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Fraternal Order of Police v. City of Newark

Decided: March 26, 1987.

THE FRATERNAL ORDER OF POLICE, NEWARK LODGE NO. 12, A NOT-FOR-PROFIT CORPORATION OF THE STATE OF NEW JERSEY, ON BEHALF OF ITS MEMBERS, ET AL., PLAINTIFFS-APPELLANTS,
v.
THE CITY OF NEWARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, ET AL., DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Essex County.

Pressler, Gaulkin and Ashbey. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

[216 NJSuper Page 462] Plaintiffs brought this action in lieu of prerogative writs to invalidate a directive issued by the City of Newark Police Director mandating that all members of the Narcotic Bureau be subjected to urine testing for drug abuse "both upon transfer [into the Bureau] and at least twice a year afterwards." The Law Division judge sustained the directive. Plaintiffs appeal.

I.

Memorandum 85-259, issued by Police Director Knox on December 10, 1985, reads in its entirety as follows:

1. Narcotic enforcement is the most sensitive and health threatening assignment in policing today. It exposes the Police Officer to certain health hazards that are not necessarily encountered in normal patrol work. The advent of Acquired Immune Deficiency Syndrome, commonly referred to as AIDS, is a prime example of a real health threat.

2. Secondly, Narcotic enforcement is, by its very nature, a sensitive assignment, requiring the highest degree in confidence. Confidence is the key to narcotic investigations; it is not only the trust between the investigator and an informant, it is also faith in performance, ability and the manner in which laws are enforced. Police Officers should bear in mind that they symbolize the dignity and authority of the Law. It is a harsh reality that we, as Police Officers, must maintain standards of conduct that are above that which is expected of the average citizen in order that we maintain the confidence and trust of the public that we serve.

3. These dual concerns, the health of the employee and the trust of the public is of paramount concern to this Department.

4. Effective 0001 hours, December 12th, 1985, all members of the Narcotic Bureau shall be required to take a urinalysis and blood test. Furthermore, any transfer into the Unit shall be predicated upon a successful urinalysis and blood test. Any request of transfer to the Narcotic Bureau shall be forwarded with the understanding that a urinalysis exam and blood test is required as part of the assignment, both upon transfer and at least twice a year afterwards. These exams are to be administered to determine:

a. Health deficiencies

b. Substance abuse

5. Furthermore, all such testing shall be conducted under the supervision of the Police Surgeon or his representative and the Internal Affairs Bureau. All results are to be confidential and forwarded to the Police Director for review.*fn1

The Memorandum was delivered to plaintiff Fraternal Order of Police (FOP) on December 12, 1985. Narcotic Bureau officers reporting for duty that afternoon were ordered to provide urine specimens. This action was filed on December 13, 1985. The City was immediately enjoined from any further implementation of the Memorandum; the injunction remained effective throughout the trial proceedings and has been continued pending disposition of this appeal.

The genesis and intended operation of the Memorandum were described by Director Knox in an affidavit. Director Knox was "concerned . . . with drug abuse among members of the Police Department" and also "with the public perception with respect to the drug abuse among members of the Police Department." His concern resulted from his "awareness of the extent and seriousness of the problem of drug abuse in society in general, and in Newark in particular, as well as the results of recent urine testing of Police Department recruits[.]" He asserted that the testing of two recent classes of recruits "yielded 5 positive tests for such substances as cocaine, heroin, morphine and barbiturates." Director Knox continued that "[p]ublic confidence . . . is crucial to effective law enforcement"; such confidence "depends on credibility and the urine testing contemplated by Memorandum 85-259 will go a long way toward reinforcing credibility." In addition, the tests were intended "to serve the interests of public safety and effective law enforcement by deterring drug use."

In a deposition, Director Knox also said that he had received "[s]pecific information from citizens in the community and also from street people" about police officers using controlled dangerous substances, including allegations against two Narcotic Bureau officers. He said he had received information from two commanding officers about the same Narcotic Bureau officers. However, Director Knox said the information received from the commanding officers did not play any role in his issuance of the directive: "I intended to test members of this police department anyway."

As to the intended operation of the tests, Director Knox set forth in his affidavit that the procedures to be used "are the same as those already utilized in testing recruits." Samples would be field-tested first "using the EMIT urine screening program." Those samples which test positive would be forwarded for laboratory testing. All test results would be "confidential," but police officers for whom positive samples are found "will be charged as set forth in the rules and regulations."

