DRUG TESTING SKINNER p.

ER p. 543 FACTS: FRA concluded that alcohol consumption is a major concern on Americas railways and that it significantly contributes to railway disasters The early proscriptions of Rule G didnt help much because enforcement relied upon observations of employees The FRA then promulgated regulations requiring automatic blood, urine, or breath testing of employees following certain accidents to determine whether the employees were intoxicated For certain other incidents, reasonable suspicion that one in intoxicated is required o ISSUE: Is it an unreasonable search of a railroad employee to automatically require him to undergo blood, urine, or breath tests immediately following certain incidents on a railroad in order to determine if he has consumed intoxicants despite lacking individualized suspicion? o HOLDING: No. PROCEDURAL HISTORY: RLEA brought this suit for injunction and the Dist. Ct. denied injunction Ct. App. reversed finding the regulations unconstitutional o REASONING: Testing is a search: A compelled intrusion into the body for blood to be analyzed for alcohol content is a search Penetrating the skin infringes upon a reasonable expectation of privacy No warrant requirement: The burden of obtaining a warrant is likely to frustrate the govt.s interest in protecting against railway calamities, and any delay in obtaining a warrant might result in the destruction of evidence (processing by the body) No individualized suspicion needed: Testing procedures only impose slightly upon the employees expectations of privacy while the govt. interest in testing without individualized suspicion is compelling Employees freedom of movement is already impaired by the nature of employment Blood collection is not an unduly extensive imposition on an individuals expectation of privacy The regulations endeavor to reduce the intrusiveness of the urine collection process Breath tests are extremely minimal Intoxicated employees seldom manifest outward signs of their impairment Regulations significantly increase the deterrent effect of the termination penalty o COMMENTS: Make no mistake: urinalysis is still a search that invokes the Fourth Amendment. However, the Terry balancing approach weighs in favor of allowing suspicionless urinalysis of railway employees. o The Supreme Court has put its imprimatur on urinalysis of railway employees, border patrol agents, and students wishing to participate in extracurricular activities. However, candidates for public office and pregnant mothers are off limits.

OTHER CASES: Ntl. Treasury Employees Union v. Von Raab: Urinalysis of border patrol employees without individualized suspicion was reasonable given the interest in safeguarding the borders and the nature of carrying a gun Vernonia School Dist. v. Acton: Suspcionless drug testing of high school and grade school students who wished to participate in interscholastic activities was reasonable because the intrusion in collecting the samples was slight while the govt. interest in deterring drug use was important enough to justify the search Public safety recreational drug use Impact on public only school students affected; students have lowered expectations of privacy Board of Education of Independent School Dist. v. Earls: Suspicionless urinalysis of middle and high school students wishing to participate inany extracurricular activities was reasonable Schools can subject anyone interested in participating in extracurricular activities, not all students Theres still some choice to not be tested

CHANDLER p. 560 Brief Fact Summary. Libertarian Party nominees challenged a Georgia statute requiring proof of urinalysis drug test to qualify for nomination to election. Synopsis of Rule of Law. Special need for drug testing must be substantial-important enough to override the individuals acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendments normal requirement of individualized suspicion. Facts. Under a Georgia statute, a candidate must present a certificate from a stateapproved laboratory showing that the candidate had a negative urinalysis drug test within 30 days prior to qualifying for nomination. Petitioners were candidates from the Libertarian Party, seeking injunctive and declaratory relief. o Issue. [W]hether [a Georgia] requirement [that candidates take a drug test] ranks among the limited circumstances in which suspicionless searches are warranted. o Held. No. The court acknowledged that Georgia has effectively limited the invasiveness of the testing procedure, and concentrated on the question as to whether the testing was a special need. While the State argued that the use of illegal drugs draws into question an officials judgments and integrity, etc., the court dismissed that logic noting nothing in the record hints that the hazards respondents broadly describe are real and not simply hypothetical for Georgias polity. Moreover, the Georgia law is not well designed to identify candidates who violate anti-drug laws nor is it a credible means to deter illicit drug users from seeking election to state office. The State offered no reason why ordinary law enforcement methods would not suffice to apprehend addicts attempting to enter politics. In conclusion, the court held, the need revealed . . . is symbolic,

not special. Dissent. The Chief Justice dissented on the grounds that Georgia need not wait for an addict to get into office to justify its law. Discussion. Where the risk to public safety is substantial and real, blanket suspicionless searched calibrated to the risk may rank as reasonable

