Guiney v. Police Commissioner of Boston

582 N.E.2d 523, 411 Mass. 328

• Court: Massachusetts Supreme Judicial Court
• Decided: December 9, 1991
• Status: Published

Opinions

Wilkins, J.

In April, 1986, the defendant police commissioner issued Boston Police Department Rule 111 (Rule 111) concerning the testing of Boston police department personnel for the use of illicit drugs. Rule 111, as now amended, authorizes urinalysis drug testing of police officers both on reasonable suspicion and on a random basis. In this action, the plaintiff, a Boston police officer, relying solely on art. 14 of the Massachusetts Declaration of Rights, challenges the constitutionality of the random testing proposed by Rule 111.

The plaintiff in no respect relies on the Constitution of the United States. Any claim of a violation of the Fourth Amendment seems foreclosed by the determination in Guiney v. Roache, 873 F.2d 1557, 1558 (1st Cir.), cert. denied, 493 U.S. 963 (1989). That court held, in light of National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), that Rule 111, to the extent that it calls for random testing of those police officers who carry firearms or participate in drug interdiction, does not prescribe any search or seizure in violation of a police officer’s Fourth Amendment rights.² Guiney v. Roache, supra at 1558.

A judge of the Superior Court ruled that the random urinalysis provisions of Rule 111 did not violate art. 14. She, therefore, allowed the commissioner’s motion for summary judgment and dismissed the action. We granted the commissioner’s petition for direct appellate review. We reverse and direct that summary judgment be entered declaring that Rule 111 violates art. 14 insofar as Rule 111 prescribes random urinalysis testing of Boston police officers.

The factual record before us by stipulation is the same as that before the Federal Court and consists of Rule 111, as amended, and nothing else of significance. Rule 111, as amended, appears in Guiney v. Roache, 654 F. Supp. 1287, 1289-1294 (D. Mass. 1987).³ The details of Rule 111 are not important for our purposes. Any police officer to be tested, except on the basis of reasonable suspicion, “will be selected by randomized independent computer process.” Id. at 1291. Rule 111, if followed, thus eliminates any prospect of an improper exercise of discretion to test a particular police officer.

Rule 111 states that the rule is necessary to preserve the “integrity of the Department and its personnel; to guard against the harmful consequences to the public good occasioned by the unauthorized unlawful use” of drugs by law enforcement personnel; and to “maintain a high degree of public confidence in all those charged with upholding public order and public safety.” Id. at 1290. There is nothing in the record to indicate that there has been any problem, or any public perception of a problem, arising from the illicit use of drugs by Boston police officers. Indeed, there is nothing in the record to indicate that Boston police officers have unlawfully used controlled substances on or off duty. Moreover, there is no showing of how random drug testing by urinalysis will provide information that is needed to identify officers whose on-duty performance was affected by illicit drug use.

The commissioner rightly concedes that the random urinalysis testing called for by Rule 111 involves a search and seizure for the purposes of art. 14. See O’Connor v. Police Comm’r of Boston, 408 Mass. 324, 326 (1990); Horsemen’s Benevolent & Protective Ass’n, Inc. v. State Racing Comm’n, 403 Mass. 692, 699-700 (1989). The question is whether the unannounced, warrantless, suspicionless, random urinalysis testing procedure that Rule 111 imposes is an unreasonable search and seizure under art. 14. If such an intrusive testing process could ever be justified as reasonable in an art. 14 sense (barring the police officer’s consent to the testing), the government would have to make a strong factual showing that a substantial public need exists for the imposition of such a process applicable to all police officers.

We have considered challenges to drug test requirements before. In Horsemen’s Benevolent & Protective Ass’n, Inc. v. State Racing Comm’n, supra at 705, this court concluded that art. 14 prohibited random drug testing by urinalysis, pursuant to a drug testing regulation, of persons licensed by the State racing commission. The commission claimed that the testing program deterred drug use, ensured the integrity of betting on horse races, and encouraged safety. The court rejected these arguments because they “are merely speculative, and have no basis in the record.” Id. The commission failed to meet its burden of advancing “a sufficiently compelling reason to justify the highly invasive monitored urine specimen collection it seeks to impose on all licensees.” Id. Justice Greaney, writing in concurrence in O’Connor v. Police Comm’r of Boston, supra at 332 (Greaney, J., concurring), made the same point with respect to the record in that case. “[T]he important constitutional right of privacy established by art. 14” should not be overruled by “abstract goals of safety and integrity . . . without any factual information in the record to demonstrate frequency of drug use by police officers or to demonstrate any connection between such use and grave harm to the force or public safety.”

In the O’Connor case, which concerned the testing of police cadets for drug usage, the police cadet had consented to the search, and, therefore, he had little or no reasonable expectation of privacy. In such circumstances, the generalized but undocumented governmental need for the search — discovering and deterring drug use by police cadets — made the search, in the court’s view, reasonable under art. 14. Three concurring Justices concluded that the cadet’s consent alone made the search reasonable under art. 14 and that either no balancing of public interests against privacy interests should ever be undertaken in a case like this (id. at 332 [Liacos, C.J., concurring])⁴ or that, because of the cadet’s consent, no balancing of interests was needed (id. at 332 [Greaney, J., concurring, joined by Liacos, C.J., and Abrams, J.]).

