Petition for Writ of Certiorari — Policemen's Benevolent Ass'n, Local 318 v. Township of Washington

BE-7qg6gU _

No. 88-

IN THE

Supreme Court of the United

OCTOBER TERM, 1988

>

POLICEMEN’S BENEVOLENT ASSOCIATION OF NEW JERSEY,

LOCAL 318, and EDMUND GIORDANO, individually and as

President of Local 318,

—_—Vv.—

Petitioners,

TOWNSHIP OF WASHINGTON, and

JOHN ROBERTSON, Mayor,

. Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

JAMES KATZ

(Counsel of Record)

Tomar, Seliger, Simonoff,

Adourian & O’Brien

41 South Haddon Avenue

Haddonfield, New Jersey 08033

(609) 429-1100

ERIC NEISSER

American Civil Liberties

Union of New Jersey

2 Washington Place

Newark, New Jersey 07102

(201) 642-2086

STEVEN R. SHAPIRO

JOHN A. POWELL

Of Counsel: American Civil Liberties

Ralph Colflesh Union Foundation

10 West Main Street : 32 ec. a.

Moorestown, NJ 08057 ew York, New Yor

(609) 235-5734 (212) 944-9800

QUESTIONS PRESENTED

Whether the Third Circuit erred in

holding that a police department

constitutes a pervasively regulated

industry, such that police officers

may be subject to random drug tests

without a warrant, individualized

Suspicion or probable cause.

Whether the Third Circuit erred in

holding that the pervasively regulated

industry exception to the warrant and

probable cause requirements of the

Fourth Amendment applies to searches

of people, as opposed to searches of

property or inventory of the regulated

industry, such that police officers

are subject to warrantless drug tests

without cause.

Whether the Third Circuit's reliance

upon the pervasively regulated indus-

try exception to the warrant and

probable cause requirement of the

Fourth Amendment as justification for

warrantless searches of public employ-

ees without probable cause or individ-

ualized suspicion contravenes this

Court's ruling in O'Connor v. Ortega

and conflicts with decisions from

other courts of appeals.

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

RELEVANT CONSTITUTIONAL PROVISION

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION

I. THE THIRD CIRCUIT ERRED IN HOLD-

ING THAT A POLICE DEPARTMENT

CONSTITUTES A PERVASIVELY REGU-

LATED INDUSTRY, SUCH THAT POLICE

OFFICERS MAY BE SUBJECT TO

WARRANTLESS SEARCHES WITHOUT

PROBABLE CAUSE OR INDIVIDUALIZED

SUSPICION .

II. THE THIRD CIRCUIT ERRED IN

HOLDING THAT THE PERVASIVELY

REGULATED INDUSTRY EXCEPTION TO

THE WARRANT AND PROBABLE CAUSE

REQUIREMENT OF THE FOURTH

AMENDMENT APPLIES TO SEARCHES OF

PEOPLE, AS OPPOSED TO SEARCHES OF

PROPERTY OR INVENTORY OF THE

REGULATED BUSINESS, SUCH THAT

POLICE OFFICERS ARE SUBJECT TO

WARRANTLESS SEARCHES WITHOUT

PROBABLE CAUSE OR INDIVIDUALIZED

- SUSPICION .. .

17

17

37

III. THE THIRD CIRCUIT'S RELIANCE UPON

THE PERVASIVELY REGULATED IN-

DUSTRY EXCEPTION TO THE WARRANT

AND PROBABLE CAUSE REQUIREMENT

OF THE FOURTH AMENDMENT AS

JUSTIFICATION FOR WARRANTLESS

SEARCHES OF PUBLIC EMPLOYEES

WITHOUT PROBABLE CAUSE OR

INDIVIDUALIZED SUSPICION, CONTRA-

VENES THIS COURT'S RULING IN

O'CONNOR v. ORTEGA, AND CONFLICTS

WITH DECISIONS FROM OTHER COURTS

OF APPEALS . «© se ws wm ew we © a4

eee et: a ee ee ee a a ee ae ae 51

Bee eee 6 6 0 6 68 ee Se we te 8 ee la

Mayor's Drug Plan

pO ee ee la

Opinion of the

DiGereee GOEG bie ee te eh Rh 3a

Opinion of the Court of Appeals

foe tae Teese Ciseeist ~ « 2 « « » 80a

Court of Appeals Order

Denying Petition for Rehearing

and Rehearing en banc ..... . 126a

Court of Appeals Judgment

Issued in Lieu of

oo a eee

ii

TABLE OF AUTHORITIES

Cases

Almeida-Sanchez v. United States,

413 U.S. 266 (1973) Ss » « eee BG, amy OC

American Federation of Govern-

ment Employees v. Weinberger,

651 F.Supp. 726 (S.D.Ga. 1986) .. . 42, 48

Anable v. Ford,

653 F.Supp. 22 (W.D.Ark. 1983) .... . 33

Arkansas v. Sanders,

442 0.8: Foe C4900) « «see 2 ee eR

Balelo v. Baldridge,

724 F.2d 753 (9th Cir.),

cert. denied,

467 0.3 meee eS gk kw wwe ee eee

Brown v. Texas,

443 U.G. 48 (434979) . « s © @ « © «6 « 2 OS

Camara v. Municipal Court,

387 U.S. 523 (1967) » « BB, £25. 28, Shy Se

Capua v. City of Plainfield,

643 F.Supp. 1507

(D.N.J. 1986) owes we eo ae ee eee

Caruso v. Ward,

506 N.Y.S.2ad 789 (N.Y.

Sup.Ct. 1986), aff'd,

520 N.Y.S.2d 551

(N.Y.App.Div. 1987) oe ee ee a

iii

Chimel v. California,

395 U.S. 752 (1969) eu al ee

olonna i orp. V.

United States,

oe = Oe gl re

Delaware v. Prouse,

440 U.S. 648 (1970) > 6€© @ © @ &

Division 241 Amalgamated

Transit Union v. Suscy,

538 F.2d 1264 (7th Cir.),

cert. denied,

429 U.S. 1029 (1976) ......

Donovan v. Dewey,

452 U.S. 594 (1981) os -e0e”- ee

Dunaway v. New York,

S62 Gies: See tee « 6 -* 2c

Everett v. Napper,

833 F.2d 1507 (11th Cir. 1987)

Feliciano-v. City of Cleveland,

661 F.Supp. 578 (N.D. Ohio 1987)

Fraternal Order of Police

v. Newark,

524 A.2d 430

(Wid. BAG. 1987) 2 8 tt ss

Guiney v. Roache,

686 F.Supp. 956

(p. Meee. 2008) 2. «ss et

iv

27,

Page

e « 42

passim

« « 20

- « 42

. . 42

28, 48

42, 48

Henry v. United States,

3613 U.8. 9B (AdSS) -« « «© «© © © «© «© «© SD, BU

Jones v. n P

833 F.2d 335 (D.C.Cir. 1987),

petition for cert. filed,

56 U.S.L.W. 3739

ee NS eee a a ae |

Katz v. United States,

Se es og gf ng 6 a 8 a eee

Marshall v. Barlow's, Inc.,

Q36.0.8. 30? (2070) « wc wo wo st wo se +

McDonell v. Hunter,

809 F.2d 1302 (8th Cir. 1987) .o « « «@ = Se

Michigan v. Tyler,

436 U.S. 499 (1978 ae oe ee ee er ee

National Federation of Federal

Employees v. Weinberger,

818 F.2d 935 (D.C. Cir. 1987) ae eon

National Treasury Employees'

Union v. von Raab,

816 F.2d 170 (5th Cir. 1987),

cert. granted,

108 S.Ct. 1072 (1988) '-6 40, 41, 42,

49, 36, 3a

New Jersey v. T.L.O.,

469 U.S. 325 (1985) S- «.0):6 Bee. ees Bes 2

New York v. Burger,

167 @.Ce. 3636 (29607) .«. « wp eee ss

NFFE v. Carlucci, a

680 F.Supp. 416 (D.D.Cc. 1988) .... . 33

O'Connor v. Ortega,

S07 @. Ge. B69n (2967) . . « 0 o oe OOS

Penny v. Kennedy,

Sa6 Fuae aees £OGm Cir. 1986) ..++-

Railway Labor Executives'

Ass'n v. Burnley,

839 F.2d 575 (9th Cir. 1988),

cert. granted,

108 S.Ct. 2033 (1988) oe 6 ae eee Se

49, 50, 51

Rushton -v. Nebraska Public

Power District,

S66 V.g0 S62 (60h Cir. 1986)... .«-s- 48

Schmerber v. California,

384 U.S. 757 (1966) a se alee ee 6 ae

Shoemaker v. Handel,

795 F.2d 1136 (3d Cir.),

cert. denied,

Te Se eS | ne

Taylor v. O'Grady,

669 F.Supp. 1422 (N.D.Ill. 1987) . . 33, 42

Terry v. Ohio,

CCU Rg sk es ew ee ee

United States v. Biswell,

cc, See eeeeey 3 ly ls ke 22, 32; 38

vi

ve Page

United States v. Chadwick,

433 U.8. 1 (3977) Sd a ae ee ee ee ee ee

United States v. Jacobsen,

oo a ES es |

United States v. Ortiz,

422 U.S. 891 (1975) c« * 6 6. = es 2 ce ae

Winston v. Lee,

470 U.S. 753 (1985) Soe te oe ee eee ee

Statutes and Regulations

26 GU.iB.6. Ghaeett) 2s 2 ws ew te eee he ee

Other Authorities

Civil Service Staff Report,

Drug Testing in the Federal

Government (1986) Witat he es os «we oe eae

Dubowski, "Drug-Use Testing:

Scientific Perspectives,"

te Be eel we 5 ere

NIDA, Employee Drug Screening:

Detection of Drug Use By Urinalysis .. 33

Report of the Maine Commission

to Examine Chemical Testing -

of Employees (Dec. 31, 1986) ..... . 33

Sonnenstuhl, et al.,

Employee Assistance and Drug Testing,

11 NOVA L.Rev. 709 (1987) ss kee ee ee

vil

—Vope

mee

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

OPINIONS BELOW

The opinion of the United States

District Court for the District of New

Jersey (3a-89a), is reported at 672 F.Supp.

779 (D.N.J. 1987).

The opinion of the United States Court

of Appeals for the Third Circuit (90a-125a)

reversing the judgment of the district

court is reported at 850 F.2d 133 (3d Cir.

1988). The order of the Court of Appeals

denying the petition for rehearing and

rehearing en banc (126a-127a) is un-

reported.

JURISDICTION

The judgment of the Court of Appeals

was entered on June 21, 1988. Petitioners

filed a timely request for rehearing and

rehearing en banc. On July 28, 1988, the

Court of Appeals dénied petitioners'

request for rehearing and rehearing e

banc (126a - 127a). This petition is

being filed within 90 days of July 28,

1988. This Court has jurisdiction to

review the judgment of the Court of Appeals

pursuant to 28 U.S.C. §1254(1).

RELEVANT CONSTITUTIONAL PROVISION

The Fourth Amendment to the United

States Constitution provides:

The right of the people to be

secure in their persons, houses,

papers and effects, against

unreasonable searches and

seizures, shall not be

violated, and no Warrants shall

issue, but upon probable cause,

supported by Oath or

affirmation, and particularly

describing the place to be

searched, and the persons or

things to be seized.

STATEMENT OF THE CASE

This case arose out of a suit filed by

Local 318 of the Policemen's Benevolent

Association of New Jersey, the exclusive

bargaining representative for all police

officers (excluding certain superior

officers) employed in Washington Township,

New Jersey, and Edmund Giordano, a police

officer and President of Local 318, against

the Township of Washington, its Mayor John

Robertson, and individual members of the

Township's Council (5a-6a). The Union and

Giordano sought an injunction on behalf of

all current Township police officers

against implementation of the Township's

newly created "Employee Drug Testing

Policy," which they asserted violated the

rights of covered employees under the

Fourth Amendment and Article I, Paragraphs

1, 2 and 7 of the New Jersey Constitution

'

(6a; 94a). Petitioners prevailed in the

district court, which ruled that random

drug testing in the absence of indivi-

dualized, reasonable suspicion violated the

Fourth Amendment and enjoined implementa-

tion of the Township's drug testing program

(3a-89a).

On appeal, the Third Circuit reversed.

Relying upon its prior decision in Shoe-

maker v. Handel, 795 F.2d 1136 (3d Cir.),

cert. denied, 107 S.Ct. 577 (1986), the

Third Circuit held that the pervasively

regulated industry exception to the Fourth

Amendment justified random and warrantless

drug testing of Township police officers

without probable cause or individualized

suspicion (90a-125a). Accordingly, the

Third Circuit vacated the district court's

injunction and remanded the matter for

wee

further proceedings consistent with its

opinion (125a) .4/

Washington Township is a small subur-

ban community located in Gloucester County,

New Jersey. On August 4, 1986, President

Reagan called on every level of government

to take steps to provide a drug-free work

place. On August 5, 1986, Township Mayor

Robertson sent a memorandum to all depart-

ment heads and all municipal employees

announcing that the Township would begin a

mandatory drug testing program. (la; 5a;

1/ The Third Circuit noted that because "(t]he

district court did not address the plaintiffs'

contention that the plan also violated Article I,

paragraphs 1, 2 and 7 of the New Jersey

Constitution," it was remanding the matter without

expressing any view "on the question whether the

New Jersey Constitutional provisions on which the

plaintiffs rely would afford greater protection

from random or universal mandatory urinalysis of

police officers than does the Fourth Amendment"

(124a). At the same time, the Third Circuit cited

a New Jersey Appellate Division decision involving

police officers which so holds (Id. at n.7).

93a). The Mayor's announcement contained

no guidelines or details regarding the

testing program he proposed (la-2a; 5a;

93a).

On September 12, 1986, Local 318 and

its President filed suit in the United

States District Court for the District of

New Jersey, on behalf of Washington Town-

ship police officers.2/ Petitioners sought

a temporary restraining order as well as a

preliminary and permanent injunction

against the random drug cankins at Township

police officers (5a-6a).

In response to petitioners' request,

the district court granted a temporary

restraining order and directed the Township

2/ Although Local 318's Complaint was filed only

on behalf of the Township's police officers (5a-6a;

94a-95a), it is undisputed that the Township's drug

testing program applies to all municipal employees

(la), regardless of job duty or position.

and its officers to appear and show cause

why a preliminary injunction should not be

granted. On September 19, 1986, the return

date on the court's order, the Township

indicated that no testing of police offi-

cers or other municipal employees had

taken place and none would take place until

drug testing guidelines were formulated and

the court had an opportunity to review

those guidelines. Based upon those repre-

sentations, petitioners' application for a

preliminary injunction was denied and the

temporary restraining order was dissolved

on October 8, 1986 (7a-8a).

Subsequently, the Township filed its

Answer and the parties commenced a period

of pretrial discovery (7a). On February

25, 1987, the Township submitted its

"Revised Drug Testing Program of the Town-

ship of Washington," which is the plan at

issue in these proceedings (la-2a; 7a).

Stipulating that there were no genuine

issues of material fact in dispute, the

parties filed cross motions for summary

judgment on the issue of whether certain

aspects of the Township's proposed drug

testing plan were violative of the Fourth

Amendment to the United States Constitution

and should be permanently enjoined.

Specifically, petitioners stipulated that

they were only challenging those aspects of

the Township's drug testing plan which

required random or mass testing of police

officers, and those aspects of the plan

which required testing as part of any

pretextual physical examination (i.e., any

physical examination which is not a bona

fide medical examination given in the

ordinary course of business) (8a-9a) .3/

The Township's drug testing program

extends to all municipal employees, regard-

less of job title or responsibility, (la;

9a), and provides for random drug testing

without probable cause or individualized

suspicion of either illegal drug use or job

impairment as a result of drug use (10a) .4/

Under the plan, an employee randomly

3/ Petitioners stipulated that they were not

challenging those aspects of the Township's drug

testing plan which provided for testing of

municipal employees based upon reasonable suspicion

or testing of all applicants for municipal

employment (84a; 96a-97a). Petitioners also

dismissed members of the Township Council as defen-

dants (9a).

4/ The plan also provides for the institution of

mandatory annual physical examinations for all

employees, which shall include a urinalysis drug

test (lla). In addition, all applicants for

employment with the Township are required to submit

a urine sample for testing and failure to do so or

a positive test "will result in the rejection of

the employment application." (lla).

selected for testing is required to urinate

under government supervision and provide

the urine specimen for chemical analysis

(12a-15a). This testing will not be

carried out at the work site; rather, the

employee will be transported to an undeter-

mined and undisclosed location. Employees

will not be notified of the test until

immediately prior to being transported to

the testing site. The Township will also

determine immediately prior to the test

which drugs to test for. There is no limit

or restriction regarding the nature of the

test to be conducted (12a; 14a).

The urination will take place under

the general supervision of a medical

laboratory technician who will have the

sole discretion to determine whether direct

observation is warranted (13a). The tested

employee "must submit a required minimum

10

eerie

amount of urine in an approved container."

(Id.). Prior to being tested, each employ-

ee is required to fill out a medical ques-

tionnaire listing all drugs, both prescrip-

tion and nonprescription, ingested during

the past 30 days. (12a-13a). Any employee

testing positive is subject to discipline

and immediate discharge (15a-16a; 56a).

