Several Constitutional rights "suspended" This Weekend

No Frank, I got that they're giving a special status to the DUI checkpoints. What I don't get is how they're justifying it. Von Raab was justified apparently because the results weren't usable without permission. But the drivers are more than being removed from the road. They're also being prosecuted.

I can see the special interest being getting them off the road. But isn't the subsequent arrest and prosecution the general interest in crime control?
 
JimDandy said:
No Frank, I got that they're giving a special status to the DUI checkpoints. What I don't get is how they're justifying it. Von Raab was justified apparently because the results weren't usable without permission. But the drivers are more than being removed from the road. They're also being prosecuted.

I can see the special interest being getting them off the road. But isn't the subsequent arrest and prosecution the general interest in crime control?
You really have to read the entire opinion carefully and in the context of the case being decided. The opinions say what they say, and in each opinion the Court has set out its reasoning, including the reasons for distinguishing one situation from another.

Remember also that every case is, at its core, a matter of deciding a particular dispute -- was the search reasonable; was this checkpoint a Fourth Amendment violation; etc. A court in deciding a case needs to reach a result in that particular case. The opinion explains how a court reached that result.

As the Court explained in Edmond a DUI checkpoint has a special status relating to its utility for immediately removing an impaired driver (a hazard) from the road. That is at the heart of why the search and seizure is reasonable for Fourth Amendment purposes. Once it passes Fourth Amendment muster, the fruits of the search and seizure may be used to prosecute any criminal acts identified.

In National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), the Court was looking at a particular, challenged drug testing program implemented by the United States Customs Service. As that particular program under scrutiny was designed and operated as described in the opinion (at 661 - 663, footnotes omitted):
...After an employee qualifies for a position covered by the Customs testing program, the Service advises him by letter that his final selection is contingent upon successful completion of rug screening. An independent contractor contacts the employee to fix the time and place for collecting the sample. On reporting for the test, the employee must produce photographic identification and remove any outer garments, such as a coat or a jacket, and personal belongings. The employee may produce the sample behind a partition, or in the privacy of a bathroom stall if he so chooses. To ensure against adulteration of the specimen, or substitution of a sample from another person, a monitor of the same sex as the employee remains close at hand to listen for the normal sounds of urination. Dye is added to the toilet water to prevent the employee from using the water to adulterate the sample.

Upon receiving the specimen, the monitor inspects it to ensure its proper temperature and color, places a tamper-proof custody seal over the container, and affixes an identification label indicating the date and the individual's specimen number. The employee signs a chain-of-custody form, which is initialed by the monitor, and the urine sample is placed in a plastic bag, sealed, and submitted to a laboratory. The laboratory tests the sample for the presence of marijuana, cocaine, opiates, amphetamines, and phencyclidine. Two tests are used. An initial screening test uses the enzyme-multiplied-immunoassay technique (EMIT). Any specimen that is identified as positive on this initial test must then be confirmed using gas chromatography/mass spectrometry (GC/MS). Confirmed positive results are reported to a "Medical Review Officer," "[a] licensed physician . . . who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual's positive test result together with his or her medical history and any other relevant biomedical information." HHS Reg. § 1.2, 53 Fed.Reg. 11980 (1988); HHS Reg. § 2.4(g), 53 Fed.Reg., at 11983. After verifying the positive result, the Medical Review Officer transmits it to the agency.

Customs employees who test positive for drugs and who can offer no satisfactory explanation are subject to dismissal from the Service. Test results may not, however, be turned over to any other agency, including criminal prosecutors, without the employee's written consent....

So in Von Raab it was merely by reason of a prior design of the program being scrutinized that the information obtained as a result of the search and seizure would not be routinely used for criminal prosecution. The Court therefore had no reason to consider whether the result would be different if that information could be thus used. However, as the Court noted, at 670 - 671:
...It is readily apparent that the Government has a compelling interest in ensuring that front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment. Indeed, the Government's interest here is at least as important as its interest in searching travelers entering the country. We have long held that travelers seeking to enter the country may be stopped and required to submit to a routine search without probable cause, or even founded suspicion, "because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in." Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). See also United States v. Montoya de Hernandez, supra, 473 U.S., at 538, 105 S.Ct., at 3308; United States v. Ramsey, supra, 431 U.S., at 617-619, 97 S.Ct., at 1979-1980. This national interest in self-protection could be irreparably damaged if those charged with safeguarding it were, because of their own drug use, unsympathetic to their mission of interdicting narcotics. A drug user's indifference to the Service's basic mission or, even worse, his active complicity with the malefactors, can facilitate importation of sizable drug shipments or block apprehension of dangerous criminals. The public interest demands effective measures to bar drug users from positions directly involving the interdiction of illegal drugs.

The public interest likewise demands effective measures to prevent the promotion of drug users to positions that require the incumbent to carry a firearm, even if the incumbent is not engaged directly in the interdiction of drugs. Customs employees who may use deadly force plainly "discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." Ante, at 1419. We agree with the Government that the public should not bear the risk that employees who may suffer from impaired perception and judgment will be promoted to positions where they may need to employ deadly force. Indeed, ensuring against the creation of this dangerous risk will itself further Fourth Amendment values, as the use of deadly force may violate the Fourth Amendment in certain circumstances. See Tennessee v. Garner, 471 U.S. 1, 7-12, 105 S.Ct. 1694, 1699-1701, 85 L.Ed.2d 1 (1985).

Against these valid public interests we must weigh the interference with individual liberty that results from requiring these classes of employees to undergo a urine test. The interference with individual privacy that results from the collection of a urine sample for subsequent chemical analysis could be substantial in some circumstances. Ante, at 1418. We have recognized, however, that the "operational realities of the workplace" may render entirely reasonable certain work-related intrusions by supervisors and co-workers that might be viewed as unreasonable in other contexts. See O'Connor v. Ortega, 480 U.S., at 717, 107 S.Ct., at 1497; id., at 732, 107 S.Ct., at 1505 (SCALIA, J., concurring in judgment). While these operational realities will rarely affect an employee's expectations of privacy with respect to searches of his person, or of personal effects that the employee may bring to the workplace, id., at 716, 725, 107 S.Ct., at 1497, 1501, it is plain that certain forms of public employment may diminish privacy expectations even with respect to such personal searches....

Therefore, given the strong governmental interest in drug-free Customs Agents, it's conceivable that the Court would have blessed a drug testing program even without a "no prosecution" component.
 
OK that's it. They may have mentioned the prosecution thing, but it wasn't part of the question asked and answered...
 
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