SUPREME COURT OF ARIZONA
En Banc
CRAIG W. PETERSEN, ) Arizona Supreme Court
) No. CV-03-0100-PR
Plaintiff-Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CV 02-0016
CITY OF MESA, )
) Maricopa County
) Superior Court
Defendant-Appellant. ) No. CV 2001-090218
)
__________________________________) O P I N I O N
Appeal from Superior Court in Maricopa County
No. CV 2001-090218
The Honorable Robert D. Myers
AFFIRMED
Opinion of Court of Appeals, Division One
204 Ariz. 278, 63 P.3d 309 (App. 2003)
VACATED
Skousen, Skousen, Gulbrandsen & Patience, P.C. Mesa
by David L. Abney, Esq.
Attorneys for Craig W. Petersen
City of Mesa Attorney’s Office Mesa
by Deborah J. Spinner, Mesa City Attorney
Rosemary H. Rosales
Catherine M. Bowman
Attorneys for City of Mesa
M c G R E G O R, Vice Chief Justice
¶1 This case requires us to determine the
constitutionality of a city’s random, suspicionless drug
testing of its firefighters. We exercise jurisdiction
pursuant to Article VI, Section 5.3 of the Arizona
Constitution, Arizona Revised Statutes (A.R.S.) section 12-
120.24, and Rule 23 of the Arizona Rules of Civil Appellate
Procedure.
I.
¶2 Craig Petersen works as a firefighter for the
City of Mesa. In 2001, after Peterson was hired, the City
implemented a substance abuse program (the Program) for the
Mesa Fire Department. The Program requires testing of
firefighters (1) if the Department has reasonable suspicion
to believe an individual firefighter has abused drugs or
alcohol; (2) after a firefighter is involved in an accident
on the job; (3) following a firefighter’s return to duty or
as a follow-up to “a determination that a covered member is
in need of assistance”; and (4) “on an unannounced and
random basis spread reasonably throughout the calendar
year.”
¶3 Under the Program’s random testing provision, a
computer program selects the firefighters to be tested.
The Department notifies firefighters of their selection for
random testing immediately before, during, or after work;
the firefighters are to be tested within thirty minutes of
their notification, with allowance for travel time to the
laboratory for collection. Once at the laboratory,
firefighters are permitted to use private bathroom stalls
2
when providing urine samples, which are then inspected by a
monitor for the proper color and temperature.
¶4 The laboratory tests the sample for the presence
of marijuana, cocaine, opiates, amphetamines, and
phencyclidine.1 The laboratory initially tests the
specimens by using an immunoassay test that meets the
requirements of the Food and Drug Administration for
commercial distribution. The laboratory then confirms all
positive test results using the gas chromatography/mass
spectrometry technique and reports positive results to a
Medical Review Officer (MRO), who has a “detailed knowledge
of possible alternate medical explanations.” The MRO
reviews the results before giving the information to the
Department’s administrative official. Only confirmed tests
are reported to the Department as positive for a specific
drug. Before verifying a positive result, however, the MRO
must contact the firefighter on a confidential basis.
¶5 The Department does not release information in a
firefighter’s drug testing record outside the Department
without the firefighter’s consent. A firefighter whose
test reveals a blood alcohol concentration in excess of
that allowed under the Program or who tests positive for
1
In addition, twenty percent of those tested are
selected for an alcohol breath test.
3
any of several specified drugs is removed from all covered
positions and is evaluated by a substance abuse
professional. The Department may discipline or terminate
the employment of a firefighter who tests positive a second
time or who refuses to submit to a required test.
¶6 According to section 8 of the Program, the
primary purpose of the random testing component “is to
deter prohibited alcohol and controlled substance use and
to detect prohibited use for the purpose of removing
identified users from the safety-sensitive work force.”
This purpose advances the City’s goal of establishing “a
work environment that is totally free of the harmful
effects of drugs and the misuse of alcohol.”
