Supreme Court of New Jersey.
NEW JERSEY TRANSIT PBA LOCAL 304, Plaintiff-Appellant,
v.
NEW JERSEY TRANSIT CORPORATION, Defendant-Respondent.
Argued April 28, 1997.
Decided Sept. 25, 1997.
Union representing transit police officers brought suit challenging constitutionality of transit authority's random drug and alcohol testing of employees in safety-sensitive positions. The Superior Court, Law Division, Essex County, Alvin Weiss, J., entered summary judgment for transit authority, and union appealed. The Superior Court, Appellate Division, 290 N.J.Super. 406, 675 A.2d 1180, affirmed. Certification was granted. The Supreme Court, Poritz, C.J., held that: (1) special needs balancing test, used in determining lawfulness of suspicionless search of public employees under Fourth Amendment, would be adopted as analytical framework for considering lawful of drug testing program under New Jersey Constitution's search and seizure provision, overrulingFraternal Order of Police, 216 N.J.Super. 461, 524 A.2d 430, and (2) random drug testing of transit police force was not unreasonable under State Constitution, in light of transit officers' decreased expectation of privacy, adequate limitations on obtrusiveness of testing, and compelling state interest in promoting safe conduct by armed officers.
Affirmed.
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
Mandatory,
government-compelled drug or alcohol testing is subject to requirements of both
Federal and New Jersey Constitutions, and testing program must meet
reasonableness requirement of both Fourth Amendment and state constitutional
search and seizure provision. U.S.C.A.
Const.Amend. 4;
N.J.S.A.
Const. Art. 1, par. 7.
[2] Searches and Seizures 349 23
349 Searches and Seizures
349I In General
349k23 k. Fourth Amendment and Reasonableness in General. Most
Cited Cases
Searches and Seizures 349 24
349 Searches and Seizures
349I In General
349k24 k. Necessity of and Preference for Warrant, and Exceptions
in General. Most
Cited Cases
Generally,
under federal and New Jersey Constitutions, searches or seizures conducted
without warrant based on probable cause are considered per se unreasonable, but
validity of warrantless search may be established if government demonstrates
that search falls within recognized exception to warrant requirement. U.S.C.A.
Const.Amend. 4;
N.J.S.A.
Const. Art. 1, par. 7.
[3] Searches and Seizures 349 79
349 Searches and Seizures
349I In General
349k79 k. Administrative Inspections and Searches; Regulated Businesses. Most
Cited Cases
Administrative
searches of highly or pervasively regulated industries are permitted without
probable cause or individualized suspicion, but are reasonable only so long as
there is substantial government interest that informs regulatory scheme
pursuant to which inspection is made, warrantless inspections are necessary to
further regulatory scheme, and statute's inspection program, in terms of
certainty and regularity of application, provides constitutionally adequate
substitute for warrant. U.S.C.A.
Const.Amend. 4;
N.J.S.A.
Const. Art. 1, par. 7.
[4] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Special
needs test, under which suspicionless search of public employees may be
permissible under Fourth Amendment when search serves special needs beyond
normal need for law enforcement and public interests outweigh private ones,
provides useful analytical framework for considering protections afforded by
State Constitution's search and seizure clause, and Supreme Court would adopt
that approach in reviewing state transit authority's drug testing program for
reasonableness under State Constitution; overruling - Fraternal
Order of Police, Newark Lodge No. 12 v. City of Newark,
216 N.J.Super. 461, 524 A.2d 430 (App.Div.1987). U.S.C.A.
Const.Amend. 4;
N.J.S.A.
Const. Art. 1, par. 7.
[5] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
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State
transit authority's substantial interest in protecting its employees and the
public gave rise to special need, beyond normal law enforcement needs, that
could justify privacy intrusions involved in random drug and alcohol testing of
transit police officers; transit officers performed patrol and investigatory
police duties independently at transit terminals and locations throughout
state, such that drug detection based on observation would be difficult, and
requiring individualized suspicion would be impractical and would compromise
safety objectives. 49
U.S.C.A. § 5331(b); N.J.S.A.
Const. Art. 1, par. 7.
[6] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
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Cited Cases
Transit
authority's random drug testing program, as designed, limited intrusion on
transit officers' privacy interests for purposes of state constitutional
analysis, where procedures required urine sample to be collected in manner that
ensured employees' modesty and privacy, procedures sought to ensure accuracy of
urine analysis through various means, and employees' records had to be kept confidential
and were reported only to appropriate management official and employee, except
in certain limited circumstances or as required by law. 49
U.S.C.A. § 5331(b); N.J.S.A.
