Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995)

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Cite as: 515 U. S. 646 (1995)

O'Connor, J., dissenting

searches the Constitution mentions by name. See U. S. Const., Amdt. 4 (listing "persons, houses, papers, and effects"); cf. Cuddihy 835, 1518, 1552, n. 394 (indicating long history of outrage at personal searches before 1789).

Thus, it remains the law that the police cannot, say, subject to drug testing every person entering or leaving a certain drug-ridden neighborhood in order to find evidence of crime. 3 W. LaFave, Search and Seizure § 9.5(b), pp. 551-553 (2d ed. 1987) (hereinafter LaFave). And this is true even though it is hard to think of a more compelling government interest than the need to fight the scourge of drugs on our streets and in our neighborhoods. Nor could it be otherwise, for if being evenhanded were enough to justify evaluating a search regime under an open-ended balancing test, the Warrant Clause, which presupposes that there is some category of searches for which individualized suspicion is nonnegotiable, see 2 LaFave § 4.1, at 118, would be a dead letter.

Outside the criminal context, however, in response to the exigencies of modern life, our cases have upheld several evenhanded blanket searches, including some that are more than minimally intrusive, after balancing the invasion of privacy against the government's strong need. Most of these cases, of course, are distinguishable insofar as they involved searches either not of a personally intrusive nature, such as searches of closely regulated businesses, see, e. g., New York v. Burger, 482 U. S. 691, 699-703 (1987); cf. Cuddihy 1501 ("Even the states with the strongest constitutional restrictions on general searches had long exposed commercial establishments to warrantless inspection"), or arising in unique contexts such as prisons, see, e. g., Wolfish, supra, at 558-560 (visual body cavity searches of prisoners following contact visits); cf. Cuddihy 1516-1519, 1552-1553 (indicating that searches incident to arrest and prisoner searches were the only common personal searches at time of founding). This certainly explains why Justice Scalia, in his dissent in our recent Von Raab decision, found it significant that "[u]ntil

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