Collaboration between public health and law enforcement: the constitutional challenge - Bioterrorism-Related Anthrax

Emerging Infectious Diseases, Oct, 2002 by Edward P. Richards

The United States Supreme Court and other courts that decide cases based on U.S. Constitutional law give great deference to state laws dealing with communicable disease control and sanitation, the key issues in bioterrorism. Historically, most state courts, construing their own state constitutions, have allowed public health officials the same latitude and discretion for disease control and sanitation as the U.S. Constitution. However, in the 1980s and 1990s, several states revised their communicable disease control laws or passed special AIDS laws that greatly restricted the authority of public health officials. Some of these laws were subsequently revised because they made it impossible to carry out tuberculosis control programs, but many might still interfere with a bioterrorism investigation. While most states allow food inspectors and other sanitary inspectors broad powers in theory, many state laws divide these powers among several agencies, making prompt and effective investigations almost impossible.

Bioterrorisrn Investigations

Certain public health functions, such as sexually transmitted diseases (STD) control, have always involved cooperation with the police. In such situations, public health officials usually do not pass on information to the police that would result in the arrest of infected persons for related crimes such as prostitution. Yet even STD clinics report potential child abuse and provide information to law enforcement to assist their investigations. Bioterrorism investigations require close cooperation between public health and law enforcement, which entails some blurring of their usual roles. Public health investigators will function as forensic experts if there is a prosecution, and law enforcement will try to prevent the further spread of disease by identifying and arresting the perpetrators.

Public health officials can respond quickly to an identified threat and can conduct investigations without the limitations of probable-cause warrants. Public health officials cannot use their powers to circumvent the criminal law protections provided by the Constitution (13). Information gained from public health investigations that do not meet criminal due process standards cannot be used in criminal prosecutions, and if such information is relied on by the police, it may contaminate their subsequent investigations and render all their evidence inadmissible.

Information from public health investigations may be used in criminal investigations if two criteria are met. First, the information must be collected and processed with a proper chain of custody so that it can be authenticated by an expert and admitted into evidence. Since careful handling is also critical to proper epidemiologic investigations, this standard of care should be maintained in all investigations. Second, the evidence must be obtained as part of a legitimate public health investigation. For example, food samples taken during an investigation of food poisoning at a picnic could be used in a subsequent criminal trial if the food was found to be intentionally contaminated. In contrast, food inspectors cannot use their authority to inspect a restaurant kitchen as a pretext for searching the lockers of restaurant employees. If evidence were found in an employee's locker, a judge would not be likely to allow it to be admitted in a criminal prosecution of the employee. To be admissible, a law-enforcement officer would need to obtain a search warrant from a judge before searching the lockers. This necessity could delay the search and might raise public health issues if it was feared that a toxic substance was leaking from the locker and endangering the public. Such conflicts between purposes would be much more severe for an agent such as smallpox, for which decontamination to protect the public might destroy all evidence at the site.