Const. Art. 1, par. 7.
[7] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Transit
police officers had diminished expectation of privacy, given nature of their
responsibilities and due to importance of health and fitness of employees in
the heavily regulated rail and mass transportation industries, and thus transit
authority's random drug testing program posed only a limited threat to transit
officers' justifiable expectations of privacy.
49
U.S.C.A. § 5331(b); N.J.S.A.
Const. Art. 1, par. 7.
[8] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Transit
authority's random drug testing of transit police officers was supported by
substantial governmental interest; transit police officers carried weapons and
performed safety-sensitive function, posing threat to public safety if they
were to perform their duties under influence of drugs, transit officers often
carried out duties independently, such that drug detection based on observation
would be difficult, and requiring individualized suspicion would be ineffective
in deterring drug use and would compromise safety objectives. 49
U.S.C.A. § 5331(b); N.J.S.A.
Const. Art. 1, par. 7.
[9] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
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Cited Cases
Transit
authority's random drug testing of transit police force, without individualized
suspicion, did not violate State Constitution's search and seizure provision,
in light of transit police officers' decreased expectation of privacy, adequate
limitations on obtrusiveness of testing, and compelling state interest in
promoting safe conduct by armed officers.
49
U.S.C.A. § 5331(b); N.J.S.A.
Const. Art. 1, par. 7.
**1244 *534 Stephen
B. Hunter, Somerville, for plaintiff-appellant
(Klausner and Hunter, attorneys).
Robert
A. Shire, Deputy Attorney General, for
defendant-respondent (Peter Verniero, Attorney General of New Jersey,
attorney; Jeffrey
C. Burstein, Deputy Attorney General, of
counsel; Mr. Shire and Eldad Phillip
Isaac, Deputy Attorney General, on the briefs).
James
Katz, Cherry Hill, for amicus curiae American
Civil Liberties Union of New Jersey (Tomar, Simonoff, Adourian, O'Brien,
Kaplan, Jacoby & Graziano, attorneys).
Anthony
J. Fusco, Jr., Passaic, submitted a brief on
behalf of amicus curiae New Jersey State Lodge of Fraternal Order of Police.
Paul
L. Kleinbaum, Newark, submitted a brief on behalf
of amicus curiae New Jersey State Policemen's Benevolent Association (Zazzali,
Zazzali, Fagella & Nowak, attorneys).
The
opinion of the Court was delivered by
PORITZ, C.J.
To comply
with regulations promulgated by the Federal Transit Administration (“FTA”),
defendant, New Jersey Transit Corporation (“NJ Transit” or “Agency”), adopted a
drug and alcohol testing policy that includes random testing of employees
responsible*535 for
safety-sensitive functions. Plaintiff
New Jersey Transit PBA Local 304 (“PBA” or “plaintiff”), challenged the
constitutionality of the random testing provisions applicable to NJ Transit
police officers. The Law Division
granted summary judgment in favor of NJ Transit, and the Appellate Division**1245 affirmed.
290
N.J.Super.
406, 675 A.2d
1180 (1996).
We granted certification, 147
N.J.
259, 686 A.2d
761 (1996), to consider whether mandatory random
drug testing of transit police officers who carry firearms for security
purposes violates the officers' right to be free from unreasonable searches and
seizures as guaranteed by Article
1, Paragraph 7 of the New Jersey Constitution. We now affirm.
I
-A-
NJ Transit
is a public corporation within the Department of Transportation responsible for
acquiring, operating, and improving public transportation facilities in New
Jersey. N.J.S.A.
27:25-2, -4a, -5, -10. By its enabling legislation, the Agency is
authorized to “comply with federal statutes, rules and regulations, and qualify
for and receive all forms of financial assistance available under federal law
to assure the continuance of, or for the support or improvement of public
transportation.” N.J.S.A.
27:25-5g. At the present time, NJ
Transit receives substantial federal funding from the FTA which, by the end of
fiscal year 1996, had contracted to provide approximately $1 billion in current
and future assistance to the Agency.
The NJ
Transit Police Department was established within the Agency to provide police
and security protection to all NJ Transit locations and services. N.J.S.A.
