upholding random urinalysis of police officers volunteering for organized crime unit; noting that officers "have a very diminished expectation of privacy due to their pursuit of service in the elite unit based on conditions known in advance."Summary of this case from Schaill by Kross v. Tippecanoe Cty. Sch. Corp.
Argued September 6, 1988
Decided October 25, 1988
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Stanley Parness, J.
Peter L. Zimroth, Corporation Counsel (Michael S. Adler and Francis F. Caputo of counsel), for appellants. Raymond E. Kerno for respondents.
Members of an elite voluntary corps within the New York City Police Department, the Organized Crime Control Bureau (OCCB), sued the Police Commissioner upon his announcement of a periodic random urinalysis drug-testing program affecting them. The program would require random submission to urinalysis and, thus, differs from the existing unchallenged Department-wide drug-testing program.
Supreme Court and the Appellate Division granted an injunction and annulled the Commissioner's Interim Order No. 36. We reverse, vacate the injunction and dismiss the officers' challenge because the order, on its face, does not transgress State or Federal constitutional safeguards and because it is otherwise premature.
This lawsuit, commenced two days after Interim Order No. 36 was announced, produced injunctive and nullifying relief from the lower courts. Thus, the Commissioner has not officially promulgated implementing regulations specifying the particulars of the program. Two detailed affidavits of the Police Department Chief of Personnel, developed and submitted as part of the evolving litigation, outline an implementation scheme. We cannot rule on those particulars in this form and at this time as that is an insufficient basis on which to adjudicate the validity of the program as applied in individual cases (41 Kew Gardens Rd. Assocs. v Tyburski, 70 N.Y.2d 325, 326; accord, McGowan v Burstein, 71 N.Y.2d 729). However, we must decide the facial constitutional validity of the 1986 Interim Order No. 36, in view of the litigation course charted by the parties, as definitively adjudicated by the lower courts.
The New York City police force has approximately 27,000 officers. The directive at issue applies only to the specialized OCCB, which has approximately 1,100 volunteer officers in it. Up to 90% of these officers are enmeshed in hazardous narcotics-related operations. As part of their "ordinary" work, they infiltrate and associate with underworld operations and personnel, including large and small scale drug traffickers and criminals in a nether world.
Two years ago, the Department sought to expand its monitoring of the OCCB unit and the Commissioner issued Interim Order No. 36. Previously, OCCB members and those seeking assignment to the unit were subject only to the Department-wide drug-testing programs which included drug testing of all recruits upon application to the Department, a second testing during the five-month Police Academy training period, and a third testing at the conclusion of the 18-month probationary period. Additionally, since 1985, under Interim Order No. 13 all tenured police officers are subject to drug testing upon reasonable suspicion of drug usage.
Interim Order No. 36 has two components. First, all officers who apply for service in OCCB would be required to undergo drug testing as part of the application process and would be asked to sign a form acknowledging their understanding of the testing requirement. This is not legally challenged here. The second component provides for periodic random drug testing of every incumbent OCCB member. They would have to sign a form acknowledging their understanding that periodic drug testing is a condition of membership in the Bureau. Incumbents unwilling to accept the condition could transfer out of the Bureau without loss of rank or salary. Any officer in the Bureau who signs the form and later refuses to submit to the testing could be suspended and the refusal could be grounds for dismissal from the Department. Positive results of the urinalysis could be used for departmental disciplinary purposes but not for criminal prosecution.
The day after the Commissioner issued Interim Order No. 36, the petitioners' union and its president commenced an administrative proceeding before the New York City Office of Collective Bargaining asserting that implementation of Interim Order No. 36 would constitute a work change violating their collective bargaining agreement. The following day petitioners also started this judicial proceeding seeking to block the implementation of Interim Order No. 36 pending the outcome of the administrative proceeding. Petitioners later amended the demand for judicial relief asking for annulment of Interim Order No. 36 as unconstitutional as well as for permanent enjoinment of its implementation. The parties stipulated not to pursue the administrative phase until this litigation was resolved. Notably, our decision today has no bearing on the merits of that collective bargaining proceeding.
