Before Judges Pressler, Kimmelman and Ciancia.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 1999
On appeal from the Merit System Board.
This is an appeal by the County of Hudson from a final decision of the Merit System Board reversing the disciplinary action taken against Lieutenant Paul Tamburelli by the Hudson County Police Department. Tamburelli had been terminated from his position with that department after a urine sample he provided tested positive for cocaine. The Administrative Law Judge issued an initial recommended decision concluding that the Hudson County Police Department did not have sufficient justification for requiring Tamburelli to submit a urine sample. The Merit System Board adopted the ALJ's recommended decision. *fn1 We now reverse the decision of the Merit System Board because we are satisfied that as a matter of law the information available to the Hudson County Police Department constituted reasonable suspicion of drug use by Tamburelli justifying the request for a urine sample.
The facts are essentially undisputed. On November 9, 1995, a sergeant in the Hudson County Prosecutor's Office received information from a known and reliable confidential informant (CI) that on November 6, 1995 the CI had been invited into a basement apartment located at 140 Beacon Avenue, Jersey City, and in that apartment the CI witnessed Lieutenant Tamburelli smoking a crack- cocaine pipe. The Lieutenant appeared under the influence and was "agitated" that the CI was present. Tamburelli asked the CI to leave the premises.
This information was conveyed to the Hudson County Chief of Police who attempted to set up a surveillance of the Beacon Avenue apartment but was unsuccessful in doing so because of staffing problems. He was reluctant to act on the information alone, in part because there had been a previous instance (not involving Tamburelli), "where they had a tip from the prosecutor's office and . . . it didn't hold up." He believed, therefore, that the information was insufficient to require a urine sample from Tamburelli.
On March 11, 1996, the police chief received a memo from the deputy chief stating that he had received complaints about Tamburelli's attitude toward other officers. The memo said nothing about drugs or drug use and recommended that Tamburelli be sent to sensitivity training.
On March 18, 1996, the police chief received another memo authored by the sergeant who had provided the information about the events on November 6, 1995, as told by the CI. This memo said the sergeant had been contacted by a public defender whose client had information concerning Tamburelli. The sergeant interviewed the public defender's client and learned the information came from a woman the client had met in the county jail. That woman told the client she was present at the Beacon Avenue location on the same date the CI had reported seeing Tamburelli smoking a crack-cocaine pipe. The woman said it was she who had bought cocaine in the building and brought it to Tamburelli in the basement apartment. She further claimed that Tamburelli paid her for certain sexual acts.
This additional information prompted the police chief to seek the advice of the Hudson County Assistant Prosecutor who was "handling police matters at that time." The assistant prosecutor concluded there was a sufficient basis to require Lieutenant Tamburelli to submit a urine sample for testing. That sample was ultimately provided and, as noted, it tested positive for cocaine.
The Administrative Law Judge believed the information available to the Hudson County Police Department did not rise to the level of reasonable suspicion. He was concerned, among other things, with the time lapse between the first report from the CI and the request for a urine sample approximately four months later. The subsequent information provided to the police chief was discounted as either not relating to drug use (the memo about Tamburelli's interactions with his co-workers) or containing too much hearsay (the memo reciting a woman's purchase of drugs given to Tamburelli and her sexual activity with him in the Beacon Avenue apartment). We believe the ALJ, and thus the Merit System Board which did little more than adopt the recommended decision, took too restrictive a view of the evidence and probably considered "reasonable suspicion" to be a higher standard than the law actually requires.
Certainly a drug test performed by a police department pursuant to its regulations and the Attorney General's guidelines, is a search subject to the requirements of the Fourth Amendment of the United States Constitution. While probable cause is the general standard for permitting a search, we are here dealing with a "special governmental need" on the part of the police department and a diminished expectation of privacy on the part of the police officer. The balance struck by these interests permits a search based on reasonable suspicion without probable cause. See Rawlings v. Police Dep't of Jersey City, 133 N.J. 182, 188-90 (1993).
In Drake v. County of Essex, 275 N.J. Super. 585, 589 (App. Div. 1994), Judge Skillman succinctly set forth the attributes of "reasonable suspicion":
Reasonable suspicion is "considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L.Ed. 2d 1, 10 (1989); accord Rawlings v. Police Dep't of Jersey City, 133 N.J. 182, 191, 627 A. 2d 602 (1993). In fact, "[r]easonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause." Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L.Ed. 2d 301, 309 (1990); accord State in the Interest of H.B., 75 N.J. 243, 251, 381 A. 2d 759 (1977). Morever, "[t]he concept of reasonable suspicion, like probable cause, is not 'readily, or even usefully, reduced to a neat set of legal rules.'" United States v. Sokolow, supra, 490 U.S. at 7, 109 S. Ct. at 1585; 104 L.Ed. 2d at 10 (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. ...