Skinner v. Railway Labor Executives Ass'n

U.S. Supreme Court Skinner v. Railway Lab. Execs. Ass'n, 489
U.S. 602 (1989) Skinner v. Railway Labor Executives'
Association No. 87-1555 Argued November 2,
1988 Decided March 21,
1989 489
U.S. 602 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Upon the basis of evidence indicating that alcohol and drug
abuse by railroad employees had caused or contributed to a number
of significant train accidents, the Federal Railroad Administration
(FRA) promulgated regulations under petitioner Secretary of
Transportation's statutory authority to adopt safety standards for
the industry. Among other things, Subpart C of the regulations
requires railroads to see that blood and urine tests of covered
employees are conducted following certain major train accidents or
incidents, while Subpart D authorizes, but does not require,
railroads to administer breath or urine tests, or both, to covered
employees who violate certain safety rules. Respondents, the
Railway Labor Executives' Association and various of its member
labor organizations, brought suit in the Federal District Court to
enjoin the regulations. The court granted summary judgment for
petitioners, concluding that the regulations did not violate the
Fourth Amendment. The Court of Appeals reversed, ruling, inter
alia, that a requirement of particularized suspicion is
essential to a finding that toxicological testing of railroad
employees is reasonable under the Fourth Amendment. The court
stated that such a requirement would ensure that the tests, which
reveal the presence of drug metabolites that may remain in the body
for weeks following ingestion, are confined to the detection of
current impairment. Held: 1. The Fourth Amendment is applicable to the drug and alcohol
testing mandated or authorized by the FRA regulations. Pp. 489 U. S.
613 -618.

															(a) The tests in question cannot be viewed as private action
outside the reach of the Fourth Amendment. A railroad that complies
with Subpart C does so by compulsion of sovereign authority, and
therefore must be viewed as an instrument or agent of the
Government. Similarly, even though Subpart D does not compel
railroads to test, it cannot be concluded, in the context of this
facial challenge, that such testing will be primarily the result of
private initiative, since specific features of the regulations
combine to establish that the Government has actively encouraged,
endorsed, and participated in the testing. Specifically, since Page 489 U. S. 603 the regulations preempt state laws covering the same subject
matter, and are intended to supersede collective bargaining and
arbitration award provisions, the Government has removed all legal
barriers to the testing authorized by Subpart D. Moreover, by
conferring upon the FRA the right to receive biological samples and
test results procured by railroads, Subpart D makes plain a strong
preference for testing and a governmental desire to share the
fruits of such intrusions. In addition, the regulations mandate
that railroads not bargain away their Subpart D testing authority,
and provide that an employee who refuses to submit to such tests
must be withdrawn from covered service. Pp. 489 U. S.
614 -616.

															(b) The collection and subsequent analysis of the biological
samples required or authorized by the regulations constitute
searches of the person subject to the Fourth Amendment. This Court
has long recognized that a compelled intrusion into the body for
blood to be tested for alcohol content, and the ensuing chemical
analysis, constitute searches. Similarly, subjecting a person to
the breath test authorized by Subpart D must be deemed a search,
since it requires the production of "deep lung" breath, and thereby
implicates concerns about bodily integrity. Moreover, although the
collection and testing of urine under the regulations do not entail
any intrusion into the body, they nevertheless constitute searches,
since they intrude upon expectations of privacy as to medical
information and the act of urination that society has long
recognized as reasonable. Even if the employer's antecedent
interference with the employee's freedom of movement cannot be
characterized as an independent Fourth Amendment seizure, any
limitation on that freedom that is necessary to obtain the samples
contemplated by the regulations must be considered in assessing the
intrusiveness of the searches affected by the testing program. Pp. 489 U. S.
616 -618.

															2. The drug and alcohol tests mandated or authorized by the FRA
regulations are reasonable under the Fourth Amendment, even though
there is no requirement of a warrant or a reasonable suspicion that
any particular employee may be impaired, since, on the present
record, the compelling governmental interests served by the
regulations outweigh employees' privacy concerns. Pp. 489 U. S.
618 -633.

															(a) The Government's interest in regulating the conduct of
railroad employees engaged in safety-sensitive tasks in order to
ensure the safety of the traveling public and of the employees
themselves plainly justifies prohibiting such employees from using
alcohol or drugs while on duty or on call for duty and the exercise
of supervision to assure that the restrictions are in fact
observed. That interest presents "special needs" beyond normal law
enforcement that may justify departures from the usual warrant and
probable cause requirements. Pp. 489 U. S.
618 -621. Page 489 U. S. 604 (b) Imposing a warrant requirement in the present context is not
essential to render the intrusions at issue reasonable. Such a
requirement would do little to further the purposes of a warrant,
since both the circumstances justifying toxicological testing and
the permissible limits of such intrusions are narrowly and
specifically defined by the regulations, and doubtless are well
known to covered employees, and since there are virtually no facts
for a neutral magistrate to evaluate, in light of the standardized
nature of the tests and the minimal discretion vested in those
charged with administering the program. Moreover, imposing a
warrant requirement would significantly hinder, and in many cases
frustrate, the objectives of the testing program, since the delay
necessary to procure a warrant could result in the destruction of
valuable evidence, in that alcohol and drugs are eliminated from
the bloodstream at a constant rate, and since the railroad
supervisors who set the testing process in motion have little
familiarity with the intricacies of Fourth Amendment jurisprudence.
Pp. 489 U. S.
621 -624.

															(c) Imposing an individualized suspicion requirement in the
present context is not essential to render the intrusions at issue
reasonable. The testing procedures contemplated by the regulations
pose only limited threats to covered employees' justifiable privacy
expectations, particularly since they participate in an industry
subject to pervasive safety regulation by the Federal and State
Governments. Moreover, because employees ordinarily consent to
significant employer-imposed restrictions on their freedom of
movement, any additional interference with that freedom that occurs
in the time it takes to procure a sample from a railroad employee
is minimal. Furthermore, Schmerber v. California, 384 U. S. 757 ,
established that governmentally imposed blood tests do not
constitute an unduly extensive imposition on an individual's
privacy and bodily integrity, and the breath tests authorized by
Subpart D are even less intrusive than blood tests. And, although
urine tests require employees to perform an excretory function
traditionally shielded by great privacy, the regulations reduce the
intrusiveness of the collection process by requiring that samples
be furnished in a medical environment, without direct observation.
In contrast, the governmental interest in testing without a showing
of individualized suspicion is compelling. A substance-impaired
railroad employee in a safety-sensitive job can cause great human
loss before any signs of the impairment become noticeable, and the
regulations supply an effective means of deterring such employees
from using drugs or alcohol by putting them on notice that they are
likely to be discovered if an accident occurs. An individualized
suspicion requirement would also impede railroads' ability to
obtain valuable information about the causes of accidents or
incidents and how to protect the public, since obtaining evidence
giving rise to the suspicion Page 489 U. S. 605 that a particular employee is impaired is impracticable in the
chaotic aftermath of an accident, when it is difficult to determine
which employees contributed to the occurrence and objective indicia
of impairment are absent. The Court of Appeals' conclusion that the
regulations are unreasonable because the tests in question cannot
measure current impairment is flawed. Even if urine test results
disclosed nothing more specific than the recent use of controlled
substances, this information would provide the basis for a further
investigation, and might allow the FRA to reach an informed
judgment as to how the particular accident occurred. More
importantly, the court overlooked the FRA's policy of placing
principal reliance on blood tests, which unquestionably can
identify recent drug use, and failed to recognize that the
regulations are designed not only to discern impairment, but to
deter it. Pp. 489 U. S.
624 -632.

															839 F.2d 575, reversed.

															KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, BLACKMUN, O'CONNOR, and SCALIA, JJ.,
joined, and in all but portions of Part III of which STEVENS, J.,
joined. STEVENS, J., filed an opinion concurring in part and
concurring in the judgment, post, p. 489 U. S. 634 .
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined, post, p. 489 U. S.
635 Page 489 U. S. 606 JUSTICE KENNEDY delivered the opinion of the Court.

															The Federal Railroad Safety Act of 1970 authorizes the Secretary
of Transportation to "prescribe, as necessary, appropriate rules,
regulations, orders, and standards for all areas of railroad
safety." 84 Stat. 971, 45 U.S.C. § 431(a). Finding that alcohol and
drug abuse by railroad employees poses a serious threat to safety,
the Federal Railroad Administration (FRA) has promulgated
regulations that mandate blood and urine tests of employees who are
involved in certain train accidents. The FRA also has adopted
regulations that do not require, but do authorize, railroads to
administer breath and urine tests to employees who violate certain
safety rules. The question presented by this case is whether these
regulations violate the Fourth Amendment. I A The problem of alcohol use on American railroads is as old as
the industry itself, and efforts to deter it by carrier rules began
at least a century ago. For many years, railroads have prohibited
operating employees from possessing alcohol or being intoxicated
while on duty, and from consuming alcoholic beverages while subject
to being called for duty. More recently, these proscriptions have
been expanded to forbid possession or use of certain drugs. These
restrictions are Page 489 U. S. 607 embodied in "Rule G," an industry-wide operating rule
promulgated by the Association of American Railroads, and are
enforced, in various formulations, by virtually every railroad in
the country. The customary sanction for Rule G violations is
dismissal.

															In July, 1983, the FRA expressed concern that these industry
efforts were not adequate to curb alcohol and drug abuse by
railroad employees. The FRA pointed to evidence indicating that
on-the-job intoxication was a significant problem in the railroad
industry. [ Footnote 1 ] The FRA
also found, after a review of accident investigation reports, that,
from 1972 to 1983,

															"the nation's railroads experienced at least 21 significant
train accidents involving alcohol or drug use as a probable cause
or contributing factor,"

															and that these accidents

															"resulted in 25 fatalities, 61 non-fatal injuries, and property
damage estimated at $19 million (approximately $27 million in 1982
dollars)."

															48 Fed.Reg. 30726 (1983). The FRA further identified

															"an additional 17 fatalities to operating employees working on
or around rail rolling stock that involved alcohol or drugs as a
contributing factor." Ibid. In light of these problems, the FRA solicited
comments from interested parties on a various regulatory approaches
to the problems of alcohol and drug abuse throughout the Nation's
railroad system.

															Comments submitted in response to this request indicated that
railroads were able to detect a relatively small number of Rule G
violations, owing, primarily, to their practice of Page 489 U. S. 608 relying on observation by supervisors and coworkers to enforce
the rule. 49 Fed.Reg. 24266-24267 (1984). At the same time,
"industry participants . . . confirmed that alcohol and drug use
[did] occur on the railroads with unacceptable frequency," and
available information from all sources

															"suggest[ed] that the problem includ[ed] 'pockets' of drinking
and drug use involving multiple crew members (before and during
work), sporadic cases of individuals reporting to work impaired,
and repeated drinking and drug use by individual employees who are
chemically or psychologically dependent on those substances." Id. at 24253-24254. "Even without the benefit of
regular post-accident testing," the FRA

															"identified 34 fatalities, 66 injuries and over $28 million in
property damage (in 1983 dollars) that resulted from the errors of
alcohol and drug-impaired employees in 45 train accidents and train
incidents during the period 1975 through 1983." Id. at 24254. Some of these accidents resulted in the
release of hazardous materials and, in one case, the ensuing
pollution required the evacuation of an entire Louisiana community. Id. at 24254, 24259. In view of the obvious safety hazards
of drug and alcohol use by railroad employees, the FRA announced,
in June, 1984, its intention to promulgate federal regulations on
the subject. B After reviewing further comments from representatives of the
railroad industry, labor groups, and the general public, the FRA,
in 1985, promulgated regulations addressing the problem of alcohol
and drugs on the railroads. The final regulations apply to
employees assigned to perform service subject to the Hours of
Service Act, ch. 2939, 34 Stat. 1415, as amended, 45
U.S.C. § 61 et seq. The regulations prohibit covered
employees from using or possessing alcohol or any controlled
substance. 49 CFR § 219.101(a)(1) (1987). The regulations further
prohibit those employees from reporting for covered service while
under the influence of, or Page 489 U. S. 609 impaired by, alcohol, while having a blood alcohol concentration
of .04 or more, or while under the influence of, or impaired by,
any controlled substance. § 219.101(a)(2). The regulations do not
restrict, however, a railroad's authority to impose an absolute
prohibition on the presence of alcohol or any drug in the body
fluids of persons in its employ, § 219.101(c), and, accordingly,
they do not "replace Rule G or render it unenforceable." 50
Fed.Reg. 31538 (1985).

