National Treasury Employees Union v. Von Raab,

489 U.S. 656 (1989), argued 2 Nov. 1988, decided 21 Mar. 1989 by vote of 5 to 4, Kennedy for the Court, Marshall, Brennan, Scalia, and Stevens in dissent. At issue in the case, decided along with *Skinner v. Railway Labor Executives Association (1989), was the constitutionality of the United States Custom Service’s drug-testing program that analyzed urine samples of employees who sought promotions to positions involving the interdiction of drugs, the carrying of firearms, or access to classified materials.

The program was challenged as violative of the *Fourth Amendment by a union of federal employees. A federal district court agreed and enjoined the service from continuing it. The court of appeals vacated the *injunction.

The Supreme Court held that the Fourth Amendment’s prohibition of unreasonable searches and seizures applied to the program. Balancing the individual’s privacy expectations against the government’s special needs, the Court acknowledged that such needs can justify a departure from the Fourth Amendment’s ordinary warrant, individualized suspicion, and *probable cause requirements. In this case, it stressed that the program only applied to those seeking promotions and that it was carefully designed to protect *privacy. Given the epidemic of drug abuse, the danger that service personnel using drugs could be bribed and the danger inherent in drug-using service agents misusing their firearms, the Court held that the government had demonstrated a compelling interest in safeguarding the borders and the public safety sufficient to outweigh the privacy expectations of those employees who sought promotions. The classified material issue was remanded to the lower court for further development of the record.

In dissent, Justices Thurgood *Marshall and William *Brennan, briefly summarizing their dissent in Skinner, found the Court’s dismissal of the Fourth Amendment’s probable cause requirement unprincipled and unjustifiable. Justices Antonin *Scalia and Anthony *Kennedy chastised the Court for accepting the service’s program based solely on speculation without any showing of actual harm or its likelihood.

See also search warrant rules, exceptions to.

Gerald N. Rosenberg