P. Defendant Basinger's Statement Regarding His Refusal To Take A Court Ordered Drug Test - X

Basinger v.
Basinger, May 2013 Emergency Hearing, Cobb County Superior Court, Judge Adele Grubbs presiding Page 1 of 15
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The defendants (William H. Basinger) statement regarding his refusal to take a court ordered
warrantless drug test in the Cobb County Drug Courts drug test lab based on hearsay the
defendant holds that it is a violation of his rights under the US Constitution and that it is a violation of
the Federal Rules of Civil Procedure Rule 37. (b)(2)(A)(VII) for the Court to hold him in contempt and
continually threaten him in a terroristic manner with incarceration and with permanent loss of his
child for refusing to allow the court to end run his constitutional rights.
The defendant (William H. Basinger) made a strong argument to the Court and the Ad Litem in writing
(after 4 polite requests over 4 months) that it was his constitutional liberty right under the 14
th

amendment to be able to see his daughter more than the court allowed 4 days per month (and to have
summer visitation which the court had neglected to address) during what was becoming an outrageous
temporary period (pendency) of 18 months since the filing for divorce. The courts answer to his
request was to order an emergency hearing against him without allowing him any preparation time or
witnesses which ended with the Court taking away his visitation rights with his daughter totally using
hearsay to accuse the defendant of felony stalking and threats against the plaintiff. The defendant
became visible upset that the court, based on the plaintiffs hearsay alone, was taking his child and
falsely accusing him of felonies. Upon observing that the defendant was upset with the unfairness of the
courts actions, the court further ordered him to take a warrantless drug test in the courthouse under
the same conditions as felons in drug court (deputies observe privates during sampling and any positive
tests are an admission of guilt of drug use resulting in criminal charges) and to also take a $1700
psychological evaluation where the defendant was ordered to sign away his privacy rights so the ad
litem would be able to have ex-parte communications with the psychologist regarding mental health
records, mental hearth work product, allow him to give his opinion to try to slant the psychologist
report (which he did) and make his own summary out of context to use instead of the official report in
order to support his own position - retaliation against the defendant for having previously accused the
ad litem of not doing his due diligence upon discovery that none of the defendants witnesses were to be
interviewed.
"The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections
guaranteed by this are much broader in scope, and include the right to life and an inviolate personality -- the right to be left alone -- the most
comprehensive of rights and the right most valued by civilized men. The principle underlying the Fourth and Fifth Amendments is protection
against invasions of the sanctities of a man's home and privacies of life. This is a recognition of the significance of man's spiritual nature, his
feelings, and his intellect." Justice Brandeis, Olmstead v. U. S. (1928)
It is not only publically embarrassing, it is unconstitutional under the 4th amendment for a Court
to order the Defendant, a free or ordinary citizen, to take a "suspicion-less" or "warrantless search" drug
test , without conviction or probable cause to take a drug test; it is especially unconstitutional for the
Defendant to be ordered to take the drug test in a Drug Court (criminal justice) drug test lab which in
itself presents two additional violations- an invasion of the defendants privacy (directly observed urine
sampling) and a fifth amendment violation against self-incrimination (e.g. guilty of drug possession if
drugs detected in urine regardless of the fact that there is no medical doctor or medical officer present
to distinguish or interpret prescribed medicines and their associated metabolites from primary and
secondary illicit or fake scripted actives). There is a constitutionally relevant distinction between
someone who has been convicted of a crime and someone who is an ordinary citizen or one who has
Basinger v. Basinger, May 2013 Emergency Hearing, Cobb County Superior Court, Judge Adele Grubbs presiding Page 2 of 15
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been merely accused of a crime but is still presumed innocent - to overlook this distinction flies in the
face of both common sense and binding case law. To hold the defendant in contempt for refusing to
take a warrantless drug court type urine drug test is also in violation of the Federal Rules of Civil
Procedure Rule 37. (b)(2)(A)(VII), which embodies the 4
th
and 5
th
amendments and was adopted by
the State of Georgia along with the Federal Rules of Evidence. Therefore as a matter of principle and
righteousness the defendant refuses, with all due respect to the Superior Court of Cobb County, to
forfeit, waive or allow his Constitutional rights to be end run by the State (as represented by the
Superior Court of Cobb Co.), even though the State wields a heavy weight that holds the custody of his
daughter, care of his handicapped son, his job and threats of his incarceration lopsided in the balance
against him. What may appear expedient in this case is not worth the cost that this particular practice
by the State exacts on the rights of all free men - if left unchallenged there may soon be only be a wisp
of dust in place of the letters that once weighed heavy on the paper of our great Constitution.
The specific grievances of the Defendant are as follows:
1) It is against the fifth amendment (right against self incrimination) and the "unconstitutional
conditions" doctrine to order a free citizen to drug test based on hearsay and have the order
to do so leveraged against the continued loss of visitation (custody) with his minor child and
threat of incarceration by being held in contempt.
2) To hold the defendant in contempt for refusing to take a warrantless drug court type urine
drug test is in violation of the Federal Rules of Civil Procedure Rule 37. (b)(2)(A)(VII), which
embodies the 4
th
and 5
th
amendments and was adopted by the State of Georgia as a necessary
part of the Federal Rules of Evidence.
