Supreme Court of New Jersey.
Willie H. RAWLINGS, Plaintiff-Appellant,
v.
POLICE DEPARTMENT OF JERSEY CITY, NEW JERSEY, Defendant-Respondent.
Argued Feb. 1, 1993.
Decided July 13, 1993.
Police officer challenged dismissal for refusal to submit to drug test after officer was arrested. The Merit System Board upheld the dismissal. The Superior Court, Appellate Division, affirmed, and officer appealed. After granting certiorari 130 N.J. 18, 611 A.2d 656, the Supreme Court, Pollock, J., held that: (1) individualized reasonable suspicion of drug use satisfied requirements of Fourth Amendment; (2) evidence supported board's finding of reasonable suspicion of officer's drug use; (3) requiring officer to provide urine sample did not violate Fifth Amendment; (4) attorney-client privilege did not prevent disclosure of conversation between officer and union representative; and (5) dismissal was fairly proportionate to offense.
Affirmed.
O'Hern, J., filed dissenting opinion in which Stein, J., joined.
West Headnotes
[1] Searches and Seizures 349 
14
349 Searches and Seizures
349I In General
349k13 What Constitutes Search or Seizure
349k14 k. Taking Samples of Blood, or Other Physical
Specimens; Handwriting Exemplars. Most
Cited Cases
Drug test
performed pursuant to government's departmental regulation is “search” subject
to requirements of Fourth Amendment. U.S.C.A.
Const.Amend. 4.
[2] Searches and Seizures 349 23
349 Searches and Seizures
349I In General
349k23 k. Fourth Amendment and Reasonableness in General. Most
Cited Cases
Search may
be valid absent warrant, probable cause, or even reasonable individualized
suspicion if search serves special governmental needs beyond normal need for
law enforcement, and interests of government outweigh privacy expectations of
individual so that it is impractical to require warrant or some level of
individualized suspicion. U.S.C.A.
Const.Amend. 4.
[3] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Police
department had compelling interest in performing drug test on police officer
after his arrest; order designed to
deter drug use by police officers and identify officers using drugs served “special
governmental needs”. U.S.C.A.
Const.Amend. 4.
[4] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Police
officer had diminished expectation of privacy for purposes of determining
employer's right to test officer for drugs.
U.S.C.A.
Const.Amend. 4.
[5] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Effective
inquiry into police officer's fitness and probity may include urinalysis to
detect use of illegal drugs. U.S.C.A.
Const.Amend. 4.
[6] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Police
department's interest in ordering drug test of officer who was arrested
significantly outweighed officer's privacy interest in freedom from drug
testing, for purposes of determining whether exception to Fourth Amendment's
warrant and probable cause requirements applied. U.S.C.A.
Const.Amend. 4.
[7] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
To justify
directive that police officer provide urine sample for drug test, Fourth
Amendment requires only reasonable suspicion, not probable cause. U.S.C.A.
Const.Amend. 4.
[8] Municipal Corporations 268 185(10)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of Policemen
268k185(10) k. Sufficiency of Evidence to Support Finding or Decision.
Most
Cited Cases
Evidence
supported Merit System Board's finding that drug testing of city police officer
was based on individualized reasonable suspicion, where three members of
narcotics squad observed officer participating in suspected drug transaction,
vials of cocaine were discovered on floor on passenger side of officer's
vehicle and on adjacent sidewalk, and officer was the only participant with
cash; department could reasonably have
concluded that officer had used drugs. U.S.C.A.
Const.Amend. 4.
[9] Municipal Corporations 268 185(9)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of Policemen
268k185(9) k. Evidence in General. Most
Cited Cases
Fourth
Amendment does not compel exclusion from departmental disciplinary proceeding
of evidence that city police officer refused to submit to drug test that
department requested based on individualized reasonable suspicion that officer
had used illegal drugs. U.S.C.A.
Const.Amend. 4.
[10] Municipal Corporations 268 185(3)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of Policemen
268k185(3) k. Proceedings to Remove in General. Most
Cited Cases
Police
officer does not necessarily acquire greater rights in disciplinary proceeding
merely because he or she was arrested and indicted for related criminal
offenses.
