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NEW JERSEY TRANSIT PBA LOCAL 304, Plaintiff-Appellant
vs.
NEW JERSEY TRANSIT CORPORATION, Defendant-Respondent.
 
Case:
A-5927-94T1
 
Location:
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
 
Date:
May 21, 1996, Decided
 
Attorneys:
Stephen B. Hunter argued the cause for appellant (Klausner & Hunter Counsels; Mr. Hunter of Counsel and on the brief). Robert A. Shire Deputy Counsel General argued the cause for respondent (Deborah T. Poritz Counsel General Counsel; Andrea M. Silkowitz Assistant Counsel General of Counsel; Mr. Shire and E. Philip Isaac Deputy Counsel General on the brief). Zazzali Zazzali Fagella & Nowak Counsels for amicus curiae New Jersey State Policemen's Benevolent Association (Paul L. Kleinbaum of Counsel and on the brief).
 
Court:
Justices Michels Villanueva and Kimmelman.
 
Author:
The Hon Justice Villanueva
 

Plaintiff New Jersey Transit PBA Local 304 (PBA or plaintiff) appeals from a summary judgment of the Law Division entered in favor of defendant New Jersey Transit Corporation upholding the constitutionality of the random drug and alcohol testing of its policemen who carry firearms for security purposes and denying its application for an order to show cause to obtain a temporary and permanent restraining order. We affirm.

Plaintiff seeks a reversal of the judgment and a declaration that the random unannounced testing components of the New Jersey Transit's Drug and Alcohol-Free Workplace Policy regarding its police officers who carry firearms for security purposes is a violation of article I paragraph 7 of the New Jersey Constitution. Plaintiff also asserts that the trial court failed to properly apply the balancing test traditionally utilized to determine whether such policy violates the New Jersey Constitution.

Defendant New Jersey Transit Corporation (Transit) is a state agency responsible for operating and improving public transportation in New Jersey. N.J.S.A. 27:25-2a -2b. To further these objectives the New Jersey Legislature empowered Transit to comply with federal rules and regulations and apply and qualify for accept and expend financial assistance available under federal law to assure the support and continuance of public transportation. See N.J.S.A. 27:25-5(g). Indeed the Legislature intended that Transit comply with federal law upon which funding is conditioned so as to be eligible to receive federal funding. See In re NJ Transit Bus Operations Inc. 125 N.J. 41 48-49 592 A.2d 547 (1991).

Plaintiff is the recognized majority representative for all police officers under the rank of captain employed by Transit. Plaintiff represents approximately one hundred and twenty-five police officers only six of whom as of April 1995 were assigned to ride on designated Transit trains.

Transit's police department has police and security responsibilities over all Transit locations and services. N.J.S.A. 27:25-15.1a. The officers have general authority within those locations and services to exercise police powers and duties as provided by law for police officers and law enforcement officers in all criminal and traffic matters at all times throughout the State of New Jersey. Ibid. They are required to comply with all policies established by the Counsel General including rules and regulations directives advisory opinions and other guidelines. Ibid. Transit's executive director is authorized to appoint and employ the officers and is required through Transit's chief of police and in accordance with procedures established by the State Police to investigate and determine the character competency integrity and fitness of all applicants. Ibid. Transit police officers must satisfy the training requirements established by the Police Training Commission. N.J.S.A. 27:25-15.1c. Transit's officers are authorized to carry firearms N.J.S.A. 2C:39-5 N.J.S.A. 2C:39-6a(7)(a) and N.J.S.A. 27:25-15.1d provided they satisfactorily complete a firearms training course N.J.S.A. 27:25-15.1d. They are also authorized to use deadly force. N.J.S.A. 2C:3-7.

In October 1986 the Counsel General of New Jersey (Counsel General) issued guidelines regarding the urine testing of police officers. Counsel General of New Jersey Law Enforcement Drug Screening Guidelines 2 (Oct. 22 1986). Based upon the recommendations of the New Jersey Criminal Advisory Council the Counsel General concluded that "the establishment of uniform statewide drug testing guidelines is absolutely necessary in order to maintain a drug-free law enforcement community and at the same time safeguard the rights of individual police officers." In setting forth specific guidelines the Counsel General "strongly urged" that (1) law enforcement applicants who will be authorized to carry a firearm be required to submit to urinalysis prior to appointment; and (2) all officers should be subjected to unannounced drug testing by urinalysis during mandatory basic training. Ibid. Additionally and most pertinent for purposes of this appeal the guidelines state:

Permanently appointed law enforcement officers should be required to undergo further mandatory drug screening whenever there is individualized reasonable suspicion to believe that the officer is unlawfully using drugs. Officers should be tested under these circumstances only with the approval of the county prosecutor or chief executive officer of the department or his designee. [Ibid. (emphasis added).]

Thus in adopting these guidelines the Counsel General did not specifically authorize the use of random drug testing but rather required the existence of "individualized reasonable suspicion" of drug use before the testing of a law enforcement employee could be conducted. In revised guidelines which became effective August 1 1990 the Counsel General addressed the procedural aspects of the drug-testing policy. However the Counsel General did not change the requirement that there be reasonable suspicion before a drug test could be administered stating that testing would be conducted based only on facts that provided a reasonable objective suspicion that the officer is illegally using drugs

In 1991 Congress in the interest of mass transportation safety passed the Omnibus Transportation Employee Testing Act (Act) requiring the Secretary of Transportation to issue rules which mandate that mass transit operators receiving federal funds under section 3 9 or 18 of the Urban Mass Transportation Act of 1964 *fn1 conduct pre-employment reasonable suspicion random and post-accident testing for alcohol and drug use in employees responsible for safety-sensitive functions. 49 U.S.C.A. SEC. 5331(b). Failure to test Congress directed shall result in ineligibility for federal funding. 49 U.S.C.A. SEC. 5331(g). *fn2

On February 15 1994 the Federal Transit Administration (FTA) among other United States Department of Transportation subagencies issued final rules implementing the statute. See 49 C.F.R. pts. 653 and 654. Among other mandates the rules require recipients of federal funds by January 1 1995 to implement a program of random alcohol and drug testing of employees who perform the following safety-sensitive functions:

(1) Operating a revenue service vehicle including when not in revenue service;

(2) Operating a nonrevenue service vehicle when required to be operated by a holder of a Commercial Driver's License;

(3) Controlling dispatch or movement of a revenue service vehicle;

(4) Maintaining a revenue service vehicle or equipment used in revenue service.; or

(5) Carrying a firearm for security purposes.

