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Allen v. County of Passaic

Decided: June 23, 1986.


Mandak, A.j.s.c.


On January 6, 1986 Edwin Englehardt, the Sheriff of Passaic County, issued a directive (Appendix A) requiring all personnel employed in the Sheriff's Department to undergo mandatory urinalysis for the purpose of testing for the use of controlled dangerous substances. Prior to the institution of the present action, most of the employees in the Sheriff's Department had already submitted to urinalysis pursuant to the directive.

The procedural history of the instant matters has been relatively uncomplicated but still deserves mention. Both matters were initiated by the filing of a verified complaint and the entry of an Order to Show Cause providing for interim restraints temporarily enjoining the Sheriff from implementing or enforcing the directive. On the return date of each Order to Show Cause the court heard further argument and continued the

restraints pending final determination of whether the restraints should be made permanent.

The four plaintiffs in the two actions now consolidated are all officers employed in the Sheriff's Department and all are assigned to duty at the Passaic County Jail. The pleadings describe the job title for plaintiffs Turi and Monzo to be correction officers. No specific job title is provided for plaintiffs Allen and Clemente, nor is the court made aware of their assigned duties. Unfortunately, no party offered to present any testimony or produce any evidence at the hearing other than the certifications of parties and therefore the facts are not well developed.

All plaintiffs fall under the umbrella of the directive and consequently are required to submit to the urinalysis or, as the directive provides, be subject to "disciplinary action and/or dismissal." If the tests are taken and a positive result is obtained, the officers are provided with three options, namely: (1) resign; (2) agree to participate in a program that would correct any drug abuse problem; or (3) failing the acceptance of options (1) or (2) the information from the drug test would be turned over to the Passaic County Prosecutor. These options are not part of the directive, nor are they incorporated in any official document presented to the court or promulgated to the employees. Rather the options originate from a certification of Sheriff Englehardt wherein he recites how he handled those situations where urinalysis proved positive.*fn1

A brief recount of predirective background information will be of benefit. In the past there have been instances where drugs and other contraband were found in the possession of inmates at the Passaic County Jail. Although security measures were apparently put in place to minimize, if not eliminate, the delivery of drugs to inmates, it was determined in the spring of 1985 that the problem still persisted. The problem

appeared twofold. Information was received from various sources indicating that correction officers were involved in providing drugs to inmates and that a "small" number of correction officers were drug users. An undercover investigator was thereafter assigned to the jail and with the assistance of agents from the Federal Drug Enforcement Agency one correction officer was arrested and charged with distribution and use of cocaine, to which he eventually pleaded guilty.

The investigation continued by local staff personnel and led to the detection of other correction officers involved in the possession and use of controlled dangerous substances, among them the plaintiffs Monzo and Turi. As many as ten officers are named in the statements of witnesses provided to the court as being so involved. Possessed with this information the Passaic County Sheriff issued the directive in question to insure that correction officers were not using controlled dangerous substances.

The plaintiffs challenge the directive on a number of grounds contending that the implementation and enforcement of the directive would violate the search and seizure provisions of Article I, par. 7 of the New Jersey Constitution and the Fourth Amendment of the United States Constitution. More pointedly, the plaintiffs argue that the compelled submission of a urine sample to determine the existence or non-existence of controlled dangerous substances constitutes an impermissible search and seizure and is intrusive of the right to privacy and violative of the safeguards provided to citizens under the United States and New Jersey Constitutions. Moreover, it is urged that the New Jersey Constitution has been interpreted by the New Jersey Supreme Court to provide even greater protection for individual rights than provided by the Federal Constitution. Plaintiffs contend further that the blanket nature of the search is per se unreasonable, and that equally unreasonable is the failure of the directive to provide standards for its implementation such as the type of tests to be used, the control and disposition of the

test results and the effect of the test results on employment status.

The Fourth Amendment to the United States Constitution reads as follows:

Search and seizures

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article I, par. 7 of the New Jersey Constitution is almost identical, the difference being the use in two instances of alternative words that are not relevant to the issues before this Court.*fn2 The consistently recognized purpose of these constitutional search and seizure provisions is to insure and safeguard the privacy and security of individuals against arbitrary invasion of governmental officials. Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967).

