(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued April 28, 1997 -- Decided September 25, 1997
PORITZ, C.J., writing for a unanimous Court.
Plaintiff challenges the constitutionality of the random drug testing provisions applicable to NJ
Transit police officers.
Defendant, NJ Transit, is a public corporation within the Department of Transportation responsible
for acquiring, operating, and improving public transportation facilities in New Jersey. Defendant's enabling
legislation states that it is authorized to comply with federal statutes and regulations and to qualify for and
receive all forms of financial assistance available under federal law. At the present time, defendant receives
substantial federal funding from the Federal Transit Administration (FTA) which, by the end of fiscal year
1996, had contracted to provide approximately $1 billion in current and future assistance to defendant.
Plaintiff is the majority representative of approximately one hundred twenty-five transit police
officers under the rank of captain. Six officers are assigned to ride on the Agency's trains; 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 defendant's main terminals in Newark, Hoboken
and Atlantic city, and carry out their responsibilities among heavy concentrations of transit riders.
In 1991 congress enacted the Omnibus Transportation Employee Testing Act of 1991 (Act), to
address alcohol and drug testing of workers in safety-sensitive positions throughout the transportation
industry. The Act directs the issuance of rules requiring mass transit operators receiving federal funds to
conduct pre-employment, random, and post-accident testing for drug and alcohol use by employees
responsible for safety-sensitive functions. Congress expressly provided that failure to institute the specified
drug and alcohol testing programs would result in ineligibility for federal funding. Regulations issued by the
FTA under the Act provide for random drug and alcohol testing of covered employees, defined as those
employees who perform safety-sensitive functions that include, among other things, carrying a firearm for
security purposes.
For purposes of complying with the FTA regulations, defendant instituted a comprehensive drug-and-alcohol-free workplace policy that became effective January 1, 1995. The policy requires that employees
who perform safety-sensitive functions be subject to random drug testing. Because transit police officers
carry firearms for security purposes, they perform a safety-sensitive function and are subject to random
testing.
Defendant's policy establishes procedures to ensure integrity in collecting, transferring, and testing
specimens. Specimens are handled by a trained medical technician or licensed medical professional only.
Unless defendant has reason to believe that the donor may adulterate the sample, individual privacy must be
permitted during collection. Two urine samples are obtained - a primary specimen and a split specimen.
The primary specimen is tested at a laboratory certified under the Department of Health and Human
Services' for federal workplace drug testing. Test results are not deemed positive until they are reviewed
and certified by a licensed physician with knowledge of substance abuse disorders. If the primary specimen
tests positive, the employee has 72 hours in which to exercise his or her option to have the split specimen
tested by a different certified laboratory.
Positive test results are reported to the appropriate management official and the employee. Records
of testing results are maintained in a secure location with controlled access. Results may be released on
request of the employee, to the employer in a lawsuit or grievance initiated by the employee, or to a federal
or state agency with regulatory authority over defendant. In addition, in accordance with the Attorney
General's Guidelines, positive results are included in a central registry maintained by the State Police to be
accessed only through court order or as part of a confidential investigation; and reported to the county
prosecutor. A transit officer who tests positive for illegal drugs must be dismissed.
In 1995, plaintiff filed a complaint alleging that defendant's random drug and alcohol testing of
transit officers constituted an illegal search in violation of Article I, Paragraph 7 of the New Jersey
Constitution. As a defense, defendant asserted that the Act preempted state action inconsistent with the
required testing programs. The trial court found that preemption did not apply because defendant 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 Appellate Division affirmed in a unanimous opinion. It adopted the “special needs” balancing
test used by the United States Supreme Court in recent decisions. 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 signs of impairment become noticeable outweighed the
privacy interests of transit police officers. This Court granted certification.
HELD: Random drug testing of NJ Transit's police force is constitutional under Article 1, Paragraph 7 of
the New Jersey Constitution.
