Special Needs

In a 5-4 decision yesterday, the Supreme Court held in United States v. Patel that hotel owners cannot be required to turn over their registries to law enforcement without some kind of judicial review.  The case centered on a Los Angeles municipal code provision that required all hotels to keep a registry with information about there guests and to turn the information over to law enforcement upon request.  Law enforcement officers did not need to make any kind of showing of need before making the request, nor did the officers need to get judicial approval.  A hotel owner sued the United States government, mounting a facial challenge to the ordinance on the grounds that it allowed for a suspicionless search that violated its rights.  Five Justices agreed.

There are three interesting aspects to this opinion:

First, eight of the Justices held that plaintiffs can bring facial challenges under the Fourth Amendment.  In my preview of this case, I predicted that the Supreme Court would not allow facial challenges because it would open the door to too many hypothetical cases.  This prediction proved to be completely incorrect.  The Court noted that it allowed facial challenges in many other contexts, and that there was no reason to prohibit them in the Fourth Amendment context.  The Court also noted that a facial challenge to a statute can succeed even if there were some situations in which the search would be authorized by some authority other than the challenged statute:

Similarly, when addressing a facial challenge to a statute authorizing warrantless searches, the proper focus of the constitutional inquiry is searches that the law actually authorizes, not those for which it is irrelevant. If exigency or a warrant justifies an officer’s search, the subject of the search must permit it to proceed irrespective of whether it is authorized by statute. Statutes authorizing warrantless searches also do no work where the subject of a search has consented. Accordingly, the constitutional “applications” that petitioner claims prevent facial relief here are irrelevant to our analysis because they do not involve actual applications of the statute.

Second, this holding will have an important effect on the development of the third party doctrine in Fourth Amendment jurisprudence.  Under the third party doctrine, an individual gives up all of his or her Fourth Amendment rights in an item or a piece of information if he or she hands it over to a third party.  That third party is free to give it to law enforcement, and the original owner of the item or document has no right to object.  Patel does not change any of that.  However, what if the third party–the hotel, the bank, or the internet service provider–does not want to turn the information over to law enforcement upon request?  Before Patel, the third party’s rights to object were relatively fuzzy, but Patel set out clear standards: the government must get some kind of “precompliance review” of its request before the third party can be forced to turn over the information.  This means either an administrative warrant (which is issued by a judge) or–if the government obtained a subpoena and the third party challenged the subpoena–a review of the subpoena by a judge or magistrate.  Granted, the standard for obtaining an administrative warrant or defending a subpoena is relatively low, but the requirement of precompliance review by a neutral judicial official is still a significant one.

Of course, none of this matters if the third party decides to cooperate with law enforcement–as has happened very frequently in the past.  But in the wake of the Snowden revelations and the public outcry that followed, more and more companies are beginning to assert their rights to keep this information from the government–both because the information has intrinsic value to them and because their customers are demanding more privacy.  Some companies, like Google, are challenging subpoenas more and more often.  Thus, for scholars and judges who complain about the third party doctrine, this may perhaps provide some solace–we still may not have the right to protect our information, but the companies we give it to are developing both the incentives and the legal ability to protect it for us.

The final aspect of the holding is one that flew a little bit under the radar, but that nevertheless is important.  The Patel Court assumed, without deciding, that a government search of the hotel’s registry qualified as a special needs search rather than a traditional law enforcement search.  The Court essentially said that there was no need to get into this question into more depth, because even under the lower “special needs” standard, the ordinance was unconstitutional, so it would clearly be unconstitutional under the more stringent law enforcement standard (which requires probable cause and–usually–a warrant).  But the very fact that the Court was willing to even make this assumption for argument’s sake is a bit troubling, and may presage yet another broadening of the already overbroad special needs definition.

Of course, the “special needs” justification has already been broadened way beyond the health and safety inspections of Camera and has been applied to searches which do little more than deter crime.  For example, as I discussed in an earlier article, almost every circuit court has held that the searches at airports are legitimate under the “special needs” doctrine, under the theory that they prevent terrorist action and thus protect public safety.  (The Supreme Court has yet to consider airport searches, but the Court has approved of them in dicta).   So already we have prevention of violent crime as a special need in order to keep society safe.  Likewise, the Supreme Court has approved of drunk driving checkpoints as a special need which keeps other motorists safe by preventing drivers from committing the crime of driving while intoxicated–which in a sense is per se reckless activity.

So we already apply the special needs search doctrine in order to prevent violent or reckless crimes–but at least those applications have some connection to protecting public safety.  Applying the special needs search doctrine to prevent drug use or prostitution in hotel rooms seems to be yet another step–a significant one–towards blurring the line between special needs searches and plain old fashioned law enforcement searches.  This was a line, for example, that the Court was unwilling to cross in Indianapolis v. Edmond.

To be fair, footnote 2 of Patel makes it clear that the Court is not making a decision one way or another on this particular issue.  So perhaps the Court simply wanted to make a broader point about the requirements for special needs searches and so decided to use Patel–even though in the end the search in question might not be an administrative search.  But this nuance may get lost as the months and the years go by, and many lawyers and judges will begin to think of Patel as the “administrative search case” and thus will think of the police accessing hotel records as a special needs administrative search.  Hopefully the Court can clarify this issue before that point.




In  Griffin v. Wisconsin and United States v. Knights, the Supreme Court upheld warrantless searches of the homes of probationers as justified by the Fourth Amendment’s “special needs” doctrine.   According to the Court, probation conditions served two purposes: rehabilitation and protecting society from future criminal violations by the probationer.  Under the creative logic of the special needs doctrine, these are purposes unrelated to crime control and thus the usual requirements of warrants and probable cause to not apply to law enforcement searches of probationers.  Also, probationers (like school children) have a lesser Fourth Amendment privacy interest than ordinary citizens.  The Supreme Court also noted that in both Griffin and Knights, the sentencing court had explicitly set out a probation condition that allowed the police to conduct a warrantless search the probationer’s home.   But the Court left open the question as to whether or not the constitutionality of the warrantless search depended on such an explicit condition, or whether the non-law enforcement purpose and reduced privacy interests of probationers alone was sufficient to permit such searches.

The Fifth and Eleventh Circuits ruled that probationers could not object to warrantless searches of their home even if this was not an explicit condition of their probation, but recently the Fourth Circuit came down on the other side of this issue.   In United States v. Hill, 13-4806 (4th Cir. 2015), the court held that the probationers’ knowledge of the warrantless search condition in Griffin and Knights were “critical” to the Supreme Court’s determination that the probationers had a diminished expectation of privacy in their home.   (A pre-Griffin case in the Fourth Circuit had already come to this conclusion, and the Fourth Circuit determined that none of the Supreme Court case law since then had explicitly overruled this principle).   Thus, the police officers violated his rights when (acting with what was likely only reasonable suspicion) they entered his home with a drug dog and found narcotics behind a ceiling tile in the bathroom.

This creates a circuit split on this issue, though the issue is narrow enough that it seems doubtful that the Supreme Court will take notice.  Meanwhile, the Fourth Circuit decision is unlikely to result in a significant setback for the government; the most probable effect of the ruling will be that prosecutors in the Fourth Circuit will now simply seek to add a warrantless search condition to every probationary sentence.


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 checkpointsdrug 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.

TANF       drug test

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.