Superior Court of New Jersey, Law Division,
Civil Part, Passaic County.
Hannah ALLEN and Felipe Clemente, Plaintiffs,
v.
COUNTY OF PASSAIC and Edwin Englehardt, Sheriff of Passaic County, Defendants.
John TURI and Jess Monzo, Plaintiffs,
v.
COUNTY OF PASSAIC; Passaic County Board of Chosen Freeholders; Edwin Englehardt, Sheriff of Passaic County; Bernard Kerik, Deputy Warden of the Passaic County Jail, Sheriff's Department; Joseph A. Falcone, Prosecutor of Passaic County, Defendants.
Decided June 23, 1986.
SYNOPSIS
Sheriff's department officers sought to enjoin implementation and enforcement of directive that all personnel employed in that department undergo mandatory urinalysis testing for use of controlled dangerous substances. Following issuance of preliminary restraints, the Superior Court, Law Division, Passaic County, Mandak, A.J.S.C., held that: (1) probable cause requirement could be relaxed with respect to testing of those employees for noncriminal purposes, in light of reasonableness of that testing under balancing of interests, and appropriate standard to be applied was that of reasonable suspicion, and (2) testing of two employees pursuant to random search was improper but two other correctional officers could be tested, in light of other officers' statements which created reasonable suspicion of drug use.
Preliminary restraining order continued and modified in part and vacated in part.
West Headnotes
[1] Searches and Seizures 349 
78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Probable
cause requirement could be relaxed with respect to urinalysis testing, for
noncriminal purposes, of sheriff's department employees; that testing was reasonable under balancing
test, as government's interest in effective maintenance of penal and
correctional institutions was legitimate and extent of intrusion from search
was not unduly repugnant in that urine could be taken privately and under
conditions that avoided inconvenience and embarrassment to those employees.
[2] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Appropriate
standard to be applied in situations involving urinalysis testing of sheriff's
officers and correction officers is that of reasonable suspicion of drug
use; although that standard will develop
on case-by-case basis correction officials must at least be able to point to
specific objective facts supportive of testing and any rational inferences
drawn therefrom in light of their experience, and suspicion must be directed to
specify person.
[3] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Urinalysis
testing of sheriff's department employees pursuant to random search was
improper, but testing of two other correction officers was supported by
reasonable suspicion that they used controlled dangerous substances which was
created by other officers' typewritten statements.
**371 *354 Johnson, Johnson &
Murphy, Pompton Lakes, for plaintiffs Allen and Clemente (Jeffrey M. Kassover,
on brief.)
Kalman
Harris Geist, Paterson, for plaintiffs Turi and Monzo (Linda B. Sinofsky, on
brief).
**372 Raymond P. Vivino, Passaic Cty. Counsel,
Wayne, for defendant Passaic Cty. (Michael H. Glovin, Asst. County Counsel, New
Milford, on brief).
Joseph A.
Falcone, Passaic Cty. Pros., (Dante P. Mongiardo, Paterson, on brief).
Diamond,
Afflitto & Raimondi, Wayne, for defendant Englehardt (Joseph T. Afflitto,
on brief).Johnson, Johnson & Murphy, attorneys for plaintiffs Allen
and Clemente (Jeffrey M. Kassover, on the brief.)Kalman Harris Geist,
attorney for plaintiffs Turi and Monzo (Linda B. Sinofsky, on the
brief).Raymond P. Vivino, Passaic Cty. Counsel, attorney for defendant
Passaic Cty. (Michael H. Glovin, Assistant County Counsel, on the
brief).Joseph A. Falcone, Passaic Cty. Pros., (Dante P. Mongiardo,
on the brief).Diamond, Afflitto & Raimondi, attorneys for defendant
Englehardt (Joseph T. Afflitto, on the brief).
MANDAK,
A.J.S.C.
On January
6, 1986 Edwin Englehardt, the Sheriff of Passaic County, issued a directive
(Appendix A) requiring all personnel employed in the Sheriff's Department to
undergo mandatory urinalysis for the purpose of testing for the use of
controlled dangerous substances. Prior
to the institution of the present action, most of the employees in the
Sheriff's Department had already submitted to urinalysis pursuant to the
directive.
The
procedural history of the instant matters has been relatively uncomplicated but
still deserves mention. Both matters
were initiated by the filing of a verified complaint and the entry of an Order
to Show Cause providing for interim restraints temporarily enjoining the
Sheriff from implementing or enforcing the directive. On the return date of each Order to Show
Cause the court heard further argument and continued the *355 restraints
pending final determination of whether the restraints should be made permanent.
The four
plaintiffs in the two actions now consolidated are all officers employed in the
Sheriff's Department and all are assigned to duty at the Passaic County
Jail. The pleadings describe the job
title for plaintiffs Turi and Monzo to be correction officers. No specific job title is provided for
plaintiffs Allen and Clemente, nor is the court made aware of their assigned
duties. Unfortunately, no party offered
to present any testimony or produce any evidence at the hearing other than the
certifications of parties and therefore the facts are not well developed.
All
plaintiffs fall under the umbrella of the directive and consequently are
required to submit to the urinalysis or, as the directive provides, be subject
to “disciplinary action and/or dismissal.”
If the tests are taken and a positive result is obtained, the officers
are provided with three options, namely:
(1) resign; (2) agree to
participate in a program that would correct any drug abuse problem; or (3) failing the acceptance of options (1)
or (2) the information from the drug test would be turned over to the Passaic
County Prosecutor. These options are
not part of the directive, nor are they incorporated in any official document
presented to the court or promulgated to the employees. Rather the options originate from a
certification of Sheriff Englehardt wherein he recites how he handled those
situations where urinalysis proved positive. FN1
FN1. Par. 16
of Sheriff Englehardt's certification.
A brief
recount of predirective background information will be of benefit. In the past there have been instances where
drugs and other contraband were found in the possession of inmates at the
Passaic County Jail. Although security
measures were apparently put in place to minimize, if not eliminate, the
delivery of drugs to inmates, it was determined in the spring of 1985 that the
problem still persisted. The problem *356
appeared twofold. Information was
received from various sources indicating that correction officers were involved
in providing drugs to inmates and that a “small” number of correction officers
were drug users. An undercover
investigator was thereafter assigned to the jail and with the assistance of
agents from the Federal Drug Enforcement Agency one correction officer was
arrested and charged with distribution and use of cocaine, to which he
eventually pleaded guilty.
The
investigation continued by local staff personnel and led to the detection of
other correction officers involved in the possession and use of controlled
dangerous substances, among them the plaintiffs Monzo and Turi. As many as ten officers are named in the
statements of witnesses provided to the court as being so involved. **373 Possessed with this information
the Passaic County Sheriff issued the directive in question to insure that
correction officers were not using controlled dangerous substances.
The
plaintiffs challenge the directive on a number of grounds contending that the
implementation and enforcement of the directive would violate the search and
seizure provisions of Article
I, par. 7 of the New Jersey Constitution and the
Fourth Amendment of the United States Constitution. More pointedly, the plaintiffs argue that
the compelled submission of a urine sample to determine the existence or
non-existence of controlled dangerous substances constitutes an impermissible
search and seizure and is intrusive of the right to privacy and violative of
the safeguards provided to citizens under the United States and New Jersey
Constitutions. Moreover, it is urged
that the New Jersey Constitution has been interpreted by the New Jersey Supreme
Court to provide even greater protection for individual rights than provided by
the Federal Constitution. Plaintiffs
contend further that the blanket nature of the search is per se
unreasonable, and that equally unreasonable is the failure of the directive to
provide standards for its implementation such as the type of tests to be used,
the control and disposition of the *357 test results and the effect of
the test results on employment status.
