Norman Norris v. Premier Integrity Solutions, Inc

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0085p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellant, -
NORMAN NORRIS,
-
-
-
No. 09-6252
v.
,
>
-
Defendant-Appellee. -
PREMIER INTEGRITY SOLUTIONS, INC.,
-
N
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 08-00209—John G. Heyburn II, District Judge.
Argued: October 20, 2010
Decided and Filed: April 6, 2011
Before: MOORE, SUTTON, and FRIEDMAN, Circuit Judges.*

_________________

COUNSEL
ARGUED: Gregory A. Belzley, Prospect, Kentucky, for Appellant. Cynthia Blevins
Doll, FISHER & PHILLIPS LLP, Louisville, Kentucky, for Appellee. ON BRIEF:
Gregory A. Belzley, Prospect, Kentucky, Daniel J. Canon, CLAY & ADAMS PLLC,
Louisville, Kentucky, for Appellant. Cynthia Blevins Doll, William C. Vail, Jr.,
FISHER & PHILLIPS LLP, Louisville, Kentucky, for Appellee.
FRIEDMAN, J., delivered the opinion of the court, in which SUTTON, J.,
joined. MOORE, J. (pp. 14–18), delivered a separate dissenting opinion.
_________________

OPINION
_________________

FRIEDMAN, Circuit Judge. The primary issue in this case is whether the
appellee Premier Integrity Solutions Inc. (“Premier”) subjected the appellant Norman

*
The Honorable Daniel M. Friedman, Circuit Judge of the United States Court of Appeals for the
Federal Circuit, sitting by designation.

1
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 2

Norris to an unreasonable search in violation of the Fourth Amendment when it required
him to provide a urine sample (for a drug testing) while directly facing a Premier
employee. Premier used this “direct observation” method for monitoring the provision
of the sample because of the ease with which persons giving a sample could otherwise
evade the requirement of supplying a valid one. The district court held that Premier’s
method of obtaining the urine sample did not constitute an unreasonable search in
violation of the Fourth Amendment. We affirm.

I

A. Kentucky police arrested Norris and charged him with sexually abusing his
stepdaughter. Norris initially was confined in jail for approximately 30 days, and then
spent the next six months in house incarceration after posting bond. At that point he was
released from confinement under Kentucky’s Pretrial Services Monitored Conditional
Release Program (“Pretrial Release Program”). Ky. Rev. Stat. Ann. § 431.064. Under
that program persons awaiting trial may be freed from mobility restraint upon agreeing
to various judicially-imposed conditions. The criminal charges against Norris ultimately
were dismissed.

To participate in the Pretrial Release Program, Norris agreed that he would avoid
contact with his stepdaughter and not use illegal drugs or consume alcoholic beverages.
He also agreed that he would undergo random drug testing.

Premier, a private corporation, conducts pretrial drug testing for the Kentucky
courts. Premier uses a “direct observation” method in obtaining urine samples for
testing. Premier requires that a male lower his pants so that its employee may “directly
observe the urine coming straight out of the body,” and must “allow collector visibility
of the participants [sic] genitalia.” Premier’s Executive Vice-President stated that
Kentucky judges viewed the direct observation method as “essential”, and that the
Kentucky Administrative Office of the Courts approved the protocols that described
Premier’s method of obtaining the samples.
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 3

Norris participated in five drug tests Premier conducted, in each of which he
provided a urine sample given while directly facing a Premier employee. Prior to the
tests, Norris received from Premier a “Notification of Testing Procedures,” which he
signed and which stated that he would be required to “allow the technician full
observation” during the testing.

B. Norris filed suit seeking damages in a Kentucky state court against Premier
under 42 U.S.C. § 1983, which Premier removed to the United States District Court for
the Western District of Kentucky. He alleged that Premier, acting under color of state
law, had violated his rights under the Fourth Amendment. He contended that Premier’s
“direct observation” method of drug testing constituted an unreasonable search and also
violated state law.

