Supreme Court of New Jersey.
NEW JERSEY TRANSIT PBA LOCAL 304, Plaintiff-Appellant,
v.
NEW JERSEY TRANSIT CORPORATION, Defendant-Respondent.
Argued April 28, 1997.
Decided Sept. 25, 1997.
Union representing transit police officers brought suit challenging constitutionality of transit authority's random drug and alcohol testing of employees in safety-sensitive positions. The Superior Court, Law Division, Essex County, Alvin Weiss, J., entered summary judgment for transit authority, and union appealed. The Superior Court, Appellate Division, 290 N.J.Super. 406, 675 A.2d 1180, affirmed. Certification was granted. The Supreme Court, Poritz, C.J., held that: (1) special needs balancing test, used in determining lawfulness of suspicionless search of public employees under Fourth Amendment, would be adopted as analytical framework for considering lawful of drug testing program under New Jersey Constitution's search and seizure provision, overrulingFraternal Order of Police, 216 N.J.Super. 461, 524 A.2d 430, and (2) random drug testing of transit police force was not unreasonable under State Constitution, in light of transit officers' decreased expectation of privacy, adequate limitations on obtrusiveness of testing, and compelling state interest in promoting safe conduct by armed officers.
Affirmed.
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
Mandatory,
government-compelled drug or alcohol testing is subject to requirements of both
Federal and New Jersey Constitutions, and testing program must meet
reasonableness requirement of both Fourth Amendment and state constitutional
search and seizure provision. U.S.C.A.
Const.Amend. 4;
N.J.S.A.
Const. Art. 1, par. 7.
[2] Searches and Seizures 349 23
349 Searches and Seizures
349I In General
349k23 k. Fourth Amendment and Reasonableness in General. Most
Cited Cases
Searches and Seizures 349 24
349 Searches and Seizures
349I In General
349k24 k. Necessity of and Preference for Warrant, and Exceptions
in General. Most
Cited Cases
Generally,
under federal and New Jersey Constitutions, searches or seizures conducted
without warrant based on probable cause are considered per se unreasonable, but
validity of warrantless search may be established if government demonstrates
that search falls within recognized exception to warrant requirement. U.S.C.A.
Const.Amend. 4;
N.J.S.A.
Const. Art. 1, par. 7.
[3] Searches and Seizures 349 79
349 Searches and Seizures
349I In General
349k79 k. Administrative Inspections and Searches; Regulated Businesses. Most
Cited Cases
Administrative
searches of highly or pervasively regulated industries are permitted without
probable cause or individualized suspicion, but are reasonable only so long as
there is substantial government interest that informs regulatory scheme
pursuant to which inspection is made, warrantless inspections are necessary to
further regulatory scheme, and statute's inspection program, in terms of
certainty and regularity of application, provides constitutionally adequate
substitute for warrant. U.S.C.A.
Const.Amend. 4;
N.J.S.A.
Const. Art. 1, par. 7.
[4] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Special
needs test, under which suspicionless search of public employees may be
permissible under Fourth Amendment when search serves special needs beyond
normal need for law enforcement and public interests outweigh private ones,
provides useful analytical framework for considering protections afforded by
State Constitution's search and seizure clause, and Supreme Court would adopt
that approach in reviewing state transit authority's drug testing program for
reasonableness under State Constitution; overruling - Fraternal
Order of Police, Newark Lodge No. 12 v. City of Newark,
216 N.J.Super. 461, 524 A.2d 430 (App.Div.1987). U.S.C.A.
Const.Amend. 4;
N.J.S.A.
Const. Art. 1, par. 7.
[5] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
State
transit authority's substantial interest in protecting its employees and the
public gave rise to special need, beyond normal law enforcement needs, that
could justify privacy intrusions involved in random drug and alcohol testing of
transit police officers; transit officers performed patrol and investigatory
police duties independently at transit terminals and locations throughout
state, such that drug detection based on observation would be difficult, and
requiring individualized suspicion would be impractical and would compromise
safety objectives. 49
U.S.C.A. § 5331(b); N.J.S.A.
Const. Art. 1, par. 7.
[6] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Transit
authority's random drug testing program, as designed, limited intrusion on
transit officers' privacy interests for purposes of state constitutional
analysis, where procedures required urine sample to be collected in manner that
ensured employees' modesty and privacy, procedures sought to ensure accuracy of
urine analysis through various means, and employees' records had to be kept confidential
and were reported only to appropriate management official and employee, except
in certain limited circumstances or as required by law. 49
U.S.C.A. § 5331(b); N.J.S.A.
Const. Art. 1, par. 7.
[7] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Transit
police officers had diminished expectation of privacy, given nature of their
responsibilities and due to importance of health and fitness of employees in
the heavily regulated rail and mass transportation industries, and thus transit
authority's random drug testing program posed only a limited threat to transit
officers' justifiable expectations of privacy.
49
U.S.C.A. § 5331(b); N.J.S.A.
Const. Art. 1, par. 7.
[8] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Transit
authority's random drug testing of transit police officers was supported by
substantial governmental interest; transit police officers carried weapons and
performed safety-sensitive function, posing threat to public safety if they
were to perform their duties under influence of drugs, transit officers often
carried out duties independently, such that drug detection based on observation
would be difficult, and requiring individualized suspicion would be ineffective
in deterring drug use and would compromise safety objectives. 49
U.S.C.A. § 5331(b); N.J.S.A.
Const. Art. 1, par. 7.
[9] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Transit
authority's random drug testing of transit police force, without individualized
suspicion, did not violate State Constitution's search and seizure provision,
in light of transit police officers' decreased expectation of privacy, adequate
limitations on obtrusiveness of testing, and compelling state interest in
promoting safe conduct by armed officers.
49
U.S.C.A. § 5331(b); N.J.S.A.
Const. Art. 1, par. 7.
**1244 *534 Stephen
B. Hunter, Somerville, for plaintiff-appellant
(Klausner and Hunter, attorneys).
Robert
A. Shire, Deputy Attorney General, for
defendant-respondent (Peter Verniero, Attorney General of New Jersey,
attorney; Jeffrey
C. Burstein, Deputy Attorney General, of
counsel; Mr. Shire and Eldad Phillip
Isaac, Deputy Attorney General, on the briefs).
James
Katz, Cherry Hill, for amicus curiae American
Civil Liberties Union of New Jersey (Tomar, Simonoff, Adourian, O'Brien,
Kaplan, Jacoby & Graziano, attorneys).
Anthony
J. Fusco, Jr., Passaic, submitted a brief on
behalf of amicus curiae New Jersey State Lodge of Fraternal Order of Police.
Paul
L. Kleinbaum, Newark, submitted a brief on behalf
of amicus curiae New Jersey State Policemen's Benevolent Association (Zazzali,
Zazzali, Fagella & Nowak, attorneys).
The
opinion of the Court was delivered by
PORITZ, C.J.
To comply
with regulations promulgated by the Federal Transit Administration (“FTA”),
defendant, New Jersey Transit Corporation (“NJ Transit” or “Agency”), adopted a
drug and alcohol testing policy that includes random testing of employees
responsible*535 for
safety-sensitive functions. Plaintiff
New Jersey Transit PBA Local 304 (“PBA” or “plaintiff”), challenged the
constitutionality of the random testing provisions applicable to NJ Transit
police officers. The Law Division
granted summary judgment in favor of NJ Transit, and the Appellate Division**1245 affirmed.
290
N.J.Super.
406, 675 A.2d
1180 (1996).
We granted certification, 147
N.J.
259, 686 A.2d
761 (1996), to consider whether mandatory random
drug testing of transit police officers who carry firearms for security
purposes violates the officers' right to be free from unreasonable searches and
seizures as guaranteed by Article
1, Paragraph 7 of the New Jersey Constitution. We now affirm.
I
-A-
NJ Transit
is a public corporation within the Department of Transportation responsible for
acquiring, operating, and improving public transportation facilities in New
Jersey. N.J.S.A.
27:25-2, -4a, -5, -10. By its enabling legislation, the Agency is
authorized to “comply with federal statutes, rules and regulations, and qualify
for and receive all forms of financial assistance available under federal law
to assure the continuance of, or for the support or improvement of public
transportation.” N.J.S.A.
27:25-5g. At the present time, NJ
Transit receives substantial federal funding from the FTA which, by the end of
fiscal year 1996, had contracted to provide approximately $1 billion in current
and future assistance to the Agency.
The NJ
Transit Police Department was established within the Agency to provide police
and security protection to all NJ Transit locations and services. N.J.S.A.
27:25-15.1a. Transit police officers “have
general authority, without limitation, to
exercise police powers and duties ... in all criminal and traffic matters at
all times throughout the state.” Ibid.
