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LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Explain the justification for regulatory and administrative searches. � Describe regulatory and administrative searches. � Describe consent searches and the issues associated with them.

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213

CHAPTER OUTLINE

Actions Based on Administrative Justification and Consent

C H

A P

T E

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7 OUTLINE

Introduction: Casting Off the Fourth Amendment’s Restraints

Actions Based on Administrative Justification Inventories

Vehicle Inventories Person Inventories

Inspections Home Inspections Business Inspections Fire Inspections International Mail Inspections

Checkpoints Border Checkpoints Illegal Immigrant Checkpoints Sobriety Checkpoints License and Safety Checkpoints Crime Investigation Checkpoints Other Types of Checkpoints Unconstitutional Checkpoints

School Discipline Locker Checks and Drug Dog “Sniffs”

“Searches” of Government Employees’ Offices Drug and Alcohol Testing

Drug and Alcohol Testing of Employees Drug and Alcohol Testing of Hospital Patients Drug and Alcohol Testing of School Students

Probation and Parole Supervision More Latitude at the State Level Police/Probation Partnerships Parole Supervision

Consent Searches Voluntariness Scope Limitations Third-Party Consent “Knock and Talk”

Summary Key Terms Key Cases Review Questions Web Links and Exercises

INTRODUCTION

Casting Off the Fourth Amendment’s Restraints

As mentioned in Chapter 3, actions based on administrative justifications are those in which the primary purpose is noncriminal. They resemble searches because they intrude on people’s privacy—and can lead to the discovery of evidence. Technically, however, they are not searches. Instead of being based on probable cause or reasonable suspicion, administrative actions invoke a balancing test, weighing citizens’ privacy interests against the interest to ensure public safety. When the latter outweighs the former, an administrative “search” is allowed, subject to certain limitations (e.g., department policy). This chapter briefly introduces several types of actions that the Supreme Court has authorized based on administrative justification.

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South Dakota v. Opperman (428 U.S. 364 [1976])

214 Part 2 • Search and Seizure

This chapter also introduces the topic of consent searches. When a person gives valid consent to search, neither a warrant nor probable cause is required. Closely tied to consent searches is the controversial police practice known as “knock and talk.” The consent search section also delves into third-party consent or the extent to which one person can grant consent to have another person’s property searched. Consent fits nicely in this chapter because neither it nor actions based on administrative justification require probable cause—or any real measure of proof that a crime is being or has been committed.

ACTIONS BASED ON ADMINISTRATIVE JUSTIFICATION

The Supreme Court has authorized numerous varieties of actions under the administra- tive justification exception to the Fourth Amendment’s probable cause and warrant requirements. Sometimes they are described as special needs beyond law enforcement searches; other times, they are called regulatory searches. To avoid confusion, this book lumps all of them under the category of administrative justification. The actions that are considered include (1) inventories; (2) inspections; (3) checkpoints; (4) school discipline; (5) “searches” of government employees’ offices; (6) drug and alcohol testing; and (7) parole and probation supervision. Note that when the term “search” appears in quotes, it is because while a particular action may look like a search, it is not the same as a true Fourth Amendment search.

Inventories

Like seizures based on plain view, inventories can be viewed as another fallback measure. An inventory can be of a vehicle and/or of a person’s personal items. Usually, a search occurs under the automobile exception (in the case of an automobile) or a search incident to arrest (when a person is involved), and an inventory is taken after the fact for the purpose of developing a record of what items have been taken into custody. Both types of inventories are fallbacks in the sense that they often occur after an earlier search.

VEHICLE INVENTORIES A vehicle inventory occurs in a number of situations, usually after a car has been impounded for traffic or parking violations. In South Dakota v. Opperman (428 U.S. 364 [1976]), the Supreme Court held that a warrantless inventory is permissible on administrative/regulatory grounds. However, it must (1) follow a lawful impoundment; (2) be of a routine nature, following standard operating procedures; and (3) not be a “pretext concealing an investigatory police motive.” Thus, even though an inventory can be perceived as a fallback measure, which permits a search when probable cause is lacking, it cannot be used in lieu of a regular search requiring probable cause.

Why did the Court opt for another standard besides probable cause for the inventory, despite the fact that it is still a “search” in the conventional sense of the term? The Court noted that the probable cause requirement of the Fourth Amendment is “unhelpful” in the context of administrative care-taking functions (e.g., inventories) because the concept of probable cause is linked to criminal investigations. Probable cause is irrelevant with this type of administrative action, “particularly when no claim is made that the protective procedures are a subterfuge for criminal investigations” (p. 371).

The Court offered three reasons in support of vehicle inventories. First, an inventory protects the owner’s property while it is in police custody. Second, an inventory protects the police against claims of lost or stolen property. Finally, an inventory protects the police and public from dangerous items (e.g., weapons) that might be concealed in a car.

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Illinois v. Lafayette (462 U.S. 640 [1983])

Colorado v. Bertine (479 U.S. 367 [1987])

Chapter 7 • Actions Based on Administrative Justification and Consent 215

Note that inventories include containers. That is, the police may examine any container discovered during the course of a vehicle inventory, but this should be mandated by departmental procedures. This was the decision reached in Colorado v. Bertine (479 U.S. 367 [1987]). That decision also helped the police insofar as the Court refused to alter the vehicle inventory exception to the Fourth Amendment when secure impound facilities are accessible. As the Court stated, “[T]he security of the storage facility does not completely eliminate the need for inventorying; the police may still wish to protect themselves or the owners of the lot against false claims of theft or dangerous instrumentalities” (p. 373).

In Bertine, the Court also rejected an argument that car owners should be able to make their own arrangements if their vehicles are impounded (e.g., have it towed by a private company, have a friend drive it home). The Court stated, “The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative ‘less intrusive’ means” (p. 374).

Reading Opperman and Bertine would suggest that inventories are relatively standard and intended mainly to take note of a car’s contents. However, in Michigan v. Thomas (458 U.S. 259 [1982]), the Supreme Court concluded that the police could go even further. In that case, officers found a loaded .38 revolver in one of the impounded vehicle’s air vents. The Court upheld the officers’ actions because marijuana had been found in the vehicle shortly before the gun was detected.

