Skinner v. Railway Labor Executives' Assn.

SKINNER, SECRETARY OF TRANSPORTATION,

et al. v. RAILWAY LABOR EXECUTIVES’

ASSOCIATION et al. Argued No. 87-1555. November 1988 Decided March Court, Rehnquist, in which Kennedy, J., opinion of the delivered the Scalia, JJ., O’Connor, joined, White, Blackmun, J.,C. Stevens, Stevens, J., J., joined. Part III of which portions all but concurring judgment, post, part and concurring in opinion filed an Brennan, J., Marshall, J., dissenting opinion, in which filed a p. 634. post, p. 635. joined, the cause for peti- Thornburgh argued General

Attorney Fried, Assist- General were Solicitor the briefs tioners. On Bolton, General Solicitor Deputy General Attorney ant General Attorneys Spears Assistant Merrill, Deputy Schaitman, Marc Robbins, Leonard Lawrence S. Cynkar, and Daniel Vance, Mark Rickman, Lindsey, B. S. Wayne Smith. Carey respondents. the cause for Mann argued

Lawrence M. Harold A. David Holsberry, W. him on the brief were With Miller III.* J. Ross, and Clinton American filed for the urging reversal were curiae *Briefs of amici Bliss; the Bendiner-Sehle- by T. for Donald Transit Association Public Judge; for the Evans and William J. Laboratory by David G. et al. singer Schachter; Equal by for Victor Employment Law Council California Williams, Mc- Douglas S. by E. Advisory Robert Council Employment Dodge; the National Railroad E. Dowell, Yohay, Garen and Stephen C. Griswold; Legal Pacific N. for the by Erwin Corporation et al. Passenger Caso; Anthony T. for the Private A. Zumbrun by Ronald Foundation Susser, H. Inc., by Peter A. William America, et al. Truck Council opinion the Court. delivered Kennedy Justice Safety of 1970 authorizes Act Railroad The Federal necessary, ap- “prescribe, Transportation Secretary as regulations, for all and standards propriate orders, rules, 431(a). § safety.” 45 U. S. C. 84 Stat. of railroad areas employees by Finding abuse that alcohol safety, Railroad Admin- poses the Federal threat to a serious (FRA) regulations promulgated that mandate has istration employees in cer- who are involved tests of and urine blood adopted regulations has The FRA also train accidents. tain require, railroads to administer authorize, but do that do not employees certain who violate tests to and urine breath by presented safety question is whether this case The rules. Fourth Amendment. violate the these

I A problem railroads is as old American use on of alcohol by industry rules it carrier to deter itself, and efforts as many years, century ago. began railroads For at least possessing operating employees prohibited alcohol from have consuming duty alco- being and from while on intoxicated or duty. being subject beverages More called for while holic recently, expanded proscriptions to forbid have been these drugs. are These restrictions possession use of certain Frick, Friedlander; Jr., Alan B. and for Borghesani, G. William Jr., Kester, L. Buckley, Stephen John J. John G. by Colley et al. Thomas Glod, Sammons, Appier, I. Stanley Charles Urbanczyk, J. William C. Katz, Bertram D. Pope, L. Bright, W. William L. Robert Thomas Fisher. were filed for the American amici curiae urging affirmance Briefs Powell, Holzhauer, John A. Ste- D. James et al. Liberties Union Civil Chen; Grossman, M. Harvey and Edward and for the Shapiro,

phen R. Organizations Congress of Industrial of Labor and American Federation and Laurence Gold. David Silberman & Pilots Associa- Raphael filed a brief for the Aircraft Owners D.

Scott amicus curiae. tion as industry-wide operating pro- rule anG,” in “Rule

embodied mulgated are Railroads, of American the Association by virtually every railroad formulations, in enforced, various customary country. Rule viola- in The sanction for G tions is dismissal. expressed July concern that these indus-

In the FRA drug try adequate curb alcohol and abuse efforts were not pointed employees. The FRA to evidence indi- railroad problem cating on-the-job significant intoxication was industry.1 found, in The FRA also after a re- the railroad reports, investigation that from 1972to 1983 view of accident significant experienced at least “the nation’s railroads drug probable involving alcohol use as a train accidents contributing factor,” and that these accidents “re- cause or injuries, property 61 non-fatal fatalities, sulted in 25 (approximately damage million million $27 estimated at $19 (1983). dollars).” Reg. FRA The fur- 48 Fed. operating 17 fatalities to em- identified “an additional ther working rolling ployees rail stock that involved on or around light drugs contributing In Ibid. as a factor.” alcohol or problems, FRA solicited comments from interested these problems parties regulatory approaches to the on a various throughout abuse the Nation’s alcohol and system. response request to this indicated Comments submitted relatively number able to detect a small that railroads were owing, primarily, practice to their violations, of Rule G study examining scope of alcohol abuse FRA that a 1979 The noted every eight out of major “[a]n railroads found that estimated one on seven study year.” duty during at least once while on railroad workers drank addition, reported In “5% of workers to work Reg. 48 Fed. study year,” ‘very duty ‘very got drunk’ on at least once drunk’ or reported to work at least ‘a little drunk’ one or more “13% of workers Ibid. study that 23% of the during period.” also found times drinkers,” only 4% of these personnel “problem were but operating program, receiving help through employee assistance employees “were Ibid. through disciplinary procedures.” were handled and even fewer by supervisors relying and co-workers to en- on observation (1984). Reg. 49 Fed. 24266-24267 At the force the rule. “industry participants time, . . . confirmed that alcohol same drug unacceptable [did] railroads with and use occur “sug- frequency,” all and available information from sources gested] problem ‘pockets’ drinking included] and that the (before multiple drug involving crew and dur- use members work), reporting ing sporadic cases of individuals to work impaired, repeated drinking drug use individual employees chemically psychologically dependent who are or at “Even Id., on those substances.” 24253-24254. without testing,” regular post-accident the FRA the benefit of “iden- injuries property millionin fatalities, tified 34 over $28 dollars) (in damage the errors of that resulted from alco- employees drug-impaired in 45 train accidents and hol period during through Id., train incidents 1983.” at in 24254. of these accidents resulted the release of Some ensuing pollution and, in one case, hazardous materials required community. the evacuation an entire Louisiana safety In Id., 24254, 24259. view of the obvious hazards employees, use the FRA an- and alcohol promulgate nounced June 1984 its intention to federal regulations subject. on the

B reviewing representatives After further comments from industry, groups, general public, labor the railroad and the promulgated regulations addressing FRA, 1985, problem drugs of alcohol and on the railroads. The final regulations apply employees assigned perform to service subject Act, Hours of Service ch. 34 Stat. § seq. regulations pro- amended, as 45 U. C. 61 et S. The employees using possessing hibit covered from or alcohol or §219.101(a)(1) (1987). any controlled substance. 49 CFR regulations prohibit employees The further those from re- porting of, for covered service while under the influence or by, having

impaired alcohol concentra- alcohol, while blood of, while the influence or im- more, tion of 0.04 or or under §219.101(a)(2). paired by, any controlled substance. authority a railroad’s restrict, however, do not presence prohibition impose on the of alcohol an absolute body persons employ, any drug in the fluids of its §219.101(c), they accordingly, “replace do Rule G or and, Reg. 50 Fed. render it unenforceable.” regula- subparts pertinent here, two To the extent testing. Subpart entitled “Post- which is C, tions relate to mandatory. provides ToxicologicalTesting,” It is Accident steps practicable all to assure that railroads “shall take directly employees . . . of the railroad involved all covered samples toxicological testing provide urine for blood and 219.203(a), specified § upon the of certain occurrence FRA,” following “major testing required Toxicological a is events. any in- accident that is defined as train accident,” which train (ii) (i) fatality, hazardous material ac- the release of a volves (iii) injury, reportable companied by or an evacuation or §219.201 property damage $500,000or more. to railroad (a)(1). collecting duty blood further has the The railroad “impact samples accident,” after an for and urine reportable in- in a that results as a collision is defined which property damage $50,000 or more. jury, to railroad in or 219.201(a)(2). obligated Finally, § to test railroad is also any fatality to on- “[a]ny that involves a incident train after §219.201(a)(3). employee.” duty railroad duty to its which activates of an event After occurrence transport and other members all crew must test, the directly inci- employees in the accident involved covered facility, blood and independent where both medical to an dent employee.2 After each samples from be obtained must urine rail testing “if the from exception a limited provide The determine, specific in immediately on the basis representative road can cause(s) of the accident/ no role formation, employee had made, §219.203(a)(3)(i) may exception No incident.” 49 CFR required samples collected, been the railroad is to have laboratory by prepaid freight ship FRA them air to the 219.205(d). samples analyzed § analysis. There, are using equipment techniques” to detect “state-of-the-art proposes drugs.3 The FRA measure alcohol analysis samples, place primary as blood reliance on of blood body provide only . . can a clear “the available fluid . drugs only presence alcohol and but indication Reg. impairment effects.” 49 Fed. also their current (1984). samples necessary, because however, are also Urine longer blood, in the urine than traces remain employees possible transport to a cases it will not be some drugs facility it certain before the time takes for medical In instances, those be eliminated from bloodstream. “positive specific taken with information on the test, urine particular drug pattern in- and other of elimination for the employee behavior of the and the circum- formation on the accident, be crucial to the determination stances of the the cause of an accident. Ibid. of” notify employees regulations require that the FRA opportunity to re- of the tests and afford them an the results any investigative writing preparation spond in final before 219.211(a)(2). § pro- report. Employees who refuse to See perform required samples may not cov- blood or urine vide Ibid. however, “major In promulgating in the case of a train accident.” that, possible regulations, the FRA noted while it is sometimes to ex- especially calling testing, in other situations for it is onerate crew members degrees of fault in aftermath of the more difficult to assess fault and Reg. substantial accidents. See 50 Fed. Administration, Dept, Federal Railroad United States of Trans See Oper in portation Drug Manual: of Alcohol and Use Railroad Field Control (Field Manual). (1986) by Ethyl gas chro ations B-12 alcohol is measured addition, Ibid. may matography. In while screens be conducted immunoassays techniques, “[pjositive drug findings are confirmed or other tests, Ibid. These prop if by gas chromatography/mass spectrometry.” conducted, identify presence drugs biological in the erly of alcohol and accuracy. samples great tested with they months, but are entitled to a hear- service for nine

ered §219.213. ing concerning to take the test. their refusal regulations, Subpart “Authori- D of the which is entitled permissive. It authorizes rail- Cause,” Test for is zation to require employees to submit to breath or covered roads in not addressed Sub- urine tests certain circumstances (1) may part both, or or be ordered tests, C. Breath urine supervisor reportable a incident, or where after a accident suspicion” employee’s acts or has a “reasonable that an omis- severity or of the acci- sions contributed to the occurrence (2) §219.301(b)(2); or the event of certain incident, dent or including noncompliance signal specific with a violations, rule 219.301(b)(3). § may speeding, A railroad also and excessive require supervisor a breath tests where a has “reasonable employee suspicion” alcohol, that an is under influence of personal concerning ap- upon specific, observations based speech, body employee. pearance, behavior, odors of the 219.301(b)(1). § impairment suspected, a railroad, Where only supervi- require tests, urine but if two addition, §219.301(c)(2)(i), appropriate determination, make the sors supervisors suspect impairment to a sub- where the due and, supervisors at least one alcohol, stance other than of those specialized training detecting signs have received must §219.301(c)(2)(ii). drug intoxication, Subpart provides D further that whenever the results discipli- intended in a breath or urine tests are for use either given opportu- nary proceeding, employee must be analysis independent sample nity provide at an blood 219.303(c). § employee facility. If an declines to medical may presume impairment, sample, give a blood contrary, positive persuasive to the from absent evidence showing residues in the urine. The of controlled substance pre- provide however, detailed notice of must, railroad right sumption employees, and advise them of their to its sample. provide contemporaneous in blood As the case a Subpart regulations samples procured set forth C, under the samples, require and that procedures for the collection analyzed by samples method that is reliable within “be §219.307(b). tolerances.” known