1. Generally, under either the United States or New Jersey Constitutions, searches or seizures conducted
without a warrant based on probable cause are considered per se unreasonable. 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. In certain limited
circumstances, however, searches conducted without probable cause or reasonable individualized suspicion
have been upheld. In 1989, in two cases decided the same day, the United States Supreme Court considered
suspicionless drug testing of certain private railroad workers (Skinner) and certain United States Customs
employees (Von Raab). These cases, along with others decided in 1995 and 1997, provide a framework for
review of governmental drug testing under the Fourth Amendment of the United States Constitution. Under
these cases, a suspicionless search may be permissible when the search serves special needs beyond the
normal need for law enforcement. Once the government claims a special need, courts must undertake a
context-specific inquiry, examining the competing private and public interests advanced by the parties. The
inquiry requires a court to assess the practicality of the warrant and probable-cause requirements in the
particular context. (pp. 14-21)
2. The Supreme Court found that the individuals subject to testing in Skinner (railroad employees) had a
diminished expectation of privacy because they worked in a highly regulated industry; and that those in Von
Raab worked in an agency with a unique mission (Customs) and could reasonably expect effective inquiry
into their fitness. In Von Raab, the court sustained the testing of employees carrying firearms even if they
were not engaged directly in the interdiction of drugs, stating that the public should not bear the risk that
those with impaired perception and judgment will be promoted to positions where they may need to employ
deadly force. Post-Skinner/Von Raab cases that have considered challenges to random drug testing
programs under the Fourth Amendment and parallel state constitutional provisions have generally upheld the
testing of armed police officers as consistent with the Supreme Court's decisions.
(pp. 22-31)
3. Plaintiff argues that the special needs analysis is not compatible with Article 1, Paragraph 7 of the New Jersey Constitution. This Court has, in certain circumstances, found the State Constitution to afford greater
protection against unreasonable searches and seizures than its federal counterpart. The Court finds in this
case, however, that the special needs balancing test is consonant with the protections afforded by Article I,
Paragraph 7 of the New Jersey Constitution and adopts this approach in considering defendant's drug testing
program. This approach enables a court to take into account the complex factors relevant in each case and
to balance those factors in such a manner as to ensure that the right against unreasonable searches and
seizures is adequately protected. (pp. 31-35)
4. Transit officers ride the rails and perform patrol and investigatory police duties at terminals and locations
throughout the State. They perform these duties independently, and are not subject to the kind of day-to-day
scrutiny that is the norm in more traditional office environments. Requiring defendant to comply with the
individualized suspicion standard would be impractical and would compromise defendant's safety objectives.
Because the testing policy is designed to promote public safety and not to serve law enforcement needs,
defendant's substantial interest in protecting its employees and the public presents a special need that may
justify privacy intrusions absent individualized suspicion. (pp. 35-36)
5. The next step is to undertake a context-specific inquiry examining closely the competing private and
public interests advanced by the parties. Urine testing is certainly an intrusion on privacy both during
collection of the sample and when the sample is tested. Defendant's testing procedures, however, are
designed to address these privacy concerns and minimize the intrusion on the employee's privacy. They
require that the urine sample be collected in a manner that ensures modesty and privacy of employees.
Samples are tested by a certified laboratory; results must be verified by a licensed physician; employees have
the right to have another test performed by a different laboratory; and results may be revealed only in
limited situations. The Court finds that NJ Transit's drug testing program, as designed, limits the intrusion
on transit officers' privacy interests. The government's interest in conducting random drug testing of transit
officers who carry firearms for security purposes is substantial. Given the nature of their responsibilities,
transit officers, unlike private citizens or government employees in general, should expect an effective inquiry
into their fitness and probity. If armed transit officers perform their duties under the influence of drugs, the
potential for harmful consequences is considerable. (pp. 36-44)
The judgment of the Appellate Division is AFFIRMED.
JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in
CHIEF JUSTICE PORTIZ'S opinion.
SUPREME COURT OF NEW JERSEY
A-
130 September Term 1996
NEW JERSEY TRANSIT PBA LOCAL 304,
Plaintiff-Appellant,
v.
NEW JERSEY TRANSIT CORPORATION,
Defendant-Respondent.
Argued April 28, 1997 -- Decided September 25, 1997
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
290 N.J. Super. 406 (1996).
Stephen B. Hunter argued the cause for
appellant (Klausner and Hunter, attorneys).
Robert A. Shire, Deputy Attorney General,
argued the cause for 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 argued the cause for amicus curiae
American Civil Liberties Union of New Jersey
(Tomar, Simonoff, Adourian, O'Brien, Kaplan,
Jacoby & Graziano, attorneys).