The threshold issue of whether urine testing is a search and seizure within the perimeters of these constitutional provisions is not in dispute. The defendants acknowledge that drug testing by means of urinalysis is considered a "search" under the aforesaid constitutional provisions and that compelled submission of a urine sample to determine the presence of a controlled dangerous substance constitutes a search and seizure. Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834, 16 L. Ed. 2d 908, 918 (1966); Allen v. City of Marietta, 601 F. Supp. 482, 488-489 (N.D.Ga.1985); Storms v. Coughlin, 600 F. Supp. 1214, 1217-1218 (S.D.N.Y.1984); Division 241 Amalgamated Transit Union (AFL-CIO) v. Suscy, 538 F.2d 1264

(7th Cir.1976), cert. den. 429 U.S. 1029, 97 S. Ct. 653, 50 L. Ed. 2d 632 (1976); Ewing v. State, 160 Ind.App. 138, 148, 310 N.E. 2d 571, 577-578 (Ind.App.1978).

Nor is there any dispute that the Fourth Amendment's prohibition against unreasonable search and seizures applies to searches conducted by public officials. New Jersey v. T.L.O., 469 U.S. 325, 333, 105 S. Ct. 733, 739-740, 83 L. Ed. 2d 720, 729 (1985). It is well established that searches by such public or governmental officials, including inspections for administrative purposes, must satisfy constitutional reasonable standards. Camara v. Municipal Court. See also, Dome Realty v. City of Paterson, 83 N.J. 212, 239-241 (1980).

The U.S. Constitution and the New Jersey Constitution provide that all persons shall be free from unreasonable searches and seizures. [Emphasis supplied.] U.S. Const., Amend. IV, N.J. Const. (1947), Art. I, par. 7. It arguably follows that if the search and seizure is not unreasonable, then these constitutional provisions do not apply and the constitutional protections afforded by them are not available. Thus if the actions by the Sheriff under the facts and circumstances of this case are found to be reasonable, the mandated security of privacy made available by constitutional provisions and the necessity for probable cause and issuance of a warrant are no longer present. Carroll v. United States, 267 U.S. 132, 147, 45 S. Ct. 280, 283, 69 L. Ed. 543, 549 (1925); State v. Slockbower, 79 N.J. 1, 22-23 (1979).

This rationale directed to the question of reasonableness draws opposition from those who espouse a correlation between "reasonableness" and the procurement of a warrant based on probable cause. The emphasis in the latter situation is placed on the absolute need for a warrant based on probable cause, with the result necessitating a conclusion that warrantless searches are per se unreasonable. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576, 585 (1967); Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S. Ct. 2091, 2097, 80

L. Ed. 2d 732, 742-743 (1984); Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 2412, 57 L. Ed. 2d 290, 298 (1978); Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889, 905 (1968). The distinction, however, is quite simple. Under the "reasonableness" theory, the court must first react to the issue of reasonableness to determine the need for probable cause and concomitantly the warrant. Under the "probable cause" theory the issue of reasonableness is never independently determined but rather based solely on the existence or nonexistence of a warrant, the underlying principle requiring the existence of both probable cause and a warrant to establish reasonableness, or as earlier conversely stated "warrantless searches are per se unreasonable."

In weighing these legal theories, consideration must first be given to the context in which the terms reasonable and unreasonable are to be defined and applied. The issue then to be decided is the interpretation and application of the word "unreasonable" in its constitutional context to the facts and circumstances surrounding the issuance and enforcement of the Sheriff's directive. The plaintiffs urge that the polestar of this question is found in State v. Novembrino, 200 N.J. Super. 229 (App.Div.1985), wherein the Appellate Division held that "a nonconsensual search for evidence of a crime which is conducted without probable cause is unreasonable." Id. at 238. The argument is that all searches not based on probable cause are unreasonable no matter what the supportive circumstances might be. Under this analysis the condition precedent of probable cause is a primary determinative factor as to reasonableness, and a lack of probable cause alone justifies characterizing the search as unreasonable. It necessarily follows from such a theory that every search and seizure not founded on probable cause is constitutionally prohibited.