C Railway Respondents, Association Labor Executives’ the brought organizations, the member labor various of its and the North- District for in the States Court suit United instant regula- enjoin seeking FRA’s California, ern District grounds. statutory In a and constitutional various tions ruling summary granted District Court bench, the from the petitioners’ concluded judgment The court favor. integrity of employees in the a valid interest “have railroad protection Fourth under deserved bodies” that their own held, App. The court Pet. for Cert. 53a. Amendment. by competing outweighed interest was however, that this promotion of governmental . . . “public interest safety employees, safety, safety railway for . . . ” transportation. Id., public general with that is involved respondents’ other con- found Court 52a. The District statutory arguments meritless. stitutional Appeals panel Ninth Cir for the Court A of the divided Railway v. Burn Assn. Labor Executives’ reversed. cuit that tests held, first, ley, The court F. 2d 575 authority by conferred in reliance on mandated impli Subpart action to by Government D involve sufficient blood, and breath, Amendment, the Fourth cate contemplated Fourth are the FRA tests urine “agre[ed] that the exi also The court searches. Amendment gencies drugs presence of alcohol and for the precludes prompt require action which urine or breath blood, further held obtaining court Id., at 583. The a warrant.” employees’ interest of railroad “accommodation government safety does significant concerns requirement,” probable and, require cause to a adherence contemplated legality accordingly, the searches that the on their reasonableness under FRA depends Id., at 587. all the circumstances. concluded, however, suspi- particularized

The court of rail- finding toxicological cion is essential Ibid. A of indi- reasonable. requirement road employees stated, would “no impose the court vidualized suspicion, id., burden on the government,” insuperable are confined to the detection of would ensure that the tests of discovery than to the “the current rather impairment, which are not evidence of cur- metabolites of various drugs, remain for or body days rent intoxication and may Id., at 588-589. drug.” weeks after ingestion urine tests breath and authorizing for the Except provisions impairment, or alcohol on a “reasonable suspicion” (c)(2) §§219.301(b)(1) (1987), the FRA regulations CFR and, ac- individualized suspicion, showing did not require them. the court invalidated cordingly, He criticized the majority Alarcon dissented. Judge and for fo- interests” balancing “failing] engage [a] of the on the “solely degree impairment instead cusing 2d, F. at 597. The dissent interests.” workers’ privacy need to compelling have held that “the government’s would railway use by controlling drug among railroad safety assure interests.” protect privacy the need to outweighs personnel Id., at 596. for a writ certio- petition the federal parties’

We granted (1988), regula to consider whether 486 U. S. 1042 rari, the Fourth the Court of violate Appeals tions invalidated We now reverse. II Amendment. right “[t]he Amendment provides

The Fourth and ef- houses, in their persons, papers, to be secure people seizures, shall not searches and unreasonable fects, against the pri- The Amendment guarantees violated . . . certain ar- security persons against vacy, dignity, the Government bitrary officers of acts invasive Municipal Court acting Camara at their direction. those (1967). Dela- also 528 See Francisco, 523, U. S. 387 San (1979);United States 648, 653-654 440 S. Prouse, U. v. ware (1976). we Before 543, S. Martinez-Fuerte, 428 U. v. question reasonable under in are tests whether consider inquire tests whether the must Amendment, we the Fourth agents, and its to the Government or are attributable to they turnWe to searches or seizures. amount whether those matters.

A apply to a Although Amendment does the Fourth by pri- arbitrary a one, effected an seizure, or even search protects party initiative, the Amendment his own on vate against private party instru- as an if the acted such intrusions agent States See United Government. of the or ment (1984); Coolidge New 113-114 109, S. Jacobsen, 466 U. (1971). also Burdeau v. Hampshire, 443, 487 See 403 U. S. (1921). com- that A railroad 465, McDowell, 256 U. S. regulations Subpart provisions does plies C the sovereign authority, by compulsion the lawfulness so by Petition- the Fourth Amendment. acts is controlled of its im- is not the Fourth Amendment however, contend, ers nothing regulations, by Subpart plicated as Sub- D of the any testing private compels part railroads. D unwilling of this facial conclude, in the context are We by private required challenge, urine tests breath and implicate Subpart D will not reliance railroads party private should be Whether a Amendment. Fourth agent instrument of the Government or deemed degree necessarily purposes on the turns Amendment Fourth party’s private participation activ- in the of Government’s (1949) Lustig 78-79 S. States, U. cf. v. United ities, Byars opinion); (plurality States, U. S. v. United light only (1927), question “in be resolved that can 32-33 supra, Hampshire, Coolidge Newv. circumstances,” all the compelled a has not that the Government The fact at 487. estab- itself, perform not, does private party a search specific features private Here, one. is a the search lish that Govern- regulations us to convince combine position passive the un- adopt toward than more ment did private derlying conduct. pre-empt Subpart including D, regulations, those subject covering same or laws, rules,

state §219.13(a) super- (1987), are intended 49 CFR matter, agreement, bargaining “any provision of a collective sede agreement,” construing 50 Fed. such an award arbitration right upon They the FRA Reg. also confer procured samples biological test results to receive certain §219.11(c). Subpart In addi- by pursuant D. to railroads compro- may otherwise of, itself not divest tion, a railroad Subpart authority D. As conferred contract, mise “authority for the explained, ... is conferred such the FRA may safety, public a railroad promoting purpose pro- duty way to with its inconsistent in a itself not shackle (1985). Reg. Nor is safety.” public 31552 50 Fed. mote the request employer’s to employee his to decline free a covered forth set conditions under the tests breath or urine to submit 219.11(b). employee § to refuses An who Subpart D. See covered service. from be withdrawn the tests must submit to App. 18. Field Manual to See accept peti- unwilling provisions, to we light are In of these by private railroads tests conducted submission tioners’ pri- primarily Subpart the result D will be in reliance legal barri- all removed has The Government vate initiative. by Subpart has and indeed D, authorized ers to the testing, strong preference but also only for plain its made addition, In intrusions. of such fruits to share the its desire away bargain the au- railroads not that the it has mandated by Subpart are granted D. These thority perform tests to encouragement, endorse- indices Government’s clear implicate the Fourth participation, and suffice to ment, Amendment.

B here, the Government precedents where, as teach that Our person, the Fourth physical from a evidence seeks obtain g., See, e. may levels. (1973). at several relevant Amendment initial 81, 410 U. S. Dionisio, v. States United may necessary procure be a seizure evidence detention Murphy, 294-295 291, Cupp 412 U. S. person, v. of the (1973); (1969),if Mississippi, 721, 726-727 394 U. S. v. Davis his meaningful interference amounts to the detention Delgado, 210, S. v. INS movement. freedom of supra, 113, n. 5. Ob- (1984); at Jacobsen, v. States United see examining search, be a taining also evidence Dionisio, Murphy, supra, v. Cupp 295; United States at v. pri- expectation infringes doing supra, if so 8, 13-14, recognize reasonable, see, society prepared as vacy (1988); Greenwood, 486 U. S. g., v. e. California supra, at 113. Jacobsen, v. States United intrusio[n] “compelled into long recognized We have analyzed must be body content” for to be alcohol blood v. See Schmerber search. Amendment a Fourth deemed (1966). also Winston See 757, 767-768 384 U. S. California, society’s light our In Lee, U. S. Terry g., security person, e. see, one’s for the concern physical (1968), it is obvious that 9 1,S. Ohio, expecta- infringes penetrating skin, beneath intrusion, recognize society prepared as rea- privacy is tion sample analysis ensuing to ob- of the chemical sonable. tested of the physiological a further invasion data is tain 480 Hicks, v. privacy Arizona employee’s Cf. interests. (1987). of the is Much same true 321, 324-325 U. S. Subpart required breath-testing procedures D under breathalyzer person test, Subjecting to a regulations. “deep production requires alveolar or generally which lung” g., analysis, v. e. see, for chemical breath California

617 (1984),implicates 479, 467 481 similar Trombetta, U. S. con bodily integrity like the and, cerns about blood-alcoholtest Schmerber, we should also be search, considered deemed a (1987). 2.6(a), § p. see 1 W. 463 LaFave, Search Seizure (CA9 Anchorage, 1447, See also Burnett v. 806 F. 2d 1449 1986); (CA3), Handel, 1136, Shoemaker v. 795 F. 2d 1141 cert. denied, 479 U. S. 986 blood-testing procedure

Unlike Schmerber, at issue in procedures prescribed by the FRA for col- lecting testing samples surgical urine do not entail a body. disputed, intrusion into however, It is not analysis chemical urine, blood, like that of can reveal a private employee, including host of medical facts about an epileptic, pregnant, whether he or she is or diabetic. Nor disputed process collecting sample can it be that the which in some cases tested, involve visual or aural monitoring implicates privacy urination, of the act of itself in- Appeals terests. As the for the Fifth Court Circuit has stated: society personal

