Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark

• Decision Date: 26 March 1987
• Citation: 216 N.J.Super. 461,524 A.2d 430
• Parties: , 44 Empl. Prac. Dec. P 37,374, 2 IER Cases 437 The FRATERNAL ORDER OF POLICE, NEWARK LODGE NO. 12, a not-for-profit corporation of the State of New Jersey, on behalf of its members, et al., Plaintiffs-Appellants, v. The CITY OF NEWARK, a municipal corporation of the State of New Jersey, et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 461

216 N.J.Super. 461

524 A.2d 430, 44 Empl. Prac. Dec. P

37,374, 2 IER Cases 437

The FRATERNAL ORDER OF POLICE, NEWARK LODGE NO. 12, a not-for-profit corporation of the State of New Jersey, on behalf of its members, et al., Plaintiffs-Appellants, v. The CITY OF NEWARK, a municipal corporation of the State of New Jersey, et al., Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Oct. 15, 1986.

Decided March 26, 1987.

Janemary S. Belsole, Paramus, for plaintiffs-appellants (Stern, Steiger, Croland, Tanenbaum & Schielke, attorneys; Janemary S. Belsole and Stuart Reiser, on the brief).

Kathleen C. Goger, Montclair, for defendants-respondents (Furst & Waldman, attorneys).

Robert A. Goodsell, Roseland, for amicus curiae American Civil Liberties Union of New Jersey (Irwin, Post & Rosen, P.A., attorneys).

Before Judges PRESSLER, GAULKIN and ASHBEY.

The opinion of the court was delivered by

GAULKIN, J.A.D.

Plaintiffs brought this action in lieu of prerogative writs to invalidate a directive issued by the City of Newark Police Director mandating that all members of the Narcotic Bureau be subjected to urine testing for drug abuse "both upon transfer [into the Bureau] and at least twice a year afterwards." The Law Division judge sustained the directive. Plaintiffs appeal.

I.

Memorandum 85-259, issued by Police Director Knox on December 10, 1985, reads in its entirety as follows:

1. Narcotic enforcement is the most sensitive and health threatening assignment in policing today. It exposes the Police Officer to certain health hazards that are not necessarily encountered in normal patrol work. The advent of Acquired Immune Deficiency Syndrome, commonly referred to as AIDS, is a prime example of a real health threat.

2. Secondly, Narcotic enforcement is, by its very nature, a sensitive assignment, requiring the highest degree in confidence. Confidence is the key to narcotic investigations; it is not only the trust between the investigator and an informant, it is also faith in performance, ability and the manner in which laws are enforced. Police Officers should bear in mind that they symbolize the dignity and authority of the Law. It is a harsh reality that we, as Police Officers, must maintain standards of conduct that are above that which is expected of the average citizen in order that we maintain the confidence and trust of the public that we serve.

3. These dual concerns, the health of the employee and the trust of the public is of paramount concern to this Department.

4. Effective 0001 hours, December 12th, 1985, all members of the Narcotic Bureau shall be required to take a urinalysis and blood test. Furthermore, any transfer into the Unit shall be predicated upon a successful urinalysis and blood test. Any request of transfer to the Narcotic Bureau shall be forwarded with the understanding that a urinalysis exam and blood test is required as part of the assignment, both upon transfer and at least twice a year afterwards. These exams are to be administered to determine:

a. Health deficiencies

b. Substance abuse

5. Furthermore, all such testing shall be conducted under the supervision of the Police Surgeon or his representative and the Internal Affairs Bureau. All results are to be confidential and forwarded to the Police Director for review. ¹

The Memorandum was delivered to plaintiff Fraternal Order of Police (FOP) on December 12, 1985. Narcotic Bureau officers reporting for duty that afternoon were ordered to provide urine specimens. This action was filed on December 13, 1985. The City was immediately enjoined from any further implementation of the Memorandum; the injunction remained effective throughout the trial proceedings and has been continued pending disposition of this appeal.

The genesis and intended operation of the Memorandum were described by Director Knox in an affidavit. Director Knox was "concerned ... with drug abuse among members of the Police Department" and also "with the public perception with respect to the drug abuse among members of the Police Department." His concern resulted from his "awareness of the extent and seriousness of the problem of drug abuse in society in general, and in Newark in particular, as well as the results of recent urine testing of Police Department recruits[.]" He asserted that the testing of two recent classes of recruits "yielded 5 positive tests for such substances as cocaine, heroin, morphine and barbituates." Director Knox continued that "[p]ublic confidence ... is crucial to effective law enforcement"; such confidence "depends on credibility and the urine testing contemplated by Memorandum 85-259 will go a long way toward reinforcing credibility." In addition, the tests were intended "to serve the interests of public safety and effective law enforcement by deterring drug use."

