Petersen v. City of Mesa

Decision Date25 February 2003
Docket NumberNo. 1 CA-CV 02-0016.,1 CA-CV 02-0016.
PartiesCraig W. PETERSEN, Plaintiff-Appellee, v. CITY OF MESA, Defendant-Appellant.
CourtArizona Court of Appeals

Skousen, Skousen, Gulbrandson & Patience, P.C. By David L. Abney, Mesa, Attorney for Plaintiff-Appellee.

City of Mesa Attorney's Office By Rosemary H. Rosales, Catherine M. Bowman, Mesa, Attorneys for Defendant-Appellant.

OPINION

VOSS, Judge.

¶ 1 Craig W. Petersen, a firefighter for the City of Mesa, challenged the constitutionality of the random testing component of the City's proposed Substance Abuse Program Alcohol and Controlled Substance Testing Policy and Procedures (Policy). In awarding summary judgment to Petersen and permanently enjoining the City from implementing the random, suspicionless aspect of the Policy, the trial court relied on Article 2, Section 8 of the Arizona Constitution. In this context, however, we conclude that the strictures imposed by our constitution are no greater than those of the Fourth Amendment of the United States Constitution and that random testing is not an unreasonable search in violation of either constitution. We therefore reverse the summary judgment in favor of Petersen and vacate the injunction.

BACKGROUND

¶ 2 In response to Petersen's complaint for declaratory and injunctive relief, the City filed a motion to dismiss. When both parties submitted additional supporting information, the trial court treated the motion as one for summary judgment. After a hearing, the trial court found that no material facts were in dispute but that the random, suspicionless drug and alcohol testing component1 violated Article 2, Section 8 of the Arizona Constitution. That provision states: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."

¶ 3 The trial court cited State v. Ault, 150 Ariz. 459, 463, 466, 724 P.2d 545, 549, 552 (1986) (Article 2, Section 8 bars admission of evidence seized during illegal search of home), and State v. Tykwinski, 170 Ariz. 365, 371, 824 P.2d 761, 767 (App.1991) (rejecting assertion that Article 2, Section 8, although more extensive than Fourth Amendment, requires individualized suspicion to conduct roadblock stop), in support of its conclusion that Arizona's Constitution "is broader and more explicit than the Fourth Amendment in safeguarding the fundamental liberty of Arizona citizens."2 The court also relied on an Alaska Supreme Court decision that interpreted the Alaska Constitution to bar ongoing random drug testing as overly intrusive of employee privacy because the testing was not based on "predictable, job-related occurrences" and was not implemented in response to demonstrated drug abuse in the workplace.3 See Anchorage Police Dep't Employees Ass'n v. Municipality of Anchorage, 24 P.3d 547, 558-59 (Alaska 2001)

. The trial court concluded that the City failed to demonstrate a compelling interest to justify the intrusion on Petersen's reasonable expectation of privacy and therefore enjoined random, suspicionless testing.

DISCUSSION

¶ 4 In reviewing a trial court's ruling on the reasonableness of a government search, we defer to that court's factual findings, but we determine de novo whether the search was unreasonable and thus violated the Constitution. State v. Adams, 197 Ariz. 569, 572, ¶ 16, 5 P.3d 903, 906 (App.2000).

A. The City's Policy

¶ 5 The stated purpose of the City's Policy is to provide firefighters "with a safe, productive working environment"; to ensure "the safety and well-being of the general public"; to ensure that firefighters "receive educational [sic] and training on substance abuse"; and to ensure that they "are well informed on the hazards of substance abuse and are provided employee assistance as needed."

¶ 6 Firefighters must submit4 to testing of breath or urine5 "on an unannounced and random basis spread reasonably throughout the calendar year." A computer software program selects the employees to be tested. Those selected are not given any advance notice and can be notified immediately before, during, or immediately following work. All tests are to be conducted within thirty minutes of selection, with allowance for travel time to the collection location. When urine is to be collected, the employee may use a private bathroom stall. A monitor inspects the sample for proper color and temperature and then bottles and labels the sample for shipping.

¶ 7 A firefighter who refuses to submit to a test is terminated from employment. A firefighter whose breath test reveals an alcohol concentration of 0.04 or higher or whose urine sample is "positive" for any of several specified drugs is removed from duty and evaluated by a substance abuse professional. Any firefighter who tests positive a second time is terminated from employment. Information in a firefighter's drug testing records is not released outside the department unless the firefighter consents.

