Superior Court of New Jersey,Appellate Division.
The FRATERNAL ORDER OF POLICE, NEWARK LODGE NO. 12, a not-for-profit corporation of the State of New Jersey, on behalf of its members, et al., Plaintiffs-Appellants,
v.
The CITY OF NEWARK, a municipal corporation of the State of New Jersey, et al., Defendants-Respondents.
Argued Oct. 15, 1986.
Decided March 26, 1987.
SYNOPSIS
Police union brought action against city to invalidate directive issued by city mandating that all members of narcotic bureau be subjected to urine testing for drug abuse. The Superior Court, Law Division, Essex County, sustained directive, and union appealed. The Superior Court, Appellate Division, Gaulkin, J.A.D., held that city directive mandating that all members of narcotic bureau be subjected to urine testing for drug abuse without probable cause or reasonable individualized suspicion violated state constitutional prohibition against unreasonable searches and seizures.
Reversed and remanded.
West Headnotes
[1] Searches and Seizures 349 
79
349 Searches and Seizures
349I In General
349k79 k. Administrative Inspections and Searches; Regulated Businesses. Most
Cited Cases
Private
commercial property utilized in pervasively regulated industry may be inspected
without warrant and without individualized suspicion, and persons associated
with industry may also be subjected to warrantless search while on commercial
premises.
[2] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Drug
testing that is conducted as part of bona fide health checkup is not
constitutionally objectionable.
[3] Criminal Law 110 1224(1)
110 Criminal Law
110XXVII Prevention of Crime
110k1222 Prevention and Investigation of Crime
110k1224 Intervention of Public Officers
110k1224(1) k. In General. Most
Cited Cases
In
evaluating constitutionality of personal intrusion by government as part of
investigatory procedure, fact that intrusion occurs without any individualized
suspicion weighs heavily against finding of reasonableness.
[4] Constitutional Law 92 82(11)
92 Constitutional Law
92V Personal, Civil and Political Rights
92k82 Constitutional Guaranties in General
92k82(6) Particular Rights, Limitations, and Applications
92k82(11) k. Public Employees;
Military Personnel. Most
Cited Cases
Public
employee must be regarded as having diminished expectation of privacy in his or
her role as employee.
[5] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
City
directive mandating that all members of narcotic bureau be subjected to urine
testing for drug abuse without probable cause or reasonable individualized
suspicion violated state constitutional provision prohibiting unreasonable
searches and seizures. N.J.S.A.
Const. Art. 1, ¶ 7.
**431 *462 Janemary S. Belsole, Paramus,
for plaintiffs-appellants (Stern, Steiger, Croland, Tanenbaum & Schielke,
attorneys; Janemary S. Belsole and
Stuart Reiser, on the brief).
Kathleen
C. Goger, Montclair, for defendants-respondents (Furst & Waldman,
attorneys).
Robert A.
Goodsell, Roseland, for amicus curiae American Civil Liberties Union of New
Jersey (Irwin, Post & Rosen, P.A., attorneys).
Before
Judges PRESSLER, GAULKIN and ASHBEY.
Janemary
S. Belsole argued the
cause for appellants (Stern, Steiger, Croland, Tanenbaum & Schielke,
attorneys; Janemary S. Belsole
and Stuart Reiser, on the brief).Kathleen C. Goger argued the
cause for respondents (Furst & Waldman, attorneys).Robert A.
Goodsell argued the cause for amicus curiae American Civil Liberties
Union of New Jersey (Irwin, Post & Rosen, P.A., attorneys).
The
opinion of the court was delivered by
GAULKIN,
J.A.D.
Plaintiffs
brought this action in lieu of prerogative writs to invalidate a directive
issued by the City of Newark Police Director mandating that all members of the
Narcotic Bureau be subjected to urine testing for drug abuse “both upon
transfer [into the Bureau] and at least twice a year afterwards.” The Law Division judge sustained the
directive. Plaintiffs appeal.
463I.
Memorandum
85-259, issued by Police Director Knox on December 10, 1985, reads in its
entirety as follows:
1. Narcotic enforcement is the most sensitive
and health threatening assignment in policing today. It exposes the Police Officer to certain
health hazards that are not necessarily encountered in normal patrol work. The advent of Acquired Immune Deficiency
Syndrome, commonly referred to as AIDS, is a prime example of a real health
threat.
2. Secondly, Narcotic enforcement is, by its
very nature, a sensitive assignment, requiring the highest degree in
confidence. Confidence is the key to
narcotic investigations; it is not only
the trust between the investigator and an informant, it is also faith in
performance, ability and the manner in which laws are enforced. Police Officers should bear in mind that
they symbolize the dignity and authority of the Law. It is a harsh reality that we, as Police
Officers, must maintain standards of conduct that are above that which is
expected of the average citizen in order that we maintain the confidence and
trust of the public that we serve.
