Caruso v. Ward

• Decision Date: 05 November 1987
• Citation: 520 N.Y.S.2d 551,131 A.D.2d 214
• Parties: , 44 Empl. Prac. Dec. P 37,504, 2 IER Cases 1057 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- Respondents, 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 Department Organized Crime Control Bureau, Edward I. Koch, as Mayor of the City of New York and The City of New York, Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 551

520 N.Y.S.2d 551

131 A.D.2d 214, 44 Empl. Prac. Dec. P

37,504, 2 IER Cases 1057

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- Respondents 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 Department Organized Crime Control Bureau, Edward I. Koch, as Mayor of the City of New York and The City of New York, Respondents-Appellants.

Supreme Court, Appellate Division,

First Department.

Nov. 5, 1987.

Michael S. Adler, of counsel (Francis F. Caputo, with him, on brief; Frederick A.O. Schwarz, Jr., New York City, attorney), for respondents-appellants.

Raymond E. Kerno, of counsel (Richard Hartman, Little Neck, attorney), for petitioners-respondents.

Before MURPHY, P.J., and ROSS, MILONAS, ROSENBERGER and SMITH, JJ.

SMITH, Justice.

Respondents appeal from an order of the Supreme Court, entered on July 7, 1986, which enjoined them from implementing New York City Police Department Interim Order No. 36 which was issued on or about June 2, 1986. 133 Misc.2d 544, 506 N.Y.S.2d 789. Said Order No. 36 would require current and future members of the Organized Crime Control Bureau (OCCB) to submit to random drug testing without reasonable suspicion. We affirm the grant of the permanent injunction because (1) reasonable suspicion is required before the members of the OCCB can be required to submit to random drug testing, (2) the recent decision in Matter of Patchogue-Medford Congress of Teachers v. Board of Education, 70 N.Y.2d 57, 517 N.Y.S.2d 456, 510 N.E.2d 325 (1987), requires the voiding of Interim Order No. 36 and (3) elementary protections of privacy and individual rights are absent from the order.

Interim Order No. 36 would require any police officer assigned to the OCCB to submit to drug testing at any time and without the normal requirement of a showing of reasonable suspicion of drug use. Specifically, Interim Order No. 36 requires the following: (1) All applicants for assignment to the OCCB would be required to submit to drug testing as a condition of such assignment. (2) Members submitting applications would be required to sign a form stating that they understand that drug testing is a part of the application process and a condition for continued assignment to the OCCB. Initial screening or testing could occur any time after the assignment and subsequent testing could occur periodically. (3) Members already assigned to the OCCB would be required to sign a form stating that they understand that drug screening is a condition of continued assignment to the OCCB. They would be subject to periodic testing as long as they are assigned to the OCCB. If a current member refused to sign the form, he or she would be immediately transferred from the OCCB. (4) Any applicant or member of the OCCB who, having signed the form, later refused to undergo testing would be suspended and the refusal would be grounds for dismissal from the Police Department.

The petitioners do not object to drug screening in order to be assigned to the OCCB, nor do they object to drug testing as a part of an annual physical exam. They claim, however, that to require members of the police department who are assigned to the OCCB to undergo random drug testing without reasonable suspicion is a violation of their rights under the Fourth Amendment to the Constitution of the United States and Article 1, § 12 of the Constitution of the State of New York.

A number of cases have held that reasonable suspicion is required before urine testing of members of a police department can be ordered. Turner v. Fraternal Order of Police, 500 A.2d 1005 (D.C.Ct. of App.1985) (regulation for drug testing based on reasonable suspicion upheld); City of Palm Bay v. Bauman, 475 So.2d 1322 (Dist.Ct.App.Fla.1985) (Police Department could order urine testing on basis of reasonable suspicion); Capua v. City of Plainfield, 643 F.Supp. 1507 (D.N.J.1986) (mass testing of urine of members of police department in absence of reasonable suspicion violated the Fourth Amendment); Penny v. Kennedy, 648 F.Supp. 815 (E.D.Tenn.1986) (testing of urine of police officers without reasonable suspicion enjoined); Bostic v. McClendon, 650 F.Supp. 245 (N.D.Ga.1986) (mass testing of urine of police officers without reasonable suspicion violated Fourth Amendment); The Fraternal Order of Police, Newark Lodge No. 12 v. The City of Newark, 216 N.J. Super. 461, 524 A.2d 430 (App.Div.1987) (city directive requiring all members of narcotics unit to submit to urine testing without probable cause or reasonable suspicion violated state constitution). We conclude that it is not constitutionally permissible to do away with a requirement of reasonable suspicion where drug testing can be a part of an annual physical examination and drug testing is required prior to entry to the OCCB.

