NATIONAL TREASURY EMPLOYEES UNION, ET AL., PETITIONERS V. WILLIAM
VON RAAB, COMMISSIONER, UNITED STATES CUSTOMS SERVICE

   No. 86-1879

   In the Supreme Court of the United States

   October Term, 1987

   On Writ of Certiorari To The United States Court of Appeals for the
Fifth Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
      A. The Customs Service drug-testing program
      B. The present controversy
   Introduction and summary of argument
   Argument:
        The Customs Service drug-testing program is constitutional
        under the Fourth Amendment
        A. A warrantless search may be valid even in the absence of
           particularized suspicion
        B. The Customs drug-testing program involves a minimal
           intrusion on employees' expectation of privacy
           1. The employment relationship
           2. The provision of notice and the elimination of
              official discretion
           3. The narrowly-tailored nature of the testing procedures
        C. The Customs drug-testing program serves compelling
            governmental interests
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-27a) is reported
at 816 F.2d 170.  The opinion of the court of appeals on the
government's motion for a stay pending appeal (Pet. App. 29a-39a) is
reported at 808 F.2d 1057.  The opinion of the district court (Pet.
App. 40a-60a) is reported at 649 F. Supp. 380.

                             JURISDICTION

   The judgment of the court of appeals was entered on April 22, 1987.
 The petition for a writ of certiorari was filed on May 27, 1987, and
was granted on February 29, 1988.  The jurisdiction of this Court
rests on 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether under the Fourth Amendment the Customs Service may require
all employees applying for a transfer to any position involving the
the interdiction of narcotics, the carrying of firearms, or the
handling of classified material, to undergo a urinalysis drug test as
a condition of obtaining such a position.

                               STATEMENT

   A. The Customs Service Drug-Testing Program

   1. The Customs Service, a bureau of the Department of the Treasury,
is "the nation's primary border enforcement agency" and "is charged
with the responsibility for interdicting illegal drugs that enter the
country" (J.A. 109).  In fiscal year 1987 alone, Customs agents made
over 18,000 narcotics and dangerous drug seizures, representing drugs
with a retail value of nearly 9 billion dollars.  Customs USA, Fiscal
Year 1987, at 40.  Recognizing the surge in drug trafficking in the
last several years, "Congress recently responded in a manner not
unlike a response to a military threat, appropriating over $1 billion
(an increase of 26.4% from the last fiscal year) to the Customs
Service for fiscal year 1987 with funding for 1000 additional Customs
Service personnel" (Pet. App. 35a).

   In carrying out their mission, Customs employees intercept
smugglers (see, e.g., 19 U.S.C. 482, 1581;  United States v.
Villamonte-Marquez, 462 U.S. 579, 582-583 (1983);  United States v.
McMurray, 747 F.2d 1417, 1419 (11th Cir. 1984)), perform surveillance
(see, e.g., United States v. Johns, 469 U.S. 478, 480 (1985);  United
States v. Caicedo-Guarnizo, 723 F.2d 1420, 1421 (9th Cir. 1984);
United States v. Porter, 701 F.2d 1158, 1160 (6th Cir.), cert. denied,
464 U.S. 1007 (1983)), operate sophiscated equipment (see e.g., United
States v. Carter, 760 1985);  Porter, 701 F.2d at 1160;  United States
v. Lueck, 678 F.2d 895, 896-897 (11th Cir. 1982)), execute searches
and seizures (see, e.g., 19 U.S.C. (& Supp. IV) 482, 1594, 1595;
Villamonte-Marquez, 462 U.S. at 583;  Carter, 760 F.2d at 1572-1573;
462 U.S. at 583;  Carter, 760 F.2d at 1572-1573;  United States v.
Sarda-Villa, 760 F.2d 1232, 1235 (11th Cir. 1985)), interrogate
suspects (see, e.g., McMurray, 747 F.2d at 1419;  United States v.
Vega-Barvo, 729 F.2d 1341, 1343 (11th Cir.), cert. denied, 469 U.S.
1088 (1984);  United States v. Gomez-Diaz, 712 F.2d 949 (5th Cir.
1983), cert. denied, 464 U.S. 1051 (1984)), make arrests (see, e.g.,
19 U.S.C. (& Supp. IV) 1589;  Johns, 469 U.S. at 481;
Villamonte-Marquez, 462 U.S. at 583), perform undercover work (see,
e.g., 19 U.S.C. (& Supp. IV) 2081;  United States v. Hall, 739 F.2d
96, 98-99 (2d Cir. 1984)), apply force where necessary (see, e.g., 19
U.S.C. 1581(a);  Villamonte-Marquez, 462 U.S. at 580), gather and make
use of classified information (United States v. Mitchell, 812 F.2d
1250, 1252 (9th Cir. 1987);  United States V. Sanders, 663 F.2d 1, 1-2
(2d Cir. 1981)), and testify in trials and other public proceedings
(see, e.g., Gomez-Diaz, 712 F.2d at 951). Throughout that process,
"Customs employees are routinely exposed to actual illegal substances
and confidential information relating to drug enforcement" (J.A. 109).
 Drug smuggling is also a violent business, and as a result "many
Customs employees are required to carry and use firearms in connection
with their official duties" (ibid.). "During 1986 alone, Customs
Officers were the victims of assault on 32 occasions, and were shot at
on 15 different occasions.  Since 1974, nine officers have died in the
line of duty." J.A. 110.

   2. In December 1985, recognizing that the Customs Service's
"primary enforcement mission is drug interdiction" (J.A. 10),
respondent, the Commissioner of Customs, established a Drug Screening
Task Force "to research all facets of drug screening" and "to
determine its applicable use within Customs" (J.A. 11).  After several
months of study, during which the Task Force engaged in extensive
research and consulted with experts in the field, the Commissioner
reported that the Service was considering the implementation of a drug
screening program within Customs (J.A. 10-12).  The Commissioner
explained (J.A. 10) that "there is no room in the Customs Service for
those who break the laws prohibiting the possession and use of illegal
drugs." And while the Commission "believe(d) that Customs is largely
drug-free" (ibid.), he noted that "unfortunately no segment of society
is immune to the threat of illegal drug use."

   On May 8, 1986, the Commissioner announced the implementation of
the Customs Service drug-testing program (J.A. 15-19).  He explained
that drug tests would be made "a condition of placement/employment"
for positions that meet "one or more of the following criteria:
direct involvement in drug interdiction and enforcement of related
laws;  a requirement that the incumbent carry firearms;  or, a
requirement for the incumbent to handle classified material" (J.A. 17,
19).  The Commissioner also stated (J.A. 19) that a refusal to take
the test would "only result in a loss of consideration for the
position." /1/

   In selecting the three categories of positions for which drug
testing would be required, the Commissioner found (J.A. 113) that
employees involved in drug interdiction "are often placed in
difficult, dangerous situations where the success of the mission,
their own life, and the lives of co-workers depend() upon their
ability to think and react clearly and quickly." The use of narcotics,
he stated (ibid.), "dulls the ability to think and react quickly,
clouding the employee's judgment and endangering other lives and
government property." /2/ In addition, the Commissioner found (ibid.)
that "(p)ublic safety demands that employees who carry deadly arms and
are prepared to make instant life or death decisions be drug free.
There is no reason why the public must bear the risk that public
officials authorized to employ deadly force may be suffering from
impaired perception and judgment." Finally, the Commissioner
determined (J.A. 114) that employees who use illegal drugs and who are
given access to classified material "may be bribed into disclosing
such information to a criminal drug enterprise, and they may have a
financial need to exchange information valuable to smugglers in order
to support their habit." /3/

   3. On August 4, 1986, following negotiations with petitioner
National Treasury Employees Union (see J.A. 6, 45-51), the
Commissioner issued Directive No. 51250-02, embodying the terms and
conditions of the Customs Service drug-testing program (J.A. 23-44).
Subsequently on April 11, 1988, in compliance with recently enacted
legislation (Supplemental Appropriations Act, 1987, Pub. L. No.
100-71, Section 503, 101 Stat. 468-471), the Department of Health and
Human Services (HHS) issued detailed regulations governing all federal
employee drug-testing programs.  See Mandatory Guidelines for Federal
Workplace Drug Testing Programs, 53 Fed. Reg. 11979 (1988)
(hereinafter HHS Reg.).  Although those regulations are substantially
similar to the Customs Directive, there are some respects in which the
regulations add to, or differ from, the procedures set out in the
Directive.  In compliance with the federal statute (Section
503(b)(2)(B), 101 Stat. 470), the Customs Service will shortly be
amending its Directive to incorporate the terms of the HHS
regulations.  As supplemented (and, to a limited extent, supplanted)
by the HHS regulations, /4/ the Customs drug-testing program operates
in the following way:

   a. After an employee qualifies for a position covered by the
Customs program, the Service advises him by letter (see J.A. 81-85) of
his tentative selection (J.A. 26).  In that letter, the Service
emphasizes that final selection for the job "is contingent upon
successful completion of drug screening through urinalysis (and any
other pre-employment/placement conditions such as medical examination
(and) background investigation * * *" (J.A. 26-27).

   On an arranged date, the employee is met by a sample collector (an
independent contractor) and presents a photo identification (J.A. 28;
HHS Reg. Section 2.2(f)(2)).  The employee may list on a designated
pre-test form any medications taken within the last 30 days and
explain any circumstances under which he may have been in legitimate
contact with illegal substances within the last 30 days (J.A. 29,
86-87).  Provision of this information is voluntary (J.A. 87).  /5/ On
the same form, the employee must also indicate, by his signature, that
he understands that successful completion of the drug test is a
condition of employment;  that if the results of the test indicate use
of illegal drugs, he may lose consideration for the position applied
for and, if he is already a Customs employee, may be subject to
removal from the Service;  and that if he refuses to take the test, he
will lose consideration for the position applied for (J.A. 29, 86).
/6/

   b. When the actual testing takes place, the employee is asked to
remove his outer garments (such as coats and jackets) and to leave all
personal belongings, other than a wallet, with the outer garments
(J.A. 29;  HHS Reg. Section 2.2(f)(4)).  Observation is "close" but
not "direct" (J.A. 29):  the employee may provide his specimen in the
privacy of a stall (HHS Reg. Section 2.2(f)(7)), and the Service has
carefully instructed its contractors to obey that restriction (J.A.
96-97).  /7/

   After the urine specimen is collected, the employee hands it to the
collector, who measures the temperature of the urine to be sure that
it has not been adulterated and that there has been no substitution
for the employee's own urine (HHS Reg. Section 2.2(f)(12)).  The
collector then places a tamper-proof custody seal over the top and
down the sides of the bottle.  In addition, a urine identification
label is completed and placed around the bottle, indicating the date
and the individual's specimen number.  The employee then signs a
chain-of-custody form, which is initialed by the collector, and the
urine specimen is placed in a plastic bag, sealed tightly, and
submitted to a laboratory, J.A. 30-31;  HHS Reg. Section 2.2(f)(19),
(20), (24), (25), (g), and (h).