3) Unlike parolees and Drug Court participants, the Defendant has not forfeited nor waived his 4th
amendment rights to search and seizure (submitting urine sample for testing) nor his right to
privacy (direct observation of Defendant while he is sampling by deputies with his pants down to
knees - ankles), nor has he waived nor forfeited his fifth amendment right against self-
incrimination (e.g. guilty of possession if positive detection is determined all without the
interpretation by a medical officer - can be construed as self incrimination in light of the odds of
a positive test result).
4) The taking of a urine sample for drug testing is considered a search by the US Supreme Court
which is a violation of a free citizens 4
th
amendment rights.
5) Direct observation of the defendants privates during urine sampling and submission (deputies
observe the defendants sampling with defendants pants down to his ankles) is essential for
criminal justice or Drug Court drug test labs but it constitutes an invasion of privacy for a free
citizen and is therefore unconstitutional. This step, even in the allowed sense for parolees and
drug court participants, requires that the observers and the donor be of the same gender -
which is not always the case for females being tested in Cobb county. Upon entry into the drug
court program, participants are required to execute a written agreement to comply with the
drug court program drug testing requirements, including the submission of observed urine
samples. Parolees forfeited their right as a condition of their parole. Free citizens, such as the
defendant, have not surrendered nor forfeited these rights.
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6) Defendant has not, and has never been, charged, convicted of a crime, arrested or even formally
charged with a crime, especially one that pertains to drug use.
7) No probable cause has been established - even if defendant has been formally charged by a
peace officer with a crime (which he has not).
8) Hearsay testimony by the plaintiff, which is not a probable cause evidentiary standard, was
presented to the court, without any evidentiary proof, all for the sole purpose of negatively
affecting the defendants custody with regards to the minor child and causing the Defendant
embarrassment in public.
9) There are no established cutoff standards for detection of drugs like that exist for workplace
(civilian), government or military - it is usually either positive or negative.
10) The drug testing results are used for a different purpose in the criminal justice system they are
used for prosecution, supervision of a defendants compliance, probation, pre-trial release or as
in drug courts case - monitoring a participants compliance. It is unconstitutional to use the drug
testing results of a free citizen for purposes aligned with law enforcement. It is not a special case
as laid out by the supreme court and constitutes 4
th
and 5
th
amendment violations.
11) The drug testing results, and any medical information contained, taken in the process of drug
testing within the criminal justice system are not protected against access by the criminal justice
system and perhaps not even protected against access by the public in general which raise more
issues of privacy and privileged medical information release violations.
12) It is a source of great embarrassment and humiliation for the Defendant to have to submit to
observed sampling and testing.
13) The Defendant holds a DEA personal and site license to work with, synthesis and store
controlled substances and a forced drug test in a law enforcement drug test facility can result in
the loss of the Defendants license and prevent him from working in the future.
14) No control on the circulation of the results in paper or in law enforcement data bases both of
which can harm the defendants right to work and have a job in the future.
15) More time away from work (already a major issue).
16) No promise from the Court that the Defendant will be given a copy of the results.
17) Numerous test results from drug tests already taken this year (within the last several months) by
the defendant at his doctors office (which are voluntary for DEA diversion purposes and are
protected under statutory and HIPAA regulations) were submitted on good faith to the ad litem.
The defendant is scheduled to take another drug test at his doctors office on July 16
th
.
18) The plaintiff and her attorney particular chose drug abuse, abuse and mental instability as the
platform for filing her divorce suit because those are the three things that most influence child
custody. The plaintiff is well aware that the Defendant is not a drug abuser and is only pursuing
it to embarrass the Defendant and keep the minor child that he raised from him even though he
was the primary caregiver of the minor child for seven years - which included up until the day
she filed.
Under the Forth Amendment, ordinary or free citizens, citizens accused under civil law, citizens accused
under criminal law (pre-trial presumption of innocence) and even ex-convicts are all afforded the
probable cause evidentiary standard a strict evidentiary standard that has to be overcome before
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they, and/or their property, can be subjected to search and seizure, whereas Parolees and participants
in Drug Court programs are only afforded the lesser reasonable suspicion evidentiary standard (e.g.
hearsay) a much reduced evidentiary standard to be overcome before they and/or their property can
be subjected to search and seizure. The same principal applies to the right to privacy, and in some
cases, the fifth amendment right against self-incrimination. Participants in Drug Court and prison
parolees are both held to a reduced level of Fourth Amendment rights because the participants of Drug
Court in essence plead guilty to drug charges they were accused of and accepted the Drug Court
program in lieu of prison time. The Constitution does not distinguish between those accused and those
not accused wherein Fourth Amendment rights are concerned. Therefore, if the government
discriminates based on pre-trial releasees and ordinary citizens, the conditions must then be rationally
related to the important interest of the state the US Supreme Court has established a list of special
interests in which this can be upheld- these include: train conductors, law enforcement who carry
firearms, persons entrusted with national security interests and law enforcement involved in drug
interdiction on the borders of the US. The fundamental rights granted in the Constitution are the
essence of our nation and the Supreme Court has always moved to preserve them. The state, in every
instance not given explicitly by the US Supreme Court, must go through the US Supreme Court and
prove that the compelling state interest substantially outweighs the fundamental right of an individual
to be free from unreasonable searches and seizures any argument which involves any parallels to the
motives of law enforcement is not sufficient. There must be a compelling special reason that is
narrowly tailored to the states interest as to why a free citizen should be required to waive his Fourth
Amendment rights and take a drug test in order to forego the loss of custody of defendants daughter or
imprisonment for contempt.
