Petersen v. City of Mesa

OPINION

VOSS, Judge.

¶ 1 Craig W. Petersen, a firefighter for the City of Mesa, challenged the constitutionality of the random testing component of the City’s proposed Substance Abuse Program Alcohol and Controlled Substance Testing Policy and Procedures (Policy). In awarding summary judgment to Petersen and permanently enjoining the City from implementing the random, suspicionless aspect of the Policy, the trial court relied on Article 2, Section 8 of the Arizona Constitution. In this context, however, we conclude that the strictures imposed by our constitution are no greater than those of the Fourth Amendment of the United States Constitution and that random testing is not an unreasonable search in violation of either constitution. We therefore reverse the summary judgment in favor of Petersen and vacate the injunction.

*280BACKGROUND

¶ 2 In response to Petersen’s complaint for declaratory and injunctive relief, the City filed a motion to dismiss. When both parties submitted additional supporting information, the trial court treated the motion as one for summary judgment. After a hearing, the trial court found that no material facts were in dispute but that the random, suspicionless drug and alcohol testing component1 violated Article 2, Section 8 of the Arizona Constitution. That provision states: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

¶ 3 The trial court cited State v. Ault, 150 Ariz. 459, 463, 466, 724 P.2d 545, 549, 552 (1986) (Article 2, Section 8 bars admission of evidence seized during illegal search of home), and State v. Tykwinski, 170 Ariz. 365, 371, 824 P.2d 761, 767 (App.1991) (rejecting assertion that Article 2, Section 8, although more extensive than Fourth Amendment, requires individualized suspicion to conduct roadblock stop), in support of its conclusion that Arizona’s Constitution “is broader and more explicit than the Fourth Amendment in safeguarding the fundamental liberty of Arizona citizens.”2 The court also relied on an Alaska Supreme Court decision that interpreted the Alaska Constitution to bar ongoing random drug testing as overly intrusive of employee privacy because the testing was not based on “predictable, job-related occurrences” and was not implemented in response to demonstrated drug abuse in the workplace.3 See Anchorage Police Dep’t Employees Ass’n v. Municipality of Anchorage, 24 P.3d 547, 558-59 (Alaska 2001). The trial court concluded that the City failed to demonstrate a compelling interest to justify the intrusion on Petersen’s reasonable expectation of privacy and therefore enjoined random, suspicionless testing.

DISCUSSION

¶ 4 In reviewing a trial court’s ruling on the reasonableness of a government search, we defer to that court’s factual findings, but we determine de novo whether the search was unreasonable and thus violated the Constitution. State v. Adams, 197 Ariz. 569, 572, ¶ 16, 5 P.3d 903, 906 (App.2000).

A. The City’s Policy

¶ 5 The stated purpose of the City’s Policy is to provide firefighters “with a safe, productive working environment”; to ensure “the safety and well-being of the general public”; to ensure that firefighters “receive educational [sic] and training on substance abuse”; and to ensure that they “are well informed on the hazards of substance abuse and are provided employee assistance as needed.”

¶ 6 Firefighters must submit4 to testing of breath or urine5 “on an unannounced and random basis spread reasonably throughout the calendar year.” A computer software program selects the employees to be tested. Those selected are not given any advance notice and can be notified immediately before, during, or immediately following work. All tests are to be conducted within thirty minutes of selection, with allowance for travel time to the collection location. When urine is to be collected, the employee may use a private bathroom stall. A monitor inspects the sample for proper color and *281temperature and then bottles and labels the sample for shipping.

¶ 7 A firefighter who refuses to submit to a test is terminated from employment. A firefighter whose breath test reveals an alcohol concentration of 0.04 or higher or whose urine sample is “positive” for any of several specified drugs is removed from duty and evaluated by a substance abuse professional. Any firefighter who tests positive a second time is terminated from employment. Information in a firefighter’s drug testing records is not released outside the department unless the firefighter consents.

B. Article 2, Section 8 of the Arizona Constitution

¶ 8 We first address whether the trial court correctly found that Article 2, Section 8 provides greater protection for privacy rights than the Fourth Amendment in the context of drug testing. In three criminal cases involving warrantless police entry of a home, our supreme court has interpreted the words of Article 2, Section 8, “[n]o person shall be disturbed in his private affairs or his home invaded, without authority of law,” to provide an independent state law ground for safeguarding the home and the privacy interests therein against a government search.

