Supreme Court of New Jersey.
Willie H. RAWLINGS, Plaintiff-Appellant,
v.
POLICE DEPARTMENT OF JERSEY CITY, NEW JERSEY, Defendant-Respondent.
Argued Feb. 1, 1993.
Decided July 13, 1993.
Police officer challenged dismissal for refusal to submit to drug test after officer was arrested. The Merit System Board upheld the dismissal. The Superior Court, Appellate Division, affirmed, and officer appealed. After granting certiorari 130 N.J. 18, 611 A.2d 656, the Supreme Court, Pollock, J., held that: (1) individualized reasonable suspicion of drug use satisfied requirements of Fourth Amendment; (2) evidence supported board's finding of reasonable suspicion of officer's drug use; (3) requiring officer to provide urine sample did not violate Fifth Amendment; (4) attorney-client privilege did not prevent disclosure of conversation between officer and union representative; and (5) dismissal was fairly proportionate to offense.
Affirmed.
O'Hern, J., filed dissenting opinion in which Stein, J., joined.
West Headnotes
[1] Searches and Seizures 349 14
349 Searches and Seizures
349I In General
349k13 What Constitutes Search or Seizure
349k14 k. Taking Samples of Blood, or Other Physical
Specimens; Handwriting Exemplars. Most
Cited Cases
Drug test
performed pursuant to government's departmental regulation is “search” subject
to requirements of Fourth Amendment. U.S.C.A.
Const.Amend. 4.
[2] Searches and Seizures 349 23
349 Searches and Seizures
349I In General
349k23 k. Fourth Amendment and Reasonableness in General. Most
Cited Cases
Search may
be valid absent warrant, probable cause, or even reasonable individualized
suspicion if search serves special governmental needs beyond normal need for
law enforcement, and interests of government outweigh privacy expectations of
individual so that it is impractical to require warrant or some level of
individualized suspicion. U.S.C.A.
Const.Amend. 4.
[3] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Police
department had compelling interest in performing drug test on police officer
after his arrest; order designed to
deter drug use by police officers and identify officers using drugs served “special
governmental needs”. U.S.C.A.
Const.Amend. 4.
[4] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Police
officer had diminished expectation of privacy for purposes of determining
employer's right to test officer for drugs.
U.S.C.A.
Const.Amend. 4.
[5] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Effective
inquiry into police officer's fitness and probity may include urinalysis to
detect use of illegal drugs. U.S.C.A.
Const.Amend. 4.
[6] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Police
department's interest in ordering drug test of officer who was arrested
significantly outweighed officer's privacy interest in freedom from drug
testing, for purposes of determining whether exception to Fourth Amendment's
warrant and probable cause requirements applied. U.S.C.A.
Const.Amend. 4.
[7] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
To justify
directive that police officer provide urine sample for drug test, Fourth
Amendment requires only reasonable suspicion, not probable cause. U.S.C.A.
Const.Amend. 4.
[8] Municipal Corporations 268 185(10)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of Policemen
268k185(10) k. Sufficiency of Evidence to Support Finding or Decision.
Most
Cited Cases
Evidence
supported Merit System Board's finding that drug testing of city police officer
was based on individualized reasonable suspicion, where three members of
narcotics squad observed officer participating in suspected drug transaction,
vials of cocaine were discovered on floor on passenger side of officer's
vehicle and on adjacent sidewalk, and officer was the only participant with
cash; department could reasonably have
concluded that officer had used drugs. U.S.C.A.
Const.Amend. 4.
[9] Municipal Corporations 268 185(9)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of Policemen
268k185(9) k. Evidence in General. Most
Cited Cases
Fourth
Amendment does not compel exclusion from departmental disciplinary proceeding
of evidence that city police officer refused to submit to drug test that
department requested based on individualized reasonable suspicion that officer
had used illegal drugs. U.S.C.A.
Const.Amend. 4.
[10] Municipal Corporations 268 185(3)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of Policemen
268k185(3) k. Proceedings to Remove in General. Most
Cited Cases
Police
officer does not necessarily acquire greater rights in disciplinary proceeding
merely because he or she was arrested and indicted for related criminal
offenses.
[11] Criminal Law 110 393(1)
110 Criminal Law
110XVII Evidence
110XVII(I) Competency in General
110k393 Compelling Self-Incrimination
110k393(1) k. In General. Most
Cited Cases
Police
department's direction to officer to provide urine sample after officer was
arrested did not violate officer's Fifth Amendment right against
self-incrimination; officer was not
required to testify against himself. U.S.C.A.
Const.Amend. 5.
[12] Criminal Law 110 393(1)
110 Criminal Law
110XVII Evidence
110XVII(I) Competency in General
110k393 Compelling Self-Incrimination
110k393(1) k. In General. Most
Cited Cases
Witnesses 410 297(1)
410 Witnesses
410III Examination
410III(D) Privilege of Witness
410k297 Self-Incrimination
410k297(1) k. In General. Most
Cited Cases
Privilege
against self-incrimination protects accused from testifying against himself or
herself, not from providing bodily fluids such as urine samples for chemical
analysis. U.S.C.A.
Const.Amend. 5.
[13] Criminal Law 110 393(1)
110 Criminal Law
110XVII Evidence
110XVII(I) Competency in General
110k393 Compelling Self-Incrimination
110k393(1) k. In General. Most
Cited Cases
For
purposes of determining whether Fifth Amendment privilege against
self-incrimination is violated, there is no difference between testing blood or
breath for alcohol and testing urine for illegal drugs. U.S.C.A.
Const.Amend. 5.
[14] Municipal Corporations 268 185(10)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of Policemen
268k185(10) k. Sufficiency of Evidence to Support Finding or Decision.
Most
Cited Cases
Evidence
supported Merit System Board's determination that arrested city police officer
refused to submit urine sample for drug testing because he was afraid he would
fail the test, rather than because he was confused over privilege against
self-incrimination. U.S.C.A.
Const.Amend. 5.
[15] Witnesses 410 199(1)
410 Witnesses
410II Competency
410II(D) Confidential Relations and Privileged Communications
410k197 Communications to or Advice by Attorney or Counsel
410k199 Relation of Attorney and Client
410k199(1) k. In General. Most
Cited Cases
Attorney-client
privilege did not prevent disclosure of conversation between arrested police
officer who refused to submit to drug test and officer's union representative
who was not attorney or attorney's agent.
