we are using it to support organizations that tried to build trust as we muslim communities and police in eastern kenya so they can unite against al-shabaab. we are using it to get help to people who need it faster that i think any other agency in the u.s. the government. ..

so i want to thank you for the strong support that this committee and the congress has shown on programs over the years and i pledge to you that with continued support, we will continue to do work that not only does our country proud but that makes us safer, more secure, stronger. thank you very much. >> thank you. my first question is on the issue of human rights last week in saudi arabia. two cases. do you know of any of these cases are raised in the meeting said what are we doing? is a bipartisan group urging the president during a meeting with the king. were these cases raised and if not, what else are we doing with these two people that are jailed

unjustly? >> these cases have been raised including the very highest levels more than one with the saudi government. i know the president and his meeting with the king had an extensive conversation about human rights in saudi arabia. they may have seen some stories about how intense that the conversation was. we will -- i can pledge to you, continue to raise those cases and others both privately with the saudi government and publicly where appropriate and tell people who are unjustly detained for peaceful expression as these individuals are released. >> recently the administration made the country and notably absent from the list in a recent example of religious intolerance is the horrific easter attack in lahore. what has to happen for pakistan to be designated as a country of

particular concern? >> there's a lot of tough calls and the secretary makes these decisions. the test is not simply whether there are significant abuses of religious freedom in a particular country, but whether we feel that there is a commitment within the government to try to do some thing about it and it's an evaluation the secretary make some a case-by-case basis. we had a tissue can stand because after a lot of diplomatic efforts with the government, we were simply not getting a sufficient or acceptable response from the government to our request for action on certain issues with respect to pakistan, the secretary made the judgment that the government is committed to trying to deal with this violence. >> the secretary recently made his genocide designation.

what steps has the department taken to prioritize vulnerable communities like the ancient christian or his cd communities that have found themselves in the crosshairs? >> this has been a burning priority for many of us since this conflict with isil began. i was then iraq about a month ago. mr. chairman, and i visited that his cd religious shrine demolish a few miles north of the front line with isil. we have a lot of programs we are funding to provide direct support, not just humanitarian assistance for psychosocial support for people who have faced violence, escaped captivity on the part of isil. as you know, if your shots to be fired in this war to liberate territories in iraq were fired to protect the cd people when

they were surrounded by the terrorists. i think this is something we need to think about with particular focus in the next stage of the military campaign has this focuses more closely i'm also putting. many members of congress rightly urged us to look at the genocide determination and to call us happening to the christian or two other minorities by its name, but using the terminology is the easy part. the important thing is to find a way to liberate these historical homeland of these people that not only defeats isil, not a lecherous with terrorists, that enables communities to go home with dignity and security and frankly that will take resources and we are going to be working with you in reaching out to you to talk about what it's going to take to do this in the right

ways that people can go home. >> what additional budget resources are necessary? >> i'm not the best person to ask the total cost. it will require in the short-term, for example, almost certainly hundreds of thousands of people fleeing the city. 20 billion people in most all of me to be by somebody. it will require stabilization fund for rebuilding, restoring and detentions of justice. it's going to require security forces including some of the local security forces that christian communities have been forming in that area. we are already beginning to work with those folks. if you look at the various appeals for the humanitarian support, you'll find a lot more

is needed. >> secretary palmieri can illustrate there is cued by remaining the only country to be classified as not free by freedom house and human rights watch provide details on the way rights and liberties are still not respect it in cuba. in light of all of this, why would the administration request the reduction for the 20 million provided annually in recent years and i'm a democracy assistance for the cuban people. >> thank you for the question, senator. the democracy support in cuba. we believe the human rights situation merit attention and rss is designed to work with

civil society, promote democratic ideas, human rights in advance of fundamental freedoms. the level of funding is one that i believe they connect acute on the ground. >> you are saying they don't think we can spend 20 million. the kids on programs to fund 20 million so that's why you're a confirmed last? that's unusual for a government agency to ask for last. >> we believe that's a sustainable level of programming that we can carry out inside cuba. >> what does that mean? >> at the combination of the amount of money that we believe can be absorbed inside cuba at this time. >> i was not feeling two years ago?

is that a change in position? a couple years ago the funding was 20 mill -- what happened to the money appropriated in the past years? >> i have to get back to you and what happened in the previous funding, sir. >> )-right-paren as you don't think dion can sustain $20 million if there's not enough programs to find or sustain $20 million so that's why you ask for last. are you saying that spent. that something you funded in the past getting funded now. is that correct? >> i'm sorry, sir. >> yes. we have spent lately more than $15 million in the past. when they make the request to be honest is over all is a diminishing to do everything we

want to do around the world. the way i look at this, senator rubio, i always welcome as much spending as we can do. as bad as i mentioned $85 million globally for every single country in the world to spend on democracy and human rights programs. i can spend more in every single country where we are doing this kind of work. cuba at this point i think next to iraq is the country that receives the most human rights and democracy support of any country in the world and merit given the importance that this issue has to be united states. but i sometimes look at it and said love to have more. sometimes i look at it and say

i'd rather have more than $200,000 for a country in africa are a country in a show where that is always got to deal with these issues. those are some of the choices. >> this is reallocation of resources to be spent somewhere else within a limited budget. >> we have a very limited budget. far too limited around the world. you know the challenges we've had over all been trained to maintain an adequate level of spending for democracy and governance in a lot of places we care about greatly. cuba is one of them. certainly not a reallocation of a friend supporting democracy and human rights that we have hard choices to make within the limited amount of money that we have for that. obviously i would love us to be able to do more in a lot of places. >> i would like you to be able to do more. i watch you do it in the nonprofit dirt and i think you could do it here as well.

i want to get back to this eco-virus because i think this is an absolute threat to this country. ms. hogan, i will direct this question to you. there is no doubt the zika virus is a public health emergency that's affected thousands of people in the western hemisphere including 300 americans. it causes severe birth defects in newborns including brain damage in line is and in adults it is going to killian barr syndrome, which can cause paralysis. in the last few months, the world health organization described the zika threat as one of alarming proportions. earlier this month, an official from the disease control described the virus as scarier than we originally thought, unquote. we've also learned zika is transmitted. in our country, the most

endangered americans are those who live in the goal state. it is clear that these types of epidemics knows no boundaries. so we have to respond quickly. in february the president requested $1.9 emergency supplemental for saturday. apportionment of usaid to help fight the spread of the virus within the western hemisphere. unfortunately in badly and inexplicably, congress has not prevented the administration with the funding it needs to respond to this outbreak and those who oppose it will be held accountable. it's as simple as that. time makes a big difference in this kind of epidemics. the longer we wait, the more people get infected, the mudslides and fully altered forever. we have seen it. it's coming i sure as i'm

looking at you. so i'm asking you with your limited funds but after his usaid are undertaken to combat the spread of the virus in the western hemisphere. i'm told by some of my republican friends, some of whom supported, some of whom don't, take the money from ebola. that's all other problem. that is not the answer. i don't know what you are doing with your limited funds and you agree we have great need for the funds the president asked for? >> thank you for that question. we share your deep concern about the potential impact of zika in the region including the united states. as a known addition to to the one printed billion-dollar supplemental president has requested is also a step forward to repurpose $295 million from our ebola account to deal with the immediate needs. thus far usaid has conducted

assessments around the region, particularly in those countries for help systems are weak and we have developed a strategy we are ready to launch. our strategy would include social behavior change, communication, sector control, investing and diagnostic techniques, invested in research and development. >> and we diagnose it? is it easy to find out if someone is carrying the virus? >> gdc is the expert in this area but i know they can diagnose it to do it more rapidly and extensively is what we are hoping to bring about three grand challenge usaid issued last week to the private sector for $30 million to invest in innovative technologies and innovative approaches to do the kinds of things i just mentioned in terms of diagnostics. >> doing everything we can with limited resources but it's a race against time.