They must comply with policies established by the Attorney General, ibid.,
and must satisfy “requirements established by the Police Training Commission,” *536 N.J.S.A. 27:25-15.1c. As officers of a
state police force, they are permitted to carry firearms, see N.J.S.A.
2C:39-6a(7)(a), and to use deadly force in certain circumstances, N.J.S.A.
2C:3-3, -7.
Plaintiff
is the majority representative of approximately one hundred twenty-five transit
police officers under the rank of captain.
Six of the officers were assigned to ride on the Agency's trains as of
April 1995; the others perform patrol
and investigatory police duties and functions similar to those performed by
municipal and county police officers.
The majority are assigned to patrol NJ Transit's main terminals in
Newark, Hoboken and Atlantic City, and carry out their responsibilities among
heavy concentrations of transit riders.
The remaining officers are assigned to patrol smaller train stations and
railroad rights-of-way throughout the state.
-B-
In 1991
Congress enacted the Omnibus Transportation Employee Testing Act of 1991 (“Act”
or “Federal Act”), Pub.L.
102-143, 105 Stat.
952 (1991) (codified as amended in scattered
sections of 49 U.S.C.A.), to address alcohol and drug testing of workers
in safety-sensitive positions throughout the transportation industry. Relevant here, the Act as amended directs
the Secretary of Transportation to issue rules requiring mass transit operators
receiving federal funds to conduct pre-employment, reasonable suspicion,
random, and post-accident testing for drug and alcohol use by employees
responsible for safety-sensitive functions.
49
U.S.C.A.
§ 5331(b). As considered appropriate by the Secretary
and provided in the rules, employees determined “to have used or been impaired
by alcohol when on duty” or “to have used a controlled substance, whether or
not on duty,” unless allowed for medical reasons, may be disqualified for a
specified period or dismissed from their employment. Id. § 5331(c)(1). Congress expressly provided that failure to
institute the specified drug and alcohol testing programs would result in
ineligibility for federal funding. Id.
§ 5331(g).
*537 The anti-drug and alcohol misuse
policies applicable to mass transit operators are set forth in regulations
issued under the Act. See 49 C.F.R. pts. 653, 654 (1997); see also id. pt. 40 (setting forth
procedures to be followed for drug and alcohol testing). The regulations are designed “to deter and
detect the use of prohibited drugs by covered employees,” id. § 653.3, and “to help prevent accidents and
injuries resulting from the misuse of alcohol by employees who perform **1246
safety-sensitive functions,” id. §
654.1. More specifically, the regulations provide for random drug and
alcohol testing of “covered employees,” id. § § 653.47, 654.35, defined as those employees
who perform safety-sensitive functions including, among other things, “carrying
a firearm for security purposes,” id. § § 653.7, 654.7. Employees who refuse to participate in the
testing program are required to cease performing safety-sensitive
functions. Id. § § 653.35(a), 654.29.
-C-
For the
purpose of complying with the FTA regulations, NJ Transit instituted a
comprehensive drug and alcohol-free workplace policy that became effective
January 1, 1995. NJ Transit's policy
consists of a Core Policy and two Addenda. See NJ TRANSIT Corporate-Wide Policy,
Drug and Alcohol-Free Workplace Core Policy (January 1, 1995); Drug and Alcohol-Free Workplace
Policy-Addendum I (January 1, 1995) (requirements applicable to employees
who perform safety-sensitive functions);
Drug and Alcohol-Free Workplace Policy-Addendum II (January 1,
1995) (requirements applicable to employees who perform rail-covered
services). The purpose and goals of the
Core Policy are described in Sections I and II:
The
purpose of this policy is to ensure that NJ TRANSIT operates in the safest and
most efficient manner possible and to promote the safety and welfare of our
employees and customers by creating a drug and alcohol-free workplace and
ensuring that our employees are free from the effects of drugs and alcohol.
.
. . .
.
NJ
TRANSIT'S goal to achieve a drug and alcohol-free workplace shall be
accomplished through the implementation of a comprehensive anti-drug and
alcohol *538 program based on
deterrence, detection, assistance and enforcement. The program objectives in support of this
goal are to prevent drug and alcohol abuse, to assist employees who seek help,
to detect drug and alcohol abuse, and to enforce NJ TRANSIT's policy.
The Core
Policy sets forth the drug and alcohol testing program generally, while Addendum
I “outlines those requirements of NJ TRANSIT's Drug and Alcohol-Free
Workplace Policy that are applicable only to NJ TRANSIT employees who perform
safety-sensitive functions.” Addendum
I § I. In its complaint, plaintiff
challenged both the random drug and random alcohol testing components of NJ
Transit's policy as applied to “law enforcement personnel represented by PBA
Local 304.” However, plaintiff has not
argued before this Court that the alcohol testing component of the program is
unconstitutional. We will therefore
limit our review to PBA's claims vis-à-vis random drug testing as that testing
is implemented by NJ Transit through Addendum I and the Core Policy.
Under Addendum
I, all NJ Transit employees, including supervisors and volunteers, are
subject to “pre-employment, reasonable suspicion, post-accident, random,
return-to-duty, and follow up testing” if they perform safety-sensitive
functions. Id. § IV.A-B. Because transit police officers carry
firearms for security purposes, they perform a safety-sensitive function and
are subject to random testing. Id.
§ II. Previously, transit police
officers had been subject to drug testing as specified by the Attorney
General's Revised Law Enforcement Drug Screening Guidelines (August
1990) (“Guidelines”). The Guidelines,
promulgated in October 1986 and revised in 1990, provided for drug testing of
permanent police officers only when the employer had an individualized
reasonable suspicion that the officer had used or was using controlled
substances. Id. at 8-1. Addendum I substantially altered the
rules for drug testing of transit officers.
Like other NJ Transit-covered employees, transit officers are now
selected for unannounced testing “by a computer-based random number generator
that is matched with the employee's [identification] number.” Addendum I § IX.B.
*539 NJ Transit's Core Policy
requires the Agency and its certified laboratory to “maintain clear and
well-documented procedures for collection, shipment” and recording of
specimens. Core Policy § IX.B. Specimens **1247 are handled by
a trained medical technician or licensed medical professional, id. §
IX.C.1, at “secure, designated ... sites” equipped to provide proper “collection,
security, temporary storage, and shipping” to the laboratory, id. §
IX.D.1. The person handling the sample is responsible for the integrity
of the collection and transfer process, id. §
IX.D.1, 2, 5, 6, and may not be a supervisor or co-worker of the tested
employee, id. § IX.C.2. Unless NJ Transit has reason to
believe that the donor may adulterate the sample, individual privacy must be
permitted during collection. Id.
§ IX.F.1 (listing four circumstances
constituting grounds for “reason to believe that an individual may alter or
substitute a specimen,” e.g., a previous urine sample that “falls
outside the normal temperature range”).
Any direct observation of the donor must be by a person “of the same
gender” and requires prior approval by a supervisor. Id. §
IX.F.2.
Two urine
samples are obtained from transit police officers at the collection site. Each sample is then separated into a “primary”
and “split” specimen for testing at a laboratory certified under the Department
of Health and Human Services' (“DHHS”) Mandatory Guidelines for Federal
Workplace Drug Testing Programs. Id.
§ IX.G.1. The first primary specimen is
analyzed for marijuana, cocaine, opiates, phencyclidine or amphetamines using “an
immunoassay which meets the requirements of the Food and Drug Administration
for commercial distribution.” Id.
§ IX.G.2. If this specimen tests
positive, the result is confirmed using gas chromatography/mass
spectrometry. Id. § IX.G.3. The second primary specimen is
similarly analyzed for barbiturates, benzodiazepines and methadone. FN1 Id. §
IX.G.4. If either primary specimen*540 tests positive, the employee has 72 hours in
which to exercise his or her option to have the split specimen tested by a
different DHHS-certified laboratory. Id.
§ IX.G.5.
FN1. These
substances are not listed in the FTA's regulations. See 49 C.F.R. § 653.31(b).
We presume that they have been approved for testing by the FTA pursuant
to 49
C.F.R.
§ 40.21
and note that plaintiff has not specifically challenged this additional testing
by NJ Transit.
The Core
Policy requires NJ Transit to employ one or more Medical Review Officers (“MRO”). Id. §
IX.H.1. The MRO must be a licensed physician with knowledge of substance
abuse disorders who is able to review and interpret positive test results. Ibid. Test results are not deemed
positive, and may not be disseminated to any person, until they are reviewed
and verified by the MRO. Id. §
IX.H.2. In addition to verifying the chain of custody and the
reasonableness of the laboratory report, the MRO must “[e]xamine alternate
medical explanations for positive drug test results,” and must give each
employee “an opportunity to discuss the test results” prior to verifying a
positive test. Id. § IX.H.2.a-d.