[16] Witnesses 410 198(1)
410 Witnesses
410II Competency
410II(D) Confidential
Relations and Privileged Communications
410k197 Communications to or Advice by Attorney or Counsel
410k198 In General
410k198(1) k. In General. Most
Cited Cases
Witnesses 410 206
410 Witnesses
410II Competency
410II(D) Confidential Relations and Privileged Communications
410k197 Communications to or Advice by Attorney or Counsel
410k206 k. Communications Through or in Presence or Hearing of
Others. Most
Cited Cases
Attorney-client
privilege covers only communications between client and lawyer, and client's
communications made through necessary intermediaries and agents. Rules of Evid., N.J.S.A. 2A:84A, Rule 26.
[17] Municipal Corporations 268 185(1)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of Policemen
268k185(1) k. Grounds for Removal or Suspension. Most
Cited Cases
Dismissal
is fairly proportionate to offense of city police officer who refuses to submit
to drug test when his or her supervisor has reasonable suspicion to believe
that officer has used illegal drugs.
**603*185 Emanuel S. Fish,
Maplewood, for appellant (Fish, Field, Olesnycky & Livingston,
attorneys; Stacy
I. Benson, on the brief).
Carol
Zylbert, Asst. Corp. Counsel, for respondent (Paul
W. Mackey, Acting Corp. Counsel, attorney).
The
opinion of the Court was delivered by
POLLOCK,
J.
This case
presents the issue whether defendant, Police Department of Jersey City (the
department), violated the rights of plaintiff, Willie H. Rawlings, a police
officer, under the Fourth and Fifth Amendments to the United States
Constitution by directing him to submit a urine sample for mandatory drug
testing. The department directed him to
provide the sample pursuant to a departmental order that required officers to
submit to testing on individualized reasonable suspicion that the officer
unlawfully had used drugs. Plaintiff
refused to obey the order following his *186
arrest on suspicion of possessing and distributing cocaine. Because of plaintiff's refusal, the
department dismissed him for insubordination.
An Administrative Law Judge (ALJ) upheld the validity of the
departmental order and affirmed plaintiff's dismissal. The Merit System Board (Board) adopted the
ALJ's report. In an unpublished
opinion, the Appellate Division affirmed.
We granted certification, **604130
N.J.
18, 611 A.2d 656 (1992), and
now affirm the Appellate Division's judgment.
-I-
Based on
the ALJ's report, the Board found the following facts. On June 26, 1988, members of the Jersey City
Police Narcotics Squad arrested plaintiff on suspicion of selling cocaine. At the time of his arrest, plaintiff was
sitting in the driver's seat of his parked car. His passenger, Elwood Fowlkes, was talking
through the open passenger-side window to Dennis Williams, who was standing on
the sidewalk. When two detectives from
the Narcotics Squad approached plaintiff's car, Williams threw a vial of
cocaine to the sidewalk, and Fowlkes dropped two other vials of cocaine on the
floor of the car. One of the detectives
testified that he saw plaintiff drop an empty vial on the floor at plaintiff's
feet. The Narcotics Squad detectives
also saw money being exchanged for the cocaine. The only suspect with any money was
plaintiff, who had a twenty-dollar bill in his hand.
Plaintiff,
Fowlkes, and Williams were arrested and placed in a holding cell. Inspector John McAuley informed Richard
Harrison, the head of the Narcotics Squad, that plaintiff at the time of his
arrest should have been on duty at the police “car pound.” McAuley directed Harrison to enforce
departmental General Order 15-87 (the order), relating to “Law Enforcement Drug
Screening Guidelines.” The order
provided in relevant part:
(c)
Officers will be required to submit to mandatory drug testing whenever there is
individualized reasonable suspicion to believe that they have been unlawfully
using drugs;
(d)
Officers who refuse to submit to lawful orders to undergo drug testing or who
produce positive test results for unlawful drug use will be dismissed from
employment....
*187 The order also mandated that the
department implement the Law Enforcement Drug Screening Guidelines
issued on October 22, 1986, by the Attorney General of New Jersey.
Harrison
read to plaintiff Miranda warnings, see Miranda
v. Arizona,
384 U.S.
436, 86 S.Ct.
1602, 16 L.Ed.2d
694 (1966), and the order. Plaintiff placed a private telephone call to
Officer John Reo, vice president of the Jersey City Police Officers' Benevolent
Association (POBA), plaintiff's union.
When Reo asked plaintiff if he had retained an attorney, plaintiff
answered that he would call an attorney the following day. According to Reo, plaintiff next said that
he doubted that he could pass the drug test and asked if he should comply with
the departmental order. Reo told
plaintiff that he was required to take the test, but added that if he, Reo,
doubted that he could pass the test, he would refuse.
After the
telephone call, Harrison again read the order to plaintiff, who refused to
comply, stating that before he would consider submitting a urine sample he
wanted to speak with his attorney.
McAuley suspended plaintiff and issued a preliminary notice of
disciplinary action charging him with violating General Order 610, which requires
officers to obey and execute promptly the lawful orders of their superiors,
such as General Order 15-87. After an
internal hearing on July 26, 1988, the department dismissed plaintiff for
insubordination.
In a
related criminal proceeding, plaintiff was indicted for illegal distribution of
a controlled dangerous substance and related offenses. At the criminal trial, Fowlkes testified
that plaintiff did not know at the time of the arrest that he and Williams had
possessed cocaine. Fowlkes testified
further that plaintiff had received the twenty-dollar bill in payment for
repairing a neighbor's air conditioner.
The jury convicted Fowlkes but acquitted plaintiff.
Plaintiff
appealed the dismissal to the State Department of Personnel, which forwarded
the appeal to the Office of Administrative Law (OAL). The ALJ refused to quash a subpoena served
on Reo, who then testified about his telephone conversation with *188 plaintiff. At the conclusion of the hearing, the ALJ
sustained the charge of insubordination and the dismissal.
**605 The Appellate Division stated that
plaintiff had not challenged the Board's finding that the circumstances of his
arrest gave rise to reasonable individualized suspicion that he had used
illegal drugs. It also ruled that the
attorney-client privilege did not protect plaintiff's telephone conversation
with Reo. Finally, it rejected
plaintiff's claim that he had refused to submit a urine sample because he was
confused about the impact of the Miranda warnings or because he feared
that the drug-test results could be used against him in a criminal proceeding.
