A Society of Suspects: The War on Drugs and Civil Liberties - Invading Privacy

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Written by Steven Wisotsky, Cato Institute

Invading Privacy

As these expanding law enforcement efforts -- directed at source of supply, transportation, and the upper levels of the drug industry -- yielded only marginal results, the war was widened to the general populace. In effect, the government opened up a domestic front in the War on Drugs, invading the privacy of people generally through the use of investigative techniques such as urine testing, road blocks, bus boardings, and helicopter overflights. Those are dragnet methods: to catch the guilty, everyone has to be watched and screened.

Drug testing in the workplace. Perhaps the most widespread intrusion on privacy arises from pre- or postemployment drug screening, which is practiced by 80 percent of Fortune 500 companies and 43 percent of companies employing 1,000 people or more,^[87] and is rapidly spreading.^[88] Strictly speaking, drug testing by a private employer does not implicate the Fourth Amendment, which protects only against government action. But much of the private drug testing has come about through government example and government pressure.^[89] The 1988 Anti-Drug Abuse Act,^[90] for example, prohibits the award of a federal grant or contract to an employer who does not take specified steps to provide a drug-free workplace. As a result of these and other pressures, tens of millions of job applicants and employees are sub jected to the indignities of urinating into a bottle, sometimes under the eyes of a monitor watching to ensure that clean urine is not surreptitiously smuggled into the toilet.

In the arena of public employment, where Fourth Amendment protections apply, the courts have largely rejected constitutional challenges to drug testing programs. In two cases to reach the U.S. Supreme Court, the testing programs were substantially upheld despite, as Justice Scalia wrote in dissent in one of the cases, a complete absence of "real evidence of a real problem that will be solved by urine testing of customs service employees."^[91] In that case the Customs Service had implemented a drug testing program to screen all job applicants and employees engaged in drug interdiction activities, carrying firearms, or handling classified material. Noting that "drug abuse is one of the most serious problems confronting our society today,"^[92] Justice Anthony Kennedy concluded that:

the government has demonstrated that its compelling interest in safeguarding our borders and the public safety outweigh the privacy expectations of employees who seek to be promoted to positions that directly involve the interdiction of illegal drugs or that require the incumbent to carry a firearm.^[93]

Accordingly, the Court held that the testing of such applicants and employees is "reasonable" even without probable cause or individualized suspicion against any particular person, the Fourth Amendment standard.

For Justice Scalia, however, the testing of Customs Service employees was quite different from the testing of railroad employees involved in train accidents, which had been found constitutional in the companion case.^[94] In the railroad case there was substantial evidence over the course of many years that the use of alcohol had been implicated in causing railroad accidents, including a 1979 study finding that "23 percent of the operating personnel were problem drinkers."^[95]

What is absent in the government's justifications -- notably absent, revealingly absent, and as far as I am concerned dispositively absent -- is the recitation of even a single instance in which any of the speculated horribles actually occurred: an instance, that is, in which the cause of bribe-taking, or of poor aim, or of unsympathetic law enforcement, or of compromise of classified information, was drug use.^[96]

Searches and seizures. Other dragnet techniques that invade the privacy of the innocent as well as the guilty have been upheld by the Supreme Court. In the tug-of-war between the government's search and seizure powers and the privacy rights of individuals, for example, the Court throughout the 1980s almost always upheld the government's assertion of power: the power of drug agents to use the airport drug courier profile to stop, detain, and question people without warrant or probable cause;^[97] to subject a traveler's luggage to a sniffing examination by a drug-detector dog without warrant or probable cause;^[98] to search without warrant or probable cause the purse of a public school student;^[99] and to search at will ships in inland waterways.^[100]

The right of privacy in the home was seriously curtailed in decisions permitting police to obtain a search warrant of a home based on an anonymous informant's tip;^[101] to use illegally seized evidence under a "good faith exception" to the exclusionary rule (for searches of a home made pursuant to a defective warrant issued without probable cause);^[102] to make a trespassory search, without a warrant, in "open fields" surrounded by fences and no trespassing signs^[103] and of a barn adjacent to a residence;^[104] to conduct a warrantless search of a motor home occupied as a residence;^[105] to conduct a warrantless search of a home on the consent of an occasional visitor lacking legal authority over the premises;^[106] and to conduct a search without warrant of the foreign residence of a person held for trial in the United States.^[107] The Court also validated warrantless aerial surveillance over private property^[108] -- by fixed-wing aircraft at an altitude of 1,000 feet and by helicopter at 400 feet.^[109]

Similarly, the Court significantly enlarged the powers of police to stop, question, and detain drivers of vehicles on the highways on suspicion with less than probable cause^[110] or with no suspicion at all at fixed checkpoints or roadblocks;^[111] to make warrantless searches of automobiles and closed containers therein;^[112] and to conduct surveillance of suspects by placing transmitters or beepers on vehicles or in containers therein.^[113]