3. These dual concerns, the health of the
employee and the trust of the public is of paramount concern to this
Department.
4. Effective 0001 hours, December 12th, 1985,
all members of the Narcotic Bureau shall be required to take a urinalysis and
blood test. Furthermore, any transfer
into the Unit shall be predicated upon a successful urinalysis and blood test. Any request of transfer to the Narcotic Bureau
shall be forwarded with the understanding that a urinalysis exam and blood test
is required as part of the assignment, both upon transfer and at least twice a
year afterwards. These exams are to be
administered to determine:
a. Health deficiencies
**432 b. Substance abuse
5. Furthermore, all such testing shall be
conducted under the supervision of the Police Surgeon or his representative and
the Internal Affairs Bureau. All
results are to be confidential and forwarded to the Police Director for review. FN1
FN1. The blood
test requirement was withdrawn by consent during the pendency of the trial
court proceedings.
The
Memorandum was delivered to plaintiff Fraternal Order of Police (FOP) on
December 12, 1985. Narcotic Bureau
officers reporting for duty that afternoon were ordered to provide urine
specimens. This action was filed on
December 13, 1985. The City was
immediately enjoined from any further implementation of the Memorandum; the injunction remained effective throughout
the trial proceedings and has been continued pending disposition of this
appeal.
*464 The genesis and intended operation of the
Memorandum were described by Director Knox in an affidavit. Director Knox was “concerned ... with drug
abuse among members of the Police Department” and also “with the public
perception with respect to the drug abuse among members of the Police
Department.” His concern resulted from
his “awareness of the extent and seriousness of the problem of drug abuse in
society in general, and in Newark in particular, as well as the results of
recent urine testing of Police Department recruits[.]” He asserted that the testing of two recent
classes of recruits “yielded 5 positive tests for such substances as cocaine,
heroin, morphine and barbituates.”
Director Knox continued that “[p]ublic confidence ... is crucial to
effective law enforcement”; such
confidence “depends on credibility and the urine testing contemplated by
Memorandum 85-259 will go a long way toward reinforcing credibility.” In addition, the tests were intended “to
serve the interests of public safety and effective law enforcement by deterring
drug use.”
In a
deposition, Director Knox also said that he had received “[s]pecific
information from citizens in the community and also from street people” about
police officers using controlled dangerous substances, including allegations
against two Narcotic Bureau officers.
He said he had received information from two commanding officers about
the same Narcotic Bureau officers.
However, Director Knox said the information received from the commanding
officers did not play any role in his issuance of the directive: “I intended to test members of this police
department anyway.”
As to the
intended operation of the tests, Director Knox set forth in his affidavit that
the procedures to be used “are the same as those already utilized in testing
recruits.” Samples would be
field-tested first “using the EMIT urine screening program.” Those samples which test positive would be
forwarded for laboratory testing. All
test results would be “confidential,” but police officers for whom positive
samples are found “will be charged as set forth in the rules and regulations.”*465 However, test results “will not be made
known to the prosecutor and no criminal charges will be brought.”
The issues
were presented to the trial judge on the pleadings, affidavits and deposition
testimony. In an unreported opinion,
the judge concluded that mandatory urine monitoring constitutes a “search”
within the meaning of the New Jersey and United States Constitutions but that “there
are no constitutional inhibitions against the Director's basic power to issue
Memorandum 85-259.” FN2 The judge ordered a hearing, however, “on
whether the means of enforcing the Director's order are calculated to show
accurately the presence of controlled dangerous substances in the urine, and
also whether the tests will be conducted with a minimum possible invasion of
the police officer's personalty and privacy.”
FN2. The trial
judge also rejected plaintiffs' contention that Director Knox exceeded his
statutory authority in promulgating the Memorandum; plaintiffs do not challenge that ruling on
this appeal.
On June
16, 1986, the trial judge entered final judgment ordering, among other **433
things, that “the acquisition of urine and the testing of urine, if conducted,
shall be conducted in accordance with the Methods and Procedures for Urine/Drug
Screening” incorporated in the judgment.
Those methods and procedures are set forth in Appendix A attached to
this opinion. Plaintiffs appeal from
that judgment. FN3
FN3. Shortly
after the trial judge issued his opinion, Director Knox promulgated a directive
requiring drug/urine testing of all police department personnel. We understand an action has been filed to
invalidate that directive, that implementation of the directive was temporarily
enjoined and that the litigation has been stayed pending final disposition of
this appeal.
