For Law Enforcement (Part II) I 0 ~1 39/ by Jeffrey Higginbotham 31 Wanted by the FBI
Total Page：16
File Type：pdf, Size：1020Kb
If you have issues viewing or accessing this file contact us at NCJRS.gov. November 1986 > Law Enforcement Bulletin" " , . ~-~~-..''''' ,\ _ ...... , \....' ... ' '- . ,. t..~ A Spe()Jf]./ Report " " , " D \ November 1986, Volume 55, Number 11 1 rThe Police Foundation: A. Sp~cial Report LBy Thomas J. Deakin I 0 .s.3 8'" 7 f1@w @ODlf@[j'@®O'illl®OD~ 12 Fighting Fear in Baltimore County: lru@D® The COPE Project By Cornelius J. Behan 16 IThe Nature of Police Authority I 0 ~ 2> r (;> ~y Donald C. Witham and Stephen D. Gladis 21 Law Enforcement Career Management: Planning for Promotion By Thomas Mahoney 25 ~UrinalYSiS Drug Testing Programs for Law Enforcement (Part II) I 0 ~1 39/ By Jeffrey Higginbotham 31 Wanted by the FBI The Cover: [?1]]] With the Police Foundation vertical logo, the cover DO symbolizes the foundation "Crime File" video project. Law Enforcement Bulletin United States Department of Justice Published by the Office of Federal Bureau of Investigation Congressional and Public Affairs, Washington, DC 20535 William M. Baker, Assistant Director Edl'lor-Thomas J. Deakin William H. Webster, Director Assistant Editor-Kathryn E. Sulewski Art Director-Kevin Mulholland The Attorney General has determined that the J. pubhcalion of thiS periodical IS necessary In the Production Manager-Marlethla S. Black transaction of the public bUSiness required by law Reprints-Beth Corbin of the Department of Justice. Use of funds for printing this periodical has been approved by the Director ot the Otflce ot Management and Budget through June 6, 1988. ISSN 0014-5688 USPS 383-310 Urinalysis Drug Testing Programs .... ~ for Law Enforcement I '- (Part II) " a law enforcement department could choose to start its urinalysis drug testing program by requiring all applicants for the position of sworn officer to submit to a urinalysis drug test." Part I of this article began a dis forcement agencies and departments By cussion of the balancing test required which choose to adopt a urinalysis JEFFREY HIGGINBOTHAM to determine whether mandatory drug testing program. Special Agent urinalysis drug testing was reasonable FBI Academy under fourth amendment standards. It WHEN A URINALYSIS DRUG TEST Legal Counsel Division noted that the right to privacy, pro MIGHT BE REQUIRED Federal Bureau of Investigation tected by the fourth amendment, gen The fourth amendment's balanc Quantico, VA erally precludes warrantless searches ing test for reasonableness in the unless the government has superior in adoption of a urinalysis drug testing terests in conducting a search. In program requires a determination of terms of drug testing of police, the right whether the governmental interests in of privacy of an individual officer must favor of urinalysis outweigh the privacy be outweighed by a legitimate govern interests of the individual in the spe Law enforcement officers of other than mental interest(s), if it is to be legal. cific context of the situations which will Federal jurisdiction who are interested The right of privacy must be balanced trigger the demand for urinalysis drug in any legal issue discussed in this ar against the need to protect public testing. Law enforcement agencies ticle should consult their legal adviser. safety, preserve public trust and integ may seek to implement drug testing in Some police procedures ruled permis rity, prevent corruption, present credi a variety of situations. They include: sible under Federal constitutional law ble testimony, insure employee morale 1) Application for employment, are of questionable legality under and safety, maintain productivity, and 2) training and probationary status, State law or are not permitted at all. forestall civil liability. 3) scheduled medical examinations, However, in determining whether 4) change of assignment, or drug testing is legally permitted, those 5) observable conduct or behavior. In competing interests must be analyzed addition, an agency may believe it nec and weighed in the specific context in essary to engage in drug testing on a which drug testing would be used. This completely random, unannounced ba part of the article will examine the le sis as a safeguard against drug abuse gality of a urinalysis drug testing pro and as a protection of its ability to ac gram which might require testing at complish its mandated responsibilities. various events or occasions. The con Each of these situations will be ana cluding part of the article will discuss lyzed to determine if urinalysis drug the legal issues which must be ad testing would lawfully be permitted as dressed and resolved once drug a reasonable search under the fourth testing is implemented and close with amendment. a proposed model analysis for law en- November 1986 I 25 Testing Applicants drug abuse would be detected. This The special role of law enforce would leave only those applicants who ment in our society confers enormous voluntarily agree to the testing proce powers and responsibilities upon those dures. Second, most law enforcement persons who are chosen to serve