from my understanding we have so much and i know you've are supporting taking action and i'm so grateful to you. i need to know how long the virus stays in your system. couples planning to have children know the situation. they can pass it on. it's very problematic. i raise it here because it's one of the unusual situation where there is a direct impact for americans going on in another part of the world. you've got to connect the dots. this is the health emergency and i'll be continuing to speak about it. mr. malinowski, afghan women have made progress in education. i've been engaged every time i can do meetings with the women

and its clear women face great barriers especially in regard to the bill of rights. last year and mob brutally killed a woman false they accused of burning the koran. this horrific murder happened in broad daylight in the presence of a security official. disturbingly the afghan supreme court recently vacated the death sentence of four men charged with this murder and reduce the sentences of nine others. this is one example of ways in which the system continues to fail afghan women. how in the u.s. continue to work with afghanistan to bolster the legal rights of afghan women. >> thank you for that question. i'm sure i won't do justice to every aspect of it for everything that were doing. with respect to the afghan judiciary, one of the steps the

president donnie intended to take was to appoint the first woman or women to the afghan supreme court when i saw him last i urged him to do that. he said he was committed to it. he's been unsuccessful. his appointment tab then blocked. >> wait a minute, where they learned to block appointment in the supreme court? >> process --- >> i'm only kidding. >> i was headed towards the same joke. >> nevermind. yeah, i am resisting. >> resist. >> at a lower level, but a very important model we've done a lot of work with local justice institutions and afghanistan through training and other assistance programs to help them implement the violence against women not which has been one important dance in that country.

we have a program out of my bureau which support with sending talented young afghan women to a university for women in bangladesh. we've established a really interesting and important program there. the women who graduate from the program often go back to afghans and then enter the justice system. so at a grassroots level just encouraging more and more women to take up positions in the justice system has been an important priority for our program. >> senator gardiner. >> thank you told the witnesses heard time and testimony. thank you, mr. chairman for holding this hearing. the legislation that the senate and house passed a couple months ago requires the designation of human rights violators in north korea and investigation. out of curiosity, they have

naming people under legislation. >> we are working very hard on identifying. i've often broken publicly. one of the most important things we can do in north korea is to send a message inside the system they are to the mid-level people, to the camp commanders from the people and the public security ministry's who are responsible for the worse uses. we know who you are. we know your names and sunday when this change in the korean peninsula, you'll be in a list you don't want it beyond if you're associated with those abuses. figuring out to people is not always easy for reasons i'm sure he'll understand. we are working with our cars including the south koreans to figure this out. we've made some progress.

guess we do intend to use the sanctions. as you know the president's executive order be for the legislation passed created a human rights sanctions authority for the same purpose. i can't tell you because we are not there yet. >> we be looking at the highest levels of government for the sanctions? >> we will be. we can look at individuals and ministers. my preference in terms of effect did this because i don't want to say kim jog is it that guy. my preference would be to identify people less well known in order to send a message that we do know who they are and they might be some consequence in the future if they are associated with executions of the prison camp system. >> we did provide authorities under the legislation to communicate with north korean people to find ways to build cheap and efficient channels in order to get the message out

about the atrocities of the kim jog your regime and hopefully those authorities will be utilized and hopefully getting the word about the actions. >> yes and i'm grateful for that. we are guests in their interest in programming from old-fashioned methodology like radio broadcasting to newer ways of getting information to people in the north. people are communicating with each other about with people outside the country in surprising ways. there aren't a lot of folks working on delivering content that will raise awareness and bring information to people in north korea about simple things like what life is like outside of the country. we find some of that out of my ear out and i think there is room for about more.

beatnik china in the past of the policy of returning north korea defect or is to the regime. are you in conversation about change in the policy? how is that dialogue taking place? >> would raise this many times with the chinese government as have other countries in the region. it's been a difficult conversation. i would note there were some cases recently in which china has allowed people to move on, who have sat beside them. i think there were some north korean workers in beijing recently who managed to get themselves to south korea without objections from the chinese government. we'll have to see but it's an important issue in important issue and one will continue raids. >> a couple more questions. according to news reports come in the week president obama visited the news reports, the

week after u.s. president barack obama's visit, things in cuba have returned to normal. 150 activists were arrested demand in the face of political prisoners. is that an accurate assessment? how many are dead today in cuba that we are aware of and has there been an increase or decrease in the number of these arrests since our policy change. >> big distinction between long-term political prisoners and those who have been released in the short term harassment of the violence that is inflicted on people who try to hold meetings, organize rallies, discussions to engage in the politics of the island. that is absolutely not let up. a couple thousand of the short-term detentions in the first three months of this year and i think it reflects both a

highly repressive tendencies of this government which we know extremely well and nervousness about the changes taking place in our relationship. i think of the cuban people and

they've got nothing else and i think they're extremely nervous and insecure as that. thank you, mr. chairman. if i could i will introduce you to these students here. a school for governmental international buddies in the neighborhood where i live. over the course of about seven years we worked with governments in the region to build it in today's one of the 25 best public high schools in the united states in this event are here as part of a constitutional competition there participating in and i'm happy to have them here. this is a good hearing to be out. i have the opportunity last week to ask questions with respect to the northern triangle and i'm

going to focus my question to secretary malinowski on human rights issues. yesterday i had a wonderful meeting with senator baldwin and senator kunz with an inspirational city councilwoman in istanbul. she founded the istanbul pride parade in 2003 and there were 30 marchers. by 2014 there were over 80,000 marchers in last year the turkish government used water cannons to shut them down and disperse everyone afterward grown so large. she was here visiting us to talk about ways in which the united states could be helpful. when the senator asked her to tell us how we can help human rights in turkey ,-com,-com ma this was a rant there and i wanted all of you to hear this. she said the health of a fad that has enabled us to do a breakdown as the united states.

the support of the u.s. ambassador, and the support of the u.s. consul in istanbul has enabled the lgbt community to not avoid persecution and hostility as my story about the primary suggestion, but they've enabled us to finally come out of the shadows to send green organized and she said there's no greater friend. when asked what we could do to help, she said the main thing you can do to help his thank our diplomats and folks with the state department to abandon our allies. talk to me a little bit about the work you are doing in your bureau with respect to lgbt rights around the world. whether in turkey, russia, africa or other countries, we see serious, serious challenges. tell us about how or that. >> first of all, it's a very heartening story. one of our best investors scores

and i know that he has been particularly principled in reaching out to the lgbt community and the broader act in this community and turkey which is facing a lot of challenges right now. i would say first of all it begins with recognition of the legitimacy and dignity of people around the world who are working for the human rights of lgbt people and simply asserting their own rights to live in safety and in dignity and simply reaching out a meeting with these folks as he mentioned in turkey and important part of it. i try to do it on all my trips and other senior u.s. officials do it as well. that makes the difference. we provide material support to people who are on the front

lines of the struggle. we have in our budget sent and called the global equality and other governments to contribute to as well. it's one of the emergency funds i mentioned in my opening statement that we can do that for $3000.48 hours to someone who needs help for security your travel for basic support for an ngo doing the work, sometimes for legal support. there have been successful because challenges in various countries around the world, highly restrict it from the repressive laws that we have provided some support. and just not a rhetorical level. we are very careful in our public statements not to suggest that this is about carving out special rights for special kinds of people. what we are talking about is simply basic human rights of everybody in the world.

lgbt. no one should be discriminated against. no one should be subject, no one should be persecuted because of who they are. that message increased made in countries, even about the fans of this issue. >> we met a number of us in istanbul in early january. we were with her right in the city near the blue mosque. very wonderful advocate. she definitely should have a feeling that t. community or political opponents in turkey. this is in a hearing about turkey. i would like to delve into that further. let me switch into another area that is press freedom. around the world, we are singing turkey is a good example. russia is a good example.

