Superior Court of New Jersey, Law Division,
Civil Part, Passaic County.
Hannah ALLEN and Felipe Clemente, Plaintiffs,
v.
COUNTY OF PASSAIC and Edwin Englehardt, Sheriff of Passaic County, Defendants.
John TURI and Jess Monzo, Plaintiffs,
v.
COUNTY OF PASSAIC; Passaic County Board of Chosen Freeholders; Edwin Englehardt, Sheriff of Passaic County; Bernard Kerik, Deputy Warden of the Passaic County Jail, Sheriff's Department; Joseph A. Falcone, Prosecutor of Passaic County, Defendants.
Decided June 23, 1986.
SYNOPSIS
Sheriff's department officers sought to enjoin implementation and enforcement of directive that all personnel employed in that department undergo mandatory urinalysis testing for use of controlled dangerous substances. Following issuance of preliminary restraints, the Superior Court, Law Division, Passaic County, Mandak, A.J.S.C., held that: (1) probable cause requirement could be relaxed with respect to testing of those employees for noncriminal purposes, in light of reasonableness of that testing under balancing of interests, and appropriate standard to be applied was that of reasonable suspicion, and (2) testing of two employees pursuant to random search was improper but two other correctional officers could be tested, in light of other officers' statements which created reasonable suspicion of drug use.
Preliminary restraining order continued and modified in part and vacated in part.
West Headnotes
[1] Searches and Seizures 349 
78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Probable
cause requirement could be relaxed with respect to urinalysis testing, for
noncriminal purposes, of sheriff's department employees; that testing was reasonable under balancing
test, as government's interest in effective maintenance of penal and
correctional institutions was legitimate and extent of intrusion from search
was not unduly repugnant in that urine could be taken privately and under
conditions that avoided inconvenience and embarrassment to those employees.
[2] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Appropriate
standard to be applied in situations involving urinalysis testing of sheriff's
officers and correction officers is that of reasonable suspicion of drug
use; although that standard will develop
on case-by-case basis correction officials must at least be able to point to
specific objective facts supportive of testing and any rational inferences
drawn therefrom in light of their experience, and suspicion must be directed to
specify person.
[3] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Urinalysis
testing of sheriff's department employees pursuant to random search was
improper, but testing of two other correction officers was supported by
reasonable suspicion that they used controlled dangerous substances which was
created by other officers' typewritten statements.
**371 *354 Johnson, Johnson &
Murphy, Pompton Lakes, for plaintiffs Allen and Clemente (Jeffrey M. Kassover,
on brief.)
Kalman
Harris Geist, Paterson, for plaintiffs Turi and Monzo (Linda B. Sinofsky, on
brief).
**372 Raymond P. Vivino, Passaic Cty. Counsel,
Wayne, for defendant Passaic Cty. (Michael H. Glovin, Asst. County Counsel, New
Milford, on brief).
Joseph A.
Falcone, Passaic Cty. Pros., (Dante P. Mongiardo, Paterson, on brief).
Diamond,
Afflitto & Raimondi, Wayne, for defendant Englehardt (Joseph T. Afflitto,
on brief).Johnson, Johnson & Murphy, attorneys for plaintiffs Allen
and Clemente (Jeffrey M. Kassover, on the brief.)Kalman Harris Geist,
attorney for plaintiffs Turi and Monzo (Linda B. Sinofsky, on the
brief).Raymond P. Vivino, Passaic Cty. Counsel, attorney for defendant
Passaic Cty. (Michael H. Glovin, Assistant County Counsel, on the
brief).Joseph A. Falcone, Passaic Cty. Pros., (Dante P. Mongiardo,
on the brief).Diamond, Afflitto & Raimondi, attorneys for defendant
Englehardt (Joseph T. Afflitto, on the brief).
MANDAK,
A.J.S.C.
