Pubdate: 01 Jan 2000
Source: Legal Times (DC)
Copyright: 2001 Legal Times
Contact:  Evan P. Schultz, Legal Times
Note: Evan P. Schultz is associate legal editor at Legal Times


Courts Are Sacrificing Civil Liberties in the Battle Against Drugs

War, so the saying goes, is hell. And not just for soldiers in the line of 
fire. As no less an authority than Chief Justice William Rehnquist has 
noted, personal freedom is one of the casualties of war.

In his 1998 book, "All the Laws But One: Civil Liberties in Wartime," the 
chief justice wrote of the Civil War that "Lincoln and his Cabinet chose to 
suspend the writ of habeas corpus, interfere with freedom of speech and of 
the press, and try suspected political criminals before military commissions."

And, as the chief justice acknowledged, degradation of civil rights during 
wartime is not just a thing of the past. "There is no reason to think that 
future wartime presidents will act differently ... , or that future 
Justices of the Supreme Court will decide questions differently from their 
predecessors," Rehnquist wrote.

Though we tend to forget it, America is now in the middle of a war -- the 
one on drugs. This is a war that has been raging since at least the Nixon 
years, and that the Supreme Court has described by stating, "It is hard to 
think of a more compelling government interest than the need to fight the 
scourge of drugs on our streets and in our neighborhoods."

And, true to Rehnquist's prediction, the Court may indeed be letting civil 
liberties fall victim in the heat of battle. Three cases involving alleged 
violations of civil rights resulting directly from the war on drugs have 
been argued so far this term. Three times the Supreme Court has been asked 
whether local governments violated the Fourth Amendment's guarantees 
against "unreasonable searches and seizures" in their schemes to rack up 
more drug busts.

Dogs Of War

City of Indianapolis v. Edmond deals with roadblocks set up by city police. 
The cops put checkpoints in parts of Indianapolis that the police suspected 
had high levels of drug trafficking, posted signs warning that the 
roadblock was down the road, and then proceeded to stop each and every car 
that came on through. The police inspected a driver's papers and, at the 
same time, led a dog around the car to sniff for drugs. Of the almost 1,200 
people stopped, 55 were arrested for violating drug laws.

In Ferguson v. City of Charleston, a public hospital established a 
procedure for testing pregnant women suspected of taking cocaine. If 
employees concluded that a woman who came in for prenatal care might be 
taking the drug (based on a list of criteria), they forced her to submit to 
a urine test. In some instances, newborn children were also tested. If a 
test came back positive, the mother was arrested or forced to enter a drug 
rehabilitation program and threatened with arrest if she failed to meet 
program requirements. The hospital did not keep records of the number of 
patients it tested. But of the 30 arrested, 29 were African-American.

And in Illinois v. McArthur, a policeman had been tipped off that a man had 
marijuana in his home. While the officer was awaiting a search warrant, he 
barred the man from entering his own house unless escorted by the officer. 
(Another case worth noting is Kyllo v. United States, which the Supreme 
Court has accepted for review. The case turns on whether a cop performed an 
illegal search when he used heat-imaging technology to detect the presence 
of high-intensity lights for growing marijuana.

A 2-1 majority of the 9th U.S. Circuit Court of Appeals held that the use 
of heat-imaging technology did not violate the Constitution. Judge John 
Noonan, dissenting, noted with keen understatement that "[a] variety of 
heat-producing activities can take place within the walls of a home" that 
most people would consider to be private.

No one can seriously dispute that the procedures at issue in these cases 
are, to put it mildly, aggressive. As the Supreme Court has stated 
elsewhere, "There are few activities in our society more personal or 
private than the passing of urine."

The only debate here is whether the procedures are constitutional. But 
ultimately, the constitutionality of the searches is less interesting, and 
less important, than other questions that the cases raise.

In Edmond, the Supreme Court in late November held that the roadblocks were 
indeed constitutionally impermissible. Justice Sandra Day O'Connor wrote in 
the majority decision, "Because the primary purpose of the Indianapolis 
checkpoint program is ultimately indistinguishable from the general 
interest in crime control, the checkpoints violate the Fourth Amendment."