i lived in honduras, a journalist is a jazz doing radio station where i worked with the community they are 35 years ago. congressman areata was killed as well. i think the chair alluded to some freedom of press questions in his opening comments. this is so fundamental in sec government cracking down on a free press, you can pretty much bet they will be cracking down on political opponents. they will be trying to engage another authoritarian act 250 as much as we in politics sometimes rankle under a free press that is free and robust in challenging, we sure wouldn't trade it for anything else. toth of the state department through your bureau tries to advance the notion of protecting freedom of the press around the world. >> first of all when the all when the government cracks down on free press, we thank god about it. we talk about it in our high-level diplomatic

engagement. we've done it with turkey. the data with egypt were for tired to get caught out of prison. we've done it in china, sometimes more successful, sometimes less so. journalists are persecuted for doing hard-hitting work. particularly at the time and the issue of anticorruption is coming to a four in many countries around the world this is a darker red now to the work of a free press uncovering their secret and oftentimes you will find we are supporting that kind of work, not just rhetorically because we are adventurous and accountable good governance. we are not going to get one. more generally, we also have programs that are specifically designed to help train journalists in difficult

environment to stay safe. programs in digital safety, physical safety but obviously do not provide 100% protection, but i think they're very helpful to journalists who are facing real danger in the work that we do. >> thank you very much. thank you, mr. chairman. >> you asked about the lgbt community in istanbul. under what form? >> i'll have to get back to you. >> seminar carton. thank you, mr. chairman. let me thank all of our witnesses for their extraordinary work that they do every day. they have human rights. mr. malinowski, a couple questions up at night it first, the russia media is actively engaged to rewrite history as it

would have been inserting the ski and his tragic arrest. the administration has used its inherent authority to grant certain types of sanctions against those who perpetrated those crimes in russia and is also used the authority under the miniscule law that was passed. can you just comment acid the basis for imposing the sanctions as they relate to the allegations made by the russian president? >> one thing i've learned about her sanctions program in this job is how high the bar is for our lawyers, our investigators, the folks who determine whether a particular individual meets the criteria that congress has laid out with the particular

sanction and i can tell you in that case, we relied on multiple sources of information in making these determinations. it's reviewed by many people in the united states government who have to be confident that the information is credible before we put somebody's name on that list. the justice department is involved and in addition to the state department and we are very confident that the people on that list deserve to be on that list based on hard evidence. >> i thank you for that. several people have been sanctioned as a result there is an congressional involvement working with the administration on this issue. it is clear with the information that we received that type of conduct they perpetrated in russia to a person who was

trying to bring to the attention of the authorities they corrupt situation and in fact became a big gun and arrested, tortured and lost his leg. i thank you for clarifying that point. a tragic situation in mass for john with cnn reasonable number of political prisoners in that country and their oppression against those who differ with the government. if political prisoner liberty reporter currently serving a 7.5 year sentence in azerbaijan charges many human rights organizations regarded as politically motivated. she has been a tireless supporter of production in the country and is widely believed she was targeted for her work. could you just comment on what diplomatic tools we have available to raise the issue? >> first of all, we have called

and continue to call for the release and they are very well aware of her case. in the last several weeks we have engaged very intensively on human rights issues. it has anything contributed to release a number of people they consider to be prisoners including an internationally recognized human rights lawyer. the chairman of their election monitoring democratic at the center. we have seen some very positive steps by the government in

response to our engagement that we would certainly agree with you the good news that we've seen is not yet enough. there are still there are still those in detention who should not be including khadijah. we very strongly believe that releasing the remaining local prisoners and more broadly the freedom of expression and freedom of the press would be good for that country's future is good for our relationship with azerbaijan. >> lastly, let me raise a tragic death we had in bangladesh a few days ago as the eight employees founded the bangladesh first lgbt magazine, that murder is still being investigated from the point of view of responsibility. we know that a transport related

group claimed responsibility. this is just outrageous. i would hope the administration will keep a great spotlight on the tragic death and make sure that we have full accountability as to who was responsible and that we hold the government doing everything possible not only to hold perpetrators responsible, but to protect civil society. clearly the merger will have an impact in the country. >> the latest in a series of killings has dimension. this fund has particularly close. we will do everything we can to encourage the government of bangladesh to investigate this and bring the perpetrators to justice. we will support them in doing so. as i mentioned, in my opening

remarks, we also can use and are using some emergency assistance programs to provide support in getting people who are threatened to safety if they want to avail themselves of that kind of support. >> thank you. i think of the panelists for their commitment to these issues. thank you, mr. chairman. ms. hogan, we have a fentanyl epidemic in the united states. sources now say it's very clear that china and mexico are the two principal made by which fentanyl is coming into the united state. the number of opioid deaths in our country have escalated dramatically with the single largest new addition to that leg being fentanyl as a killer in our country.

what is our government saying to mexico about the importation of fentanyl? become separate from mexico and once updated massachusetts where people die, but that's a story for most of our country. what is it that we are telling the mexicans about this importation of fentanyl? >> thank you for the question. the state department has the lead on the dialogue, sawdust mcauley to respond. >> mr. palmieri. >> senator come i thank you. we are engaged in a broad-based efforts with counternarcotics benediction and to improve their ability to eradicate inside mexico as well as strength in our border and one person at cooperation to prevent those kinds of drugs.

>> are you talking specifically about fentanyl? it's like a chemical concoction that is put together. what are you saying specifically to the mexicans? it's a killer. it's a broad-based decision on counternarcotics. law enforcement agencies are engaged in mexico. a full range of drug trafficking that emanates from mexico into the united states. >> are you having specific conversation? it's much more deadly than anything that it's ever been seen before. what are you saying about this one specific addition to the opioid spyro that too many families in america have now

fallen. >> we are pressing the mexican government to do all it can to prevent illegal narcotics from entering the united states and to work collaboratively with our law enforcement agencies and fentanyl is definitely one of those substances that we are focused on, sir. >> i would urge you as strongly as they can to elevate sentinel to the top priority you have. it has the potential to kill tens of thousands -- tens of thousands of american over the next several years. the route is through mexico. so this is something that i just urge you to elevate to the level of intense diet but between our two countries so that they know we mean business on that issue. it is a critical concern not

just urban america, but in every town in our country. good to know is the new drug that is killing people and we've got to stop it. mexicans must be our aggressive partner in this. on human rights in mexico, the security forces have been in located in repeated serious human rights violations including extrajudicial killings and disappearance and torture in the government has made little progress investigating or prosecuting those responsible abuses. what is happening in mexico defies belief. in september 2143 student disappeared in mexico. that was nearly two years ago. at the time i wrote a letter urging the secretary of state to do everything possible to support the mexican government by making forensic resources

available. also the mexican government to bring all those responsible to justice and to ensure positive postmortem identification that allows families to begin the grieving and healing process. that's the mexican government has not done. in 2015, disciplinary group of experts appointed by the inter-american commission on human rights into mexico to investigate the case and work for years to uncover the truth but then the mexican government refused to extend the mandate prematurely ending their work. this past weekend they would base their final report in time series abuses and inconsistencies than the mexican government investigation. the report is the government's version of events into serious question and suggest that the government did not seek to discover the extent of official culpability for these crimes. last friday to "new york times" reported that the group of backs

or sides and dirt carefully orchestrated attacks in the mexican news media, a refusal by the government to turn over documents and interviews of essential figures and they've never tell it to a criminal investigation into whether the officials who appointed them. what is our government doing to persuade the mexican government to allow a group of experts to continue its investigation and what will we do now in response to their report? >> mr. malinowski, please start. >> senator -- senator, we did take note of april 24th report of the independent experts the commission on human rights. we commend the commission's work and we do urge not to go to consider the report in response to the report's recommendations,

specific way to provide assistance to the families and the, to bring the perpetrators to justice and to evaluate the suggested action to address the forced disappearances associated. >> what additional actions can we take to impress upon the mexican government how serious we are about this issue. >> we do have an ongoing human rights dialogue with the mexican government. this is a topic raised that many different levels and will be raised with what the government, sir. >> i think we've got obviously a huge problem here. 27,000 mexicans have disappeared over the last 10 years and the government has done little to investigate. and i think this is an escalating problem inside of their country in the united

states or our partners in so many other issues, to use every bit of leverage we have to let them know we are dead serious about this issue and they cannot be allowed to continue. thank you, mr. chairman. >> thank you. we are going to wrap. i just have one more question. mr. palmieri, there's been a significant uptick in the number of cuban migrants. for example from a sober last year to february, 18,500 cubans arrived in the office. we are also getting similar reports of the coast guard said that over last year 2700 cubans have attempted to enter the u.s. navy says. what is more concerning is the number of people we talked about coming in to ecuador, panama, costa rica. if you read the press reports come by will put the money plane and fly them as close as possible to the u.s. borders to cross him. this is a major developing issue

in much of it is the deal. what is driving the new migration -- what is their position towards this country is talking about moving people in their attitude is our job is to locate and get them through to where they want to go. are we confronting the attitude they have? or, what is the best way to stop this? >> thank you for that question, senator. the engagement focuses on a car are to ensure a safe, legal and orderly migration. much of this migration is undocumented and passing through the central america region. there is no question that earlier this year coaster rica and panama worked with the government of mexico and did air lift almost 8000 cuban migrant from both countries to the

northern part of mexico where they crossed into the united states. poster we got to the staff about time that after that was addressed that they were going to be more aggressive in enforcing the immigration laws and returning people to the last point of origin. we now see an additional backlog of these migraines in panama and now it's reported in the press could talk of another possible air lift between panama and mexico. we continue to urge the country's two employees make racial, to strengthen border controls and to address undocumented and irregular turning people to the last point of origin. we think that is the best way. >> how we pronounce ourselves

against heirlooms whether it the one panama's doing. if you can get into this country that will fly you close to the u.s. borders to get in. you are encouraging more people to do this. we have significant. we have worked with all three countries to ensure they are strengthen our border controls and put in place better mechanisms to prevent this undocumented -- >> we have encouraged the countries in the region themselves to figure out the best solution over the surge of migration. we believe the best solution is stronger enforcement of their own immigration. >> we haven't taught them not to do that air lift. >> we have not told them not to do the air lift.