as agencies require an applicant to sub law enforcement officers and officials. mit to a complete medical examination The powers to make arrests and con before a final hiring decision is made. duct searches are, perhaps, the most Providing a urine sample for routine intrusive of all governmental activities medical testing and screening is a nor into the private affairs of citizens. But mal part of such physical Elxamina tions. Having provided that urine Special Agent Higginbotham with that enormous power must also come equal responsibility. Law en sample for medical purposes and ex forcement must carefully select its offi amination, no privacy interest remains cers, choosing only those persons who which would preclude analyzing the will exercise the powers granted to urine for the presence of illegal drugs them with unfailing consistency to as well. Third, it could easily be argued standards set forth by the Constitution that the government's interests, and the laws of the States. It can be outlined earlier, in removing candi strongly argued that persons who are dates from the applicant process who drug abusers fall outside the category are unqualified by reason of current or of people to whom we should entrust recent drug abuse is simply superior to those powers. For many of the rea the privacy interest of the individual, sons discussed earlier, e.g., public particularly where the test is relatively safety, public trust, preventing corrup unobtrusive. tion, presentation of credible testi The few court cases where this is mony, officer safety, and effective po sue has arisen have uniformly con lice work, drug abuser,s should be cluded that drug testing of law enforce detected and disqualified from entering ment applicants through urinalysis is the field of law enforcement. Urinalysis lawful. As the trial court in City of Palm 39 drug testing of law enforcement appli Bay v. Bauman noted: cants is one method of furthering the "Certainly, municipal police and objective of necessarily selective firefighters must expect to meet re hiring. quired minimum standards of physi Such a position appears to be le cal condition in order to be hired and gally defensible. Required submission retained. Physical examinations con to a urinalysis drug test by a law en ducted to insure that those stand forcement applicant would find support ards are met are to be reasonably in any of three legal theories. First, if expected even though urine testing urinalysis were made a condition of the is a part of those examinations.,,4o employment application process, sub Similarly, the U.S. District Court in mission to the testing would become Iowa noted that: voluntary and consensual. It would "The Fourth Amendment ... does force self-selection by causing drug not preclude taking a body fluid abusers to forego employment applica specimen as part of a preemploy tion because they would know their ment physical examination .... "41 Accordingly, it appears a law en forcement department could properly choose to start its urinalysis drug 26 I FBI Law Enforcement Bulletin " a comprehensive urinalysis drug testing policy should provide for mandatory testing when warranted by certain actions, conduct, or behavior observed in a law enforcement officer." testing program by requiring all appli common occurrences. We are sub on a change of assignment raises diffi cants for the position of sworn officer jected to them in the armed services, CLl.'t legal issues. However, where the to submit to a urinalysis drug test. 42 before getting married: and as a re change of assignment requires an offi quirement to gaining access to many cer to become more closely associated Testing Trainees and Probationary schools and jobs. Sound medical with narcotics investigations or crimI Officers counseling dictates that we voluntarily nals associated with illegal drugs, a The second situation when drug undergo periodic medical checkups.,,43 strong argument can be made that it is testing may be considered is during And, as noted in McDonell v. Hunter:44 imperative the reassigned officer be training andlor probationary periods. determined to be free from the abuse Though there is no reported case law "One does not reasonably expect to and the inclination to abuse drugs, as directly on this issue, the same ration discharge urine under circum well as the influence or association ale which has generally supported stances making it available to others with persons known to be criminally in drug testing of applicants could be ad to collect and analyze in order to dis volved with drugs. Although there are vanced to support drug testing of law cover the personal physiological se only a few decided cases supporting enforcement trainees and probationary crets it holds, except as part of a this type of drug testing,46 a forceful le medical examination.,,45 officers. The training and probationary gal argument can be made by a law periods of a law enforcement career Of course, it can readily be seen enforcement agency which can articu should be viewed as an extension of that drug testing of urine as part of a late the specific need which requires the application process.