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Policy Considerations This section contains excerpts that reflect public policy considerations in the context of the issues discussed. Pages: ‹1› ‹2› ‹3› ‹4› ‹5› ‹6› ‹7› ‹8› ‹9› ‹10› ‹11› ‹12› ‹13› ‹14›
A drug-detection dog is an intimidating animal. Cf. United States v. Williams, 356 F.3d 1268, 1276 (CA10 2004) (McKay, J., dissenting) ("drug dogs are not lap dogs"). Injecting such an animal into a routine traffic stop changes the character of the encounter between the police and the motorist. The stop becomes broader, more adversarial, and (in at least some cases) longer. Caballes -- who, as far as Troopers Gillette and Graham knew, was guilty solely of driving six miles per hour over the speed limit -- was exposed to the embarrassment and intimidation of being investigated, on a public thoroughfare, for drugs.
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Under today's decision, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population.
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For the past 35 years, there has been a regulatory exemption for use of peyote -- a Schedule I substance -- by the Native American Church. See 21 CFR § 1307.31 (2005). In 1994, Congress extended that exemption to all members of every recognized Indian Tribe. See 42 U.S.C. § 1996a(b)(1). Everything the Government says about the DMT in hoasca -- that, as a Schedule I substance, Congress has determined that it "has a high potential for abuse," "has no currently accepted medical use," and has "a lack of accepted safety for use . . . under medical supervision," 21 U.S.C. § 812(b)(1) -- applies in equal measure to the mescaline in peyote, yet both the Executive and Congress itself have decreed an exception from the Controlled Substances Act for Native American religious use of peyote. If such use is permitted in the face of the congressional findings in § 812(b)(1) for hundreds of thousands of Native Americans practicing their faith, it is difficult to see how those same findings alone can preclude any consideration of a similar exception for the 130 or so American members of the UDV who want to practice theirs.
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Today's decision would be wrong, but at least of more limited effect, if its approval of drug testing were confined to that category of employees assigned specifically to drug interdiction duties. Relatively few public employees fit that description. But in extending approval of drug testing to that category consisting of employees who carry firearms, the Court exposes vast numbers of public employees to this needless indignity. Logically, of course, if those who carry guns can be treated in this fashion, so can all others whose work, if performed under the influence of drugs may endanger others -- automobile drivers, operators of other potentially dangerous equipment, construction workers, school crossing guards. [...] Since drug use is not a particular problem in the Customs Service, employees throughout the Government are no less likely to violate the public trust by taking bribes to feed their drug habit, or by yielding to blackmail. Moreover, there is no reason why this super-protection against harms arising from drug use must be limited to public employees; a law requiring similar testing of private citizens who use dangerous instruments such as guns or cars, or who have access to classified information, would also be constitutional.
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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.
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