>> cuba's repressive for 60 years. what is the difference now? is it. the act will go away.but if you hear question art >> we have no plans to change the cuban adjustment act at this time. senator, there continues to be a large migration out of cuba. every flex a difficult economic and human rights condition to the country. >> i understand the administration now plans to advocate for a change to the cuban adjustment act. my question, is there a fear of what i hear is people in cuba think the adjustment act might go away and now that the system is to normalize to get into the u.s. before that happened. >> i can't comment on the individual motivations of these cuban migrants. but i can make clear that the administration is not entertaining any idea of a

change to the cuban adjustment act so that shouldn't be a factor in their decision calculus. >> okay. i want to thank you all for being here today. i appreciate you participating in this and i think it was informative and i'm pleased we have so many members to attend. we always thank you for the work you do on behalf of our country and without i just wanted to add to the close of business on thursday, april 28th. and with that, the hearing is adjourned. >> madam secretary, 72 of our delicate to the next president of the united states.

♪ [cheers and applause] >> case 14 for 1068 burchfield versus north dakota in the related cases.

>> thank you, mr. chief justice and may please the corporate the fundamental problem with the statutes in the three cases as they make it a criminal offense to assert a constitutional right. under the laws of north dakota and minnesota coming person stopped and impaired driving is obligated to take a chemical test to determine the alcohol content of their blood. the states can see that these tests are in the fourth amendment. the united states and north dakota recognize no exception for lob requirement, nevertheless if he or she does not do so. >> is it correct to say you can see that the state could revoke the driver's license for refusing to take the test, either blood-alcohol or brett was there. >> we haven't taken a position on that, but we don't excuse the

purpose in this case that he could do that. >> let's assume that we hold that as a premise. if the state can impose a civil administrative sanction, why can it also imposed a sanction of hypothetical of no more than three days in jail for a three-year suspension. why should there be a difference? >> the final discrimination is taking away the benefit in the first place and the unconstitutional conditions in the situation here which the state is saying you are subject to a penalty in for asserting a constitutional right. >> i think the conditions they're just different. i don't think that analytically that's a different proposition .

>> i have to disagree with that. i think in the unconstitutional conditions, what the court has said if the state has given someone a benefit it has not been given in the first place. all the state is doing. there's been no direct penalty attached to its individual is doing. we will love to see the practical effect of the combination and benefit to see whether or not the state in reality is trying to do indirectly what he could not direct that at this constitutional right. the corporal the tuesday it agreed to the connection between the benefit and condition and the coercion of the state's manipulation imposes on the individual to surrender the constitutional right. it's made very clear in the entire line of cases to figure out is the state trying to do

indirectly something they could not do directly with just advocate a personal right. >> one way of looking up at the state is doing is not to criminalize the insertion of the constitutional right, but reneging on a bargain. we give you lessons to drive and in exchange for that you can send a blood-alcohol test under certain circumstances. that is what is criminalize. >> to look at it that way, in the world of consent in this case at least there is no suggestion that consent to that sort. but in this case there's no reason to believe they had any idea they were agreeing to the bargain you describe. >> for every driver's license you have to sign a consent form to take a breathalyzer test in the event the officer has grants

to require it. >> them answer the question in two parts. in this case where there is what is happening here, the way the statutes operate if you drive on the roads in north dakota or minnesota, you are automatically subject. >> suppose there's -- >> analysis to be not the analysis in this case. >> israel -- >> i am assuming they are going to stop everybody at the border. ..

a. >> is a truly voluntary, the part of defendants a choice that is not -- >> especially in north dakota and sparsely populous states you have to drive the. we know that consent is fictional and that since. suppose it was voluntary and it was explained and so forth and the drivers china. it still seems to me you have an argument that it is the worst. >> i think that's right. i think the analysis would be a consent analysis under schneckloth. if someone is told you cannot drive, something which is essential to daily life to going to your job spirit that would be grounded in what provision? >> that would be grounded in the fourth amendment.

>> no, the right people have to drive. i thought you were just postulating something saying, you're saying the state could not take away that right. >> that's not what i meant to say. what i'm saying is if the submission, as justice kennedy hypothesizes, is people are told and actually are aware that they're being told that if they drive they are consenting to be searched, after consenting to submit to the chemical test, i think whether the state can execute on that depends on whether not there is consent. >> i thought you said of course coercion because you can't survive in north dakota without regard in which i'm happy to postulate. but what is the basis for that right? >> i think that's not a right that's granted in the constitution. the relevance of that is that there would be coercion within the meaning of schneckloth, within the meaning of escorts

fourth amendment coercion. >> so for purposes of analyzing this case went to assume that states could prohibit people from driving. >> i think that's right. >> as far as the border goes, i understand stopping people of the border. but what if there's a sign at the border this is anyone who uses the state roads can send to blood alcohol testing if they are pulled over? >> again that would not be this case because there is no suggestion that the defendants had any idea that the statute existed, let alone that they were voluntarily surrendering the right to assert the fourth amendment. in the hypothetical you suggest, it would be a difficult case for the state to make because the te states obligation would have to be to carry the burden of showing that the defendant actually voluntarily surrendered the right to resist the -- >> is a true the state could prohibit driving altogether without a recent? >> i sort of concede that to the

chief justice. that's not an issue in our case. if the state could not do that then that makes the case even bigger. they could not in condition, they would not have a benefit that they could withdraw. >> i suppose the reason would be the issue we'r we are talking a, all the traffic deaths. obviously that's not a realistic contention but a lot of hypotheticals are not the company get to the basis of comic seems to me the flexibility that the state has in this situation depends upon what rights the motorist has. i understand the fourth amendment argument that does seem to me you making an unconstitutional conditions argument, it is perpetrated in what authority that state has in any event. >> that's right. let me be very clear. i think there are two points that are crucial. one is that we are not making an unconstitutional conditions argument. what the state is doing as a direct assertion of, direct imposition of criminal penalties

on people who assert their fourth amendment writes. this has nothing do with the condition because these defendants are not shown to the been aware that your subject to the condition at all. >> but we are interested in other possibilities. if you assume a state can condition the ability to drive on the state's roads, and let's assume this is not somebody who's crossing the border. assume the state can condition the ability to drive on a state's roads on consenting to a blood-alcohol test, perhaps under certain circumstances. let's say this is done in writing at the time when the person apply for the license, so it's not just implied. what is different about the situation from a number of other situations that i can think of? were example a license to operate an interstate passenger train on submitting to a blood-alcohol test in the event of reasonable suspicion.