The Fourth
Amendment to the United States Constitution reads as follows:
Search and
seizures
The right
of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things
to be seized.
Article
I, par. 7 of the New Jersey Constitution is
almost identical, the difference being the use in two instances of alternative
words that are not relevant to the issues before this Court. FN2 The consistently
recognized purpose of these constitutional search and seizure provisions is to
insure and safeguard the privacy and security of individuals against arbitrary
invasion of governmental officials. Camara
v. Municipal Court,
387 U.S.
523, 87 S.Ct.
1727, 18 L.Ed.2d
930 (1967).
FN2. The Court
in State
v. Novembrino,
200 N.J.Super.
229, 240, 491 A.2d
37 (App.Div.1985), described a structural
difference between the Fourth Amendment and the N.J.
Const. (1947), Art. I, par. 7 noting that while
the Fourth Amendment is a part of the general grant of essential powers to the
Federal Government, Article
I, par. 7 of the New Jersey Constitution serves
to limit sovereign power and represents an explicit affirmation of fundamental
rights of privacy.
The
threshold issue of whether urine testing is a search and seizure within the
perimeters of these constitutional provisions is not in dispute. The defendants acknowledge that drug testing
by means of urinalysis is considered a “search” under the aforesaid
constitutional provisions and that compelled submission of a urine sample to
determine the presence of a controlled dangerous substance constitutes a search
and seizure. Schmerber
v. California,
384 U.S.
757, 767, 86 S.Ct.
1826, 1834, 16 L.Ed.2d
908, 918 (1966);
Allen
v. City of Marietta,
601 F.Supp.
482, 488-489 (N.D.Ga.1985); Storms
v. Coughlin,
600 F.Supp.
1214, 1217-1218 (S.D.N.Y.1984); *358Division
241 Amalgamated Transit Union (AFL-CIO) v. Suscy,
538 F.2d 1264 (7th Cir.1976), cert. den. 429
U.S.
1029, 97 S.Ct.
653, 50 L.Ed.2d
632 (1976);
Ewing
v. State,
160 Ind.App.
138, 148, 310 N.E.2d
571, 577-578 (Ind.App.1978).
Nor is
there any dispute that the Fourth Amendment's prohibition against unreasonable
search and seizures applies to searches conducted by public officials. New
Jersey v. T.L.O.,
469 U.S.
325, 333, 105 S.Ct.
733, 739-740, 83 L.Ed.2d
720, 729 (1985).
It is well established that searches by such public or governmental
officials, including inspections for administrative purposes, must satisfy
constitutional reasonable standards. **374Camara
v. Municipal Court. See also, Dome
Realty v. City of Paterson,
83 N.J.
212, 239-241, 416 A.2d
334 (1980).
The U.S.
Constitution and the New Jersey Constitution provide that all persons shall be
free from unreasonable searches and seizures. [Emphasis supplied.] U.S.
Const.,
Amend. IV, N.J.
Const.
(1947), Art. I, par. 7. It arguably follows that if the search and
seizure is not unreasonable, then these constitutional provisions do not apply
and the constitutional protections afforded by them are not available. Thus if the actions by the Sheriff under the
facts and circumstances of this case are found to be reasonable, the mandated
security of privacy made available by constitutional provisions and the
necessity for probable cause and issuance of a warrant are no longer
present. Carroll
v. United States,
267 U.S.
132, 147, 45 S.Ct.
280, 283, 69 L.Ed.
543, 549 (1925); State
v. Slockbower,
79 N.J.
1, 22-23, 397 A.2d
1050 (1979).
This
rationale directed to the question of reasonableness draws opposition from
those who espouse a correlation between “reasonableness” and the procurement of
a warrant based on probable cause. The
emphasis in the latter situation is placed on the absolute need for a warrant
based on probable cause, with the result necessitating a conclusion that warrantless
searches are per se unreasonable.
Katz
v. United States,
389 U.S.
347, 357, 88 S.Ct.
507, 514, 19 L.Ed.2d
576, 585 (1967);
*359Welsh
v. Wisconsin,
466 U.S.
740, 749, 104 S.Ct.
2091, 2097, 80 L.Ed.2d 732, 742-743
(1984); Mincey
v. Arizona,
437 U.S.
385, 390, 98 S.Ct.
2408, 2412, 57 L.Ed.2d
290, 298 (1978);
Terry
v. Ohio,
392 U.S.
1, 20, 88 S.Ct.
1868, 1879, 20 L.Ed.2d
889, 905 (1968).
The distinction, however, is quite simple. Under the “reasonableness” theory, the court
must first react to the issue of reasonableness to determine the need for
probable cause and concomitantly the warrant.
Under the “probable cause” theory the issue of reasonableness is never
independently determined but rather based solely on the existence or
nonexistence of a warrant, the underlying principle requiring the existence of
both probable cause and a warrant to establish reasonableness, or as earlier
conversely stated “warrantless searches are per se unreasonable.”
In
weighing these legal theories, consideration must first be given to the context
in which the terms reasonable and unreasonable are to be defined and
applied. The issue then to be decided
is the interpretation and application of the word “unreasonable” in its
constitutional context to the facts and circumstances surrounding the issuance
and enforcement of the Sheriff's directive.
The plaintiffs urge that the polestar of this question is found in State
v. Novembrino,
200 N.J.Super.
229, 491 A.2d
37 (App.Div.1985), wherein the Appellate Division
held that “a nonconsensual search for evidence of a crime which is conducted
without probable cause is unreasonable.”
Id.
at 238, 491 A.2d
37. The
argument is that all searches not based on probable cause are unreasonable no
matter what the supportive circumstances might be. Under this analysis the condition precedent
of probable cause is a primary determinative factor as to reasonableness, and a
lack of probable cause alone justifies characterizing the search as
unreasonable. It necessarily follows
from such a theory that every search and seizure not founded on probable cause
is constitutionally prohibited.
An
alternate theory, and the one urged by the defendants is to examine the
question of constitutional permissibility based on the application of
reasonableness from the standpoint of balancing the interests of the individual
against governmental *360 interests.
Under this theory, the court is required to balance the need for the
search, i.e., the public interest of maintaining the safety, order and security
of whatever governmental responsibility is involved, against the invasion of
privacy or the intrusion that the search entails. Camara v. Municipal Court. It necessarily follows from this theory that
if the search is conducted without a search warrant or on the basis of some
standard not reaching the level of probable cause, such conduct, in and of
itself, does not render such a search unreasonable.
**375 Giving consideration to these alternative
positions, I am satisfied that the plaintiffs' reliance on State v.
Novembrino, as supportive of a mandatory requirement of probable cause in all
situations involving search and seizures is misplaced. In Novembrino it was suspected that
the defendant was in possession of certain controlled dangerous substances with
intent to distribute and the search and seizure were performed exclusively to
confirm that suspicion and to obtain evidence of a crime. The search and seizure were therefore
performed strictly in a criminal context.