FERGUSON p. 566 Parties: o Plaintiff: The ten pregnant women whose urine was used to test cocaine use. o Defendants: City of Charleston, Medical University of South Carolina (MUSC). After seeing the increase use of cocaine use in pregnant patients, MUSC adopted the policy of upon doubt, using the urine of pregnant patients to check cocaine use. If cocaine use is found during tests, the patients will be given the choice of treatment and if the patient does not finish treatment, her tests will be handed over to the DA office for offenses of using cocaine and asserting cocaine in a minor.

BORDER SEARCHES FLORES-MONTANO p. 568 FACTS: D attempted to enter the US at a SoCal port of entry, and a customs officer did a search of the vehicle and requested D to exit the car The officer then tapped the gas tank and found that it sounded solid, so he ordered a mechanic to remove the gas tank Inside, he found 37 kg of marijuana bricks o ISSUE: Is disassembly of a vehicles gas tank in order to search it for secreted contraband unreasonable if the border patrol agents had not reasonable suspicion that it contained contraband? o HOLDING: No. o PROCEDURAL HISTORY: o Indicted on one count of unlawfully importing marijuana and one count of possession w/ intent to distribute o Dist. Ct. granted motion to suppress holding that reasonable suspicion was necessary, which the govt. conceded it didnt have o Ct. App. affirmed REASONING: Vehicles different than people: Complex balancing tests to determine what is a routine search of a vehicle, as opposed to a more intrusive search of a person, have no place in border searches of vehicles o Strong govt. interest: US, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity o Govt.s interest in prevented the entry of unwanted persons and effects is at its zenith at the international border

o Searches made at the border are reasonable simply because they occur at the border o Search of gas tank OK: Search of a gas tank is no more an invasion of privacy than a search of the passenger compartment o Expectations of privacy are less at the border o If damage occurs, the owner might be entitled to recovery COMMENTS: Searches done at the border are reasonable by the very fact that they occur at the border. Searches that are not justified at the border without some additional criteria (warrant, probable cause) are body cavity searches, strip searches, and involuntary Xrays. o Move away from the border, however, and many searches that would have been justified are no longer so.

HIGHER THAN USUAL STANDARD OF REASONABLENESS GARNER p. 581 Relevant Facts: At about 10:45 p.m. Officers were dispatched to answer a prowler inside call. Upon arriving at the scene they saw a woman standing on her porch and gesturing toward the adjacent house. She told them she had heard glass breaking and that they or someone was breaking in next door. Officers heard a door slam and saw someone run across the backyard. The fleeing suspect, Garner, stopped at a chain link fence. With the aid of a flashlight cops saw no sign of a weapon, and, though not certain, was reasonably sure and figured that Garner was unarmed. While Garner was crouched at the base of the fence, police called out police, halt and took a few steps toward him. Garner then began to climb over the fence. Convinced that if Garner made it over the fence he would elude capture, cop shot him. The bullet hit Garner in the back of the head, and he died. Ten dollars and a purse taken from the house were found on his body. o Legal Issue(s): Whether Tennessee statute under authority of which police officer fired fatal shot was unconstitutional insofar as it authorized use of deadly force against apparently unarmed, nondangerous fleeing suspect? o Courts Holding: Yes o Procedure: The U S D Ct after remand, rendered judgment for dfs, and father appealed. The Ct of App reversed and remanded Judgment of Ct of App affirmed and case remanded. Law or Rule(s): The right of the people to be secure in their persons against unreasonable searches and seizures, shall not be violated. o Tenn St. If, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest. Court Rationale: D Force may be used to prevent escape when the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. This statute section is invalid because it does not put sufficient limits on the use of deadly force; it is too disproportionate, and it does not make distinctions based on gravity and need nor on the magnitude of the offense. Whenever an officer restrains the freedom of a person to walk away, he has seized that