The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of
Rights which guards free ordinary citizens against unreasonable searches (which includes drug testing)
and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable
cause. Search and seizure (including arrest, samples for drug testing, etc.) are to be limited in scope
according to specific information supplied to the issuing court, usually by a peace or law enforcement
officer, who has sworn by it. The Fourth Amendment applies to the states, including the state of
Georgia, by way of the Due Process Clause of the Fourteenth Amendment to the United States
Constitution.
Relief Sought by Defendant: to Vacate Orders that require the defendant to have a drug screen,
psychological exam, not have to be made to sign away HIPPA and State Law rights to privacy during
psychological assessment efforts where treatment is pre-specified or intended.

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=============================================================================
RULE 37. FAILURE TO MAKE DISCLOSURES OR TO COOPERATE IN DISCOVERY; SANCTIONS
(PART b only)
(b) FAILURE TO COMPLY WITH A COURT ORDER.
(1) Sanctions in the District Where the Deposition Is Taken. If the court where the discovery is taken
orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be
treated as contempt of court.
(2) Sanctions in the District Where the Action Is Pending.
(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent
or a witness designated under Rule 30(b)(6) or 31(a)(4)fails to obey an order to provide or permit
discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may
issue further just orders. They may include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established
for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or
from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a
physical or mental examination.*

*RULE 37. (b) (2)(A)(VII) OF THE FEDERAL RULES OF CIVIL PROCEDURE

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=============================================================================
Binding Case Law
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Ferguson v. Charleston, 532 US 67 - Supreme Court 2001
The majority stated that the District Court had made such a finding. 186 F. 3d, at 477. The text
of the relevant finding, made in the context of petitioners' now abandoned Title VI claim, reads
as follows: "The policy was applied in all maternity departments at MUSC. Its goal was not to
arrest patients but to facilitate their treatment and protect both the mother and unborn child."
App. to Pet. for Cert. A-38. That finding, however, must be read in light of this comment by the
District Court with respect to the Fourth Amendment claim:
". . . THESE SEARCHES WERE NOT DONE BY THE MEDICAL UNIVERSITY FOR INDEPENDENT
PURPOSES. IF THEY HAD BEEN, THEN THEY WOULD NOT IMPLICATE THE FOURTH AMENDMENT.
OBVIOUSLY AS I POINT OUT THERE ON PAGE 4, NORMALLY URINE SCREENS AND BLOOD TESTS
AND THAT TYPE OF THING CAN BE TAKEN BY HEALTH CARE PROVIDERS WITHOUT HAVING TO
WORRY ABOUT THE FOURTH AMENDMENT. THE ONLY REASON THE FOURTH AMENDMENT IS
IMPLICATED HERE IS THAT THE POLICE CAME IN AND THERE WAS AN AGREEMENT REACHED
THAT THE POSITIVE SCREENS WOULD BE SHARED WITH THE POLICE. AND THEN THE SCREEN IS
NOT DONE INDEPENDENT OF POLICE, IT'S DONE IN CONJUNCTION WITH THE POLICE AND THAT
IMPLICATES THE FOURTH AMENDMENT." App. 1248-1249.
Respondents argue in essence that their ultimate purposenamely, protecting the health of
both mother and childis a beneficent one. In Chandler, however, we did not simply accept
the State's invocation of a "special need." Instead, we carried out a "close review" of the
scheme at issue before concluding that the need in question was not "special," as that term has
been defined in our cases. 520 U. S., at 322. In this case, a review of the M-7 policy plainly
reveals that the purpose actually served by the MUSC searches "is ultimately indistinguishable
from the general interest in crime control." Indianapolis v. Edmond, 531 U. S. 32, 44 (2000).
=============================================================================
United States v. Raymond Scott. 27 Pace L. Rev. 339 (2007)
Should a Pre-Trial Releasees [or Anyone "Presumed Innocent"] Be Subject To Fourth Amendment
Searches and Seizures Based on Probable Cause or Reasonable Suspicion?
Gina M. Muccio*
The Ninth Circuit affirmed the United States District Court for the District of Nevada's
suppression of a shotgun and statements made by defendant, Raymond Lee Scott (Scott), as a
violation of Scott's Fourth Amendment rights.
2
The court held that the government may not
conduct a search [ search = drug test, search of person or residence, etc.] of an individual
released while awaiting trial, based on less than probable cause even when his Fourth
Amendment rights were waived as a condition of pre-trial release.