In conclusion, two important issues must be understood with regard to vehicle inventories. First, if during the course of a valid inventory, the police discover evidence that gives rise to probable cause to search, then a more extensive search is permissible. However, according to Carroll v. United States (267 U.S. 132 [1925]), discussed in Chapter 5, one of the requirements for such action to be constitutional is the impracticality of securing a warrant.

Second, despite the Supreme Court’s apparent willingness to give police wide latitude with vehicle inventories, what makes them constitutional is clear guidelines as to how the inventory should be conducted. In other words, the Court has authorized inventories without probable cause or a warrant only if, in addition to the other require- ments discussed earlier, it is conducted in accordance with clear departmental policies and procedures. Requiring the police to follow appropriate policies minimizes discretion and the concern that inventories may be used for criminal investigation purposes. The inventory search policy from the Pine Bluff, Arkansas, Police Department’s Policy and Procedure Manual is reprinted in Figure 7.1.

PERSON INVENTORIES The inventory exception to the Fourth Amendment’s warrant requirement applies in the case of a person inventory, as well. The action permitted is often called an arrest inventory. The general rule is that the police may search an arrestee and his or her personal items, including containers found in his or her possession, as part of a routine inventory incident to the booking and jailing procedure. As decided in Illinois v. Lafayette (462 U.S. 640 [1983]), neither a search warrant nor probable cause is required. According to the Court:

Consistent with the Fourth Amendment, it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station incident to booking and jailing the suspect. The justification for such searches does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search. Here, every consideration of orderly police administration— protection of a suspect’s property, deterrence of false claims of theft against the police, security, and identification of the suspect—benefiting both the police and the public points toward the appropriateness of the examination of respondent’s shoulder bag. (pp. 643–648)

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216 Part 2 • Search and Seizure

SUBJECT:

TOWING & STORAGE OF VEHICLES

CHAPTER: PATROL

ISSUED By:

Chief of Police John E. Howell

POLICY NUMBER 260

ISSUE DATE 02/19/2008

EFFECTIVE DATE 02/19/2008

TOTAL PAGES 6

FIGURE 7.1 Vehicle Inventory Policy (Pine Bluff, AR, Police Department)

I. PROCEDURES

A. GENERAL

1. The Impoundment of motor vehicles shall be accomplished by the use of contract commercial towing services, towing vehicles, and impoundment lots as authorized by this law enforcement agency. All towing agencies must be a member of the Arkansas Towing and Recovery Board, certified for and display inspection documentation indicating they are authorized for non-consent towing.

2. Vehicles impounded by or otherwise taken into the custody by this agency shall be inventoried in a manner consistent with this agencies policy on motor vehicle inventories as stated in Section F of this policy. a. Inventories should be performed at the scene or at a safe place nearby whenever this can be done

safely and effectively. b. A Pine Bluff Police Department wrecker log will be completed on any impounded motor vehicles. c. Motor vehicles shall not be impounded for purposes other than those defined by statute or ordinance,

(e.g., not as a form of punishment, or as a means of conducting vehicle searches when probable cause does not exist or consent to search cannot be obtained).

3. When impoundments are necessary, the operator and any passengers should not be stranded. Officers shall take those measures necessary to ensure that the operator and any passengers of the vehicle are offered transportation. To include but not limited to: a. Call a taxi cab for them. b. Call a friend or relative to pick them up. c. With supervisor approval, transport them to the nearest reasonably safe location.

4. If the driver/owner or passenger(s) decline assistance with transportation and the vehicle is towed at the direction of an officer for any reason, the officer shall document their refusal on an original Information/Incident Report, as Supplemental to and existing Information/Incident Report, or on an Accident Report, whichever is appropriate to the circumstances.

5. Vehicle operators may be permitted to remove unsecured valuables of a non-evidentiary nature from the vehicle prior to its removal for impoundment. The nature of these valuables shall be noted on the appropriate reporting document.

6. Impounded vehicles shall be released to owners with proof of ownership and personal identification, and following proof of payment of any impoundment, storage, or related fees and taxes.

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Camara v. Municipal Court (387 U.S. 523 [1967])

Chapter 7 • Actions Based on Administrative Justification and Consent 217

It is important to understand that an inventory of person must follow a lawful arrest, so the probable cause to search requirement is essentially satisfied at the arrest stage.

The Supreme Court’s decision in Opperman, discussed in the vehicle inventory section, has essentially been extended to person inventories. That is, as part of invento- rying a person’s possessions pursuant to a valid arrest, the police may also examine containers. The Court felt that it would be unduly burdensome on the police to require them to distinguish between which containers may or may not contain evidence of criminal activity.

Inspections

A variety of inspections is permissible without a warrant or probable cause. For all practical purposes, they are “searches.” Even so, the courts have continually stressed that the justification for such searches is the “invasion versus need” balancing act—that is, the benefits of some inspections outweigh the costs of inconveniencing certain segments of the population. Most of these exceptions to the warrant requirement are based on the Court’s decision in Camara v. Municipal Court (387 U.S. 523 [1967]), where it was concluded that “there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails” (pp. 536–537).

HOME INSPECTIONS Two types of home inspection have been authorized by the Court. The first concerns health and safety inspections of residential buildings, such as public housing units. In Frank v. Maryland (359 U.S. 360 [1959]), for example, the Court upheld the constitutionality of a statute designed to punish property holders for failing to cooperate with warrantless health and safety inspections. The Court noted that such inspections “touch at most upon the periphery of the important interests safeguarded by the Fourteenth Amendment’s protection against official intrusion” (p. 367). In 1967, however, the Court overruled the Frank decision in Camara v. Municipal Court (387 U.S. 523 [1967]).

In Camara, the Court noted that nonconsensual administrative inspections of private residences amount to a significant intrusion upon the interests protected by the Fourth Amendment. Today, a warrant is required for authorities to engage in a home inspection. However, the meaning of probable cause in such a warrant differs from that discussed earlier. The Court has stated that if an area “as a whole” needs inspection, based on factors such as the time, age, and condition of the building, then the probable cause requirement will be satisfied. The key is that probable cause in the inspection context is not individualized as in the typical warrant. That is to say, inspections of this sort are geared toward buildings, not persons.

A second type of home inspection is a welfare inspection. In Wyman v. James (400 U.S. 309 [1971]), the Supreme Court upheld the constitutionality of a statute that allowed welfare caseworkers to make warrantless visits to the homes of welfare recipients.

