The opinion of the court was delivered by: SAROKIN
Urine testing involves one of the most private of functions, a function traditionally performed in private, and indeed, usually prohibited in public. The proposed test, in order to ensure its reliability, requires the presence of another when the specimen is created and frequently reveals information about one's health unrelated to the use of drugs. If the tests are positive, it may affect one's employment status and even result in criminal prosecution.
We would be appalled at the spectre of the police spying on employees during their free time and then reporting their activities to their employers. Drug testing is a form of surveillance, albeit a technological one. Nonetheless, it reports on a person's off-duty activities just as surely as someone had been present and watching. It is George Orwell's "Big Brother" Society come to life.
To argue that it is the only practical means of discovering drug abuse is not sufficient. We do not permit a search of every house on a block merely because there is reason to believe that one contains evidence of criminal activity. No prohibition more significantly distinguishes our democracy from a totalitarian government than that which bars warrantless searches and seizures. Nor can the success of massive testing justify its use. We would not condone the beatings of suspects and the admissibility of their confessions merely because a larger number of convictions resulted.
In this matter, long time employees were coerced into testing without notice, without standards and without probable cause or reasonable suspicion. Even if such testing were justified without such individualized basis, it nonetheless, would be illegal because of the flagrant violation of plaintiffs' due process rights in this instance. Assuming a program of drug testing is warranted, before it may be implemented, its existence must be made known, its methods clearly enunciated, and its procedural and confidentiality safeguards adequately provided.
The harassment, coercion and tactics utilized here, even if motivated by the best of intentions, should cause us all to recognize the realities of government excesses and the need for constant vigilance against intrusions into constitutional rights by its agents. If we choose to violate the rights of the innocent in order to discover and act against the guilty, then we will have transformed our country into a police state and abandoned one of the fundamental tenets of our free society. In order to win the war against drugs, we must not sacrifice the life of the Constitution in the battle.
On May 26, 1986 all fire fighters and fire officers employed by the defendant, City of Plainfield, were ordered to submit to a surprise urinalysis test. At 7:00 A.M. on May 26, the Plainfield Fire Chief and Plainfield Director of Public Affairs and Safety entered the city fire station, secured and locked all station doors and awakened the fire fighters present on the premises. Each fire department employee was required to submit a urine sample while under the surveillance and supervision of bonded testing agents employed by the city. Defendants repeated a substantially similar procedure on May 28 and June 12, 1986 until approximately all of the 103 employees of the Plainfield Fire Department were tested.
Between July 10 and July 14, 1986, sixteen firefighting personnel were advised that their respective urinalysis had proved positive for the presence of controlled dangerous substances. They were immediately terminated without pay. Those who tested positive were not informed of the particular substance found in their urine or of its concentration. Neither were they provided copies of the actual laboratory results. Written complaints were served ten days later on July 24, 1986, charging these fire fighters with numerous violations including "commission of a criminal act".
At about the same time, employees of the Plainfield Police Department were subjected to similar urine testing. On May 26, 1986, plaintiff Monica Tompkins, a communications operator for the Plainfield Police was ordered to submit a urine sample under the surveillance of a female testing agent. On July 10, Ms. Tompkins was advised by the Chief of Police that her urinalysis had been positive. As a result, Ms. Tompkins was informed that she could either resign without charges being brought or she would be immediately suspended.
Plaintiff fire fighters instituted this action on July 30, 1986, by way of an Order to Show Cause and Verified Complaint. Plaintiff Monica Tompkins filed a related action which will be considered jointly. The Court issued a Temporary Restraining Order mandating the immediate reinstatement of the suspended Plainfield fire fighters and prohibiting further urine testing by defendants pending a plenary determination in this case.
On July 31, 1986 defendants moved to vacate the restraining order. The court denied defendants' motion, but granted leave to re-apply if specific, individualized evidence could be produced demonstrating that a particular fire fighter's job performance was impaired as a result of drugs. To date, no such evidence has been brought before the court.
Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief.
They seek to have the urine testing declared unconstitutional and to enjoin the City of Plainfield and its agents from further conducting standardless, department-wide urine testing in violation of the Fourth Amendment. The parties have agreed to submit the matter for a final determination on the record before the court conceding that no factual issues exist which would require a hearing.