27:25-15.1a. Transit police officers “have
general authority, without limitation, to
exercise police powers and duties ... in all criminal and traffic matters at
all times throughout the state.” Ibid.
They must comply with policies established by the Attorney General, ibid.,
and must satisfy “requirements established by the Police Training Commission,” *536 N.J.S.A. 27:25-15.1c. As officers of a
state police force, they are permitted to carry firearms, see N.J.S.A.
2C:39-6a(7)(a), and to use deadly force in certain circumstances, N.J.S.A.
2C:3-3, -7.
Plaintiff
is the majority representative of approximately one hundred twenty-five transit
police officers under the rank of captain.
Six of the officers were assigned to ride on the Agency's trains as of
April 1995; the others perform patrol
and investigatory police duties and functions similar to those performed by
municipal and county police officers.
The majority are assigned to patrol NJ Transit's main terminals in
Newark, Hoboken and Atlantic City, and carry out their responsibilities among
heavy concentrations of transit riders.
The remaining officers are assigned to patrol smaller train stations and
railroad rights-of-way throughout the state.
-B-
In 1991
Congress enacted the Omnibus Transportation Employee Testing Act of 1991 (“Act”
or “Federal Act”), Pub.L.
102-143, 105 Stat.
952 (1991) (codified as amended in scattered
sections of 49 U.S.C.A.), to address alcohol and drug testing of workers
in safety-sensitive positions throughout the transportation industry. Relevant here, the Act as amended directs
the Secretary of Transportation to issue rules requiring mass transit operators
receiving federal funds to conduct pre-employment, reasonable suspicion,
random, and post-accident testing for drug and alcohol use by employees
responsible for safety-sensitive functions.
49
U.S.C.A.
§ 5331(b). As considered appropriate by the Secretary
and provided in the rules, employees determined “to have used or been impaired
by alcohol when on duty” or “to have used a controlled substance, whether or
not on duty,” unless allowed for medical reasons, may be disqualified for a
specified period or dismissed from their employment. Id. § 5331(c)(1). Congress expressly provided that failure to
institute the specified drug and alcohol testing programs would result in
ineligibility for federal funding. Id.
§ 5331(g).
*537 The anti-drug and alcohol misuse
policies applicable to mass transit operators are set forth in regulations
issued under the Act. See 49 C.F.R. pts. 653, 654 (1997); see also id. pt. 40 (setting forth
procedures to be followed for drug and alcohol testing). The regulations are designed “to deter and
detect the use of prohibited drugs by covered employees,” id. § 653.3, and “to help prevent accidents and
injuries resulting from the misuse of alcohol by employees who perform **1246
safety-sensitive functions,” id. §
654.1. More specifically, the regulations provide for random drug and
alcohol testing of “covered employees,” id. § § 653.47, 654.35, defined as those employees
who perform safety-sensitive functions including, among other things, “carrying
a firearm for security purposes,” id. § § 653.7, 654.7. Employees who refuse to participate in the
testing program are required to cease performing safety-sensitive
functions. Id. § § 653.35(a), 654.29.
-C-
For the
purpose of complying with the FTA regulations, NJ Transit instituted a
comprehensive drug and alcohol-free workplace policy that became effective
January 1, 1995. NJ Transit's policy
consists of a Core Policy and two Addenda. See NJ TRANSIT Corporate-Wide Policy,
Drug and Alcohol-Free Workplace Core Policy (January 1, 1995); Drug and Alcohol-Free Workplace
Policy-Addendum I (January 1, 1995) (requirements applicable to employees
who perform safety-sensitive functions);
Drug and Alcohol-Free Workplace Policy-Addendum II (January 1,
1995) (requirements applicable to employees who perform rail-covered
services). The purpose and goals of the
Core Policy are described in Sections I and II:
The
purpose of this policy is to ensure that NJ TRANSIT operates in the safest and
most efficient manner possible and to promote the safety and welfare of our
employees and customers by creating a drug and alcohol-free workplace and
ensuring that our employees are free from the effects of drugs and alcohol.
.
. . .
.
NJ
TRANSIT'S goal to achieve a drug and alcohol-free workplace shall be
accomplished through the implementation of a comprehensive anti-drug and
alcohol *538 program based on
deterrence, detection, assistance and enforcement. The program objectives in support of this
goal are to prevent drug and alcohol abuse, to assist employees who seek help,
to detect drug and alcohol abuse, and to enforce NJ TRANSIT's policy.
