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Will the real Fourth Amendment please stand up?

The Supreme Court decided two Fourth Amendment cases last term. Vernonia School District 47J v. Acton (115 S. Ct. 2386 (1995)) upheld the school district's policy of requiring student athletes to consent to random urinalysis to test for drug use. Wilson v. Arkansas (115 S. Ct. 1914 (1995)) held that the failure of police officers to knock and announce their identity and purpose before executing a warrant was a factor to be considered in determining whether the search violated the Constitution. The cases are notable because of the great difference in the way that the justices analyzed the Fourth Amendment.

In Acton, Justice Antonin Scalia's majority opinion began by invoking the Fourth Amendment balancing test. In cases dealing with searches and seizures by law enforcement officers, the Court's starting point is usually the idea that police need a warrant obtained in accordance with the Fourth Amendment's Warrant Clause before a search or an arrest can be reasonable. In contrast, the balancing test calls for a comprehensive survey of the competing policy considerations, with no presumption that reasonableness depends on either probable cause or a warrant.

Although the balancing approach occasionally makes its way into Fourth Amendment cases involving traditional police work (see Terry v. Ohio, 392 U.S. 1 (1968) (stop-and-frisk); Colorado v. Bertine, 479 U.S. 367 (1987) (inventory search of impounded vehicle)), the Court typically resorts to the balancing test when the search at issue serves some government function other than enforcing the criminal law. (See, e.g., Camara v. Municipal Court, 387 U.S. 523 (1967) (health and safety building inspections); Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) (occupational safety inspections). The fact that searches conducted for regulatory purposes may turn up evidence of criminal conduct, however, has not prevented the Court from using the balancing approach. (See Michigan Department of State Police v. Sitz (496 U.S. 444 (1990) (checkpoints for drunk drivers); New York v. Burger, 482 U.S. 691 (1987) (warrantless junkyard inspections for stolen property).

Prior decisions involving school searches (New Jersey v. T.L.O., 469 U.S. 325 (1985)) and drug testing of public employees (Skinner v. Railway Labor Executives' Association, 489 U.S. 602 (1989); National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)) had balanced competing interests without regard to the warrant and probable cause requirements. So it was no surprise that the justices looked to the balancing test to determine the constitutionality of drug testing in public schools.

Scalia's application of the balancing test began by minimizing Acton's interest in privacy. School students have a diminished expectation of privacy, and this is especially so in the context of athletic competition, which requires changing clothes and showering in a communal environment. Acton, 115 S. Ct. 2386, 2392-93. The majority then characterized urinalysis as a minor intrusion. Samples were to be given under normal restroom conditions and would not be tested for anything other than drug use. (Id. at 2393-94.

By contrast, the government's interest was "important--indeed, perhaps compelling." (Id. at 2395.) The Vernonia schools had experienced major disciplinary problems attributed to an increase in student drug and alcohol use. Much of the trouble was due to substance abuse by student athletes. The conclusion that the school's policy was reasonable was a simple matter of comparing a "negligible individual interest against a compelling public interest. (Id. at 2393.)

The majority opinion, however, is essentially standardless. It even goes so far as to undo what little guidance the Court had given in prior decisions applying the balancing test. Although in Von Raab the Court had characterized the need to prevent drug use by weapon-carrying customs agents as a "compelling interest" (Von Raab, 489 U.S. 656, 670), the Court retreated from this language in Acton:

It is a mistake, however, to think that

the phrase "compelling state interest,"

in the Fourth Amendment context,

describes a fixed, minimum quantum

of governmental concern, so that one

can dispose of a case by answering in

isolation the question: Is there a compelling

state interest here? Rather, the

phrase describes an interest which appears

important enough to justify the

particular search at hand, in light of

other factors which show the search to

be relatively intrusive upon a genuine

expectation of privacy.

(Acton, 115 S. Ct. 2386, 2394-95. In other words, the government interest is compelling whenever the Court believes it to be more important than the interest in privacy.

Likewise, the Acton opinion departed from one of the few principles that had emerged from prior cases under the balancing test. The Skinner Court noted that "when the balance of interests precludes insistence on a showing of probable cause, we have usually required `some quantum of individualized suspicion' before concluding that a search is reasonable." (Skinner, 489 U.S. 602, 624 (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976)). In Skinner, the Court upheld testing without particularized suspicion but only in the context of investigating a railroad accident; the fact of the accident itself gives some cause to focus on the train crew.

The Acton majority, however, rejected the argument that random searches were unreasonable. Particularized suspicion transforms the [testing] process into a badge of shame" that might be objectionable to parents and "brings the risk that teachers will impose testing arbitralily upon troublesome but not drug-likely students." (Acton, 115 S. Ct. 2386, 2396.