On cross motions for summary judgment, the district court granted Premier’s
motion and dismissed the suit. It held that Premier’s “direct observation” method of
obtaining a urine sample was a reasonable search and therefore did not violate Norris’s
rights under the Fourth Amendment. Norris v. Premier Integrity Solutions, Inc., No.
3:08CV00209(JGH), 2009 WL 3334900 at *1 (W.D. Ky. Oct. 15, 2009).

Noting that Norris’ “complaint only alleges constitutional violations because of
the method of collection, not the fact of collection[,]” the district court applied the
“balancing test” for determining the reasonableness of a search under the Fourth
Amendment. Id. at *2. The court held that Norris, as a pre-trial detainee who had
consented to drug testing, had a diminished expectation of privacy. It described
Premier’s “direct observation method” as “highly intrusive,” but ruled that Premier’s
“actions do not intrude significantly or unreasonably on Plaintiff’s expectations of
privacy.” Id. at *2-3, *6. The court held that the government had a “compelling”
interest in using the “direct observation” method, which was utilized “to prevent
cheating on drug tests”; it noted that Premier “has presented significant evidence that
direct observation is the best, and potentially the only, method for preventing all forms
of cheating drug tests.” Id. at *3-4. The court had
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 4

little difficulty concluding that direct observation furthers the
government’s interest in effective drug testing. If the government’s
interest in conducting the tests is sufficient to allow testing in the first
place, certainly the government has a valid interest in ensuring that those
tests produce valid and reliable results. If the tests are ineffective, the
government’s legitimate purposes, such as ensuring pretrial releasees
show up for trial, ensuring that no crimes are committed during pretrial
release and protecting the public, would be completely thwarted. Given
Plaintiff’s diminished expectation of privacy based upon alleged prior
misconduct and circumstances and the government’s compelling interest
in ensuring the validity of the testing, the Court finds that the direct
observation method of urine collection was reasonable despite its highly
intrusive nature.

Id. at *5 (internal citation omitted).

II

Premier makes a preliminary contention that requires little discussion. It argues
that as a private party, it was not acting under color of state law, and therefore could not
violate Section 1983. The district court assumed without deciding that Premier was
acting under color of state law because of the state’s involvement with the drug testing.
Norris, 2009 WL 3334900 at *1 n.2.

A private party will be deemed a state actor if there is a “sufficiently close nexus
between the government and the private party’s conduct so that the conduct may be
fairly attributed to the state itself,” Campbell v. PMI Food Equipment Group, Inc., 509
F.3d 776, 784 (6th Cir. 2007) (internal citation omitted), or the private party’s action is
“entwined with governmental policies.” Brentwood Acad. v. Tenn. Secondary Sch., 531
U.S. 288, 296 (2001) (internal citations omitted). Premier conducted the tests for the
government after the Administrative Office of the Courts had approved Premier’s
policies and methods. Premier’s Executive Vice President stated that judges in
Kentucky viewed the direct observation testing method as “essential.” The relationship
between the state and Premier in conducting the tests established that Premier acted
under color of state law.
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 5

III

A. The Fourth Amendment protects “the people . . . against unreasonable
searches and seizures.” The Supreme Court has held that “state-compelled collection
and testing of urine . . . constitutes a ‘search’ subject to the demands of the Fourth
Amendment.” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995) (citing
Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 617 (1989)). The question here
is whether Premier’s search of Norris by requiring him to provide a urine sample under
its “direct observation” method was reasonable.

“Where a search is undertaken by law enforcement officials to discover evidence
of criminal wrongdoing . . . reasonableness generally requires the obtaining of a judicial
warrant,” which, in turn, ordinarily requires a “showing of probable cause.” Vernonia,
515 U.S. at 653. “A search unsupported by probable cause can be constitutional,”
however, “‘when special needs, beyond the normal need for law enforcement, make the
warrant and probable-cause requirement impracticable.’” Id. (quoting Griffin v.
Wisconsin, 483 U.S. 868, 873 (1987)). The Supreme Court has applied the “special
needs” doctrine to permit suspicionless searches involving the provision of urine
samples. Id.