Anthony J. Fusco, Jr., submitted a brief on
behalf of amicus curiae New Jersey State
Lodge of Fraternal Order of Police.
Paul L. Kleinbaum 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 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
affirmed.
290 N.J. Super. 406 (1996). We granted certification,
147 N.J. 259 (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.
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," 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.
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).
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 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.
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 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.
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 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.See footnote 1 Id. § IX.G.4. If
either primary specimen 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.
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 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. 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.
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.See footnote 2 The trial court found that preemption did not 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.
The Appellate Division affirmed in a unanimous opinion.
290 N.J. Super 406 (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 (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. 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 (quoting Skinner, supra, 489
U.S. at 628, 109 S. Ct. at 1419, 103 L. Ed.
2d at 667).
Article 1, Paragraph 7 of the New Jersey Constitution states:
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 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 (1994).
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 (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 (1993) (same). The
testing program must, therefore, meet the reasonableness
requirement of both the Fourth Amendment and Article 1,
Paragraph 7.
Generally, under the Fourth Amendment and under Article I, Paragraph 7, searches or seizures conducted without a warrant 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 (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.
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 (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 (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
cars to examine drivers for signs of intoxication); United States
v. Martinez-Fuerte,
428 U.S. 543,
96 S. Ct. 3074,
49 L. Ed.2d 1116 (1976) (allowing border patrol to stop vehicles at
immigration checkpoints to inquire about citizenship and
immigration status of occupants). Of particular relevance here,
administrative searches of highly or pervasively regulated
industries have been permitted without probable cause or
individualized suspicion. See, e.g., New York v. Burger,
482 U.S. 691,
107 S. Ct. 2636,
96 L. Ed.2d 601 (1987) (upholding
suspicionless search of automobile junkyard); United States v.
Biswell,
406 U.S. 311,
92 S. Ct. 1593,
32 L. Ed.2d 87 (1972)
(upholding suspicionless search of gun dealer's locked
storeroom); Colonnade Catering Corp. v. United States,
397 U.S. 72,
90 S. Ct. 774,
25 L. Ed.2d 60 (1970) (permitting
suspicionless searches of premises of liquor licensees); In re
Martin,
90 N.J. 295, 310-16 (1982) (allowing New Jersey Division
of Gaming Enforcement to conduct suspicionless searches of casino
licensees).
The pervasively regulated industry exception to the warrant
requirement has generally been applied to businesses that have a
"long tradition of close government supervision." Marshall v.
Barlow's, Inc.,
436 U.S. 307, 313,
98 S. Ct. 1816, 1821, 56
L. Ed.2d 305, 312 (1978). But see Donovan v. Dewey,
452 U.S. 594, 605-06,
101 S. Ct. 2534, 2541-42,
69 L. Ed.2d 262, 273
(stating that primary factor in applying exception is not length
of time business has been regulated, but rather "pervasiveness
and regularity" of regulation). Both the federal courts and our
New Jersey courts have found that persons who engage in
industries "`subject to close supervision and inspection'" have a
diminished expectation of privacy. In re Martin, supra, 90 N.J.
at 313-14 (finding that casino employees have a "limited"
expectation of privacy based on pervasive regulation of casino
industry); see Biswell, supra, 406 U.S. at 316, 92 S. Ct. at
1596, 32 L. Ed.
2d at 92-93 (firearms industry); Colonnade,
supra, 397 U.S. at 77, 90 S. Ct. at 777, 25 L. Ed.
2d at 64-65
(alcohol industry); New Jersey Dep't of Envtl. Protection v.
Duran,
251 N.J. Super. 55, 62-63 (App. Div. 1991) (fishing
industry). Nonetheless, warrantless searches conducted under the
pervasively regulated industry exception are
deemed to be reasonable only so long as three
criteria are met. First there must be a
"substantial" government interest that
informs the regulatory scheme pursuant to
which the inspection is made. . . .
Second, the warrantless inspections must
be "necessary to further [the] regulatory
scheme." . . .
[And, f]inally, "the statute's inspection
program, in terms of the certainty and regularity
of its application [must] provid[e] a
constitutionally adequate substitute for a
warrant."