Although the Township indicated that

its testing program was not developed for

purposes of criminal prosecution (15a),

there is nothing in the plan which would

prevent any of the testing results from

either being turned over to the appropriate

authorities for criminal prosecution or

being subject to a valid subpoena. Fur-

ther, there are no specific provisions in

the Township's plan regarding the manner

and method for protection of the confiden-

11

tiality of either the testing results or

the required medical questionnaire.

It is undisputed that the Township's

drug testing program was not implemented

in response to a real or perceived drug

problem in either the Township's police

force or municipal workforce as a whole,

or in any segment thereof. Indeed, the

Township offered no evidence that a single

member of either the Township's police

force or the rest of its municipal work-

force has ever been involved in illegal

¥

drug use. (23a-24a; 62a-63a; 82a). The

Township alleged only that drug abuse "is a

statistically widespread problem in the

United States", (62a), and that its testing

program was implemented as part of a gener-

al effort to reduce illegal drug use (la-

2a). Further, the Township offered no

evidence that it had considered other

12

alternatives that might achieve its stated

objectives but be far less invasive of

personal privacy.2/

Similarly, while the plan requires

every current employee to submit to an

annual urinalysis drug test as part of a

newly instituted annual physical examina-

tion, it is undisputed that the reason for

these medical examinations is to conduct an

annual test for drugs. The Township's

police officers have not previously been

subject to any regular medical examinations

or fitness for duty tests (81a-82a).

The Township's durg testing plan was

struck down in its entirety by the district

court. In a comprehensive opinion, the

district court held that random drug

3/ Indeed, the Township offered no evidence before

the district court other than its drug testing

plan.

13

testing of the Township's police officers

is unconstitutional in the absence of

individualized, reasonable suspicion based

on objective facts and reasonable infer-

ences drawn from those facts (3a-89a).

The district court's holding was

based on severa. preliminary findings and

conclusions. First, the district court

ruled (consistent with every court to

consider the issue) that urine testing is a

"search" within the meaning of the Fourth

Amendment (25a-26a). Second, the district

court rejected the Township's contention

that its random drug testing program is

justified by the highly regulated industry

exception to the Fourth Amendment (34a-

41a). Third, the district court foun’ that

the annual physical examination contem-

plated by the plan is merely a pretext for

random drug testing and "not a kona fide

14

medical fitness plan" (81a). Fourth, the

district court concluded that the "Township

has failed to demonstrate that it needs to

undertake such ‘carte blanche' random

searches of its police officers," (6la-

62a), and that testing based upon individu-

alized, reasonable suspicion, will ade-

quately serve the Township's interests

(59a-61la). Finally, the district court

noted that the Township's testing program

"will subject the majority of innocent

police officers to a highly intrusive

search." (54a).

The Third Circuit reversed (90a-125a),

based on its decision in Shoemaker v.

Handel, 795 F.2d 1136 (3d Cir.), cert.

denied, 107 S.Ct. 577 (1986), which held

"that in a highly regulated industry such

as horse racing, the administrative search

15

exception to the Fourth Amendment warrant

requirement applie[{s]}." (99a).

The court's opinion detailed at length

the statutory (106a-107a) and regulatory

provisions (111la-121la) governing the

general performance of New Jersey police

officers. After reviewing these statutes

and regulations, the panel observed "that

the police industry is probably the most

highly regulated, with respect to perform-

ance of its employees, of any industry in

New Jersey." (121a). Solely on that

basis, the Third Circuit upheld the Town-

ship's plan to subject its police officers

to warrantless searches without probable

cause or individualized suspicion.

16

REASONS FOR GRANTING THE PETITION

ke THE THIRD CIRCUIT ERRED IN HOLDING

THAT A POLICE DEPARTMENT CONSTITUTES A

PERVASIVELY REGULATED INDUSTRY, SUCH

THAT POLICE OFFICERS MAY BE SUBJECT TO

WARRANTLESS SEARCHES WITHOUT PROBABLE

CAUSE OR INDIVIDUALIZED SUSPICION

The Fourth Amendment to the United

States Constitution provides: "(t]he right

of the people to be secure in their per-

sons, houses, papers and effects, against

unreasonable searches and seizures, shall

not be violated, and no Warrants shall

issue, but upon probable cause..."

"The overriding function of the Fourth

Amendment is to protect personal privacy

and dignity against unwarranted intrusion

by the State." Schmerber v. California,

384 U.S. 757, 767 (1966). It "protects

people, not places." Katz v. United

States, 389 U.S. 347, 351 (1967). More-

over, the values of individual privacy and

17

dignity are "'basic to a free society,'"

Winston v. Lee, 470 U.S. 753, 760 (1985)

(citations omitted).

In order to safeguard these interests,

"one governing principle, justified by

history and by current experience, has been

followed: except in certain carefully

defined classes of cases," Camara v.

Municipal Court, 387 U.S. 523, 528 (1967),

a search under the Fourth Amendment is

unreasonable unless authorized by a warrant

based upon probable cause. New Jersey v.

T.L.0O., 469 U.S. 325, 340 (1985) .&/

Probable cause is presumptively

required under the Fourth Amendment because

it provides vital protection for the

6/ Under the Fourth Amendment, a search occurs,

giving rise to the Fourth Amendment's protections,

when the government interferes "with an expectation

of privacy that society is prepared to consider

reasonable." United States v. Jacobsen, 466 U.S.

109, 113 (1984).

18

individual against arbitrary and unneces-

sary invasions of personal privacy by the

government. 2/ Even "a search .. . permis-

Sibly .. . carried out without a warrant

. [ordinarily] must be based upon

‘probable cause' to believe that a viola-

tion of the law has occurred." New Jersey

v. T.L.0., 469 U.S. at 340.

'The requirement of probable

cause has roots that are deep in

our history.' Henry v. United

States, 361 U.S. 98, 100 (1959).

Hostility to [searches and]

seizures based on mere suspicion

was a prime motivation for the

adoption of the Fourth Amend-

ment, and decisions immediately

after its adoption affirmed that

‘common rumor or report, suspi-

cion, or even ‘strong reason to

suspect' was not adequate to

L/ The warrant is also presumptively required to

ensure that the vital balance between individual

privacy and governmental interest is struck in

advance of the search by a neutral and detached

magistrate. Marshall v. Barlow's, Inc., 436 U.S.

307, 322-323 (1978); United States v. Chadwick, 433

v.28. 1, 3 0977).

19

Support a warrant for arrest.'

Id., at 101 (footnotes omitted).

Dunaway v. New York, 442 U.S. 200, 213

(1979). See Almeida-Sanchez v. United

States, 413 U.S. 266, 270 (1973).

Furthermore, the Fourth Amendment

clearly applies to protect the person and

property of public employees. Government

workers do not forfeit these protections

"merely because they work for the govern-

ment instead of a private employer."

O'Connor v. Ortega, 107 S. Ct. 1492, 1498

(1987). Rather, "[{s]Jearches and seizures

by government employers or supervisors

of their employees . . . are subject

to the restraints of the Fourth Amendment."

107 S.ct. at 1497.8/

8/ The strictures of the Fourth Amendment apply

whether the government acts in a civil or criminal

law enforcement capacity. O'Connor v. Ortega, 107

S. Ct. at 1497; New Jersey v. T.L.O., 469 U.S. at

335; Marshall v. Barlow's, Inc., 436 U.S. at 312-

(continued...)

20

Over the years, this Court has found

it necessary to carve out a number of

exceptions to traditional Fourth Amendment

requirements in "'exceptional circumstances

. « [where] special needs, beyond the

normal need for law enforcement, make the

warrant and probable cause requirement

impracticable.'" O'Connor v. Ortega, 107

S.Ct. at 1500 (citation omitted). However,

the burden is always upon the government to

justify such exceptions, and they must be

"'jJealously and carefully drawn.'" Arkan-

sas v. Sanders, 442 U.S. 753, 759-760

(1979); Chimel v. California, 395 U.S. 752,

762 (1969). This is so because, as this

8/ (...continued)

313; Michigan v. Tyler, 436 U.S. 499, 506 (1978)

("there is no diminution in a person's reasonable

expectation of privacy nor in the protection of the

Fourth Amendment simply because the official

conducting the search" is acting for civil

purposes rather than searching for evidence of a

crime); Camara v. Municipal Court, 387 U.S. 530.

21

Court has recognized, “even a limited

search of the person is a substantial

invasion of privacy." New Jersey v.

T.L.O., 469 U.S. at 337; Terry v. Ohio, 392

U.S. 1, 24-25 (1968).

These fundamental constitutional

principles cannot be reconciled with the

Third Circuit's ruling that, because police

work "is probably the most highly regulated

- . . Of any industry in New Jersey..."

(12la), the pervasively regulated industry

exception._to the Fourth Amendment author-

izes random urine drug testing of all

police officers without probable cause or

reasonable suspicion, and without prior

issuance of a warrant.

In holding police officers immune from

Fourth Amendment guarantees because of the

pervasively regulated nature of government

employment, the lower court has effectively

22

vitiated Fourth Amendment protection for

public employees. Under the lower court's

rationale, virtually all public employees

will be subject to warrantless searches and

seizures without probable cause or reason-

able suspicion due simply to the fact of

governmental employment. Such an approach

is supported by neither precedent nor

policy, and conflicts both with decisions

of this Court and rulings from other courts

of appeals to consider the issue.

In predicating its decision upon the

pervasively regulated industry exception to

the Fourth Amendment, the lower court

purported to rely upon precedent from this

Court in which warrantless searches have

been justified for "pervasively regulated

business[es]," United States v. Biswell,

406 U.S. 311, 316 (1972) (firearms), and

for "closely regulated" industries "long

r

subject to close supervision and inspec-

tion." Colonnade Catering Corp. v. United

States, 397 U.S. 72, 74 (1970) (liquor) ;

see also, Donovan v. Dewey, 452 U.S. 594

(1981) (mines); New York v. Burger, 107

S.Ct. 2636 (1987) (automobile junkyards).

However, as this Court has admonished,

"(tjhese cases are exceptions . .. repre-

sent[ing] responses to relatively unique

circumstances." sha Vv. ow's

ing,, 436 U.S. at 313.

The pervasively regulated industry

exception is predicated upon the rationale

that "(cjertain industries have such a

history of government oversight that no

reasonable expectation of privacy, ...

could exist for a proprietor over the

stock of such an enterprise" and that "when

an entrepreneur embarks upon such a busi-

ness, he has voluntarily chosen to subject

24

himself to a full arsenal of governmental

regulation." Marshall v. Barlow's, Inc.,

436 U.S. at 313. “Because the owner or

operator of commercial premises in a

‘closely regulated' industry has a reduced

expectation of privacy, the warrant and

probable-cause requirements, which fulfill

the traditional Fourth Amendment standard

of reasonableness for a government search

. have lessened application in this

context." ew Y v. Bu , 107 S.Ct.

2643 (citation omitted).

Here by contrast, it cannot be said

that police officers are members of a

highly regulated business or industry.

Indeed, simply to use the term "police

industry," as suggested by the lower court,

underscores the inadequacy of the analysis.

Police officers are not engaged in a "com-

mercial enterprise," Donovan v. Dewey, 452

25

U.S. at 599, nor have they been subject to

a "comprehensive and defined" regulatory

scheme in which drug testing is a "neces-

sary component." 452 U.S. at 600.

Moreover, the only regulations imposed

upon Washington Township police officers

and the only regulations relied upon by the

lower court, (106a-121la), are general state

regulations applicable to virtually all

governmental employees and local regula-

tions which apply to police officers qua

employees. Such regulations are not part

of an industry with a long tradition of

pervasive regulations, but stem directly

Cis the officers' status as employees of

Washington Township. The mere fact of

government supervision of its employees and

regulations relating thereto, cannot be

equated with a pervasively regulated

industry, automatically justifying warrant-

26

- less searches without probable cause or

individualized suspicion.2/ Indeed, just

the opposite is true. When government

itself is the employer, there is simply no

justification for expanding a Fourth

Amendment exception premised on the need to

permit close supervision of certain criti-

cal industries owned and controlled by the

private sector.

Were a police officer subject to

unfettered governmental intrusion merely by

reporting to work, the protections guaran-

teed by the Fourth Amendment would be

seriously circumscribed. O'Connor v.

Ortega, supra. Precedent from this Court

has never supported such a sweeping propo-

2/ Cf. Delaware v. Prouse, 440 U.S. 648, 662

(1970) ("An individual operating or traveling in an

automobile does not lose all reasonable expectation

of privacy simply because the automobile and its

use are subject to government regulation").

27

ener

sition and every other court which has

considered such a claim has explicitly

stated that police officers and fire =

fighters do not work in a highly regulated

industry. See e.g., O'Connor v. Ortega;

Penny v. Kennedy, 846 F.2d 1563 (6th Cir.

1988); Guiney v. Roache, 686 F.Supp. 956,

963 (D. Mass. 1988); Capua v. City of :

Plainfield, 643 F.Supp. 1507, 1518-1519 (D.

N.J. 1986); Fraternal Order of Police v.

Newark, 524 A.2d 430, 434-35 (N.J.App.Div.

1987); Caruso v. Ward, 506 N.Y.S.2d 789,

798 (N.Y¥.Sup.Ct. 1966), afi'a, S20 N.Y¥.$.2¢4

551 (N.Y.App.Div. 1987).

Moreover, the courts have never held

that pervasive regulation and licensing by

one governmental agency opens the door to

warrantless searches by other entities.

Thus, in holding that the police industry

is highly regulated, the lower court based

28

its determination upon the fact that "the

government and discipline of [Washington

Township's] police force is subject to

‘general law' which includes an extensive

body of state statutory law." (106a).

Such general statutory provisions not only

apply to virtually all governmental employ-

ees, but the fact that the Washington

Township police may be subject to regula-

tion by various statutes and regulatory

boards such as the Civil Service Commis-

sion, New Jersey Department of Labor, or

the Equal Employment Opportunity Commis-

sion, does not permit the Township to ride

on the coattails of other regulatory

agencies to establish "a long tradition" of

pervasive regulation, Marshall v. Barlow's,

Inc., 436 U.S. at. 313, in support of ites

intrusion into workers' privacy.

29

Furthermore, warrantless, without

ay =

cause searches, “even in the context of a

pervasively regulated business, will be

deemed to be reasonable only so long as

three criteria are met." New York v.

Burger, 107 S.Ct. at 2643-2644. As this

Court recently reiterated in Burger:

(fjirst, there must be a 'sub-

stantial' government interest

that informs the regulatory

scheme pursuant to which the

inspection is made .. . Second,

the warrantless inspection must

be ‘necessary to further Sead

regulatory scheme... .

Finally, 'the statute's inspec-

tion program in terms of the

certainty and regularity of its

application, [must] provid[e] a

constitutionally adequate

substitute for a warrant.'

107 S.Ct. at 2644.

The lower court's opinion simply

ignores this test, beginning and ending

with the observation that "the police

industry is probably the most highly

regulated .. . of any industry in New

30

}

Jersey." (121la). Had the Third Circuit

followed this Court's analysis in Burger,

the unconstitutionality of the Township's

warrantless and without cause search of its

employees would have been clear.

First, there is simply nothing in the

factual record of this case demonstrating

a substantial governmental interest in the

Township's drug testing plan (other than

the interest which any employer has regard-

ing its employees). The plan was proposed

without a scintilla of evidence that drug

abuse is a problem among the Township's

police force, or that a single member of

the police force, other municipal employee,

or even resident of the Township, has ever

been involved in illegal drug use.

Second, the Township has offered no

evidence, and the lower court points to

none, which demonstrates that warrantless

31

and without cause searches are "necessary

to further [the] regulatory scheme." Dewey

v. Donovan, 452 U.S. at 600. This omission

is fatal. In the prior cases cited by the

Third Circuit, this Court has authorized

warrantless searches without individualized

suspicion only when it is "doubtful that

any other canvassing technique would

achieve acceptable results." Camara v.

Municipal Court, 387 U.S. at 537; United

States v. Biswell, 406 U.S. at 316. In

this case, there is not a shred of record

evidence that the Township even considered

other ways of achieving its stated goal

without intruding so deeply into the

personal privacy of its employees.+9/

10/ Numerous courts and commentators have

recognized that urine tests do not measure

intoxication, impairment or on-the-job drug use.

Courts and commentators have also recognized that

there are readily available alternatives to

determine impaired job performance. See e.g., |

(continued...)

32

Finally, the Township's random drug

testing program does not provide a "con-

stitutionally adequate substitute for a

warrant." Donovan v. wey, 452 U.S. at

603. Rather, the Township's testing pro-

gram is completely random, leaving the

10/ (...continued)

Report of the Maine Commission to Examine Chemical

Testing of Employees, 20 (Dec. 31, 1986) (citations

omitted); United States House of Representatives,

Subcommittee on ‘ivil Service of the Committee on

the Post Office and Civil Service, Civil Service

Staff Report, Drug Testing in the Federal

Govermment at 12 (1986); Dubowski, "Drug-Use

Testing: Scientific Perspectives," 11 NOVA L.

Rev. 415, 526-528 (1987); Sonnenstuhl, et al.,

Employee Assistance and Drug Testing, 11 NOVA L.

