239. "Group Searches Are Here to Stay" The National Law Journal, (October 18, 1993), pp. 15-16.
Nobody calls it “group searches,” not to mention “the search and seizure of the innocents,” although both terms would capture an important trend in our courts’ interpretations of the Fourth Amendment. In fact, many observers still cite what is held to be the prevailing interpretation of the Fourth Amendment: that no one is subject to search and seizure unless there is “probable cause” that the particular person has committed a crime, is committing one or appears predisposed to commit one (say, carries a bomb).
Our tradition, we are told repeatedly, is not to treat whole groups of people as suspects - as potential criminals - and go fishing to catch some. Above all, the argument goes, innocent citizens are not to be subjected to “suspicionless searches.” Actually, while law students, philosophers and editorial writers recite this legal interpretation, the practice already has changed quietly, case by case. What is missing is an open acknowledgment and full examination of the new trend.
The main, unheralded, turning point came in 1973 with the introduction of screening gates in airports. These gates subjected millions of innocent Americans to searches to deter a handful of terrorists and gun-toting individuals among the masses that enter airports (and since then numerous courtrooms, Congress, even schools).
Initially, the American Civil Liberties Union, the most ardent opponent of “suspicionless searches,” attacked that screening gates exactly on the ground that the “practice of searching the persons and belongings of all individuals, simply because they wish to board an airplane, is completely inconsistent with . . . Fourth Amendment principles.” It further warned that these gates would hasten the arrival of Big Brother. Even the ACLU has stopped charging the airport screening gates, however, to the point of denying that it ever objected to screening, or suggesting that its opposition is “inactive.”
Another well-established group search - in which a whole category of people, rather than suspicious individuals, are subject to search - takes place daily at sobriety checkpoints, which have been set up in 38 states. The courts limited these searches by requiring that the public be notified that they are in place and insisting that they not cause undue traffic delays and that they be conducted safely. But, by and large, they let them stand.
More recently, drug testing to train engineers, police, air traffic controllers and other groups has passed legal muster. This, even though the searches - blood tests or peeing into a container in front of a stranger to prevent falsification of the test - are mush more intrusive than airport screening gates or sobriety checkpoints.
The basic legal justification of these group searches draws directly on the text of the Fourth Amendment. While it is often summarized in popular parlance as “There will be no search and seizure,” the amendment actually reads: “The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated.”
In determining what is reasonable, the courts seek a balance between individual rights and the public interest (or, community needs), a quest that runs through the Constitution and our legal tradition. Even well-informed citizens, who can recite most of our rights, tend to overlook that the Constitution opens with a communitarian statement: “We, the people of the United States, in order to form a more perfect union . . . promote the general welfare.” Specifically, the Fourth Amendment strikes a balance between fear of abuse of power by government and fear of abuse of power by criminals.
The basic reason courts recently have been more favorable to select group searches seems to be the new challenges the public faces. The founding fathers did not have to cope with skyjackers, intoxicated drivers and drug-crazed criminals. We do. As we still have not been able to restore public safety in many areas, expect more of the following: drug checkpoints (at the entrance to beleaguered neighborhoods), mandatory testing for HIV for anyone who checks into a hospital, and so forth. As long as these measures are carefully circumscribed, they seem a necessary, albeit disconcerting, adaptation to the conditions of our time that fall well within the bounds of the communitarian impulses of our Constitution.
Testing State Rules
As all those who practice law know well, the law is much more nuanced and complex than this summary might suggest. Thus, for example, while it is true that sobriety checkpoints are in place in 38 states, and their being “consistent with the Fourth Amendment” has been upheld by the Supreme Court (Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481 (1990)), the ACLU is now challenging their legality in state Supreme Courts, on the ground that state constitutions are “narrower” and hence prohibit group searches the U.S. Constitution allows.
While these “details” are important to anyone who practices law or is affected by sobriety checkpoints (or drunken drivers), the basic pattern we suggested still stands, as do most sobriety checkpoints. Indeed, new modes of group search, such as drug checkpoints in beleaguered neighborhoods, are added.
Some of the fine print may help us understand how the courts fixed the balance between public interest and individual rights. In the case before the U.S. Supreme Court cited previously, it was reported that the average delay per vehicle was 25 seconds. This was deemed “reasonable”; in other instances, average delays of 90 seconds were reported and found acceptable. In still other instances, however, delays longer than two minutes were deemed unreasonable. The courts also were interested in the question of whether or not such searches are “effective.” (In challenging searches, the ACLU invariably argues that they are not only a violation of the Fourth Amendment but also inefficient if not useless).
Even those opposed to group searches as a rule recognize that we need to stop hiring drivers of school buses who get high on LSD or pilots who get drunk - those who hold the lives of many directly in their hands. The naysayers fear the slippery slope - once we allow group searches for one reason, we will allow them for many others. Bu the courts, in effect, have anticipated this danger. They approve of searches only when there is a clear and urgent public need, when intervention is relatively unintrusive and when there is no other effective way to cope.
Recent public opinion polls have indicated that a growing segment of the public would like to see the use of very drastic measures to control social problems - in effect, suspending the Constitution until the war against drugs has been won and massively increasing the executions of criminals. Those who fear that some increases in the power of public authorities, however carefully circumscribed, could lead to a police state should note that the real danger is that if we do not find effective ways to restore public order, constitutional order will be seriously challenged.