B. Before both the district court and this court Norris stated that he does not
challenge Premier’s right to require him to provide a urine sample, but only the way in
which it obtained the sample from him. In the district court he stated: “Let it be clear:
Plaintiff does not complain . . . that he was tested for drugs. The sole issue in this case
is whether the manner in which Defendant has chosen to conduct drug-testing” is
constitutional. Even if the requirement that Norris submit to random drug testing as a
condition of participating in the state’s Pretrial Release Program could be viewed as part
of a law enforcement program - which seems dubious - the special needs doctrine
governs in determining the reasonableness of Premier’s “direct observation” method of
obtaining the sample which, as noted, is the only issue Norris presents.

The use of that method involves a matter of judicial administration, not law
enforcement. The Kentucky court was attempting to determine whether Norris was
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 6

complying with a critical condition of his participation in the Pretrial Release Program,
namely, that he not use narcotic drugs while on pretrial release. Premier’s use of the
“direct observation” method of obtaining a urine sample was not part of routine law
enforcement, which the Supreme Court described in this context as “to discover evidence
of criminal wrongdoing.” Vernonia, 515 U.S. at 653. The purpose was to aid it in
determining whether Norris was complying with the terms and conditions of his
participation in the Pretrial Release Program.

C. In determining the reasonableness of Premier’s search of Norris by using its
“direct observation” method of obtaining a urine sample, we evaluate and balance three
factors: “the nature of the privacy interest upon which the search here at issue intrudes,”
“the character of the intrusion that is complained of,” and “the nature and immediacy of
the governmental concern at issue here, and the efficacy of this means for meeting it.”
Vernonia, 515 U.S. at 654, 658, 660; see also Bd. of Educ. of Indep. School Dist. No. 92
of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 830-34 (2002).

1. Although “urine tests are not invasive of the body,” Skinner, 489 U.S. at 626,
“urinalysis intrudes upon ‘an excretory function traditionally shielded by great privacy.’”
Vernonia, 515 U.S. at 658 (quoting Skinner, 489 U.S. at 626). Here, however, Norris’
expectations of privacy were reduced for two related reasons. First, Norris agreed to
random drug testing as a condition of his pretrial release. Although in so doing Norris
may not have been aware that such testing would involve Premier’s “direct observation”
method of obtaining a urine sample, he must have known that he would be required to
give a urine sample. Indeed, Norris was told prior to the testing that the sample collector
would require “full observation” during the collection. Norris’ consent to random drug
testing itself diminished his expectation of privacy. United States v. Knights, 534 U.S.
112, 118-120 (2001); see also Samson v. California, 547 U.S. 843, 852 (2006); United
States v. Scott, 450 F.3d 863, 873 (9th Cir. 2006) (noting that one on pretrial release had
a “reduced expectation of privacy” after signing a consent to random drug testing);
Wilcher v. City of Wilmington, 139 F.3d 366, 374 (3d Cir. 1998) (firefighters who agreed
to random drug testing had a diminished expectation of privacy).
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 7

Second, Norris’ participation in the Pretrial Release Program itself diminished
his expectation of privacy. A major aim of the Program is to insure that its participants
will appear at trial. To achieve that objective, the Program subjects them to various
conditions and limitations, including the prohibition on using narcotic drugs and
consuming alcoholic beverages. Just as railroad employees had a reduced expectation
of privacy because they worked in a highly regulated field and were validly subjected
to drug testing through urinalysis in certain circumstances, Skinner, 489 U.S. at 627, so
Norris’ participation in the highly government controlled and regulated Pretrial Release
Program reduced his expectation of privacy.

2. As the district court recognized, Premier’s “direct observation” method of
obtaining a urine sample is “highly intrusive.” Norris, 2009 WL 3334900 at *3. The
Supreme Court, however, has “repeatedly refused to declare that only the ‘least
intrusive’ search practicable can be reasonable under the Fourth Amendment.” City of
Ontario v. Quon, - - - U.S. - - -, 130 S. Ct. 2619, 2632 (2010) (quoting Vernonia, 515
U.S. at 663). The intrusiveness of Premier’s action is but one of the factors to be
weighed and balanced in determining the reasonableness of the search.

