A federal appeals court in Atlanta ruled in December 2014 that the State of Florida cannot require all welfare recipients to submit to mandatory drug tests. The ruling represents the rare case in which a federal court goes out of its way to protect the rights of poor people.
The flip side of the Fourth Amendment was also apparent that month. The Supreme Court a few weeks later ruled for the first time that a police officer who searches a vehicle based on his mistaken understanding of the law did not do anything wrong under the Fourth Amendment.
When can welfare recipients be drug tested?
The drug testing case, Lebron v. Secretary of the Florida Department of Children and Families, applies the Fourth Amendment, which prohibits unreasonable searches and seizures without a warrant. The class action plaintiffs in Lebron invoked the Fourth Amendment after the State of Florida in 2011 enacted a law that required drug testing for everyone who receives Temporary Assistance to Needy Families (TANF), a federal entitlement program that provides block grants for state programs “that provide[] assistance to needy families with (or expecting) children…”
Under drug testing program signed into law by Gov. Rick Scott, all TANF recipients were tested for drugs, not just individuals who were suspected of using drugs. As the Eleventh Circuit Court of Appeals framed the issue, “The question is whether mandatory, suspicionless drug testing of all TANF applicants amounts to a reasonable search.”
Like most constitutional provisions, the Fourth Amendment is written in generalities, requiring the courts to devise a framework that allows judges to interpret it. The Fourth Amendment reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This language is too general for courts to apply in the myriad of situations involving a government search. The courts have therefore created interpretation models that, in some instances, eliminate the need for a warrant or even reasonable suspicion or probable cause to conduct a search.
As the Eleventh Circuit noted, “While the Constitution generally prohibits government searches conducted without individualized suspicion, the Supreme Court has recognized exceptions in certain well-defined circumstances, including when the government has special need, beyond the normal need for law enforcement.” In other words, under the “special needs” test, the government may in limited circumstances conduct a search as a matter of course if special, or compelling, needs require it. These “special needs” include the drug testing of railroad workers to protect the broader public interest. The Supreme Court has also authorized warrantless and general searches of U.S. Custom Service employees who undertake drug interdictions and carry firearms. And, deferring to the judgment of public school officials, the Court has allowed schools to drug test student athletes as well as students who engage in extracurricular activities.
Ignoring popular sentiment
The issue for the Eleventh Circuit in Lebron is whether the “special needs” exception to the Fourth Amendment allows the government to drug test welfare recipients. There is no doubt that this kind of drug testing would be popular with substantial portions of the general public, including conservatives who dislike welfare programs and resent paying taxes to cover them. This drug testing would further satisfy the public’s bias against welfare recipients, many of whom are assumed to be wasting their money on drugs and other frivolous purchases. Yet, our constitutional system is designed in part to ignore popular sentiment to ensure that the civil rights of unpopular Americans are protected.
The Constitution says nothing about rich and poor. The Equal Protection Clause of the Fourteenth Amendment guarantees that citizens shall be treated equally. Yet, like the Fourth Amendment, the Supreme Court has interpreted the Equal Protection Clause through intricate judge-made legal models that balance the government’s interests with individual liberties. If a government law or policy discriminates against race, that measure will likely be struck down on the basis that distinctions based on race are suspect and will only stand if the government can articulate a compelling reason for it. If a law discriminates based on gender, it will likely be struck down unless the government can articulate a strong, if not compelling, reason for it. But distinctions based on wealth are not analyzed this way. In the early 1970s, the Supreme Court ruled that the Equal Protection Clause does not extend special protections to poor people, thereby allowing the government to discriminate against the poor so long as it can articulate any coherent reason for the discrimination.
Over the years, the government has enjoyed great leeway in regulating economic life no matter how it affects the poor. Any protections for the poor must derive from the political process, not the courts. This only makes it more difficult to prevent the government from further marginalizing the poor and even the middle class, which cannot match the huge campaign contributions that Wall Street can bestow upon political candidates. For this reason, the State of Florida may have thought it could succeed in forcing welfare recipients to submit to mandatory drug testing.
The State of Florida was wrong. While the Equal Protection Clause may provide the plaintiffs no relief in this case, the Fourth Amendment does. On its face, the Fourth Amendment does not favor rich over poor. And the legal standards created by the courts in interpreting the Fourth Amendment do not, either. Rather, as set forth by the Eleventh Circuit, the general legal rule governing suspicionless searches is as follows: “the proffered special need for drug testing must be substantial—important enough to override the individual’s acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment’s normal requirement of individualized suspicion.”
The key to the legal standard is “individualized suspicion.” Yet, while the State of Florida wanted to drug-test anyone who received TANF benefits, this practice would intrude on long-established privacy rights. The TANF recipients “are not employees in dangerous vocations or students subject to the parens patriae power of the state. And the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable,” the court stated.