Rev. 709, 721 (1987); Railway Labor Executives'

Ass'n v. Burnley, 839 F.2d 575, 588-89 (9th Cir.

1988) (and citations therein), cert. granted, 108

S.Ct. 2033 (1988); Guiney v. Roache, 686 F.Supp. at

962; NFFE v. Carlucci, 680 F.Supp. 416, 428-430

(D.D.C. 1988) (and citations therein); Taylor v.

O'Grady, 669 F.Supp. 1422, 1431-1433 (N.D.Ill.

1987); Anable v. Ford, 653 F.Supp. 22, 39 (W.D.

Ark. 1983). As the National Institute of Drug

Abuse has acknowledged, a positive drug test result

"cannot be used to prove intoxication or impaired

performance" at the time of the test. NIDA,

Employee Drug Screening: Detection of Drug Use By

Urinalysis.

33

scope and frequency of such tests and the

identity of the victimized employees to

"the discretion of the inspecting offi-

cers." New York v. Burger, 107 S.Ct. at

2644. In addition, the program leaves

complete discretion to the laboratory

technician to require direct observation of

each tested employee. Such a random pro-

gram undermines the very values which the

Fourth Amendment was adopted to protect.

"The basic purposes of this Amendment,

as recognized in countless decisions of

this Court, is to safeguard the privacy and

security of individuals against arbitrary

invasions by government officials." Camara

v. Municipal Court, 387 U.S. at 528. This

"basic purpose" cannot be accomplished if

privacy interests are subject to invasion

"at the unfettered discretion of officers

in the field." Brown v. Texas, 443 U.S.

34

48, 51 (1979). To the contrary, this

"unfettered discretion" is "precisely the

evil" which this Court has condemned in a

variety of contexts, Delaware v. Prouse,

440 U.S. 618 (1979); Marshall v. Barlow's,

Inc., supra; Almeida-Sanchez v. United

States, 413 U.S. 266, 270 (1973).

Like other well publicized national

concerns of the ate the heightened public

attention to the law enforcement problems

created by illegal drug trafficking has

engendered powerful pressures to weaken the

constitutional protections long afforded to

all citizens. However, as this Court has

often reminded us, "(t]he needs of law

enforcement stand in constant tension with

the Constitution's protections of the

individual against certain exercises of

official power .. . It is precisely the

predictability of these pressures that

35

counsels a resolute loyalty to constitu-

tional safeguards." Almeida-Sanchez v.

United States, 413 U.S. at 273-274.

The Third Circuit's opinion in this

case constitutes an unprecedented extension

of the pervasively regulated industry

exception to the Fourth Amendment beyond

anything ever envisioned by any prior

decision of this Court. Absent review by

this Court, the lower court's decision will

create an exception that effectively

swallows the Fourth Amendment previously

extended to public employees.

36

II. THE THIRD CIRCUIT ERRED IN HOLDING

THAT THE PERVASIVELY REGULATED

INDUSTRY EXCEPTION TO THE WARRANT AND

PROBABLE CAUSE REQUIREMENT OF THE

FOURTH AMENDMENT APPLIES TO SEARCHES

OF PEOPLE, AS OPPOSED TO SEARCHES OF

PROPERTY OR INVENTORY OF THE REGULATED

BUSINESS, SUCH THAT POLICE OFFICERS

ARE SUBJECT TO WARRANTLESS SEARCHES

WITHOUT PROBABLE CAUSE OR

INDIVIDUALIZED SUSPICION

Not only did the lower court err by

concluding that a police department is a

pervasively regulated industry, it com-

pounded its error by applying this narrow

Fourth Amendment exception to the intimate

search of an employee's body. This Court,

by contrast, has never applied the perva-

sively regulated industry rule to anything

other than the search of commercial inven-

tory or property. See e.g., New York v.

Burger, 107 S.Ct. at 2642 (no reasonable

expectation of privacy could exist for a

proprietor over the stock of such an

enterprise (emphasis added)); Donovan v.

37

Dewey, 452 U.S. at 598-599 (diminished

expectation of privacy in warrantless

inspections of commercial property); Mar-

shall v. Barlow's, Inc., 435 U.S. at 313;

Balelo v. Baldridge, 724 F.2d 753, 767

(9th Cir.) (en banc), cert. denied, 467 U.S.

1252 (1984) (upheld search of fishing ves-

sels for violation of Marine Mammal Protec-

tion Act, but noting that regulation does

not authorize a search of personal effects

or living quarters of the captains and

their crews).

The distinction, moreover, is a con-

stitutionally significant one. As this

Court has consistently observed, "[a]n

expectation of privacy in commercial

premises .. . is different from, and in-

deed less than a similar expectation in an

individual's home." New Yo v. Burger,

107 S.Ct. at 2642 (1987).

38

The greater latitude to conduct

warrantless inspections of

commercial property reflects the

fact that the expectation of

privacy that the owner of

commercial property enjoys in

such property differs signifi- -

cantly from the sanctity

accorded an individual's home,

and that this privacy interest

may, in certain circumstances,

be adequately protected by

regulatory schemes authorizing

warrantless inspections.

Donovan v. Dewey, 452 U.S. at 598-599.

If anything, the search of an individ-

ual is even more invasive than the search

of a home. Indeed, it can hardly be denied

that compelling an individual to urinate on

government command, at a time and place

designated by the government, under govern-

ment monitoring, involves a significant

“intrusion upon the individual's dignity |

interests in personal privacy and bodily

integrity." Winston v. Lee, 470 U.S. at

761. Thus, even courts which have upheld

urine drug testing have noted:

39

There are few activities in our

society more personal or private

than the passing of urine. Most

people describe it by euphemism

if they talk about it at all.

It is a function traditionally

performed without public obser-

vation; indeed, its performance

in public is generally prohib-

ited by law as well as by social

custom.

National Treasury Employees' Union v. von Raab,

816 F.2d 170, 175 (5th Cir. 1987), cert.

granted, 108 S.Ct. 1072 (1988).

In addition, requiring an employee to

produce urine for chemical analysis dis-

closes substantial personal information

wholly unrelated to employment.

Urine testing may disclose not

only the presence of drug traces

but much additional personal

information about an employee --

whether the employee is under

treatment for depression or

epilepsy, suffering from

diabetes, or, in the case of a

female, pregnant. Even tests

limited to the detection of

controlled substances will

reveal the use of medications

prescribed for relief of pain or

other medical symptoms.

40

Further, the Township's drug testing

plan "casually sweeps up the innocent with

the guilty," Capua v. City of Plainfield,

643 F.Supp. at 1517, by its very random-

ness. Such dragnet procedures inevitably

"generat[e] concern or even fright on the

part of those subject to the test." Dela-

ware v. Prouse, 440 U.S. at 657. As this

Court has emphasized, the Fourth Amend-

ment's prohibition on unreasonable searches

and seizures "limit[{s the government's] use

of unnecessarily frightening or offensive

methods of surveillance and investigation.

United States v. Ortiz, 422 U.S. 891, 894

(1975).

Because of the intrusive nature of

random drug testing, every court that has

considered the Fourth Amendment implica-

tions of urine testing has concluded that

41

requiring public employees to produce a

urine sample for chemical analysis violates

reasonable expectations of privacy and

therefore constitutes a "search" of the

person within the meaning of the Fourth

Amendment. 2+2/

It is one thing to recognize, as this

Court has, the reduced expectation of pri-

vacy of a businessperson over the stock of

il/ See e.g., Railway Labor Executives Association

v. Burnley, 839 F.2d at 580; Jones v. McKenzie, 833

F.2d 335, 338 (D.C.Cir. 1987), petition for cert.

filed, 56 U.S.L.W. 3739 (April 15, 1988); Everett

v. Napper, 833 F.2d 1507, 1511 (11th Cir. 1987);

National Federation of Federal Employees v.

Weinberger, 818 F.2d 935, 942 (D.C. Cir. 1987);

National Treasury Employees' Union v. von Raab, 816

F.2d at 176; McDonell v. Hunter, 809 F.2d 1302,

1307 (8th Cir. 1987); Division 241 Amalgamated

Transit Union v. Suscy, 538 F.2d 1264, 1266-1267

(7th Cir.), cert. denied, 429 U.S. 1029 (1976);

Guiney v. Roache, 686 F. Supp. at 958; Taylor v.

O'Grady, 669 F.Supp. 1422, 1434-1435 (N.D. Ill.

1987); Feliciano v. City of Cleveland, 661 F.Supp.

578, 586 (N.D. Ohio 1987); American Federation of

Government Employees v. Weinberger, 651 F.Supp.

726, 732-733 (S.D.Ga. 1986); Capua v. City of

Plainfield, 643 F.Supp. 1507, 1513 (D.N.J. 1986).

42

a commercial enterprise subject to inten-

sive regulation as justification for war-

rantless, without cause searches. It is

quite another to do as the lower court has

done here and appiy that reasoning to the

high degree of privacy traditionally

afforded to one's person and bodily func-

tions.

As this Court has explained, the

raison d'etre for the administrative search

exception and the justification for the

relaxation of Fourth Amendment protections

is that "the inspections are [not] personal

in nature . . . they involve a relatively

limited invasion of the urban citizen's

privacy." Camara v. Municipal Court, 387

U.S. a= $37.

Correspondingly, this Court has

repeatedly cautioned that "(t]he clear

import of our cases is that the closely

43

regulated industry of the type involved in

Colonnade and Biswell is the exception."

Marshall v. Barlow's, Inc., 436 U.S. at

313-314. The danger of the Third Circuit's

opinion is that it turns this unique

exception into the norm. Plenary review by

this Court is therefore appropriate.

III. THE THIRD CIRCUIT'S RELIANCE UPON THE

PERVASIVELY REGULATED INDUSTRY

EXCEPTION TO THE WARRANT AND PROBABLE

CAUSE REQUIREMENT OF THE FOURTH

AMENDMENT AS JUSTIFICATION FOR

WARRANTLESS SEARCHES OF PUBLIC

EMPLOYEES WITHOUT PROBABLE CAUSE OR

INDIVIDUALIZED SUSPICION, CONTRAVENES

THIS COURT'S RULING IN O'CONNOR v.

ORTEGA, AND CONFLICTS WITH DECISIONS

FROM OTHER COURTS OF APPEALS

In subjecting police officers to

warrantless searches without probable cause

or reasonable suspicion because of the per-

vasively regulated nature of their govern-

ment employment, the lower court has

adopted a standard for the Fourth Amendment

protection of public employees that is

44

completely at odds with this Court's recent

decision in O'Connor v. Ortega, 107 S.Ct.

1492 (1987).

In O'Connor, this Court emphatically

"reject({ed] the contention made by the

Solicitor General .. . that public employ-

ees can never have a reasonable expectation

of privacy in their place of work." 107

S.Ct. at 1498. Rather, the Court held that

"(ijndividuals do not lose Fourth Amendment

rights merely because they work for the

government instead of a private employer."

Id. Due to the limited nature of the

search at issue in O'Connor, the plurality

opinion stressed that the constitutionality

of a search of a public employee should be

measured by its "reasonableness" under all

of the circumstances. ae 2.ce. at

45

1502.42/ under such a test, a public

employer must show that a search was both

"'justified at its inception'" and reasona-

bly related in scope to the objectives of

the search. 107 S.Ct. 1503. Although the

O'Connor court adopted a less stringent

standard than probable cause, no member of

the Court suggested that searches with no

cause or suspicion would pass muster.

Under the lower court's decision in

this case, the careful balancing test

outlined by this Court in O'Connor is

completely vitiated by application of the

12/ The employer's office search in O'Connor

represented a "'relatively limited invasion' of

employee privacy" since offices are supplied by the

government solely for work related reasons and an

"employee may avoid exposing personal belongings at

work simply by leaving them at home." 107 S.Ct.

1502. Urine searches on the other hand, are highly

personal searches, not inspection of property

provided by the government for a limited purpose,

and the employee is powerless to render them less

personal or degrading, or to avoid them. See Jones

v. McKenzie, 833 F.2d at 339.

46

pervasively regulated industry exception to

the Fourth Amendment. The lower court's

opinion in this case simply cannot be

squared with the O'Connor analysis, and

does not comport with the Fourth Amendment

constitutional protection which the

O'Connor court sought to accord public

employees.

Further, the lower court's application

of the pervasively regulated industry

exception to public employees directly

conflicts with decisions from other courts

of appeals. For example, in Railway Labor

Executives' Ass'n v. Burnley, 839 F.2d at

584-585, the Ninth Circuit concluded that

"the administrative search inspection

standard, which allows warrantless searches

of the premises of pervasively regulated

industries, is not applicable to searches

of persons even when they are employed in

47

those industries, unless the employees are

the principal concern of the industry

regulation." 839 F.2d at 585.13/

Adjudication by this Court is neces-

sary to resolve the conflict in decisions

of the various courts of appeals on this

constitutional question. Although the

search in this case arose in the context of

a random drug test, the larger issue

involves the applicability and constitu-

13/ Indeed, as the lower court itself recognized

(123a, n.6), mumerous other courts have

emphatically rejected the Third Circuit's reasoning

in Shoemaker and its progeny, and criticized

reliance upon the pervasively regulated industry

exception as justification for random drug testing.

See e.g., Guiney v. Roache, 686 F.Supp. at 963;

American Federation of Govermment Employees v.

Weinberger, 651 F.Supp. at 734-735; Capua v. City

of Plainfield, 643 F.Supp. at 1518-1519; Fraternal

Order of Police v. Newark, 524 A.2d at 434-35;

Caruso v. Ward, 506 N.Y.S.2d at 798. A contrary

result was recently reached by the Eighth Circuit

in Rushton v. Nebraska Public Power District, 844

F.2d 562, 566-567 (8th Cir. 1988), which applied

the Third Circuit's analysis and the pervasively

regulated business exception to justify a random

drug test of a nuclear power plant employee.

48

tionality of the pervasively regulated

industry exception to justify the warrant-

less search of municipal employees without

probable cause or individual suspicion.

The anticipated decisions by this

Court Railway Labor Executives Association

v. Burnley, No. 87-1555, cert. granted, 108

S.Ct. 2033 (1988), and National Treasury

Employees Union v. von Raab, No. 86-1879,

cert. granted, 108 S.Ct. 1072 (1988),

simply will not resolve the constitutional

dilemma raised by, and the conflicting

decisions engendered by, the Third Cir-

cuit's unprecedented application of the

49

pervasively regulated industry exception to

the Fourth Amendment.14/

14/ at issue befuze this Court in Burnley is the

constitutionality of Federal Railroad Administra-

tion regulations mandating blood and urine tests of

railroad workers involved in certain train

accidents. At issue in von Raab is the constitu-

tionality of the Customs Service's drug screening

program which requires certain selected employees,

as a condition of promotion, to undergo a urine

drug screen, even theugh the tests are conducted

without probable cause or reasonable suspicion and

the Customs Service has conceded that its work

force is largely drug free. In neither case is the

pervasively regulated industry search exception at

issue. Indeed, in both cases the govermment has

eschewed reliance on that exception as

justification for its testing.

50

CONCLUSION

For all of the foregoing reasons, the

petition for a writ of certiorari should be

granted. Alternatively, this petition

should be held pending final decisions in

Burnley, No.

1879.

87-1555, and von Raab, No.

Respectfully submitted,

JAMES KATZ

(Counsel of Record)

Tomar, Seliger, Simonoff,

Adourian & O'Brien

41 South Haddon Avenue

86-

Haddonfield, New Jersey 08033

(609) 429-1100

ERIC NEISSER

American Civil Liberties

Union of New Jersey

2 Washington Place

Newark, New Jersey 07102

(201) 642-2086

STEVEN R. SHAPIRO

JOHN A. POWELL

American Civil Liberties

Union Foundation

' 132 West 43 Street

New York, New York 10036

(212) 944-9800

51

Of Counsel:

Ralph Colflesh

10 West Main Street

Moorestown, NJ 08057

(609) 235-5734

Dated: October 26, 1988

52

APPENDIX

TOWNSHIP OF WASHINGTON GLOUCESTER COUNTY

MUNICIPAL BUILDING, P.O. BOX 2206,

TURNERSVILLE, NJ 08012

TELEPHONE 609-589-0575

OFFICE OF THE MAYOR

November 13, 1986

Dear Employee,

On August 4, 1986 President Ronald

Reagan called on every level of government

to join a national effort to make drug use

an unacceptable behavior and to develop

plans to provide a drug free work place.

The President said, “employees who use

illegal drugs, on or off duty, tend to be

less productive, less reliable, and prone

to greater absenteeism than their fellow

employees who do not use illegal drugs;

President Reagan went on to say that, the

use of illegal drugs undermines public

confidence and makes it more difficult for

other employees to perform their jobs

effectively. The use of illegal drugs, on

or off duty, can pose serious health and

safety threat to members of the public and

to other employees."

On August 5, 1986 I announced that

Washington Township would begin a mandatory

drug testing program for all municipal

employees, myself included.

As you know, there has been con-

Siderable dialogue, opposition, rumor and

just plain bad information about the drug

testing program in Washington Township.

This was due, in part, to the fact that the

la

actual plan and process for testing has not

yet been formulated. However, the plan is

now complete and it is being distributed to

each employee.