On January
6, 1986 Edwin Englehardt, the Sheriff of Passaic County, issued a directive
(Appendix A) requiring all personnel employed in the Sheriff's Department to
undergo mandatory urinalysis for the purpose of testing for the use of
controlled dangerous substances. Prior
to the institution of the present action, most of the employees in the
Sheriff's Department had already submitted to urinalysis pursuant to the
directive.
The
procedural history of the instant matters has been relatively uncomplicated but
still deserves mention. Both matters
were initiated by the filing of a verified complaint and the entry of an Order
to Show Cause providing for interim restraints temporarily enjoining the
Sheriff from implementing or enforcing the directive. On the return date of each Order to Show
Cause the court heard further argument and continued the *355 restraints
pending final determination of whether the restraints should be made permanent.
The four
plaintiffs in the two actions now consolidated are all officers employed in the
Sheriff's Department and all are assigned to duty at the Passaic County
Jail. The pleadings describe the job
title for plaintiffs Turi and Monzo to be correction officers. No specific job title is provided for
plaintiffs Allen and Clemente, nor is the court made aware of their assigned
duties. Unfortunately, no party offered
to present any testimony or produce any evidence at the hearing other than the
certifications of parties and therefore the facts are not well developed.
All
plaintiffs fall under the umbrella of the directive and consequently are
required to submit to the urinalysis or, as the directive provides, be subject
to “disciplinary action and/or dismissal.”
If the tests are taken and a positive result is obtained, the officers
are provided with three options, namely:
(1) resign; (2) agree to
participate in a program that would correct any drug abuse problem; or (3) failing the acceptance of options (1)
or (2) the information from the drug test would be turned over to the Passaic
County Prosecutor. These options are
not part of the directive, nor are they incorporated in any official document
presented to the court or promulgated to the employees. Rather the options originate from a
certification of Sheriff Englehardt wherein he recites how he handled those
situations where urinalysis proved positive. FN1
FN1. Par. 16
of Sheriff Englehardt's certification.
A brief
recount of predirective background information will be of benefit. In the past there have been instances where
drugs and other contraband were found in the possession of inmates at the
Passaic County Jail. Although security
measures were apparently put in place to minimize, if not eliminate, the
delivery of drugs to inmates, it was determined in the spring of 1985 that the
problem still persisted. The problem *356
appeared twofold. Information was
received from various sources indicating that correction officers were involved
in providing drugs to inmates and that a “small” number of correction officers
were drug users. An undercover
investigator was thereafter assigned to the jail and with the assistance of
agents from the Federal Drug Enforcement Agency one correction officer was
arrested and charged with distribution and use of cocaine, to which he
eventually pleaded guilty.
The
investigation continued by local staff personnel and led to the detection of
other correction officers involved in the possession and use of controlled
dangerous substances, among them the plaintiffs Monzo and Turi. As many as ten officers are named in the
statements of witnesses provided to the court as being so involved. **373 Possessed with this information
the Passaic County Sheriff issued the directive in question to insure that
correction officers were not using controlled dangerous substances.
The
plaintiffs challenge the directive on a number of grounds contending that the
implementation and enforcement of the directive would violate the search and
seizure provisions of Article
I, par. 7 of the New Jersey Constitution and the
Fourth Amendment of the United States Constitution. More pointedly, the plaintiffs argue that
the compelled submission of a urine sample to determine the existence or
non-existence of controlled dangerous substances constitutes an impermissible
search and seizure and is intrusive of the right to privacy and violative of
the safeguards provided to citizens under the United States and New Jersey
Constitutions. Moreover, it is urged
that the New Jersey Constitution has been interpreted by the New Jersey Supreme
Court to provide even greater protection for individual rights than provided by
the Federal Constitution. Plaintiffs
contend further that the blanket nature of the search is per se
unreasonable, and that equally unreasonable is the failure of the directive to
provide standards for its implementation such as the type of tests to be used,
the control and disposition of the *357 test results and the effect of
the test results on employment status.