However, test results "will not be made known to the prosecutor and no criminal charges will be brought."

The issues were presented to the trial judge on the pleadings, affidavits and deposition testimony. In an unreported opinion, the judge concluded that mandatory urine monitoring constitutes a "search" within the meaning of the New Jersey and United States Constitutions but that "there are no constitutional inhibitions against the Director's basic power to issue Memorandum 85-259."*fn2 The judge ordered a hearing, however, "on whether the means of enforcing the Director's order are calculated to show accurately the presence of controlled dangerous substances in the urine, and also whether the tests will be conducted with a minimum possible invasion of the police officer's personalty and privacy."

On June 16, 1986, the trial judge entered final judgment ordering, among other things, that "the acquisition of urine and the testing of urine, if conducted, shall be conducted in accordance with the Methods and Procedures for Urine/Drug Screening" incorporated in the judgment. Those methods and procedures are set forth in Appendix A attached to this opinion. Plaintiffs appeal from that judgment.*fn3

II.

Plaintiffs' principal contention here, as in the trial court, is that drug/urine testing as authorized by Memorandum 85-259 would constitute an unreasonable search and seizure in violation of Article I, para. 7 of the New Jersey Constitution and also of

the Fourth Amendment of the United States Constitution, both of which direct that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

The City does not dispute plaintiffs' contention that a governmentally compelled taking of urine is both a "search" and a "seizure" within the meaning of the constitutional provisions. That proposition is uniformly recognized in the reported cases. See e.g. McDonell v. Hunter, 809 F.2d 1302 (8th Cir.1987); Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.1986), cert. den. U.S. , 107 S. Ct. 577, 93 L. Ed. 2d 580 (1986); Nat'l Treasury Employers Union v. Von Raab, 649 F. Supp. 380, 387 (E.D.La.1986); Capua v. City of Plainfield, 643 F. Supp. 1507, 1513 (D.N.J.1986); Allen v. City of Marietta, 601 F. Supp. 482, 488-489 (N.D.Ga.1985); Storms v. Coughlin, 600 F. Supp. 1214, 1218 (S.D.N.Y.1984); City of Palm Bay v. Bauman, 475 So. 2d 1322, 1324 (Fla.Dist.Ct.App.1985); Caruso v. Ward, 133 Misc. 2d 544, 506 N.Y.S. 2d 789, 792 (Sup.Ct.1986). The parties thus properly frame the issue as being whether the search and seizure authorized by the Memorandum would be "unreasonable."*fn4

We start with the principles that a search or seizure based upon a warrant supported by probable cause*fn5 is "presumed to be valid" (State v. Valencia, 93 N.J. 126, 133 (1983)), and that a warrantless search is " prima facie invalid unless it comes within one of the specific exceptions to the warrant requirement" of the constitutional provisions. State v. Young, 87 N.J. 132, 141 (1981). See Katz v. United States, 389 U.S. 347, 357,

88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967). We conclude that the searches and seizures contemplated by the Memorandum do not come within any "specific exception" to the warrant requirement.

Many of the exceptions to the warrant requirement nevertheless require a showing of probable cause. See, e.g., Valencia, 93 N.J. at 136 (warrantless search permissible upon showing of exigent circumstances and probable cause); State v. Martin, 87 N.J. at 567 (warrantless search of automobile permissible if based on probable cause); Young, 87 N.J. at 142, n. 4 (an arrest made upon probable cause allows a warrantless search of the arrestee's person and immediate vicinity). Other warrantless searches or seizures are lawful on a showing of some individualized suspicion less than probable cause. See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 342, 105 S. Ct. 733, 744, 83 L. Ed. 2d 720 (1985) (warrantless school search will ordinarily pass constitutional muster "when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school"); Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979) (discretionary automobile stops require "reasonable suspicion"); United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S. Ct. 2574, 2580, 45 L. Ed. 2d 607 (1975) (roving-patrol automobile stops in border areas are permissible "when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country. . . ."); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (warrantless "stop and frisk" sustainable upon a showing that "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger"); United States v. Bunkers, 521 F.2d 1217 (9th Cir.1975), cert. den. 423 U.S. 989, 96 S. Ct. 400, 46 L. Ed. 2d 307 (1975) (warrantless search by postal inspector of employee's locker was justified by showing of reasonable suspicion of criminal activity); State v. Davis, 104 N.J. 490, 504 (1986) (investigatory stop by police only valid if officer has a

particularized suspicion); State v. Adams, 125 N.J. Super. 587, 598-600 (App.Div.1973) (warrantless search at airport upheld where traveler fit skyjacker profile, set off magnometer and pat-down search uncovered suspicious bulge). None of those "specific exceptions" to the warrant requirement serves to validate the Memorandum, which concededly does not condition urine testing on either probable cause or any individualized suspicion.