[11] Criminal Law 110 393(1)
110 Criminal Law
110XVII Evidence
110XVII(I) Competency in General
110k393 Compelling Self-Incrimination
110k393(1) k. In General. Most
Cited Cases
Police
department's direction to officer to provide urine sample after officer was
arrested did not violate officer's Fifth Amendment right against
self-incrimination; officer was not
required to testify against himself. U.S.C.A.
Const.Amend. 5.
[12] Criminal Law 110 393(1)
110 Criminal Law
110XVII Evidence
110XVII(I) Competency in General
110k393 Compelling Self-Incrimination
110k393(1) k. In General. Most
Cited Cases
Witnesses 410 297(1)
410 Witnesses
410III Examination
410III(D) Privilege of Witness
410k297 Self-Incrimination
410k297(1) k. In General. Most
Cited Cases
Privilege
against self-incrimination protects accused from testifying against himself or
herself, not from providing bodily fluids such as urine samples for chemical
analysis. U.S.C.A.
Const.Amend. 5.
[13] Criminal Law 110 393(1)
110 Criminal Law
110XVII Evidence
110XVII(I) Competency in General
110k393 Compelling Self-Incrimination
110k393(1) k. In General. Most
Cited Cases
For
purposes of determining whether Fifth Amendment privilege against
self-incrimination is violated, there is no difference between testing blood or
breath for alcohol and testing urine for illegal drugs. U.S.C.A.
Const.Amend. 5.
[14] Municipal Corporations 268 185(10)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of Policemen
268k185(10) k. Sufficiency of Evidence to Support Finding or Decision.
Most
Cited Cases
Evidence
supported Merit System Board's determination that arrested city police officer
refused to submit urine sample for drug testing because he was afraid he would
fail the test, rather than because he was confused over privilege against
self-incrimination. U.S.C.A.
Const.Amend. 5.
[15] Witnesses 410 199(1)
410 Witnesses
410II Competency
410II(D) Confidential Relations and Privileged Communications
410k197 Communications to or Advice by Attorney or Counsel
410k199 Relation of Attorney and Client
410k199(1) k. In General. Most
Cited Cases
Attorney-client
privilege did not prevent disclosure of conversation between arrested police
officer who refused to submit to drug test and officer's union representative
who was not attorney or attorney's agent.
[16] Witnesses 410 198(1)
410 Witnesses
410II Competency
410II(D) Confidential
Relations and Privileged Communications
410k197 Communications to or Advice by Attorney or Counsel
410k198 In General
410k198(1) k. In General. Most
Cited Cases
Witnesses 410 206
410 Witnesses
410II Competency
410II(D) Confidential Relations and Privileged Communications
410k197 Communications to or Advice by Attorney or Counsel
410k206 k. Communications Through or in Presence or Hearing of
Others. Most
Cited Cases
Attorney-client
privilege covers only communications between client and lawyer, and client's
communications made through necessary intermediaries and agents. Rules of Evid., N.J.S.A. 2A:84A, Rule 26.
[17] Municipal Corporations 268 185(1)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of Policemen
268k185(1) k. Grounds for Removal or Suspension. Most
Cited Cases
Dismissal
is fairly proportionate to offense of city police officer who refuses to submit
to drug test when his or her supervisor has reasonable suspicion to believe
that officer has used illegal drugs.
**603*185 Emanuel S. Fish,
Maplewood, for appellant (Fish, Field, Olesnycky & Livingston,
attorneys; Stacy
I. Benson, on the brief).
Carol
Zylbert, Asst. Corp. Counsel, for respondent (Paul
W. Mackey, Acting Corp. Counsel, attorney).
The
opinion of the Court was delivered by
POLLOCK,
J.
This case
presents the issue whether defendant, Police Department of Jersey City (the
department), violated the rights of plaintiff, Willie H. Rawlings, a police
officer, under the Fourth and Fifth Amendments to the United States
Constitution by directing him to submit a urine sample for mandatory drug
testing. The department directed him to
provide the sample pursuant to a departmental order that required officers to
submit to testing on individualized reasonable suspicion that the officer
unlawfully had used drugs. Plaintiff
refused to obey the order following his *186
arrest on suspicion of possessing and distributing cocaine. Because of plaintiff's refusal, the
department dismissed him for insubordination.
