p. Defendant Basinger's Statement Regarding His Refusal to Take a Court Ordered Drug Test - x

7/21/2019 p. Defendant Basinger's Statement Regarding His Refusal to Take a Court Ordered Drug Test - x

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Basinger v. Basinger, May 2013 Emergency Hearing, Cobb County Superior Court, Judge Adele Grubbs presiding Page 1of 15

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The defendants (William H. Basinger) statement regarding his refusal to take a court ordered

warrantlessdrug test in the Cobb County Drug Courts drug test labbased on hearsaythe

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 14th

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 andfalsely 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 beinterviewed.

"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 urineregardless 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


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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 warrantlessdrug court typeurine drug test is also in violation of the Federal Rules of Civil

Procedure Rule 37. (b)(2)(A)(VII), which embodies the 4th

and 5th

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 "unconstitutionalconditions" 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 warrantlessdrug court typeurine

drug test is in violation of the Federal Rules of Civil Procedure Rule 37. (b)(2)(A)(VII), which

embodies the 4th

and 5th

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 toknees - 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 4thamendment 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 anddrug 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 defendantscustody 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 thand 5thamendment 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 basesboth of

which can harm the defendantsright 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 16th.

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 causeevidentiary standarda 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 suspicionevidentiary 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 seizuresany argument which involves any parallels to the

motives of law enforcement is not sufficient. There must be a compelling special reasonthat 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 defendantsdaughter 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 probablecause. 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 underRule 30(b)(6)or31(a)(4)fails to obey an order to provide or permitdiscovery, including an order underRule 26(f),35,or37(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 exceptan order to submit to aphysical or mental examination.*

*RULE 37. (b) (2)(A)(VII) OF THE FEDERAL RULES OF CIVIL PROCEDURE
http://www.law.cornell.edu/rules/frcp/rule_37#rule_30_b_6http://www.law.cornell.edu/rules/frcp/rule_37#rule_30_b_6http://www.law.cornell.edu/rules/frcp/rule_37#rule_30_b_6http://www.law.cornell.edu/rules/frcp/rule_37#rule_31_a_4http://www.law.cornell.edu/rules/frcp/rule_37#rule_31_a_4http://www.law.cornell.edu/rules/frcp/rule_37#rule_26_fhttp://www.law.cornell.edu/rules/frcp/rule_37#rule_26_fhttp://www.law.cornell.edu/rules/frcp/rule_37#rule_26_fhttp://www.law.cornell.edu/rules/frcp/rule_35http://www.law.cornell.edu/rules/frcp/rule_35http://www.law.cornell.edu/rules/frcp/rule_35http://www.law.cornell.edu/rules/frcp/rule_37#rule_37_ahttp://www.law.cornell.edu/rules/frcp/rule_37#rule_37_ahttp://www.law.cornell.edu/rules/frcp/rule_37#rule_37_ahttp://www.law.cornell.edu/rules/frcp/rule_37#rule_37_ahttp://www.law.cornell.edu/rules/frcp/rule_35http://www.law.cornell.edu/rules/frcp/rule_37#rule_26_fhttp://www.law.cornell.edu/rules/frcp/rule_37#rule_31_a_4http://www.law.cornell.edu/rules/frcp/rule_37#rule_30_b_6


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=============================================================================