[49 C.F.R. SEC. (S)653.7 653.13(a) 653.47 654.7 654.15(a) and 654.35.]

Pursuant to the federal rules the random testing must be unannounced and each time employees are selected for testing every employee must have an equal chance of being selected. 49 C.F.R. SEC.653.47(a) (c); 49 C.F.R. SEC. 654.35(f) (g). During the course of each year at least 50% of the covered employees must be randomly tested for drugs. 49 C.F.R. SEC. 653.47(b)(2). Initially at least 25% of the covered employees must be randomly tested for alcohol with the minimum rate subject to adjustment based upon industry results. 49 C.F.R. SEC.654.35(a) to (d). Procedures for the collection and chain of custody of urine specimens and the identification of the donor are described in 49 C.F.R. part 40.

Significantly the rules expressly preempt with the exception of state criminal laws any state or local law rule regulation or order to the extent that compliance with both the state or local requirement and any requirement of the rules is not possible or where compliance with the state or local requirement is an obstacle to the accomplishment and execution of any part of the rules. 49 C.F.R. SEC.(S)653.9 654.9. The pertinent subsection of the statute provides:

A State or local government may not prescribe issue or continue in effect a law regulation standard or order that is inconsistent with regulations prescribed under [the statute except] a State criminal law that imposes sanctions for reckless conduct leading to loss of life injury or damage to property.

[49 U.S.C.A. SEC. 5331(f)(1).]

Under the terms of the Act grantees are required to certify their compliance to FTA initially by January 1 1995 and annually thereafter. 49 C.F.R. SEC (S) 653.83(a) 654.83(a). The Act provides that the failure of a recipient of federal financial assistance for mass transportation to comply with the federal provisions by enacting the required drug-testing policies will result in the recipient's forfeiture of its right to receive federal funds. 49 C.F.R. SEC.(S) 653.81(a) 654.81(a). In fiscal year 1995 approximately $324 million of Transit's $1.2 billion total capital and operating budget came from the FTA.

Faced with the prospect of losing federal funding on December 19 1994 Transit published a document setting forth a corporate-wide policy entitled "Drug And Alcohol-Free Workplace -- Core Policy" (Core Policy) that became effective on January 1 1995 and which provides in part as follows:

This document outlines NJ TRANSIT's policy to achieve a drug and alcohol-free workplace. 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.

Section VII of this document is entitled "Drug and Alcohol Test" and provides the following:

A. As Part Of Voluntary Periodic Medical Examinations (Physicals)

Management Physicals - A management physical is a voluntary periodic physical available to non-agreement employees who meet certain qualifying criteria. All employees who qualify for this examination will be required to sign a form reflecting their consent to drug and alcohol tests.

B. Reasonable Suspicion

This section only applies to employees NOT covered by Addenda I or II.

1. An employee is required to submit to an alcohol and/or drug test when a supervisor has reasonable suspicion based on specific contemporaneous articulable observations concerning the appearance behavior speech or body odors of the employee to believe that the employee has engaged in any of the behaviors prohibited by this policy concerning the use of alcohol and/or drugs.

[Emphasis added.]

Transit's document entitled "Drug and Alcohol-Free Workplace Policy -- Addendum I" similarly became effective on January 1 1995. *fn3 The articulated purpose of Addendum I is as follows:

This document outlines those requirements of NJ TRANSIT's Drug and Alcohol-Free Workplace Policy which are applicable only to NJ TRANSIT employees who perform safety-sensitive functions as defined herein. As such this document supplements and is to be read and applied with reference to NJ TRANSIT's Drug and Alcohol-Free Workplace -- Core Policy.

Significantly Addendum I defines covered employee as "a person including a volunteer applicant or transferee who performs a safety-sensitive function." Addendum I explains that the phrase "performing a safety-sensitive function" includes those periods "in which an employee is actually performing ready to perform or immediately available to perform such a function." Section IV of Addendum I provides that all Transit employees including supervisory personnel and volunteers who perform safety-sensitive functions are subject to the testing requirements which are based on the requirements of the FTA. In addition this section provides that "employees who perform safety-sensitive functions are required to be tested for drugs and/or alcohol in the following circumstances: pre-employment reasonable suspicion post-accident random return-to-duty and follow-up." (Emphasis added.)

Section IX of Addendum I is entitled "Random Unannounced Testing " and provides in pertinent part:

A. All employees who perform safety-sensitive functions are subject to random unannounced drug and alcohol testing.

B. Employee numbers shall be in a pool from which random selection is made. Employees shall be selected by a computer-based random number generator that is matched with the employee's employee number. All employees in the random pool shall have an equal chance of being selected for testing and shall remain in the pool even after being tested. Therefore it is possible for some employees to be tested several times in one year.

C. At various times throughout the year employees shall be randomly selected for unannounced drug testing. Once the employee has been notified that he has been selected for testing he must report immediately to the collection site.

On April 26 1995 plaintiff filed a complaint against Transit with the Superior Court of New Jersey asserting that those provisions of Transit's drug and alcohol policy that mandate the random testing of law enforcement personnel represented by the PBA constitute an illegal search and seizure and "violates the prescriptions of Article I Section [sic] 7 of the New Jersey State Constitution." Plaintiff requested inter alia the following relief:

(A) Finding that the random testing provision of New Jersey Transit's drug and alcohol policy insofar as it relates to the random acts of testing of law enforcement personnel represented by PBA Local 304 is unconstitutional in consideration of the prescriptions of Article I Section [sic] 7 of the New Jersey State Constitution;

(B) Requiring that New Jersey Transit Authority amend its drug and alcohol policy so as to establish that law enforcement personnel represented by PBA Local 304 shall not be subject to any random drug testing;

(C) Voiding the results of any random drug tests conducted of law enforcement personnel represented by Transit PBA Local 304 which would include the reinstatement of any suspended or terminated personnel who were the subject of any random drug tests.

