Pubdate: Fri, 06 Oct 2000 Source: Pittsburgh Post-Gazette (PA) Copyright: 2000 PG Publishing Contact: 34 Blvd. of the Allies, Pittsburgh, PA 15222 Fax: (412) 263-2014 Feedback: http://www.post-gazette.com/contact/letters.asp Website: http://www.post-gazette.com/ SEARCHING QUESTIONS The Supreme Court Should Reaffirm Privacy Rights The Fourth Amendment to the U.S. Constitution prohibits "unreasonable searches and seizures" and also says that warrants should be issued only for "probable cause" of criminal activity. But the U.S. Supreme Court has held that some warrantless searches by police are reasonable if they occur in special circumstances. The danger is always that the exceptions will swallow the rule, undermining the right of privacy. In two cases argued this week, the justices were asked to expand the exception to allow police - with the aid of doctors in one case and dogs in the other - to search individuals without either a warrant or probable cause. The court should decline the invitation. In a case from Indiana, the court is being asked to uphold an injunction against the Indianapolis police force's practice of erecting roadblocks designed to catch drug offenders. When a car is stopped, the driver is asked to show his driver's license and registration; meanwhile, a drug-sniffing dog circumnavigates the vehicle. Five percent of the stops resulted in drug arrest; 9 percent turned up evidence of other violations, such as expired driver's licenses. A federal appeals court, in an opinion by a prominent conservative judge, issued a tentative ruling finding that the roadblocks violated the Fourth Amendment. The practice, Chief Judge Richard Posner concluded, did not fall into any of the recognized exceptions for speculative searches - which include roadblocks designed to cut down on fatalities from drunken driving and searches by customs agents (and dogs) of baggage brought into the country from abroad. American courts traditionally have allowed warrantless searches when they were motivated by some public purpose other than enforcement of the criminal law. Indianapolis' roadblocks look more like the classic fishing expedition, and the fact that several "fish" were caught doesn't mean that the police should be allowed to see how many drug dealers they might turn up. (The fishing expedition doesn't become any less offensive if the city pretends that the roadblock is designed to look for expired driver's licenses - a possibility floated in this week's arguments.) The Supreme Court should erect a constitutional roadblock against such operations. In the other Fourth Amendment case argued this week, the city of Charleston, S.C., is seeking the court's approval of a program designed to deal with an epidemic of "crack babies," infants born of mothers addicted to crack cocaine. The program was well-intentioned, but also intrusive and probably counterproductive. Certainly it stretched the Fourth Amendment to the breaking point. Under the program, the Medical University of South Carolina, a public institution bound by the Constitution, subjected the urine of some pregnant women to a test for the effects of cocaine use. In the beginning, women who tested positive were reported to the police and then arrested. Later, the policy was changed to create a sort of good cop/bad cop system in which women could avoid prosecution if they entered drug rehabilitation. Charleston argues that the program - which since has been modified so that no arrests are made at the hospital - was motivated primarily by a concern for the health of newborns who might be harmed by their mother's cocaine use. Nevertheless, a woman's failure to enter rehabilitation could lead to prosecution under a state law making it a crime to distribute cocaine to a "person" - including a viable fetus. In this case, a federal appeals court accepted the state's argument that these benign motivations put the drug tests into a category known as "special needs searches," which do not require a warrant, probable cause or even reasonable suspicion that an individual has broken the law. A dissenting judge had the better of the argument, though, when she observed that "an initial and continuing focus of the policy was . . . the arrest and prosecution of drug-abusing mothers." Indeed it was; however sincere their motives, doctors and nurses at the hospital were acting as auxiliary police officers. Even if such a partnership is good for public health - and it seems doubtful that many expectant mothers would patronize a hospital known to cooperate with the police in this way - when the objective is turning up evidence of lawbreaking, the Constitution must be honored. That is true whether a search or seizure is conducted on the highway or in a hospital. - --- MAP posted-by: Jo-D