Caruso v. Ward

• Decision Date: 01 July 1986
• Citation: 506 N.Y.S.2d 789,133 Misc.2d 544
• Parties: , 2 IER Cases 238 In the Matter of the Application of Phil CARUSO, as President of the Patrolmen's Benevolent Association of the City of New York, Inc., and the Patrolmen's Benevolent Association of the City of New York, Inc., Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. Benjamin WARD, as Police Commissioner of the Police Department of the City of New York, the Police Department of the City of New York, the New York City Police Organized Crime Control Bureau, Edward I. Koch, as Mayor of the City of New York and the City of New York, Respondents.
• Court: New York Supreme Court

Page 789

506 N.Y.S.2d 789

133 Misc.2d 544, 2 IER Cases 238

In the Matter of the Application of Phil CARUSO, as President of the Patrolmen's Benevolent Association of the City of New York, Inc., and the Patrolmen's Benevolent Association of the City of New York, Inc., Petitioners For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. Benjamin WARD, as Police Commissioner of the Police Department of the City of New York, the Police Department of the City of New York, the New York City Police Organized Crime Control Bureau, Edward I. Koch, as Mayor of the City of New York and the City of New York, Respondents.

Supreme Court, New York County,

I A S Part 37.

July 1, 1986.

Richard Hartman, Little Neck, for petitioners; Raymond E. Kerno, of counsel.

Frederick A.O. Schwarz Jr., Corp. Counsel, New York City, for respondents; Marilyn Richter, of counsel.

PARNESS, Justice:

Petitioner, as president of the Patrolmen's Benevolent Association, (PBA), and in behalf of its membership seeks an order permanently enjoining respondents, New York City Police Department, (Department) Police Commissioner, (Commissioner) and City of New York (City) from implementing that portion of the Department's Interim Order # 36 which would require current and future members of the Department's Organized Crime Control Bureau, (OCCB) to consent and submit to future random drug testing. Petitioner's collateral application is for a temporary stay pending a resolution of the Improper Practice Petition filed by Petitioner with the New York City Bureau of Collective Bargaining concerning the same Order # 36.

PBA is the duly recognized bargaining agent for all members of the New York City Police Department having the rank of Police Officer and the application is made on behalf of those members currently assigned to the Organized Crime Control Bureau and those who subsequently may come into the Bureau.

The Organized Crime Control Bureau is a division within the Police Department which focuses on narcotics, gambling, prostitution and other forms of organized crime. Service in the Bureau is voluntary and within the Department's discretion. The Bureau has some 1,200 officers who usually serve four year tours. To many, it is a desired assignment presenting a path to advancement within the Department.

On June 2, 1986 Respondent, Department, issued Interim Order # 36 (exhibit A) which in effect provides that applicants to and current members of the OCCB will be required to sign a form which advises them as a condition of initial and continued assignment to the Bureau that they will be required to consent to periodic random drug testing. Essentially, this would require each member, on demand, to submit a urine sample for Dole test analysis. This may take place at any time and is applicable to all officers of any rank within the Bureau.

Order # 36 also provides that current members of OCCB who choose not to execute such forms and subject themselves to random testing will be transferred out of the Bureau without penalty or loss of rank. Once, however, such consent is signed, refusal to comply with the Order would result in disciplinary action by the Department. Any officer after testing who demonstrated positive test findings may be subjected to disciplinary action.

Prior to the issuance of Order # 36 all members of the Department were subject to Interim Order # 13 which required submission to Dole testing where there was a "reasonable belief" that the suspect officer was using drugs. PBA does not contest the right of the Department to have drug testing as part of the screening process of applicants to the Department or any of its bureaus including OCCB. Nor is there objection made to testing as part of a health check-up or where a member is actually suspected of drug use. What is objected to is the elimination in Interim Order # 36 of the "reasonable belief" requirement previously set forth in Interim Order # 13. Such elimination in effect would require OCCB members to submit to periodic random testing at the Department's sole discretion, while testing of other members of the Department remains subject to the "reasonable belief" requirement of Interim Order # 13. This, Petitioner contends, violates OCCB members' constitutional rights under the Fourth and Fourteenth Amendments.

The Fourth Amendment states that:

"The right of the people to be secure in their persons ... 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." U.S. Const.Amend. IV.