The MRO is
required to report all verified positive test results to the appropriate
management official and to provide copies of the report to the employee. Id. §
IX.H.2.g. Those positive results that have “a legitimate medical
explanation or which are scientifically insufficient for further action” are
reported as negative. Id. § IX.H.2.e. All negative results are also
promptly reported to the employee. Id.
§ IX.H.2.h. Records of testing results
are “maintained in a secure location with controlled access” and, pursuant to
federal regulation, see 49 C.F.R. 653.71(b), may be kept for only
a limited number of years. Core
Policy § XIII.B. Test results may be
released on written request of the employee, to “the decision maker in a
lawsuit, grievance, or other proceeding initiated by or on behalf of the
employee tested,” to certain federal agencies, “or to a State oversight agency
with regulatory authority over NJ TRANSIT.”
Id. § XIII.A.1-5. Addendum
I, in reliance on the Attorney General's Guidelines, further
requires transit officers' positive results to “be included in a central
registry maintained by the Division of State Police to be accessed only through
a court order or as part of a confidential investigation *541 related to law enforcement
employment; and reported to the county
prosecutor.” Addendum I § XIII.A.1.
The Core
Policy includes provisions establishing an employee assistance program (“EAP”)
for covered employees who need assistance with use of controlled
substances. **1248
Core Policy § VIII. Employees may
participate in the program on a voluntary basis, id. §
VIII.B, or may be required to participate if they test positive for
drugs and have not previously had a positive drug test, id. §
VIII.C. The Core Policy provides, however, that transit officers
are not eligible for participation in EAP and that a transit officer who tests
positive for illegal drugs must be dismissed.
Id. § VIII.B.3. Thus, a
transit officer “cannot avoid[ ] [dismissal] by utilization of the EAP, even on
a voluntary basis.” Ibid. This
provision also reflects NJ Transit's interpretation of the requirements of the
Attorney General's Guidelines.
-D-
On April
26, 1995, PBA filed a complaint in the Law Division alleging that NJ Transit's
random drug and alcohol testing of law enforcement officers represented by PBA
Local 304 constituted an illegal search and seizure in violation of Article
I, Paragraph 7 of the New Jersey Constitution. The PBA also sought temporary restraints
preventing the Agency from implementing testing as to those officers. PBA did not challenge pre-employment
testing, or testing either conducted at an annual physical exam or based on reasonable individualized suspicion.
As a
defense, NJ Transit asserted that the Federal Act preempted state action
inconsistent with federally required testing programs implemented by state
transportation agencies in receipt of federal funding. FN2 The trial court found that preemption did
not *542 apply because NJ Transit
is not required to accept federal funding, but concluded that random drug
testing of transit police officers was permissible under the New Jersey
Constitution. The court denied PBA's
application for a restraining order, and entered judgment upholding the
constitutionality of the testing program and dismissing PBA's complaint.
FN2. NJ
Transit based its preemption argument on the provision of the Act that states:
A State or local government may not prescribe, issue, or
continue in effect a law, regulation, standard, or order that is inconsistent
with regulations prescribed [under the statute, except] a State criminal law
that imposes sanctions for reckless conduct leading to loss of life, injury, or
damage to property.
Because we find that NJ Transit's drug testing program
passes constitutional muster, we do not reach the Agency's preemption defense.
The
Appellate Division affirmed in a unanimous opinion. 290
N.J.Super.
406, 675 A.2d
1180 (1996).
In sustaining NJ Transit's program, the court adopted the special needs
balancing test of Skinner
v. Railway Labor Executives' Ass'n,
489 U.S.
602, 109 S.Ct.
1402, 103 L.Ed.2d
639 (1989), and National
Treasury Employees Union v. Von Raab,
489 U.S.
656, 109 S.Ct.
1384, 103 L.Ed.2d
685 (1989), and rejected the 1987 Appellate
Division opinion in Fraternal
Order of Police, Newark Lodge No. 12 v. City of Newark,
216 N.J.Super.
461, 524 A.2d
430 (App.Div.1987) (“FOP ”), which had
held that random drug testing of Newark police officers violated Article
I, Paragraph 7 of the New Jersey Constitution. 290
N.J.Super.
at 422, 675 A.2d
1180. The
Appellate Division found that requiring a warrant or individualized suspicion
would be impractical, and that the government's interest in preventing the
great harm that could occur “ ‘before any signs of impairment become noticeable
to supervisors or others' ” outweighed the privacy interests of transit police
officers. Id.
at 426, 675 A.2d
1180 (quoting Skinner,
supra,
489 U.S.
at 628, 109 S.Ct.
at 1419, 103 L.
Ed.2d
at 667).
II
-A-
Article
1, Paragraph 7 of the New Jersey Constitution
states:
*543 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 warrant shall issue except upon probable cause, supported by oath
or affirmation, and particularly describing the place to be searched and the
papers and things to be seized.
Both Article
1, Paragraph 7 and the Fourth Amendment to the
United States Constitution, which contain virtually identical language,
prohibit unreasonable searches and **1249 seizures by government
agents. See, e.g., Skinner,
supra,
489 U.S.
at 619, 109 S.Ct.
at 1414, 103 L.Ed.2d
at 661; Schmerber
v. California,
384 U.S.
757, 768, 86 S.Ct.
1826, 1834, 16 L.Ed.2d
908, 918 (1966);
State
v. Pierce,
136 N.J.
184, 208, 642 A.2d
947 (1994).
[1] Plaintiff does not allege that NJ Transit's testing
program is an unreasonable search under the Fourth Amendment; rather, PBA claims that random drug testing
of transit police officers is unreasonable under Article
1, Paragraph 7 of the New Jersey Constitution. Preliminarily we observe that mandatory drug
testing is subject to the requirements of both the federal and New Jersey
Constitutions. Case law in the federal
courts and in our state has firmly established that any government-compelled
drug or alcohol testing is a search. See
Skinner,
supra,
489 U.S.
at 617, 109 S.Ct.
at 1413, 103 L.Ed.2d
at 660 (finding that government-compelled drug
testing was search subject to Fourth Amendment); Von
Raab, supra,
489 U.S.
at 665, 109 S.Ct.
at 1390, 103 L.Ed.2d
at 701-02 (same);
Rawlings
v. Police Dep't of Jersey City,
133 N.J.
182, 188, 627 A.2d
602 (1993) (“A drug test performed pursuant to
departmental regulations ... is a search subject to the requirements of the
Fourth Amendment.”); O'Keefe
v. Passaic Valley Water Comm'n,
132 N.J.
234, 242, 624 A.2d
578 (1993) (same). The testing program must, therefore, meet
the reasonableness requirement of both the Fourth Amendment and Article
1, Paragraph 7.
-B-
[2] Generally, under the Fourth Amendment and under Article
I, Paragraph 7, searches or seizures conducted
without a warrant *544 based on
probable cause are considered per se unreasonable. See, e.g., Horton
v. California,
496 U.S.
128, 133, 110 S.Ct.
2301, 2306, 110 L.Ed.2d
112, 120 (1990) (observing “general rule that
warrantless searches are presumptively unreasonable”); State
v. Hempele,
120 N.J.
182, 217, 576 A.2d
793 (1990) ( “The New Jersey Constitution
requires the approval of an impartial judicial officer based on probable cause
before most searches may be undertaken.
Any warrantless search is prima facie invalid.” (citations and
internal quotations omitted)). The
validity of a warrantless search may, however, be established if the government
demonstrates that the search falls within one of the recognized exceptions to
the warrant requirement.
[3] Traditional exceptions to the warrant requirement have
been based on a showing either of probable cause or of reasonable
individualized suspicion to believe that the person to be searched has violated
the law. See, e.g., United
States v. Ross,
456 U.S.
798, 102 S.Ct.
2157, 72 L.Ed.2d
572 (1982) (permitting search of vehicle when
there was probable cause to believe that vehicle contained contraband); Terry
v. Ohio,
392 U.S.
1, 88 S.Ct.
1868, 20 L.Ed.2d
889 (1968) (permitting police officers to stop
suspect based on individualized suspicion that person stopped may have been
involved in criminal activity); State
v. Davis,
104 N.J.
490, 505-08, 517 A.2d
859 (1986) (allowing investigatory stop when
police officer had particularized suspicion of possible criminal activity by
defendant); State
v. Martin,
87 N.J.
561, 567-71, 436 A.2d
96 (1981) (allowing search of automobile when
probable cause existed to believe automobile had been used in robbery). In certain limited circumstances, however,
searches conducted without probable cause or reasonable individualized suspicion
have been upheld. See Michigan
Dep't of State Police v. Sitz,
496 U.S.
444, 110 S.Ct.