the person is operating the train under the influence of alcohol, or the same thing with someone who's operating aircraft. or suppose there were a law that said that if you want to enter certain government buildings, such as this building, the condition of entry is consenting to a search, and you have to sign something, you have to go through the magnetometer. and then if a person got through that, and there was reasonable suspicion that the person had smuggled in some kind of a weapon, that person would be subjected to a search. what would be the difference between that situation and is a situation? >> i think it would be a number of distinctions. one would be i think that at least some of hypotheticals that you offer, veteran hypothetical, for example, that's the skinner case. there is a special needs exception to the warrant

requirement applies. there is no ability on the part of the individual to resist the search. there is no requirement for a warrant in the first place. i think intrinsic of the building would -- >> in those cases don't you just lose the benefit? you don't come into the buildi building. >> that's correct. >> you lose your job. >> let's be clear on what the doctor and his. i think in the skinner situation there simply is no fourth amendment right. we are not asserting the benefits and conditions world, we are simply saying you have no right to resist the search. >> if you say that i recognize there's some secularity in both positions year. you say in skinner there was no constitutional right because we could take the constitutional right away. that's exactly what the government is going to argue. so it doesn't seem to me to help us. >> i would look at it differently. i think what's happening in a

case like skin is the court is addressing the substantive scope of the fourth amendment. it's saying that in the circumstances of the search, is there a requirement for warrant? >> we would say, suppose we was said this is like skin. is the chief justice asked about statistics, suppose there was a compelling showing that those a measurable increase in the traffic fatalities. it does not enforce, we could say this as a special condition and, therefore, you must consent. that means there's no constitutional right because we just said there's no constitutional right. >> that would be creating an exception to the fourth amendment. it's not a certain conditions analysis. it's an important point to let me go back to this. i think what was happening in skinner, the whole line of cases, the court is saying we look at the circumstances that an individual's right to privacy, whether or not there is discretion o on the part of the law enforcement officer to decide whether to execute this

search, all those things go into special needs. the court says there is no fourth amendment, plan b ordinary fourth amendment principles, there is no fourth amendment entitlement. >> maybe i misunderstood but i thought i was the whole thrust of justice alito's question. why can we say it's a special needs? let's assume the statistics are compelling. when we talk about innocent lives, just as we were in skinner. >> i think that the analysis of there is, i mean, we look to the basic fourth amendment's characteristics that go into whether a search is required. in mcnealy, the court essentially a dress of that very question. the court addressed the argument that the nation's impaired driving fro is so severe, so complete that we can disregard the requirement that the court rejected. >> i'm not sure that was that different is in this case.

in the railroad case i think will resent is the need for safe transportation on the trains, protect innocent people, is compelling enough that it falls within the special needs exception. idea i'm not sure why the analysis would not apply here. i suspect more people die from drunk driving accidents than from train accidents, and so a special need would seem to be just as compelling. >> i think that was not the rationale in skinner, certainly not the entire rationale. i think the principal reason for saying there was no warrant requirement there. the court said not just that there was no warrant requirement but there was no probable cause requirement, that would be a search without suspicion at all. i think the reason the court came to that conclusion is kind of the whole combination of after mistakes that it was no discretion, as i said, on the part of a law enforcement

officer to decide who to search. that there were a bright the things that sort of had nothing to do with ordinary criminal process. the court has said time and again that in ordinary law enforcement circumstances where a search is being conducted, that a warrant is required. that is presumption and less -- >> the presumption but there are many ways of analyzing this case. so let me try to get you to focus on one that doesn't have to do with consent or any of these offenses, many of them that you've been discussing. one way to analyze it is you just ask, there is no such thing as an exception to the fourth amendment. the question is whether the fourth amendment requires a warrant in these circumstances, and it seems to me if it does, then you win. if it doesn't, then the state has considerable freedom. it couldn't boil people in oil,

but it might be able to do this. all right. so that's what i'm thinking. the question is, and i don't find this very much in the breeze, and it surprises me. that's what i want you to address. why isn't there a big difference between a blood test and a breathalyzer. look, i look at a breathalyzer. it's a little box the size of a cell phone. it has a little straw on the end and she presented. what you breathe into it is carbon dioxide which is going to get into the environment anyway. you are not going to keep it. moreover, it takes place quickly, so the evidence hasn't disappeared. a blood test, you have to go somewhere else. there is risk involved. time elapsed is, so you lose some of the evidence. it's painful in some instances. so i immediately think, isn't there a difference? so encapsulated in what i'm

saying is what is wrong with a breathalyzer test what it can save lots of lives and is given to those people whether it is probable cause, i take it, or at least reasonable suspicion to think they are drunk. it'll clear the innocent, and cultivate the guilty. very little interest. but a blood test, i mean, that might be a different thing. i would appreciate what you response is to that line of thought. >> and i will do that. i will say to begin with i think you're prefatory statement is quite correct that if it were is required, we win. if a warrant is not required in the state has considerable more leeway in what it can do. breath test is a significant intrusion on personal integrity. as the court said in skinner, first of all, there is no question that the breath test is a search in the meaning of the fourth amendment. that's conceded by my friends on the other side. they towards presumption has

been that when there is a search into law enforcement proceeding, a ward is going to be required unless one of the regular exceptions to the ward requirement applies there. i think it is conceded that there is no such exception. >> why can we say that with respect to breath test that this is a search incident to arrest? >> i think that is not a search incident to arrest for the reasons that were stated by the dissenting opinion in the bernard case by justice stress and page of the minnesota supreme court which the court had made very, very clear consistently that search incident to arrest drones on the assistance of one of the considerations. either the search is necessary to preserve officer safety, or to preserve evidence. >> i think this would be based on the notion it's necessary to preserve evidence, plus the notion that this is about as i'm invasive as a search can possibly be.

and so that given those two things together, that it is useful to preserve evidence and that it is an extremely i'm invasive search, that we can assimilate it into the search incident to arrest doctrine. >> but because both of those points. on the preservation of evidence, the evidence that is being tested here is a blood alcohol level. they're simply using breath as a means of doing the. as the court addresses in mcnealy speedaisspeedais h but there's something very different than the level of invasion. certainly it's appropriate to loolook at the invasive of a seh when deciding whether to do a search incident to arrest. if that were not true we would not have talked about how much you could get off of a cell phone in riley. if that were not true we would allow people to do a body cavity searches when did you search incident to arrest. it seems to be the court can look at the level of invasion

incident to a search when deciding whether a particular search comes within the search incident to arrest doctrine, and that mighty weight of separate out this category of cases from the ones we were talking about in mcnealy. >> let me say two things about that. first, our sense is that a breath test is, in fact, a significant intrusion on personal integrity for the reasons the court suggested in the skinner case. when one takes one of these breathalyzer test, it is not simply that you are exhaling in ordinary way and carbon dioxide is dissipated in speech i didn't say ordinary way. i said you blowhard into an little straw like thing that's connected with what looks like a cell phone. so using the word significant or not doesn't help me. i mean, it is what it is. the question is white it is so interested that the constitution insist on a warrant where the

insistence could undermine in many cases the evidence that you're looking for. now, that's a question of several factors. it just doesn't help me just a significant or not significant. that seems to me the question, not the answer. >> well, as to why we think it is, why we think it is significant as a personal matter, when one takes a breathalyzer test of this kind, the tube is inserted into the person's mouth. you have to exit continuously for an extensive period of time. it could be as many as 20 or 25 seconds. the point of it is to expel what the court has characterized in skinner as people on air speed and what does that have to do with it? after all, if, in fact, the person's eyes are bloodshot when every time you drink four bottles of whiskey, you could look at his eyes and it would be interested at all. what you are looking for doesn't have much to do with the intrusion.

it's the way you were looking for it that's the problem. that's the problem. it's not that you happen to want to know it for a particular reason. >> you are inserting a tube into a person's mouth to get into expel something from deep within the body so they can be tested by the government student excuse me. i know we've assumed that its own evidentiary, but in my experience, police, when they do the road test, but because i want to confirm that you are, in fact, drunk. before they take you in and take you off the road, they are doing this test as part of the probable cause evaluation. is there enough probable cause to bring you in? there may be, independent of it, but sometimes the breath test exonerates people and they go on their merry way. so why are we thinking that it is only evidentiary?

i do think the blood test is, by the way. once you've arrested someone, you've decided to take them off the road, and the road is now safe from that person. >> and that is true with a breathalyzer, too. we are talking here not about preliminary field sobriety screens. we are talking about people who have been either arrested or asked whom there is probable cause to believe that they have been tried while intoxicated. >> there is probable cause, and there is probable cause. i meaning like you we do it as just part of the necessity of the stop and suspicion of the stop? >> because i think again that test we are talking about here, under the laws of both north dakota and minnesota, the officer has the right to give -- >> the right. so what is the percent of tests the breathalyzers that is given by the car?

and what percent a breathalyzer is given after the person has been arrested and moved to jail or the equivalent? >> as i said, they are field sobriety test. i think it's given in practically every case as an initial screening. >> i am saying what percent is which, okay? asking because i'm curious and think that might be relevant. you may not know. >> i don't know. i think the answer is how many people who are stopped in preliminary what i've been arrested for suspicion of driving while impaired, and i'm not sure there are statistics that anyone has that are available. >> supposed the breathalyzer test was improved, there's better technology. let's suppose that all that is required is to put the breathalyzer a couple of inches, image from the person's mouth and wait for the person to breathe at that would be sufficient to measure blood alcohol. would you say that is a search? >> that would be a very different situation.