Its purpose, thus, is to protect against arbitrary and oppressive governmental action and to thereby protect persons from unreasonable intrusion into their reasonable and legitimate expectations of privacy. U.S. v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977); Bell v. Wolfish, 441 U.S. 520, 588, 99 S.Ct. 1861, 1899, 60 L.Ed.2d 447 (1979); Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968). The proscriptions of the Fourth Amendment are made applicable to the states through the Fourteenth Amendment, Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.

Our first inquiry, therefore, is whether compulsory employee urine testing constitutes a search which may be subject to Fourth Amendment constraints.

Clearly, a person has a legitimate expectancy of privacy in his own body and a right to be free of government intervention therein. Thus, taking blood from the body constitutes a search and seizure within the meaning of the Fourth Amendment, Schmerber v. California, 384 U.S. 757, 766, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908 (1966). Though urine, unlike blood, is routinely discharged from the body so that no actual break in the body surface is required for its extraction, it is discharged in such manner and disposed of in such circumstance in which one clearly has a reasonable and legitimate expectation of privacy. Obviously, one does not expect that he will be made to discharge urine so that it can be analyzed in order to discover the personal physiological secrets it may hold. Thus, as with blood, there is an expectation of privacy concerning the "information" body fluids may hold. Accordingly, it has been uniformly held that compulsory urine testing constitutes a search and seizure within the meaning of the Fourth Amendment. Storms v. Coughlin, 600 F.Supp. 1214, 1218 (S.D.New York 1984); McDonell v. Hunter, 612 F.Supp. 1122, 1127 (1985); City of Palm Bay v. Bauman, 475 So.2d 1322 (District Court of Appeals, Florida, [1985] ); Allen v. City of Marietta, 601 F.Supp. 482, 488-9 (N.D.Ga.1985).

However, not all searches and seizures are prohibited by the Fourth Amendment. Only unreasonable intrusions are proscribed, Carroll v. U.S., 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925). What must be determined is whether the intrusions contained in Interim Order # 36 are, nevertheless, reasonable and thus not violative of the Fourth Amendment.

"Reasonableness" is not susceptible of precise definition but must be determined in each case by balancing the degree of intrusion of the search on the person's Fourth Amendment right of privacy against the need for the search to promote some legitimate governmental interest, Katz v. U.S., 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967); Terry v. Ohio, supra; Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983).

Viewed in this context, we must determine whether the degree or scope of intrusiveness occasioned by compelling members of OCCB to submit samples for urine analysis is justified by an overriding governmental interest which will be promoted thereby.

The first factor in the reasonableness test, the degree of intrusiveness is a relative term. A person's perception as to the scope or degree of any governmental intrusion is ordinarily dependent upon what his legitimate expectancy of privacy is in the area intruded upon. Katz v. U.S., supra 389 U.S. p. 361, 88 S.Ct. at 516. As noted, a person has a legitimate expectancy of privacy in his body fluids. And, as with blood testing, compulsory urine testing has been held sufficiently intrusive to warrant protection under the Fourth and Fourteenth Amendments, Storms v. Coughlin, supra.

Indeed, compelling argument can be made that the urine testing contemplated under Interim Order # 36 presents an even greater intrusion on privacy than does blood testing. Drawing blood is at most a benign procedure. No embarrassment is involved and it is no more invasive or painful than a pin prick. Under the procedure contemplated by respondent, Department, the urine sample must be provided in the presence of a superior officer of the same sex.

Thus, the subject officer would be required to perform before another person what is an otherwise very private bodily function which necessarily includes exposing one's private parts, an experience which even if courteously supervised can be humiliating and degrading, Tucker v. Dickey, 613 F.Supp. 1124, 1130 (W.D.Wis.1985). There is no reason to believe that a police officer would find the procedure any less intrusive than would another citizen.

Respondents contend however, that police officers assigned to OCCB have a diminished expectancy of privacy in this area. It is true that by the very nature of their job, police should anticipate that their employer would have serious concerns that their ability to discharge their duties be not impaired by drugs and should anticipate that the employer may place reasonable conditions on employment including scrutiny for drug use.

However, it is also true that though such expectancy of privacy may be diminished, officers still retain substantial Fourth Amendment rights, ...