Since its inception nearly fifty years ago, the special needs doctrine has frequently had an Orwellian aspect to its reasoning. On its face, the doctrine is sensible enough: if the police (or any government official) are conducting an operation distinct from their law enforcement function, there is no reason that the strict probable cause and warrant requirements should apply. The Court has reasonably applied this principle to health inspectors, drug testing of railroad operators, and searches at the national border. Less reasonably, the courts have applied this principle to police searches of junkyards for stolen vehicles, suspicionless searches at airports, drunk driving checkpoints, drug testing in schools, and most recently, DNA tests of arrestees. Often the stated rationale for the government conduct is virtually indistinguishable from a law enforcement purpose. For example, lower courts have consistently approved of police conducting searches to prevent terrorist activities on subways or ferries, under the theory that the purpose of the searches is not to catch terrorists but to keep the public safe from terrorist activity. I have previously written about the dubious rationales of special needs searches, concluding that the doctrine has become “an inconsistent tangle of case law, justified by a broad Fourth Amendment loophole whose premise–that detecting and preventing violent crime is not a law enforcement purpose–borders on the absurd.” Courts have only rarely pushed back on the state’s use of the special needs doctrine. In City of Indianapolis v. Edmonds, the Supreme Court rejected vehicle checkpoints designed to detect narcotic smuggling. In Ferguson v. City of Charleston, the Court rejected a city plan to force drug testing on all pregnant women who sought treatment in public hospitals. And the Eleventh Circuit ruled that the special needs doctrine did not allow police to search everyone who gathered to participate in a political protest. In all of these cases, courts were challenging the breadth of the “no law enforcement purpose” rationale. For example, the Eleventh Circuit rejected the theory that suspicionless searches at public protests were meant to protect the safety of the public, because the goals of public safety and law enforcement were “inextricably intertwined” in this context. As the court explained:
[Under the government’s argument], a search intended to enforce a given law would be permissible so long as the government officially maintained that its purpose was to secure the objectives that motivated the law’s enactment in the first place (e.g., public safety) rather than simply to enforce the law for its own sake.
Now the Eleventh Circuit has limited the special needs doctrine in another context. In Lebron v. The Secretary of the Florida Department of Children & Families, the court reviewed a Florida statute that required all applicants for welfare benefits (known as Temporary Assistance for Needy Families, or “TANF”) to pass a drug test as a prerequisite to receiving benefits. Florida argued that this drug test was a special needs search because it fulfilled three purposes other than law enforcement: “(1) ensuring TANF participants’ job readiness; (2) ensuring the TANF program meets its child-welfare and family-stability goals; and (3) ensuring that public funds are used for their intended purposes and not to undermine public health.” Florida also argued that welfare applicants were like schoolchildren in that they had a lower reasonable expectation of privacy, because “by seeking TANF benefits, applicants voluntarily subject themselves to heightened regulation, and thus have limited legitimate expectations of privacy.” Thus, according to Florida, the balancing test between the individual’s expectation of privacy and the state’s special need swung in favor of the state. The Eleventh Circuit had already affirmed a preliminary injunction barring Florida from the drug test, and this week the court affirmed the trial court’s permanent injunction, thus officially overturning the Florida law as unconstitutional. The Eleventh Circuit was skeptical about the claim that welfare applicants had a lessened right to privacy, explaining that “citizens do not abandon all hope of privacy by applying for government assistance. By virtue of poverty, TANF applicants are not stripped of their legitimate expectations of privacy — they are not employees in dangerous vocations or students subject to the parens patriae power of the state.” But the court really rested on its decision on its rejection of the application of the special needs doctrine in the first place:
Encouraging employability, protecting children, and conserving public funds are general — and unquestionably legitimate — public concerns. But empirical evidence indicates these needs are not specific to or special for TANF applicants, nor is drug testing essential to ensuring the success of the TANF program as a whole. The government’s stated needs are general concerns, proffered only at a high level of abstraction and without empirical evidence, and thus do not justify an exception to the Fourth Amendment. The State claims, nevertheless, an interest in preparing TANF applicants for the workplace. But government generally wants its citizens to be able to find and keep jobs — the State does not desire work-readiness only for the TANF population. Similarly, while it 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. After all, the State acknowledges that drug use harms all individuals and families, but the State does not — and cannot — claim an entitlement to drug test all parents of all children.
Nor do we see a special need from the State’s desire that government funds are spent wisely. An interest in fiscal responsibility inheres in all public programs, and the interest is real. … The State has presented no evidence demonstrating that drug testing saves a significant portion of TANF funds that would otherwise be spent on drugs. Indeed, the State has made no attempt to quantify even in a general way the amount of TANF money that is otherwise wasted on the purchase or use of drugs. Nor could it do so on the record that was presented to the district court. 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.
We do not foreclose (nor could we) the possibility that government could establish a special need if a voluntary benefits program as a whole would be rendered ineffective without suspicionless searches. In the area of unconstitutional conditions, courts have considered the germaneness of an incursion on constitutional rights to the government’s legitimate objectives. See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 386 (1994) (requiring that courts determine whether an “essential nexus” exists between the “legitimate state interest” and the condition imposed by the government). A similar germaneness analysis might justify a special need for suspicionless drug testing when essential to the implementation of a voluntary government benefits program. Thus, for example, if the government sponsored experimental pharmaceutical trials, it might have a unique concern in drug testing participants to ensure drug interactions did not compromise the results or endanger participants. Similarly, if a state provided a free drug treatment program, it might have a special need to test participants to monitor progress and tailor treatment. In this case, and on this record, however, suspicionless drug testing of all TANF applicants comes nowhere near meeting this standard — the State has not demonstrated that the TANF program as a whole has been compromised without suspicionless searches. Quite simply, we see no essential nexus between the legitimate state interest and the condition imposed. Put differently, the fit is not reasonably proportionated to the harms the State seeks to avoid.
The court suggests a couple of interesting standards here. First, it implies that a special needs search will only be permissible if the government program “would be rendered ineffective without suspicionless searches.” Interestingly, some of the existing special needs searches (such as drunk driving checkpoints) would meet this standard, while others (such as drug testing all students involved in extracurricular activities) would not. The Eleventh Circuit also proposes borrowing a test from the unconstitutional conditions doctrine: that there must be an “essential nexus” between the suspicionless search and the purpose of the government program. Once again, not all existing special needs searches would pass this test (drug testing of students again comes to mind). While it is unlikely the courts will backtrack and overturn the validity of existing special needs searches, hopefully thoughtful cases like Lebron will bring some necessary clarity and sensible limits to the growing use of the special needs doctrine.