Petersen v. City of Mesa

• Decision Date: 27 January 2004
• Docket Number: No. CV-03-0100-PR.,CV-03-0100-PR.
• Parties: Craig W. PETERSEN, Plaintiff-Appellee, v. CITY OF MESA, Defendant-Appellant.
• Court: Arizona Supreme Court

83 P.3d 35

207 Ariz. 35

Craig W. PETERSEN, Plaintiff-Appellee, v. CITY OF MESA, Defendant-Appellant.

No. CV-03-0100-PR.

Supreme Court of Arizona, En Banc.

January 27, 2004.

Skousen, Skousen, Gulbrandsen & Patience, P.C. by David L. Abney, Esq., Mesa, for Craig W. Petersen.

City of Mesa Attorney's Office by Deborah J. Spinner, Mesa City Attorney, Rosemary H. Rosales, Catherine M. Bowman, Mesa, for City of Mesa.

OPINION

McGREGOR, Vice Chief Justice.

¶ 1 This case requires us to determine the constitutionality of a city's random, suspicionless drug testing of its firefighters. We exercise jurisdiction pursuant to Article VI, Section 5.3 of the Arizona Constitution, Arizona Revised Statutes (A.R.S.) section 12-120.24, and Rule 23 of the Arizona Rules of Civil Appellate Procedure.

I.

¶ 2 Craig Petersen works as a firefighter for the City of Mesa. In 2001, after Petersen was hired, the City implemented a substance abuse program (the Program) for the Mesa Fire Department. The Program requires testing of firefighters (1) if the Department has reasonable suspicion to believe an individual firefighter has abused drugs or alcohol; (2) after a firefighter is involved in an accident on the job; (3) following a firefighter's return to duty or as a follow-up to "a determination that a covered member is in need of assistance"; and (4) "on an unannounced and random basis spread reasonably throughout the calendar year."

¶ 3 Under the Program's random testing provision, a computer program selects the firefighters to be tested. The Department notifies firefighters of their selection for random testing immediately before, during, or after work; the firefighters are to be tested within thirty minutes of their notification, with allowance for travel time to the laboratory for collection. Once at the laboratory, firefighters are permitted to use private bathroom stalls when providing urine samples, which are then inspected by a monitor for the proper color and temperature.

¶ 4 The laboratory tests the sample for the presence of marijuana, cocaine, opiates, amphetamines, and phencyclidine.¹ The laboratory initially tests the specimens by using an immunoassay test that meets the requirements of the Food and Drug Administration for commercial distribution. The laboratory then confirms all positive test results using the gas chromatography/mass spectrometry technique and reports positive results to a Medical Review Officer (MRO), who has a "detailed knowledge of possible alternate medical explanations." The MRO reviews the results before giving the information to the Department's administrative official. Only confirmed tests are reported to the Department as positive for a specific drug. Before verifying a positive result, however, the MRO must contact the firefighter on a confidential basis.

¶ 5 The Department does not release information in a firefighter's drug testing record outside the Department without the firefighter's consent. A firefighter whose test reveals a blood alcohol concentration in excess of that allowed under the Program or who tests positive for any of several specified drugs is removed from all covered positions and is evaluated by a substance abuse professional. The Department may discipline or terminate the employment of a firefighter who tests positive a second time or who refuses to submit to a required test.

¶ 6 According to section 8 of the Program, the primary purpose of the random testing component "is to deter prohibited alcohol and controlled substance use and to detect prohibited use for the purpose of removing identified users from the safety-sensitive work force." This purpose advances the City's goal of establishing "a work environment that is totally free of the harmful effects of drugs and the misuse of alcohol."

¶ 7 Petersen filed a complaint in superior court seeking declaratory and injunctive relief, alleging that the random testing component of the Program violated his rights under both Article II, Section 8 of the Arizona Constitution and the Fourth Amendment to the United States Constitution.² The trial court held that the Program violated the Arizona Constitution and permanently enjoined the Department from continuing random, suspicionless drug and alcohol testing of the City's firefighters. The court of appeals reversed, holding that the Program's random testing component is reasonable under both the Arizona and United States Constitutions. The court reasoned that the City's "compelling need to discover specific but hidden conditions representing grave risks to the health and safety of the firefighters and the public" outweighed Petersen's privacy interests. Petersen v. City of Mesa, 204 Ariz. 278, 286 ¶ 34, 63 P.3d 309, 317 (App.2003). Judge Hall dissented from the majority's conclusion that the random testing component of the Program is reasonable under the Fourth Amendment. Id. at 290-91 ¶ 49, 63 P.3d at 321-22 (Hall, J., concurring in part and dissenting in part).

¶ 8 Under the analysis set forth below, we hold that the Program's random testing component is unreasonable and therefore violates the Fourth Amendment to the United States Constitution.³

II.

¶ 9 The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction." Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 613-14, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). In this case, the parties agree that the City's collection and testing of a firefighter's urine and breath constitutes a "search" under the Fourth Amendment. See, e.g., id. at 617, 109 S.Ct. 1402 ("Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable ... these intrusions must be deemed searches under the Fourth Amendment.").

¶ 10 As the language of the Fourth Amendment makes clear, "the ultimate measure of the constitutionality of a governmental search is `reasonableness.'" Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). To be reasonable, a search generally must be based upon some level of individualized suspicion of wrongdoing. Skinner, 489 U.S. at 624, 109 S.Ct. 1402. The purpose of requiring individualized suspicion "is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents." Id. at 621-22, 109 S.Ct. 1402.

¶ 11 The Supreme Court, however, has recognized limited exceptions to this general rule "when `special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.' "Id. at 619, 109 S.Ct. 1402 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)). "In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental 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." Id. at 624, 109 S.Ct. 1402.

¶ 12 The City concedes that its use of random, suspicionless testing is not based on any level of individualized suspicion. The City argues, however, that such testing is reasonable under the Fourth Amendment because the search "serves special governmental needs, beyond the normal need for law enforcement." Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). Because the Department does not disclose test results to law enforcement officers or to other third parties without the firefighter's consent, Petersen recognizes that the Program is unrelated to the normal need for law enforcement. Petersen maintains, however, that the City cannot enforce the Program's random testing component because the City's alleged "special needs" offered in support of the program are insufficient to overcome the privacy intrusion occasioned by the search. Based on the record in this case, we agree.

A.

¶ 13 Neither the Supreme Court nor this court has considered the reasonableness of random, suspicionless testing of city firefighters. The Supreme Court, however, has examined the constitutionality of suspicionless drug testing requirements analogous to the procedures Petersen challenges. See Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002)

(high school students participating in competitive extracurricular activities); Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997) (candidates for political office); Vernonia, 515 U.S. 646,

115 S.Ct. 2386 (high school students participating in interscholastic athletics); Skinner, 489 U.S. 602,

109 S.Ct. 1402 (railway employees); Von Raab, 489 U.S. 656,

109 S.Ct. 1384 (customs service agents); see also Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281 (2001) (holding unconstitutional a state hospital's drug testing of pregnant patients that involved hospital personnel notifying the police of patients who tested positive for cocaine). As each of these decisions illustrates, when presented with an alleged "special need" in support of a particular Fourth Amendment intrusion, a court must weigh the individual's Fourth Amendment interests against the proffered governmental interests to determine whether the search in question "fit[s] within the closely guarded category of constitutionally permissible suspicionless searches." Chandler, 520 U.S. at 309,

117 S.Ct. 1295.

¶ 14 Applying this "special needs" balancing test to the facts presented in this case, we begin by analyzing...