II.
Plaintiffs'
principal contention here, as in the trial court, is that drug/urine testing as
authorized by Memorandum 85-259 would constitute an unreasonable search and
seizure in violation of Article
I, ¶ 7 of the New Jersey Constitution and also of *466 the Fourth Amendment of the United
States Constitution, both of which direct that
[t]he
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated.
The City
does not dispute plaintiffs' contention that a governmentally compelled taking
of urine is both a “search” and a “seizure” within the meaning of the
constitutional provisions. That
proposition is uniformly recognized in the reported cases. See e.g. McDonell
v. Hunter,
809 F.2d
1302 (8th Cir.1987); Shoemaker
v. Handel,
795 F.2d
1136 (3d Cir.1986), cert. den. ---U.S.
577, 107
S.Ct.
577, 93 L.Ed.2d
580 (1986);
Nat'l
Treasury Employers Union v. Von Raab,
649 F.Supp.
380, 387 (E.D.La.1986); Capua
v. City of Plainfield,
643 F.Supp.
1507, 1513 (D.N.J.1986); Allen
v. City of Marietta,
601 F.Supp.
482, 488-489 (N.D.Ga.1985); Storms
v. Coughlin,
600 F.Supp.
1214, 1218 (S.D.N.Y.1984); City
of Palm Bay v. Bauman,
475 So.2d
1322, 1324 (Fla.Dist.Ct.App.1985); Caruso
v. Ward,
133 Misc.2d
544, 506 N.Y.S.2d
789, 792 (Sup.Ct.1986). The parties thus properly frame the issue as
being whether the search and seizure authorized by the Memorandum would be “unreasonable.” FN4
FN4. The City
does not argue that an officer's acceptance of assignment to the Narcotic
Bureau can be regarded as a valid consent to an otherwise unreasonable
search. See,
generally, McDonell,
809 F.2d
at 1310; Caruso,
506 N.Y.S.2d
at 793-794.
We start
with the principles that a search or seizure based upon a warrant supported by
probable cause FN5
is “presumed to be valid” (State
v. Valencia,
93 N.J.
126, 133, 459 A.2d
1149 (1983)), and that a warrantless search is “prima
facie invalid unless it comes within one of the specific exceptions to the
warrant requirement” of the constitutional provisions. State v. Young,
87 N.J.
132, 141, 432 A.2d
874 (1981).
See *467Katz
v. United States,
389 U.S.
347, 357, 88 S.Ct.
507, 514, 19 L.Ed.2d
576 (1967).
We conclude that the searches and seizures contemplated by the
Memorandum do not come within any “specific exception” to the warrant
requirement.
FN5. Probable
cause is defined as “a ‘well grounded suspicion’ that a crime has been or is
being committed.” State
v. Martin,
87 N.J.
561, 568, 436 A.2d
96 (1981) (quoting State
v. Burnett,
42 N.J.
377, 387, 201 A.2d
39 (1964)).
Many of
the exceptions to the warrant requirement nevertheless require a showing of
probable cause. See, e.g., Valencia,
93 N.J.
at 136, 459 A.2d
1149 (warrantless search permissible upon showing
of exigent circumstances and probable cause);
State
v. Martin,
87 N.J.
at 567, 436 A.2d
96 (warrantless search of automobile permissible
if based on probable cause); Young,
87 N.J.
at 142, n. 4, 432 A.2d
874 (an arrest made upon probable cause allows a
warrantless search of the arrestee's person and immediate vicinity). Other warrantless searches or seizures are
lawful on a showing of some individualized suspicion less than probable
cause. See, e.g., New
Jersey v. T.L.O.,
469 U.S.
325, 342, 105 S.Ct.
733, 744, 83 L.Ed.2d
720 (1985) (warrantless school search will
ordinarily pass constitutional muster “when there are reasonable grounds for
suspecting that the search will turn up evidence that the student has violated
or is violating either the law or the rules of the school”); **434Delaware
v. Prouse, 440 U.S.
648, 99 S.Ct.
1391, 59 L.Ed.2d
660 (1979) (discretionary automobile stops
require “reasonable suspicion”); United
States v. Brignoni-Ponce,
422 U.S.
873, 881, 95 S.Ct.
2574, 2580, 45 L.Ed.2d
607 (1975) (roving-patrol automobile stops in
border areas are permissible “when an officer's observations lead him
reasonably to suspect that a particular vehicle may contain aliens who are
illegally in the country....”); Terry
v. Ohio,
392 U.S.
1, 88 S.Ct.
