In order to reasonably consider the consequences of such a law let’s first look at what law and constitutional rights such legislation would affect.
The 4th Amendment provides protection against ‘unreasonable search and seizure.” Search and seizure is a necessary practice in the pursuit of criminals. Searches and seizures are used to produce evidence for the prosecution of alleged criminals. The police have the power to search and seize, but individuals are protected against arbitrary unreasonable police intrusions. Freedom from unrestricted search warrants was critical to American colonists.
Under Britain’s rule, many searches were unlimited in scope and conducted without any justification. Customs officials could enter the homes of colonists at will to search for violations of customs and trade laws, and impromptu searches were carried out against outspoken political activists. Searches in the colonies came to represent governmental oppression. Our founding fathers found it necessary to take action to prevent such oppression of the people.
To protect ordinary citizens against arbitrary police intrusions, the newly formed United States in 1791 ratified the U.S. Constitution's Fourth Amendment which states:
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 probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
When the 4th Amendment Doesn't Protect You
The Fourth Amendment applies to a search only if a person has a "legitimate expectation of privacy" in the place or thing searched. If not, the Fourth Amendment offers no protection because there are, by definition, no privacy issues.
Courts use a two-part test (fashioned by the U.S. Supreme Court) to determine whether, at the time of the search, a defendant had a legitimate expectation of privacy in the place or things searched:
- Did the person actually expect some degree of privacy?
- Is the person's expectation objectively reasonable -- that is, one that society is willing to recognize?
Individuals receive no Fourth Amendment protection unless they can demonstrate that they have a reasonable expectation of privacy in the place that was searched or the property that was seized. In general the Court has said that individuals enjoy a reasonable expectation of privacy in their own bodies, property, homes, and business offices. Individuals also enjoy a qualified expectation of privacy in their automobiles.
Probable Cause and Reasonable Suspicion
Once it has been established that an individual possesses a reasonable expectation of privacy in a place to be searched or a thing to be seized, the Fourth Amendment's protections take hold, and the question then becomes what are the nature of those protections. Police officers need no justification to stop someone on a public street and ask questions, and individuals are completely entitled to refuse to answer any such questions and go about their business. However, a police officer may only search people and places when the officer has probable cause or reasonable suspicion to suspect criminal activity.
"Probable cause" means that the officer must possess sufficiently trustworthy facts to believe that a crime has been committed. In some cases, an officer may need only a reasonable suspicion of criminal activity to conduct a limited search. Reasonable suspicion means that the officer has sufficient knowledge to believe that criminal activity is present or imminent. This level of knowledge is less than that of probable cause, so reasonable suspicion is usually used to justify a brief frisk in a public area or a traffic stop at roadside. To possess either probable cause or reasonable suspicion, an officer must be able to cite specific articulable facts to warrant the intrusion. Items related to suspected criminal activity found in a search may be taken, or seized, by the officer. There are many well publicized incidents where law enforcement goes way beyond just a frisk because many now act more frequently on reasonable suspicion rather than probable cause. This is especially true since 9/11.
Administrative agencies may conduct warrantless searches of highly regulated industries, such as strip mining and food service. Federal and state statutes authorize warrantless, random drug testing of persons in sensitive positions, such as air traffic controllers, drug interdiction officers, railroad employees, and customs officials. In each of these types of searches, the Supreme Court has ruled that the need for public safety outweighs the countervailing privacy interests that would normally require a search warrant. However, a few lower federal courts have ruled that warrantless searches of public housing projects are unconstitutional, not withstanding the fact that residents of the public housings projects signed petitions supporting warrantless searches to rid their communities of drugs and weapons. So this is not a new attempt by authorities to target a specific group profiled by their socioeconomic status. The effort to target Welfare recipients is not new. However, testing of welfare recipients is being done. Authorities now have a green light to proceed with search and seizure without the public safety hurdle to cross.
States may not pass a law requiring candidates for state political office to certify that they have taken a drug test and that the test result was negative without violating the Fourth Amendment's warrant requirement. In Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (U.S. 1997). So our politicians seem to be well protected though one would certainly find it debatable as to whether this would reflect upon the public’s safety.