-II-
[1] A drug test performed pursuant to a departmental
regulation, such as General Order 15-87, 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) (citing Skinner
v. Railway Labor Executives' Ass'n,
489 U.S.
602, 617, 109 S.Ct.
1402, 1413, 103 L.Ed.2d
639, 660 (1989);
National
Treasury Employees Union v. Von Raab,
489 U.S.
656, 665, 109 S.Ct.
1384, 1390, 103 L.Ed.2d
685, 701 (1989)). Consequently, the test must meet the
reasonableness requirement of the Fourth Amendment, National
Treasury Employees Union v. Von Raab,
489 U.S.
656, 665, 109 S.Ct.
1384, 1390, 103 L.Ed.2d
685, 701-02 (1989), which “ ‘depends on all the
circumstances surrounding the search or seizure [drug test],’ ” Skinner
v. Railway Labor Executives' Ass'n,
489 U.S.
602, 619, 109 S.Ct.
1402, 1414, 103 L.Ed.2d
639, 661 (1989) (quoting United
States v. Montoya de Hernandez,
473 U.S.
531, 537, 105 S.Ct.
3304, 3308, 87 L.Ed.2d
381, 388 (1985)).
[2] Generally, searches must be based on a warrant supported
by probable cause. In exceptional
circumstances, a search may be valid in the absence of a warrant, probable
cause, or even reasonable individualized suspicion. Von
Raab, supra,
489 U.S.
at 665, 109 S.Ct.
at 1390, 103 L.Ed.2d
at 702; Skinner,
supra,
489 U.S.
at 619, 109 S.Ct.
at 1414, 103 L.Ed.2d
at 661.
Specifically, when the search “serves special governmental needs, beyond
the normal *189 need for law
enforcement,” a court must balance the privacy expectations of the individual
against the interests of the government “to determine whether it is impractical
to require a warrant or some level of individualized suspicion....” Von
Raab, supra,
489 U.S.
at 665-66, 109 S.Ct.
at 1390, 103 L.Ed.2d
at 702; accord
Skinner,
supra,
489 U.S.
at 619, 109 S.Ct.
at 1414, 103 L.Ed.2d
at 661 (citing Griffin
v. Wisconsin,
483 U.S.
868, 873, 107 S.Ct.
3164, 3167, 97 L.Ed.2d
709, 717 (1987)).
[3] The challenged order, which is designed to deter drug use
by police officers and identify officers who are using drugs, serves “special
governmental needs.” It follows that
the department had a compelling interest in testing plaintiff after his
arrest. The threat to public safety of
a police officer acting under the influence of drugs is “manifest.” National
Fed'n of Fed. Employees v. Cheney,
884 F.2d
603, 612 (D.C.Cir.1989), cert. denied, 493
U.S.
1056, 110 S.Ct.
864, 107 L.Ed.2d
948 (1990).
An officer's authorization to carry firearms, see N.J.S.A.
2C:39-6a(7), and the unpredictable demands of his or her job make the daily
routine “ ‘fraught with such risks of injury to others that even a momentary
lapse of attention can have disastrous consequences.’ ” American
Fed'n of Gov't Employees, Local 1533 v. Cheney,
754 F.Supp.
1409, 1423 (N.D.Cal.1990) (quoting Von
Raab, supra,
489 U.S.
at 670, 109 S.Ct.
at 1393, 103 L.Ed.2d
at 705), aff'd, 944
F.2d
503 (9th Cir.1991). Every police officer understands that an
officer who uses or sells drugs is a threat to the public.
[4] [5] [6] Drug testing serves to deter the use of illegal drugs by
law-enforcement officials. As a police
officer, plaintiff had a diminished expectation of privacy. The department entrusted him to carry
firearms, drive emergency vehicles, and “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.” Policemen's
Benevolent Ass'n of N.J. v. Township of Washington,
850 F.2d
133, 141 (3d Cir.1988). He was in a “safety-sensitive” position, see
**606Ford
v. Dowd, 931 F.2d
1286, 1290 (8th Cir.1991) (stating that police
officer is in *190 “safety-sensitive”
position because he carries firearms and drives emergency vehicles), and should
have expected an effective inquiry into his fitness and probity. Such an inquiry may include a urinalysis to
detect the use of illegal drugs. See Von
Raab, supra,
489 U.S.
at 672, 109 S.Ct.
at 1394, 103 L.Ed.2d
at 706 (stating that government employees who
carry firearms reasonably should expect effective inquiry into their
fitness). In the balance of the
interests of the department against those of plaintiff, the department's
interest in ordering the drug test significantly outweighed plaintiff's privacy interest in freedom from
testing. We therefore find appropriate
an exception to the warrant and probable-cause requirements.
[7] In Von Raab, supra, and Skinner, supra, the
United States Supreme Court likewise balanced the interests of government
employees in certain safety-sensitive positions against the interests of the
government in conducting drug testing.
The Court relaxed Fourth Amendment protection to the point where
individualized suspicion was not required.
Ford,
supra,
931 F.2d
at 1290 (citing Von
Raab, supra,
489 U.S.
at 668-70, 109 S.Ct.
at 1392, 103 L.Ed.2d
at 704; Skinner,
supra,
489 U.S.
at 632-34, 109 S.Ct.
at 1421-22, 103 L.Ed.2d
at 670).
It repeated that “a showing of individualized suspicion is not a
constitutional floor, below which a search must be presumed unreasonable.” Skinner,
supra,
489 U.S.
at 624, 109 S.Ct.
at 1417, 103 L.Ed.2d
at 664 (citing United
States v. Martinez-Fuerte,
428 U.S.
543, 561, 96 S.Ct.
3074, 3084, 49 L.Ed.2d
1116, 1130 (1976)). To justify the directive that a police
officer provide a urine sample for a drug test, the Fourth Amendment requires
only reasonable suspicion, not probable cause.
We need
not decide whether drug testing without individualized suspicion would
contravene plaintiff's Fourth Amendment protections. The order explicitly required that “individualized
reasonable suspicion” must exist that an officer “ha[s] been unlawfully using
drugs.”