1868, 20 L.Ed.2d
889 (1968) (warrantless “stop and frisk”
sustainable upon a showing that “a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others was in
danger”); United
States v. Bunkers,
521 F.2d
1217 (9th Cir.1975), cert. den. 423
U.S.
989, 96 S.Ct.
400, 46 L.Ed.2d
307 (1975) (warrantless search by postal
inspector of employee's locker was justified by showing of reasonable suspicion
of criminal activity); State
v. Davis,
104 N.J.
490, 504, 517 A.2d
859 (1986) (investigatory stop by police only
valid if officer has a *468 particularized suspicion); State
v. Adams,
125 N.J.Super.
587, 598-600, 312 A.2d
642 (App.Div.1973) (warrantless search at airport
upheld where traveler fit skyjacker profile, set off magnometer and pat-down
search uncovered suspicious bulge).
None of those “specific exceptions” to the warrant requirement serves to
validate the Memorandum, which concededly does not condition urine testing on
either probable cause or any individualized suspicion.
[1] The City seeks to bring the proposed testing within the “pervasively
regulated industry” exception to the warrant requirement, which permits certain
warrantless searches and seizures without either probable cause or
individualized suspicion.
Administrative searches, i.e., those conducted to enforce a
regulatory scheme, are subject to the Fourth Amendment and commonly require the
issuance of a warrant. See Marshall
v. Barlow's, Inc.,
436 U.S.
307, 323-324, 98 S.Ct.
1816, 1825-26, 56 L.Ed.2d
305 (1978);
See
v. City of Seattle,
387 U.S.
541, 545-546, 87 S.Ct.
1737, 1740, 18 L.Ed.2d
943 (1967);
Camara
v. Municipal Court,
387 U.S.
523, 534-535, 87 S.Ct.
1727, 1733-34, 18 L.Ed.2d
930 (1967).
However, private commercial property utilized in a pervasively regulated
industry may be inspected without a warrant and without individualized
suspicion. See Donovan
v. Dewey,
452 U.S.
594, 599-602, 101 S.Ct.
2534, 2538-39, 69 L.Ed.2d
262 (1981);
United
States v. Biswell,
406 U.S.
311, 315-317, 92 S.Ct.
1593, 1596-97, 32 L.Ed.2d
87 (1972);
Colonnade
Catering Corp. v. United States,
397 U.S.
72, 76-77, 90 S.Ct.
774, 776-77, 25 L.Ed.2d
60 (1970).
Persons associated with such an industry may also be subjected to a
warrantless search, at least while on the commercial premises. In re Martin,
90 N.J.
295, 313-314, 447 A.2d
1290 (1982).
The City
principally relies on Shoemaker, which upheld regulations of the New
Jersey Racing Commission permitting alcohol and drug testing of jockeys and
other licensed persons without probable cause or reasonable individualized
suspicion. *469 795
F.2d
at 1142.
Noting that the licensees had always been aware that they were subject
to “intense state regulation,” the court found that the regulatory interest in
protecting both the wagering public and the public justified the testing
requirements. The court took pains to
point out, however, that its holding applies only to testing of “voluntary participants
in a highly-regulated industry.” Id.
at 1142 n. 5.
See Rushton
v. Nebraska Public Power District,
653 F.Supp.
1510 (D.Neb.1987) (random drug screening of
public utility employees upheld under the rationale of Shoemaker ).
[2] Police officers are not members of a “highly-regulated
industry.” Like many other groups of
public employees, police officers are subject to a variety of statutory and
administrative controls. FN6 But government's supervision of its employees
cannot be equated with the regulation of sensitive industries requiring “close
supervision**435 and inspection.” See, e.g., In re Martin, 90 N.J.
at 312-313, 436 A.2d 96. Police
are not engaged in a “commercial enterprise” (cf. Donovan,
452 U.S.
at 599, 101 S.Ct.
at 2538);
they are not subject to a “comprehensive and defined” regulatory scheme
in which drug testing is a “necessary component” (Id.
at 600, 101 S.Ct.
at 2538);
there has been no legislative determination “that warrantless searches
are necessary to further a regulatory scheme[.]” (Ibid.). To treat the police as a “pervasively
regulated industry” would dangerously extend and distort that exception to the
warrant requirement beyond its intended scope.
We thus find ourselves in agreement with the many courts which have
found Shoemaker inapplicable to or distinguishable from cases involving
public employees. See, e.g., *470American
Fed. of Gov't. Employees, AFL-CIO v.
