# Petition for Writ of Certiorari — Policemen's Benevolent Ass'n, Local 318 v. Township of Washington > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0346%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 490 U.S. 1004 ## Text 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 4a 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, 5a 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 6a 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 7a 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 8a 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 9a 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 10a 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. lla 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- 12a 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. 13a "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 14a 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 15a 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; 16a 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 17a 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 18a 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. 19a 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 20a 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 21a 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 22a 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 23a 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, 24a 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 25a 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- 26a 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 27a 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- 28a 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." 29a 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 30a 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 3la 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 32a 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 33a 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 34a 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 35a 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 36a 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 37a 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. 38a 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 39a 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, ADOURI [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0346%3A1. Public record. Not legal advice.