[Burger, supra, 482 U.S. at 702-03,
107 S. Ct. at 2644, 96 L. Ed.
2d at
614 (citations omitted).]
In the 1980's, a number of courts applied the highly regulated industry exception to uphold random drug testing of employees in certain industries. See, e.g., Rushton v. Nebraska Public Power Dist., 844 F.2d 562, 566-67 (8th Cir. 1988) (upholding suspicionless drug testing of nuclear power plant employees); Shoemaker v. Handel, 795 F.2d 1136, 1141-43 (3d Cir.)
(upholding random breathalyzer and urine testing of licensed
jockeys and other track personnel), cert. denied,
479 U.S. 986,
107 S. Ct. 577,
93 L. Ed.2d 580 (1986). In Shoemaker, supra,
the Third Circuit sustained regulations of the New Jersey Racing
Commission requiring random drug testing of jockeys on horse
racing days. 795 F.
2d at 1141-43. The court observed that since
1939, when New Jersey amended its Constitution to legalize horse
racing, "the horse racing industry has been among the state's
most highly regulated industries." Id. at 1141. Finding that
"New Jersey has a strong interest in assuring the public of the
integrity of the persons engaged in the horse racing industry,"
and that the jockeys had been "put on notice" they would be
tested, the court applied the pervasively regulated industry
exception to the Commission's drug testing program. Id. at 1142.
The court concluded that the program was "sufficiently
circumscribed" by implementing guidelines that limited the
discretion of those responsible for testing and upheld the
Commission's regulations. Id. at 1143.
We observe that before 1989, courts that reviewed programs
designed to test police officers for drug use differed about
whether the officers fell within the highly regulated industry
exception. Compare Policemen's Benevolent Ass'n of New Jersey,
Local 318 v. Township of Washington,
850 F.2d 133, 136-41 (3d
Cir. 1988) ("PBA Local 318") (finding that police are members of
highly regulated industry and upholding suspicionless drug
testing of police officers), cert. denied,
490 U.S. 1004, 109 S.
Ct. 1637,
104 L. Ed.2d 153 (1989) with Capua v. City of
Plainfield,
643 F. Supp. 1507, 1518-19 (D.N.J. 1986) (finding
that fire fighters are not members of pervasively regulated
industry), and FOP, supra, 216 N.J. Super. at 469. (holding that
police officers are not members of highly regulated industry).
This divergence in views depended on the courts' focus. The FOP
court, for example, reasoned that police officers were not
engaged in
a "`commercial enterprise' . . . subject to a
`comprehensive and defined' regulatory scheme." Id. (citations
omitted). In PBA Local 318, the court looked to the statutes and
regulations governing police conduct, without considering whether
police work is an industry in the traditional sense, and found
that police officers were members of a highly regulated industry.
850 F.
2d at 141; cf. In re Caruso,
530 N.E.2d 850, 852-55 (N.Y.
1988) (permitting random drug testing of police officers involved
in elite crime unit based, in part, on heightened regulation of
unit); McDonell v. Hunter,
809 F.2d 1302, 1306, 1307-08 (8th Cir.
1987) (permitting random drug testing of corrections officers
because officers' "subjective expectations of privacy are
diminished while they are in the confines of the prison" and
because of "institutional interest in prison security").
In 1989, in two cases decided on the same day, the United
States Supreme Court considered suspicionless drug testing of
certain private railroad workers under regulations of the Federal
Railroad Administration, Skinner, supra, 489 U.S. at 602, 109
S. Ct. at 1402, 103 L. Ed.
2d at 639, and certain United States
Customs employees, Von Raab, supra, 489 U.S. at 656, 109 S. Ct.
at 1384, 103 L. Ed.
2d at 685. Skinner and Von Raab, along with
two other cases decided in 1995 and 1997, Vernonia School Dist.
47J v. Acton,
515 U.S. 646, 1
155 S. Ct. 2386,
132 L. Ed.2d 564
(1995) and Chandler v. Miller, 520 U.S. ___,
117 S. Ct. 1295,
137 L. Ed.2d 513 (1997), provide a framework for review of
governmental drug testing under the Fourth Amendment of the
United States Constitution.