The petitioners' successful challenge in the lower courts rests on a claimed violation of State and Federal constitutional guarantees against unreasonable search and seizure (US Const 4th Amend; N Y Const, art I, § 12), directed essentially at the randomness feature. Heavy reliance is understandably placed on the rule and rationale of Matter of Patchogue-Medford Congress of Teachers v Board of Educ. ( 70 N.Y.2d 57) that plenary drug testing of teachers is constitutionally forbidden absent reasonable suspicion.
In Patchogue we considered the constitutionality of a public school's declared policy requiring across-the-board urinalysis drug testing of all probationary teachers as a condition to qualifying for tenure. The school district informed probationary teachers that those who refused to provide the test sample would not be recommended for tenure. We held that the mandatory production of a urine specimen was a search and seizure under both the Federal and State Constitutions and that testing for all those teachers, without reasonable suspicion, was forbidden.
Our search and seizure analysis rests directly on the uniquely private nature of the act and the individual's privacy right, which we accorded a high priority of protection. "Although [urine] is a waste product, it is not generally eliminated in public or in such a way that the public or government officials can gain access to it in order to `read' its contents" (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 N.Y.2d, at 67, supra). Not only is it inherently private, the urine specimen and what it may reveal about the tested individual are also highly personal, e.g., pregnancy, diabetes, treatment for various medical problems including manic depression, epilepsy, heart disease and schizophrenia, etc. Indeed, the debate is over that urine samples extracted from governmental employees constitutes a search and seizure (see, 3 LaFave, Search Seizure § 10.3 [e], at 41-42 [1988 Pocket Part]).
The Police Commissioner, recognizing the impact of Patchogue ( 70 N.Y.2d 57, supra), concedes that the random drug testing announced in Interim Order No. 36 is a search and seizure. He contends, however, that unlike the probationary teachers subjected, across-the-board, to drug testing in Patchogue, the proposed testing of this high risk, highly sensitive, voluntary unit within the police force is reasonable and therefore constitutional.
The constitutionality of a search conducted by a public employer for "noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances" as to "both the inception and the scope of the [government] intrusion" (O'Connor v Ortega, 480 U.S. 709, 724-727; see also, New Jersey v T.L.O., 469 U.S. 325). In particular, a search by a public employer may be justified at its inception "when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose" (O'Connor v Ortega, 480 US, at 726-727, supra).
The Supreme Court has not decided whether individualized suspicion is an "essential element" of a valid work-related search (id., at ___, 107 S Ct, at 1503), nor has it ruled specifically on the constitutionality of employee drug-testing programs conducted on a uniform or random basis (id., at 728-729, n; but see, National Treasury Employees Union v Von Raab, 816 F.2d 170, 175-176 [5th Cir 1987], cert granted ___ US ___, 108 S Ct 1072 [to be argued Nov. 2, 1988]; Railway Labor Executives' Assn. v Burnley, 839 F.2d 575 [9th Cir 1988], cert granted ___ US ___, 108 S Ct 2033 [to be argued Nov. 2, 1988]). Outside the area of public employment, however, the court has upheld the seizure of individuals in the absence of individualized suspicion only after first determining that the privacy interests at stake were minimal in nature (see, United States v Martinez-Fuerte, 428 U.S. 543 [permitting brief questioning of vehicle occupants at border checkpoint]). The recognition that public employees might suffer a reduced expectation of privacy at the workplace has prompted one renowned authority, in discussing drug testing, to comment that: "[T]here are a few forms of public employment in which the hazards of even of momentary lapse of attention or judgment are so substantial in terms of the physical danger to fellow workers or the general public, and in which the opportunities for preventive close supervision are so limited that only random or blanket testing will suffice" (3 LaFave, Search Seizure § 10.3 [e], at 47-48 [Supp 1988]).
As noted earlier, in Patchogue-Medford we applied these operative principles to invalidate a mandatory drug-testing program for probationary teachers. In striking down the testing, Chief Judge Wachtler wrote for the court that under the State and Federal Constitutions "random searches conducted by the State without reasonable suspicion are closely scrutinized, and generally only permitted when the privacy interests implicated are minimal, the government's interest is substantial, and safeguards are provided to insure that the individual's reasonable expectation of privacy is not subjected to unregulated discretion" (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 N.Y.2d, at 70, supra [emphasis added]; see also, New Jersey v T.L.O., 469 U.S. 325, 342, n 8, supra). We emphasized that the severe privacy intrusion entailed in urine testing was greater than the intrusion occasioned by the brief detention of individuals at vehicle checkpoints for sobriety inspection which has been permitted in the absence of individualized suspicion (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 N.Y.2d, at 69, supra; see, People v Scott, 63 N.Y.2d 518; Delaware v Prouse, 440 U.S. 648). Urine testing "in the presence of a government official or agent," we observed, "is at least as intrusive as a strip search" and involves a great "intrusion on individual privacy and dignity" (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 N.Y.2d, at 67-68, 69, supra). The net result was that the school district's legitimate State interests in seeing that its teachers were not drug impaired and, generally, in assuring a drug-free school environment did not overcome the very serious privacy intrusion and thus could not justify drug testing without reasonable suspicion.