¶7 Petersen filed a complaint in superior court
seeking declaratory and injunctive relief, alleging that
the random testing component of the Program violated his
rights under both Article II, Section 8 of the Arizona
Constitution and the Fourth Amendment to the United States
Constitution.2 The trial court held that the Program
violated the Arizona Constitution and permanently enjoined
2
Petersen does not challenge testing on the basis
of reasonable suspicion, after an on-the-job accident,
following a return to duty, or as a follow-up to “a
determination that a covered member is in need of
assistance.” As a result, we express no opinion regarding
the constitutionality of these Program provisions.
4
the Department from continuing random, suspicionless drug
and alcohol testing of the City’s firefighters. The court
of appeals reversed, holding that the Program’s random
testing component is reasonable under both the Arizona and
United States Constitutions. The court reasoned that 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” outweighed
Petersen’s privacy interests. Petersen v. City of Mesa,
204 Ariz. 278, 286 ¶ 34, 63 P.3d 309, 317 (App. 2003).
Judge Hall dissented from the majority’s conclusion that
the random testing component of the Program is reasonable
under the Fourth Amendment. Id. at 290-91 ¶ 49, 63 P.3d at
321-22 (Hall, J., concurring in part and dissenting in
part).
¶8 Under the analysis set forth below, we hold that
the Program’s random testing component is unreasonable and
therefore violates the Fourth Amendment to the United
States Constitution.3
3
Petersen argues that Article II, Section 8 of the
Arizona Constitution, which expressly provides that “[n]o
person shall be disturbed in his private affairs . . .
without authority of law,” affords greater protection
against drug testing than does the Fourth Amendment. Our
conclusion that the random testing component violates the
Fourth Amendment obviates the need to consider whether the
protections granted by the Arizona Constitution extend
5
II.
¶9 The Fourth Amendment to the United States
Constitution protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const.
amend. IV. “The Amendment guarantees the privacy, dignity,
and security of persons against certain arbitrary and
invasive acts by officers of the Government or those acting
at their direction.” Skinner v. Ry. Labor Executives'
Ass'n, 489 U.S. 602, 613-14 (1989). In this case, the
parties agree that the City’s collection and testing of a
firefighter’s urine and breath constitutes a “search” under
the Fourth Amendment. See, e.g., id. at 617 (“Because it
is clear that the collection and testing of urine intrudes
upon expectations of privacy that society has long
beyond those afforded defendants by the federal
constitution. Although the Arizona Constitution may impose
stricter standards on searches and seizures than does the
federal constitution, Arizona courts cannot provide less
protection than does the Fourth Amendment. See, e.g.,
Cooper v. California, 386 U.S. 58, 62 (1967) (“Our holding,
of course, does not affect the State's power to impose
higher standards on searches and seizures than required by
the Federal Constitution if it chooses to do so.”); Arnold
v. City of Cleveland, 616 N.E.2d 163, 169 (Ohio 1993) (“In
the areas of individual rights and civil liberties, the
United States Constitution, where applicable to the states,
provides a floor below which state court decisions may not
fall.”).
6
recognized as reasonable . . . these intrusions must be
deemed searches under the Fourth Amendment.”).
¶10 As the language of the Fourth Amendment makes
clear, “the ultimate measure of the constitutionality of a
governmental search is ‘reasonableness.’” Vernonia Sch.
Dist. 47J v. Acton, 515 U.S. 646, 652 (1995). To be
reasonable, a search generally must be based upon some
level of individualized suspicion of wrongdoing. Skinner,
489 U.S. at 624. The purpose of requiring individualized
suspicion “is to protect privacy interests by assuring
citizens subject to a search or seizure that such
intrusions are not the random or arbitrary acts of
government agents.” Id. at 621-22.
¶11 The Supreme Court, however, has recognized
limited exceptions to this general rule “when ‘special
needs, beyond the normal need for law enforcement, make the
warrant and probable-cause requirement impracticable.’”
