Norris v. Premier Integrity Solutions Inc.

• Decision Date: 25 May 2011
• Docket Number: No. 09–6252.,09–6252.
• Citation: 641 F.3d 695
• Parties: Norman NORRIS, Plaintiff–Appellant,v.PREMIER INTEGRITY SOLUTIONS, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

641 F.3d 695

Norman NORRIS, Plaintiff–Appellant,

v.PREMIER INTEGRITY SOLUTIONS, INC., Defendant–Appellee.

No. 09–6252.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 20, 2010.Decided and Filed: April 6, 2011.Rehearing and Rehearing En Banc Denied May 25, 2011.*

ARGUED: Gregory A. Belzley, Prospect, Kentucky, for Appellant. Cynthia Blevins Doll, Fisher & Phillips LLP, Louisville, Kentucky, for Appellee. ON BRIEF: Gregory A. Belzley, Prospect, Kentucky, Daniel J. Canon, Clay & Adams PLLC, Louisville, Kentucky, for Appellant. Cynthia Blevins Doll, William C. Vail, Jr., Fisher & Phillips LLP, Louisville, Kentucky, for Appellee.Before: MOORE, SUTTON, and FRIEDMAN, Circuit Judges.^**FRIEDMAN, J., delivered the opinion of the court, in which SUTTON, J., joined. MOORE, J. (pp. 703–06), delivered a separate dissenting opinion.

OPINION

FRIEDMAN, Circuit Judge.

The primary issue in this case is whether the appellee Premier Integrity Solutions Inc. (“Premier”) subjected the appellant Norman Norris to an unreasonable search in violation of the Fourth Amendment when it required him to provide a urine sample (for a drug testing) while directly facing a Premier employee. Premier used this “direct observation” method for monitoring the provision of the sample because of the ease with which persons giving a sample could otherwise evade the requirement of supplying a valid one. The district court held that Premier's method of obtaining the urine sample did not constitute an unreasonable search in violation of the Fourth Amendment. We affirm.

I

A. Kentucky police arrested Norris and charged him with sexually abusing his stepdaughter. Norris initially was confined in jail for approximately 30 days, and then spent the next six months in house incarceration after posting bond. At that point he was released from confinement under Kentucky's Pretrial Services Monitored Conditional Release Program (“Pretrial Release Program”). Ky.Rev.Stat. Ann. § 431.064. Under that program persons awaiting trial may be freed from mobility restraint upon agreeing to various judicially-imposed conditions. The criminal charges against Norris ultimately were dismissed.

To participate in the Pretrial Release Program, Norris agreed that he would avoid contact with his stepdaughter and not use illegal drugs or consume alcoholic beverages. He also agreed that he would undergo random drug testing.

Premier, a private corporation, conducts pretrial drug testing for the Kentucky courts. Premier uses a “direct observation” method in obtaining urine samples for testing. Premier requires that a male lower his pants so that its employee may “directly observe the urine coming straight out of the body,” and must “allow collector visibility of the participants [sic] genitalia.” Premier's Executive Vice–President stated that Kentucky judges viewed the direct observation method as “essential”, and that the Kentucky Administrative Office of the Courts approved the protocols that described Premier's method of obtaining the samples.

Norris participated in five drug tests Premier conducted, in each of which he provided a urine sample given while directly facing a Premier employee. Prior to the tests, Norris received from Premier a “Notification of Testing Procedures,” which he signed and which stated that he would be required to “allow the technician full observation” during the testing.

B. Norris filed suit seeking damages in a Kentucky state court against Premier under 42 U.S.C. § 1983, which Premier removed to the United States District Court for the Western District of Kentucky. He alleged that Premier, acting under color of state law, had violated his rights under the Fourth Amendment. He contended that Premier's “direct observation” method of drug testing constituted an unreasonable search and also violated state law.

On cross motions for summary judgment, the district court granted Premier's motion and dismissed the suit. It held that Premier's “direct observation” method of obtaining a urine sample was a reasonable search and therefore did not violate Norris's rights under the Fourth Amendment. Norris v. Premier Integrity Solutions, Inc., No. 3:08CV00209(H), 2009 WL 3334900 at *1 (W.D.Ky. Oct. 15, 2009).