3
[First the police drug tested
Scott based on hearsay and then after obtaining a positive drug test the police searched his
home and found a shotgun] [As the concurring opinion in Lebron noted, [i]t is undisputed that
a drug test is a search under the Fourth Amendment, and that the government generally has
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the burden of justifying a warrantless search. Id. at 1219 (Jordan, J., concurring) (citing United
States v. Bachner, 706 F.2d 1121, 1126 (11th Cir. 1983))] The main issue evaluated by the court
was whether the government can induce a defendant released on his own recognizance and
awaiting trial, to waive his Fourth Amendment rights and subject him to anything less than
probable cause concerning searches and seizures.
4
The court decided this question in the
negative.
5
This issue was one of first impression in the federal circuit courts and in the majority
of the state courts. The majority decision was two to one.
6
The Fourth Amendment grants
individuals the right to be free from unreasonable searches and seizures by the government.
7

Federal and state cases generally address the waiver of Fourth Amendment rights as they relate
to probationers and post trial sentencing releasees. The majority views pre-trial releasees as
"presumed innocent" with rights similar to ordinary citizens and very different from those
individuals convicted of crimes, who are consequently subject to a probable cause standard.
8

The Dissent believes, however, the pre-trial releasee does not enjoy the same rights as an
ordinary citizen, but instead enjoys rights similar to probationers and pre-sentencing releasees.
9
The Dissent asserts pre-trial releasees are charged with a crime, and are therefore, not ordinary
citizens. The conditions placed on their release are in lieu of being detained and held in jail.
Therefore, according to the Dissent they should be subject to the reasonable suspicion
standard, rather than the probable cause standard.
10
This case note will examine (1) whether
pre-trial releasees should be afforded more rights than the probationer, pre-sentencing
releasee and parolee; (2) whether pre-trial releasees should be subject to searches and seizures
based on probable cause or reasonable suspicion; (3) whether the government should be able
to induce the waiver of the pre-trial releasee's Fourth Amendment rights as a condition of his
release; and (4) the potential effects Scott will have on state pre-trial release procedures. Part I
will document the background information concerning the current state of the law as it pertains
to pre-trial releasees, probationers and pre-sentencing releasees. Part II will discuss Scott,
including the facts, holding, majority opinion, and dissenting opinion. Part III will discuss the
impact Scott has on the current state of the law, the potential of Scott for appeal and how the
Supreme Court may analyze and conclude on the issues presented. Part IV will conclude on the
importance of Scott on today's law.
=============================================================================
US v. Raymond Scott, 450 F. 3d 863 - Court of Appeals, 9th Circuit 2006
We first examine whether the searchesthe drug test and the search of Scott's housewere
valid because Scott consented to them as a condition of his release.
[4]

It may be tempting to say that such transactionswhere a citizen waives certain rights in
exchange for a valuable benefit the government is under no duty to grantare always
permissible and, indeed, should be encouraged as contributing to social welfare. After all,
Scott's options were only expanded when he was given the choice to waive his Fourth
Amendment rights or stay in jail. Cf. Doyle v. Cont'l Ins. Co., 94 U.S. 535, 542, 24 L.Ed. 148
(1877). But our constitutional law has not adopted this philosophy wholesale. The
"unconstitutional conditions" doctrine, cf. Dolan v. City of Tigard, 512 U.S. 374, 385, 114 S.Ct.
2309, 129 L.Ed.2d 304 (1994), limits the government's ability to exact waivers of rights as a
condition of benefits, even when those benefits are fully discretionary.
[5]
Government is a
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monopoly provider of countless services, notably law enforcement, and we live in an age when
government influence and control are pervasive in many aspects of our daily lives. Giving the
government free rein to grant conditional benefits creates the risk that the government will
abuse its power by attaching strings strategically, striking lopsided deals and gradually eroding
constitutional protections. Where a constitutional right "functions to preserve spheres of
autonomy . . . [u]nconstitutional conditions doctrine protects that [sphere] by preventing
governmental end-runs around the barriers to direct commands." Kathleen M. Sullivan,
Unconstitutional Conditions, 867*867 102 Harv. L.Rev. 1413, 1492 (1989); see generally id. at
1489-1505; Richard A. Epstein, The Supreme Court, 1987 Term-Foreword: Unconstitutional
Conditions, State Power, and the Limits of Consent, 102 Harv. L.Rev. 4, 21-25 (1988).
The dissent's inability to see a "constitutionally relevant" distinction, see dissent at 883,
between someone who has been convicted of a crime and someone who has been merely
accused of a crime but is still presumed innocent, overlooks both common sense and our
caselaw. Recently, in Kincade, a plurality of this court noted "the well-established principle that
parolees and other conditional releasees are not entitled to the full panoply of rights and
protections possessed by the general public." 379 F.3d at 833 (plurality opinion). It stressed the
"transformative changes wrought by a lawful conviction and accompanying term of conditional
release," id. at 834, and the "severe and fundamental disruption in the relationship between
the offender and society, along with the government's concomitantly greater interest in closely
monitoring and supervising conditional releasees," occasioned by a conviction and imposition
of release conditions, id. at 835.
[14]

Because the government failed to demonstrate that Nevada had special needs for obtaining the
drug-testing release condition, it cannot justify the searchtesting Scott for drugs without
probable cause using this approach.
