On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock and Garibaldi. For reversal -- Justices O'Hern and Stein. The opinion of the Court was delivered by Pollock, J. O'Hern, J., Dissenting. Justice Stein joins in this opinion.
[133 NJ Page 185] 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
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 In an unpublished opinion, the Appellate Division affirmed.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, 130 N.J. 18, 611 A.2d 656 (1992), and now affirm the Appellate Division's judgment.
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 . . . .
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
plaintiff. At the Conclusion of the hearing, the ALJ sustained the charge of insubordination and the dismissal.
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.
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)).
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
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)).
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.
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 Ford v. Dowd, 931 F. 2d 1286, 1290 (8th Cir.1991) (stating that police officer is in
"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.
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."
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. ...