Balancing government necessity and public employee privacy: reconstructing the Fourth Amendment through the special needs doctrine.

In the mid 1980s the Rehnquist court introduced a new constitutional doctrine making the Fourth Amendment's warrant and probably cause requirements dispensable when the government establishes a legitimate "special need" The new doctrine has been employed to allow, among other "special needs," large-scale public employee drug testing programs that court's, applying traditional constitutional analysis, had previously struck down. Analysis of judicial implementation of the new doctrine suggests the Supreme Court's broad characterization of government's special needs may be poorly reasoned and ultimately may be constitutionally flawed An assessment of the doctrine suggests that it is predicated on traditionalist perceptions of management roles, and that it reinforces those roles.

The right of the people to be secure in their persons, houses, papers and

effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probably cause, supported by Oath

or affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.

--U.S. Constitution, Fourth Amendment (1980)

The Supreme Court's occasional role as arbiter of conflicts between individual's rights and organizations' prerogatives make its pronouncements concerning public employees immensely important. The Court's influence is such that its decisions in these areas often stimulate private sector managerial analogs of court-identified rights and obligations of public employees. In the era of relatively liberal Supreme Courts, for example, cases establishing protected First Amendment and Fifth Amendment rights of public employees had important effects beyond the realm of government.(1)

As increasingly conservative Supreme Court terms bring sometimes startling innovations in doctrine, the text of certain decisions reflects traditionalist instrumental management philosophies and styles. In particular, judicial decisions employing negative stereotypes of the public workforce as part of an agenda to delegitimate, and perhaps void, application of constitutional standards to public employees, are cause for concern.

In a recent development, the Rehnquist Court has recast Fourth Amendment analysis in certain cases where the court has found a legitimate governmental "special need." The new approach elevates the first clause of the Fourth Amendment, the reasonableness clause, to a dominant position and renders the requirements of the second clause (the warrant and probable cause clause) dispensable in circumstances that may have wide application. In place of the Fourth Amendment's warrant and probable cause requirements, the new doctrine demands that a reviewing court directly balance the government's professed special need against an affected individual's right to those explicit Fourth Amendment procedural protections. In these cases, as a practical matter, once the Supreme Court "discovers" a legitimate governmental special need, lower federal courts are virtually bound to support the government's argument--as direct balancing of legitimized governmental needs against individual interests almost inevitably requires judicial support for the government's main interest.(2)

Although special governmental needs exceptions to the Bill of Rights may be defensible, conventional constitutional construction demands that such exceptions be narrowly crafted and confined to exceptional circumstances. Unfortunately, recent Supreme Court decisions supporting the governmental needs presented in the following cases rely, in part, upon such amorphous judicial constructs as the "integrity of the public service," protection of "sensitive materials and national security," a stated need to preserve governmental "efficiency and effectiveness," and in generalized nonspecific appeals to "public safety."(3) In this manner the rhetorical invention of governmental special needs has been employed to reconstruct the Fourth Amendment to the point where, in many cases involving governmental searches of employee offices and drug testing programs, the amendment has lost its substantive content. Although the doctrine has been employed most frequently to date in judicial scrutiny of public agency drug testing programs, the theory of the special needs doctrine may be employed in the future to justify other significant invasions of individual privacy.(4)

This article begins by introducing traditional Fourth Amendment analysis as prelude to a brief discussion of four cases where the Supreme Court developed the special needs doctrine. A more extended discussion is offered of lower court implementation of the new doctrine to 1991. The final sections offer an assessment of the doctrine.

THE TRADITIONAL MODEL

In the prerevolutionary period, unannounced, uncontrolled, and sometimes destructive searches in homes and businesses by local representatives of the British Crown, sheriffs, and tax collectors were authorized by general search warrants issued by the English Parliament. These warrants, the hated writs of assistance, granted broad discretion to conduct searches and seizures of property to counter American residents reluctance to pay England taxes. Although the writs were purposefully employed to create a climate of obedience, their use defeated their designed ends; they were bitterly resented and resisted, and were often cited by contemporaries among the grievances contributing to the Revolution (Bradley, 1989).