*191 Individualized reasonable
suspicion effectively balances the Fourth Amendment rights of the officer and
the interests of the police department in conducting a drug test. Ford,
supra,
931 F.2d
at 1291-92;
Fraternal
Order of Police, Lodge No. 5 v. Tucker,
868 F.2d
74, 77 (3d Cir.1989) (citing Copeland
v. Philadelphia Police Dep't,
840 F.2d
1139, 1143 (3d Cir.1988)). The purpose of requiring a warrant or
reasonable suspicion “is to prevent random or arbitrary intrusions by
government agents.” Jackson
v. Gates,
975 F.2d
648, 652 (9th Cir.1992) (citing Skinner,
supra,
489 U.S.
at 621-22, 109 S.Ct.
at 1415, 103 L.Ed.2d
at 663). “[T]he
Government's interest in dispensing with the warrant requirement is at its
strongest when, as here, ‘the burden of obtaining a warrant is likely to
frustrate the governmental purpose behind the search.’ ” Skinner,
supra,
489 U.S.
at 623, 109 S.Ct.
at 1416, 103 L.Ed.2d
at 663 (quoting Camara
v. Municipal Court,
387 U.S.
523, 533, 87 S.Ct.
1727, 1733, 18 L.Ed.2d
930, 938 (1967)). As the United States Supreme Court has
noted, ibid., traces of illegal drugs are continuously eliminated from
the bloodstream. The delay in obtaining
a warrant could result in the disappearance of the evidence of drug use. In addition, the probable-cause standard itself
can, in some circumstances, “be unhelpful in analyzing the reasonableness of
routine administrative functions, especially where the Government seeks to prevent
the development of hazardous conditions or to detect violations that rarely
generate articulable grounds for searching any particular place or person.” Von
Raab, supra,
489 U.S.
at 668, 109 S.Ct.
at 1392, 103 L.Ed.2d
at 703 (citations omitted). Probable cause is appropriate in criminal
cases, in which the State seeks to deprive defendants of their life or
liberty. The less-stringent individualized-reasonable-suspicion
standard is more appropriate in a departmental disciplinary proceeding. As serious as is dismissal from public
employment, the result is less drastic than the deprivation of life or liberty.
**607 The challenged order contemplates neither
random drug testing, see Guiney
v. Roache,
873 F.2d
1557 (1st Cir.) (finding no Fourth Amendment
violation from police department rule requiring suspicionless random drug
testing of all officers who carry *192
firearms or participate in drug interdiction), cert. denied, 493
U.S.
963, 110 S.Ct.
404, 107 L.Ed.2d
370 (1989), nor a program in which testing is triggered
by an accident, Tanks
v. Greater Cleveland Regional Transit Auth.,
930 F.2d
475, 476-77 (6th Cir.1991) (finding program
listed eight types of accidents that would trigger drug testing for bus drivers
and rail operators). Rather, the order
confines testing to situations in which a police officer is suspected of using
illegal drugs.
We
conclude that the individualized-reasonable-suspicion standard sufficiently
restricts the discretion of police supervisors to protect officers against
arbitrary and discriminatory testing. Jackson,
supra,
975 F.2d
at 652-53;
Ford,
supra,
931 F.2d
at 1291; Fraternal
Order of Police, Lodge No. 5, supra,
868 F.2d
at 77; Copeland,
supra,
840 F.2d
at 1143-44.
That conclusion is consistent with the Attorney General's Law
Enforcement Drug Screening Guidelines (1986), which recommend that
law-enforcement departments adopt programs that permit drug testing on the
basis of individualized reasonable suspicion.
In sum, we conclude that individualized reasonable suspicion satisfies
the requirements of the Fourth Amendment.
[8] Sufficient credible evidence supports the Board's
findings, which were based on the ALJ's report, that “Inspector John McAuley
approved the drug testing for police officer Willie Rawlings based on an
individualized reasonable suspicion believing that he had been unlawfully using
drugs.” See Henry
v. Rahway State Prison,
81 N.J.
571, 579-80, 410 A.2d
686 (1980) ( “Ordinarily, an appellate court will
reverse the decision of an administrative agency only if it is arbitrary,
capricious, or unreasonable or it is not supported by substantial credible
evidence in the record as a whole.”).
Three members of the Narcotics Squad observed plaintiff participating in
a suspected drug transaction. They
discovered vials of cocaine on the floor on the passenger side of plaintiff's
car and on the adjacent sidewalk. An
empty vial was at plaintiff's feet on the driver's side. Plaintiff was the only participant with
cash. The department reasonably could
have concluded that *193
plaintiff had used drugs. In light of
the facts, the department might have been derelict if it had not directed
plaintiff to submit to a drug test as required by the standing departmental
disciplinary order. Like the Appellate
Division, we find no basis for disturbing the Board's finding of individualized
reasonable suspicion.
[9] [10] The Fourth
Amendment does not compel the exclusion from a departmental disciplinary proceeding
of evidence that an officer refused to submit to a drug test that the
department requested on individualized reasonable suspicion that the officer
had used illegal drugs. Nor does the
officer necessarily acquire any greater rights in the disciplinary proceeding
merely because he or she was arrested and indicted for related criminal
offenses.
For
several reasons, we need not reach the issue whether the results of a drug test
are admissible in a related criminal proceeding. First, because plaintiff refused to provide
a urine sample, no such results are available.
Second, this is not a criminal proceeding. Finally, we agree with the Appellate
Division's conclusion that “the record in this case does not warrant the
conclusion that [plaintiff] declined to give the urine specimen ... because of
fear that the urine specimen might, in any way, tend to incriminate him in a
criminal proceeding.”
The
dissent reaches the contrary conclusion, that plaintiff's arrest insulated him
from evidence of his refusal in the disciplinary proceeding. According to the dissent, the department
must choose between prosecuting or disciplining a police officer unless it
grants the officer immunity from the use of drug-test results in a criminal
proceeding. Post at 199, 627 A.2d
at 610. Whatever merit lies in that
conclusion, we believe that it is not constitutionally compelled.**608 That belief, however, need not foreclose
the Legislature from granting immunity, if it finds that such a grant is in the
public interest. See O'Keefe,
supra,
132 N.J.
at 245, 624 A.2d
578 (recommending that the Legislature adopt
drug-testing guidelines for public employees and job applicants); Hennessey
v. Coastal Eagle Point Oil Co.,
129 N.J.
81, 107, 609 A.2d
11 (1992)*194 (suggesting that
Legislature can best address complex issues of drug testing of private
employees).