Plaintiff did not challenge those portions of Transit's policy that require drug testing for police officers who undergo annual physical examinations nor did it question the constitutionality of those portions of the policy that provide for drug testing upon reasonable individualized suspicion.

On May 3 1995 at a hearing on application by plaintiff for an order to show cause the Honorable Alvin Weiss considered the federal and state cases addressing the constitutional issues surrounding the administration of drug tests. He concluded:

I think in considering the sensitive nature of law enforcement work and people who carry guns and in today's society where violence seems to be a common denominator[ ] that the defendant in this case has a right to require its police officers who carry guns to take random drug tests to make sure that they are . .. "Clean." I therefore will deny the application for a restraining order by the plaintiff.

On May 23 1995 Court Weiss entered a final judgment in which he denied plaintiff's application for an order to show cause and both a temporary and permanent restraining order thereby rendering the decision a final judgment. In so doing he determined that based upon the evidence submitted there is no genuine issue as to any material fact in the case that an evidentiary hearing is therefore unnecessary and that defendant is entitled to judgment as a matter of law; and . . . that plaintiff's challenge is not federally preempted but that defendant's testing comports with the New Jersey Constitution.

I.

On appeal plaintiff argues that: (1) there is substantial New Jersey judicial precedent to support its contention that the establishment of random unannounced testing within Transit's Drug and Alcohol-Free Workplace Policy is unconstitutional in light of the prescriptions of article I paragraph 7 of the New Jersey Constitution; and (2) the trial court failed to properly apply the balancing test utilized in the past by the Appellate Division in determining whether the random drug testing of transit police officers violated the prescriptions of article I paragraph 7 of the New Jersey Constitution.

In pertinent part our State Constitution directs that 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. [N.J. Const. art. I P 7.]

The Fourth Amendment to the United States Constitution is virtually identical to the foregoing provision.

Preliminary we note that the Fourth Amendment's prohibition against unreasonable searches and seizures extends to those carried out by public officials. Allen v. County of Passaic 219 N.J. Super. 352 358 530 A.2d 371 (Law Div. 1986) (citing New Jersey v. T.L.O. 469 _U.S._ 325 333-34 105 S. Ct._ 733 739-40 83 L. Ed. 2d 720 729 (1985)); see also Vernonia School Dist.47J v. Acton 515 _U.S._ 115 S. Ct._ 2386 2390 132 L. Ed. 2d 564 573-74 (1995).

Furthermore it has been firmly established by both federal courts and our state courts that "a governmentally compelled taking of urine is both a 'search' and a 'seizure' within the meaning of the constitutional provisions." Fraternal Order of Police Newark Lodge No. 12 v. City of Newark 216 N.J. Super. 461 466 524 A.2d 430 (App. Div. 1987); see also National Treasury Employees Union v. Von Raab 489 _U.S._ 656 665 109 S. Ct._ 1384 1390 103 L. Ed. 2d 685 701 (1989); Skinner v. Railway Labor Executives' Ass'n 489 _U.S._ 602 617 109 S. Ct._ 1402 1413 103 L. Ed. 2d 639 660 (1989); Rawlings v. Police Dept. of Jersey City 133 N.J. 182 188 627 A.2d 602 (1993) O'Keefe v. Passaic Valley Water Comm'n 132 N.J. 234 242 624 A.2d 578 (1993); Caldwell v. New Jersey Dept. of Corrections 250 N.J. Super. 592 608 595 A.2d 1118 (App. Div.) certif. denied 127 N.J. 555 (1991); International Fed'n of Professional & Technical Eng'rs Local 194A v. Burlington County Bridge Comm'n 240 N.J. Super. 9 14 572 A.2d 204 (App. Div.) certif. denied 122 N.J. 183 (1990); Allen v. County of Passaic supra 219 N.J. Super. at 357. Consequently such a test must meet the reasonableness requirement of the Fourth Amendment National Treasury Employees Union v. Von Raab 489 _U.S._ 656 665 109 S. Ct._1384 1390 103 L. Ed. 2d 685 701-02 (1989) which "'depends on all the circumstances surrounding the search or seizure [drug test] '" Skinner v. Railway Labor Executives' Ass'n 489 _U.S._ 602 619 109 S. Ct._ 1402 1414 103 L. Ed. 2d 639 661 (1989) (quoting United States v. Montoya de Hernandez 473 _U.S._ 531 537 105 S. Ct._ 3304 3308 87 L. Ed. 2d 381 388 (1985)).

[Rawlings v. Police Dept. of Jersey City supra 133 N.J. at 188 (alteration in original).]

Thus the issue herein is not whether the test set forth in Transit's policy constitutes a search and seizure but rather whether the test which is clearly a search and seizure is unreasonable in light of established constitutional interpretation.

Despite the fact that the search and seizure provisions contained within the New Jersey and United States constitutions are virtually identical "our state constitution has been found to afford greater protection against unreasonable searches and seizures than may be required by the United States Supreme Court's interpretation of the Fourth Amendment." Fraternal Order of Police supra 216 N.J. Super. at 477; see also State v. Mollica 114 N.J. 329 351 554 A.2d 1315 (1989); State v. Novembrino 105 N.J. 95 145 519 A.2d 820 (1987); State v. Hunt 91 N.J. 338 370-72 450 A.2d 952 (1982); State v. Skidmore 253 N.J. Super. 227 232 601 A.2d 729 (App. Div. 1992); Caldwell v. New Jersey Dept. of Corrections supra 250 N.J. Super. at 609; International Fed'n of Professional & Technical Eng'rs Local 194A supra 240 N.J. Super. at 16. Thus our analysis will begin by addressing the current position of our courts with regard to the constitutionality of random unannounced drug testing.