Noting that Norris' “complaint only alleges constitutional violations because of the method of collection, not the fact of collection[,]” the district court applied the “balancing test” for determining the reasonableness of a search under the Fourth Amendment. Id. at *2. The court held that Norris, as a pre-trial detainee who had consented to drug testing, had a diminished expectation of privacy. It described Premier's “direct observation method” as “highly intrusive,” but ruled that Premier's “actions do not intrude significantly or unreasonably on Plaintiff's expectations of privacy.” Id. at *2–3, *6. The court held that the government had a “compelling” interest in using the “direct observation” method, which was utilized “to prevent cheating on drug tests”; it noted that Premier “has presented significant evidence that direct observation is the best, and potentially the only, method for preventing all forms of cheating drug tests.” Id. at *3–4. The court had

little difficulty concluding that direct observation furthers the government's interest in effective drug testing. If the government's interest in conducting the tests is sufficient to allow testing in the first place, certainly the government has a valid interest in ensuring that those tests produce valid and reliable results. If the tests are ineffective, the government's legitimate purposes, such as ensuring pretrial releasees show up for trial, ensuring that no crimes are committed during pretrial release and protecting the public, would be completely thwarted. Given Plaintiff's diminished expectation of privacy based upon alleged prior misconduct and circumstances and the government's compelling interest in ensuring the validity of the testing, the Court finds that the direct observation method of urine collection was reasonable despite its highly intrusive nature.

Id. at *5 (internal citation omitted).

II

Premier makes a preliminary contention that requires little discussion. It argues that as a private party, it was not acting under color of state law, and therefore could not violate Section 1983. The district court assumed without deciding that Premier was acting under color of state law because of the state's involvement with the drug testing. Norris, 2009 WL 3334900 at *1 n. 2.

A private party will be deemed a state actor if there is a “sufficiently close nexus between the government and the private party's conduct so that the conduct may be fairly attributed to the state itself,” Campbell v. PMI Food Equipment Group, Inc., 509 F.3d 776, 784 (6th Cir.2007) (internal citation omitted), or the private party's action is “entwined with governmental policies.” Brentwood Acad. v. Tenn. Secondary Sch., 531 U.S. 288, 296, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (internal citations omitted). Premier conducted the tests for the government after the Administrative Office of the Courts had approved Premier's policies and methods. Premier's Executive Vice President stated that judges in Kentucky viewed the direct observation testing method as “essential.” The relationship between the state and Premier in conducting the tests established that Premier acted under color of state law.

III

A. The Fourth Amendment protects “the people ... against unreasonable searches and seizures.” The Supreme Court has held that “state-compelled collection and testing of urine ... constitutes a ‘search’ subject to the demands of the Fourth Amendment.” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (citing Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)). The question here is whether Premier's search of Norris by requiring him to provide a urine sample under its “direct observation” method was reasonable.

“Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing ... reasonableness generally requires the obtaining of a judicial warrant,” which, in turn, ordinarily requires a “showing of probable cause.” Vernonia, 515 U.S. at 653, 115 S.Ct. 2386. “A search unsupported by probable cause can be constitutional,” however, “ ‘when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’ ” Id. (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)). The Supreme Court has applied the “special needs” doctrine to permit suspicionless searches involving the provision of urine samples. Id.

B. Before both the district court and this court Norris stated that he does not challenge Premier's right to require him to provide a urine sample, but only the way in which it obtained the sample from him. In the district court he stated: “Let it be clear: Plaintiff does not complain ... that he was tested for drugs. The sole issue in this case is whether the manner in which Defendant has chosen to conduct drug-testing” is constitutional. Even if the requirement that Norris submit to random drug testing as a condition of participating in the state's Pretrial Release Program could be viewed as part of a law enforcement program—which seems dubious—the special needs doctrine governs in determining the reasonableness of Premier's “direct observation” method of obtaining the sample which, as noted, is the only issue Norris presents.

The use of that method involves a matter of judicial administration, not law enforcement. The Kentucky court was attempting to determine whether Norris was complying with a critical condition of his participation in the Pretrial Release Program, namely, that he not use narcotic drugs while on pretrial release. Premier's use of the “direct observation” method of...