[12]
As discussed above, we hold only that the government
has not made the requisite special needs showing in this case: It has not, for example,
demonstrated a pattern of "drug use leading to nonappearance" in court, p. 870 supra, nor
pointed to an individualized determination that Scott's drug use was likely to lead to his
nonappearance. The government in this case has relied on nothing more than a generalized
For much the same reason, in Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149
L.Ed.2d 205 (2001), the Court invalidated a state hospital's practice of testing pregnant women
for cocaine and providing the results to the police. The Court had upheld suspicionless drug
testing programs before, but in those cases, "the `special need' . . . was one divorced from the
State's general interest in law enforcement." Id. at 79, 121 S.Ct. 1281; see also id. at 77, 121
S.Ct. 1281 (citing Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103
L.Ed.2d 639 (1989) (drug testing of railroad employees to prevent railway accidents); Von Raab,
489 U.S. at 656, 109 S.Ct. 1384 (drug testing of Customs employees to ensure their integrity and
physical fitness); Vernonia, 515 U.S. at 646, 115 S.Ct. 2386 (drug testing of student athletes to
maintain order in schools)). In Ferguson, however, "the central and indispensable feature of the
policy from its inception was the use of law enforcement to coerce the patients into substance
abuse treatment." Id. at 80, 121 S.Ct. 1281. The Court considered the government's argument
that the "ultimate purpose" of the testing program was the "beneficent" goal of "protecting the
health of both mother and child," but nonetheless concluded that "the purpose actually served
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. . . `is ultimately indistinguishable from the general interest in crime control.'" Id. at 81, 121
S.Ct. 1281 (quoting Edmond, 531 U.S. at 44, 121 S.Ct. 447).
Nevada's decision to test Scott for drugs without probable cause does not pass constitutional
muster under any of the three approaches: consent, special needs or totality of the
circumstances. Since the government concedes there was no probable cause to test Scott for
drugs, Scott's drug test violated the Fourth Amendment. Probable cause to search Scott's house
did not exist until the drug test came back positive. The validity of 875*875 the house search,
which led to both the shotgun and Scott's statement about the shotgun, is derivative of the
initial drug test. That search is likewise invalid; its fruits must be suppressed.
* * *
We AFFIRM the district court's order granting Scott's motion to suppress.
============================================================================
12-12908 - American Federation of State, et al v. Rick Scott (Gov. Florida), Court of Appeals,
11th Circuit 2013
Case No. 12-12908, Date Filed: 05/29/2013 D.C. Docket No. 1:11-cv-21976-UU
Appeal from the United States District Court for the Southern District of Florida (May 29, 2013)
Before MARCUS, BLACK and SILER,* Circuit Judges. MARCUS, Circuit Judge: * Honorable Eugene
E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation.
Eleventh Circuit Federal Circuit Appeals Court ruled against Florida [and Georgia by incorpation]
on drug testing without the supreme court assigned special needs, as it is considered a search
under the 4
th
amendment
([T]he Supreme Court has unequivocally stated that it is the state which must show a
substantial special need to justify its drug testing.). As the concurring opinion in Lebron noted,
[i]t is undisputed that a drug test is a search under the Fourth Amendment, and that the
government generally has the burden of justifying a warrantless search. Id. at 1219 (Jordan, J.,
concurring) (citing United States v. Bachner, 706 F.2d 1121, 1126 (11th Cir. 1983)); accord id.
(explaining that the government has the burden of establishing a special need for a
warrantless and suspicionless drug testing requirement.).. in Chandler, the Court stated,
[W]e note, first, that the testing method the Georgia statute describes is relatively
noninvasive; therefore, if the special needs showing had been made, the State could not be
faulted for excessive intrusion. 520 U.S. at 318; accord id. (Georgia has failed to show, in
justification of [its drug testing statute], a special need of that kind.). These passages imply
that the burden rests with the proponent of the testing policy to come forward with evidence
of a special need. This is true even though both cases were civil lawsuits in which the plaintiffs
challenged the testing and thus bore the ultimate burden of persuasion. What happened in
those cases is that the plaintiffs met their initial burden, and the burden of production then
shifted to the government to demonstrate a special need sufficiently important to outweigh the
plaintiffs privacy interests. Von Raabs holding makes it
clear that those employees present the type of serious safety risk that justifies suspicionless
drug testing first, those directly involved in drug interdiction; second, those who carried
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firearms; and third, those who handled classified material. 489 U.S. at 660-61. The Court began
by identifying the governments special needs with regard to the first two categories. Id. at 668.
Customs employees responsible for drug interdiction were exposed to th[e] criminal element
and to the controlled substances it s[ought] to smuggle into the country; the Customs Service
was concerned not only about those employees physical safety but also the risk of bribery or
corruption. See id. at 669. Thus, the Supreme Court found that the Government ha[d] a
compelling interest in ensuring that front-line interdiction personnel [we]re physically fit, and
ha[d] unimpeachable integrity and judgment. Id. at 670. Similar logic applied to those who
carried firearms. Employees who may use deadly force plainly discharge duties fraught with
such risks of injury to others that even a momentary lapse of attention can have disastrous
consequences. Id. (internal quotation marks omitted). As for the privacy interests implicated
by the search, the Supreme Court began by noting that certain forms of public employment
may diminish privacy expectations even with respect to such personal searches. Id. at 671. The
Court explained that, [u]nlike most private citizens or government employees in general,
employees involved in drug interdiction reasonably should expect effective inquiry into their
fitness and probity. Much the same is true of employees who are required to carry firearms.