															To the extent pertinent here, two subparts of the regulations
relate to testing. Subpart C, which is entitled "Post-Accident
Toxicological Testing," is mandatory. It provides that
railroads

															"shall take all practicable steps to assure that all covered
employees of the railroad directly involved . . . provide blood and
urine samples for toxicological testing by FRA,"

															§ 219.203(a), upon the occurrence of certain specified events.
Toxicological testing is required following a "major train
accident," which is defined as any train accident that involves (i)
a fatality, (ii) the release of hazardous material accompanied by
an evacuation or a reportable injury, or (iii) damage to railroad
property of $500,000 or more. § 219.201 (a)(1). The railroad has
the further duty of collecting blood and urine samples for testing
after an "impact accident," which is defined as a collision that
results in a reportable injury, or in damage to railroad property
of $50,000 or more. § 219.201(a)(2). Finally, the railroad is also
obligated to test after "[a]ny train incident that involves a
fatality to any on-duty railroad employee." § 219.201(a)(3).

															After occurrence of an event which activates its duty to test,
the railroad must transport all crew members and other covered
employees directly involved in the accident or incident to an
independent medical facility, where both blood and urine samples
must be obtained from each employee. [ Footnote 2 ] After Page 489 U. S. 610 the samples have been collected, the railroad is required to
ship them by prepaid air freight to the FRA laboratory for
analysis. § 219.205(d). There, the samples are analyzed using
"state-of-the-art equipment and techniques" to detect and measure
alcohol and drugs. [ Footnote 3 ]
The FRA proposes to place primary reliance on analysis of blood
samples, as blood is "the only available body fluid . . . that can
provide a clear indication not only of the presence of alcohol and
drugs but also their current impairment effects." 49 Fed.Reg. 24291
(1984). Urine samples are also necessary, however, because drug
traces remain in the urine longer than in blood, and in some cases
it will not be possible to transport employees to a medical
facility before the time it takes for certain drugs to be
eliminated from the bloodstream. In those instances, a

															"positive urine test, taken with specific information on the
pattern of elimination for the particular drug and other
information on the behavior of the employee and the circumstances
of the accident, may be crucial to the determination of"

															the cause of an accident. Ibid. The regulations require that the FRA notify employees of the
results of the tests and afford them an opportunity to respond in
writing before preparation of any final investigative report. See § 219.211(a)(2). Employees who refuse to provide
required blood or urine samples may not perform covered Page 489 U. S. 611 service for nine months, but they are entitled to a hearing
concerning their refusal to take the test. § 219.213.

															Subpart D of the regulations, which is entitled "Authorization
to Test for Cause," is permissive. It authorizes railroads to
require covered employees to submit to breath or urine tests in
certain circumstances not addressed by Subpart C. Breath or urine
tests, or both, may be ordered (1) after a reportable accident or
incident, where a supervisor has a "reasonable suspicion" that an
employee's acts or omissions contributed to the occurrence or
severity of the accident or incident, § 219.301(b)(2); or (2) in
the event of certain specific rule violations, including
noncompliance with a signal and excessive speeding, §
219.301(b)(3). A railroad also may require breath tests where a
supervisor has a "reasonable suspicion" that an employee is under
the influence of alcohol, based upon specific, personal
observations concerning the appearance, behavior, speech, or body
odors of the employee. § 219.301(b)(1). Where impairment is
suspected, a railroad, in addition, may require urine tests, but
only if two supervisors make the appropriate determination, §
219.301(c)(2)(i), and, where the supervisors suspect impairment due
to a substance other than alcohol, at least one of those
supervisors must have received specialized training in detecting
the signs of drug intoxication, § 219.301(c)(2)(ii).

															Subpart D further provides that, whenever the results of either
breath or urine tests are intended for use in a disciplinary
proceeding, the employee must be given the opportunity to provide a
blood sample for analysis at an independent medical facility. §
219.303(c). If an employee declines to give a blood sample, the
railroad may presume impairment, absent persuasive evidence to the
contrary, from a positive showing of controlled substance residues
in the urine. The railroad must, however, provide detailed notice
of this presumption to its employees, and advise them of their
right to provide a contemporaneous blood sample. As in the case of
samples procured under Subpart C, the regulations set forth Page 489 U. S. 612 procedures for the collection of samples, and require that
samples "be analyzed by a method that is reliable within known
tolerances." § 219.307(b). C Respondents, the Railway Labor Executives' Association and
various of its member labor organizations, brought the instant suit
in the United States District Court for the Northern District of
California, seeking to enjoin the FRA's regulations on various
statutory and constitutional grounds. In a ruling from the bench,
the District Court granted summary judgment in petitioners' favor.
The court concluded that railroad employees "have a valid interest
in the integrity of their own bodies" that deserved protection
under the Fourth Amendment. App. to Pet. for Cert. 53a. The court
held, however, that this interest was outweighed by the
competing

															"public and governmental interest in the . . . promotion of . .
. railway safety, safety for employees, and safety for the general
public that is involved with the transportation." Id. at 52a. The District Court found respondents' other
constitutional and statutory arguments meritless.

															A divided panel of the Court of Appeals for the Ninth Circuit
reversed. Railway Labor ExecUtives' Assn. v. Burnley, 839
F.2d 575 (1988). The court held, first, that tests mandated by a
railroad in reliance on the authority conferred by Subpart D
involve sufficient Government action to implicate the Fourth
Amendment, and that the breath, blood, and urine tests contemplated
by Page 489 U. S. 613 the FRA regulations are Fourth Amendment searches. The court
also

															"agre[ed] that the exigencies of testing for the presence of
alcohol and drugs in blood, urine or breath require prompt action
which precludes obtaining a warrant." Id. at 583. The court further held

															"that accommodation of railroad employees' privacy interest with
the significant safety concerns of the government does not require
adherence to a probable cause requirement,"

															and, accordingly, that the legality of the searches contemplated
by the FRA regulations depends on their reasonableness under all
the circumstances. Id. at 587.

															The court concluded, however, that particularized suspicion is
essential to a finding that toxicological testing of railroad
employees is reasonable. Ibid. A requirement of
individualized suspicion, the court stated, would impose "no
insuperable burden on the government," id. at 588, and
would ensure that the tests are confined to the detection of
current impairment, rather than to the discovery of

															"the metabolites of various drugs, which are not evidence of
current intoxication and may remain in the body for days or weeks
after the ingestion of the drug." Id. at 588-589. Except for the provisions authorizing
breath and urine tests on a "reasonable suspicion" of drug or
alcohol impairment, 49 CFR §§ 219.301(b)(1) and (c)(2) (1987), the
FRA regulations did not require a showing of individualized
suspicion, and, accordingly, the court invalidated them.

															Judge Alarcon dissented. He criticized the majority for
"fail[ing] to engage in [a] balancing of interests" and for
focusing instead "solely on the degree of impairment of the
workers' privacy interests." 839 F.2d at 597. The dissent would
have held "that the government's compelling need to assure railroad
safety by controlling drug use among railway personnel outweighs
the need to protect privacy interests." Id. at 596.

															We granted the federal parties' petition for a writ of
certiorari, 486 U.S. 1042 (1988), to consider whether the
regulations invalidated by the Court of Appeals violate the Fourth
Amendment. We now reverse. II The Fourth Amendment provides that

															"[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated. . . ."

															The Amendment guarantees the privacy, dignity, and security of
persons against certain arbitrary Page 489 U. S. 614 and invasive acts by officers of the Government or those acting
at their direction. Camara v. Municipal Court of San
Francisco, 387 U. S. 523 , 387 U. S. 528 (1967). See also Delaware v. Prouse, 440 U.
S. 648 , 440 U. S.
653 -654 (1979); United States v.
Martinez-Fuerte, 428 U. S. 543 , 428 U. S. 554 (1976). Before we consider whether the tests in question are
reasonable under the Fourth Amendment, we must inquire whether the
tests are attributable to the Government or its agents, and whether
they amount to searches or seizures. We turn to those matters. A Although the Fourth Amendment does not apply to a search or
seizure, even an arbitrary one, effected by a private party on his
own initiative, the Amendment protects against such intrusions if
the private party acted as an instrument or agent of the
Government. See United States v. Jacobsen, 466 U.
S. 109 , 466 U. S.
113 -114 (1984); Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 487 (1971). See also Burdeau v. McDowell, 256 U.
S. 465 , 256 U. S. 475 (1921). A railroad that complies with the provisions of Subpart C
of the regulations does so by compulsion of sovereign authority,
and the lawfulness of its acts is controlled by the Fourth
Amendment. Petitioners contend, however, that the Fourth Amendment
is not implicated by Subpart D of the regulations, as nothing in
Subpart D compels any testing by private railroads.

															We are unwilling to conclude, in the context of this facial
challenge, that breath and urine tests required by private
railroads in reliance on Subpart D will not implicate the Fourth
Amendment. Whether a private party should be deemed an agent or
instrument of the Government for Fourth Amendment purposes
necessarily turns on the degree of the Government's participation
in the private party's activities, cf. Lustig v. United
States, 338 U. S. 74 , 338 U. S. 78 -79
(1949) (plurality opinion); Byars v. United States, 273 U. S. 28 , 273 U. S. 32 -33
(1927), a question that can only be resolved "in light of all the
circumstances," Coolidge v. New Hampshire, supra, Page 489 U. S. 615 at 403 U. S. 487 .
The fact that the Government has not compelled a private party to
perform a search does not, by itself, establish that the search is
a private one. Here, specific features of the regulations combine
to convince us that the Government did more than adopt a passive
position toward the underlying private conduct.

															The regulations, including those in Subpart D, preempt state
laws, rules, or regulations covering the same subject matter, 49
CFR § 219.13(a) (1987), and are intended to supersede "any
provision of a collective bargaining agreement, or arbitration
award construing such an agreement," 50 Fed.Reg. 31552 (1985). They
also confer upon the FRA the right to receive certain biological
samples and test results procured by railroads pursuant to Subpart
D. § 219.11(c). In addition, a railroad may not divest itself of,
or otherwise compromise by contract, the authority conferred by
Subpart D. As the FRA explained, such

															"authority . . . is conferred for the purpose of promoting the
public safety, and a railroad may not shackle itself in a way
inconsistent with its duty to promote the public safety."

															50 Fed.Reg. 31552 (1985). Nor is a covered employee free to
decline his employer's request to submit to breath or urine tests
under the conditions set forth in Subpart D. See §
219.11(b). An employee who refuses to submit to the tests must be
withdrawn from covered service. See 4 App. to Field Manual
18.

															In light of these provisions, we are unwilling to accept
petitioners' submission that tests conducted by private railroads
in reliance on Subpart D will be primarily the result of private
initiative. The Government has removed all legal barriers to the
testing authorized by Subpart D, and indeed has made plain not only
its strong preference for testing but also its desire to share the
fruits of such intrusions. In addition, it has mandated that the
railroads not bargain away the authority to perform tests granted
by Subpart D. These are clear indices of the Government's
encouragement, endorsement, Page 489 U. S. 616 and participation, and suffice to implicate the Fourth
Amendment. B Our precedents teach that where, as here, the Government seeks
to obtain physical evidence from a person, the Fourth Amendment may
be relevant at several levels. See, e.g., United States v.
Dionisio, 410 U. S. 1 , 410 U. S. 8 (1973). The initial detention necessary to procure the evidence may
be a seizure of the person, Cupp v. Murphy, 412 U.
S. 291 , 412 U. S.
294 -295 (1973); Davis v. Mississippi, 394 U. S. 721 , 394 U. S.
726 -727 (1969), if the detention amounts to a meaningful
interference with his freedom of movement. INS v. Delgado, 466 U. S. 210 , 466 U. S. 215 (1984); United States v. Jacobsen, supra, at 466 U. S. 113 ,
n. 5. Obtaining and examining the evidence may also be a search, see Cupp v. Murphy, supra, at 412 U. S. 295 ; United States v. Dionisio, supra, at 410 U. S. 8 , 410 U. S. 13 -14,
if doing so infringes an expectation of privacy that society is
prepared to recognize as reasonable, see, e.g., California v.
Greenwood, 486 U. S. 35 , 486 U. S. 43 (1988); United States v. Jacobsen, supra, at 466 U. S.
113 .

															We have long recognized that a "compelled intrusio[n] into the
body for blood to be analyzed for alcohol content" must be deemed a
Fourth Amendment search. See Schmerber v. California, 384 U. S. 757 , 384 U. S.
767 -768 (1966). See also Winston v. Lee, 470 U. S. 753 , 470 U. S. 760 (1985). In light of our society's concern for the security of one's
person, see, e.g., Terry v. Ohio, 392 U. S.
1 , 392 U. S. 9 (1968), it is obvious that this physical intrusion, penetrating
beneath the skin, infringes an expectation of privacy that society
is prepared to recognize as reasonable. The ensuing chemical
analysis of the sample to obtain physiological data is a further
invasion of the tested employee's privacy interests. Cf.
Arizona v. Hicks, 480 U. S. 321 , 480 U. S.
324 -325 (1987). Much the same is true of the
breath-testing procedures required under Subpart D of the
regulations. Subjecting a person to a breathalyzer test, which
generally requires the production of alveolar or "deep lung" breath
for chemical analysis, see, e.g., 467 U.
S. Page 489 U. S. 617 Trombetta, 467 U. S. 479 , 467 U. S. 481 (1984), implicates similar concerns about bodily integrity and,
like the blood-alcohol test we considered in Schmerber, should also be deemed a search, see 1 W. LaFave, Search
and Seizure § 2.6(a), p. 463 (1987). See also Burnett v.
Anchorage, 806 F.2d 1447, 1449 (CA9 1986); Shoemaker v.
Handel, 795 F.2d 1136, 1141 (CA3), cert. denied, 479
U.S. 986 (1986).