3. The district court stated that the government’s “interest in using direct
observation is quite simple: to prevent cheating on drug tests.” Norris, 2009 WL
3334900 at *3. The court was “persuaded by the evidence adduced by Defendant that
direct observation is the best method of preventing and detecting cheating.” Id. at *5.
The record fully supports these conclusions. It includes a 2009 detailed written expert
report by Dr. Kadehjian, a bio-medical consultant. Based on various specified materials
he had reviewed, Dr. Kadehjian concluded that “direct observation of urine specimen
collection is a critical component for effective and reliable urine drug testing to identify
drug use.” He explained:

It is well-recognized and documented that individuals subject to drug
testing programs have made efforts both before and during urine
specimen collections in an attempt to thwart the effectiveness of urine
drug testing through various forms of specimen manipulation. These
donor efforts include urine specimen dilution, adulteration, and
substitution. Each of these are described in more detail below.
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 8

Awareness of the growing problem of these donor efforts has led to both
state and federal regulatory and legislative initiatives to ensure the
integrity of urine specimen collection and the effectiveness of drug
testing procedures to identify drug use.

After describing in some detail the three methods that have been used to avoid
and evade effective testing - “dilution of a urine specimen,” “adulteration”, i.e., “the
addition of chemicals to a urine specimen in an effort to either prevent test methods from
functioning properly or to attempt to break down drugs which would otherwise be
detectable,” and “substitution” - “the provision of a urine specimen that is not directly
from the donor’s body,” Dr. Kadehjian concluded that

The opportunity for donors to thwart the effectiveness of urine drug
testing is well-recognized and has led to the development and
implementation of numerous procedural safeguards. . . . However,
specimen validity testing alone is not effective at deterring or detecting
all efforts at specimen dilution, adulteration or substitution. The most
effective procedural safeguard is the use of direct observation of urine
specimen collection. Without the use of direct observation, the identity
and integrity of the provided specimen may be in question.

The record also contains a transcript of 2007 testimony by a federal official (the
Government Accountability Office’s Managing Director of Forensic Audits and Special
Investigations) before a House of Representatives hearing, which reported that the
Department of Transportation “drug testing program is vulnerable to manipulation by
drug users, especially given the wide availability of products designed to defeat drug
tests.” The testimony described in detail the various methods and products that are
available, including on the internet, to falsify and evade the supplying of valid urine
samples.

D. Weighing and balancing these factors, we reach the same conclusion that the
district court did: the search of Norris that resulted from Premier’s use of the direct
observation method of obtaining a urine sample was a reasonable one and therefore did
not violate the Fourth Amendment. Although the search undoubtedly was highly
intrusive, Norris had a significantly reduced expectation of privacy because he was on
pre-trial release awaiting criminal prosecution and, as a condition of such release, had
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 9

agreed that he would undergo drug testing. The government had a strong-indeed, a
compelling-interest in insuring the accuracy of the drug testing by preventing Norris
from giving a false specimen. As the district court stated, “[i]f the government’s interest
in conducting the tests is sufficient to allow testing in the first place, certainly the
government has a valid interest in ensuring that those tests produce valid and reliable
results.” Norris, 2009 WL 3334900 at *5. The record shows that it is easy and
widespread for people providing urine for drug testing to substitute false or inaccurate
specimens and that only the direct observation method of obtaining such samples is fully
effective “to prevent cheating on drug tests,” in the language of the district court.
Neither the Kentucky authorities nor Premier acted improperly in requiring that method.

Our disagreement with the dissent relates primarily to the weight to be given to
those factors in determining whether the search was reasonable. We give greater weight
than the dissent does to the state’s strong interest in providing an accurate urine sample
and to Norris’ significantly reduced expectation of privacy in the circumstances.