“There are few activities our more private passing people than the of urine. Most describe they by euphemisms it if talk about it at all. It is a func traditionally performed public tion without observation; performance public generally prohibited indeed, its Treasury law as well as social custom.” National Employees 170, 175 (1987). Union v. Von Raab, 816F. 2d Because it is clear that the collection and of urine in- upon expectations society long trudes has rec- ognized Appeals reasonable, as the Federal Courts of have unanimously, agree, concluded and we that these intrusions must be deemed searches under the Fourth Amendment.4 4 See, g., (CA6 Chattanooga, e. Lovvorn v. 1539, 1988); 846 F. 2d Copeland Philadelphia (CA3 Dept., Police 1139, v. 1988), F. 2d Railway 88-66; Labor pending cert. No. Burnley, Executives’ Assn. v. (CA9 1988) (case F. 2d Napper, Everett below); 833 F. 2d (CA11 1987); McKenzie, Jones 85, 88, App. 266 U. S. D. C. 833 F. 618 subse- the collection that our conclusion

In view of samples biological be requisite must analysis quent of the not charac- searches, we need Amendment Fourth deemed with the em- employer’s interference antecedent terize independent Fourth as an ployee’s movement freedom every precedents indicate, not As our seizure. Amendment freedom individuál’s with an governmental interference is a that there concerns constitutional raises such movement supra, Dionisio, v. person. States See United of the seizure by though con- subpoena, jury (grand enforceable at 9-11 person); States United tempt, a seizure not effect does (same). (1973) present pur- For 21 19, 410 U. S. Mara, v. employee’s any limitation on poses, to note it suffices necessary blood, to obtain is of movement freedom regulations by contemplated samples urine, breath assessing the intrusiveness considered must be testing program. Cf. by the Government’s effected searches (1983). 696, 707-709 Place, 462 U. S. v. States United I—! t—I I—f A applicable Amendment the Fourth To hold testing prescribed the FRA alcohol Raab, 816 v. Von Treasury Employees Union (1987); National 335, 338 2d 656; part, post, McDonell (CA5 p. v. 1987), 170, pertinent aff’d 176 F. 2d Amalgamated (CA8 Division 1987); Hunter, 1302, 1307 241 F. 2d 809 denied, (CA7), 1264, cert. 1266-1267 F. 2d Suscy, Transit Union v. Power Washington Public (1976). also Alverado See U. S. 427, (1988), 434, cert. P. 2d 432-433 Supply System, Wash. 2d 88-645. pending, No. as a Fourth sample might also be characterized Taking a blood or urine meaningful interference seizure, viewed as it since Amendment bodily fluids. Cf. United in his possessory interest employee’s with the necessary Jacobsen, our It is not 466 U. S. States however, taking of blood or case, urine to characterize analysis in this pro- expectations fluids, bodily for the of those samples as seizure by our into account adequately taken are characterization tected are searches. that such intrusions conclusion

619 only begin inquiry governing into the standards such (1987) Ortega, 480 709, intrusions. O’Connor v. U. S. 719 (plurality opinion); Jersey T. L. O., New v. 469 325, U. S. (1985). proscribe 337 For the Fourth Amendment does not only all searches and but those that seizures, are unreason Sharpe, (1985); able. v. 675, United States 470 U. S. 682 v. California, S., Schmerber 384 U. at 768. What is reason “depends able, course, on all of the circumstances sur rounding the search or seizure and the nature of the search or Montoya seizure itself.” United States v. de Hernandez, 473 (1985). permissibility particu 531, U. S. 537 Thus, of a practice judged by balancing lar “is its intrusion on the indi against promotion vidual’s Fourth Amendment interests its legitimate governmental interests.” Delaware v. Prouse, S., 654; at v. United States Martinez-Fuerte, 428 (1976). U. 543 S.

In most cases, criminal we strike this balance favor of procedures described the Warrant Clause of the supra, Fourth Amendment. See v. Place, United States at 701, 2; and n. United v. States United States District Court, (1972). Except

407 315 297, U. S. certain well-defined cir cumstances, search or seizure in such a case is not reason accomplished pursuant judicial able unless it is to a warrant upon probable g., Payton See, issued cause. e. v. New (1980); Mincey 445 York, 573, U. S. v. Arizona, 437 recognized exceptions 385, U. S. We have ‘special beyond however, rule, needs, “when the normal probable- enforcement, need for law make the warrant and requirement impracticable.’” cause v. Wisconsin, Griffin (1987), quoting Jersey 483 U. S. New v. T. L. O., supra, concurring judgment). at J., (Blackmun, special needs, When faced with such we have not hesitated to governmental balance the interests to assess the practicality probable-cause requirements of the warrant and particular g., in the See, context. e. v. Wisconsin, Griffin (search home); supra, probationer’s at 873 New York v. (1987)(search premises of Burger, 691, 699-703 482 U. S. businesses); Ortega, regulated highly O’Connor certain (work-related employees’ supra, desks searches 721-725 supra, offices); Jersey O., T. L. at 337-342 New and (search officials); property Bell v. school of student’s Wolf (1979) (body cavity searches of 558-560 ish, U. S. inmates). prison regulating of in the conduct interest

The Government’s supervision safety, of employees its like to ensure operation regulated of a industries, or its probationers or ‘spe- presents prison, government “likewise school, or office, may justify beyond that law enforcement needs’ normal cial departures probable-cause re- and usual warrant from the supra, The quirements.” Wisconsin, at 873-874. v. Griffin employees the FRA covered service hours of concerning handling persons engaged train orders in include engaged operating in main- those the crews, and movements, systems. Reg. signal repair 50 Fed. tenance (1985). undisputed em- and other covered that these It is safety-sensitive engaged The FRA so ployees tasks. in are argument. point respondents oral the conceded found, and recognized, Arg. the whole we have 46-47. As Tr. of Oral length “[t]he premise Act that of the Hours of Service efficiency of the relation to the has direct hours of service property protection [of] upon agencies life and which human necessarily depends.” ICC, R. & Ohio Co. Baltimore Atchison, F. R. T. & S. Co. also 612, See U. S. (1917)(“[I]t must be re- States, U. S. v. United prevent purpose the act was to membered that the employee necessarily dangers and to arise to which must dangerous continuing public and hazardous men in a from give long periods them unfit to as to render so business protection of themselves essential to service which is care”). their those entrusted to toxicological prescribed tests, not to assist FRA has The prevent employees, prosecution acci- but rather “to operations from that result in railroad casualties dents and drugs.” employees 49 CFR or impairment alcohol §219.1(a) (1987).5 ensuring governmental interest This employees traveling public them- safety employees prohibiting justifies from plainly covered selves subject being duty, drugs using or while alcohol justifies] “require[s] duty. also interest This called for supervision are that the restrictions to assure exercise of supra, Wisconsin, at 875. in fact observed.” Griffin question the Government’s then, is whether remains, justifies compliance restrictions with these need to monitor privacy individual- a warrant or issue absent intrusions at suspicion. ized

B pro- requirement purpose is to a warrant An essential subject by assuring to a search citizens interests tect [Subpart sample provided under regulations provide “[e]ach 5 The of the accident following the date than six months retained for not less C] is upon party litigation ... may be made available or incident and . . . .” 49 process on the custodian compulsory appropriate of service 219.211(d) (1987). explained, promulgated when it FRA § CFR pur its own samples primarily “for retain such that it intends to provision, laboratory reported (e. sample reanalysis a if another permit of poses g., to ” procedure). 50 Fed. original in the tested for a not detection of substance (1985). broadly to author provision might be read While this Reg. 31545 authorities, the law enforcement biological samples to ize the release been, be, actually has so intended to or that it was not disclose record does might be Indeed, that test results respondents generally aver while used. authorities, Respondents Brief for to law enforcement made available any part of the provision, or other seriously that this they contend do not scheme, ‘pretext’ to enable law enforce designed as “a was administrative New York v. penal law violations.” evidence of gather to ment authorities (1987). 691, 716-717, persuasive show n. 27 Absent Burger, 482 U. S. the FRA’s pretextual, we assess testing program is FRA’s ing that the purpose. We leave for an administrative light in of its obvious scheme evi prosecutions in use criminal day question whether routine other give rise to an would the administrative scheme pursuant to dence obtained nature of the impugn the administrative pretext, or otherwise inference program. FRA’s arbi- the random or are not intrusions such

or seizure agents. A assures government warrant trary acts it law, and intrusion is authorized citizen g., scope. objectives See, e. narrowly in its limited is supra, v. Chad- Burger, States 703; at United v. New York Municipal (1977); v. Court Camara 1,S. wick, 433 U. provides also A warrant at 532. S.,U. Francisco, 387 San scrutiny magistrate, and thus en- aof neutral detached jus- an intrusion objective whether determination sures Chadwick, any given States case. See United in tified present context, however, warrant supra, In the 9. Both circum- these further aims. little to do would permissible toxicological justifying stances narrowly specifically defined are such intrusions limits of well are and doubtless them, that authorize in the Biswell, employees. United States Cf. covered known to light in of the Indeed, standard- 311, 316 S. vested discretion the minimal the tests and nature of ized program, administering vir- there charged are those tually magistrate Col- to evaluate. Cf. for a neutral no facts (1987) (Blackmun, 367, 376 479 U. S. Bertine, orado v. J., concurring).6 permit the exer example, does regulations, for 6 Subpart C testing, must submit to employees who choosing any discretion cise by objective only if warranted and then circumstances

except in limited D, conferring some discretion while Subpart supra. n. See criteria. imposes spe testing, also may required to submit be who choose those employees Covered of that discretion. the exercise cific constraints they only if been have breath or urine tests to submit to required errors, if acts or their violations or specified rule directly involved severity specified acci occurrence contributed or omissions necessarily be used sure, must some discretion To be or incidents. dents to the contributed employee’s acts or omissions determining whether an in objec of event, assessment the severity but limited of occurrence or dis devolve unbridled not surrounding the event does tive circumstances Barlow’s, Inc., v. Cf. Marshall the field. supervisor the in upon cretion (1978). 307, 323 U. S. any pos- safeguards against addition, contain various the In post- requires that A abused. will sibility discretion be that government’s the moreover, that recognized, have We its requirement is at warrant the dispensing with in interest obtaining a warrant of “the burden here, strongest when, as the purpose behind governmental the likely to frustrate is Francisco, Municipal San Court v. Camara of search.” S., 469 U. Jersey O., L.T.v. New also supra, See 533. at theAs Dewey, S. 452 U. v. Donovan 340; at from drugs are eliminated other recognized, alcohol FRA Reg. 24291 Fed. rate, see constant at a the bloodstream samples to measure taken breath (1984), blood a when in the bloodstream were substances these whether possi as soon as must obtained occurred event triggering 770-771. S., at U. California, Schmerber See ble. urine the drugs in remain some of metabolites Although the to es FRA may enable time periods of longer drugs impaired those employee was whether timate violation, rule incident, or accident, a covered time at the procure necessary delay to (1984), the Reg. 24291 Fed. valu destruction result nevertheless warrant evidence. able to set private rely railroads on need The Government’s insistence indicates also motion testing process impede achievement requirement would a warrant like school supervisors, objective. Railroad Government’s 339-340, and supra, at O., T. L. Jersey v. New see officials, Ortega, S., see O’Connor administrators, hospital investigating violations business in the not 722, are oth codes, and enforcing administrative or laws criminal intri with the familiar to become occasion little have erwise jurisprudence. Amendment Fourth this Court’s cacies supervi- upon . . . procedures unwieldy warrant “Imposing willfully 219.201(c) (1987), or § faith, 49 CFR bad accident Subpart comply does testing that authorized program imposes §219.9 regulations, follow fails 219.9(a)(3), otherwise D, § A, in addition p. 219, App. pt. see penalties, civil (a)(5), subject to process. arbitration through may be awarded damages whatever sors, who would otherwise have no reason to be familiar with procedures, simply such unreasonable.” Ibid. imposing requirement

In present sum, a warrant in the certainty context would add little to the assurances of regularity already regulations, signifi- afforded while cantly hindering, many frustrating, objec- in cases testing program. tives of the Government’s We do not be- lieve that a warrant is essential to render the intrusions here at issue reasonable under the Fourth Amendment.