Although there is evidence in the instant case that the test results of
some correction officers were turned over to the Passaic County Prosecutor, the
primary purpose of the administrative directive and urinalysis was to insure
that Sheriff's officers were not, from an employment performance standpoint,
involved in the use or abuse of controlled dangerous substances. Although the use of the threat of informing
the County Prosecutor as an enforcement tool may have some impact on the question
of reasonableness, it does not rise to the level of the criminal episodes
enuciated in Novembrino. The New
Jersey Supreme Court in the matter
of In
re Martin,
90 N.J.
295, 447 A.2d
1290 (1982), noted this distinction:
In the
criminal context, a warrant may be issued only on a probable cause showing that
would lead a reasonable person to believe that a crime has been committed and
that evidence of that crime will be found in a particular place. Henry
v. United States,
361 U.S.
98, 102, 80 S.Ct.
168, 171, 4 L.Ed.2d
134, 138 (1959).
However, the probable cause showing necessary to obtain an
administrative warrant is less stringent.
Searches pursuant to administrative warrants are conducted to enforce regulatory
statutes, rather than to investigate criminal *361 activity. Experience has demonstrated the utility of
periodic inspections in promoting compliance with regulatory statutes. See, e.g., Camara
v. Municipal Court,
387 U.S.
at 538, 87 S.Ct.
at 1735, 18 L.Ed.2d
at 940.
In such cases, probable cause in the criminal sense is not
constitutionally required. [90
N.J.
at 315, 447 A.2d
1290].
See
also, State
v. Young,
87 N.J.
132, 142, n. 4, 432 A.2d
874 (1981).
Consequently, in certain instances when the search is motivated by
reasons unrelated to criminality and is conducted for reasons other than to
procure evidence of a crime, the requirement of probable cause may be
reduced. Such an exception to the
probable cause requirement has been recognized where the search is related to
highly regulated or closely supervised businesses. In re Martin. For example, warrantless searches have been
judicially sustained in the absence of probable cause in cases involving the
liquor industry, State
v. Zurawski,
89 N.J.Super.
488, 215 A.2d
564 (App.Div.1965), aff'd o.b. 47
N.J.
160, 219 A.2d
614 (1966), the drug and pharmaceutical industry,
State
v. Rednor,
203 N.J.Super.
503, 497 A.2d
544 (App.Div.1985), the horse racing industry, State
v. Dolce,
178 N.J.Super.
275, 428 A.2d
947 (App.Div.1981) and casino gambling, In re
Martin.
The New Jersey
Supreme Court recently reviewed Fourth Amendment rights in a school setting,
one not normally associated with or parallel to a highly regulated or closely
supervised business, but one nonetheless involving a high degree of supervision
and administrative control. State
in re T.L.O.,
94 N.J.
331, 463 A.2d
934 (1983). FN3 In T.L.O.,
the New Jersey Supreme Court considered the exclusionary rule in the context of
the warrantless search made of a student's purse. The Court noted the legitimate charge to
school officials to maintain order, safety and discipline and weighed that
charge against the competing demands of the constitutional right of
privacy. Referring to *362
specific statutory authority conferred on school officials, the Court
concluded:
FN3. The
decision of the New Jersey Supreme Court was reversed by the United States
Supreme Court in New
Jersey v. T.L.O.,
469 U.S.
325, 105 S.Ct.
733, 83 L.Ed.2d
720 (1985).
The focus of this reversal was not on the use of any reasonableness
standard (see footnote 4, infra ), but rather on its application to the
facts of the case.
**376 Taken together, these statutes yield the
proposition that school officials, within the school setting, have the
authority to conduct reasonable searches necessary to maintain safety, order
and discipline within the schools. [94
N.J.
at 343, 463 A.2d
934].
Referring
to Moore
v. Student Affairs Committee of Troy State Univ.,
284 F.Supp.
725 (M.D.Ala.1968), as comporting with “prevailing
decisional law” on the subject of searches in a school setting and more
specifically a college dormitory search, the Supreme Court in T.L.O.
observed that
The
validity of the regulation authorizing search of dormitories thus does not
depend on whether a student ‘waives' his right to Fourth Amendment protection
or on whether he has ‘contracted’ it away;
rather, its validity is determined by whether the regulation is a
reasonable exercise of the (school's) supervisory duty. In other words, if the regulation-or, in the
absence of a regulation, the action of the (school) authorities-is necessary in
aid of the basic responsibility of the institution regarding discipline and the
maintenance of an ‘educational atmosphere,’ then it will be presumed facially
reasonable despite the fact that it may infringe to some extent on the outer
bounds of the Fourth Amendment rights of students. [94
N.J.
at 343, 463 A.2d
934;
citation omitted.]
Even more
recently Odenheim
v. Carlstadt-East Rutherford Regional School District,
211 N.J.Super.
54, 510 A.2d
709 (ch. 1985), involving a Board of Education
policy requiring urinalysis of students as part of an annual physical, the
court, while finding the policy unconstitutional as violative of the students'
expectation of privacy, arrived at its holding by application of the balancing
test (to determine reasonableness) as established in T.L.O.,
94 N.J.
at 344, 463 A.2d
934, and as supported by the United States
Supreme Court in its appellate review, T.L.O.,
469 U.S.
325, 105 S.Ct.
733, 83 L.Ed.2d
720 (1985). FN4
FN4. Justice
White, in delivering the majority opinion for the United States Supreme Court,
observed:
that the “reasonable grounds” standard applied by the New
Jersey Supreme Court in its consideration of this question is not substantially
different from the standard that we have adopted today. [469
U.S.
at 343, 105 S.Ct.
at 745, 83 L.Ed.2d
at 736].
The
vocation encompassing the supervision and rehabilitation of criminal defendants
and prisoners may not fit precisely into *363 the mold of an industry “subject
to persuasive or long standing governmental regulation”, State
v. Dolce,
178 N.J.Super.
at 283, 428 A.2d
947, but its function is similarly affected by a
substantial public interest that demands a high degree of regulation and
scrutiny to insure its proper and effective fullfillment. The function here is not an example of
governmental regulation, but rather one of governmental response, and as such
it surely can be likened to, if not rise to, a higher level of public need and
concern than the so-called regulated industries. It is not surprising then that New Jersey
courts have recognized this need and while balancing such need with the
diminished expectation of privacy by those who are in the “corrections” system
because of the conviction of a crime or offense, have concluded once again that
constitutional rights may give way when reasonableness prevails. Thus, in State
v. Nunziato,
178 N.J.Super.
216, 428 A.2d
564 (Law Div.1981), the court in applying a
reasonableness approach concluded that a prisoner on work release has a very
limited expectation of privacy while serving his sentence and a warrantless
search of his garage was reasonable and not violative of the prisoner's
constitutional rights. In State
v. Bollinger,
169 N.J.Super.
553, 405 A.2d
432 (Law Div.1979), the court was required to
consider whether the fruits of a warrantless search of a probationer's person
and property may be used for a new indictable offense. Relying heavily on the condition of
probation providing for such searches, the court concluded that a warrantless
search of probationer's home and car without probable cause was not
impermissible because “(a) probationer does not enjoy the full benefit of all
the rights guaranteed under the constitution.”**377 Id.
at 562, 405 A.2d
432. The
court added as a limiting factor that such searches should be conducted only by
probation officers and at such times and in such manner that are
reasonable. FN5 Both Nunziato
and Bollinger refer to *364Latta
v. Fitzharris, 521 F.2d
246 (9th Cir.1975), cert. den. 423
U.S.
