Pubdate: Fri, 06 Oct 2000
Source: Pittsburgh Post-Gazette (PA)
Copyright: 2000 PG Publishing
Contact:  34 Blvd. of the Allies, Pittsburgh, PA 15222
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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.
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