NATIONAL TREASURY EMPLOYEES UNION, et al., Petitioners v. WILLIAM VON RAAB, COMMISSIONER, UNITED STATES CUSTOMS SERVICE, Respondent

No. 86-1879

October Term, 1987

May 5, 1988

On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

BRIEF FOR THE PETITIONERS

LOIS G. WILLIAMS *, Director of Litigation

* Counsel of Record

ELAINE D. KAPLAN, Assistant Director of Litigation, NATIONAL TREASURY EMPLOYEES UNION, 1730 K Street, N.W., #1100, Washington, D.C. 20006, (202) 785-4411, Attorneys for the Petitioners



QUESTION PRESENTED

Whether the Customs Service's Drug Screening Program violates the Fourth Amendment where:

1. It requires employees, as a condition of promotion, to urinate under close observation and to surrender their urine samples to the government for chemical testing to detect evidence of illegal drug use; and

2. The tests are conducted without probable cause or even reasonable grounds to believe that particular employees use illegal drugs; and

3. The program was implemented despite the fact that Customs conceded that its work force was already largely drug free; and

4. Undisputed expert testimony shows that the tests are inffective to either detect illegal drug use or deter drug-using employees from seeking covered positions.

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OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-27a) is reported at 816 F.2d 170. The opinion of the court of appeals denying the government's motion for a stay pending appeal (id. at 29a-39a) is reported at 808 F.2d 1057. The opinion of the district court (Pet. App. 40a-60a) is reported at 649 F. Supp. 380.



JURISDICTION

The judgment of the court of appeals was entered on April 22, 1987. The petition for a writ of certiorari was filed on May 27, 1987. This Court granted the petition on February 29, 1988. The Court's jurisdiction is invoked under 28 U.S.C. 1254(1).



RELEVANT CONSTITUTIONAL PROVISIONS

The Fourth Amendment to the United States Constitution provides:

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.



STATEMENT OF THE CASE

1. This case arose out of a suit brought against the Commissioner of the United States Customs Service by the National Treasury Employees Union (the exclusive bargaining representative of 9,000 Customs employees) and Argent Acosta (an NTEU chapter president and Customs inspector). J.A. 3-9. The Union and Acosta sought an injunction on behalf of current Customs employees against implementation of Customs' newly created "Drug Screening Program," which they alleged violated the Fourth Amendment rights of covered employees. Petitioners prevailed in district court; the court ruled the Customs program unconstitutional and enjoined it. Pet. App. 40a-60a. However, in a split decision, on expedited appeal, the Fifth Circuit reversed, vacating the district court's injunction. Id. at 1a-27a.

a. The United States Customs Service is a federal agency responsible for collecting revenue from imports, enforcing customs and related laws, and processing persons, carriers, cargo and mail into the United States. One of the Customs Service's many important responsibilities is the interdiction and seizure of contraband, including illegal drugs.

In the summer of 1986, the Customs Service implemented a drug screening program applicable to current employees selected for promotion to certain covered positions. Pet. App. 3a. n1 The Commissioner of Customs established the drug screening program, not in response to any problem of drug abuse in the agency, but in an attempt to obtain further assurances that Customs employees are not illegal drug users, in view of the drug interdiction duties of the Customs Service. J.A. 10, 15, 72. Under the Customs program, current employees who have competed and been selected for promotion into certain covered positions, are required to urinate under "close" but not "direct" observation, n2 and provide the urine specimen to the Customs Service for chemical analysis. This analysis attempts to detect recent use of marijuana, cocaine, opiates, amphetamine, or phencyclidine (PCP). J.A. 23-25; 32. n3

n1 Two months earlier, the Customs Service implemented a pre-employment drug screening program for outside applicants. Pet. App. 3a. Petitioners did not purport to represent outside applicants in bringing this lawsuit, and the validity of the pre-employment drug screening program is not before the Court. Id. at 21a.

n2 Customs uses this terminology to describe the monitor's responsibility to be watchful of the employee's behavior in the bathroom, and to listen to, but not to actually watch, the employee urinate. See, e.g., J.A. 29-30, 74, 92.

n3 The drug screening program covers employees promoted or transferred to positions that are said to "directly" involve drug interdiction, or that require the incumbent to carry firearms, or that allow the incumbent access to "classified information," by which apparently is meant sensitive or confidential information. J.A. 24-25. In its Directive and during this litigation, Customs identified over fifty specific covered positions which meet these general criteria. Id. at 37-39. The positions ranged from clerical to professional, and included mail technicians, chemists, lawyers, criminal investigators, senior administrative personnel, student trainees, and others. Id.; Pl. Exh 17.

Procedures for collection and analysis of urine samples are outlined in a directive issued to employees in August of 1986. J.A. 23-41. In accordance with the Directive, after Customs considers the qualifications of the employee applicants and selects those it finds suitable for promotion or transfer, it sends out a notice that informs the tentative selectee that he or she must submit to a urine test in order to be placed in his or her new job. Id. at 26-27; 33; 75; 79-85. After allowing five days for receipt of the notice of tentative selection, the "Drug Screening Coordinator," a Customs official, contacts the urine collection agent, a private company, which in turn contacts the employee and directs him or her to report to a designated location, at a designated time, to produce a urine sample. Id. at 20; 27; 75-76; 79-85. n4

n4 The Customs Service has contracted with "Equifax-PMI" ("Physical Measurements Information"), a private company with 200 offices nationwide to collect urine from tentative selectees to covered positions. J.A. 74-75; 91-92; 95-96. The personnel assigned to perform this task are not required to possess medical or scientific training. See J.A. 58 (inexperienced former insurance adjuster assigned to collect urine samples).

Employees provide urine samples either in a restroom at their place of employment or in an off-site collection facility. J.A. 20; 27-28; 55; 57-58; 96-97. Upon arriving at the designated collection site, the employee is required to produce identification and asked to detail to a representative of the urine collection company any medication taken in the last 30 days. Id. at 20-21; 28-29; 55; 75; 86-87; 98-99; 102-103. n5 To facilitate disclosure, employees are advised to bring notes from their physicians or other documents showing the date of prescriptions, type and concentration of medications prescribed, frequency of use, date last taken, and name of the prescribing physician. Id. at 21. Prescription information is recorded by the laboratory representative on a form, which is signed by the employee. Id. at 21; 28-29; 86-87; 98-99; 102-103. n6

n5 Employees are also asked to state whether they have come into contact with illegal substances in the performance of their duties in the preceding thirty days and whether they have consumed any foods rich in poppy seeds in the last 48 hours. J.A. 29; 86; 88; 102. Consumption of such foods may cause an individual to produce a test positive for opiates. Id. at 88.

n6 The form is produced in triplicate. One copy of the form is sealed in an envelope and forwarded to the Drug Screening Coordinator, to be opened in the event that the urine sample is reported positive. Another copy is retained by the urine collection company. The third copy is kept by the employee. J.A. 101.

An employee who fails to provide medical and prescription information is not precluded from taking the test. J.A. 29, 87, 103. However, several of the drugs sought under the Customs program have legitimate uses, and other drugs discolor urine. Id. at 21. Therefore, an employee who makes no disclosure or less than full disclosure bears the risk that a positive result on the drug test will be attributed to illegal activity rather than legitimate use of prescription medication, or that he or she will be accused of tampering with the urine sample. Id. at 33-35; 87.

After outlining their medications and signing the form, employees are required to produce a urine sample under the "close but not direct" observation of a monitor of the same sex. J.A. 21-22; 29; 55; 58; 96. The employee is ordered to surrender outer garments such as coats and jackets, and personal belongings, and then directed to urinate into a specimen cup either behind a partition or in a closed stall. Id. The collection site monitor accompanies the employee into the restroom or stands outside the bathroom door, listening closely while the employee urinates. Pet. App. 4a. n7

n7 Close scrutiny of the act of urination is required to maintain the integrity of urine testing programs because samples can be easily adulterated by the addition of common and easily concealed items like table salt or hand soap. J.A. 60; 66. In addition, some drug users may attempt to thwart the test by substituting another's "clean" urine sample for their own. Id. Plaintiffs' undisputed expert testimony in this case established that the only way to assure that sample switching or adulteration has not occurred is by direct observation of the urinary stream, from the body to the cup. Id. Absent this form of observation, it is likely that, as Dr. John Morgan explains, "knowledgeable drug abusers will beat the test while those more naive will yield up honest specimens." Id. at 60.

In an attempt to prevent cheating on the test, the monitor adds dye to the toilet water (J.A. 55), listens for the "normal sounds" of urination (Pet. App. 4a; J.A. 55; 58), and watches for any suspicious behavior that suggests the employee is attempting to adulterate his or her sample. J.A. 29. The monitor also inspects the sample to assure its proper temperature, color, and quantity. Id. at 30. n8 Employees found to have attempted to adulterate their urine samples are subject to dismissal. Id. at 33. Employees who are unable to produce a quantity of urine sufficient for testing will be detained and given fluids to drink, and, if still unsuccessful, asked to return later in the day. Id. at 30. Those still incapable of producing a urine sample later in the day are disqualified from receipt of their promotions. Id. Any employee who refuses to produce a urine sample or is unable to do so is ineligible for promotion. Id. at 36. Employees who submit to the test and whose results are reported positive are subject to removal from the Customs Service. Id. at 35-36.

n8 Under mandatory guidelines recently issued by the Department of Health and Human Services pursuant to Executive Order 12564, 51 Fed. Reg. 32889, et seq. (September 17, 1986), to which all urine testing programs in the federal sector must conform, the monitor is authorized, upon consulting with his or her supervisor, to require employees he or she suspects of tampering with their samples to produce a new one, under direct observation. See 53 Fed. Reg. at 11981 (April 11, 1988).

b. It is undisputed that the Customs drug screening program was not implemented in response to a real or perceived drug problem either in the Customs workforce as a whole, or in any segment thereof. J.A. 10; 15; 53. Instead, its professed purpose is to provide some extra assurance of the integrity of those who hold covered positions, given Customs' role in the interdiction of drugs at the border, and a perceived epidemic of drug use in society at large. Id. at 10; 15; 23; 72; 112-113. n9

n9 When Commissioner von Raab announced the program, he confessed that "the extent of illegal drug use by Customs employees was not the reason for establishing this program." J.A. 15. The Directive states that drug testing is nonetheless justified because Customs has a "special responsibility to insure that its workforce remains drug free." Id. at 23.