The Eleventh Circuit took its analysis further. Even if TANF recipients in fact have a reduced expectation of privacy, the government is still unable to justify the drug testing. The State of Florida claimed it wanted to ensure TANF participants’ job readiness, ensure that the TANF program meets child-welfare and family-stability goals and ensure that public money is used for its intended purposes and not to undermine public health. Each justification fails under the Fourth Amendment.
First, the court held, these justifications “are general concerns, proffered only at a high level of abstraction and without empirical evidence.” While the state wants its population to find work without any impediments, that concern applies to everyone, not just TANF recipients. “Similarly, while [the state] claims an interest in protecting children from drug use by TANF parents, the state has presented no evidence that children of TANF parents face a danger or harm from drug use that is different from the general threat to all children in all families.” The court added, “nor do we see a general need from the state’s desire that government funds are spent wisely.” While, of course, the government should not endeavor to waste money, “the state has presented no evidence demonstrating that drug testing saves a significant portion of TANF funds that would otherwise be spent on drugs. … A government concern that a wholly undefined, albeit a very small, share of a program’s expenditures will be squandered cannot easily fit within the closely guarded category reserved for substantial special needs without exploding that carefully cultivated doctrine.” In other words, the government’s articulated reason for testing welfare recipients is too abstract and cannot override the Fourth Amendment’s protections against general and suspicionless drug testing without a warrant.
Any concern by the State of Florida that TANF applicants are prone to drug use is not borne out by the evidence, the court stated. “If anything, the evidence…suggests quite the opposite: that rates of drug use in the TANF population are no greater than for those who receive other government benefits, or even for the general public.” The court then examined the statistics. In 1999-2000, a professor at Florida State University gave applicants a written screening instrument to determine the probability that they used drugs or alcohol. If the state had reasonable cause to believe the applicant was using drugs or alcohol, it required them to take a urine test. Under this program, 6,462 applicants went through the screening process. Only 5.2 percent tested positive for the illegal use of controlled substances. And, when the suspicionless drug testing law went into effect in Florida, preliminary numbers showed that only 2.67 percent of TANF recipients tested positive, or 108 out of 4,406.
Police can search based on “reasonable” misunderstanding of the law
The Eleventh Circuit is one of 13 federal appeals courts around the country. The next stop for this case is the Supreme Court, which hears cases on a selective basis. The good news in the Lebron case has potential to be short-lived if the conservatives on the Supreme Court decide to definitively resolve the issue in favor of broad drug testing for welfare recipients. On the bright side, the Court can easily adopt the Eleventh Circuit’s rationale that the generalized desire to test all TANF recipients violates the Fourth Amendment’s particularized need requirement. Supreme Court precedent supports that interpretation. But, as noted above, the Court has also carved out broad exceptions to that requirement in the public school context based on the general need to prevent drug use among students. It is not hard to imagine the Court’s conservatives endorsing another exception for welfare recipients.
The Fourth Amendment’s flexible nature was highlighted in a case decided by the Supreme Court two weeks after the Eleventh Circuit issued the Lebron ruling. In Heien v. North Carolina, the Supreme Court ruled that the police could search a vehicle based on the police officer’s mistaken belief that he could pull over the motorist for a single broken brake light. In reality, driving with only one working brake light was legal in North Carolina. As a result of the vehicle stop, the officer searched the car and found drugs, arresting the driver and a passenger. A court in North Carolina ruled the search violated the Fourth Amendment because the justification for the stop was “objectively unreasonable.” The North Carolina Supreme Court disagreed, ruling that the stop was reasonable because another provision of the traffic code said that “all originally equipped rear lamps” must be functional. The U.S. Supreme Court then took up the case.
Recall that the Fourth Amendment prohibits unreasonable searches and seizures. The reasonableness qualifier gives the courts leeway in interpreting the Amendment in different contexts. The Supreme Court cited precedent in stating that “[t]o be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.” The Court added, “We have recognized that searches and seizures based on mistakes of fact can be reasonable.” Then, without citing much precedent, the Court stated, “But reasonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion.” The best the Supreme Court do in support of this proposition was to cite “cases dating back two centuries.” These long-forgotten cases have been revived.
The end result in Heien is that, while the officer was mistaken about the law he invoked in pulling over and searching the car, that mistake was “reasonable.” While one provision of North Carolina law said that motorists could drive with one working brake light, another stated that “all originally equipped rear lamps” must be functional. As it happens, under North Carolina law, the “rear lamps” do not mean brake lights. Yet, the two statutory provisions are close enough that the officer’s misunderstanding of the law was “reasonable,” so the vehicle search was reasonable under the Fourth Amendment.
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Stephen Bergstein is a civil rights lawyer in upstate New York.