In the case before us, no consent to the searches is contemplated by Rule 111, and the commissioner has made no demonstration, on the record or otherwise, that facts exist that warrant random drug tests of police officers. The record offers nothing to show that there is a drug problem in the Boston police department. Nor is there anything outside the record of which we could take note that would permit such a conclusion. There is also no fact in the record, or otherwise established, to which the commissioner points to show that a substantial public purpose requires and justifies random testing of the urine of Boston police officers. In striking down the random search aspect of Rule 111, Judge Keeton reached the conclusion that the record before him (which is the record before us) was inadequate to support the government’s position. Guiney v. Roache, 686 F. Supp. 956, 961 (D. Mass. 1988). The commissioner’s argument is' speculative.

By contrast, in Commonwealth v. Trumble, 396 Mass. 81 (1985), where the court upheld the use of roadblocks (conducted pursuant to carefully crafted guidelines) to deter and detect drunk drivers, there was a clear demonstration that drunk motorists presented a substantial problem on the highways of this State. Id. at 86-87. Although the stopping of a motorist’s vehicle at a roadblock is a seizure for constitutional purposes (Commonwealth v. McGeoghegan, 389 Mass. 137, 139 [1983]), the intrusion of a roadblock on a motorist’s privacy is fleeting and certainly does not involve the random taking of body fluids. This court has never approved the non-consensual taking of blood or urine of a person in the absence of a demonstrated, particularized basis for doing so.

The court should not infer or assume the existence of facts that might justify the governmental intrusion. The reasonableness of a mandated urinalysis cannot fairly be supported by unsubstantiated possibilities. If the government is to meet the requirements of art. 14, it must show at least a concrete, substantial governmental interest that will be well served by imposing random urinalysis on unconsenting citizens.⁵ In such a case, the justification for body searches, if there ever can be one, cannot rest on some generalized sense that there is a drug problem in this country, in Boston, or in the Boston police department and that random urinalyses of police officers will solve, or at least help to solve, the problem or its consequences. We reject the view of the majority of the Justices of the Supreme Court that such proof is not required because “[i]t is sufficient that the Government have a compelling interest in preventing an otherwise pervasive societal problem from spreading to the particular context.” See National Treasury Employees Union v. Von Raab, supra at 675 n.3.⁶

Thus, whether one rejects the balancing of interests test as a standard for protecting art. 14 rights or whether one might apply such a test on a proper showing of a compelling reason for nonconsensual random drug testing, Rule 111 violates art. 14 to the extent that it purports to authorize random searches. Constitutional safeguards should not be abandoned simply because there is a drug problem in this country. Artiele 14 of the Declaration of Rights should not be a casualty in the war on drugs. It is at times when pressures on constitutional rights are greatest that courts must be especially vigilant in the protection of those rights.

The judgment is reversed. Summary judgment shall be entered for the plaintiff declaring that, on the record before the court, the random testing of urine purportedly authorized by Boston Police Department Rule 111 would violate the rights under art. 14 of the Massachusetts Declaration of Rights of any police officer ordered to be tested.

So ordered.

2 A Federal District Court judge had ruled before the release of the Von Raab opinion and of Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989), that the procedures of Rule 111 violated Fourth Amendment rights to the extent that Rule 111 directed random urinalysis tests to be conducted. Guiney v. Roache, 686 F. Supp. 956, 964 (D. Mass. 1988), vacated 873 F.2d 1557 (1st Cir. 1989). For earlier aspects of the case in the Federal Court, concerning abstention, see Guiney v. Roache, 654 F. Supp. 1287 (D. Mass.), vacated and remanded 833 F.2d 1079 (1st Cir. 1987).

3 As now further amended, Rule 111 does not apply to civilian employees of the department.

4 This view was expressed by Justice Marshall in his dissent in Skinner v. Railway Labor Executives’ Ass’n, supra at 635, 636-641 (Marshall, J., dissenting, joined by Brennan, J.).

5 Whatever may be the rule under the United States Constitution in similar circumstances (see American Federation of Government Employees v. Skinner, 885 F.2d 884, 894 [D.C. Cir. 1989], cert. denied, 495 U.S. 923 [1990]), the government under art. 14 has the burden to show that the standards of art. 14 are met. See Horsemen’s Benevolent & Protective Ass’n, Inc. v. State Racing Comm'n, 403 Mass. 692, 705 (1989); Commonwealth v. Shields, 402 Mass. 162, 164 (1988). Usually that means, for art. 14 purposes, that the government must demonstrate probable cause for the search and seizure, and that the search must have been pursuant to a search warrant, absent some exception to the warrant requirement. Under the random testing aspect of Rule 111, there can be neither a search warrant nor probable (or any other specific) cause, because the search is a random one.

6 Justice Scalia dissented in National Treasury Employees Union v. Von Raab, supra at 680, 681 (Scalia, J., dissenting, joined by Stevens, J.), because the government failed to demonstrate (1) the frequency of the use of alcohol and drugs by United States Customs Service employees and (2) the connection of such uses to harm. In that case, the court held that the Customs Service did not violate the Fourth Amendment by requiring a urinalysis test from each employee who seeks transfer or promotion to certain positions. Justice Scalia pointed out that “[w]hat is absent in the Government’s justifications — notably absent, revealingly absent, and as far as I am concerned dispositively absent — is the recitation of even a single instance in which any of the speculated horribles actually occurred: an instance, that is, in which the cause of bribetaking, or of poor aim, or of unsympathetic law enforcement, or of compromise of classified information, was drug use.” Id. at 683.