C may Our per cases indicate that even a search that be formed general without a warrant must be based, as a matter, probable person cause to believe that the searched Jersey has violated the supra, law. See New v. T. L. O., precludes 340. When the balance of interests insistence on a showing probable usually required cause, we have “some quantum suspicion” concluding of individualized before that a g., search is reasonable. See, e. United States v. Martinez-

Fuerte, S., 428U. at 560. We clear, made it however, that a showing suspicion of individualized is not a constitutional presumed floor, below which a search must be unreasonable. Id., at 561. In privacy limited circumstances, where the in implicated by terests the search are minimal, and where an important governmental interest furthered the intrusion placed jeopardy by requirement would be of individual suspicion, ized despite a search be reasonable the ab suspicion. sence of such We believe this is true of the intru question sions in here.

By large, regula- intrusions on under the FRA transportation tions are limited. To the extent and like necessary procure requisite restrictions are blood, samples testing, breath, and urine for this interference alone given employment is minimal context which it takes place. Ordinarily, employee significant consents to re- necessary strictions his freedom of movement where go they as employment, are free to come and few his g., Delgado, working please during See, e. INS v. hours. Any interference with a rail- additional 218. S., 466 U. employee’s in the time movement occurs freedom of road sample procure for test- breath, or urine blood, a it takes to privacy infringe significant by ing be said to cannot, itself, interests. supra, indicates California, v. decision Schmerber

Our by required FRA the blood tests is true of the same regulations. could direct that a State case, In that we held suspected sample a motorist withdrawn from a be that blood despite driving his refusal consent intoxicated, while performed test was noted that the intrusion. We to the taken “blood was manner, as the motorist’s in a reasonable according hospital by physician to ac- environment in a a practices.” cepted said also that Id., at 771. We medical significant, a blood test is not the intrusion occasioned days periodic commonplacein these a such “tests are since experience physical with them teaches that examinations and quantity minimal, and that for most is of blood extracted virtually procedure trauma, or people risk, no involves “society’sjudgment pain.” thus confirmed Ibid. Schmerber unduly imposi- extensive tests do not constitute that blood bodily integrity.” privacy Win- tion on an individual’s v. S., also Dakota at 762. See South Lee, 470 U. ston v. (1983)(“The simple blood-alcohol 553, Neville, 459 U. S. Breithaupt commonplace”); painless, v. safe, . . . test is (“The (1957) procedure test blood 432, 436 Abram, 352 U. S. life”). everyday in our has become routine regula- by Subpart D of the tests authorized The breath prescribed the blood tests intrusive than are even less tions re- by Subpart tests, tests do not breath blood C. Unlike safely may outside a quire piercing conducted the skin hospital minimum of inconvenience and with environment the level of tests reveal Further, breath or embarrassment. nothing employee’s more. bloodstream alcohol by Subpart C, blood-testing procedures mandated Like the presence only of alcohol ascertain the can be used which reveal bloodstream, breath tests in the substances controlled pri- employee has a substantial facts in which no other vacy atS., Jacobsen, States United interest. Cf. all the cir- S., at 707. In Place, 462 U. States 123; United administration of that the conclude cumstances, we cannot significant implicates concerns. test breath presented question tests. urine A more difficult body invasive of the are not urine tests tests, Like breath regulations, used an occasion not be as and, under the private to alcohol or inquiring facts unrelated into procedures recognize, for col- that the however, We use.7 lecting employees require necessary samples, to which by great traditionally excretory shielded perform function an by implicated or breath privacy, not blood raise concerns pri- these additional would not characterize While tests. we we note that vacy contexts, in minimal most as concerns the col- regulations the intrusiveness to reduce endeavor samples require process. do The lection monitor, de- of a the direct observation furnished under be integ- desirability procedure to ensure spite a of such (1985). Reg. sample. See also rity 50 Fed. See sample in a also is collected D-l. The B-15, Manual Field by personnel to the railroad unrelated environment, medical by required samples urine blood and employees produce the When complete stating to a form C, by personnel they asked medical Subpart are days. preceding 30 during the any they taken medications have whether FRA’s labora samples to the shipped with the are completed forms ascertain B-15. information used Manual This tory. Field See employee’s lawful explained by the result can positive test whether procedure permits Government While this use of medications. might prefer not to employee an facts private medical certain learn in treat this does not disclose, Government indication there is no any pur other confidential, the information for that it or uses formation as procedure sig as a circumstances, we not view do pose. Under the (1977). 589, Roe, 429 U. S. Whalen v. privacy. Cf. invasion of nificant

employer, procedures and is thus not unlike similar encoun- regular physical tered often the context of a examination. importantly, expectations More of covered employees participation are diminished reason of their industry regulated pervasively safety, that is to ensure goal dependent, part, in substantial on the health and fitness employees. safety covered This relation between and em- ployee recognized by Congress fitness was when it enacted the Hours of Service Act in 1907,Baltimore & R. Ohio Co. v. ICC, 221 U. S., and also when it authorized the Secre- tary to equipment, “test. rolling . . facilities, stock, operations, persons, necessary carry as he deems out provisions” Safety of the Federal Railroad Act of 1970. 437(a) added). § (emphasis 45 U. S. C. It has also been rec- ognized by governments,8 long state and has been reflected industry practice, industry’s promul- as evidenced gation and enforcement of Rule G. Indeed, the FRA found, Appeals acknowledged, and the Court of see 839 F. 2d, at require periodic physical 585, that “most railroads examina- engine employees tions for train and and certain other em- ployees.” Reg. Railway Fed. See also Labor Executives Assn. v. & Western R. Co., 833 F. Norfolk (CA7 1987); 2d 705-706 Brotherhood Maintenance 8See, (1977) g., e. Ala. Code 37-2-85 § (requiring persons to be em ployed dispatchers, conductors, as engineers, brakemen, and switchmen be subjected alia, a “thorough to inter respecting, skill, examination” their sobriety, eyesight, hearing); §§ Mass. Gen. Laws 160:178-160:181 (1979) (prescribing eyesight experience examination and requirements for engineers conductors); 1952) § N. Y. R. R. (McKinney Law 63 (requiring applicants positions that all as gripmen motormen or “be sub jected to thorough habits, a examination ... as to their physical ability, Nashville, intelligence”). Alabama, C. & S. L. R. Co. v. See also (1888) 96, (noting, S. 98-99 in upholding predecessor a of Alabama’s fitness-for-duty against statute a Commerce challenge, Clause that a State may lawfully require railway employees undergo eye to examinations safety). the interests of Burlington Co., R. Lodge Northern Way Employees, 1986). (CA8 1016, 1024 2dF. bodily the interest suggest, course, that of We do industry regulated employed by in a security enjoyed those Here, however, the always minimal. be considered must regula- principal long focus of employees been have covered judge dissenting “The below noted: tory theAs concern. sitting round- in the locomotive, An idle obvious. is reason negli- operated when lethal It becomes harmless. is house, of alcohol influence by persons under the who are gently privacy Though some at 593. drugs.” 2d, 839 F. testing toxicological at issue by implicated interests contexts, significant in other reasonably might as viewed pri- expectation of history a diminished logic show physical relating condition vacy to to information attaches procur- means employees this reasonable and to covered of ing test- therefore, that conclude, We information. such only pose D Subparts contemplated C and ing procedures expectations justifiable threats to limited employees. covered testing without interest

By contrast, the Government Employ compelling. suspicion showing individualized fraught discharge with such subject duties tests to the ees momentary lapse of injury even a to others risks per consequences. like Much disastrous can have attention power dangerous nuclear access routine have who sons Power Public g., v. Nebraska Rushton see, facilities, e. Washington (CA8 1988); Alverado 562, F. 2d Dist., P. 436, 759 System, Supply 111Wash. 2d Power Public employees pending, (1988), 88-645, No. cert. 433-434 2d regulations can FRA subject under who are impairment signs any be great loss before human cause impaired em supervisors An or others. noticeable come any display outward seldom found, ployee, will the FRA many lay person cases, even the inor, “signs detectable view finds Reg. This physician.” 50 Fed.

629 in ample the railroad support industry’s experience Rule G, and in the of the judgment courts that have examined anal- ogous testing See, schemes. e. g., Brotherhood Mainte- nance Way Employees, Lodge Northern Burlington R. Co., at 1020. supra, Indeed, while respondents posit impaired employees might detected without alcohol or testing,9 premise respondents’ lawsuit is that even the occurrence of a will major calamity not give rise to a suspi- cion of impairment with respect any particular employee.

