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In the Matter of KENNETH DRAKE, Appellant
August 23, 1994, Decided
Leon B. Savetsky argued the cause for appellant (Loccke & Correia
Counsels; Mr. Savetsky of Counsel and on the brief).
June K. Forrest Senior Deputy Counsel General argued the cause for respondent Merit System Board (Deborah T. Poritz Counsel General Counsel; Joseph L. Yannotti Assistant Counsel General of Counsel; Ms. Forrest on the brief).
John T. Lyons Jr. Assistant County Counsel argued the cause for respondent Essex County (Stephen J. Edelstein Essex County Counsel, Counsel; Mr. Lyons on the brief).
Justices Skillman, Kestin and Wefing.
The Hon Justice Skillman

This is an appeal from a final decision of the Merit System Board sustaining appellant's removal from his position as a correction officer in the Essex County Jail. The appeal turns on whether the odor of marijuana detected in a bathroom to which a limited number of jail employees had access was sufficient to establish the "individualized reasonable suspicion" of drug use required to subject those employees to drug testing.

Appellant's removal was based upon policies and procedures adopted by the Essex County Department of Public Safety which provide that "any employee who tests positive for illicit drugs or refuses to produce a sample when so ordered will be terminated from employment." Appellant was one of four officers assigned to perform guard duties on the eighth floor of the jail on February 17 1990. This assignment gave appellant access to a bathroom adjoining the sub-control room on this floor. The only other persons with access to this bathroom were the other guards on duty and on occasion nurses and workmen assigned to perform work on that floor. A confidential informant detected the odor of marijuana in the bathroom during appellant's shift and reported this information to supervisory authorities at the jail. After the warden and an internal affairs investigator personally interviewed the confidential informant to verify the reliability of this information n1 the warden ordered the four correction officers who had access to the bathroom when the odor of marijuana was detected to provide urine samples for drug testing. The warden's order was made pursuant to a section of the Department's policies and procedures which states that "[a] urine sample will be ordered from a Correctional employee . . . when it has been determined that individualized reasonable suspicion exists to believe that an employee may be under the influence of an illegal drug." Appellant's urine sample tested positive for marijuana and cocaine.

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n1 The warden declined to reveal the identity of the informant out of concern for that person's safety. The Administrative Law Court denied appellant's request to direct the warden to answer questions which could have resulted in disclosure of the informant's identity. See former Evid. R. 36 (presently N.J.R.E. 516); Grodjesk v. Faghani 104 N.J. 89 96-101 514 A.2d 1328 (1986); cf. Caldwell v. State Dep't of Corrections 250 N.J. Super. 592 615 595 A.2d 1118 (App. Div. 1991). Appellant does not present any argument on appeal relating to the non-disclosure of the informant's identity.

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Based on these drug test results Essex County brought disciplinary charges against appellant which resulted in his removal. Appellant appealed his removal to the Merit System Board which referred the matter to the Office of Administrative Law for a hearing. An Administrative Law Court concluded that Essex County had failed to establish "an individualized reasonable suspicion directed at appellant" because the warden's suspicion of drug use "was not specific to any individual officer but rather was directed to all officers who had access to [the bathroom adjoining the sub-control room]." Consequently the Administrative Law Court recommended that the charges against appellant be dismissed.

However the Merit System Board rejected this recommended decision concluding that "as only four persons had access to the bathroom at that time the probability was great that one or more of those persons was responsible for the odor detected in the bathroom " and thus "the suspicion of drug usage was sufficiently individual to require each of the four officers to undergo drug testing." We agree with this reasoning and therefore affirm the Merit System Board's final decision sustaining appellant's removal.

A public agency is required to abide by its own policies and procedures regarding the drug testing of its employees. See Caldwell v. State Dep't of Corrections supra 250 N.J. Super. at 609 ("Given that . . . petitioners were informed by and acknowledged receipt of the procedures which clearly stated that they would only be ordered to submit to the test if the Commissioner found there was a 'reasonable individualized suspicion ' we view that standard as the applicable one.") Therefore even assuming that a correctional facility could authorize random drug testing of its staff see Skinner v. Railway Labor Execs. Ass'n 489 _U.S._ 602 626-33 109 S. Ct._ 1402 1418-22 103 L. Ed. 2d 639 665-70 (1989); American Fed'n of Gov't Employees AFL-CIO v. Roberts 9 F.3d 1464 1467-68 (9th Cir. 1993); McDonell v. Hunter 809 F.2d 1302 1307-08 (8th Cir. 1987) the operation of the Essex County Jail is governed by its own policies and procedures which mandate drug testing only when there is "individualized reasonable suspicion" of an employee's drug use.