To date New Jersey courts have refused to permit random unannounced drug testing of employees without the minimal safeguard of a reasonable individualized suspicion that the employee was engaging in drug use. Due to the frequency with which state courts addressing the issue have cited Shoemaker v. Handel 608 F. Supp. 1151 (D.N.J. 1985) aff'd 795 F.2d 1136 (3d Cir.) cert. denied 479 _U.S._ 986 107 S. Ct._ 577 93 L. Ed. 2d 580 (1986) our analysis begins with a discussion of Shoemaker and the cases which have extended its reasoning into the area of law enforcement officers.

In Shoemaker supra the plaintiffs licensed jockeys in New Jersey had brought an action under 42 U.S.C.A.SEC 1983 seeking a preliminary injunction to restrain the enforcement of two regulations adopted by the New Jersey Racing Commission which provided for the administration of random breathalyzer and urine tests to licensed jockeys. 608 F. Supp. at 1154. The plaintiffs alleged that these regulations violated the rights guaranteed by the Fourth Fifth and Ninth Amendments and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Id. at 1155. In regard to the alleged violations of the Fourth Amendment the plaintiffs specifically argued that the administration of these drug tests subjected jockeys to unreasonable searches and seizures. Ibid.

In upholding the regulations the United States District Court for the District of New Jersey began by noting the exception to the warrant requirement that has been carved out for the search of premises in closely regulated industries pursuant to an administrative inspection scheme. Id. at 1155. Although it was clear to the district court that the New Jersey horse-racing industry was closely regulated the question that was presented was whether the administrative search exception extends to the warrantless testing of not only premises but also persons engaged in the regulated activity. Id. at 1156. The district court concluded that the "plaintiffs failed to demonstrate that the Racing Commission's breathalyzer testing and urinalysis program is not closely tailored to further the state's legitimate interest in reducing the use of alcoholic beverages and drugs thereby promoting the safety and integrity of horse racing and protecting the public." Id. at 1157.

In affirming the decision of the district court the United States Court of Appeals for the Third Circuit noted the existence of two interrelated requirements that justify the warrantless administrative search exception.

First there must be a strong state interest in conducting an unannounced search. See [Donovan v. Dewey 452 _U.S._ 594 600 101 S. Ct._ 2534 2539 69 L. Ed. 2d 262 270 (1981)]. Second the pervasive regulation of the industry must have reduced the justifiable privacy expectation of the subject of the search. Id. Both these requirements are present in the warrantless testing of persons involved in the New Jersey horse racing industry.

[795 F.2d at 1142.]

The Third Circuit reasoned that New Jersey has a strong interest in assuring the public of the integrity of the persons engaged in the horse-racing industry. Id. at 1142.

Subsequently other courts have displayed a willingness to apply the administrative search exception to police officers by reasoning that police officers represent members of a highly regulated industry. For instance McDonell v. Hunter 809 F.2d 1302 1304 (8th Cir. 1987) arose from a class action suit challenging the constitutionality of an Iowa Department of Corrections policy which subjected the correctional institution employees to testing upon the request of department officials. In regard to urinalyses Court held that when properly administered the testing procedure is not as intrusive as a strip search or a blood test. While the prison officials have . . . [a] legitimate interest in maintaining prison security . . . the infringement upon the privacy interest of correctional institution employees already diminished is lessened. Officials have a legitimate interest in assuring that the activities of those employees who come into daily contact with inmates are not inhibited by drugs or alcohol and are fully capable of performing their duties.

[Id. at 1308.]

In McDonell the United States Court of Appeals for the Eighth Circuit cited Shoemaker and held that "we believe the state's interest in safeguarding the security of its correctional institutions is at least as strong as its interest in safeguarding the integrity of and the public confidence in the horse racing industry." Id. at 1308. Court thereafter held that "urinalyses are not unreasonable when conducted for the purpose of determining whether corrections employees are using or abusing drugs which would affect their ability to safely perform their work within the prison 'a unique place fraught with serious security dangers.'" Ibid. (citation omitted). Armed with this reasoning Court concluded that urinalyses may be performed uniformly or by systematic random selection of those employees who have regular daily contact with the prisoners. Ibid.

More recently in Policemen's Benevolent Ass'n of New Jersey Local 318 v. Township of Washington 850 F.2d 133 134 (3d Cir. 1988) cert. denied 490 _U.S._ 1004 109 S. Ct._ 1637 104 L. Ed. 2d 153 (1989) the defendant township appealed from a summary judgment in favor of the plaintiff which represented a police officer in a suit challenging the defendant's drug-testing policy on Fourth Amendment grounds. The plan implemented by the defendant called for both reasonable suspicion and random testing. Id. at 135. In approving the defendant's plan the Third Circuit relied upon Shoemaker. Id. at 136. Court cited the numerous statutes and regulations to which the members of the police department are already subject. Court thereafter noted that "these statutes and regulations speak for themselves. They establish that the police industry is probably the most highly regulated with respect to performance of its employees of any industry in New Jersey." Id. at 141; see also Bolden v. Southeastern Pa. Transp. Auth. 953 F.2d 807 822 (3d Cir. 1991) cert. denied 504 _U.S._ 943 112 S. Ct._ 2281 119 L. Ed. 2d 206 (1992); Ford v. Dowd 931 F.2d 1286 (8th Cir. 1991); Penny v. Kennedy 915 F.2d 1065 (6th Cir. 1990); Weicks v. New Orleans Police Dep't 706 F. Supp. 453 461 (E.D. La. 1988) aff'd 868 F.2d 1269 (5th Cir. 1989).

Earlier decisions of state courts in New Jersey have refused to allow random drug testing of police officers. See Allen v. County of Passaic supra 219 N.J. Super. at 380 ("The appropriate standard to be applied in situations involving Sheriff's officers and corrections officers is that of reasonable suspicion."). In Fraternal Order of Police supra the plaintiffs appealed from a decision of the Law Division which sustained a directive issued by the City of Newark Police Director ordering all members of the Narcotic Bureau to be subjected to urine testing for drug abuse at least twice a year. 216 N.J. Super. at 462. The directive was issued in response to the Police Director's concern with possible drug abuse among members of the Police Department and also with the public perception of drug abuse among police officers. Id. at 464. The Director's concern was based on his "'awareness of the extent and seriousness of the problem of drug abuse in society in general and in Newark in particular as well as the results of recent urine testing of Police Department recruits'" which had revealed the presence of unlawful substances in several recruits. Ibid. The tests were intended to deter drug use and thus advance the interests of public safety and effective law enforcement. Ibid.