The central question for us persists whether a privacy intrusion that we characterized as being "at least as intrusive as a strip search" may, on this record, be justified so as to permit random drug testing of OCCB members. Taken alone, the intrusion in this case would fail under Patchogue. But the analysis does not end so simply. There are factors here which take this case beyond Patchogue and render petitioners' privacy interests insubstantial, thus permitting this urine-testing program to be authorized in the absence of reasonable suspicion.
We observed in Patchogue that all public employees have some diminished expectations of privacy in respect to inquiries by the State into their physical fitness to perform on the job (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 N.Y.2d, at 69, supra). The privacy expectations of police officers must be regarded as even further diminished by virtue of their membership in a paramilitary force, the integrity of which is a recognized and important State concern (see, Matter of Morrisette v Dilworth, 59 N.Y.2d 449, 452; Matter of Purdy v Kreisberg, 47 N.Y.2d 354, 361; Flood v Kennedy, 12 N.Y.2d 345, 347). Indeed, this court has held that "[i]t is well established that it is within the State's power to regulate the conduct of its police officers even when that conduct involves the exercise of a constitutionally protected right" (Matter of Morrisette v Dilworth, 59 N.Y.2d, at 452, supra). On the other hand, the special status of police officers does not alone reduce their expectation of privacy to "minimal" level in respect to random drug testing. Rather, their status, considered with the substantial privacy intrusions to which these particular OCCB members and applicants already have subjected themselves, reduces their privacy interest to a minimal or insubstantial level such that the admittedly crucial State interest justifies the random testing.
Before petitioners applied for assignment to the OCCB they had been tested for drug use by the Department at least three times. After the conclusion of the probationary period, petitioners continued, as do all officers, to be subject to the Department's "reasonable suspicion" drug-testing standards. In contrast, no similar facts existed in Patchogue showing that the teachers had been subjected to mandatory drug testing in the past or that the school district had a long-standing drug-testing policy with which the teachers were familiar. The teachers there had neither consented to any drug testing nor made any concession as to the justification for such testing. Thus, there was no basis in that case for concluding that the teachers understood and accepted that drug testing was necessary to maintain the integrity of the teaching profession. Moreover, notwithstanding the widespread use of drugs in the schools by students, the teaching positions in Patchogue — unlike the OCCB positions involved here — did not carry with them an obvious drug risk. Clearly, there is a direct correlation between the substantive work of an OCCB member and drugs that must be considered in evaluating the magnitude of petitioners' privacy interest in not being tested for drug use on the job.
Of crucial significance in this case is that OCCB members have a very diminished expectation of privacy due to their pursuit of service in the elite unit based on conditions known in advance, including many unchallenged components of Interim Order No. 36 itself. All members enter this service informed, fairly and reasonably, that they will be held to the strictest standards of probity and purity, over and above those already imposed on the police force at large. They enter with professionally sophisticated eyes wide open to the reality that they will operate in fishbowl-like circumstances undreamed of by Calpurnia herself. The officers agree to undergo microscopic examinations of their personal lives, their financial affairs and their professional judgment calls. Realistically, the proposed random drug testing in these narrow circumstances is just another layer of an already heightened, persistent and employee-expected scrutiny. Notably, these special officers also enjoy job benefits they sought out, including greater promotional opportunity and exciting challenging work.