Id. at 672. Because successful performance of their duties depends uniquely on their judgment
and dexterity, these employees cannot reasonably expect to keep from the Service personal
information that bears directly on their fitness, and thus their privacy could not outweigh the
Governments compelling interests in safety and in the integrity of our borders. Id.
. As for the students [athletes] privacy interests, the Court noted that
the students by definition were (1) children, who (2) have been committed to the temporary
custody of the State as schoolmaster. Vernonia, 515 U.S. at 654. The State, acting in loco
parentis, exercised a degree of supervision and control that could not be exercised over free
adults. Id. at 655; see Earls, 536 U.S. at 831.
.In contrast to the preceding
cases, the Supreme Court rejected a Georgia statute that required all candidates for certain
state offices to submit to a drug test at a time of their choosing prior to the election. See
Chandler, 520 U.S. at 309-10. Georgia attempted to justify its policy based on the
incompatibility of unlawful drug use with holding high state office, contending that illegal drug
use draws into question an officials judgment and integrity and jeopardizes the discharge of
public functions. Id. at 318. The Court dismissed these broad and general rationales, finding
[n]otably lacking . . . any indication of a concrete danger demanding departure from the
Fourth Amendments main rule. Id. at 318-19. Unlike the railroad employees in Skinner or the
law enforcement officers in Von Raab, th[e Georgia] officials typically d[id] not perform high-
risk, safety-sensitive tasks, and the required certification immediately aid[ed] no interdiction
effort. Id. at 321-22. Worse still, Georgias testing program was not even well-crafted to detect
drug use, since the candidates themselves scheduled the drug test and could easily evade a
positive result. Id. at 319-20. The Supreme Court therefore had little trouble declaring this
policy unconstitutional.

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Main Excerpts
To begin with, a panel of this Court in Lebron held that the burden of producing the special-
needs showing rests with the State. See 710 F.3d at 1211 n.6 ([T]he Supreme Court has
unequivocally stated that it is the state which must show a substantial special need to justify its
drug testing.). As the concurring opinion in Lebron noted, [i]t is undisputed that a drug test is
a search under the Fourth Amendment, and that the government generally has the burden of
justifying a warrantless search. Id. at 1219 (Jordan, J., concurring) (citing United States v.
Bachner, 706 F.2d 1121, 1126 (11th Cir. 1983)); accord id. (explaining that the government has
the burden of establishing a special need for a warrantless and suspicionless drug testing
requirement.). And although there is scant authority outside this Circuit discussing the
distribution of burdens in suspicionless drug testing cases, the D.C. Circuit has observed that,
[a]lthough neither Von Raab nor Skinner directly addressed this question, Von Raab may hint
that the burden rests with the government. Am. Fedn of Govt Emps. v. Skinner, 885 F.2d 884,
894 (D.C. Cir. 1989).
Indeed, the relevant Supreme Court cases suggest that the government bears the burden of
producing the special-needs showing once the plaintiff has made an initial showing of an
unconstitutional search. In Von Raab, for example, the Supreme Court concluded that the
Government has demonstrated that its compelling interests in safeguarding our borders and
the public safety outweigh the privacy expectations of employees. 489 U.S. at 677 (emphasis
added). Similarly, in Chandler, the Court stated, [W]e note, first, that the testing method the
Georgia statute describes is relatively noninvasive; therefore, if the special needs showing had
been made, the State could not be faulted for excessive intrusion. 520 U.S. at 318; accord id.
(Georgia has failed to show, in justification of [its drug testing statute], a special need of that
kind.). These passages imply that the burden rests with the proponent of the testing policy to
come forward with evidence of a special need. This is true even though both cases were civil
lawsuits in which the plaintiffs challenged the testing and thus bore the ultimate burden of
persuasion. What happened in those cases is that the plaintiffs met their initial burden, and the
burden of production then shifted to the government to demonstrate a special need sufficiently
important to outweigh the plaintiffs privacy interests.
Moreover, this burden-shifting framework follows directly from Fed. R Evid. 301, which states
that, [i]n a civil case . . . the party against whom a presumption is directed has the burden of
producing evidence to rebut the presumption. Once a 1983 plaintiff proves that the Fourth
Amendments ordinary requirements have not been met, we presume that a search is
unconstitutional. Cf. Groh v. Ramirez, 540 U.S. 551, 564 (2004) (since a home search ordinarily
requires a warrant, a warrantless search of the home is presumptively unconstitutional).
Then, the government, which is the party against whom the presumption is directed, must
make a sufficiently powerful showing to justify its intrusion on the plaintiffs expectation of
privacy. Consistent with the general rule in 1983 cases, Fed. R. Evid. 301 does not shift the
burden of persuasion, which remains on the party who had it originally.