In reversing the decision of the Law Division in that case this court began by noting the principle that a search or seizure based upon a warrant supported by probable cause is "presumed to be valid" (State v. Valencia 93 N.J. 126 133 (1983)) and that a warrantless search is "prima facie invalid unless it comes within one of the specific exceptions to the warrant requirement" of the constitutional provisions. State v. Young 87 N.J. 132 141 432 A.2d 874 (1981). See Katz v.United States 389 _U.S._ 347 357 88 S. Ct._ 507 514 19 L. Ed. 2d 576 (1967).

[Id. at 466-67 (footnote omitted).]

The defendant relying upon Shoemaker supra had sought to bring the proposed testing within the "pervasively regulated industry" exception to the warrant requirement which permits certain warrantless searches and seizures without either probable cause or individualized suspicion. Id. at 468. This court recognized that although administrative searches i.e. those conducted to enforce a regulatory scheme are subject to the Fourth Amendment and therefore commonly require the issuance of a warrant searches of private commercial property utilized in a pervasively regulated industry may be inspected without a warrant and without individualized suspicion. Ibid. Moreover those "persons associated with such an industry may also be subjected to a warrantless search at least while on the commercial premises." Ibid. (citing In re Martin 90 N.J. 295 313-314 447 A.2d 1290 (1982)).

Nonetheless this court concluded that police officers are not associated with a highly-regulated industry. Id. at 469. In so concluding we reasoned:

Like many other groups of public employees police officers are subject to a variety of statutory and administrative controls. But government's supervision of its employees cannot be equated with the regulation of sensitive industries requiring "close supervision and inspection." See e.g. In re Martin 90 N.J. at 312-313. Police are not engaged in a "commercial enterprise" (cf. Donovan 452 _U.S._ at 599 101 S. Ct._ at 2538); they are not subject to a "comprehensive and defined" regulatory scheme in which drug testing is a "necessary component" (Id. at 600 101 S. Ct._ at 2538); there has been no legislative determination "that warrantless searches are necessary to further a regulatory scheme[.]" (Ibid.). To treat the police as a "pervasively regulated industry" would dangerously extend and distort that exception to the warrant requirement beyond its intended scope. We thus find ourselves in agreement with the many courts which have found Shoemaker inapplicable to or distinguishable from cases involving public employees. original).]

This court held that because the searches and seizures contemplated by the Police Director's memorandum failed to come within a specific exception to the warrant requirement the memorandum was prima facie invalid. Id. at 470. This court concluded that urinalyses conducted without reasonable individualized suspicion were not a proper means to curb drug abuse among and enhance public confidence in members of the police department. Id. at 475. That conclusion was reinforced by referring to the Counsel General's guidelines promulgated in 1986 which as noted above similarly require the existence of reasonable suspicion. Id. at 475-76.

The application of this court's decision in Fraternal Order of Police supra would appear to preclude Transit from implementing the proposed drug-testing policy here at issue. Not only do we disagree with its principal holding that police officers are not members of a "highly-regulated industry " 261 N.J. Super. at 469 we also find outdated the conclusion reached therein that the city directive mandating that all members of the narcotic bureau be subjected to urine testing for drug abuse without probable cause or reasonable individualized suspicion violated the state constitutional prohibition against unreasonable searches and seizures id. at 478. We are thoroughly convinced that police officers are members of a "highly-regulated industry." Furthermore our upholding of the constitutionality of Transit's drug-testing policy is compelled both by the deteriorating conditions of society with respect to drug abuse *fn4 and subsequent federal decisions.

The two principal United States Supreme Court cases addressing the constitutional implications of drug testing of employees are Skinner v. Railway Labor Executives' Ass'n supra 489 _U.S._ at 606 109 S. Ct._ at 1407 103 L. Ed. 2d at 652-53 and National Treasury Employees Union v. Von Raab supra 489 _U.S._ at 665 109 S. Ct._ at 1390 103 L. Ed. 2d at 701. Notably both of these cases were decided after this court's decision in Fraternal Order of Police; thus these cases clearly provide a basis for upholding the constitutionality of Transit's Drug and Alcohol-Free Workplace Policy.

Skinner supra arose out of the promulgation by the Federal Railroad Administration (FRA) of regulations which mandated the administration of blood and urine tests to employees who were involved in certain train accidents as well as to employees who violated certain safety rules. 489 _U.S._ at 606 109 S. Ct._ at 1407 103 L. Ed. 2d at 652-53. In adopting these regulations the FRA was responding to evidence which indicated that on-the-job intoxication was a significant problem in the railroad industry. Id. 489 _U.S._ at 607 109 S. Ct._ at 1407-08 103 L. Ed. 2d at 653. The United States Court of Appeals for the Ninth Circuit invalidated the majority of the regulations concluding that particularized suspicion was essential to a judicial finding that toxicological testing of railroad employees was reasonable. Id. 489 _U.S._ at 613 109 S. Ct._ at 1411 103 L. Ed. 2d at 657.

In reversing the judgment of the Ninth Circuit the United States Supreme Court acknowledged that "chemical analysis of urine like that of blood can reveal a host of private medical facts about an employee"; indeed the very process of collecting a urine specimen implicates privacy interests. Id. 489 _U.S._ at 617 109 S. Ct._ at 1413 103 L. Ed. 2d at 659-60. Thus the Court concluded these intrusions must be deemed searches under the Fourth Amendment. Id. 489 _U.S._ at 617 109 S. Ct._ at 1413 103 L. Ed. 2d at 660.