In a deposition, Director Knox also said that he had received "[s]pecific information from citizens in the community and also from street people" about police officers using controlled dangerous substances, including allegations against two Narcotic Bureau officers. He said he had received information from two commanding officers about the same Narcotic Bureau officers. However, Director Knox said the information received from the commanding officers did not play any role in his issuance of the directive: "I intended to test members of this police department anyway."

As to the intended operation of the tests, Director Knox set forth in his affidavit that the procedures to be used "are the same as those already utilized in testing recruits." Samples would be field-tested first "using the EMIT urine screening program." Those samples which test positive would be forwarded for laboratory testing. All test results would be "confidential," but police officers for whom positive samples are found "will be charged as set forth in the rules and regulations." However, test results "will not be made known to the prosecutor and no criminal charges will be brought."

The issues were presented to the trial judge on the pleadings, affidavits and deposition testimony. In an unreported opinion, the judge concluded that mandatory urine monitoring constitutes a "search" within the meaning of the New Jersey and United States Constitutions but that "there are no constitutional inhibitions against the Director's basic power to issue Memorandum 85-259." ² The judge ordered a hearing, however, "on whether the means of enforcing the Director's order are calculated to show accurately the presence of controlled dangerous substances in the urine, and also whether the tests will be conducted with a minimum possible invasion of the police officer's personalty and privacy."

On June 16, 1986, the trial judge entered final judgment ordering, among other things, that "the acquisition of urine and the testing of urine, if conducted, shall be conducted in accordance with the Methods and Procedures for Urine/Drug Screening" incorporated in the judgment. Those methods and procedures are set forth in Appendix A attached to this opinion. Plaintiffs appeal from that judgment. ³

II.

Plaintiffs' principal contention here, as in the trial court, is that drug/urine testing as authorized by Memorandum 85-259 would constitute an unreasonable search and seizure in violation of Article I, p 7 of the New Jersey Constitution and also of the Fourth Amendment of the United States Constitution, both of which direct that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

The City does not dispute plaintiffs' contention that a governmentally compelled taking of urine is both a "search" and a "seizure" within the meaning of the constitutional provisions. That proposition is uniformly recognized in the reported cases. See e.g. McDonell v. Hunter, 809 F.2d 1302 (8th Cir.1987); Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.1986), cert. den. ---U.S. ----, 107 S.Ct. 577, 93 L.Ed.2d 580 (1986); Nat'l Treasury Employers Union v. Von Raab, 649 F.Supp. 380, 387 (E.D.La.1986); Capua v. City of Plainfield, 643 F.Supp. 1507, 1513 (D.N.J.1986); Allen v. City of Marietta, 601 F.Supp. 482, 488-489 (N.D.Ga.1985); Storms v. Coughlin, 600 F.Supp. 1214, 1218 (S.D.N.Y.1984); City of Palm Bay v. Bauman, 475 So.2d 1322, 1324 (Fla.Dist.Ct.App.1985); Caruso v. Ward, 133 Misc.2d 544, 506 N.Y.S.2d 789, 792 (Sup.Ct.1986). The parties thus properly frame the issue as being whether the search and seizure authorized by the Memorandum would be "unreasonable." ⁴

We start with the principles that a search or seizure based upon a warrant supported by probable cause ⁵ is "presumed to be valid" (State v. Valencia, 93 N.J. 126, 133, 459 A.2d 1149 (1983)), and that a warrantless search is "prima facie invalid unless it comes within one of the specific exceptions to the warrant requirement" of the constitutional provisions. State v. Young, 87 N.J. 132, 141, 432 A.2d 874 (1981). See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). We conclude that the searches and seizures contemplated by the Memorandum do not come within any "specific exception" to the warrant requirement.

Many of the exceptions to the warrant requirement nevertheless require a showing of probable cause. See, e.g., Valencia, 93 N.J. at 136, 459 A.2d 1149 (warrantless search permissible upon showing of exigent circumstances and probable cause); State v. Martin, 87 N.J. at 567, 436 A.2d 96 (warrantless search of automobile permissible if based on probable cause); Young, 87 N.J. at 142, n. 4, 432 A.2d 874 (an arrest made upon probable cause allows a warrantless search of the arrestee's person and immediate vicinity). Other warrantless searches or seizures are lawful on a showing of some individualized suspicion less than probable cause. See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 342, 105 S.Ct. 733, 744, 83 L.Ed.2d 720 (1985...