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Cops' Warrantless Breath Test After Shootings Don't Violate 4th Amend.

By Gabriella Khorasanee, JD on November 20, 2013 | Last updated on March 21, 2019

The Second Circuit had a case of déjà vu last week when it had to reiterate its legal findings regarding whether a New York City Police Department's ("NYPD") policy violated the Fourth Amendment rights of New York City police officers. Not surprisingly, the Second Circuit agreed with its prior ruling.

NYPD Interim Order 52

After a controversial officer-involved, fatal shooting of Sean Bell in 2006, the NYPD adopted Interim Order 52 ("IO-52") which required any on-duty, or off-duty, officer to submit to a breathalyzer test if he discharged his firearm, in New York City, and the discharge resulted in injury or death.

The union representing police officers sued the NYPD, the City of New York and the police commissioner alleging that IO-52 violated the officers' Fourth Amendment rights as a warrantless search. The plaintiffs moved for preliminary injunctive relief, and the district court denied the motion. On appeal, the Second Circuit noted that the plaintiffs had little chance of success because IO-52 fit under the "special needs" exception to the Fourth Amendment.

After discovery, plaintiff and defendants cross-moved for summary judgment. The district court relied on the Second Circuit's "special needs" analysis and granted defendants' motion for summary judgment. On appeal, the Second Circuit affirmed.

In finding that IO-52 met the "special needs" exception to the Fourth Amendment warrant requirement, the Second Circuit found that IO-52's primary purpose was not law enforcement, but rather personnel management and determining the officers' fitness for duty. In addition, IO-52's purpose was to instill "public confidence in the NYPD."

The court also noted that because IO-52 was narrowly defined, every officer was already put on notice that they must submit to a breathalyzer test -- getting a search warrant would not add any further notice, and was thus unnecessary. Finally, the court noted that IO-52 was reasonable because the NYPD's special needs outweighed the privacy interests of the officers.

Public Concern

This case is not perceived by the public in a vacuum, but though the lens of the much-publicized, very contentious, stop and frisk litigation. A cursory view of online comments shows that disgruntled New Yorkers note that NYPD officers don't have a problem stopping and frisking innocent people without a warrant, yet don't want to submit to a mere breathalyzer test after they've shot someone. That the NYPD supports IO-52 is in its favor, otherwise the department would definitely look like it was working against its citizens, not for them.

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