An Administrative Law Judge (ALJ) upheld the validity of the
departmental order and affirmed plaintiff's dismissal. The Merit System Board (Board) adopted the
ALJ's report. In an unpublished
opinion, the Appellate Division affirmed.
We granted certification, **604130
N.J.
18, 611 A.2d 656 (1992), and
now affirm the Appellate Division's judgment.
-I-
Based on
the ALJ's report, the Board found the following facts. On June 26, 1988, members of the Jersey City
Police Narcotics Squad arrested plaintiff on suspicion of selling cocaine. At the time of his arrest, plaintiff was
sitting in the driver's seat of his parked car. His passenger, Elwood Fowlkes, was talking
through the open passenger-side window to Dennis Williams, who was standing on
the sidewalk. When two detectives from
the Narcotics Squad approached plaintiff's car, Williams threw a vial of
cocaine to the sidewalk, and Fowlkes dropped two other vials of cocaine on the
floor of the car. One of the detectives
testified that he saw plaintiff drop an empty vial on the floor at plaintiff's
feet. The Narcotics Squad detectives
also saw money being exchanged for the cocaine. The only suspect with any money was
plaintiff, who had a twenty-dollar bill in his hand.
Plaintiff,
Fowlkes, and Williams were arrested and placed in a holding cell. Inspector John McAuley informed Richard
Harrison, the head of the Narcotics Squad, that plaintiff at the time of his
arrest should have been on duty at the police “car pound.” McAuley directed Harrison to enforce
departmental General Order 15-87 (the order), relating to “Law Enforcement Drug
Screening Guidelines.” The order
provided in relevant part:
(c)
Officers will be required to submit to mandatory drug testing whenever there is
individualized reasonable suspicion to believe that they have been unlawfully
using drugs;
(d)
Officers who refuse to submit to lawful orders to undergo drug testing or who
produce positive test results for unlawful drug use will be dismissed from
employment....
*187 The order also mandated that the
department implement the Law Enforcement Drug Screening Guidelines
issued on October 22, 1986, by the Attorney General of New Jersey.
Harrison
read to plaintiff Miranda warnings, see Miranda
v. Arizona,
384 U.S.
436, 86 S.Ct.
1602, 16 L.Ed.2d
694 (1966), and the order. Plaintiff placed a private telephone call to
Officer John Reo, vice president of the Jersey City Police Officers' Benevolent
Association (POBA), plaintiff's union.
When Reo asked plaintiff if he had retained an attorney, plaintiff
answered that he would call an attorney the following day. According to Reo, plaintiff next said that
he doubted that he could pass the drug test and asked if he should comply with
the departmental order. Reo told
plaintiff that he was required to take the test, but added that if he, Reo,
doubted that he could pass the test, he would refuse.
After the
telephone call, Harrison again read the order to plaintiff, who refused to
comply, stating that before he would consider submitting a urine sample he
wanted to speak with his attorney.
McAuley suspended plaintiff and issued a preliminary notice of
disciplinary action charging him with violating General Order 610, which requires
officers to obey and execute promptly the lawful orders of their superiors,
such as General Order 15-87. After an
internal hearing on July 26, 1988, the department dismissed plaintiff for
insubordination.
In a
related criminal proceeding, plaintiff was indicted for illegal distribution of
a controlled dangerous substance and related offenses. At the criminal trial, Fowlkes testified
that plaintiff did not know at the time of the arrest that he and Williams had
possessed cocaine. Fowlkes testified
further that plaintiff had received the twenty-dollar bill in payment for
repairing a neighbor's air conditioner.
The jury convicted Fowlkes but acquitted plaintiff.
Plaintiff
appealed the dismissal to the State Department of Personnel, which forwarded
the appeal to the Office of Administrative Law (OAL). The ALJ refused to quash a subpoena served
on Reo, who then testified about his telephone conversation with *188 plaintiff. At the conclusion of the hearing, the ALJ
sustained the charge of insubordination and the dismissal.