I believe the attached plan represents

a comprehensive approach to mandatory drug

testing and I encourage each of you to

thoroughly review it with your families and

fellow workers. I'm certain that many of

you will have questions regarding this plan

and in anticipation of your questions we

will be scheduling departmental meetings

over the next sixty days to review the

elements of the plan with you.

I firmly believe that as employees of

the taxpayers we have an obligation to show

the way toward achieving a drug free work

place. This can be done by the successful

_implementation of a program designed to

offer drug users a helping hand and, at the

same time, demonstrate to drug users and

potential drug users that drugs will not be

tolerated in the work place.

In closing, I ask for your understand-

ing cooperation, and willing participation.

Together we can show the residents of

Washington Township that their employees

are doing their fair share to combat the

use of drugs.

Sincerely,

John W. Robertson

Mayor

2a

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

POLICEMEN'S BENEVOLENT : Civil Action

ASSOCIATION OF NEW JERSEY, No. 86-3525

LOCAL 318 and EDMUND :

GIORDANO, Individually

and as President of the :

Policeman's Benevolent

Association of New

Jersey, Local 318,

OPINION

Plaintiffs,

Vv.

TOWNSHIP OF WASHINGTON

(Gloucester County) a

municipal corporation

under the laws of New

Jersey, and JOHN

ROBERTSON, Mayor,

Defendants.

Appearances:

Ralph H. Colflesh, Esquire

10 W. Main Street

Moorestown, NJ 08057

(Attorney for Plaintiffs)

Joseph A. Alacqua, Esquire

2 John Hancock Office Center

251 Johnson Road

Turnersville, NJ 08012

(Attorney for Defendants)

3a

CO — —

RODRIGUEZ, District Judge

FACTS AND PROCEDURAL HISTORY

This case was brought before the court

pursuant to 42 U.S.C. §1983. The plain-

tiffs claim that the constitutional rights

of Washington Township's police officers,

whom plaintiffs represent, will be violated

if the Township's proposed drug-testing

plan for municipal employees is put into

effect.

The issues in this matter represent a

juxtaposition of the two vital societal

concerns: The need to ensure that our

public servants, in this case police

officers, are free from the modern scourge

of illegal drug abuse; versus the right of

the individual to be protected from

unreasonable searches aimed at detecting

evidence of such abuse. This opinion

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presents the court with an opportunity to

delineate the constitutional boundaries of

these potentially conflicting societal

interests.

On August 4, 1986, President Ronald

Reagan called upon all levels of government

to develop plans to ensure drug-free

workplaces in our nation. On August 5,

..198, the Mayor of Washington nship, John

W. Robertson, Jr., inspired at least in

part by the President's call, issued a

memorandum directing that all employees of

the Township would be subject to mandatory

drug testing. There were no guidelines

issues with respect to the proposed testing

at that time.

On September 12, 1986, the Policemen's

Benevolent Association of New Jersey, Local

318 and its president, Edmund Giordano,

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filed suit on behalf of the police officers

of Washington Township. The Township,

Mayor Robertson and the Township Council

were named as defendants. The plaintiffs

asked the court to declare the planned drug

testing unconstitutional and to enjoin the

Township from undertaking such testing with

respect to police officers. The plaintiffs

also sought temporary restraints against

the defendants while the matter was under

review.

The court initially granted temporary

restraints and ordered the defendants to

appear and show cause why the preliminary

injunction should not be granted to the

plaintiffs. The parties appeared in court

on September 19, 1986. At that time, the

Township indicated that no testing of

police officers had taken place and that

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none would take place until guidelines were

formulated and the court had an opportunity

to review those guidelines. Based on those

representations, plaintiffs' application

for a preliminary injunction was denied.

The temporary restraints were dissolved on

October 8, 1986.

On October 6, 1986, the defendants

answered the plaintiffs' allegations and

counterciaimed for attorney's fees pursuant

to 42 U.S.C. §1988.

Pretrial discovery was conducted under

the supervision of Judge Jerome B.

Simandle. On February 25, 1987 the

defendants submitted the "Revised Employee

Drug Testing Program of the Township of

Washington," (Plan) wiich is the plan under

review here. The parties have since

indicated that no genuine issue of material

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fact remains to be decided and that this

dispute can be resolved by motion. The

case is presently before us on cross-

motions for summary judgment on the issue

of whether certain aspects of the defen-

dant's proposed drug testing plan should be

permanently enjoined.

The plaintiffs have stipulated that

they are only challenging the con-

stitutionality of the following aspects of

the proposed plan: those aspects calling

for the random testing of police officers;

those aspects which might authorize the

mass-testing of the entire police force;

and those aspects which would permit

testing as part of pretextual physical

examinations which are not bona fide

medical examinations given in the ordinary

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course of business and as a matter of the

Township's policy for its police officers.

The plaintiffs have also stipulated to

dismiss the Township Council as a defen-

dant. In return, the defendant Township

Council has withdrawn the counterclaims in

which it sought attorney's fees.

THE PLAN

The stated purpose of the proposed

plan is "to establish uniform policies and

procedures to govern the administration of

a screening process to test and control

unauthorized use of illicit drugs among all

sworn and civilian personnel of the

Township of Washington." Plan, section 1,

pg. 1. The introductory section indicates

that the policy "takes cognizance of the

rights inherent in each individual of the

Township under the Constitution of the

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United States of America and the State of

New Jersey." Plan, section 2, pg. 1. Of

course, it is the purpose of this opinion

to determine whether or not the policy

embodies a sufficient cognizance of

constitutional rights.

The plan proposed by Washington

Township would permit the defendant to

initiate drug testing of its employees ina

variety of ways. There are two "base

methods" listed for the detection of

illegal drug use by Township employees.

The first is "({t]Jesting of those individual

employees where facts are sufficient to

constitute reasonable suspicion ..." of

illegal drug use. The second is by way of 2

a “universal random urinalysis procedure."

Plan, section 3, pg. 2. In addition to

these "base methods," the policy also

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states that all municipal employees will be

required to have annual physical examina-

tions which shall include a urinalysis drug

test. There is a reservation of the right

to require additional "regularly scheduled

and announced" medical examinations of

employees in certain municipal departments.

Plan, section 4, pg. 3. The plaintiffs

believe that this reservation would give

the Township the power to schedule drug

tests in addition to those conducted as

part of the annual "medical examination."

Finally, the policy requires all municipal

job applicants to sign consent forms in

which they agree to submit a urine sample

for drug testing. An applicant's refusal

to provide such a sample or the detection

of drugs in a sample will result in the

rejection of the employment application.

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Random selection of employees to be

tested would be accomplished by a computer

programmed by an independent contractor.

The selected subject would be notified of

the impending drug test "just prior to

transport to the testing location." Plan,

section 8, pg. 5. The employees would also

be informed at that time of the specific

drugs to be tested for.

The following procedure would ap-

parently apply to all drug testing, whether

initiated by random selection or otherwise:

Testing will take place ina "clean and

sanitary location" equipped with washing

facilities. Plan, section 10, pg. 7. The

selected employee must complete a medical

questionnaire which clearly describes "all

drugs, both prescription and non-prescrip-

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tion, ingested during the past 30 days."

Plan, section 8, pg. 5.

The employee must thoroughly wash hi

or her hands and fingernails and "deliver

the urine sample under the direction of the

medical or laboratory technician." Id.

The employee must submit a required minimum

amount of urine in an approved container.

The urination would take place in

"private," unless there is a reasonable

suspicion that the subject will tamper with

the sample in some way. Plan, section 12,

pg. 8. However, the urination will in any

event take place under the general super-

vision of [a] medical laboratory tech-

nician." The laboratory technician will

supervise "all aspects of obtaining,

marking and packaging of individual urine

samples...." Plan, section 10, pg. 6.

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"At all stages of the urine-sampling

procedure the employee will be expected to

follow each instruction of the testing

Supervision." Plan, section 8, pg. 5. The

employee will be assigned a number which

will correspond to a number on the sampling

container. This process is designed to

assure anonymity. The employee must also

Sign documentation verifying that the

number on the sample corresponds to the

number they have been assigned.

The Township is to specify which

specific illegal substances it wishes to

test for in each case. The testing

laboratory shall be responsible for

maintaining a proper chain-of-custody of

each sample. Each sample would undergo two

different tests. The plan tentatively

indicates that the first test shall employ

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a thin-layer chromatography process. The

second test shall employ either "enzyme

immunoassay, gas liquid chromatography,

[or] mass spectrometry." Plan, section 13,

pg. 8. The testing laboratory would also

preserve an aliquot sample of the urine

which the subject employee may use to

conduct a confirmatory test at the same

laboratory, under the supervision of

experts chosen by the employee.

Drug testing would not be conducted

for purposes of criminal prosecution.

Employees testing positive for drugs would

be referred to an Employee Assistance

Program for “assessment, counseling, and

referral for treatment or rehabilitation as

appropriate." Plan, section 17, pg. 10.

However, the Township reserves the

right to dismiss or discipline anyone found

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to be using drugs. The only drug users who

may not be disciplined or fired are those

employees who come forward and volunteer to

be drug tested during the sixty day period

prior to the implementation of the

Township's mandatory testing program. To

avoid termination or other disciplinary

action, such persons must also volunteer

the fact that they are illegal drug users,

obtain help through the Employee Assistance

Program (EAP), and remain drug-free

thereafter. Any employee who refuses

rehabilitation and uses illegal drugs a

second time will be terminated.

The proposed plan includes an educa-

tion program which would, among other

things, educate employees about the extent

of the drug problem facing society; the

programs in effect to combat this problem;

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the dangers of drugs; and the signs of drug

abuse which can be detected in fellow

employees. Supervisory personnel will also

receive training so that they will be able

to determine when a reasonable suspicion

exists that an employee is using drugs.

Employees will be notified sixty days

in advance that the drug testing program is

about to go into effect. During that

period employees are encouraged to volun-

éavdiy come forward if they are using

illegal drugs. All job applicants would be

informed that drug testing is a condition

of employment.

The proposed plan has a severability

clause which states that "if any of its

provisions shall be held unconstitutional

or otherwise invalid by any court of

competent jurisdiction, the decision of

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Such court shall not affect or impair any

of the remaining provisions." Plan,

section 16, pg. 10.

OPPOSING ARGUMENTS

The plaintiffs argue that taking urine

samples for drug testing purposes con-

stitutes a search and seizure under the

Fourth Amendment. They cite a list of

cases which agree with that assertion.

Since a variety of private medical facts

about a person can be detected in their

urine, the plaintiffs assert that an

individual has a reasonable expectation of

privacy with respect to its discharge and

the detection of the private information

therein.

The plaintiffs argue that the Fourth

Amendment requires Washington Township to

obtain a warrant based on full probable

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cause in order to institute a urinalysis

- drug search of its police officers.

However, the plaintiffs admit that the

warrant requirement of the Fourth Amendment

is not "inviolate." Plaintiff's brief at

7. Therefore, they argue in the alterna-

tive that at least a reasonable suspicion

of illegal drug use by an officer must

exist before the officer may be ordered to

submit to a urinalysis.

The plaintiffs believe that the

reasonable suspicion standard is justified

by a balancing of the interests at stake

here. They rely on the fact that

Washington Township has not identified an

existing drug problem among its police

officers. The plaintiffs do not dispute

the Township's need to ensure that police

officers do not use illegal drugs.

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However, they argue that mandatory urine

testing in the absence of even a reasonable

Suspicion is an excessively intrusive means

to achieve that end. While they concede

that a police officer's expectation of

privacy may be diminished somewhat, they

insist that it is not so diminished as to

permit the types of tests, absent reason-

able suspicion, which the Township is

seeking to conduct here.

The plaintiffs especially oppose the

Township's attempt to drug test police

officers on a random basis. They argue

that randomness provides no standard at all

to measure when a given search is reason-

able. They argue that random testing has

the same ultimate effect as the mass

testing of all police officers. They

observe that courts have disallowed the

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mass testing of municipal employees under

circumstances similar to those presented

here.

Even though the proposed tests are not

aimed at gathering evidence for criminal

prosecution, the plaintiffs point out that

an officer's career will hang in the

balance pending the test outcome and that

the result could be incorrectly reported

for a variety of reasons.

The plaintiffs contend that the

medical examinations called for the drug

testing policy are not bona fide medical

examinations but are a mere subterfuge to

conduct urinalysis drug tests under another

label. They believe that the medical

examination provisions are a "distractor"

intended to permit the Township to urine

test at its discretion. Plaintiffs' brief

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at 21. They point out that no medical

guidelines, other than a drug-urine test,

are established as a requirement of fitness

for duty by police officers.

The defendants respond by arguing that

the intrusion engendered by a mandatory

urinalysis is minimal. They believe that

a police officer has no reasonable expecta-

tion of privacy in opposition to the

proposed tests, since a police officer

enjoys limited privacy rights on the job

and because there can be no reasonable

expectation of privacy in the fact that an

individual is using illegal drugs.

The defendants believe that random

testing of police officers is the most

efficient and effective way to ensure a

drug-free police force. They concede that

prior attempts to mass test municipal

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employees have been struck down as un-

reasonable by the courts. However, the

defendants believe that their proposed drug

testing plan has recognized and overcome

the fatal defects which were present in

those programs.

For example, the defendants believe

that their program is reasonable because it

would permit most officers to urinate in

private, because it is governed by a

detailed set of written guidelines, and

because the information obtained would be

utilized for disciplinary but not for

criminal purposes.

The defendants do not claim that a

drug problem among the Township's police

officers has been documented. They assert

that their program is fully justified as a

preventive effort and rely on statistics

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which indicate that a serious drug problem

exists in society as a whole. These

statistics, they maintain, create a

reasonable concern by Township officials

that employees are using or may in the

future use illegal drugs.

To support their effort, the defen-

dants rely on previous cases which have

upheld the mandatory urine testing of

jockeys, nuclear plant employees, flight

service specialists and certain prison

guards. Finally, the defendants maintain

that mandatory urine testing has been

"unanimously" upheld by recent federal

circuit court decisions.

A_MANDATORY URINALYSIS CONSTITUTES A SEARCH

The Employee Drug Testing Program of

Washington Township requires that municipal

employees, including police officers,

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submit to urine testing aimed at detecting

the presence of illegal drugs. The use of

such mandatory drug testing procedures and

the review of their legality in the courts

are relatively modern phenomena. Nonethe-

less, among those courts considering the

question, a consensus has developed that a

mandatory urinalysis constitutes a search

within the meaning of the Fourth Amendment.

McDonell v. Hunter, 809 F.2d 1302, 1307

(8th Cir. 1987); Shoemaker v. Handel, 795

F.2d 1136, 1141 (3d Cir.), cert. denied 107

U.S. 577 (1986) (implicit finding that

mandatory urinalysis constitutes a search);

Feliciano v. City of Cleveland, 661 F.Supp.

578, 584 (N.D. Ohio 1987); Capua v. City of

Plainfield, 643 F.Supp. 1507, 1513 (D.N.J.

1986); Jones v. McKenzie, 628 F.Supp. 1500,

1508 (D.D.C. 1986); Lovvorn v. City of

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Chattanooga, 647 F.Supp. 875, 879 (E.D.

Tenn. 19860; Allen v. City of Marietta, 601

F.Supp. 482, 489 (N.D. Ga. 1985); Storms v.

Coughlin, 600 F.Supp. 1214, 1217 (S.D.N.Y.

1984). Cf. Fraternal Order of Police v.

City of Newark, 216 N.J. Super. 461, 466

(App. Div. 1987) (construing nearly

identical provision of New Jersey

Constitution).

While it is true that all individuals,

by necessity, routinely dispense urine from

their bodies, they usually do so in

conditions of privacy where the bodily

fluids are quickly disposed of and are not

retrievable by others for testing purposes.

"One does not reasonably expect to dis-

charge urine under circumstances making it

available to others to collect and analyze

in order to discover the personal physiolo-

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gical secrets it holds." Capua v. City of

Plainfield, 643 F.Supp. at 1513 (quoting

McDonell v. Hunter, 612 F.Supp. 1122, 1127

(D. Iowa 1985)). The matic oaiite and

testing of urine samples from Washingten___

Township's police officers would therefore

—n

Be

constitute a search.

Since the mandatory urine testing

proposed by the defendant would constitute

a search within the meaning cof the Fourth

Amendment, this court must determine

whether the planned searches are constitu-

tionally permissible. This entails an

examination of the provisions of the Fourth

Amendment in order to ascertain: whether a

warrant must be acquired before undertaking

searches; whether probable cause or

reasonable suspicion is needed to justify

the searches; and whether the searches will

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be "reasonable," as required by the

amendment.

The Fourth Amendment of the United

States Constitution states that:

"The right of the people to be

secure in their persons, houses,

papers, and effects, against

unreasonable searches and

seizures, shall not be violated,

and no warrants shall issue, but

upon probable cause, supported by

oath or affirmation, and par-

ticularly describing the place to

be searched, and the persons or

things to be seized."

The Fourth Amendment applies to the states

through the Fourteenth Amendment. Wolf v.

Colorado, 338 U.S. 25, 27-28 (1949).

"(Tjhe most basic constitutional rule

in this area is that 'searches conducted

outside the judicial process, without prior

approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment --

subject only to a few specifically es-

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tablished and well-delineated exceptions.'"