¶ 9 In Ault, after noting that the Arizona Constitution “generally ... incorporate^] federal protections,” the court held that Article 2, Section 8 is “specific in preserving the sanctity of homes and in creating a right of privacy.” 150 Ariz. at 466, 724 P.2d at 552. Thus, police could not enter a home without a warrant or any exigency, illegally arrest the occupant, and seize evidence in plain view. Id. at 464, 466, 724 P.2d at 550, 552. The court also observed that the inevitable discovery doctrine had been limited to searches of a ear and of a hotel room. Id. at 465, 724 P.2d at 551.

¶ 10 Concern that the Fourth Amendment might not bar a warrantless entry for police to “secure” and inspect a home while awaiting a warrant led the court, in State v. Bolt, to clarify that “[s]uch entries are ‘per se unlawful’ under our state constitution.” 142 Ariz. 260, 264-65, 689 P.2d 519, 523-24 (1984) (quoting State v. Cook, 115 Ariz. 188, 194, 564 P.2d 877, 883 (1977)). But, the court rejected as “poor judicial policy” adoption of inconsistent state and federal exclusionary rules and held that the state rule would mirror that of the federal courts. Id. at 269, 689 P.2d at 528.

¶ 11 Finally, in State v. Martin, police entered a home and conducted a “sweep” without a warrant. 139 Ariz. 466, 470, 679 P.2d 489, 493 (1984). The court cited the Fourth Amendment’s chief purpose, to guard against intrusion of the home and the associated privacy rights of the occupant, id. at 473, 679 P.2d at 496, to hold that under either the federal or state Constitution, the entry was illegal. Id. at 474, 679 P.2d at 497.

¶ 12 Thus, despite suggestions that Article 2, Section 8 may exceed the scope of the Fourth Amendment, in general our courts have found Arizona’s Constitutional protection of privacy to be consistent or coextensive with that of the Fourth Amendment. See, e.g., Mazen v. Seidel, 189 Ariz. 195, 199, 940 P.2d 923, 927 (1997) (holding warrantless entry of rented storage unit by police and their seizure of contraband after firefighters’ valid initial entry is permitted by both Arizona Constitution and Fourth Amendment); State v. Krantz, 174 Ariz. 211, 215, 848 P.2d 296, 300 (App.1992) (finding Article 2, Section 8 does not exceed Fourth Amendment and does not forbid warrantless taking of blood to test its alcohol content); State v. Allgood, 171 Ariz. 522, 523-24, 831 P.2d 1290, 1291-92 (App.1992) (noting that more expansive reading of Arizona’s Constitution is “generally not applied beyond the home” and that police interception of confrontation call violated neither federal nor state constitutions); State v. Wedding, 171 Ariz. 399, 407, 831 P.2d 398, 406 (App.1992) (distinguishing Bolt, Ault, and Martin as concerned with warrantless entry of a home); State v. Calabrese, 157 Ariz. 189, 190-91, 755 P.2d 1177, 1178-79 (App.1988) (declining to narrow, on Arizona constitutional grounds; right of police to seize evidence found during warrantless search incident to lawful arrest).

¶ 13 While our courts have vigorously guarded the sanctity of the home from warrantless intrusions by law enforcement offi*282cers, nothing in the cited cases or in the text of Article 2, Section 8 persuades us that the latter provides more protection than the Fourth Amendment when the government conducts a search of a firefighter’s urine for the presence of illegal drugs. See Bolt, 142 Ariz. at 264, 689 P.2d at 523 (recognizing need for uniformity between federal and state courts and that our constitution generally incorporates federal protections); State v. Pelosi 68 Ariz. 51, 57, 199 P.2d 125, 129 (1948), overruled in part on other grounds, Adams v. Bolin, 74 Ariz. 269, 275, 247 P.2d 617, 621 (1952) (Article 2, Section 8’s purpose is to preserve Fourth Amendment rights); Malmin v. State, 30 Ariz. 258, 261, 246 P. 548, 549 (1926) (although its language may differ from Fourth Amendment, Article 2, Section 8 has “same general effect and purpose” and will be similarly interpreted).

¶ 14 Accordingly, we hold that in the context of the City’s drug and alcohol testing program, the bounds of Article 2, Section 8 do not exceed those of the Fourth Amendment. We now turn to whether the random aspect of the testing is an unreasonable search prohibited by the Fourth Amendment and by the coextensive reach of the Arizona Constitution.