Thus, it is undisputed that when Customs implemented its program in 1986, it had no reason to suspect that drug use, either on or off duty, was occurring undetected in its workforce. Customs submitted no evidence in this case that any past on-the-job accidents or integrity violations had ever been attributed to employee drug use. In fact, one month before he implemented the program, Commissioner von Raab explicitly declared his belief that Customs was "largely drug free" and confirmed that "[t]he Customs Service has been known throughout the law enforcement community as an agency whose employees demonstrate noteworthy integrity." J.A. 10; 12. In its 200-year history, the Customs Service has handled problems of misconduct by traditional Fourth Amendment means. It made no attempt to show, either in administrative proceedings or in this litigation, why it decided to abandon those traditional methods. n10

n10 During the proceedings before the district court on the merits, Customs made no attempt to show any drug problem in its workforce or any reason to suppose such a problem was likely to arise absent implementation of drug testing. See Pet. App. 58a-59a. After plaintiffs won an injunction against the program in district court, however, Customs submitted an affidavit of Commissioner von Raab in support of their unsuccessful request for a stay pending appeal. J.A. 107-117. In that post-decisional affidavit, Commissioner von Raab indicated generally that a "few" Customs employees had been fired for "integrity violations" in the preceding few years. Id. at 114. The Commissioner's affidavit however, did not attribute these admittedly "few" known integrity violations to drug usage.

The Customs drug screening program was in effect for five months before the district court enjoined it. For three of those months current employees selected for promotion were required to participate. During that period all test results for current employees were reported negative. Pet. App. 4a. In recent testimony before Congress, Commissioner von Raab stated that after having conducted approximately 3663 urine tests under its program (including tests of outside applicants), only five samples, or .001365%, have been confirmed positive. Hearings on FY 1989 Appropriations before the Senate Subcommittee on Treasury, Postal Service, and General Government Appropriations, February 26, 1988, p. 68 (unpublished transcript).

c. Despite its recent popularity, urine testing is a relatively blunt and imprecise forensic instrument, especially as compared to other analogous procedures, like blood alcohol testing or the breathalyzer. It is uncontested that a positive urine test, even where accurate, can only indicate that at some time in the relatively recent past, the subject ingested a controlled substance. J.A. 60-61; 65-66. The test cannot determine the frequency of use, the dosage, the time of use, whether the employee is or was ever impaired by the illegal drug, whether the drug was taken under legitimate prescription, or even whether it was ingested voluntarily. Id.

Under the Customs program, urine samples are sent by mail to a laboratory in California for analysis. J.A. 100. n11 Urine samples are first subjected to a relatively insensitive screening test, the "enzyme multiplied immunoassay test" (EMIT). Id. at 25; 32; 41; 74. The EMIT searches for metabolized remnants of the specified drug that are contained in urine. Id. at 64; 104-105. The EMIT will fail to identify most users of illegal drugs, however, because drugs become undetectable very rapidly after their ingestion, and because individuals can change a test from positive to negative by increasing fluid intake. Id. at 60-61; 66-67; 69-71. Using the cut-off levels established by the Customs Service (J.A. 41), all of the searched-for drugs, except marijuana, are detectable for only a few days after they are used. Id. at 60-61; 66. Marijuana is detectable for averages of one day for light users (use once a week), three days for heavier users (two to six times per week), and an average of 5.3 days for very heavy users (daily use or more frequently over a six-month period). Id. at 66. Undisputed expert testimony in this case demonstrated that with a few days notice, virtually any individual who uses illegal drugs, except those whose use is so habitual as to be detectable simply by observation on the job, can escape detection through urinalysis merely by temporary abstinence. n12

n11 The Commissioner of Customs established a "Task Force" to determine how to implement this program. J.A. 11. It produced no administrative record to enable the Court to review its deliberations.

n12 Plaintiffs' expert, Dr. David Greenblatt, in an uncontested affidavit, characterized the Customs program as "essentially useless for determining whether employees use illegal drugs because of the likelihood of a high false negative rate and because most individuals who use illegal drugs can avoid a 'true positive' result by abstaining from the use of drugs upon receiving short notice that they will be tested, and by increasing their fluid intake." J.A. 70. Similarly, Dr. John Morgan noted that "[g]iven a week's notice, generally only addicts and the most chronic users would not be able to produce a clean sample . . . It is likely that misuse of drugs by such persons would have manifested itself in behavior, absenteeism, or poor performance." Id. at 61.

Under the Customs program, urine samples that are found to be negative through the EMIT procedure are not subjected to any further analysis, and the employee will be placed in the covered position to which he or she has been promoted, and will not be asked to repeat the procedure. J.A. 32. Those samples that are initially reported positive, on the other hand, are subjected to a confirmatory test which utilizes the gas chromatography/mass spectrometry (GC/MS) technique. Id. at 25; 32; 74. The GC/MS technique is considered by toxicologists to be capable of reliably detecting the presence of specified drugs in a urine sample when it is properly conducted. Id. at 62; 65; 70; 105. Its reliability, however, is compromised by the possibility of sample switching, contamination, or errors in analysis, all of which are particular causes of concern in large-scale testing programs. Id. at 62; 65; 70.

2. The district court, in a strongly worded opinion, found that the Customs drug screening program is a "degrading" and "overly intrusive" procedure (Pet. App. 51a, 55a) and ruled it unconstitutional. Id. at 40a-62a. It held (consistent with every court to consider the issue) that urine testing is a "full-blown search" within the meaning of the Fourth Amendment. Id. at 50a-51a. The court observed that a urine test is no "minor frisk or pat-down," and viewed "the testing of Customs workers' bodily wastes" as "even more intrusive than a search of the home." Id. at 50a. Indeed, said the court, "excreting body fluids and body wastes is one of the most personal and private human functions." Id. at 52a.

The district court weighed this significant intrusion against the government's asserted interest in a "drug-free" workforce. Without questioning the legitimacy of that interest, the court found that Customs had failed to demonstrate that its interest was threatened. Pet. App. 58a-59a. It noted the "conspicuous absence of any statistics by the defendant showing any drug problem whatsoever among federal workers," and that Customs in particular had failed to demonstrate a drug problem among its employees. Id. at 58a, 59a. The court held that the program violated the Fourth Amendment since it mandated testing absent probable cause or even reasonable suspicion to believe that an employee uses illegal drugs. Id. at 59a. Accordingly, the court enjoined the Customs Service from conducting urine tests without probable cause. Id. at 60a.

3. In a split decision, on expedited appeal, the court of appeals reversed. Pet. App. 1a-27a. Applying a multi-factor "totality of the circumstances" approach, the majority ruled that Customs' interest in employing persons who do not use illegal drugs in covered positions is sufficient to outweigh the program's conceded infringement of employees' expectations of privacy.

Initially, the court ruled that urine testing is a "search" and rejected the government's arguments that the Fourth Amendment is inapplicable where the government seeks to determine employees' fitness for duty. Pet. App. 7a-9a. The court recognized that urine testing infringes employees' privacy expectations in several ways. It observed that "there are few activities in our socity more personal or private than the passing of urine," and that "even the individual who willingly urinates in the presence of another does not 'reasonably expect to discharge urine under circumstances making . . . discover[y of] the personal physiological secrets it holds possible'." n13 The court also recognized that urine testing "may disclose not only the presence of drug traces but much additional personal information about an employee -- whether the employee is under treatment for depression or epilepsy, suffering from diabetes, or, in the case of a female, pregnant." "Even tests limited to the detection of controlled substances," the court observed, "will reveal the use of medications prescribed for the relief of pain or other medical symptoms." Id. at 8a.

n13 Pet. App. 8a, quoting Capua v. City of Plainfield, 643 F. Supp. 1507, 1513 (D.N.J. 1986) and McDonell v. Hunter, 612 F. Supp. 1122, 1127 (S.D. Iowa, 1985), aff'd as modified, 809 F. 2d 1302 (8th Cir. 1987).

Despite these privacy concerns, and the fact that the urine searches are conducted without probable cause to believe an employee is guilty of work-related misconduct or even reasonable suspicion of same, the majority up-held the program. It found that Customs had tried to minimize the intrusiveness of urine testing by not requiring visual observation of the urinating employee and by giving employees notice that they would be tested. It also viewed the program as "limited in total scope" because no discretion is exercised in deciding which employees are to be tested; instead, all employees selected for promotion are required to undergo the test. Pet. App. 11a-12a.

The court observed that no attempt had been made to justify the program on the basis of the existence of drug use among current employees. Pet. App. 3a-4a. The court nonetheless found the demand for urine specimens reasonable under the Fourth Amendment because drug use by Customs employees could, if it in fact occurred, "seriously frustrate the agency's efforts to enforce the drug laws" by undermining public confidence in the agency and by making employees susceptible to blackmail or bribery. Id. at 13a. The court also observed that drug use by persons who carry firearms could present a danger to the employee himself and to co-workers. Id.

The court of appeals concluded that alternative employee screening devices, such as background investigations and on-the-job observation, are inadequate and "do not eliminate the need for urine testing," even though these devices have apparently produced a "drug-free" workforce at Customs. Pet. App. 17a. The court conceded that because the program would invade privacy, it had to consider whether the program would be a "'sufficiently productive mechanism' for achieving its purposes." Id. at 18a, quoting Delaware v. Prouse, 440 U.S. 648, 659 (1979). Although the court acknowledged that "the test will usually fail to detect drugs used more than five days before testing and employees notified of a testing date may simply abstain from use", it found that an addict might not be able to abstain. Id. Despite undisputed expert testimony to the contrary (J.A. 61; 70), the court found that a "particular user" faces significant risk of detection, which risk "may deter" a drug user from applying for a covered position. Id.