The Fourth Amendment to the United States Constitution states:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . .
The essential purpose of the Fourth Amendment is to "impose a standard of reasonableness upon the exercise of discretion by government officials" in order to "safeguard the privacy and security of individuals against arbitrary invasions by government officials." Delaware v. Prouse, 440 U.S. 648, 653-54, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979); Camara v. Municipal Court, 387 U.S. 523, 528, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967). "The Fourth Amendment thus gives concrete expression to a right of the people which 'is basic to a free society.'" Id., (quoting Wolf v. Colorado, 338 U.S. 25, 27, 93 L. Ed. 1782, 69 S. Ct. 1359 (1949)). The constitutional issue here arises only if the Fourth Amendment is implicated by defendants' conduct. The threshold question then is whether urinalysis constitutes a search and seizure within the meaning of the Fourth Amendment.
Courts have clearly established that individuals retain an expectation of privacy and a right to be free from government intrusion in the integrity of their own bodies. See Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966); United States v. Ramsey, 431 U.S. 606, 52 L. Ed. 2d 617, 97 S. Ct. 1972 (1978). "One's anatomy is draped with constitutional protection." United States v. Afanador, 567 F.2d 1325, 131 (5th Cir. 1978). The "taking" of urine has been likened to the involuntary taking of blood which the Supreme Court found to constitute a search and seizure within the Fourth Amendment. See Schmerber, supra. Though urine, unlike blood, is routinely discharged from the body so that no actual intrusion is required for its collection, it is normally discharged and disposed of under circumstances that merit protection from arbitrary interference.
Both blood and urine can be analyzed in a medical laboratory to discover numerous physiological facts about the person from whom it came, including, but not limited to recent ingestion of alcohol or drugs. "One does not reasonably expect to discharge urine under circumstances making it available to others to collect and analyze in order to discover the personal physiological secrets it holds." McDonell v. Hunter, 612 F. Supp. 1122, 1127 (D. Iowa 1985). As with blood, each individual has a reasonable expectation of privacy in the personal "information" bodily fluids contain. For these reasons, governmental taking of a urine specimen constitutes a search and seizure within the meaning of the Fourth Amendment. See McDonell v. Hunter, supra; Allen v. City of Marietta, 601 F. Supp. 482, 288-89 (N.D. Ga. 1985); Storms v. Coughlin, 600 F. Supp. 1214, 1218 (S.D.N.Y. 1984); City of Palm Bay v. Bauman, 475 So. 2d 1322 (D.C. App. Fla. 1985). Most recently, the Third Circuit implicitly confirmed the applicability of Fourth Amendment prohibitions to the taking of urine samples, invoking Fourth Amendment doctrine to determine the constitutionality of urine testing of race horse jockeys. Shoemaker v. Handel, 795 F.2d 1136, 1142 (3d Cir. 1986) ("the question that arises in this case is whether the administrative search exception extends to warrantless [urine] testing of persons").
Having determined that urine testing constitutes a search and seizure, this court must now evaluate defendants' search under the Fourth Amendment's dictates. The fundamental command of the Fourth Amendment is that searches and seizures be "reasonable." New Jersey v. TLO, 469 U.S. 325, 105 S. Ct. 733, 743, 83 L. Ed. 2d 720 (1985); Carroll v. United States, 267 U.S. 132, 147, 69 L. Ed. 543, 45 S. Ct. 280 (1925). What is reasonable depends upon the context in which a search takes place. Ordinarily a search requires both a warrant and probable cause to qualify as constitutionally reasonable. Yet the Supreme Court has stated that neither element is "an irreducible requirement of a valid search." New Jersey v. TLO, supra, at 743. Instead, the ultimate determination of a search's reasonableness requires a judicious balancing of the intrusiveness of the search against its promotion of a legitimate governmental interest. See Illinois v. Lafayette, 462 U.S. 640, 77 L. Ed. 2d 65, 103 S. Ct. 2605 (1983); United States v. Villamonte-Marquez, 462 U.S. 579, 77 L. Ed. 2d 22, 103 S. Ct. 2573 (1983). The Supreme Court has explained:
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.
Bell v. Wolfish, 441 U.S. 520, 559, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979).