Binding Case Law

=============================================================================

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 indistinguishablefrom 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.2The 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
https://4103cffc-0aab-42b9-937d-a18e35a8c1b9/?REDIRECT=x-owacid://87240000/pas:http://exg5.exghost.com/owa/redir.aspx?C=nwua6fia7UygmmdnSwktxQKN06bHU9BIPu9g8yze_7CMaWWMjBrTyuu1vIilTMs7uRSXgmkQJqc.&smime=8.3.105.0&URL=http://scholar.google.com/scholar_case?case=8655257031938182800&q=450+F.3d+863&hl=en&as_sdt=2,6https://4103cffc-0aab-42b9-937d-a18e35a8c1b9/?REDIRECT=x-owacid://87240000/pas:http://exg5.exghost.com/owa/redir.aspx?C=nwua6fia7UygmmdnSwktxQKN06bHU9BIPu9g8yze_7CMaWWMjBrTyuu1vIilTMs7uRSXgmkQJqc.&smime=8.3.105.0&URL=http://scholar.google.com/scholar_case?case=605414745192665577&q=450+F.3d+863&hl=en&as_sdt=2,6https://4103cffc-0aab-42b9-937d-a18e35a8c1b9/?REDIRECT=x-owacid://87240000/pas:http://exg5.exghost.com/owa/redir.aspx?C=nwua6fia7UygmmdnSwktxQKN06bHU9BIPu9g8yze_7CMaWWMjBrTyuu1vIilTMs7uRSXgmkQJqc.&smime=8.3.105.0&URL=http://scholar.google.com/scholar_case?case=605414745192665577&q=450+F.3d+863&hl=en&as_sdt=2,6https://4103cffc-0aab-42b9-937d-a18e35a8c1b9/?REDIRECT=x-owacid://87240000/pas:http://exg5.exghost.com/owa/redir.aspx?C=nwua6fia7UygmmdnSwktxQKN06bHU9BIPu9g8yze_7CMaWWMjBrTyuu1vIilTMs7uRSXgmkQJqc.&smime=8.3.105.0&URL=http://scholar.google.com/scholar_case?case=8655257031938182800&q=450+F.3d+863&hl=en&as_sdt=2,6


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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.4The court decided this question in the

negative.5This issue was one of first impression in the federal circuit courts and in the majorityof the state courts. The majority decision was two to one.

6The 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 theSupreme 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 preventinggovernmental 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 causeusing 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, norpointed 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, inFerguson 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 (citingSkinner 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 andphysical 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 (quotingEdmond, 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 4th

amendment

([T]he Supreme Court has unequivocally stated that it is the state which must show a

substantial special needto 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.).. inChandler, 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 plaintiffschallenged 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
https://4103cffc-0aab-42b9-937d-a18e35a8c1b9/?REDIRECT=x-owacid://87240000/jmp:http://exg5.exghost.com/owa/redir.aspx?C=nwua6fia7UygmmdnSwktxQKN06bHU9BIPu9g8yze_7CMaWWMjBrTyuu1vIilTMs7uRSXgmkQJqc.&smime=8.3.105.0&URL=http:%2F%2Fscholar.google.com%2Fscholar_case%3Fcase=12447804856380641716%26q=450+F.3d+863%26hl=en%26as_sdt=2,6https://4103cffc-0aab-42b9-937d-a18e35a8c1b9/?REDIRECT=x-owacid://87240000/jmp:http://exg5.exghost.com/owa/redir.aspx?C=nwua6fia7UygmmdnSwktxQKN06bHU9BIPu9g8yze_7CMaWWMjBrTyuu1vIilTMs7uRSXgmkQJqc.&smime=8.3.105.0&URL=http:%2F%2Fscholar.google.com%2Fscholar_case%3Fcase=12447804856380641716%26q=450+F.3d+863%26hl=en%26as_sdt=2,6https://4103cffc-0aab-42b9-937d-a18e35a8c1b9/?REDIRECT=x-owacid://87240000/jmp:http://exg5.exghost.com/owa/redir.aspx?C=nwua6fia7UygmmdnSwktxQKN06bHU9BIPu9g8yze_7CMaWWMjBrTyuu1vIilTMs7uRSXgmkQJqc.&smime=8.3.105.0&URL=http:%2F%2Fscholar.google.com%2Fscholar_case%3Fcase=605414745192665577%26q=450+F.3d+863%26hl=en%26as_sdt=2,6https://4103cffc-0aab-42b9-937d-a18e35a8c1b9/?REDIRECT=x-owacid://87240000/jmp:http://exg5.exghost.com/owa/redir.aspx?C=nwua6fia7UygmmdnSwktxQKN06bHU9BIPu9g8yze_7CMaWWMjBrTyuu1vIilTMs7uRSXgmkQJqc.&smime=8.3.105.0&URL=http:%2F%2Fscholar.google.com%2Fscholar_case%3Fcase=605414745192665577%26q=450+F.3d+863%26hl=en%26as_sdt=2,6https://4103cffc-0aab-42b9-937d-a18e35a8c1b9/?REDIRECT=x-owacid://87240000/jmp:http://exg5.exghost.com/owa/redir.aspx?C=nwua6fia7UygmmdnSwktxQKN06bHU9BIPu9g8yze_7CMaWWMjBrTyuu1vIilTMs7uRSXgmkQJqc.&smime=8.3.105.0&URL=http:%2F%2Fscholar.google.com%2Fscholar_case%3Fcase=12447804856380641716%26q=450+F.3d+863%26hl=en%26as_sdt=2,6https://4103cffc-0aab-42b9-937d-a18e35a8c1b9/?REDIRECT=x-owacid://87240000/jmp:http://exg5.exghost.com/owa/redir.aspx?C=nwua6fia7UygmmdnSwktxQKN06bHU9BIPu9g8yze_7CMaWWMjBrTyuu1vIilTMs7uRSXgmkQJqc.&smime=8.3.105.0&URL=http:%2F%2Fscholar.google.com%2Fscholar_case%3Fcase=12447804856380641716%26q=450+F.3d+863%26hl=en%26as_sdt=2,6