Id. at 619 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873
(1987)). “In limited circumstances, where the privacy
interests implicated by the search are minimal, and where
an important governmental interest furthered by the
intrusion would be placed in jeopardy by a requirement of
individualized suspicion, a search may be reasonable
despite the absence of such suspicion.” Id. at 624.
7
¶12 The City concedes that its use of random,
suspicionless testing is not based on any level of
individualized suspicion. The City argues, however, that
such testing is reasonable under the Fourth Amendment
because the search “serves special governmental needs,
beyond the normal need for law enforcement.” Nat’l
Treasury Employees Union v. Von Raab, 489 U.S. 656, 665
(1989). Because the Department does not disclose test
results to law enforcement officers or to other third
parties without the firefighter’s consent, Petersen
recognizes that the Program is unrelated to the normal need
for law enforcement. Petersen maintains, however, that the
City cannot enforce the Program’s random testing component
because the City’s alleged “special needs” offered in
support of the program are insufficient to overcome the
privacy intrusion occasioned by the search. Based on the
record in this case, we agree.
A.
¶13 Neither the Supreme Court nor this court has
considered the reasonableness of random, suspicionless
testing of city firefighters. The Supreme Court, however,
has examined the constitutionality of suspicionless drug
testing requirements analogous to the procedures Petersen
challenges. See Bd. of Educ. of Indep. Sch. Dist. No. 92
8
v. Earls, 536 U.S. 822 (2002) (high school students
participating in competitive extracurricular activities);
Chandler v. Miller, 520 U.S. 305 (1997) (candidates for
political office); Vernonia, 515 U.S. 646 (high school
students participating in interscholastic athletics);
Skinner, 489 U.S. 602 (railway employees); Von Raab, 489
U.S. 656 (customs service agents); see also Ferguson v.
City of Charleston, 532 U.S. 67 (2001) (holding
unconstitutional a state hospital’s drug testing of
pregnant patients that involved hospital personnel
notifying the police of patients who tested positive for
cocaine). As each of these decisions illustrates, when
presented with an alleged “special need” in support of a
particular Fourth Amendment intrusion, a court must weigh
the individual’s Fourth Amendment interests against the
proffered governmental interests to determine whether the
search in question “fit[s] within the closely guarded
category of constitutionally permissible suspicionless
searches.” Chandler, 520 U.S. at 309.
¶14 Applying this “special needs” balancing test to
the facts presented in this case, we begin by analyzing the
City’s proffered interests. Although the City need not
present a “compelling” interest, the City’s interest must
be “important enough” to justify the government’s intrusion
9
into the firefighters’ legitimate expectations of privacy.
Vernonia, 515 U.S. at 661.
¶15 The City asserts that it has a “special need” to
test firefighters because they occupy safety-sensitive
positions. The City alleges that random testing furthers
this interest by deterring “prohibited alcohol and
controlled substance use” and detecting “prohibited use for
the purpose of removing identified users from the safety-
sensitive work force.” We agree that the City has an
interest in deterring and detecting prohibited alcohol and
drug use among the City’s firefighters.
¶16 Fourth Amendment analysis, however, requires that
we do more than recognize that the City has an interest in
deterring drug use among employees in safety-sensitive
positions. In addition, we must look to the nature and
immediacy of the City’s concern. Id. at 660. That is, has
the City identified a real and substantial risk? Chandler,
520 U.S. at 323. If so, will the City’s proposed invasion
of its firefighters’ privacy interests further the City’s
interest in deterring and detecting drug use among its
firefighters? Skinner, 489 U.S. at 624. Answering that
question requires that we consider the efficacy of the
Program in meeting the City’s concern, Vernonia, 515 U.S.
10
at 660, and whether the invasion of privacy is calibrated
to the defined risk, Chandler, 520 U.S. at 321-23.