4. Judge Hill dissented from the majority's ruling. He agreed with the court's conclusion that the Customs program is subject to the requirements of the Fourth Amendment but did not agree that the program in fact met those requirements.

Initially, Judge Hill expressed his "reservations with the method of analysis used by the majority in deciding whether the program is reasonable under the Fourth Amendment." Pet. App. 23a-24a, n.1. Specifically, Judge Hill noted that "the majority offers no explanation why this case presents a situation where no warrant, no probable cause, nor even any level of suspicion is required, contrary to the language of the fourth amendment." Id.

Judge Hill did not himself engage in the analysis he suggested was necessary because he agreed with the plaintiffs' alternative argument that the ineffectiveness of the Customs program, in and of itself, rendered the program unconstitutional. He recognized that employees need only abstain from use following receipt of notice of the testing requirement in order to avoid detection as a drug user, and that a one-time drug test would be ineffective to achieve the government's stated goals of deterring drug users from seeking covered positions. Id. at 26a. Given the ineffectiveness of the Cutoms program, Judge Hill could perceive "no reason to allow this invasion of the employees' fourth amendment rights without some concomitant benefit to society." Pet. App. 26a-27a.



SUMMARY OF ARGUMENT

A. The purpose of the Fourth Amendment -- to protect citizens against arbitrary interference with their personal privacy and dignity at the hands of the state -- is directly implicated by programs that require those who work for the government to produce urine samples, under observation, for chemical testing. As all courts to consider the issue have agreed, urine testing violates reasonable expectations of privacy in both the act of urination and in the product urine itself. Urine tests must therefore be considered "searches" within the meaning of the Fourth Amendment, and are subject to that Amendment's standards of reasonableness.

B. The determination of the reasonableness of a search requires, at bottom, a weighing of the government's interest in conducting the search against its intrusion into personal privacy and dignity. O'Connor v. Ortega, 107 S.Ct. 1492, 1499 (1987) (citations omitted). Here, the Customs Service relies upon its interest in a "drug-free" workforce to justify its program. However, it freely admits that it had no reason to believe that interest was in jeopardy when it implemented urine testing. The government must do more than recite an important interest in order to justify intrusive searches; otherwise the Fourth Amendment balance will inevitably be struck in the government's favor. The government must demonstrate that its invasion of privacy is necessary. Customs' claimed authority to conduct drug tests without probable cause, without reasonable suspicion, and, indeed, without demonstrating that its interest in a drug-free workforce was ever in jeopardy, exceeds any authority this Court has ever recognized as legitimate. Regardless of the standard this Court finds appropriate, probable cause, or something less, the Customs program cannot stand.

C. The Customs Service has failed to justify its departure from the Fourth Amendment's presumptive requirement -- that searches or seizures proceed only where there is probable cause to believe that the search will uncover the evidence the government seeks. Last Term, in O'Connor v. Ortega, the Court confirmed that this presumptive requirement is fully applicable in assessing the reasonableness of searches conducted in the employment context. 107 S. Ct. at 1499, 1501.

The Framers of the Constitution established the probable cause standard in order to strike a balance between the community's need for evidence and the individual's interest in maintaining a sphere of personal privacy and dignity. E.g., Winston v. Lee, 470 U.S. 753, 758 (1985). This Court has permitted departure from the Amendment's presumptive requirements only where the interference with Fourth Amendment interests is minor, and where "'special needs beyond the normal need for law enforcement'" necessitate searches or seizures upon less than probable cause, or without a warrant. O'Connor v. Ortega, 107 S. Ct. at 1500; quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in judgment).

Neither element necessary to justify departure from the probable cause standard is present in this case. Urine tests are highly invasive of personal privacy and dignity, far more so than any other search or seizure this Court has ever permitted in the absence of probable cause. In accordance with the Customs program, innocent employees who are under no suspicion of wrongdoing, and, indeed, who have been chosen for advancement, are required to urinate under the scrutiny of monitors, to reveal intimate medical information to these monitors and to their government employer, and to permit their urine to be analyzed for evidence of illicit conduct. This procedure cannot be compared to brief detentions of criminal suspects upon reasonable suspicion, or to inspections of commercial property used in closely regulated businesses, or to any other intrusion this Court has permitted upon less than probable cause. E.g., Terry v. Ohio, 392 U.S. 1 (1968); New York v. Burger, 107 S.Ct. 2636 (1987).

Moreover, Customs has not demonstrated the existence of "operational necessities" that preclude it from basing its demand for urine samples upon probable causes. See Arizona v. Hicks, 107 S. Ct. 1149, 1154 (1987). Customs' interest in hiring employees in covered positions who do not use illegal drugs is unchallenged; however, accepting that proposition does not justify the use of illegal searches to accomplish the government's goals. Customs has the opportunity to study individual employees both while they are on the job, and during the selection process, and can gather the facts giving rise to probable cause to believe that particular employees use illegal drugs, without any compromise to its effectiveness or the public safety. Moreover, Customs officials are well schooled in application of the probable cause standard, so that use of the standard during the selection process should not prove overly burdensome.

D. Should this Court regard the probable cause standard inapplicable here, petitioners should nevertheless prevail. The Customs program fails even the less rigorous test of reasonableness under all the circumstances, outlined in this Court's decision in O'Connor v. Ortega and other cases. The urine tests Customs conducts are neither "justified at [their] inception" nor "reasonably related in scope to the circumstances which justified the interference in the first place." O'Connor v. Ortega, 107 S. Ct. at 1502-1503, quoting Terry, 392 U.S. at 20, and T.L.O., 469 U.S. at 341.

A search in the employment context is justified at its inception when there are "reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct." O'Connor v. Ortega, 107 S. Ct. at 1503. Customs has no reasonable grounds to believe its program will uncover work related misconduct because the program does not require individualized suspicion of drug use by particular employees, and because, in any event, Customs has no reasonable grounds to believe the tests will reveal drug use by any employee.

Only the most minimal interferences with Fourth Amendment interests have been permitted in the absence of individualized suspicion. Urine tests involve an invasion of privacy and dignity that is greater than any previously permitted to occur in the absence of individualized suspicion, even where, as here, the searches are based upon neutral criteria, and the individual searched has notice of the impending intrusion. Cf. United States v. Martinez-Fuerte, 428 U.S. 543 (1976). Notice of a highly intrusive search does not enhance its reasonableness, nor does expanding its reach (by eliminating all discretion) to cover ever greater numbers of persons.

Moreover, Customs has not met its burden of demonstrating that even a minor interference with Fourth Amendment interests is justified in this case. The government's burden of justifying a search program that includes no element of individualized suspicion at all should be a weighty one indeed. While Customs has an interest in assuring that its employees are not users of illegal drugs, such an abstract interest is insufficient to justify intrusions into the privacy of the great majority, who are innocent of the wrongdoing the government seeks to uncover. Customs has never attempted to explain why including an element of individualized suspicion in its program would frustrate accomplishment of its objectives.

Even if individualized suspicion is not the constitutional minimum for conduct of urinalysis drug testing, the Customs program should still be invalidated because there are no reasonable grounds to assume the program will further the government's purported interest in a "drug-free" workforce. Customs has conceded that its workforce is already "drug-free," so it is clearly unreasonable to institute new, invasive searches to uncover or deter drug use. Moreover, the program it has enacted is completely ineffective to accomplish its goals, since it is easy for a drug user to thwart the test simply by temporary abstinence or subterfuge. It is simply irrational to assume that persons who use illegal drugs will be deterred from applying for a covered position by an ineffective urine test, but not by a background investigation or by the knowledge that behavior will be closely observed and that illegal drug use will result in dismissal. In short, the government's proffered justification for imposing this urine testing plan -- the need for further assurances that Customs employees in covered positions do not use illegal drugs -- is neither established in this case, nor served by the Customs program. This Court should rule the program unconstitutional.



ARGUMENT

THE CUSTOMS DRUG SCREENING PROGRAM VIOLATES THE FOURTH AMENDMENT IN THAT IT IMPOSES ON EMPLOYEES HIGHLY INTRUSIVE SEARCHES WITHOUT PROBABLE CAUSE TO BELIEVE THAT INDIVIDUAL EMPLOYEES USE ILLEGAL DRUGS, WITHOUT REASONABLE SUSPICION THAT AN INDIVIDUAL USES DRUGS, AND WITHOUT GENERALIZED SUSPICION OF ANY DRUG PROBLEM IN THE WORK FORCE

A. Introduction

As this case and others illustrate, the federal government has seized upon a relatively new technology, urinalysis, as an offensive weapon in its war on drugs. The Customs Service is using this weapon on its own employees, requiring them to produce urine samples for laboratory analysis to demonstrate that they are drug-free. It imposes this requirement without probable cause to believe that any individual tested is guilty of any work-related misconduct (in this case illegal drug use), without any reasonable suspicion that an individual is using drugs, and without even a reasonable generalized suspicion that drug abuse exists and constitutes a problem in the workforce. It freely admits that it has no such suspicions.

As we will show, the intrusion upon reasonable privacy expectations occasioned by these tests is so severe that there can be no question that they are searches within the meaning of the Fourth Amendment. The question which the Court must then address is, by what standard must their lawfulness be judged? At bottom, this Court must always decide whether a search is reasonable under all the circumstances, an inquiry that inevitably results in weighing the government's interest in conducting the search against the intrusion it represents upon personal privacy and dignity. O'Connor v. Ortega, 107 S.Ct. 1492, 1499 (1987) (citations omitted).

In this case, the government has repeatedly emphasized its interest in maintaining a drug-free workforce. Without for a moment suggesting that this interest is an illegitimate one, however, we submit that the inquiry only begins, and does not end there. If all the government need do is recite a weighty interest, without showing that interest is truly jeopardized, the balance will inevitably be skewed in the government's favor, and the Fourth Amendment turned on its head. The Fourth Amendment exists to protect citizens against intrusions by the government that are not demonstrably necessary. Particularly in this case, where the government's showing of the need to search is so meager, the Court must examine whether the government's purported interest is served at all by these searches, and, if so, whether that interest would be adequately served without sacrificing traditional Fourth Amendment protections.