2481, 110 L.Ed.2d
412 (1990) (permitting sobriety checkpoints at
which state police stop all cars to examine drivers for signs of
intoxication); United
States v. Martinez-Fuerte,
428 U.S.
543, 96 S.Ct.
3074, 49 L.Ed.2d
1116 (1976) (allowing border patrol to stop
vehicles at immigration checkpoints to inquire about *545 citizenship and immigration
status of occupants). Of particular
relevance here, administrative searches of highly or pervasively regulated
industries have been permitted without probable cause or individualized
suspicion. See, e.g., New
York v. Burger,
482 U.S.
691, 107 S.Ct.
2636, 96 L.Ed.2d
601 (1987) (upholding suspicionless search of
automobile junkyard); United
States v. Biswell,
406 U.S.
311, 92 S.Ct.
1593, 32 L.Ed.2d
87 (1972) (upholding suspicionless search of gun
dealer's locked storeroom); **1250Colonnade
Catering Corp. v. United States,
397 U.S.
72, 90 S.Ct.
774, 25 L.Ed.2d
60 (1970) (permitting suspicionless searches of
premises of liquor licensees); In
re Martin,
90 N.J.
295, 310-16, 447 A.2d
1290 (1982) (allowing New Jersey Division of
Gaming Enforcement to conduct suspicionless searches of casino licensees).
The
pervasively regulated industry exception to the warrant requirement has
generally been applied to businesses that have a “long tradition of close
government supervision.” Marshall
v. Barlow's, Inc.,
436 U.S.
307, 313, 98 S.Ct.
1816, 1821, 56 L.Ed.2d
305, 312 (1978).
But see Donovan
v. Dewey,
452 U.S.
594, 605-06, 101 S.Ct.
2534, 2541-42, 69 L.Ed.2d
262, 273 (stating that primary factor in applying
exception is not length of time business has been regulated, but rather “pervasiveness
and regularity” of regulation). Both
the federal courts and our New Jersey courts have found that persons who engage
in industries “ ‘subject to close supervision and inspection’ ” have a
diminished expectation of privacy. In
re Martin, supra,
90 N.J.
at 313-14, 447 A.2d
1290 (finding that casino employees have a “limited”
expectation of privacy based on pervasive regulation of casino industry); see Biswell,
supra,
406 U.S.
at 316, 92 S.Ct.
at 1596, 32 L.Ed.2d
at 92-93 (firearms industry); Colonnade,
supra,
397 U.S.
at 77, 90 S.Ct.
at 777, 25 L.Ed.2d
at 64-65 (alcohol industry); New
Jersey Dep't of Envtl. Protection v. Duran,
251 N.J.Super.
55, 62-63, 596 A.2d
1090 (App.Div.1991) (fishing industry). Nonetheless, warrantless searches conducted
under the pervasively regulated industry exception are
*546 deemed to be reasonable only so
long as three criteria are met. First
there must be a “substantial” government interest that informs the regulatory
scheme pursuant to which the inspection is made....
Second,
the warrantless inspections must be “necessary to further [the] regulatory
scheme.” ...
[And,
f]inally, “the statute's inspection program, in terms of the certainty and
regularity of its application [must] provid[e] a constitutionally adequate
substitute for a warrant.”
[Burger,
supra,
482 U.S.
at 702-03, 107 S.Ct.
at 2644, 96 L.Ed.2d
at 614 (citations omitted).]
In the
1980's, a number of courts applied the highly regulated industry exception to
uphold random drug testing of employees in certain industries. See, e.g., Rushton
v. Nebraska Public Power Dist.,
844 F.2d
562, 566-67 (8th Cir.1988) (upholding
suspicionless drug testing of nuclear power plant employees); Shoemaker
v. Handel,
795 F.2d
1136, 1141-43 (3d Cir.) (upholding random
breathalyzer and urine testing of licensed jockeys and other track personnel), cert.
denied, 479
U.S.
986, 107 S.Ct.
577, 93 L.Ed.2d
580 (1986).
In Shoemaker, supra, the Third Circuit sustained regulations of
the New Jersey Racing Commission requiring random drug testing of jockeys on
horse racing days. 795
F.2d
at 1141-43.
The court observed that since 1939, when New Jersey amended its
Constitution to legalize horse racing, “the horse racing industry has been
among the state's most highly regulated industries.” Id.
at 1141.
Finding that “New Jersey has a strong interest in assuring the public of
the integrity of the persons engaged in the horse racing industry,” and that
the jockeys had been “put on notice” they
would be tested, the court applied the pervasively regulated industry exception
to the Commission's drug testing program.
Id.
at 1142.
The court concluded that the program was “sufficiently circumscribed” by
implementing guidelines that limited the discretion of those responsible for
testing and upheld the Commission's regulations. Id.
at 1143.
We observe
that before 1989, courts that reviewed programs designed to test police
officers for drug use differed about whether the officers fell within the
highly regulated industry exception. Compare
*547Policemen's
Benevolent Ass'n of New Jersey, Local 318
v. Township of Washington,
850 F.2d.
133, 136-41 (3d Cir.1988) (“PBA Local 318 ”)
(finding that police are members of highly regulated industry and upholding
suspicionless drug testing of police officers), cert. denied, 490
U.S.
1004, 109 S.Ct.
1637, 104 L.
Ed.2d
153 (1989) with Capua
v. City of Plainfield,
643 F.Supp.
1507, 1518-19 (D.N.J.1986) (finding that fire
fighters are not members of pervasively regulated industry), and FOP,
supra,
216 N.J.Super.
at 469, 524 A.2d
430. (holding that police officers are not **1251
members of highly regulated industry).
This divergence in views depended on the courts' focus. The FOP court, for example, reasoned
that police officers were not engaged in a “ ‘commercial enterprise’ ...
subject to a ‘comprehensive and defined’ regulatory scheme.” Id. (citations omitted). In PBA Local 318, the court looked to
the statutes and regulations governing police conduct, without considering
whether police work is an industry in the traditional sense, and found that
police officers were members of a highly regulated industry. 850
F.2d
at 141; cf. In
re Caruso v. Ward,
72 N.Y.2d
432, 534 N.Y.S.2d
142, 530 N.E.2d
850, 852-55 (1988) (permitting random drug
testing of police officers involved in elite crime unit based, in part, on
heightened regulation of unit); McDonell
v. Hunter,
809 F.2d
1302, 1306, 1307-08 (8th Cir.1987) (permitting random
drug testing of corrections officers because officers' “subjective expectations
of privacy are diminished while they are in the confines of the prison” and
because of “institutional interest in prison security”).
In 1989,
in two cases decided on the same day, the United States Supreme Court
considered suspicionless drug testing of certain private railroad workers under
regulations of the Federal Railroad Administration, Skinner,
supra,
489 U.S.
at 602, 109 S.Ct.
at 1402, 103 L.Ed.2d
at 639, and certain United States Customs employees,
Von
Raab, supra,
489 U.S.
at 656, 109 S.Ct.
at 1384, 103 L.Ed.2d
at 685. Skinner
and Von Raab, along with two other cases decided in 1995 and 1997, Vernonia
School Dist. 47J v. Acton,
515 U.S.
646, 115 S.Ct.
2386, 132 L.Ed.2d
564 (1995) and Chandler
v. Miller,
520 U.S.
305, 117 S.Ct.
1295, 137 L.Ed.2d
513 (1997), provide a framework for review of
governmental drug *548 testing
under the Fourth Amendment of the United States Constitution.
Under the Skinner/Von
Raab line of cases, a suspicionless search may be permissible when the
search serves “ ‘special needs, beyond the normal need for law enforcement.’ ” Chandler,
supra,
520 U.S.
at ----, 117 S.Ct.
at 1301, 137 L.Ed.2d
at 523 (quoting Skinner,
supra,
489 U.S.
at 619, 109 S.Ct.
at 1414, 103 L.Ed.2d
at 661).
Once the government claims a special need, “courts must undertake a
context-specific inquiry, examining closely the competing private and public
interests advanced by the parties.” Id.
at ----, 117
S.Ct.
at 1301, 137 L.Ed.2d
at 523.
This fact-specific inquiry requires a court to “assess the practicality
of the warrant and probable-cause requirements in [each] particular context.” Skinner,
supra,
489 U.S.
at 619, 109 S.Ct.
at 1414, 103 L.Ed.2d
at 661. “In
limited circumstances, where the privacy interests implicated by the search are
minimal, and where an important governmental interest furthered by the
intrusion would be placed in jeopardy by a requirement of individualized
suspicion, a search may be reasonable despite the absence of such suspicion.” Id.
at 624, 109 S.Ct.
at 1417, 103 L.Ed.2d
at 664.