The Fourth
Amendment to the United States Constitution reads as follows:
Search and
seizures
The right
of the people to be secure in their persons, houses, papers, and effects,
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.
Article
I, par. 7 of the New Jersey Constitution is
almost identical, the difference being the use in two instances of alternative
words that are not relevant to the issues before this Court. FN2 The consistently
recognized purpose of these constitutional search and seizure provisions is to
insure and safeguard the privacy and security of individuals against arbitrary
invasion of governmental officials. Camara
v. Municipal Court,
387 U.S.
523, 87 S.Ct.
1727, 18 L.Ed.2d
930 (1967).
FN2. The Court
in State
v. Novembrino,
200 N.J.Super.
229, 240, 491 A.2d
37 (App.Div.1985), described a structural
difference between the Fourth Amendment and the N.J.
Const. (1947), Art. I, par. 7 noting that while
the Fourth Amendment is a part of the general grant of essential powers to the
Federal Government, Article
I, par. 7 of the New Jersey Constitution serves
to limit sovereign power and represents an explicit affirmation of fundamental
rights of privacy.
The
threshold issue of whether urine testing is a search and seizure within the
perimeters of these constitutional provisions is not in dispute. The defendants acknowledge that drug testing
by means of urinalysis is considered a “search” under the aforesaid
constitutional provisions and that compelled submission of a urine sample to
determine the presence of a controlled dangerous substance constitutes a search
and seizure. Schmerber
v. California,
384 U.S.
757, 767, 86 S.Ct.
1826, 1834, 16 L.Ed.2d
908, 918 (1966);
Allen
v. City of Marietta,
601 F.Supp.
482, 488-489 (N.D.Ga.1985); Storms
v. Coughlin,
600 F.Supp.
1214, 1217-1218 (S.D.N.Y.1984); *358Division
241 Amalgamated Transit Union (AFL-CIO) v. Suscy,
538 F.2d 1264 (7th Cir.1976), cert. den. 429
U.S.
1029, 97 S.Ct.
653, 50 L.Ed.2d
632 (1976);
Ewing
v. State,
160 Ind.App.
138, 148, 310 N.E.2d
571, 577-578 (Ind.App.1978).
Nor is
there any dispute that the Fourth Amendment's prohibition against unreasonable
search and seizures applies to searches conducted by public officials. New
Jersey v. T.L.O.,
469 U.S.
325, 333, 105 S.Ct.
733, 739-740, 83 L.Ed.2d
720, 729 (1985).
It is well established that searches by such public or governmental
officials, including inspections for administrative purposes, must satisfy
constitutional reasonable standards. **374Camara
v. Municipal Court. See also, Dome
Realty v. City of Paterson,
83 N.J.
212, 239-241, 416 A.2d
334 (1980).
The U.S.
Constitution and the New Jersey Constitution provide that all persons shall be
free from unreasonable searches and seizures. [Emphasis supplied.] U.S.
Const.,
Amend. IV, N.J.
Const.
(1947), Art. I, par. 7. It arguably follows that if the search and
seizure is not unreasonable, then these constitutional provisions do not apply
and the constitutional protections afforded by them are not available. Thus if the actions by the Sheriff under the
facts and circumstances of this case are found to be reasonable, the mandated
security of privacy made available by constitutional provisions and the
necessity for probable cause and issuance of a warrant are no longer
present. Carroll
v. United States,
267 U.S.
132, 147, 45 S.Ct.
280, 283, 69 L.Ed.
543, 549 (1925); State
v. Slockbower,
79 N.J.
1, 22-23, 397 A.2d
1050 (1979).
This
rationale directed to the question of reasonableness draws opposition from
those who espouse a correlation between “reasonableness” and the procurement of
a warrant based on probable cause. The
emphasis in the latter situation is placed on the absolute need for a warrant
based on probable cause, with the result necessitating a conclusion that warrantless
searches are per se unreasonable.
Katz
v. United States,
389 U.S.
347, 357, 88 S.Ct.