The Customs Service's claim of authority to conduct intrusive searches on its employees without probable cause, without reasonable suspicion, and without any showing that its interest in a drug-free workforce is threatened, exceeds any this Court has ever recognized as legitimate. Under any standard of reasonableness, the Customs program cannot stand.

B. The Fourth Amendment Protects Public Employees in Their Employment Relationship, and the Customs Drug Screening Program Constitutes a Search Within the Meaning of That Amendment.

At issue here are the Fourth Amendment rights of persons who work for the United States Customs Service. They are employed at the nation's borders and elsewhere, and, among other duties, they work to prevent the illegal entry of persons and contraband, including illegal drugs. The group at risk have performed well for the Customs Service, as demonstrated by the fact that each has sought and been selected for promotion or transfer to new positions. They have never given their employer any reason to believe that they use illegal drugs, either on or off duty.

Nonetheless, each employee selected for promotion is ordered to report to a "collection site," or restroom, to undergo a drug test. The employee is asked to divulge personal medical information, including all medications of any kind taken within the last thirty days, to an agent of the privately contracted urine collection company. The employee must provide proof of identity, surrender outer clothing and personal belongings, and urinate into a specimen cup while a monitor remains close at hand, listening and attending to the employee's actions for signs of suspicious behavior. The monitor is not supposed to actually watch the employee urinate, n14 but must "closely observe" to prevent the employee's cheating on the test, and must take all the precautions expected to preserve the chain of custody, as though protecting evidence of a crime. These include inspection of the urine sample's color, content, and temperature to check for evidence of adulteration or substitution, and ensuring that the sample is properly sealed, labeled, and dispatched to the laboratory.

n14 In practice, indirect observation does not assure privacy in the act of urinating. One employee who underwent this test stated by affidavit that the monitor accompanied each subject into the restroom, placed dye in the urinal, stood behind a partition, and "was able to observe me from my shoulders up from behind the partition while I urinated into the sample jar. I found this procedure embarrassing." Aff. of Lee Cruz, J.A. 55. Another employee said: "The laboratory representative remained in the bathroom with me while I urinated into the bottle at an open urinal. He was not to my knowledge behind a stall or partition. I had my back to [him] during the process, and so do not know how closely he was observing me." Aff. of Benito D. Juarez, J.A. 58.

Any innocent person facing this test must be expected to regard it as frightening, embarrassing, offensive to personal integrity, or some combination thereof. The district court regarded the urine testing program as exceedingly "degrading." Pet. App. 54a-56a. Professor Charles Fried, commenting twenty years ago on the "symbolic importance" which societies assign to certain "conventionally designated areas of privacy," noted with prescience:

Thus in our culture the excretory functions are shielded by more or less absolute privacy, so much so that situations in which this privacy is violated are experienced as extremely distressing, as detracting from one's dignity and self esteem.

C. Fried, Privacy, 77 Yale L.J. 475, 487 (1968).

Professor Fried's view is shared by most. The degree to which privacy is perceived to be invaded by urine testing may vary from person to person, and, no doubt, depends on a number of variables, including the individual's sex, background or religion, age, experience, and sensitivity, and on the presence of private medical conditions, disabilities, or disorders. In the case of a female employee, it may depend upon the time of the month she is directed to the collection site. But most persons would unquestionably find the process most uncomfortable, if not humiliating, regardless of their individual circumstances. From the apprehension one feels at the prospect of having one's urine captured and analyzed, to the embarrassment of having to urinate on demand in the presence of a monitor, to the outrage one feels at having to divulge to strangers, or to one's employer, a broad range of private medical information, urine tests violate reasonable and normal exceptions of privacy in our society.

Clearly, the Fourth Amendment is implicated by so serious an invasion of privacy. Its "overriding function", as this Court has often recognized, is "to protect personal privacy and dignity against unwarranted intrusion by the State." Schmerber v. California, 384 U.S. 757, 767 (1966); Winston v. Lee, 470 U.S. 753, 760 (1985). n15 Moreover, it clearly applies to protect the person and property of public employees. They do not forfeit their protections "merely because they work for the government instead of a private employer." O'Connor v. Ortega, 107 S. Ct. 1492, 1498 (1987).

n15 The Fourth Amendment's protections apply, whether the government acts in a civil or criminal law enforcement capacity. New Jersey v. T.L.O., 469 U.S. 325, 334-335 (1985); Michigan v. Tyler, 436 U.S. 499, 504-505 (1978); Camara v. Municipal Court, 387 U.S. 523, 528, 530 (1967).

Under the Fourth Amendment a "search" occurs, giving rise to the Fourth Amendment's protection, when the government interferes with an expectation of privacy that society is prepared to consider "reasonable." United States v. Jacobsen, 466 U.S. 109, 113 (1984). There can be no doubt that, in our society, the act of urinating, and the urine itself, are surrounded by a very considerable expectation of privacy. n16

n16 Although we refer throughout to urinalysis as a search, the term "seizure" is equally appropriate. A "seizure" of a person occurs when the government meaningfully interferes with an individual's liberty. Terry v. Ohio, 392 U.S. 1, 16 (1968). A "seizure" of personal property occurs when the government meaningfully interferes with an individual's possessory interest in the property. United States v. Jacobsen, 466 U.S. at 113. Although urine is ordinarily not "possessed" for long because it is a waste product, it is clear that ordinarily an individual expects to control both the timing and the ultimate disposition of his own waste. When the government requires its employees instead to urinate on command and then turn the urine over to a government agent for its own purposes, it has interfered in a meaningful way with the employee's authority to dispose of the urine as he or she sees fit. Accordingly, a "seizure" has taken place.

For this reason, the many lower courts that have considered the Fourth Amendment implications of urine testing have unanimously concluded that requiring public employees to produce a urine sample for chemical analysis violates reasonable privacy expectations and therefore constitutes a "search" of the person within the meaning of the Fourth Amendment. n17 This consensus is clearly correct, for the reasons we have discussed above.

n17 Railway Labor Executives' Association v. Burnley, 839 F.2d 575, 580 (9th Cir. 1988), petition for cert. filed, No. 87-1555 (March 17, 1988); Everett v. Napper, 833 F.2d 1507, 1511 (11th Cir. 1987); Jones v. McKenzie, 833 F.2d 335, 330 (D.C. Cir. 1987), petition for cert. filed, No. 87-1706 (April 15, 1988); National Federation of Federal Employees v. Weinberger, 818 F.2d 935, 942 (D.C. Cir. 1987); McDonell v. Hunter, 809 F.2d 1302, 1307 (8th Cir. 1987); Policemen's Benevolent Association v. Washington Township, 672 F. Supp. 779, 784 (D.N.J. 1987); Taylor v. O'Grady, 669 F. Supp. 1422, 1434-1435 (N.D. Ill. 1987); Amalgamated Transit Union, Local 1277 v. Sunline Transit Agency, 663 F. Supp. 1560, 1566 (C.D. Cal. 1987); Feliciano v. City of Cleveland, 661 F. Supp. 578, 586 (N.D. Ohio, 1987); Rushton v. Nebraska Public Power District, 653 F. Supp. 1510 (D. Neb. 1987); American Federation of Government Employees v. Weinberger, 651 F. Supp. 726, 732-733 (S.D. Ga. 1986); Lovvorn v. City of Chattanooga, 647 F. Supp. 875, 879 (E.D. Tenn. 1986); Capua v. City of Plainfield, 643 F. Supp. 1507, 1513 (D.N.J. 1986); Patchogue-Medford Congress of Teachers v. Board of Education, 517 N.Y.S. 2d 456, 460-461 (1987); City of Palm Bay v. Bauman, 475 So.2d 1322, 1324 (D.C. App. Fla. 1985); Caruso v. Ward, 506 N.Y.S.2d 789, 792 (1986).

Although this Court has not yet had the opportunity to consider whether urine tests constitute "searches," the conclusion that they do finds strong support in this Court's decision two decades ago in Schmerber v. California. In Schmerber, the Court ruled that the extraction and chemical analysis of a motorist's blood to determine its alcohol content "plainly involves the broadly conceived reach of search and seizure under the Fourth Amendment." 384 U.S. at 767. The Court emphasized that the Fourth Amendment "expressly provides that the right of the people to be secure in their persons . . . shall not be violated." Id. (original emphasis). Urine tests designed to detect drugs are materially indistinguishable from blood tests designed to determine alcohol content, since both involve an examination and analysis of body fluids to uncover illicit conduct. n18

n18 Of course, urine and blood tests differ in some respects since the latter requires a physical penetration of the skin in order to secure the sample, whereas the former requires close observation of the person yielding the sample. That difference is not, however, material to the question whether reasonable expectations of privacy are invaded. Cf. Katz v. United States, 389 U.S. 347, 352-353 (1967) (rejecting the notion that lack of physical penetration is determinative of whether a search has been conducted). The Court in Schmerber minimized the significance of the intrusion beneath the skin; in fact the Court characterized that aspect of the procedure as involving "virtually no risk, trauma, or pain." 384 U.S. at 772. Instead, what was primarily at stake in Schmerber was the individual's reasonable expectation of privacy in his body fluids -- that these would not be appropriated and analyzed by the government outside the constraints of the Fourth Amendment. The very same concerns, of course, exist in determining whether urine tests are "searches."

Surveillance by urine testing is being conducted in a rapidly expanding number of contexts, including the military, prisons, drug rehabilitation programs, schools, athletic programs, and, recently, the workplace. Because chemical testing of body fluids without any suspicion of wrongdoing poses a dramatic threat to the values of human dignity and privacy that the Fourth Amendment protects, this Court should affirm the unanimous view of the lower courts which have held that urine tests are "searches," and that the government's authority to conduct urine testing is subject to the limitations imposed by the Fourth Amendment.

C. The Customs Service Has Made No Showing That It Should Be Permitted to Conduct Urine Searches of Its Employees Without Observing the Traditional Fourth Amendment Standard of Probable Cause.