While no procedure can all identify impaired employees with ease and perfect the FRA accuracy, regulations supply an effective means of deterring in employees engaged safety- sensitive tasks from using controlled substances or alcohol the first (1985). place. Fed. Reg. in- dustry’s experience with Rule G persuasively shows, and common confirms, sense the customary dismissal sanc- 9Respondents offer a list of “less equally drastic and effective means” of addressing concerns, the Government’s including private reliance on the proscriptions already force, and training supervisory personnel “to effec tively employees impaired detect by who are drug or alcohol use without procedures resort to such intrusive as blood and urine tests.” Brief for Respondents 40-43. We repeatedly stated, however, have that “[t]he any particular reasonableness of government activity necessarily does not invariably turn on the existence of alternative ‘less intrusive’ means.” 640, (1983). Lafayette, Illinois v. 462 U. S. See also Colorado v. Bertine, (1987). 367, 479 U. S. 373-374 It is logic obvious that “[t]he such elaborate arguments less-restrictive-alternative insuper could raise able barriers to the virtually exercise of all powers,” search-and-seizure Martinez-Fuerte, S., United States v. 556-557, 12, n. because “ judges engaged post hoc government evaluations of conduct ‘can almost always imagine some alternative means objectives which the ’” [government] might accomplished. have been Un ited Montoya States v. Hernandez, (1985), de 473 U. S. quoting United v. Sharpe, States Here, U. S. 686-687 the FRA expressly considered vari ous alternatives to drug-screening program its reasonably found them bottom, wanting. At respondents’ insistence on less drastic alternatives require would second-guess us to the reasonable conclusions drawn years FRA after investigation study. This we decline to do. drugs while employees or alcohol who use threatens tion that vio- unless deterrent duty effective as an serve cannot By likely ensur- they be discovered. to are know that lators they positions safety-sensitive know employees in ing that triggering event, a upon of the occurrence tested will be certainty, predict employee with timing can no of which of the effect significantly the deterrent increase prohibited con- penalties associated administrative 876, concomi- S., Wisconsin, 483 U. duct, cf. Griffin forgo employees will increasing tantly likelihood that duty. being subject for called drugs to while using or alcohol Subpart also contemplated C testing procedures causes about information help invaluable railroads obtain (1985), take Reg. to major 50 Fed. see accidents, of public. general Cf. safeguard the to appropriate measures (1978) (noting that Tyler, Michigan S. 436 U. may con- uncover fire investigation of a causes prompt recurrence); thereby prevent fire’s dangers tinuing (1984) (Rehnquist, Michigan S. v. Clifford, point (same). to- would dissenting) test results Positive J., part of impairment members on the drug or alcohol ward help may accident, and possible of an cause as a the crew particular otherwise accident, whether establish employ- impaired inability worse related, was made Negative would results appropriately. test respond ees drug impair- eliminating clues, invaluable furnish likewise help contributing would factor potential cause or aas ment inadequate equipment failure, significance establish suggest more thor- potential causes, training, or other performed Tests alternatives. ough these examination Subpart specified D likewise following violations the rule respecting causes information provide valuable can involve “the found transgressions, the FRA which those injury, personal grave accident potential train for a serious Reg. 31553 Fed. or both.” requirement particularized suspicion drug

A or alcohol seriously impede employer’s ability use would to obtain despite importance. Experi- this information, its obvious judgment ence confirms the FRA’s that the scene of a serious Investigators rail accident is chaotic. who arrive at the shortly major scene after a accident has occurred find it difficult to determine which members of a train crew contrib- Obtaining might give uted to its occurrence. evidence that suspicion particular employee rise impaired, to the that a is a difficult endeavor in the best of circumstances, is most im- practicable in the aftermath aof serious accident. While following events testing the rule violations that activate the authority Subpart may objective of D chaotic, be less indicia impairment in are absent these instances as well. Indeed, any attempt gather relating possible to evidence to the im- pairment particular employees likely would in result the loss or deterioration of evidence the furnished the tests. Michigan supra, (plurality Cf. opin- n. 4 Clifford, ion); Michigan Tyler, supra, at 510. It would be unrealis- goal tic, and ensuring safety inimical to the Government’s transportation, require rail showing of individualized suspicion in these circumstances. quarreling importance

Without govern- with the of these Appeals mental interests, the Court of concluded that the postaccident testing regulations were unreasonable because “[b]lood drug and urine tests intended to establish use other drug than alcohol. . . cannot measure current intoxication or degree impairment.” 2d, 839 F. at 588. The court based reading journals its conclusion on its of certain academic that only drug indicate that the of urine can disclose meta- “may body days bolites, which remain for or weeks ingestion drug.” after the Id., at 589. We find this analysis flawed for several reasons. emphasized Jersey

As we in New v. T. L. O., “it is univer sally recognized inquiry, evidence, that to be relevant to an conclusively prove need not the ultimate fact in issue, but any fact tendency the existence ‘any make only have point [of consequence to the determination probable with it would be than probable issue] less more quoting Rule Fed. S., at U. evidence.’” out the nothing more disclosed test results if urine Even 401. Evid. by a cov substances use of controlled specific recent than the provide for the basis would employee, information ered designed whether determine investigative work further Field drugs times. See relevant employee at the used example, clear, for makes The record B-4. Manual concern coupled information with known positive result, test particular and in ing pattern of elimination about gathered sources may from other formation in to reach FRA employee’s allow activities, particular occurred. accident judgment how a as to formed supra, at 609-610. See Appeals overlooked importantly, Court

More the results of principal reliance placing policy of FRA’s very identify recent unquestionably can tests, which blood (1984), relying while Reg. 24291 g., drug 49 Fed. e. use, see, designed secondary information of source as a tests on urine drugs will be certain against possibility that guard to sample can a blood before the bloodstream from eliminated recognize the FRA that to failed also The court be obtained. impairment only but designed to discern not regulations are blood that record indicates Because it. to deter also highly means of together, effective are tests, taken urine deterring the use impairment on-the-job ascertaining employees, the Court by we believe drugs railroad testing postaccident concluding Appeals erred reasonably ob- to Government related regulations not are support jectives them.10 might be that the concern tests expressed Appeals also The Court 2d, record at 589. The F. unreliable, thus unreasonable. quite study sup does investigation years of after FRA compiled no mistakes guarantee that to impossible it is While conclusion.

port this compelling

We conclude that the Government interests regulations significantly served the FRA’s would be hin- required point if specific dered giv- railroads were to to facts ing suspicion impairment rise to a reasonable before test- ing given employee. In view of our that, conclusion on the present toxicologicaltesting contemplated by record, the infringement justifiable is not an undue on the expectations employees, of covered the Govern- compelling outweigh privacy ment’s interests concerns.

IV possession drugs The of unlawful is a criminal offense that may punish, separate the Government but it is a and far more dangerous wrong perform to certain sensitive tasks while under Performing the influence of those substances. those impaired by tasks equally danger- while is, alcohol of course, consumption though legal ous, of alcoholis in most other con- may necessary texts. The Government all take and reason- regulatory steps prevent able to or deter that hazardous gravamen conduct, and performing since the of the evil is cer- concealing tain body, functions while the substance in the it necessary, as in the case us, before examine the body accomplish regulatory purpose. its fluids to necessity perform regulatory respect function with employees engaged safety-sensitive tasks, and the system doing reasonableness of the so, have been estab- lished in this case.

Alcoholand tests conducted reliance author- ity Subpart private D cannot be viewed as action outside the reach of the Fourth Amendment. Because procedures by Subparts mandated or authorized D C and ef- cases, will ever be made in respondents isolated challenged have the ad- ministrative scheme on face. its We deal therefore with whether the tests contemplated by regulations the can ever be conducted. Cf. Bell v. Wolf- ish, Respondents U. provided S. have us with no rea- doubting son for the FRA’s conclusion that the tests at here issue are accu- rate in the overwhelming majority of cases. they the Fourth meet person, must the of searches feet light the In of requirement. reasonableness Amendment’s employers under by railroad the exercised discretion limited by safety served surpassing interests regulations, the the expec- diminished the context, and in toxicological tests pertaining to to information attaches that of tation it is reason- that employees, we believe of covered fitness the or a warrant of absence in the tests such conduct able may employee be any particular suspicion that reasonable drug contem- tests alcohol that the impaired. holdWe regulations rea- are FRA’s D the Subparts and of C plated Amendment. meaning Fourth the of the within sonable accordingly reversed. Appeals is of judgment the Court is so ordered. It in concurring in concurring part Stevens, Justice judgment. the determining the causes public my opinion interest the In validity supports adequately accidents railroad serious however, persuaded, regulations. I not am challenged drugs is deterring or of alcohol the use interest that justify author- searches necessary or sufficient

either regulations. by these ized signifi- proposition that it a dubious I think drugs of service hours cantly of alcohol use deter most think people I would employees. Most —and expectation go to work not employees as well—do particularly one major accident, involved a they be the release life or loss of catastrophic results as causing such Moreover, requiring an evacuation. material hazardous possibilities that such they are conscious if even might use alcohol might occur accident injury personal serious risk of contributing if the factor, highly it seems substances, these their use deter does employment would loss of threat unlikely additional behavior. any their effect have join portions I reason,

For this do not of Part III of the rely opinion on a I rationale; Court’s deterrence do, join opinion however, balance of the and the Court’s judgment. whom Brennan Marshall,

Justice Justice joins, dissenting. declaring

The issue this case is not whether a war on ille gal drugs good public policy. importance ridding The society drugs apparent our of such is, now, to all. Rather, deployment the issue here is whether the Government’s particularly weapon compulsory that war of a Draconian —the collection and chemical of railroad workers’ blood and comports Precisely with the Fourth Amendment. urine — because the need for action against drug scourge is mani vigilance against fest, the need for unconstitutional excess is great. History grave liberty teaches that threats to often urgency, rights come times of when constitutional seem extravagant too II endure. The World War relocation- camp Hirabayashi cases, States, United 320 U. 81S. (1943); (1944), States, Korematsu v. United S. McCarthy-era the Red scare and internal cases, subversion (1919); Schenck v. United S. 47 States, U. Dennis v. (1951), only States, United 341 U. S. 494 are the most ex treme reminders that when we allow fundamental freedoms perceived exigency, to be sacrificed in the name of real or we invariably regret come to it. permitting

In the Government to force entire railroad crews to tests, submit invasive blood and urine even when any wrongdo- it lacks evidence of or alcoholuse or other ing, majority today joins shortsighted those courts which rights prey have allowed basic constitutional to fall to mo- mentary emergencies. majority holds that the need of (FRA) the Federal Railroad Administration to deter and di- agnose outweighs any train accidents “minimal”intrusions on dignity personal privacy posed by toxicological mass test- ing persons given who have no indication whatsoever of reaching ma- result, the impairment. at 624. In Ante, history the Fourth ignores jority and the text doctrinal highly require searches intrusive Amendment, which probable evanescent type cause, not on the based on be judges. agencies ma- But the or cost-benefit calculations standards, trivializ- jority under its own utilitarian errs even concep- overlooking serious ing of, the raw intrusiveness program. testing operational in, the FRA’s flaws tual and program, grave on whether doubts flaws These though cast good ineffectu- do more than intentions, will born of opposition use. ally symbolize to the Government’s postaccident majority purports to limit its decision to The jobs, “safety-sensitive” ante, at testing in of workers companion test- holding to the case in the its much as it limits involving drug jobs or interdiction ing to of transferees post, Treasury at Employees Raab, v. Von use of firearms. is not damage Amendment the Fourth done to But the 664. dragnet acceptance majority’s easily The cabined. so ca- worst, first, that the ensures blood and urine precious drugs of our sualty be the liberties will of the war I dissent. therefore citizens.