Especially in the drug testing context, the government's special need “must
be substantial-important enough to override the individual's acknowledged
privacy interest, [and] sufficiently vital to suppress the Fourth Amendment's
normal requirement of individualized suspicion.” Chandler,
supra,
520 U.S.
at ----, 117 S.Ct.
at 1303, 137 L.Ed.2d
at 526.
The
Appellate Division applied the Skinner/Von Raab special needs test and
upheld NJ Transit's program. The
panel's approach is consonant with this Court's analysis in Hennessey
v. Coastal Eagle Point Oil Co.,
129 N.J.
81, 105-07, 609 A.2d
11 (1992), wherein the court found “the impracticality
of less-intrusive means of detecting drug use and the urgent need to ensure
public safety” to outweigh the employee's privacy interests in upholding urine
testing for persons in safety-sensitive jobs.
Ibid.; see also O'Keefe,
supra,
132 N.J.
at 242-46, 624 A.2d
578 (reviewing the *549 special needs test in dicta
); Hempele,
supra,
120 N.J.
at 218-19, 576 A.2d
793 (finding special needs test not applicable to
governmental search of garbage because no special need was identified); International
Fed'n of Prof'l & Technical Eng'rs, Local 194A v. Burlington County Bridge
Comm'n,
240 N.J.Super.
9, 24-25, 572 A.2d
204 (App.Div.) (applying special needs test in
upholding urine testing of bridge workers at annual physical examinations), certif.
denied, 122
N.J.
183, 584 A.2d
244 (1990).
1252-C-
Skinner,
Von Raab, and Vernonia
sustained suspicionless drug testing after finding a special governmental need
that would be jeopardized by adherence to the individualized suspicion standard. The Supreme Court found that the individuals
subject to testing had a diminished expectation of privacy because they worked
in a highly regulated industry, Skinner,
supra,
489 U.S.
at 627, 109 S.Ct.
at 1418, 103 L.Ed.2d
at 666, or worked for an agency with a “unique mission”
where employees “reasonably should expect effective inquiry into their fitness
and probity,” Von
Raab, supra,
489 U.S.
at 671-72, 674, 109 S.Ct.
at 1394, 103 L.Ed.2d
at 706-07, or were school children who
traditionally are not afforded the same constitutional protections as adults, Vernonia,
supra,
515 U.S.
at 654-57, 115 S.Ct.
at 2391-92, 132 L.Ed.2d
at 575-76.
In Skinner,
the Federal Railroad Administration (“FRA”) issued regulations requiring
railroad employees to submit to blood and urine tests to detect drug and
alcohol use whenever they were “involved in certain train accidents.” FN3 489
U.S.
at 606, 109 S.Ct.
at 1407, 103 L.Ed.2d
at 653 (footnote omitted). The regulations also authorized, but did not
require, “railroads to administer breath and urine tests to employees who
violate[d] certain safety *550
rules.” Id.
at 606, 109 S.Ct.
at 1407, 103 L.Ed.2d
at 653.
The FRA adopted its drug testing policies in response to evidence
indicating “that on-the-job intoxication was a significant problem in the
railroad industry,” and documenting a link between drug and alcohol impairment
and train accidents. Id.
at 607, 109 S.Ct.
at 1408, 103 L.Ed.2d
at 653.
Because the employees covered by the policies were engaged in
safety-sensitive tasks, and because the purpose of the policies was to promote
railway safety and not to prosecute employees for illegal drug use, the court
determined that the government had “present[ed] ‘special needs' beyond normal
law enforcement.” Id.
at 620, 109 S.Ct.
at 1415, 103 L.Ed.2d
at 661-62 (citation and internal quotations
omitted).
FN3. The FRA
promulgated the regulations at issue in Skinner under the general
authority given to the Secretary of Transportation by the Federal Railroad
Safety Act of 1970, 45
U.S.C.A.
§ 431(a), repealed
by Pub.L.
No.
103-272, § 7(b), 108 Stat.
1379 (July 5, 1994). The Skinner regulations are in some
sense precursors of the FTA regulations at issue in this case.
The Skinner
Court was satisfied that the FRA's standardized testing procedures served a
core purpose of the warrant requirement by providing “assurances of certainty
and regularity,” id.
at 624, 109 S.Ct.
at 1417, 103 L.Ed.2d
at 664, and concluded that delay in testing after
an accident or rule violation could result in the loss of evidence of drug use,
id.
at 623, 109 S.Ct.
at 1416, 103 L.Ed.2d
at 663-64.
In these circumstances, the Court held that the warrant requirement
would frustrate the purpose of the program.
Id.
at 623-24, 109 S.Ct.
at 1416-17, 103 L.Ed.2d
at 663-64.
Turning to the question whether, even in the absence of a warrant,
probable cause or individualized suspicion should be required, the Court
considered the privacy concerns implicated by the breath, blood and urine
testing. Id.
at 624-27, 109 S.Ct.
at 1417-18, 103 L.Ed.2d
at 664-66.
The intrusions occasioned by the breath and blood tests were deemed
relatively insignificant because these tests are fairly commonplace and
minimally inconvenient. Id.
at 625-26, 109 S.Ct.
at 1417-18, 103 L.Ed.2d
at 665.
The Court
then addressed the “more difficult question ... presented by the urine testing,”
which implicated privacy concerns not raised by the breath or blood tests
because “the procedures for collecting the necessary samples ... require
employees to perform an excretory function traditionally shielded by great
privacy.” Id.
at 626, 109 S.Ct.
at 1418, 103 L.Ed.2d
at 665-66.
*551 Although these concerns were not minimal, the Court found
that the FRA regulations sufficiently limited the intrusiveness of the
procedure by providing first, that the samples did not have to be furnished
under the direct observation of a monitor, and second, that the collection was
to take place in a medical environment similar to that of a physical
examination. Id.
at 626-27, 109 S.Ct.
at 1418, 103 L.Ed.2d
at 666.
The most important consideration in determining the intrusiveness of the
testing regime was that **1253 the employees subject to testing had a
diminished expectation of privacy because they worked “in an industry that is
regulated pervasively to ensure safety, a goal dependent, in substantial part,
on the health and fitness of the covered employees.” Id.
at 627, 109 S.Ct.
at 1418, 103 L.Ed.2d
at 666.
The
government's interest in testing without individualized suspicion was found to
be compelling because the “[e]mployees subject to the tests discharge [d]
duties fraught with such risks of injury to others that even a momentary lapse
of attention [could] have disastrous consequences.” Id.
at 628, 109 S.Ct.
at 1419, 103 L.Ed.2d
at 667. Detecting drug use among covered employees
was considered critical because the “employees who [were] subject to testing
under the FRA regulations [could] cause great human loss before any signs of
impairment [became] noticeable to supervisors or others.” Ibid. Balancing the government's
compelling interest in testing against the employees' limited privacy
interests, the Court concluded that it was “unrealistic, and inimical to the
Government's goal of ensuring safety in rail transportation, to require a
showing of individualized suspicion in these circumstances.” Id.
at 631, 109 S.Ct.
at 1421, 103 L.Ed.2d
at 669.
The Court upheld the FRA's suspicionless drug testing requirements.
Von
Raab sustained the United
States Customs Service's suspicionless drug testing of employees prior to
placement or employment in positions requiring them to carry firearms or
involving drug interdiction. 489
U.S.
at 656, 109 S.Ct.
at 1384, 103 L.Ed.2d
at 685.
Although the agency did not claim that the testing program was a
response to a demonstrated drug problem within
*552 the Service, id.
at 660, 109 S.Ct.
at 1388, 103 L.Ed.2d
at 698, the Court found that testing addressed
important safety concerns associated with work involving drug interdiction and
with “positions that require the incumbent to carry a firearm,” id.
at 670-71, 109 S.Ct.
at 1393, 103 L.Ed.2d
at 705.
These objectives were clearly not designed to serve ordinary law
enforcement needs but, rather, “present[ed] a special government need that may
justify departure from the ordinary warrant and probable-cause requirements.” Id.
at 666, 109 S.Ct.
at 1391, 103 L.Ed.2d
at 702.
Von
Raab dispensed with the
warrant requirement for certain “routine, yet sensitive, employment decisions”
because the cumbersome warrant procedures would compromise the Customs
Service's mission, and because a warrant would not provide any additional
privacy protection beyond the narrowly defined limits of the existing drug
testing program. Id.
at 667, 109 S.Ct.
at 1391, 103 L.Ed.2d
at 703.
The Court found that, in certain limited circumstances, the government's
need to conduct suspicionless searches “is sufficiently compelling to justify
the intrusion on privacy entailed by conducting such searches.” Id.
at 668, 109 S.Ct.
at 1392, 103 L.Ed.2d
at 704.
