jurisdiction, the decision of such court shall not affect or impair any of the remaining provisions." Plan, section 16, pg. 10.
The plaintiffs argue that taking urine samples for drug testing purposes constitutes a search and seizure under the Fourth Amendment. They cite a list of cases which agree with that assertion. Since a variety of private medical facts about a person can be detected in their urine, the plaintiffs assert that an individual has a reasonable expectation of privacy with respect to its discharge and the detection of the private information therein.
The plaintiffs argue that the Fourth Amendment requires Washington Township to obtain a warrant based on full probable cause in order to institute a urinalysis drug search of its police officers. However, the plaintiffs admit that the warrant requirement of the Fourth Amendment is not "inviolate." Plaintiffs' brief at 7. Therefore, they argue in the alternative that at least a reasonable suspicion of illegal drug use by an officer must exist before the officer may be ordered to submit to a urinalysis.
The plaintiffs believe that the reasonable suspicion standard is justified by a balancing of the interests at stake here. They rely on the fact that Washington Township has not identified an existing drug problem among its police officers. The plaintiffs do not dispute the Township's need to ensure that police officers do not use illegal drugs. However, they argue that mandatory urine testing in the absence of even a reasonable suspicion is an excessively intrusive means to achieve that end. While they concede that a police officer's expectation of privacy may be diminished somewhat, they insist that it is not so diminished as to permit the types of tests, absent reasonable suspicion, which the Township is seeking to conduct here.
The plaintiffs especially oppose the Township's attempt to drug test police officers on a random basis. They argue that randomness provides no standard at all to measure when a given search is reasonable. They argue that random testing has the same ultimate effect as the mass testing of all police officers. They observe that courts have disallowed the mass testing of municipal employees under circumstances similar to those presented here.
Even though the proposed tests are not aimed at gathering evidence for criminal prosecution, the plaintiffs point out that an officer's career will hang in the balance pending the test outcome and that the result could be incorrectly reported for a variety of reasons.
The plaintiffs contend that the medical examinations called for in the drug testing policy are not bona fide medical examinations but are a mere subterfuge to conduct urinalysis drug tests under another label. They believe that the medical examination provisions are a "distractor" intended to permit the Township to urine test at its discretion. Plaintiffs' brief at 21. They point out that no medical guidelines, other than a drug-urine test, are established as a requirement of fitness for duty by police officers.
The defendants respond by arguing that the intrusion engendered by a mandatory urinalysis is minimal. They believe that a police officer has no reasonable expectation of privacy in opposition to the proposed tests, since a police officer enjoys limited privacy rights on the job and because there can be no reasonable expectation of privacy in the fact that an individual is using illegal drugs.
The defendants believe that random testing of police officers is the most efficient and effective way to ensure a drug-free police force. They concede that prior attempts to mass test municipal employees have been struck down as unreasonable by the courts. However, the defendants believe that their proposed drug testing plan has recognized and overcome the fatal defects which were present in those programs.
For example, the defendants believe that their program is reasonable because it would permit most officers to urinate in private, because it is governed by a detailed set of written guidelines, and because the information obtained would be utilized for disciplinary but not for criminal purposes.
The defendants do not claim that a drug problem among the Township's police officers has been documented. They assert that their program is fully justified as a preventive effort and rely on statistics which indicate that a serious drug problem exists in society as a whole. These statistics, they maintain, create a reasonable concern by Township officials that employees are using or may in the future use illegal drugs.
To support their effort, the defendants rely on previous cases which have upheld the mandatory urine testing of jockeys, nuclear plant employees, flight service specialists and certain prison guards. Finally, the defendants maintain that mandatory urine testing has been "unanimously" upheld by recent federal circuit court decisions.