   Next, the employee's pre-test form is placed in a sealed envelope
bearing the employee's social security number and is sent to a Customs
Drug Screening Coordinator.  That envelope is not opened unless and
until there has been a positive finding on the drug test.  If the test
proves negative, the envelope and its contents are destroyed. J.A.
30-31.

   c. The laboratory to which the samples are submitted must be
managed by an individual who is either certified as a laboratory
director in forensic or clinical laboratory toxicology, or who has a
Ph.D. in one of the natural sciences, or who has training and
experience comparable to a Ph.D. in one of the natural sciences (HHS
Reg. Section 2.3(a)(1) and (2)).  This individual must also have
direct experience in "analysis of biological materials for drugs of
abuse" (id. Section 2.3(a)(2)(iv)).  The laboratories must maintain a
security system (id. Section 2.4(a)(1)) and follow detailed
chain-of-custody procedures (id. Section 2.4(a)(2)).  The Secretary of
HHS, as well as the Customs Service itself, has the right to inspect
the laboratory at any time (id. Section 2.4(a)(1)), and the laboratory
must maintian and make available, for at least two years, documents on
all aspects of the testing process (id. 2.4(m)).  In addition, the
regulations set forth elaborate quality assurance and control
procedures (id. Section 2.5), including thorough use of blind samples
(id. Section 2.5(d)).  /8/ They also prescribe standards for
laboratory filing systems (id. Section 2.3(f)), training (id. Section
2.3(e)), refrigerated storage of speciments (id. Section 2.4(c) and
(h)), and reporting of results (id. Section 2.4(g)).  /9/

   Once the samples are submitted to the laboratory, they are analyzed
for the presence of marijuana (cannabinoids), cocaine, opiates,
amphetamines, and phencyclidine (J.A. 32).  "In response to concern
that specimens may be misused to test for physiological states other
than drug abuse (e.g., pregnancy)" (53 Fed. Reg. 11975 (1988)), HHS
Reg. Section 2.1(c) expressly provides that urine specimens "shall be
used only to test for those drugs included in agency drug-free
workplace plans and may not be used to conduct any other analysis or
test unless otherwise authorized by law." Two tests are conducted on
the samples.  There is an initial screening test that uses the
enzyme-multiplied-immunoassay technique (EMIT) (J.A. 32;  HHS Reg.
Section 2.4(e)(I)).  Any specimen that is identified as positive on
the initial test must then be confirmed using gas chromatography/mass
spectrometry (GC/MS) (J.A. 32;  HHS Reg. Section 2.4(f)(1)).  No
sample is considered to be positive unless it is positive on the GC/MS
test (HHS Reg. Section 2.4(g)(2)).  It is generally conceded that a
properly conducted GC/MS test is essentially 100 percent accurate in
detecting for the presence of drug residues in urine.  See J.A. 62
(affidavit of John P. Morgan, M.D.);  J.A. 65 (affidavit of Dr. Arthur
J. McBay);  J.A. 105 (declaration of Walter F. Vogl).  Indeed, "(b)oth
parties agree that GC/MS provides a highly accurate test for the
presence of drugs, assuming proper handling, storage, and testing
techniques" (Pet. App. 5a).

   d. After the samples have been analyzed, the laboratory reports its
results to a "Medical Review Officer," who must be "(a) licensed
physician * * * who has knowledge of substance abuse disorders and has
appropriate medical training to interpret and evaluate an individual's
positive test result together with his or her medical history and any
other relevant bio-medical information" (HHS Reg. Sections 1.2,
2.4(g)).  The Medical Review Officer must "review and interpret
positive test results" before any such results may be transmitted to
the agency (id. Section 2.7(a) and (b)).  The Medical Review Officer
must examine "alternate medical explanations for any positive test
result";  in doing so, he may interview the employee, review the
employee's medical records, or consider other biomedical factors (id.
Section 2.7(b)).  Before verifying a positive test result, the Medical
Review Officer must offer the employee an opportunity to discuss the
result (id. Section 2.7(c)).  The Medical Review Officer may also
order a reanalysis of the original sample "(s)hould any question arise
as to the accuracy or validity of a positive test result" (id. Section
2.7(e)).  After verifying the positive result, the Medical Review
Officer transmits it to the agency.

   e. If there is no legitimate explanation of the positive test
result, Customs employees are subject to loss of consideration for the
position sought, as well as possible removal from the Service (J.A.
35).  /10/ The test results, however, may not be turned over to any
other agency, including criminal prosecutors, without the employee's
prior written consent.  See n.6, supra.

   B. The Present Controversy

   1. On August 12, 1986, petitioners -- a federal employees' union
and a union officer -- brought this action in the United States
District Court for the Eastern District of Louisiana, alleging that
the Customs Service drug-testing program violated the Fourth Amendment
(J.A. 3-9).  Petitioners asserted that the collection of urine samples
is a "search" within the meaning of the Fourth Amendment (J.A. 7) and
that it is unreasonable "because there is no evidence of significant
use of illegal drugs amongst Customs employees, because the procedure
will not identify those employees who do not use illegal drugs,
because the tests will result in false positive readings, and because
the tests are invasive and will be administered without any
particularized suspicion" (J.A. 8).  /11/

   The district court held the Customs Service program
unconstitutional on numerous grounds (Pet. App. 40a-60a).  The court
first found that the drug-testing program deprived job applicants of
their Fourth Amendment right to be free from unreasonable searches and
seizures, in that it uses "a dragnet approach of testing all workers
who seek promotion into so-called 'covered positions'" (id. at 51a).
Although the court agreed that the Service sought to accomplish a
"legitimate" goal, it concluded that "the massive intrusive effect of
the drug testing plan" outweighed the governmental interests (ibid.).
The court next found (id. at 54a-55a) that the Customs program
violated employees' Fifth Amendment privilege against
self-incrimination, explaining (id. at 55a) that the tests
"constitute() a degrading procedure that so detracts from human
dignity and self respect that it "shocks the conscience" and offends
th(e) Court's sense of justice." The Court also held (id. at 55a-56a)
that the drug-testing program violates employees' "penumbral" right of
privacy and that it is "so fraught with dangers of false positive
readings as to deny the Customs workers due process of law" (id at
58a).  The court enjoined the drug-testing program, forbidding the
Customs Service to require drug tests of any applicants for the
covered positions (id. at 61a-62a).

   3. The court of appeals reversed (Pet. App. 1a-27a).  /12/ The
court noted that petitioners did not seek to defend the district
court's judgment on privacy-rights grounds (id. at 20a).  It also had
no difficulty rejecting the claims that the drug-testing program
involves compelled self-incrimination (id. at 19a-20a) and that it is
so unreliable as to violate due process (id. at 21a).  The court
further ruled, in the only holding that petitioners challenge here,
that the Customs Service drug-testing program is valid under the
Fourth Amendment (id. at 6a-19a).

   In so holding, the court of appeals agreed with petitioners that
the drug-testing program -- by requiring an employee to submit a urine
sample and testing the sample for evidence of drug use -- effects a
search within the meaning of the Fourth Amendment (Pet. App. 6a-9a).
The court held, however, that the program is reasonable and therefore
constitutional.  It first noted (id. at 11a) that "(t)he Service has
attempted to minimize the intrusiveness of the search" by forbidding
the direct observation of the collection process and by affording
notice to the employee that a drug test will be given.  /13/ Indeed,
the court explained (id. at 14a), because the test "is required only
from those individuals who voluntarily seek employment in a covered
position knowing in advance of the urinalysis requirement," the
drug-testing program "is, to some extent, consensual." Also minimizing
the intrusivenss of the search, the court found (id. at 14a-15a), is
the fact that the Customs program is an aspect of an employment
relationship.  "Government employees may be subject to searches or
other restraints on their liberties that would be impermissible in the
absence of the employment relationship" (id. at 14a);  and the court
found (id. at 15a) that "(c)onsidering the nature and responsibilities
of the jobs for which applicants are being considered at Customs and
the limited scope of the search, the exaction of consent as a
condition of assignment to the new job is not unreasonable."

   Arrayed on the other side of the balance, the court discerned a
"strong governmental interest in employing individuals for key
positions in drug enforcement who themselves are not drug users" (Pet.
App. 2a).  The court found (id. at 12a) that "(t)he use of illicit
drugs has had a pernicious impact on American society" and it agreed
(id. at 13a) that the "(u)se of controlled substances by employees of
the Customs Service may seriously frustrate the agency's efforts to
enforce the drug laws." In particular, the court explained (ibid.
(footnotes omitted)), "(a)n employee's use of the substances he has
been hired to interdict casts substantial doubt upon his ability to
carry out his duties honestly and vigorously, and undermines public
confidence in the integrity of the Service." Moreover, the court noted
(ibid.), "(t)he drug user's questionable integrity, as well as the
high financial cost of obtaining illegal drugs, may increase his
susceptibility to bribery by criminal drug enterprises seeking
classified information." In addition, the court stated (ibid.), "those
employees involved in field operations, particularly if carrying
firearms, endanger the safety of their fellow agents, as well as their
own, when their performance is impaired by drug use." Finally, the
court rejected the contentions that there are less intrusive measures
available and that the Customs program is not a sufficiently effective
means of determining drug use in covered positions (id. at 17a-19a).
/14/ Considering "the totality of circumstances" and "weighing all of
the factors" (id. at 11a), the court of appeals held that
individualized suspicion is not required in this setting and that "the
Customs Service program for testing employees who seek a transfer to
sensitive positions is not unreasonable" (id. at 19a).

   Judge Hill dissented (Pet. App. 23a-27a).  In his view, "the
program at issue in this case is an ineffective method for achieving
the Customs Service's goals, and thus it is an unreasonable invasion
of the Customs Service's employees' fourth amendment rights" (id. at
23a).  Judge Hill noted (id. at 25a) that under the program at issue
persons already employed in sensitive positions were not subject to
the test.  In addition, he surmised (id. at 26a), "once a tested
employee is accepted into a covered position, he is never tested
again." "Finally, and most importantly," Judge Hill explained (ibid.),
"employees given a five day notification of a test date need only
abstain from drug use to prevent being identified as a user." Because,
in his judgment, the Customs program cannot achieve its purposes,
Judge Hill found it to be unreasonable under the Fourth Amendment.

   On May 12, 1987, the court of appeals denied petitioners' request
for a stay and ordered immediate issuance of the mandate (Pet. App.
28a).  On June 1, 1987, this Court denied petitioners' application for
a stay, Justice Brennan dissenting (No. A-847).

