When Is a Search Not a Search?

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A New York Times piece this weekend reports on a hand-held device called DrugWipe that can detect minute residual particles of the most common illegal drugs. Schools are apparently attracted to it as a less intrusive way of "screening" students. I have my doubts: Most people know the factoid that a large proportion of the currency in circulation has detectable traces of cocaine; I'd bet little bits of various drugs are pretty common in our environment.

The interesting question is this: We know that a dog sniff doesn't even count as a search under current Fourth Amendment jurisprudence. The idea is that since it's minimally intrusive and only detects the presence or absence of contraband without risking exposure of unrelated personal information, as rifling through someone's drawers might, it doesn't trigger Fourth Amendment scrutiny at all. And if a dog sniff doesn't count as a search, it seems as though, a fortiori, neither does a mere swipe with this device, which sounds even less intrusive than having a big ol' mutt snuffling around your person.

The question then is: What happens when these things become so cheap that they're standard issue for cops, teachers, and possibly others? How long before suspicionless "drug swipes" are a routine part of a normal day?

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  1. Everyone watch for the near-future news story about how schools are turning up 90+% positive readings. This will trigger greater crackdowns, a renewed plea to “talk to your kids,” and parents (and their lawyers) blaming schools for fostering an environment where “good” kids have frequent, unavoidable contact with drug-addled sociopaths. This should be great fun.

  2. How soon before they’re installed in doorways and hooked up to the telescreen.

  3. Drugwipe requires that you actually touch the person so it probably will fall under 4th amendment protections. It’s basically a chemical frisking.

    There are electro-chemical detectors in the works that function like an police dog detecting chemical traces in the air at a distance. These electronic noses are already in use in industrial settings and some pass through bomb screening devices. It won’t be long before you can embed them into door frames like a metal detector or put them in a hand held unit. Then the fun will begin.

    Remote chemical sensing can in principle identify and track a person just like a dog and unlike ones appearance ones scent is nearly impossible to alter. You can not only find a person but trace their route, tell if they interacted with another person, detect some diseases, determine race and sex, tell if they fired a gun etc.

    The privacy implications of such technology are huge but I don’t think they’ll get much attention.

  4. The question then is: What happens when these things become so cheap that they’re standard issue for cops, teachers, and possibly others?

    It means the US Gov’t is no longer the best system in the world to live under, even with all its flaws.

    I hear this all the time, when you make some criticism about the US, the usual response is “its still the best country to live in.” Nearly all the time I would agree, but at what point will I start disagreeing? I think that point is getting closer and closer by the election cycle!

    Jeff-
    I would agree. Even though you would probably have the same results if you had the “swipe” in the 60’s and 70’s during nastalgic parents “Good Ole Days.”

  5. It is not entirely correct to state that a dog sniff is not a “search” under Fourth Amendment jurisprudence. The correct statement of the law is that a dog sniff of a package is not necessarily an unreasonable search. It is entirely unsettled law whether a dog sniff of a person is an unreasonable search.

    Also at issue in these types cases is whether the sniff is individualized (i.e., based on probable cause or reasonable suspicion), a random sample or a blanket sweep of everyone.

    Finally, the article mentions the swipes as an alternative to taking urine samples of all students. Last time I checked (but it’s been a while), such sweeping drug tests in schools are prohibited anyway — the school needs a more precise interest (e.g., testing athletes out of safety concerns).

  6. It’s amusing to see that some people still think that the fourth amendment has any meaning. These days, the fouth can be obviated simply by saying certain words. These include, “drugs” and “terror.”
    If you doubt me, remember the footage of the cops searching a high-school hallway with guns drawn. The few people who objected to this did so on the basis that pointing guns at students isn’t nice. Few in the mainstream questioned the validity of the search itself.
    I could go on, but let’s just say that the fight is over. The nannies have won.

  7. So much for smoking in the boy’s room. You could install these things in the restrooms and catch all sorts of stuff.

  8. What’s the problem if you’ve nothing to hide?

  9. On a semi-related topic, yesterday’s Washington Post had an article about how gangs were spending less time being violent and shooting guns, and more time focusing on moneymaking, i.e. drug selling. According to the article, this is somehow a bad development. Personally, I have no problem with drugs (or the people who use them), but I DO have a problem with innocent bystanders getting shot by stray bullets. Hooray for the nouveau gangs!

  10. I am so sick of hearing people use the “What’s the problem if you’ve nothing to hide?” line. If the $20 bill I got from the bank is going to qualify me for a search then any one can qualify for a search at any time. You might disagree but that seems like a lot of latitude to give anyone, cops, military, I don’t care who.

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