897, 96 S.Ct.
200, 46 L.Ed.2d
130 (1975)
wherein the Court of Appeals for the 9th Circuit stated:
FN5. In
considering the propriety of the condition of probation providing for searches
and seizures, the court in Bollinger cited United
States v. Gordon,
540 F.2d
452 (9th Cir.1976) and United
States v. Jeffers,
573 F.2d
1074 (9th Cir.1978), wherein the Federal courts
held the conditions of probation relative to searches and seizures to be
overbroad, but nevertheless upheld the search finding the conditions narrowly
construed and properly exercised.
A California
Parolee is in a different position from that of the ordinary citizen. He is still serving his sentence. He remains under ... the immediate control
of his parole officer. His parole is
subject to revocation for reasons that would not permit the arrest or
incarceration of other persons.
....
We think
that one of these restrictions, necessary to the effective operation of the
parole system, is that the parolee and his home are subject to search by the
parole officer when the officer reasonably believes that such search is
necessary in the performance of his duties.
The parole officer ought to know more about the parolee than anyone else
but his family. He is therefore in a
better position than anyone else to decide whether a search is necessary. His decision may be based upon specific
facts, though they be less than sufficient to sustain a finding probable
cause. [521
F.2d
at 249-250.]
Although
the permissible scope of searches of those persons involved as defendants in
the criminal justice system is not altogether clear, the majority of cases in
both the State and Federal courts support such searches when the circumstances
surrounding the search are reasonably related to the purposes of probation or
parole and the search is conducted in a reasonable manner. United States v. Consuelo-Gonzalez,
521 F.2d
259 (9th Cir.1975); People
v. Mason,
5 Cal.3d
759, 97 Cal.Rptr.
636, 488 P.2d
630 (Sup.Ct.1971), cert. den. 405
U.S.
1016, 92 S.Ct.
1289, 31 L.Ed.2d
478 (1972);
People
v. Fortunato,
50 A.D.2d
38, 376 N.Y.S.2d
723 (N.Y.App.Div.1975); State
v. Fisher,
32 Or.App.
465, 574 P.2d
354 (Or.Ct.App.1978). But see, United
States v. Bradley,
571 F.2d
787 (4th Cir.1978), and United
States v. Workmen,
585 F.2d
1205 (4th Cir.1978), which reject the rationale
of Latta v. Fitzharris.
There is a
line of cases involving road blocks and vehicle check points that present yet
another departure from probable cause requirements. These cases have developed from the United
States Supreme Court decision in *365Delaware
v. Prouse, 440 U.S.
648, 99 S.Ct.
1391, 59 L.Ed.2d
660 (1979), holding that random investigatory
stops of motor vehicles made without probable cause or reasonable suspicion
were unconstitutional because such stops were subject to “the unbridled
discretion of law enforcement officials.”
440
U.S.
at 661, 99 S.Ct.
at 1400.
Concerned with the potential abuse of that discretion, Prouse
requires that such regulatory inspection be in accordance with reasonably
established “neutral criteria.” Id.
at 662, 99 S.Ct.
at 1400.
While noting the infirmity of “random stops” and realizing the existing
broad potential to satisfy a requirement of “neutral criteria” the United
States Supreme Court extended an invitation to the several states to arrange
for acceptable alternative methods and procedures for road blocks or vehicle
check points. The first reported case
in New Jersey after Prouse is State
v. Coccomo,
177 N.J.Super.
575, 427 A.2d
131 (Law Div.1980), wherein the court considered
a written police department policy of stopping every fifth vehicle during
certain established hours. The issue
presented was whether the practice was reasonable, balancing the State's
interest in promoting highway safety against the motorist's interest in his or
her expectation of privacy. Upon an
examination of all the facts and circumstances of the policy and its
implementation, the court concluded **378 that neither the Fourth
Amendment of the United States Constitution nor Article
I, par. 7 of the New Jersey Constitution was
offended by the procedures employed because the police were following specified
defined standards, the system was completely objective, the criteria employed
were neutral and more particularly, the evil of unbridled discretion prohibited
by Prouse was nonexistent.
The
constitutionality of road blocks more recently arose in State
v. Kirk,
202 N.J.Super.
28, 493 A.2d
1271 (App.Div.1985). Here it was determined that the police
procedures employed were not distinguishable from the random investigatory stop
condemned in Prouse, the court stating that the:
temporary
road block was set up by the exercise of absolute, unbridled discretion of the
officers in the field. There was no
command or supervisory *366 participation involved. There were no limits or directions of any
kind on the “when, where and how” of this road block, and no hint as to any
particular “why.” There was no
demonstration of need or efficacy at this particular time and place. [202
N.J.Super.
at 37, 493 A.2d
1271].
Federal
courts considering Fourth Amendment requirements have also struggled to
accommodate the individual interest of privacy and the sometimes competing
interest of government and society and have arrived at varied results. The substantial majority however have
concluded that the probable cause requirement is not inviolate and there are
times and circumstances where the interest of government and society is so
great, the expectation of privacy diminished, and the intrusion so minimal,
that some deviation from the sanctity of probable cause is justified. Thus the majority opinion of the United
States Supreme Court in New Jersey v. T.L.O., observed that:
“probable
cause” is not an irreducible requirement of a valid search. The fundamental command of the Fourth
Amendment is that searches and seizures be reasonable, and although “both the
concept of probable cause and the requirement of a warrant bear on the
reasonableness of a search, ... in certain limited circumstances neither is
required.” [469
U.S.
at 340, 105 S.Ct.
at 743, 83 L.Ed.2d
at 734.]
Other
federal decisions have recognized the legality of searches and seizures under
circumstances not rising to the level of probable cause. See Terry
v. Ohio,
392 U.S.
1, 88 S.Ct.
1868, 20 L.Ed.2d
889 (1968) (stop and frisk searches); United
States v. Martinez-Fuerte,
428 U.S.
543, 96 S.Ct.
3074, 49 L.Ed.2d
1116 (1979) (stop and search procedures to
prevent entry of illegal aliens); United
States v. Biswell,
406 U.S.
311, 92 S.Ct.
1593, 32 L.Ed.2d
87 (1972) (inspection of businesses dealing in
firearms).
The litany
of these cases establishes quite convincingly that the plaintiffs' argument
that all searches are unreasonable unless supported by probable cause
must be rejected. So too must the
plaintiffs' contention that State v. Novembrino, as supportive of a
continuing trend by New Jersey courts to insist on a more demanding standard
under Article
I, par. 7 of the New Jersey Constitution as it
pertains to search and seizures, should be applied to the circumstances
involved here. The *367 court in
Novembrino did indeed demand a higher standard by rejecting the good
faith exception to the exclusionary rule as adopted in United
States v. Leon,
468 U.S.
897, 104 S.Ct.
3405, 82 L.Ed.2d
677 (1984).