-III-
[11] Plaintiff next claims that the department's direction to
provide a urine sample violated his Fifth Amendment right against
self-incrimination. He argues that
because the department directed him to provide the sample after his arrest, he
could not comply without incriminating himself in the proceeding. We disagree.
[12] [13] The
privilege against self-incrimination protects an accused from testifying
against himself or herself, Schmerber
v. California,
384 U.S.
757, 761, 86 S.Ct.
1826, 1830, 16 L.Ed.2d
908, 914 (1966), not from providing bodily fluids
such as urine samples for chemical analysis, Egloff
v. New Jersey Air Nat'l Guard,
684 F.Supp.
1275, 1282 (D.N.J.1988). Consequently, certain non-testimonial
examinations are not protected by the privilege against
self-incrimination. See State
v. King,
44 N.J.
346, 357, 209 A.2d
110 (1965) (stating that “drunkometer” tests and
blood tests, among other types of examinations, are non-testimonial and not
covered by Fifth Amendment protections).
As we recently stated, “the State may force a suspect to submit to a
chemical test of bodily substances to determine the amount of alcohol in his
blood.” State
v. Stever,
107 N.J.
543, 558, 527 A.2d
408 (1987) (citing State
v. Macuk,
57 N.J.
1, 14, 268 A.2d
1 (1970)).
For purposes of Fifth Amendment analysis, we perceive no difference
between testing blood or breath for alcohol and testing urine for illegal
drugs. The United States Supreme Court
has written, “[n]ot even a shadow of testimonial compulsion or enforced
communication by the accused [is] involved in the collection upon or in the
chemical analysis” of blood for alcoholic content. Schmerber,
supra,
384 U.S.
at 765, 86 S.Ct.
at 1832, 16 L.Ed.2d
at 916.
Similarly, we find no testimonial compulsion in the collection and
analysis of urine for illegal drugs. In
brief, Harrison's direction to provide a urine sample did not violate
plaintiff's privilege against self-incrimination because it did not require
plaintiff to testify against himself.
We thus conclude that plaintiff did not have the right to refuse to *195 submit to the drug-testing order
under his Fifth Amendment right against self-incrimination.
[14] Plaintiff asserts further that he refused to provide a
urine sample because he was confused by a perceived inconsistency between the Miranda
warnings and the direction to take the drug test. The alleged confusion arose from Harrison's
advice that he need not say anything because any statement might be used
against him. That advice, plaintiff
alleges, was inconsistent with his belief that the drug-test results would be
used in the criminal proceeding. We
agree, however, with the Appellate Division, which affirmed the agency's
finding, that plaintiff did not establish that he had been confused.
Although
plaintiff testified that he was confused because of the inconsistency between
the Miranda warnings and the direction to take the test, he also
testified that he had never received any such direction. The ALJ rejected that testimony, finding
that Harrison had twice directed him to take the test. In another context, the “confusion” doctrine
might provide a narrow exception to the rule requiring a police officer to
provide a urine sample. State
v. Leavitt,
107 N.J.
534, 542, 527 A.2d
403 (1987);
State
v. Sherwin,
236 N.J.Super.
510, 517, 566 A.2d
536 (App.Div.1989). Here, plaintiff has not
carried his burden of persuasion that confusion over the privilege against
self-incrimination led him to refuse to provide a urine sample for a drug
test. Leavitt,
supra,
107 N.J.
at 542, 527 A.2d
403. The
record more readily supports the conclusion that plaintiff refused to submit
the sample not because**609 he
was confused, but because he was afraid he would fail the test.
-IV-
[15] [16] We likewise
reject plaintiff's argument that the attorney-client privilege prevented
disclosure of his conversation with his union representative. In brief, the privilege does not apply
because the union representative was not a lawyer.
The
attorney-client privilege, as adopted by the Legislature and this Court,
states:
*196 (1) General rule....
communications between lawyer and his client in the course of that relationship
and in professional confidence, are privileged, and a client has a privilege
(a) to refuse to disclose any such communication, and (b) to prevent his lawyer
from disclosing it....
*
* * *
* *
(3) Definitions. As used in this rule (a) “client” means a
person ... [who] directly or through an authorized representative, consults a
lawyer or the lawyer's representative for the purpose of retaining the lawyer
or securing legal service or advice from him in his professional capacity ...
(b) “lawyer” means a person authorized, or reasonably believed by the client to
be authorized to practice law in any State or nation the law of which
recognizes a privilege against disclosure of confidential communications between
client and lawyer.
[N.J.S.A.
2A:84A-20;
Evid.R. 26.]
As the
statute and the Rule plainly state, the privilege covers only communications
between a client and a lawyer, Fellerman
v. Bradley,
99 N.J.
493, 499, 493 A.2d
1239 (1985), and the client's communications made
through “ ‘necessary intermediaries and agents,’ ” State
v. Davis,
116 N.J.
341, 361, 561 A.2d
1082 (1989) (quoting State
v. Kociolek,
23 N.J.
400, 413, 129 A.2d
417 (1957)).
Thus, in L.J.
v. J.B.,
150 N.J.Super.
373, 375 A.2d
1202, certif. denied sub nom. Jacobson
v. Balle,
75 N.J.
24, 379 A.2d
255 (1977), the Appellate Division rejected the
claim that the testimony of a case-work supervisor for a county welfare board
should be protected by the lawyer-client privilege. Id.
at 378, 375
A.2d
1202.
During a trial arising from the plaintiff's suit for support of a child
born out of wedlock, the supervisor testified that the plaintiff had admitted
to him that she had on only one occasion engaged in sexual intercourse with the
defendant. Id.
at 376, 375 A.2d
1202. The
defense used this admission to impeach the plaintiff's testimony that the
parties had engaged in intercourse on numerous occasions.