A MANDATORY URINALYSIS CONSTITUTES A SEARCH
The Employee Drug Testing Program of Washington Township requires that municipal employees, including police officers, submit to urine testing aimed at detecting the presence of illegal drugs. The use of such mandatory drug testing procedures and the review of their legality in the courts are relatively modern phenomena. Nonetheless, among those courts considering the question, a consensus has developed that a mandatory urinalysis constitutes a search within the meaning of the Fourth Amendment. McDonell v. Hunter, 809 F.2d 1302, 1307 (8th Cir. 1987); Shoemaker v. Handel, 795 F.2d 1136, 1141 (3d Cir.), cert. denied 479 U.S. 986, 107 S. Ct. 577, 93 L. Ed. 2d 580 (1986)(implicit finding that mandatory urinalysis constitutes a search); Feliciano v. City of Cleveland, 661 F. Supp. 578, 584 (N.D. Ohio 1987); Capua v. City of Plainfield, 643 F. Supp. 1507, 1513 (D.N.J. 1986); Jones v. McKenzie, 628 F. Supp. 1500, 1508 (D.D.C. 1986); Lovvorn v. City of Chattanooga, 647 F. Supp. 875, 879 (E.D. Tenn. 1986); Allen v. City of Marietta, 601 F. Supp. 482, 489 (N.D. Ga. 1985); Storms v. Coughlin, 600 F. Supp. 1214, 1217 (S.D.N.Y. 1984). Cf. Fraternal Order of Police v. City of Newark, 216 N.J. Super. 461, 466, 524 A.2d 430 (App. Div. 1987)(construing nearly identical provision of New Jersey Constitution).
While it is true that all individuals, by necessity, routinely dispense urine from their bodies, they usually do so in conditions of privacy where the bodily fluids are quickly disposed of and are not retrievable by others for testing purposes. "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." Capua v. City of Plainfield, 643 F. Supp. at 1513 (quoting McDonell v. Hunter, 612 F. Supp. 1122, 1127 (D. Iowa 1985)). The mandatory taking and testing of urine samples from Washington Township's police officers would therefore constitute a search.
Since the mandatory urine testing proposed by the defendant would constitute a search within the meaning of the Fourth Amendment, this court must determine whether the planned searches are constitutionally permissible. This entails an examination of the provisions of the Fourth Amendment in order to ascertain: whether a warrant must be acquired before undertaking such searches; whether probable cause or reasonable suspicion is needed to justify the searches; and whether the searches will be "reasonable," as required by the amendment.
The Fourth Amendment of the United States Constitution states that:
"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."
The Fourth Amendment applies to the states through the Fourteenth Amendment. Wolf v. Colorado, 338 U.S. 25, 27-28, 93 L. Ed. 1782, 69 S. Ct. 1359 (1949).
"The most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.'" Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, reh'g denied, 404 U.S. 874, 30 L. Ed. 2d 120, 92 S. Ct. 26 (1971) (citing Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967)). The fundamental command of the Fourth Amendment is that searches and seizures be reasonable. New Jersey v. T.L.O., 469 U.S. 325, 340, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985). While ordinarily a warrant and full probable cause are required to satisfy the reasonableness standard of the Fourth Amendment, the Supreme Court has stated that "in certain limited circumstances neither is required." Id. at 340. (teacher or other school official may search students when there are "reasonable grounds for suspecting that the search will turn up evidence that student has violated or is violating either the law or the rules of the school." Id. at 341-42). See also Delaware v. Prouse, 440 U.S. 648, 663, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979) (car may be stopped without a warrant and its driver detained while documents are checked if there is at least an "articulable and reasonable suspicion" that a motor vehicle violation or other illegality has occurred); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968) ("stop and frisk" of individual by police officer is permissable if "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.").
The Supreme Court, however, has not yet considered whether or not a warrant based upon full probable cause is required to justify the type of mandatory urine testing proposed here. Except in the case of a "well-delineated exception" to the warrant requirement, a court should not dispense with that requirement lightly. This court is mindful that "the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure. . . ." Terry v. Ohio, 392 U.S. at 20. However, the court also recognizes that where the purpose of the search is to detect the presence of an illegal substance in the body, the delay entailed in obtaining a warrant could well frustrate that purpose, due to the eventual dissipation of the substance searched for. See Schmerber v. California, 384 U.S. 757, 770-71, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966). Therefore, it may not be practicable for Washington Township to obtain a search warrant in a timely fashion when the need arises to test a police officer for the presence of drugs in his body. The strict requirement of obtaining a search warrant may be dispensed with if "'the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.'" New Jersey v. T.L.O., 469 U.S. at 340 (quoting Camara v. Municipal Court, 387 U.S. 523, 532-33, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967)). The court therefore concludes that Washington Township authorities need not obtain a warrant before requiring that a police officer submit to urinalysis drug testing. The next question is the reasonableness of the warrantless searches proposed by Washington Township.
RANDOM DRUG TESTING
The Township's proposed plan would permit drug testing to be initiated in a number of ways. However, the plaintiffs accurately assert that the random selection of police officers for drug testing is the "heart and soul" of the proposed policy. Random testing is also the "heart and soul" of the constitutional question before this court.