Collidge v. New Hampshire, 403 U.S. 443,

reh'g denied, 404 U.S. 874 (1971) (citing

Katz v. United States, 389 U.S. 347, 357

(1967). The fundamental command of the

Fourth Amendment is that searches and

seizures be reasonable. New Jersey v.

T.L.O., 469 U.S. 325, 340 (1985). While

ordinarily a warrant and full probable

cause are required to satisfy the reason-

ableness standard of the Fourth Amendment,

the Supreme Court has stated that "in

certain limited circumstances neither is

required." Id. at 340. (teacher or other

school official may search students when

there are “reasonable grounds for suspect-

ing that the search will turn up evidence

that student has violated or is violating

either the law or the rules of the school."

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Id. at 341-42). See also Delaware v.

Prouse, 440 U.S. 648, 663 (1979) (car may

be stopped without a warrant and its driver

detained while documents are checked if

there is at least an "articulable and

peassnabie suspicion" that a motor vehicle

violation or other illegality has oc-

curred); Terry v. Ohio, 392 U.S. 1 (1968)

("stop and frisk" of individual by police

officer is permissible if "a reasonably

prudent man in the circumstances would be

warranted in the belief that his safety or

that of others was in danger.").

The Supreme Court, however, has not

yet considered whether or not a warrant

based upon full probable cause is required

to justify the type of mandatory urine

testing proposed here. Except in the case

of a "well-delineated exception" to the

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warrant requirement, a court should not

dispense with that requirement lightly. We

are mindful that "the police must, whenever

practicable, obtain advance judicial

approval of searches and seizures through

the warrant procedure...." Terry v. Ohio,

392 U.S. at 20. However, we also recognize

that where the purpose of the search is to

detect the presence of an illegal substance

in the body, the delay entailed in obtain-

ing a warrant could well frustrate that

purpose, due to the eventual dissipation of

the substance searched for. See Schmerber

v. California, 384 U.S. 757, 770-71 (1966).

Therefore, it may not be practicable for

Washington Township to obtain a search

warrant ina timely fashion when the need

arises to test a police officer for the

presence of drugs in his body. The strict

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x.

requirement of obtaining a search warrant

may be dispensed with if "'the burden of

obtaining a warrant is likely to frustrate

the governmental purpose behind the

search.'" New Jersey v. T.L.O., 469 U.S.

at 340 (quoting Camara v. Municipal Court,

387 U.S. 523, 532-33 (1967)). We therefore

conclude that Washington Township

authorities need not obtain a warrant

before requiring that a police officer

submit to urinalysis drug testing. The

next question is the reasonableness of the

warrantless searches proposed by Washington

Township.

RANDOM DRUG TESTING

The Township's proposed plan would

permit drug testing to be initiated ina

number of ways. However, the plaintiffs

accurately assert that the random selection

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of police officers for drug testing is the

"heart and soul" of the constitutional

question before this court.

"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 to be conducted." Bell v. Wolfish,

443. 0.8. S20, 559 (1979).

The reasonableness of random drug

testing in this case must be determined by

balancing the need to conduct a random drug

search against the resulting invasion of

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the police officers' expectation of

privacy. See Q'Connor v. Ortega, 107 S.

Ct. 1492, 1499 (1987); New Jersey v.

T120., 469 U.S. at 334

Washington Township asserts that

random drug testing of its police officers

is justified under the rationale of cases

permitting the random urine testing of

public employees engaged in highly-regu-

lated activities. We conclude that those

cases are inapplicable to the present

controversy.

The principle case involving mandatory

random urinalyses of employees in a highly-

regulated industry is Shoemaker v. Handel,

795 F.2d 1136, 1137 (3a Cir.), cert.

denied, 107 S.Ct. 577 (1986). In

Shoemaker, jockeys engaged in New Jersey's

highly-regulated racing industry challenged

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certain rules of the State Racing Commis-

sion. Those rules permitted the state

racing steward to direct jockeys to submit

to breathalyzer and urinalysis tests

designed to detect the presence of alcohol

or drugs. Id. at 1137. The rules were

implemented by randomly testing between

three and five jockeys at the conclusion of

each racing day. Id. at 1140.

In upholding the random searches of

jockeys in Shoemaker, the Third Circuit

found that both prongs of the test for a

warrantless administrative search had been

met. First, there was a strong state

interest in conducting an unannounced

search in those particular circumstances.

New Jersey has a significant financial

interest in the horse racing industry.

That financial interest is dependent upon

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the confidence of the wagering public in

the honesty and integrity of the sport.

Second, the already pervasive regulation of

the horse racing industry had sufficiently

reduced the expectation of privacy held by

the jockeys engaged in racing in New

Jersey. Among other things, the jockeys

knew that warrantless searches of stables

and drug testing of horses had previously

been authorized by the State Racing

Commission. Id. at 1142.

The Shoemaker court clearly stated

that "{ojur holding applies only to

breathalyzer and urine sampling of volun-

tary participants in a highly-regulated

industry." Id. at 1142 n.5.

Washington Township's police officers

are not engaged in a highly-regulated

industry of the type dealt with in

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Shoemaker. While police officers certainly

operate within a framework of regulatory

controls, a police officer does not carry

out his duties in the same "“intensely-

regulated" atmosphere as that experienced

by a jockey participating in horse racing.

See Id. at 1142; Fraternal Order of Police

v. City of Newark, 216 N.J. Super. at 469.

To apply the reasoning of Shoemaker to the

police officers in this case would extend

Shoemaker well beyond the limited scope

which that court intended for its ruling.

Rushton v. Nebraska Public Power

District, 653 F.Supp. 1510 (D. Neb. 1987)

also involved a highly regulated industry.

The Rushton court largely relied on

Shoemaker in permitting the random urine

testing of personnel who had unescorted

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access to "protected areas of the Cooper

Nuclear Station (CNS)." Id. at 1524-25.

Recent occurrences at nuclear power

plants in this country and abroad had -

established that a mishap at such a

facility can cause serious damage and alarm

extending even beyond national borders. As

the Rushton court noted, a strong state

interest, even more compelling than that in

Shoemaker, exists for ensuring the safety

of the public, the workers and the plant

facility. Id. at 1524. Consequently, many

regulatory safeguards are in place at CNS

and other such facilities. Indeed, the

Rushton court recognized the "pervasive

regulation" surrounding the nuclear

industry as a whole. Id. at 1254.

There is no such pervasive regulation

of the police officers in the case at hand.

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Any illusion that Washington Township's

police force operates under a reduced

expectation of privacy comparable to the

situation in Rushton is dispelled by Judge

Urbom's description of the Cooper Nuclear

Station:

"The protected area of CNS is

completely surrounded by a fence, ~

except at the point where the

fence meets the security build-

ing. To enter the protected

area, one must proceed through

the entrance of the security

building and pass, in single

file, through explosive and metal

detector devices. Random pat-

downs are routinely performed and

guards observe entrants for

erratic behavior. Once within

the confines of the protected

area, each of the 700 individuals

who are permitted unescorted

access participate in the honor

system. Variously located

throughout the protected area are

vital areas; Each vital area is

a room with a door requiring a

separate access code for

entrance. The vital areas house

the safety equipment, the

equipment designed to prevent or

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mitigate a radiological release."

id. at 1513.

"After an individual is admitted

entrance, surveillance continues

through the use of closed circuit

television, micro-wave transmis-

sion, and personal observa-

tion.... [S]Jecurity guards

continually patrol the protected

area. Moreover, the NRC routine-

ly sends announced and unan-

nounced personnel to CNS for

inspection purposes. During the

course of such inspections, it is

not uncommon for a NRC represen-

tative to question CNS employees.

Given all the foregoing con-

Siderations, I find that the

plaintiffs have a diminished

expectation of privacy while

within the confines of CNS." Id.

at i525. -

Washington Township's police officers do

not work within the type of pervasive,

intensive regulatory system which Judge

Urbom describes in Rushton. It is clear

that our decision in this case cannot rest

on precedent which dealt with administra-

40a

tive searches in highly-regulated in-

dustries.

While we have determined that

Washington Township's police officers enjoy

a greater expectation of privacy than

employees in a highly-regulated industry,

Washington Township believes that its

officers' expectation of privacy is

sufficiently diminished to permit what the

defendant characterizes as minimally

intrusive urine searches.

The Constitution does not protect

every subjective expectation of privacy

that a person might hold. In order to be

protected under the Fourth Amendment, an

expectation of privacy must also be one

that society is "prepared to recognize as

legitimate." New Jersey v. T.L.O., 469

|

4la :

U.S. at 338 (quoting Hudson v. Palmer, 468

U.S. 517, 526 (1984).

Public employees, such as police

officers, may have a lessened expectation

of privacy with respect to their employ-

ment, but they do not surrender all of

their constitutional rights when they

accept a public position. See Lovvorn, 647

F.Supp. at 880. In fact, the legitimate

privacy interest of a public employee may

be substantial. O'Connor v. Ortega, 107 S.

ct. at 1500. The reasonableness of the

employee's expectation of privacy and the

appropriateness of a proposed search must

therefore be analyzed in the context of

each employment setting. Id. at 2497.

The urine testing proposed here would

entail a significant amount of intrusion

into the private affairs of Washington

42a

Township's police officers. Even limited

searches of the person constitute a severe

intrusion upon "cherished personal

security." United States v. Afanador, 567

F.2d 1325, 1331 (5th Cir. 1978). The

taking of a urine sample in order to reveal

the personal physiological information

contained therein, particularly the

presence of illegal drugs, is a con-

siderable intrusion upon an individual's

reasonable expectation of privacy. See;

e.g., Feliciano, 661 F.Supp. at 586.

While we have observed that the issue

of mandatory drug testing of employees is a

relatively modern phenomenon, we do not

operate in a vacuum of legal analysis in

this area. Within the past two years,

there has been a plethora of reported

decisions dealing with the propriety of

43a

subjecting public employees to mandatory

urinalysis tests. The overwhelming

consensus of these cases is that a man~

datory urinalysis intrudes upon a public

employee's reasonable expectation of

privacy when it is carried out in the

absence of a reasonable suspicion that the

employee has been using illegal drugs.

McDonell v. Hunter, 809 F.2d 1302, 1308-

1309 (8th Cir. 1987) (while prison guards

identified as having regular, daily contact

with prisoners must submit to random

urinalysis, other guards within institution

may only be tested on the basis of reason-

able suspicion); Feliciano, 661 F.Supp. at

596 (N.D. Ohio 1987) (individual suspicion

required to drug test police academy

cadets); American Federation of Gov't

Employees v. Weinberger, 651 F.Supp. 726,

44a

ae

739 (S.D. Ga. 1986) (reasonable suspicion

needed for urinalysis of civilian police

employed by Department of Defense); Capua,

643 F.Supp. at 1522 (reasonable suspicion

needed to test firefighters); Jones v.

McKenzie, 628 F.Supp. at 1508-1509 ("par-

ticularized probable cause" needed to test

school bus attendant); Lovvorn, 647 F.Supp.

at 883 (reasonable suspicion needed to test

firefighters); Penny v. Kennedy, 648

F.Supp. 815, 817 (E.D. Tenn. 1986) (reason-

able suspicion needed to test police

officers); Fraternal Order of Police v.

City of Newark, 216 N.J. Super. at 474

(reasonable suspicion required for testing

police officers); City of Palm Bay v.

Bauman, 475 So.2d 1322, 1326 (Fla. Dist.

Ct. App. 1985) (reasonable suspicion

needed to test police or firefighters) ;

45a

Caruso v. Ward, 506 N.Y.S.2d 789, 799 (Sup.

Ct. 1986) (reasonable suspicion needed to

test members of organized crime control

bureau); Patchoque-Medford Congress v. Bd.

of Ed., 505 N.Y.S.2d 888, 891 (N.Y. App.

Div. 2nd Dept. 1986), aff'd. 70 N.Y.2d 57,

517 N.Y.S.2d 456, 510 N.E.2da 325 (1987)

(reasonable suspicion required to test

public school teacher).

It follows then that a broad class of

public employees, such as "all municipal

employees" or "all police officers," may

not be subjected to random urinalysis,

Since such a testing program results in

searches without any level of

individualized suspicion whatsoever. See

McDonell, 809 F.2d at 1308-1309 (only those

guards identified as having regular, daily

contact with prisoners may be randomly =

46a

tested, reasonable suspicion is required to

test all-others); City of Palm Bay v.

Bauman, 475 So.2d 1322 (Fla. Dist. Ct. App.

1985) (random testing of police and

firefighters prohibited); Caruso v. Ward,

506 N.Y.S.2d at 799 (random testing of

police officers Seehthieed) .

The random drug testing which the

defendants propose in this case can be

analogized to previous attempts to "mass

test" an entire group of public employees.

The reasoning employed in cases which have

disallowed the urine testing of groups of

public employees en masse is applicable to

the random testing program proposed here.

Mass testing programs have generally

been disallowed because they are not based

on a standard of individualized, reasonable

suspicion. Feliciano, 661 F.Supp. at 596;

47a

American Federation of Gov't Employees, 651

F.Supp. at 739 (S.D. Ga. 1986); Capua, 643

F.Supp. at 1522; Jones v. McKenzie, 628

F.Supp. at 1508-1509; Lovvorn, 647 F.Supp.

at 883; Penny v. Kennedy, 648 F.Supp. at

817; Fraternal Order of Police v. City of

Newark, 216 N.J. Super. at 474; City of

Palm Bay v. Bauman, 475 So.2d at 1326;

Patchoque-Medford Congress v. Bd. of Ed.,

505 N.Y.S.2d at 891.

Both random and mass testing programs

entail the search of individuals whether or

not there is any reason to suspect that

they have used illegal drugs. Eventually,

a random drug testing program will subject

the entire Washington Township police force

to a mandatory urinalysis. In that

respect, the only distinction between

random and mass testing is that in a random

48a

drug testing program the entire group is

tested on a piecemeal basis.

Thus, the random drug testing program

proposed by Washington Township does not

differ in a constitutionally sineisinns

way from the mass testing procedures which

were ruled impermissible in the cases cited

above.

Washington Township mistakenly asserts

that its proposal has cured the constitu-

tional defects which invalidated mandatory

drug testing programs in other cases, by

arguing that previous testing programs have

been struck down for reasons other than a

lack of individualized, reasonable

suspicion. For example, the defendant

notes that in Capua, there was a highly

intrusive mass round-up of all the fire-

49a

fighters in a firehouse for testing. See

Capua, 643 F.Supp. at 1511.

Judge Sarokin was justified in

reacting strongly to the surprise testing,

en masse, of the Plainfield firefighters.

Capua, 643 F.Supp. at 1521. However, we do

not find that the result in Capua would

differ if the mass testing had been carried

out in a less offensive manner. The

constitutional standard enunciated in Capua

was that mandatory department-wide urine

testing was not permissible because it was

not based upon “individualized, reasonable

suspicion." Id. at 1522. Mass or random

testing, though it might be carried out in

a more civilized manner, will still fail to

meet that standard.

Washington Township also defends its

planned random urine testing program on the

50a

grounds that it would operate under a set

of well-defined written standards and

procedures. It is true that previous

opinions have decried the absence of well-

defined administrative guidelines and

standards in drug testing programs. See,

e.g., Capua, 643 F.Supp. at 1521. However,

the standard which was most significantly

absent from those programs was one

authorizing testing only on the basis of

individualized suspicion. See Lovvorn, 647

F.Supp. at 880-81. The adoption and

dissemination of a written drug testing

policy will not satisfy the Fourth Amend-

ment where the effect of that policy is to

expose the individual to a constitutionally

unreasonable search.

Washington Township's plan would give

its employees at least sixty days advance

Sla

notice before testing would begin. Advance

notice of Washington Township's drug

testing policy does not render it reason-

able. Washington Township's drug policy

offers its employees the choice of either

submitting to an unreasonable search or

risking the loss of their employment. A

government employer cannot require that

employees submit to an unconstitutional

search as a condition of their employment,

McDonell, 809 F.2d at 1310 (citing Picker-

ing v. Board of Education, 391 U.S. 563,

568 (1968). Nor would the fact that

employees remained in their jobs after the

announcement of the drug testing policy

amount to consent to the proposed searches.

Even if all employees were required to sign

a form consenting to an otherwise un-

reasonable search, the form would not

52a

operate as a waiver of their constitutional

rights. McDonell, 809 F.2d at 1310.

Nor does the fact that subject police

officers would, in most cases, be permitted

to urinate in private reduce the intrusive-

ness of a search sufficiently to satisfy

the Fourth Amendment. Urination is a

highly private act which is most often

carried out in an unobserved setting.

Therefore, the taking of urine samples

under direct supervision would be an

additionally intrusive procedure.

Feliciano, 661 F.Supp. at 586. However,

the essence of the search involved in any_

urinalysis is the taking of urine in order

to "discover the personal physiological

secrets which it holds." Capua, 643

F.Supp. at 1513. "This search involves

'probing into an individual's private life'

53a

as surely as if an employer would enter an

employee's home to inspect for drugs or

other contraband or to obtain more informa-

tion about that employee." Feliciano, 661

F.Supp. at 586. Thus, the taking of a

urine sample for drug testing, even in an

unobserved setting, intrudes upon a police

officer's reasonable expectation of

privacy.