DECISION-MAKING EXERCISE 7.1

Inventoried and Inventoried Again

At the time of the defendant’s arrest, police officers invento- ried his automobile and seized several items. Approximately eight hours after the car was impounded, an officer, without obtaining a warrant, searched the car a second time, seizing

additional evidence. Note that both searches were inventory searches. Do these searches appear, as many courts have stated it, to “pass Fourth Amendment muster”? What if only the second search was deemed unconstitutional?

Wyman v. James (400 U.S. 309 [1971])

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Colonnade Catering Corp. v. United States (397 U.S. 72 [1970])

218 Part 2 • Search and Seizure

The purpose of such inspections is to ensure that welfare recipients are conforming with applicable guidelines and rules. The Court declared that welfare inspections are not searches within the meaning of the Fourth Amendment, which means they can be conducted without a warrant or probable cause. Of course, such inspections should be based on neutral criteria and should not mask intentions to look for evidence of criminal activity.

BUSINESS INSPECTIONS Far more case law exists in the arena of business inspections. See v. City of Seattle (387 U.S. 541 [1967]), which was a companion case to Camara, was one of the first to focus on the constitutionality of business inspections. See involved a citywide inspection of businesses for fire code violations. The Court noted that “[t]he businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property” (p. 543) and therefore that warrants were required to engage in business inspections.

However, soon after See, the Court created what came to be known as the closely regulated business exception to the warrant requirement set forth in Camara and See. Specifically, in Colonnade Catering Corp. v. United States (397 U.S. 72 [1970]), the Court upheld a statute criminalizing refusal to allow warrantless entries of liquor stores by government inspectors. According to the Court:

We agree that Congress has broad power to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand. The gen- eral rule laid down in See v. City of Seattle . . . —“that administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure”—is therefore not applica- ble here. In See, we reserved decision on the problems of “licensing programs” requiring inspections, saying they can be resolved “on a case-by-case basis under the general Fourth Amendment standard of reasonableness.” . . . What we said in See reflects this Nation’s traditions that are strongly opposed to

DECISION-MAKING EXERCISE 7.2

Welfare-Related Home Inspections

These are the paraphrased facts from a real case, Calabretta v. Floyd (189 F.3d 808 [9th Cir. 1999]): An anonymous party called the Department of Social Services and said that she was awakened by a child screaming “No, Daddy, no” at 1:30 a.m. at the Calabretta home. Four days after the call, a social worker went to the Calabretta home to investigate. Mrs. Calabretta, the mother, refused to let the social worker in. Then, 10 days after the first visit, the social worker returned to the Calabretta house with a police officer. The officer met the social worker at the Calabretta house, knowing nothing about the case except that he had been assigned to assist her. She told him that they had received a report of the children crying, and he understood her to mean that they might have been beaten. When the police officer knocked on the door of the home, Mrs. Calabretta responded but did not open the door. The police officer said they were checking on the children’s welfare because someone had reported

children crying. Mrs. Calabretta still did not open the door and said she was uncomfortable letting them in without her husband at home. The police officer had the opinion that any check on the welfare of children involved an exigent circumstance and thus that no search warrant was needed. Once the two gained entry, the social worker took the children into one room while the officer remained in another room with the mother. The social worker asked the 12-year-old to pull down the 3-year-old’s pants to check for bruises on her buttocks. The 12-year-old refused and the 3-year-old began crying. At that point, the mother rushed in. The social worker then demanded that the mother pull down the 3-year-old’s pants, which she did. There were no bruises. The Calabrettas sued the social worker, the police officer, and other defendants for, among other things, a violation of their Fourth Amendment rights. Was the entrance into the Calabretta home constitutional?

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United States v. Biswell (406 U.S. 311 [1972])

Chapter 7 • Actions Based on Administrative Justification and Consent 219

using force without definite authority to break down doors. We deal here with the liquor industry long subject to close supervision and inspection. As respects that industry, and its various branches including retailers, Congress has broad authority to fashion standards of reasonableness for searches and seizures. (pp. 76–77)

Similarly, in United States v. Biswell (406 U.S. 311 [1972]), the Court upheld the war- rantless inspection of a firearms dealership. In Biswell, the Court observed that “[w]hen a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms and ammunition will be subject to effective inspection” (p. 311). A key restriction on this ruling, however, is that authorities cannot use unauthorized force for the purpose of gaining entrance.

In a later case, Donovan v. Dewey (452 U.S. 494 [1981]), the Court modified the closely regulated business exception. The Court decided that it is not enough that an industry is “pervasively regulated” for the business inspection exception to apply. Three additional criteria must be met: (1) the government must have a “substantial” interest in the activity at stake; (2) warrantless searches must be necessary to the effective enforcement of the law; and (3) the inspection protocol must provide “a constitutionally adequate substitute for a warrant.”

The Court clarified the Dewey criteria in New York v. Burger (482 U.S. 691 [1987]). In that case, the Court upheld the warrantless inspection of a vehicle junkyard for the purpose of identifying “vehicle dismantlers.” Justice Blackman noted that Dewey’s first criterion was satisfied because vehicle theft was a serious problem in New York. The second criterion was satisfied because surprise inspections were necessary if stolen vehicles and parts were to be identified, and the third criterion—adequate substitute— was satisfied because junkyard operators were notified that inspections would be unan- nounced and conducted during normal business hours. In the Court’s words:

The New York regulatory scheme satisfies the three criteria necessary to make reasonable warrantless inspections pursuant to [the statute in question]. First, the State has a substantial interest in regulating the vehicle-dismantling and automobile-junkyard industry because motor vehicle theft has increased in the State and because the problem of theft is associated with this industry . . . Second, regulation of the vehicle-dismantling industry reasonably serves the State’s substantial interest in eradicating automobile theft . . . [and third, the statute] provides a “constitutionally adequate substitute for a warrant.” . . . . The statute informs the operator of a vehicle dismantling business that inspec- tions will be made on a regular basis . . . . Thus, the vehicle dismantler knows that the inspections to which he is subject do not constitute discretionary acts by a government official but are conducted pursuant to the statute. (pp. 708–709)

DECISION-MAKING EXERCISE 7.3

Business Inspections

Komfortable Kitty Drug Company manufactures and pack- ages veterinary drugs. Several times during a one-year pe- riod, Federal Drug Administration (FDA) agents inspected the company’s premises to ensure compliance with the Food, Drug, and Cosmetic Act (actual legislation). The agents cited Komfortable Kitty for several violations. Drugs that were

allegedly in violation of the act were seized pursuant to an in rem arrest warrant (i.e., a warrant authorizing the arrest of property). Altogether, over $100,000 worth of drugs and equipment were seized. Komfortable Kitty has contested the constitutionality of the seizure. Does the company have a valid case?