With respect to employees who carry firearms, even if those employees
are “not engaged directly in the interdiction of drugs,” the Court returned, in
part, to concerns expressed in Skinner:
Customs
employees who may use deadly force plainly “discharge duties fraught with such
risks of injury to others that even a momentary lapse of attention can have
disastrous consequences.” We agree with
the Government that the public should not bear the risk that employees who may
suffer from impaired perception and judgment will be promoted to positions
where they may need to employ deadly force.
Indeed, ensuring against the creation of this dangerous risk will itself
further Fourth Amendment values, as the use of deadly force may violate the
Fourth Amendment in certain circumstances.
[Id.
at 670-71, 109
S.Ct.
at 1393, 103 L.Ed.2d
at 705 (quoting Skinner,
supra,
489 U.S.
at 628, 109 S.Ct.
at 1419, 103 L.Ed.2d
at 667).]
Against
this compelling government interest in safety, the Court weighed the intrusion
on the employee's privacy interests.
Comparing employment in the Customs Service to employment in government
agencies such as the United States Mint, the intelligence*553 service and the military, where employees “may
not only be required to give what in other contexts might be viewed as
extraordinary assurances of trustworthiness and probity, but also may expect
intrusive inquiries **1254 into their physical fitness for those special
positions,” the Court found that customs employees “directly involved in the
interdiction of illegal drugs or ... required to carry firearms in the line of
duty have a diminished expectation of privacy in respect to the intrusions
occasioned by a urine test.” Id.
at 671-72, 109
S.Ct.
at 1394, 103 L.Ed.2d
at 706. “Because
successful performance of their duties depends uniquely on their judgment and
dexterity, these employees cannot reasonably expect to keep from the Service
personal information that bears directly on their fitness.” Id.
at 672, 109 S.Ct.
at 1394, 103 L.Ed.2d
at 706.
In Vernonia,
the Court upheld random drug testing of high school students participating in
interscholastic athletic competitions. 515
U.S.
at 646, 115 S.Ct.
at 2386, 132 L.Ed.2d
at 564.
In part, Vernonia turned on the “public-school context,” where
teachers and administrators have a “substantial need ... for freedom to maintain
order,” id.
at 653, 115 S.Ct.
at 2391, 132 L.Ed.2d
at 574 (citation omitted), and where students “ ‘have
a lesser expectation of privacy than members of the population generally,’ ” id.
at 657, 115 S.Ct.
at 2392, 132 L.Ed.2d
at 577 (citation omitted). Vernonia pointed to a record of
alcohol and drug abuse at the school and stressed the significance of deterring
drug use among school children generally, and among athletes specifically. Id.
at 661-63, 115 S.Ct.
at 2395, 132 L.Ed.2d
at 580. These interests weighed heavily against the
students' diminished expectation of privacy and tipped the balance such that
the Court found the school district's random drug testing policy reasonable. Id.
at 664-65, 115 S.Ct.
at 2396, 132 L.Ed.2d
at 582.
Most
recently, the Court reaffirmed the continued validity of the special needs balancing
approach, but struck down a Georgia statute requiring candidates for designated
state offices to provide proof that they had tested negative for drug use
within thirty days *554 prior to
nomination or election. Chandler,
supra,
520 U.S.
at ----, 117 S.Ct.
at 1299, 137 L.Ed.2d
at 520.
In the Court's view, the State had failed to establish a special need
because it had not presented “any indication of a concrete danger demanding
departure from the Fourth Amendment's main rule.” Id.
at ----, 117 S.Ct.
at 1303, 137 L.Ed.2d
at 526.
Georgia had not claimed that the testing program was instituted in response
to a drug problem amongst state office holders;
to the contrary, the state had admitted that there was no such
problem. Rather, Georgia said the
statute was “justified ... because the use of illegal drugs draws into question
an official's judgment and integrity;
jeopardizes the discharge of public functions ... and undermines public
confidence and trust in elected officials.”
Id.
at ----, 117 S.Ct.
at 1303-04, 137 L.Ed.2d
at 526.
The Court
acknowledged that, based on Von Raab, a “demonstrated problem of drug
abuse [is] ... not in all cases necessary to the validity of a testing regime.” Id. at ----, 117
S.Ct.
at 1303, 137 L.Ed.2d
at 526 (citing Von
Raab, supra,
489 U.S.
at 673-75, 109 S.Ct.
at 1395, 103 L.Ed.2d
at 707-08).
Justice Ginsburg was, however, quite clear on the significance of this
aspect of Von Raab: “Hardly a
decision opening broad vistas for suspicionless searches, Von Raab must
be read in its unique context.” Id.
at ----, 117
S.Ct.
at 1304, 137 L.Ed.2d
at 527.
She pointed out that the customs officers in Von Raab were
regularly in contact with criminal organizations dealing in large quantities of
drugs and that, unlike high-level state officials, the officers carried out
their responsibilities away from the scrutiny of their superiors and certainly
outside the scrutiny of the general public.
Id. at ----, 117
S.Ct.
at 1304, 137 L.Ed.2d
at 527-28 (citation omitted). Justice Ginsburg found Georgia's testing
scheme particularly disturbing because it was barely “credible [as a] means to
deter illicit drug users from seeking election to state office.” Id.
at ----, 117 S.Ct.
at 1303, 137 L.Ed.2d
at 526.
Where the special need was no more than a symbolic statement about the
struggle against drug abuse, even a minimally intrusive testing program could
not be upheld. Id.
at ----, 117 S.Ct.
at 1305, 137 L.Ed.2d
at 526.
*555 Post-Skinner/Von Raab cases
that have considered challenges to random drug testing programs under the
Fourth Amendment and parallel state constitutional provisions have **1255
generally upheld the testing of armed police officers as consistent with the
decisions of the Supreme Court. For
example, in National
Federation of Federal Employees v. Cheney,
884 F.2d
603, 612-13 (D.C.Cir.1989), cert. denied, 493
U.S.
1056, 110 S.Ct.
864, 107 L.Ed.2d
948 (1990), the D.C. Circuit sustained, under the
Federal Constitution, the Army's random testing of armed police and security
guards among others, because of their use of and accessibility to weapons, the
dangerous workplace setting, and the highly regulated nature of their
positions. And, in Guiney
v. Roache,
873 F.2d
1557, 1558 (1st Cir.), cert. denied, 493
U.S.
963, 110 S.Ct.
404, 107 L.Ed.2d
370 (1989), the First Circuit approved random
testing of police officers under the Fourth Amendment because, like the customs
employees in Von Raab, police officers carry firearms and participate in
drug interdiction. The Supreme Court of
Hawaii, analyzing random testing of police officers under a state
constitutional provision similar to New Jersey's Article
I, Paragraph 7, has reached the same result. McCloskey
v. Honolulu Police Dep't,
71 Haw.
568, 799 P.2d
953, 958-59 (1990). Hawaii's high court relied on the police
officers' diminished expectations of privacy and on its finding that the “testing
program [was] not more intrusive than needed” to uphold the Honolulu Police
Department's random testing program. Id.
799 P.2d
at 958-59.
But see Guiney
v. Police Comm'r of Boston,
411 Mass.
328, 582 N.E.2d
523, 526 (1991) (holding Boston Police
Department's random drug testing program unconstitutional under state
constitution because “body searches” cannot be justified by “some generalized
sense that there is a drug problem ... and that random urinalyses of police
officers will solve, or at least help to solve, the problem or its consequences”).
-D-
[4] The PBA argues that the special needs test is not
compatible with Article
1, Paragraph 7 of the New Jersey Constitution *556 which this Court has read to
provide greater protection than is provided by its federal counterpart. In cases presenting an issue implicating
Fourth Amendment and Article
I, Paragraph 7 rights, this Court has considered
whether our State Constitution is to be interpreted more expansively “than may
be required by the [United States] Supreme Court's prevailing interpretation of
the Fourth Amendment.” State
v. Bruzzese,
94 N.J.
210, 216, 463 A.2d
320 (1983), cert. denied, 465
U.S.
1030, 104 S.Ct.
1295, 79 L.Ed.2d
695 (1984).
We have, in certain circumstances, found that Article
1, Paragraph 7 affords greater protection against
unreasonable searches and seizures than does the Federal Constitution. See, e.g., State
v. Pierce,
136 N.J.
184, 208-15, 642 A.2d
947 (1994) (holding that vehicular search incident
to arrest for traffic offense is unreasonable under State
Constitution); Hempele,
supra,
120 N.J.
at 200-15, 576 A.2d
793 (finding that state constitution protects reasonable expectation of privacy
in garbage left at curbside); State
v. Novembrino,
105 N.J.
95, 157-58, 519 A.2d
820 (1987) (refusing to adopt good-faith
exception under state constitution); State
v. Hunt,
91 N.J.
338, 344-47, 450 A.2d
952 (1982) (holding that state constitution
protects privacy interests in telephone toll billing records); State
v. Alston,
88 N.J.
211, 228, 440 A.2d
1311 (1981) (finding more liberal criteria for
standing to challenge validity of search under state constitution); State
v. Johnson,
68 N.J.
349, 353-54, 346 A.2d
66 (1975) (imposing heavier burden on State to
show validity of non-custodial consent to search under state
constitution). These examples
demonstrate that New Jersey has taken a more limited view of the traditional
exceptions to the warrant requirement.