¶17 The record before us provides little information
about the City’s reasons for adopting random testing and
provides no evidence to explain the City’s perceived need
to conduct such testing. As the City conceded at oral
argument, the record is devoid of any indication that the
City has ever encountered any problem involving drug use by
its firefighters. The record lacks not only evidence of
even a single instance of drug use among the firefighters
to be tested but also any evidence of accidents,
fatalities, injuries, or property damage that can be
attributed to drug or alcohol use by the City’s
firefighters. No evidence of record suggests that the
firefighters asked for or consented to the testing policy,
and the record includes not even an allegation or rumor
that the City’s firefighters used or abused drugs or
alcohol. Based on this record, we detect no real and
substantial risk that the public safety is threatened by
drug or alcohol use among the firefighters to be tested.
The absence of evidence of drug use, at least as reflected
in the record, provides no basis for us to conclude that
random, suspicionless testing is calibrated to respond to
any defined risk. At most, the Program’s random testing
11
component furthers only a generalized, unsubstantiated
interest in deterring and detecting a hypothetical drug
abuse problem among the City’s firefighters.4
¶18 Nonetheless, relying primarily upon Von Raab,
Vernonia, and Earls, the City asserts that the Supreme
Court “has not required a particularized or pervasive drug
problem before allowing the government to conduct
suspicionless drug testing.” Earls, 536 U.S. at 835. The
City’s argument accurately reflects language from the cases
upon which it relies. These cases, however, focused on a
number of important factors that differ from the facts of
this case and therefore offer limited support for the
City’s argument.
¶19 In Von Raab, the Court examined the
constitutionality of a United States Customs Service
program requiring Customs Service employees to submit to
suspicionless testing upon promotion or transfer to
positions directly involved in the interdiction of illegal
drugs or positions that required carrying a firearm. 489
4
While we recognize and applaud the City’s
interest in deterring drug use among firefighters, the
Program also requires testing upon reasonable suspicion,
after an accident on the job, and following a return to
duty or as a follow-up to “a determination that a covered
member is in need of assistance.” The record before us
provides no basis for concluding that these testing
12
U.S. at 660. Although the Customs Service did not adopt
its policy in response to a history of drug and alcohol
abuse problems, id., the plan was developed for an agency
that the Court recognized as “our Nation’s first line of
defense against one of the greatest problems affecting the
health and welfare of our population.” Id. at 668. The
Court reasoned that those employees directly involved in
drug interdiction or carrying a firearm could jeopardize
the agency’s “almost unique mission.” Id. at 674. As a
result, the Court concluded that the Customs Service had a
compelling interest in assuring that users of illegal drugs
would not be placed in these positions. Id. at 670-71. In
upholding the testing regime, the Court also noted that the
testing program provided advance notice of the scheduled
sample collection. Id. at 672 n.2. In addition, the Court
focused on the context in which the Service’s testing
program was implemented, which the Court described as an
environment in which “it is not feasible to subject
employees and their work product to the kind of day-to-day
scrutiny that is the norm in more traditional office
environments.” Id. at 674. Given these particular facts,
as the Court later emphatically stated, “[Von Raab is]
alternatives fail to deter and detect drug use among the
City’s firefighters.
13
[h]ardly a decision opening broad vistas for suspicionless
searches [and it] must be read in its unique context.”
Chandler, 520 U.S. at 321.
¶20 Unlike the Customs Service employees in Von Raab,
the City’s firefighters are not directly involved in drug
interdiction, do not carry a firearm, and are not required
to use deadly force in the regular course of their duties.
In addition, the firefighters’ communal work environment
provides a better opportunity for supervisors to detect
drug use and therefore develop reasonable suspicion to
conduct a test under appropriate circumstances. This
environment reduces the risk that a firefighter could cause
“great human loss before any signs of impairment become
noticeable to supervisors or others.” Skinner, 489 U.S. at
628. Finally, as we discuss below, the element of “fear
and surprise” inherent in the Program’s random testing
procedures results in a broader and more intrusive privacy
invasion than did the testing procedures approved in Von
Raab. Von Raab, 489 U.S. at 672 n.2 (noting that the
advance notice given of the scheduled sample collection
reduces “to a minimum any ‘unsettling show of authority’”
(quoting Delaware v. Prouse, 440 U.S. 648, 657 (1979)).