Norris contends, however, that before Premier could use the direct observation
method, it had to have a reasonable suspicion that Norris was likely to cheat on the urine
test. But the cases Norris cites for this proposition, all older ones, specifically concluded
that less-intrusive methods were adequate to monitor the testing. This is no longer the
situation. The Supreme Court has never required individualized suspicion in order to
conduct urinalysis. See Vernonia, 515 U.S. at 664; Skinner, 489 U.S. at 624. Because
the ability to evade or falsify testing has increased, more stringent monitoring procedures
are now necessary and therefore reasonable.

Norris also contends that the direct observation method violated his Fourth
Amendment rights because it was a “visual strip search.” But however one describes the
search, the balancing inquiry under the Fourth Amendment remains the same. See BNSF
Ry. Co. v. U.S. Dep’t of Transp., 566 F.3d 200, 208 (D.C. Cir. 2009) (citing Bell v.
Wolfish, 441 U.S. 520, 559-60 (1979)).

United States v. Scott, 450 F.3d 863 (9th Cir. 2006), upon which Norris
seemingly relies, does not support his claim. There the Ninth Circuit held that the police
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 10

could not require someone accused of crime to agree, as a condition of pretrial release,
to submit to random drug testing. The court held that because the government did not
have probable cause to believe that the individual was using drugs, it could not impose
that requirement as a condition of pretrial release. Id. at 872. In so holding, the court
rejected the government’s claim that “the search regime to which Scott was subjected
was necessary to ensure his appearance at trial.” Id. at 871. In essence, the Ninth
Circuit held that in the circumstances there presented, the police required probable cause
before they could thus search someone on pretrial release.

Norris, however, has disclaimed any challenge to the validity of Kentucky’s
policy of conditioning pretrial release upon consent to random drug testing. We cannot
say how the Ninth Circuit would react to the narrower question we here decide, relating
only to the method that Premier used in conducting the test.

E. Our conclusion accords with that of the other federal court of appeals that
most recently considered and upheld the validity under the Fourth Amendment of the
direct observation method of obtaining urine samples. In BNSF, the District of
Columbia Circuit upheld, against challenges under the Fourth Amendment and the
Administrative Procedures Act, a federal regulation that required employees in certain
public transportation industries who had failed or refused to take a drug test to pass a
series of drug tests “conducted under direct observation” before “performing any safety-
sensitive duties.” 566 F.3d at 202. In “find[ing] the challenged regulation facially valid
under the Fourth Amendment,” id. at 208, the court characterized the “government’s
interest in transportation safety” as “compelling.” Id. at 206. It ruled that “[g]iven the
proliferation of cheating devices, we have little difficulty concluding that direct
observation furthers the government’s interest in effective drug testing,” and that the
“government thus has a strong interest in conducting direct observation testing to ensure
transportation safety.” Id. Balancing the governmental interest against the “extremely
invasive” nature of direct observation, the court stated:

[T]he Department has reasonably concluded that the proliferation of
cheating devices makes direct observation necessary to render these drug
tests - needed to protect the traveling public from lethal hazards -
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 11

effective. Weighing these factors, we strike the balance in favor of
permitting direct observation testing in these circumstances.

Id. at 208.

The court distinguished its earlier decision in NTEU v. Yeutter, 918 F.2d 968
(D.C. Cir. 1990), which had held unconstitutional a regulation requiring the direct
observation method of obtaining a urine sample for drug testing that “rested on
reasonable suspicion of drug use but no suspicion of cheating,” because the record in
that case indicated that less evasive testing procedures “were adequate to detect
cheating.” BNSF, 566 F.3d at 208. The BNSF court concluded:

Given the proliferation of such cheating devices, here we have a very
different record, one that fully supports the Department’s finding that
standard monitoring procedures are inadequate. We thus conclude that
here, unlike in Yeutter, direct observation testing will “significantly
improve testing accuracy.”

Id. (internal citation omitted).

Although there are factual distinctions between the present case and BNSF, the
basic rationale of BNSF - that “the proliferation of cheating devices makes direct
observation necessary to render these drug tests . . . effective,” id.-is equally applicable
here.