															Unlike the blood testing procedure at issue in Schmerber, the procedures prescribed by the FRA
regulations for collecting and testing urine samples do not entail
a surgical intrusion into the body. It is not disputed, however,
that chemical analysis of urine, like that of blood, can reveal a
host of private medical facts about an employee, including whether
he or she is epileptic, pregnant, or diabetic. Nor can it be
disputed that the process of collecting the sample to be tested,
which may in some cases involve visual or aural monitoring of the
act of urination, itself implicates privacy interests. As the Court
of Appeals for the Fifth Circuit has stated:

															"There are few activities in our society more personal or
private than the passing of urine. Most people describe it by
euphemisms, if they talk about it at all. It is a function
traditionally performed without public observation; indeed, its
performance in public is generally prohibited by law, as well as
social custom." National Treasury Employees UnIon v. Von Raab, 816 F.2d
170, 175 (1987). Because it is clear that the collection and
testing of urine intrudes upon expectations of privacy that society
has long recognized as reasonable, the Federal Courts of Appeals
have concluded unanimously, and we agree, that these intrusions
must be deemed searches under the Fourth Amendment. [ Footnote 4 ] Page 489 U. S. 618 In view of our conclusion that the collection and subsequent
analysis of the requisite biological samples must be deemed Fourth
Amendment searches, we need not characterize the employer's
antecedent interference with the employee's freedom of movement as
an independent Fourth Amendment seizure. As our precedents
indicate, not every governmental interference with an individual's
freedom of movement raises such constitutional concerns that there
is a seizure of the person. See United States v. Dionisio, 410 U.S. at 410 U. S. 9 -11
(grand jury subpoena, though enforceable by contempt, does not
effect a seizure of the person); United States v. Mara, 410 U. S. 19 , 410 U. S. 21 (1973) (same). For present purposes, it suffices to note that any
limitation on an employee's freedom of movement that is necessary
to obtain the blood, urine, or breath samples contemplated by the
regulations must be considered in assessing the intrusiveness of
the searches effected by the Government's testing program. Cf.
United States v. Place, 462 U. S. 696 , 462 U. S.
707 -709 (1983). III A To hold that the Fourth Amendment is applicable to the drug and
alcohol testing prescribed by the FRA regulations Page 489 U. S. 619 is only to begin the inquiry into the standards governing such
intrusions. O'Connor v. Ortega, 480 U.
S. 709 , 480 U. S. 719 (1987) (plurality opinion); New Jersey v. T.L.O., 469 U. S. 325 , 469 U. S. 337 (1985). For the Fourth Amendment does not proscribe all searches
and seizures, but only those that are unreasonable. United
States v. Sharpe, 470 U. S. 675 , 470 U. S. 682 (1985); Schmerber v. California, 384 U.S. at 384 U. S. 768 .
What is reasonable, of course, "depends on all of the circumstances
surrounding the search or seizure and the nature of the search or
seizure itself." United States v. Montoya de Hernandez, 473 U. S. 531 , 473 U. S. 537 (1985). Thus, the permissibility of a particular practice

															"is judged by balancing its intrusion on the individual's Fourth
Amendment interests against its promotion of legitimate
governmental interests." Delaware v. Prouse, 440 U.S. at 440 U. S. 654 ; United States v. Martinez-Fuerte, 428 U.
S. 543 (1976).

															In most criminal cases, we strike this balance in favor of the
procedures described by the Warrant Clause of the Fourth Amendment. See United States v. Place, supra, at 462 U. S. 701 ,
and n. 2; United States v. United States District Court, 407 U. S. 297 , 407 U. S. 315 (1972). Except in certain well-defined circumstances, a search or
seizure in such a case is not reasonable unless it is accomplished
pursuant to a judicial warrant issued upon probable cause. See,
e.g., Payton v. New York, 445 U. S. 573 , 445 U. S. 586 (1980); Mincey v. Arizona, 437 U.
S. 385 , 437 U. S. 390 (1978). We have recognized exceptions to this rule, however,

															"when 'special needs, beyond the normal need for law
enforcement, make the warrant and probable cause requirement
impracticable.'" Griffin v. Wisconsin, 483 U. S. 868 , 483 U. S. 873 (1987), quoting New Jersey v. T.L.O., 469 U.S. at 469 U. S. 351 (BLACKMUN, J., concurring in judgment). When faced with such
special needs, we have not hesitated to balance the governmental
and privacy interests to assess the practicality of the warrant and
probable cause requirements in the particular context. See,
e.g., Griffin v. Wisconsin, supra, at 483 U. S. 873 (search of probationer's home); New York
v. Page 489 U. S. 620 Burger, 482 U. S. 691 , 482 U. S.
699 -703 (1987) (search of premises of certain highly
regulated businesses); O'Connor v. Ortega, 480 U.S. at 480 U. S.
721 -725 (work-related searches of employees' desks and
offices); New Jersey v. T.L.O., supra, at 469 U. S.
337 -342 (search of student's property by school
officials); Bell v. Wolfish, 441 U.
S. 520 , 441 U. S.
558 -560 (1979) (body cavity searches of prison
inmates).

															The Government's interest in regulating the conduct of railroad
employees to ensure safety, like its supervision of probationers or
regulated industries, or its operation of a government office,
school, or prison,

															"likewise presents 'special needs' beyond normal law enforcement
that may justify departures from the usual warrant and probable
cause requirements." Griffin v. Wisconsin, 483 U.S. at 483 U. S.
873 -874. The hours of service employees covered by the
FRA regulations include persons engaged in handling orders
concerning train movements, operating crews, and those engaged in
the maintenance and repair of signal systems. 50 Fed.Reg. 31511
(1985). It is undisputed that these and other covered employees are
engaged in safety-sensitive tasks. The FRA so found, and
respondents conceded the point at oral argument. Tr. of Oral Arg.
46-47. As we have recognized, the whole premise of the Hours of
Service Act is that

															"[t]he length of hours of service has direct relation to the
efficiency of the human agencies upon which protection [of] life
and property necessarily depends." Baltimore & Ohio R. Co. v. ICC, 221 U.
S. 612 , 221 U. S. 619 (1911). See also Atchison, T. & S. F. R. Co. v. United
States, 244 U. S. 336 , 244 U. S. 342 (1917) ("[I]t must be remembered that the purpose of the act was to
prevent the dangers which must necessarily arise to the employee
and to the public from continuing men in a dangerous and hazardous
business for periods so long as to render them unfit to give that
service which is essential to the protection of themselves and
those entrusted to their care").

															The FRA has prescribed toxicological tests, not to assist in the
prosecution of employees, but rather "to prevent accidents Page 489 U. S. 621 and casualties in railroad operations that result from
impairment of employees by alcohol or drugs." 49 CFR § 219.1(a)
(1987). [ Footnote 5 ] This
governmental interest in ensuring the safety of the traveling
public and of the employees themselves plainly justifies
prohibiting covered employees from using alcohol or drugs on duty,
or while subject to being called for duty. This interest also
"require[s] and justif[ies] the exercise of supervision to assure
that the restrictions are in fact observed." Griffin v.
Wisconsin, 483 U.S. at 483 U. S. 875 .
The question that remains, then, is whether the Government's need
to monitor compliance with these restrictions justifies the privacy
intrusions at issue absent a warrant or individualized
suspicion. B An essential purpose of a warrant requirement is to protect
privacy interests by assuring citizens subject to a search Page 489 U. S. 622 or seizure that such intrusions are not the random or arbitrary
acts of government agents. A warrant assures the citizen that the
intrusion is authorized by law, and that it is narrowly limited in
its objectives and scope. See, e.g., New York v. Burger, 482 U.S. at 482 U. S. 703 ; United States v. Chadwick, 433 U. S.
1 , 433 U. S. 9 (1977); Camara v. Municipal Court of San Francisco, 387
U.S. at 387 U. S. 532 .
A warrant also provides the detached scrutiny of a neutral
magistrate, and thus ensures an objective determination whether an
intrusion is justified in any given case. See United States v.
Chadwick, supra, at 433 U. S. 9 . In
the present context, however, a warrant would do little to further
these aims. Both the circumstances justifying toxicological testing
and the permissible limits of such intrusions are defined narrowly
and specifically in the regulations that authorize them, and
doubtless are well known to covered employees. Cf. United
States v. Biswell, 406 U. S. 311 , 406 U. S. 316 (1972). Indeed, in light of the standardized nature of the tests
and the minimal discretion vested in those charged with
administering the program, there are virtually no facts for a
neutral magistrate to evaluate. Cf. Colorado v. Bertine, 479 U. S. 367 , 479 U. S. 376 (1987) (BLACKMUN, J., concurring). [ Footnote 6 ] Page 489 U. S. 623 We have recognized, moreover, that the Government's interest in
dispensing with the warrant requirement is at its strongest when,
as here, "the burden of obtaining a warrant is likely to frustrate
the governmental purpose behind the search." Camara v.
Municipal Court of San Francisco, supra, at 387 U. S. 533 . See also New Jersey v. T.L.O., 469 U.S. at 469 U. S. 340 ; Donovan v. Dewey, 452 U. S. 594 , 452 U. S. 603 (1981). As the FRA recognized, alcohol and other drugs are
eliminated from the bloodstream at a constant rate, see 49
Fed.Reg. 24291 (1984), and blood and breath samples taken to
measure whether these substances were in the bloodstream when a
triggering event occurred must be obtained as soon as possible. See Schmerber v. California, 384 U.S. at 384 U. S.
770 -771. Although the metabolites of some drugs remain
in the urine for longer periods of time, and may enable the FRA to
estimate whether the employee was impaired by those drugs at the
time of a covered accident, incident, or rule violation, 49
Fed.Reg. 24291 (1984), the delay necessary to procure a warrant
nevertheless may result in the destruction of valuable
evidence.

															The Government's need to rely on private railroads to set the
testing process in motion also indicates that insistence on a
warrant requirement would impede the achievement of the
Government's objective. Railroad supervisors, like school
officials, see New Jersey v. T.L.O., supra, at 469 U. S.
339 -340, and hospital administrators, see O'Connor
v. Ortega, 480 U.S. at 480 U. S. 722 ,
are not in the business of investigating violations of the criminal
laws or enforcing administrative codes, and otherwise have little
occasion to become familiar with the intricacies of this Court's
Fourth Amendment jurisprudence.

															"Imposing unwieldy warrant procedures . . . upon
supervisors, Page 489 U. S. 624 who would otherwise have no reason to be familiar with such
procedures, is simply unreasonable." Ibid. In sum, imposing a warrant requirement in the present context
would add little to the assurances of certainty and regularity
already afforded by the regulations, while significantly hindering,
and in many cases frustrating, the objectives of the Government's
testing program. We do not believe that a warrant is essential to
render the intrusions here at issue reasonable under the Fourth
Amendment. C Our cases indicate that even a search that may be performed
without a warrant must be based, as a general matter, on probable
cause to believe that the person to be searched has violated the
law. See New Jersey v. T.L.O., supra, at 469 U. S. 340 .
When the balance of interests precludes insistence on a showing of
probable cause, we have usually required "some quantum of
individualized suspicion" before concluding that a search is
reasonable. See, e.g., United States v. Martinez-Fuerte, 428 U.S. at 428 U. S. 560 .
We made it clear, however, that a showing of individualized
suspicion is not a constitutional floor below which a search must
be presumed unreasonable. Id. at 428 U. S. 561 .
In limited circumstances, where the privacy interests implicated by
the search are minimal and where an important governmental interest
furthered by the intrusion would be placed in jeopardy by a
requirement of individualized suspicion, a search may be reasonable
despite the absence of such suspicion. We believe this is true of
the intrusions in question here.

															By and large, intrusions on privacy under the FRA regulations
are limited. To the extent transportation and like restrictions are
necessary to procure the requisite blood, breath, and urine samples
for testing, this interference alone is minimal, given the
employment context in which it takes place. Ordinarily, an employee
consents to significant restrictions in his freedom of movement
where necessary for Page 489 U. S. 625 his employment, and few are free to come and go as they please
during working hours. See, e.g., INS v. Delgado, 466 U.S.
at 466 U. S. 218 .
Any additional interference with a railroad employee's freedom of
movement that occurs in the time it takes to procure a blood,
breath, or urine sample for testing cannot, by itself, be said to
infringe significant privacy interests.