C. Validity of Random, Suspicionless Drug Testing

¶ 15 At the outset, we note that although the United States Supreme Court has approved employee drug testing in some contexts, it has not yet addressed random drug testing of firefighters. Therefore, we begin with a brief overview of the Court’s general analysis of drug testing programs. Government-compelled collection and testing of urine for evidence of illegal drug use is a search subject to the Fourth Amendment. Vemonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (allowing random drug testing of high school athletes); Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 617, 633, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (upholding drug and alcohol testing of railroad employees after accidents or violations of safety rules). To determine whether a government search is reasonable, the Court has balanced the degree of the intrusion on individual privacy against the extent to which the intrusion promotes legitimate governmental interests. Skinner, 489 U.S. at 619, 109 S.Ct. 1402. The precise contours of the Fourth Amendment protection, of course, turn on the facts and may vary depending on whether the search invades expectations of privacy in a home, a vehicle, the workplace, a public school, or a park. See Vemonia, 515 U.S. at 654, 115 S.Ct. 2386.

¶ 16 Generally, a government search for evidence of criminal conduct is reasonable if a neutral magistrate first determines that probable cause exists to believe described evidence may be found in the place to be searched. See, e.g., Payton v. New York, 445 U.S. 573, 586 n. 24, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Ault, 150 Ariz. at 466-67, 724 P.2d at 552-53. But, neither a search warrant nor probable cause are necessary if “ ‘special needs,’ ” beyond law enforcement’s normal concerns with crime detection, render the warrant or probable cause requirement “impracticable.” Vernonia, 515 U.S. at 653, 115 S.Ct. 2386 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (approving warrantless search of a probationer’s home)).

¶ 17 For example, in Skinner, the railroads had a special need, in order to prevent drug or alcohol-related accidents, to ban workers’ use of alcohol or drugs and to test their blood or urine to assure the ban’s effectiveness. 489 U.S. at 620-21, 109 S.Ct. 1402. Because the authorizing regulations identified the circumstances justifying the testing and the conditions under which it occurred, “there [were] virtually no facts for a neutral magistrate to evaluate.” Id. at 622, 109 S.Ct. 1402. More importantly, when delay to seek a warrant would seriously impede the collection of critical evidence, the balance tipped in favor of finding a warrantless intrusion reasonable. Id. at 623-24, 109 S.Ct. 1402.

¶ 18 The testing in Skinner was not random, but it was also not based on individualized suspicion. Id. at 624, 109 S.Ct. 1402. The Court nevertheless concluded that by working in a highly regulated industry, the employees had diminished expectations of privacy, id. at 627, 109 S.Ct. 1402, and that *283the interest in testing was “compelling,” in part because of the difficulty in detecting in any other way employees who were impaired while at work. Id. at 628-29, 109 S.Ct. 1402.

¶ 19 The Supreme Court similarly found a special need to exist when the United States Customs Service adopted a drug testing program for employees who sought a transfer or promotion to positions that were directly involved in drug interdiction or law enforcement or that required the employee to carry a firearm or to handle classified material. Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 660-61, 666, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989).6 The program’s aim was to deter drug use among those seeking promotion and to bar drug users from being promoted to such positions, thus serving governmental interests apart from those of law enforcement. Id. at 666, 109 S.Ct. 1384. As in Skinner, no special facts demanded a magistrate’s evaluation: testing was automatic and anticipated by applicants for the specified positions, and requiring a warrant would deflect valuable resources from the agency’s primary mission. Id. at 666-67, 109 S.Ct. 1402.

¶ 20 Additionally, the Court found that traditional ideas of probable cause “may be unhelpful in analyzing the reasonableness of routine administrative functions, especially where the Government seeks to prevent ... hazardous conditions or to detect violations that rarely generate articulable grounds for searching any particular place or person.” Id. at 668, 109 S.Ct. 1402 (citations omitted). .The strong interest in ensuring the integrity, judgment, and fitness of employees who were directly involved in drug interdiction or were going to be armed, and in protecting the public from impaired employees, id. at 670-71, 109 S.Ct. 1402, outweighed the privacy interests of those subject to testing. Id. at 672, 109 S.Ct. 1402. “Because successful performance of their duties depends uniquely on their judgment and dexterity, these employees cannot reasonably expect to keep from the Service personal information that bears directly on their fitness.” Id.