Under the Skinner/Von Raab line of cases, a suspicionless
search may be permissible when the search serves "`special needs,
beyond the normal need for law enforcement.'" Chandler, supra,
520 U.S. at ___, 117 S. Ct. at 1301, 137 L. Ed.
2d at 523
(quoting Skinner, supra, 489 U.S. at 619,
109 S. Ct. 103 L. Ed.
2d at 661). Once the government claims a special need, "courts
must undertake a context-specific inquiry, examining closely the
competing private and public interests advanced by the parties."
Id. at ___, 117 S. Ct. at 1301, 137 L. Ed.
2d at 523. This fact-specific inquiry requires a court to "assess the practicality of
the warrant and probable-cause requirements in [each] particular
context." Skinner, supra, 489 U.S. at 619, 109 S. Ct. at 1414,
103 L. Ed.
2d at 661. "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. at 1417,
103 L. Ed 2d at
664. Especially in the drug testing context, the government's
special need "must be substantial--important enough to override
the individual's acknowledged privacy interest, [and]
sufficiently vital to suppress the Fourth Amendment's normal
requirement of individualized suspicion." Chandler, supra, 520
U.S. at ___, 117 S. Ct. at 1303, 137 L. Ed.
2d at 526.
The Appellate Division applied the Skinner/Von Raab special
needs test and upheld NJ Transit's program. The panel's approach
is consonant with this Court's analysis in Hennessey v. Coastal
Eagle Point Oil Co.,
129 N.J. 81, 105-07 (1992), wherein the
court found "the impracticality of less-intrusive means of
detecting drug use and the urgent need to ensure public safety"
to outweigh the employee's privacy interests in upholding urine
testing for persons in safety-sensitive jobs. Ibid.; see also
O'Keefe, supra, 132 N.J. at 242-46 (reviewing the special needs
test in dicta); Hempele, supra, 120 N.J. at 218-19 (finding
special needs test not applicable to governmental search of
garbage because no special need was identified); International
Fed'n of Prof'l & Technical Eng'rs, Local 194A v. Burlington
County Bridge Comm'n,
240 N.J. Super. 9, 24-25 (App. Div.)
(applying special needs test in upholding urine testing of bridge
workers at annual physical examinations), certif. denied,
122 N.J. 183 (1990).
Skinner, Von Raab, and Vernonia sustained suspicionless drug testing after finding a special governmental need that would be jeopardized by adherence to the individualized suspicion standard. The Supreme Court found that the individuals subject to testing had a diminished expectation of privacy because they worked in a highly regulated industry, Skinner, supra, 489 U.S. at 627, 109 S. Ct. at 1418, 103 L. Ed. 2d at 666, or worked for an agency with a "unique mission" where employees "reasonably should expect effective inquiry into their fitness and probity," Von Raab, supra, 489 U.S. at 671-72, 674, 109 S. Ct. at 1394, 103 L. Ed. 2d at 706-07, or were school children who traditionally are not afforded the same constitutional protections as adults, Vernonia, supra, 515 U.S. at ___, 115 S. Ct. at 2391-92, 132
L. Ed. at 575-76.
In Skinner, the Federal Railroad Administration ("FRA") issued regulations requiring railroad employees to submit to blood and urine tests to detect drug and alcohol use whenever they were "involved in certain train accidents."See footnote 3 489 U.S. at 606, 109 S. Ct. at 1407, 103 L. Ed. 2d at 653 (footnote omitted). The regulations also authorized, but did not require, "railroads to administer breath and urine tests to employees who violate[d]
certain safety rules." Id. at 606, 109 S. Ct. at 1407, 103
L. Ed.
2d at 653. The FRA adopted its drug testing policies in
response to evidence indicating "that on-the-job intoxication was
a significant problem in the railroad industry," and documenting
a link between drug and alcohol impairment and train accidents.
Id. at 607, 109 S. Ct. at 1408, 103 L. Ed.
2d at 653. Because
the employees covered by the policies were engaged in safety-sensitive tasks, and because the purpose of the policies was to
promote railway safety and not to prosecute employees for illegal
drug use, the court determined that the government had
"present[ed] `special needs' beyond normal law enforcement." Id.
at 620, 109 S. Ct. at 1415, 103 L. Ed.
2d at 661-62 (citation and
internal quotations omitted).