The essential error of the lower courts in the instant case is that they gave an absolutist reading to Patchogue's holding and insufficient consideration to the complementary exception analysis. This case is very different from Patchogue where the school district's asserted interest in a drug-free teaching staff was limited to ensuring that "its teachers are fit and that drug abuse does not impair their ability to deal with the students" (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 N.Y.2d, at 69, supra). Here, unlike that case, these elite officers have significantly lowered their own expectations of privacy to a bare minimum level. With that privacy distinction established, we take note of the Police Department's assertion of a substantial State interest in ensuring that OCCB officers never take drugs. The Commissioner wants to be sure public perception of the OCCB unit and the entire Police Department would not be seriously impaired by these officers taking drugs on or off duty because, in either case, they would be violating the law they have been sworn to uphold and enforce. In a very real sense, these officers are effectively on duty 24 hours a day.
We believe that the Department has established a justifiable interest and responsibility in the periodic testing of special officers constituting its main line offense and defense in the war against drug trafficking. Daily exposure to drug users and traffickers and to offers of drugs, staggering sums of money and other human temptations presents enormous and self-evident risks. The expense alone of maintaining unlawful drug use magnifies the susceptibility of OCCB members to traitorous exchanges of classified information in return for drugs and illegal diversions of seized drugs (see, National Treasury Employees Union v Von Raab, 816 F.2d 170, cert granted ___ US ___, 108 S Ct 1072, supra). It is not melodramatic to note even the potentially fatal risks to fellow officers and others if a drug-abusing OCCB officer is called upon to use a weapon while under the influence of drugs in inherently high-risk assignments. The terror-filled world they are working in requires the sternest precautionary safeguards to weed out drug abusers from their own ranks.
Contrary to the dissent's assertion of an "abrupt about-face", we simply respond that we are (1) applying Patchogue's full holding and its important privacy principles, (2) distinguishing Patchogue's very different facts and employee group; and (3) using the narrow exception elements provided in that very case as applied to the unique facts of this case. We therefore conclude Interim Order No. 36, on its face at least, constitutes a reasonable search and seizure.
We cannot complete the discussion, however, without noting that the contours of this litigation prevent adjudication at this time of the validity of each of the implementing details to be employed by the Commissioner in this program. In that respect, indeed, we emphasize and caution that each officer retains important personal rights of privacy in the implementation of this facially valid program (see, National Treasury Employees Union v Von Raab, 816 F.2d 170, cert granted ___ US ___, 108 S Ct 1072, supra), and our decision in no way impinges on their 4th Amendment rights to be secure against unreasonable searches and seizures of their persons, homes, cars, lockers or other personal effects under traditional probable cause standards (see, e.g., O'Connor v Ortega, 480 U.S. 709, 714-718, supra).
There is no merit to petitioners' additional contention that the random drug testing is "unreasonable" because of the availability of the Department-wide alternative testing procedure — one based on reasonable suspicion. Statistics supplied by the Commissioner indicate that the existing testing program — based on results from that stricter reasonable suspicion threshold — has not deterred drug violations in the OCCB unit. Over a four-year period, narcotics-related disciplinary charges have been filed against 10 OCCB officers. These statistics and their direct relevancy, standing alone, would be meager and unpersuasive to support an assertion of pervasive illegal drug use and thus even a narrow targeted drug-testing program without an individualized reasonable suspicion predicate. But the statistics are informative among all the State interest factors examined in this case.
In sum, we cannot say it is unreasonable to have the additional and exceptional random drug-testing authorization for this special police unit as a deterrent as well as a device to discover unlawful drug users, particularly in view of the minimal expectation of privacy involved. The Police Commissioner's plan for random drug testing of members of the elite OCCB unit falls within the narrow exception to Matter of Patchogue-Medford Congress of Teachers v Board of Educ. ( 70 N.Y.2d 57, 70, supra) and is sufficient to withstand a facial constitutional attack.
Accordingly, the order of the Appellate Division should be reversed, with costs, and petition dismissed.
Chief Judge WACHTLER and Judges SIMONS, ALEXANDER and HANCOCK, JR., concur with Judge BELLACOSA; Judge KAYE dissents and votes to affirm in a separate opinion in which Judge TITONE concurs.
Order reversed, etc.
Today's decision is an abrupt about-face from Matter of Patchogue-Medford Congress of Teachers v Board of Educ. ( 70 N.Y.2d 57), where only last year this court concluded that the proposed random urine testing of probationary teachers constituted a search, that having to urinate under the observation of another person was at least as intrusive as a strip search, and that — despite the teachers' diminished expectation of privacy, the public importance of unimpaired teachers, and the prevalence of drugs in schools — such searches were constitutionally prohibited in the absence of individualized reasonable suspicion. Now, the court upholds a proposed program of random urine testing under the observation of another person without any individualized suspicion, and without any reviewable procedural safeguards yet in place, because this is an elite voluntary corps of police officers with access to narcotics, because of the strong public interest in the purity and integrity of these employees, and because of their diminished privacy interest.