>> if you compare that with what has to be done here, what is the big difference between those? add-on you have to put a straw in about? >> i would think that most people, maybe this is just me, but my suspicion would be that if presented with the possibility of inserting something into your mouth and expelling something from deep within your body to be tested by government, people will find that more intrusive than having an officer looked in their backpack. >> the reason why people do want is a bit of blood alcohol test is that they don't want their blood alcohol measured. it's not that they object so much to going into a store. do you disagree? >> i think maybe i do, your honor. people don't want, people who are stopped on the road to want to be tested any respect. there's a question about that spirit that's not too. if you're not drunk duty happy to be tested, right? >> i think ultimately you would be happy to be tested and let on your way. >> it's an intrusion when you

pat downs on having probable cause to believe he's committing a crime, and you back in town, which is the worst intrusion, i would guess. it's a much more intrusive form of search and saying would you vote into a straw. but we allow it. >> let me again and sort of offer for two points. one is, the states come in the treatment of blood and breath tests, as the court described in mcnealy, almost uniformly treat the breath tests and blood tests identically. >> why? actually my unknown question, why? that's why started with that because i don't know the answer. >> people understand the breath test come it's designed to obtain the same evidence, exactly the same evidence as a blood test. >> but that's -- go ahead. >> i think you are concerned about the dissipation of this evidence. i think is to the blood and breath test it's exactly the

same spirit you're right that it's designed to get at the same evidence, and you're right that the dissipation of the others worked in exactly the same way. but you're suggesting we should close our eyes to the fact there's very significant difference in the degree of invasiveness. even assuming both of these are searches, which i have to say, i think that we've held without, and so point is a search come there's no question about that, but there are searches, and again you are searches. i guess my intuitions are that that's an important difference when we think about these questions. >> as to the nature of the breath test. again, i've been addressing this and i'm not sure how much more there is to say about it, but i think that the reality is with a foreign object is inserted into a persons body and asked to expel something from deep within the body to be tested, that on the face of it is an interesting

proposition, something most people regard a significant invasion of their personal integrity. >> what about the standard sobriety test? i take joy not challenging a police officer said, walk a straight line. >> that's right. i think i would not be a search. i got it would be a seizure. >> even though it's involuntarily, the person doesn't want to do it? >> if it's not a search, we are not concerned with fourth amendment notations. it may be a seizure and that's something we have not analyzed or thought about, and we are not challenging it here. >> it is a seizure if you say to a person, now you walk a straight line, and the person is in the control of the police officer at the time. >> i think these are almost all voluntary. the officer asks, would you walk a straight line? people do it or attempted to. if that's the case, there can be no fourth amendment problem.

as i say, they are not challenge to get i think they present an entirely different set of issues. just had to return to justice kagan's point. i think in addition to the particular characteristics of the breath test, which would you think are personally interested, i think it is the fact of the court has always, whenever it has confronted a search, and there is no question that these are searches, and it ordered law enforcement investigation, not in the special needs kind of general investigation, the court has said there must be a warrant and was one of the recognized exceptions apply. and the recognized exceptions are substantially conceded by the other side, did not apply here. it would be i think a novelty. >> i agree you do need recognized exceptions and we should not feel good about making up new exceptions willy-nilly. the question is why isn't this a search incident to arrest a given that there's aspects of mentioned, the fact the evidence

does this but over time, getting a want might get it here with that, and it's relatively an invasive. >> right. if i may answer that question, and then sit down? >> sure. >> participation for search incident to arrest purposes, my understanding of that doctrine is, one is concerned with the suspect doing something affirmatively to get rid of the evidence, flushing the evidence down the toilet. that is the classic search incident to arrest situation. the court made very clear that we are nothing without you. a blood test doesn't have to dissipate at a predictable level. it's going to remain in the body to be tested later on i don't think that justifies shoehorning this into the search incident to arrest doctrine. it is simply grea great from an entire different categories of threats to evidence, as i understand it. >> why isn't it an affirmative effort to get rid of the

evidence because you know the longer the interval passes, the less likely that the test is going to reveal a level that's over the standard amount. >> well, your honor, for the evidence suggested in mcnealy, which says that there is nothing you can do, nothing affirmative you can do to take this evidence and hide it. it's going to be dissipated in a predictable way, and it's not in our control to do it. if the state contest you quickly, and breath tests can be very quick, the state will be able to obtain the evidence. if the state gets a warrant, they can do that, and that's what they should do. if i may, your honor. >> thank you, counsel. mr. mccarthy. >> mr. chief justice, and may please the court. they are decoder statute strikes a bargain with individuals who wish to use state and public roads were conditioning their

use there on august 102 blood alcohol test is arrested for drunk driving. the court has held this is a valid mark and statesmen force it with the imposition of significant consequences including license revocation and the use of test we feel as evidence of criminal proceedings. >> what about another bargain if people find a taxi what driving is becoming an increasing problem, and so when you get a license you get implied consent for the officer to look at the text or whatever they can look at on your cell phone to make sure a minute ago you were taxing somebody while driving? would that be acceptable under your rationale? >> i think it's highly doubtful, your honor. i think there's many differences between that and what's going on here. first of all, the interest here is a uniquely compelling interest. >> i don't know what the statistics are going to say. it would not suffice if there are at least as many accidents caused by people texting while driving and drinking while

driving. >> even still, your honor, given the history, it's uniquely compelling interest. but on top of that -- >> what do you mean the history? >> the history of the states battling in combating drunk driving. >> there's not that much history for texting because there have and then iphones around. >> nonetheless, in these cases, the search only comes out when the driver has been arrested. so there is a probable cause to believe that this person was driving drunk. >> i know. i don't -- >> so this law is targeted very tightly right there on the people that are causing the problem speak i don't say that's a difference with respect to my hypothetical. people's work in the road because they're texting just like they do when they are intoxicated, and there stopped doing that. the officer says let me see your phone, as opposed to just like let me see your breath, let me test your breath.

let me check the phone. >> i think it is different because there is probable cause. the officer has reason to believe the person has been drinking and driving as opposed to -- >> where does that probable cause come from? >> it comes from a field sobriety test. >> he's got to do those before the breathalyzer? >> not necessarily. i suppose an officer could do an on site screening test can ref test before the sobriety test. but typically what happens with -- >> that car has been weaving. the alcohol is spelling. a speech is slurred. his eyes are red. >> yes. >> this is standard stuff. >> yes, this is all standard. >> source like the chief justice's hypothetical weaving on the road while you were texting. >> even aside from that there's a whole separate set of, the intrusion is much different.

as the court indicated most recently in the cell phone case, that's separate. it's one level over, and it's much will interested to go into that. is not the same interest with the dissipation of the evidence as there is in the case of a drunk driving. not only that but what's happening here is that states are wrote in a terrible bind. the situation here, if states are left only with administrative penalties for refusal, then what happens is it creates a loophole in the system that makes it very, very difficult for -- >> you can get a warrant. i mean, you're not left without. you don't want the administrative expense of calling a magistrate or setting up a system to get a warrant, but it is a very powerful alternative. that's what we said in mcnealy. so it's not that you don't have an out. the issue for us is, do we

dispense with the very important requirement in our law, that before you search, particularly the inside of a person with a needle or in an intrusive way, that you get a warrant? i'm not sure why you think that you are left with nothing. >> well, your honor, two things. one, we think mcnealy is helpful for us because what the court was concerned about there was forced blood draws over the objection of the arrestee. those don't happen under this system. the second part of mcnealy is that make me be pointed to these types of statutes and said these are alternatives that don't require forced law draws. >> they were only talked about in some account of clinton's. suspended the license. that's directly related to the condition that the license is given. but criminal sanctions are a very different thing.

in scope and in effect. you putting some in jail. you are not taking just their license away. >> criminal penalties are different, we don't dispute that. that is just the essence of the question on the table. given that the court has endorsed these types of conditions being imposed on the privilege of driving and has endorsed significant consequence of being used as an enforcement mechanism. >> could you say something about what the practical consequences of requiring a warrant for every breathalyzer would be in a state like north dakota? my picture of north dakota is that it's not like new york city. you don't have night court going on all the time. so how many of these tests occur during some period of time, and how many magistrates would you have on duty, let's say, at 2:00 in the morning to field a request for a warrant?

