Thursday, December 5, 2013

Immediate breathalyzer test for (certain) NYPD officers does not violate Fourth Amendment

Following the highly publicized fatal shooting of Sean Bell in 2006, New York City adopted a rule the following year that says that if a police officer shoots someone, he must submit to a breathalyzer test. The labor union challenges that rule under the Fourth Amendment. The Court of Appeals says this procedure is legal.

The case is Lynch v. City of New York, decided on November 15. Under the rules, if the test produces a reading under .08, the officer has nothing to worry about. Otherwise, he must submit to a more alcohol-sensitive test at Internal Affairs. If he fails the test, IAB decides whether the officer is unfit for duty due to intoxication. Since the alcohol test is a search, the question is whether it violates the Fourth Amendment,which only prohibits "unreasonable" searches. You don't always need a warrant under the Fourth Amendment. Nor do you always need reasonable suspicion to conduct a search. Not if the government can satisfy the "special needs" doctrine, a narrow exception to the usual Fourth Amendment rules.

Does the special needs doctrine apply here? You know the answer. The Warren Court is no longer with us. Under "special needs," we look at the primary purpose of the search, i.e., the immediate objective of the search, not its ultimate goal. We also ask if the interests served by special needs outweighs the privacy interests at stake. Here, the immediate goals of the alcohol search is not criminal law enforcement (i.e., to punish the officer for unlawful intoxication) but personnel management and the maintenance of public confidence in the police department when officers discharge their guns and cause death or injury. The test also deters officers from carrying a gun while they are unfit for duty due to alcohol.

What about the lack of any warrant? The procedures are sufficiently narrow and specifically defined to satisfy the special needs doctrine. They only apply when an officer discharges his gun, causing injury or death. IAB has no discretion at that point to conduct the test, and officers know the rules are in place. A warrant would provide little or nothing in the way of personal privacy protections. Also, the burden of obtaining a warrant would frustrate the purpose of the program, as alcohol is eliminated from the bloodstream at a constant rate, such that any delay in getting the warrant could get the officer off the hook.

Finally, the rules are reasonable. Officers have a reduced expectation of privacy as they carry guns and have authority to use deadly force. Breath testing is not that intrusive. And, the police department has a manifest need to confirm that officers who discharge their guns are fit for duty. While the Union argues that the City has less intrusive means to test for alcohol, the City is not required to use the least intrusive search practicable. The City therefore is entitled to summary judgment in this case.     

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