I reading step yet longest today toward its takes The Court requirement Fourth Amend- probable-cause out of the majority many years, as fourth time in For the ment. beyond law “‘special normal need for nee[d], that a holds probable “‘requirement’” cause makes the enforcement,’” omitted). (citations With “‘impracticable.’” Ante, at 619 regulating “[t]he recognition interest Government’s safety” employees as such a ensure to conduct of “special permitted has now the Court need, ante, at cate- displace of the four text each constitutional needs” Amendment: in the Fourth gories enumerated of searches “persons,” “houses,” ante, 613-614; at searches Griffin (1987);“papers,” v. Or- O’Connor Wisconsin, U. S. (1987); Jersey tega, “effects,” New 480 U. S. 709 T. L. O., 469 U. S. 325 process by “requirement” a constitutional can be

The which dispensed “impracticable” is an elusive one to me. with as provides right “[t]he of the Fourth Amendment people persons, papers, houses, their and ef be secure against fects, seizures, unreasonable searches and shall not upon probable be no shall but violated; issue, and Warrants supported particularly cause, or affirmation, Oath de scribing place persons things searched, and the majority’s to be seized.” The recitation of the Amendment, remarkably, “violated,” ante, leaves off after the word 613, but the remainder Amendment —the Warrant easily long Clause—is not so excised. As this Court has rec ognized, provisions the Framers intended the of that probable “provide Clause—a warrant and cause—to yardstick against which official searches and seizures are to supra, (opinion T. L. O., be measured.” at 359-360 of J.). provisions Without content which those Brennan, give overarching to the Fourth Amendment’s command that “reasonable,” searches and seizures be the Amendment lies virtually meaning, subject devoid of to whatever content shifting judicial majorities, problems concerned about the of day, supple give Dunaway choose to term. See (1979)(“[T]he protections 442 York, 200, v. New U. S. 213 in easily disappear all tended the Framers could too in the balancing consideration and of the multifarious circumstances cases”). presented requirements different Constitutional probable present like cause are not fair-weather friends, advantageous, conveniently “special when absent when needs” make them seem not. recently, recognized

Until an unbroken line of cases had probable indispensable prerequisite cause as an for a full-scale regardless search, of whether such a search was conducted pursuant recognized excep- to a warrant or under one of the requirement. supra, tions to the T. L. O., warrant at 358 638 see also Chambers v. J.); n. 3 359, (opinion Brennan,

Maroney, the govern where Only 42, S. 399 U. im less intrusive” “substantially had a action question ment Dunaway, clearly and thus S., at on privacy, pact probable- we relax the search, did a full-scale fell short Id., (“For de narrowly those all but standard. cause ... is embodied ‘balancing’ intrusions, the requisite fined if only supported are ‘reasonable’ seizures the principle supra, at 360 (opinion T. L. O., see also cause”); by probable almost al J.). cases, we in this class of Even Brennan, some individualized to show the government ways required which we The searches few search.1 justify suspicion rou were justification of individualized absence in the upheld conducted pur encounters and nonintrusive tinized, fleeting, no contact which entailed programs to regulatory suant person.2 valid minimally held intrusive search first, a leading, case Ohio, Terry U. S. v. probable cause is suspicion short on when based con unusual observes (1968), police officer who held that where we reasonably suspects are activity by persons he criminal suggesting duct carefully limited search “conduct dangerous presently armed Hensley, States also United persons.” See clothing of such outer wanted (1985) stop person described brief (upholding 469 U. S. issued); been Delaware warrant has if arrest flyer police ascertain while (1979) discretionary stops motorists (invalidating Prouse, 648 U. S. 440 suspicion on reasonable when not based registrations check licenses unlicensed, unregistered, or that the automobile is motorist detained); Pennsylvania v. otherwise occupant should vehicle (1977) who where officers (upholding limited search Minims, U. S. jacket); bulge the driver’s large under lawfully stopped car saw had (1975) (upholding brief 422 U. S. 873 Brignoni-Ponce, v. States United reasonably believe car officers patrols where by roving stops border (1972) Williams, (upholding aliens); S. v. U. Adams illegal contain carrying nar to be individual suspicious believed interrogate stop brief gun). cotics (1976) Martinez-Fuerte, 428 U. S. 543 2 See, v. g., States e. United checkpoint to border ascertain (brief permanent stop at interrogative Fran- status); Municipal Court San Camara residence motorist’s years began In Court, the four since this in T. L. O., first recognizing “special exceptions needs” to the Fourth Amend clarity ment, of Fourth Amendment doctrine has been badly eclipsed probable-cause distorted, as the Court has requirement patchwork quilt settings: public in a school principals’ belongings, public searches of students’ O.; T. L. employers’ employees’ pro searches of desks, O’Connor; and probationers’ bation officers’ searches of homes, Griffin,3 Tellingly, “special each time the Court has found that needs” ignoring requirements counseled the literal of the Fourth Amendment for such full-scale in searches favor of a formless unguided balancing inquiry, “reasonableness” it has con question cluded that in the search satisfied that test. I have joined dissenting opinions protesting in each of these cases, “jettison[ing only of] support . . . the standard that finds predicting the text of the Fourth Amendment” and that the majority’s ‘balancing portended “Rohrsehach-like test’” “a dangerous weakening purpose of the of the Fourth Amend protect security ment to of our citizens.” J.). supra, (opinion T. L. O., at 357-358 of Brennan, majority’s today prophecy. The decision bears out that determining applies After that the Fourth Amendment to the testing regime, majority FRA’s embarks on an extended inquiry regime inquiry into whether that is “reasonable,” an surrounding in which it balances “‘all of the circumstances the search or seizure and the nature of the search or seizure quoting Montoya Ante, 619, itself.’” at United States v. de (1967) (routine cisco, 387 inspection by city U. S. 523 annual housing department). “special justify needs” the abrogating proba Court invoked to were, O., S., requirement Jersey 341, ble-cause in New v. T. L. 469 U. at “the substantial need of teachers and administrators for freedom to main schools”; S., tain Ortega, order O’Connor 480 U. at “the proper operation workplace”; efficient and and in v. Wiscon Griffin sin, S., preserve the need to “the deterrent effect of the supervisory arrangement” probation. “special result U. S.

Hernandez, 473 yet analysis’ deepest core balancing into the incursion needs” today, it was Until protections Fourth Amendment. of the a government search was aimed awhen that, conceivable balancing person’s possessions, simply person the and not nary longer: ex place. word of analysis a No had no novelty approach, acknowledgment its the planation “special ato majority needs” framework the extends the regulation compulsory uri involving withdrawal and blood bodily testing fluids col nary of the and chemical excretion, today, procedures. it was through until And these lected surviving “special needs” prerequisite for conceivable that suspicion. No analysis of individualized existence was the O’Connor, and O., in T. L. longer: to the searches in contrast supported evidence individualized were which Griffin, suggesting persons property was culpability whose today requires upheld regime regulatory searched,4 the and urine of the blood postaccident collection group every member of employees if all covered —even sobriety every and attentiveness. gives indication exception probable “special widening needs” In body unsupported human searches of the authorize cause today majority wrongdoing, com by any evidence eliminating altogether begun process pletes in T. L. O. of requirement un searches—those probable-cause for civil “beyond for law en normal need for reasons dertaken omitted). (citations place, In its at 619 Ante, forcement.” balancing inquiry manipulable majority substitutes “special need,” upon of a the mere which, assertion under vul- dignitary become deepest interests even (teacher’s had been report that student O., supra, L. at 346 T. 4 See cigarettes); purse contained suspicion smoking provided reasonable gave improprieties O’Connor, specific financial (charges of supra, at 726 Griffin, by employee); suspicion of misconduct employer individualized storing guns probationer was police officer (tip to supra, at 879-880 suspicion). provided reasonable apartment his

641 ibid, governmental nerable to (distinguishing incursion. See searches). By criminal from civil its terms, however, the Fourth Amendment—unlike the Fifth and Sixth—does not protections confine its to either criminal or civil actions. In- protects generally right “[t]he people stead, it of the to be secure.”5 “special

The fact is that the balancing ap malleable needs” proach justified only can policy be on basis of the results majority it majority’s allows the to reach. The concern with safety problems caused and alcohol disregard abuse is laudable; its cavalier for the text of the drug exception Constitution not. There is no to the Con any stitution, exception more than there is a communism or exception imagined for other real or sources of domestic Coolidge Hampshire, unrest. v. New S. 443, U. explicit abandoning protections Because seriously imperils right Fourth Amendment “the to be let comprehensive rights alone—the most right and the most valued men,” civilized Olmstead v. United States, 277 (1928) (Brandeis, U. S. dissenting), reject J., I majority’s “special unprincipled needs” rationale as dangerous.

II proper way testing regime evaluate FRA’s is analytic use the same traditionally framework which we have appraise used involving Fourth Amendment claims full- “special scale searches, at least until the recent needs” cases. inquire, Under serially, that framework, we whether a 5That the Fourth applies Amendment equally to criminal and civil emphasized, searches was ironically enough, portion in the of T. L. O. holding the Fourth Amendment applicable to schoolhouse searches. S., malleability U. at 335. The “special balancing needs” thus could majority clearer: applicability endorses the of the Fourth Amend ment to civil searches whether a determining place, search has taken but wholly ignores then it in subsequent inquiry validity into search. g., States, 389 place, Katz v. United see, e. has taken search (1967); based on was the search whether 350-353 S.U. excep- recognized pursuant to a undertaken valid warrant g., v. Wiscon- requirement, e. see, Welsh the warrant tion to (1984); was the search whether 740, 748-750 U. S. sin, 466 suspicion validly lesser based on probable cause or based Dunaway, g., minimally e. intrusive, see, it was because finally, con- was the search whether and, 208-210; atS.,U. g., Lee, v. Winston see, e. manner, in a reasonable ducted S., O., 469 U. T. L. also See 753, 763-766 470 U. S. J.) analytic (summarizing (opinion of 354-355 at Brennan, framework). rail- “covered” majority’s determination threshold The testing FRA’s under employees been searched have road Who certainly at 616-618. Ante, correct. program is person’s prepared reasonable among to consider is not us his respect of extraction to the expectation of testing of chemical urine, or the his the collection blood, U. S. Jacobsen, 466 States United these fluids? the warrant