The Court received wide praise for reaffirming the sanctity of the Fourth 
Amendment. "The Supreme Court last week drew an important line protecting 
privacy interests from the war on drugs by swatting down drug checkpoints 
run by the city of Indianapolis," wrote the Washington Post editorial board.

"The Supreme Court, in an important case last week, reaffirmed the 
fundamental Fourth Amendment principle that searches and seizures must be 
based on suspicion that a particular individual is engaged in wrongdoing," 
agreed The New York Times in its editorial.

But lost to all the well-wishers was the recognition that, if the facts of 
Edmond and the other cases were just a bit different, they would probably 
pose no constitutional problems at all.

With the Indianapolis roadblocks, the main flaw may not even be what the 
police did, but how the city's lawyers litigated. In his majority opinion 
for the 7th Circuit striking down the scheme as unconstitutional, 
then-Chief Judge Richard Posner stated that such roadblocks might be 
justified in cases involving "a flurry of drive-by shootings," "threat of 
violence at a rally of motorcycle gangs," and "Indian insurrection." Which 
is to say, cases dealing with something approaching a real war. So, might 
the Supreme Court have upheld the policy if only the city had argued that 
the war on drugs had risen to the urgency of an armed conflict?

With the urine-testing case, the state probably would win only if it had 
shown that the cocaine test was meant to advance a non-law-enforcement 
policy. Here the hospital tested the women only when it suspected them of 
using cocaine and then handed the results directly to the police. That 
starts to look a lot like law enforcement, meaning that the policy will 
probably be struck down as unconstitutional -- especially in light of the 
Court's holding in the roadblock case.

But if the city had tested for a wider range of drugs, both legal and 
illegal, the case might have been on stronger footing. And if the police 
had charged the mothers with endangering their unborn children (instead of 
taking drugs), the government might have been on stronger Fourth Amendment 
ground (though such a tactic would, justifiably, have set off alarms 
regarding a woman's right to bodily integrity and touched on abortion rights).

Brave New World

So even if Edmond and Ferguson might not pass constitutional muster, their 
slightly altered, hypothetical counterparts probably would. This is not 
surprising because the war on drugs has already inflicted serious damage on 
the Constitution. To take one example, consider the Supreme Court's 1984 
decision in Illinois v. Gates.

There, Rehnquist's opinion for the Court adopted a new standard for 
granting search warrants, one that took into account the "totality of the 
circumstances" to discern whether an informant's tip established probable 
cause. Gates thus overruled the Court's prior -- and stricter -- standard. 
The earlier test required a magistrate to conclude that an informant's tip 
revealed the basis of the informant's knowledge, and that the veracity of 
the informant was established, in order to find probable cause to issue a 

And the facts in the case that led the Court to ease up the standard for 
issuing warrants? A couple was driving marijuana from Florida to Illinois.

The key point is that, even if aggressive anti-drug tactics are legally 
sanctioned, they still hurt us all. On the trivial end of the scale, some 
people avoid eating poppy-seed bagels for fear (rational or not) of 
triggering a positive urine test. On the more serious side, indigent 
pregnant women, for whom prenatal care is already sorely lacking, might 
decide to stay away from hospitals altogether if they fear that they'll be 
tested and confined as a result of their visits. And the effects of the 
drug war are not limited to what the federal and state governments do. 
Employers, for instance, now routinely demand urine samples from new hires.

Cracking Us Up

Most distressing, the war on drugs has tugged hard on the thread holding 
America's diverse ethnic and racial communities together. Take the most 
vivid example -- racial profiling in traffic stops. Remember, the cops 
aren't harassing people to look for unsent tax returns.

Because of the drug war, many predominantly black neighborhoods live under 
constant police surveillance. The overwhelming majority of pregnant women 
arrested in the Charleston case were African-American. And the roadblocks 
in Indianapolis were set up in high-crime areas -- which is to say, most 
likely, in economically depressed neighborhoods where minorities live. It's 
not hard to guess how affluent, white communities would react if they were 
subjected to the same treatment.

Decades ago, speaking of the results of her country's wars, the late 
Israeli Prime Minister Golda Meir said, "We may some day forgive the Arabs 
for killing our children, but we will never forgive them for compelling us 
to kill some of their children."

And us? We might, somehow, be able to win the war on drugs. But will we be 
able to forgive ourselves for doing it?
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