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.