The City seeks to bring the proposed testing within the "pervasively regulated industry" exception to the warrant requirement, which permits certain warrantless searches and seizures without either probable cause or individualized suspicion. Administrative searches, i.e., those conducted to enforce a regulatory scheme, are subject to the Fourth Amendment and commonly require the issuance of a warrant. See Marshall v. Barlow's, Inc., 436 U.S. 307, 323-324, 98 S. Ct. 1816, 1825-26, 56 L. Ed. 2d 305 (1978); See v. City of Seattle, 387 U.S. 541, 545-546, 87 S. Ct. 1737, 1740, 18 L. Ed. 2d 943 (1967); Camara v. Municipal Court, 387 U.S. 523, 534-535, 87 S. Ct. 1727, 1733-34, 18 L. Ed. 2d 930 (1967). However, private commercial property utilized in a pervasively regulated industry may be inspected without a warrant and without individualized suspicion. See Donovan v. Dewey, 452 U.S. 594, 599-602, 101 S. Ct. 2534, 2538-39, 69 L. Ed. 2d 262 (1981); United States v. Biswell, 406 U.S. 311, 315-317, 92 S. Ct. 1593, 1596-97, 32 L. Ed. 2d 87 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 76-77, 90 S. Ct. 774, 776-77, 25 L. Ed. 2d 60 (1970). Persons associated with such an industry may also be subjected to a warrantless search, at least while on the commercial premises. In re Martin, 90 N.J. 295, 313-314 (1982).

The City principally relies on Shoemaker, which upheld regulations of the New Jersey Racing Commission permitting alcohol and drug testing of jockeys and other licensed persons without probable cause or reasonable individualized suspicion.

795 F.2d at 1142. Noting that the licensees had always been aware that they were subject to "intense state regulation," the court found that the regulatory interest in protecting both the wagering public and the public justified the testing requirements. The court took pains to point out, however, that its holding applies only to testing of "voluntary participants in a highly-regulated industry." Id. at 1142 n. 5. See Rushton v. Nebraska Public Power District, 653 F. Supp. 1510 (D.Neb. 1987) (random drug screening of public utility employees upheld under the rationale of Shoemaker).

Police officers are not members of a "highly-regulated industry." Like many other groups of public employees, police officers are subject to a variety of statutory and administrative controls.*fn6 But government's supervision of its employees cannot be equated with the regulation of sensitive industries requiring "close supervision and inspection." See, e.g., In re Martin, 90 N.J. at 312-313. Police are not engaged in a "commercial enterprise" (cf. Donovan, 452 U.S. at 599, 101 S. Ct. at 2538); they are not subject to a "comprehensive and defined" regulatory scheme in which drug testing is a "necessary component" (Id. at 600, 101 S. Ct. at 2538); there has been no legislative determination "that warrantless searches are necessary to further a regulatory scheme[.]" (Ibid.). To treat the police as a "pervasively regulated industry" would dangerously extend and distort that exception to the warrant requirement beyond its intended scope. We thus find ourselves in agreement with the many courts which have found Shoemaker inapplicable to or distinguishable from cases involving public employees. See, e.g., American Fed. of Gov't. Employees,

AFL-CIO v. Weinberger, 651 F. Supp. 726, 734-35 (S.D.Ga.1986); Caruso, 506 N.Y.S. 2d at 798.*fn7

III.

Since the contemplated warrantless drug testing does not fit within any "special exception" to the warrant requirement, we must regard the Memorandum as " prima facie invalid." Young, 87 N.J. at 141. Defendants accordingly "must prove the overall reasonableness and validity of the search" and seizures they propose. Valencia, 93 N.J. at 133.

