I would reverse the conviction of appellant upon the ground that there was a violation of his constitutional right to be free of unreasonable searches and seizures as embodied in theFourth and Fourteenth Amendments to the United States Constitution.
The case cited in the majority opinion (Schmerber v.California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826) to support the validity of the withdrawal of blood from the defendant over objections, requires an opposite conclusion from that reached by my colleagues.
The rationale of Schmerber has relevance here, first, because it definitely brings the withdrawal of a blood specimen from an accused within the prescriptions of the Fourth Amendment. The court stated at page 767:
"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 theFourth 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 * * *.' (Emphasis added.) 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."
Secondly, the holding that there was no infringement *Page 186 of the defendant's constitutional rights under theFourth Amendment was premised upon the recognition of the emergency that arises by quick dissipation of alcohol in the blood stream. The court said at page 770:
"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,' Preston v. United States, 376 U.S. 364, 367. 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."
Schmerber was premised upon the determination that the search without a warrant was reasonable because of an emergency and, indeed, this fact is the core of the decision. This is consistent with the following statement made at page 770.
"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." (Emphasis added.)
There was no emergency under the facts of this case and, hence, a search warrant was required. The blood specimen sought by the prosecution was after the indictment of the accused and months after the alleged offense, and was sought for the purpose of determining the defendant's blood type for comparison with the type found at the scene of the crime. The blood type of an individual is constant in nature and one court has taken judicial notice of this well known scientific fact. SeeGraves v. Beto (D.C. Tex.), 301 F. Supp. 264.
The Court in Schmerber, recognizing it was writing *Page 187 on a "clean slate" and formulating a new rule of constitutional law, deemed it necessary for that reason to conclude the opinion with the following cautionary language at page 772.
"That we hold today 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 otherconditions." (Emphasis by writer.)
This, to me, is a clear warning not to do what in my view the majority ruling does, and that is to extend the Schmerber holding to a case completely dissimilar upon the facts.
R. C. 2317.47 appears to be drawn in sufficiently broad terms to authorize the test in question. R. C. 2317.47 was formerly Section 12122-2 of the General Code and was enacted in 1939 in 118 Ohio Laws 571. Whatever broad scope of freedom the Legislature possessed to enact this type of legislation in the pre-Mapp era, it ended in 1961 with Mapp v. Ohio, 367 U.S. 643,6 L. Ed. 2d 1081, 81 S. Ct. 1684.
In Ker v. California, 374 U.S. 23, 10 L. Ed. 2d 726, the United States Supreme Court held that the standard of reasonableness made binding upon the states in Mapp v. Ohio,supra, was the federal standard under the Fourth Amendment. The Court further stated that Mapp v. Ohio did not mean a total obliteration of state law regulating searches, but only thatfundamental federal criteria must be met.
It would logically follow that state procedure, whatever label that might be applied but in effect a defacto search warrant procedure, which incorporated required compliance with such federal criteria would be permissible. Needless to say, R. C. 2317.47 contains no such criteria.
The majority in this case upholds the search because it was ordered after some type of hearing (the details of which we are unaware because no record was presented to this court of what occurred) by the trial judge. While a neutral magistrate, required by the statute to be placed *Page 188 between the police and the citizen, ordered the test, it is still an unlawful and unconstitutional invasion of appellant's rights, absent a determination of probable cause and the other constituent elements of the federal standard, even if somewhat dignified by court order. It is, at most, sheer speculation to say that "inferences to support the search" were drawn by the trial court under a statute not requiring them.
In Graves v. Beto, supra, a blood specimen was secured by deception from a suspect in custody upon a drunk charge for the purpose of matching the same with a specimen at a rape scene. The Federal District Court held there was no valid consent and, further, that a search warrant is required before a blood specimen can be secured from an accused. The decision was affirmed by the Court of Appeals of the Fifth Circuit in424 F.2d 524, and certiorari was denied December 13, 1970.
It is not necessary to determine if the statutes of Ohio are sufficiently broad to authorize a search by the withdrawal of blood from an accused, for even if they are not, that fact neither diminishes or alters the force of constitutional protection in this respect.
I am also of the view that the error cannot be said beyond a reasonable doubt to be harmless and, hence, I would reverse the trial court's decision. See Harrington v. California,395 U.S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726.
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