Court next undertook an analysis of whether such an intrusion was unreasonable explaining that in order to determine whether a particular practice is permissible courts must balance the intrusion of that practice on the individual's Fourth Amendment interests against its promotion of a legitimate governmental interest. Id. 489 _U.S._ at 619 109 S. Ct._ at 1414 103 L. Ed. 2d at 661. Court recognized that a search or seizure except in limited and well-defined circumstances is not reasonable unless it is conducted in accordance with a judicial warrant issued upon probable cause. Ibid. However Court explained that when there exist "special needs" beyond the normal ones for law enforcement which render the warrant and probable-cause requirement impracticable "we have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable cause requirements in the particular context." Id. 489 _U.S._ at 619 109 S. Ct._ at 1414 103 L. Ed. 2d at 661.

Armed with these principles the Supreme Court held that the governmental interest in regulating the conduct of railroad employees to ensure safety presents special needs above and beyond routine law enforcement which potentially justify departures from the usual warrant requirements. Id. 489 _U.S._ at 620 109 S. Ct._ at 1415 103 L. Ed. 2d at 661-62. Court likened this governmental interest to the interest implicated by the supervision of regulated industries and prisoners on probation and the operation of government offices schools and prisons. Ibid.

Court reasoned that the employees covered by the FRA regulations include persons engaged in safety-sensitive jobs. Id. 489 _U.S._ at 620 109 S. Ct_. at 1415 103 L. Ed. 2d at 662. Court noted that the reason the FRA prescribed toxicological tests was not to assist in the prosecution of employees but rather to prevent accidents caused by the impaired performance of employees under the influence of alcohol or drugs. Id. 489 _U.S._ at 620-21 109 S. Ct._ at 1415 103 L. Ed. 2d at 662 (citing 49 CFRSEC219.1(a) (1987)). The need to ensure the safety of both the traveling public and the employees themselves clearly justifies regulations prohibiting covered employees from engaging in alcohol or drug use while on duty or even while subject to being called for duty. Id. 489 _U.S._ at 621 109 S. Ct._ at 1415 103 L. Ed. 2d at 662.

Court then explained that the remaining consideration is whether the Government's need to monitor compliance with these restrictions justifies the privacy intrusions at issue in the absence of a warrant or individualized suspicion. Id. 489 _U.S._ at 621-22 109 S. Ct._ 1415 103 L. Ed. 2d at 662-63. Court declared that the "Government's interest in dispensing with the warrant requirement is at its strongest when as here 'the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.'" Id. 489 _U.S._ at 623 109 S. Ct._ at 1416 103 L. Ed. 2d at 663 (quoting Camara v. Municipal Court of San Francisco 387 _U.S._ 523 87 S. Ct._ 1727 18 L. Ed. 2d 930 (1967)).

Court recognized that even a search that may be performed without a warrant must be based as a general matter on probable cause to believe that the person to be searched violated the law. Even when the balance of interests militates against a showing of probable cause Court has usually required a measure of individualized suspicion before upholding the reasonableness of a search. Id. 489 _U.S._ at 624 109 S. Ct._ at 1417 103 L. Ed. 2d at 664. However Court went on to explain that "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. 489 _U.S._ at 624 109 S. Ct._ at 1417 103 L. Ed. 2d at 664.

Court stated that the intrusions occasioned by blood tests and breath tests were not significant. Id. 489 _U.S._ at 625-26 109 S. Ct._ at 1418 103 L. Ed. 2d at 665. Court admitted that urine tests presented a more difficult question since the procedures for collecting the necessary specimens unlike the procedures utilized for breath or blood tests require employees to perform an excretory function usually shielded by great privacy. Id. 489 _U.S._ at 626 109 S. Ct._ at 1418 103 L. Ed. 2d at 666. However Court was satisfied that these concerns had been mitigated by the promulgation of regulations tailored to reduce the intrusiveness of the collection process. Ibid.

Significantly Court found that covered employees had diminished expectations of privacy by virtue of their participation in an industry that is highly regulated to ensure safety a goal which depends in large part on the health and fitness of covered employees. Ibid. Moreover where covered employees are engaged in tasks so fraught with enormous risks of injury to others that even a momentary lapse in concentration can have disastrous results the Government interest in testing without a showing of individualized suspicion becomes quite compelling. Id. at 489 _U.S._ at 628 109 S. Ct._ at 1419 103 L. Ed. 2d at 667.

Court reasoned:

Much like persons who have routine access to dangerous nuclear power facilities see e.g. Rushton v. Nebraska Public Power Dist. 844 F.2d 562 566 (CA8 1988); Alverado v. Washington Public Power Supply System 111 Wash 2d 424 436 759 P.2d 427 433-434 (1988) cert pending No. 88-645 employees who are subject to testing under the FRA regulations can cause great human loss before any signs of impairment become noticeable to supervisors or others.

[Id. 489 _U.S._ at 628 109 S. Ct._ at 1419 103 L. Ed. 2d at 667.]

Under such circumstances a requirement of particularized suspicion of drug and alcohol use would create serious impediments to an employer's ability to identify impaired employees or to obtain information about the causes of major accidents. Id. 489 _U.S._ at 631 109 S. Ct._ at 1420 103 L. Ed. 2d at 668. Thus since the compelling Government interests served by the FRA's regulations would be significantly hampered by requiring railroads to indicate specific facts giving rise to a reasonable suspicion of impairment before testing a covered employee Court in Skinner abandoned the reasonable suspicion standard under the facts there at issue. Id. 489 _U.S._ at 633 109 S. Ct._ at 1421-22 103 L. Ed. 2d at 670.

In National Treasury Employees Union v. Von Raab supra a case decided by the United States Supreme Court on the same day as Skinner the Commissioner of the United States Customs Service following the report of a Drug Screening Task Force which concluded that urinalyses provided a technologically reliable valid and accurate method of drug screening had announced his intention to require drug tests of employees who applied for or occupied certain positions within the service. 489 _U.S._ at 660 109 S. Ct._ at 1384 103 L. Ed. 2d at 698. Drug tests were made a condition of placement or employment for positions that met one or more of three criteria which included carrying firearms. Id. 489 _U.S._ at 660-61 109 S. Ct._ at 1388 103 L. Ed. 2d at 699. Court affirmed so much of the judgment of the United States Court of Appeals for the Fifth Circuit as upheld the testing of those employees directly involved in drug interdiction or who were required to carry firearms. However Court vacated the judgment to the extent it upheld the testing of applicants for positions requiring the incumbent to handle classified materials. Id. 489 _U.S._ at 664-65 109 S. Ct._ at 1390 103 L. Ed. 2d at 701.