The decision below radically departs from well-established Fourth Amendment law. Just last term in O'Connor v. Ortega, a case, like this one, arising in the public employment context, this Court reaffirmed that searches undertaken without probable cause are presumptively unreasonable. 107 S.Ct. at 1500, citing Mancusi v. DeForte, 392 U.S. 364, 370 (1968). n19 Although the Court in O'Connor applied a less stringent standard than probable cause to the employer's search of the employee's office and files, it emphasized that its departure from this presumptive requirement was justified only because the employer had searched the place of work, which is supplied by the employer for work-related purposes, as distinct from the person or personal possessions of the employee. 107 S.Ct. at 1497.

n19 See also, Coolidge v. New Hampshire, 403 U.S. 443, 454-455 (1971); Mincey v. Arizona, 437 U.S. 385, 390 (1978); Marshall v. Barlow's Inc., 436 U.S. 307, 312-313 (1978); United States v. Chadwick, 433 U.S. 1 (1977); United States v. United States District Court, 407 U.S. 297, 318 (1972); Vale v. Louisiana, 399 U.S. 30, 34 (1970); Katz v. United States, 389 U.S. at 357; Camara v. Municipal Court, 387 U.S. at 528-529; Chapman v. United States, 365 U.S. 610 (1961).

Probable cause is presumptively required under the Fourth Amendment because it provides essential safeguards for the individual against unnecessary invasions of personal privacy and security by the state. n20 Fundamentally, the function of the probable cause requirement is to give society the assurance that the government will direct its intrusive activity toward those who are likely to be guilty, and to avoid random searching of those likely to be innocent. That assurance evaporates when the government undertakes a large-scale search program like the one at issue here, where 99.99+% of those searched have been innocent. That governmental searches are tolerated at all is because the probable cause requirement strikes a balance between the individual's right to privacy and security and the community's need for evidence. Winston v. Lee, 470 U.S. 753, 758 (1985); Gerstein v. Pugh, 420 U.S. 103, 112 (1975); Brinegar v. United States, 338 U.S. 160, 176 (1949). Where the government does not even expect to obtain evidence, the searches are intolerable.

n20 The warrant is also presumptively required, to insure that the vital balance between individual privacy and governmental interest is properly struck in particular cases, as evaluated in advance by a neutral and detached magistrate before a search or seizure is effected. Marshall v. Barlow's Inc., 436 U.S. 307, 322-323 (1978); United States v. Chadwick, 433 U.S. at 9; United States v. U.S. District Court, 407 U.S. at 316-317; Coolidge v. New Hampshire, 403 U.S. at 453. Should the Customs Service attempt to establish a program that meets the probable cause requirement in the future, it would be free to attempt to show then that exigent circumstances make the warrant requirement impracticable. But see, Brief of the American Civil Liberties Union as amicus curiae. Until that time, this Court need not address the question whether a warrant is required for urine testing.

Over the years, this Court has found it necessary to carve out a number of exceptions to traditional Fourth Amendment requirements in "'exceptional circumstances'," where "'special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable'." O'Connor v. Ortega, 107 S.Ct. at 1500, quoting New Jersey v. T.L.O., 469 U.S. at 351 (Blackmun, J., concurring in judgment). n21 However, the burden is always upon the government to justify such exceptions, and they must be "jealously and carefully drawn." Arkansas v. Sanders, 442 U.S. 753, 759-760 (1979); Coolidge v. New Hampshire, 403 U.S. at 455; Warden v. Hayden, 387 U.S. 294, 299 (1967).

n21 See also, Arizona v. Hicks, 107 S. Ct. 1149, 1154 (1987) (seizure based upon less than probable cause can be justified where "operational necessities render it the only practicable means of detecting certain types of crime"); Griffin v. Wisconsin, 107 S. Ct. 3164, 3167 (1987) (special needs of the probation system render search on less than probable cause reasonable).

Lest the exception swallow the probable cause rule, this Court has permitted governmental searches without-probable cause only where the intrusion into Fourth Amendment interests is relatively minor, and, even then, only where departure from the probable cause standard is an "operational necessity" for the vindication of an important government interest. The mere interest in making law enforcement easier, of course, does not constitute an "operational necessity" that justifies departure from "the textual and traditional standard of probable cause." Arizona v. Hicks, 107 S. Ct. 1149, 1154, 1155 (1987); see also, Almeida-Sanchez v. United States, 413 U.S. 266, 273-274 (1973).

In this case, the Customs Service claims the right to conduct most intrusive and personal searches of its employees without probable cause, purportedly to insure that those who occupy covered positions are not users of illegal drugs. The government would have the Court rule that if it can legitimately disqualify individuals from employment on the basis of illegal drug use, on that basis alone, it can search to find out whether the employee has used illegal drugs, and can require employees to give up their rights to absolute privacy in their excretory functions. Moreover, the government would have the Court permit this extraordinary intrusion to be imposed on an innocent population it admits it has no reason to suspect of illegal drug use, either individually or collectively. As we now demonstrate, the radical exception Customs seeks to the Fourth Amendment's presumptive requirements is not supported by this Court's decisions, including the Court's recent decision in O'Connor, permitting departure from the probable cause requirement only in certain limited circumstances. n22

n22 There can be no doubt that these searches are not consensual within the meaning of this Court's Fourth Amendment jurisprudence. True consent operates to This Court Has Found Reasonable on Less Than waive one's right to object to warrantless search only where the government proves that the consent was "freely and voluntarily given," and not a product of sample for analysis. This process requires individuals coercion, either explicit or implicit. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 228-229 (1973). The urine tesets Customs requires as a condition of employment are not consensual under the Schneckloth formulation, because the "consent" is coerced. Employees may refuse to submit to the test only under penalty of the denial of their promotions, and curtailment of career advancement at Customs.

Further, it is clear that if the urine testing program is otherwise unreasonable and illegal under the Fourth Amendment, as we argue, Customs may not condition receipt of government employment upon employees' waiver of their constitutional rights to be free of such unreasonable searches. "The theory that public employment which may be denied altogether may be subject to any conditions, regardless of how unreasonable, has been uniformly rejected." Keyishian v. Board of Regents, 385 U.S. 589, 605-606 (1967); see also Lefkowitz v. Turley 414 U.S. 70 (1973); Pickering v. Board of Education, 391 U.S. 563, 568 (1968); Garrity v. for D.C. Plice Secretly State of New Jersey, 385 U.S. 493 (1967).

1. Urine Tests Are Ar More Invasive of Fourth Amendment Interests Than Any Search or Seizure This Court Has Found Reasonable on Less Than Probable Cause

By any measure, the urine search is highly intrusive. We have described the offensive, embarrassing process the Customs employee must undergo in producing a urine sample for analysis. This process requires individuals to surrender significant components of the high degree of privacy all agree has traditionally accompanied the excretory functions.

Moreover, as the court of appeals recognized (Pet. App. 8a), even aside from the psychological intrustion of passing urine while under surveillance, and then surrendering it to a monitor for a physical inspection, the potential for the revelation of anatomical secrets hidden in urine is also offensive to reasonable privacy expectations. Urine is the repository of a wealth of information that may be discovered through chemical testing. Urine samples can desclose the existence of medical conditions, such as pregnancy, epilespsy, or diabetes, treatment of psychiatric disorders, use of contraceptives, or other personal information. Employees obviously do not expect that their employer will have the opportunity to discover these private and non job-related facts. n23

n23 The Customs program does not, of course, call for the testing of samples for pregnancy or psychiatric or other medical disorders. However, once the sample has been collected by the employer, the employee has no control over its uses. Indeed, recently, the District of Columbia police department was discovered to be surreptitiously testing the urine samples of its female police cadets for pregnancy, even though the samples were collected in conjunction with a drug testing program. See Churchville, Applicants for D.C. Police Secretly Tested For Pregnancy, Washington Post, November 5, 1987, A1, cols. 1&2.

Under the Customs program, the revelation of personal medical information is more than a mere possibility, it is a necessary byproduct of drug testing. By chemically analyzing employee urine samples, the government uncovers the use of controlled substances under prescription, and therefore makes itself privy to personal medical conditions that have no relation to the employee's work, and could not reasonably be inquired into under normal circumstances. In the Customs program, moreover, the employee is warned to reveal all medication taken, whether prescription or over-the-counter. An employee has no way of knowing whether the medication he or she is taking will trigger a positive result, and will inevitably decide (whether out of ignorance, anxiety, or both) to be over inclusive. See J.A. 55 (Aff. of Lee Cruz). Thus, although all but the screened-for drugs should be eliminated by the final test, far more extensive information will have been revealed, recorded, and reviewed by non-medical persons. This Court has recognized that individuals have a legitimate privacy interest in preventing undue disclosure of such intimate medical information. Whalen v. Roe, 429 U.S. 589, 599-600 (1977).

Aside from revealing private medical conditions, urine tests also enable employers to monitor conduct of employees that occurs during their off-duty hours. The tests "provide government officials with a periscope through which they can peer into an individual's behavior in her private life, even in her own home." Jones v. McKenzie, 833 F.2d 329, 339 (D.C. Cir. 1987), petition for cert. filed, No. 87-1706 (April 15, 1988). As described supra, urine tests cannot determine the time, dosage, or circumstances of drug use, and can be reported positive for days and on occasion weeks after a drug was used. While Customs employees do not assert any right to use illegal drugs off duty, or to commit a crime, it does not follow that their employer has the right to use any and all means to ferret out evidence of such misconduct. All employees, even those who work for the government, have the expectation that their lives outside the office are private, not to be the subject of extraordinary surveillance by their employer unless it becomes notorious or disreputable.