We find
that the special needs test provides a useful analytical framework for
considering the protections afforded by Article
I, Paragraph 7 of the New Jersey Constitution and
adopt this approach in our review of NJ Transit's drug testing program. This approach enables a court to take into
account the complex factors relevant in each case and to balance those factors
in such manner as to ensure that the right against unreasonable searches and
seizures is adequately protected. See
Chandler, supra, 520 *557 U.S.
at 1295, 117
S.Ct.
at 1305, 137 L.Ed.2d
at 529 (refusing to sustain “suspicionless
search, no matter how conveniently arranged,” where **1256 “public
safety is not genuinely in jeopardy”).
Although, until today, we have not had occasion to apply special needs
balancing to a random drug testing program, we have recognized the validity of
this approach under Article
1, Paragraph 7. See O'Keefe,
supra,
132 N.J.
at 242, 624 A.2d
578; Hempele,
supra,
120 N.J.
at 218, 576 A.2d
793. In Hempele,
the Court explained:
Once the
protections of article
1, paragraph 7 apply, a lower expectation of
privacy is not a sufficient basis on which to carve out an exception to the
warrant and probable-cause requirement.
We can dispense with that requirement “[o]nly in those exceptional
circumstances in which special needs, beyond the normal need for law
enforcement, make the warrant and probable cause requirement impracticable....” If a “special need” does exist, we can then
make an exception to the requirement only after we “balance the nature and
quality of the intrusion on the individual's [article
1, paragraph 7] interests against the importance
of the governmental interests alleged to justify the intrusion.”
[120
N.J.
at 218, 576 A.2d
793 (alterations in original) (citations omitted).]
In the
context of a warrantless search of garbage, the Court determined that a
suspicionless search could not be sustained.
Id.
at 221, 576 A.2d
793. In
effect, the government had failed to establish a special need “because the
purpose of the garbage searches was enforcement of the drug laws, not of
garbage regulations.” Id.
at 219, 576 A.2d
793.
The Court
also discussed the special needs approach in O'Keefe, supra. O'Keefe involved a constitutional
challenge to the Passaic Valley Water Commission's policy requiring applicants
for employment to submit to a drug test.
132
N.J.
at 236, 624 A.2d
578.
O'Keefe, an unsuccessful applicant, claimed that he was not hired
because he refused to comply with the drug testing policy. Ibid. The Court found that the
Commission had rejected O'Keefe for reasons unrelated to his refusal to take
the drug test, and did not reach the constitutional issue. Id.
at 236-37, 624 A.2d
578.
Nevertheless, the Court stated:
An
analysis of the Fourth Amendment to the United States Constitution or
article one, paragraph seven of the New Jersey Constitution initially poses
the question *558 whether an
employer has a “special ... need[ ] beyond the normal need for law enforcement”
to test applicants.
[Id.
at 242, 624 A.2d
578 (citation omitted) (emphasis added).]
See
also Hennessey,
supra,
129 N.J.
at 99-108, 609 A.2d
11 (applying balancing approach to drug testing
of oil refinery employees).
Although
these cases indicate our agreement with the United States Supreme Court's
special needs analysis, PBA encourages us to follow FOP, supra. FOP, which was decided prior to Skinner
and Von Raab, struck down random drug testing of narcotics bureau
officers by the Newark Police Department under Article
1, Paragraph 7. 216
N.J.Super.
at 474-78, 524 A.2d
430. In
reaching this result, the court rejected the city's contention that police
officers are members of a highly regulated industry, id.
at 469, 524 A.2d
430, and relied on the absence of a factual
showing that drug use was widespread among narcotics officers. Id.
at 474, 524 A.2d
430.
Cases decided since FOP call into question the continued validity
of its holding. To the extent that FOP
is inconsistent with the special needs test we adopt today, it is overruled.
III
-A-
[5] We turn now to the question whether, under Article
1, Paragraph 7, NJ Transit's random drug testing
program “ranks among the limited circumstances in which suspicionless searches
are warranted.” Chandler,
supra,
520 U.S.
at ----, 117 S.Ct.
at 1298, 137 L.Ed.2d
at 519.
First, we consider the Agency's claim that there exists a special
governmental need that justifies testing without individualized suspicion. Critical to the issue of whether a special
need exists is the purpose of NJ Transit's random drug testing program, which “is
to ensure that [the Agency]**1257
operates in the safest and most efficient manner possible and to promote
the safety and welfare of [its] employees and customers.” Core Policy § I. By making random testing applicable only
to those employees *559 who
perform safety-sensitive functions, Addendum I tailors NJ Transit's
testing program to its purpose.
The record
demonstrates that transit officers ride the rails and perform patrol and
investigatory police duties at NJ Transit terminals and locations throughout
the state. The officers perform these
duties independently, and are not subject “to the kind of day-to-day scrutiny
that is the norm in more traditional office environments,” making drug
detection based on observation difficult, if not impossible. Von
Raab, supra,
489 U.S.
at 674, 109 S.Ct.
at 1395, 103 L.Ed.2d
at 707.
In these circumstances, requiring the Agency to comply with the
individualized suspicion standard would be impractical. Such a requirement would also compromise the
Agency's safety objectives because officers who are drug impaired could “cause
great human loss before any signs of impairment become noticeable to
supervisors or others.” Skinner,
supra,
489 U.S.
at 628, 109 S.Ct.
at 1419, 103 L.Ed.2d
at 667.
Because NJ Transit's testing policy is designed to promote public safety
and not to serve law enforcement needs, the Agency's substantial interest in
protecting its employees and the public presents a special need that may “justif[y]
the privacy intrusions at issue absent ... individualized suspicion.” Id.
at 621, 109 S.Ct.
at 1415, 103 L.Ed.2d
at 662-63.
-B-
[6] Our next step, then, is to “undertake a context-specific
inquiry, examining closely the competing private and public interests advanced
by the parties.” Chandler,
supra,
520 U.S.
at ----, 117 S.Ct.
at 1303, 137 L.Ed.2d
at 526.
We begin with the privacy interests of the transit officers subject to
testing. Urine testing, although “not
invasive of the body,” is certainly an intrusion on privacy both during
collection of the sample and when the sample is tested. Skinner,
supra,
489 U.S.
at 626-27, 109 S.Ct.
at 1418-19, 103 L.Ed.2d
at 665-66.
The collection process constitutes an intrusion because it requires an
employee, at the request of another, to “perform an excretory function
traditionally shielded *560 by
great privacy”. Id.
at 626, 109 S.Ct.
at 1418, 103 L.Ed.2d
at 655.
The subsequent “chemical analysis of the sample to obtain physiological
data is a further invasion of the tested [employee's] privacy interests,” id.
at 616, 109 S.Ct.
at 1413, 103 L.Ed.2d
at 659, as is the potential for dissemination of
the test results and any medical information obtained through testing. See State
ex rel. J.G.,
151 N.J.
565, 586-588, 701 A.2d
1260 (1997).
NJ Transit's testing procedures are designed to address these privacy
concerns and to minimize the intrusion on the employee's privacy.
Toward
this end, the procedures require the urine sample to be collected in a manner
that ensures the modesty and privacy of transit employees. The collection site must permit individual
privacy while a specimen is produced. Core
Policy § IX.F. Only when the
employer has reason to believe that the employee may adulterate the sample, and
only after review and approval by a supervisor, may another person of the same
gender as the employee observe the employee produce a specimen. To ensure the accuracy of the urinalysis,
samples are tested at a laboratory certified by the DHHS. Samples that test
positive for the designated substances are analyzed a second time to guard
against false positive results and must be verified by the MRO, who is
responsible for examining possible alternative medical explanations. Employees who test positive have the right
to have a third test performed by the DHHS-certified laboratory of their
choice. See supra at 538-540,
701 A.2d at 1246-1247.
NJ
Transit's policy and the FTA's regulations also protect employees' privacy
interests by specifically listing the substances for which samples will be
tested and by requiring FTA approval for additional testing. Core Policy § IX.A; 49
C.F.R.
§ 40.21(b). Any other analysis of urine specimens is
expressly prohibited by federal regulation.