The foregoing list is by no means comprehensive, but it does indicate the sweeping expansions the Court has permitted in the investigative powers of government. More recently, in what has been described as "the most important case of 1991,"^[114] the Court reviewed the constitutionality of the interrogation of a passenger and the "consensual" search of his baggage by armed officers in the close confines of a Greyhound bus.^[115] Raising profound questions about "what kind of a nation we are,"^[116] the case led one observer to note:

If the police are free to enter any bus at any time and ask any person for permission to search, they are also presumably free to station themselves at toll booths on turnpikes or rest areas on interstates and ask anybody about whom they are suspicious for permission to search his or her car. It is unlikely that large numbers of innocent people are going to deny the policeman's "request" . . . [because of their] belief that they will be better off to yield to the policeman than to challenge him.^[117]

Viewing the issue in a similar light, the Florida Supreme Court had ruled that the defendant's Fourth Amendment rights had been violated:

The evidence in this case has evoked images of other days under other flags, when no man traveled his nation's roads or railways without fear of unwarranted interruption, by individuals who held temporary power in the government. The specter of American citizens being asked, by badge-wielding police, for identification, travel papers . . . is foreign to any fair reading of the Constitution, and its guarantee of human liberties. This is not Hitler's Berlin, nor Stalin's Moscow, nor is it white supremacist South Africa.^[118]

Yet, when reviewed by the U.S. Supreme Court, this intrusive exercise of police power was upheld, like almost every other search and seizure case reviewed by the Court during the War on Drugs.

Indeed, from 1982 through the end of the 1991 term, the Supreme Court upheld government search and seizure authority in approximately 90 percent of the cases. The message is unmistakable: the Fourth Amendment prohibits only "unreasonable" searches and seizures, and what is reasonable in the milieu of a War on Drugs is construed very broadly in favor of local police and federal drug agents.

Surveillance of U.S. mail. Another casualty of the War on Drugs is the privacy of the mail. With the Anti-Drug Abuse Act of 1988, the U.S. Postal Service was given broad law enforcement authority. Using a profile, investigators identify what they deem to be suspicious packages and place them before drug-sniffing dogs. A dog alert is deemed probable cause to apply for a federal search warrant. If an opened package does not contain drugs, it is resealed and sent to its destination with a copy of the search warrant. Using this technique, the Postal Service since January 1990 arrested 2,330 persons for sending drugs through the mail.^[119] The number of innocent packages opened has not been reported.

Wiretapping. As a result of the War on Drugs, Americans are increasingly being overheard. Although human monitors are supposed to minimize the interception of calls unrelated to the purpose of their investigation by listening only long enough to determine the relevance of the conversation, wiretaps open all conversations on the wiretapped line to scrutiny. In the early 1980s court-authorized wiretaps rose 60 percent, primarily in cases of suspected drug trafficking.^[120]

All of the 872 wiretap applications submitted to federal and state judges in 1990 were approved, representing a 14 percent increase in wiretaps over 1989. The proportion of them aimed at drug offenders rose significantly -- from 50 percent in 1989 to 60 percent in 1990. Most of the intercepts -- 39 percent -- were for single-family homes, 17 percent for apartments, and 18 percent for businesses. Of 2,057 people arrested as a direct result of electronic surveillance in 1990, 420 were convicted.^[121] Some of the remaining cases are still pending.

Court-authorized wiretaps are doubtless necessary in some criminal cases. In drug cases, however, they are made necessary because the "crimes" arise from voluntary transactions, in which there are no complainants to assist detection. The potential is great, therefore, for abuse and for illegal overuse. The full extent of illegal wiretapping by law enforcement officials can never be fully known, of course. However, one example came to light in the report that "Connecticut State Police have for 15 years been recording virtually all telephone calls to and from police barracks . . . including attorney client conversations, without judicial authorization. . . ."^[122] Even if the number of such wiretaps is not large, the practice is a serious invasion of privacy.

Stopping cars on public highways. It is commonplace for police patrols to stop "suspicious" vehicles on the highway in the hope that interrogation of the driver or passengers will turn up enough to bootstrap the initial detention into a full-blown search. Because the required "articulable suspicion"^[123] can rarely be achieved by observation on the road, police often rely on a minor traffic violation -- a burned-out tag light, a tire touching the white line -- to supply a pretext for the initial stop.^[124] In the Alice-in-Wonderland world of roving drug patrols, however, even lawful behavior can be used to justify a stop. The Florida Highway Patrol Drug Courier Profile, for example, cautioned troopers to be suspicious of "scrupulous obedience to traffic laws."^[125]

Another tactic sometimes used is the roadblock. Police set up a barrier, stop every vehicle at a given location, and check each driver's license and registration. While one officer checks the paperwork, another walks around the car with a trained drug-detector dog. One journalist reported that:

under the watchful eyes of government attorneys, nearly 1,500 vehicles stopped last month by the Florida Highway Patrol for safety inspections were also checked for hidden contraband by drug-sniffing police dogs. . . . One drug arrest was made. Lady Luck and Citizen Band radios were suggested as possible causes for the lack of more arrests.^[126]

The law does not regard the dog's sniffing as the equivalent of a search on the theory that there is no legitimate expectation of privacy in the odor of contraband, an exterior olfactory clue in the public domain. As a result, no right of privacy is invaded by the sniff, so the police do not need a search warrant or even "probable cause" to use the dog on a citizen. If the dog "alerts," moreover, that supplies the "cause" requirement for further investigation of the driver or vehicle for drugs.