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   "Illicit trafficking in drugs," Congress has declared, "is one of
the most serious crime problems facing the country." H.R. Rep.
98-1030, 98th Cong., 2d Sess. 255 (1984).  The Customs Service is in
many ways the first line of defense in the struggle against narcotics.
 To foster the efficiency, integrity, and public accountability of its
employees, the Service has adopted a narrowly tailored, carefully
crafted drug-testing program as a condition of placement in specific
sensitive positions.  The court of appeals, after weighing all of the
competing factors, correctly concluded that the Customs drug-testing
program is reasonable under the Fourth Amendment, even though it does
not require a showing of probable cause or particularized suspicion of
drug use.

   A. "The fundamental command of the Fourth Amendment is that
searches and seizures be reasonable" (New Jersey v. T.L.O., 469 U.S.
325, 340 (1985)), and "what is reasonable depends on the context
within which a search takes place" (id. at 337).  The reasonableness
of a particular search practice "is judged by 'balancing its intrusion
on the individual's Fourth Amendment interests against its promotion
of legitimate governmental interests.'" United States v. Montoya de
Hernandez, 473 U.S. 531, 537 (1985) (citation omitted).

   Applying this balancing test, the Court has emphasized that a
search may be reasonable under the Fourth Amendment in the absence of
either a warrant or probable cause.  Moreover, the Court has
explained, although "some quantum of individualized suspicion is
usually a prerequisite to a constitutional search or seizure(,) * * *
the Fourth Amendment imposes no irreducible requirement of such
suspicion." United States v. Martinez-Fuerte, 428 U.S. 543, 560-561
(1976) (footnote omitted).  Thus, the Court has on several occasions
identified exceptions to the requirement of particularized suspicion
"where the privacy interests implicated by a search are minimal and
where 'other safeguards' are available 'to assure that the
individual's reasonable expectation of privacy is not "subject to the
discretion of the official in the field"'" (New Jersey v. T.L.O., 469
U.S. at 342 n.8 (citations omitted)).  We believe that the balance of
competing interests strongly supports the constitutionality of the
Customs drug-testing program -- even though it requires no
particularized suspicion of drug use.

   B. The Customs drug-testing program makes only the most minimal
intrusion on employees' reasonable expectations of privacy.  Three
features of the program account for that fact.

   First and most generally, the Customs drug testing program is an
aspect of an ongoing employment relationship.  While public employees
do not forfeit Fourth Amendment rights by virtue of their employment
with the government, "(t)he employee's expectation of privacy must be
assessed in the context of the employment relation." O'Connor v.
Ortega, No. 85-530 (Mar. 31, 1987), slip op. 7.  In our view,
employees -- particularly those, like Customs employees, whose basic
mission is to stem the surge in illegal drugs -- have good reason to
expect their employer to attempt to create a drug-free workplace for
sensitive positions.

   Second and more specifically, the Customs drug tests are
administered only to employees who have applied, and have been
tentatively accepted, for promotion or transfer to one of the three
categories of covered positions.  Applicants know at the outset that a
drug test is a requirement of those positions, and they pursue their
applications with the certain knowledge that successful completion of
a drug test is a condition of ultimately obtaining the job.  By
structuring the drug tests in this fashion, the Customs Service
affords notice to employees and eliminates any role in the system for
official discretion.  Under this Court's cases, those factors
substantially reduce the intrusiveness of the tests.

   Third, the drug testing procedures themselves are narrowly tailored
to respect, to the fullest extent practicable, the employees'
reasonable expectations of privacy.  Employees are notified in advance
of the scheduled sample collection, and the collection process itself
provides maximum feasible privacy.  The urinalysis procedures are
highly reliable;  elaborate safeguards are followed to ensure accurate
results;  and participating laboratories must meet exacting quality
assurance standards.  While the process of providing a specimen may
provoke, in some employees, a measure of self-consciousness, there is
no warrant for the suggestion, repeatedly urged by petitioners, that
the Customs Service drug-testing program is "frightening, embarassing,
offensive to personal integrity, or some combination thereof" (Pet.
Br. 21).

   C. While the intrusion on privacy is minimal, the governmental
interests at stake are substantial.  Customs has a surpassing interest
in ensuring that its employees are able to perform their mission
efficiently;  that they are insulated from threats of blackmail or
corruption;  and that the Service is, and is perceived by the public
to be, untainted by drug use.  Petitioners' contention that those
goals cannot be achieved is erroneous and overlooks the government's
prerogative to proceed toward its objectives one step at a time.  And
petitioners' suggestion that there are "less intrusive" alternatives
available is both legally irrelevant and factually without support.

                               ARGUMENT

   THE CUSTOMS SERVICE DRUG-TESTING PROGRAM IS CONSTITUTIONAL UNDER
THE FOURTH AMENDMENT

   A. A Warrantless Search May Be Valid Even In The Absence Of
Particularized Suspicion

   1. "The fundamental command of the Fourth Amendment is that
searches and seizures be reasonable * * *." New Jersey v. T.L.O., 469
U.S. 325, 340 (1985).  See United States v. Montoya de Hernandez, 473
U.S. 531, 537 (1985);  United States v. Villamonte-Marquez, 462 U.S.
579, 588 (1983).  Thus, the Fourth Amendment "does not denounce all
searches and seizures, but only such as are unreasonable." Carroll v.
United States, 267 U.S. 132, 147 (1925).  The test of reasonableness
moreover, "is not capable of precise definition or mechanical
application." Bell v. Wolfish, 441 U.S. 520, 559 (1979).  Rather, in
defining the contours of the right to be free from unreasonable
searches and seizures, this Court has repeatedly said that "'the
specific content and incidents of this right must be shaped by the
context in which it is asserted.'" Wyman v. James, 400 U.S. 309, 318
(1971) (quoting Terry v. Ohio, 392 U.S. 1, 9 (1968)).  See also New
Jersey v. T.L.O., 469 U.S. at 337 ("what is reasonable depends on the
context within which a search takes place").

   The Court has articulated a balancing test to govern this inquiry.
"The permissibility of a particular law enforcement practice is judged
by 'balancing its intrusion on the individual's Fourth Amendment
interests against its promotion of legitimate governmental
interests.'" United States v. Montoya de Hermandez, 473 U.S. 531, 537
(1985) (quoting United States v. Villamonte-Marquez, 462 U.S. 579, 588
(1983)).  See also Delaware v. Prouse, 440 U.S. 648, 654 (1979);
Camara v. Municipal Court, 387 U.S. 523 (1967).  This approach
recognizes that not every invasion of privacy is prohibited by the
Fourth Amendment, but only "arbitrary and oppressive interference by
enforcement officials with the privacy and personal security of
individuals." United States v. Martinez-Fuerte, 428 U.S. 543, 554
(1976).  "Where a careful balancing of governmental and private
interests suggests that the public interest is best served by a Fourth
Amendment standard of reasonableness that stops short of probable
cause, (the Court has) not hesitated to adopt such a standard" (New
Jersey v. T.L.O., 469 U.S. at 341).

   In examining the competing interests, the Court has often found a
third consideration important -- the amount of discretion left to the
officials carrying out the search.  See, e.g., Donovan v. Dewey, 452
U.S. 594, 601-604 (1981);  Delaware v. Prouse, 440 U.S. at 654, 661;
Marshall v. Barlow's, Inc., 436 U.S. 307, 320-321 (1978).  See also
Colorado v. Bertine, 479 U.S. 367, 376-377 (1987) (Blackmun, J.,
concurring).  Because this constraint on discretion derives from the
constitutional requirement of "reasonableness" (Delaware v. Prouse,
440 U.S. at 654), the means needed to confine discretion also
necessarily vary from context to context.  What is required to meet
the constitutional concern for controlling discretion depends on the
strength of the governmental interest in a particular search practice
and the impairment of privacy interests that the practice effects.

   2. Applying this balancing test, the Court has held that in the
context of an ordinary investigation of criminal conduct by law
enforcement officers, both probable cause and a warrant are generally
necessary to render a search reasonable.  See United States v. Karo,
468 U.S. 705, 717 (1984);  United States v. United States District
Court, 407 U.S. 297, 317 (1972).  But as the Court explained most
recently in Griffin v. Wisconsin, No. 86-5324 (June 26, 1987), slip
op. 4 (citation omitted), exceptions from those requirements have been
permitted "when 'special needs, beyond the normal need for law
enforcement, make the warrant and probable-cause requirement
impracticable.'" See New Jersey v. T.L.O., 469 U.S. at 340 (quoting
Almeida-Sanchez v. United States, 413 U.S. 266, 277 (1973) (Powell,
J., concurring)) ("although 'both the concept of probable cause and
the requirement of a warrant bear on the reasonableness of a search, *
* * in certain limited circumstances neither is required'").

   Where, for example, "the burden of obtaining a warrant is likely to
frustrate the governmental purpose behind the search" (Camara v.
Municipal Court, 387 U.S. at 533), the Court has routinely held that a
warrant is not required by the Fourth Amendment.  In Griffin v.
Wisconsin, supra, the Court held that a probation officer need not
obtain a warrant before conducting a search of a probationer's
residence.  The Court explained that a warrant requirement "would
interfere to an appreciable degree with the probation system, setting
up a magistrate rather than the probation officer as the judge of how
close a supervision the probationer requires" (slip op. 7).
Similarly, in New Jersey v. T.L.O., holding that school officials did
not need a warrant or probable cause to search a child suspected of an
infraction of school disciplinary rules, the Court found that a
warrant requirement "would unduly interfere with the maintenance of
the swift and informal disciplinary procedures needed in the schools"
(469 U.S. at 340).  See also O'Connor v. Ortega, No. 85-530 (Mar. 31,
1987), slip op. 11 (plurality opinion) ("requiring an employer to
obtain a warrant whenever the employer wished to enter an employee's
office, desk, or file cabinets for a work-related purpose would
seriously disrupt the routine conduct of business and would be unduly
burdensome").

   The Court has likewise found that the probable cause standard is
inappropriate where it would defeat the purposes that the search is
designed to achieve.  For example, in the Griffin case the Court found
that holding probation officials to a probable cause standard "would
reduce the deterrent effect of the supervisory arrangement" (slip op.
9).  Similarly, in rejecting a probable cause requirement in O'Connor,
a plurality of the Court explained (slip op. 13-14) that "(t)he delay
in correcting the employee misconduct caused by the need for probable
cause rather than reasonable suspicion will be translated into
tangible and often irreparable damage to the agency's work, and
ultimately to the public interest." See also New Jersey v. T.L.O., 469
U.S. at 340-342.