Although there has developed over the past several years a tendency on
the part of state courts around the country to cite state constitutions as a
means of expanding the protection of individual rights, a trend labeled “judicial
federalism”, FN6
such is not the case in the instant matter because Novembrino is simply
not applicable nor controlling. Rather
the Novembrino court, in a purely criminal setting, reacted to the well
established principle requiring**379
“probable cause to conduct a nonconsensual search for evidence of a
crime, whether with or without a warrant.”
Novembrino,
200 N.J.Super.
at 237, 491 A.2d
37. The
court acknowledged exceptions to the indispensable requirement of probable
cause but observed that under N.J.
Const. (1947), Art. I, par. 7 “no exception to
the requirement for probable cause before conducting a nonconsensual search for
evidence of a crime ... ha[d] yet been recognized.” Novembrino,
200 N.J.Super.
at 238, 491 A.2d
37;
[emphasis supplied].
FN6. State
Courts Surpass U.S. Bench in Cases on Rights of Individuals, N.Y.Times, May
4, 1986, at 1.
However,
where evidence of a crime is not the purpose of the search and when the
character of the search falls within one of the limited but clearly delineated
classes of cases where a substantial government need is found to exist, the
intrusion of privacy is kept at a minimum, and the circumstances of the search
are reasonable, New Jersey courts have not been reluctant to dispense with the
probable cause requirement, albeit with caution, and pursue a course of
diminished justification. When applied
to the facts in the instant matter, these considerations are significant
because there is no reported New Jersey case dealing with urinalysis testing of
employees. Therefore an examination of
the decisions of the Federal courts and the courts of other states is necessary
for guidance. In doing so, *368
this court need not be constrained to adopt a higher standard than that
presented in other jurisdictions nor is this court inclined to diminish the
constitutional safeguards already firmly established. The task rather is to view the decisions of
other jurisdictions in the light of New Jersey case law and arrive at a final
determination that is found consistent with the thinking of our courts in
circumstances possibly not entirely similar, but sufficiently analogous to
justify comparisons.
The
earlier review of the “reasonable” and “probable cause” theories of
interpretation of constitutional provisions concerning search and seizure,
although at first blush seemingly divergent, may not in reality be at
completely opposite extremes. This is
because those courts which have consistently attempted to conserve the need for
probable cause have nonetheless acknowledged that there does exist a carefully
defined class of cases where the need for probable cause and a warrant may be
excused. As already noted, one of the
classes so acknowledged as an exception to the probable cause and warrant
requirement is the circumstance where legitimate government purposes are
persuasive enough to create a need that outweighs an inoffensive violation of
privacy.
The more
persuasive case law holds that the true test must be that of reasonableness
determined by balancing the intrusiveness of the search on the one hand against
promoting the legitimate interests of government and society on the other. Illinois
v. Lafayette,
462 U.S.
640, 644, 103 S.Ct.
2605, 2608, 77 L.Ed.2d
65, 70 (1983);
United
States v. Villamonte-Marquez,
462 U.S.
579, 103 S.Ct.
2573, 77 L.Ed.2d
22 (1983);
Delaware
v. Prouse,
440 U.S.
648, 654, 99 S.Ct.
1391, 1396, 59 L.Ed.2d
660, 667-668 (1979). In Bell
v. Wolfish,
441 U.S.
520, 559, 99 S.Ct.
1861, 1884, 60 L.Ed.2d
447, 481 (1979), the Supreme Court provides
guidelines as to the test of reasonableness:
The test
of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application.
In each case it requires a balancing of the need for the particular
search against the invasion of personal rights that the search entails. Courts must consider the scope of the
particular *369 intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is conducted. [Id.;
citations omitted].
Applying
these criteria to the facts of the instant matter, the issues that must first
be addressed are whether the probable cause requirement may be relaxed because
of the reasonableness standard, and if so, what safeguards shall apply to
prevent unnecessary and improper invasion of privacy.
In
considering these issues, it is important first to examine the purpose of the
urinalysis in question. Information
came to the attention of the Sheriff indicating that correction officers were
involved in **380 providing inmates with drugs.
FN7 Notwithstanding additional security measures,
the influx of drugs to prison inmates still persisted, FN8 and further information was received evidencing both use
and distribution of drugs among certain correction officers. FN9 In this factual
framework, the Sheriff in par. 14 of his certification asserts the following:
FN7. Par. 6 of
Sheriff Englehardt's certification.
FN8. Par. 11
of Sheriff Englehardt's certification.
FN9. Par. 12
of Sheriff Englehardt's certification.
The
purpose of requiring the urine analysis by Corrections Officers and other
employees of the Sheriff's Department was not and is not for the purpose of
gathering evidence for prosecution. In
fact, the purpose was to gain some assurance for my Department, and for the
public, that members of the Sheriff's Department, and particularly Corrections
Officers, were not involved in the use of controlled dangerous substances. The purpose in providing for future testing
was and is to continue to assure that employees charged with the responsibility
of protecting the safety and security of the inmates, each other and the public
were not involved in drug use, which in addition to being illegal, might also
impair their ability to discharge their duties.
Although one
of the alternatives provided an employee in the Sheriff's Department after a
positive test result was submission of the results to the Passaic County
Prosecutor if the employee refused to resign or undergo a rehabilitation
program, this court is satisfied that such an alternative was *370
neither desired nor of practical criminal consequence. FN10 This alternative was rather a means of
persuasion, albeit an unfair and unnecessary one, to force the employee to take
one of the other two options-either resign or enter a rehabilitation
program. Such a coercive tool is
characterized as unnecessary since, if the directive is found to be
constitutionally sound, and the employee fails to comply with any of its
provisions, the penalty of “disciplinary action or dismissal” would seem
equally persuasive. Notwithstanding
this reference to potential criminal prosecution, the primary intention was to
conduct the tests within a pure employment context, and not as part of any
criminal investigation.
FN10. If the
results of the testing were in fact used for criminal prosecution, then the
State may well be subjected to the requirement to establish probable cause and
be burdened with the need to overcome the ramifications of a warrantless
search. Moreover, it is arguable that
the State would not pursue such criminal prosecution since the evidence would
be meager and the Prosecutor is cloaked with discretion in the enforcement of
criminal laws. See State
v. Winne,
12 N.J.
152, 96 A.2d
63 (1953).
A similar
factual situation involving employment existed in Allen
v. City of Marietta,
601 F.Supp.
482 (N.D.Ga.1985), wherein an investigation
disclosed drug usage among employees of a utility company, all of whom worked
on high voltage electric wires. The
employees were advised that their jobs would be terminated unless they
underwent urinalysis tests. After
positive results, the employees were fired.
The employees thereafter filed suit under 42
U.S.C.A.
§ 1983 for
the deprivation of rights secured by the Fourth and Fourteenth Amendments to
the United States Constitution. Placing
emphasis on the “purely employment” purpose of the search the court concluded
that:
[T]he City
has a right to make warrantless searches of its employees for the purpose of
determining whether they are using or abusing drugs which would affect their
ability to perform safely their work with hazardous materials. The court finds, therefore, that the
urinalysis tests administered in this case were not unreasonable searches in
violation of the fourth amendment. [601
F.Supp.
at 491.]
In a
correctional institutional setting, the court, in McDonell
v. Hunter,
612F.Supp.
1122 (D.C.Iowa 1985), considered a 42
U.S.C.A.