These intrusions are far greater than those this Court has permitted to be conducted without probable cause. n24 In fact, this Court has permitted only minimally intrusive personal searches on less than probable cause, and even for minimal intrusion has almost always required that at least a reasonable suspicion standard be met. In Terry v. Ohio, for example, this Court held that police officers may briefly detain persons reasonably suspected of engaging in criminal activity and subject them to a pat down search for weapons upon reasonable suspicion that they are armed and dangerous. The Court explained that these relatively minimal intrusions were justified by the need for officers on the beat to take swift protective action on the basis of their on-the-spot observations. 392 U.S. at 20. n25 However, since Terry, this Court has repeatedly cautioned that more intrusive and full searches or seizures of a person, his automobile, or his effects, may not be conducted absent probable cause, even where similarly important governmental interests are at stake. United States v. Place, 462 U.S. 696, 709-710 (1983); Florida v. Royer, 460 U.S. 491, 500-501 (1983); Dunaway v. New York, 442 U.S. 200, 212-213 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 567 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975); United States v. Ortiz, 422 U.S. 891, 895-896 (1975); Almeida-Sanchez v. United States, 413 U.S. at 269-270.

n24 An exception to this general observation exists in highly unique, limited situations, where the individual's expectation of privacy is at its nadir, and the government's interest in detecting contraband is at its zenith. Thus, relatively intrusive and non-routine searches have been permitted on the basis of reasonable suspicion rather than the more stringent probable cause requirement at the border, because historically "the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is struck much more favorably to the government at the border." United States v. Montoya de Hernandez, 473 U.S. 531, 539 (1985). See also, United States v. Ramsey, 431 U.S. 606, 619 (1977) (noting that acceptance of routine border searches is "as old as the Fourth Amendment itself"). Intrusive personal searches at the border, it must be remembered, have not been permitted without at least individualized suspicion.

This Court has also upheld the right of prison authorities to conduct concededly intrusive searches of prison inmates without any individualized suspicion on the basis of the uniquely dangerous nature of the prison environment and the obviously minimal privacy expectation of prison inmates. Bell v. Wolfish, 441 U.S. 520, 555-560 (1979); see also Griffin v. Wisconsin, 107 S.Ct. at 3171 (permitting searches of the homes of probationers where there are reasonable grounds for the search given assumption that such persons are in need of supervision and more likely than ordinary citizen to violate the law).

n25 The rationale that permits the warrantless Terry investigative stop and frisk, based upon reasonable suspicion, has since been applied in other analogous contexts, where there is a need for quick action by police officers and where the investigations themselves fall short of full scale searches or arrests. E.g., United States v. Sharpe, 470 U.S. 675 (1985); United States v. Hensley, 469 U.S. 221 (1985); Pennsylvania v. Mimms, 434 U.S. 106 (1977); United States v. Brignoni-Ponce, 422 U.S. 873 (1975); Adams v. Williams, 407 U.S. 143 (1972).

The extraordinary invasion of the privacy and dignity of innocent employees occasioned by urine searches simply cannot be compared to a brief stop of persons suspected of committing crimes or of vehicles on the highway. Urine searches are also not reasonably comparable to those held legitimate upon less than probable cause in O'Connor v. Ortega and New Jersey v. T.L.O. Both cases, of course, involved individuals suspected of wrong-doing, and efforts by the governmental authorities to find evidence of that wrong-doing. The employer's office search in O'Connor represented a "'relatively limited invasion' of employee privacy" since offices are supplied by the government solely for work-related reasons and "employees may avoid exposing personal belongings at work simply by leaving them at home." O'Connor, 107 S.Ct. at 1502, quoting Camara v. Municipal Court, 387 U.S. 523, 537 (1967). Urine searches, on the other hand, are personal searches, not inspections of property provided by the government for a limited purpose, and the employee is powerless to render them less personal or degrading. Cf. O'Connor, 107 S. Ct. at 1497 (noting that the standard applied to searches of areas and items related to work and within the employer's control is not necessarily the same as the standard to be applied to more personal searches).

In T.L.O., the Court upheld a high school principal's authority to conduct an examination of a student's purse upon reasonable suspicion that it contained evidence of an observed infraction of school rules. The Court acknowledged that the examination of a purse, even where reasonable suspicion exists, is a "substantial invasion of privacy," (469 U.S. at 337), but permitted it in view of the need to maintain order in the schools. The search of a student's purse seems almost trivial by comparison with urine searches. Incursions into the body itself, to explore what may be found there, are not "limited searches" and are unquestionably more intrusive and degrading than the search of one's handbag or briefcase. Cf. T.L.O., 469 U.S. at 337 (noting that "even a limited search of the person is a substantial invasion of privacy"). This Court has observed that such quasi-medical hunts for evidence implicate "the most personal and deep rooted expectations of privacy." Winston v. Lee, 470 U.S. at 460, citing Schmerber v. California, 384 U.S. at 767-768. That is all the more true when, unlike the searches in O'Connor and T.L.O., the government has no reason at all to suspect that its hunt will turn up evidence of misconduct.

Nor can personal urine searches be compared to statutorily authorized inspections of commercial property employed in a "closely regulated" industry, for which neither a warrant nor probable cause is required. New York v. Burger, 107 S. Ct. 2636 (1987) (junkyards); Donovan v. Dewey, 452 U.S. 594 (1981) (stone quarries); United States v. Biswell, 406 U.S. 371 (1972) (firearms dealers); Colonnade Catering Corporation v. United States, 397 U.S. 72 (1970) (liquor dealer). The decisions upholding these inspection plans depend upon the premise that a businessman has a reduced expectation of privacy in commercial property employed in an industry that has historically been subject to pervasive government regulation. New York v. Burger, 107 S. Ct. 2642-2643. n26

n26 As the Court stated in Marshall v. Barlow's, Inc., "[c]ertain industries have such a history of government oversight that no reasonable expectation of privacy could exist for the proprietor over the stock of such an enterprise." 436 U.S. at 313 (citations omitted).

It is one thing to recognize the reduced expectation of privacy of a businessman over the stock of a commercial enterprise. It is quite another to apply that reasoning to the high degree of privacy that has traditionally been afforded to one's person and bodily functions. This Court has never applied the commercial property Colonnade-Biswell rationale to personal searches, much less to highly intrusive ones. Indeed, it has cautioned that "[t]he clear import of our cases is that the closely regulated industry of the type involved in Colonnade and Biswell is the exception", and not the rule. Marshall v. Barlow's, 436 U.S. at 313-314; see also Donovan v. Dewey, 452 U.S. at 589-599 (distinguishing commercial property subject to warrantless administrative searches, from private residences); Camara v. Municipal Court, 387 U.S. at 537 (permitting inspections of homes for code violations using area warrants, where inspections "are neither personal in nature nor aimed at discovery of evidence of crime)." It is simply unthinkable that this Court would equate the businessman's privacy interest in firearms, liquor, a stone quarry, or a junkyard, with the privacy interest of individuals in their bodies and bodily functions.

In short, the invasion of Fourth Amendment interests in privacy and dignity is far greater under the Customs program than under any other governmental search or seizure this Court has previously permitted to be conducted without probable cause (much less without reasonable suspicion). That intrusiveness, particularly when coupled with the absence of "operational necessities" to conduct the searches, to which we now turn, require adherence to the probable cause standard.

2. No Operational Necessities Exist to Justify Departure From the Probable Cause Standard

The government has utterly failed to show that it is in any sense operationally necessary to search its employees' urine without probable cause. It has not shown that it cannot obtain the information it needs in other ways, n27 nor has it argued that the probable cause standard would be difficult to apply in the Customs Service. Such arguments would be unavailing in any event.

n27 Obviously, it cannot be operationally necessary to search without probable cause if it is unnecessary to search at all. We argue in the next section that the government has shown no need to undertake any urine searches for drugs because its workforce has had no discernible problem of drug abuse.

Customs has not demonstrated that a probable cause standard would prevent its investigating and punishing workplace wrongdoing. n28 The relationship between the Service and its employees is not a fleeting one, analogous to the spontaneous encounters between police officers and suspects in the street or drivers on the highway. Nor is Customs searching for information it cannot secure in other ways without significant compromise of the government's interests. As a number of courts faced with similar programs have recognized, the government "do[es] not have to rely on across the board drug tests to insure the integrity [of employees] . . . Information concerning drug problems can be acquired by physical observation . . ., citizen complaints, tips from other law enforcement agencies and other means." Penny v. Kennedy, 648 F.Supp. 815, 817 (S.D. Ga. 1986); see also, Policemen's Benevolent Association v. Washington Township, 672 F.Supp. 779, 793 (D.N.J. 1987); Taylor v. O'Grady, 669 F.Supp. 1422, 1438 (N.D. Ill. 1987); Capua v. City of Plainfield, 643 F.Supp. 1507, 1518 (D.N.J. 1976). Thus, Customs employees are subject to on-going observation by their supervisors and co-employees, and may be required to undergo a formal background investigation or other inquiry into their qualifications and integrity. The Service has ample opportunity to study individual employees, at its own pace, and to make reasoned judgments about their characters; indeed it has presumably already made positive judgments by selecting these employees for promotion. n29

n28 In Terry and its progeny, for example, limited intrusions into Fourth Amendment interests are permitted upon less than probable cause because waiting for reasonable suspicion to ripen into probable cause would pose insurmountable barriers to effective investigation or a danger to the officer on the street. 392 U.S. at 20. Similarly, in Camara v. Municipal Court, the Court ruled that building inspections could be conducted in the absence of probable cause in the traditional sense because such inspections are not personal in nature, and because their purpose is not to uncover evidence of wrongdoing but to insure compliance with minimum health and safety standards, whose violation might be unintentional and not observable by the occupant from within or by authorities from outside. 387 U.S. at 537.

n29 We expect that the Customs Service will claim that in some cases it will be unable to detect drug use through other devices or to even obtain sufficient facts to give rise to probable cause. Obviously, the opportunity to investigate employees does not guarantee that every employee of questionable character will be detected (although the 200 year old Customs Service appears to be succeeding handsomely at hiring employees with high integrity). If the Fourth Amendment means anything, it means that requiring probable cause can conceivably result in a failure to detect wrongdoing in some circumstances. That fact, however, cannot be a basis for dispensing with the requirement entirely, at least for a search as intrusive as urine testing, where a single failure to detect does not have immediate consequences for the public safety.

