Turner v. Fraternal Order of Police

NEBEKER, Associate Judge,

concurring:

I concur with the division’s ultimate conclusion that Paragraph 2 of Special Order 83-21 is constitutionally valid. I write separately, however, to express my view as to whether a Fourth Amendment interest is implicated in this case at all.

Several other courts have considered the constitutional implications of regulations requiring compulsory urinalysis and have upheld such regulations as reasonable within the Fourth Amendment. 1 These courts have reasoned that although the individuals affected by the regulations had a reasonable expectation of privacy with regard to their body fluids, a balancing of interests required the conclusion that the particular invasion of privacy at issue was not unreasonable within the Fourth Amendment. The parties and thus the division in this case have adopted that analysis; I agree with the analysis, but do not believe we are limited to it in deciding this case.

*1010 The United States Supreme Court has recognized that the Fourth Amendment protects two types of expectations, one involving “searches” and the other “seizures.” United States v. Jacobsen, 466 U.S. 109 , 104 S.Ct. 1652, 1656 , 80 L.Ed.2d 85 (1984). The Court distinguished these two expectations as follows:

A “search” occurs when an expectation that society is prepared to consider reasonable is infringed. A “seizure” of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.

Id. at 1656 (footnotes omitted). The Court has not elaborated on the constitutional implications involved in the “seizure” of an individual’s property. 2 There exists, however, a distinction in the case law, which is instructional on this point, that is concerned with obtaining physical evidence from an individual. In the first line of cases, which involve bodily intrusive searches, the Court has recognized that “the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Schmerber v. California, 384 U.S. 757, 768 , 86 S.Ct. 1826, 1834 , 16 L.Ed.2d 908 (1966). Because the line of eases beginning with Schmerber deals with intrusions into the human body — searches of the person — the courts have been careful to allow such activity only if it comports with the requirements of the Fourth Amendment. Winston v. Lee, — U.S. -, 105 S.Ct. 1611 , 84 L.Ed.2d 662 (1985) (extensive surgery to remove bullet held unreasonable); United States v. Shields, 453 F.2d 1235 (9th Cir.1972) (body cavity search held reasonable); Hughes v. United States, 429 A.2d 1339 (D.C.1981) (surgical removal of bullets held reasonable); United States v. Crowder, 177 U.S.App.D.C. 165 , 543 F.2d 312 (1976) (en banc) (surgical removal of bullets held reasonable), cert. denied, 429 U.S. 1062 , 97 S.Ct. 788 , 50 L.Ed.2d 779 (1977).

A second line of cases involves the seizure of an individual’s physical characteristics. In this line of cases, the Court has recognized that the seizure does not involve “the probing into an individual’s private life and thoughts that marks an interrogation or search.” United States v. Dionisio, 410 U.S. 1, 15 , 93 S.Ct. 764, 772 , 35 L.Ed.2d 67 (1973); see also United States v. Mara, 410 U.S. 19 , 93 S.Ct. 774 , 35 L.Ed.2d 99 (1973). Rather, such seizure cases are recognized as being outside of the Fourth Amendment’s protection; they do not involve the same degree of intrusion into an individual’s privacy because such physical characteristics are constantly exposed to the public. Dionisio, supra, 410 U.S. at 14, 93 S.Ct. at 771-72 . Behind the Court’s reasoning in this line of cases is the fact that the individual subject to the seizure retained no control over those characteristics exposed to the public and, therefore, retained no privacy interest in them. It is this precise reasoning that, in my view, should be applied to the case before us.

In this case, the appropriate analysis begins with determining whether the seizure of urine interferes with the affected officer’s possessory interest in that urine. Quite naturally, in determining whether such an interference has occurred, we must consider both the existence and reasonableness of the officer’s expectation of privacy. In Smith v. Maryland, 442 U.S. 735 , 99 S.Ct. 2577 , 61 L.Ed.2d 220 (1979), the Court established a two-part test, albeit in the context of a “search,” to determine whether a reasonable expectation of privacy exists.

The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” — whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.” The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize *1011 as ‘reasonable,’ ” — whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances.

Id. at 740-41 , 99 S.Ct. at 2580-81 (citations omitted). Applying the above test to the case before us, we must first consider whether a police officer holds a subjective expectation of privacy in his body waste. It is obvious that body waste is forever discarded upon release from the body. An individual cannot retain a privacy interest in a waste product that, once released, is flushed down the drain. Under Special Order 83-21, the suspected officer, in a purely employment context, is required to deposit his urine in a receptacle other than the drain. Once the officer urinates he cannot logically retain any possessory or privacy interest in it. In fact, in the interest of public health and safety, it is difficult to conceive of any possessory interest the officer should be allowed to retain in his urine. It would strain logic to conclude other than that a police officer cannot hold a subjective expectation of privacy in body waste that must pass from his system.

Special Order 83-21 is concerned with urinalysis testing, i.e., the testing of a urine sample. The special order requires “any member of the force suspected of ... drug use ... to submit to urinalysis testing”: to be surtí) it is the officer’s urine sample that must be submitted for testing and not the officer himself. The same is true of voice and handwriting exemplars. Thus, we have no seizure of the suspected police officer. The employment context in which the sample is given eliminates any issue of seizure of the officer’s person. In the handwriting and voice sample cases it was necessary for the suspect to go to the place commanded in the subpoena to perform the required act.

In order for our analysis to be complete, however, we must consider whether an officer holds a subjective expectation of privacy in the act of discharging body waste. Admittedly, the act of urination is a private one and, if interfered with, protected by the Fourth Amendment. It is important to note that the special order, on its face, does not interfere with the manner of discharge; the suspected officer is only required to submit to urinalysis testing, i.e., to submit a urine sample for analysis. If we assume, however, that the special order does, in some slight way, interfere with an officer’s subjective expectation of privacy in the act of urination, we must then consider whether this expectation is one that society is prepared to recognize as “reasonable” under the circumstances of Special Order 83-21. See Smith v. Maryland, supra, 442 U.S. at 740 , 99 S.Ct. at 2580 .

Any interference with an officer’s expectation of privacy in the manner of discharge of body waste would be minimal. The required act is no different than the consensual act of providing a personal physician with urine samples as part of a routine physical examination. Special Order 83-21 creates no greater invasion of privacy for the officer suspected of drug use; the officer would be expected to produce a urine sample in a receptacle that has been provided for that purpose. Because the EMIT Cannabinoid Assay test can detect the presence of narcotics for a period of seven days or more after use, the suspected officer will never be required to produce an on-the-spot sample out of fear that any drug tracings will dissipate. This extended time period for drug detection also allows the Police and Fire Clinic greater flexibility in requesting a urine sample from a suspected officer and, thereby, eliminates unnecessary interference with the officer’s job or personal life. Any interference with an officer’s subjective expectation of privacy that results from Special Order 83-21 would certainly be offset by the significant benefit to the public in having a drug free police force. I, thus, find no reasonable expectation of privacy entailed in the application of Special Order 83-21.

. Division 241 Amalgamated Transit Union v. Suscy, 538 F.2d 1264 (7th Cir.1976) (rules requiring bus drivers to submit to urine test following involvement in serious accident held constitutional); Murray v. Haldeman, 16 M.J. 74 (C.M.A.1983) (compulsory urinalysis for service members held constitutional); see also Allen v. City of Marietta, 601 F.Supp. 482 (N.D.Ga.1985) (urinalysis of government employees suspected of drug use conducted in purely employment context held reasonable within Fourth Amendment).

. United States v. Jacobsen, 466 U.S. 109 , 104 S.Ct. 1652 , 1656 n. 5, 80 L.Ed.2d 85 (1984).