Weinberger,
651 F.Supp.
726, 734-35 (S.D.Ga.1986); Caruso,
506 N.Y.S.2d
at 798. FN7
FN6. Drug
testing that is conducted as part of a bona fide health checkup is not constitutionally
objectionable. See Caruso,
506 N.Y.S.2d
at 798.
At oral argument plaintiffs conceded that they would have no objection
to such testing.
FN7. The court
in Caruso noted that Shoemaker may be “simply out of step with
the rest of the authorities.” Ibid.
III.
Since the
contemplated warrantless drug testing does not fit within any “special
exception” to the warrant requirement, we must regard the Memorandum as “prima
facie invalid.” Young,
87 N.J.
at 141, 432 A.2d
874.
Defendants accordingly “must prove the overall reasonableness and
validity of the search” and seizures they propose. Valencia,
93 N.J.
at 133, 459 A.2d
1149.
Reasonableness
is not easy to assess or describe. As
Justice (now Chief Justice) Rehnquist said in Bell
v. Wolfish,
441 U.S.
520, 559, 99 S.Ct.
1861, 1884, 60 L.Ed.2d
447 (1979):
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 intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in which it is
conducted.
Specific
applications of those general principles can be found in the decided cases. As to the “need for the particular search,”
the “substantiality of the public interest” in the challenged practice must be
assessed. See Donovan,
452 U.S.
at 602, 101 S.Ct.
at 2539; United
States v. Martinez-Fuerte,
428 U.S.
543, 556, 96 S.Ct.
3074, 3082, 49 L.Ed.2d
1116 (1976).
A closely allied inquiry is whether the particular law enforcement technique
at issue is needed. See Martinez-Fuerte,
428 U.S.
at 562, 96 S.Ct.
at 3085; State
v. Kirk,
202 N.J.Super.
28, 55, 493 A.2d
1271 (App.Div.1985). The availability and practicality of
alternative means of investigating the asserted evil is also of
significance. See, e.g., Bell,
441 U.S.
at 559, n. 40, 99 S.Ct.
at 1885, n. 40;
Martinez-Fuerte,
428 U.S.
at 556 n. 12, 96 S.Ct.
at 3082 n. 12.
[3] Such public interest
considerations must be weighed against a variety of private interests of the
persons subject to *471 the warrantless search or seizure. Of primary concern, of course, is the degree
of personal intrusion which the investigatory procedure involves. See, e.g., Martinez-Fuerte,
428 U.S.
at 557-558, 96 S.Ct.
at 3082-83.
Implicated in that inquiry are such questions as whether the intrusion
is for regulatory or other civil purposes, or to discover contraband or
evidence of crime (see, e.g., Donovan,
452 U.S.
at 598-599, 101 S.Ct.
at 2537-38;
Kirk,
202 N.J.Super.
at 55, 493 A.2d
1271);
whether the intrusion involves a search or only an inquiry (see,
e.g., Martinez-Fuerte,
428 U.S.
at 565, 96 S.Ct.
at 3086), and whether the intrusion is of the
person (see, e.g., Davis,
104 N.J.
490, 517 A.2d
859) or a residence (see, e.g., Camara,
387 U.S.
at 530-531, 87 S.Ct.
at 1731-32) or an automobile (see, e.g., Martinez-Fuerte,
428 U.S.
at 545-546, 96 S.Ct.
at 3077), or commercial premises (see, e.g., See
v. City of Seattle,
387 U.S.
at 543-544, 87 S.Ct.
at 1739).
In evaluating the personal intrusion, the fact that it occurs without
any **436 individualized suspicion weighs heavily against a finding of
reasonableness. As the Supreme Court
said in Martinez-Fuerte,
428 U.S.
at 560, 96 S.Ct.
at 3084, “some quantum of individualized
suspicion is usually a prerequisite to a constitutional search or seizure.” See also T.L.O.,
469 U.S.
at 342 n. 8, 105 S.Ct.
at 744 n. 8.