The criteria the court identifies are applicable to a wide array of public employees — even teachers, who are in an environment where drug use is particularly high. I disagree with the departure from Patchogue and with the new boundless test for permissible searches. The court should not approve this program on the present record, or in its present procedural posture. To my mind, the comprehensive trial court ( 133 Misc.2d 544) and Appellate Division ( 131 A.D.2d 214) opinions correctly state the law that governs this case, and I therefore respectfully dissent.
The majority points to distinctions between teachers and these police officers. Of course there are differences in the nature of their work. Yet in certain central respects the analogy is strong. Those who voluntarily choose to become teachers of the young should particularly be people of integrity, unimpaired by and uninvolved in drugs. The Police Commissioner's statistics indicate approximately 60% of students in grades 7-12 have had some involvement with illicit drugs; one of every two students reported some drug use.
In that the proposed testing undisputedly constitutes a "search" — meaning government intrusion into petitioner's legitimate expectation of privacy (Katz v United States, 389 U.S. 347) — analysis begins with the governing constitutional principle that searches must not be unreasonable (NY Const, art I, § 12; US Const 4th Amend). The usual constitutional standard is not reasonable suspicion; it is that a search may be conducted only pursuant to a warrant approved by a neutral, detached Magistrate, based upon probable cause to believe that the party to be searched has violated the law.
There are a few "jealously and carefully drawn" exceptions to the warrant-preference rule (Jones v United States, 357 U.S. 493, 499), most of them involving situations where probable cause exists — for instance, searches upon arrest, searches under exigent circumstances, and searches of objects in plain view. Within the category of warrantless searches there exists another group of cases in which a limited search may be conducted based upon mere reasonable suspicion that a violation has occurred (see, e.g., New Jersey v T.L.O., 469 U.S. 325 [school search]; Delaware v Prouse, 440 U.S. 648 [discretionary automobile stops]; United States v Brignoni-Ponce, 422 U.S. 873 [roving-patrol automobile stops in border areas]; Terry v Ohio, 392 U.S. 1 ["stop and frisk"]). These cases, however, represent exceptional circumstances in which special needs make the warrant and probable cause requirement impracticable. Even in these exceptional cases, individuals are not, without more, subjected to so great an intrusion on their individual privacy and dignity as providing urine samples (see, Matter of Patchogue-Medford Congress of Teachers v Board of Educ., supra, at 69; People v Scott, 63 N.Y.2d 518, 525).
The drug-testing program before us is thus three steps removed from the warrant requirement. It does not fall within any of the carefully drawn exceptions to the warrant-preference rule involving probable cause, and it does not fall within the exceptional circumstances involving individualized reasonable suspicion. Although the court has hypothesized that searches might at times be permitted even without individualized suspicion, we have made clear that such searches will be "closely scrutinized, and generally only permitted when the privacy interests implicated are minimal, the government's interest is substantial, and safeguards are provided to insure that the individual's reasonable expectation of privacy is not subjected to unregulated discretion." (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., supra, at 70.)
Those prerequisites are not satisfied on this record.
Most significantly, the Commissioner has demonstrated no need in this case for surprise drug testing. The majority opinion incorrectly inverts and thus bypasses the proper order of analysis, reasoning from the premise that the OCCB officers have a reduced expectation of privacy to the conclusion that they therefore may be searched without cause. Unless at the outset the standard of reasonable suspicion is inadequate to allow identification of substance-abusing officers, the government lacks an interest that justifies departure from an individualized suspicion standard, and a random search is impermissible (see, 3 LaFave, Search Seizure § 10.3 [e], at 47-48 [1988 Pocket Part]).