In reaching its decision in Von Raab Court reaffirmed the principle that "neither a warrant nor probable cause nor indeed any measure of individualized suspicion is an indispensable component of reasonableness in every circumstance." Id. 489 _U.S._ at 665 109 S. Ct._ at 1390 103 L. Ed. 2d at 702. The Court reiterated that Fourth Amendment intrusions where they serve special governmental needs beyond those for law enforcement necessitate a balancing of the individual's privacy expectations against the Government's interests to determine whether the requirement for a warrant or some level of individualized suspicion is impractical in the particular circumstance. Id. 489 _U.S._ at 665-666 109 S. Ct._ at 1391 103 L. Ed. 2d at 702.

Court acknowledged that "even where it is reasonable to dispense with the warrant requirement in the particular circumstances a search ordinarily must be based on probable cause." Id. 489 _U.S._ at 667 109 S. Ct._ at 1392 103 L. Ed. 2d at 703. Court pointed out that "the probable-cause standard 'is peculiarly related to criminal investigations.'" Id. 489 _U.S._ at 667 109 S. Ct._ at 1392 103 L. Ed. 2d at 703. (citation omitted).

Court recognized "that the Government has a compelling interest in ensuring that front-line interdiction personnel are physically fit and have unimpeachable integrity and judgment." Id. 489 _U.S._ at 670 109 S. Ct._ at 1393 103 L. Ed. 2d at 705. Moreover Court declared that the public interest likewise demands effective measures to prevent the promotion of drug users to positions that require the incumbent to carry a firearm even if the incumbent is not engaged directly in the interdiction of drugs. 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." Railway Labor Executives ante at 628 489 _U.S._ 602 103 L. Ed. 2d 639 109 S. Ct._ 1402. [National Treasury Employees Union supra 489 _U.S._ at 670 109 S. Ct._ at 1393 103 L. Ed. 2d at 705.] Thus in both Skinner and Von Raab Court held that individualized reasonable suspicion was not an indispensable prerequisite for a public employer to conduct drug tests of its employees.

The question that remains therefore is whether in light of the United States Supreme Court's decisions in these two cases New Jersey courts should re-evaluate their assessment of the constitutional implications of random drug testing of police officers who perform safety-sensitive functions.

In International Federation of Professional & Technical Engineers Local 194A supra we held that the drug testing of public employees physically involved in the opening and closing of bridges which cross the Delaware River may be conducted as part of an annual physical examination. This court's holding was based on scrutiny of the totality of circumstances including the nature of the employees' work and the non-random nature of the test i.e. the test was to be administered during the employee's annual physical examination. 240 N.J. Super. at 11.

In reaching our conclusion we distinguished the tests involved in Fraternal Order of Police supra and Allen v. County of Passaic supra explaining that in those two cases the tests were to be conducted at random whereas the tests then before us were part of a routine annual physical examination. Id. at 17. We further explained that a scheduled test is less objectionable than a random test since employees have a reduced expectation of privacy as to the former which thus renders the testing only minimally intrusive. Id. at 17. A much greater privacy interest is involved in a random testing situation. Id. at 24-25.

We also recognized that as a result of Skinner and Von Raab nothing in federal constitutional law prevents requiring public employees whose duties implicate the safety of the public to undergo a urinalysis particularly during an annual or regularly scheduled physical exam even absent a reasonable suspicion that the tested individuals were drug users. Id. at 22. We added: "The drug testing must serve some 'special needs' of the employing governmental body rather than being designed to gather evidence for a criminal prosecution. Even if the 'special need' appears the individual's privacy interest must be balanced against the public employer's interest." Id. at 22.

Thus in International Federation of Professional & Technical Engineers Local 194A we distinguished random testing from other drug testing procedures. However while we continued to endorse the view that random drug testing imposed greater constitutional concerns we acknowledged that in cases where the public safety depends on the fitness of employees courts have recently upheld even random drug tests. See e.g. Harmon v. Thornburgh [278 U.S. App. D.C. 382 878 F. 2d 484 (D.C. Cir. 1989) cert. Denied sub nom. Bell v. Thornburgh _U.S._ __ 110 S. Ct._ 865 107 L. Ed. 2d 949 (1990)]; Rushton v. Nebraska Public Power Dist. 653 F. Supp. 1510 (D. Neb. 1987) aff'd 844 F.2d 562 566-567 (8 Cir. 1988) (upholding random [drug] testing of nuclear power plant workers given the great potential for danger and resulting lowered expectation of privacy).

It appears insignificant that the initial May 1986 drug screen may be deemed "random." The governing "balancing test" now appears to be the same for "random" as well as post-accident (Skinner) or "pre-ascension" (Von Raab) type drug testing.

[International Federation of Professional & Technical Engineers Local 194A supra 240 N.J. Super. at 23.]

In Hennessey v. Coastal Eagle Point Oil Co. 247 N.J. Super. 297 306 589 A.2d 170 (App. Div. 1991) aff'd 129 N.J. 81 609 A.2d 11 (1992) a case involving an employee of a private oil company who was discharged following a positive drug test we observed that the vitality of our decision in Fraternal Order of Police supra despite its reliance on the New Jersey Constitution was diluted by Skinner and Von Raab. In affirming our decision in Hennessey supra the New Jersey Supreme Court took note of the United States Supreme Court cases decided after Fraternal Order of Police 129 N.J. at 105. Court stated that "we agree that the combination of the impracticality of less-intrusive means of detecting drug use and the urgent need to ensure public safety renders urine testing a permissible method of preventing drug use among employees in safety-sensitive jobs." Id. at 106. However Court emphasized the continued need to protect employee privacy and thus urged employers to formulate and implement procedures designed to minimize the intrusiveness of the testing process. Ibid. Court concluded that "because the safety-sensitive nature of [the plaintiff's] employment raises the potential for enormous public injury the public policy supporting safety outweighs any public policy supporting individual privacy rights." Id. at 107.