507, 514, 19 L.Ed.2d
576, 585 (1967);
*359Welsh
v. Wisconsin,
466 U.S.
740, 749, 104 S.Ct.
2091, 2097, 80 L.Ed.2d 732, 742-743
(1984); Mincey
v. Arizona,
437 U.S.
385, 390, 98 S.Ct.
2408, 2412, 57 L.Ed.2d
290, 298 (1978);
Terry
v. Ohio,
392 U.S.
1, 20, 88 S.Ct.
1868, 1879, 20 L.Ed.2d
889, 905 (1968).
The distinction, however, is quite simple. Under the “reasonableness” theory, the court
must first react to the issue of reasonableness to determine the need for
probable cause and concomitantly the warrant.
Under the “probable cause” theory the issue of reasonableness is never
independently determined but rather based solely on the existence or
nonexistence of a warrant, the underlying principle requiring the existence of
both probable cause and a warrant to establish reasonableness, or as earlier
conversely stated “warrantless searches are per se unreasonable.”
In
weighing these legal theories, consideration must first be given to the context
in which the terms reasonable and unreasonable are to be defined and
applied. The issue then to be decided
is the interpretation and application of the word “unreasonable” in its
constitutional context to the facts and circumstances surrounding the issuance
and enforcement of the Sheriff's directive.
The plaintiffs urge that the polestar of this question is found in State
v. Novembrino,
200 N.J.Super.
229, 491 A.2d
37 (App.Div.1985), wherein the Appellate Division
held that “a nonconsensual search for evidence of a crime which is conducted
without probable cause is unreasonable.”
Id.
at 238, 491 A.2d
37. The
argument is that all searches not based on probable cause are unreasonable no
matter what the supportive circumstances might be. Under this analysis the condition precedent
of probable cause is a primary determinative factor as to reasonableness, and a
lack of probable cause alone justifies characterizing the search as
unreasonable. It necessarily follows
from such a theory that every search and seizure not founded on probable cause
is constitutionally prohibited.
An
alternate theory, and the one urged by the defendants is to examine the
question of constitutional permissibility based on the application of
reasonableness from the standpoint of balancing the interests of the individual
against governmental *360 interests.
Under this theory, the court is required to balance the need for the
search, i.e., the public interest of maintaining the safety, order and security
of whatever governmental responsibility is involved, against the invasion of
privacy or the intrusion that the search entails. Camara v. Municipal Court. It necessarily follows from this theory that
if the search is conducted without a search warrant or on the basis of some
standard not reaching the level of probable cause, such conduct, in and of
itself, does not render such a search unreasonable.
**375 Giving consideration to these alternative
positions, I am satisfied that the plaintiffs' reliance on State v.
Novembrino, as supportive of a mandatory requirement of probable cause in all
situations involving search and seizures is misplaced. In Novembrino it was suspected that
the defendant was in possession of certain controlled dangerous substances with
intent to distribute and the search and seizure were performed exclusively to
confirm that suspicion and to obtain evidence of a crime. The search and seizure were therefore
performed strictly in a criminal context.
Although there is evidence in the instant case that the test results of
some correction officers were turned over to the Passaic County Prosecutor, the
primary purpose of the administrative directive and urinalysis was to insure
that Sheriff's officers were not, from an employment performance standpoint,
involved in the use or abuse of controlled dangerous substances. Although the use of the threat of informing
the County Prosecutor as an enforcement tool may have some impact on the question
of reasonableness, it does not rise to the level of the criminal episodes
enuciated in Novembrino. The New
Jersey Supreme Court in the matter
of In
re Martin,
90 N.J.
295, 447 A.2d
1290 (1982), noted this distinction:
In the
criminal context, a warrant may be issued only on a probable cause showing that
would lead a reasonable person to believe that a crime has been committed and
that evidence of that crime will be found in a particular place. Henry
v. United States,
361 U.S.
98, 102, 80 S.Ct.