The Core
Policy sets forth the drug and alcohol testing program generally, while Addendum
I “outlines those requirements of NJ TRANSIT's Drug and Alcohol-Free
Workplace Policy that are applicable only to NJ TRANSIT employees who perform
safety-sensitive functions.” Addendum
I § I. In its complaint, plaintiff
challenged both the random drug and random alcohol testing components of NJ
Transit's policy as applied to “law enforcement personnel represented by PBA
Local 304.” However, plaintiff has not
argued before this Court that the alcohol testing component of the program is
unconstitutional. We will therefore
limit our review to PBA's claims vis-à-vis random drug testing as that testing
is implemented by NJ Transit through Addendum I and the Core Policy.
Under Addendum
I, all NJ Transit employees, including supervisors and volunteers, are
subject to “pre-employment, reasonable suspicion, post-accident, random,
return-to-duty, and follow up testing” if they perform safety-sensitive
functions. Id. § IV.A-B. Because transit police officers carry
firearms for security purposes, they perform a safety-sensitive function and
are subject to random testing. Id.
§ II. Previously, transit police
officers had been subject to drug testing as specified by the Attorney
General's Revised Law Enforcement Drug Screening Guidelines (August
1990) (“Guidelines”). The Guidelines,
promulgated in October 1986 and revised in 1990, provided for drug testing of
permanent police officers only when the employer had an individualized
reasonable suspicion that the officer had used or was using controlled
substances. Id. at 8-1. Addendum I substantially altered the
rules for drug testing of transit officers.
Like other NJ Transit-covered employees, transit officers are now
selected for unannounced testing “by a computer-based random number generator
that is matched with the employee's [identification] number.” Addendum I § IX.B.
*539 NJ Transit's Core Policy
requires the Agency and its certified laboratory to “maintain clear and
well-documented procedures for collection, shipment” and recording of
specimens. Core Policy § IX.B. Specimens **1247 are handled by
a trained medical technician or licensed medical professional, id. §
IX.C.1, at “secure, designated ... sites” equipped to provide proper “collection,
security, temporary storage, and shipping” to the laboratory, id. §
IX.D.1. The person handling the sample is responsible for the integrity
of the collection and transfer process, id. §
IX.D.1, 2, 5, 6, and may not be a supervisor or co-worker of the tested
employee, id. § IX.C.2. Unless NJ Transit has reason to
believe that the donor may adulterate the sample, individual privacy must be
permitted during collection. Id.
§ IX.F.1 (listing four circumstances
constituting grounds for “reason to believe that an individual may alter or
substitute a specimen,” e.g., a previous urine sample that “falls
outside the normal temperature range”).
Any direct observation of the donor must be by a person “of the same
gender” and requires prior approval by a supervisor. Id. §
IX.F.2.
Two urine
samples are obtained from transit police officers at the collection site. Each sample is then separated into a “primary”
and “split” specimen for testing at a laboratory certified under the Department
of Health and Human Services' (“DHHS”) Mandatory Guidelines for Federal
Workplace Drug Testing Programs. Id.
§ IX.G.1. The first primary specimen is
analyzed for marijuana, cocaine, opiates, phencyclidine or amphetamines using “an
immunoassay which meets the requirements of the Food and Drug Administration
for commercial distribution.” Id.
§ IX.G.2. If this specimen tests
positive, the result is confirmed using gas chromatography/mass
spectrometry. Id. § IX.G.3. The second primary specimen is
similarly analyzed for barbiturates, benzodiazepines and methadone. FN1 Id. §
IX.G.4. If either primary specimen*540 tests positive, the employee has 72 hours in
which to exercise his or her option to have the split specimen tested by a
different DHHS-certified laboratory. Id.
§ IX.G.5.
FN1. These
substances are not listed in the FTA's regulations. See 49 C.F.R. § 653.31(b).
We presume that they have been approved for testing by the FTA pursuant
to 49
C.F.R.
§ 40.21
and note that plaintiff has not specifically challenged this additional testing
by NJ Transit.
The Core
Policy requires NJ Transit to employ one or more Medical Review Officers (“MRO”). Id. §
IX.H.1. The MRO must be a licensed physician with knowledge of substance
abuse disorders who is able to review and interpret positive test results. Ibid. Test results are not deemed
positive, and may not be disseminated to any person, until they are reviewed
and verified by the MRO. Id. §
IX.H.2. In addition to verifying the chain of custody and the
reasonableness of the laboratory report, the MRO must “[e]xamine alternate
medical explanations for positive drug test results,” and must give each
employee “an opportunity to discuss the test results” prior to verifying a
positive test. Id. § IX.H.2.a-d.
