§ 18.05 "SPECIAL NEEDS" SEARCHES AND SEIZURES

• Jurisdiction: United States

§ 18.05. "Special Needs" Searches and Seizures⁵¹

[A] In General

An increasingly significant exception to the Fourth Amendment principle that searches and seizures are unreasonable if they are not authorized by a warrant and/or supported by probable cause is the so-called "special needs" (or "special governmental needs") doctrine. This exception applies when "special needs, beyond the normal need for law enforcement, make the warrant and[/or] probable-cause requirement[s] impracticable."⁵² Although the early cases only dispensed with the warrant and/or probable cause provisions of the Fourth Amendment, more recent cases have authorized suspicionless searches.

Professor William Stuntz has observed that "little or no effort has been made to explain what these 'special needs' are; the term turns out to be no more than a label that indicates when a lax standard will apply."⁵³ Essentially, when the Court determines that "special needs" exist, it evaluates the governmental activity—the special need—by the general "reasonableness" balancing standard. Nearly always, the government interest "trumps" the requirements of a warrant and/or probable cause or even reasonable suspicion.⁵⁴

Two initial points are worth making here. First, although the Supreme Court has often treated the administrative search, border search, and checkpoint cases separately from the "special need" cases, there is little or no reason for this distinction. Those cases involved specific governmental interests—special needs, if you will—beyond ordinary criminal investigations. Moreover, the process of determining the legitimacy of the governmental action is the same: application of the "reasonableness" balancing standard.

Second, despite the shared justification and standard for these doctrines, the Supreme Court recently stated that the "special needs" exception does not apply when "the immediate objective" of the search is "to generate evidence for law enforcement purposes," even if the "ultimate goal" is to promote some value other than general crime control.⁵⁵ Most "special needs" cases have involved searches conducted by persons others than police officers, which has made it easier for the Court to conclude that a special need, beyond ordinary criminal law enforcement, justified the special rule. "Extensive entanglement of law enforcement" in the process, however, jeopardizes a "special needs" claim.

[B] Searches of Persons, Personal Property, and Premises

[1] Searches Directed at Public School Students⁵⁶

New Jersey v. T.L.O⁵⁷ gave birth to the "special needs" doctrine, although explicit enunciation of the principle is found in Justice Harry Blackmun's concurring opinion, rather than in Justice Byron White's opinion for the Court. In T.L.O., two female students were caught smoking in a school lavatory, in violation of school rules. The students were brought to the vice principal. When one of them, T, denied that she had been smoking, the administrator demanded her purse, opened it, and observed a package of cigarettes. He removed the cigarettes, and in doing so discovered cigarette paper, which is often used to make marijuana cigarettes. Based on that observation, he conducted a full search of T's purse, during which he found other evidence that implicated her in the sale of marijuana. The evidence was handed over to the police and used in a juvenile court proceeding against her.

The Supreme Court rejected the state's initial claim that the Fourth Amendment does not apply to the conduct of school officials,⁵⁸ and agreed that public school students retain a legitimate expectation of privacy in the private property they bring to school. Nonetheless, the Court determined that neither the warrant requirement nor the traditional doctrine of probable cause applies to public school searches. The Court disposed of the warrant requirement summarily. It stated that it is "unsuited to the school environment," as it would "unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools."

Regarding probable cause, Justice White observed that "[w]here a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard." The Court found that this was such a case, and ruled that public school teachers and administrators may search students without a warrant if two conditions are met: (1) "there are reasonable grounds"—not "probable cause" in the criminal law context — "for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school"; and (2) once initiated, the search is "not excessively intrusive in light of the age and sex of the student and the nature of the infraction."

In his concurrence, Justice Blackmun tied the result to earlier cases in which the Court had abandoned the requirements of warrant and probable cause (such as Terry v. Ohio and the border-search cases) and argued that using a reasonableness balancing test instead of those requirements is permissible only "in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable."

Justices Brennan and Marshall dissented. They agreed with the majority that school officials should not be required to obtain warrants to conduct searches. However, as the search in this case was full-scale in nature, they "emphatically" rejected the majority's decision to "cast aside" the probable cause standard. They criticized the majority for "jettison[ing]" the latter standard, "the only standard that finds support in the text of the Fourth Amendment," and replacing it with the "Rohrschach [ sic]-like 'balancing test.' "

Justice Stevens also dissented. In an opinion that the other two dissenters joined, he contended that a search by a school official should not be permitted at all if it is intended to "reveal evidence of . . . the most trivial school regulation." He complained that under the majority rule, "a search for curlers and sunglasses in order to enforce the school dress code is . . . just as important as a search for evidence of heroin addiction or violent gang activity." He would have limited warrantless public school searches to "uncover evidence that the student is violating the law or engaging in conduct that is seriously disruptive of school order, or the educational process."

The Court applied the T.L.O. standards in Safford Unified School District #1 v. Redding.⁵⁹ Unlike T.L.O., which involved a search of a student's property (her purse), the Court in Safford confronted the issue of "whether a 13-year-old student's Fourth Amendment right was violated when she was subjected to a search of her bra and underpants" — what the Court characterized as a "strip search"—"by school officials acting on reasonable suspicion that she had brought forbidden prescription and over-the-counter drugs to school." The student was required to remove her clothes down to her underwear, and then pull out her bra and the elastic band on her underpants for a visual search. The search failed to turn up any pills.

Every member of the Court except Justice Thomas concluded that, on the facts of this case, the search violated the Fourth Amendment. The Court, per Justice Souter, stated that it violated the "rule of reasonableness as stated in T.L.O.," because the "the content of the suspicion failed to match the degree of intrusion." The principal who ordered the search knew "beforehand that the pills were prescription-strength ibuprofen and over-the-counter Naproxen, common pain relievers equivalent to two Advil, or one Aleve," and he "must have been aware of the nature and limited threat of the specific drugs he was searching for." As the Court put it, "[i]n sum, what was missing from the suspected facts . . . was any indication of danger to the students from the power of the drugs or their quantity, and any reason [specific to this student] to suppose that [she] was carrying pills in her underwear." The Court explicitly sought to emphasize that:

the T.L.O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.

[2] Searches Directed at Public Employees

Another step in the development of the "special needs" doctrine came in O'Connor v. Ortega,⁶⁰ a case involving the reasonableness of a search conducted by a public employer of the office, including the desk and file cabinets, of an employee suspected of employment improprieties. Justice O'Connor, writing for a four-justice plurality, stated that the existence of Fourth Amendment protection for a public employee's business office should be assessed on a case-by-case basis—that some offices might be "so open to fellow employees or the public that no expectation of privacy is reasonable," and, thus, that the Fourth Amendment would not apply at all. But, on the facts here, the employee possessed a reasonable expectation of privacy. Consequently, the O'Connor plurality, adopting the "special needs" terminology from the concurring opinion in T.L.O., approved the use of the "reasonableness" balancing test to determine the scope of an employee's Fourth Amendment rights in regard to searches and seizures conducted by a public employer.

The plurality concluded that "the realities of the workplace . . . strongly suggest that a warrant requirement would be unworkable." Regarding probable cause, the plurality...