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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] acompelling 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 certainstate 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 detectdrug 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 anunconstitutional 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 ofpersuasion. 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, mustmake 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


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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 goingforward 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 exceptionto 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.


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=====================================================================================

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 beenaccompanied 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,[email protected]

MIAMI- Today, the U.S. Court of Appeals for the 11th

Circuit issued an opinion rejecting the

argument made by the Scott administration that the state has the authority to require all stateemployees 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.
http://x-owacid//87240000/uri:http:/afscme.ourusf.org/?p=22http://x-owacid//87240000/uri:http:/aclufl.org/2013/05/29/federal-appeals-court-delivers-latest-blow-to-gov-scotts-unprecedented-state-employee-drug-testing-program/http://x-owacid//87240000/uri:http:/aclufl.org/2013/05/29/federal-appeals-court-delivers-latest-blow-to-gov-scotts-unprecedented-state-employee-drug-testing-program/http://x-owacid//87240000/uri:mailto:[email protected]://x-owacid//87240000/uri:mailto:[email protected]://x-owacid//87240000/uri:http:/aclufl.org/2013/05/29/federal-appeals-court-delivers-latest-blow-to-gov-scotts-unprecedented-state-employee-drug-testing-program/http://x-owacid//87240000/uri:http:/aclufl.org/2013/05/29/federal-appeals-court-delivers-latest-blow-to-gov-scotts-unprecedented-state-employee-drug-testing-program/http://x-owacid//87240000/uri:http:/afscme.ourusf.org/?p=22


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With todays decision, the 11th

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 aregovernment 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 11thCircuits 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 employeeshas 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 hasfiled 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.


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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,[email protected]

==============================================================================

TheU.S.Supreme Court has found that theConstitution implicitly grants a right to privacy

against governmental intrusion. This right to privacy has been the justification for decisions

involving a wide range ofcivil liberties cases, includingPierce v. Society of Sisters,which

invalidated a successful 1922Oregoninitiative requiring compulsorypublic education,

Griswold v. Connecticut,where a right to privacy was first established explicitly,Roe v. Wade,

which struck down aTexas abortion law and thus restricted state powers to enforce laws

againstabortion,andLawrence v. Texas,which struck down a Texassodomy law and thus

eliminated state powers to enforce laws againstsodomy.

An article in the December 15, 1890 issue of theHarvard 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 civilsurveillance (wiretaps,public

cameras, etc.).

Most states of the United States also grant a right to privacy and recognize fourtorts 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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p. Defendant Basinger's Statement Regarding His Refusal to Take a Court Ordered Drug Test - x

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Transcript of p. Defendant Basinger's Statement Regarding His Refusal to Take a Court Ordered Drug Test - x