The MRO is
required to report all verified positive test results to the appropriate
management official and to provide copies of the report to the employee. Id. §
IX.H.2.g. Those positive results that have “a legitimate medical
explanation or which are scientifically insufficient for further action” are
reported as negative. Id. § IX.H.2.e. All negative results are also
promptly reported to the employee. Id.
§ IX.H.2.h. Records of testing results
are “maintained in a secure location with controlled access” and, pursuant to
federal regulation, see 49 C.F.R. 653.71(b), may be kept for only
a limited number of years. Core
Policy § XIII.B. Test results may be
released on written request of the employee, to “the decision maker in a
lawsuit, grievance, or other proceeding initiated by or on behalf of the
employee tested,” to certain federal agencies, “or to a State oversight agency
with regulatory authority over NJ TRANSIT.”
Id. § XIII.A.1-5. Addendum
I, in reliance on the Attorney General's Guidelines, further
requires transit officers' positive results to “be included in a central
registry maintained by the Division of State Police to be accessed only through
a court order or as part of a confidential investigation *541 related to law enforcement
employment; and reported to the county
prosecutor.” Addendum I § XIII.A.1.
The Core
Policy includes provisions establishing an employee assistance program (“EAP”)
for covered employees who need assistance with use of controlled
substances. **1248
Core Policy § VIII. Employees may
participate in the program on a voluntary basis, id. §
VIII.B, or may be required to participate if they test positive for
drugs and have not previously had a positive drug test, id. §
VIII.C. The Core Policy provides, however, that transit officers
are not eligible for participation in EAP and that a transit officer who tests
positive for illegal drugs must be dismissed.
Id. § VIII.B.3. Thus, a
transit officer “cannot avoid[ ] [dismissal] by utilization of the EAP, even on
a voluntary basis.” Ibid. This
provision also reflects NJ Transit's interpretation of the requirements of the
Attorney General's Guidelines.
-D-
On April
26, 1995, PBA filed a complaint in the Law Division alleging that NJ Transit's
random drug and alcohol testing of law enforcement officers represented by PBA
Local 304 constituted an illegal search and seizure in violation of Article
I, Paragraph 7 of the New Jersey Constitution. The PBA also sought temporary restraints
preventing the Agency from implementing testing as to those officers. PBA did not challenge pre-employment
testing, or testing either conducted at an annual physical exam or based on reasonable individualized suspicion.
As a
defense, NJ Transit asserted that the Federal Act preempted state action
inconsistent with federally required testing programs implemented by state
transportation agencies in receipt of federal funding. FN2 The trial court found that preemption did
not *542 apply because NJ Transit
is not required to accept federal funding, but concluded that random drug
testing of transit police officers was permissible under the New Jersey
Constitution. The court denied PBA's
application for a restraining order, and entered judgment upholding the
constitutionality of the testing program and dismissing PBA's complaint.
FN2. NJ
Transit based its preemption argument on the provision of the Act that states:
A State or local government may not prescribe, issue, or
continue in effect a law, regulation, standard, or order that is inconsistent
with regulations prescribed [under the statute, except] a State criminal law
that imposes sanctions for reckless conduct leading to loss of life, injury, or
damage to property.
Because we find that NJ Transit's drug testing program
passes constitutional muster, we do not reach the Agency's preemption defense.
The
Appellate Division affirmed in a unanimous opinion. 290
N.J.Super.
406, 675 A.2d
1180 (1996).
In sustaining NJ Transit's program, the court adopted the special needs
balancing test of Skinner
v. Railway Labor Executives' Ass'n,
489 U.S.
602, 109 S.Ct.
1402, 103 L.Ed.2d
639 (1989), and National
Treasury Employees Union v. Von Raab,
489 U.S.
656, 109 S.Ct.