Shifting the burden of production to the government to justify a warrantless search is a familiar
feature of 1983 civil lawsuits raising Fourth Amendment claims. Thus, for example, when a
plaintiff asserts that the police conducted an unconstitutional warrantless search, and the
-----------------------------------------------------------------------------------------------------------------------------------------------------------------------
government claims that its search was legal under an exception to the warrant requirement,
other courts of appeals have held that the plaintiff meets its initial burden by demonstrating
the absence of a search warrant. At that point, it is the government that bears the burden of
coming forward with evidence that an exception to the warrant requirement applied. See Der v.
Connolly, 666 F.3d 1120, 1127-28 & n.2 (8th Cir. 2012) (when 1983 plaintiff shows a search is
presumptively violative of the Fourth Amendment, the government has the burden of going
forward with evidence to meet or rebut the presumption, e.g., evidence of consent or of
some other recognized exception); Valance v. Wisel, 110 F.3d 1269, 1279 (7th Cir. 1997);
Ruggiero v. Krzeminski, 928 F.2d 558, 563 (2d Cir. 1991).
Finally, this allocation of burdens makes sense. The proponent of testing is the party best
positioned to come forward with its reasons for conducting suspicionless drug testing. We will
not require plaintiffs to do the impossible: to speculate as to all possible reasons justifying the
policy they are challenging and then to prove a negative -- that is, prove that the government
had no special needs when it enacted its drug testing policy. Here the plaintiff Union
demonstrated that the State intended to conduct a suspicionless broad-based search, which
shifted the burden of production to the State to justify itself based on a special-needs exception
to the individualized-suspicion requirement. On remand, therefore, the State must come
forward with the requisite special-needs showing for all categories of employees it seeks to
test. For some categories, this showing may turn out to be quite simple and may amount simply
to describing precisely the nature of the job and the attendant risks. Thus, for example, as to
state law enforcement employees who carry firearms in the course of duty, the State likely will
need to do little more than identify those employees. Von Raabs holding makes it clear that
those employees present the type of serious safety risk that justifies suspicionless drug testing.
For other categories of employees, however, the State must make a stronger and more specific
showing than it has produced thus far. Thus, as to run-of-the-mill office employees, for
example, the State must demonstrate how those employees present a serious safety risk
comparable to those recognized in Skinner and its progeny.
To date, the parties litigation strategies in this case seem to have focused on avoiding the kind
of job-category-by-category balancing that Skinner and its progeny teach us is the proper
modality for evaluating the constitutionality of a suspicionless drug testing policy. The Union
originally sought, and ultimately received, facial relief that cannot be sustained in light of the
Executive Orders constitutional applications. Meanwhile, the State has resisted providing the
district court with any specific special-needs showings that apply to individual job categories
and instead has insisted that a few broad, abstract reasons can justify the EO across the board.
Admittedly, providing job-category-specific reasons and evidence -- which the district court
must have in order to conduct the proper analysis -- is a substantial, even onerous, task.
Nonetheless, convenience cannot override the commands of the Constitution.

-----------------------------------------------------------------------------------------------------------------------------------------------------------------------
=====================================================================================

Drug Testing in a Drug Court Environment: COMMON ISSUES TO ADDRESS
U.S. Department of Justice, Office of Justice Programs
Unlike the drug testing practices conducted by the military and workplace programs,
however, drug testing in the criminal justice system has not been accompanied by the
establishment of consistent cutoff standards that are uniformly enforced.
The development of appropriate drug testing methodologies and procedures for criminal
justice system defendants generallyand for drug court participants in particularrequires a
consideration of the purposes of the drug testing program and the uses of drug test results.
Clearly, drug testings role in the military or the workplace differs from its role in the criminal
justice system. Even within the criminal justice environment, drug testing can be conducted
for very different purposes: prosecution, supervision of a defendants compliance with a
pretrial release or probation order, or, as is the case in drug courts, monitoring a
participants..
'Direct observation [invasion of privacy] of the [urine] sample submission is also essential.
This step requires that the observer and the donor be of the same gender. Upon entry into
the drug court program, participants should execute their agreement to comply with the drug
court program drug testing requirements, including the submission of observed urine
samples.
==============================================================================

AFSCME vs Rick Scott: Drug testing state employees violates 4th amendment
http://aclufl.org/2013/05/29/federal-appeals-court-delivers-latest-blow-to-gov-scotts-
unprecedented-state-employee-drug-testing-program/
May 29, 2013
Decision comes in case of AFSCME and ACLUs challenge to Gov. Scotts Executive Order
requiring employees to submit to invasive searches; lower court previously found program
unconstitutional
FOR IMMEDIATE RELEASE: May 29, 2013
CONTACT: ACLU of Florida Media Office, (786) 363-2737, media@aclufl.org
MIAMI- Today, the U.S. Court of Appeals for the 11
th
Circuit issued an opinion rejecting the
argument made by the Scott administration that the state has the authority to require all state
employees to submit to invasive and humiliating drug tests as a condition of employment. The
decision comes in the case of AFSCME v. Rick Scott, in which the American Civil Liberties Union
(ACLU) of Florida, on behalf of the Association of Federal, State, County and Municipal
Employees (AFSCME), the states largest union of public employees, argued against the
constitutionality of an Executive Order issued by Gov. Rick Scott which a lower court had
previously found violated the Fourth Amendment.