The Skinner Court was satisfied that the FRA's standardized
testing procedures served a core purpose of the warrant
requirement by providing "assurances of certainty and
regularity," id. at 624, 109 S. Ct. at 1417, 103 L. Ed.
2d at
664, and concluded that delay in testing after an accident or
rule violation could result in the loss of evidence of drug use,
id. at 623, 109 S. Ct. at 1416, 103 L. Ed.
2d at 663-64. In
these circumstances, the Court held that the warrant requirement
would frustrate the purpose of the program. Id. at 623-24, 109
S. Ct. at 1416-17, 103 L. Ed.
2d at 663-64. Turning to the
question whether, even in the absence of a warrant, probable
cause or individualized suspicion should be required, the Court
considered the privacy concerns implicated by the breath, blood
and urine testing. Id. at 624-27, 109 S. Ct. at 1417-18, 103 L.
Ed.
2d at 664-66. The intrusions occasioned by the breath and
blood tests were deemed relatively insignificant because these
tests are fairly commonplace and minimally inconvenient. Id. at
625-26, 109 S. Ct. at 1417-18, 103 L. Ed.
2d at 665.
The Court then addressed the "more difficult question . . .
presented by the urine testing," which implicated privacy
concerns not raised by the breath or blood tests because "the
procedures for collecting the necessary samples . . . require
employees to perform an excretory function traditionally shielded
by great privacy." Id. at 626, 109 S. Ct. at 1418, 103 L. Ed.
2d
at 665-66. Although these concerns were not minimal, the Court
found that the FRA regulations sufficiently limited the
intrusiveness of the procedure by providing first, that the
samples did not have to be furnished under the direct observation
of a monitor, and second, that the collection was to take place
in a medical environment similar to that of a physical
examination. Id. at 626-27, 109 S. Ct. at 1418, 103 L. Ed.
2d at
666. The most important consideration in determining the
intrusiveness of the testing regime was that the employees
subject to testing had a diminished expectation of privacy
because they worked "in an industry that is regulated pervasively
to ensure safety, a goal dependent, in substantial part, on the
health and fitness of the covered employees." Id. at 627, 109 S.
Ct. at 1418, 103 L. Ed.
2d at 666.
The government's interest in testing without individualized
suspicion was found to be compelling because the "[e]mployees
subject to the tests discharge[d] duties fraught with such risks
of injury to others that even a momentary lapse of attention
[could] have disastrous consequences." Id. at 628, 109 S. Ct. at
1419, 103 L. Ed.
2d at 667. Detecting drug use among covered
employees was considered critical because the "employees who
[were] subject to testing under the FRA regulations [could] cause
great human loss before any signs of impairment [became]
noticeable to supervisors or others." Ibid. Balancing the
government's compelling interest in testing against the
employees' limited privacy interests, the Court concluded that it
was "unrealistic, and inimical to the Government's goal of
ensuring safety in rail transportation, to require a showing of
individualized suspicion in these circumstances." Id. at 631,
109 S. Ct. at 1421, 103 L. Ed.
2d at 669. The Court upheld the
FRA's suspicionless drug testing requirements.
Von Raab sustained the United States Customs Service's
suspicionless drug testing of employees prior to placement or
employment in positions requiring them to carry firearms or
involving drug interdiction. 489 U.S. at 656, 109 S. Ct. at
1384, 103 L. Ed.
2d at 685. Although the agency did not claim
that the testing program was a response to a demonstrated drug
problem within the Service, id. at 660, 109 S. Ct. at 1388, 103
L. Ed.
2d at 698, the Court found that testing addressed
important safety concerns associated with work involving drug
interdiction and with "positions that require the incumbent to
carry a firearm," id. at 670-71, 109 S. Ct. at 1393, 103 L. Ed.
2d at 705. These objectives were clearly not designed to serve
ordinary law enforcement needs but, rather, "present[ed] a
special government need that may justify departure from the
ordinary warrant and probable-cause requirements." Id. at 666,
109 S. Ct. at 1391, 103 L. Ed.
2d at 702.
Von Raab dispensed with the warrant requirement for certain
"routine, yet sensitive, employment decisions" because the
cumbersome warrant procedures would compromise the Customs
Service's mission, and because a warrant would not provide any
additional privacy protection beyond the narrowly defined limits
of the existing drug testing program. Id. at 667, 109 S. Ct. at
1391, 103 L. Ed.