															Our decision in Schmerber v. California, 384 U.
S. 757 (1966), indicates that the same is true of the
blood tests required by the FRA regulations. In that case, we held
that a State could direct that a blood sample be withdrawn from a
motorist suspected of driving while intoxicated, despite his
refusal to consent to the intrusion. We noted that the test was
performed in a reasonable manner, as the motorist's "blood was
taken by a physician in a hospital environment according to
accepted medical practices." Id. at 384 U. S. 771 .
We said also that the intrusion occasioned by a blood test is not
significant, since such

															"tests are a commonplace in these days of periodic physical
examinations, and experience with them teaches that the quantity of
blood extracted is minimal, and that, for most people, the
procedure involves virtually no risk, trauma, or pain." Ibid. Schmerber thus confirmed

															"society's judgment that blood tests do not constitute an unduly
extensive imposition on an individual's privacy and bodily
integrity." Winston v. Lee, 470 U.S. at 470 U. S. 762 . See also South Dakota v. Neville, 459 U.
S. 553 , 563 (1983) ("The simple blood-alcohol test is .
. . safe, painless, and commonplace"); Breithaupt v.
Abram, 352 U. S. 432 , 352 U. S. 436 (1957) ("The blood test procedure has become routine in our
everyday life").

															The breath tests authorized by Subpart D of the regulations are
even less intrusive than the blood tests prescribed by Subpart C.
Unlike blood tests, breath tests do not require piercing the skin,
and may be conducted safely outside a hospital environment and with
a minimum of inconvenience or embarrassment. Further, breath tests
reveal the level of alcohol in the employee's bloodstream, and
nothing more. Page 489 U. S. 626 Like the blood testing procedures mandated by Subpart C, which
can be used only to ascertain the presence of alcohol or controlled
substances in the bloodstream, breath tests reveal no other facts
in which the employee has a substantial privacy interest. Cf.
United States v. Jacobsen, 466 U.S. at 466 U. S. 123 ; United States v. Place, 462 U.S. at 462 U. S. 707 .
In all the circumstances, we cannot conclude that the
administration of a breath test implicates significant privacy
concerns.

															A more difficult question is presented by urine tests. Like
breath tests, urine tests are not invasive of the body and, under
the regulations, may not be used as an occasion for inquiring into
private facts unrelated to alcohol or drug use. [ Footnote 7 ] We recognize, however, that the
procedures for collecting the necessary samples, which require
employees to perform an excretory function traditionally shielded
by great privacy, raise concerns not implicated by blood or breath
tests. While we would not characterize these additional privacy
concerns as minimal in most contexts, we note that the regulations
endeavor to reduce the intrusiveness of the collection process. The
regulations do not require that samples be furnished under the
direct observation of a monitor, despite the desirability of such a
procedure to ensure the integrity of the sample. See 50
Fed.Reg. 31555 (1985). See also Field Manual B-15, D-l.
The sample is also collected in a medical environment, by personnel
unrelated to the railroad Page 489 U. S. 627 employer, and is thus not unlike similar procedures encountered
often in the context of a regular physical examination.

															More importantly, the expectations of privacy of covered
employees are diminished by reason of their participation in an
industry that is regulated pervasively to ensure safety, a goal
dependent, in substantial part, on the health and fitness of
covered employees. This relation between safety and employee
fitness was recognized by Congress when it enacted the Hours of
Service Act in 1907, Baltimore & Ohio R. Co. v. ICC, 221 U.S. at 221 U. S. 619 ,
and also when it authorized the Secretary to

															"test . . . railroad facilities, equipment, rolling stock,
operations, or persons, as he deems necessary to carry out
the provisions"

															of the Federal Railroad Safety Act of 1970. 45 U.S.C. § 437(a)
(emphasis added). It has also been recognized by state governments,
[ Footnote 8 ] and has long been
reflected in industry practice, as evidenced by the industry's
promulgation and enforcement of Rule G. Indeed, the FRA found, and
the Court of Appeals acknowledged, see 839 F.2d at 585,
that "most railroads require periodic physical examinations for
train and engine employees and certain other employees." 49
Fed.Reg. 24278 (1984). See also Railway Labor Executives Assn.
v. Norfolk & Western R. Co., 833 F.2d 700, 705-706 (CA7
1987); Brotherhood of Maintenance of Page 489 U. S. 628 Way Employees, Lodge 16 v. Burlington Northern R. Co., 802 F.2d 1016, 1024 (CA8 1986).

															We do not suggest, of course, that the interest in bodily
security enjoyed by those employed in a regulated industry must
always be considered minimal. Here, however, the covered employees
have long been a principal focus of regulatory concern. As the
dissenting judge below noted:

															"The reason is obvious. An idle locomotive, sitting in the
roundhouse, is harmless. It becomes lethal when operated
negligently by persons who are under the influence of alcohol or
drugs."

															839 F.2d at 593. Though some of the privacy interests implicated
by the toxicological testing at issue reasonably might be viewed as
significant in other contexts, logic and history show that a
diminished expectation of privacy attaches to information relating
to the physical condition of covered employees and to this
reasonable means of procuring such information. We conclude,
therefore, that the testing procedures contemplated by Subparts C
and D pose only limited threats to the justifiable expectations of
privacy of covered employees.

															By contrast, the Government interest in testing without a
showing of individualized suspicion is compelling. Employees
subject to the tests discharge duties fraught with such risks of
injury to others that even a momentary lapse of attention can have
disastrous consequences. Much like persons who have routine access
to dangerous nuclear power facilities, see, e.g., Rushton v.
Nebraska Public Power Dist., 844 F.2d 562, 566 (CA8 1988); Alverado v. Washington Public Power Supply
System, 111 Wash. 2d
424 , 436, 759 P.2d
427 , 433-434 (1988), cert. pending, No. 88-645,
employees who are subject to testing under the FRA regulations can
cause great human loss before any signs of impairment become
noticeable to supervisors or others. An impaired employee, the FRA
found, will seldom display any outward "signs detectable by the lay
person or, in many cases, even the physician." 50 Fed.Reg. 31526
(1985). This view finds Page 489 U. S. 629 ample support in the railroad industry's experience with Rule G,
and in the judgment of the courts that have examined analogous
testing schemes. See, e.g., Brotherhood of Maintenance Way
Employees, Lodge 16 v. Burlington Northern R. Co., supra, at
1020. Indeed, while respondents posit that impaired employees might
be detected without alcohol or drug testing, [ Footnote 9 ] the premise of respondents' lawsuit is
that even the occurrence of a major calamity will not give rise to
a suspicion of impairment with respect to any particular
employee.

															While no procedure can identify all impaired employees with ease
and perfect accuracy, the FRA regulations supply an effective means
of deterring employees engaged in safety-sensitive tasks from using
controlled substances or alcohol in the first place. 50 Fed.Reg.
31541 (1985). The railroad industry's experience with Rule G
persuasively shows, and common sense confirms, that the customary
dismissal sanction Page 489 U. S. 630 that threatens employees who use drugs or alcohol while on duty
cannot serve as an effective deterrent unless violators know that
they are likely to be discovered. By ensuring that employees in
safety-sensitive positions know they will be tested upon the
occurrence of a triggering event, the timing of which no employee
can predict with certainty, the regulations significantly increase
the deterrent effect of the administrative penalties associated
with the prohibited conduct, cf. Griffin v. Wisconsin, 483
U.S. at 483 U. S. 876 ,
concomitantly increasing the likelihood that employees will forgo
using drugs or alcohol while subject to being called for duty.

															The testing procedures contemplated by Subpart C also help
railroads obtain invaluable information about the causes of major
accidents, see 50 Fed.Reg. 31541 (1985), and to take
appropriate measures to safeguard the general public. Cf.
Michigan v. Tyler, 436 U. S. 499 , 436 U. S. 510 (1978) (noting that prompt investigation of the causes of a fire
may uncover continuing dangers, and thereby prevent the fire's
recurrence); Michigan v. Clifford, 464 U.
S. 287 , 464 U. S. 308 (1984) (REHNQUIST, J., dissenting) (same). Positive test results
would point toward drug or alcohol impairment on the part of
members of the crew as a possible cause of an accident, and may
help to establish whether a particular accident, otherwise not
drug-related, was made worse by the inability of impaired employees
to respond appropriately. Negative test results would likewise
furnish invaluable clues, for eliminating drug impairment as a
potential cause or contributing factor would help establish the
significance of equipment failure, inadequate training, or other
potential causes, and suggest a more thorough examination of these
alternatives. Tests performed following the rule violations
specified in Subpart D likewise can provide valuable information
respecting the causes of those transgressions, which the FRA found
to involve "the potential for a serious train accident or grave
personal injury, or both." 50 Fed.Reg. 31553 (1985). Page 489 U. S. 631 A requirement of particularized suspicion of drug or alcohol use
would seriously impede an employer's ability to obtain this
information, despite its obvious importance. Experience confirms
the FRA's judgment that the scene of a serious rail accident is
chaotic. Investigators who arrive at the scene shortly after a
major accident has occurred may find it difficult to determine
which members of a train crew contributed to its occurrence.
Obtaining evidence that might give rise to the suspicion that a
particular employee is impaired, a difficult endeavor in the best
of circumstances, is most impracticable in the aftermath of a
serious accident. While events following the rule violations that
activate the testing authority of Subpart D may be less chaotic,
objective indicia of impairment are absent in these instances as
well. Indeed, any attempt to gather evidence relating to the
possible impairment of particular employees likely would result in
the loss or deterioration of the evidence furnished by the tests. Cf. Michigan v. Clifford, supra, at 464 U. S. 293 ,
n. 4 (plurality opinion); Michigan v. Tyler, supra, at 436 U. S. 510 .
It would be unrealistic, and inimical to the Government's goal of
ensuring safety in rail transportation, to require a showing of
individualized suspicion in these circumstances.

															Without quarreling with the importance of these governmental
interests, the Court of Appeals concluded that the post-accident
testing regulations were unreasonable because

															"[b]lood and urine tests intended to establish drug use other
than alcohol . . . cannot measure current drug intoxication or
degree of impairment."

															839 F.2d at 588. The court based its conclusion on its reading
of certain academic journals that indicate that the testing of
urine can disclose only drug metabolites, which "may remain in the
body for days or weeks after the ingestion of the drug." Id. at 589. We find this analysis flawed for several
reasons.

															As we emphasized in New Jersey v. T.L.O., "it is universally recognized that evidence, to be relevant to
an inquiry, need not conclusively prove the ultimate fact in issue,
but Page 489 U. S. 632 only have 'any tendency to make the existence of any fact that
is of consequence to the determination [of the point in issue] more
probable or less probable than it would be without the
evidence.'"

															469 U.S. at 469 U. S. 345 ,
quoting Fed.Rule Evid. 401. Even if urine test results disclosed
nothing more specific than the recent use of controlled substances
by a covered employee, this information would provide the basis for
further investigative work designed to determine whether the
employee used drugs at the relevant times. See Field
Manual B-4. The record makes clear, for example, that a positive
test result, coupled with known information concerning the pattern
of elimination for the particular drug and information that may be
gathered from other sources about the employee's activities, may
allow the FRA to reach an informed judgment as to how a particular
accident occurred. See supra at 489 U. S.
609 -610.

															More importantly, the Court of Appeals overlooked the FRA's
policy of placing principal reliance on the results of blood tests,
which unquestionably can identify very recent drug use, see,
e.g., 49 Fed.Reg. 24291 (1984), while relying on urine tests
as a secondary source of information designed to guard against the
possibility that certain drugs will be eliminated from the
bloodstream before a blood sample can be obtained. The court also
failed to recognize that the FRA regulations are designed not only
to discern impairment, but also to deter it. Because the record
indicates that blood and urine tests, taken together, are highly
effective means of ascertaining on-the-job impairment and of
deterring the use of drugs by railroad employees, we believe the
Court of Appeals erred in concluding that the post-accident testing
regulations are not reasonably related to the Government objectives
that support them. [ Footnote
10 ] Page 489 U. S. 633 We conclude that the compelling Government interests served by
the FRA's regulations would be significantly hindered if railroads
were required to point to specific facts giving rise to a
reasonable suspicion of impairment before testing a given employee.
In view of our conclusion that, on the present record, the
toxicological testing contemplated by the regulations is not an
undue infringement on the justifiable expectations of privacy of
covered employees, the Government's compelling interests outweigh
privacy concerns. IV The possession of unlawful drugs is a criminal offense that the
Government may punish, but it is a separate and far more dangerous
wrong to perform certain sensitive tasks while under the influence
of those substances. Performing those tasks while impaired by
alcohol is, of course, equally dangerous, though consumption of
alcohol is legal in most other contexts. The Government may take
all necessary and reasonable regulatory steps to prevent or deter
that hazardous conduct, and since the gravamen of the evil is
performing certain functions while concealing the substance in the
body, it may be necessary, as in the case before us, to examine the
body or its fluids to accomplish the regulatory purpose. The
necessity to perform that regulatory function with respect to
railroad employees engaged in safety-sensitive tasks, and the
reasonableness of the system for doing so, have been established in
this case.

