The AIDS epidemic has brought one of our most fundamental constitutional rights into sharp focus in California. The relationship between the Fourth Amendment right to be free from unreasonable searches and seizures and the government's ability to mandate AIDS testing was the topic of a recent California case, Love v. Superior Court. In a unanimous decision the California Court of Appeal upheld section 1202.6 of the California Penal Code [hereinafter § 1202.6] mandating AIDS testing of persons convicted of soliciting an act of prostitution. The court held that the California law does not violate the Fourth Amendment's prohibition against unreasonable search and seizures despite the absence of a warrant, probable cause, or even individualized suspicion. This case was decided against a background of recent United States Supreme Court decisions upholding warrantless government searches under the developing doctrine of "special needs." In limited circumstances, this doctrine provides an exception to the Fourth Amendment's warrant and probable cause requirements. This note will review the development of the "special needs" doctrine, analyze the Love court's application of the "special needs" test and demonstrate how the shortcomings of the court's application and analysis endangers our privacy rights under the Fourth Amendment.
Love v. Superior Court: Mandatory AIDS Testing and Prostitution, 22 Golden Gate U. L. Rev.