   3. In still other contexts, the Court has recognized that a
warrantless search may be reasonable even in the absence of any
individualized suspicion of unlawful conduct.  As the Court explained
in United States v. Martinez-Fuerte, 428 U.S. at 560-561 (footnote
omitted), although "some quantum of individualized suspicion is
usually a prerequisite to a constitutional search or seizure(,) * * *
the Fourth Amendment imposes no irreducible requirement of such
suspicion." See also New Jersey v. T.L.O., 469 U.S. at 342 n.8;
Camara v. Municipal Court, supra.

   For example, the Court has held that no individualized suspicion is
required for the Coast Guard or Customs Service to board a vessel and
to examine its owner's documents.  United States v.
Villamonte-Marquez, supra.  Similarly, in Wyman v. James, 400 U.S.
309, 318 (1971), the Court upheld the right of a welfare caseworker to
enter the home of a welfare recipient to ensure compliance with
welfare rules, even though the statute authorizing the home visit
required no showing that the recipient was out of compliance with the
rules.  And in United States v. Martinez-Fuerte, supra, the Court held
that border officials may stop automobiles at permanent checkpoints
without any individualized suspicion.

   Each of these cases reflects the Court's statement in T.L.O. that
"(e)xceptions to the requirement of individualized suspicion are
generally appropriate only where the privacy interests implicated by a
search are minimal and where 'other safeguards' are available 'to
assure that the individual's reasonable expectations of privacy is not
"subject to the discretion of the official in the field"'" (469 U.S.
at 342 n.8 (citations omitted)).  As we show below, the Customs
drug-testing program amply satisfies that standard.

   B. The Customs Drug-Testing Program Involves a Minimal Intrusion on
Employees' Expectation of Privacy

   1. The employment relationship

   A first and quite general feature of the Customs drug-testing
program, which significantly minimizes its interference with
expectations of privacy, is the fact that the test is conducted as an
aspect of the employment relationship.  While "(i)ndividuals do not
lose Fourth Amendment rights merely because they work for the
government instead of a private employer(,) * * * (t)he operational
realities of the workplace * * * may make some employees' expectations
of privacy unreasonable" (O'Connor v. Ortega, slip op. 6 (emphasis in
original)).  Thus, "(t)he employee's expectation of privacy must be
assessed in the context ofthe employment relation" (id. at 7).

   In the Ortega case, for example, the plurality found that the
search of an employee's office "'involve(d) a relatively limited
invasion'" of privacy, noting that "the privacy interests of
government employees in their place of work * * *, while not
insubstantial, are far less than those found at home or in some other
contexts" (slip op. 14).  More generally, this Court has consistently
recognized that the government, in its capacity as an employer, may
impose reasonable employment-related restrictions on the rights of
employees that would be plainly unconstitutional if imposed on
citizens at large. See, e.g., Rankin v. McPherson, No. 85-2068 (June
24, 1987), slip op. 5;  Connick v. Meyers, 461 U.S. 138, 147 (1983);
Snepp v. United States, 444 U.S. 507, 509 n.3 (1980);  United States
Civil Service Comm'n v. National Ass'n of Letter Carriers, 413 U.S.
548 (1973).  Put another way, "the government's interest as an
employer in fit employees may allow it to deny employment when it
cannot as a sovereign attac(h) other consequences to the protected
view" (Pet. App. 38a).  /15/

   This proposition has particular force in the context of the Customs
Service.  When they accept a position with the Service, especially a
sensitive position, Customs employees necessarily commit themselves to
the mission of the agency -- to enforce the narcotics laws.  By its
nature, that mission entails a number of important restrictions on
their liberties.  Customs employees may be asked to take on difficult
and dangerous tasks.  They may be subject while they are in the field
and in another way when they give testimony in court.  In short,
employees may be, and routinely are, required to comport themselves in
ways that conform to the requirements of the agency.  That does not
mean, of course, that Customs employees lack any cognizable zone of
privacy.  It does suggest, however, that Customs employees should not
find it "frightening, embarassing, (and) offensive to personal
integrity" (Pet. Br. 21) when their employing agency -- which is sworn
to enforce the narcotics laws, to protect the public, and to safeguard
classified information from threats of blackmail or corruption --
decides to promote its mission by insisting on a reasonable procedure
to promote a drug-free workplace for specific sensitive positions.

   2. The provision of notice and the elimination of official
discretion

   A second, and more specific, feature of the Customs program, which
also minimizes its intrusiveness on employees' privacy, is the fact
that the testing is "a condition of placement/employment in the
specified positions" (J.A. 19).  Thus, an employee who applies for a
covered position knows at the outset that a drug test is a
prerequisite for obtaining the job;  after he is tentatively selected,
the employee is advised by letter that "(c)ontinued consideration for
th(e) position is contingent upon satisfactory completion of a drug
screening test" (J.A. 81).  Moreover, although an applicant who
refuses to take the test will lose consideration for the position
sought, his subsequent applications will not be affected:  no adverse
actions will be taken against him, and no documentation adversely
affecting subsequent applications will be maintained (J.A. 36).  By
structuring its drug-testing program in this fashion, Customs has
minimized the intrusion on employees' reasonable expectations of
privacy in two central respects.

   a. First, by giving its employees advance notice of the test,
Customs reduces to a minimum any "unsettling show of authority"
(Delaware v. Prouse, 440 U.S. at 657) that may be associated with
unexpected intrusions on privacy.  Unlike the subject of an arrest
warrant, who may be aroused unexpectedly by police at his doorstep
(see Payton v. New York, 445 U.S. 573 (1980)), or a driver, who may
experience "substantial anxiety" from a "sporadic and random stop()"
of his automobile" (Prouse, 440 U.S. at 657), a Customs employee has
the certain knowledge that drug testing comes with the job.

   For those reasons, the court of appeals concluded (Pet. App. 14a)
that "(t)he Customs Service test is, to some extent, consensual";  and
as this Court has many times explained, "a search authorized by
consent is wholly valid." Schneckloth v. Bustamonte, 412 U.S. 218, 222
(1973).  See also United States v. Matlock, 415 U.S. 164 (1974).  This
Court's decision in Zap v. United States, 328 U.S. 624 (1946), vacated
on other grounds, 330 U.S. 800 (1947), makes that point in a closely
related context.  There, the petitioner, a defense contractor, had
entered into an agreement with the Navy Department to perform
experimental work on airplane wings.  The agreement specified that the
contractor's books and records would be available at all times for
review by the government.  During the life of the contract, FBI agents
conducted an audit of the petitioner's records, and evidence
discovered in that audit was later introduced against the petitioner
at trial.  This Court held that the government's audit did not violate
the Fourth Amendment.  The Court explained (328 U.S. at 628) that
"when petitioner, in order to obtain the Government's business,
specifically agreed to permit inspection of his accounts and records,
he voluntarily waived such claim to privacy which he otherwise might
have had as respects business documents related to those contracts."
The Court concluded (id. at 629) that the agents "were lawfully on the
premises" and had "obtained by lawful means access to the documents.
That much at least was granted by the contractural agreement for
inspection." /16/

   But even if the employee's consent to the drug test does not
altogether eliminate any Fourth Amendment concern, it certainly
minimizes any cognizable intrusion on privacy.  This Court's decision
in Wyman v. James, 400 U.S. 309 (1971), confirms the point.  In Wyman,
the Court held that the Fourth Amendment did not preclude welfare
caseworkers from visiting the homes of welfare recipients to ensure
compliance with the welfare program.  Although the statute in question
did not require any allegation that the recipients were abusing the
welfare system, the Court found no violation of the Fourth Amendment.
Indeed, because of the consensual nature of the visits, the Court was
not persuaded that the visits constituted searches at all.  The Court
noted (id. at 317-318) that "the visitation in itself is not forced or
compelled, and that the beneficiary's denial of permission is not a
criminal act.  If consent to the visitation is withheld, no visitation
takes place.  The aid then never begins or merely ceases, as the case
may be.  There is no entry of the home and there is no search." In any
event, the Court explained, even if the caseworker's visit might be
construed as a search ("perhaps because the average beneficiary might
feel she is in no position to refuse consent to the visit" (id. at
318)), the visits were nevertheless reasonable.  In so holding, the
Court found (id. at 320) that "(t)he means employed" to make the
searches were "significant," in that the recipient was given "written
notice several days in advance of the intended home visit" (ibid.
(footnote omitted)).  The Court explained that this feature
"minimize(d) any 'burden' upon the homeowner's right against
unreasonable intrusion" (id. at 321).  /17/

   Here, as in Wyman, The Customs Service drug tests are not "forced
or compelled." If consent to the test is refused, the employee suffers
no penalty, other than forfeiting consideration for the covered
position at that time.  The Service creates no permanent record of the
refusal, nor is any adverse action taken against the employee.  As the
Court put the matter in Wyman, affording notice and making
participation voluntary "minimizes any 'burden' upon the (employee's)
right against unreasonable intrusion." /18/ See also National Fed'n of
Fed. Employees v. Weinberger, 818 F.2d 935, 943 (D.C. Cir. 1987);
Shoemaker v. Handel, 795 F.2d 1136, 1142 (3d Cir.), cert. denied, 479
U.S. 986 (1986);  Security & Law Enforcement Employees, District
Council 82 v. Carey, 737 F.2d 187, 201-202 & n.23 (2d Cir. 1984).

   b. Second, by subjecting all applicants to a drug test as a
condition of transfer to a covered position, the Customs Service has
eliminated any official discretion from its drug-testing program.
This Court has explained that "(t)he essential purpose of the
proscriptions in the Fourth Amendment is to impose a standard of
'reasonableness' upon the exercise of discretion by government
officials, including law enforcement agents, in order '"to safeguard
the privacy and security of individuals against arbitrary invasions *
* *"'" (Delaware v. Prouse, 440 U.S. at 653-654(footnote and citations
omitted)).  /19/ Thus, as the Court stated in Prouse, "(i)n those
situations in which the balance of interests precludes insistence upon
'some quantum of individualized suspicion,' other safeguards are
generally relied upon to assure that the individual's reasonable
expectation of privacy is not 'subject to the discretion of the
official in the field'" (440 U.S. at 655 (footnote omitted) (quoting
Camara v. Municipal Court, 387 U.S. at 532)).  See also New Jersey v.
T.L.O., 469 U.S. at 342 n.8.