¶ 21 In the instant ease, Petersen and our dissenting colleague strenuously contend that neither Skinner nor Von Raab approved random testing and that the City cannot institute a drug and alcohol testing program unless it is founded on individualized suspicion and a history of drug or alcohol abuse in the workplace. Von Raab clearly held, however, that when the Government’s purpose is to discover or prevent from arising hidden conditions that create safety concerns, such as employees’ impairment by drugs or alcohol while at work, its purpose may justify searches “without any measure of individualized suspicion.” Id. at 668, 109 S.Ct. 1384 (emphasis added). The “compelling interest” in avoiding the public harm from impaired employees, id. at 670-71, 109 S.Ct. 1384, particularly in light of the “special, and obvious, physical and ethical demands” on those employees, id. at 679, 109 S.Ct. 1384, outweighed the intrusion on the employees’ privacy, even if no drug abuse problem had prompted the testing program. Id. at 660, 109 S.Ct. 1384.

¶22 More recently, and again in the absence of a serious drug problem, the Supreme Court upheld drug testing of middle and high school students who participated in extracurricular activities. Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, -, 122 S.Ct. 2559, 2562-63, 153 L.Ed.2d 735 (2002). The school district’s testing policy allowed both random testing and testing based on reasonable suspicion “at any time.” Id. at -, 122 S.Ct. at 2563.

¶23 The students challenging the policy argued that testing should at least require a minimal level of individualized suspicion, but the Court cited Von Raab and Skinner to reach a contrary conclusion. Id. at -, 122 S.Ct. at 2564. As in both of those eases, the Court cited the compelling need to detect “ ‘latent or hidden conditions, or to prevent their development,”’ so that searches could take place without any indicia of individual*284ized suspicion or probable cause. Id. (quoting Von Raab, 489 U.S. at 668, 109 S.Ct. 1384).

¶ 24 In evaluating the degree of intrusion on privacy, the students’ privacy 'interests were deemed diminished, as were the interests of workers in closely regulated industries, by the public school district’s custodial role and by the students’ compliance with additional rules governing participation in extracurricular activities. Id. at -, 122 S.Ct. at 2565-66. Also, the character of the intrusion was termed negligible because students could produce a urine sample in a closed bathroom stall while a faculty monitor waited outside, and despite claims that test results were not carefully guarded, the school did not either give results to police or use results to impose discipline. Id. at -, 122 S.Ct. at 2566-67. Similarly, in Vernonia, 515 U.S. at 658, 115 S.Ct. 2386, the Court found the privacy invasion minor because the students giving urine samples, who remained fully clothed and not subject to direct observation by the monitor, encountered conditions much like those in public restrooms. The samples were tested only for specified drugs and did not reveal any other information; test results were disclosed to a limited group of persons and were not given to police.

¶25 On the other side of the scale, the Court accepted as well-known the health and safety risks of drug use and added that “it would make little sense” to require that a problem be allowed to develop before the school district could seek to prevent it. Id. at -, 122 S.Ct. at 2568. See also Von Raab, 489 U.S. at 675 n. 3, 109 S.Ct. 1384 (when government aims to deter “highly hazardous conduct, a low incidence of such conduct, far from impugning the validity of the [testing] scheme ..., is more logically viewed as a hallmark of success”). The Court also noted that some teachers had reported seeing students who appeared to be under the influence of drugs at school. Id. at -, 122 S.Ct. at 2567. It concluded that in light of a “nationwide epidemic of drug use,” neither “a particularized or pervasive drug problem,” id. at -, 122 S.Ct. at 2568 (emphasis added), nor individualized suspicion was necessary to support random drug testing.

¶ 26 In fact, the Court warned that requiring individualized suspicion might have unintended consequences such as targeting unpopular groups or causing the district, out of fear of litigation over whether the suspicion was justified in a particular case, to less vigorously enforce the testing and so lose its benefits. Id. - at -, 122 S.Ct. at 2568-69. The Court further held that, “[i]n any case, this Court has repeatedly stated that reasonableness under the Fourth Amendment does not require employing the least intrusive means.” Id. at -, 122 S.Ct. at 2569 (emphasis added). The testing was “a reasonably effective means of addressing the School District’s legitimate concerns in preventing, deterring, and detecting drug use.” Id.