Justices Sandra Day O'Connor, John Paul Stevens, and David Souter were unimpressed by these concerns. Speaking for the dissenters, O'Connor wrote that

whether a blanket search is "better"

than a regime based on individualized

suspicion is not a debate in which we

should engage. In my view, it is not

open to judges or government officials

to decide on policy grounds which is

better and which is worse. For most of

our constitutional history, mass, suspicionless

searches have been generally

considered per se unreasonable within

the meaning of the Fourth Amendment.

And we have allowed exceptions

in recent years only where it has been

clear that a suspicion-based regime

would be ineffectual.

(Id. at 2398.

Different Approach

The Court took a radically different approach in Wilson. The police had obtained a warrant to search Sharlene Wilson's residence. When they arrived, they found the door unlocked and let themselves in, without knocking or announcing their identity before doing so.

The Arkansas Supreme Court upheld the search on the ground that the common-law knock and announce" requirement was not incorporated by the Fourth Amendment. The U.S. Supreme Court unanimously rejected this view. Speaking through Justice Clarence Thomas, the Court declared that the "common-law `knock and announce' principle forms a part of the reasonableness inquiry under the Fourth Amendment." (Wilson, 115 S. Ct. 1914, 1915.)

The Wilson Court did not hold that failure to knock makes a search per se unreasonable; rather, the justices remanded the for further proceedings. The remarkable thing about the Court's opinion--other than unanimity, which is a rare creature in Fourth Amendment cases--is the searching reliance on founding-era legal practice.

The Wilson Court cites Sir Matthew Hale, Sir William Blackstone, and Semayne's Case (77 Eng. Rep. 194 (K.B. 1603)) but pays no attention to contemporary policy considerations.

One might suppose that the difference between the 17th century search for a fugitive or stolen goods and the modern search for drugs merits some discussion. The police found Wilson in the bathroom, flushing marijuana down the toilet. Maybe the advantages of a knock and announce rule outweigh the disadvantages, but it would seem that the inquiry into reasonableness ought to at least consult the realities of drug enforcement.

Scalia attempted to explain the difference in approach between Wilson and Acton. The balancing test is a last resort, turned to when history sheds no light on the case at hand.

[W]here there was no clear practice,

either approving or disapproving the

type of search at issue, at the time the

constitutional provision was enacted,

whether a particular search meets the

reasonableness standard "`is judged by

balancing its intrusion on the individual's

Fourth Amendment interests

against its promotion of legitimate

governmental interests.'"

(Acton, 115 S. Ct. 2386, 2390 citation omitted).

History's lessons, however, greatly depend on the level of generality with which they are expressed. The framers, to be sure, had no experience with drug testing. As the Acton dissenters point out, however, they did have experience with suspicionless searches--a practice they generally condemned. (Id. at 2399 (O'Connor J., dissenting).) The choice between balancing interests according to the biases of the framers or according to unconstrained policy considerations appears to be arbitrary.

At any rate, there ought to be some approach to Fourth Amendment cases that is chained neither to the Warrant Clause nor to historical accidents. Neither should it be wholly unconstrained. Before Acton, the Court had been working out this approach, an approach that insisted on the likely futility of searches restricted to cases of particularized suspicion before permitting random searches. Acton, by contrast, suggests that courts interpreting the Fourth Amendment should consider any reason that a good school administrator would consider.

The open-ended nature of the Court's opinion in Acton makes it almost impossible to determine the constitutionality of drug-testing policies before litigation. Can, for instance, a public school subject all its students, not just its athletes, to random tests? The Acton Court emphasized the fact that only athletes were to be tested. (See id. at 2393 ("By choosing to `go out for the team,' they voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally.").)

On the other hand, 60 percent to 75 percent of the Vernonia students participated in sports. (See Acton v. Vernonia School District 47J, 796 F. Supp. 1354, 1356 (D. Or. 1992).) As a result, the district's de jure policy of testing athletes bears a resemblance to a de facto policy of testing students generally.

Similarly, what about testing athletes at a public university? In University of Colorado v. Derdeyn, for instance, the Supreme Court of Colorado struck down a policy of random drug testing of college athletes. (863 P.2d 929 (Colo. 1993) (en banc).) Given the extraordinarily fact-sensitive analysis undertaken in Acton, it is entirely possible that Derdeyn remains good law.

College students are legal adults with concomitant privacy rights, and the University of Colorado authorities had established no record of a drug-related crisis. On the other hand, given the Acton Court's trivialization of the privacy interest implicated by urinalysis in the athletics context, the university administration could reinstate its random-testing program in complete good faith. There is, in short, no guidance in the Acton opinion because it rests on no principle more general than the conclusion that the Vernonia drug-testing program was a good idea.

A standardless balancing test invites inconsistency among, and uncertainty in, lower courts throughout the country. It is particularly disconcerting when the Court decides other Fourth Amendment cases according to 17th century precedents. The Supreme Court's Fourth Amendment, it would appear, has a split personality.

Donald A. Dripps is a professor at the University of Illinois College of Law.
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Author:Dripps, Donald A.
Date:Nov 1, 1995
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