§ 1983
class action challenging a department policy subjecting employees to searches
including urinalysis and blood tests.
Here the court did not rely on the purely employment purposes of the
search **381 but rather directed its attention to the broader issue of
reasonableness giving due consideration not only to the purposes of the search
but the place of employment as well.
Penal institution security, therefore, was a paramount
consideration. Finding that the facts
supportive of the demand for urinalysis failed to rise to the level of “reasonable
suspicion,” the court struck down the testing as constitutionally impermissible
while at the same time observing that “correctional facility security
considerations reduce the scope of reasonable expectations of privacy that one normally
holds and makes reasonable some intrusions that would not be reasonable outside
the facility.” McDonell,
612 F.Supp.
at 1128.
The McDonell court further observed that:
[T]here is
no doubt that defendants can constitutionally conduct such ‘regulatory’
searches of persons entering Iowa's correctional facilities, including
employees, as are reasonably necessary to serve security considerations, but
the searches must be guided by some appropriate standards, and must be no more
intrusive than is reasonably necessary.
[Id.
at 1128-1129;
footnote omitted.]
In Sec.
& Law Enforcement Emp., Dist. C.82 v. Carey,
737 F.2d
187 (2d Cir.1984) the United States Court of
Appeals, Second Circuit, considered in depth the reasonable test theory as it
should be applied to correction officers.
In Carey, the court had an opportunity to examine the New York
State Department of Correction Services search procedures involving strip
searches, visual body cavity searches and random searches in a variety of
factual circumstances. Following the
criteria for unreasonableness as stated in Bell v. Wolfish, the court
pursued a two-prong examination, the first a consideration of “the intrusion on
the individuals's fourth amendment interests requir[ing] that the intrusion be
viewed in the context of the individual's legitimate expectation of privacy.” 737
F.2d
at 201.
Reference is then made to the test for determining when an expectation
of privacy is legitimate, citing Katz
v. United States,
389 U.S.
347, 361, 88 S.Ct.
507, 516, 19 L.Ed.2d
576, 588 (1967).
(Harlan, J., concurring):
There is a
twofold requirement, first that a person have exhibited an actual (subjective)
expectation of privacy and, second, that the expectation be one that society is
prepared to recognize as “reasonable.” [Id.]
The second
prong of the reasonableness test as described in Carey requires an
examination of the justification asserted for the searches in promoting
legitimate government interests. 737
F.2d
at 202.
Recognizing that correctional facilities are unique places “fraught with
serious security dangers,” Bell
v. Wolfish,
441 U.S.
at 559, 99 S.Ct.
at 1884, 60 L.Ed.2d
at 481, and that it is not uncommon for inmates
to obtain drugs, weapons, and other contraband, the court in Carey
observes that “security problems faced by prison administrators are difficult,
complex and challenging,” and that there is a legitimate penological imperative
“of maintaining prison security and preserving internal order and discipline.” 737
F.2d
at 203.
Thus characterizing the reasonableness test in a correctional facility
the court concludes:
After
applying the reasonableness test, and thus weighing the legitimate governmental
interest in maintaining correctional facility security against the invasion of
privacy in light of correction officers' diminished expectations of privacy, we
conclude that strip searches of correction officers, under certain
circumstances, may be reasonable in the absence of warrants issued on the basis
of probable cause. Our task is to
determine what constitutes proper circumstances. In making this determination, the
reasonableness test “requires, at a minimum, that the facts upon which an
intrusion is based be capable of measurement against ‘an objective standard,’
whether this be probable cause or a less stringent test.” Prouse,
440 U.S.
at 654, 99 S.Ct.
at 1396 (footnotes omitted). In light of this requirement, it is our view
that a reasonable suspicion standard should govern strip searches of correction
officers working in correctional facilities.
[Id. at 203-204].
**382 A number of other federal and state
courts have considered the constitutionality of searches in the environment of
a correctional institution. In Hunter
v. Auger,
672 F.2d
668 (8th Cir.1982), the Eighth Circuit struck
down a policy of strip searches of prison visitors based solely on an
uncorroborated anonymous tip, but established a legal standard of reasonable
suspicion to govern the propriety of such searches. In Armstrong
v. New York State Comm'r of Correction,
545 F.Supp.
728 (N.D.N.Y.1982), a civil rights action brought
by a correction officer who had been subjected to a body cavity search at
prison, the Federal District Court noted that such searches were “particularly
degrading and embarrassing,” Id.
at 731, but nonetheless followed the balancing
test suggesting that such searches could be justified “by a showing that
warrantless strip searches are necessary in order to maintain institutional
security,” Id., or alternatively by a showing of “articulable facts as
to why (the defendants) believed that the plaintiff might have had contraband
concealed in his person.” Id. Finally, in City
of Palm Bay v. Bauman,
475 So.2d
1322 (Fla.App. 5th Dist.1985), the court reviewed
the determination of a lower court permanently enjoining the City of Palm Bay
from requiring police officers and fire fighters to provide urine specimens at
random and unspecified times unless probable cause existed. Following the lead of the Federal Court
decision in Sec. & Law Enforcement Emp., Dist. C.82 v. Carey, and Hunter
v. Auger, the Florida court embraced the “reasonable suspicion” concept
describing it as “something less than probable cause, but something more than a
mere suspicion.” Bauman,
475 So.2d
at 1326;
citing State
v. Hunt,
391 So.2d
760 (Fla.App. 5th Dist.1980). See also, Adrow
v. Johnson,
623 F.Supp.
1085 (D.C.Ill.1985).
Although
these cases may initially suggest the existence of a potpourri of jurisprudence,
the reality is that a number of common threads are interwoven throughout
producing several clear cut and firmly established principles. These may be summarized as follows:
1. Whether
the urinalysis is conducted as part of a criminal investigation or for some
other reason such as employment is a very significant factor of consideration.
2. In
order to relax the probable cause requirement the test to be applied is whether
the search is reasonable and that requires a balancing of the need, supported
by the promotion of a legitimate government interest, against the intrusiveness
of the search relative to the individual's expectation of privacy.
3.
Employees in penal and correctional institutions do not, by virtue of their
employment, lose all of their Fourth Amendment rights.
4.
Correctional facility security considerations reduce the scope of the
reasonable expectation of privacy that one normally holds and makes reasonable
some intrusions that would not be reasonable outside the facility.
[1] The defendants support the relaxation of the probable
cause standard and the application of the balancing test to determine
reasonableness. They urge that a
compelling need for the promotion of a legitimate government interest, namely
that of the effective maintenance of penal and correctional institutions, is
fundamental and of significant public concern.
Correction officers and Sheriff's officers are recognized as law enforcement
officers and as such may enforce the criminal law of this State, N.J.S.A.
2A:154-3.
The officers' involvement in maintaining security at the county jail and
at the courthouse admittedly confirms a compelling public interest. Moreover, prison officials must have some latitude
in fulfilling their responsibilities-the need for flexibility is omnipresent
because as the United States Supreme Court stated in Bell
v. Wolfish,
441 U.S.
520, 546, 99 S.Ct.
1861, 1878, 60 L.Ed.2d
447, 474 (1979):
[T]he
problems that arise in the day-to-day operations of a corrections facility are
not susceptible of easy solutions, prison administrators therefore should be
accorded wide-ranging deference in the adoption
and execution of policies and practices that in their judgment are **383
needed to preserve internal order and discipline and to maintain institutional
security.... [Id.]