An alternate theory, and the one urged by the defendants is to examine the question of constitutional permissibility based on the application of reasonableness from the standpoint of balancing the interests of the individual against governmental

interests. Under this theory, the court is required to balance the need for the search, i.e., the public interest of maintaining the safety, order and security of whatever governmental responsibility is involved, against the invasion of privacy or the intrusion that the search entails. Camara v. Municipal Court. It necessarily follows from this theory that if the search is conducted without a search warrant or on the basis of some standard not reaching the level of probable cause, such conduct, in and of itself, does not render such a search unreasonable.

Giving consideration to these alternative positions, I am satisfied that the plaintiffs' reliance on State v. Novembrino, as supportive of a mandatory requirement of probable cause in all situations involving search and seizures is misplaced. In Novembrino it was suspected that the defendant was in possession of certain controlled dangerous substances with intent to distribute and the search and seizure were performed exclusively to confirm that suspicion and to obtain evidence of a crime. The search and siezure were therefore performed strictly in a criminal context. Although there is evidence in the instant case that the test results of some correction officers were turned over to the Passaic County Prosecutor, the primary purpose of the administrative directive and urinalysis was to insure that Sheriff's officers were not, from an employment performance standpoint, involved in the use or abuse of controlled dangerous substances. Although the use of the threat of informing the County Prosecutor as an enforcement tool may have some impact on the question of reasonableness, it does not rise to the level of the criminal episodes enunciated in Novembrino. The New Jersey Supreme Court in the matter of In re Martin, 90 N.J. 295 (1982), noted this distinction:

In the criminal context, a warrant may be issued only on a probable cause showing that would lead a reasonable person to believe that a crime has been committed and that evidence of that crime will be found in a particular place. Henry v. United States, 361 U.S. 98, 102, 80 S. Ct. 168, 171, 4 L. Ed. 2d 134, 138 (1959). However, the probable cause showing necessary to obtain an administrative warrant is less stringent. Searches pursuant to administrative warrants are conducted to enforce regulatory statutes, rather than to investigate criminal

activity. Experience has demonstrated the utility of periodic inspections in promoting compliance with regulatory statutes. See, e.g., Camara v. Municipal Court, 387 U.S. at 538, 87 S. Ct. at 1735, 18 L. Ed. 2d at 940. In such cases, probable cause in the criminal sense is not constitutionally required. [90 N.J. at 315].

See also, State v. Young, 87 N.J. 132, 142, n. 4 (1981). Consequently, in certain instances when the search is motivated by reasons unrelated to criminality and is conducted for reasons other than to procure evidence of a crime, the requirement of probable cause may be reduced. Such an exception to the probable cause requirement has been recognized where the search is related to highly regulated or closely supervised businesses. In re Martin. For example, warrantless searches have been judicially sustained in the absence of probable cause in cases involving the liquor industry, State v. Zurawski, 89 N.J. Super. 488 (App.Div.1965), aff'd o.b. 47 N.J. 160 (1966), the drug and pharmaceutical industry, State v. Rednor, 203 N.J. Super. 503 (App.Div.1985), the horse racing industry, State v. Dolce, 178 N.J. Super. 275 (App.Div.1981) and casino gambling, In re Martin.

The New Jersey Supreme Court recently reviewed Fourth Amendment rights in a school setting, one not normally associated with or parallel to a highly regulated or closely supervised business, but one nonetheless involving a high degree of supervision and administrative control. State in re T.L.O., 94 N.J. 331 (1983).*fn3 In T.L.O., the New Jersey Supreme Court considered the exclusionary rule in the context of the warrantless search made of a student's purse. The Court noted the legitimate charge to school officials to maintain order, safety and discipline and weighed that charge against the competing demands of the constitutional right of privacy. Referring to

specific statutory authority conferred on school officials, the Court concluded:

Taken together, these statutes yield the proposition that school officials, within the school setting, have the authority to conduct reasonable searches necessary to maintain safety, order and discipline within the schools. [94 N.J. at 343].

Referring to Moore v. Student Affairs Committee of Troy State Univ., 284 F. Supp. 725 (M.D.Ala.1968), as comporting with "prevailing decisional law" on the subject of searches in a school setting and more specifically a college ...

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