   Under the Customs program, every employee who seeks to transfer to
a covered position must take a drug test.  The Service has no
discretion in that regard.  It may not carve out exceptions;  nor may
it select particular employees, but not others, to test.  Every test
is conducted in the same way, is analyzed the same way, and is
reported the same way.  "The urinalysis results are either positive or
negative leaving no room for official discretion in interpreting the
tests" (Pet. App. 11a-12a (footnote omitted)).  Indeed, the principal
discretion in the entire process is exercised by the employee -- when
he elects to apply for, and thereafter pursue, a covered position,
knowing that a drug test will eventually be required.  Like the police
inventory searches upheld in South Dakota v. Opperman, 428 U.S. 364
(1976), "no significant discretion is placed in the hands of the
individual officer," who has "no choice as to the subject of the
search or its scope" (id. at 384 (Powell, J., concurring) (footnote
omitted)).  See also Colorado v. Bertine, 479 U.S. at 376-377
(Blackmun, J., concurring).

   c. These same factors -- the provision of notice and the
elimination of discretion -- persuaded this Court, in United States v.
Martinez-Fuerte, 428 U.S. 543 (1976), to uphold under the Fourth
Amendment the stopping of vehicles at permanent checkpoints in the
absence of any individualized suspicion that the particular vehicle
contained illegal aliens.  Finding that the "intrusion on Fourth
Amendment interests is quite limited" (id. at 557), the Court
explained (id. at 559), first, that motorists "are not taken by
surprise as they know, or may obtain knowledge of, the location of the
checkpoints and and will not be stopped elsewhere." Second, the Court
stated (ibid.), "checkpoint operations both appear to and actually
involve less discretionary enforcement activity.  The regularized
manner in which established checkpoints are operated is visible
evidence, reassuring to law-abiding motorists, that the stops are duly
authorized and believed to serve the public interest." The Court
concluded that "(a)s the intrusion here is sufficiently minimal(,) * *
* no particularized reason need exist to justify it" (id. at 563).

   We believe that the same principles control this case.  Here, as in
Martinez-Fuerte, employees are "not taken by surprise" when they are
asked to take a drug test.  They know about the test before they seek
a transfer and they are reminded about the test after they have been
tentatively selected for a position.  Moreover, because the test is
given to all applicants, the drug-test program "both appear(s) to and
actually involve(s) less discretionary enforcement activity." The
intrusion on privacy, as in Martinez-Fuerte, is therefore
"sufficiently minimal that no particularized reason need exist to
justify it." /20/

   3. The narrowly-tailored nature of the testing procedures

   Finally, the actual procedures employed by the Customs Service, as
supplemented by the recently promulgated HHS regulations, are narrowly
tailored to respect employees' reasonable expectations of privacy.
Applicants are notified by letter that a drug test will be required
(J.A. 26-27, 81-85), and an independent contractor thereafter contacts
the employee to schedule the sample collection.  At the time of the
collection, the employee is asked, as petitioners put it, "to divulge
personal medical information, including all medications of any kind
taken within the last thirty days" (Pet. Br. 20);  but that
information remains sealed unless and until there is a confirmed
positive result from the drug test, and is then used only to rebut, if
possible, the inference of illegal substance abuse (J.A. 30-31).  In
addition, if the employee wishes to withhold medical information at
this point, he may do so, without placing any restriction on his
ability to later reveal this information in confidence to the Medical
Review Officer to explain a positive test result.  See n.5, supra.
The actual collection process is not directly observed;  the employee
provides a specimen in the privacy of a stall (J.A. 29;  HHS Reg.
Section 2.2(f)(7)).  The collector then measures the temperature of
the sample to ensure that it has not been adulterated, places a
tamper-proof seal over the bottle, prepares a chain-of-custody form,
and submits the bottle to the laboratory (J.A. 30-31;  HHS Reg.
Section 2.2.(f)(12), (19), (20), (24), (25), (g) and (h)).  The
laboratory, in turn, must be specially certified (see nn.8, 9, supra),
must follow strict chain-of-custody procedures, must perform
confirmatory analyses of the samples (conceded by all parties to be
reliable), and must submit its results to a Medical Review Officer,
who only after confirming the findings reports them to the agency (HHS
Reg. Sections 2.4(a)(2), (f)(1) and (g), 2.5., 2.7(a), (b) and (c),
3.17, 3.18;  J.A. 32;  Pet. App. 5a).

   We acknowledge that some persons may feel self-conscious about the
actual collection process;  if no one did, it would be hard to locate
any expectation of privacy at all.  But, through petitioners' lens,
that momentary self-consciousness is magnified into a process that is
at once "frightening, embarassing, offensive to personal integrity, or
some combination thereof," causing an "apprehension * * * at the
prospect of having one's urine captured and analyzed" (Pet. Br. 21).
Those metaphors, however, greatly exaggerate the extent to which the
Customs program deviates from the ordinary daily experience of the
typical Customs employee.  Customs employees are required to produce a
urine specimen in a private stall;  but virtually all employees use
public restrooms in every working day for their own bodily needs.  The
collecting official remains within earshot of the stall and listens
for the urination;  but other persons can and routinely do overhear
others engaged in excretory functions during the normal work day, and
there is no special right of privacy for activities that persons
routinely allow others to overhear.  Cf. California v. Ciraolo, 476
U.S. 207, 213 (1986);  Smith v. Maryland, 442 U.S. 735 (1979);  United
States v. Miller, 425 U.S. 435, 443, (1976).  And while persons do not
reasonably expect others to intrude into their private space during
the process of urination, Customs collectors do not do so either.
Indeed, the Customs Service has carefully instructed its contractors
to respect the privacy of its employees (J.A. 96-97).  Thus, as Judge
Higginbotham concluded below, "(t)he precise privacy interest asserted
is elusive" in this case, since "apart from the partial disrobing
(apparently not independently challenged) persons using public toilet
facilities experience a similar lack of privacy" (Pet. App. 36a).
/21/

   In our view, the Customs collection process, while perhaps novel in
terms of the narrowness of its focus, is not materially different from
any number of medical and physical examinations required by employers
in the public and private sectors as a condition of employment.  /22/
The federal government, for one, routinely requires applicants for
jobs with particular physical or medical demands to submit to physical
examinations (5 C.F.R. 339.301(a)(1)) and imposes the same
requirement, on a regularly recurring basis, on current employees in
those positions (5 C.F.R. 339.301(a)(2)).  We are advised, for
example, that criminal investigators, specialists, and auditors for
the Bureau of Alcohol, Tobacco, and Firearms must undergo complete
physical exams, including a urine test for sugar levels;  special
agents, operations support technicians, protective support
technicians, special officers, and motor vehicle operators for the
Secret Service likewise undergo a comprehensive physical, including
blood and urine testing;  motor vehicle operators, police officers,
printing plant workers, and industrial power truck operators for the
Government Printing Office are given routine physicals as a condition
of employment;  and border patrol agents, criminal investigators, and
immigration inspectors for the Immigration and Naturalization Service
are given pre-employment physicals that include blood and urine tests.
 The courts have approved such tests when imposed as a reasonable
condition of employment.  See, e.g., McDonell v. Hunter 612 F. Supp.
1122, 1130 n.6 (S.D. Iowa 1985), aff'd, 809 F.2d 1302 (8th Cir. 1987).
 Cf. Bratcher v. United States, 149 F.2d 742, 745-746 (4th Cir.),
cert. denied, 325 U.S. 885 (1945).  As Judge Higginbotham explained
below (Pet. App. 36a), "the information gained in tests of urine is
not different from that disclosed in medical records, for which
consent to examine is a routine part of applications for many
sensitive government posts."

   Petitioners contend, however, that the collection process infringes
employees' right "to control both the timing and the ultimate
disposition of his own waste" (Br. 22 n.16).  But again, petitioners
overstate the strength of that interest.  As Judge Higginbotham
observed (Pet. App. 36a), "(f)inding an objectively reasonable
expectation of privacy in urine, a waste product, contains inherent
contradictions." Like the disposal of trash, which the Court in
California v. Greenwood, No. 86-684 (May 16, 1988), recently held to
be outside one's reasonable expectation of privacy, urine is only
briefly "possessed", if at all, and is quickly abandoned.  To be sure,
persons expect to dispose of urine on their own terms;  but the
interference with that ephemeral interest, we suggest, is minor,
hardly warranting what petitioners extravagantly term "the
apprehension one feels at the prospect of having one's urine captured
and analyzed" (Br. 21).  /23/

   Petitioners also contest the Customs program because, in their view
(Br. 28-29), the physical examination of the urine sample has "the
potential for the revelation of anatomical secrets hidden in urine"
including a "wealth of information" such as "pregnancy, epilepsy, or
diabetes, treatment of psychiatric disorders, use of contraceptives,
or other personal information." The Customs Directive makes clear,
however, that the drug test may be used to discern only specified
illegal drugs (J.A. 32).  And the HHS regulations expressly forbid
participating laboratories from testing for any other substances (HHS
Reg. Section 2.1(c)) -- a prohibition included in the regulations
specifically "(i)n response to concern that specimens may be misused
to test for physiological states other than drug use (e.g.,
pregnancy)" (53 Fed. Reg. 11975 (1988)).  Since that proscription is
easy to obey -- both by refusing to make the prohibited analyses and
by maintaining the anonymity of the individual samples at the
laboratory -- there is no warrant for petitioners' assumption that the
government will violate its own regulations, and that employees'
"anatomical secrets" will thereby be compromised.  Cf. INS v. Miranda,
459 U.S. 14, 18 (1982)(per curiam) (presumption of regularity supports
official act of public officer);  Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 415 (1971) (same);  United States v.
Chemical Found, Inc., 272 U.S. 1, 14-15 (1926) (same).

   The fact that urine specimens are tested only for the presence of
illegal narcotics eliminates any claim that the process of analysis
itself intrudes on any legitimate privacy interests.  This Court has
held that a laboratory analysis that tests only for unlawful
substances is not a "search" at all within the meaning of the Fourth
Amendment.  See United States v. Jacobsen, 466 U.S. 109, 123 (1984);
United States v. Place, 462 U.S. 696 (1983).  Consequently, the only
part of the drug-testing process that even implicates Fourth Amendment
interests is the collection of urine specimens.  And as we have
already demonstrated, because of the multiple safeguards built into
the process -- including advance notice, the elimination of any
significant measureof discretion, and the narrowly tailored nature of
the testing procedures themselves -- the impact of the Customs program
on privacy interests is minimal indeed.