person. The suspect's fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. It is not better that all felony suspects die than that they escape. The fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. o Plaintiffs Argument: Apprehension by use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment. o Defendants Argument: A police officer may arrest a person if he has probable cause to believe that person has committed a crime. MPC - The use of deadly force is not justifiable unless (i) the arrest is for a felony; and (ii) the person effecting the arrest is authorized to act as a peace officer; or is assisting a person whom he believes to be authorized to act as a peace officer, and (iii) the actor believes that the force employed creates no substantial risk of injury to innocent persons; and (iv) the actor believes that (1) the crime for which the arrest is madeinvolved conduct including the use or threatened use of deadly force; or (2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.

SCOTT v HARRIS p. 590 Relevant Facts: Deputy Timothy Scott was involved in a high speed chase that he attempted to end by forcing Respondent, Victor Harris, from the road. Scott used the bumper of his vehicle to the bumper of the car driven by Harris, which caused Harris to leave the road and crash. Harris sustained significant injuries in the crash, leaving him a quadriplegic. Harris brought suit against Deputy Scott, alleging that his actions were excessive and constituted an unreasonable seizure under the Fourth Amendment. Scott moved for summary judgment, claiming qualified immunity. The District Court denied his motion, and the Court of Appeals affirmed on interlocutory appeal. The Eleventh Circuit concluded that Scotts actions constituted deadly force, and a reasonable jury might conclude that deadly force was excessive during the course of the attempted seizure here. Scott appealed. o Issue: Is a police officer entitled to qualified immunity where he forced a defendants vehicle from the road in order to end a high speed chase? Does forcing a vehicle from the road to end a chase constitute an unreasonable seizure under the Fourth Amendment in this case? o Holding: Yes, the police officer is entitled to qualified immunity because the force employed here was reasonable in relation to the threat of continuing the high-speed pursuit. Reasoning: Justice Scalia delivered the majority opinion. The majority explained that qualified immunity is a threshold question, where the court must consider the facts in the most favorable light to the party asserting injury. In this case, the Court determined that no reasonable jury could accept the version of events suggested by Harris, and therefore the Court should not have considered his allegation. The Court here took the unusual step

of viewing an unaltered videotape of the chase in question as part of evaluating the specific facts of this case. The majority next turned to whether the seizure here constituted deadly force, concluding consistent with precedent that whether a seizure constitutes deadly force is only one possible application of the general reasonableness standard for evaluating seizures against Fourth Amendment guarantees. The reasonableness inquiry turns on weighing the nature of the intrusion against the importance of governmental interests to justify the intrusion. Here, the Court (citing the videotaped evidence) concluded that Harris posed an immediate and substantial risk to other motorists such that using force to end the pursuit was reasonable under the circumstances. The Court dismissed contentions that the danger could have been just as easily abated through abandonment of the search, concluding that officers are not required to hope for the best when faced with defendants endangering the lives and safety of others. Furthermore, the Court refused to adopt a standard requiring police to abandon pursuit of fleeing suspects. Justice Scalia explained that such a rule, requiring police to abandon searches when defendants pose a risk to others, would create a perverse incentive to engage in reckless behavior knowing police would be required to terminate pursuit. When, as here, a defendant poses an immediate and substantial risk to others, officers are justified in using force to end the pursuit. Deputy Scotts attempt to end the pursuit by forcing Harris from the road was reasonable under the circumstances, and thus consistent with the Fourth Amendment, entitling him to summary judgment as no reasonable jury could conclude otherwise. o Concurrence: Justice Ginsburg concurred, writing separately to highlight two points. First, she pointed out that the Courts holding here should not be read as a per se rule entitling police to use force to end all pursuits; rather, the reasonableness evaluating must be undertaken on a case by case basis in light of all relevant facts. Second, Justice Ginsburg pointed out that the Court properly considered the constitutional questions in this case rather than a more direct assessment of qualified immunity. Justice Breyer concurred, urging all those interested to view the videotape in evaluating the Courts opinion and qualifying his opinion in two regards. First, Justice Breyer pointed out that courts need not follow a rigid analysis for qualified immunity, always considering the constitutional rights at issue first, but rather proceed in whatever order is appropriate under the facts of the case. Second, Justice Breyer agreed with Justice Ginsburg that the decision here did not create a per se rule, and future courts should be guided by the surrounding circumstances for determining reasonableness of the seizure rather than an absolute standard. o Dissent: Justice Stevens dissented, arguing that the majority adopted a per se rule based on concluding its own version of the facts was the only reasonable view. Justice Stevens pointed out that under varying circumstances, use of force to end a high-speed chase could be either reasonable and not open to doubt, unreasonable with no room for doubt (which in either case would make summary judgment appropriate), or open to interpretation in which case the issue should be for the jury. Justice Stevens pointed out that learned judges disagreed about the facts here, and the Court should have allowed a jury to evaluate the reasonableness of the officers conduct.