A generation earlier, English courts had outlawed the writs in that country, finding they were contrary to the common law doctrine of privacy (Entick v. Carrington, 1765).(5) The argument was held, however, that it was necessary to maintain the writs in the colonies because of the recalcitrance of the Americans. They were justified in Parliament and the colonial courts as a necessary response by government to an uncooperative population. For example, in a 1770s case challenging a particularly egregious unannounced search and seizure under the authority of such a writ, the Crown's successful defense of its action was that of "governmental necessity," that is, such searches were necessary to protect the sovereign's revenue.(6)

In the 1980s, the Supreme Court raised governmental necessity to the level of doctrine to guide lower courts in deciding Fourth Amendment cases. This special needs doctrine explicitly justifies annulment of the Fourth Amendment's second clause (the warrant and probable cause requirements) with regard to searches of a person where the government demonstrates an important special need, that is, in the interests of governmental necessity. However, if the functional deletion of the amendment's second clause in the case of intrusive searches of individuals' bodies is viewed as authorizing what may only be labeled "general" search warrants (authorizing searches nonspecific as to individuals and without probable cause) the new doctrine may have questionable constitutional legitimacy. This article explores these themes.

THE AMBIGUOUS FOURTH AMENDMENT

The Fourth Amendment to the U.S. Constitution prohibited the new national government from granting the broad discretionary powers of general search and seizure to its officials. The amendment's two clauses were well understood by the state legislators ratifying the Bill of Rights to prohibit the issuance of "general" warrants, that is, warrants not based on "probable cause" and specific "as to the places to be searched."(7) The common understanding that the Fourth Amendment proscribes the employment of general search warrants is not sufficient, however, to guide complex constitutional doctrine regarding search and seizure. Indeed, because the amendment's construction is ambiguous--that is, the second clause (warrant requirement) is not necessarily to be read as defining the meaning of the first clause (prohibiting unreasonable searches)--courts have not been constrained by the amendment's language in determining its meaning. In fact, for many commentators the Supreme Court's jurisprudence concerning the amendment has been anything but consistent.(8) Although the text of the amendment does not make clear what "unreasonable searches" means, or whether a warrant ant is required for all searches or for only some searches, the courts have developed the meaning of the amendment through evolving caselaw.

Minimally, the courts have found the amendment was designed to prohibit searches that are unreasonable, the clear language of the first clause. They have also found that at least one version of reasonableness was defined in the second clause as, the existence of particularized and specific probable cause found by an independent magistrate in the form of a search warrant. The conventional doctrine developed by the Supreme Court has been, that prior to a required or nonconsensual search by government officials, a warrant must be issued by a neutral judge or magistrate after finding specific "probable cause" for the search. The intent was, and remains in modern caselaw, to limit the discretion of investigating officials to conduct searches and seizures of property--an awesome power when conducted by government officials from whom there may be no appeal. By requiring the issuance of a valid warrant based on probable cause, and delineating the specific items to be searched for, the Fourth Amendment ideally creates a zone of privacy that the government may invade only by following appropriate procedures designed to protect the citizen from arbitrary use of the search and seizure power.

Although normally requiring a valid search warrant as a criterion of reasonableness of a search, the Supreme Court has not been willing to go so far as to make warrantless searches unreasonable per se, and therefore unconstitutional. In certain circumstances the court has adopted a different analysis, approving warrantless searches. The criteria for such searches is generally that the intrusion of an individual's protected Fourth Amendment interests is limited, and the government's interest is significant. In Terry, v. Ohio (1967) for example, the court upheld a stop and frisk law by reasoning that the nature of the intrusion was limited (frisking an individual, but not a full body search) and that the police had at least a …