IV

In view of our holding that Premier’s direct observation method was not an
unreasonable search under the Fourth Amendment, we need not consider Premier’s
contention that it had qualified immunity for its action

V

Norris here repeats two of the four state law claims he unsuccessfully argued in
the district court. He contends that Premier’s use of the direct observation method of
obtaining a urine sample constituted (A) an illegal invasion of his privacy by “intrusion
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 12

upon the seclusion of another,” and (B) the intentional infliction of emotional distress.
The district court correctly granted summary judgment dismissing those claims.

A. In McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 887
(Ky. 1981), the Supreme Court of Kentucky adopted the Restatement (Second) of Torts
(1976) definition of the general tort of invasion of privacy. Id. at 887. McCall dealt
only with the specific tort of placing another in “false light.” Because the Supreme
Court of Kentucky had not yet addressed the tort of “intrusion upon seclusion of
another,” the District Court for the Western District of Kentucky presumed that the
Kentucky Supreme Court also would adopt the definition of that tort in the Restatement
(Second). See Smith v. Bob Smith Chevrolet, Inc., 275 F. Supp. 2d 808, 821-22 (W.D.
Ky. 2003). We have no reason to disagree with that approach, and therefore apply it
here.

To establish intrusion upon seclusion, Norris would have to show “(1) an
intentional intrusion by the defendant, (2) into a matter the plaintiff has a right to keep
private, (3) which is highly offensive to a reasonable person.” Id. at 822 (citing
Restatement (Second) of Torts § 652B). We have concluded, however, that the direct
observation method used here was reasonable under the Fourth Amendment. As the
district court noted, it would “defy logic” to now hold that Norris had a “right to keep
[the same act] private.” Norris, 2009 WL 3334900 at *5.

B. To establish the tort of intentional infliction of emotional distress in
Kentucky, the plaintiff must establish that the defendant’s conduct “has been so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 789 (Ky. 2004)
(quoting Restatement (Second) of Torts § 46(1)). Once again, our holding that Premier’s
direct observation method of obtaining a urine sample was a reasonable search under the
Fourth Amendment establishes that the conduct did not “go beyond all possible bounds
of decency” and would not be regarded as “atrocious” or as “intolerable in a civilized
community.”
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 13

CONCLUSION

The district court’s judgment granting summary judgment for Premier is
affirmed.
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 14

__________________

DISSENT
__________________

KAREN NELSON MOORE, Circuit Judge, dissenting. Kentucky conducts drug
tests on pretrial releasees to increase the likelihood that they will appear at later court
proceedings. When conducting the drug tests, Kentucky uses “direct observation” to
attain the highest security against adulteration of urine samples. While efficacious, this
method is highly invasive: testing supervisors are “required to directly observe the urine
coming straight out of the body.” R. 24-4 (Procedures ¶ 14). Participants are “required
to lower their pants below their knees. Long, baggy shirts must be raised enough to
allow collector visibility of the participant[’]s genitalia. The participant must face the
collector for full view and not a side view.” Id.

While conceding that the Fourth Amendment permits drug testing of pretrial
releasees, Norris objects to this invasive method of conducting drug tests. Norris has no
known history of drug use. He was not charged with a drug crime. At the time of his
drug tests, his guilt had not been adjudicated for any crime. And because he was
awaiting trial, he had little choice but to sign off on whatever conditions of release
Kentucky offered. Based on these facts, I disagree with how the majority balances
Norris’s privacy interest, the extent of the intrusion, and the government’s interest. I
would reverse the district court’s grant of summary judgment on the Fourth Amendment
claim and, derivatively, the intrusion-upon-seclusion privacy claim.

I. NORRIS’S PRIVACY INTEREST

The majority reasons that, by consenting to provide a urine sample, Norris
lessened his expectation of privacy. That logic would explain why Norris did not have
a privacy interest in his urine sample, and he does not assert that interest. However, it
does not explain how Norris’s consent diminished his privacy interest as it relates to the
method of drug testing. Consent to a result does not entail consent to the most intrusive
method of achieving that result. The fact that Norris might have known that the drug
testing would involve “full observation” does little to clarify the issue. Courts have used
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 15

similar language to describe methods that are meaningfully less invasive than what
Norris endured. See Wilcher v. City of Wilmington, 139 F.3d 366, 376-77 (3d Cir. 1998)
(upholding “direct observation” urine testing, in which monitors, who “observe[d] only
the collection process generally and not the particular individual’s genitalia,” stood
behind the male firefighters and to the side of the female firefighters).

