PRIVACY, DRUGS AND THE COURT THE SUPREME COURT heard oral arguments this week in a pair of cases that balance privacy interests against the war on drugs. One asks whether police can set up a traffic roadblock at which drug-sniffing dogs are led around cars to check for drugs, while the other asks whether a public hospital may test pregnant women for cocaine use and pass the results on to law enforcement authorities. The cases are different but present the same general question: To what extent can authorities use warrantless searches that are ostensibly intended to serve governmental interests other than punishing crime as tools of criminal investigation and prosecution? The question is not new. Though detaining motorists usually requires some suspicion of wrongdoing, the court has upheld general roadblocks to check driver sobriety and stop illegal alien smuggling. The idea is that in such cases, the state has compelling interests--for example, the safety of the roads--that justify the privacy intrusion. If, in the course of protecting this interest, authorities find evidence of a crime, all the better. But the current cases go a dicey step further. Indianapolis set up its drug roadblocks with the specific idea not of protecting the roadways but of arresting drug criminals. The check of drivers' licenses and registrations at the stops was pretext. In other words, people suspected of no wrongdoing were held--albeit relatively briefly--in order that they might be subjected to a cursory criminal investigation. If this is constitutional, it's hard to see why police couldn't stop pedestrians and have them sniffed by dogs. Like the roadblocks, the drug testing program in a South Carolina public university hospital goes too far. Law enforcement was involved in the testing system in order to arrest women who had been using cocaine and to force them into drug treatment programs. While there could certainly be a medical justification to test patients for cocaine, the facts strongly suggest that the medical reasons for the testing were--like the Indianapolis dragnets--something of pretext. Fourth Amendment law has become so intricate and so internally inconsistent that it is worth stepping back and remembering the amendment's basic command: Searches and seizures must be reasonable. Against this basic benchmark, neither program holds water. It doesn't seem reasonable for people to be detained at random on the road and investigated for crimes. Nor is it reasonable for law enforcement to hijack doctor-patient relations in order to arrest pregnant women.
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