   C. The Customs Drug-Testing Program Serves Compelling overnmental
Interests

   1. "As the record demonstrates, and as the whole nation knows,
traffic in illegal drugs with its enormous destruction of life is a
national problem" of surpassing importance (Pet. App. 35a).  "Illicit
trafficking in drugs," Congress has declared, "is one of the most
serious crime problems facing the country." H.R. Rep. 98-1030, 98th
Cong., 2d Sess. 255 (1984).  This Court's cases tell a small but
representative part of the story.  They trace the path of narcotics
from the ships and airplanes (see, e.g., United States v.
Villamonte-Marquez, 462 U.S. 579 (1983);  United States v. Montoya de
Hernandez, 473 U.S. 531 (1985)), across the country (see, e.g.,
Illinois v. Gates, 462 U.S. 213 (1983)), to the streets of the inner
cities (see, e.g., Bourjaily v. United States, No. 85-6725 (June 23,
1987);  Maryland v. Garrison, No. 85-759 (Feb. 24, 1987);  United
States v. Ross, 456 U.S. 798 (1982)), and the classrooms of the
nation's schools (see, e.g., New Jersey v. T.L.O. supra).  They
recount, if briefly, the elaborate schemes for importing narcotics
(see, e.g.; United States v. Ramsey, 431 U.S. 606 (1977)), the "highly
sophisticated narcotics * * * network(s)" that control its manufacture
and distribution (Jeffers v. United States, 432 U.S. 137, 139 (1977)
(plurality opinion);  see also Garrett v. United States, 471 U.S. 773
(1985)), and the hundreds of laboratories and distribution outlets,
across the country, that produce, package, and market the drugs to the
consuming public.  See, e.g., United States v. Dunn, No. 85-998 (Mar.
3, 1987);  Henderson v. United States, 476 U.S. 321 (1986);  Segura v.
United States, 468 U.S. 796 (1984).  And they tell, unfortunately, of
the random, senseless violence that is in every sense a tool of the
trade.  See, e.g., Booth v. Maryland, No. 86-5020 (June 15, 1987);
Richardson v. Marsh, No. 85-1433 (Apr. 21, 1987);  Allen v. McCurry,
449 U.S. 90 (1980).  See also United States v. Alvarez, 810 F.2d 879,
892-897 (9th Cir. 1987) (Noonan, J., dissenting) (collecting cases).

   The Customs Service is in many ways the first line of defense in
the nation's struggle with narcotics.  As "the nation's primary border
enforcement agency," the Service "is charged with the responsibility
for interdicting illegal drugs that enter the country" (J.A. 109).  To
ensure that the Service is able to discharge that responsibility, the
Commissioner has approved a narrowly tailored drug-testing program
that focuses on positions that directly involve the employee to carry
firearms, or that require the employee to handle classified material.
The Customs drug-testing program serves three vital purposes.

   First among these is the safe and efficient discharge of Customs
operations.  /24/ As the Commissioner found (J.A. 113), "(i)llegal
drug use dulls the ability to think and react quickly, clouding the
employee's judgment and endangering other lives and government
property." Studies have indicated that drug abusers typically function
at only fifty to sixty-seven percent capacity;  that they suffer a
rate of absenteeism ranging between 2.5 and 16 times higher than
employees who do not use drugs;  and that they have a significantly
higher turnover rate, leaving their jobs, on average, between 10 and
16 months earlier than employees who do not use drugs.  See Rothstein,
Drug Testing in the Workplace:  The Challenge to Employment Relations
and Employment Law, 63 Chi(-)Kent L. Rev. 683, 688-689 & nn.23, 25, 29
(1987) (citing studies).  Drug abusers are likely to show "inadequate
preparation, impaired memory, lethargy, reduced coordination,
carelessness, mistakes, and slowdowns" (id. at 688 (footnote omitted),
citing studies).  And as the court of appeals observed (Pet. App.
13a), "those employees involved in field operations, particularly if
carrying firearms, endanger the safety of their fellow agents, as well
as their own, when their performance is impaired by drug use."

   In addition, the Customs drug-testing program promotes the
integrity of Customs operations.  As the Commissioner has explained
(J.A. 114), employees who use illegal drugs "may be bribed into
disclosing (classified) information to a criminal drug enterprise, and
they may have a financial need to exchange information valuable to
smugglers in order to support their habit." Indeed, the Commissioner
observed (ibid.), "(g)iven the incredible sums of money involved, it
is not surprising that Customs Officers have been the targets of
bribery by drug smugglers on numerous occasions, and several Customs
Officers have been removed for accepting such bribes and other
integrity violations in past years." While we certainly agree with
petitioners that the overwhelming majority of Customs employees "only,
seek the opportunity to serve their country in its battle against
traffic in illegal drugs" (Pet. Br. 48) 48), no one, including
including petitioners, disputes that there are, and will continue to
be exceptions to that rule, particularly as Customs fulfills the
congressional mandate to augment its ranks considerably (see J.A.
114).  /25/ See, e.g., United States v. Hall, 739 F.2d 96 (2d Cir.
1984);  Masino v. United States, 589 F.2d 1048 (Ct. Cl. 1978).  Cf
Heron V. McGuire, 803 F.2d 67, 68 (2d Cir. 1986) (per curiam).

   Finally, the Customs Service has a substantial interest in ensuring
that its employees do not damage the agency's public reputation.  This
Court has several times recognized the importance of that interest.
For example, in Snepp v. United States, 444 U.S. 507, 509, n.3(1980),
the Court held that the Central Intelligence Agency has a "compelling
interest" in maintaining "the appearance of confidentiality so
essential to the effective operation of our foreign intelligence
service." Similarly, in sustaining the Hatch Act against First
Amendment challenge, the Court held that Congress has a substantial
interest, not only in ensuring that federal service employees "in fact
avoid practicing political justice," but also in ensuring "that they
appear to the public to be avoiding it." United States Civil Service
Commission v. National Ass'n of Letter Carriers, 413 U.S. 548, 565
(1973).  And in sustaining the Lloyd-La Follette Act (5 U.S.C. 7501)
against First Amendment challenge, the Court upheld a federal
regulation (5 C.F.R. 735.201a(f)) providing that a civil servant may
be removed for engaging in expressive activity that "(a)ffect(s)
adversely the confidence of the public in the integrity of the
Government." Arnett v. Kennedy, 416 U.S. 134, 141-142(1974).  In each
of these cases, the Court recognized that the government has an
overriding interest in regulating employee behavior "which improperly
damages and impairs the reputation and efficiency of the employing
agency" (id. at 162).

   As a law enforcement agency, Customs naturally has a strong and
legitimate interest in maintaining the reputation and appearance of
being fully committed to enforcement of the law.  It depends on the
public for tips about criminal activity and for testimony in support
of its enforcement efforts.  Customs officers must themselves
frequently testify in trials and other public proceedings in which the
credibility of the officers, and of the agency generally, is
critically at issue.  Perhaps most importantly, Customs relies on the
public for voluntary compliance with the letter of the law.  To
maintain this spirit of cooperation, Customs may properly insist that
its employees possess the highest standards of professional conduct,
on and off the job.  For if a law enforcement agency and its employees
do not take the law seriously, neither will the public on which the
agency's effectiveness depends.  See Olmstead v. United States, 277
U.S. 438, 485 (1928) (Brandeis, J., dissenting) ("For good or for ill,
(our Government) teaches the whole people by its example.").

   2. Petitioners acknowledge (Br. 39-40) that "Customs' stated
objective for its plan is an important one" and that its goals are
"unexceptionable" (id. at 40).  They contend (id. at 46), however,
that the program cannot succeed since "virtually anyone who uses
illegal drugs can avoid detection by temporary abstinence."
Petitioners accordingly surmise that "a search that can so easily be
thwarted will not serve as an effective deterrent to prevent illegal
drug users from seeking Customs positions" (id. at 46-47).

   Petitioners overstate the case.  As the court of appeals explained,
"(a)ddicts may not be able to abstain" prior to the test, and other
employees, who "may not * * * be aware of the fade-away effect" of
narcotics, may not choose to abstain (Pet. App. 18a).  There are also
significant differences in how quickly traces of narcotics disappear
from the body.  The record in this case shows, for example, that while
in most cases marijuana becomes undetectable within "two to five
days," it may remain in the body considerably longer in cases of
"chronic users" (J.A. 60 (affidavit of John P. Morgan)) -- in some
instances for as much as 22 or 30 days (J.A. 66 (affidavit of Dr.
Arthur J. McBay)).  Thus, as the court of appeals found (Pet. App.
18a), "a particular user still faces a significant risk that his test
would be positive." That "risk of detection therefore may deter
drug-using employees from seeking more sensitive positions" (ibid.).
Still other drug users, who choose to abstain temporarily prior to the
test, may miscalculate the necessary period of abstention and test
positive despite their efforts at evasion.  Indeed, notwithstanding
the notice provision, at least five applicants have produced positive
urine samples since the inception of the Customs drug-testing program
(Pet. Br. 8).

   But even if the Customs drug-testing program cannot ferret out
every abuser, that does not make it unreasonable under the Fourth
Amendment.  To be sure, by affording employees notice of the drug
test, the Customs Service may have allowed some drug users to evade
the test.  But, by furnishing notice, the Service has also reduced the
intrusiveness of the process.  Customs was entitled to strike the
balance -- plainly a reasonable one -- that it thought was appropriate
under the circumstances.  Here, as elsewhere, the government "may take
one step at a time, addressing itself to the phase of the problem
which seems most acute." Williamson v. Lee Optical, 348 U.S. 483, 489
(1955).  /26/

   3. Petitioners also contend (Br. 35 (footnote omitted)) that
"Customs has not demonstrated that a probable cause standard would
prevent its investigating and punishing workplace wrongdoing."
Alternatively, petitioner's argue (Br. 37-48) that Customs must meet a
"reasonable suspicion" standard before conducting a drug test.  As a
threshold matter, we do not see why, in light of the balance of
competing interests, the Customs program should be measured by either
standard.  As this Court explained in the T.L.O. case, "(w)here a
careful balancing of governmental and private interests suggests that
the public interest is best served by a Fourth Amendment standard of
reasonableness that stops short of probable cause, (the Court has) not
hesitated to adopt such a standard" (469 U.S. at 341).  Accord
O'Connor v. Ortega, slip op. 12.  The balance of interests in this
case places the Customs program squarely within the "(e)xceptions to
the requirement of individualized suspicion" -- that is, where "the
privacy interests implicated by a search are minimal and * * * 'other
safeguards' are available 'to assure that the individual's reasonable
expectation of privacy is not "subject to the discretion of the
official in the field"'" (New Jersey v. T.L.O., 469 U.S. at 342 n.8).

