709

BLACKMUN, J., dissenting

13

explain why the balancing of these interests necessarily leads to the standard borrowed from New Jersey v. T. L. O., as opposed to other imaginable standards. Indeed, because the balancing is simply asserted rather than explicated, the plurality never really justifies why probable cause, characterized by this Court as a "practical, nontechnical conception," Brinegar v. United States, 338 U. S. 160, 176 (1949), would not protect adequately the public employer's interests in the situation presented by this case. See New Jersey v. T. L. O., 469 U. S., at 363-364 (BRENNAN, J., concurring in part and dissenting in part)."

"The plurality's attempt at explication consists of little more than a series of assertions: that the probable-cause requirement "would impose intolerable burdens on public employers"; that the delay caused by such a requirement would result in “tangible and often irreparable damage" to a government agency; and that public employers cannot be expected "to learn the subtleties of the probable cause standard." See ante, at 724-725. Such assertions cannot pass for careful balancing on the facts of this case, given that the search was conducted during Dr. Ortega's administrative leave from the Hospital, with the advice of counsel, and by an investigating party that included a security officer. My observation that a particular Fourth Amendment standard of reasonableness should be developed from a specific context bears repeating here.

"Even if I believed that this case were an appropriate vehicle for development of a standard on public-employer searches, I would fault the plurality for its failure to give much substance to the standard it has borrowed almost verbatim from New Jersey v. T. L. O. See ante, at 714-715. The T. L. O. Court described in some detail the substance of its test, which was tailored to the circumstances of the case before it and thus is not directly transferable from the halls of a high school to the offices of government. In any event, were I to apply the rather stark standard of reasonableness announced by the plurality, I would conclude that petitioners here did not satisfy it. Assuming, without deciding, that petitioners had an individualized suspicion that Dr. Ortega was mismanaging the psychiatric residency program, I believe the scope of the search was not reasonably related to this concern. If petitioners were truly in search of evidence of respondent's mismanagement, it is difficult to understand why they looked through the personal belongings of Dr. Ortega, a search that resulted in the seizure of a Valentine's Day card, a photograph, and a book of poetry, which could have no conceivable relation to the claimed purpose of the search. Although, in

480 U. S.

BLACKMUN, J., dissenting

IV

I have reviewed at too great length the plurality's opinion because the question of public employers' searches of their employees' workplaces, like any relatively unexplored area of Fourth Amendment law, demands careful analysis. These searches appear in various factual settings, some of which courts are only now beginning to face, and present different problems. Accordingly, I believe that the Court should examine closely the practical realities of a particular situation and the interests implicated there before replacing the traditional warrant and probable-cause requirements with some other standard of reasonableness derived from a balancing test. The Fourth Amendment demands no less. By ignoring the specific facts of this case, and by announcing in the abstract a standard as to the reasonableness of an employer's workplace searches, the plurality undermines not only the Fourth Amendment rights of public employees but also any further analysis of the constitutionality of public employer searches.

I respectfully dissent.

the plurality's view, the seizure of these items is not an issue in this case, see ante, at 729, n., I would think that this seizure is relevant to determining the reasonableness of the scope of the search. Accordingly, under the plurality's own standard, this search was unreasonable.

"One example is the Fourth Amendment problem associated with drug and alcohol testing of employees. See, e. g., Shoemaker v. Handel, 795 F. 2d 1136, 1141-1143 (CA3) (administrative-search exception extended to warrantless breath and urine testing of jockeys, given the heavily regulated nature of the horse-racing industry), cert. denied, 479 U. S. 986 (1986); National Treasury Employees Union v. Von Raab, 649 F. Supp. 380 (ED La. 1986) (wide-scale urinalysis of United States Customs Service employees without probable cause or reasonable suspicion struck down as violative of the Fourth Amendment).

REPORTER'S NOTE

The next page is purposely numbered 901. The numbers between 748 and 901 were intentionally omitted, in order to make it possible to publish the orders with permanent page numbers, thus making the official citations available upon publication of the preliminary prints of the United States Reports.

ORDERS FROM MARCH 2 THROUGH

MARCH 30, 1987

Appeals Dismissed

No. 86-1135. CORY V. VIRGINIA. Appeal from Ct. App. Va. dismissed for want of substantial federal question.

No. 86-1175. THOMPSON v. STEPHENS, CHIEF JUSTICE, KENTUCKY SUPREME COURT, ET AL.

dismissed for want of jurisdiction.

Appeal from Sup. Ct. Ky.

No. 86-5829. KISSNER v. SOUTH DAKOTA. Appeal from Sup. Ct. S. D. dismissed for want of jurisdiction. Reported below: 390 N. W. 2d 58.

No. 86-6156. PETERS v. MCCUTCHEON ET AL. Appeal from D. C. S. C. dismissed for want of jurisdiction.

No. 86-6320. ZERMAN v. WOLOFSKY ET AL. Appeal from Dist. Ct. App. Fla., 4th Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

Certiorari Granted-Vacated and Remanded

Ct.

No. 86-839. BEHNING ET UX. v. CAMELBACK SKI CORP. App. Md. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Asahi Metal Industry Co. v. Superior Court of California, ante, p. 102. Reported below: 307 Md. 270, 513 A. 2d 874.

No. 86-1050. DUGGER, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ET AL. v. MILLER ET AL. C. A. 11th Cir. Motions of respondents for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Pennsylvania v. Ritchie, ante, p. 39. Reported below: 798 F. 2d 426.