In a welter
of recent cases, courts throughout the country have been called upon to weigh
the competing public and private interests in drug/urine testing of public
employees. Virtually all of the
reported cases have concluded that such testing is unconstitutional in the
absence of some reasonable individualized suspicion. See American
Fed. of Gov't Employees, AFL-CIO,
651 F.Supp.
726 (Department of Defense civilian police
officers); Nat'l
Treasury Employees Union,
649 F.Supp.
at 387 (customs service workers); Penny
v. Kennedy,
648 F.Supp.
815, 817 (E.D.Tenn.1986) (police); Lovvorn
v. City of Chattanooga,
647 F.Supp.
875, 880 (E.D.Tenn.1986) (fire fighters); Capua,
643 F.Supp.
at 1516-1520 (fire fighters and police
officers); Jones
v. McKenzie,
628 F.Supp.
1500, 1507-1508 (D.D.C.1986) (school bus
attendant); *472City
of Palm Bay, 475 So.2d
at 1325 (police and fire officers); Caruso,
506 N.Y.S.2d
at 799 (police officers assigned to Organized
Crime Bureau); Patchogue-Medford
Congress v. Bd. of Educ.,
119 A.D.2d
35, 505 N.Y.S.2d
888, 891 (N.Y.App.Div. 2nd Dept.1986)
(teachers). Other cases have upheld urine testing where
the employer had reasonable individualized suspicion of drug use. Everett
v. Napper,
632 F.Supp.
1481 (N.D.Ga.1986) (fire fighter); Allen,
601 F.Supp.
482 (municipal utility employees); Div.
241 Amalgamated Transit Union 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) (municipal bus drivers); Turner
v. Fraternal Order of Police,
500 A.2d
1005 (D.C.1985) (police officers); King
v. McMickens,
120 A.D.2d
351, 501 N.Y.S.2d
679 (N.Y.App.Div. 1st Dept.1986) (corrections
officer).
[4] The reasoning of these cases is quite similar. All recognize that a public employer has an
important and legitimate interest in assuring that its employees abstain from
drug use because drug use can impair job performance and put the public at
risk. McDonell,
809 F.2d
at 1308; Div.
241 Amalgamated Transit Union,
538 F.2d
at 1267; Penny,
648 F.Supp.
at 817; Lovvorn,
647 F.Supp.
at 879; Capua,
643 F.Supp.
at 1516-1517;
Everett,
632 F.Supp.
at 1485-1486;
Turner,
500 A.2d
at 1008; City
of Palm Bay,
475 So.2d
at 1326; Caruso,
506 N.Y.S.2d
at 793; Patchogue-Medford
Congress,
505 N.Y.S.2d
at 891. See
Nat'l
Treasury Employees Union,
649 F.Supp.
at 387; Jones,
628 F.Supp.
at 1508.
Moreover, a public employee must be regarded as having a diminished
expectation of privacy in his or her role as an employee. Lovvorn,
647 F.Supp.
at 880; Turner,
500 A.2d
at 1008; City
of Palm Bay,
475 So.2d
at 1324; Caruso,
506 N.Y.S.2d
at 793.
On the other hand, mandatory urine testing involves a highly intrusive
procedure which carries a variety of consequences and risks for the persons
tested. Nat'l
Treasury Employees Union,
649 F.Supp.
at 387; Lovvorn,
647 F.Supp.
at 880; Capua,
643 F.Supp.
at 1514; Caruso,
506 N.Y.S.2d
at 792.
In weighing the public need against the private intrusion, the courts
are persuaded by the *473 absence of a factual showing that drug use is
widespread among the affected employees or that it presents an identifiable
risk to the public. See Nat'l
Treasury Employees Union,
649 F.Supp.
at 390; Lovvorn,
647 F.Supp.
at 882; Penny,
648 F.Supp.
at 816-817;
Capua, 643F.Supp. at 1516;
City
of Palm Bay,
475 So.2d
at 1325; Caruso,
506 N.Y.S.2d
at 795, 799;
Patchogue-Medford
Congress,
505 N.Y.S.2d
at 891.
The reasonable individualized suspicion test fairly accommodates the
legitimate interest of employee privacy without unduly restricting the public
employer's opportunity to monitor and control the use of drugs by its
employees. See Penny, 648F.Supp.
at 817; Lovvorn,
647 F.Supp.
at 883; Capua,
643 F.Supp.
at 1518; Caruso,
506 N.Y.S.2d
at 799.
Our
research has disclosed only three cases which uphold drug/urine tests of public
employees without any showing of reasonable individualized suspicion. In **437 McDonell v. Hunter,
the court held that corrections officers may be subjected to urinalysis “performed
uniformly or by systematic random selection of those employees who have regular
contact with the prisoners on a day-to-day basis in medium or maximum security
prisons.” (809
F.2d
at 1308).
In Mack
v. United States,
653 F.Supp.
70 (S.D.N.Y.1986), the court held that the FBI
could lawfully require plaintiff, an FBI agent, to submit to urinalysis; although the FBI apparently had some
individualized suspicion of plaintiff, Judge Leval did not determine or rest
his decision on the reasonableness of that suspicion. And in Rushton
v. Nebraska Public Power District,
653 F.Supp.
1510, the court held that annual and random drug
screening of public utility employees who had access to “vital areas” of a
nuclear power plant was reasonable.