Rejecting
the claim of privilege, the Appellate Division found that the plaintiff had not
consulted the supervisor “as an agent of an already retained attorney or with
the purpose of retaining his principal, an attorney.” Id.
at 378, 375 A.2d
1202; see
also State
v. Pavin,
202 N.J.Super.
255, 262, 494 A.2d
834 (App.Div.1985) (stating that lawyer-client
privilege applies only to those communications*197 between insured and insurance adjuster made
for dominant purpose of defense of insured by insured's lawyer); United
Jersey Bank v. Wolosoff,
196 N.J.Super.
553, 563, 483 A.2d
821 (App.Div.1984) (remanding issue of
lawyer-client privilege because fact that lawyer's duties as in-house counsel
may have included responsibilities pertaining to pending litigation not enough,
by itself, to compel application of privilege).
Reo's
position is analogous to the case-work supervisor in L.J. Whatever else Reo may have been, he was not
a lawyer or a lawyer's agent. The attorney-client
privilege, therefore, did not apply to plaintiff's statements to him.
Moreover,
plaintiff did not communicate with Reo in the belief that the union
representative was an agent for the lawyer who would handle his case. In fact, when Reo asked plaintiff if he
wanted the union representative to call an attorney, he responded that he had
an attorney whom he would call the following morning.
-V-
[17] Finally, we find that in light of all the circumstances,
dismissal is fairly proportionate to plaintiff's offense. In re **610 Polk
License Revocation,
90 N.J.
550, 578, 449 A.2d
7 (1982).
Dismissal is appropriate for a police officer who refuses to submit to a
drug test when his or her supervisor has reasonable suspicion to believe that
he or she has used illegal drugs. In
re Phillips,
117 N.J.
567, 576, 569 A.2d
807 (1990) (“The obligation to act in a
responsible manner is especially compelling in a case involving a law
enforcement official.”). Both the order
and the Attorney General's Law Enforcement Drug Screening Guidelines,
which the order incorporates by reference, provide that dismissal is the
penalty for a police officer's refusal to submit to a drug test. Courts in other states likewise have
sustained dismissals in similar circumstances.
See, e.g.,
Kinter v. Board of Fire & Police Comm'rs,
194 Ill.App.3d
126, 141 Ill.Dec.
80, 84, 550 N.E.2d
1126, 1130 (1990) (stating that police officer's
refusal to abide by order given by superior that he submit to drug test
constituted insubordination that warranted dismissal); *198Gaul
v. Ward,
159 A.D.2d
380, 553 N.Y.S.2d
9, 10 (1990) (stating that dismissal of police
officer based on refusal to submit to urinalysis-drug test based on reasonable
suspicion not so disproportionate as to shock one's sense of fairness). We thus conclude that dismissal is an
appropriate sanction for plaintiff's insubordination.
To
summarize, the department had individualized reasonable suspicion that
plaintiff had used illegal drugs. Based
on that suspicion and on the order, it directed plaintiff to submit to a drug
test. Plaintiff's refusal was not
justified by reliance on his rights under the Fourth or Fifth Amendments to the
federal Constitution. His conduct
constituted insubordination and justified his dismissal from the department.
The
judgment of the Appellate Division is affirmed.
O'HERN,
J., dissenting.
I agree
with the majority that public employees in safety-sensitive positions may be
subjected to drug testing on the basis of an individualized reasonable
suspicion that the employee may have ingested or may be under the influence of
drugs. That doctrine reflects a
reasonable balance of the public's interest in safety and the individual's
interest in the personal freedom to be free from bodily intrusions. I disagree that when the employer is a
law-enforcement agency, it may invoke its rights as an employer to obtain
evidence for a criminal prosecution that would otherwise be inadmissible
because obtained in violation of the employee's Fourth Amendment rights.
I
The
majority mischaracterizes this case as one involving only a departmental
disciplinary proceeding when in fact it also involves urine testing in the
criminal context. The Jersey City
Police Department had Rawlings locked up on criminal charges when it invoked
its administrative procedures to force Officer Rawlings to provide a urine
sample, which could have provided evidence in support of the criminal
charges. Without an offer of
immunity *199 ensuring that the
test results would not be used in a criminal trial, the drug testing procedures
are flawed for employment purposes. A
criminal defendant who is also subject to disciplinary proceedings should not
be required to choose between submitting without probable cause to the test
that may provide evidence in a criminal trial or refusing to submit to the test
under penalty of dismissal from employment.
“A drug
test, whether administered by the government either for law-enforcement or
employment purposes, is subject to the [search and seizure] requirements of the
Fourth Amendment.” O'Keefe
v. Passaic Valley Water Comm'n,
132 N.J.
234, 242, 624 A.2d
578 (1993).
A search and seizure is ordinarily unreasonable unless a warrant is
issued based on probable cause. State
v. Marshall,
123 N.J.
1, 67, 586 A.2d
85 (1991).
The New Jersey Constitution sometimes “ ‘affords our citizens greater
protection against unreasonable searches and seizures than does the fourth
amendment.’ ” State
v. Hempele,
120 N.J.
182, 195, 576 A.2d
793 (1990) (quoting State
v. Novembrino,
105 N.J.
95, 145, 519 A.2d
820 (1987)).
In this case the Court misperceives the two functions of government **611
involved here. In one capacity the
search is valid, in another it is not.
As the Court noted in Hempele:
“The constitutional prohibition on unreasonable government searches “ ‘does
not disappear merely because the government has the right to make reasonable
intrusions in its capacity as employer.’ ” ” Id.,
120 N.J.
at 205, 576 A.2d
793 (quoting O'Connor
v. Ortega,
480 U.S.
709, 717, 107 S.Ct.
1492, 1497, 94 L.Ed.2d
714, 723 (1987) (quoting Ortega,
supra,
480 U.S.
at 731, 107 S.Ct.
at 1505, 94 L.Ed.2d
at 732 (Scalia, J., concurring in the judgment)))
(emphasis supplied).
In Hempele
the Court determined that a warrant based on probable cause is required to
search garbage for evidence of crime.
The Court rejected the argument that the “garbage regulations reduce the
level of cause necessary for a search,” 120
N.J.
at 219, 576 A.2d
793, because the search was designed to enforce “the
drug laws, not [the] garbage regulations.”
Ibid. The analogy is comparable. The police department's urine test is *200 designed to enforce personnel
laws and protect the safety and welfare of the public, not to enforce the
criminal drug laws. Although an
individualized reasonable-suspicion standard allows the police department to
test an officer for disciplinary reasons, the department cannot use the
disciplinary regulations to enforce the criminal drug laws without probable
cause.