Nonetheless while Hennessey provides some useful language it did not specifically involve the issue of the drug testing of police officers. In Rawlings v. Police Dept. of Jersey City supra 133 N.J. 182 Court was asked to consider whether the defendant violated the Fourth and Fifth Amendment rights of the plaintiff a police officer by directing him to submit a urine sample for mandatory testing pursuant to a departmental order that required officers to submit to testing on individualized reasonable suspicion that the officer had unlawfully used drugs. Id. at 185. The plaintiff refused to obey the order following his arrest on suspicion of possessing and distributing cocaine. Id. at 185-86. Court held that the challenged order was designed to prevent unlawful drug use by police officers and served special governmental needs. Id. at 189. Thus our Supreme Court recognized the fact that the dangerous nature of a police officer's position requires special consideration in assessing the constitutionality of a drug-testing program. Court believed that particularized suspicion effectively balanced the Fourth Amendment rights of the police officer and the interests of the department in conducting a drug test. Id. at 191. Because the order explicitly required the existence of individualized reasonable suspicion Court did not need to reach the issue of whether drug-testing without individualized suspicion would contravene plaintiff's Fourth Amendment protections. Id. at 190. However Court did note that the United States Supreme Court in Von Raab and Skinner had relaxed the Fourth Amendment protection sufficiently to obviate the requirement for individualized suspicion. Id. at 190.

In O'Keefe v. Passaic Valley Water Commission supra 132 N.J. 234 the plaintiff challenged a written policy implemented by the defendant which required all applicants for employment to submit to a drug test and afforded the defendant the right to refuse to hire any person who refused to submit to such a test. The plaintiff asserted that the defendant refused to hire him as a water-meter reader because he would not take the test. He argued that the defendant's policy violated both the Fourth Amendment of the United States Constitution and article I paragraph 7 of the New Jersey Constitution. Id. at 236.

Although the New Jersey Supreme Court concluded that the issue of the constitutionality of the program was rendered moot it nevertheless took the opportunity to address the problems that plague employment-related drug-testing cases. Id. at 242. In so doing Court again citing the United States Supreme Court decisions of Skinner and Von Raab set forth a framework within which to analyze the constitutionality of drug-testing programs that is useful to the present analysis. Court stated that "after determining whether a special need exists a court must then balance the applicant's or employee's privacy interests against those of the government employer in administering the drug-testing program." Id. at 243. Thus our Supreme Court advocates the balancing test endorsed by the United States Supreme Court in Skinner and Von Raab.

In applying such a balancing test herein the government's need to conduct random suspicionless searches outweighs the privacy interests of the covered employees -- here employees who carry a firearm for security purposes - to such a degree that it is impractical to require either a warrant or a measure of individualized suspicion. See Von Raab supra 489 _U.S._ at 665-66 109 S. Ct._ at 1391 103 L. Ed. 2d at 702. In this case the special governmental need of protecting the public from the risk posed by officers who are impaired by drugs or alcohol cannot be ignored.

Moreover the regulations promulgated by Transit endeavor to minimize the intrusiveness of the urine collection process. See Skinner supra 489 _U.S._ at 626-27 109 S. Ct._ at 1418 103 L. Ed. 2d at 666. Furthermore our Supreme Court has acknowledged that a police officer has a diminished expectation of privacy due to the nature of his employment. Rawlings v. Police Dep't of Jersey City supra 133 N.J. at 189-90.

We recently had the opportunity to address the Skinner/Von Raab balancing test in upholding the constitutionality of two statutes N.J.S.A. 2A:4A-43.1 and N.J.S.A. 2C:43-2.2. Those statutes require serological testing for AIDS and HIV of defendants charged with certain sexual offenses upon request of the victim. See State of New Jersey ex rel J.G. N.S. and J.T.

N.J. Super. (App. Div. 1996). In our decision we acknowledged the devastating impact a report of infection may have on a defendant id. (slip op. at 16) but found that applying the Skinner/Von Raab balancing test the individual defendant's interest in preventing a bodily intrusion and disclosure of his or her HIV status is significantly less weighty than the compelling state interest in the health and welfare of the victim in particular and the public in general id. (slip op. at 20).

The employees here involved by virtue of the risks inherent in their jobs and the split-second decisions they are required to make have the potential "to cause great human loss before any signs of impairment become noticeable to supervisors or others." See Skinner supra 489 _U.S._ at 628 109 S. Ct. at 1419 103 L. Ed. 2d at 667. The regulations which are the subject of this appeal apply only to Transit police officers who carry firearms; therefore those regulations are minimally intrusive. Based upon a balancing test this glaring potential for harm when considered against the backdrop of the other factors noted above supports the constitutionality of Transit's drug-testing policy.

II.

We need not determine whether the judgment of the trial court could be sustained based upon the United States Constitution Article I Section 8 Clause 3 (the Commerce Clause) or Article VI Clause 2 (the Supremacy Clause).

Affirmed.

 
Notes:

*fn1 Later in 1991 the Urban Mass Transportation Act was amended and its name changed to the Federal Transit Act. Pub. L. 102-240 SEC. 3003(b).

*fn2 In pertinent part 49 U.S.C.A. SEC. 5331(g) states that "[a] person is not eligible for financial assistance under section 5307 5309 or 5311 of this title or section 103(e)(4) of title 23 if the person is required under regulations the Secretary of Transportation prescribes under this section to establish a program of alcohol and controlled substances testing and does not establish the program."

*fn3 Addendum II delineates those requirements of Transit's Core Policy which are applicable only to Transit employees who perform Rail covered service. Under the terms of Addendum II all such employees "are subject to random unannounced drug and alcohol testing."

*fn4 Court Weiss in upholding the constitutionality of Transit's Drug and Alcohol-Free Workplace Policy noted a recent incident in the Essex County Courts Building where a police officer who was about to testify in a drug-related case was assassinated outside of Courtroom. Later it became common knowledge that an autopsy of the police officer disclosed that that officer was taking drugs. Court Weiss also noted that the New York Times has recently reported major investigations in various precincts in New York because of drug use by police officers.