More importantly, even if Norris knew the drug-testing protocol in advance, the
majority overstates the degree to which Norris’s participation in pretrial release
diminished his expectation of privacy. The majority cites four cases for that proposition.
In one, United States v. Scott, the court found that the infringement of the pretrial
releasee’s privacy was so great that it rendered suspicionless drug testing
unconstitutional. 450 F.3d 863, 873–74 (9th Cir. 2006). The challengers to government
searches in both Supreme Court cases on which the majority relies, United States v.
Knights, 534 U.S. 112, 118–20 (2001), and Samson v. California, 547 U.S. 843, 852
(2006), had been convicted of crimes and were on probation and parole, respectively.
The final case that the majority cites, Wilcher, 139 F.3d at 374, involved firefighters who
chose their employment. Prior adjudication of guilt and voluntary employment both
serve as “safeguards limiting the extent to which induced or coerced consent could
threaten privacy and liberty interests.” Criminal Law — Fourth Amendment — Ninth
Circuit Holds that Search of Pretrial Releasee Is Unconstitutional Despite Releasee’s
Consent, 119 HARV. L. REV. 1630, 1635–36 (2006). Prior adjudication of guilt provides
a constitutionally relevant distinction, judged in a proceeding that affords due process,
on which to base the deprivation of constitutional rights. Voluntary employment signals
bargaining power to negotiate or refuse conditions of employment.

Pretrial releasees lack comparable safeguards from Fourth Amendment
violations. Faced with even more stringently regulated alternatives, such as jail pending
trial, pretrial release is the preferable option, even if its conditions are objectively
unreasonable. Cf. Samson, 547 U.S. at 863 n.4 (Stevens, J., dissenting) (“Whether or not
a prisoner can choose to remain in prison rather than be released on parole, he has no
‘choice’ concerning the search condition; he may either remain in prison, where he will
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 16

be subjected to suspicionless searches, or he may exit prison and still be subject to
suspicionless searches. Accordingly, to speak of consent in this context is to resort to
a manifest fiction, for the [parolee] who purportedly waives his rights by accepting such
a condition has little genuine option to refuse.” (internal quotation and citation omitted)).
By arguing that pretrial release is a highly regulated program that should have
diminished Norris’s expectation of privacy, the majority begs the question of what
regulations are constitutionally permissible. I would not extend Samson to cover pretrial
releasees whose guilt has not been adjudicated, and I would conclude that Norris retains
a strong privacy interest.

II. INTRUSION

The majority concedes that “Premier’s ‘direct observation’ method of obtaining
a urine sample is ‘highly intrusive.’” Maj. Op. at 7 (citing Norris v. Premier Integrity
Solutions, No. 3:08-CV-209-H, 2009 WL 3334900, at *3 (W.D. Ky. Oct. 15, 2009)).
Urine tests “require [subjects] to perform an excretory function traditionally shielded by
great privacy.” Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 626 (1989). The extent
of intrusion “depends upon the manner in which production of the urine sample is
monitored.” Veronia Sch. Dist. 47J v. Acton, 515 U.S. 646, 658 (1995). Several cases
that have upheld urine tests contrasted their facts to the direct observation that Norris
endured. For example, in Skinner, the court noted that “[t]he regulations do not require
that samples be furnished under the direct observation of a monitor.” 489 U.S. at 626;
see also Veronia, 515 U.S. at 658 (upholding conditions “nearly identical to those
typically encountered in public restrooms,” in which males “remain[ed] fully clothed”
and were “only observed from behind, if at all,” while females used “an enclosed stall”
as a monitor “listen[ed] only for sounds of tampering”); Wilcher, 139 F.3d at 376–77.
The intrusiveness of direct-observation testing weighs heavily in Norris’s favor.
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 17