															Alcohol and drug tests conducted in reliance on the authority of
Subpart D cannot be viewed as private action outside the reach of
the Fourth Amendment. Because the testing procedures mandated or
authorized by Subparts C and D effect Page 489 U. S. 634 searches of the person, they must meet the Fourth Amendment's
reasonableness requirement. In light of the limited discretion
exercised by the railroad employers under the regulations, the
surpassing safety interests served by toxicological tests in this
context, and the diminished expectation of privacy that attaches to
information pertaining to the fitness of covered employees, we
believe that it is reasonable to conduct such tests in the absence
of a warrant or reasonable suspicion that any particular employee
may be impaired. We hold that the alcohol and drug tests
contemplated by Subparts C and D of the FRA's regulations are
reasonable within the meaning of the Fourth Amendment. The judgment
of the Court of Appeals is accordingly reversed. It is so ordered. [ Footnote 1 ]

															The FRA noted that a 1979 study examining the scope of alcohol
abuse on seven major railroads found that "[a]n estimated one out
of every eight railroad workers drank at least once while on duty
during the study year." 48 Fed.Reg. 30724 (1983). In addition, "5%
of workers reported to work very drunk' or got `very drunk' on
duty at least once in the study year," and "13% of workers reported
to work at least `a little drunk' one or more times during that
period." Ibid. The study also found that 23% of the
operating personnel were "problem drinkers," but that only 4% of
these employees "were receiving help through an employee assistance
program, and even fewer were handled through disciplinary
procedures." Ibid. [ Footnote 2 ]

															The regulations provide a limited exception from testing

															"if the railroad representative can immediately determine, on
the basis of specific information, that the employee had no role in
the cause(s) of the accident/incident."

															49 CFR 219.203(a)(3)(i) (1987). No exception may be made,
however, in the case of a "major train accident." Ibid. In
promulgating the regulations, the FRA noted that, while it is
sometimes possible to exonerate crew members in other situations
calling for testing, it is especially difficult to assess fault and
degrees of fault in the aftermath of the more substantial
accidents. See 50 Fed.Reg. 31544 (1985).

															[ Footnote 3 ] See Federal Railroad Administration, United States
Dept. of Transportation Field Manual: Control of Alcohol and Drug
Use in Railroad Operations B-12 (1986) (Field Manual). Ethyl
alcohol is measured by gas chromatography. Ibid. In
addition, while drug screens may be conducted by immunoassays or
other techniques, "[p]ositive drug findings are confirmed by gas
chromatography/mass spectrometry." Ibid. These tests, if
properly conducted, identify the presence of alcohol and drugs in
the biological samples tested with great accuracy.

															[ Footnote 4 ] See, e.g., Lovvorn v. Chattanooga, 846 F.2d 1539, 1542
(CA6 1988); Copeland v. Philadelphia Police Dept., 840
F.2d 1139, 1143 (CA3 1988), cert. pending No. 88-66; Railway Labor Executives' Assn. v. Burnley, 839 F.2d 575,
580 (CA9 1988) (case below); Everett v. Napper, 833 F.2d
1507, 1511 (CA11 1987); Jones v. McKenzie, 266
U.S.App.D.C. 85, 88, 833 F.2d 335, 338 (1987); National
Treasury Employees Union v. Von Raab, 816 F.2d 170, 176 (CA5
1987), aff'd in pertinent part, post, p. 656; McDonell
v. Hunter, 809 F.2d 1302, 1307 (CA8 1987); Division 241,
Amalgamated Transit Union v. Suscy, 538 F.2d 1264, 1266-1267
(CA7), cert. denied, 429 U.S. 1029 (1976). See also
Alverado v. Washington Public Power Supply
System, 111 Wash. 2d
424 , 434, 759 P.2d
427 , 432-433 (1988), cert. pending, No. 88-645.

															Taking a blood or urine sample might also be characterized as a
Fourth Amendment seizure, since it may be viewed as a meaningful
interference with the employee's possessory interest in his bodily
fluids. Cf. United States v. Jacobsen, 466 U.
S. 109 , 466 U. S. 113 (1984). It is not necessary to our analysis in this case, however,
to characterize the taking of blood or urine samples as a seizure
of those bodily fluids, for the privacy expectations protected by
this characterization are adequately taken into account by our
conclusion that such intrusions are searches.

															[ Footnote 5 ]

															The regulations provide that

															"[e]ach sample provided under [Subpart C] is retained for not
less than six months following the date of the accident or incident
and may be made available to . . . a party in litigation upon
service of appropriate compulsory process on the custodian. . .
."

															49 CFR § 219.211(d) (1987). The FRA explained, when it
promulgated this provision, that it intends to retain such samples
primarily "for its own purposes ( e.g., to permit
reanalysis of a sample if another laboratory reported detection of
a substance not tested for in the original procedure)." 50 Fed.Reg.
31545 (1985). While this provision might be read broadly to
authorize the release of biological samples to law enforcement
authorities, the record does not disclose that it was intended to
be, or actually has been, so used. Indeed, while respondents aver
generally that test results might be made available to law
enforcement authorities, Brief for Respondents 24, they do not
seriously contend that this provision, or any other part of the
administrative scheme, was designed as "a pretext' to enable
law enforcement authorities to gather evidence of penal law
violations." New York v. Burger, 482 U.
S. 691 , 482 U. S.
716 -717, n. 27 (1987). Absent a persuasive showing that
the FRA's testing program is pretextual, we assess the FRA's scheme
in light of its obvious administrative purpose. We leave for
another day the question whether routine use in criminal
prosecutions of evidence obtained pursuant to the administrative
scheme would give rise to an inference of pretext, or otherwise
impugn the administrative nature of the FRA's program. [ Footnote 6 ]

															Subpart C of the regulations, for example, does not permit the
exercise of any discretion in choosing the employees who must
submit to testing, except in limited circumstances, and then only
if warranted by objective criteria. See n 2, supra. Subpart D, while
conferring some discretion to choose those who may be required to
submit to testing, also imposes specific constraints on the
exercise of that discretion. Covered employees may be required to
submit to breath or urine tests only if they have been directly
involved in specified rule violations or errors, or if their acts
or omissions contributed to the occurrence or severity of specified
accidents or incidents. To be sure, some discretion necessarily
must be used in determining whether an employee's acts or omissions
contributed to the occurrence or severity of an event, but this
limited assessment of the objective circumstances surrounding the
event does not devolve unbridled discretion upon the supervisor in
the field. Cf. Marshall v. Barlow's, Inc., 436 U.
S. 307 , 436 U. S. 323 (1978).

															In addition, the regulations contain various safeguards against
any possibility that discretion will be abused. A railroad that
requires post-accident testing in bad faith, 49 CFR § 219.201(c)
(1987), or that willfully imposes a program of authorized testing
that does not comply with Subpart D, § 219.9(a)(3), or that
otherwise fails to follow the regulations, § 219.9 (a)(5), is
subject to civil penalties, see pt. 219, App. A, p. 105,
in addition to whatever damages may be awarded through the
arbitration process.

															[ Footnote 7 ]

															When employees produce the blood and urine samples required by
Subpart C, they are asked by medical personnel to complete a form
stating whether they have taken any medications during the
preceding 30 days. The completed forms are shipped with the samples
to the FRA's laboratory. See Field Manual B-15. This
information is used to ascertain whether a positive test result can
be explained by the employee's lawful use of medications. While
this procedure permits the Government to learn certain private
medical facts that an employee might prefer not to disclose, there
is no indication that the Government does not treat this
information as confidential, or that it uses the information for
any other purpose. Under the circumstances, we do not view this
procedure as a significant invasion of privacy. Cf. Whalen v.
Roe, 429 U. S. 589 , 429 U. S. 602 (1977).

															[ Footnote 8 ] See, e.g., Ala.Code § 37-2-85 (1977) (requiring that
persons to be employed as dispatchers, engineers, conductors,
brakemen, and switchmen be subjected to a "thorough examination"
respecting, inter alia, their skill, sobriety, eyesight,
and hearing); Mass.Gen.Laws §§ 160:178-160:181 (1979) (prescribing
eyesight examination and experience requirements for railroad
engineers and conductors); N.Y.R.R.Law § 63 (McKinney 1952)
(requiring that all applicants for positions as motormen or gripmen
"be subjected to a thorough examination . . . as to their habits,
physical ability, and intelligence"). See also Nashville, C.
& S. L. R. Co. v. Alabama, 128 U. S.
96 , 128 U. S. 98 -99
(1888) (noting, in upholding a predecessor of Alabama's
fitness-for-duty statute against a Commerce Clause challenge, that
a State may lawfully require railway employees to undergo eye
examinations in the interests of safety).

															[ Footnote 9 ]

															Respondents offer a list of "less drastic and equally effective
means" of addressing the Government's concerns, including reliance
on the private proscriptions already in force, and training
supervisory personnel

															"to effectively detect employees who are impaired by drug or
alcohol use without resort to such intrusive procedures as blood
and urine tests."

															Brief for Respondents 40-43. We have repeatedly stated, however,
that

															"[t]he reasonableness of any particular government activity does
not necessarily or invariably turn on the existence of alternative
'less intrusive' means." Illinois v. Lafayette, 462 U.
S. 640 , 462 U. S. 647 (1983). See also Colorado v. Bertine, 479 U.
S. 367 , 479 U. S.
373 -374 (1987). It is obvious that

															"[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 428 U. S.
556 -557, n. 12, because judges engaged in post
hoc evaluations of government conduct

															"'can almost always imagine some alternative means by which the
objectives of the [Government] might have been accomplished.'" United States v. Montoya de Hernandez, 473 U.
S. 531 , 473 U. S. 542 (1985), quoting United States v. Sharpe, 470 U.
S. 675 , 470 U. S.
686 -687 (1985). Here, the FRA expressly considered
various alternatives to its drug screening program, and reasonably
found them wanting. At bottom, respondents' insistence on less
drastic alternatives would require us to second-guess the
reasonable conclusions drawn by the FRA after years of
investigation and study. This we decline to do.

															[ Footnote 10 ]

															The Court of Appeals also expressed concern that the tests might
be quite unreliable, and thus unreasonable. 839 F.2d at 589. The
record compiled by the FRA after years of investigation and study
does not support this conclusion. While it is impossible to
guarantee that no mistakes will ever be made in isolated cases,
respondents have challenged the administrative scheme on its face.
We deal therefore with whether the tests contemplated by the
regulations can ever be conducted. Cf. Bell v. Wolfish, 441 U. S. 520 , 441 U. S. 560 (1979). Respondents have provided us with no reason for doubting
the FRA's conclusion that the tests at issue here are accurate in
the overwhelming majority of cases.

															JUSTICE STEVENS, concurring in part and concurring in the
judgment.

															In my opinion, the public interest in determining the causes of
serious railroad accidents adequately supports the validity of the
challenged regulations. I am not persuaded, however, that the
interest in deterring the use of alcohol or drugs is either
necessary or sufficient to justify the searches authorized by these
regulations.

															I think it a dubious proposition that the regulations
significantly deter the use of alcohol and drugs by hours of
service employees. Most people -- and I would think most railroad
employees as well -- do not go to work with the expectation that
they may be involved in a major accident, particularly one causing
such catastrophic results as loss of life or the release of
hazardous material requiring an evacuation. Moreover, even if they
are conscious of the possibilities that such an accident might
occur and that alcohol or drug use might be a contributing factor,
if the risk of serious personal injury does not deter their use of
these substances, it seems highly unlikely that the additional
threat of loss of employment would have any effect on their
behavior. Page 489 U. S. 635 For this reason, I do not join the portions of Part III of the
Court's opinion that rely on a deterrence rationale; I do, however,
join the balance of the opinion and the Court's judgment.

															JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
dissenting.

															The issue in this case is not whether declaring a war on illegal
drugs is good public policy. The importance of ridding our society
of such drugs is, by now, apparent to all. Rather, the issue here
is whether the Government's deployment in that war of a
particularly draconian weapon -- the compulsory collection and
chemical testing of railroad workers' blood and urine -- comports
with the Fourth Amendment. Precisely because the need for action
against the drug scourge is manifest, the need for vigilance
against unconstitutional excess is great. History teaches that
grave threats to liberty often come in times of urgency, when
constitutional rights seem too extravagant to endure. The World War
II relocation camp cases, Hirabayashi v. United States, 320 U. S. 81 (1943); Korematsu v. United States, 323 U.
S. 214 (1944), and the Red scare and McCarthy-era
internal subversion cases, Schenck v. United States, 249 U. S. 47 (1919); Dennis v. United States, 341 U.
S. 494 (1951), are only the most extreme reminders that,
when we allow fundamental freedoms to be sacrificed in the name of
real or perceived exigency, we invariably come to regret it.