   In any event, petitioners endorse probable cause (or at least
particularized suspicion) as an appropriate legal standard only by
ignoring most of the objectives that Customs seeks to achieve by
conducting drug tests of employees in sensitive positions.  Probable
cause or particularized suspicion may be workable where an agency
merely seeks, in petitioners' words, to "punish workplace wrongdoing."
But Customs has a broader, and in many respects more important,
agenda.  It also seeks to deter wrongdoing, to insulate employees from
threats to integrity, and to promote the public reputation of the
agency.  The margin of error associated with a probable cause or
particularized suspicion standard is singularly unsuited to those
ends.  As in United States v. Martinez-Fuerte, imposing either
standard would reduce the deterrent effect (see 428 U.S. at 557) of
the drug-testing program, by allowing drug users to persist in their
habit until sufficient evidence accumulates against them.  And if
Customs were required to await palpable evidence of misconduct before
it could intervene, the result could be an incalculable loss to the
agency's enforcement mission and to its public reputation as a law
enforcement agency.  In view of the minimally intrusive nature of the
Customs program, and the surpassing importance of its objectives,
there is no basis for requiring the agency to absorb such costs. See
O'Connor v. Ortega, slip op. 14.  /27/

   4. Finally, petitioners contend (Br. 45) that there are "less
intrusive means to address the stated problem," including reliance on
"'physical observation * * *, citizen complaints, tips from other law
enforcement agencies and other means'" (id. at 35 (citation omitted)).
 But "(t)he reasonableness of any particular governmental activity
does not necessarily or invariably turn on the existence of
alternative 'less intrusive' means." Illinois v. Lafayette, 462 U.S.
640, 647, (1983).  This Court has cautioned against "indulg(ing) in
'unrealistic second-guessing,'" because "'creative judge(s), engaged
in post hoc evaluations of police conduct can almost always imagine
some alternative means by which the objectives of the police might
have been accomplished'" (United States v. Montoya de Hernandez, 473
U.S. at 542, quoting United States v. Sharpe, 470 U.S. 675, 686-687
(1985)). As the Court has explained, "(t)he logic of such elaborate
less-restrictive-alternative arguments could raise insuperable
barriers to the exercise of virtually all search-and-seizure powers"
(United States v. Martinez-Fuerte, 428 U.S. at 556-557 n.12).  Accord
Colorado v. Bertine, 479 U.S. at 373-375;  Cady v. Dombrowski, 413
U.S. 443, 447 (1973).

   In any event, petitioners do not explain why their suggested
alternatives would be as effective as the Customs drug-testing
program.  Relying on colleagues and supervisors to detect symptoms of
drug use, while of some benefit, cannot suffice.  As the Federal
Railroad Administration recently observed, after studying the various
alternatives at length, "the symptoms of drug use are often
undetectable by even a reasonably trained supervisor.  Further, some
'functional' drug users seem able to avoid job-related problems until
their problems reach a crisis stage." 53 Fed. Reg. 16640 (1988).
Moreover, some drugs have "delayed, residual or chronic effects not
ascertainable through behavioral observation." Transport Workers'
Union, Local 234 v. Southeastern Pennsylvania Transp. Auth., 678 F.
Supp. 543, 550 (E.D. Pa. 1988).  Accord Schaill v. Tippecanoe County
School Corp., 679 F. Supp. 833, 857-858 (N.D. Ind. 1988).
Petitioners' preference for observation by co-workers is particularly
misplaced in this case, because applicants for sensitive positions
have not yet been exposed to the special pressures of a job at the
forefront of the drug interdiction effort (and thus cannot have been
"observed" under relevant conditions.) /28/ Beyond that, Customs
employees often work alone, for example in undercover operations or in
other settings in which close observation is difficult.  Scrutiny by
fellow employees may also be inconsistent with the demands of
colleagueship;  employees simply may not be willing to report
substance abuse by their fellow workers (see Pet. App. 17a-18a).  And
even were such reporting likely, on-the-job scrutiny can discern only
on-the-job impairment;  it cannot determine, as drug testing can, the
use of narcotics off the premises -- use that is equally inconsistent
with the integrity objectives of the Service.  /29/

                       * * * * *

   In sum, the Customs, drug-testing program is reasonable.  Because
the program applies only to applicants for sensitive positions;
because the program is a reasonable incident of an ongoing employment
relationship;  because the program offers applicants advance notice
that they will be subject to such tests;  because the program applies
without discretion to all such applicants;  and because the program is
conducted under carefully circumscribed procedures that minimize the
potential for embarassment or abuse, the intrusion on individual
expectations of privacy is minimal.  At the same time, the program
advances governmental interests of the highest order -- protecting the
efficient performance, integrity, and reputation of an agency that
serves at the front lines in the struggle against illegal drug use.
Certainly, employee drug testing is no panacea;  it cannot be expected
to solve by itself the overwhelming problems of drug abuse that
afflict this Nation.  But employee drug testing -- when rationally
imposed and reasonably conducted -- has the potential of being one
important tool in that effort.  And as this case demonstrates, a
drug-testing program that meets those criteria of reasonableness is
fully consistent with the requirements of the Fourth Amendment.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted,

   CHARLES FRIED

      Solicitor General

   JOHN R. BOLTON

      Assistant Attorney General

   THOMAS W. MERRILL

      Deputy Solicitor General

   JAMES M. SPEARS

   ROBERT J. CYNKAR

      Deputy Assistant Attorneys General

   LAWRENCE S. ROBBINS

      Assistant to the Solicitor General

   LEONARD SCHAITMAN

   ROBERT V. ZENER

      Attorneys

   JAMES H. ANDERSON

      Attorney United States Customs Service

   JUNE 1988

   /1/ Under the Customs program, an employee who is tentatively
selected for a covered position, but who refuses to take a drug test,
will lose consideration only for the position for which he has
applied.  Subsequent applications are not affected by a refusal, nor
does the Service maintain any documentation that adversely affects an
employee's subsequent applicants. J.A. 36.

   /2/ The Commissioner also noted (J.A. 113) that "the liberties of
other citizens are often dependent on the good judgment of these
Customs employees who have the full range of police powers."

   /3/ The Commissioner stated (J.A. 114) that "(g)iven the incredible
sums of money involved, it is not surprising that Customs Officers
have been the targets of bribery by drug smugglers on numerous
occasions, and several Customs officers have been removed for
accepting such bribes and other integrity violations in past years."

   /4/ Although the HHS regulations were issued after the decision of
the court of appeals, they are properly before this Court for review,
to whatever extent they supplement or supplant the Customs Directive.
As the Court made clear in California Bankers Ass'n v. Shultz, 416
U.S. 21 (1974), this Court "must examine the * * * regulations as they
now exist" -- not as they "existed when the District Court (or the
court of appeals) ruled in the case" (id. at 53).  See Thorpe v.
Housing Auth., 393 U.S. 268, 282 (1969).  This principle is
particularly applicable where, as here, a plaintiff seeks to enjoin a
regulatory scheme that has been amended by the newly-issued
regulations.

   /5/ The pre-test form presently states that "(f)ailure to provide
this information may prevent the agency from considering the effect of
medications taken by an individual on a positive test result" (J.A.
87).  This language is, however, inconsistent with the
subsequently-issued HHS regulations, which provide that the Medical
Review Officer (see pp. 8-9, infra) "shall review all medical records
made available by the tested individual when a confirmed positive test
could have resulted from legally prescribed medication" (HHS Reg.
Section 2.7(b)).  Customs plans to delete the inconsistent language
from its pre-test form, as part of the revisions necessary to conform
to the HHS regulations.

   /6/ Test results may not be used for purposes of a criminal
prosecution.  By statute, the test results may not be disclosed to
anyone without the employee's prior written consent, except to certain
specified officials within the agency or by court order when necessary
to defend against any challenge to adverse personnel action. Pub. L.
100-71, Section 503(e), 101 Stat. 471.  The purpose of that provision
was "to avoid misuse and the possibility of criminal prosecution or
any adverse action by any other agency or individual" (133 Cong. Rec.
H5680 (daily ed. June 27, 1987) (statement of conferees)).

   /7/ Indeed, Customs insisted that a drug-testing proposal submitted
by a contractor be modified to preclude direct observation of the
voiding process (J.A. 91-92).

   /8/ To be certified to perform drug-testing for federal agencies, a
laboratory is subjected to a performance test, requiring it to test
three cycles of blind samples over a period of at least three months
(HHS Reg. Sections 3.17, 3.18).  A single false positive result during
this initial performance assessment "will automatically disqualify a
laboratory from further consideration" (id. Section 3.19(a)(1)).
During the first 90 days following the certification of a laboratory,
the agency must submit to the lab "blind performance test speciments *
* * in the amount of at least 50 percent of the total number of
samples submitted (up to a maximum of 500 samples) and thereafter a
minimum of 10 percent of all samples (to a maximum of 250) submitted
per quarter" (id. Section 2.5(d)(2)).  After certification,
laboratories must continue to be "challenged" every other month with a
set of at least test speciments (id. Section 3.17(c)).

   /9/ Before the HHS regulations were proposed, Customs entered into
a contract with a private laboratory and has requested a waiver from
HHS to continue using that laboratory pending its certification under
the guidelines.  Customs' laboratory is on the HHS schedule for
certification and Customs has no reason to believe that it will not be
certified.

   /10/ A Customs employee who does not wish to challenge a positive
finding may voluntarily resign (J.A. 36).

   /11/ Petitioners did not allege, as they do now (Br. 25-37), that
the Fourth Amendment forbids drug testing except where there is a
showing of probable cause.  Indeed, in the court of appeals
petitioners "concede(d) that the Customs Service might test employees
who seek transfers if there were some degree of individualized
suspicion" (Pet. App. 10a-11a).  See also Appellees' Br. 13.

   /12/ The court addressed petitioners' constitutional challenges
only insofar as the drug-testing program applies to current Customs
Service employees who seek covered positions;  it reversed the
district court's judgment as applied to outside job applicants because
those persons were not parties to the case (Pet. App. 3a, 21a;  Pet. 6
n.9).

   /13/ The court added (Pet. App. 11a) that the Customs program is
"limited in total scope" and "prevent(s) the exercise of discretion
concerning who is to be tested" because "(o)nly employees seeking
transfer to sensitive positions are required to take the test and only
as a result of a process that they choose to set in motion."

   /14/ The court explained (Pet. App. 17a) that "alternative sources
of information do not eliminate the need for urine testing" in part
because other Customs employees "may be reluctant to disclose their
knowledge of the employee's drug use or may be unaware of (it)" (id.
at 18a).  And while the court recognized that employees may attempt to
deceive the drug test by a brief abstention prior to the examination
it noted (ibid.) that "(a)ddicts may not be able to abstain for five
days";  that a particular user may show traces of narcotics for a
longer than average period;  and that many employees may not be aware
of the fact that drug traces fade away.  The court concluded (ibid.)
that "(t)he risk of detection therefore may deter drug-using employees
from seeking more sensitive positions."

   /15/ As Judge Higginbotham observed below (Pet. App. 38a), "(a)n
anarchist's political view is protected by the first amendment.  But I
would not suppose that his constitutional protection extends to the
right to be an FBI agent."