¶21 Vernonia and Earls also provide limited support
for the City’s random testing of its firefighters. In
14
Vernonia and Earls, the Court upheld school district
policies that required students participating in
extracurricular activities to submit to random drug tests.
Earls, 536 U.S. at 838 (finding school district policy,
which included random testing of students participating in
extracurricular activities, to be constitutional);
Vernonia, 515 U.S. at 664-65 (upholding school district’s
policy authorizing random drug testing of students
participating in interscholastic athletics). In upholding
the policies, the Court emphasized in both decisions that
“‘Fourth Amendment rights . . . are different in public
schools than elsewhere; the ‘reasonableness’ inquiry cannot
disregard the schools’ custodial and tutelary
responsibility for children.’” Earls, 536 U.S. at 829-30
(quoting Vernonia, 515 U.S. at 656).
¶22 Firefighters, of course, have little in common
with students entrusted to the government's care. As Judge
Hall correctly noted, “unlike a public school student[’s
right to privacy], a firefighter’s right to privacy,
although limited in some respects, is not inherently
‘subject[] to greater controls than those appropriate for
adults.’” Petersen, 204 Ariz. at 289 ¶ 44, 63 P.3d at 320
(Hall, J., concurring in part and dissenting in part)
(quoting Earls, 536 U.S. at 831). On this basis alone, we
15
have little trouble distinguishing Vernonia and Earls from
this case.
¶23 Moreover, unlike the record in this case, the
records in both the Earls and Vernonia actions presented
specific evidence of drug use that supported the districts’
decisions to institute the testing regimes. In Vernonia,
an “immediate crisis,” 515 U.S. at 663, brought about by a
“sharp increase in drug use,” id. at 648, sparked
installation of the testing program. Similarly, the Earls
Court noted that the “School District ha[d] provided
sufficient evidence to shore up the need for its testing
program.” 536 U.S. at 835.
¶24 Given the dearth of evidence by which we can
measure the strength of the City’s proffered “special need”
and the City’s failure to articulate how the Program’s
random testing procedures further its interests, we
conclude that the City has failed to define any real and
substantial risk that random, suspicionless testing is
designed to address. Nonetheless, because the Supreme
Court has stated that a lack of empirical data, by itself,
is not fatal to a suspicionless testing program, Von Raab,
489 U.S. at 673-75, we now consider the extent of
Petersen’s acknowledged Fourth Amendment privacy interests
and then balance these interests against the City’s
16
generalized, unsubstantiated interest in deterring and
detecting substance abuse among the City’s firefighters.
B.
¶25 The collection of urine and breath samples for
purposes of drug and alcohol testing “infringes an
expectation of privacy that society is prepared to
recognize as reasonable.” Skinner, 489 U.S. at 616.
Nevertheless, “‘operational realities of the workplace’ may
render entirely reasonable certain work-related intrusions
by supervisors and co-workers that might be viewed as
unreasonable in other contexts.” Von Raab, 489 U.S. at 671
(quoting O’Connor v. Ortega, 480 U.S. 709, 717 (1987)). In
Skinner, for example, the Court found that railway
employees’ expectation of privacy is “diminished by reason
of their participation in an industry that is regulated
pervasively to ensure safety, a goal dependent, in
substantial part, on the health and fitness of covered
employees.” 489 U.S. at 627.
¶26 As was true of the railway employees in Skinner,
the City’s firefighters possess a diminished expectation of
privacy. The safety risks associated with becoming a
firefighter are well known. We entrust firefighters with
protecting both the community at large and their colleagues
from danger, while putting their own well-being at great
17
risk of harm. A firefighter’s ability to do this job in a
safe and effective manner depends, in substantial part, on
his or her health and fitness. In addition, a firefighter,
while on duty, lives in a communal environment. Given all
these factors, we conclude that individuals who elect to
become firefighters should anticipate a diminished
expectation of privacy and should reasonably expect some
intrusion into matters involving their health and fitness.
