I just came across a very interesting opinion by Judge Posner from earlier this year on the question of whether a government-administered psychological test is a Fourth Amendment “search,” and if not, what it might be.
In Greenawalt v. Indiana Dept of Corrections, a research analyst for the state prison system was required to submit to a psychological test for work. She later sued the state claiming that the test had “searched” her in violation of the Fourth Amendment. Judge Posner disagreed (most citations omitted, although for reasons that will become clear, not all of them):
Almost any quest for information that involves a physical touching, which a test does not, is nowadays deemed a “search” within the meaning of the Fourth Amendment, which the Fourteenth Amendment has been interpreted as making fully applicable to state action. Drawing a tiny amount of blood from an unconscious person to determine the level of alcohol in his blood is a search, and so even is administering a breathalyzer test, where physical contact is at its minimum–the subject’s lips merely touch the breathalyzer. And so finally is a urine test, Board of Education v. Earls, 536 U.S. 822 (2002), in which the subject is required merely to provide a urine sample, so that the test instrument does not touch the subject’s body at all. The invasion of privacy caused by submitting to the kind of psychological test given to the plaintiff in this case may well have been more profound than the invasion caused by a blood test, a breathalyzer test, or a urine test, though we cannot say for sure; the test is *not in the record–all we know is that, according to the complaint, “the battery of psychological tests examined Ms. Greenawalt’s personality traits, psychological adjustments and health-related issues.” It is true that she consented to take the test, but had she not done so she would have lost her job, which, if she had a constitutional right not to take the test, would place a heavy burden on the exercise of her constitutional rights.
Many cases say that the Fourth Amendment is intended to protect privacy. E.g., Kyllo v. United States, 533 U.S. 27, 32-33 (2001); Skinner v. Railway Labor Executives’ Ass’n, supra, 489 U.S. at 617; Although this is historically inaccurate, Boyd v. United States, 116 U.S. 616, 624-3 (1886); Orin S. Kerr, “The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution,” 102 Mich. L.Rev. 801 (2004); Raymond Shih Ray Ku, “The Founders’ Privacy: The Fourth Amendment and the Power of Technological Surveillance,” 86 Minn. L.Rev. 1325, 1333-38 (2002), it is not uncommon for constitutional provisions to be supplied with rationales that the framers and ratifiers of the provisions would not have recognized. Nor is the term “a searching inquiry” an oxymoron; wiretapping is deemed a search even when there is no trespass (the tap will usually be on a section of the phone line that is outside the premises on which the phone being tapped resides), though all that is taken is thoughts, often concerning private matters, expressed in conversation. Berger v. New York, 388 U.S. 41, 50-51 (1967); Katz v. United States, 389 U.S. 347, 353 (1967). Cases involving the rifling of an employee’s desk, such as O’Connor v. Ortega, 480 U.S. 709, 725-26 (1987), are similar in this regard: the employee has no property or possessory interest in his desk, yet the invasion of his interest in privacy makes the rifling a search.
Nevertheless we do not think that the Fourth Amendment should be interpreted to reach the putting of questions to a person, even when the questions are skillfully designed to elicit what most people would regard as highly personal private information. The cases we have cited show, it is true, that a Fourth Amendment claim does not depend on the claimant’s being able to establish an invasion of such interests that tort law traditionally protects as the interest in bodily integrity (protected by the tort of battery), in freedom of movement (protected by the tort of false imprisonment), and in property (protected by the torts of trespass and of conversion). But that is all they show, so far as bears on the issue in this case. The implications of extending the doctrine of those cases to one involving mere questioning would be strange. In a case involving sex or some other private matter, a government trial lawyer might be required to obtain a search warrant before being allowed to conduct a cross-examination–or the judge before being allowed to ask a question of the witness. Police might have to obtain search warrants or waivers before conducting routine inquiries, even of the complaining witness in a rape case, since they would be inquiring about the witness’s sexual behavior. Questioning in a police inquiry or a background investigation or even a credit check would be in peril of being deemed a search of the person about whom the questions were asked. Psychological tests, widely used in a variety of sensitive employments, would be deemed forbidden by the Constitution if a judge thought them “unreasonable.”
Although I would quibble with a few minor points, this is basically right. Being asked and having to answer questions is primarily a Fifth Amendment question, not a Fourth Amendment question. That’s why subpoenas to testify before a grand jury raise few if any Fourth Amendment issues, and why the Supreme Court felt the need to create the Miranda doctrine to regulate custodial interrogations of suspects. If asking questions and getting answers were a Fourth Amendment search, the law of criminal procedure would look dramatically different than it does today.
The opinion goes on to ponder whether the appellant might have state law claims or a Due Process claim instead of a Fourth Amendment claim. If you’re interested in privacy law, it’s worth a read.
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