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.