Both McDonell and Mack were based in part on findings that
the testing was a modest invasion of privacy.
In Rushton the court emphasized the diminished expectation of the
employees who were already subject to random pat-downs, electronic searches for
explosives or metal objects and constant surveillance. However, in all three cases the courts found
that the public need for such testing, although *474 not specifically
proved, was sufficiently compelling to justify the intrusion. FN8
FN8.
Governmentally authorized drug testing of persons other than public employees
has been upheld in some cases. See,
e.g., Shoemaker,
795 F.2d
1136 (jockeys);
Storms,
600 F.Supp.
1214 (prison inmates). As our earlier discussion of Shoemaker
suggests, such cases involve a different mix of public and private interests
and are not of significant guidance here.
IV.
[5] Based upon the present record and in light of the
authorities discussed, we conclude that the drug/urine testing authorized by
Memorandum 85-259 without probable cause or reasonable individualized suspicion
is unreasonable and thus constitutionally invalid. Without repeating all that other courts have
said about the nature of urine testing, we find that such testing constitutes a
significant interference with personal privacy and autonomy. Government monitoring of urine involves an
intrusion upon a most private kind of conduct.
Both in concept and in practice, that intrusion is profoundly
demeaning. Drug testing here also has
serious pragmatic implications, including loss of employment and possible
criminal prosecution. The protectible
privacy interests of plaintiffs are thus very substantial.
The City
surely has an important and legitimate interest in assuring that its Narcotic
Bureau personnel are drug free. The
record, however, does not indicate that drug use within the Narcotic Bureau, or
indeed among police officers generally, is extensive or that the public is
presently endangered by drug use among police officers. In promulgating the Memorandum, Director
Knox pointed only to five positive tests among two recent classes of recruits. He offered no specific evidence of drug use
among regular police officers; his
laconic references to information received about two Narcotic Bureau officers
suggests that possible drug use can effectively be explored by reliance on
reasonable individualized suspicion.
His principal *475 justifications for his directive were simply
that testing would enhance “[p]ublic confidence,” “go a long way toward
reinforcing credibility” of the police department and “serve the interests of
public safety and effective law enforcement by deterring drug use.” FN9
FN9. In a
post-judgment affidavit submitted in opposition to plaintiffs' motion for stay
pending appeal, the Director also said that two Newark officers had recently
been arrested for possession and distribution of narcotics. The record is silent as to any connection
between the investigations preceding those arrests and Memorandum 85-259.
While
those are proper goals, urine testing without reasonable individualized
suspicion is not a proper means to attain them. The abstract interest in enhancing “public
confidence” is not of sufficient weight to
justify sacrificing the palpable privacy interests of police officers. And surely the general public interest in
enforcing drug laws cannot be permitted to set at naught the constitutional
protections against unreasonable searches and seizures.
**438 Our weighing of the public and private
interests is supported by the Law Enforcement Drug Screening Guidelines
promulgated by Attorney General W. Cary Edwards on October 22, 1986, just after
this matter was argued before us. FN10 Attorney General Edwards there set forth drug
testing guidelines which he urged be adopted by all law enforcement agencies in
New Jersey. Under those guidelines,
police trainees “should be subjected to unannounced drug testing by urinalysis
during mandatory basic training” FN11 and
FN10.
Immediately after the guidelines were promulgated, we inquired whether the City
intended to adopt them and withdraw Memorandum 85-259. The City responded that it would comply with
legislation implementing the guidelines, which the Attorney General had
announced he would seek. The City
accordingly moved for a stay of the appeal pending action by the
Legislature. We denied that
motion. The Legislature has not yet
acted.
FN11. In this
matter we need not, and do not, pass upon the propriety of random drug testing
of police trainees.
*476 Permanently appointed law enforcement
officers should be required to undergo further mandatory drug screening
whenever there is individualized reasonable suspicion to believe that the
officer is unlawfully using drugs.
Officers should be tested under these circumstances only with the
approval of the county prosecutor or chief executive officer of the department
or his designee.
The
Attorney General's guidelines are based upon recommendations of the New Jersey
Criminal Justice Advisory Council, which the Attorney General had commissioned
to “thoroughly research current drug screening programs, existing drug testing
technology, and the financial and operational impact of drug testing upon the
law enforcement community.” The Council
urged that “a veteran officer should be tested when there is individualized
reasonable suspicion to suspect that he is using illegal drugs.” That recommendation was based upon the
Council's finding that “reliable data with respect to the percentage of law
enforcement officers who use drugs is non-existent” and thus random drug
testing of law enforcement officers “cannot be justified by conclusive evidence
of their widespread illicit drug use.”