															In permitting the Government to force entire railroad crews to
submit to invasive blood and urine tests, even when it lacks any
evidence of drug or alcohol use or other wrongdoing, the majority
today joins those shortsighted courts which have allowed basic
constitutional rights to fall prey to momentary emergencies. The
majority holds that the need of the Federal Railroad Administration
(FRA) to deter and diagnose train accidents outweighs any "minimal"
intrusions on personal dignity and privacy posed by mass
toxicological testing of persons who have given no indication
whatsoever of Page 489 U. S. 636 impairment. Ante at 489 U. S. 624 .
In reaching this result, the majority ignores the text and
doctrinal history of the Fourth Amendment, which require that
highly intrusive searches of this type be based on probable cause,
not on the evanescent cost-benefit calculations of agencies or
judges. But the majority errs even under its own utilitarian
standards, trivializing the raw intrusiveness of, and overlooking
serious conceptual and operational flaws in, the FRA's testing
program. These flaws cast grave doubts on whether that program,
though born of good intentions, will do more than ineffectually
symbolize the Government's opposition to drug use.

															The majority purports to limit its decision to post-accident
testing of workers in "safety-sensitive" jobs, ante at 489 U.S. 620 , much as it
limits its holding in the companion case to the testing of
transferees to jobs involving drug interdiction or the use of
firearms. National Treasury Employees Union v. Von Raab,
post at 489 U. S. 664 .
But the damage done to the Fourth Amendment is not so easily
cabined. The majority's acceptance of dragnet blood and urine
testing ensures that the first, and worst, casualty of the war on
drugs will be the precious liberties of our citizens. I therefore
dissent. I The Court today takes its longest step yet toward reading the
probable cause requirement out of the Fourth Amendment. For the
fourth time in as many years, a majority holds that a " special
nee[d], beyond the normal need for law enforcement,'" makes the
"`requirement'" of probable cause "`impracticable.'" Ante at 489 U. S. 619 (citations omitted). With the recognition of "[t]he Government's
interest in regulating the conduct of railroad employees to ensure
safety" as such a need, ante at 620, the Court has now
permitted "special needs" to displace constitutional text in each
of the four categories of searches enumerated in the Fourth
Amendment: searches of "persons," ante at 489 U. S.
613 -614; "houses," Griffin v. Wisconsin, 483 U. S. 868 (1987); "papers," O'Connor v.
Ortega , Page 489 U. S. 637 480 U. S. 709 (1987); and "effects," New Jersey v. T.L.O., 469 U.
S. 325 (1985).

															The process by which a constitutional "requirement" can be
dispensed with as "impracticable" is an elusive one to me. The
Fourth Amendment provides that

															"[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated; and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized."

															The majority's recitation of the Amendment, remarkably, leaves
off after the word "violated," ante at 489 U. S. 613 ,
but the remainder of the Amendment -- the Warrant Clause -- is not
so easily excised. As this Court has long recognized, the Framers
intended the provisions of that Clause -- a warrant and probable
cause -- to "provide the yardstick against which official searches
and seizures are to be measured." T.L.O., supra, at 469 U. S.
359 -360 (opinion of BRENNAN, J.). Without the content
which those provisions give to the Fourth Amendment's overarching
command that searches and seizures be "reasonable," the Amendment
lies virtually devoid of meaning, subject to whatever content
shifting judicial majorities, concerned about the problems of the
day, choose to give to that supple term. See Dunaway v. New
York, 442 U. S. 200 , 442 U. S. 213 (1979) ("[T]he protections intended by the Framers could all too
easily disappear in the consideration and balancing of the
multifarious circumstances presented by different cases").
Constitutional requirements like probable cause are not
fair-weather friends, present when advantageous, conveniently
absent when "special needs" make them seem not.

															Until recently, an unbroken line of cases had recognized
probable cause as an indispensable prerequisite for a full-scale
search, regardless of whether such a search was conducted pursuant
to a warrant or under one of the recognized exceptions to the
warrant requirement. T.L.O., supra, at 469 U. S.
358 Page 489 U. S. 638 and 469 U. S. 359 ,
n. 3 (opinion of BRENNAN, J.); see also Chambers v.
Maroney, 399 U. S. 42 , 399 U. S. 51 (1970). Only where the Government action in question had a
"substantially less intrusive" impact on privacy, Dunaway,
supra, at 442 U. S. 210 ,
and thus clearly fell short of a full-scale search, did we relax
the probable cause standard. Id. at 442 U. S. 214 ("For all but those narrowly defined intrusions, the requisite balancing' . . . is embodied in the principle that seizures are
`reasonable' only if supported by probable cause"); see also
T.L.O., supra, at 469 U. S. 360 (opinion of BRENNAN, J.). Even in this class of cases, we almost
always required the Government to show some individualized
suspicion to justify the search. [ Footnote 2/1 ] The few searches which we upheld in the
absence of individualized justification were routinized, fleeting,
and nonintrusive encounters conducted pursuant to regulatory
programs which entailed no contact with the person. [ Footnote 2/2 ] Page 489 U. S. 639 In the four years since this Court, in T.L.O., first
began recognizing "special needs" exceptions to the Fourth
Amendment, the clarity of Fourth Amendment doctrine has been badly
distorted, as the Court has eclipsed the probable cause requirement
in a patchwork quilt of settings: public school principals'
searches of students' belongings, T.L.O.; public
employers' searches of employees' desks, O'Connor; and
probation officers' searches of probationers' homes, Griffin. [ Footnote 2/3 ]
Tellingly, each time the Court has found that "special needs"
counseled ignoring the literal requirements of the Fourth Amendment
for such full-scale searches in favor of a formless and unguided
"reasonableness" balancing inquiry, it has concluded that the
search in question satisfied that test. I have joined dissenting
opinions in each of these cases, protesting the "jettison[ing of] .
. . the only standard that finds support in the text of the Fourth
Amendment" and predicting that the majority's "Rohrschach-like balancing test'" portended "a dangerous weakening of the
purpose of the Fourth Amendment to protect the privacy and security
of our citizens." T.L.O., supra, at 469 U. S.
357 -358 (opinion of BRENNAN, J.). The majority's decision today bears out that prophecy. After
determining that the Fourth Amendment applies to the FRA's testing
regime, the majority embarks on an extended inquiry into whether
that regime is "reasonable," an inquiry in which it balances
" all the circumstances surrounding the search or seizure and
the nature of the search or seizure itself.'" Ante at 489 U. S. 619 ,
quoting United States v. Montoya
de Page 489 U. S. 640 Hernandez, 473 U. S. 531 , 473 U. S. 537 (1985). The result is "special needs" balancing analysis' deepest
incursion yet into the core protections of the Fourth Amendment.
Until today, it was conceivable that, when a Government search was
aimed at a person and not simply the person's possessions,
balancing analysis had no place. No longer: with nary a word of
explanation or acknowledgment of the novelty of its approach, the
majority extends the "special needs" framework to a regulation
involving compulsory blood withdrawal and urinary excretion, and
chemical testing of the bodily fluids collected through these
procedures. And until today, it was conceivable that a prerequisite
for surviving "special needs" analysis was the existence of
individualized suspicion. No longer: in contrast to the searches in T.L.O., O'Connor, and Griffin, which were
supported by individualized evidence suggesting the culpability of
the persons whose property was searched, [ Footnote 2/4 ] the regulatory regime upheld today
requires the post-accident collection and testing of the blood and
urine of all covered employees -- even if every member of
this group gives every indication of sobriety and
attentiveness.

															In widening the "special needs" exception to probable cause to
authorize searches of the human body unsupported by any evidence of
wrongdoing, the majority today completes the process begun in T.L.O. of eliminating altogether the probable cause
requirement for civil searches -- those undertaken for reasons
"beyond the normal need for law enforcement." Ante at 489 U. S. 619 (citations omitted). In its place, the majority substitutes a
manipulable balancing inquiry under which, upon the mere assertion
of a "special need," even the deepest dignitary and privacy
interests become vulnerable Page 489 U. S. 641 to governmental incursion. See ante at 489 U. S. 619 (distinguishing criminal from civil searches). By its terms,
however, the Fourth Amendment -- unlike the Fifth and Sixth -- does
not confine its protections to either criminal or civil actions.
Instead, it protects generally "[t]he right of the people to be
secure." [ Footnote 2/5 ]

															The fact is that the malleable "special needs" balancing
approach can be justified only on the basis of the policy results
it allows the majority to reach. The majority's concern with the
railroad safety problems caused by drug and alcohol abuse is
laudable; its cavalier disregard for the text of the Constitution
is not. There is no drug exception to the Constitution, any more
than there is a communism exception or an exception for other real
or imagined sources of domestic unrest. Coolidge v. New
Hampshire, 403 U. S. 443 , 403 U. S. 455 (1971). Because abandoning the explicit protections of the Fourth
Amendment seriously imperils "the right to be let alone -- the most
comprehensive of rights and the right most valued by civilized
men," Olmstead v. United States, 277 U.
S. 438 , 277 U. S. 478 (1928) (Brandeis, J., dissenting), I reject the majority's "special
needs" rationale as unprincipled and dangerous. II The proper way to evaluate the FRA's testing regime is to use
the same analytic framework which we have traditionally used to
appraise Fourth Amendment claims involving full-scale searches, at
least until the recent "special needs" cases. Under that framework,
we inquire, serially, whether a Page 489 U. S. 642 search has taken place, see, e.g., Katz v. United
States, 389 U. S. 347 , 389 U. S.
350 -353 (1967); whether the search was based on a valid
warrant or undertaken pursuant to a recognized exception to the
warrant requirement, see, e.g., Welsh v. Wisconsin, 466 U. S. 740 , 466 U. S.
748 -750 (1984); whether the search was based on probable
cause or validly based on lesser suspicion because it was minimally
intrusive, see, e.g., Dunaway, 442 U.S. at 442 U. S.
208 -210; and, finally, whether the search was conducted
in a reasonable manner, see, e.g., Winston v. Lee, 470 U. S. 753 , 470 U. S.
763 -766 (1985). See also T.L.O., 469 U.S. at 469 U. S.
354 -355 (opinion of BRENNAN, J.) (summarizing analytic
framework).

															The majority's threshold determination that "covered" railroad
employees have been searched under the FRA's testing program is
certainly correct. Ante at 489 U. S.
616 -618. Who among us is not prepared to consider
reasonable a person's expectation of privacy with respect to the
extraction of his blood, the collection of his urine, or the
chemical testing of these fluids? United States v.
Jacobsen, 466 U. S. 109 , 1 466 U. S. 13 (1984). [ Footnote 2/6 ] The
majority's ensuing conclusion that the warrant requirement may be
dispensed with, however, conveniently overlooks the fact that there
are three distinct searches at issue. Although the importance of
collecting blood and urine samples before drug or alcohol
metabolites disappear justifies waiving the warrant requirement for
those two searches under the narrow "exigent circumstances"
exception, see Schmerber v. California, 384 U.
S. 757 , 384 U. S. 770 (1966) ("[T]he delay necessary to obtain a warrant . . .
threaten[s] the destruction of evidence'"), no such exigency
prevents railroad officials from securing a warrant before
chemically testing the samples they obtain. Blood and urine do not
spoil if Page 489 U. S.
643 properly collected and preserved, and there is no reason to
doubt the ability of railroad officials to grasp the relatively
simple procedure of obtaining a warrant authorizing, where
appropriate, chemical analysis of the extracted fluids. It is
therefore wholly unjustified to dispense with the warrant
requirement for this final search. See Chimel v.
California, 395 U. S. 752 , 395 U. S.
761 -764 (1969) (exigency exception permits warrantless
searches only to the extent that exigency exists). It is the probable cause requirement, however, that the FRA's
testing regime most egregiously violates, a fact which explains the
majority's ready acceptance and expansion of the countertextual
"special needs" exception. By any measure, the FRA's highly
intrusive collection and testing procedures qualify as full-scale
personal searches. Under our precedents, a showing of probable
cause is therefore clearly required. But even if these searches
were viewed as entailing only minimal intrusions on the order, say,
of a police stop-and-frisk, the FRA's program would still fail to
pass constitutional muster, for we have, without exception,
demanded that even minimally intrusive searches of the person be
founded on individualized suspicion. See supra at 489 U. S. 638 ,
and n. 1. The federal parties concede it does not satisfy this
standard. Brief for Federal Parties 18. Only if one construes the
FRA's collection and testing procedures as akin to the routinized
and fleeting regulatory interactions which we have permitted in the
absence of individualized suspicion, see 489
U.S. 602 fn2/2|>n. 2, supra, might these procedures
survive constitutional scrutiny. Presumably for this reason, the
majority likens this case to United States v.
Martinez-Fuerte, 428 U. S. 543 (1976), which upheld brief automobile stops at the border to
ascertain the validity of motorists' residence in the United
States. Ante at 489 U. S. 624 .
Case law and common sense reveal both the bankruptcy of this absurd
analogy and the constitutional imperative of adhering to the
textual standard of probable cause to evaluate the FRA's
multifarious full-scale searches. Page 489 U. S. 644 Compelling a person to submit to the piercing of his skin by a
hypodermic needle so that his blood may be extracted significantly
intrudes on the "personal privacy and dignity against unwarranted
intrusion by the State" against which the Fourth Amendment
protects. Schmerber, supra, at 384 U. S. 767 .
As we emphasized in Terry: "Even a limited search of the outer clothing . . . constitutes a
severe, though brief, intrusion upon cherished personal security,
and it must surely be an annoying, frightening, and perhaps
humiliating experience."