(1984).6 ensuing majority’s conclusion conveniently dispensed however, with, requirement searches distinct three that there are fact overlooks collecting and urine importance blood Although issue. justifies disappear samples metabolites or alcohol before requirement two searches waiving those warrant exception, see “exigent circumstances” the narrow under (1966) (“[T]he 757, 770 S.U. California, Schmerber delay threatens] de- ‘the necessary .. a warrant. to obtain exigency prevents ”), no such evidence’ struction chemically testing securing before a warrant from officials spoil if do not they samples Blood and urine obtain. subject searches also constitute procedures breath-testing The FRA’s ante, conclu (reaching same at 616-617 See safeguards. to constitutional blood sion). on the collection my I discussion focus the ex demonstrate better procedures intrusive those more urine because scheme. the FRA’s cesses of

properly preserved, collected and and there is no reason to ability doubt the grasp relatively railroad officials to simple procedure obtaining authorizing, a warrant where appropriate, analysis chemical of the extracted fluids. It is wholly unjustified dispense therefore with the warrant re- quirement for this final search. See Chimel v. California, (1969) U. S. (exigency exception permits 761-764 only exists). warrantless searches to the exigency extent that probable-cause It requirement, is the however, that the testing regime egregiously FRA’s most violates, a fact which explains majority’s ready acceptance expansion “special By countertextual exception. any needs” measure, highly the FRA’s testing procedures intrusive collection and qualify personal as full-scale prece- searches. Under our showing probable dents, a clearly cause is therefore re- quired. But if even entailing these searches were viewed as only say, minimal police stop- intrusions on the order, of a program and-frisk, the pass FRA’s would still fail to constitu- tional exception, muster, for we have, without demanded minimally that even person intrusive searches of the suspicion. on supra, founded individualized See at 638, and parties n. 1. The federal satisfy concede it does not this Only standard. Brief for Federal Parties 18. if one con- testing procedures strues the FRA’s collection and as akin to fleeting regulatory the routinized and interactions which we permitted have suspicion, the absence of individualized see supra, might procedures n. these survive constitutional scrutiny. Presumably majority for this reason, the likens this case to United States v. Martinez-Fuerte, 428 S. 543 U. (1976), upheld stops, which brief automobile at the border to validity ascertain of motorists’ residence in the United Ante, States. at 624. CaseTaw and common reveal sense bankruptcy analogy both the this of absurd and the constitu- imperative adhering tional of prob- to the textual of standard able cause to evaluate the FRA’s multifarious full-scale searches. piercing his skin to the person submit

Compellinga sig- may be extracted his blood hypodermic so needle a dignity privacy “personal nificantly on intrudes against which the State” against intrusion unwarranted supra, 767. at Schmerber, protects. Amendment Fourth 1, 24-25 Terry U. S. Ohio, 392 emphasized in weAs clothing . . . outer search (1968), limited “Even a upon cherished though brief, intrusion severe, constitutes fright- annoying, surely be an security, must and it personal simi- experience.” have humiliating We perhaps ening, and scrapings fingernail suspect’s taking of a larly described “ personal upon though cherished brief, intrusion ‘severe, aas (1973) Murphy, S. Cupp U. security.’” proce- upholding this supra, 24-25, and Terry, at (quoting cause). government- probable The showing upon dure the added involving as it does blood, compelled withdrawal surely an intrusion. less no physical invasion, aspect of hardly a furthermore, is, demand of blood on surrender supra, at Martinez-Fuerte, Cf. quotidian occurrence. intrusion). “quite (routine limited” stops involve procedure, we recognition intrusiveness In police have evidence required in specifically Schmerber forcing him impairment suspect’s before drunken-driving a test: a blood endure dignity which in human interests “The any intrusions protects such forbid Amendment Fourth might be ob- evidence that desired chance the mere in fact a clear indication absence In the tained. human fundamental these found, will be such evidence that such risk to suffer require officers law interests 769-770. S., disappear U. .” . . . evidence indication” suggested “clear strongly Schmerber ato amounted compulsory test justify blood a to needed “plainly” in existed which probable cause, showing of interpreting subsequent Although cases at 768. Id., case. showing of individ- a whether over differed have Schmerber Winston, sufficed, ualized would have suspicion compare (Schmerber S.,U. at 760 “noted the importance probable Montoya de Hernandez, cause”), S., with 473 U. at 540 (Schmerber sus- necessity particularized “indicate[d] Schmerber any forbade picion”), by reading, clearly compul- on any blood tests lesser than individualized sory showing a Exactly why blood test if conducted on suspicion. which, one person, of at least sus- requires showing individualized if conducted picion may, on be based on no many persons, — showing whatsoever, does not —and cannot majority explain.7 to a urine on

Compelling person produce sample demand also intrudes and deeply bodily integrity. Urina- tion is the most of activities. It is among private generally conversation, forbidden eschewed as a matter of public, places designed tradition of performed preserve majority, seeking devastating The to lessen the ramifications of California, v. up Schmerber and to back its assertion that Government- interests,” imposed “infringe significant privacy blood extraction does not ante, 625, emphasizes at Schmerber's that blood tests are com observation trauma, risk, monplace performed “‘virtually pain.’” and can be no however, Ante, S., quoting majority, at 384 U. at 771. The wrenches this statement out of context. The Schmerber Court made this statement only “exigent it established that the blood test fell within the circum after exception requirement, sup the warrant that the stances” test was Indeed, only in ported probable cause. the statement was made separate inquiry compulsory context of the into whether the blood test was 768-772; S., in a reasonable manner. 384 at see also Win conducted U. (1985) (“Schmerber Lee, recognized 760-761 that the ston U. S. ordinary requirements the Fourth Amendment the threshold would be conducting surgical . requirements for this kind of search seizure. . . standards, Beyond inquiry a number these Schmerber's considered of other test”) (emphasis determining the ‘reasonableness’ of the blood factors also cites South n added). Neville, majority Dakota v. S. 553 U. Abram, (1957), (1983), proposition Breithaupt 352 U. S. 432 for the cases, Ante, commonplace. In both that blood tests are at 625. those however, police attempted impose officers who blood tests on suspects exceptionally strong drunken-driving had evidence of the driver’s S., S., 554-556; 352 at 433. inebriation. U.

646 560 at Martinez-Fuerte, S.,

personal Cf. seclusion. annoy- than “some no more questioning (border-stop involves “offensive”). The “frightening” nor neither and is ance” privacy, personal regard for gives scant however, FRA, monitoring supervisors urination instructs Manual its Field samples di- provide “under urine must workers that railroad Rail- physician/technician.” Federal by the rect observation Transportation, Dept, of States Administration, United road Drug in Railroad Use Alcohol and Manual: Field Control added).8 privacy (1986)(emphasis That Operations D-5 supervised urine collec- compulsory by offended interests overwhelming judgment of the lower profound is the tion are Solicitor Professor—later As commentators. courts written: has Fried General—Charles excretory shielded are functions “[I]n culture our that situations privacy, much so so absolute or less more experienced as ex- privacy are is violated in which tremely dignity detracting distressing, from one’s as (1968).9 Privacy, 475, 487 L. 77 J. Yale esteem.” self im- interests majority’s characterization The is 624, noth- ante, at “minimal,” as plicated collection urine of such “direct the intrusiveness nonexistent as majority dismisses 8 The such observa state that regulations FRA observation,” ground that on the ante, (1985), 626. Reg. cited 31555 50 Fed. “require[d].” not tion is however, hasty, is too dismissal majority’s —in effec the most “[B]ut observation go to state: very same sentence — has employee and sample is that of ensuring that tive means case, not the if this were Even Reg. 31555 50 Fed. been diluted.” disregard will monitoring urination that officials majority’s suggestion provided is they are which Manual with of the Field commands the clear dubious, say least. Raab, F. v. Von Treasury Employees Union 9 See, g., e. National 656; Taylor v. p. post, (CA5 1987), pertinent part, 170, aff’d 2d 1987); (ND v. Cleve 1422, Ill. Feliciano Supp. 1433-1434 F. O'Grady, 669 (ND 1987); Gov Federation American Ohio land, Supp. F. 726, 732-733 Weinberger, Supp. 651 F. AFL-CIO Employees, ernment 1986). (NJ Supp. F. Plainfield, 643 (SD 1986); Capua Ga.

ing startling. is, furthermore, This characterization short of explanation why prior by majority’s com- own belied the purposes pulsory a search for the constitutes urination Fourth Amendment:

“ society personal more or are few activities our ‘There passing people private of urine. Most describe than by they euphemisms it at all. It a func- it if talk about is traditionally performed public observation; without tion public generally prohibited performance in indeed, its is by quoting Ante, at 617, law as well as social custom.’” Treasury Employees Raab, v. Von 816 National Union 1987). (CA5 F. 175 170, 2d majority powerful passage The fact that the can invoke this deciding occurred, has search the context deciding ignore interests this it then implicates “minimal,” underscores shameless search are balancing approach. manipulability of its Finally, analysis performs upon FRA the chemical samples implicates strong privacy interests urine blood and bodily upon by apart those intruded the collection from possible Technological have made it to advances fluids. compounds through analysis in these of chemical uncover, only drug medical dis use, or alcohol but also fluids, not depression. epilepsy, diabetes, clinical as orders such quoting supra, Martinez-Fuerte, 558, United States v. Cf. (1975) (checkpoint Brignoni-Ponce, in 873, 422 U. S. ” “ only question quiry or two’ about motor ‘a brief involves residence). Appeals for the District of As the Court ist’s may provide “[S]uch tests Circuit has observed: Columbia they through periscope which can with a Government officials private peer even in life, in her an individual’s behavior into App. D. C. McKenzie, 266 U. S. her home.” Jones own (1987); Capua Plain see also 89, 335, F. 2d 1986) (urine (NJ testing Supp. F. field, off-duty “reports person’s on a surveillance” which “form of present surely just had been as someone activities as requirement disclose that workers watching”)- FRA’s days prior during they the 30 have taken the medications confidentiality impinges upon further chemical attending personal customarily health secrets. precedents, reading any the intrusiveness

By our they full-scale other demands that three searches these —like by probable justified It is no answer cause. searches—be majority, have workers suggest, that railroad as does protection this Fourth relinquished afforded them by “participating] in in- requirement, either Amendment safety” pervasively dustry regulated to ensure that is pursuant periodic law or undergoing to state fitness tests agreements. collective-bargaining Ante, at 627. sug- regulatory refute search area in the

