: Mr. McGurrin, did you have anything further?
Thomas M. McGurrin: No, I think, if Your Honors ask questions I -- very well.
Earl Warren: Very well.