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October 12, 2007 - Honolulu Advertiser (HI)

OpEd: Drug Tests, Searches Erode Our Freedoms

By Richard S. Miller, professor of law, emeritus, for the University of Hawai'i

Return to Drug War News: Don't Miss Archive

Allowing sniffing dogs in the schools to seek out evidence of drugs and/or requiring either teachers or students to submit randomly to humiliating drug testing tells both our teachers and our students that they are not to be trusted or respected and creates an atmosphere of hostility and intimidation.

That there is little sign "of students rising up in indignation over proposed searches," -- as David Shapiro stated in his Oct. 10 Volcanic Ash column -- is not a reason to proceed. Rather, it is a dreadful warning sign of kids' sad ignorance of or insensitivity to erosions of our freedoms produced, perhaps, by a failure to teach them adequately about our constitutions and our Bill of Rights.

Shapiro is often right, but this time he's really wrong. While there may be justification randomly to test those who are obviously put into situations where drug or alcohol intoxication might cause serious accidents and death, as with automobile drivers on weekend nights, heavy construction workers and airline pilots, there is no adequate evidentiary basis for deviating from traditional requirements that invasive searches of students and teachers should be allowed only if based upon probable cause.

Because those seriously impaired by the influence of drugs or alcohol will usually display telltale physical characteristics or conduct, they can be discovered and then lawfully searched or tested.

Further, the post-9/11 life-saving necessity to search passengers and their baggage before boarding an airplane cannot be equated to the school situation.

We could probably put a big dent in drug use and manufacture and in crimes involving unregistered firearms if we allowed the police to search anyone's dwelling or anyone's person any old time. Why don't we do it?

It would also be a big help if the police could stop and search our cars whenever they wish. In the fight against crime, it would help if the courts would allow illegally seized evidence to be used in evidence against a criminal defendant. Why don't we do those?

Our forefathers in the colonies rebelled against the English rulers who claimed the right to search anyone's house at any time to uncover subversive activity or crime. Were our forefathers stupid?

When we toy with deterring unlawful activity by legalizing invasions of personal privacy, absent reasonable or probable cause, we are toying with authoritarianism. Do we want to teach our kids that that's OK? I think not.

Keep in mind that when those in authority are free to do random searches of persons and houses, they sometimes concentrate on certain "disfavored" groups or minorities. Sometimes they just single out people they dislike. Surely, all of us who know about World War II have knowledge or recollection of horrible instances of that.

Recall, also, that those conducting the searches and drug tests may not be above "planting" illegal things on the property or persons of those they disfavor or dislike. What's to stop them if we remove the requirement of proof of reasonable suspicion or probable cause?

Lastly, there is very serious doubt whether kids who are told about random searches or dog sniffing will leave drugs or any other dangerous material in their lockers. Kids are not too dumb to find other hiding places for illegal stuff. There are similar doubts whether random drug testing of teachers or students, or the students' lockers, will be effective in reducing drug sales or use or just shift such activities to different times and venues.

We seem to be in a period of unusual hysteria -- an unfortunate byproduct, perhaps, of the fallout from 9/11. In such times we need to take heed of these wise words, attributed, rightly or wrongly, to Benjamin Franklin: "Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety."

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