"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 to be conducted." Bell v. Wolfish, 441 U.S. 520, 559, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979).
The reasonableness of random drug testing in this case must be determined by balancing the need to conduct a random drug search against the resulting invasion of the police officers' expectation of privacy. See O'Connor v. Ortega, 480 U.S. 709, 107 S. Ct. 1492, 1499, 94 L. Ed. 2d 714 (1987); New Jersey v. T.L.O., 469 U.S. at 337.
Washington Township asserts that random drug testing of its police officers is justified under the rationale of cases permitting the random urine testing of public employees engaged in highly-regulated activities. The court concludes that those cases are inapplicable to the present controversy.
The principle case involving mandatory random urinalyses of employees in a highly-regulated industry is Shoemaker v. Handel, 795 F.2d 1136, 1137 (3d Cir.), cert. denied, 479 U.S. 986, 107 S. Ct. 577, 93 L. Ed. 2d 580 (1986). In Shoemaker, jockeys engaged in New Jersey's highly-regulated racing industry challenged certain rules of the State Racing Commission. Those rules permitted the state racing steward to direct jockeys to submit to breathalyzer and urinalysis tests designed to detect the presence of alcohol or drugs. Id. at 1137. The rules were implemented by randomly testing between three and five jockeys at the conclusion of each racing day. Id. at 1140.
In upholding the random searches of jockeys in Shoemaker, the Third Circuit found that both prongs of the test for a warrantless administrative search had been met. First, there was a strong state interest in conducting an unannounced search in those particular circumstances. New Jersey has a significant financial interest in the horse racing industry. That financial interest is dependent upon the confidence of the wagering public in the honesty and integrity of the sport. Second, the already pervasive regulation of the horse racing industry had sufficiently reduced the expectation of privacy held by the jockeys engaged in racing in New Jersey. Among other things, the jockeys knew that warrantless searches of stables and drug testing of horses had previously been authorized by the State Racing Commission. Id. at 1142.
The Shoemaker court clearly stated that "our holding applies only to breathalyzer and urine sampling of voluntary participants in a highly-regulated industry." Id. at 1142 n.5.
Washington Township's police officers are not engaged in a highly-regulated industry of the type dealt with in Shoemaker. While police officers certainly operate within a framework of regulatory controls, a police officer does not carry out his duties in the same "intensely-regulated" atmosphere as that experienced by a jockey participating in horse racing. See Id. at 1142; Fraternal Order of Police v. City of Newark, 216 N.J. Super. at 469. To apply the reasoning of Shoemaker to the police officers in this case would extend Shoemaker well beyond the limited scope which that court intended for its ruling.
Rushton v. Nebraska Public Power Dist., 653 F. Supp. 1510 (D. Neb. 1987), also involved a highly-regulated industry. The Rushton court largely relied on Shoemaker in permitting the random urine testing of personnel who had unescorted access to "protected areas of the Cooper Nuclear Station (CNS)." Id. at 1524-25.
Recent occurrences at nuclear power plants in this country and abroad have established that a mishap at such a facility can cause serious damage and alarm extending even beyond national borders. As the Rushton court noted, a strong state interest, even more compelling than that in Shoemaker, exists for ensuring the safety of the public, the workers and the plant facility. Id. at 1524. Consequently, many regulatory safeguards are in place at CNS and other such facilities. Indeed, the Rushton court recognized the "pervasive regulation" surrounding the nuclear industry as a whole. Id. at 1524.
There is no such pervasive regulation of the police officers in the case at hand. Any illusion that Washington Township's police force operates under a reduced expectation of privacy comparable to the situation in Rushton is dispelled by Judge Urbom's description of the Cooper Nuclear Station:
"The protected area of CNS is completely surrounded by a fence, except at the point where the fence meets the security building. To enter the protected area, one must proceed through the entrance of the security building and pass, in single file, through explosive and metal detector devices. Random pat-downs are routinely performed and guards observe entrants for erratic behavior. Once within the confines of the protected area, each of the 700 individuals who are permitted unescorted access participate in the honor system. Variously located throughout the protected area are vital areas. Each vital area is a room with a door requiring a separate access code for entrance. The vital areas house the safety related equipment, the equipment designed to prevent or mitigate a radiological release." Id. at 1513.
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