1384, 103 L.Ed.2d
685 (1989), and rejected the 1987 Appellate
Division opinion in Fraternal
Order of Police, Newark Lodge No. 12 v. City of Newark,
216 N.J.Super.
461, 524 A.2d
430 (App.Div.1987) (“FOP ”), which had
held that random drug testing of Newark police officers violated Article
I, Paragraph 7 of the New Jersey Constitution. 290
N.J.Super.
at 422, 675 A.2d
1180. The
Appellate Division found that requiring a warrant or individualized suspicion
would be impractical, and that the government's interest in preventing the
great harm that could occur “ ‘before any signs of impairment become noticeable
to supervisors or others' ” outweighed the privacy interests of transit police
officers. Id.
at 426, 675 A.2d
1180 (quoting Skinner,
supra,
489 U.S.
at 628, 109 S.Ct.
at 1419, 103 L.
Ed.2d
at 667).
II
-A-
Article
1, Paragraph 7 of the New Jersey Constitution
states:
*543 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 warrant shall issue except upon probable cause, supported by oath
or affirmation, and particularly describing the place to be searched and the
papers and things to be seized.
Both Article
1, Paragraph 7 and the Fourth Amendment to the
United States Constitution, which contain virtually identical language,
prohibit unreasonable searches and **1249 seizures by government
agents. See, e.g., Skinner,
supra,
489 U.S.
at 619, 109 S.Ct.
at 1414, 103 L.Ed.2d
at 661; Schmerber
v. California,
384 U.S.
757, 768, 86 S.Ct.
1826, 1834, 16 L.Ed.2d
908, 918 (1966);
State
v. Pierce,
136 N.J.
184, 208, 642 A.2d
947 (1994).
[1] Plaintiff does not allege that NJ Transit's testing
program is an unreasonable search under the Fourth Amendment; rather, PBA claims that random drug testing
of transit police officers is unreasonable under Article
1, Paragraph 7 of the New Jersey Constitution. Preliminarily we observe that mandatory drug
testing is subject to the requirements of both the federal and New Jersey
Constitutions. Case law in the federal
courts and in our state has firmly established that any government-compelled
drug or alcohol testing is a search. See
Skinner,
supra,
489 U.S.
at 617, 109 S.Ct.
at 1413, 103 L.Ed.2d
at 660 (finding that government-compelled drug
testing was search subject to Fourth Amendment); Von
Raab, supra,
489 U.S.
at 665, 109 S.Ct.
at 1390, 103 L.Ed.2d
at 701-02 (same);
Rawlings
v. Police Dep't of Jersey City,
133 N.J.
182, 188, 627 A.2d
602 (1993) (“A drug test performed pursuant to
departmental regulations ... is a search subject to the requirements of the
Fourth Amendment.”); O'Keefe
v. Passaic Valley Water Comm'n,
132 N.J.
234, 242, 624 A.2d
578 (1993) (same). The testing program must, therefore, meet
the reasonableness requirement of both the Fourth Amendment and Article
1, Paragraph 7.
-B-
[2] Generally, under the Fourth Amendment and under Article
I, Paragraph 7, searches or seizures conducted
without a warrant *544 based on
probable cause are considered per se unreasonable. See, e.g., Horton
v. California,
496 U.S.
128, 133, 110 S.Ct.
2301, 2306, 110 L.Ed.2d
112, 120 (1990) (observing “general rule that
warrantless searches are presumptively unreasonable”); State
v. Hempele,
120 N.J.
182, 217, 576 A.2d
793 (1990) ( “The New Jersey Constitution
requires the approval of an impartial judicial officer based on probable cause
before most searches may be undertaken.
Any warrantless search is prima facie invalid.” (citations and
internal quotations omitted)). The
validity of a warrantless search may, however, be established if the government
demonstrates that the search falls within one of the recognized exceptions to
the warrant requirement.
[3] Traditional exceptions to the warrant requirement have been based on a showing either of probable cause or of reasonable individualized suspicion to believe that the person to be searched has violated the law. See, e.g., United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (permitting search of vehicle when there was probable cause to believe that vehicle contained contraband); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (permitting police officers to stop suspect based on individualized suspicion that person stopped may have been involved in criminal activity); State v. Davis, 104 N.J. 490, 505-08, 517 A.2d 859 (1986) (allowing investigatory stop when police officer had particularized suspicion of possible criminal activity by defendant); State v. Martin, 87 N.J. 561, 567-71, 436 A.2d 96 (1981) (allowing search of automobile when probable cause existed to believe automobile had been used in robbery). In certain limited circumstances, however, searches conducted without probable cause or reasonable individualized suspicion have been upheld. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (permitting sobriety checkpoints at which state police stop all car