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United States v. Ramsey (431 U.S. 606 [1977])

Michigan v. Tyler (436 U.S. 499 [1978])

220 Part 2 • Search and Seizure

It is important to point out, though, that when business inspections become non regulatory (e.g., for the purpose of criminal investigation/prosecution), then a warrant is required (see G.M. Leasing Corp. v. United States, 429 U.S. 338 [1977]).

FIRE INSPECTIONS In Michigan v. Tyler (436 U.S. 499 [1978]), the Supreme Court authorized the warrantless inspection of a burned building/residence (i.e., fire inspec- tion) immediately after the fire has been put out. The key is that the inspection must be contemporaneous, not several days or weeks after the fire. The justification offered by the Court was that it is necessary to determine the cause of a fire as soon as possible after it has been extinguished. A warrant in such an instance, felt the Court, would be unduly burdensome.

In a related case, Michigan v. Clifford (464 U.S. 287 [1984]), the Court decided on the constitutionality of a warrantless arson-related inspection that was conducted five hours after the fire was extinguished. While the inspection began as just that, when evidence of arson was found, a more extensive search was conducted. The Court required a warrant because the officials engaging in the search admitted it was part of a criminal investigation. According to the Court:

The warrantless intrusion into the upstairs regions of the Clifford house presents a telling illustration of the importance of prior judicial review of proposed administrative searches. If an administrative warrant had been obtained in this case, it presumably would have limited the scope of the proposed investigation and would have prevented the warrantless intrusion into the upper rooms of the Clifford home. An administrative search into the cause of a recent fire does not give fire officials license to roam freely through the fire victim’s private residence. (p. 298)

Interestingly, in Clifford, the Court stated that “the home owner is entitled to reasonable advance notice that officers are going to enter his premises for the purposes of ascertaining the cause of the fire” (p. 303), which suggests that notice, but not a warrant, is required for the typical fire inspection. More extensive searches, however, still require warrants supported by probable cause.

INTERNATIONAL MAIL INSPECTIONS The Supreme Court has permitted government officials to open incoming international mail. For example, in United States v. Ramsey (431 U.S. 606 [1977]), customs agents opened mail that was coming into the United States from Thailand, a known source of drugs. Further, the agents felt that a specific envelope was heavier than what would have been considered usual. Considering these factors, the Supreme Court upheld the warrantless search:

The border-search exception is grounded in the recognized right of the sover- eign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country. It is clear that there is nothing in the rationale behind the bordersearch exception which suggests that the mode of entry will be critical. It was conceded at oral argument that customs officials could search, without probable cause and without a warrant, envelopes carried by an entering traveler, whether in his luggage or on his person. . . . Surely no different constitutional standard should apply simply because the envelopes were mailed, not carried. The critical fact is that the envelopes cross the border and enter this country, not that they are brought in by one mode of transportation rather than another. It is their entry into this country from without it that makes a resulting search “reasonable.” (p. 620)

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Chapter 7 • Actions Based on Administrative Justification and Consent 221

Checkpoints

Several types of checkpoints are constitutionally permissible without warrants. A checkpoint is a means of investigating a large number of people and should be distinguished from an inspection. Whereas an inspection targets particular homes and/or businesses, a checkpoint possesses an element of randomness—or total predictability. Either everyone is stopped or every nth person (e.g., every tenth person) is stopped. A checkpoint is similar to an investigation insofar as its purpose is not criminal in the sense that a typical search is. And to the extent that some checkpoints border on looking for evidence of crime (e.g., illegal immigrants), they are often justified because they are not based on individualized suspicion.

BORDER CHECKPOINTS In Carroll v. United States (267 U.S. 132 [1925]), the Supreme Court stated that brief border detentions are constitutionally permissible. Further, it is in the inter- est of “national self protection” to permit government officials to require “one entering the country to identify himself as entitled to come in . . . ” (p. 154). More recently, in United States v. Montoya de Hernandez (473 U.S. 531 [1985]), the Court reaffirmed the need for war- rantless border inspections: “Routine searches of the persons and effects of entrants [at the border] are not subject to any requirement of reasonable suspicion, probable cause, or a warrant . . . [O]ne’s expectation of privacy [is] less at the border” (p. 538). The Court wrote:

[This case reflects] longstanding concern for the protection of the integrity of the border. This concern is, if anything, heightened by the veritable national crisis in law enforcement caused by smuggling of illicit narcotics . . . and in particular by the increasing utilization of alimentary canal smuggling. This desperate practice appears to be a relatively recent addition to the smugglers’ repertoire of deceptive practices, and it also appears to be exceedingly difficult to detect. (pp. 538–539)

Border checkpoints have also been upheld on U.S. waterways (United States v. Villamonte-Marquez, 462 U.S. 579 [1983]), at highway checkpoints well inside the international borders (Almeida-Sanchez v. United States, 413 U.S. 266 [1973]), and at inter- national airports (Illinois v. Andreas, 463 U.S. 765 [1983]). According to a recent Supreme Court decision (United States v. Flores-Montano, 541 U.S. 149 [2004]), it also appears that more than just a detention is permissible at the border. In that case, the Supreme Court sanctioned the removal, disassembly, and reassembly of a vehicle’s fuel tank.

ILLEGAL IMMIGRANT CHECKPOINTS In United States v. Martinez-Fuerte (428 U.S. 543 [1976]), the Court upheld the decision of the Immigration and Naturalization Service (INS) to establish roadblocks near the Mexican border for the purpose of discovering illegal aliens. The Court offered a number of reasons for its decision. First, “[t]he degree of intrusion upon privacy that may be occasioned by a search of a house hardly can be compared with the minor interference with privacy resulting from the mere stop for questioning as to residence” (p. 565). Second, motorists could avoid the checkpoint if they so desired. Third, the Court noted that the traffic flow near the border was heavy, so individualized suspicion was not possible. Fourth, the location of the roadblock was not decided by the officers in the field “but by officials responsible for making overall decisions” (p. 559). Finally, a requirement that such stops be based on probable cause “would largely eliminate any deterrent to the conduct of well-disguised smuggling operations, even though smugglers are known to use these highways regularly” (p. 557). Importantly, law enforcement officers must have justification to examine the bags and personal effects of individuals who are stopped at immigration checkpoints (or during any immigration check) (Bond v. United States, 529 U.S. 334 [2000]).