B. Article 2, Section 8 of the Arizona Constitution

¶ 8 We first address whether the trial court correctly found that Article 2, Section 8 provides greater protection for privacy rights than the Fourth Amendment in the context of drug testing. In three criminal cases involving warrantless police entry of a home, our supreme court has interpreted the words of Article 2, Section 8, "[n]o person shall be disturbed in his private affairs or his home invaded, without authority of law," to provide an independent state law ground for safeguarding the home and the privacy interests therein against a government search.

¶ 9 In Ault, after noting that the Arizona Constitution "generally ... incorporate[s] federal protections," the court held that Article 2, Section 8 is "specific in preserving the sanctity of homes and in creating a right of privacy." 150 Ariz. at 466, 724 P.2d at 552. Thus, police could not enter a home without a warrant or any exigency, illegally arrest the occupant, and seize evidence in plain view. Id. at 464, 466, 724 P.2d at 550, 552. The court also observed that the inevitable discovery doctrine had been limited to searches of a car and of a hotel room. Id. at 465, 724 P.2d at 551.

¶ 10 Concern that the Fourth Amendment might not bar a warrantless entry for police to "secure" and inspect a home while awaiting a warrant led the court, in State v. Bolt, to clarify that "[s]uch entries are `per se unlawful' under our state constitution." 142 Ariz. 260, 264-65, 689 P.2d 519, 523-24 (1984) (quoting State v. Cook, 115 Ariz. 188, 194, 564 P.2d 877, 883 (1977)). But, the court rejected as "poor judicial policy" adoption of inconsistent state and federal exclusionary rules and held that the state rule would mirror that of the federal courts. Id. at 269, 689 P.2d at 528.

¶ 11 Finally, in State v. Martin, police entered a home and conducted a "sweep" without a warrant. 139 Ariz. 466, 470, 679 P.2d 489, 493 (1984). The court cited the Fourth Amendment's chief purpose, to guard against intrusion of the home and the associated privacy rights of the occupant, id. at 473, 679 P.2d at 496, to hold that under either the federal or state Constitution, the entry was illegal. Id. at 474, 679 P.2d at 497.

¶ 12 Thus, despite suggestions that Article 2, Section 8 may exceed the scope of the Fourth Amendment, in general our courts have found Arizona's Constitutional protection of privacy to be consistent or coextensive with that of the Fourth Amendment. See, e.g., Mazen v. Seidel, 189 Ariz. 195, 199, 940 P.2d 923, 927 (1997)

(holding warrantless entry of rented storage unit by police and their seizure of contraband after firefighters' valid initial entry is permitted by both Arizona Constitution and Fourth Amendment); State v. Krantz, 174 Ariz. 211, 215, 848 P.2d 296, 300 (App.1992) (finding Article 2, Section 8 does not exceed Fourth Amendment and does not forbid warrantless taking of blood to test its alcohol content); State v. Allgood, 171 Ariz. 522, 523-24, 831 P.2d 1290, 1291-92 (App.1992) (noting that more expansive reading of Arizona's Constitution is "generally not applied beyond the home" and that police interception of confrontation call violated neither federal nor state constitutions); State v. Wedding, 171 Ariz. 399, 407, 831 P.2d 398, 406 (App.1992) (distinguishing Bolt, Ault, and Martin as concerned with warrantless entry of a home); State v. Calabrese, 157 Ariz. 189, 190-91, 755 P.2d 1177, 1178-79 (App.1988) (declining to narrow, on Arizona constitutional grounds, right of police to seize evidence found during warrantless search incident to lawful arrest).

¶ 13 While our courts have vigorously guarded the sanctity of the home from warrantless intrusions by law enforcement officers, nothing in the cited cases or in the text of Article 2, Section 8 persuades us that the latter provides more protection than the Fourth Amendment when the government conducts a search of a firefighter's urine for the presence of illegal drugs. See Bolt, 142 Ariz. at 264, 689 P.2d at 523 (recognizing need for uniformity between federal and state courts and that our constitution generally incorporates federal protections); State v. Pelosi, 68 Ariz. 51, 57, 199 P.2d 125, 129 (1948), overruled in part on other grounds, Adams v. Bolin, 74 Ariz. 269, 275, 247 P.2d 617, 621 (1952)

(Article 2, Section 8's purpose is to preserve Fourth Amendment rights); Malmin v. State, 30 Ariz. 258, 261, 246 P. 548, 549 (1926) (although its language may differ from Fourth Amendment, Article 2, Section 8 has "same general effect and purpose" and will be similarly interpreted).

¶ 14 Accordingly, we hold that in the context of the City's drug and alcohol testing program, the bounds of Article 2, Section 8 do not exceed those of the Fourth Amendment. We now turn to whether the random aspect of the testing is an unreasonable search prohibited by the Fourth Amendment and by the coextensive reach of the Arizona Constitution.

C. Validity of Random, Suspicionless Drug...

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