In the the case of Matter of Patchogue-Medford Congress of Teachers v. Board of Education, supra., the New York State Court of Appeals considered the constitutionality of a policy which required all probationary teachers to submit to urinalysis to detect potential drug use. The Court held that such testing did not satisfy the requirements of the State and Federal Constitutions. The Court concluded that the government's requirement that a person submit to urinalysis constituted a search and seizure for which reasonable suspicion was required. In reaching this conclusion the Court rejected the school district's argument that requiring a urine sample did not involve a search since urine, unlike blood, may be obtained without invading a person's body. The Court determined the test to be intrusive and an invasion of privacy by its very nature, and in the manner in which a sample is obtained.

In determining that reasonable suspicion, rather than probable cause, must exist to justify the search, the court reasoned that teachers have a diminished expectation of privacy since the government is entitled to inquire into their physical fitness to perform as teachers. The school district conceded that it did not have reasonable suspicion to believe that all or any of its probationary teachers were drug abusers. It did, however, argue that reasonable suspicion is not required when a public employer decides to test all employees in a particular category for potential drug abuse. It attempted to draw an analogy to random searches at police check points. While acknowledging that the courts have sanctioned certain types of random searches when the privacy interests are minimal, the government's interest is substantial, and safeguards are provided to insure that an individual's reasonable expectation of privacy is not subjected to unregulated discretion, the court noted that the test failed these requirements.

The Patchogue case requires that reasonable suspicion be established here before a member of the OCCB can be required to undergo drug testing.

In addition to the absence of reasonable suspicion as a condition for drug testing and the Patchogue case, there is a third reason why Interim Order No. 36 is invalid. That reason is the total absence of safeguards and protection for privacy in the Order. This becomes clear when Interim Order No. 36 is compared with Interim Order No. 13, promulgated by the New York City Police Department on or about February 19, 1985, and with the case of National Treasury Employees Union and Argent Acosta v. William Von Raab, 816 F.2d 170 (5th Cir.1987).

Interim Order No. 13, which was in effect at the time of the promulgation of Interim Order No. 36 and which continues in effect today, mandates drug testing where there is reasonable cause to believe that any police officer is wrongfully using drugs. The Order also contains a number of safeguards to protect the individual affected. Specifically, Interim Order No. 13 states the following: (1) It is a mandate of the police department that its members not engage in illegal drug usage. (2) A Dole Test will be utilized by the Police Department "to detect the presence of drugs in the urine of members of the service suspected of illegal drug usage." A Dole Test will be administered "when there is a reasonable basis to believe that an individual member of the service (uniformed or civilian) is wrongfully using drugs." When there is a reasonable basis to suspect drug usage, the member of the Police Department must take a Dole Test as directed. Refusal would result in suspension and subsequent charges.

The safeguards of Interim Order No. 13 for a member of the Department suspected of drug usage are present in every phase of the investigation, to wit: (1) If a member of the service "has reasonable basis" to believe that another member of the service is illegally using drugs, he or she must notify the commanding officer or duty captain, who, in turn, must notify the Internal Affairs Division, Action Desk and comply with any instructions received. Where the observations of a member of the service formed the basis for the belief that another member is using drugs, two supervisors must observe the suspected drug abuser. (2) The supervisory officer assigned to conduct the investigation must prepare a case folder and document all aspects of the investigation. (3) A Dole Test is administered only after the investigating supervisor has conferred with and obtained the approval of an attorney in the Department Advocate's Office. (4) The Dole Test is administered by the Health Services Division and certain information (including the name of the attorney in the Department Advocate's Office, a name of the witness to the test and the results of the test) must be recorded in a Dole Test Log. (5) Where the Dole Test...