¶27 The strength of any asserted privacy interest
also turns upon the “character of the intrusion.”
Vernonia, 515 U.S. at 658. Although any program that
compels urinalysis affects privacy interests, the City has
designed its Program to reduce its intrusion upon the
firefighters’ privacy interests. See, e.g., id.
(concluding that “the degree of intrusion depends upon the
manner in which production of the urine sample is
monitored”). The Program permits firefighters providing
samples to use private bathroom stalls at the designated
testing facility, where they are not subject to direct
monitoring. The firefighter then gives the sample to an
authorized monitor for color and temperature testing. The
laboratory confirms any initial positive test by using gas
chromatography/mass spectrometry techniques, which reduces
the specter of a “false positive” test result. See, e.g.,
18
Karen Manfield, Imposing Liability on Drug Testing
Laboratories for “False Positives”: Getting Around Privity,
64 U. Chi. L. Rev. 287, 290-92 (1997) (stating that
retesting positive results with a properly administered gas
chromatography test “would eliminate virtually all the
false positives”). The MRO reviews the results and
contacts the firefighter on a confidential basis. In
addition, the Department does not release testing records
outside the Department without the firefighter’s consent.
¶28 These procedures, which attempt to guard the
firefighters’ privacy interests to the extent possible, all
work to reduce the intrusiveness of the privacy invasion.
Nonetheless, given the random nature of these searches, we
cannot conclude that “the privacy interests implicated by
the search are minimal.” Skinner, 489 U.S. at 624.
¶29 The Supreme Court has not examined random testing
procedures outside of the unique school setting. Earls,
536 U.S. 822; Vernonia, 515 U.S. 646. In both Vernonia and
Earls, the Court upheld school district policies requiring
students participating in extracurricular activities to
submit to random drug testing. In both cases, without
directly addressing the privacy implications of a random
search, the Court upheld the challenged searches based
primarily upon “‘the schools’ custodial and tutelary
19
responsibility for children.’” Earls, 536 U.S. at 829-30
(quoting Vernonia, 515 U.S. at 656).
¶30 Outside the school context, the Court has
recognized that notification in advance of a scheduled
search minimizes the intrusiveness of the search. Von
Raab, 489 U.S. at 672 n.2; see also United States v.
Martinez-Fuerte, 428 U.S. 543, 559 (1976) (noting that the
intrusion on privacy occasioned by routine checkpoints is
minimized by the fact that motorists “are not taken by
surprise as they know, or may obtain knowledge of, the
location of the checkpoints and will not be stopped
elsewhere”). In Von Raab, for example, the Court
identified the advance notice given as a factor in
upholding the suspicionless testing of Customs Service
employees. 489 U.S. at 672 n.2. The Von Raab Court
stated:
Only employees who have been tentatively accepted
for promotion or transfer to one of the three
categories of covered positions are tested, and
applicants know at the outset that a drug test is
a requirement of those positions. Employees are
also notified in advance of the scheduled sample
collection, thus reducing to a minimum any
“unsettling show of authority” that may be
associated with unexpected intrusions on privacy.
Id. (quoting Delaware, 440 U.S. at 657).
¶31 Consistent with the Court’s statements in Von
Raab, a number of federal and state courts have
20
acknowledged the increased privacy concerns occasioned by
random testing. See, e.g., Bluestein v. Skinner, 908 F.2d
451, 456-57 (9th Cir. 1990) (finding the fact that the
challenged testing program provided for unannounced and
random tests added “some weight to the ‘invasion of
privacy’ side of the Fourth Amendment balance”); Harmon v.
