On appeal from a Final Agency Decision of the Department of Corrections.
Before Judges Stern, A. A. Rodríguez and
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 2, 2003
Petitioner Frederick Hamilton, a convicted prison inmate, was the subject of an unsigned"snitch" note stating that he and another inmate had been observed injecting heroin. He was ordered to give a urine sample, which tested positive for opiates. Hamilton was charged with the commission of prohibited act *.204, use of a prohibited substance (see N.J.A.C. 10A:4-4.1(a)), and he pled guilty to the charge. Although his initial sanction was higher, following a plea for leniency, Hamilton received ninety days of administrative segregation, fifteen days of detention with credit for time served, 180 days' loss of commutation credits, permanent loss of contact visits, and ninety days of urine monitoring. Hamilton appeals.
On appeal, Hamilton claims that reasonable individualized suspicion sufficient to require urine testing was not provided by the snitch note and thus that evidence of his drug use, consisting of the urine specimen, should have been suppressed. We note initially that Hamilton did not raise this issue at his disciplinary hearing, but instead pled guilty to the offense. A motion in the Superior Court for suppression based on an unlawful search and seizure survives a guilty plea. State v. Greeley, 178 N.J. 38, 50-51 (2003); R. 3:5-7(d). Because in this administrative proceeding, no motion was made, Hamilton's claim of unlawfulness may have been waived. Cf. State v. Johnson, ___ N.J. Super. ___, ___ (App. Div. 2003) (slip opinion at 6-7). However, it is unnecessary for us to determine whether waiver exists in this context as the result of our substantive resolution of the issues raised.
Hamilton's argument fails on substantive grounds. A state compelled urinalysis constitutes a search and seizure for purposes of the Fourth Amendment. Joye v. Hunterdon Central H.S., 176 N.J. 568, 589-95 (2003); New Jersey Transit PBA Local 304 v. New Jersey Transit Corp., 151 N.J. 531, 543 (1997); Rawlings v. Police Dep't of Jersey City, 133 N.J. 182, 188 (1993); O'Keefe v. Passaic Valley Water Comm'n, 132 N.J. 2344, 242 (1993); Caldwell v. Dept. of Corrections, 250 N.J. Super. 592, 608 (App. Div.), certif. denied, 127 N.J. 555 (1991); Fraternal Order of Police v. City of Newark, 216 N.J. Super. 461, 466 (App. Div. 1987). See also, e.g., Skinner v. Railway Labor Exec. Ass'n., 489 U.S. 602, 617, 109 S. Ct. 1402, 1413, 103 L. Ed. 2d 639, 660 (1989) ("[b]ecause it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable,... these intrusions must be deemed searches under 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); Spence v. Farrier, 807 F.2d 753, 755 (8th Cir. 1986). Cf. Schmerber v. California, 384 U.S. 757, 767-68, 86 S. Ct. 1826, 1834, 16 L. Ed. 2d 908, 917-18 (1966) (compulsory blood alcohol test). Compare Hudson v. Palmer, 468 U.S. 517, 527-28, 104 S. Ct. 3194, 3200-01, 82 L. Ed. 2d 393, 404 (1984) (no right of privacy extends to the contents of a convicted inmate's cell, and a search thereof is not subject to the Fourth Amendment).
However, we find by use of a"special needs" test that neither the federal nor the New Jersey constitution requires that probable cause or reasonable suspicion be demonstrated prior to requiring that a urine specimen be given by a prison inmate on a non-random basis following receipt of an anonymous tip. Cf. Bell v. Wolfish, 441 U.S. 520, 558-60, 99 S. Ct. 1861, 1884-85, 60 L. Ed. 2d 447, 480-82 (1979) (permitting visual body cavity searches of pretrial detainees after every contact visit with a person from outside the institution, without the necessity of a showing of probable cause). As the Court stated there, the Fourth Amendment precludes only"unreasonable" searches. Id. at 558, 99 S. Ct. at 1884, 60 L. Ed. 2d at 481.
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.
[Id. at 559, 99 S. Ct. at 1884, 60 L. Ed. 2d at 481.]
Utilizing this analysis, we have permitted the use of Ion Scan machines and dogs to determine whether prison visitors are carrying drugs, without imposing a requirement that individualized suspicion trigger that use. Jackson v. Dept. of Corrections, 335 N.J. Super. 227, 232-35 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001). In doing so, we stated:
Inmates do not shed all of their constitutional rights at the prison gate. There is no iron curtain drawn between the Constitution and New Jersey prisoners. See New Jersey State Parole Bd. v. Byrne, 93 N.J. 192 (1983); Avant v. Clifford, 67 N.J. 496 (1975). While these principles can be articulated with disarming ease, our effort to define the metes and bounds of an inmate's constitutional protections requires an"intricate balancing of prison management concerns with prisoner's liberty." Sandin v. Conner, [515 U.S. 472, 478, 115 S. Ct. 2293, 2297, 132 L. Ed. 2d 418, 426 (1983)] (citing Wolff v. McDonnell, 418 U.S. 529, 556-58, 94 S. Ct. 2963, 2974-76, 41 L. Ed. 2d 935, 950-52 (1974))."Prisons are dangerous places." Blyther v. New Jersey Dept. of Corrections, 322 N.J. Super. 56, 65 (App. Div. 1999). The courts must afford appropriate deference and flexibility to corrections officers trying to manage a volatile environment. Ibid. (citing Wolff v. McDonnell, 418 U.S. at 561-63, 94 S. Ct. at 2977-78, 41 L. Ed. 2d at 954-55). Such flexibility is especially warranted in the fine-tuning of the ordinary incidents of prison life. Ibid.
[Jackson, supra, 335 N.J. Super. at 232-33.]
We then recognized in Jackson that the United States Supreme Court has not imposed probable cause and warrant requirements where"special needs, beyond those normally associated with law enforcement, have been shown to make any other course impracticable." Id. at 234 (quoting Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct. 3164, 3168, 97 L. Ed. 2d 709, 717 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S. Ct. 733, 748, 83 L. Ed. 2d 720, 741 (1985) (Blackmun, J., concurring)). When"special needs" exist, the individual's privacy expectations must be balanced against the government's interests in determining whether some level of individualized suspicion is required in a particular context. Jackson, supra, 335 N.J. Super. at 234 (citing Von Raab, supra, 489 U.S. at 665-66, 109 S. Ct. at 1390-91, 103 L. Ed. 2d at 702 and Skinner, supra,, 489 U.S. at 619, 109 S. Ct. at 1414, 103 L. Ed. 2d at 661 (1989))."We determine ...