As these expanding efforts yielded only marginal results, the war was widened to the general populace. In effect, the government opened up a domestic front in the War on Drugs, invading the privacy of people through the use of investigative techniques such as urine testing, roadblocks, bus boardings, and helicopter overflights. Those are dragnet methods; to catch the guilty, everyone has to be watched and screened. Drug testing in the workplace.
Perhaps the most widespread intrusion on privacy arises from pre- or post-employment drug screening, practiced by 80% of Fortune 500 companies and 43% of firms employing 1,000 people or more. Strictly speaking, drug testing by a private employer does not violate the Fourth Amendment, which protects only against government action. Nevertheless, much of the private drug testing has come about through government example and pressure. The 1988 Anti-Drug Abuse Act, for instance, prohibits the award of a Federal grant or contract to an employer who does not take specified steps to provide a drug-free workplace.
As a result of these and other pressures, tens of millions of job applicants and employees are subjected to the indignities of urinating into a bottle, sometimes under the eyes of a monitor watching to ensure that clean urine is not smuggled surreptitiously into the toilet. In the arena of public employment, where Fourth Amendment protections apply, the courts largely have rejected constitutional challenges to drug testing programs.
In two cases to reach the U. S. Supreme Court, the testing programs substantially were upheld despite, as Justice Scalia wrote in dissent in one of them, a complete absence of “real evidence of a real problem that will be solved by urine testing of customs service employees. ” In that case, the Customs Service had implemented a drug testing program to screen all job applicants and employees engaged in drug interdiction activities, carrying firearms, or handling classified material.
The Court held that the testing of such applicants and employees is “reasonable” even without probable cause or individualized suspicion against any particular person, the Fourth Amendment standard. For Scalia, the testing of Customs Service employees was quite different from that of railroad employees involved in train accidents, which had been found constitutional. In that case, there was substantial evidence over the course of many years that the use of alcohol had been implicated in causing railroad accidents, including a 1979 study finding that 23% of the operating personnel were problem drinkers.
Commenting on the Customs case, Scalia maintained that “What is absent in the government’s justifications – notably absent, revealingly absent, and as far as I am concerned dispositively absent – is the recitation of even a single instance in which any of the speculated horribles actually occurred: an instance, that is, in which the cause of bribe-taking, or of poor aim, or of unsympathetic law enforcement, or of compromise of classified information, was drug use. ” Searches and seizures. Other dragnet techniques that invade the privacy of the innocent as well as the guilty have been upheld by the Supreme Court.
In the tug-of-war between the government’s search and seizure powers and the privacy rights of individuals, the Court throughout the 1980s almost always upheld the government’s assertion of the right of drug agents to use the airport drug courier profile to stop, detain, and question people without warrant or probable cause; subject a traveler’s luggage to a sniffing examination by a drug-detecting dog without warrant or probable cause; search without warrant or probable cause the purse of a public school student; and search at will ships in inland waterways.
The right of privacy in the home seriously was curtailed in decisions permitting police to obtain a search warrant of a home based on an anonymous informant’s tip; use illegally seized evidence under a “good faith exception” to the exclusionary rule (for searches of a home made pursuant to a defective warrant issued without probable cause); make a trespassory search, without a warrant, in “open fields” surrounded by fences and no trespassing signs and of a barn adjacent to a residence; and conduct a warrantless search of a motor home occupied as a residence, a home on the consent of an occasional visitor lacking legal authority over the premises, and the foreign residence of a person held for trial in the US. The Court also validated warrantless aerial surveillance over private property – by fixed-wing aircraft at an altitude of 1,000 feet and by helicopter at 400 feet.
Similarly, it significantly enlarged the powers of police to stop, question, and detain drivers of vehicles on the highways on suspicion with less than probable cause or with no suspicion at all at fixed checkpoints or roadblocks; make warrantless searches of automobiles and of closed containers therein; and conduct surveillance of suspects by placing transmitters or beepers on vehicles or in containers therein. The foregoing list is by no means comprehensive, but it does indicate the sweeping expansions the Court has permitted in the investigative powers of government. Indeed, from 1982 through the end of the 1991 term, the Supreme Court upheld government search and seizure authority in approximately 90% of the cases. The message is unmistakable – the Fourth Amendment prohibits only “unreasonable” searches and seizures, and what is reasonable in the milieu of a War on Drugs is construed very broadly in favor of local police and Federal drug agents. Surveillance of U. S. mail.
Another casualty of the War on Drugs is the privacy of the mail. With the Anti-Drug Abuse Act of 1988, the Postal Service was given broad law enforcement authority. Using a profile, investigators identify what they deem to be suspicious packages and place them before drug-sniffing dogs. A dog alert is deemed probable cause to apply for a Federal search warrant. If an opened package does not contain drugs, it is resealed and sent to its destination with a copy of the search warrant. Since January, 1990, using this technique, the Postal Service has arrested more than 2,500 persons for sending drugs through the mail. The number of innocent packages opened has not been reported.