Urine Trouble: Unregulated Drug-use Testing and the Right to Privacy

• Jurisdiction: United States,Federal
• Citation: Vol. 07 No. 1988 Pg. 1309
• Pages: 1309
• Publication year: 1988

17 Colo.Law. 1309 Colorado Lawyer 1988.

1988, July, Pg. 1309. Urine Trouble: Unregulated Drug-Use Testing and the Right to Privacy

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Urine Trouble: Unregulated Drug-Use Testing and the Right to Privacy

by Craig M. Cornish

Drug-use testing has suddenly become a billion dollar business. An increasing number of employers now test applicants and employees for drug use. In fact, 34 percent of the companies surveyed in 1987 by the American Management Association had drug-use testing policies in place.(fn1)

The vast majority of drug-use testing cases to date involve public employees. Judges are uncertain how to analyze these cases through the prism of the Fourth Amendment. They have adopted widely divergent analogies and vastly different perceptions in their analyses of the intrusiveness of drug-use tests and the Fourth Amendment.

Some courts have analogized the intrusiveness of urine tests for drug use to searches of the home, searches of pants pockets, blood tests and strip searches.(fn2) Contrarily, other courts believe urine tests for drug use are not as intrusive as searches of the home, strip searches, blood tests or fingerprints.(fn3) One court characterized drug-use tests as "severely intrusive,"(fn4) while another characterized them as "minimally intrusive."(fn5)

The results of employee drug-use testing cases vary. Some courts have held random testing of public employees to be invalid under the Fourth Amendment;(fn6) others have found them to be reasonable.(fn7)

This article describes how the Fourth Amendment model has failed to provide a workable basis for analyzing drug-use testing cases and discusses why courts should view drug-use testing in the larger context of biological surveillance of employees.

Failure of the Fourth Amendment Model

It is understandable why different courts presented with similar facts adopt different Fourth Amendment analogies and reach different results. First, the role of privacy in constitutional analysis has been obscured in recent years. Although the Fourth Amendment is intended to protect the right to privacy,(fn8) privacy has never been defined by the U.S. Supreme Court. A careful reading of Fourth Amendment "privacy" opinions of the Court over the past twenty years casts doubt about whether the Court is serious in proclaiming that a right to privacy "is basic to a free society" and, thus, "implicit in the concept of ordered liberty."(fn9)

During this period, the Court has held that the following governmental activities do not infringe upon a reasonable expectation of privacy:

1. Secretly tape recording or simultaneously broadcasting to third parties telephonic or in-person conversations in which one of the participants to the conversation, surreptitiously acting on behalf of the government, consents to the recording or to the broadcast to a third party.(fn10)

2. Distributing fliers to department stores with the picture of an innocent person, stating that he or she is an "active shoplifter."(fn11)

3. Inspecting bank records without the consent of the bank customer.(fn12)

4. Computerizing lists of patients who have been prescribed certain drugs by physicians.(fn13)

5. Recording telephone numbers dialed from a home phone without the consent of the telephone subscriber.(fn14)

6. Secretly and electronically tracking via radio transmitters (beepers) packages in a person's possession, thus enabling government agents to track the location of its carrier.(fn15)

7. Allowing dogs to sniff luggage in airports for drugs.(fn16)

8. Combining aerial surveillance and sophisticated enlargement photography to enable the government, for example, to discern pipes and power lines as small as one inch in diameter from 1,200 feet in the air.(fn17)

9. Secretly reading or inspecting materials in a person's trash bag or container.(fn18)

A second reason why courts are confused about how to apply the Fourth Amendment to drug-use testing cases is

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the gradual but steady erosion by the Supreme Court of general principles of Fourth Amendment jurisprudence. For example, the Court has ruled that (1) warrantless searches are per se unreasonable absent a few jealously guarded exceptions;(fn19) and (2) a search is invalid unless there is probable cause to believe the search will produce evidence of a...