Posted by Orin Kerr:
Is A Psychological Test A Fourth Amendment "Search"?:
http://volokh.com/archives/archive_2005_05_29-2005_06_04.shtml#1117547917
I just came across a very interesting opinion by Judge Posner from
earlier this year on the question of whether a government-administered
psychological test is a Fourth Amendment "search," and if not, what it
might be.
In [1]Greenawalt v. Indiana Dept of Corrections, a research research
analyst for the state prison system was required to submit to a
psychological test for work. She later sued the state claiming that
the test had "searched" her in violation of the Fourth Amendment.
Judge Posner disagreed (most citations omitted, although for reasons
that will become clear, not all of them):
Almost any quest for information that involves a physical
touching, which a test does not, is nowadays deemed a "search"
within the meaning of the Fourth Amendment, which the Fourteenth
Amendment has been interpreted as making fully applicable to state
action. Drawing a tiny amount of blood from an unconscious person
to determine the level of alcohol in his blood is a search, and so
even is administering a breathalyzer test, where physical contact
is at its minimum--the subject's lips merely touch the
breathalyzer. And so finally is a urine test, Board of Education v.
Earls, 536 U.S. 822 (2002), in which the subject is required merely
to provide a urine sample, so that the test instrument does not
touch the subject's body at all. The invasion of privacy caused by
submitting to the kind of psychological test given to the plaintiff
in this case may well have been more profound than the invasion
caused by a blood test, a breathalyzer test, or a urine test,
though we cannot say for sure; the test is *not in the record--all
we know is that, according to the complaint, "the battery of
psychological tests examined Ms. Greenawalt's personality traits,
psychological adjustments and health-related issues." It is true
that she consented to take the test, but had she not done so she
would have lost her job, which, if she had a constitutional right
not to take the test, would place a heavy burden on the exercise of
her constitutional rights.
Many cases say that the Fourth Amendment is intended to protect
privacy. E.g., Kyllo v. United States, 533 U.S. 27, 32-33 (2001);
Skinner v. Railway Labor Executives' Ass'n, supra, 489 U.S. at 617;
Although this is historically inaccurate, Boyd v. United States,
116 U.S. 616, 624-3 (1886); Orin S. Kerr, "The Fourth Amendment and
New Technologies: Constitutional Myths and the Case for Caution,"
102 Mich. L.Rev. 801 (2004); Raymond Shih Ray Ku, "The Founders'
Privacy: The Fourth Amendment and the Power of Technological
Surveillance," 86 Minn. L.Rev. 1325, 1333-38 (2002), it is not
uncommon for constitutional provisions to be supplied with
rationales that the framers and ratifiers of the provisions would
not have recognized. Nor is the term "a searching inquiry" an
oxymoron; wiretapping is deemed a search even when there is no
trespass (the tap will usually be on a section of the phone line
that is outside the premises on which the phone being tapped
resides), though all that is taken is thoughts, often concerning
private matters, expressed in conversation. Berger v. New York, 388
U.S. 41, 50-51 (1967); Katz v. United States, 389 U.S. 347, 353
(1967). Cases involving the rifling of an employee's desk, such as
O'Connor v. Ortega, 480 U.S. 709, 725-26 (1987), are similar in
this regard: the employee has no property or possessory interest in
his desk, yet the invasion of his interest in privacy makes the
rifling a search.
Nevertheless we do not think that the Fourth Amendment should be
interpreted to reach the putting of questions to a person, even
when the questions are skillfully designed to elicit what most
people would regard as highly personal private information. The
cases we have cited show, it is true, that a Fourth Amendment claim
does not depend on the claimant's being able to establish an
invasion of such interests that tort law traditionally protects as
the interest in bodily integrity (protected by the tort of
battery), in freedom of movement (protected by the tort of false
imprisonment), and in property (protected by the torts of trespass
and of conversion). But that is all they show, so far as bears on
the issue in this case. The implications of extending the doctrine
of those cases to one involving mere questioning would be strange.
In a case involving sex or some other private matter, a government
trial lawyer might be required to obtain a search warrant before
being allowed to conduct a cross-examination--or the judge before
being allowed to ask a question of the witness. Police might have
to obtain search warrants or waivers before conducting routine
inquiries, even of the complaining witness in a rape case, since
they would be inquiring about the witness's sexual behavior.
Questioning in a police inquiry or a background investigation or
even a credit check would be in peril of being deemed a search of
the person about whom the questions were asked. Psychological
tests, widely used in a variety of sensitive employments, would be
deemed forbidden by the Constitution if a judge thought them
"unreasonable."
Although I would quibble with a few minor points, this is basically
right. Being asked and having to answer questions is primarily a Fifth
Amendment question, not a Fourth Amendment question. That's why
subpoenas to testify before a grand jury [2]raise few if any Fourth
Amendment issues, and why the Supreme Court felt the need to create
[3]the Miranda doctrine to regulate custodial interrogations of
suspects. If asking questions and getting answers were a Fourth
Amendment search, the law of criminal procedure would look
dramatically different than it does today.
The opinion goes on to ponder whether the appellant might have state
law claims or a Due Process claim instead of a Fourth Amendment claim.
If you're interested in privacy law, it's worth a read.
References
1. http://caselaw.lp.findlaw.com/data2/circs/7th/041997p.pdf
2. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=410&invol=1
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=384&invol=436
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