112 CHAPTER 4|CIVIL LIBERTIES
states that illega lly obta ined evidence ca nnot be used in a crimina l tria l. The la nd-
mark case involved police breaking into a woman’s residence without a warrant
looking for a suspect thought to be hiding there. The offi cers did not fi nd him, but
they did fi nd illegal pornographic material. Although the woman was convicted of
possessing it, the Court ultimately threw out the conviction.
Subsequent Courts started weakening the exclusionary rule. The public was
concerned that too many criminals were being set free because of the limits on
obtaining and using evidence, and most justices agreed. In 1974 the Court allowed
the use of illegally obtained evidence in grand jury testimony.^68 Several years later
it relaxed the general rule to allow the use of evidence if the “totality of circum-
stances” suggests that a police offi cer’s action was justifi ed.^69 The following year
the Court established a “good faith exception” to the exclusionary rule, allowing
evidence to be used as long as the offi cer believed that he or she had conducted a
legal search. In the specifi c case the offi cer had a warrant that turned out to have
errors on it, such as the wrong address.^70 The bottom line is that the exclusionary
rule remains in eff ect, but lately it has become easier for prosecutors to use evi-
dence obtained under questionable circumstances.DRUG TESTING
Another area of Fourth Amendment law concerns drug testing. The clause grant-
ing people the right “to be secure in their persons” certainly seems to cover drug
testing. However, the courts have long recognized the right of private companies
to test their employees for illegal drugs, and testing for performance-enhancing
drugs is increasingly common in professional sports.
What about drug testing by the state? The Court has upheld random drug test-
ing for high school athletes and mandatory drug testing for any junior high or high
school students involved in extracurricular activities.^71 Federal employees became
subject to drug testing in 1986, with all employees required to refrain from using
illegal drugs as a condition of federal employment, and with each agency required
to implement drug testing for sensitive positions. Two years later the Drug-Free
Workplace Act applied the same rule to all executive agencies, the uniformed
services, and any service providers under contract with the federal government.
Despite these prohibitions, drug testing of federal employees is actually limited
to people who hold security clearances, carry fi rearms, or work in public safety
or national security. Some employees receive random tests; others are tested only
when they apply for a job, are involved in a workplace accident, or show signs of
drug use.
The Court has upheld drug testing of public employees, with one exception.
It struck down a Georgia law that would have required all candidates for state
offi ce to pass a drug test within 30 days of announcing a run for offi ce because
candidates are not public employees.^72 Rather than appealing to the courts, former
senator Ernest Hollings of South Carolina had a diff erent approach to avoid drug
testing. When his opponent, Representative Tommy Hartnett, challenged him to
take a drug test, the senator shot back, “I’ll take a drug test if you take an I.Q. test.”DOMESTIC SURVEILLANCE POST–SEPTEMBER 11
The debate over the trade-off between civil liberties and security intensifi ed in
2005 when a White House–approved domestic surveillance program was revealed.
Since the September 11, 2001, attacks, the National Security Agency (NSA) had