168, 171, 4 L.Ed.2d
134, 138 (1959).
However, the probable cause showing necessary to obtain an
administrative warrant is less stringent.
Searches pursuant to administrative warrants are conducted to enforce regulatory
statutes, rather than to investigate criminal *361 activity. Experience has demonstrated the utility of
periodic inspections in promoting compliance with regulatory statutes. See, e.g., Camara
v. Municipal Court,
387 U.S.
at 538, 87 S.Ct.
at 1735, 18 L.Ed.2d
at 940.
In such cases, probable cause in the criminal sense is not
constitutionally required. [90
N.J.
at 315, 447 A.2d
1290].
See
also, State
v. Young,
87 N.J.
132, 142, n. 4, 432 A.2d
874 (1981).
Consequently, in certain instances when the search is motivated by
reasons unrelated to criminality and is conducted for reasons other than to
procure evidence of a crime, the requirement of probable cause may be
reduced. Such an exception to the
probable cause requirement has been recognized where the search is related to
highly regulated or closely supervised businesses. In re Martin. For example, warrantless searches have been
judicially sustained in the absence of probable cause in cases involving the
liquor industry, State
v. Zurawski,
89 N.J.Super.
488, 215 A.2d
564 (App.Div.1965), aff'd o.b. 47
N.J.
160, 219 A.2d
614 (1966), the drug and pharmaceutical industry,
State
v. Rednor,
203 N.J.Super.
503, 497 A.2d
544 (App.Div.1985), the horse racing industry, State
v. Dolce,
178 N.J.Super.
275, 428 A.2d
947 (App.Div.1981) and casino gambling, In re
Martin.
The New Jersey
Supreme Court recently reviewed Fourth Amendment rights in a school setting,
one not normally associated with or parallel to a highly regulated or closely
supervised business, but one nonetheless involving a high degree of supervision
and administrative control. State
in re T.L.O.,
94 N.J.
331, 463 A.2d
934 (1983). FN3 In T.L.O.,
the New Jersey Supreme Court considered the exclusionary rule in the context of
the warrantless search made of a student's purse. The Court noted the legitimate charge to
school officials to maintain order, safety and discipline and weighed that
charge against the competing demands of the constitutional right of
privacy. Referring to *362
specific statutory authority conferred on school officials, the Court
concluded:
FN3. The
decision of the New Jersey Supreme Court was reversed by the United States
Supreme Court in New
Jersey v. T.L.O.,
469 U.S.
325, 105 S.Ct.
733, 83 L.Ed.2d
720 (1985).
The focus of this reversal was not on the use of any reasonableness
standard (see footnote 4, infra ), but rather on its application to the
facts of the case.
**376 Taken together, these statutes yield the
proposition that school officials, within the school setting, have the
authority to conduct reasonable searches necessary to maintain safety, order
and discipline within the schools. [94
N.J.
at 343, 463 A.2d
934].
Referring
to Moore
v. Student Affairs Committee of Troy State Univ.,
284 F.Supp.
725 (M.D.Ala.1968), as comporting with “prevailing
decisional law” on the subject of searches in a school setting and more
specifically a college dormitory search, the Supreme Court in T.L.O.
observed that
The
validity of the regulation authorizing search of dormitories thus does not
depend on whether a student ‘waives' his right to Fourth Amendment protection
or on whether he has ‘contracted’ it away;
rather, its validity is determined by whether the regulation is a
reasonable exercise of the (school's) supervisory duty. In other words, if the regulation-or, in the
absence of a regulation, the action of the (school) authorities-is necessary in
aid of the basic responsibility of the institution regarding discipline and the
maintenance of an ‘educational atmosphere,’ then it will be presumed facially
reasonable despite the fact that it may infringe to some extent on the outer
bounds of the Fourth Amendment rights of students. [94
N.J.
at 343, 463 A.2d
934;
citation omitted.]