>> well, first part of my answer is that if they warrant was required in every case, that would go well beyond what the fourth amendment requires. even in mcnealy the court acknowledged that many cases the award will not be required. your honor brings up an interesting point. it's not that our judges are magistrates on duty all the time in north dakota. in fact, they are considered what is known they are as on all call. they are not a duty but they are reachable summer, typically by phone. >> how long? what it says into a cbo brief is that in wyoming it takes five minutes and in montana it takes 15 minutes. how long does it take in north dakota? >> in the larger jurisdictions where there's a quicker process whether used telephonic warrants, and the arresting officer can go directly to magistrate, my understanding is it takes about a half an hour to an hour. in the smaller jurisdictions where it's oftentimes hard to get some on the phone, the

process is different at the office has to go through prosecuting attorney first and then to a magistrate. >> why is it harder to get somebody on the phone in rural than in a busy city? >> i think a large -- >> i think people in the rural areas were sitting waiting for the phone to call. [laughter] >> your honor, i think in large part it's a lack of resources and manpower. there's not as many people available to cover all the times and so -- >> so that excuses you from a constitutional requirement? we are not going to bend the fourth amendment, which i always thought started on the presumption that we favor warrant, we don't disfavor them. but since many jurisdictions seem to manage it, we give a pass to north dakota because it doesn't want to? >> it's not a north dakota is asking for a pass. there's a couple things.

once again is that award is not required in every case. the second thing is about -- >> mr. mccarthy, i think what people are asking you to try to get some sense of the real world harms here. me ask you to send something. assume you put into practice the system which got you a warrant in 10 or 15 minutes, which many states of a similar kind have done. what they would be your interest in the rule that you are asking us for? >> the interest would be almost the same really, and this is the same important part here, is that the warrant, the purpose of the war is to authorize a search over the objection of the arrestee. but that's not happening here. the state does not want to undertake those searches because it's a public safety risk, not on a duty officer at the arrestee, but the medical personnel would be in between them. >> if you obstructed justice by

refusing to comply with the warrant, you can punish someone for obstructing justice. you can get the same outcome as putting them in jail for being drunk and driving. so what is it that justifies doing away with something as important as the fourth amendment warrant requirement is because i didn't -- >> if you can do it in 15 minutes. >> again, it's not that the state is time to get rid of the work requirement and i think it's helpful if -- >> no. what it is time to do is get evidence of someone, this is a pure law enforcement need. this has nothing to do necessarily with the safety of the community because the person's been taken off the road. we presume that you can suspend their license. so this is something more. >> your honor -- sorry. this is different and this is something more. i disagree that the suspension

of the license and the arrest of the person takes them off the road and makes it not a public safety interest. it's still very much a public safety interest and it requires some explanation. the problem here is that the states cannot effectively, and north decoded in particular, cannot enforce its drunk driving laws without a penny for refusal that actually has teeth because the white -- >> as we are asking for if you get a warrant easily in every case, then i'm struggling to figure out what your interest is in having the kind of law that you have. maybe i'm just an understanding something. suppose you could set up a system where somebody could be reached within 10 or 15 minutes, and they would, in almost all circumstances, give a warrant. and and a couple, say no, i don't think you satisfy the requirements. you could do that in 10 or 15 minutes. what would be the problem with just relying on a system like that? >> again, there's two problems.

one is that the warrant is not required in every case, and so this would go beyond the speed of asking doctor practical needs, and then we will figure out like what is or what isn't consistent with the fourth amendment. but your practical needs. >> again, the other point here is that the warrant, the point of award is to authorize the search over the objection. the state has a lot to do that. >> i think it's not, i did not understand that answer. what we are struggling for in the wake of a recent cases we talk about warrants, we find out that modern technology allows, in some states, old sparsely populated and heavily populated, to get a warrant in 15 minutes. the position of the state are arguing here is that there has to be, that a warrant is not necessary, it takes too long. we are saying supposedly 15 minutes, what then? you are asking for an extraordinary exception.

you are asking for us to make it a crime to exercise what many people think of as a constitutional right. there is some circularity there. you could point to no case which allows that. we have to show that there is exceptions, that there is a necessity fo for the exception d you just to answer the question about whether or not, in the wake of our recent decisions over the last three or four years, warrants have been expedited in many cases, and why? and if they had been, why that isn't an answer to your argument. >> there's a couple reasons. to require a warrant in this situation i think what required the court, it would essentially invalidate the statute that the court upheld. there was no required -- we are making law. none of us want an answer in terms of longer we want to know

a practical fact. the practical fact is these if possible that you could get a warrant in 30 seconds but you have a button on the cell phone. it has a big w. [laughter] spin the policeman presses it. a voice comes on, and this is what's the problem could you explain in 15 seconds and they said i got it. you've got your work. or there's something unusual and he says in no. if that were in front of us, it would they be too long to decide this case because i would say why don't you use it? you might answer that's ridiculous. it is in 30 seconds. it is in five minutes. it is in 15 even in those parts, and it can be without added expense. or you could say it doesn't make any difference and explained. i think you'd have a hard time with that one but i want to know what your answer is on the facts. >> on the facts that this delay, some delay in getting an award and that does make a difference. >> why doesn't make enough of a difference? >> there's a couple reasons. what i want to step back to because the application of a

fourth amendment right is the start of the analysis. it's not the end of the analysis. we are in the unconstitutional conditions context whether it's a bargain here. for nearly a hundred years the court has allowed his type of thing as a mechanism to impose conditions. so it's really just the criminal element that makes it different. >> you are not answering the question. >> did you know how many breathalyzer test or blood tests are administered during any predefined in the north dakota? >> approximate 6000, roughly 50/50 over the course of about a year. >> could ask you just a different kind of factual question? how many of these are done roadside, how many are taken to the police station, win or people taken to a police station? what is the practice? sorry, i see a red light. >> please answer.

>> the only test that's done on site is the limited test which is not admissible in court. the blood tests are done at a medical facility, either by a doctor or a nurse. the breath tests are done usually at a police station origin or someplace would have the chemical breath test. thank you. >> thank you, counsel. ms. keena. >> mr. chief justice, and may please the court. i would like to follow up on some of the questions of the practicality of search warrants in these situations. having grown up 20 miles from the north dakota border and attending college in the fargo morehead area, i am very familiar with what the realities are in the rural area. and yes it may be possible to get a search warrant in every case, but if that's what this court is going to require, in minnesota, we are going to be

doing warrants and blood draws in every case. that is not what this court wants. >> why? >> because, why would i now, as a police officer, cause any more delay? because there is going to be a delay getting a search warrant. why would i want -- why would i delay by taking someone to the police department, because that's where most of these tests are being conducted in minnesota and north dakota. they are not done on the side of the road. >> blood and breath? >> breath, yes. blog, you have to go to the hospital. >> i see the breath part is the part that sort of down gets -- it just requires a phone call to get the warrant, what's the problem? >> but why bother? because doctrines were this

person to the playstation, i didn't have to get a board, and now take the -- >> phone on the way. >> so let's talk about the rural aspects of minnesota and north dakota. in a lot of these jurisdictions there's only one officer on duty. i grew up in a town of 2000, 20 miles from the north dakota border. there was only ever one officer on duty, and that hasn't changed. the other problem is there's not a hospital located in every jurisdiction in minnesota and north dakota. for example, in the town that i grew up in, the nearest hospital would actually be in fargo, north dakota. so now where do -- >> but you do the breath test again. you don't take them to do blood tests. that's the practical alternative. you have two tests, breath test, blood tests. you can choose precinct or hospital. hospital. >> if they choose to take the breath test now, i'm not going to get a warrant to take a