United States v. Martinez-Fuerte (428 U.S. 543 [1976])

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Michigan Dept. of State Police v. Sitz (496 U.S. 444 [1990])

222 Part 2 • Search and Seizure

SOBRIETY CHECKPOINTS In Michigan Dept. of State Police v. Sitz (496 U.S. 444 [1990]), the Court upheld a warrantless, suspicionless checkpoint designed to detect evidence of drunk-driving. In that case, police checkpoints were set up, at which all drivers were stopped and briefly (approximately 25 seconds) observed for signs of intoxication. If such signs were found, the driver was detained for sobriety testing, and if the indication was that the driver was intoxicated, an arrest was made. The Court weighed the magnitude of the governmental interest in eradicating the drunk-driving problem against the slight intrusion to motorists stopped briefly at such checkpoints. Key to the constitutionality of Michigan’s checkpoint were two additional factors: (1) evenhandedness was ensured because the locations of the checkpoints were chosen pursuant to written guidelines and every driver was stopped; and (2) the officers themselves were not given discretion to decide whom to stop. Significantly, the checkpoint was deemed constitutional even though motorists were not notified of the upcoming checkpoint or given an opportunity to turn around and go the other way. According to the Court:

No one can seriously dispute the magnitude of the drunken driving problem or the State’s interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation’s roads are legion. The anecdotal is confirmed by the statistical. . . . For decades, this Court has “repeatedly lamented the tragedy.” . . . Conversely, the weight bearing on the other scale—the measure of the intrusion on motorists stopped briefly at sobriety checkpoints—is slight. . . . In sum, the balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment. (pp. 451–455)

LICENSE AND SAFETY CHECKPOINTS In Delaware v. Prouse (440 U.S. 648 [1979]), the Supreme Court held that law enforcement officials cannot randomly stop drivers for the purpose of checking their drivers’ licenses. The Court’s reasoning is interesting:

An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, perva- sive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the

DECISION-MAKING EXERCISE 7.4

Detecting Illegal Aliens

The U.S. Border Patrol relies on checkpoints north of the Mexican border to look for illegal aliens. (In California, these can be found as far as 90 miles north of the border.) These checkpoints are often stationed in the middle of major freeways, where every car must slow down and, at a mini- mum, be waved through by one of several agents standing between the lanes. In addition, there is little, if any, opportunity

to exit the freeway in order to avoid the checkpoints. Can these checkpoints be considered administrative? What if, instead of having the cars slow down, the border patrol required all vehicles to stop, at which point they would briefly search the trunk, cargo compartment (i.e., for a pickup truck, van, or tractor trailer), and so on in an effort to detect illegal aliens? Could they legally do this?

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individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. . . . Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not regis- tered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of the law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment. (pp. 662–663)

The Court did note, however, that “this holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion” (p. 663). In particular, “Questioning of all oncoming traffic at roadblock-type stops is one possible alternative” (p. 663). If officers stopped every fifth, tenth, or twentieth vehicle, then this action would probably conform to the Court’s requirement that roadblocks and checkpoints restrict individual officers’ discretion to the fullest extent possible. See Figure 7.2 for an example of a vehicle safety checkpoint policy.

SUBJECT:

VEHICLE SAFETY CHECKPOINT

CHAPTER: TRAFFIC

ISSUED By:

Chief of Police John E. Howell

POLICY NUMBER 403

ISSUE DATE 02/19/2008

EFFECTIVE DATE 02/19/2008

TOTAL PAGES 4

FIGURE 7.2 Vehicle Safety Checkpoint Policy (Pine Bluff, AR, Police Department)

I. POLICY This agency has a primary mission of creating a safer environment for the citizens within this commu- nity. In furtherance of this mission, this agency shall periodically conduct a vehicle safety checkpoint as directed by the Chief or his or her designee. All vehicle safety checkpoint operations shall be closely supervised as assigned by the Chief or his or her designee. The directives, as stated within this policy, shall be applied as a standard operating procedure in providing guidance to agency personnel in conducting all vehicle safety checkpoints. This policy applies only to vehicle safety checkpoints. It does not apply to sobriety checkpoints, drug interdiction checkpoints, or roadblocks for other purposes.

II. PURPOSE To increase the effectiveness of this agency in checking for unsafe vehicles traveling upon the roadways. Vehicle safety checkpoints will also allow this agency the opportunity to periodically concentrate its efforts in checking for violations of Arkansas traffic and regulatory laws that will ultimately increase the safety of the citizens within the community.

Figure 7.2 continued

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III. PROCEDURES: A. A decision to implement a vehicle safety checkpoint operation must be approved either by the Chief or

his or her designee. B. The maximum duration of any vehicle safety checkpoint operation shall be four hours unless

otherwise directed by the Chief or his or her designee. C. A safety checkpoint operation shall only be conducted by utilizing the proper equipment. The

following shall be considered as being proper equipment: 1. At least three marked patrol units equipped with emergency lights, siren and communications

devices. One of these marked units shall be positioned at the checkpoint central location and shall have emergency lights operational during the checkpoint operation. The other two patrol units shall be positioned at each end of the checkpoint area. Other patrol units, for prisoner transport, shall be called to the checkpoint area if necessary.

2. At least one portable sign (when traffic is only stopped one way) to be placed alongside the roadway approximately 300 feet from the checkpoint area. The letters on the sign shall be large enough so that passing motorists are able to read it easily. The sign shall display the following messages: a. NOTICE———You are now entering a vehicle safety checkpoint under the direction of the Pine

Bluff Police Department. b. Be prepared to stop.

3. When traffic is being stopped from both directions a second sign shall be utilized and displayed as stated above.

4. A vehicle safety checkpoint operation shall only be conducted by assigning the appropriate number of personnel. The following shall be considered an appropriate number of personnel: a. At least two or three officers (depending on the time of day and the traffic flow) conducting the

checkpoint in full departmental uniform or in clothing, as approved by an immediate supervisor, that identifies him or her as a law enforcement officer. Two officers shall be utilized to approach the vehicles stopped and one officer will be utilized to take any enforcement action as necessary.

b. At least one officer or a properly trained K-9 and K-9 handler occupying the other marked units. These officers shall be in full departmental uniform or in clothing, as approved by an immediate supervisor that identifies him or her as a law enforcement officer.

