Special Needs Searches.  (See Full Document for Citations)


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 the 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, or 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 type of special needs search. The interest in public safety served by testing government employees often outweighs the intrusion on the employees' privacy interests. Yet, even unintrusive 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.

Warrantless searches of the homes and property of parolees and probationers have also been permitted if they are reasonable under the totality of the circumstances. Such 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 as 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 public employees' offices as special needs searches. Even if a public employee has a reasonable expectation of privacy in the particular workplace area searched, probable cause of a crime is not required for a government search of a workplace conducted either for “noninvestigatory, work-related purposes” or in the course of “investigations of work-related misconduct.”