“[T]he
probable cause standard “ ‘is peculiarly related to criminal investigations.’ ”
” S.S.
v. E.S.,
243 N.J.Super.
1, 11-12, 578 A.2d
381 (App.Div.1990) (quoting Colorado
v. Bertine,
479 U.S.
367, 371, 107 S.Ct.
738, 741, 93 L.Ed.2d
739, 745 (1987) (quoting South
Dakota v. Opperman,
428 U.S.
364, 370 n. 5, 96 S.Ct.
3092, 3097 n. 5, 49 L.Ed.2d
1000, 1006 n. 5 (1976))), aff'd, 124
N.J.
391, 590 A.2d
1188 (1991).
The majority also acknowledges that “[p]robable cause is appropriate in
criminal cases, in which the State seeks to deprive defendants of their life or
liberty.” Ante at 191, 627 A.2d
at 606. In analyzing a court-ordered
blood test to determine parentage the S.S. v. E.S. court distinguished
probable cause in the criminal context from reasonable individualized suspicion
in the civil context. 243
N.J.Super.
at 12, 578 A.2d
381; see
also Allen
v. County of Passaic,
219 N.J.Super.
352, 373, 530 A.2d
371 (Law Div.1986) (stating that “[w]hether the
urinalysis is conducted as part of a criminal investigation or for some other
reason such as employment is a very significant factor of consideration”). In Skinner
v. Railway Labor Executives' Association,
489 U.S.
602, 109 S.Ct.
1402, 103 L.Ed.2d
639 (1989), the Court allowed drug tests of
safety-sensitive railroad employees without a warrant or reasonable
suspicion. The Court noted that the
drug tests were facially designed for administrative purposes. The Court stated: “We leave for another day the question
whether routine use in criminal prosecutions of evidence obtained pursuant to
the administrative scheme would give rise to
an inference of pretext, or otherwise impugn the administrative nature of the
FRA's program.” Id.
at 621 n. 5, 109 S.Ct.
at 1415 n. 5, 103 L.Ed.2d
at 662 n. 5.
In National
Treasury Employees Union v. Von Raab,
489 U.S.
656, 666, 109 S.Ct.
1384, 1390, 103 L.Ed.2d
685, 702 (1989), the *201 Court established a relaxed
standard for a warrantless search without probable cause when the “[t]est
results may not be used in a criminal prosecution.” As in Skinner, the Von Raab
Court emphasized that the “drug-testing program is not designed to serve the
ordinary needs of law enforcement.” Ibid. The only way the test results could be used
in criminal prosecution was with the employee's permission. Ibid.
The
history of the federal drug-testing program was recently described by one
Court:
[On]
September 15, 1986, President Reagan signed Executive
Order No. 12,564, “Drug-Free Federal Workplace,”
3 C.F.R. 224 (1987), directing all agency heads to develop programs to test “for
the use of illegal drugs by employees in sensitive positions,” id. at
226, and condemning the use of illegal drugs “on or off duty.” Id. at 225. The President stated that drug testing “shall
not be conducted pursuant to this Order for the **612 purpose of
gathering evidence for use in criminal proceedings.” Id. at 228. He added:
“Agencies are not required to report to the Attorney General for
investigation or prosecution any information, allegation, or evidence relating
to violations of Title 21 of the United States Code received as a result of the
operation of drug testing programs established pursuant to this Order.” Id.
(emphasis added.)
[National
Fed'n of Fed. Employees v. Carlucci,
680 F.Supp.
416, 421 (D.D.C.1988).]
“Congress
limited the use that can be made of drug test results. For example, no disclosure to law
enforcement officials is permitted without the employee's consent.” Id. at 421 n. 7 (citing Supplemental
Appropriations Act of 1987, Pub.L.
No. 100-71, § 503(e), 101 Stat. 391, 471 (1987)).
Thus, “drug testing must serve some ‘special needs' of the employing
governmental body, rather than being designed to gather evidence for a criminal
prosecution.” International
Fed'n of Professional & Technical Eng'rs, Local 194A v. Burlington County
Bridge Comm'n,
240 N.J.Super.
9, 22, 572 A.2d
204 (App.Div.), certif. denied, 122
N.J.
183, 584 A.2d
244 (1990).
In fact, the assurance that the drug-test results will not apply in
criminal proceedings is an important factor in upholding warrantless drug
testing with less than probable cause. See,
e.g., International
Bhd. of Teamsters v. Dep't of Transp.,
932 F.2d
1292, 1299 (9th Cir.1991) (noting regulations “preclude
the tests' use for law enforcement purposes by protecting the confidentiality
of test results”); *202Burka
v. New York City Transit Auth.,
739 F.Supp.
814, 828 (S.D.N.Y.1990) (noting that
probable-cause standard governs criminal investigations and that enforcement of
criminal code is not goal of drug-testing program); Amalgamated
Transit Union, Local 993 v. City of Oklahoma City,
710 F.Supp.
1321, 1332 (W.D.Okl.1988) (highlighting that
drug-test results “would not lead to criminal charges”).
In exigent
circumstances a warrantless search when based on probable cause is
constitutional. See, e.g., Schmerber
v. California,
384 U.S.
757, 86 S.Ct.
1826, 16 L.Ed.2d
908 (1966) (authorizing blood test for alcohol
after accident when police officer smelled liquor, and subject's eyes bloodshot
and glassy); State
v. Dyal,
97 N.J.
229, 239, 478 A.2d
390 (1984) (authorizing blood test for “apparently
intoxicated automobile operator”); State
v. Malik,
221 N.J.Super.
114, 534 A.2d
27 (App.Div.1987) (allowing warrantless
extraction of urine sample when open can of beer, green vegetation, yellow
pills, rolling paper, “coke spoon,” and pipe found in car and defendant had “watery”
and “bloodshot” eyes, slurred speech, and was belligerent). But see United
States v. Pond,
36 M.J.
1050, 1058-59 (AFCMR 1993) (finding no exigent
circumstances when methamphetamine use can be detected by a urine test “some 24
to 48 hours after consumption of the drug”).
