Monday, August 10, 2020

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Special Needs Searches. The Supreme Court has held that certain programmatic searches do not require a warrant or probable cause when they are conducted in furtherance of a government “special need” other than investigation of criminal activity. These “special needs” searches are evaluated under a two-pronged approach. First, they must further a “special need[], beyond the normal need for law enforcement,” which would be jeopardized by a warrant or probable cause requirement. To qualify as a special need, a government interest must be a real, current, vital problem that the proposed search effectively addresses. Second, if there is a special need and the individualized suspicion requirement would jeopardize that need, courts evaluate the reasonableness of the search by balancing the nature of the intrusion on the privacy interest at stake against the government interest served by the search. Determining whether special needs searches are permissible is therefore heavily fact and case specific.

Special needs searches have been permitted in several distinct areas. For example, the Supreme Court has upheld programmatic, suspicionless drug testing of government employees as a special needs search. The interest in public safety served by testing employees often outweighs the intrusion on employee privacy interests. However, even un-intrusive drug testing is invalid if the government does not show that there is an immediate public safety concern and that the search in question effectively addresses the concern.

The Supreme Court has also upheld suspicionless drug testing of public school students as special needs searches. These searches are permissible because the warrant and probable cause requirements are impracticable in the public school context, public school students have reduced privacy expectations, and schools have a pressing need to prevent student drug use that outweighs the intrusion on students' privacy interests. Nevertheless, more intrusive searches--such as those involving a student's person or property--require particularized suspicion of wrongdoing.

Warrantless searches of the homes and property of probationers and parolees have also been permitted under the special needs exception, and these searches are upheld if reasonable. Courts determine reasonableness by balancing the state's special need to supervise parolees and probationers against the intrusion on the parolees' and probationers' privacy interests, which are greatly reduced because of their ongoing supervisory relationship with the state. The searches do not require probable cause, but they must be conducted in furtherance of the state's special need to supervise parolees and probationers and thus must be related to parole or probation conditions.

Collection of DNA from individuals who have been arrested is permitted without a warrant if it is part of a routine booking process. Law enforcement's strong interest in identifying arrestees outweighs the privacy interests of individuals who have been arrested on probable cause.

The Supreme Court has also upheld searches of the offices or persons of public employees as special needs searches. Even if a public employee has a reasonable expectation of privacy in the particular workplace area searched and the Fourth Amendment applies, probable cause is not required for workplace searches conducted either for “noninvestigatory, work-related purposes” or in the course of “investigations of work-related misconduct.” These searches are upheld if they are reasonable “under all the circumstances.” The reasonableness test consists of two inquiries: (1) whether the “action was justified at its inception,” and (2) whether the search as actually conducted was “reasonably related in scope to the circumstances which justified the interference in the first place.”

 

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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