breath test because -- >> why? >> why? >> i can't force somebody to blow into the straw. >> right. you can make it a crime not to. that will force them. that was somehow missing in this argument. i think what people are trying to figure out is, at least me, as if, first forget the blood test the blood test is a separate matter in my mind. i'm thinking solely about the breath test. does the constitution require you to get a warrant before you administer the breath test, other things being equal? >> the constitution leans in that direction. so i ask you, why not? and now you have told me all the things that you can't against you. you say before we get the breath test we taken to the station, and so then that seems to take 15 minutes, and in the meantime why can't you just call the

magistrate, and it was with some kind of safeguard against total arbitrate behavior. that's where you are. and so why is that bad for the state? >> and i have to look at our implied consent statute and what that allows and doesn't allow. so currently, minnesota's implied consent statute says what'once i offer a test and thy refuse, we are done. we are done. >> i don't know how to explain it more clearly than that. i'm not talking the law. i'm talking practical facts. if you are prepared to come back and say to me, if we have to get a warrant, 50% of the drunk drivers are never going to be caught, i'll listen to that. if you come back to me and say, if you say that award is required and it would mean that 400 policemen have thus been 10 seconds more than they otherwise would spent on the telephone, i say that's a point but not that

much of a point. do you see? i'm trying to get it back. >> i don't have those types of statistics to answer that question. >> maybe a different way of asking a similar kind of question. when we decided mcnealy, there were two opinions. even the opinion that was the conference, i don't remember whether it was a concurrent or a cassette, but the one that -- >> there was one that -- >> the chief justice's opinion. and this was with respect to a blood test. but the chief justice of innocent look, if there's 20 minutes between the time that you are stopped and the time we can get to the hospital to get a blood draw, and you can get a warrant in that 20 minutes, then yes, you have to go get a warrant in that 20 minutes. so at the very least, why wouldn't that be the case of? if all of these things, i mean, i have to say when i originally thought about this case, i had

in my mind roadside stops. but in all of these cases you are driving these people to a station house. why can't you get, at least what the chief justice said in mcnealy, which is okay, if you get a warrant within that time, you have to get a warrant within that time. >> and speaking on behalf of minnesota and it's very clear, minnesota treats come at a don't necessarily disagree with you. minnesota is out there, kind of the alternative argument. minnesota specifically treats blood tests differently than breath test. we specifically do. at our court has recognized that. so, for example, under the implied consent law in minnesota, in order to get a blood or urine test, you have to offer both. so we do treated to fully. and minnesota treat it differently in the bernard case.

that's very clear. and they very clearly stated that england that they were not going to address blood or urine, and they will be shortly because yothe are two cases before them were that issue -- >> that's good. let's talk about just about the breath test. number one, i'm not sure why they are not roadside. number two, be taken to the police station, then you are questions about the warrant. let's talk is about the breath test and the practicalities of adopting the petitioner's position. >> let's assume, i know my colleagues are, but as part of this, okay, assume as justice kagan did that a system could be put in place for a warrant on a breath test. if you're going to do at the precinct, you can do it as you go there. right now we get dozens of consent cases where the police, where the please tell the

homeowner, we are applying for a warrant. the homeowner says, well, then i got to do it. so the number of warrants are much less because of that. because they know they're going to get a warrant. so if you can put a system in place for a warrant and you tell the person, if you don't take the word, if you don't do the blood, the breath test, you're going to be charged with obstruction can what are you losing out? >> what we are really losing out is the enhanced ability your -- enhance ability. that is the difference between -- >> what's that? >> for a dwi. in both minnesota, i'm sure everywhere, there's enhanceability with the data i lost. for example, if i can't charge

thdwi or refusal and only left with obstruction, i can no longer use that event to enhance any future dwi of the same person. you change the law. it's as if you want is to create an exception to the fourth amendment. and a very drastic want a very drastic one, to give someone the right to say yay or nay without a warrant. but we don't permit people to say yay or nay wendy ward is present. if they don't comply they are charged with obstruction and/or the consequences to obstruction. >> but not the same consequences that they would be if it was a dwi or refusal. >> that's because you choose not to penalize obstruction at a higher level. that's your choice. we are now creating an exception to the fourth amendment because

of your choice. >> and its minnesota's position that a warrant is necessary. >> i appreciate that. >> okay. >> but i'm assuming if you can get a warrant. >> justice sotomayor is assuming that you're going to lose. so she wants to know what your reaction is to that. [laughter] >> well, it -- >> i don't like it. i don't like it one bit. thank you. [laughter] >> thank you, counsel. mr. gershengorn. >> mr. chief justice and may please the court. i'd like to do three things this morning. first address the real-world consequences, explain why think of bright line criminal is at odds with common sense and third when my would be a mistake to have a warrant requirement.

i think it's important this court not assume that warrants are available 24/7. that is not the case in the real world. the court knows that from the nhtsa studies that are indirect object the north carolina example is one. what the subject -- study data was compared three jurisdictio jurisdictions. the experience of the park police, i can tell you in the wake of mcnealy come is that while they can get the warrant 24/7 in maryland, they have to stop doing drudge jobs -- blood draws. even independent kosovo the court wished it in a long, long -- >> why enderle had they been able to in virginia not? >> for the federal system is not a resource constrained some of it as the court recognized is the willingness of the judges to be a fabled 24/7. a matter of by towards.

you may not get in a seven digit of new york can be made 24/7 availability for terrorist attacks but you may not have a routine drunk driving. so even in d.c. and virginia were you have if orville crashes it's not available 24/7. >> how long does it take? how long does it take to dissipate? >> to dissipate the? >> how long before that would register 10% above is the equal to or less than? is there a number? >> some of the statistics, i don't have exact statistics. what the court has done is there significant dissipation but you can back to calculate if you get a. there is a delay in getting to work at times. in the maryland case you can get it as soon as 15 minutes reward can take as long as half hour or as long as 90 minute or two hours. that's at page 37 of the study.

i think would be a mistake for this court to decide the case. the court listed 33 states that have electronic warrant which is not the same as 24/7 judicial availability that leaves something states that don't have the. i think it's a mistake for the court to decide it on -- >> the are more and more every day. we are up to over 40. >> that are more and more every year but again i think that the court is doing a rule is on the idea that these warrants are always available, it is a serious risk that one should require that, then the evidence is lost, particularly and a breath test in the jurisdiction where you can't get a warrant. if i could then turn to the bright line criminal rule that i understand to be the core of petitioners case. in the newly this court said that a state may condition the driving on public roads and may require as a condition that a motorist arrested or detained for drunk driving agree to a bac testing and the state may impose

significant consequences on the subsequent refusal. the question is that the constitution post a bright line rule against criminal penalties even when lesser sanctions are insufficient to overcome the natural incentives that many drivers want not to abide by the condition? i think that doesn't make sense to the id you can only withdraw a government benefit has major problems. if the condition would extend beyond the term of the benefit, canceling the benefit does nothing. u.s. code reflects that. if i could, your honor, i am subject under 18 usc 207, two '01 you than when i leave the solicitor general office for contacting or communicating with the sg's office on an official medevac that is punishable by up to urine sugar that is a criminal penalty as a condition on my employment. that is not the only situation. criminalizes contribution the governments employ.

42 usc 14135 criminalizes approbation of refusal to give dna. the idea there is a bright line between administered sanctions and criminal sanctions that forces the government to rely only on withdrawal of the benefit is just not the case. that's reflected in this court case law. back in 1927 and a stevenson case which is discussed in the breeze, that was a situation in which texas had condition dried on the texas roads and restricted that by opposing all sorts of permitting requirements. those root viewed as unconstitutional interference with private contractors but although the of the site identifies stevenson as a case that did not have criminal penalties and that was just withdrawn from we reductase different edits, if the court looks at page 260 it will say the texas statute impose criminal penalties. so again the idea the only thing

the government can do is withdraw a benefit in the context of an unconstitutional condition and can't go to the corporate, which is to enforce the prohibition, really makes -- >> i think whenever concerns is that driving is so essential for so many people but it's really different and often to work for the solicitor general's office. [laughter] >> i take that point but i think this is critical. what the court said, the court cross that bridge. what the court speed we believe this or argument to go live now to the senate which is about to gavel in on this wednesday morning. lawmakers continue work on the first of nearly a dozen spending bills for 2017. more than $37 billion for energy and water projects across the country. senators have been negotiating and they will vote at 11 eastern on limiting thoughts. members are hoping for final passage by the end of this week.

live now to the u.s. senate here on c-span2.