Nor is the government's interest in the search an immediate one that arises out of the need to correct acts of known misconduct in order to assure the agency's effective and efficient operation as in O'Connor v. Ortega, 107 S.Ct. at 1502. See also T.L.O., 469 U.S. at 342-343 (probable cause standard would unduly burden school authorities in their efforts to maintain order). If there is any need to investigate further an employee already known and regarded as successful, Customs may take the time it needs to determine whether there is probable cause to believe that a tentative selectee is guilty of wrongdoing that should prejudice his or her employment, without any loss to its effectiveness or, more importantly, the public safety.

It should be noted here, lest Customs claim otherwise, that the authorities at the Customs Service are not novices in the application of the probable cause standard. Cf. T.L.O., 469 U.S. at 353 (Blackmun, J., concurring). Unlike many government supervisors (O'Connor, 107 S.Ct. at 1502) those at the Customs Service, by virtue of the mission of their agency, understand well all "niceties" of the probable cause standard, as they apply it routinely in their investigative contact with the public. n30 Indeed, it is ironic that those who are the object of this search, Customs employees, are themselves schooled in such matters, and, perhaps for that reason, particularly sensitive to the government's attempt to dilute their constitutional rights.

n30 This Court has elsewhere noted that the concept of probable cause is "practical and non-technical" and that laypersons are capable of judging the existence of probable cause. Illinois v. Gates, 462 U.S. 213, 231 (1983), quoting Brinegar, 338 U.S. at 176; Shadwick v. City of Tampa 407 U.S. 345, 351-352 (1972).

In sum, Customs has failed to justify an exception to the probable cause requirement that would allow it to subject selectees to covered positions to the substantial invasion of personal privacy and dignity involved in urine testing. This Court should rule that Customs may require selectees to produce a urine sample for chemical analysis only where there is probable cause to believe that the urine search will reveal evidence of misconduct by an employee.

D. The Customs Program Violates the Fourth Amendment In That It Is Not Based On Any Suspicion, Either Individualized or Generalized, That It Will Reveal Evidence of Illegal Drug Use By Customs Employees.

1. Customs' Intrusive Urine Searches May Not Be Conducted on Less Than Reasonable Individualized Suspicion.

If the Court finds that operational necessities of the workplace justify relaxing the traditional Fourth Amendment requirement of probable cause, then the constitutionality of the Customs program must be measured by its "reasonableness" under all the circumstances. O'Connor v. Ortega, 107 S.Ct. at 1502-1503. In O'Connor, the Court reserved the question whether individualized suspicion was an essential element of the reasonableness standard applicable to the search of an employee's office and files, since such suspicion was in fact present in that case. 107 S.Ct. at 1503, citing T.L.O., 469 U.S. at 342, n.8.

Here, there is no such individualized suspicion, so that, if probable cause is not required the question reserved in O'Connor and T.L.O. is squarely presented. We submit that all of the factors that militate in favor of the probable cause requirement, when balanced under the "reasonableness" inquiry, dictate that these searches may not be undertaken on less than reasonable, individualized suspicion that they will reveal evidence that an employee is guilty of work-related misconduct (here, use of illegal drugs).

The intrusion upon personal privacy is clear and serious. Like the search of a handbag, briefcase, office, or desk, a urine search can reveal a wealth of very personal information, and it is more embarrassing, degrading, and offensive. Moreover, unlike the situation where reasonable suspicion exists, as in O'Connor and T.L.O., here, large numbers of almost certainly innocent employees are personally searched. The privacy invasion thus increases exponentially. Even if Customs can demonstrate that its interests in securing a drug-free workforce would be unduly frustrated by a probable cause requirement, surely it cannot convincingly argue that a lower threshold standard of individualized suspicion would prove equally onerous in light of the serious privacy concerns at issue here.

Thus, this case would be like O'Connor if the employer there had gone from office to office, in a systematic way, searching for evidence of misconduct it had no reason to suspect existed, except that the searches there would have been less intrusive than those at issue here. It is difficult to imagine that the Court would find the reasonableness standard met where, as here, the search is highly intrusive and there is neither individualized nor generalized suspicion of wrongdoing.

The reasonableness inquiry requires the Court to determine whether the search is "justified at its inception," and whether it is "'reasonably related in scope to the circumstances which justified the interference in the first place'." Id., quoting Terry v. Ohio, 392 U.S. at 20, and T.L.O., 469 U.S. at 341. The more intrusive the search, the greater must be the government's justification.

It is plain that the Customs program of intrusive searches without any suspicion cannot withstand scrutiny. The urine tests are not justified at their inception because Customs conducts them without any reasonable belief that they will reveal any drug use. Further, the tests are not reasonably related in scope to Customs' objective -- to prevent drug-using employees from assuming covered positions -- because the undisputed evidence in this case establishes that other, less intrusive devices have already achieved that goal, without compromising employees' Fourth Amendment rights, while the intrusive program Customs would implement is wholly ineffective to either detect or deter illegal drug use.

2. Urine Tests Are Not Justified at Their Inception Under the Customs Program, in that They Are Not Based on Any Belief that They Will Reveal Illegal Drug Use

When Customs established its drug screening program, it admitted that it had no reason to suspect drug abuse among its employees, either individually or collectively, nor any reason to expect that it would uncover such use through urinalysis. The trial court found that Customs had not "demonstrated a drug problem among its work force," and noted the "conspicuous absence of any statistics by the defendant showing any drug problem whatsoever among federal workers." Pet. App. 58a-59a. Therefore, Customs has utterly failed to show "reasonable grounds for suspecting that the search [would] turn up evidence of work-related misconduct," so as to be "justified at its inception." O'Connor v. Ortega, 107 S. Ct. at 1503.

No one, least of all Customs employees themselves, would deny that Customs' stated objective for its plan is an important one: to detect persons who use illegal drugs and deter them from assuming positions in which they will be involved in drug interdiction. As unexceptionable as this goal is, however, it possesses neither the immediacy nor the uniqueness that would be necessary were this Court to authorize, for the first time, intrusive, personal suspicionless searches. The government might and in fact has asserted the very same sort of interest in assuring that individuals occupying a host of government positions of trust do not engage in activities during their off duty time that are illegal, or that otherwise might subject them to compromise. These employees include not only those directly engaged in law enforcement, but a host of other employees such as attorneys, accountants, auditors, teachers, public officials, and judges. n31 In short, if this sort of important, but apparently unthreatened government interest can justify subjecting Customs employees to urine tests without any suspicion at all to believe the tests will reveal evidence of illegal drug use, then it would be similarly constitutional to impose urine searches on any federal employee occupying a position of trust and responsibility.

n31 In fact, in Executive Order 12564, the President has asserted that any illegal drug use, by any federal employee is "inconsistent not only with the law-abiding behavior expected of all citizens, but also with the special trust placed in such employees as servants of the public." 51 Fed. Reg. 32889 (September 17, 1986). In accordance with that finding, the Executive Order authorizes the random testing of any employee who occupies one of the broadly defined "sensitive" positions, the testing of an applicant for any federal position, and the testing of any federal employee, with production of urine samples under direct observation, where there is reasonable suspicion that the employee has used an illegal drug, whether on or off duty. Section 3, E.O. 12564, 51 Fed. Reg. at 32890.

Individualized suspicion, like the probable cause requirement generally, helps focus the most intrusive measures against the most likely guilty. Thus, only the most minimal interferences with Fourth Amendment interests, none of which could arguably be compared with urine searches, have been permitted in the absence of individualized suspicion. E.g., United States v. Martinez-Fuerte (brief stops of automobiles on highways near the international border to question occupants, but not to search); Colonnade Catering Corporation, supra; Biswell, supra; Donovan v. Dewey, supra (administrative inspections of commercial premises used in a closely-regulated industry); Camara, supra (administrative inspections pursuant to area warrants to determine compliance with housing code). n32

n32 This general rule -- that only the most minimal intrusions are permitted without individualized suspicion -- has two exceptions, neither of which is applicable here, and both of which permit searches of persons or property already lawfully seized and in police custody. The first is the historically based exception that permits the police to conduct a search incident to a valid arrest of the arrestee and any areas within his immediate control, in order to protect the officer and prevent destruction of evidence. Chimel v. California, 395 U.S. 752 (1969); Carroll v. United States, 267 U.S. 132, 158 (1925); Weeks v. United States, 232 U.S. 383, 392 (1914). The second exception is the so-called "inventory search," which is a non-investigatory "routine administrative caretaking function." South Dakota v. Opperman, 428 U.S. 364, 370 n.5 (1976). This exception permits the police to search the contents of automobiles and other property that has been lawfully seized in order to secure and protect the property while it is in police custody. Colorado v. Bertine, 107 S.Ct. 738, 741 (1987); Illinois v. Lafayette, 462 U.S. 640 (1983); South Dakota v. Opperman, 328 U.S. at 375-377.

The rationale of Martinez-Fuerte, Colonnade Catering, and the other cases -- that minimally intrusive and clearly necessary searches are reasonable where the vice of unbridled discretion is absent -- inevitably breaks down when the searches themselves become more intrusive, and when the government interests thought to justify them are not proven and weighty. This extraordinary exception to the requirement of at least individualized suspicion must be closely guarded, and must not be extended to cases where the intrusion into personal privacy is anything more than insignificant, lest more and more intrusive searches be undertaken against more and more innocent persons, thus returning society to the state that demanded the Fourth Amendment in the first place.

Contrary to the view of the lower court (Pet. App. 11a-12a), the notice and lack of discretion present under the Customs program do not particularly enhance its reasonableness, or make it comparable to the extremely limited intrusions this Court and some lower courts have permitted in the absence of any individualized suspicion. Notice and lack of discretion may be the factors that clinch the reasonableness of a relatively minor and demonstrably necessary invasion of privacy, such as a fixed checkpoint automobile stop, or submission to magnetometer procedures at airports or in public buildings. n33 However, these factors have little significance when the search procedure itself is especially invasive. Cf. United States v. Ortiz, 422 U.S. at 895 (noting that the greater regularity attending checkpoint search of cars "does not mitigate the invasion of privacy that a search entails"). n34

n33 United States v. Martinez-Fuerte; McMorris v. Alioto, 567 F.2d 897 (9th Cir. 1978); United States v. Bell, 464 F.2d 667 (2d Cir.), 409 U.S. 991 (1972).

n34 It could hardly be argued, for example, that if the government posted a sign at every federal building warning visitors that each and everyone of them would be subject to a frisk as a condition of entry, that would render the search procedure less intrusive or more reasonable.