															392 U.S. 392 U. S. 24 -25.
We have similarly described the taking of a suspect's fingernail
scrapings as a " severe, though brief, intrusion upon cherished
personal security.'" Cupp v. Murphy, 412 U.
S. 291 , 412 U. S. 295 (1973) (quoting Terry, supra, at 392 U. S. 24 -25,
and upholding this procedure upon a showing of probable cause). The
government-compelled withdrawal of blood, involving as it does the
added aspect of physical invasion, is surely no less an intrusion.
The surrender of blood on demand is, furthermore, hardly a
quotidian occurrence. Cf. Martinez-Fuerte, supra, at 428 U. S. 557 (routine stops involve "quite limited" intrusion). In recognition of the intrusiveness of this procedure, we
specifically required in Schmerber that police have
evidence of a drunk-driving suspect's impairment before forcing him
to endure a blood test:

															"The interests in human dignity and privacy which the Fourth
Amendment protects forbid any such intrusions on the mere chance
that desired evidence might be obtained. In the absence of a clear
indication that in fact such evidence will be found, these
fundamental human interests require law officers to suffer the risk
that such evidence may disappear. . . ."

															384 U.S. at 384 U. S.
769 -770. Schmerber strongly suggested that the
"clear indication" needed to justify a compulsory blood test
amounted to a showing of probable cause, which "plainly" existed in
that case. Id. at 384 U. S. 768 . Although subsequent cases interpreting Schmerber have differed over whether a showing of
individualized Page 489 U. S. 645 suspicion would have sufficed, compare Winston, 470
U.S. at 470 U. S. 760 ( Schmerber "noted the importance of probable cause"), with Montoya de Hernandez, 473 U.S. at 473 U. S. 540 ( Schmerber "indicate[d] the necessity for particularized
suspicion"), by any reading, Schmerber clearly forbade
compulsory blood tests on any lesser showing than individualized
suspicion. Exactly why a blood test which, if conducted on one
person, requires a showing of at least individualized suspicion
may, if conducted on many persons, be based on no showing
whatsoever, the majority does not -- and cannot -- explain.
[ Footnote 2/7 ]

															Compelling a person to produce a urine sample on demand also
intrudes deeply on privacy and bodily integrity. Urination is among
the most private of activities. It is generally forbidden in
public, eschewed as a matter of conversation, and performed in
places designed to preserve this tradition of Page 489 U. S. 646 personal seclusion. Cf. Martinez-Fuerte, supra, at 428 U. S. 560 (border-stop questioning involves no more than "some annoyance,"
and is neither "frightening" nor "offensive"). The FRA, however,
gives scant regard to personal privacy, for its Field Manual
instructs supervisors monitoring urination that railroad workers
must provide urine samples " under direct observation by
the physician/technician." Federal Railroad Administration, United
States Dept. of Transportation, Field Manual: Control of Alcohol
and Drug Use in Railroad Operations D-5 (1986) (emphasis added).
[ Footnote 2/8 ] That the privacy
interests offended by compulsory and supervised urine collection
are profound is the overwhelming judgment of the lower courts and
commentators. As Professor -- later Solicitor General -- Charles
Fried has written:

															"[I]n our culture, the excretory functions are shielded by more
or less absolute privacy, so much so that situations in which this
privacy is violated are experienced as extremely distressing, as
detracting from one's dignity and self esteem."

															Privacy, 77 Yale L.J. 475, 487 (1968). [ Footnote 2/9 ]

															The majority's characterization of the privacy interests
implicated by urine collection as "minimal," ante at 489 U. S. 624 ,
is nothing Page 489 U. S. 647 short of startling. This characterization is, furthermore,
belied by the majority's own prior explanation of why compulsory
urination constitutes a search for the purposes of the Fourth
Amendment:

															"'There are few activities in our society more personal or
private than the passing of urine. Most people describe it by
euphemisms, if they talk about it at all. It is a function
traditionally performed without public observation; indeed, its
performance in public is generally prohibited by law as well as
social custom.'" Ante at 489 U.S.
617 , quoting National Treasury Employees Union v. Von
Raab, 816 F.2d 170, 175 (CA5 1987). The fact that the majority
can invoke this powerful passage in the context of deciding that a
search has occurred, and then ignore it in deciding that the
privacy interests this search implicates are "minimal," underscores
the shameless manipulability of its balancing approach.

															Finally, the chemical analysis the FRA performs upon the blood
and urine samples implicates strong privacy interests apart from
those intruded upon by the collection of bodily fluids.
Technological advances have made it possible to uncover, through
analysis of chemical compounds in these fluids, not only drug or
alcohol use, but also medical disorders such as epilepsy, diabetes,
and clinical depression. Cf. Martinez-Fuerte, 428 U.S. at 428 U. S. 558 ,
quoting United States v. Brignoni-Ponce, 422 U.
S. 873 , 422 U. S. 880 (1975) (checkpoint inquiry involves only " a brief question or
two'" about motorist's residence). As the Court of Appeals for the
District of Columbia has observed: "[S]uch tests may provide Government officials with a periscope
through which they can peer into an individual's behavior in her
private life, even in her own home." Jones v. McKenzie, 266 U.S.App.D.C. 85, 89, 833 F.2d
335, 339 (1987); see also Capua v.
Plainfield, 643 F.
Supp. 1507 , 1511 (NJ 1986) (urine testing is "form of
surveillance" which "reports on a person's off-duty activities just
as surely as someone had been present and Page 489 U. S. 648 watching"). The FRA's requirement that workers disclose the
medications they have taken during the 30 days prior to chemical
testing further impinges upon the confidentiality customarily
attending personal health secrets.

															By any reading of our precedents, the intrusiveness of these
three searches demands that they -- like other full-scale searches
-- be justified by probable cause. It is no answer to suggest, as
does the majority, that railroad workers have relinquished the
protection afforded them by this Fourth Amendment requirement,
either by "participat[ing] in an industry that is regulated
pervasively to ensure safety" or by undergoing periodic fitness
tests pursuant to state law or to collective bargaining agreements. Ante at 489 U. S.
627 .

															Our decisions in the regulatory search area refute the
suggestion that the heavy regulation of the railroad industry
eclipses workers' rights under the Fourth Amendment to insist upon
a showing of probable cause when their bodily fluids are being
extracted. This line of cases has exclusively involved searches of
employer property, with respect to which

															"[c]ertain industries have such a history of government
oversight that no reasonable expectation of privacy could exist for
a proprietor over the stock of such an
enterprise." Marshall v. Barlow's, Inc., 436 U.
S. 307 , 436 U. S. 313 (1978) (emphasis added; citation omitted), quoted in New York
v. Burger, 482 U. S. 691 , 482 U. S. 700 (1987). Never have we intimated that regulatory searches reduce
employees' rights of privacy in their persons. See Camara v.
Municipal Court of San Francisco, 387 U.
S. 523 , 387 U. S. 537 (1967) ("[T]he inspections are [not] personal in nature"); cf.
Donovan v. Dewey, 452 U. S. 594 , 452 U. S.
598 -599 (1981); Marshall, supra, at 313. As the
Court pointed out in O'Connor, individuals do not lose
Fourth Amendment rights at the workplace gate, 480 U.S. at 480 U. S.
716 -718; see also Oliver v. United States, 466 U. S. 170 , 466 U. S. 178 ,
n. 8 (1984), any more than they relinquish these rights at the
schoolhouse door, T.L.O., 469 U.S. at 469 U. S. 333 ,
or the hotel room threshold. Hoffa v. United States, 385 U. S. 293 , 385 U. S. 301 (1966). These rights mean Page 489 U. S. 649 little indeed if, having passed through these portals, an
individual may remain subject to a suspicionless search of his
person justified solely on the grounds that the Government already
is permitted to conduct a search of the inanimate contents of the
surrounding area. In holding that searches of persons may fall
within the category of regulatory searches permitted in the absence
of probable cause or even individualized suspicion, the majority
sets a dangerous and ill-conceived precedent.

															The majority's suggestion that railroad workers' privacy is only
minimally invaded by the collection and testing of their bodily
fluids because they undergo periodic fitness tests, ante at 489 U. S.
624 -625, is equally baseless. As an initial matter, even
if participation in these fitness tests did render "minimal" an
employee's "interest in bodily security," ante at 489 U. S. 628 ,
such minimally intrusive searches of the person require, under our
precedents, a justificatory showing of individualized suspicion. See supra, at 489 U. S. 637 .
More fundamentally, railroad employees are not routinely required
to submit to blood or urine tests to gain or to maintain
employment, and railroad employers do not ordinarily have access to
employees' blood or urine, and certainly not for the purpose of
ascertaining drug or alcohol usage. That railroad employees
sometimes undergo tests of eyesight, hearing, skill, intelligence,
and agility, ante at 489 U. S. 627 ,
n. 8, hardly prepares them for Government demands to submit to the
extraction of blood, to excrete under supervision, or to have these
bodily fluids tested for the physiological and psychological
secrets they may contain. Surely employees who release basic
information about their financial and personal history so that
employers may ascertain their "ethical fitness" do not, by so
doing, relinquish their expectations of privacy with respect to
their personal letters and diaries, revealing though these papers
may be of their character.

															I recognize that invalidating the full-scale searches involved
in the FRA's testing regime for failure to comport with the Fourth
Amendment's command of probable cause Page 489 U. S. 650 may hinder the Government's attempts to make rail transit as
safe as humanly possible. But constitutional rights have their
consequences, and one is that efforts to maximize the public
welfare, no matter how well-intentioned, must always be pursued
within constitutional boundaries. Were the police freed from the
constraints of the Fourth Amendment for just one day to seek out
evidence of criminal wrongdoing, the resulting convictions and
incarcerations would probably prevent thousands of fatalities. Our
refusal to tolerate this spectre reflects our shared belief that
even beneficent governmental power -- whether exercised to save
money, save lives, or make the trains run on time -- must always
yield to "a resolute loyalty to constitutional safeguards." Almeida-Sanchez v. United States, 413 U.
S. 266 , 413 U. S. 273 (1973). The Constitution demands no less loyalty here. III Even accepting the majority's view that the FRA's collection and
testing program is appropriately analyzed under a multifactor
balancing test, and not under the literal terms of the Fourth
Amendment, I would still find the program invalid. The benefits of
suspicionless blood and urine testing are far outstripped by the
costs imposed on personal liberty by such sweeping searches. Only
by erroneously deriding as "minimal" the privacy and dignity
interests at stake, and by uncritically inflating the likely
efficacy of the FRA's testing program, does the majority strike a
different balance.

															For the reasons stated above, I find nothing minimal about the
intrusion on individual liberty that occurs whenever the Government
forcibly draws and analyzes a person's blood and urine. Several
aspects of the FRA's testing program exacerbate the intrusiveness
of these procedures. Most strikingly, the agency's regulations not
only do not forbid, but, in fact, appear to invite criminal
prosecutors to obtain the blood and urine samples drawn by the FRA
and use them as the basis of criminal investigations and trials. See 49 CFR Page 489 U. S. 651 § 219.211(d) (1987) ("Each sample . . . may be made available to
. . . a party in litigation upon service of appropriate compulsory
process on the custodian of the sample . . ."). This is an
unprecedented invitation, leaving open the possibility of criminal
prosecutions based on suspicionless searches of the human body. Cf. National Treasury Employees Union, post at 666
(Customs Service drug-testing program prohibits use of test results
in criminal prosecutions); Camara, 387 U.S. at 387 U. S.
537 .

