Longo v. Dolce

• Decision Date: 02 August 1993
• Citation: 600 N.Y.S.2d 962,192 A.D.2d 157
• Parties: In the Matter of Edward T. LONGO, Petitioner, v. John M. DOLCE, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 962

600 N.Y.S.2d 962

192 A.D.2d 157

In the Matter of Edward T. LONGO, Petitioner, v. John M. DOLCE, etc., et al., Respondents.

Supreme Court, Appellate Division Second Department.

Aug. 2, 1993.

Servino & Seymour, White Plains (Anthony J. Servino, of counsel), for petitioner.

Anthony J. Grant, Corp. Counsel, White Plains (Daniel K. Spencer, of counsel), for respondents.

Before SULLIVAN, J.P., and LAWRENCE, COPERTINO and SANTUCCI, JJ.

PROCEEDING pursuant to CPLR article 78 to review a determination of the respondent John M. Dolce, Commissioner of Public Safety of the City of White Plains, dated July 11, 1990, which, after a hearing, dismissed the petitioner from his position as a firefighter for the City of White Plains Fire Department.

PER CURIAM.

In this proceeding we are asked to consider the constitutionality of a urinalysis test administered to the petitioner two days after he was arrested for driving while intoxicated.

The petitioner, Edward T. Longo, is a firefighter in the employ of the City of White Plains Fire Department. On December 19, 1989, while off-duty, the petitioner was involved in a serious automobile accident when the vehicle he was operating crashed into the rear of another car which was stopped for a red light. The petitioner was able to extricate himself from the vehicle and was standing at the side of the road when a City of White Plains police officer arrived upon the scene. The driver of the vehicle that was struck and another witness, both of whom were standing with the petitioner, insisted that the petitioner was intoxicated. Although the petitioner refused to submit to a blood-alcohol test, the police "Report of Refusal to Submit to Chemical Test" stated that the petitioner was incoherent and smelled of alcohol. The petitioner was arrested and charged with operating a motor vehicle while intoxicated (see, Vehicle and Traffic Law § 1192[2].

The day following the accident, the respondent John Cullen, the Fire Chief of the City of White Plains Fire Department, advised Carmine Motto, the Deputy Commissioner of the City of White Plains Department of Public Safety, of the petitioner's accident. Motto wanted to determine that the petitioner was not using drugs and to that end he directed Chief Cullen to order the petitioner to give a sample of his urine for testing purposes. The petitioner was informed that if he did not provide the sample he would be suspended. The sample was obtained on December 21, 1989, two days after the accident, at the petitioner's home while the petitioner was off-duty. Upon analysis, the petitioner's urine sample was found to contain THC, a metabolite of marihuana.

As a result of the petitioner's arrest for driving while intoxicated and the subsequent positive urinalysis, a series of departmental charges were brought against him. These charges were amended when a subsequent investigation revealed that the petitioner had never informed the Fire Department about a 1984 arrest in Florida for "driving while intoxicated" to which the petitioner pleaded nolo contendere, and which resulted in the suspension of his driver's license.

Thereafter, an administrative hearing was held on all charges. During the hearing the Hearing Officer received into evidence the results of the urinalysis test administered to the petitioner. At the conclusion of the hearing, the Hearing Officer found the petitioner not guilty with respect to those charges brought as a result of the December 1989 arrest for driving while intoxicated. However, with respect to those charges based upon the marihuana-positive urinalysis test result, and the charges based upon the petitioner's 1984 Florida conviction for driving while intoxicated, as well as his failure to inform the Department about that arrest and conviction, the petitioner was adjudged guilty of violating various Department rules. As a result, the Hearing Officer recommended that the petitioner be dismissed from service as a White Plains firefighter. Thereafter, the respondent John Dolce, Commissioner of Public Safety of the City of White Plains, adopted the Hearing Officer's findings and recommendations in their entirety, and, by a final determination dated July 11, 1990, dismissed the petitioner, effective immediately.

The petitioner then commenced a proceeding pursuant to CPLR article 78 in the Supreme Court, Westchester County, which was transferred to this court pursuant to CPLR 7804(g). The petitioner argues, inter alia, that, at the time of his urine testing, no reasonable suspicion existed that he had used illegal drugs, and, therefore, the testing violated his constitutional right to be secure against unreasonable searches and seizures. However, under the facts and circumstances of this case, we find that the urine test administered to the petitioner was constitutionally permissible.

It is well settled that the collection and subsequent analysis of urine samples are deemed searches within the meaning of the Fourth Amendment (see, Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639; Copeland v. Philadelphia Police Dept., 840 F.2d 1139 (3rd Cir.), cert. denied, 490 U.S. 1004, 109 S.Ct. 1636, 104 L.Ed.2d 153; Matter of Patchogue-Medford Congress of Teachers v. Board of Educ., 70 N.Y.2d 57, 517 N.Y.S.2d 456, 510 N.E.2d 325). It is also clear that, as a general rule, a warrantless search must be based upon probable cause that the person to be searched has violated the law (see, New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720). However, the "showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable" (Skinner v. Railway Labor Executives' Association, supra, 489 U.S. at 624, 109 S.Ct. at 1417). Indeed, the Supreme Court has recognized that "where the privacy interests implicated by the search are minimal, and where an important government interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion" (Skinner v. Railway Labor Executives' Assn., supra, at 624, 109 S.Ct. at 1417; see also, Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660). Moreover, we have previously held that "drug testing in the absence of individualized suspicion is reasonable within the meaning of the Fourth Amendment * * * where, because of a direct bearing of the mental faculties of the public employee on the health and safety of others, a 'triggering event' (see, Skinner v. Railway Labor Executives' Assn., supra; see also, Matter of Seelig v. Koehler, [151 A.D.2d 53,] 65-66, 546 N.Y.S.2d 828), such as an automobile accident (cf., Fiorenza v. Gunn, ...