Random drug testing, the Council concluded, “significantly diminishes
morale and ultimately invades the privacy of the overwhelming number of
officers who do not use drugs in order to identify those few who do.” Furthermore,
[t]he
Council believes that objective indications of drug use will adequately
identify those law enforcement officers who use illegal drugs. Specific objective factors such as
absenteeism, deterioration of work habits, chronic lateness, and confidential
information as to illegal drug use constitute reasonable objective bases or
reasonable suspicion to suspect that urinalysis will produce evidence of
illegal drug use. (footnote omitted).
While the
recommendations of the Council and the Attorney General do not address the
constitutional question and in any event are not binding on us, they do
reinforce our own conclusion from this record that the public interest does not
require police officers to be subjected to the drug testing envisioned by
Memorandum 85-259. That testing, we
hold, is an unreasonable search and seizure and thus unconstitutional. FN12
FN12. We need
not determine here whether public employees engaged in extrahazardous
activities may fairly be subjected to drug tests without reasonable
individualized suspicion. Cf. Rushton,
653 F.Supp.
1510 (public utility employees with access to
vital areas at nuclear power plant); Allen,
601 F.Supp.
482 (municipal employees working with high
voltage wires). No claim was made here
that the police officers subject to testing were so engaged.
477V.
Our
holding is based exclusively on Article
I, ¶ 7 of the New Jersey Constitution. While we like to
believe that the United States Supreme Court would reach the same result as a
matter of federal constitutional law, we offer no such prediction. See State
v. Hartley,
103 N.J.
252, 284-285, 511 A.2d
80 (1986).
Our state constitution protects fundamental rights independently of the
United States Constitution **439 and has often been construed,
particularly in recent years, as providing greater protection to our citizens'
individual rights than accorded them under the federal constitution. See State
v. Gilmore,
103 N.J.
508, 522-524, 511 A.2d
1150 (1986).
In particular, our state constitution has been found to afford greater
protection against unreasonable searches and seizures than may be required by
the United States Supreme Court's interpretation of the Fourth Amendment. State
v. Novembrino,
105 N.J.
95, 519 A.2d
820 (1987);
State
v. Hunt,
91 N.J.
338, 450 A.2d
952 (1982);
State
v. Alston,
88 N.J.
211, 440 A.2d
1311 (1981);
State
v. Johnson,
68 N.J.
349, 346 A.2d
66 (1975).
To be
sure, “the discovery of unique individual rights in a state constitution does
not spring from pure intuition but, rather, from a process that is reasonable
and reasoned.” Hunt,
91 N.J.
at 367, 450 A.2d
952 (Handler, J., concurring). We find ample grounds here to resort to the
state constitution. The case implicates
important personal rights of public employers and employees of this State. Cf.
Novembrino,
105 N.J.
at 146, 519 A.2d
820; Hartley,
103 N.J.
at 285, 511 A.2d
80; Hunt,
91 N.J.
at 366, 450 A.2d
952 (Handler J., concurring). State law, tradition and policy have long
given privacy invasions a degree of protection beyond that afforded by the
federal constitution. Novembrino,
105 N.J.
at 146, 519 A.2d
820; Hunt,
91 N.J.
at 370-372, 450 A.2d
952 (Handler, J., concurring). There is clearly a necessity for our giving
firm guidance to our own *478 public employers and employees and to
limit the prospect of disarray in decisional treatment of the question. Hartley,
103 N.J.
at 285-286, 511 A.2d
80.
Finally, failure to rest our decision on state law might lead to
needless review in the United States Supreme Court, and could in fact require,
in some cases, subsequent redundant proceedings in our own courts. Id.
at 286, 511 A.2d
80. Those
considerations, we find justify characterizing the drug/urine testing
authorized by Memorandum 85-259 as an unreasonable search and seizure within
the meaning of Article
I, ¶ 7 of the New Jersey Constitution.
VI.
The final
judgment is accordingly reversed. The
matter is remanded to the Law Division for the entry of judgment in accordance
with this opinion. The Law Division
shall also address the Second Count of the complaint insofar as it asserts a
claim for damages under 42
U.S.C.A.
§ 1983
arising from the urine tests taken prior to the entry of the restraints. The trial judge found it unnecessary to
address that claim in light of his finding that Memorandum 85-259 was facially
constitutional. There is no merit to
defendants' argument that plaintiffs had abandoned the claim: the final judgment unequivocally states that
plaintiffs had withdrawn only claims relating “to the acquisition and testing
of blood samples pursuant to Memorandum 85-259.”
Reversed
and remanded. We do not retain
jurisdiction.