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Keeping the Poor in Their Place: A 'Special Need' Under the Fourth Amendment for Mandatory Drug Testing of Welfare Recipients?

32 Pages Posted: 10 Dec 2011 Last revised: 10 Mar 2012

Erick Tobias

affiliation not provided to SSRN

Date Written: December 7, 2011


In July 2011 Luis Lebron applied to the Florida Department of Children and Families for benefits under the federal Temporary Assistance for Needy Families (TANF) program. Lebron maintains that he has never used illegal drugs, and there is no reason to believe otherwise. Nonetheless, the state of Florida required that he submit to a drug test, paid for at his own expense, as a condition of his eligibility for TANF benefits under Florida’s recently enacted House Bill 353, Drug screening for applicants for Temporary Assistance for Needy Families (HB 353). Lebron refused to submit to the test because he believed that requiring him to pay for and take a drug test when there is no reason to suspect he does now or ever has used drugs violates his rights under the Fourth Amendment to keep his bodily contents private.

HB 353 requires any person seeking welfare benefits to pay for, to take at an approved location, and to pass a comprehensive drug test. Florida governor Rick Scott, saying that it was “unfair for Florida taxpayers to subsidize drug addiction,” signed HB 353 into law on May 31, 2011. The law took effect on July 1, 2011. Those who fail are ineligible for benefits for one year. This Note contends that HB 353, by broadly assuming that all people seeking welfare are predisposed to drug abuse, violates the Fourth Amendment’s prohibition on unreasonable searches and seizures. Valid searches under the Fourth Amendment must either be based upon individualized suspicion or mandate a “special needs” exception; Florida’s law satisfies neither requirement.

Part I of this Note discusses the federal TANF program, its transition to a state-controlled block-grant program in the 1990s, and Florida’s history of drug testing welfare recipients that led to the passage of HB 353. Part II establishes that urinalysis drug testing is a search under the Fourth Amendment. Part III looks to the historical roots of the Fourth Amendment and the foundational importance that Britain’s use of unreasonable searches played in bringing about the American revolution. Part IV traces the history of the Supreme Court’s “special needs” exception to the general requirement of individualized suspicion for reasonable searches. Finally, in Part V, the Note analyzes the Supreme Court’s jurisprudence and contends that the state of Florida cannot claim a “special need” for its policy of universal suspicionless searches.

Keywords: Florida, Fourth Amendment, Drug Testing, Welfare, TANF

Suggested Citation

Tobias, Erick, Keeping the Poor in Their Place: A 'Special Need' Under the Fourth Amendment for Mandatory Drug Testing of Welfare Recipients? (December 7, 2011). Available at SSRN: or

Erick Tobias (Contact Author)

affiliation not provided to SSRN ( email )

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