5. A supervisor as assigned by the Chief or his or her designee. 6. Law Enforcement officers of this agency participating in a vehicle safety checkpoint operation

shall: a. Establish a checkpoint only in an area where there is complete visibility for a minimum of 500

feet from both directions of oncoming traffic to the checkpoint area. b. Establish a checkpoint whereby all vehicles or a designated number, every third vehicle for

instance, is stopped. The Chief of Police or other supervisor assigned to the operation shall make a decision as to how the checkpoint will be conducted at the scene.

c. Cautiously approach all vehicles and be particularly alert to suspicious movements or actions of the vehicle occupants. Policy 403 Page 3

d. Allow the driver and occupants to remain inside their vehicle unless their removal from the vehicle is necessary due to facts leading the officer to reasonably suspect that:

i. A crime has been or is being committed; ii. The vehicle occupant(s) presents some danger to the officer or others; or

iii. The person is armed and presently dangerous.

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e. Courteously advise the driver of the vehicle the following: This is a vehicle safety checkpoint being conducted by the Pine Bluff Police Department. We are checking vehicles for the safety of all motorists within the city of Pine Bluff.

f. Advise the operator of the vehicle to provide a driver’s license, vehicle registration, and proof of vehicle insurance. Also advise the vehicle operator that a brief vehicle safety inspection, checking the general condition of the motor vehicle, will be completed.

g. Complete the vehicle/document inspection and take any enforcement action deemed necessary or appropriate. Drivers of vehicles for which enforcement action is necessary will be directed to a “pull off area” that has been established prior to the beginning of the checkpoint operation. A pull off area is defined as a location such as the following:

i. The shoulder of the roadway that is wide enough that three or more vehicles can be parked in a safe manner.

ii. A parking area that can be utilized either by permission of the owner or a business parking lot for which the business is closed.

iii. The pull off area is necessary to avoid any lane blockage for prolonged periods and to provide for motorists and officer safety.

h. After completing the document/vehicle inspection or taking enforcement action and no arrests are made, law enforcement officers shall:

i. Thank the vehicle operator/occupants for the cooperation extended. ii. Promptly release the vehicle and occupants.

i. The additional patrol unit(s), positioned at each end of the checkpoint area, shall provide back-up for the officers conducting the checkpoint and shall conduct traffic stops in a situation where a vehicle, after observing the portable signs, takes evasive action to avoid entering the checkpoint area.

7. Upon completion of a vehicle safety checkpoint operation, all signs will be removed from alongside the roadway and returned to agency storage. Policy 403 Page 4

8. Agency personnel assigned to a vehicle safety checkpoint operation must first attend a briefing for which a supervisor or designee will further familiarize personnel with agency operational procedures, discuss the location of the checkpoint and emphasize officer safety.

9. Information about any vehicle safety checkpoint operation, or subsequent arrests or seizures as a result of the operation, will be released to the news media in accordance with departmental policy concerning Freedom of Information.

10. At the conclusion of a vehicle safety checkpoint operation, the Chief or supervising officer in charge will assign one of the officers involved in the checkpoint to complete a full report outlining the details associated with the operation. The report shall include the date, time, and location of the checkpoint; personnel assigned including the use of a K-9 and in what capacity each individual was utilized; results of the operation such as, arrests made, searches conducted and items seized subsequent to the search; and any other information specific to the particular event.

11. A completed report shall be forwarded to the supervising officer making the assignment. The supervising officer shall forward a copy to the Criminal Investigation Division for investigative purposes if necessary. The original report shall be filed within the Police Department in accor- dance with departmental filing procedures.

12. Law enforcement officers of this agency may conduct a Vehicle Checkpoint operation in conjunction with other law enforcement agencies within the City only if the cooperating agency will agree to comply with the specific requirements set forth within this policy.

Source: Reprinted courtesy of Pine Bluff, AR, Police Department.

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CRIME INVESTIGATION CHECKPOINTS In Illinois v. Lidster (540 U.S. 419 [2004]), the Supreme Court decided that checkpoints are also authorized for officers to ask questions related to crimes that had occurred earlier at the same area. In Lidster, police briefly detained motorists to ask them if they had any information about a hit-and-run accident between a vehicle and a bicycle that had taken place a week before at the same location. A driver entered the checkpoint, swerved, and nearly hit an officer. He was stopped and subjected to a field sobriety test. He was convicted of drunk-driving and later challenged the constitutionality of the checkpoint. The Supreme Court disagreed, thus permitting yet another type of checkpoint.

OTHER TYPES OF CHECKPOINTS Still other types of checkpoints have come to the Supreme Court’s attention. In United States v. Villamonte-Marquez, for example, the Court distinguished stops of boats on water from stops of vehicles on land. In that case, customs officers stopped and boarded a person’s boat to inspect documents in accordance with 19 U.S.C. Section 1581(a), which permits officers to board any vessel, at any time, without justification, to examine the vessel’s manifest or other docu- ments. While onboard the defendant’s boat, one of the customs officers smelled what he thought was marijuana. Looking through an open hatch, the officer spotted bales that turned out to contain marijuana. The Court noted that fixed checkpoints are not possible, given the expansiveness of open water, so it relied on different reasoning. The Court noted that boardings such as that in Villamonte-Marquez are essential to ensure enforcement of the law in waters, “where the need to deter or apprehend drug smugglers is great” (p. 593). Key restrictions the Court did impose, though, were that such detentions be brief and limited to the inspection of documents. The reason the seizure of the marijuana was upheld in Villamonte-Marquez was that the contraband was in plain view.

