Drug Policy Alliance Press Release: Congress Approves Drug Testing of America's Unemployed / Americans Will Be Forced to Pay for the Violation of their Own Constitutional Rights:

WASHINGTON, DC—Congress today approved a deal which will broadly expand drug testing. As part of the deal to extend the payroll tax cut and unemployment benefits, Democrats caved in to Republican demands to allow states to drug test people applying for unemployment insurance (UI) benefits.

The deal, which President Obama will sign, allows states to drug test UI benefit claimants who might apply to work for employers with a drug testing policy. The new policy amounts to a subsidized “prescreen,” at taxpayer expense, for employers who would eventually have done their own tests. The policy actually encourages employers to just announce that they will drug test, without actually paying to do it, because state unemployment bureaucracies will now do that for them.

This policy is strongly skewed toward lower-wage jobs, as “white-collar” employers are far less likely to humiliate job applicants in this way. This policy broadly expands and subsidizes drug testing in a way that may be difficult to reverse for many years, if ever.

Plaintiff’s injuries were caused by the defendants’ illegal warrantless searches and penalties without due process. However, the claim was barred by issue preclusion because of a state court order that essentially decided the issues and could have heard the § 1983 claim. Cycle Chem, Inc. v. Jackson, 465 Fed. Appx. 104 (3d Cir. 2012) (unpublished):

All three requirements are met here. The judgment rendered by the New Jersey Appellate Division was valid, final and on the merits. There is also identity of the parties, for Cycle Chem was a party to the first action and the Defendant, the DEP Commissioner, is the DEP's privy. See Jones, 29 F.3d at 830 (finding that the defendants, who were employees of a state agency, were in privity with that state agency, which was the defendant in the first action); see also Schuster v. Martin, 861 F.2d 1369, 1373 (5th Cir. 1988) ("It is also a general principle of the law of preclusion that state officials are, as a matter of law, in privity with the agency or department in which they serve.").

Finally, the claims presented in this action grow out of the same transaction or occurrence as the claims in the first action; indeed, the New Jersey Appellate Division considered and rejected the same claims that Cycle Chem brings here. Cycle Chem's claims here stem from the DEP's allegedly illegal search of Cycle Chem's facilities and imposition of penalties on Cycle Chem for impeding the attempted search. In its opinion, the Appellate Division listed Cycle Chem's arguments, among them that the DEP "lacked authority to conduct a warrantless search" and that the penalties were wrongfully imposed. ... The Appellate Division then rejected those arguments, discerning "no basis in the record of this matter justifying a departure from the general rule permitting 'administrative,' i.e. warrantless, searches of highly or pervasively regulated industries" and finding that the penalties were therefore properly imposed. (Id. at A38-39.) By doing so, the Appellate Division demonstrated that it would have exercised its original jurisdiction to resolve the § 1983 claims had Cycle Chem brought them in state court. See Jones, 29 F.3d at 831-32 (predicting whether a state court would have exercised original jurisdiction over a § 1983 claim in an appeal from an administrative decision). Accordingly, res judicata bars a federal court from entertaining Cycle Chem's suit.

A general denial of a motion to suppress preserves all the issues raised. In the suppression hearing, the state only put in the officer’s report and the defendant testified. While the testimony at trial was far more complete, the state failed to prove destruction of the evidence as an exigent circumstance or consent, and the motion to suppress should have been granted. Turrubiate v. State, 365 S.W.3d 780 (Tex. App. – San Antonio February 15, 2012) (dissent here), PDR granted 2012 Tex. Crim. App. LEXIS 737 (Tex. Crim. App. June 6, 2012). [Note: One would suspect that the state knew the trial judge would deny the motion because of the trial judge's predictability (i.e., denies all suppression motions, no matter what the merit), so it just didn't care about the record.]

“The motion judge did not err in essentially concluding that after being read Miranda rights, the defendant consented to the search based on a pragmatic assessment of the circumstances, and not because of coercion or duress.” Commonwealth v. Charlton, 81 Mass. App. Ct. 294, 962 N.E.2d 203 (2012).*

Defense counsel was not ineffective, inter alia, because he “did not move to suppress the firearm on the grounds that the search warrant was not issued by a federal judge, was not supported by a proper affidavit, lacked the proper seals or stamps, and was not made available to defense counsel ....” The motion to suppress was litigated on the merits before trial. United States v. Broadnax, 2012 U.S. Dist. LEXIS 19901 (N.D. Tex. January 11, 2012).*

In a search warrant of a computer for drug record evidence, it was reasonable to open the “My Pictures” folder where child pornography was found. Henson v. State, 314 Ga. App. 152, 723 S.E.2d 456 (2012):

In his sole enumeration of error, Henson contends that the trial court erred in denying his motion to suppress the evidence of child pornography found on his personal computer. Specifically, he argues that the police officer who initially searched his computer exceeded the scope of the warrant seeking evidence of illegal drug transactions when he opened the "My Pictures" folder. We disagree.

In Reaves v. State, our Supreme Court addressed the particularity requirement for warrants and held that "[a]lthough a warrant cannot leave the determination of what articles fall within its description and are to be seized entirely to the judgment and opinion of the officer executing the warrant, the degree of specificity in the description is flexible and will vary with the circumstances involved." Specifically, "the particularity requirement only demands that the executing officer be able to identify the property sought with reasonable certainty."

Here, as previously noted, the warrant sought a search for "marijuana, miscellaneous items associated with drug distribution such as packaging material, digital and hand scales, marijuana smoking devices, cash proceeds and records (both written and electronic) of illegal drug sales." And given that electronic records of illegal drug transactions are included amongst those items to be searched, the warrant permitted the search of personal computers at the subject address. Indeed, Henson does not argue on appeal that his computer was an improper target of the search. Nevertheless, he contends that the officer's search exceeded the scope of the warrant because his computer's "My Pictures" folder, which by its very title obviously contained photographs, is not encompassed by the term "electronic records." However, the ordinary signification of "record" is "[a]n account of some fact or event preserved in writing or other permanent form ... or "any thing ... serving to indicate or give evidence of, or preserve the memory of, a fact or event." And given that a picture certainly preserves or gives evidence of a fact or event—in many instances as efficiently as a thousand words—Henson's claim that the term "electronic records" does not encompass pictures or photographs lacks merit. Thus, the trial court did not err in finding that the officer's search did not exceed the scope of the warrant.