Reasonable suspicion is "considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow 490 _U.S._ 1 7 109 S. Ct._ 1581 1585 104 L. Ed. 2d 1 10 (1989); accord Rawlings v. Police Dep't of Jersey City 133 N. J. 182 191 627 A.2d 602 (1993). In fact "reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause." Alabama v. White 496 _U.S._ 325 330 110 S. Ct._ 2412 2416 110 L. Ed. 2d 301 309 (1990); accord State in the Interest of H.B. 75 N.J. 243 251 381 A.2d 759 (1977) Moreover "the concept of reasonable suspicion like probable cause is not 'readily or even usefully reduced to a neat set of legal rules.'" United States v. Sokolow supra 490 _U.S._ at 7 109 S. Ct._ at 1585; 104 L. Ed. 2d at 10 (quoting Illinois v. Gates 462 _U.S._ 213 232 103 S. Ct._ 2317 2329 76 L. Ed. 2d 527 544 (1983)). Rather it requires an evaluation of "'the totality of the circumstances -- the whole picture.'" Id. at 8 109 S. Ct._ at 1585 104 L. Ed. 2d at 10 (quoting United States v. Cortez 449 _U.S._ 411 417 101 S. Ct._ 690 695 66 L. Ed. 2d 621 629 (1981)).

Since reasonable suspicion requires not only "considerably less" than "proof by a preponderance of the evidence " but even less than probable cause it does not require evidence which focuses only upon a single individual. Instead reasonable suspicion may be established by evidence which points to the guilt of at least one of a discrete group of individuals. See United States v. Fisher 702 F.2d 372 375-77 (2d Cir. 1983) (reasonable suspicion to stop four African-American males to investigate a robbery committed by three persons matching their general physical characteristics); Filmon v. State 336 So. 2d 586 591 (Fla. 1976) (five individuals occupying two automobiles involved in a fatal accident all could be required to submit to blood-alcohol testing because police had "reasonable cause to believe that one or more of that limited group . . . had been driving a motor vehicle . . . while under the influence of alcoholic beverages") cert. denied 430 _U.S._ 980 97 S. Ct._ 1675 52 L. Ed. 2d 375 (1977). Indeed probable cause to arrest may established even though the evidence does not focus exclusively upon a single suspect. See State v. Jordan 36 Ore. App. 45 583 P.2d 1161 1163-64 (Or. Ct. App. 1978) (probable cause to arrest two women found at the residence of suspected female fugitive) aff'd 288 Ore. 391 605 P.2d 646 (Or.) cert. denied 449 _U.S._ 846 101 S. Ct._ 132 66 L. Ed. 2d 56 (1980); Commonwealth v. Bunch 329 Pa. Super. 101 477 A.2d 1372 1378-82 (Pa. Super. Ct. 1984) (evidence that three of four individuals in a car had committed robbery provided the probable cause required to justify the arrest of all four occupants); State v. Mitchell 167 Wis. 2d 672 482 N.W.2d 364 368-69 (Wis. 1992) (smell of marijuana smoke from a parked automobile gave rise to probable cause to believe that the two occupants were using drugs); see generally 1 Wayne R. LaFave Law of Search & Seizure SEC 3.2(e) at 587-94 (2d ed. 1987).

Appellant relies heavily upon the word "individualized" in the phrase "individualized reasonable suspicion " and argues that in order to compel him to provide a urine sample the warden had to possess incriminating information which was specifically directed only at him. If this argument were accepted it would mean that the warden would have been prohibited from requiring appellant to submit a urine sample for drug testing even if only appellant and one other correctional officer had exclusive access to the bathroom. However the term "individualized " like "particularized " is used in the law of search and seizure simply to refer to evidence of wrongdoing at a particular time and place as distinguished from suspicion based on general group characteristics. Thus in Terry v. Ohio 392 _U.S._ 1 27 88 S. Ct._ 1868 1883 20 L. Ed. 2d 889 909 (1968) Court indicated that reasonable suspicion consists of not merely an "inchoate and unparticularized suspicion or 'hunch '" but rather "specific reasonable inferences . . . draw[n] from the facts." Similarly in United States v. Cortez supra 449 _U.S._ at 695 101 S. Ct._ at 417-18 66 L. Ed. 2d at 629 Court stated that "the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." Accord State v. Davis 104 N.J. 490 504 517 A.2d 859 (1986).