As we have noted, the fact that no suspicion exists makes it certain that many more innocent than guilty employees will be subjected to the search, thereby making the procedure both more intrusive and less effective. n35 Similarly, as we explore further below, the notice factor dramatically diminishes any value the Customs program could have in detecting or deterring drug using employees from attaining covered positions.

n35 Cf. Delaware v. Prouse, 440 U.S. 648, 659-660 (1979) (noting that the practice of randomly stopping drivers for license checks is "ineffective means of promoting highway safety" because the number of licensed drivers that must be stopped in order to find one unlicensed one "will be large indeed").

Customs has never attempted to show any pressing or immediate need to conduct dragnet searches. It has utterly failed to demonstrate either that its objective of obtaining a "drug-free" workforce was ever in jeopardy, or that requiring individualized suspicion of drug use as a prerequisite to ordering a urine test would pose a significant obstacle to its accomplishment. Customs' claimed authority to conduct dragnet drug testing in the absence of these elements would therefore require this Court to expand radically the previously limited category of cases in which broad search programs are permissible.

In United States v. Martinez-Fuerte, for example, the Court upheld the authority of the Border Patrol to stop automobiles, but only to briefly question occupants about their citizenship, at fixed checkpoints near the international border with Mexico. In addition to observing the extremely limited nature of these intrusions, particularly given their proximity to the international border (428 U.S. at 558-560), the Court noted that the need to make such fixed checkpoint stops was great: the government had presented evidence that there were between 10 and 12 million illegal aliens in the country, that 85% of these were from Mexico, that because of the 200 mile border surreptitious entry was relatively easy, and that traffic checkpoints had been extremely effective in detecting illegal aliens. 428 U.S. at 551-554; see also United States v. Brignoni-Ponce, 422 U.S. at 878-879; Almeida-Sanchez v. United States, 413 U.S. at 276-277 (Powell, J., concurring). Furthermore, the Court was convinced that a requirement that stops be based upon reasonable suspicion would be impracticable to address the demonstrated problem because the heavy flow of traffic on major inland routes made particularized study of a given car impossible. n36

n36 Cf. Delaware v. Prouse, 440 U.S. at 662 (suggesting in dicta that roadblock stops to detect safety violations or intoxicated drivers might be reasonable). Unlike the highway situation, where close observation sufficient to permit a reasonable suspicion or probable cause standard is not possible, here, the supervisors have close and constant contact with employees, making it entirely possible to operate on an individualized suspicion standard.

Customs' generalized interest in a "drug-free" work-force stands in stark contrast to the government's pressing need to stem the tide of illegal entry into the United States that was not only articulated, but was established in Martinez-Fuerte. In this case, Customs had no reasonable grounds to believe the tests would reveal any significant drug use by Customs employees when it implemented the program, and its experience under the program confirms that it has no such reasonable ground now, almost two years later. The Commissioner himself has pronounced his own belief that the present work force is "largely drug-free" (J.A. 10), has conceded that "the extent of illegal drug use by Customs employees was not the reason for establishing this program" (id. at 15), and has assured employees that he "hope[s] and expect[s] to receive reports of very few positive findings through drug screening." Id. These statements are more than mere platitudes; Customs has offered no evidence of illegal drug use by current employees, its experience under the testing program confirms there is no such use, and it has offered no reason why illegal drug use will be a problem in the future that cannot be handled through the traditional employment devices that have always worked in the past. Surely, it should not be permitted to argue that such use is occurring in some significant way, entirely undetected, and then allowed to use that unsupported contention to justify searching employees for evidence of illegal drug use. n37

n37 References to the extent of illegal drug use in society at large cannot suffice to establish reasonable grounds to believe that drug use will be found among current Customs employees, particularly those who have competed and been selected to receive promotions. It is obviously inappropriate to resort to national statistics to establish a justification for searching a particular group, at least where that group has chosen a career in law enforcement and already has an established track record to the contrary. This is particularly true since all parties agree that if there were a significant drug problem at the Customs Service, it would manifest itself in decreased productivity, increased absenteeism, increased accidents, or some other objective phenomenon. See J.A. 110-111.

Moreover, the drug problem in society is not a new one that should cause the Customs Service to question the efficacy of existing methods for detecting or deterring the employment of drug users. While the extent of illegal drug use in our society has appropriately received increased attention in recent years as a serious law enforcement problem, for the most part, the number of users is declining. See National Institute on Drug Abuse, "Highlights of the 1985 Household Survey on Drug Abuse" (Nov. 1986), pp. 2-4. There is no evidence that the street drug problem has a parallel in the federal workforce. We urge the Court to reject the government's likely invitation to justify this intrusion into Fourth Amendment interests on the basis of an assortment of largely meaningless statistics concerning the extent of drug use in society.

In sum, permitting the government to subject large numbers of persons to intrusive searches without regard to individualized suspicion, and without demonstrating any immediate need to undertake such searches cannot be justified under the decisions of this Court. A search based on no suspicion at all is an extreme measure that should be reserved to the most pressing circumstances and the most limited intrusions. On the facts of this case, the Customs Service has failed to justify the radical dilution of the Fourth Amendment rights of its employees that it seeks.

3. Customs' Program Is Not Reasonably Related in Scope to its Stated Objectives Because It Has Other Less Intrusive Means to Address the Stated Problem, While the Program Itself Is Ineffective to Do So

In those cases where this Court has permitted searches to be conducted without any individualized suspicion, it has done so only because "the balance of interests precludes insistence upon 'some quantum of individualized suspicion'." Delaware v. Prouse, 440 U.S. at 654, quoting Martinez-Fuerte, 428 U.S. at 560. As we have noted, Customs has never attempted to show that it cannot achieve its goal if it is required to possess individualized suspicion of illegal drug use before imposing a drug test on its employees. Indeed, it seems to admit that it has achieved its goal heretofore without any drug testing at all, entirely consistently with traditional Fourth Amendment means. It must not be permitted to rest on unsupported assertions that those traditional employment devices are no longer sufficient to secure a drug-free workforce.

Moreover, Customs has no reasonable grounds to believe the testing program will reveal evidence of employee misconduct or prevent drug using employees from entering covered positions, because the program, as Judge Hill recognized in dissent below (Pet. App. 26a-27a), is entirely ineffective to meet these goals. As this Court observed in Delaware v. Prouse, in order to withstand constitutional scrutiny, a search must be in service of an important governmental interest and must be a "sufficiently productive mechanism to justify [its] intrusion upon Fourth Amendment interests." 440 U.S. at 658-59; see, T.L.O., 469 U.S. at 337 (individual privacy expectations must be balanced against "the government's need for effective methods to deal with breaches of public order") (emphasis added); Schmerber, 384 U.S. at 771 (noting that blood test is a "highly effective" means of determining level of intoxication).

The Customs drug testing program is not a "productive mechanism." The undisputed expert testimony plaintiffs supplied in this case established that virtually anyone who uses illegal drugs can avoid detection by temporary abstinence or, for more sophisticated drug users, by adulterating their samples. J.A. 60-61; 66; 70. On-the-job observation, background investigations, and urine tests conducted without notice, but with probable cause, are patently more effective and reliable than a urine test that can be frustrated at the subject's option.

Clearly, a search that can so easily be thwarted will not serve as an effective deterrent to prevent illegal drug users from seeking Customs positions (even assuming they would be interested in doing so). It simply defies common sense to assert that such individuals, who are not deterred from seeking covered positions by a thorough background investigation, or the knowledge that performance will be closely scrutinized and illegal drug use will result in their dismissal, would be deterred by an ineffective one-time urine test. Cf. Delaware v. Prouse, 440 U.S. at 659. n38

n38 The lower court's observations (Pet. App. 18a) that addicts may not be able to abstain and that employees may not be aware of the "fade-away effect" are frivolous. Customs does not need a urine testing program to uncover the addicts in its midst; assuming such addicts exist among current employees, it seems most unlikely (as the unrebutted expert testimony indicated) that addicts would both escape detection through observation, and also then be selected to receive promotions. See J.A. 61. Further, it is naive to assume that the determined casual drug user will not become aware quickly that he or she need only engage in a brief period of abstinence upon applying for a covered position, in order to escape detection. Even without that awareness, any user who could, that is, all but the most confirmed addict, would surely abstain from use when told that the position for which he or she has applied requires a drug test. That five-day minimum abstention period would, in virtually every case, result in a clean urine sample.

Of course, because the Customs Service seeks to both justify its program as a deterrent and implement it without any evidence that there is a problem to deter, the actual ineffectiveness of the Customs program can never be accurately measured, but only assumed. We do know that only an infinitesimal number of positive results have been recorded, among thousands of individuals tested. We would argue that this provides proof either that additional detection devices are unnecessary or that the drug tests are ineffective. The government, however, will argue that the low level of positive results demonstrates the program is a deterrent. Neither hypothesis can ever be proven empirically. By implementing its intrusive program without any clear indication of its necessity, the government is in the enviable position of being able to claim success whether or not it ever catches or deters anyone.

To summarize, the government's proffered justification for imposing this urine testing plan -- the need for further assurances that Customs employees in covered positions do not use illegal drugs -- is neither established in this case, nor served by the Customs program. This abstract and unproven justification may not serve as the basis for invading the privacy and dignity of thousands of Customs employees who, ironically, only seek the opportunity to serve their country in its battle against the traffic in illegal drugs.



CONCLUSION

The decision of the court of appeals should be reversed.

Respectfully submitted,

LOIS G. WILLIAMS *, Director of Litigation

* Counsel of Record

ELAINE D. KAPLAN, Assistant Director of Litigation, NATIONAL TREASURY EMPLOYEES UNION, 1730 K Street, N.W., #1100, Washington, D.C. 20006, (202) 785-4411, Attorneys for the Petitioners

MAY 1988