The supervising officer who requested that Rawlings submit to a drug
test, testified that Officer Rawlings “was not obviously under the influence of
cocaine” and lacked the normal signs associated with drug use such as general
nervousness, rapid hand movements, rapid speech, and twitching. Therefore, no probable cause existed
justifying the drug test. In addition,
unlike with alcohol, no exigent circumstance exists to justify a warrantless
search for cocaine because cocaine can be detected in urine from two to five
days. See Kurt M. Dubowski, Drug-Use
Testing: Scientific Perspectives, 11
Nova L.Rev. 415, 530 (1987) (containing table of “Typical Duration of
Drug Detectability in Urine After Last Use” of several drugs); cf. United
States v. Miller,
34 M.J.
598, 600 (ACMR 1992) (discussing study published
in toxicology journal indicating detectability of cocaine for at least
forty-eight hours after ingestion); Green
v. State,
260 Ga. 625, 398 S.E.2d
360, 361 (1990) (discussing “testimony*203 of a certified urinalysis field technician
that cocaine metabolites are detectable in an individual's urine 2-4 days after
the individual ingests cocaine”), cert. denied, ---
U.S.
2059, 111 S.Ct.
2059, 114 L.Ed.2d
464 (1991).
Rawlings
was given an unacceptable choice: he
could either take the drug test **613 and if positive have the result
used in both a criminal and administrative proceeding, or refuse to take the
test and face dismissal for failing to obey a direct order. Even the implied consent statute in South
Dakota v. Neville,
459 U.S.
553, 103 S.Ct.
916, 74 L.Ed.2d
748 (1983), requires a careful explanation to the
accused. In Pond,
supra,
36 M.J.
1050, the government argued that a urine test
administered to a driver is admissible under California's implied consent
statute. However, the court determined
that the test was not valid under the implied consent statute because the
police officer did not provide Pond with any of the “advice the statute required
concerning the consequences of refusing to consent.” Id.
at 1057.
As expressed in President Reagan's Executive
Order No. 12,564, results of an
employee-drug-testing program should not be used in criminal proceedings. A valid drug-testing program would have
assured Rawlings that the drug-test results would not be used in a criminal
proceeding. Without immunity and
probable cause the police department's desire to conduct a warrantless search
for evidence of crime based on individual reasonable suspicion is
unconstitutional.
In Skinner
the Court specifically left open the question of whether a drug-testing program
based on a warrantless search without probable cause would be unconstitutional
if the results were used in a criminal proceeding. No State or federal case in this
jurisdiction has upheld an administrative drug-testing program that
automatically results in criminal prosecution.
Rawlings' refusal to submit to a drug test without probable cause when
the results would be used in a criminal proceeding constitutes nothing more
than an assertion of a constitutional right.
A police-drug testing program, justified by safety concerns and designed
for administrative purposes, may not be used to force a person to *204 submit to a warrantless drug test
for criminal evidence absent probable cause.
In Banca
v. Phillipsburg,
181 N.J.Super.
109, 436 A.2d
944 (App.Div.1981), the court addressed whether a
police officer can be disciplined for failing to cooperate in a criminal
investigation if the officer is the target of the investigation and has not
been offered use immunity. The court
recognized
that when
a public employee makes a self-incriminatory statement in response to a threat
of discharge, that statement must necessarily be regarded as coerced and,
therefore, as secured in violation of the employee's constitutional privilege
not to incriminate himself. If,
however, he is protected from the normal consequences of a self-incriminatory
statement, that is, if the statement may not be used against him in a
subsequent criminal proceeding, then the choice he must make between loss of
his employment and the giving of the statement, however much a Hobson's choice
it may be, does not offend his constitutional privilege. The offer, therefore, of use immunity when
the statement is solicited is constitutionally prerequisite to the imposition
of the disciplinary sanction for failing to give it.
See
also Garrity
v. New Jersey,
385 U.S.
493, 509, 87 S.Ct.
616, 620, 17 L.Ed.2d
562, 567 (1967) (holding that “the protection of
the individual under the Fourteenth Amendment against coerced statements
prohibits used [sic] in subsequent criminal proceedings of statements obtained
under threat of removal from office, and that it extends to all, whether they
are policemen or other members of our body politic”).
In this
field “[w]e are on the cutting edge of new law.” Tanks
v. Greater Cleveland Regional Transit Auth.,
739 F.Supp.
1113, 1123 (N.D.Ohio 1990), aff'd, 930
F.2d
475 (6th Cir.1991). Police officers, although surrendering some
expectations of privacy, do not surrender their constitutional rights. Taking bodily fluids from a person may not
violate the Fifth Amendment but it does violate the Fourth Amendment if it is
unreasonable. I find the Fifth
Amendment use-immunity analysis equally persuasive in the Fourth Amendment
context. Drug testing is a new form of
compulsory evidence-gathering.
**614 “There are few activities in our society
more personal or private than the passing of urine. Most people describe it by euphemisms if
they talk about it at all. It is a *205 function traditionally performed
without public observation; indeed, its
performance in public is generally prohibited by law as well as social custom.”
[Skinner,
supra,
489 U.S.
at 617, 109 S.Ct.
at 1413, 103 L.Ed.2d
at 660 (quoting National
Treasury Employees Union v. Von Raab,
816 F.2d
170, 175 (1987).]
Validation
of governmental intrusions into the dignity and privacy of public employees
deserves the considered analysis of this Court rather than the avoidance of the
issue, as the majority does. Ante
at 193-194, 627 A.2d at 607-608.
We have never decided what is a valid drug-testing program. See, In
re Carberry,
114 N.J.
574, 556 A.2d
314 (1989) (remanding to Superintendent of
Division of State Police constitutional challenge to drug-testing
program). Before discharging Officer
Rawlings the Court should decide whether the police department's drug-testing
program met all constitutional requirements.
I do not believe that the program met those requirements. Officer Rawlings should have known whether
the results of the test could be used in both the administrative and the
criminal proceedings. As in Banca
and Garrity, no public employee, even a police officer, should have to
choose between losing a job or submitting to an unconstitutional action. Therefore, I respectfully dissent.
Justice STEIN joins in this opinion.
For
affirmance-Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK and GARIBALDI-5.
For
reversal-Justices O'HERN
and STEIN-2.
N.J.,1993.
Rawlings
v. Police Dept. of Jersey City, N.J.
133 N.J.
182, 627 A.2d 602, 8 IER Cases 1136, 62 USLW 2131
END OF
DOCUMENT