The Supreme Court has given law enforcement mixed signals over the constitutionality of warrantless motor vehicle checkpoints. The Court approved warrantless, suspicionless searches at roadside sobriety checkpoints. These searches must be carried out in some neutral, articulable way, such as by stopping every fifth car. the Court said that the sobriety checkpoints under review were designed to ensure roadway safety, while the primary purpose of the narcotics checkpoint under review had been to uncover evidence of ordinary criminal wrongdoing, and, as such, the program contravened the Fourth Amendment. City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (U.S. 2000). Law enforcement now has the power granted by the States to immediately exact punishment at these checkpoints by seizing the driver’s license, vehicle and contents if a driver refuses to submit to a roadside breath test. This puts a tremendous amount of power in the hands of those who have proven the likelihood to abuse such power. No trial, no jury, no judge. A test that has been often proven to be inconsistent and unreliable.
No knock entry
The Fourth Amendment incorporates the Common Law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. At the same time, the Supreme Court has recognized that the "flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests." Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995).
The Wisconsin Supreme Court concluded that police officers are never required to knock and announce their presence when executing a search warrant in a felony drug investigation. But the U.S. Supreme Court overturned the state high court's decision in Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (U.S. 1997). To justify a no-knock entry, the Court stressed that police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This flexibility has resulted in many ‘wrong door’ raids resulting in sever trauma and even death for innocent citizens just relaxing at home.
A 61-year-old man in Lebanon, Tennessee (http://abcnews.go.com/US/story?id=95475&page=1) was shot to death by
police while his wife was handcuffed in another room during a drug raid. Police admitted their mistake, saying faulty information from a drug informant contributed to the death of John Adams. They intended to raid the home next door.
In Ogden, Police Chief Mike Ashment has apologized for six armed officers serving a warrant on the wrong house and traumatizing two young girls who still won’t sleep in their own beds.
But the chief is not ready to concede five of the officers carried assault rifles and shotguns in the 2 a.m. entry Dec. 20 at the home of Eric and Melanie Hill. The Hills have related that they counted two shotguns and three assault rifles among the officers who crowded into their modest home.
“They were huge rifles, huge,” said Melanie Hill. They described the long guns as equipped with LED lights and carried by men dressed all in black, one wearing a helmet.
Now Americans are calling for the arbitrary drug testing of welfare recipients in 25 States. This flies squarely into the face of the public safety protection for unreasonable search and seizure. It should be evident from the cases listed above and Law enforcements propensity for overstepping citizens rights that allowing this to continue will erode Fourth Amendment rights for all.
"If you have done nothing wrong then you have nothing to fear."
You may say; “if you have done nothing wrong then you have nothing to fear.” This kind of thinking is exactly the mindset spread under the former Soviet Union that created a society ruled by oppression. You may find that what you consider acceptable today may be ruled unacceptable by your government tomorrow. The law that allows government agents to require drug testing of a welfare recipient today may be used to test a social security recipient tomorrow or anyone who receives a tax refund in the future.
Can you be sure that testing for drugs today may not lead to testing for tobacco later? What about testing for Coca-Cola or aspartame? How about caffeine? You may scoff at these examples as being to farfetched to consider. However, cocaine and marijuana were once legal and readily available. Nothing is considered more onerous and harmful to the public safety as tobacco is today. Can you comfortably rely on your government to determine what really is in your public interest? Science is making tremendous strides every day in discovering how chemicals in our food affect us on a cellular level. Who knows what may be determined to be injurious to your health. You only have to take a look at other countries and see what restrictions governments can devise to impose upon their people.
There are better solutions
There are other solutions to preventing drug abuse in America. Welfare recipients are now required to register for the ‘Welfare to Work Transition’ program. Since employers have a reasonable expectation for drug free employees perhaps this would be a better channel for testing welfare recipients. Utilizing laws that already exist and do not unnecessarily detract or circumvent those constitutional rights that many have fought and died to defend. Do not go willingly into the night.
In addition these laws do not serve to lower drug use nor save money. Recently in Florida, required drug tests for people seeking welfare benefits ended up costing taxpayers more than it saved and failed to curb the number of prospective applicants.
According to data collected by the American Civil Liberties Union of Florida in preparation for its legal challenge to Florida’s new law; only 108 of the 4,086 people who took a drug test failed. The numbers, confirming previous estimates, show that taxpayers spent $118,140 to reimburse people for drug test costs, at an average of $35 per screening. The state’s net loss? $45,780. Who pays this? The taxpayer does. This does not even take into consideration the attorneys and court fees and countless hours of staff time to implement the policy.
One law begets another
Governor Scott, undeterred has sponsored a law to have all State employees tested. The danger is not in an employers right to test employees the precipice we teeter upon is providing the government with a law that circumvents the fourth amendment rights of all citizens. It is more pervasive than you think.