Even more
recently Odenheim
v. Carlstadt-East Rutherford Regional School District,
211 N.J.Super.
54, 510 A.2d
709 (ch. 1985), involving a Board of Education
policy requiring urinalysis of students as part of an annual physical, the
court, while finding the policy unconstitutional as violative of the students'
expectation of privacy, arrived at its holding by application of the balancing
test (to determine reasonableness) as established in T.L.O.,
94 N.J.
at 344, 463 A.2d
934, and as supported by the United States
Supreme Court in its appellate review, T.L.O.,
469 U.S.
325, 105 S.Ct.
733, 83 L.Ed.2d
720 (1985). FN4
FN4. Justice
White, in delivering the majority opinion for the United States Supreme Court,
observed:
that the “reasonable grounds” standard applied by the New
Jersey Supreme Court in its consideration of this question is not substantially
different from the standard that we have adopted today. [469
U.S.
at 343, 105 S.Ct.
at 745, 83 L.Ed.2d
at 736].
The
vocation encompassing the supervision and rehabilitation of criminal defendants
and prisoners may not fit precisely into *363 the mold of an industry “subject
to persuasive or long standing governmental regulation”, State
v. Dolce,
178 N.J.Super.
at 283, 428 A.2d
947, but its function is similarly affected by a
substantial public interest that demands a high degree of regulation and
scrutiny to insure its proper and effective fullfillment. The function here is not an example of
governmental regulation, but rather one of governmental response, and as such
it surely can be likened to, if not rise to, a higher level of public need and
concern than the so-called regulated industries. It is not surprising then that New Jersey
courts have recognized this need and while balancing such need with the
diminished expectation of privacy by those who are in the “corrections” system
because of the conviction of a crime or offense, have concluded once again that
constitutional rights may give way when reasonableness prevails. Thus, in State
v. Nunziato,
178 N.J.Super.
216, 428 A.2d
564 (Law Div.1981), the court in applying a
reasonableness approach concluded that a prisoner on work release has a very
limited expectation of privacy while serving his sentence and a warrantless
search of his garage was reasonable and not violative of the prisoner's
constitutional rights. In State
v. Bollinger,
169 N.J.Super.
553, 405 A.2d
432 (Law Div.1979), the court was required to
consider whether the fruits of a warrantless search of a probationer's person
and property may be used for a new indictable offense. Relying heavily on the condition of
probation providing for such searches, the court concluded that a warrantless
search of probationer's home and car without probable cause was not
impermissible because “(a) probationer does not enjoy the full benefit of all
the rights guaranteed under the constitution.”**377 Id.
at 562, 405 A.2d
432. The
court added as a limiting factor that such searches should be conducted only by
probation officers and at such times and in such manner that are
reasonable. FN5 Both Nunziato
and Bollinger refer to *364Latta
v. Fitzharris, 521 F.2d
246 (9th Cir.1975), cert. den. 423
U.S.
897, 96 S.Ct.
200, 46 L.Ed.2d
130 (1975)
wherein the Court of Appeals for the 9th Circuit stated:
FN5. In
considering the propriety of the condition of probation providing for searches
and seizures, the court in Bollinger cited United
States v. Gordon,
540 F.2d
452 (9th Cir.1976) and United
States v. Jeffers,
573 F.2d
1074 (9th Cir.1978), wherein the Federal courts
held the conditions of probation relative to searches and seizures to be
overbroad, but nevertheless upheld the search finding the conditions narrowly
construed and properly exercised.
A California
Parolee is in a different position from that of the ordinary citizen. He is still serving his sentence. He remains under ... the immediate control
of his parole officer. His parole is
subject to revocation for reasons that would not permit the arrest or
incarceration of other persons.
....
We think that one of these restrictions, necessary to the effective operation of the parole system, is that the parolee and his home are subject to search by the parole officer when the officer reasonably believes that such search is necessary in the performance of his duties. The parole officer ought to know more about the parolee than anyone else but