Against
this backdrop of need the court must balance the extent of the intrusiveness of
the search. The taking of urine
involves an invasion of the body constituting a search and seizure. Schmerber v. State of California. A requirement to furnish a urine sample
represents an intrusion of constitutionally impermissible dimensions. Yet the extent of this type of intrusion is
not unduly repugnant and does not rise to the offensiveness of the strip
search. FN11 The taking of the
urine can be made privately FN12 and under conditions and circumstances that can diminish
or completely avoid inconvenience and embarrassment. Nor does it per se offend the
sensibilities of the average person.
Examining this very question of urine testing, the court in Shoemaker
v. Handel,
608 F.Supp.
1151 (D.N.J.1985), stated that:
FN11. In M.M.
v. Anker,
607 F.2d
588, 589 (2d Cir.1979), the court observed that “as
the intrusiveness of the search intensifies, the standard of Fourth Amendment ‘reasonableness'
approaches probable cause.” [Id.]. See also, State
in Interest of T.L.O.,
94 N.J.
at 346, 463 A.2d
934.
FN12. The
furnishing of urine samples has, in certain situations, been required to be
made in the presence of a witness. No
such requirement was presented as part of the facts in the instant matter.
breathalyzer
tests and urinalysis are considered less intrusive than body cavity and strip
searches and those searches which have been identified as intruding upon the “integrity
of the body,” ... [and] [w]hile breathalyzer and urine tests require the
individual involved to “give up” something, the intrusion is less than the
involuntary securing of a blood sample or other searches into which an
intrusion into the body is required. [Id.
at 1158; citations and footnote
omitted].
Considering
this rather limited intrusion and weighing it against the public need
associated with the supervision and operation of penal institutions, this court
is satisfied that the scale tips indisputably in favor of that need. This allows for a relaxation of the probable
cause requirement but still leaves open the question of what lesser standard
should be applied.
Defendants
contend that upon a determination allowing a relaxation of the probable cause
requirement, the court must next examine the manner in which the search is
conducted in order to resolve the issues of reasonableness. In this regard, the defendants apply the
language of Delaware v. Prouse and suggest the final question revolves
around the existence or nonexistence of an “unconstrained exercise of
discretion” by individual officers.
Noting that the directive in question allows for no discretion on the
part of individual officers to order urine testing, but rather provides for
implementation only by the Sheriff, and only as to all employees, the
defendants argue that both these policies and the search are therefore
reasonable. The motive for this
position becomes clearer when one considers that it represents support for
random searches, and the directive in issue by its broad language provides for
random searches. Such random searches
are made without probable cause, without suspicion or without any supporting
information whatsoever. Nevertheless,
the defendants contend that because the random search (urine testing) is
ordered for all employees without the “unconstrained exercise of
discretion” it passes constitutional muster.
The only
reported decision cited by the defendants in support of their position on
random searches is Shoemaker
v. Handel,
608 F.Supp.
1151 (D.N.J.1985), where the New Jersey Racing
Commission, by regulation, authorized urinalysis to determine drug use by horse
racing jockeys. The court used the balancing
test in considering the public interest created by the long standing regulation
of the horse racing industry in New Jersey as against the interest of the
individual's expectation of privacy, and concluded that the Racing
Commissions's urinalysis program is tailored to further the State's legitimate
interest in reduced drug use and thereby promoted the safety and integrity of
the horse racing industry. In reaching
its conclusion the Court made the following findings: (1) the **384 State had promulgated
regulations for the specific purpose of combating the use of drugs, which “plagues
th[e] sport, as well as so many others.”
Id.
at 1157;
(2) urinalysis testing as applied to jockeys is not unique since boxers
must undergo complete physical examinations including prefight and postfight
urinalysis; (3) urinalysis tests are
less intrusive and not synonymous with those that intrude upon the integrity of
the body; and (4) jockeys have a
diminished expectation of privacy because of the pervasive historical regulation
of their industry and because:
jockeys
are licensed by the State to race in New Jersey, subject to the extensive and
detailed conditions and regulations in effect.
By securing their licensure, jockeys accept the unique benefits as well
as the burdens of their trade. They
have notice that the state has regulations which concern aspects of their
physical and mental fitness to ride.
This includes alcohol and drug use which impedes their riding
performance. [Id.
at 1158.]
Although
some analogies can be drawn between the public interest in a highly regulated
industry such as horse racing and the supervision and operation of penal
institutions and courts, there are a number of factors that distinguish Shoemaker
from the instant matter. The horse
racing industry has historically been the subject of unbridled regulation. The New Jersey State Legislature has
established a New Jersey Racing Commission, vested with broad powers over all
persons involved in the industry. A
number of administrative code regulations have been promulgated by the Racing Commission
including authorization for breathalyzer and urine tests on jockeys who are
licensed by the Racing Commission. FN13 Within certain
limitations, wagering is permitted and sizeable amounts of money change
hands. The criminal influence is
omnipresent and the sport, as are so many other professional sports, is plagued
by the use of alcohol and drugs.
Additionally, these regulations apply to all licensed jockeys who wish
to ride in thoroughbred horse races throughout the State. Thus all jockeys licensed by the State can
be subjected to the testing in the manner prescribed by the Racing
Commission. There is a uniformity of
application and procedure, which applies to all jockeys at all racetracks
statewide. Local option is not
available. Finally, in the case of
jockeys, the expectation of privacy is diminished not only by the character of
the vocation, but even more so by the preexistence of the regulations. Jockeys have notice up front of the
regulations, their purposes, and the effect they may have on one's privacy.
FN13.
Regulations have been in effect for the breathalyzer testing of harness drivers
in New Jersey for many years and random urine testing has been in effect since
January 1985. See Shoemaker,
608 F.Supp.
at 1157.
Jockeys
therefore initially have the choice of applying for a license in New Jersey or
applying elsewhere. Once the jockey
voluntarily submits his application for licensing and pursues his trade in New
Jersey, the argument is made that he should not later be heard to complain
about its burden. Similarly, where a
correction officer was subjected to body cavity search, in Armstrong
v. New York State Comm'r of Corrections,
545 F.Supp.
728, 731 (N.D.N.Y.1982), the court remarked that
the correction officer's, “advance notice that he might be subject to such a
search may nevertheless be considered in determining its reasonableness, since
an employee who is offended will have the opportunity to seek alternative
employment.” Id.
Those
factors supportive of the decision in the Shoemaker case are not found
in the circumstances in the instant matter. FN14 There has been no historical state regulation
of Sheriff's officers or correction officers and each county under the direction
of the County Sheriff has been left to its own resources and devices to insure
the efficient**385 and proper
supervision of correctional, penal, and court facilities. Nor has there been any notice or warning
upon employment that urine testing would be required. No choice was afforded to accept or decline
employment based on a knowing requirement of submission to random urine
testing. Moreover, the atmosphere of
criminal contact in penal institutions or in a courtroom setting is
substantially different from that of the criminal influence in the gambling and
horseracing industry; and although
during recent months professional sports have acknowledged serious concern over
alcohol and drug abuse by many professional athletes, no such epidemic of drug abuse
is suggested of Sheriff's officers in Passaic County.