The fact that Washington Township's

testing will be limited to the detection of-

illegal drugs does not reduce the in-

trusiveness of the search. The defendant's

assertion that police officers have no

legitimate riont to privacy regarding

illegal drug use is without merit.

Clearly, random drug testing will subject

the majority of innocent police officers to

a highly intrusive search. A search under

54a

the Fourth Amendment must be "justified at

its inception," and “reasonably related in

scope to the circumstances which justified

the interference in the first place." New

Jersey v. T.L.O., 469 U.S. at 341. The

Township's argument attempts to introduce

an element of hindsight into our analysis

which is wholly impermissible under the

Fourth Amendment. The assertion that

individuals Nave no right to object to an

unreasonable search because it is aimed at

uncovering wrongdoing is an argument which

would render the Fourth Amendment's

protection meaningless. The "constitu-

tionality of a search cannot rest on its

fruits." Capua, 643 F.Supp. at 1516.

The defendants' proposed plan indi-

cates that "(d]rug testing shall not be

conducted for the purpose of gathering

55a

evidence for use in criminal proceedings."

The plan states that any employee found to

be using illegal drugs will be referred to

an Employee Assistance Program for "“assess-

ment, counseling, and referral for treat-

ment or rehabilitation as appropriate."

The policy also seems to give the Township

the authority, at its discretion, to

discipline or dismiss such employees. The

proposal indicates that the -Fownship will

initiate action to remove employees who

refuse counseling or rehabilitation or who

are found to use illegal drugs a second

time. |

The Fourth Amendment is: fully ap-

plicable here even though the proposed

searches are not undertaken for the purpose

of uncovering evidence for criminal

prosecution. The Supreme Court "has never

56a

limited the Amendment's prohibition on

unreasonable searches and seizures to

operations conducted by the police.

os

Rather, the Court has long spoken of the

Fourth Amendment's strictures as restraints

imposed upon 'governmental action' -- that

is, ‘upon the activities of sovereign

authority.'" New Jersey v. T.L.0O., 469

U.S. at 335 (quoting Burdeau v. McDowell,

256 U.S. 465, 475 (1921). "The basic

purpose of this Amendment, as siaihune in

countless decisions of this Court, is to

safeguard the privacy and security of

individuals against arbitrary invasions by

governmental officials.... Because the

individual's interest in privacy and

personal security 'suffers whether the

government's motivation is to investigate

violations of criminal laws or breaches of

57a

other statutory or regulatory standards,

.. it would be ‘anomalous to say that the

individual and his private property are

fully protected by the Fourth Amendment

only when the individual is suspected of

criminal behavior.'" New Jersey v. T.L.O.,

469 U.S. at 335 (citations omitted). The

Fourth Amendment protects the Township's

police from any unreasonable searches

designed to uncover evidence of drug use

for disciplinary purposes.

We fully recognize the Township's

legitimate need to ensure that its

employees, especially police officers, do

not engage in the use of illegal drugs, on

or off-duty. Drug abuse by police officers

can certainly impair their performance and

create situations in which members of the

public are placed at risk. This important

58a

need to ensure a drug-free public workforce

has been recognized in virtually all of the

decisions which have reviewed mandatory

drug testing programs. ee e.g., Lovvorn,

647 F.Supp. 879; Penny, 648, F.Supp. at

817.

The standard of reasonable,

individualized suspicion recognizes this

legitimate need of the government and

adequately accommodates it in this case.

See, e.g., Lovvorn, 647 F.Supp. at 883;

Capua, 643 F.Supp. at 1518; Fraternal Order

of Police v. City of Newark, 216 N.J.

Super. at 473.

We have found that a warrant is not

necessary to authorize the drug testing of

suspected police officers because the

evidence of drug abuse is evanescent and

the government has a legitimate need to

59a

ane

uncover such evidence in a timely fashion.

The threshold requirement of reasonable

suspicion to justify such a warrantless

intrusion is an appropriate lessening of

the "probable cause" ordinarily required

for a Fourth Amendment search. This

standard allows the government to act upon

reasonable suspicions based on objective

facts and all reasonable inferences drawn

therefrom. Objective facts leading to

reasonable suspicion may be derived from a

variety of sources, including "physical

observation of police officers, citizens

complaints, tips from other law enforcement

agencies and other means." Penny, 648

F.Supp. at 817. Such methods of arriving

at reasonable suspicion adequately serve

the government's need to identify and test

60a

individual police officers who may be using

illegal drugs.

From the standpoint of protecting a

police officer's reasonable expectation of

privacy, this standard will permit a

magistrate to review, after the fact, the

reasonableness of an ordered search.

Having dispensed with the requirement that

a magistrate approve a warrant prior to

searching, we believe it is important in

this case to establish at least a minimal

standard by which an individual can seek

judicial review of the actions taken

against him. In contrast, under the

proposed random testing plan offered by the

Township, all randomly-conducted searches

would be per se "reasonable" and there

would be no opportunity for review on an

individualized basis. The Township has

6la

failed to demonstrate that it needs to

undertake such "carte blanche" random

searches of its police officers.

Washington Township has based the need

to randomly drug test its police officers

on the fact that drug abuse is a statisti-

cally wide-spread problem in the United

States. No such wide-spread problem has

been identified among the Washington

Township police. There has been no

assertion that any member of the Washington

Township police force has been involved in

illegal drug use. Instead, the Township

has recited a series of statistics regard-

ing the level of illegal drug use in our

society as a whole.

Illegal drug use is indeed a serious

problem in our society. However, we cannot

permit statistics drawn from the mass of

62a

society to authorize the urine testing of

an entire police force which has not been

implicated in any illegal drug use.

In balancing the governmental need

against the private intrusion presented by

random testing, the absence of a "showing

that drug use is widespread among the

affected employees or that it presents an

identifiable risk to the public[,]" is a

factor heavily weighing in favor of the

privacy interests of the individuals

affected. Fraternal Order of Police, 216

N.J. Super. at 472. See also Feliciano,

661 F.Supp. at 588; Lovvorn, 647 F.Supp. at

882; Penny, 648 F.Supp. at 816-17; Capua,

643 F.Supp. at 1516; City of Palm Bay, 475

So.2d at 1325; Caruso, 506 N.Y.S.2d at 795,

799.

63a

The defendant relies on Nat'l Assoc.

of Air Traffic Specialists v. Dole, No.

A87-073, slip op. (D. Alaska 1987). In

Dole, flight service specialists were

required by the Federal Aviation

Administration (FAA) to be tested via an

unobserved urinalysis for a variety of

illegal drugs as part of a yearly medical

examination. The medical examination was

necessary in order for the flight

specialists to retain a medical clearance

to perform safety-related duties within the

FAA. A positive test result in the yearly

physical would "provide reasonabie

suspicion that the employee is a substance

abuser and will subject the employee to

more intrusive observed random urinalysis

testing for a period of one year." Dole,

slip op. at 1-2.

The flight service specialists in Dole

sought a preliminary injunction to halt the

testing program. In denying that request,

Judge Fitzgerald discussed statistical

evidence of drug abuse in society as a

whole, which he found to be "compelling."

Dole, slip op. at 53. However, Judge

Fitzgeratd had already determined that the

"close and pervasive regulation of aviation

related activities is well established and

that air safety relates to serious risks or

hazards which require close and constant

attention." Dole, slip op. at 34. The

judge discussed Rushton and Shoemaker at

length, Dole, slip op. at 29-35, and

concluded that "[i]f horse racing is

recognized as a closely or pervasively

regulated activity, then aviation

activities and the aviation industry are

65a

as much or possibly more closely regu-

lated." Dole, slip op. at 34. We have

already determined that cases such as

Shoemaker and Rushton, dealing with highly-

regulated industries, are inapplicable

here. See supra.

Further, while Judge Fitzgerald found

the statistical evidence of widespread drug

abuse in our society to be "compelling,"

Dole, slip op. at 53, he also observed

that in 1986, forty five air-traffic con-

trollers from fourteen cities had entered

drug rehabilitation programs. The judge

concluded that "[o]bviously, the agency has

evidence of a substance abuse problem

involving personnel performing safety-

related duties." Dole, slip op. at 6.

There has been no similar showing regarding

66a

a drug problem within Washington Township's

police force.

The follow-up "random" testing in Dole

was carried out only on the basis of

individualized suspicion. Individuals who

had already tested positive for drugs ina

yearly physical exam could be re-tested at

random times during the subsequent year.

Dole, slip op. at 2.

Judge Fitzgerald did not review a

proposed plan of the Department of

Transportation which would include truly

random testing of employees in critical

safety and security positions. Dole, slip

op. at 70. Therefore, the Dole court did

not authorize the type of truly random

drug-testing plan proposed here.

The need to ensure that the Township's

police are drug-free is an important one.

67a

Impertant public safety concerns are

associated with a police officer's duties.

However, the need to prevent a major

airline disaster presents a far more

compelling rationale for drug testing than

those presented by the Township of

Washington in this case. Judge Fitzgerald

reviewed the vital role that flight service

specialists play in preventing air

disasters. Dole, slip op. at 49-53.

Air traffic controllers and flight

service specialists hold thousands of lives

in their hands on a daily basis. They are

engaged -in an industry that is already

pervasively regulated. Consequently, their

expectation of privacy with respect to

their employment is already significantly

diminished. There is evidence that drug

abuse is already a serious problem within

68a

their ranks. These compelling circum-

stances are absent in the present case.

Therefore, the task of maintaining a drug-

free police force in Washington Township

may reasonably be pursued by less severe

methods. +/

Washington Township's efforts to

uncover illegal drug use by police will not

suffer because urine testing must be based

on reasonable suspicion. Less intrusive

means, such as direct observations of

1/ For these reasons, our decision in

this case is not inconsistent with the

holding in American Federation of Gov't

Employees v. Dole, No. 87-1815 (D.D.C.

filed Sept. 30, 1987). In that-recent

decision, Judge Gesell approved a

Department of Transportation plan which

permits the random testing of "certain

employees in sensitive positions." Slip

op. at 2. Ninety-four percent of the

"critical positions" subject to testing

were in the aviation industry, e.g. air

traffic controllers and aircraft mechanics.

id. at 3.

69a

officers by their superiors and co-workers,

will be strong components of an on-going

effort to detect drug abuse among officers.

When the objective facts lead to a reason-

able suspicion that a particular officer is

using drugs, the Township may order the

officer to submit to a urinalysis to

confirm or disprove that suspicion.

A random drug testing program is not

the most efficient method of detecting drug

abuse. A random test may reveal that the

individual tested has recently used an

illegal drug. However, by its very

randomness, it is just as likely to subject

an innocent person to testing. It is

evident that random searches of citizens’

homes would not be an efficient means to

search for the evidence of crimes.

Likewise, the energies devoted to a random

70a

drug testing program can be more

efficiently spent examining individual

behavior and other objective facts to

determine when reasonable suspicion

dictates that a search be directed at a

specific officer.

Washington Township's proposed drug

testing plan already has a provision

authorizing the Township to order a

urinalysis when a reasonable suspicion

exists that a particular officer is using

drugs. The existence of this effective and

less intrusive means to the same end

mitigates against the use of more

intrusive, random testing. E.g., Penny v.

Kennedy, 648 F.Supp. at 815.

The defendant attempts to characterize

several appellate court decisions as

representing the "unanimous" approval by

71a

circuit courts of mandatory drug testing

plans. Nothing in the recent decisions of

our appeliiate courts conflicts with the

standards we have established here. No

decision has authorized the random testing

of a wide group of municipal employees such

as the police officers represented here.

In McDonell v. Hunter, the Eighth

Circuit reviewed proposed random urinalysis

searches of individuals employed within

correctional facilities. 809 F.2d at 1304-

1305. The court observed that a prison is

'a unique place fraught with serious

security dangers." Id. at 1308 (quoting

Bell v. Wolfish, 441 U.S. at 559). The

Eighth Circuit found that a prison

employee's reasonable expectation of

privacy is reduced by this unique

Surrounding. See id. at 1308. However,

72a

the court authorized the limited uniform or

random urine testing of only those guards

who have “regular contact with the

prisoners on a day-to-day basis in medium

or maximum security prisons." Id. Even

within the highly-regulated environment of

a prison's confines, the court ruled that

all other prison employees could only be

tested:

"on the basis of a reasonable

suspicion, based on specific

objective facts and reasonable

inferences drawn from those facts

in light of experience that the

employee is then under the

influence of drugs or alcohol or

that the employee has used a

controlled substance within the

twenty-four hour period prior to

the required test. The demand

for urine, blood, or breath

specimen should be made only on

the express authority of the

highest officer present in the

institution, and the specific,

objective facts’ should be

disclosed to the employee at the

time the demand is made." Id. at

1308-1309.

73a

McDonell is persuasive authority that

random drug testing may only be carried out

with respect to a well-defined group of

individuals in the presence of some

compelling government need and a severely

reduced expectation of privacy. The

McDonell court preserved the

—

individualized, reasonable suspicion

standard and buttressed it with con-

Siderable safeguards for most of the

employees within correctional facilities.

Washington Township's police officers

enjoy a greater expectation of privacy than

employees within a correctional facility.

They do not operate within the highly-

regulated and uniquely dangerous

surroundings of such a facility.

Therefore, they are deserving of at least

as much protection as the court in McDonell

74a

afforded to those prison guards who do not

have regular, daily contact with prisoners

in medium and maximum security prisons.

In Division 241 Amalgamated Transit

Union v. Suscy, 538 F.2d 1264 (7th Cir.)

(per curiam), cert. denied, 429 U.S. 1029

(1976), the court permitted a plan which

dikintieon the blood and urine testing of

"lojperating employees directly involved in

any serious accident such as a collision of

trains, collision of buses, derailment,

or serious collision with vehicle or fixed

object...." Id. at 1266. Such tests were

only carried out with the additional

concurrence of two supervisory personnel.

Id. at 1267. We agree that following a

serious mass-transit collision the public

interest is sufficiently compelling to

authorize the testing approved in Suscy.

75a

Absent a serious accident, the regulations

approved in Suscy only permitted the

testing of individual bus drivers who were

suspected of being under the influence of

drugs or alcohol. Id. at 1266. Therefore,

Suscy is not inconsistent with the stan-

dard of individualized, reasonable

suspicion which we have adopted here.

Suscy cannot be used to justify the random

drug testing of an entire police force.

In National Treasury Employees Union

v. Von Raab, 816 F.2d 170, 177 (5th Cir.),

stay denied, 107 S. Ct. 2479 (1987), the

court permitted that a drug urinalysis be

required of customs service employees who

seek a transfer to certain "sensitive

positions." The Von Raab court relied on

several factors which do not exist in this

case. First, the testing was limited only

76a

to those employees who set in motion an

application to be transferred to a "sensi-

tive position." In the present case,

Washington Township wishes to randomly test

all police officers, regardless of their

duties. The tests here would be initiated

by the government's random selection

process, not by an officer's pursuit of a

more "sensitive" position. Second, the Von

Raab court believed that the plan it was

reviewing was "to some extent, consensual

..-[,]" since the affected employees could

avoid the urinalysis by withdrawing their

application for the sensitive position. No

adverse consequences would result from

such a withdrawal. Id. at 178. Washington

Township's random drug testing plan would

permit no such discretion by selected

employees, short of leaving the police

77a

force altogether. Third, Von Raab

analogized employees who seek sensitive

customs service positions involving "drug

interception" to employees engaged in

highly-regulated activities. Id. at 179-

80. The operation of Washington Township's

police force is not analogous to the

operation of a highly-regulated industry.

Thus, Von Raab does not authorize the type

of mandatory, random urinalysis of all

public employees which Washington Township

is proposing here.

We have found no decision by a circuit

court which would justify the random drug

testing of Washington Township's police

force. Quite to the contrary, the trend

within the judiciary has been to require

individualized, reasonable suspicion before

78a

a public employee may be drug tested by

urinalysis. S

MANDATORY ANNUAL URINALYSIS DRUG TESTING

Washington Township's proposed drug

testing policy also requires each municipal

employee to undergo a yearly medical

examination in the month of their birth.

This medical examination would "include" a

urinalysis aimed at detecting illegal drug

use. The proposed policy goes on to say

that “(t]he above guidelines do not in any

way prohibit or regulate the Township from

requiring more than one regularly scheduled

and announced medical examination of

employees of certain municipal departments

to ensure that employees are physically fit

to perform their duties without risk of

harm to themselves or to others." Plan,

section 4, pg. 3.

79a

The plaintiffs contend that the

"medical examinations" called for in the

proposed policy are a mere "pretextual

sham" to accomplish urinalysis drug

testing. The defendant cites Rushton and

Dole as cases which authorized urinalysis

drug testing as part of annual employee

physicals. We have already distinguished

both of those cases on the grounds that

they dealt with employees in highly-

regulated industries.

Section four of the proposed drug

testing policy states simply: "All

municipal employees will be required to

have an annual medical examination as a

condition of employment with the Township

of Washington. The annual medical exam

will include urinalysis testing." Plan,

section 4, pg. 3.

