No reasonable expectation of privacy in urine samples of professional athletes

In a spinoff from the BALCO case, United States v. Comprehensive Drug Testing, 473 F.3d 915, 936 (9th Cir. 2006), the N.D. Cal. holds that a professional athlete had no reasonable expectation of privacy in urine samples tested by the government’s U.S. Anti-Doping Agency (“USADA”) after she was suspended for doping. The USADA retested the urine, and it led to a perjury indictment. United States v. Thomas, 2008 U.S. Dist. LEXIS 29406 (N.D. Cal. March 3, 2008):

As a threshold matter, defendant lacks so-called Fourth Amendment standing to contest the search of the urine samples. When defendant voluntarily submitted these samples to the USADA, the USADA’s protocols for drug testing, effective during the years 2001 and 2002, clearly stated that “[a]ll samples collected by USADA shall be the property of USADA.” See Finigan Decl. ex. B, P 10 & ex. C, P 10. Defendant argues that the urine samples provided in 2001 and 2002 were not actually the property of the USADA in 2006, when the testing occurred, because by then the protocol for drug testing, effective in August 2004, stated that “[a]ll samples collected by USADA shall be the property of USADA, but shall only be used for purposes outlined in this Protocol.” See Balogh Decl. ex. K, P 11. The Court does not agree with defendant that the August 2004 protocol governs urine samples submitted by defendant in 2001 and 2002. Under the protocols governing at that time, defendant’s urine samples became the property of the USADA once she handed them over. Subsequent amendments to the protocol did not change the ownership of the samples, such as by providing that the previously- submitted samples would revert to being the property of the athlete; indeed, subsequent amendments continued to state that all samples were the property of USADA. See Balogh Decl. ex. K, P 11. Because the USADA, not defendant, owned the urine samples, defendant has no standing to contest the prosecution’s search of the samples. See Pulliam, 405 F.3d at 785-86.

Alternatively, the Court finds that defendant had no objectively reasonable expectation of privacy in the urine samples that were tested by the prosecution. It is true, as a general rule, that athletes “possess strong privacy interests in both their drug test results and the actual specimens.” United States v. Comprehensive Drug Testing, 473 F.3d 915, 936 (9th Cir. 2006); see also United States v. Kincade, 379 F.3d 813, 835-37 (9th Cir. 2004). For purposes of the Fourth Amendment, however, the Court must examine the particular circumstances involved in the prosecution’s search to determine whether a defendant had an objectively reasonable expectation of privacy. See Smith, 442 U.S. at 740. Here, at the time defendant submitted the samples to USADA, she knew or should have known that the samples would become the property of USADA. She also knew that positive test results would be publicly disclosed following a proper hearing. See, e.g., Finigan Decl. ex. B, P 11. In addition, defendant signed forms stating that the information she provided during her urine sample submission was “not provided to USADA pursuant to a doctor/patient relationship” and was “not to be considered a confidential medical record.” See Finigan Decl. ex. A. None of these factors were present in the case of Comprehensive Drug Testing, 1 and they demonstrate that defendant lacked an objectively reasonable expectation of privacy in her urine samples under the circumstances of the USADA process and protocols. Smith, 442 U.S. at 740. Accordingly, the Court DENIES defendant’s motion to suppress evidence.

The Nassau County Strip Search Cases, previously on appeal at In re Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006), had previously been certified as a class action for liability. Here it was certified for damages as well as the easiest method of resolving the case. In re Nassau County Strip Search Cases, 2008 U.S. Dist. LEXIS 29083 (E.D. N.Y. March 27, 2008).*