2d at 703. The Court found that, in certain
limited circumstances, the government's need to conduct
suspicionless searches "is sufficiently compelling to justify the
intrusion on privacy entailed by conducting such searches." Id.
at 668, 109 S. Ct. at 1392, 103 L. Ed.
2d at 704. With respect
to employees who carry firearms, even if those employees are "not
engaged directly in the interdiction of drugs," the Court
returned, in part, to concerns expressed in Skinner:
Customs employees who may use deadly force plainly "discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." We agree with the Government that the public should not bear the risk that employees who may suffer from impaired perception and judgment will be
promoted to positions where they may need to
employ deadly force. Indeed, ensuring
against the creation of this dangerous risk
will itself further Fourth Amendment values,
as the use of deadly force may violate the
Fourth Amendment in certain circumstances.
[Id. at 670-71, 109 S. Ct. at 1393,
103 L. Ed.
2d at 705 (quoting
Skinner, supra, 489 U.S. at 628,
109 S. Ct. at 1419, 103 L. Ed.
2d
at 667).]
Against this compelling government interest in safety, the
Court weighed the intrusion on the employee's privacy interests.
Comparing employment in the Customs Service to employment in
government agencies such as the United States Mint, the
intelligence service and the military, where employees "may not
only be required to give what in other contexts might be viewed
as extraordinary assurances of trustworthiness and probity, but
also may expect intrusive inquiries into their physical fitness
for those special positions," the Court found that customs
employees "directly involved in the interdiction of illegal drugs
or . . . required to carry firearms in the line of duty have a
diminished expectation of privacy in respect to the intrusions
occasioned by a urine test." Id. at 671-72, 109 S. Ct. at 1394,
103 L. Ed.
2d at 706. "Because successful performance of their
duties depends uniquely on their judgment and dexterity, these
employees cannot reasonably expect to keep from the Service
personal information that bears directly on their fitness." Id.
at 672, 109 S. Ct. at 1394, 103 L. Ed.
2d at 706.
In Vernonia, the Court upheld random drug testing of high
school students participating in interscholastic athletic
competitions. 515 U.S. at 646, 115 S. Ct. at 2386, 132 L. Ed.
2d
at 564. In part, Vernonia turned on the "public-school context,"
where teachers and administrators have a "substantial need . . .
for freedom to maintain order," id. at ___, 115 S. Ct. at 2391,
132 L. Ed.
2d at 574 (citation omitted), and where students
"`have a lesser expectation of privacy than members of the
population generally,'" id. at ___, 115 S. Ct. at 2392, 132
L. Ed.
2d at 577 (citation omitted). Vernonia pointed to a
record of alcohol and drug abuse at the school and stressed the
significance of deterring drug use among school children
generally, and among athletes specifically. Id. at ___, 115
S. Ct. at 2395, 132 L. Ed.
2d at 580. These interests weighed
heavily against the students' diminished expectation of privacy
and tipped the balance such that the Court found the school
district's random drug testing policy reasonable. Id. at ___,
115 S. Ct. at 2396, 132 L. Ed.
2d at 582.
Most recently, the Court reaffirmed the continued validity
of the special needs balancing approach, but struck down a
Georgia statute requiring candidates for designated state offices
to provide proof that they had tested negative for drug use
within thirty days prior to nomination or election. Chandler,
supra, 520 U.S. at ___, 117 S. Ct. at 1299, 137 L. Ed.
2d at 520.
In the Court's view, the State had failed to establish a special
need because it had not presented "any indication of a concrete
danger demanding departure from the Fourth Amendment's main
rule." Id. at ___, 117 S. Ct. at 1303, 137 L. Ed.
2d at 526.
Georgia had not claimed that the testing program was instituted
in response to a drug problem amongst state office holders; to
the contrary, the state had admitted that there was no such
problem. Rather, Georgia said the statute was "justified . . .
because the use of illegal drugs draws into question an
official's judgment and integrity; jeopardizes the discharge of
public functions . . . and undermines public confidence and trust
in elected officials." Id. at ___, 117 S. Ct. at 1303-04, 137
L. Ed.
2d at 526.