Airport checkpoints are also authorized, and there is no need for probable cause or reasonable suspicion in such situations. According to the Ninth Circuit, “The need to prevent airline hijacking is unquestionably grave and urgent. . . . A pre-boarding screening of all passengers and carry-on articles sufficient in scope to detect the presence of weapons or explosives is reasonably necessary to meet the need” (United States v. Davis, 482 F.2d 893 [9th Cir. 1973]). Another court reached a similar conclusion (United States v. Lopez, 328 F. Supp. 1077 [E.D.N.Y. 1971]). And the Fifth Circuit’s opinion in United States v. Skipwith (482 F.2d 1272 [5th Cir. 1971]) is particularly helpful:

[T]he intrusion which the airport search imposes on the public is not insubstan- tial. It is inconvenient and annoying, in some cases it may be embarrassing, and at times it can be incriminating. There are several factors, however, which make this search less offensive to the searched person than similar searches in other contexts. One such factor is the almost complete absence of any stigma attached to being subjected to search at a known, designated airport search point. . . . In addition, the offensiveness of the screening process is somewhat mitigated by the fact that the person to be searched must voluntarily come to and enter the search area. He has every opportunity to avoid the procedure by not entering the boarding area. Finally, the circumstances under which the airport search is conducted make it much less likely that abuses will occur. Unlike searches conducted on dark and lonely streets at night where often the officer and the subject are the only witnesses, these searches are made under supervision and not far from the scrutiny of the traveling public. Moreover, the airlines, which have their representatives present, have a

Illinois v. Lidster (540 U.S. 419 [2004])

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Chapter 7 • Actions Based on Administrative Justification and Consent 227

definite and substantial interest in assuring that their passengers are not unnecessarily harassed. The officers conducting the search under these cir- cumstances are much more likely to be solicitous of the Fourth Amendment rights of the traveling public than in more isolated, unsupervised surroundings. (pp. 1275–1276)

Note that airport screenings are now conducted by public as opposed to private actors. Prior to the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon, airport inspections were conducted by private security companies. Now, they are conducted by Transportation Safety Administration (TSA) officials, who are employed by the federal government. This change is of no consequence to the constitu- tionality of airport screenings, however, even though such inspections are today sometimes more intrusive than prior to September 11 (e.g., “shoe searches” and searches at the boarding gate in addition to at the main security checkpoint).

UNCONSTITUTIONAL CHECKPOINTS The administrative rationale is not acceptable, by comparison, to detect evidence of criminal activity. This was the decision reached in City of Indianapolis v. Edmond (531 U.S. 32 [2000]), a case in which the Supreme Court decided whether a city’s suspicionless checkpoints for detecting illegal drugs were constitutional. Here is how the Supreme Court described the checkpoints:

The city of Indianapolis operated a checkpoint program under which the police, acting without individualized suspicion, stopped a predetermined number of vehicles at roadblocks in various locations on city roads for the primary purpose of the discovery and interdiction of illegal narcotics. Under the program, at least one officer would (1) approach each vehicle, (2) advise the driver that he or she was being stopped briefly at a drug checkpoint, (3) ask the driver to produce a driver’s license and the vehicle’s registration, (4) look for signs of impairment, and (5) conduct an open-view examination of the vehicle from the outside. In addition, a narcotics-detection dog would walk around the outside of each stopped vehicle. (p. 32)

The Court held that stops such as those conducted during Indianapolis’s check- point operations require individualized suspicion. In addition, “because the checkpoint program’s primary purpose [was] indistinguishable from the general interest in crime control” (p. 44), it was deemed violative of the Fourth Amendment.

School Discipline

Public school administrators and teachers may “search” a student without a warrant if they possess reasonable suspicion that the action will yield evidence that the student has violated the law or is violating the law or rules of the school. However, such school discipline “searches” must not be “excessively intrusive in light of the age and sex of the students and the nature of the infraction” (p. 381). This was the decision reached in New Jersey v. T.L.O. (469 U.S. 325 [1985]). In T.L.O., a high school student was caught smoking in a school bathroom (in violation of school policy) and was sent to the vice principal. When the vice principal searched the student’s purse for cigarettes, he also found evidence implicating the student in the sale of marijuana. The Court held that the evidence was admissible because the administra- tor had sufficient justification to search the purse for evidence concerning the school’s antismoking policy.

New Jersey v. T.L.O. (469 U.S. 325 [1985])

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DECISION-MAKING EXERCISE 7.5

A Constitutionally Valid Checkpoint?

The facts from an actual case follow. Was this action constitutional?

During the spring and summer of 1992, street crime, including four drive-by shootings, esca- lated in the Soundview neighborhood of the Bronx. In response, the 43rd precinct instituted the so-called Watson Avenue Special Operation. This involved a temporary vehicular checkpoint in an eight square-block narcotics-ridden area where most of the drive-by shootings had taken place. The checkpoint was to be active three days a week on a random basis and for approximately six hours a day, primarily in the evening hours. When the checkpoint was in operation, officers manning the barricade were to stop every vehicle

seeking to enter the area in order to ascertain the driver’s connection to the neighborhood. Drivers who approached the checkpoint were to be allowed to avoid questioning by driving around the area or by parking their cars and entering the area on foot. Area residents and commercial vehicles were to be allowed into the neighbor- hood. Officers manning the barricades were verbally instructed that they could also allow cars dropping off small children or visiting the local church to enter the area. Other than that, vehicles were not permitted beyond the barricades. The operation was in effect for six weeks, between August 26 and October 10, 1992 (Maxwell v. City of New York, 102 F.3d 664 [2d Cir. 1996], p. 665).

LOCKER CHECKS AND DRUG DOG “SNIFFS” A handful of lower court decisions concern inspections of public school students’ lockers as well as drug dog “sniffs” for the purpose of detecting illicit drugs. First, random, suspicionless locker inspections are generally permissible, assuming the students have been given some notification in advance that their lockers are subject to inspection at any time (see Commonwealth v. Cass, 709 A.2d 350 [Pa. 1998]). However, “searches” of specific lockers would still be subject to the reasonableness test set forth in T.L.O.

In support of its decision in T.L.O., the Court noted that a warrant requirement “would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools . . . [and] . . . the substantial need of teachers and admin- istrators for freedom to maintain order in the schools” (p. 376). The majority further stated that the reasonableness test for school disciplinary “searches” involves a twofold inquiry: “First, one must consider ‘whether the . . . action was justified at its inception . . . ’ second, one must determine whether the search as actually conducted ‘was reasonably related in scope to the circumstances which justified the interference in the first place’ ” (p. 341).