Reasonableness is not easy to assess or describe. As Justice (now Chief Justice) Rehnquist said in Bell v. Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 1884, 60 L. Ed. 2d 447 (1979):

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.

Specific applications of those general principles can be found in the decided cases. As to the "need for the particular search," the "substantiality of the public interest" in the challenged practice must be assessed. See Donovan, 452 U.S. at 602, 101 S. Ct. at 2539; United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S. Ct. 3074, 3082, 49 L. Ed. 2d 1116 (1976). A closely allied inquiry is whether the particular law enforcement technique at issue is needed. See Martinez-Fuerte, 428 U.S. at 562, 96 S. Ct. at 3085; State v. Kirk, 202 N.J. Super. 28, 55 (App.Div.1985). The availability and practicality of alternative means of investigating the asserted evil is also of significance. See, e.g., Bell, 441 U.S. at 559, n. 40, 99 S. Ct. at 1885, n. 40; Martinez-Fuerte, 428 U.S. at 556 n. 12, 96 S. Ct. at 3082 n. 12.

Such public interest considerations must be weighed against a variety of private interests of the persons subject to

the warrantless search or seizure. Of primary concern, of course, is the degree of personal intrusion which the investigatory procedure involves. See, e.g., Martinez-Fuerte, 428 U.S. at 557-558, 96 S. Ct. at 3082-83. Implicated in that inquiry are such questions as whether the intrusion is for regulatory or other civil purposes, or to discover contraband or evidence of crime (see, e.g., Donovan, 452 U.S. at 598-599, 101 S. Ct. at 2537-38; Kirk, 202 N.J. Super. at 55); whether the intrusion involves a search or only an inquiry (see, e.g., Martinez-Fuerte, 428 U.S. at 565, 96 S. Ct. at 3086), and whether the intrusion is of the person (see, e.g., Davis, 104 N.J. 490) or a residence (see, e.g., Camara, 387 U.S. at 530-531, 87 S. Ct. at 1731-32) or an automobile (see, e.g., Martinez-Fuerte, 428 U.S. at 545-546, 96 S. Ct. at 3077), or commercial premises (see, e.g., See v. City of Seattle, 387 U.S. at 543-544, 87 S. Ct. at 1739). In evaluating the personal intrusion, the fact that it occurs without any individualized suspicion weighs heavily against a finding of reasonableness. As the Supreme Court said in Martinez-Fuerte, 428 U.S. at 560, 96 S. Ct. at 3084, "some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure." See also T.L.O., 469 U.S. at 342 n. 8, 105 S. Ct. at 744 n. 8.

In a welter of recent cases, courts throughout the country have been called upon to weigh the competing public and private interests in drug/urine testing of public employees. Virtually all of the reported cases have concluded that such testing is unconstitutional in the absence of some reasonable individualized suspicion. See American Fed. of Gov't Employees, AFL-CIO, 651 F. Supp. 726 (Department of Defense civilian police officers); Nat'l Treasury Employees Union, 649 F. Supp. at 387 (customs service workers); Penny v. Kennedy, 648 F. Supp. 815, 817 (E.D.Tenn.1986) (police); Lovvorn v. City of Chattanooga, 647 F. Supp. 875, 880 (E.D.Tenn.1986) (fire fighters); Capua, 643 F. Supp. at 1516-1520 (fire fighters and police officers); Jones v. McKenzie, 628 F. Supp. 1500, 1507-1508 (D.D.C.1986) (school bus attendant); City of Palm Bay,

475 So. 2d at 1325 (police and fire officers); Caruso, 506 N.Y.S. 2d at 799 (police officers assigned to Organized Crime Bureau); Patchogue-Medford Congress v. Bd. of Educ., 119 A.D. 2d 35, 505 N.Y.S. 2d 888, 891 (N.Y.App.Div. 2nd Dept.1986) (teachers). Other cases have upheld urine testing where the employer had reasonable individualized suspicion of drug use. Everett v. Napper, 632 F. Supp. 1481 (N.D.Ga.1986) (fire fighter); Allen, 601 F. Supp. 482 (municipal utility employees); Div. 241 Amalgamated Transit Union v. Suscy, 538 F.2d 1264 (7th Cir.1976), cert. den. 429 U.S. 1029, 97 S. Ct. 653, 50 L. Ed. 2d 632 (1976) (municipal bus drivers); Turner v. ...


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