III. KENTUCKY’S INTEREST

The majority explains that Kentucky has an interest in preventing pretrial
releasees from cheating on drug tests. “‘[I]f the government’s interest in conducting the
tests is sufficient to allow testing in the first place, certainly the government has a valid
interest in ensuring that those tests produce valid and reliable results.’” Maj. Op. at 9
(quoting Norris, 2009 WL 3334900, at *5).1 However, the government’s interest in
incrementally greater accuracy is not compelling. The government has no reason to
suspect that Norris and others like him, who have never been accused of a drug offense,
will falsify a drug test. That difference is reflected in the case on which the majority
relies, BNSF Railway Co. v. U.S. Department of Transportation, 566 F.3d 200 (D.C. Cir.
2009). In BNSF, the challengers to the drug-testing protocol were public-transit
employees engaged in “safety-sensitive duties” and had failed or refused a past drug
test. Id. at 202. Norris has no similar history. Individualized suspicion is not required
for special-needs searches, but as the suspicion of wrongdoing among a category of
people becomes more slight, the government’s interest wanes.

A more closely analogous case is Scott, in which the Ninth Circuit held that the
government may not drug test pretrial releasees under either a special-needs approach
or the more general totality-of-the-circumstances test. 450 F.3d at 868–75. When
considering the government’s interest, the court found that “the connection between the
object of the [drug] test (drug use) and the harm to be avoided (nonappearance in court)
is tenuous. . . . [T]he government has produced nothing to suggest [that failure to appear
is a] common enough problem[] to justify intruding on the privacy rights of every single
defendant out on pretrial release.” Id. at 870. The majority opinion distinguishes Scott
by arguing that Scott challenged the constitutionality of drug testing pretrial releasees
regardless of method. But that distinction strengthens Norris’s claim. The privacy
interest that Norris has asserted is more narrow than Scott’s, and the government’s

1
This logic must apply only to the identification of a valid interest, not the conclusion that the
interest renders the government’s action reasonable under the Fourth Amendment. Otherwise, the
government could put forward a constitutionally adequate interest and procedure, substitute a far more
egregious procedure that slightly enhances reliability, and be exempt from Fourth Amendment challenges
to that egregious procedure.
No. 09-6252 Norris v. Premier Integrity Solutions, Inc. Page 18

interest conflicts less: even if Norris succeeds in his suit, Kentucky can still drug test
pretrial releasees using alternative procedures that better protect privacy. Even crediting
Kentucky with a greater interest in ensuring appearance at trial than the federal
government produced in Scott, see KY. REV. STAT. ANN. § 431.064(2)(e) (permitting
“[a]n order prohibiting [pretrial releasees] from possession or consumption of alcohol
or controlled substances” “to ensure the[ir] appearance . . . at a subsequent court
proceeding”), Kentucky’s interest in the added protection that direct observation affords
is not overpowering.

IV. CONCLUSION

The crux of the majority’s analysis is that, “[b]ecause the ability to evade or
falsify testing has increased, more stringent monitoring procedures are now necessary
and therefore reasonable.” Maj. Op. at 9. Premier has documented abundant methods
for cheating on drug tests. But the possibility of cheating should not justify every
precaution that the state deems efficacious. By reaching the opposite conclusion, the
majority unravels Fourth Amendment protections for pretrial releasees.

Kentucky has no reason to believe that suspects in non-drug-related crimes with
no history of drug use will use drugs while on pretrial release. The risk that they will,
nevertheless, falsify drug tests is too attenuated to impose the added protection—and
incumbent privacy intrusion—of direct-observation testing. Therefore, in my view, the
ability to evade or falsify testing does not strengthen the government’s interest
sufficiently to overcome Norris’s expectation of privacy given the extremely intrusive
nature of the search. I would reverse the district court’s grant of summary judgment on
the Fourth Amendment and intrusion-upon-seclusion privacy claim.