Monitoring and stigmatizing. In the world of antidrug investigations, a large role is played by rumors, tips, and suspicions. The Drug Enforcement Administration keeps computer files on more than 1.5 million persons, including U.S. congressmen, entertainers, clergymen, industry leaders, and foreign dignitaries. Many persons named in the computerized index system, known as NADDIS (Narcotics and Dangerous Drug Information System], are the subject of "unsubstantiated allegations of illegal activity." Of the 1.5 million persons whose names have been added to NADDIS since 1974, less than 5 percent, or 7,500, are under investigation by DEA as suspected narcotic traffickers. Nevertheless, NADDIS maintains data from all such informants, surveillance, and intelligence reports compiled by DEA and other agencies.^[127]

The information on NADDIS is available to federal drug enforcement officials in other agencies, such as the Federal Bureau of Investigation, the Customs Service, and the Inter nal Revenue Service. State law enforcement officials can probably also gain access on request. Obviously, this method of oversight has troubling implications for one's personal interest in privacy and good reputation, especially for the 95 percent named who are not under active investigation.

Another creative enforcement tactic sought to bring about public embarrassment by publishing a list of people caught bringing small amounts of drugs into the United States. The punish-by-publishing list, or "drug blotter," was supplied to news organizations. It included only smallscale smugglers who were neither arrested nor prosecuted for their alleged crimes.^[128]

Military surveillance. Further surveillance of the citizenry comes from the increasing militarization of drug law enforcement. The process began in 1981, when Congress relaxed the Civil War era restrictions of the Posse Comitatus Act on the use of the armed forces as a police agency.^[129] The military "support" role for the Coast Guard, Customs Service, and other antidrug agencies created by the 1981 amendments expanded throughout the 1980s^[130] to the point that the U.S. Navy was using large military vessels -- including, in one case, a nuclear-powered aircraft carrier -- to interdict suspected drug smuggling ships on the high seas.

By 1989 Congress designated the Department of Defense as the "single lead agency of the federal government for the detection and monitoring of aerial and maritime smuggling into the United States."^[131] DOD employs its vast radar network in an attempt to identify drug smugglers among the 300 million people who enter the United States each year in 94 million vehicles and 600,000 aircraft. Joint task forces of military and civilian personnel were established and equipped with high-tech computer systems that provide instantaneous communication among all federal agencies tracking or apprehending drug traffickers.^[132]

While most of the military effort is directed at coastal "defense" and foreign operations,^[133] some 3,000 National Guard troops are currently engaged in some aspect of domestic counter drug activity.^[134] The National Guard conducted a total of 5,815 domestic marijuana eradication missions in all 54 states and territories in FY 1991.^[135]

The enlarged antidrug mission of the military forces of the United States sets a dangerous precedent. The whole point of the Posse Comitatus Act was to make clear that military forces and police forces are very different institutions with different roles to play. The purpose of the military is to prevent or defend against attack by a foreign power and to wage war where necessary. The Constitution makes the president commander-in-chief, thus centralizing control of all the military forces in one person. Police forces, by contrast, are intended to enforce the law, primarily against domestic threats, and primarily at the city, county, and state levels; they are thus subject to local control by the tens of thousands of communities throughout the nation.

To the extent that the drug enforcement role of the armed forces is expanded, there is a direct increase in the concentration of political power in the president who commands them and in the Congress that authorizes and funds their police activities. This arrangement is a severe injury to the federal structure of our democratic institutions. Indeed, the deployment of national military forces as domestic police embarrasses the United States in the international arena by likening us to a Third World country, whose soldiers stand guard in city streets, rifles at the ready, for ordinary security purposes. The United States demeans itself by following their example. Ted Galen Carpenter notes that:

one of [America's] greatest strengths is that the military is responsive to civilian authority and that we do not allow the Army, Navy, and the Marines and the Air Force to be a police force. History is replete with countries that allowed that to happen. Disaster is the result.^[136]

Finally, the dual military/policing role is also a danger to the liberties of all citizens. A likely military approach to the drug problem would be to set up roadblocks, checkpoints, roving patrols on the highways, railroads and coastal waters, and to carry out search and destroy missions of domestic drug agriculture or laboratory production. What could be more destructive to the people's sense of personal privacy and mobility than to see such deployments by Big Brother?

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