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Cops don’t get the same privacy as regular citizens

The petitioner is the president of the Patrolmen’s Benevolent Association (PBA) and in behalf of its membership seeks an order permanently enjoining the respondents, City Police Department, Police Commissioner, and the City.

The Respondent Department issued an Interim Order which in effect provides that applicants to and current members of the OCCB (Organized Crime Control Bureau) will be required to sign a form which advises them as a condition of initial and continued assignment to the Bureau that they will be required to consent to periodic random drug testing. Essentially, this would require each member, on demand, to submit a urine sample for Dole test analysis. This may take place at any time and is applicable to all officers of any rank within the Bureau.

The Order also provides that current members of OCCB who choose not to execute such forms and subject themselves to random testing will be transferred out of the Bureau without penalty or loss of rank. Once, however, such consent is signed, refusal to comply with the Order would result in disciplinary action by the Department. Any officer after testing who demonstrated positive test findings may be subjected to disciplinary action.

Prior to the issuance of the Order, all members of the Department were subject to an Interim Order #13 which required submission to Dole testing where there was a reasonable belief that the suspect officer was using guilty of using drugs or crack possession. PBA does not contest the right of the Department to have drug testing as part of the screening process of applicants to the Department or any of its bureaus including OCCB. Nor is there objection made to testing as part of a health check-up or where a member is actually suspected of drug use. What is objected is the elimination in the Order of the reasonable belief requirement previously set forth in Interim Order # 13. Such elimination in effect would require OCCB members to submit to periodic random testing at the Department’s sole discretion, while testing of other members of the Department remains subject to the reasonable belief requirement of Interim Order # 13. The petitioner contends that it violates OCCB members’ constitutional rights under the Fourth and Fourteenth Amendments. No robbery or domestic violence was involved.

The right of the people to be secure in their persons against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Its purpose, thus, is to protect against arbitrary and oppressive governmental action and to thereby protect persons from unreasonable intrusion into their reasonable and legitimate expectations of privacy.

The respondents contend however, that police officers assigned to OCCB have a diminished expectancy of privacy in this area. It is true that by the very nature of their job, police should anticipate that their employer would have serious concerns that their ability to discharge their duties be not impaired by drugs and should anticipate that the employer may place reasonable conditions on employment including scrutiny for drug crime.

However, it is also true that though such expectancy of privacy may be diminished, officers still retain substantial Fourth Amendment rights. Accordingly, it has been uniformly held that compulsory urine testing constitutes a search and seizure within the meaning of the Fourth Amendment. However, not all searches and seizures are prohibited by the Fourth Amendment. Only unreasonable intrusions are proscribed.

The Respondents’ another contention is that since employment in OCCB is purely by invitation, as employers, they have an absolute right to condition same on submission to random testing. While a government may place conditions on employment, it may not as a precondition require waiver of all rights under the Fourth Amendment.

In a long line of cases, the Supreme Court has consistently adhered to the principle that the state may not condition access to public benefits or privileges on the waiver of the constitutional right. The vast majority of courts that have confronted the issue of consent to otherwise unconstitutional searches in the law enforcement setting concluded that such consents are also invalid.

The respondent contends however, that the Fourth Amendment is not violated here because the searches are not arbitrary because no person in OCCB is singled out but all are subject to examination at about the same time. However, as to each person tested the procedure is arbitrary to the extent that it is a standardless search. The Fourth Amendment purpose is to protect each citizen and no unlawful government search can ever be justified on the premise that it will be applied equally to all members of the offended class.

It is not necessary to challenge the proposition that, as a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the state in that respect is not unlimited, and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights. If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.

However, as noted, police in their official function should not expect to have the same degree of privacy as that of an ordinary citizen. So that it would be unfair if their employers were held to the same high probable cause standard required for citizen testing. Some lesser quantum of justification would therefore be consistent with the diminished privacy rights of police employees.

It asserts that as an employer it has vital interest in discovering the extent of drug abuse and drug crime committed in the workplace and to identify abusers. No doubt every employer would have a similar interest and would find such information useful but that by itself, it would not justify subjecting employees to testing. Any governmental agency could properly make a case for drug testing as a useful investigatory tool in culling out drug abusers and eliminating the deleterious effect that such use may have on an agency’s operation. As the court put it, there is no doubt that it searches and seizures can yield a wealth of information useful to the searcher. That potential, however, does not make a government employer’s search of an employee a constitutionally reasonable one.

Having concluded that compulsory random drug testing is intrusive and that all police officers continue to retain privacy rights under the Fourth Amendment albeit diminished ones, the issue remains whether the intrusiveness of the contemplated criminal procedure under Order is, nevertheless, reasonable. It would require a showing that such intrusiveness is justified, that is, that implementation of the Order would promote some legitimate governmental interest which overrides its potential impact on the individual officer’s privacy.

After reviewing the law applicable to the facts presented herein, the court finds that respondent’s Order fails to comply with Fourth Amendment mandates. Specifically, the respondent has failed to demonstrate or to document that drug use presents a discernible problem or danger sufficient to warrant the constitutional intrusion occasioned by standardless drug testing of the approximately 1,200 members of the OCCB. That such testing may have some incalculable deterrent effect, turn up an occasional abuser or improve public confidence in the police does not constitute that degree of justification required under the reasonableness test or the weight of case authority. No sex charges were made.

Law enforcers are supposed to be the role models of the community. If they reflect and signifies to be a respectable person, people would feel safe and secure around them. If you feel that your right as a person was violated in relation to a drug related crime, approach the New York City Criminal Attorneys and the New York Drug Lawyers from Stephen Bilkis and Associates.

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