Id. § 40.21(c). Pursuant to federal mandate, NJ Transit
cannot compel the employee to provide information about prescription medication**1258 or other medical conditions. Id. § § 40.23(a), 40.33(b)-(c). In addition, employees' records must be *561 kept confidential and are
reported only to the appropriate management official and the employee, except
in certain limited circumstances or “as required by law.” Id. §
653.75; see also Core Policy
§ XIII;
Addendum I § XIII.
One
exception to the disclosure limitations is found only in NJ Transit's Addendum
I. Based on the Agency's interpretation of the Attorney General's Guidelines,
see supra at 540, 701 A.2d at 1247, the Division of State Police
keeps records of transit officers' positive test results, which can be obtained
“only through court order or as part of a confidential investigation related to
law enforcement employment.” Addendum
I § XIII.A.1. The officers' positive
results are also reported to the county prosecutor. Ibid. We leave to the Attorney General
to clarify his intent in respect of such disclosure, noting only that the
release of information required to be kept by federal rule, including the
results of all drug testing, see 49 C.F.R. § 653.71, is precluded except as set forth in
49 C.F.R. § 653.75. In asking the
Attorney General to revisit the disclosure question, we do not suggest that NJ
Transit's program is in any way designed to effectuate law enforcement
purposes.
[7] We find that NJ Transit's drug testing program, as
designed, limits the intrusion on transit officers' privacy interests, and now
consider the nature of those interests.
In the heavily regulated rail and mass transportation industries, safety
depends on the health and fitness of covered
employees. See Skinner,
supra,
489 U.S.
at 627, 109 S.Ct.
at 1418, 103 L.Ed.2d
at 666.
Like other such employees and, most important, because of their law
enforcement status, transit police officers have a diminished expectation of
privacy. Rawlings,
supra,
133 N.J.
at 189-90, 627 A.2d
602.
Transit officers exercise traditional police powers and duties, and are
subject to the rules and regulations governing police conduct. See N.J.S.A.
27:25-15.1. They are permitted to carry firearms
and to “ ‘exercis[e] the most awesome and dangerous power that a democratic
state possesses with respect to its residents-the power to use lawful force to
arrest and detain them.’ ” Rawlings,
supra,
133 N.J.
at 189, 627 A.2d
602 (quoting
*562 PBA
Local 318, supra,
850 F.2d
at 141) (alteration in original). At any time, whether on a crowded station
platform or on a moving train, they may be called on to exercise discretion in
the use of a weapon. At that moment,
the officer's judgment is critical.
Given the nature of their responsibilities, transit officers, “[u]nlike
most private citizens or government employees in general, ... should expect an
effective inquiry into their fitness and probity.” Von
Raab, supra,
489 U.S.
at 672, 109 S.Ct.
at 1394, 103 L.Ed.2d
at 706; see
also Rawlings,
supra,
133 N.J.
at 189-90, 627 A.2d
602. For
these reasons, we find that the proposed testing “pose[s] only [a] limited
threat[ ] to the justifiable expectations of privacy” of transit police
officers. Skinner,
supra,
489 U.S.
at 628, 109 S.Ct
at 1420, 103 L.Ed.2d
at 667.
[8] The government's interest in conducting random drug
testing of employees who carry firearms for security purposes is
substantial. Transit police officers
are subject to testing because they perform a safety-sensitive function under
the terms of Addendum I. If armed transit officers perform their duties
under the influence of drugs, the potential for harmful consequences is
considerable. The FTA recognized this
potential when it included employees who carry firearms for security purposes
as a “safety-sensitive” category in the 1994 regulations. The FTA notice accompanying the regulations
stated that “firearm-bearing police and security personnel [were included]
because of the sensitivity of their position and the danger to the public
should they be under the influence of prohibited drugs.” Prevention
of Prohibited Drug Use in Transit Operations, 59 Fed.Reg.
7572, 7575 (1994).
In Rawlings,
supra, we observed that “[t]he threat to public safety of a police officer
acting under the influence of drugs is ‘manifest.’ ” 133
N.J.
at 189, 627 A.2d
602 (citation omitted). Although use of a weapon by a drug impaired
police officer could cause great harm in any case, the fact that a significant
number of transit officers patrol the state's main transportation terminals,
through which thousands of passengers pass daily, is cause for particular
concern. Here, **1259 as in Von
Raab, officers “who may use *563
deadly force plainly ‘discharge duties fraught with such risks of injury to
others that even a momentary lapse of attention can have disastrous
consequences.’ ” Von
Raab, supra,
489 U.S.
at 670, 109 S.Ct.
at 1393, 103 L.Ed.2d
at 705 (quoting Skinner,
supra,
489 U.S.
at 628, 109 S.Ct.
at 1414, 103 L.Ed.2d
at 667); see
Rawlings,
supra,
133 N.J.
at 189, 627 A.2d
602.
The
concerns about illegal drug use by police officers are not simply
hypothetical. We were informed at oral
argument that preemployment and random drug testing of trainees at the State
Police Academy and reasonable suspicion testing of police officers under the
Attorney General's Guidelines show a statewide positive rate of about
four percent. Available information
indicates that police departments generally have not been immune from the drug
use that has affected other workplaces.
See Joseph F. Dietrich & Janette Smith, The Nonmedical Use
of Drugs Including Alcohol Among Police Personnel: A Critical Literature Review, 14 J.
Police Science & Admin. 300, 300-03 (1986). Moreover, drug use is difficult to address
because officers frequently function away from their supervisors and are
exposed to illegal drug activity. Id.
at 302-03.
That
transit police officers often carry out their duties independently of their
superiors and do not work in an office environment where drug use would be more
readily observable strengthens the government's interest in random
testing. This may explain why NJ
Transit has documented only two incidents of drug use by officers in recent
years: in 1991 one officer tested
positive for cocaine and pled guilty to altering a painkiller prescription and,
in 1995, following a reasonable suspicion test, an officer was discharged when
he tested positive for cocaine, marijuana, an opiate and morphine. As discussed previously, see supra at
554, 701 A.2d at 1254, in Chandler, supra, the Court found “a
telling difference between [the customs officials tested in] Von Raab
and Georgia's candidate drug-testing program,” because “[i]n Von Raab it
was ‘not feasible to subject employees [required to carry firearms] ... to the
kind of day-to-day scrutiny that is the norm in
*564 more traditional office environments.’ ” Chandler,
supra,
520 U.S.
at ----, 117 S.Ct.
at 1304, 137 L.Ed.2d
at 527 (quoting Von
Raab, supra,
489 U.S.
at 674, 109 S.Ct.
at 1395, 103 L.Ed.2d
at 707) (alteration in original). Precisely for the same reasons as in Von
Raab, it would be difficult to detect any drug impairment of transit
officers. The impracticality of
detection based on daily observation means that suspicion-based testing is not
likely to be effective in deterring drug use, and that reliance on
individualized suspicion alone would compromise the Agency's safety objectives.
The
government also has a compelling interest in ensuring that its drug enforcement
authorities are themselves drug-free.
We give less emphasis to this interest because it is not clear from the
record the extent to which transit officers are actively involved in drug
interdiction efforts. The PBA has
stated that some transit officers participate in a drug interdiction task force
with the Essex County Sheriff's Department.
We note, also, that transit officers have “general authority, without
limitation, to exercise police powers and duties, as provided by law for police
officers and law enforcement officers, in all criminal and traffic matters at
all times throughout the State.” N.J.S.A.
27:25-15.1. Insofar as the officers are
responsible for enforcing the state's drug laws, it is in the public interest
to prevent those who use drugs from carrying out drug interdiction duties. See Von
Raab, supra,
489 U.S.
at 669, 109 S.Ct.
at 1393, 103 L.Ed.2d
at 704-05.
The United
States Supreme Court found nearly identical governmental interests compelling
in Von Raab. While we acknowledge that Von Raab was “[h]ardly a
decision opening broad vistas for suspicionless searches” and “must be read in
its unique context,” Chandler,
supra,
520 U.S.
at ----, 117 S.Ct.
at 1304, 137 L.Ed.2d
at 527, we find the random drug testing of NJ
Transit police officers to raise essentially the same concerns as the testing
of customs officers who carry firearms.
-IV-
[9] Having considered the transit police officers' decreased
expectation of privacy, the **1260 adequate limitations on the
obtrusiveness *565 of the
testing, and the compelling state interest in promoting safe conduct by armed
officers, we hold that random drug testing of NJ Transit's police force is
constitutional under Article
1, Paragraph 7 of the New Jersey Constitution.
The
judgment of the Appellate Division is affirmed.
For
affirmance-Chief Justice PORITZ, and Justices HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN-7.
Opposed-None.
N.J.,1997.
New Jersey
Transit PBA Local 304 v. New Jersey Transit Corp.
151 N.J.
531, 701 A.2d 1243, 13 IER Cases 449
END OF
DOCUMENT