**605 The Appellate Division stated that
plaintiff had not challenged the Board's finding that the circumstances of his
arrest gave rise to reasonable individualized suspicion that he had used
illegal drugs. It also ruled that the
attorney-client privilege did not protect plaintiff's telephone conversation
with Reo. Finally, it rejected
plaintiff's claim that he had refused to submit a urine sample because he was
confused about the impact of the Miranda warnings or because he feared
that the drug-test results could be used against him in a criminal proceeding.
-II-
[1] A drug test performed pursuant to a departmental
regulation, such as General Order 15-87, 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) (citing Skinner
v. Railway Labor Executives' Ass'n,
489 U.S.
602, 617, 109 S.Ct.
1402, 1413, 103 L.Ed.2d
639, 660 (1989);
National
Treasury Employees Union v. Von Raab,
489 U.S.
656, 665, 109 S.Ct.
1384, 1390, 103 L.Ed.2d
685, 701 (1989)). Consequently, the test must meet the
reasonableness requirement of the Fourth Amendment, National
Treasury Employees Union v. Von Raab,
489 U.S.
656, 665, 109 S.Ct.
1384, 1390, 103 L.Ed.2d
685, 701-02 (1989), which “ ‘depends on all the
circumstances surrounding the search or seizure [drug test],’ ” Skinner
v. Railway Labor Executives' Ass'n,
489 U.S.
602, 619, 109 S.Ct.
1402, 1414, 103 L.Ed.2d
639, 661 (1989) (quoting United
States v. Montoya de Hernandez,
473 U.S.
531, 537, 105 S.Ct.
3304, 3308, 87 L.Ed.2d
381, 388 (1985)).
[2] Generally, searches must be based on a warrant supported
by probable cause. In exceptional
circumstances, a search may be valid in the absence of a warrant, probable
cause, or even reasonable individualized suspicion. Von
Raab, supra,
489 U.S.
at 665, 109 S.Ct.
at 1390, 103 L.Ed.2d
at 702; Skinner,
supra,
489 U.S.
at 619, 109 S.Ct.
at 1414, 103 L.Ed.2d
at 661.
Specifically, when the search “serves special governmental needs, beyond
the normal *189 need for law
enforcement,” a court must balance the privacy expectations of the individual
against the interests of the government “to determine whether it is impractical
to require a warrant or some level of individualized suspicion....” Von
Raab, supra,
489 U.S.
at 665-66, 109 S.Ct.
at 1390, 103 L.Ed.2d
at 702; accord
Skinner,
supra,
489 U.S.
at 619, 109 S.Ct.
at 1414, 103 L.Ed.2d
at 661 (citing Griffin
v. Wisconsin,
483 U.S.
868, 873, 107 S.Ct.
3164, 3167, 97 L.Ed.2d
709, 717 (1987)).
[3] The challenged order, which is designed to deter drug use
by police officers and identify officers who are using drugs, serves “special
governmental needs.” It follows that
the department had a compelling interest in testing plaintiff after his
arrest. The threat to public safety of
a police officer acting under the influence of drugs is “manifest.” National
Fed'n of Fed. Employees v. Cheney,
884 F.2d
603, 612 (D.C.Cir.1989), cert. denied, 493
U.S.
1056, 110 S.Ct.
864, 107 L.Ed.2d
948 (1990).
An officer's authorization to carry firearms, see N.J.S.A.
2C:39-6a(7), and the unpredictable demands of his or her job make the daily
routine “ ‘fraught with such risks of injury to others that even a momentary
lapse of attention can have disastrous consequences.’ ” American
Fed'n of Gov't Employees, Local 1533 v. Cheney,
754 F.Supp.
1409, 1423 (N.D.Cal.1990) (quoting Von
Raab, supra,
489 U.S.
at 670, 109 S.Ct.
at 1393, 103 L.Ed.2d
at 705), aff'd, 944
F.2d
503 (9th Cir.1991). Every police officer understands that an
officer who uses or sells drugs is a threat to the public.
[4] [5] [6] Drug testing serves to deter the use of illegal drugs by law-enforcement officials. As a police officer, plaintiff had a diminished expectation of privacy. The department entrusted him to carry firearms, drive emergency vehicles, and “exercis[e] the most awesome and dangerous power that a democratic state possesses with respect to its residents-the power to use lawful force to arrest and detain them.” Policemen's Benevolent Ass'n of N.J. v. Township of Washington, 850