Annual Drug Testing May Constitute Unreasonable Bodily Search

Facts: As a condition of occupancy at a privately owned, mixed-income residential development, residents are required to submit to annual drug testing. When five residents refused to submit to the drug test even though they had previously consented to drug testing, the owners began eviction proceedings for violating their leases.

The residents sued the local PHA and the owners, asking the court to abolish the drug-testing requirement and declare that it constitutes unreasonable bodily searches of all persons applying for or residing in certain PHA-sponsored mixed-income housing, in violation the Fourth Amendment of the U.S. Constitution.

The PHA and the owner asked the court to dismiss the claims. The PHA argued that it’s reasonable for the PHA “to expect its beneficiaries to adhere to the generally applicable requirements of a private housing development in which the beneficiaries choose to live....” The PHA and owner also argued that a search conducted pursuant to a valid consent is constitutionally permissible, and since the residents consented to the drug testing as a condition of living at the site and not as a condition of receiving benefits, the testing doesn’t violate the Fourth Amendment.

Ruling: An Illinois district court denied the owner and PHA’s request and ordered the trial to continue.

Reasoning: The PHA and the owner didn’t contend that the drug testing is conducted pursuant to a warrant or suspicion of criminal activity, so the court presumed, for this stage of the trial, that the search is unreasonable. The court noted that, in general, there’s a substantial expectation of privacy in connection with the act of urination. Further, the government has the burden of establishing a “special need” for a warrantless and suspicionless drug test. As a result, the court decided the residents have adequately alleged their constitutional claim of an unreasonable search.

With regard to the issue of consent, the court stated that the question whether a consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. Here, the residents have claimed that the consequence of noncompliance with the drug-testing requirement can result in eviction from their homes. The court decided that this allegation sufficiently raises the specter of coercion for it to infer at this stage of proceedings that their consent may not have been voluntary.

• Stubenfield v. Chicago Housing Authority, November 2013