															To be sure, the majority acknowledges, in passing, the
possibility of criminal prosecutions, ante at 489 U. S. 621 ,
n. 5, but it refuses to factor this possibility into its Fourth
Amendment balancing process, stating that "the record does not
disclose that [49 CFR § 219.211(d) (1987)] was intended to be, or
actually has been, so used." Ibid. This demurrer is highly
disingenuous. The federal parties concede that they find "no
prohibition on the release of FRA testing results to prosecutors."
Brief for Federal Parties 10, n. 15. The absence of prosecutions to
date -- which is likely due to the fact that the FRA's regulations
have been held invalid for much of their brief history -- hardly
proves that prosecutors will not avail themselves of the FRA's
invitation in the future. If the majority really views the impact
of FRA testing on privacy interests as minimal even if these tests
generate criminal prosecutions, it should say so. If the prospect
of prosecutions would lead the majority to reassess the validity of
the testing program with prosecutions as part of the balance, it
should say so, too, or condition its approval of that program on
the nonrelease of test results to prosecutors. In ducking this
important issue, the majority gravely disserves both the values
served by the Fourth Amendment and the rights of those persons whom
the FRA searches. Furthermore, the majority's refusal to restrict
the release of test results casts considerable doubt on the
conceptual basis of its decision -- that the "special need" of
railway safety is one "beyond the Page 489 U. S. 652 normal need for law enforcement." Ante at 489 U. S. 619 (citations omitted). [ Footnote
2/10 ]

															The majority also overlooks needlessly intrusive aspects of the
testing process itself. Although the FRA requires the collection
and testing of both blood and urine, the agency concedes that
mandatory urine tests -- unlike blood tests -- do not measure
current impairment, and therefore cannot differentiate on-duty
impairment from prior drug or alcohol use which has ceased to
affect the user's behavior. See 49 CFR § 219.309(2) (1987)
(urine test may reveal use of drugs or alcohol as much as 60 days
prior to sampling). Given that the FRA's stated goal is to
ascertain current impairment, and not to identify persons who have
used substances in their spare time sufficiently in advance of
their railroad duties to pose no risk of on-duty impairment, §
219.101(a), mandatory urine testing seems wholly excessive. At the
very least, the FRA could limit its use of urinalysis to confirming
findings of current impairment suggested by a person's blood tests.
The additional invasion caused by automatically testing urine as
well as blood hardly ensures that privacy interests "will be
invaded no more than is necessary." T.L.O., 469 U.S. at 469 U. S.
343 .

															The majority's trivialization of the intrusions on worker
privacy posed by the FRA's testing program is matched at the other
extreme by its blind acceptance of the Government's assertion that
testing will "dete[r] employees engaged in safety-sensitive tasks
from using controlled substances or alcohol," and "help railroads
obtain invaluable information Page 489 U. S. 653 about the causes of major accidents." Ante at 489 U. S. 629 , 489 U. S. 630 .
With respect, first, to deterrence, it is simply implausible that
testing employees after major accidents occur, 49 CFR §
219.201(a)(1) (1987), will appreciably discourage them from using
drugs or alcohol. As JUSTICE STEVENS observes in his concurring
opinion:

															"Most people -- and I would think most railroad employees as
well -- do not go to work with the expectation that they may be
involved in a major accident, particularly one causing such
catastrophic results as loss of life or the release of hazardous
material requiring an evacuation. Moreover, even if they are
conscious of the possibilities that such an accident might occur
and that alcohol or drug use might be a contributing factor, if the
risk of serious personal injury does not deter their use of these
substances, it seems highly unlikely that the additional threat of
loss of employment would have any effect on their behavior." Ante at 489 U. S. 634 .
Under the majority's deterrence rationale, people who skip school
or work to spend a sunny day at the zoo will not taunt the lions
because their truancy or absenteeism might be discovered in the
event they are mauled. It is, of course, the fear of the accident,
not the fear of a post-accident revelation, that deters. The
majority's credulous acceptance of the FRA's deterrence rationale
is made all the more suspect by the agency's failure to introduce,
in an otherwise ample administrative record, any studies
explaining or supporting its theory of accident deterrence.

															The poverty of the majority's deterrence rationale leaves the
Government's interest in diagnosing the causes of major accidents
as the sole remaining justification for the FRA's testing program.
I do not denigrate this interest, but it seems a slender thread
from which to hang such an intrusive program, particularly given
that the knowledge that one or more workers were impaired at the
time of an accident falls far short of proving that substance abuse
caused or exacerbated Page 489 U. S. 654 that accident. See 839 F.2d 575, 587 (CA9 1988). Some
corroborative evidence is needed: witness or coworker accounts of a
worker's misfeasance, or at least indications that the cause of the
accident was within a worker's area of responsibility. Such
particularized facts are, of course, the very essence of the
individualized suspicion requirement which the respondent railroad
workers urge, and which the Court of Appeals found to "pos[e] no
insuperable burden on the government." Id. at 588.
Furthermore, reliance on the importance of diagnosing the causes of
an accident as a critical basis for upholding the FRA's testing
plan is especially hard to square with our frequent admonition that
the interest in ascertaining the causes of a criminal episode does
not justify departure from the Fourth Amendment's requirements.
"[T]his Court has never sustained a search upon the sole ground
that officers reasonably expected to find evidence of a particular
crime. . . ." Katz, 389 U.S. at 389 U. S. 356 .
Nor should it here. IV In his first dissenting opinion as a Member of this Court,
Oliver Wendell Holmes observed:

															"Great cases, like hard cases, make bad law. For great cases are
called great, not by reason of their real importance in shaping the
law of the future, but because of some accident of immediate
overwhelming interest which appeals to the feelings and distorts
the judgment. These immediate interests exercise a kind of
hydraulic pressure which makes what previously was clear seem
doubtful, and before which even well settled principles of law will
bend." Northern Securities Co. v. United States, 193 U.
S. 197 , 193 U. S.
400 -401 (1904).

															A majority of this Court, swept away by society's obsession with
stopping the scourge of illegal drugs, today succumbs to the
popular pressures described by Justice Holmes. In upholding the
FRA's plan for blood and urine testing, the Page 489 U. S. 655 majority bends time-honored and textually based principles of
the Fourth Amendment -- principles the Framers of the Bill of
Rights designed to ensure that the Government has a strong and
individualized justification when it seeks to invade an
individual's privacy. I believe the Framers would be appalled by
the vision of mass governmental intrusions upon the integrity of
the human body that the majority allows to become reality. The
immediate victims of the majority's constitutional timorousness
will be those railroad workers whose bodily fluids the Government
may now forcibly collect and analyze. But ultimately, today's
decision will reduce the privacy all citizens may enjoy, for, as
Justice Holmes understood, principles of law, once bent, do not
snap back easily. I dissent.

															[ Footnote 2/1 ]

															The first, and leading, case of a minimally intrusive search
held valid when based on suspicion short of probable cause is Terry v. Ohio, 392 U. S. 1 , 392 U. S. 30 (1968), where we held that a police officer who observes unusual
conduct suggesting criminal activity by persons he reasonably
suspects are armed and presently dangerous may "conduct a carefully
limited search of the outer clothing of such persons." See also
United States v. Hensley, 469 U. S. 221 (1985) (upholding brief stop of person described on wanted flyer
while police ascertain if arrest warrant has been issued); Delaware v. Prouse, 440 U. S. 648 (1979) (invalidating discretionary stops of motorists to check
licenses and registrations when not based on reasonable suspicion
that the motorist is unlicensed, the automobile is unregistered, or
that the vehicle or an occupant should otherwise be detained); Pennsylvania v. Mimms, 434 U. S. 106 (1977) (upholding limited search where officers who had lawfully
stopped car saw a large bulge under the driver's jacket); United States v. Brignoni-Ponce, 422 U.
S. 873 (1975) (upholding brief stops by roving border
patrols where officers reasonably believe car may contain illegal
aliens); Adams v. Williams, 407 U.
S. 143 (1972) (upholding brief stop to interrogate
suspicious individual believed to be carrying narcotics and
gun).

															[ Footnote 2/2 ] See, e.g., United States v. Martinez-Fuerte, 428 U. S. 543 (1976) (brief interrogative stop at permanent border checkpoint to
ascertain motorist's residence status); Camara v. Municipal
Court of San Francisco, 387 U. S. 523 (1967) (routine annual inspection by city housing department).

															[ Footnote 2/3 ]

															The "special needs" the Court invoked to justify abrogating the
probable cause requirement were, in New Jersey v. T.L.O., 469 U. S. 325 , 469 U. S. 341 (1985), "the substantial need of teachers and administrators for
freedom to maintain order in the schools"; in O'Connor v.
Ortega, 480 U. S. 709 , 480 U. S. 725 (1987), "the efficient and proper operation of the workplace"; and
in Griffin v. Wisconsin, 483 U. S. 868 , 483 U. S. 878 (1987), the need to preserve "the deterrent effect of the
supervisory arrangement" of probation.

															[ Footnote 2/4 ] See T.L.O., supra, at 469 U. S. 346 (teacher's report that student had been smoking provided reasonable
suspicion that purse contained cigarettes); O'Connor,
supra, at 480 U. S. 726 (charges of specific financial improprieties gave employer
individualized suspicion of misconduct by employee); Griffin,
supra, at 483 U. S.
879 -880 (tip to police officer that probationer was
storing guns in his apartment provided reasonable suspicion).

															[ Footnote 2/5 ]

															That the Fourth Amendment applies equally to criminal and civil
searches was emphasized, ironically enough, in the portion of T.L.O. holding the Fourth Amendment applicable to
schoolhouse searches. 469 U.S. at 469 U. S. 335 .
The malleability of "special needs" balancing thus could not be
clearer: the majority endorses the applicability of the Fourth
Amendment to civil searches in determining whether a search has
taken place, but then wholly ignores it in the subsequent inquiry
into the validity of that search.

															[ Footnote 2/6 ]

															The FRA's breath-testing procedures also constitute searches
subject to constitutional safeguards. See ante at 489 U. S.
616 -617 (reaching same conclusion). I focus my
discussion on the collection and testing of blood and urine because
those more intrusive procedures better demonstrate the excesses of
the FRA's scheme.

															[ Footnote 2/7 ]

															The majority, seeking to lessen the devastating ramifications of Schmerber v. California, 384 U. S. 757 (1966), and to back up its assertion that Government-imposed blood
extraction does not "infringe significant privacy interests," ante at 489 U. S. 625 ,
emphasizes Schmerber's observation that blood tests are
commonplace, and can be performed with " virtually no risk,
trauma, or pain.'" Ibid., quoting 384 U.S. at 384 U. S. 771 .
The majority, however, wrenches this statement out of context. The Schmerber Court made this statement only after it
established that the blood test fell within the exigent
circumstances exception to the warrant requirement, and that the
test was supported by probable cause. Indeed, the statement was
made only in the context of the separate inquiry into whether the
compulsory blood test was conducted in a reasonable manner. 384
U.S. at 384 U. S.
768 -772; see also Winston v. Lee, 470 U.
S. 753 , 470 U. S.
760 -761 (1985) (" Schmerber recognized that the
ordinary requirements of the Fourth Amendment would be the threshold requirements for conducting this kind of
surgical search and seizure. . . . Beyond these standards, Schmerber's inquiry considered a number of other factors
in determining the `reasonableness' of the blood test") (emphasis
added). The majority also cites South Dakota v. Neville, 459 U. S. 553 (1983), and Breithaupt v. Abram, 352 U.
S. 432 (1957), for the proposition that blood tests are
commonplace. Ante at 489 U. S. 625 .
In both those cases, however, the police officers who attempted to
impose blood tests on drunk-driving suspects had exceptionally
strong evidence of the driver's inebriation. 459 U.S. at 459 U. S.
554 -556; 352 U.S. at 352 U. S.
433 . [ Footnote 2/8 ]

															The majority dismisses as nonexistent the intrusiveness of such
"direct observation," on the ground that FRA regulations state that
such observation is not "require[d]." 50 Fed.Reg. 31555 (1985),
cited ante at 489 U. S. 626 .
The majority's dismissal is too hasty, however, for the regulations
-- in the very same sentence -- go on to state: "but observation is
the most effective means of ensuring that the sample is that of the
employee and has not been diluted." 50 Fed.Reg. 31555 (1985). Even
if this were not the case, the majority's suggestion that officials
monitoring urination will disregard the clear commands of the Field
Manual with which they are provided is dubious, to say the
least.

															[ Footnote 2/9 ] See, e.g., National Treasury Employees Union v. Von
Raab, 816 F.2d 170, 175 (CA5 1987), aff'd in pertinent
part, post, p. 656; Taylor v. O'Grady, 669 F.
Supp. 1422 , 1433-1434 (ND Ill.1987); Feliciano v.
Cleveland, 661 F.
Supp. 578 , 586 (ND Ohio 1987); American Federation of
Government Employees, AFL-CIO v. Weinberger, 651 F.
Supp. 726 , 732-733 (SD Ga.1986); Capua v.
Plainfield, 643 F.
Supp. 1507 , 1514 (NJ 1986).

															[ Footnote 2/10 ]

															As a result of the majority's extension of the regulatory search
doctrine to searches of the person, individuals the FRA finds to
have used drugs may face criminal prosecution, even if their
impairment had nothing to do with causing an accident. The majority
observes that evidence of criminal behavior unearthed during an
otherwise valid regulatory search is not excludible unless the
search is shown to be a "pretext" for obtaining evidence for a
criminal trial, ante at 489 U. S. 621 ,
n. 5, citing New York v. Burger, 482 U.
S. 691 , 482 U. S.
716 -717, n. 27 (1987) -- a defense the majority
belittles but, mercifully, preserves for another day.