The Police Commissioner's own statistics show 10 instances where narcotics-related disciplinary charges were filed against OCCB members over a four-year period. As the majority recognizes, this is "meager and unpersuasive to support an assertion of pervasive illegal drug use". (Majority opn, at 442.) The Commissioner does not suggest that job performance declined or unusual incidents increased in a way consistent with pervasive undetected drug use. There is nothing to indicate that the prevalence of drug use in the general public is also a problem among OCCB officers. Indeed, the only evidence before us is decidedly to the contrary, supporting the conclusion that with the heightened scrutiny to which they are already subjected, "those finally accepted for membership in OCCB are among the best in the force and of a nature even less likely to use drugs than others in the Department." ( 133 Misc.2d 544, 552.)
The important goal of deterrence — to the extent that it is suggested as the object of this program — is not, without evidence of a pervasive problem among the persons to be tested, justification for this search. Many types of illegal conduct could be deterred were the State permitted to search everyone "periodically in an all-inclusive dragnet * * * By restricting the government to reasonable searches, the State and Federal Constitutions recognize that there comes a point at which searches intended to serve the public interest, however effective, may themselves undermine the public's interest in maintaining the privacy, dignity and security of its members." (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., supra, at 70.)
The majority identifies as a strong government interest the integrity of the highly specialized OCCB unit itself. There are references to elite, special, highly sensitive employment. The implicit conclusion is that certain public employees, simply by virtue of their position and without any proof of wrongdoing, may be required to demonstrate their innocence upon demand. This not only provides little guidance as to who is subject to random tests, but also reduces the constitutional limitations on the government's power to search to a hollow promise, and cannot be squared with Patchogue. If the integrity of a group of public employees is enough of an interest to justify random searches of ostensibly innocent persons it is difficult to imagine who should be exempt from such intrusion. The public clearly has an interest in the integrity of every employee who serves it; equally clearly, that alone does not give the State the power to conduct intrusive searches of their person.
The cases cited by the majority do not support its conclusion. Overwhelmingly courts have concluded — as we did in Patchogue — that a reasonable suspicion standard adequately protects the public interest.
Even as to police officers, courts overwhelmingly have required reasonable suspicion. (See, e.g., Penny v Kennedy, 846 F.2d 1563 [6th Cir 1988] [mandatory urinalysis of police officers on department-wide basis without reasonable suspicion constitutes an unreasonable search]; Feliciano v City of Cleveland, 661 F. Supp. 578, 589 [ND Ohio 1987] ["reasonable individualized suspicion that a police officer is using illicit drugs must be required for urinalysis to be reasonable"]; American Fedn. of Govt. Employees v Weinberger, 651 F. Supp. 726 [SD Ga 1986] [Federal police officers cannot be tested without reasonable suspicion]; Bostic v McClendon, 650 F. Supp. 245 [ND Ga 1986] [mass testing of urine of police officers without reasonable suspicion violates Fourth Amendment]; Capua v City of Plainfield, 643 F. Supp. 1507 [D NJ 1986] [random urine testing of members of police department in absence of reasonable suspicion violates the Fourth Amendment]; Fraternal Order of Police v City of Newark, 216 N.J. Super. 461, 524 A.2d 430  [city directive requesting all members of narcotics unit to submit to urine testing without probable cause or reasonable suspicion violates State and Federal Constitutions]; Turner v Fraternal Order of Police, 500 A.2d 1005, 1009 [DC App 1985] ["There must be a reasonable objective basis to suspect that a urinalysis will produce evidence of an illegal drug use"]; City of Palm Bay v Bauman, 475 So.2d 1322 [Fla App 1985] [police officers and firefighters cannot be tested without reasonable suspicion]; see also, Security Law Enforcement Employees v Carey, 737 F.2d 187 [2d Cir 1984] [holding unconstitutional random strip and cavity searches of prison employees for contraband].)
Nor does Professor LaFave's comment (majority opn, at 438) support the majority's conclusion. After a lengthy review of cases overturning random testing programs, Professor LaFave wrote: "[I]t must be acknowledged that there may be a very few limited circumstances in which the general line of analysis pursued above will not produce the conclusion that the reasonable suspicion standard strikes the appropriate balance. Perhaps there are a few forms of public employment in which the hazards of even a momentary lapse of attention or judgment are so substantial in terms of the physical danger to fellow workers or the general public, and in which the opportunities for preventive close supervision are so limited that only random or blanket testing will suffice" (3 LaFave, Search Seizure § 10.3 [e], at 47-48 [1988 Pocket Part]).