¶ 27 The four dissenting justices in Earls objected not to the lack of individualized suspicion so much as to the perversity of testing arguably those “least likely to be at risk from illicit drugs.” Id. at -, 122 S.Ct. at 2572 (Ginsburg, J., dissenting). The dissent also contended that the balance of the school district’s interests against the students’ privacy interests was improperly struck when the nature of student participation in choir, band, or academic team, as contrasted with participation in athletics, did not necessarily reduce the students’ privacy expectations, and no documented drug problem bolstered the need for testing. Id. at -, 122 S.Ct. at 2574-75. Justice Ginsburg distinguished Skinner and Von Raab because testing in those cases sought to avoid enormous health and safety risks to others; she distinguished Vemonia because physical exertion by drug-using athletes created serious risk of injury to the athletes and to other players. Id. at -, 122 S.Ct. at 2575-76.

¶28 Here, as in Skinner and Von Raab, the testing is imposed on individuals who have substantially reduced expectations of privacy because they work in a highly regulated occupation, and if impaired, place themselves, co-workers, and the public at grave risk. Thus, we disagree with the dissent’s suggestion that firefighters’ rights to privacy are only slightly diminished compared to those of other adults. Moreover, we see little ground to distinguish approval *285of a school district’s random drug testing to detect and deter illegal drug use by student athletes (Vernonia) or by students engaged in after school activities (Earls) from the City’s random drug testing of firefighters to detect and deter illegal drug use.

¶29 The dissent characterizes the City’s interest in testing its firefighters as merely “symbolic” and suggests without elaboration that the risks to public safety that the City seeks to avoid through its testing program are not “substantial and real.” The dissent notes that employees in a number of other positions identified as “safety sensitive” are subject to testing. However, testing of firefighters is the sole issue here, and our colleague seriously underestimates the rigorous nature of firefighters’ duties and the potential harm that impaired firefighters might inflict. Thus, we do not doubt that the City’s interest in ensuring that its firefighters are in optimum condition is compelling. Firefighters must be mentally alert at all times in order to instantly respond to a crisis and grasp and follow orders, particularly when a split-second decision or error in judgment may prove fatal; they also must be physically fit in order to perform under the extremely demanding and dangerous conditions that jeopardize their own lives, the lives of their co-workers, and the lives and property of the public. Furthermore, even off-duty drug or alcohol consumption may imperil safety interests if firefighters can be recalled to duty in an emergency. Given the daunting responsibilities they must shoulder on a moment’s notice, firefighters expect, and necessarily accede to, more governmental regulation than most workers. Because the trust placed in them is so great, the need to detect a firefighter who is impaired at work is equally great.

¶ 30 Additionally, although the firefighters’ communal working environment reduces their expectations of privacy and engenders camaraderie and a certain esprit de corps, that camaraderie may make testing dependent on individualized suspicion less effective or less likely to occur. As Justice Breyer reiterated in his concurring opinion in Earls, testing based on individualized suspicion, while seemingly more reasonable, might instead result in use of “subjective criteria” to identify who will be tested or in stigmatizing those actually selected. 536 U.S. at -, 122 S.Ct. at 2571 (Breyer, J., concurring). In Vemonia, the Court noted that the athletes’ parents found random testing less objectionable than suspicion-based testing because the latter “transformed] the process into a badge of shame.” 515 U.S. at 663, 115 S.Ct. 2386.

¶ 31 Other courts faced with constitutional challenges to drug testing programs have upheld random and/or suspicionless testing of firefighters and those who occupy safety-sensitive positions. In Doe v. City and County of Honolulu, 8 Haw.App. 571, 816 P.2d 306, 310-11 (1991), for example, a firefighter challenged a suspicionless drug testing program. After citing Harmon v. Thornburgh, 878 F.2d 484, 489 (D.C.Cir.1989),7 the court stated that random testing should not be analyzed differently than the pre-transfer or pre-promotion testing in Von Raab or the post-accident testing in Skinner. Id. at 314. The court considered the public safety as well as the firefighters’ “health, safety and job performance” to find that testing served a special need. Id. It also found the firefighters’ privacy expectations diminished by the giving of blood and urine during annual physicals, by regulation of their off-duty conduct, and by their need for strength, stamina, judgment, and alertness on the job. Id. at 314-15. The court finally rejected a claim that less intrusive means could detect drug use or impairment, citing Skinner, 489 U.S. at 629 n. 9, 109 S.Ct. 1402 (possibility of a less intrusive means of conducting a search is not the touchstone) and concluded that a compelling interest in safety outweighed the minimal intrusion on privacy. Id. at 316.