80a

The plaintiffs are not challenging,

and this opinion does not address whether

the Township may require a bona fide yearly

medical examination for all employees. Our

analysis of the plan presented by

Washington Township indicates that it is

plainly a drug testing plan and not a bona

fide medical fitness plan. It is entitled

"Drug Testing Program of the Township of

Washington." Its twenty-five pages are

devoted to the methods by which employees

may be tested via urinalysis for illegal

drug use. The requirement of an annual

medical examination as a condition of

employment is contained in one sentence,

with the following sentence indicating that

this annual exam will include a urinalysis

test for drugs. No other types of physical

tests or guidelines are established to

8la

determine when a municipal employee will be

medically fit for duty.

The issue clearly presented by this

plan is whether it is reasonable, under

these circumstances, to require that all

police officers submit to an annual

urinalysis drug test. In the absence of

reasonable suspicion, a police officer does

not reasonably expect to be subjected to

such a search. The Township attempts to

justify its mandatory drug testing program

by the mere desire to "prevent" a drug

abuse problem. There has been no showing

of a widespread drug abuse problem among

the Washington Township police. The

assertion by plaintiffs, that there is no

evidence of drug abuse whatsoever, has gone

unrebutted.

82a

Based on a weighing of the factors in

this case, it would be unreasonable to

subject all members of the Washington

Township police force to an annual urinaly-

Sis search for drugs. Urinalysis searches

may only be ordered based on

individualized, reasonable suspicion of

illegal drug use. This less intrusive

approach will be an effective means of

uncovering drug abuse by individual police

officers, while respecting the rights of

those officers whose conduct is above such

suspicion.

It is not clear whether section four

of the proposed drug testing plan is

intended to authorize additional "medical

examinations" which would "include" urine

testing. Perhaps the Township has merely

reserved the right to conduct other

83a

“regularly scheduled and announced" medical

tests of certain municipal employees, with

no intent to include drug testing as a part

of those examinations. If that is the

case, this opinion does not deal with the

issue of bona fide medical examinations of

employees.

If, on the silat hand, the Township is

proposing the use of discretionary "medical

examinations" in order to carry out drug

testing, this would violate the standard of

individualized, reasonable suspicion which

must be wae before a police officer may be

subjected to such a search.

Plaintiffs, by virtue of their

stipulation do not challenge that aspect of

the proposed plan which requires the

preemployment drug testing of police

recruits. Therefore, this opinion does not

84a

address that portion of the Township's

proposal.2/

CONCLUSION

In or decision today, certain impor-

tant principles are upheld. Our police

officers are not above the law. They may

not engage in illegal drug use with

impunity. When a reasonable suspicion

exists that one of the officers whom we

rely on to uphold the law is in fact

violating it -- the government may take

effective steps to uncover evidence of that

wrongdoing.

Equally important, however, is the

principle that our public servants are not

.

2/ We note that \at least one court has

found preemployment urine testing to be

permissible under the |Fourth Amendment.

McDonell v. Hunter, 612 F.Supp. 1122, 1130

N.6 (D.C. Iowa 1985), modified on other

grounds, 809 F.2d 1302| (8th Cir. 1987).

854

|

|

|

|

beneath the protection of the law.

individual police officers who carry out

their duties in a manner which is above any

reasonable suspicion of wrongdoing ate

entitled to be free of intrusive searches

of their persons. Just as the police

officer may not search persons on the

street without some reasonable suspicion,

neither is he subject to standardless

searches by his superiors.

Absent a more compelling need than was

present in this case, we are not prepared

to replace the standard of reasonable

suspicion, which a magistrate can review,

with standardless searches initiated by a

random program. The police officers of

86a

Washington Township are deserving of

greater constitutional protection.3/

JUDGMENT AND ORDER

It is the judgment of this court that

the Proposed Drug Testing Policy of

Washington Township violates the Fourth

Amendment insofar as it permits searches

prohibited by the following injunction.

The defendant Washington Township, its

officers, agents, servants and employees,

are hereby enjoined from requiring police

officers to submit samples of their urine

to be tested for the presence of illegal

3/' We note that wa recent decision of

the New Jersey State Appellate Division

has also adopted a "reasonable suspicion"

standard for the drug testing of police

officers. Fraternal Order of Police v.

City of Newark, 216 N.J. Super. 461, 474

(App. Div. 1987). In Fraternal Order,

Judge Gaulkin relied upon Article I, Sec. 7

of the New Jersey Constitution, the

language of which is nearly identical to

the Fourth Amendment. Id. at 477.

87a

drugs, except when there exists an in-

dividualized, reasonable suspicion based on

objective facts and reasonable inferences

drawn therefrom, that a particular police

'officer has engaged in the use of illegal

drugs.

88a

The defendants' motion for summary

judgment is denied. The plaintiffs' motion

for summary judgment is granted, consistent

with the above opinion.

JOSEPH H. RODRIGUEZ

U.S.D.C.

Dated: October 8, 1988

89a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 87-5793

al ’ ~ “~—_

POLICEMAN'S BENEVOLENT ASSOCIATION OF NEW

JERSEY, LOCAL 318 and EDMUND GIORDANO,

Individually, and as President of the

Policeman's Benevolent Association of

New Jersey, Local 318

Vv.

TOWNSHIP OF WASHINGTON (Gloucester County),

a Municipal Corporation Under the Laws of

New Jersey, JOHN ROBERTSON, Mayor, LEONARD

SIMMONS, DANIEL MANGINI, MARGARET SMITH,

RICHARD MARSELLA, and VIRGINIA WEBER,

Council Members

Township of Washington and

John Robertson, Mayor,

Appellants

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY

Argued: May 3, 1988

Before: GIBBONS, Chief Judge, and MANSMANN

and COWEN, Circuit Judges

(Opinion Filed: June 21, 1988)

90a

JOSEPH A. ALACQUA, ESQ. (Argued)

2 John Hancock Officer Center

251 Johnson Road

Turnersville, New Jersey 08012

Attorney for Appellant

RALPH HENRY COLFLESH, JR. ESQ. (Argued)

COLFLESH & BURRIS

10 West Main Street

Moorestown, New Jersey 08057

Attorney for Appellees

JAMES KATZ, ESQ.

TOMAR, SELIGER, SIMONOFF,

ADOURIAN & O'BRIEN

41 South Haddon Avenue

Haddonfield, New Jersey 08033

Attorneys for Amicus Curiae,

American Civil Liberties Union of New

Jersey

OPINION OF THE COURT

GIBBONS, Chief Judge:

The Township of Washington, New

Jersey, appeals from a summary judgment in

favor of the plaintiffs, Policemen's

Benevolent Association of New Jersey, Local

318, and Edmund Giordano, a police officer,

9la

in a suit challenging on Fourth Amendment

grounds the Township's drug testing program

for police officers. The district court

held that a drug testing program involving

any selection method other than

individualized reasonable suspicion

violated the Fourth Amendment, and enjoined

enforcement of the Township's random

testing and annual medical examination

programs for police officers. We will

reverse.

I.

The drug testing policy which the

Township police officers challenge is

embodied in a document entitled Drug

Testing Program of the Township of

Washington, adopted in November, 1986 and

revised February 25, 1987. The police

officers' lawsuit was filed, however, on

92a ates

September 8, 1986, in response to a

memorandum from the Mayor of the Township

to all department heads and municipal

employees announcing that the Township

would begin a mandatory drug testing

program. That announcement, dated August

5, 1986, was apparently made in response to

the call on August 4, 1986 by President

Ronald Reagan for every level of government

to take steps to assure a drug free work

place. The August 5, 1986 announcement

contained no details of the proposed plan.

Nevertheless the complaint alleged that "no

guidelines for the protection of police

employee's privacy were announced nor was

there announced a method of assuring that

said test would accrvrately reflect the

presence of controlled dangerous substances

in an employee's system." Complaint, Count

93a

ieee cmc

I, ¢4. The proposed program was alleged to

violate the First, Fourth, Fifth, Ninth and

Fourteenth Amendments of the United States

Constitution, and Article I, paragraphs 1,

2 and 7 of the New Jersey Constitution.

Injunctive relief and damages were re-

quested solely on behalf of Township police

officers.

The plaintiffs sought pendente lite

relief, but since the complaint was

obviously premature an ex parte temporary

restraining order was dissolved and a

preliminary injunction was denied.

Thereafter the Township formulated and

revised the drug testing program. The

plaintiffs then stipulated that they now

challenge the revised plan as unconstitu-

tional in only three respects:

A. Those aspects which require random

94a

mandatory testing of employees represented

by Plaintiff [police officers];

B. Those aspects which would require

testing as part of any pre-textual physical

examination, i.e., any physical examination

which is not a bona fide medical examina-

tion given in the ordinary course of

business and as a matter of the Township's

policy for its police officers;

C. Those aspects which would require

testing of all employees in mass form as

within the dispositive facts of Capua v.

City of Plainfield (643 F. Supp. 1507

(D.N.J. 1986)].

Stipulation dated May 18, 1987. Thus the

plaintiffs withdrew any challenge to the

plan on the basis of lack of assurance of

privacy, or lack of assurance of

accuracy. 4/

The plan calls for both testing on

reasonable suspicion and random testing.

The effect of the stipulation is to

4/ The plan contains detailed safeguards

for maintaining the privacy of the testing

and test results, and for assuring accuracy

of the test results.

95a

withdraw any challenge to the requirement

of drug testing based on reasonable

suspicion. The plan also requires all

employees to undergo an annual medical

examination, which includes urinalysis.

The effect of the stipulation is to

challenge the annual medical examination

requirement for police officers only to the

extent that it is a pretext for obtaining

body fluids for drug testing. The

reference in the stipulation to Capua v.

City of Plainfield, 643 F. Supp. 1507

(D.N.J. 1986), is to the holding in that

case that a universal mass urinalysis of

fire department employees of the City of

Plainfield was unconstitutional.2/ The

S/ The Capua court held (1) that the

Plainfield plan contained no procedural

protection or confidentiality guarantees,

and (2) that the fire department was not a

(continued...)

~ 96a

stipulation also excludes any challenge to

the plan as applied to applicants for jobs

as policemen. Thus the area of dispute was

by stipulation narrowed to two question:

(1) whether a police department may require

that police officers submit to random

selection for urinalysis which will detect

drug use; and (2) whether a police depart-

ment may require that all police officers

submit to an annual urinalysis which will

detect drug use.

The parties filed cross-motions for

summary judgment. The district court,

relying solely on the Fourth Amendment,

answered both questions negatively and

granted the plaintiffs a summary judgment,

S/ (...continued)

highly regulated industry. 643 F. Supp. at

1519, 1521. In this case the Washington

Township Plan is not challenged on the

first Capua ground.

97a

enjoining Washington Township "from

requiring police officers to submit samples

of their urine to be tested for the

presence of illegal drugs, except when

there exists an individualized, reasonable

suspicion based on objective facts and

reasonable inferences drawn therefrom, that

a particular police officer has engaged in

the use of illegal drugs."

Ii.

This court addressed the problem of

state-imposed compulsory drug testing as a

condition of certain types of employment in

Shoemaker v. Handel, 795 F.2d 1136 (3d

Cir.)-,-eert., denied, 107 S.Ct. 577 (1986).

That case upheld against a Fourth Amendment

search and seizure challenge, requirement

that jockeys employed in the New Jersey

horse racing industry submit to universal

98a

daily hreathalyzer and random urinalysis

testing. Recognizing that both the

universal breathalyzer test and the random

urinalysis involved seizures within the

meaning of the Fourth Amendment, we held

that in a highly regulated industry such as

horse racing the administrative search

exception to the Fourth Amendment warrant

requirement applied. That exception

applied because the state had a strong

interest in conducting an unannounced

search, and because pervasive regulation in

the industry reduced justifiable expecta-

tions of privacy. 795 F.2d at 1142.

Because the Racing Commissions's discretion

was sufficiently circumscribed by the

universal breathalyzer and random selection

urinalysis requirements, we rejected the

contention that the searches in question

99a

involved the exercise of standardless

discretion. Id. at 1143.

The Washington Township Plan, as

interpreted by the district court, involves

both types of selection dealt with in

Shoemaker. The plan's provision for random

selection for urinalysis contains essen-

tially the same procedural and privacy

protections which we upheld in Shoemaker.

The universal annual urinalysis for all

police officers is the equivalent of the

universal daily breathalyzer test for

jockeys. Thus Shoemaker controls on tne

two issues presented in this appeal, unless

we hold that the Washington Township Police

Department is not a highly regulated

industry to which the administrative search

exception applies. The dispositive

questions are (1) whether the state has a

100a

strong interest in determining whether

police officers are using illegal

substances, and (2) whether the pervasive

regulation of the police industry reduced

the justifiable privacy expectations of

those officers.

The district court opined, and we

agree, that "[{t]he need to ensure that the

Township's police are drug free is an

important one. Important public safety

concerns are associated with a police

officer's duties." Despite the recognition

of this strong public interest, however,

the district court concluded that police

officers had expectations of privacy which

mandated that urinalysis be required only

upon individualized reasonable s suspicion

of illegal drug use. Our review of this

legal conclusion is plenary.

101a

Washington Township maintains a police

department pursuant to authority delegated

to it by N.J. Stat. Ann. § 40A:14-118

(West Supp. 1987), which provides:

The governing body of any munici-

pality, by ordinance, may create and

establish, as an executive and

enforcement function of municipal

government, a police force, whether as

a department or as a division, bureau

or other_agency thereof, and provide

for the maintenance, regulation and

control thereof. Any such advance or-

dinance shall, in a manner consistent

with the form of government adopted by

the municipality and with general law,

provide for a line of authority

relating to the police function and

for the adoption and promulgation by

the appropriate authority of rules and

regulations for the government of the

force and for the discipline of its

members. The ordinance may provide

for the appointment of a chief of

police and such members, officers and

personnel as shall be deemed

necessary, the determination of their

terms of office, the fixing of their

compensation and the prescription of

their powers, functions and duties,

all as the governing body shall deem

necessary for the effective government

of the force. Any such ordinance, or

rules and regulations, shall provide

102a

that the chief of police, if such

position is established, shall be the

head of the police force and that he

shall be directly responsible to the

appropriate authority for the

efficiency and routine day to day

operations thereof, and that he

shall, pursuant to policies

established by the appropriate

authority:

a. Administer and enforce rules and

regulations and special emergency

directives for the disposition and

discipline of the force and its

officers and personnel;

b. Have, exercise, and discharge

the functions, powers and duties of

the force;

c. Prescribe the duties and

assignments of all subordinates and

other personnel;

dad. Delegate such of his authority

as he may deem necessary for the

efficient operation of the force to be

exercised under his direction and

supervision; and

e. Report at least monthly to the

appropriate authority in such form as

shall be prescribed by such authority

on the operation of the force during

the preceding month, and make such

other reports as may be requested by

such authority.

103a

As used in this section,

"appropriate authority" means the

mayor, manager, or such other

appropriate executive or

administrative officer, such as a

full-time director of public safety,

or the governing body or any

designated committee or member

thereof, or any municipal board or

commission established by ordinance

for such purposes, as shall be

provided by ordinance in a manner

consistent with the degree of

separation of executive and

administrative powers from the

legislative powers provided for in the

charter or form of government either

adopted by the municipality or under

which the governing body operates.

Except as provided herein, the

municipal governing body and

individual members thereof shall act

in all matters relating to the police

function in the municipality as a

body, or through the appropriate

authority if other than the governing

body.

Nothing herein contained shall

prevent the appointment by the

governing body of committees or

commissions to conduct investigations

of the operation of the police force,

and the delegation to such committees

or commissions of such powers of

inquiry as the governing body deems

104a

necessary to conduct such hearing or

investigation authorized by law.

Nothing herein contained shall prevent

the appropriate authority, or any

executive or administrative officer

charged with the general

administrative responsibilities

within the municipality, from

examining at any time the operations

of the police force or the performance

of any officer or member thereof. In

addition, nothing herein contained

shall infringe on or limit the power

or duty of the appropriate authority

to act to provide for the health,

-safety or welfare of the municipality

in an emergency situation through

special emergency directives.

In one form or another the power to

adopt regulations for the organization and

discipline of a police force has been

conferred on New Jersey municipalities

Since at least 1884. See, e.g., Hermann v.

Town of Guttenberg, 86 N.J.L. 681, 94 A.

308 (1914). See also N.J. Stat. Ann. §

40:48-1 (West Supp. 1987) (general and

regulatory powers of municipalities).

105a

The broad grant of regulatory

authority to Washington Township in the

matter of the government and discipline of

its police force is subject to "general

law," which includes an extensive body of

state statutory law. Among other things

the state regulates hours of service, N.J.

Stat. Ann. §§40A:14-108, 40A:14-132,

minimum salaries, §§ 40A:14-110, 40A:14-

131, age, §40A:14-127, days of employment

and days off, §40A:14-133, emergency

service and compensation for such service,

§40A;14-134, and suspension and removal,

§§40A:14-156, 40A:14-147 -- 14-151. State

law confers on full-time municipal police

officers the full power of arrest for any

crime committed in their presence in the

territorial limits of New Jersey. §40A:14-

152.1. Police officers exercising police

106a

powers outside the territorial limits of

the municipality which employs them are

granted the same statutory immunity from

Suit as they have within that community.

§40A:14-152.2. State law mandates atten-

dance at and regulates the content of

training courses for municipal policemen.

