June 20, 2013
KERRY HONAN, Appellant,
NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 28, 2013
On appeal from the New Jersey Department of Corrections.
Kelly Honan, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).
Before Judges Parrillo and Sabatino.
This is a prison disciplinary appeal. Kerry Honan, an inmate currently confined at East Jersey State Prison, appeals a Department of Corrections (DOC) determination, after administrative proceedings, finding that he committed prohibited act *.204 — use of a prohibited substance – in violation of N.J.A.C. 10A:4-4.1(a) – and imposing discipline on him. We affirm.
On February 28, 2012, Honan provided a urine specimen that tested positive for morphine during the initial on-site test. The New Jersey Department of Health Laboratory confirmed that the specimen tested positive for opiates.
At the initial hearing on March 16, 2012, Honan pled guilty to the *.204 charge and admitted taking drugs, but through counsel substitute, argued his due process rights were violated because there was no "probable cause" for the urine analysis, i.e., the K-9 and BOSS chair frisks yielded negative results. Consequently, the hearing officer postponed the hearing for clarification of the "reasonable factual basis" for ordering urine analysis.
The hearing resumed on March 27, 2012, at which time the State produced a March 21, 2012 report of Major Robert Yacubovich stating that his order for a urine analysis was "based on a request by SID [Special Investigation Division] for an ongoing investigation." At the conclusion of the hearing, Honan was adjudicated guilty of the *.204 charge and sanctioned to fifteen days' detention, suspended for sixty days; thirty days' loss of recreation privileges; permanent loss of contact visits and 365 days' random urine monitoring.
Honan filed a timely administrative appeal and on April 4, 2012, the Assistant Superintendent rescinded the decision of the hearing officer and ordered a new hearing. Honan again pled guilty, admitting to using drugs. At the hearing, the hearing officer accepted and relied upon a confidential report from Senior SID Investigator Christopher Birardi, dated February 28, 2012, as well as his non-confidential summary of that report, citing a confidential informant's tip, which Birardi considered to be credible and reliable, as the basis for Major Yacubovich's order that Honan submit to a urine analysis. At the conclusion of the disciplinary proceeding on April 17, 2012, the hearing officer found Honan guilty of the *.204 charge and sanctioned him to fifteen days' detention, suspended for sixty days; 120 days' loss of commutation time; thirty days' loss of recreation privileges, with credit for time served; permanent loss of contact visits and 365 days' random urine monitoring.
On appeal, Honan raises the following issues:
I. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING OF GUILT AS THE ORDER TO SUBMIT TO URINE ANALYSIS WAS INVALID AND IN VIOLATION OF THE APPELLANT'S RIGHT TO PROCEDURAL DUE PROCESS AND FAIRNESS.
II. THE HEARING OFFICER RENDERED AN ARBITRARY AND CAPRICIOUS DECISION THAT DEPRIVED THE APPELLANT OF A FAIR AND IMPARTIAL HEARING.
III.THE HEARING OFFICER'S CONSIDERATION AND RELIANCE ON INVALID EVIDENCE DEPRIVED THE APPELLANT OF A FAIR AND IMPARTIAL HEARING.
Honan essentially argues that he was unfairly ordered to submit to a urine test without just cause. We disagree.
Neither the federal nor state 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. Hamilton v. N.J. Dep't of Corrections, 366 N.J.Super. 284, 291-92 (App. Div. 2004). Rather, pursuant to N.J.A.C. 10A:3-5.10(b)(6), an inmate may be asked to provide a urine specimen for analysis
[w]hen a custody staff member of the rank of Sergeant or above or a Special Investigations Division Investigator believes, based upon his or her education and experience, that there is a reasonable factual basis to suspect the inmate of using or possessing a non-alcoholic prohibited substance.
Given legitimate concerns for institutional security and safety and the dangers inherent in the presence of drugs in a prison environment, Hamilton, supra, 366 N.J.Super. at 291; Jackson v. Department of Corrections, 335 N.J.Super. 227, 233- 34 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001), the need for prompt interdiction of drug use cannot be denied. Consequently, if an anonymous tip may serve as a basis for ordering a prison inmate to submit to a urine analysis to determine whether drug use has occurred, see Hamilton, supra, 366 N.J.Super. at 291-92, a fortiori, information from a reliable confidential informant necessarily establishes the "reasonable factual basis" required under the administrative code to support the constitutional validity of a non-random drug test of an inmate. Accordingly, Honan was properly ordered to submit to a urine test as Senior Investigator Birardi had a reasonable factual basis to suspect Honan of using drugs.
Furthermore, the admission of evidence of the informant's tip at the rehearing was not barred because it was not proffered at the initial hearing. We perceive no such restriction in the law, nor any unfairness in the procedure utilized herein. In the first place, Honan himself was the one who appealed the initial disposition to the Assistant Superintendent who, in turn, afforded him a new hearing. At that hearing, Honan had full opportunity, through counsel substitute, to present evidence as well as confront evidence proffered by the DOC. As to the latter, Honan was advised of Birardi's February 28, 2012 confidential report and provided with a non-confidential summary of that report. Accordingly, Honan received all the process he was due when the initial decision was rescinded and a new hearing granted, Avant v. Clifford, 67 N.J. 496, 522 (1975), and on the basis of the information produced thereat as well as his own guilty plea, Honan's adjudication of guilt was well supported by substantial credible evidence, Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).