Applying this requirement of "particularized suspicion " Court have consistently held that a person's membership in a group commonly thought to be suspicious is insufficient by itself to establish reasonable suspicion. See e.g. Reid v. Georgia 448 _U.S._ 438 441 100 S. Ct._ 2752 2754 65 L. Ed. 2d 890 894 (1980) (drug-profile alone does not justify reasonable suspicion); United States v. Brignoni-Ponce 422 _U.S._ 873 886-87 95 S. Ct._ 2574 2582-83 45 L. Ed. 2d 607 619-20 (1975) (ethnicity alone is insufficient); Buffkins v. City of Omaha 922 F.2d 465 470 (8th Cir. 1990) (race alone is insufficient) cert. denied _U.S._ 112 S. Ct._ 273 116 L. Ed. 2d 225 (1991); see also Brown v. Texas 443 __U.S.__ 47 52 99 S. Ct._ 2637 2641 61 L. Ed. 2d 357 362-63 (1979). However the principle that reasonable suspicion may not be predicated solely upon an individual's group membership does not mean that suspicion is reasonable only if it focuses exclusively upon a single individual.

Appellant relies upon cases which state that the "reasonable suspicion standard requires individualized suspicion specifically directed to the person who is targeted for the . . . search." See e.g. Cochrane v. Quattrocchi 949 F.2d 11 14 (1st Cir. 1991) (quoting Hunter v. Auger 672 F.2d 668 675 (8th Cir. 1982)) cert. denied __U.S.__ 112 S. Ct._ 2965 119 L. Ed. 2d 586 (1992). However these cases either involved no individualized suspicion at all or purported findings of individualized suspicion which the trier of fact could have found to have been pretextual. One such case invalidated a prison rule requiring every visitor to a prison to submit to a body cavity strip search "without any predicate requirement of individualized suspicion or showing of special and highly unusual institutional need." Blackburn v. Snow 771 F.2d 556 562 (1st Cir. 1985). Another invalidated a correctional facility's policy of conducting random strip searches and body searches of all its correction officers. Security & Law Enforcement Employees Dist. Council 82 v. Carey 737 F.2d 187 209-10 (2nd Cir. 1984). Yet another held that information from a confidential informant indicating that one specifically identified member of an airplane flight crew was transporting narcotics did not create the reasonable suspicion required to conduct a strip search of the other five members of the crew. United States v. Afanador 567 F.2d 1325 1330-31 (5th Cir. 1978). Similarly in Thorne v. Jones 765 F.2d 1270 1277 (5th Cir. 1985) cert. denied 475 __U.S.__ 1016 106 S. Ct._ 1198 89 L. Ed. 2d 313 106 S. Ct._ 1199 (1986) Court concluded that reasonable suspicion that an inmate's mother had smuggled drugs into the prison did not provide the reasonable suspicion required to justify a strip search of the inmate's father when he visited the prison. Two other cases involved searches which were purportedly based on information obtained from reliable informants but there was evidence that the searches were conducted for retaliatory reasons. Consequently Court concluded that the triers of fact should have had the opportunity to determine the actual reason for the searches. Cochrane v. Quattrocchi supra 949 F.2d at 13-14; Ford v. Dowd 931 F.2d 1286 1292-94 (8th Cir. 1991). Therefore none of the cases upon which appellant relies hold that the requirement that reasonable suspicion be "specifically directed to the person who is targeted for the search" means that suspicion must focus exclusively upon a single individual.

We are satisfied that the warden had a sufficiently "individualized reasonable suspicion" of appellant's drug use even though the evidence he relied upon was specifically directed not only at appellant but also three other correction officers. Although the odor of marijuana in the bathroom did not point ineluctably to the use of drugs by any single individual it constituted strong evidence that at least one of the correctional officers had been smoking marijuana while on duty and thus provided reasonable suspicion as to each of the four. Moreover although there was testimony that nurses and workmen were occasionally present in the eighth floor subcontrol room appellant presented no evidence suggesting that anyone other than the four guards was there around the time the odor of marijuana was detected. In any event even if a nurse or workman had also had access to the bathroom at that time the special role which correction officers play in the management of a prison particularly their regular access to inmates would have justified the warden's decision to require only these officers to submit to drug testing. Cf. McDonell v. Hunter supra 809 F.2d at 1308 ("Urinalysis may be performed uniformly or by systematic random selection of those employees who have regular contact with the prisoners on a day-to-day basis in medium or maximum security prisons.").