52:17B-66--17B-77.3; N.J. Admin. Code tit.

> §§1-1.1--1-11.12. Under the common law

New Jersey police officers are considered

to be municipal officers as distinguished

from other municipal employees, and thus,

except as modified by legislation, subject

to the "no work no pay rule," and the

residency rule applicable to public

officers. See Township of Springfield v.

Pedersen, 73 N.J. 1, 5-6, 372 A.2d 286, 288

(1977); Trainor v. City of Newark, 145 N.J.

Super. 466, 473-74, 368 A.2d 381, 385 (App.

107a

Div. 1976), certif. denied, 74 N.J. 255,

377 A.2d 661 (1977).

Acting pursuant to the authority

delegated by the legislature, the governing

body of Washington Township has adopted

detailed regulations for the government and

discipline of its police force, of which we

take judicial notice. Fed. R. Evid.

201(b), (f). Those in effect at the time

the challenged plan was adopted were

enacted pursuant to Washington Township

Ordinance No. 39-1974 and Resolution No.

105-1974. The ordinance authorized the

Township Committee "from time [to time] to

make and establish, amend or repeal, by

resolution or ordinance, such rules and

regulations, not inconsistent with the laws

of this state or the ordinances of the

township, for the government and control of

108a

the members of the Police Department, as

may be deemed expedient and proper to carry

out the objects of this ordinance and with

the view to making the Police Department

and all of the officers and members thereof

efficient, vigilant, prompt and useful to

the township." Ordinance No. 39-1974, § 19-

4. The powers and duties of police

officers are specified in section 19-5.

These include the power and duty

to keep order in all public places of

this township; to prevent, restrain

and suppress any riot, row, distur-

bance, disorderly assembly or breach

of the peace .. ., to restrain

vagrants, mendicants and street

bargainers; and to require any persons

unnecessarily congregated upon the

Sidewalks or corners of the street to

disperse, and if they refuse, to

arrest them.

Section 19-5 also provides that members of

the Police Department shall devote full

time and attention to the service of the

109a

A

Department, and although hours are allotted

for the performance of regular tours of

duty, “officers are considered at all times

available for duty and must act promptly at

any time their services are required,

except when on authorized leave or in the

event of disability." The ordinance cross-

references to Department Rules and

Regulations, the current version of which

was adopted by Resolution No. 105-1974.

This 72 page manual in a forward states:

The success of a police department in

the performance of its duties is

largely measured by the degree of -

support and cooperation it receives

from the people of the community which

it serves. It is of paramount

importance that we secure the

confidence, respect, and approbation

of the public. The cultivation of

such desirable attitudes is dependent

upon proper performance of duty by

all the members of the department.

Chapters 1 and 2 of the regulations set

forth the organizational structure of the

110a

Department, which in broad terms may be

described as quasi-military. Chapter 3

sets forth General Rules and Regulations;

Chapter 4, Personnel Regulations; and

Chapter 5, Disciplinary Regulations. Among

the General Rules and Regulations, those

particularly relevant to the question

whether police officers may have lowered

expectations of privacy because they have

chosen to enter a highly regulated industry

include:

3:1.1 Standard of Conduct. Members

and employees shall conduct their

private and professional lives in such

a manner as to avoid bringing the

department into disrepute.

3:1.6 Duty Responsibilities. Members

of the department are always subject ia

to duty although periodically relieved

of its routine performance.

They shall, at all times, respond to

the lawful orders of superior

officers and other proper authorities

as well as calls for police assistance

from citizens. Proper police action

lila

must be taken whenever required. The

administrative delegation of the

enforcement of certain laws and

ordinances to particular units of the

department does not relieve members of

other units from the responsibility of

taking prompt, effective police action

within the scope of those laws and

ordinances when the occasion so

requires. Members assigned to special

duties are not relieved from taking

proper action outside the scope of

their specialized assignment when

necessary.

3:1.26 Debts - Incurring and Payment

(D) Members and employees shall

pay all just debts and legal

liabilities incurred by then.

3:1.27 Intercession -- Soliciting.

Members and employees shall not

solicit anyone to intercede with the

Chief of Police, Mayor, or members of

the Township committee in relation to

promotion assignments, disposition of

pending charges, or findings ina

department trial or other related

matter.

3:1.28 Persons and Places of Bad

Reputation. Member [Sic] and

employees shall not frequent places of

bad reputation, nor associate with

persons of bad reputation, except as

may be required in the course of

police duty.

112a

3:1.19 Withholding Information.

Members and employees shall not, at

any time, withhold any information

concerning criminal activity.

321-30 Reporting Violations of Laws,

Ordinances, Rules or Orders. Members

and employees knowing of other members

or employees violating laws,

ordinances, or rules of the

department, or disobeying orders,

shall report same in writing to the

Chief of Police through official

channels. If the member or employee

believes the information is of such

gravity that it must be brought to the

immediate personal attention of the

Chief of Police, official channels

may be bypassed.

3:2.2 Alcoholic Beverages and Drugs.

(A) No member or employee of the

department will appear for or be

on duty under the influence of

liquor or drugs or be unfit for

duty because of their excessive

use.

(B) Members or employees of the

department shall not drink any

kind of intoxicating beverage

while on duty or take any drugs

not duly prescribed and necessary

for health at any time.

ll3a

EE

(C) Employees of the department

shall refrain from drinking in-

toxicating beverages for a period

of at least four (4) hours before

going on duty.

(D) No member of the department

shall, at any time when in uniforn,

except in the performance of duty,

enter any place in which

intoxicating liquor is served.

(E). Intoxicating beverages may

not be consumed at any police

station.

(F) Members and employees shall

not bring into or keep any in-

toxicating liquor or drugs on

department premises except when

necessary in the performance of a

police task. Liquor or drugs

brought into department premises

in the furtherance of a police

task shall be properly identified

and stored according to department

policy.

3:2.5 Physical Fitness For Duty.

Members shall maintain good physical

condition so that they can handle the

strenuous physical contact often

required of a law enforcement officer.

3:2.6 Loitering. Members on duty or

in uniform shall not enter theatres or

other public places except to perform

a police task. Loitering and

ll4a

unnecessary conversation in such

locations are forbidden. Members and

employees off duty and not on any

official standby shall not loiter in

police department areas.

3:2.7 Smoking While on Duty.

Members shall not smoke on duty while

in direct contact with the public nor

when in uniform in public view, except

that smoking is permitted in public

view at mealtimes and while patrolling

in police automobiles at which times

it shall be as inconspicuous as

possible.

7. &

3:3.1 Regulation Uniforms Required.

All members shall maintain regulation

uniforms. Uniforms shall be kept

neat, clean, and well-pressed at all

times.

3:3.2 Manner of Dress On Duty.

Normally members will wear the duty

uniform on a tour of duty; however,

commanding officers may prescribe

other clothing as required by the

nature of the duty which a particular

member is assigned. Employees will

wear and maintain an employee uniform

when so directed by the Chief of

Police.

|

3:3.3 Wearing or Carrying Badge or

I.D. Card. A member, when in

uniform, shall wear the regulation

115a |

ee

badge on the outside of the outermost

garment over the left breast and

always in sight. When not in uniform

or off duty, he shall carry his badge

or I.D. Card in his pocket.

3:3.4 Wearing of Name Badge. A

member, when in uniform, shall wear

the regulation name badge on his

uniform shirt or dress jacket,

whichever is outermost, in accordance

with department instructions.

* & 2

3:3.8 Carrying Equipment Off Duty.

When off duty, each member will carry

or have in his immediate possession,

his badge, department revolver, or a

pistol or revolver of not less than

.32 caliber as authorized by the

department, and the identification

card. This rule shall not apply when

members are engaged in sports and

activities of such a nature as to make

it impractical.

3:3.9 Civilian Clothing--Manner of

Dress. Male members and employees

permitted to wear civilian clothing

during a tour of duty shall wear

either a business suit or sport coat

with slacks. A dress-type shirt with

tie shall be worn. Commanding

officers may prescribe other types of

clothing when necessary to meet a par-

ticular police objective. Female

members and employees permitted to

116a

wear Civilian clothing shall conform

to standards normally worn by office

personnel in private business firms,

unless otherwise directed.

x kk

3:3.12 Personal Appearance. Every

member and employee of the

department, while on duty, must at

all times be neat and clean in

person, his clothes clean and

pressed, and his uniform in

conformity with the rules and

regulations. He shall, as often as

necessary, examine and clean his

equipment and keep it always in good

serviceable condition. Male members

and employees shall conform to the

following additional standards of

appearance:

(A) Hair shall be evenly trimmed

at all times while on duty. The

hair shall at no point extended

downward over the shirt collar in

normal posture.

(B) Sideburns shall not extend

below the bottom of the ear. The

maximum width at the bottom of the

sideburns shall not exceed 1 3/4

inch.

(C) A clean-shaven appearance is

required except tnat mustaches are

permitted. Mustaches shall be

neatly trimmed and shall not extend

117a

more than 1/2 inch beyond the

corners of the mouth nor more than

1/4 inch below the corners of the

mouth. Remainder of the face shall

be clean shaven.

(D) Beards shall not be per-

mitted.

(E) Personnel with a medical

condition which precludes shaving

shall be required to present a

written statement, signed by a

medical doctor, verifying such

condition.

x k

3:8.3 Use of Derogatory Terms.

Members and employees shall:

(A) Neither speak disparagingly of

any race or minority group nor

refer to them in insolent or

insulting terms of speech, whether

prisoners or otherwise.

(B) Neither use uncomplimentary

terms of speech when referring to

any prisoner or other person nor

willfully antagonize any person

with whom he comes in contact.

n° Ss *

3:10.1 Conduct Toward the Public.

Members and employees shall be

courteous and orderly in their

118a

dealings with the public. They shall

perform their duties quietly,

avoiding harsh, violent, profane, or

insolent language and shall always

remain calm regardless of

provocatioi. Upon request, they are

required to supply their names and

badge numbers in a courteous manner.

They shall attend to requests from the

public quickly and accurately,

avoiding unnecessary referral to other

parts of the department.

3:10.2 Impartial Attitude. All

members, even though charged with

vigorous and unrelenting enforcement

of the law, must remain completely

impartial toward all persons coming to

the attention of the department.

VIolations of the law are against the

people of the state and not against

the individual officer. All citizens

are guaranteed equal protection under

law. Exhibiting partiality for or

against a person because of race,

creed, or influence is conduct

unbecoming an officer. Similarly,

unwarranted interference in the

private business of others when not in

the interests of justice is conduct

unbecoming an officer.

3:10.3 Disparaging Nationality,

Race, or Creed. Courtesy and

civility toward the public is

required of all member of the

department. Members shall not use

words which humiliate, disparage,

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demean, degrade, ridicule, or insult a

person because of his race, creed,

color, national origin, or ancestry.

3:10.8 Commercial Testimonials.

Members and employees shall not

permit their names or photographs to

be used to endorse any product or

service which is in any way connected

with law enforcement without the

permission of the Chief of Police.

They shall not, without the permission

of the Chief of Police, allow their

names or photographs to be used in any

commercial testimonial which alludes

to their positions or employment with

the department.

3:10.9 Public Appearance Requests.

All requests for public speeches,

demonstrations, and the like, will be

routed to the Chief of Police for

approval and processing. Members and

employees directly approached for this

purpose shall suggest that the party

submit his request to the Chief of

Police.

Among the Personnel Regulations one,

bearing particularly on the police

officer's diminished lowered expectation of

privacy, reads: :

4:1.1 (G) He shall submit to and pass

such physical examination as may be

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prescribed by the Chief of Police with

the approval of the Township

Committee.

(H) He shall submit to and pass

such written, oral, psychiatric,

physiological, or performance

evaluation tests as are prescribed

by the Chief of Police with the

approval of the Township

Committee.

These statutes and regulations speak

for themselves. They establish that the

police industry is probably the most highly

regulated, with respect to performance of

its employees, of any industry in New

Jersey. When compared with the history of

regulation held in Shoemaker to be suffi-

cient for application of the administrative

search exception, the occupation of police

efficer is far more intensely regulated.

The Washington Township police officers are

members of quasi-military organizations,

called upon for duty at all times, armed at

12la

almost all times, and exercising the most

awesome and dangerous power that a democra-

tic state possesses with respect to it

residents -- the power to use lawful force

to arrest and detain them. The need ina

democratic society for public confidence,

respect and approbation of the public

officials on whom the state confers that

awesome power is significantly greater than

the state's need to instill confidence in

the integrity of the horse racing industry.

The plaintiffs' efforts to distinguish

Shoemaker are unavailing. That case

controls, and requires the reversal of the

summary judgment in their favor.

Plaintiffs' remaining arguments simply

dispute the Shoemaker precedent. This

panel is not free, however, to disregard

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8/ Other courts have followed it. See,

e.g., National Treasury Employees Union v.

Von Raab, 816 F.2d 170, 179-80 (5th Cir.

1987) (analogizing Customs Service to

highly regulated industry), cert., granted,

108 S. Ct. 1072 (1988); McDonnell v.

Hunter, 809 F.2d 1302, 1308 (8th Cir. 1987)

(correctional officers); Rushton v.

Nebraska Pub. Power Dist., 653 F. Supp.

1510, 1524-25 (D. Neb. 1987) (nuclear power

plant employees). But see e.g., Railway

Labor Executive's Ass'n v. Burnley, 839

F.2d 575, 585 (9th Cir. 1988) (distinguish-

ing Shoemaker); American Fed'n of Gov't

Employees v. Weinberger, 651 F. Supp. 726,

734-35 (S.D. Ga. 1986) (distingvishing and

criticizing Shoemaker); Fraternal Order of

Police, Newark Lodge No. 12 v. City of

Newark, 216 N.J. Super. 461, 469, 524 A.2d

430, 434-35 (App. Div. 1987) (distinguished

Shoemaker, but did not reach federal

constitutional issue); Caruso v. Ward, 133

Misc. 2d 544, 506 N.Y.S.2d 789, 798 (N.Y.

Sup. Ct. 1986) (distinguishing Shoemaker),

arr’s. 131 A.B.24 214, 520 W.¥.8.2G@ 351

(N.Y. App. Div. 1987).

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IIl.

The parties are in agreement that

there are no material issues of disputed

fact. On the present record the Township

is entitled to a judgment in its favor on

the plaintiffs' Fourth Amendment claim.

The district court did not address the

plaintiffs' contention that the plan also

violated Article I, paragraphs -1, 2 and 7

of the New Jersey Constitution. We express

no view on the question whether the New

Jersey Constitutional provisions on which

the plaintiffs rely would afford greater

protection from random or universal

mandatory urinalysis of police officers

than does the Fourth Amendment. 2/ The

L/ See Fraternal Order of Police, Newark

Lodge No. 12 v. City of Newark, 216 N.J.

Super. 461, 477, 524 A.2d 430, 438-39 (App.

Div. 1987).

124a

judgment appealed from will be reversed and

the case remanded for further proceedings

consistent with this opinion.

125a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 87-5793

POLICEMEN'S BENEVOLENT ASSOC. | ~

OF NEW JERSEY, LOCAL 318,

Appellees

Vv.

TOWNSHIP OF WASHINGTON,

Appellant

SUR PETITION FOR REHEARING

Present: GIBBONS, Chief Judge, SEITZ,

HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON,

MANSMANN, GREENBERG, HUTCHINSON,

SCIRICA, AND COWEN, Circuit Judges.

The petition for rehearing filed by

appellant in the above entitled case having

been submitted to the judges who parti-

Ccipated in the decision of this court and

to all the other available circuit judges

of the circuit in regular active service,

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and no judge who concurred in the decision

having asked for rehearing, and a majority

of the circuit judges of the circuit

in regular active service not having voted

for rehearing by the court in banc, the

petition for rehearing is denied.

By the Court,

Chief Judge

Dated: July 28, 1988

i27a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 87-5793

POLICEMAN'S BENEVOLENT ASSOCIATION OF

NEW JERSEY,

LOCAL 318 and EDMUND GIORDANO,

Individually, and as President

of the Policeman's Benevolent

Association of New Jersey, Local 318

Vv.

TOWNSHIP OF WASHINGTON (Gloucester County),

a Municipal Corporation Under the Laws

of New Jersey, JOHN ROBERTSON, Mayor,

DANIEL MANGINI, MARGARET SMITH, RICHARD

MARSELA, and VIRGINIA WEBER, Council

Members

Township of Washington and

John Robertson, Mayor,

Appellants

(D.C. Civil No. 86-3525)

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW JERSEY

Present: GIBBONS, Chief Judge, MANSMANN

and COWEN, Circuit Judges

128a

JUDGMENT

This cause came on to be heard on the

record from the United States District

Court for the District of New Jersey and

was argued by counsel May 3, 1988.

On consideration whereof, it is now

here ordered and adjudged by this Court

that the judgment of the said District

Court, entered October 8, 1987, be, and the

same is hereby reversed and the cause

remanded to the said District Court for

further proceedings consistent with the

129a

opinion of this Court. Costs taxed

against the appellees.

ATTEST:

Sally Mrvos,

Clerk

June 21, 1988

Certified as a true copy and issued in lieu

of a formal mandate on August 5, 1988

Test:

Chief Deputy Clerk, United States Court of

Appeals, for the Third Court

130a