¶ 32 Many federal and state courts have similarly found employee drug testing programs constitutional. See Hatley v. Dep’t of the Navy, 164 F.3d 602, 603-04 (Fed.Cir. 1998) (random drug testing of firefighter working on military base); Aubrey v. Sch. *286Bd. of Lafayette Parish, 148 F.3d 559, 563-65 (5th Cir.1998) (suspicionless and random testing of school custodians when no general drug problem existed); Knox Comity Educ. Ass’n v. Knox County Bd. of Educ., 158 F.3d 361, 384 (6th Cir.1998) (suspicionless but not random drug testing of teaching applicants without any documented workplace drug problem); Witcher v. City of Wilmington, 139 F.3d 366, 373-78 (3rd Cir.1998) (random drug testing of firefighters that required direct supervision of urine collection); Saavedra v. Albuquerque, 73 F.3d 1525, 1532 (10th Cir.1996) (reasonable suspicion-based testing of City’s firefighters); Bluestein v. Skinner, 908 F.2d 451, 456-57 (9th Cir.1990) (random nature of testing of airline personnel is relevant to reasonableness of program but also may be more effective deterrent and does not render testing unreasonable); Nat’l Fed’n of Fed. Employees v. Cheney, 884 F.2d 603, 610-13 (D.C.Cir.1989) (suspicionless random testing of civilians employed by military in aviation and police functions); Policemen’s Benev. Ass’n of New Jersey v. Washington Township, 850 F.2d 133, 141 (3rd Cir.1988) (suspicionless random drug testing of police officers); Rushton v. Nebraska Pub. Power Dist., 844 F.2d 562, 566-67 (8th Cir.1988) (suspicionless random testing of nuclear power plant engineers). But see Anchorage Police Dep’t, 24 P.3d at 557-58 (relying on state constitution to approve post-accident or event-related testing of police officers but finding random testing creates “‘fear and surprise’” and that, without extant drug problem, privacy interests outweigh government’s less immediate need); Guiney v. Police Comm’r of Boston, 411 Mass. 328, 582 N.E.2d 523, 525-26 (1991) (relying on state law to strike down random drug testing of police officers because no drug problem existed); Beattie v. City of St. Petersburg Beach, 733 F.Supp. 1455, 1458-59 (M.D.Fla.1990) (city’s safety interest not sufficiently compelling to test all firefighters for drug use, without any individualized suspicion, during annual physicals when no drug problem had been documented).

¶33 If firefighters must be ever-vigilant, we think the City can be no less vigilant in detecting impaired firefighters and removing them from the workforce. Therefore, we conclude that the City’s interests are sufficiently compelling to permit random testing.

CONCLUSION

¶ 34 After balancing Petersen’s reduced expectations of privacy against the City’s compelling need to discover specific but hidden conditions representing grave risks to the health and safety of the firefighters and the public, we hold that the random testing component of the Policy is reasonable under both Article 2, Section 8 of the Arizona Constitution and the Fourth Amendment of the United States Constitution. We reverse the trial court’s grant of summary judgment, vacate the injunction, and remand for entry of summary judgment for the City.

CONCURRING: JOHN C. GEMMILL, Judge.

. The Policy allows for random breath and urine testing. Because the complaint, briefs, and trial court’s order do not distinguish between the two types of testing for purposes of constitutional analysis, our decision similarly does not distinguish between the two types.

. The Fourth Amendment of the United States Constitution provides in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

. The dissent also relies on this case although the Alaska Supreme Court expressly eschewed reference to the Fourth Amendment. Anchorage Police Dep't, 24 P.3d at 550 (”[W]e base our ultimate ruling exclusively on the Alaska Constitution.”).

. Firefighters must also submit to post-accident as well as reasonable suspicion testing and, in certain circumstances, return-to-duty and followup testing. Petersen does not challenge these portions of the Policy.

. Test samples are screened only for the presence of marijuana and cocaine metabolites, morphine, phencyclidine, amphetamine, codeine, and methamphetamine.

. Compare Chandler v. Miller, 520 U.S. 305, 318-22, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997), in which the Court held that no special need supported state-mandated, suspicionless drug testing of candidates for state offices. No drug problem existed among officials; public scrutiny could as effectively detect and deter illicit drug use; and most officials did not perform "high risk, safety sensitive tasks”; thus, the special need was largely symbolic rather than real.

. In Hannon, the court found no constitutional violation in random testing of government employees holding top secret national security clearances. 878 F.2d at 496.