The skimpy record in this case does not support the proposition that OCCB members are an example of Professor LaFave's very limited theoretical exception. The factual submissions before us show only that the routine duties of OCCB members include enforcement of the narcotics laws, and that these officers have ready access to drugs. The rest — including graphic references to drug traffickers in a nether world, covert exchanges of classified information, and unique safety and other hazards of high-risk assignments — is solely lawyers' rhetoric in briefs with no substantiation in the record. Perhaps a better factual record of what OCCB members do — if in actuality they do fit Professor LaFave's theoretical exception — would have permitted the courts to fashion standards that could then serve as guidance in this important, developing area of law. We don't have that record. There has been no showing that the heightened scrutiny to which OCCB members are already subjected does not, and would not — together with the reasonable suspicion standard — fully protect the public interest.
Thus, I would affirm the Appellate Division order simply because this record does not contain facts establishing the threshold requirement of government need for random searches.
While placing these officers "in fishbowl-like circumstances undreamed of by Calpurnia herself" (majority opn, at 440), the majority nonetheless says that OCCB members retain important personal privacy rights, particularly the right to be secure against unreasonable searches and seizures of their persons, homes, cars, lockers and other personal effects (majority opn, at 442). I believe these retained privacy rights include the right to be free of the "very serious," "severe privacy intrusion" (majority opn, at 438) now proposed.
The court places great emphasis on the "very diminished" or "minimal" privacy expectations of OCCB members centering on the voluntary nature of the assignment, the several drug tests to which they are routinely subjected and the scrutiny given their personal and financial affairs. While again these generalized assertions of heightened scrutiny are not supported more particularly in the factual record, the intensified examination these officers already receive — together with the documented lower incidence of drug abuse found among them, and the reasonable suspicion standard — point to the opposite conclusion from that reached by the court: that there is no justification for random testing of these individuals.
The notion of "minimal" privacy expectations of OCCB members is curious. We all agree that the proposed test constitutes a "search," which is by definition an intrusion into an individual's legitimate expectation of privacy. Having concluded that there is an intrusion into the legitimate expectation of privacy of these officers, the test of reasonableness requires consideration of "the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." (Bell v Wolfish, 441 U.S. 520, 559.)
As described by the majority, the diminished or minimal privacy theory appears to proceed on a sort of implied consent — that voluntary pursuit of service in an elite corps where standardized drug testing is known in advance implies acceptance of further testing. Notably, in Patchogue we observed that the urine testing required of all probationary school teachers was "accepted and traditional" ( 70 N.Y.2d, at 70, supra), that they had a "diminished expectation of privacy with respect to State inquiries into their physical fitness to perform as teachers, and it is not unreasonable to require teachers to submit to further testing when school authorities have reason to suspect that they are currently unfit for teaching duties." (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., supra, at 69.) That same rationale should apply here. Knowledge of standardized drug testing cannot itself be deemed consent to additional testing, that in effect then becomes consent to more intrusive searches (see, Lo-Ji Sales v New York, 442 U.S. 319, 329).
Finally, in Patchogue we made crystal-clear that any random search program would be permitted only where there were adequate safeguards provided to insure that the individual's reasonable expectation of privacy was not subjected to unregulated discretion. Now the court for the first time approves a program for random searches without reasonable suspicion — thus establishing a precedent — yet it does so in a case where there are as yet no reviewable safeguards.
What the court refers to as "facial" validity (majority opn, at 435, 441, 442) is a novel — and I believe incorrect — application of the concept of "facial" and "as applied" constitutional challenges. The review here is termed "facial" only because the program has not yet been fully formulated — indeed added procedural safeguards have been suggested even in the briefs before this court. If anything, incompleteness of the proposed program would point to lack of ripeness or even to facial invalidity, but not to facial validity.
In Patchogue the court recognized that "there comes a point at which searches intended to serve the public interest, however effective, may themselves undermine the public's interest in maintaining the privacy, dignity and security of its members." (Matter of Patchogue-Medford Congress of Teachers v Board of Educ., supra, at 70.) We made clear that random searches without reasonable suspicion would be closely scrutinized and permitted only upon adherence to specified requirements. Today we reaffirm those sentiments in words. In deed, however, the court gives its imprimatur to a program not yet even fully formulated, on factual submissions that do not satisfy the legal thresholds we only recently identified. On this record I would affirm the Appellate Division order.