The Court acknowledged that, based on Von Raab, a
"demonstrated problem of drug abuse [is] . . . not in all cases
necessary to the validity of a testing regime." Id. at ___, 117
S. Ct. at 1303, 137 L. Ed.
2d at 526 (citing Von Raab, supra, 489
U.S. at 673-75, 109 S. Ct. at 1395, 103 L. Ed.
2d at 707-08).
Justice Ginsburg was, however, quite clear on the significance of
this aspect of Von Raab: "Hardly a decision opening broad vistas
for suspicionless searches, Von Raab must be read in its unique
context." Id. at ___, 117 S. Ct. at 1304, 137 L. Ed.
2d at 527.
She pointed out that the customs officers in Von Raab were
regularly in contact with criminal organizations dealing in large
quantities of drugs and that, unlike high-level state officials,
the officers carried out their responsibilities away from the
scrutiny of their superiors and certainly outside the scrutiny of
the general public. Id. at ___, 117 S. Ct. at 1304, 137 L. Ed.
2d at 527-28 (citation omitted). Justice Ginsburg found
Georgia's testing scheme particularly disturbing because it was
barely "credible [as a] means to deter illicit drug users from
seeking election to state office." Id. at ___, 117 S. Ct. at
1303, 137 L. Ed.
2d at 526. Where the special need was no more
than a symbolic statement about the struggle against drug abuse,
even a minimally intrusive testing program could not be upheld.
Id. at ___, 117 S. Ct. at 1305, 137 L. Ed.
2d at 526.
Post-Skinner/Von Raab cases that have considered challenges
to random drug testing programs under the Fourth Amendment and
parallel state constitutional provisions have generally upheld
the testing of armed police officers as consistent with the
decisions of the Supreme Court. For example, in National
Federation of Federal Employees v. Cheney,
884 F.2d 603, 612-13
(D.C. Cir. 1989), cert. denied,
493 U.S. 1056,
110 S. Ct. 864,
107 L. Ed.2d 948 (1990), the D.C. Circuit sustained, under the
Federal Constitution, the Army's random testing of armed police
and security guards among others, because of their use of and
accessibility to weapons, the dangerous workplace setting, and
the highly regulated nature of their positions. And, in Guiney
v. Roache,
873 F.2d 1557, 1558 (1st Cir.), cert. denied,
493 U.S. 963,
110 S. Ct. 404,
107 L. Ed.2d 370 (1989), the First Circuit
approved random testing of police officers under the Fourth
Amendment because, like the customs employees in Von Raab, police
officers carry firearms and participate in drug interdiction.
The Supreme Court of Hawaii, analyzing random testing of police
officers under a state constitutional provision similar to New
Jersey's Article I, Paragraph 7, has reached the same result.
McCloskey v. Honolulu Police Dep't,
799 P.2d 953, 958-59 (Haw.
1990). Hawaii's high court relied on the police officers'
diminished expectations of privacy and on its finding that the
"testing program [was] not more intrusive than needed" to uphold
the Honolulu Police Department's random testing program. Id. at
958-59. But see Guiney v. Police Comm'r of Boston,
582 N.E.2d 523, 526 (Mass. 1991) (holding Boston Police Department's random
drug testing program unconstitutional under state constitution
because "body searches" cannot be justified by "some generalized
sense that there is a drug problem . . . and that random
urinalyses of police officers will solve, or at least help to
solve, the problem or its consequences").
The PBA argues that the special needs test is not compatible with Article 1, Paragraph 7 of the New Jersey Constitution which this Court has read to provide greater protection than is provided by its federal counterpart. In cases presenting an issue implicating Fourth Amendment and Article I, Paragraph 7 rights, this Court has considered whether our State Constitution is to be interpreted more expansively "than may be required by the [United States] Supreme Court's prevailing interpretation of the Fourth Amendment." State v. Bruzzese, 94 N.J. 210, 216 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed.
2d 695 (1984). We have, in certain circumstances, found that Article 1, Paragraph 7 affords greater protection against unreasonable searches and seizures than does the Federal Constitution. See, e.g., State v. Pierce, 136 N.J. 184, 208-15 (1994) (holding that vehicular search incident to arrest for traffic offense is unreasonable under State Constitution); Hempele, supra, 120 N.J. at 200-15 (finding that state constitution protects reasonable