Our decisions industry heavy regulation the railroad gestion of that the in- rights eclipses the Fourth Amendment under workers’ bodily probable fluids showing upon when their of cause sist exclusively in- being This of cases has line extracted. are respect employer property, which of volved searches history government over- “[c]ertain have such a industries expectation privacy exist for could sight that no reasonable enterprise.” Marshall proprietor stock of such over (1978) (emphasis added; Barlow’s, Inc., 307, S. 436 U. v. Burger, omitted), quoted 482 U. S. York v. New citation (1987). regulatory have intimated that Never we 691, persons. rights privacy employees’ in their searches reduce Municipal 387 U. S. Francisco, San v. Court See Camara (“[T]he (1967) personal [not] inspections in na- are 523, 537 (1981); Dewey, ture”); 598-599 594, S. 452 U. cf. Donovan pointed in O’Con- supra, out As Court at 313. Marshall, rights at the Amendment lose Fourth do not nor, individuals workplace gate, see Oliver S., 716-718; at also (1984),any more than 170, 178, n. 8 466 U. S. States, United rights O., T. L. door, they relinquish at schoolhouse these a v. threshold, room 333, or hotel S., at U. Hoff rights mean These 293, 301 States, 385 U. S. United portals, having passed through these an indi- if, little indeed subject suspicionless may his to a search of remain vidual solely government grounds person justified that the al- ready permitted a search of the inanimate con- to conduct is holding surrounding In area. searches of tents regulatory category persons searches fall within the probable permitted individual- in the absence of cause or even dangerous suspicion, majority sets a and ill-conceived ized precedent. majority’s suggestion that railroad workers’ is

only minimally the collection and of their invaded bodily they undergo periodic fitness tests, fluids because equally an initial 624-625, matter, baseless. As ante, at participation in did render “mini- if these fitness tests even security,” bodily employee’s ante, at 628, mal” an “interest minimally person require, intrusive searches such justificatory showing precedents, a of individual- under our fundamentally, suspicion. supra, ized See at 637. More routinely employees required to submit to railroad are not employment, gain maintain blood or urine tests to or to ordinarily employ- employers do not have access to railroad certainly purpose of as- urine, not for ees’ blood usage. employees certaining or alcohol That eyesight, hearing, undergo skill, intelli- sometimes tests hardly prepares gence, agility, them ante, n. and to to the extraction of for Government demands submit bodily supervision, or to have these blood, to excrete under psychological physiological and secrets fluids tested for the may Surely employees they in- who release basic contain. personal history so formation about their financial by may employers not, their “ethical fitness” do so ascertain respect expectations privacy doing, relinquish to their pa- revealing though personal these diaries, their letters and may pers be of their character. invalidating recognize in- searches

I the full-scale comport regime testing failure to FRA’s for volved the probable cause Fourth Amendment’s command with the transit attempts rail make the Government’s hinder rights have humanly possible. But constitutional as as safe the maximize consequences, and one is that efforts their always must public intentioned, matter how well welfare, no po- the pursued Were boundaries. within constitutional Amendment the Fourth the constraints of lice from freed wrongdoing, day just evidence of criminal to seek out one pre- probably resulting and incarcerations would convictions tolerate this Our refusal to of fatalities. thousands vent gov- specter that even beneficent our shared belief reflects money, power save to save exercised ernmental —whether always yield to run on time—must the trains lives, or make safeguards.” loyalty Almeida- to constitutional “a resolute (1973). The 413 U. S. States, v. United Sanchez loyalty less here. demands no Constitution hHK—I I—I majority’s accepting view that the FRA s collec- Even analyzed appropriately program testing under a tion and balancing under the literal terms test, and not multifactor program I still find Amendment, would the Fourth testing suspicionless and urine blood The benefits invalid. liberty imposed personal outstripped by the costs are far deriding by erroneously Only sweeping as by such searches. dignity stake, and interests at “minimal”the efficacy testing likely uncritically inflating the FRA’s majority program, a different balance. strike does nothing I minimal about above, find reasons stated For the liberty whenever occurs intrusion on individual analyzes person’s forcibly blood draws and Government program aspects exac- of the FRA’s urine. Several procedures. Most strik- these intrusiveness of erbate the only ingly, agency’s forbid, but, do not prosecutors appear the blood to obtain invite criminal fact, samples as the FRA and use them urine drawn investigations 49 CFR and trials. See criminal basis of (“Each 219.211(d) (1987) § sample . . . avail- be made party litigation upon appropriate able to ... a service of .”). compulsory process sample . on the custodian of the . unprecedented leaving open pos- invitation, This is an sibility prosecutions suspicionless of criminal based on body. Treasury Employees, post, searches the human Cf. (Customs drug-testing program prohibits at 666 Service use prosecutions); of test results in criminal Camara, S., at 537. majority acknowledges, passing, pos-

Tobe sure, the sibility prosecutions, of criminal ante, 5-, n. but it re- possibility fuses to factor this into its Fourth Amendment balancing process, stating “the record does not disclose 219.211(d) (1987)] § [49 be, CFR was intended to or ac- tually highly been, has so used.” Ibid. This demurrer is disingenuous. parties they The federal concede that find “no prohibition testing prose- FRA on the release of results to cutors.” Brief for Parties n. Federal 15. The absence prosecutions likely to date—which due to the fact that the FRA’s have been held invalid for much of history hardly proves prosecutors their brief will not — avail themselves of the FRA’s invitation in the future. If majority really impact pri- views the of FRA vacy generate interests as minimal even if tests these crimi- prosecutions, say prospect pros- If nal it should so. majority validity ecutions would lead to reassess the testing program prosecutions part balance, as say approval program its so, too, it should or condition of that prosecutors. ducking on the nonrelease of test results to In important majority gravely disserves both the issue, rights values served the Fourth Amendment and the persons Furthermore, those whom the FRA searches. majority’s refusal to restrict the release of test results casts conceptual considerable doubt on the basis of its decision— railway safety “beyond “special that the need” of is one (citations Ante, at enforcement.” for law need normal omitted).10 of intrusive aspects needlessly overlooks also majority

The requires the FRA Although itself. process testing con urine, agency both blood testing collection not tests —do blood tests —unlike urine mandatory that cedes differenti cannot and therefore impairment current measure which or alcohol use prior from on-duty impairment ate CFR See 49 behavior. user’s to affect ceased has or alco drugs use reveal 219.309(2) (1987) (urine may test § that Given sampling). to days prior as as much hol impairment, ascertain current is to goal stated FRA’s their substances have used who identify persons to to duties their railroad in advance sufficiently time spare mandatory §219.101(a), on-duty impairment, no risk pose least, the very At the wholly excessive. seems testing urine findings confirming urinalysis use of limit its FRA could tests. blood aby person’s suggested impairment current urine testing automatically caused invasion The additional “will be interests that privacy ensures hardly well as blood as O., L. T. at S., 469 U. necessary.” is more than no invaded 343. worker intrusions of the trivialization

The majority’s matched at is program FRA’s testing by the posed of the Govern- acceptance its blind extreme other engaged employees “dete[r] will assertion ment’s substances controlled using from tasks safety-sensitive information invaluable obtain railroads alcohol,” and “help doc regulatory search majority’s extension of the a result As have used finds to FRA individuals person, searches trine nothing impairment had if their even prosecution, criminal drugs face evidence majority observes causing an accident. to do search regulatory valid during an otherwise unearthed behavior criminal obtaining “pretext” be a is shown to the search unless not excludible Burger, New York ante, 5, 621, citing trial, n. at for a criminal evidence but, majority belittles (1987) 716-717, defense n. 27 S. —a day. for another mercifully, preserves major 630. Ante,

about the causes of accidents.” respect, simply implausible it is first, deterrence, With testing employees major occur, accidents 49 CFR after 219.201(a)(1) § (1987), appreciably discourage will them from using drugs or alcohol. As Justice observes Stevens opinion: concurring his people employ- I think most “Most would —and go expectation

ees as with the well—do not to work that they may major particularly be in a accident, involved causing catastrophic one such results as life or the loss of requiring release of hazardous material an evacuation. they possibilities Moreover, even if are conscious of the might that such an accident occur and that alcohol or might contributing use if se- factor, a the risk of personal injury does not deter their rious use of these highly unlikely substances, it seems that the additional employment any have threat of loss of would effect on Ante, their behavior.” at 634. majority’s people skip rationale, the deterrence who

Under sunny day spend or work will school to at the zoo not taunt truancy might the lions because their or absenteeism be dis- they is, covered the event are mauled. It the course, postaccident accident, fear of a revelation, fear of the not the majority’s acceptance credulous that deters. The of the suspect made all the FRA’s deterrence rationale is more agency’s ample in an otherwise ad- introduce, failure to any explaining supporting record, studies or its ministrative theory of accident deterrence. poverty majority’s of the deterrence rationale leaves diagnosing major interest causes of Government’s remaining justification

accidents as the sole for the FRA’s denigrate testing program. I but it interest, do not hang thread from which to such an intrusive seems slender program, particularly given knowledge that the that or one impaired more workers were at the time of accident falls proving abuse caused or exacer- far short of that substance 1988). (CA9 575, 587 F. 2d See accident. that bated co-worker or witness is needed: evidence corroborative Some indications at least misfeasance, a worker’s accounts area a worker’s was within the accident the cause course, the are, of particularized facts responsibility. Such requirement suspicion individualized very essence urge, which respondent workers which insuperable on “pos[e] burden Appeals no found Court reliance Furthermore, 588. government.” Id., at aas accident diagnosing of an the causes importance of espe- testing plan is upholding the FRA’s critical basis cially frequent admonition square our hard episode does ascertaining of a criminal causes interest require- Amendment’s departure the Fourth justify from upon the a search never sustained “[T]his has ments. Court reasonably expected evidence find ground officers sole Nor 356. S., at Katz, .” particular . . . crime aof it here. should

IV Court, dissenting opinion Member as a In first his observed: Holmes Wendell Oliver For law. make bad cases, like hard cases,

“Great by real great, of their reason great called cases are future, but because shaping the law of importance the overwhelming interest of immediate accident some judgment. feelings the appeals distorts and to the which hydraulic a kind of exercise interests immediate These pressure previously seem clear was what makes which principles of well settled even which before doubtful, and v. United Securities Co. Northern will bend.” law 400-401 S. States, 193 U. society’s away by swept obses- majority Court, of this

A today illegal drugs, suc- scourge stopping the sion Holmes. pressures Justice popular described the cumbs testing, the plan urine for blood upholding FRA’s In textually principles based majority time-honored bends principles Framers of of the Fourth Amendment — has a designed the Government Rights to ensure Bill of invade justification it when seeks strong individualized ap- Framers would be privacy. I believe an individual’s upon governmental intrusions palled mass vision majority body allows integrity the human majority’s reality. victims immediate become railroad workers those will be timorousness constitutional forcibly collect bodily now the Government whose fluids today's ultimately, analyze. reduce decision will But may enjoy, under- Holmes for, as Justice all citizens easily. snap back do not principles bent, law, once stood, I dissent.

Case Details

Case Name: Skinner v. Railway Labor Executives' Assn.

Court Name: Supreme Court of the United States

Date Published: Mar 21, 1989

Citation: 489 U.S. 602

Docket Number: 87-1555

Court Abbreviation: SCOTUS