Conclusion: Police may use force to end a dangerous pursuit where the defendant poses an immediate and substantial risk to others. The use of force (potentially deadly) to effect a seizure under the circumstances is reasonable with regard to important Fourth Amendment concerns.

SCHMERBER p. 592 Facts: Appellant was involved in an accident and he was taken to the hospital by the police officer where a blood sample was withdrawn to test for his blood alcohol level. Appellant objected to the test and now claims that the blood sample violated his 4th, 5th and 6th Amendment rights (only 4th and 5th for our purposes). o Procedure: The Appellate Department of California Superior Court affirmed appellants conviction. o Issue: Did the withdrawing of the blood sample violate appellants 5th Amendment privilege against self-incrimination? Did it violate his 4th Amendment right to be free from unreasonable searches and seizures? o Holding: No, No Rationale: The Court held that the blood test did not violate the 5th Amendment because this Amendment protects only against compulsion to give testimonial or communicative evidence and not physical evidence as is involved in this case. The Court further held that the blood test did not violate the 4th Amendment. The 4thAmendment clearly protects the rights of people to be securing in their person. But in this case, the officer smelled alcohol and observed that the appellants eyes were bloodshot, watery and had a glassy appearance. Furthermore, the officer had the reasonable fear that the evidence will be lost if he goes out to seek a search warrant. Therefore, the blood test was an appropriate measure conducted in a reasonable manner.

WINSTON p. 594 FACTS:Watkinson was closing his shop when he observed D approaching from across the street with a gun Watkinson drew his own gun and shot D who shot back; both were injured After taking Watkinson to the hospital, the police responded to a call and found D in need of medical attention Upon taking D to the hospital, D concocted a story that he himself was robbed and identified Watkinson at the hospital as his assailant o ISSUE: Is it an unreasonable search for a state to require D to undergo an operation to remove a bullet from his chest to be used against him if the state already has substantial evidence to use against him at trial: o HOLDING: Yes. o PROCEDURAL HISTORY: State requested an order compelling D to undergo an operation to remove the bullet from his chest Trial judge granted motion to compel the surgery; VA Sup. Ct. denied writ or prohibition and/or habeas corpus

D brought suit in a Dist. Ct., which refused a preliminary injunction Surgeon found the bullet was deeper than expected, and the Dist. Ct. enjoined the surgery; Ct. App. affirmed REASONING: o Balancing: Reasonableness of surgical intrusions beneath the skin depend on a case-by-case balancing of the individuals interest with that of society o State had PC for the search Ds interest: Strong interest in not undergoing to such a serious and potentially life-threatening procedure States interest: Weak because it already had substantial evidence to put on a trial against D Unreasonable: Under these circumstances, the state failed to demonstrate that it would be reasonable to search for evidence of this crime by means of the contemplated surgery Higher standard: The 4th Amdt.s command that searches be reasonable requires that when the state seeks to intrude upon an area in which society recognizes a significantly heightened privacy interest, a more substantial justification is required to make the search reasonable o COMMENTS: Essentially, Winston stands for the proposition that there can be no compelled surgery to remove evidence. However, the Court has not completely closed that door, as it requires a more substantial justification than normal.