   /16/ See also Davis v. United States, 328 U.S. 582 (1946);  United
States v. Lopez-Pages, 767 F.2d 776, 779 n.2 (11th Cir. 1985) (air
traveler's consent based on notice on sign that passengers are subject
to search);  United States v. DeAngelo, 584 F.2d 46, 47-48 (4th Cir.
1978) (same), cert. denied, 440 U.S. 935 (1979);  United States v.
Freeland, 562 F.2d 383, 385-386 (6th Cir.) (same), cert. denied, 434
U.S. 957 (1977);  McMorris v. Alioto, 567 F.2d 897 (9th Cir. 1978)
(attorney's consent to magnetometer search as condition of entering
courthouse);  United States v. Silher, 562 F.2d 349, 350-351 (5th Cir.
1977) (prison employee's consent based on notice on sign stating that
all persons entering prison are subject to search);  United States v.
Ellis, 547 F.2d 863 (5th Cir. 1977) (visitors to Naval station may be
required to consent to warrantless search of automobile);  United
States v. Davis, 482 F.2d 893, 913-914 (9th Cir. 1973) (air traveler's
consent to pre-boarding search for weapons);  United States v.
Skipwith, 482 F.2d 1272 (5th Cir. 1973) (same).

   /17/ The Court has made much the same point in its administrative
inspection cases.  In United States v. Biswell, 406 U.S. 311 (1972),
for example, the Court upheld the statutorily-authorized, warrantless
search of the locked storeroom of a licensed gun dealer, which
resulted in the seizure of unlicensed firearms.  The Court explained
(id. at 316 that inspections under the statute "pose only limited
threats to the dealer's justifiable expectations of privacy" since
"(w)hen a dealer chooses to engage in this pervasively regulated
business and to accept a federal license, he does so with the
knowledge that his business records, firearms, and ammunition will be
subject to effective inspection." See also Michigan v. Tyler, 436 U.S.
499, 514 (1978) (Stevens, J., concurring in part and concurring in the
judgment) ("(t)he Fourth Amendment interests involved in this case
could have been protected in either of two ways -- by a warrant, if
probable cause existed;  or by fair notice, if neither probable cause
nor a special law enforcement need existed").  At least two courts of
appeals have relied on this Court's administrative inspection cases in
upholding drug testing programs that did not require a showing of
individualized suspicion.  See Rushton v. Nebraska Public Power Dist.,
844 F.2d 562 (8th Cir. 1988) (nuclear plant engineers);  Shoemaker v.
Handel, 795 F.2d 1136 (3d Cir.), cert. denied, 479 U.S. 986 (1986)
(race track employees).  But see Railway Labor Executives' Ass'n v.
Burnley, 839 F.2d 575 (9th Cir. 1988), cert. granted, No. 87-1555
(June 6, 1988).

   /18/ For many of the same reasons, it may also be argued, as this
Court concluded in Wyman (400 U.S. at 317-318), that the Customs
drug-testing program is not a Fourth Amendment search at all.  Federal
government employees routinely submit to fingerprint checks, full
field background investigations, physical examinations and, for
employees engaged in national security functions, questioning subject
to polygraphs as conditions of employment.  These employment tests
involve differing degrees of intrusiveness into an employee's privacy
as well as exercises of dominion and control, albeit slight, over the
employee.  Nonetheless, we are aware of no decision holding that such
tests, when imposed as a reasonable condition of employment, interfere
with reasonable expectations of privacy or otherwise raise Fourth
Amendment questions.  See McDonell v. Hunter, 612 F. Supp. 1122, 1130
n.6 (S.D. Iowa 1985), aff'd, 809 F.2d 1302 (8th Cir. 1987). Cf.
Brachter v. United States, 149 F.2d 742 (4th Cir.), cert. denied, 325
U.S. 885 (1945) (routine, warrantless preinduction physical upheld);
Schlagenhauf v. Holder, 379 U.S. 104, 114 (1964) (physical examination
required of defendant under Fed. R. Civ. P. 35 is "free of
constitutional difficulty").  Moreover, here, as in Wyman, the test is
a prerequisite for the receipt of particular benefits that may freely
be accepted or declined. The employee knows of the test in advance and
participates in it, at his option, as he might in any other
pre-employment examination.  Accordingly, in our view Wyman is
persuasive authority for the proposition that an employee drug-testing
program -- containing these or substantially similar features -- does
not entail "any search by the (government) in the Fourth Amendment
meaning of that term" (400 U.S. at 317).  To resolve that issue,
however, would require this Court to render a decision with broader
implications that the facts of this case demand.  We are therefore
content to rest our defense of the Customs program on the essential
reasonableness of the program itself.

   /19/ See also United States v. Ortiz, 422 U.S. 891, 895-896 (1975);
 United States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975).

   /20/ We do not mean to suggest that the Customs program -- which
limits official discretion by subjecting all persons selected for
designated sensitive position to a test -- is the only
constitutionally acceptable means of limiting official discretion.
Post-accident testing, such as that at issue in Burnley v. Railway
Labor Executive's Ass'n, No. 87-1555, also effectively restricts
official discretion.  In addition, the government is presently
defending particular drug testing programs that involve random
selection of employees for testing according to neutral criteria (such
as Social Security number or birth date).  American Federation of
Government Employees v. Dole, No. 87-5417 (D.C. Cir.) (air traffic
controllers and certain other Department of Transportation employees);
 National Federation of Federal Employees v. Carlucci, Nos. 88-5080,
88-5081, 88-5082 (D.C. Cir.) (Department of the Army employees
occupying aviation positions, security guards, law enforcement
positions, employees involved with chemical warfare or nuclear
materials, alcohol and drug abuse counselors, and employees at Army
forensic drug testing laboratories).  See Adams, Random Drug Testing
of Government Employees:  A Constitutional Procedure, 54 U. Chi. L.
Rev. 1335, 1367-1368 (1987).

   /21/ Petitioners also exaggerate the nature of urinalysis when they
describe it (Br. 32) as an "(i)ntrusion() into the body itself."
Unlike a blood test (see Schmerber v. California, 384 U.S. 757
(1966)), the extraction of a bullet (see Winston v. Lee, 470 U.S. 753
(1985)), or even the removal of fingernail scrapings (see Cupp v.
Murphy, 412 U.S. 291 (1973)), the urine samples are produced by the
employee and turned over to the collector.

   /22/ Cf. New York Transit Auth. v. Beazer, 440 U.S. 568, 591 n.37
(1979) ("a simple urine test" was sufficient to prove compliance with
Transit Authority's rule against employing drug users);  Schmerber v.
California, 384 U.S. at 771 n.13 (citation omitted) ("'(t)he blood
test procedure has become routine in our everyday life.  It is a
ritual for those going into the military service as well as those
applying for marriage licenses.  Many colleges require such tests
before permitting entrance and literally millions of us have
voluntarily gone through the same, though a longer, routine in
becoming blood donors'").

   /23/ We also dispute petitioners' suggestion (Br. 22 n.16) that the
Customs Service "seizes" its employees when it directs them to produce
a urine sample as a condition of promotion to a sensitive position.
Under this argument, the Fourth Argument would be implicated every
time a public employers directed an employee to participate in an
employment-related physical examination.  Moreover, the direction to
provide a urine sample is surely no more of a seizure than the
compulsion of a grand jury subpoena -- which is enforceable by
contempt -- to produce voice exemplars, handwriting, or fingerprints.
And yet this Court has held that such subpoenas are not seizures
within the meaning of the Fourth Amendment.  See United States v.
Dionisio, 410 U.S. 1 (1973);  United States v. Mara, 410 U.S. 19
(1973).

   /24/ This Court noted the importance of that concern in its
decision in the Ortega case.  There, the Court observed (slip op. 13)
that "(p)ublic employers have an interest in ensuring that their
agencies operate in an effective and efficient manner, and the work of
these agencies inevitably suffers from the inefficiency, incompetence,
mismanagement or other work-related misfeasance of its employees.
Indeed, in many cases, public employees are entrusted with tremendous
responsibility, and the consequences of their misconduct or
incompetence to both the agency and the public interest can be
severe."

   /25/ As the Commissioner explained (J.A. 112), the Customs
"applicant pool is drawn from a society where drug abuse is
widespread" and there is "no reason to believe that this applicant
pool is somehow immune to a problem that has pervaded all
socio-economic classes of our society."

   /26/ There is a certain irony to petitioners' argument, because it
effectively contends, as the court of appeals put it (Pet. App. 19a),
that "the testing program would be more likely to be constitutional if
it were more pervasive and more invasive of privacy." In fact, the
Customs Service presently contemplates supplementing the current
program with a random testing plan for all sensitive employees.  The
fact that random testing has not yet been implemented does not
undercut the reasonableness of the present testing program.

   /27/ Petitioners also insist on a probable cause or reasonable
suspicion standard to reduce the intrusiveness of a program in which,
as they estimate it, "99.99 plus % of those searched have been
innocent" (Br. 26).  The same might be said, we suppose, about the
searches of automobiles at fixed checkpoints in Martinez-Fuerte:
there, too, the vast majority of cars doubtless did not contain
illegal aliens.  But as Justice Powell explained in his concurring
opinion in South Dakota v. Opperman, 428 U.S. 364, 378 (1976),
rejecting a similar challenge to police inventory searches, "the
occasional danger that may exist cannot be discounted entirely. * * *
The harmful consequences in those rare cases may be great, and there
does not appear to be any effective way of identifying in advance
those circumstances or classes of automobile impoundments which
represent a greater risk." In any event, the high percentage of
negative test samples may well be a result of the deterrent value of
the drug-testing program itself.

   /28/ As the court of appeals explained (Pet. App. 17a), "(a)lthough
the Service has had an opportunity to observe the performance of
employees while they were working non-sensitive positions, this
provides scant basis on which to evaluate their integrity and
reliability should they be assigned to work in sensitive positions."

   /29/ Moreover, it is by no means clear that the alternatives
proposed by petitioners and the amici supporting them are truly "less
intrusive." "(O)n-going observation by * * * supervisors and
co-employees" (Pet. Br. 35) could well promote a less private
workplace.  "Motor coordination tests" and "neuro-behavioral tests"
(ACLU Br. 20), whatever their efficacy, are almost assuredly more
invasive than drug tests.  See also Baker, Letz, & Fidler, A
Computer-Administered Neurobehavioral Evaluation System for
Occupational and Environmental Epidemiology, 27 J. Occupational Med.
206, 211 (1985) (cautioning that neurobehavioral testing may
discriminate against certain groups).  Moreover, neither workplace
observation nor behavioral tests address the problem of an employee
whose off-duty drug use has not affected his on-duty performance but
may have rendered him susceptible to bribery or blackmail.  And as the
court of appeals explained, detailed background investigations, which
petitioners also endorse (Pet. Br. 35), may themselves be "intrusive
invasions of an individual's privacy" (Pet. App. 18a).  See Fraternal
Order of Police v. City of Philadelphia, 812 F.2d 105 (3d Cir. 1987)
(constitutional challenge to questionnaire given to police officers
volunteering for special investigations unit).