Caruso v. Ward

530 N.E.2d 850, 72 N.Y.2d 432, 534 N.Y.S.2d 142, 3 I.E.R. Cas. (BNA) 1537, 1988 N.Y. LEXIS 2716
CourtNew York Court of Appeals
DecidedOctober 25, 1988
StatusPublished
Cited by56 cases

This text of 530 N.E.2d 850 (Caruso v. Ward) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Caruso v. Ward, 530 N.E.2d 850, 72 N.Y.2d 432, 534 N.Y.S.2d 142, 3 I.E.R. Cas. (BNA) 1537, 1988 N.Y. LEXIS 2716 (N.Y. 1988).

Opinions

OPINION OF THE COURT

Bellacosa, J.

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 [435]*435officers’ 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 NY2d 325, 326; accord, McGowan v Burstein, 71 NY2d 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 [436]*436testing 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; NY 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 NY2d 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.

[437]*437Our 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 NY2d, 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 NY2d 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 US 709, 724-727; see also, New Jersey v T. L. O., 469 US 325).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Matter of Brooks v. New York State Dept. of Corr. & Community Supervision
193 N.Y.S.3d 411 (Appellate Division of the Supreme Court of New York, 2023)
The People v. Oscar Sanders
47 N.E.3d 770 (New York Court of Appeals, 2016)
Carniol v. New York City Taxi & Limousine Commission
42 Misc. 3d 199 (New York Supreme Court, 2013)
Cunningham v. New York State Department of Labor
997 N.E.2d 468 (New York Court of Appeals, 2013)
Cunningham v. New York State Department of Labor
89 A.D.3d 1347 (Appellate Division of the Supreme Court of New York, 2011)
Clifford v. Kelly
58 A.D.3d 432 (Appellate Division of the Supreme Court of New York, 2009)
People v. Wilkinson
20 Misc. 3d 414 (New York County Courts, 2008)
Jennings v. Leon
31 A.D.3d 762 (Appellate Division of the Supreme Court of New York, 2006)
Skrypek v. Bennett
31 A.D.3d 827 (Appellate Division of the Supreme Court of New York, 2006)
Matter of Boss v. Kelly
2004 NY Slip Op 24122 (New York Supreme Court, New York County, 2004)
Boss v. Kelly
3 Misc. 3d 936 (New York Supreme Court, 2004)
Morris v. Port Authority of New York & New Jersey
290 A.D.2d 22 (Appellate Division of the Supreme Court of New York, 2002)
DiCicco v. Wyandanch Volunteer Fire Department, Inc.
284 A.D.2d 459 (Appellate Division of the Supreme Court of New York, 2001)
Montella v. Bratton
248 A.D.2d 134 (Appellate Division of the Supreme Court of New York, 1998)
New Jersey Transit PBA Local 304 v. New Jersey Transit Corp.
701 A.2d 1243 (Supreme Court of New Jersey, 1997)
Briggs v. Stangl
222 A.D.2d 672 (Appellate Division of the Supreme Court of New York, 1995)
Washington v. Dolce
208 A.D.2d 937 (Appellate Division of the Supreme Court of New York, 1994)
Delaraba v. Nassau County Police Department
632 N.E.2d 1251 (New York Court of Appeals, 1994)
Hill v. National Collegiate Athletic Assn.
865 P.2d 633 (California Supreme Court, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
530 N.E.2d 850, 72 N.Y.2d 432, 534 N.Y.S.2d 142, 3 I.E.R. Cas. (BNA) 1537, 1988 N.Y. LEXIS 2716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caruso-v-ward-ny-1988.