FN14. In Shoemaker
the Court refers to Sec. & Law Enforcement Emp., Dist. C.82 v. Carey,
as evidence of the unique intrusive nature of a strip search and visual body
cavity search in applying the “reasonable suspicion” theory. Shoemaker fails to point out, however,
that the court in Carey held random searches without reasonable
suspicion unconstitutional.
Another
consideration deserving mention is that of standards. In McDonell
v. Hunter,
612 F.Supp.
1122 (D.C.Iowa 1985), in referring to searches of
persons entering correctional facilities, the court noted that such “searches
must be guided by some appropriate standards,” Id.
at 1128, pointing out that the policy under
consideration lacked “any standards whatsoever for its implementation,” Id.
n. 4. So too, the plaintiffs here
complain that the directive set forth in Appendix A consisting of six lines
constitutes a policy determination of significant constitutional impact, yet
fails for example to advise: (1) who has
the authority to authorize urine testing;
(2) what personnel will be subjected to the test; (3) who will perform the test; (4) what type of test will be made; (5) how the results will be used; (6) whether the test will be
confidential; (7) what rights, if any,
are afforded to the employee to question the test results; (8) whether supplemental testing will be
available; and (9) what provision, if
any, is made for a hearing in which the employee can challenge the results of
the urine test. These questions, which
seem to address basic and fundamental principles of fairness and due process,
remain unanswered, a situation particularly unacceptable within the structure
for random searches. The rules should
not be made up along the way, they should be established, complete and in place
from the inception. Moreover, the tests
themselves must be sufficiently reliable to establish credibility with both
correction officials and the department's officers and employees. Certainly the regulations in Shoemaker
can be characterized as providing a comprehensive set of standards. Such standards serve the dual purpose of
setting forth the parameters of authority to those who exercise it and
establish a knowledgeable understanding to those who are subjected to it. None of these purposes are either addressed
or satisfied by the directive in question, and such omission is further
evidence of its deficiency.
[2] The effort by defendants to assert the balancing test and
the lack of an “unconstrained exercise of discretion” as a means of supporting
random searches must, under the present facts, be rejected. Also rejected is the contention that the
testing of all employees somehow provides an elixir which cures the
diminution of constitutional safeguards.
Rather, this court finds that the appropriate standard to be applied in
situations involving urinalysis of Sheriff's officers and correction officers
is that of reasonable suspicion.
Although the reasonable suspicion standard will develop on a case by
case basis, some minimal guidelines can be provided. First, in order to satisfy the reasonable
suspicion standard the correction officials must be able to point to specific
objective facts supportive of the testing and any rational inferences drawn
therefrom in light of their experience. Hunter,
672 F.2d
at 674; McDonell,
612 F.Supp.
at 1130.
Stated yet another way, reasonable suspicion is not an “inchoate and
unparticularized suspicion or ‘hunch’,” Terry
v. Ohio,
392 U.S.
at 27, 88 S.Ct.
at 1883, 20 L.Ed.2d
at 909; “rather
it is the sort of ‘common sense conclusio[n] about human behavior’ upon which ‘practical
people’-including government officicals-are entitled to rely.” New Jersey v. T.L.O.,
469 U.S.
at 346, 105 S.Ct.
at 746, 83 L.Ed.2d
at 737.
Second, and equally important, is the
requirement that the suspicion be directed to a specified person. Hunter,
672 F.2d
at 675.
Additional factors that may be considered in determining reasonable
suspicion are: “(1) the nature of the **386
tip or information; (2) the reliability
of the informant; (3) the degree of
corroboration; and (4) other facts
contributing to suspicion or lack thereof.”
Carey,
737 F.2d
at 205;
citing United
States v. Afanador,
567 F.2d
1325, 1329 n. 4 (5th Cir.1978). Once these burdens have been met, the
urinalysis testing of those officers to which the reasonable suspicion is
directed becomes constitutionally permissible.
This approach represents the fairest way to vindicate the reduced right
of privacy possessed by the officers and at the same time satisfy the interests
of government by providing a procedure for administering urine tests without
the necessity of establishing probable cause or procuring a warrant.
To be
sure, random testing has certain advantages.
It is a strategy that provides an excellent investigative
technique. Unannounced random testing
requirements may arguably be an uncomplicated method of insuring 100 percent
drug abstinence on the part of Sheriff's Department employees. But there is a substantial cost-the
heavy-handed erosion of fundamental constitutional rights.
Although
the “reasonable suspicion” standard may require greater effort to support than
random searches, the Sheriff is not left without basic and established
investigatory procedures. Observation
of job performance now becomes more critical.
The employment of undercover agents proved immensely successful and its
continued availability provides a significant deterrent to further drug abuse. Informers have historically been a prime
source of information and no doubt will continue to be so no matter what
constitutional standard is applied. The
requirement of physicals at the commencement of employment or regular annual
physical checkups are common and normal employment practices and should not be
deemed as rendered impermissible by this decision. FN15 These procedures
provide an arsenal of weapons that may be used by the Sheriff to insure that
his officers are neither involved in the use of controlled dangerous substances
or involved in their distribution to inmates or others.
FN15.
Specific reference to and approval of pre-employment physical examinations is
made in McDonell
v. Hunter,
612 F.Supp.
at 1132 and Shoemaker,
608 F.Supp.
at 1160.
AS TO PLAINTIFFS ALLEN AND CLEMENTE
[3] Applying the aforesaid principles to the plaintiffs Allen
and Clemente it is clear and undisputed that the Sheriff was not aware of any
articulated facts supportive of their use or abuse of controlled dangerous
substances, nor have any such facts been offered. Reasonable suspicion was neither offered nor
demonstrated since the testing of these officers was supported exclusively by a
procedure involving random searches.
The preliminary restraining order in each of their cases is continued
but modified to the extent that the Sheriff shall be restrained from directing
urinalysis testing of these plaintiffs unless he can satisfy the reasonable suspicion
standard.
AS TO PLAINTIFFS TURI AND MONZO
With
respect to the plaintiffs Turi and Monzo there is before the court the
typewritten statement of Officer Lawrence Gibson and Officer Fred De Nude. These statements articulate sufficient
objective facts directed to the use of controlled dangerous substances by Turi
and Monzo to support a reasonable suspicion.
The information set forth in these statements completely justifies if
not mandates the need for urinalysis testing of these two officers. Argument might be made that the information
contained in the statements is now stale.
This argument is without merit.
If the information has become stale, it has become so because of this
litigation and not by any actions of the defendants. See State
v. Blaurock,
143 N.J.Super.
476, 479-480, 363 A.2d
909 (App.Div.1976). Moreover, the Sheriff has a continuing
accountability to insure that employees charged with the responsibility of
protecting the safety and security of the inmates, each other, and the public,
are not impaired in their ability to fulfill that responsibility because of involvement
with use of drugs. **387 The
information contained in the aforesaid statements is incriminating and raises
serious question about the ability of these plaintiffs to properly perform
their duties. Having once satisfied the
reasonable suspicion standard, urinalysis testing should be permitted to
continue until such time as the basis for the reasonable suspicion no longer
exists. The preliminary restraining
order is hereby vacated as to plaintiffs Turi and Monzo thereby restoring to
the Sheriff the authority to proceed with urinalysis testing of these
plaintiffs.