-----------------------------------------------------------------------------------------------------------------------------------------------------------------------
With todays decision, the 11
th
Circuit becomes the latest court to reject what it calls a testing
policy of unprecedented scope by Governor Scott, stated ACLU of Florida staff attorney Shalini
Goel Agarwal, who was lead counsel in the case. It would be foolish of the governor to
continue pushing to implement his across-the-board drug testing regime when the court clearly
states that, under the Fourth Amendment, many of the individuals covered by the executive
order cannot be subjected to invasive and humiliating searches just because they are
government employees. We look forward to returning to the district court where the Governor
will have to show how each of his 85,000 employees presents a serious safety risk in order to
test them. Without a safety-related reason or suspicion of drug use, people cant be required to
sacrifice their Constitutional rights in order to serve the people of Florida.
Governor Scotts relentless quest for urine testing has once again been rejected by a federal
court, stated Alma Gonzalez, Special Counsel, AFSCME Council 79. No matter how much
Governor Scott wants people to believe otherwise, the fact remains that people dont have to
give up their privacy, dignity and constitutional protections in order to serve our communities.
Public employees should not be subject to arbitrary testing without probable cause or
consent.
The 2011 Executive Order mandated all state employees and job applicants in executive branch
agencies under the purview of the governor (about 77% of the state workforce) submit to
invasive tests of their bodily fluids, even if there was no suspicion of drug use. On Tuesday, May
31, 2011, the ACLU of Florida filed a lawsuit challenging the order on behalf of the AFSCME
Council 79, which represents over 40,000 public workers who were subject to the suspicionless
drug-testing program under the order. In April of 2012, U.S. District Judge Ursula Ungaro
enjoined the order, ruling that requiring state employees to submit to suspicionless, invasive
searches without suspicion of drug use violated the Fourth Amendments ban on unreasonable
searches.
The state appealed that decision, leading to the 11
th
Circuits decision today. Citing Lebron v.
Wilkins, a recent case in which the ACLU of Florida also successfully challenged a Florida
program requiring people to submit to suspicionless searches, the court found that:
Surrendering to drug testing in order to remain eligible for a government benefit such as
employment or welfare, whatever else it is, is not the type of consent that automatically
renders a search reasonable as a matter of law. The case now returns to the lower court
where the governor must justify, job-by-job, why there is a special need for the drug testing.
The idea put forth by our governor and his attorneys that people can be forced to surrender
their constitutional rights simply because they are government employees has once again
been rejected by yet another federal court, stated ACLU of Florida Executive Director Howard
Simon. The lawsuit on behalf of AFSCME is one of about a dozen lawsuits that the ACLU has
filed or in which the organization has submitted a friend-of-the-court brief challenging policies
of the Scott Administration since January 2011. The cases include challenges to voting
restrictions, a gag order on doctors and health care workers about inquiring how guns are
stored in the home, and mandatory urine testing for government employees and applicants for
temporary assistance from the state through the TANF program.
-----------------------------------------------------------------------------------------------------------------------------------------------------------------------
It is a sad commentary that we have had to go to court so frequently to protect Florida citizens
from their own government, Simon added.
The ACLU of Florida most recently challenged across-the-board drug testing in a separate case challenging the drug
testing policy of the City of Key West. The complaint in that case is available here: http://aclufl.org/resources/key-
west-mandatory-drug-testing-complaintpdf
A copy of todays decision from the court is available here:
http://www.ca11.uscourts.gov/opinions/ops/201212908.pdf
Contact: ACLU of Florida Media Office, (786) 363-2737, media@aclufl.org
==============================================================================
The U.S. Supreme Court has found that the Constitution implicitly grants a right to privacy
against governmental intrusion. This right to privacy has been the justification for decisions
involving a wide range of civil liberties cases, including Pierce v. Society of Sisters, which
invalidated a successful 1922 Oregon initiative requiring compulsory public education,
Griswold v. Connecticut, where a right to privacy was first established explicitly, Roe v. Wade,
which struck down a Texas abortion law and thus restricted state powers to enforce laws
against abortion, and Lawrence v. Texas, which struck down a Texas sodomy law and thus
eliminated state powers to enforce laws against sodomy.
An article in the December 15, 1890 issue of the Harvard Law Review, written by attorney
Samuel Warren and future Supreme Court Justice Louis Brandeis and entitled "The Right To
Privacy", is often cited as the first implicit declaration of a U.S. right to privacy [1]. This right is
frequently debated. Strict constructionists argue that no such right exists (or at least that the
Supreme Court has no jurisdiction to protect such a right), while some civil libertarians argue
that the right invalidates many types of currently allowed civil surveillance (wiretaps, public
cameras, etc.).
Most states of the United States also grant a right to privacy and recognize four torts based
on that right:
1. Intrusion upon seclusion or solitude, or into private affairs;
2. Public disclosure of embarrassing private facts;
3. Publicity which places a person in a false light in the public eye; and
4. Appropriation of name or likeness.
==============================================================================

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