There are important limits on school discipline searches, especially in light of the Supreme Court’s decision in Safford Unified School District v. Redding (No. 08-479 [2009]). In that case, Savana Redding, an eighth grader, was “strip searched” by school officials on a belief that she was in possession of certain nonprescription medications, in violation of school policy. Writing for the majority, Justice Souter found that the search violated the Fourth Amendment because there was no “ . . . indication of danger to the students from the power of the drugs or their quantity and any reason to suppose that (Redding) was carrying pills in her underwear.” More than just reasonable suspicion is necessary, then, to support particularly intrusive searches of this nature—for school discipline, but also in the workplace.

Note that T.L.O. concerns students in kindergarten through grade 12. A different story emerges in the context of public and private universities. The courts have generally held that the Fourth Amendment is applicable at the university level. That is, for university personnel to conduct searches of students’ dorm rooms, lockers, and so on, some level of justification is required.

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Chapter 7 • Actions Based on Administrative Justification and Consent 229

With regard to the use of drug dogs, the Fifth Circuit held that so-called sniffs of lockers and cars in public schools are constitutional (Horton v. Goose Creek Independent School District, 690 F.2d 470 [5th Cir. 1982]). The court reasoned that lockers and cars were inanimate objects located in a public place.

Then there is the Seventh Circuit’s controversial holding in Doe v. Renfrow (631 F.2d 91 [7th Cir. 1980]) that the exploratory sniffing of students (as opposed to their property) was not a search. The Seventh Circuit affirmed the lower federal court’s observation that “the presence of the canine team for several minutes was a minimal intrusion at best and not so serious as to invoke the protections of the Fourth Amendment” (Doe v. Renfrow, 475 F. Supp. 1012 [1979], p. 1020). In another appellate court case, though, the Ninth Circuit held that dog sniffs of students’ possession implicate the Fourth Amendment and require probable cause (B.C. v. Plumas Unified School District, 192 F.3d 1260 [9th Cir. 1999]). This is a disagreement between federal circuits that is ripe for some Supreme Court resolution.

“Searches” of Government Employees’ Offices

In a case very similar to T.L.O., although not involving a public school student, the Court held that neither a warrant nor probable cause was required to “search” a gov- ernment employee’s office, but the “search” must be “a noninvestigatory work-related intrusion or an investigatory search for evidence of suspected work-related employee misfeasance” (O’Connor v. Ortega, 480 U.S. 709 [1987]). Justice O’Connor summarized the Court’s reasoning: “[T]he delay in correcting the employee misconduct caused by the need for probable cause rather than reasonable suspicion will be translated into tangible and often irreparable damage to the agency’s work, and ultimately to the public interest” (p. 724). It is important to note, however, that the Court was limiting its decision strictly to work-related matters: “[W]e do not address the appropriate standard when an employee is being investigated for criminal misconduct or breaches of other nonwork-related statutory or regulatory standards” (p. 729). The Court further noted in Ortega that the appropriate standard by which to judge such “searches” is reas- onableness:

We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related mis- conduct, should be judged by the standard of reasonableness under all the circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable. (pp. 725–726)

Recently, the Supreme Court was confronted with the question of whether a police officer’s employer could examine the content of messages sent via a pager. Ontario, California, police officers were given department-issued pagers. When one of them exceeded the number of allotted monthly messages, the department acquired tran- scripts of the officer’s messages, learned that some of them were sexually explicit, and then disciplined the officer accordingly. He sued under Section 1983, alleging his Fourth Amendment rights were violated. However, the Supreme Court disagreed, holding that the department’s “search” of the pager message contents was reasonable (City of Ontario v. Quon, No. 08-1332 [2010]).

At the risk of confusing matters, it should be pointed out that reasonableness in the context of public school student and government employee “searches” is not the same as reasonable suspicion. The latter refers to a certain level of suspicion, while the former focuses on the procedural aspects of the actions in question (e.g., Did authorities go too far in

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230 Part 2 • Search and Seizure

DECISION-MAKING EXERCISE 7.6

Searches of Government Employees

Federal law enforcement agents suspected that several employees in a government agency were engaged in criminal wrongdoing. Several of the agency’s records were subpoenaed. To ensure that the records were being prepared in accordance with the subpoena, the agents visited the government agency. During the course of their visit, the director of the agency was

asked to open an employee’s office. Upon looking in the employee’s office, the agents found incriminating documents and seized them. They also searched the employee’s file cabinet and found more incriminating documents, which were also seized. Is this a valid search of a government employee’s office, as authorized by O’Connor v. Ortega (480 U.S. 709 [1987])?

looking for evidence?). The distinction between reasonableness and reasonable suspicion is a subtle but important one—hence, the reason for discussing disciplinary and work-related “searches” in the section on administrative justification.

Perhaps more important, none of the foregoing applies to individuals employed in private companies. The reason for this should be fairly clear: Private employees work for private employers, the latter not being bound by the strictures of the Fourth Amendment. Stated simply, private employers can search private employees’ lockers, desks, and the like without infringing on any constitutional rights.

Drug and Alcohol Testing

The Supreme Court has, especially recently, decided on the constitutionality of drug and alcohol testing programs. Three lines of cases can be discerned: (1) employee testing, (2) hospital patient testing, and (3) school student testing. Cases involving drug and alcohol testing of each of these three groups are reviewed in the following subsections.

DRUG AND ALCOHOL TESTING OF EMPLOYEES The Supreme Court has permitted war- rantless, suspicionless drug and alcohol testing of employees. In Skinner v. Railway Labor Executives’ Association (489 U.S. 602 [1989]) and National Treasury Employees Union v. Von Raab (489 U.S. 656 [1989]), the Court upheld the constitutionality of certain regulations that permit drug and alcohol testing, citing two reasons for its decision. The first was deterrence; without suspicionless drug testing, there would be no deterrent to employ- ees to stay off drugs. The second reason was that drug testing promotes businesses’ interest in obtaining accurate information about accidents and who is responsible. In Skinner, Justice Stevens made this observation:

Most people—and I would think most railroad employees as well—do not go to work with the expectation that they may be involved in a major accident, particularly one causing such catastrophic results as loss of life or the release of hazardous material requiring an evacuation. Moreover, even if they are conscious of the possibilities that such an accident might be a contributing factor, if the risk of serious personal injury does not deter their use of these substances, it seems highly unlikely that the additional threat of loss of employment would have any effect on their behavior. (p. 634)

Two interesting limitations should be noted about both these cases. The first is that the Court did not decide whether warrantless, suspicionless drug testing could be used

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Ferguson v. Charleston (532 U.S. 67 [2001])