Thornburgh, 878 F.2d 484, 489 (D.C. Cir. 1989) (“Certainly
the random nature of the . . . testing plan is a relevant
consideration; and, in a particularly close case, it is
possible that this factor would tip the scales.”);
Anchorage Police Dep’t Employees Ass’n v. Municipality of
Anchorage, 24 P.3d 547 (Alaska 2001). In Anchorage, for
example, the Alaska Supreme Court, relying upon the Alaska
Constitution, concluded that the random testing of
firefighters is qualitatively different from suspicionless
testing that occurs prior to employment, upon promotion,
demotion or transfer, and after a traffic accident.
Anchorage, 24 P.3d at 557. The court reasoned:
Because the policy’s provision for random testing
could subject employees to “unannounced” probing
throughout the course of their employment, the
tests are peculiarly capable of being viewed as
“unexpected intrusions on privacy.” For example,
it might seem manifestly unreasonable for any
person applying for a safety-sensitive position
in a heavily regulated field of activity not to
anticipate—and implicitly agree to—a probing
inquiry into the applicant’s capacity to perform
job-related duties; the same would hold true for
21
any employee who might be promoted, demoted,
transferred, or become involved in a job-related
accident. But a job applicant or employee who
anticipated such inquiries might nevertheless
expect not to be subjected to a continuous and
unrelenting government scrutiny that exposes the
employee to unannounced testing at virtually any
time. Such expectations cannot be so readily
dismissed as patently unreasonable.
Id. at 557-58 (citations omitted).
¶32 Although the Alaska Supreme Court analyzed the
Anchorage plan under its state constitution, we find the
court’s reasoning about the difference between random and
announced or scheduled tests persuasive. The very nature
of random, suspicionless searches precludes any advance
notification and subjects employees to continuous
government scrutiny. Random testing, therefore,
necessarily raises the specter of the “‘unsettling show of
authority’ that may be associated with unexpected
intrusions on privacy.” Von Rabb, 489 U.S. at 672 n.2
(quoting Delaware, 440 U.S. at 657). Accordingly, we
conclude that random, suspicionless drug testing, while not
per se unreasonable, invades reasonable privacy interests
even when the government collects the urine sample in a
relatively unintrusive manner and takes steps to protect
employees’ privacy interests by limiting the information
that is disclosed.
22
III.
¶33 Balancing Petersen’s privacy interests against
the interests the City advances in favor of the Program’s
random component, we conclude that the City’s generalized
and unsubstantiated interest in deterring and detecting
alcohol and drug use among the City’s firefighters by
conducting random drug tests is insufficient to overcome
even the lessened privacy interests of the firefighters in
this case. The situation we consider, on this record,
cannot be described as one of the “limited circumstances,
where the privacy interests implicated by the search are
minimal, and where an important governmental interest
furthered by the intrusion would be placed in jeopardy by a
requirement of individualized suspicion, [and in which] a
search may be reasonable despite the absence of such
suspicion.” Skinner, 489 U.S. at 624. Rather, the
increased intrusion occasioned by the Program’s random,
suspicionless testing component represents the very type of
“arbitrary and invasive acts by officers of the Government
or those acting at their direction” against which the
Fourth Amendment is meant to guard. Id. at 613-14. We
therefore hold, on the record before us, that the Program’s
random component falls outside the “closely guarded
category of constitutionally permissible suspicionless
23
searches,” Chandler, 520 U.S. at 309, and violates the
Fourth Amendment to the United States Constitution.
IV.
¶34 For the foregoing reasons, we vacate the court of
appeals’ opinion and affirm the trial court’s judgment
enjoining the City from enforcing the random, suspicionless
component of the Program.
____________________________________
Ruth V. McGregor, Vice Chief Justice
CONCURRING:
__________________________________
Charles E. Jones, Chief Justice
__________________________________
Rebecca White Berch, Justice
__________________________________
Michael D. Ryan, Justice
__________________________________
Andrew D. Hurwitz, Justice
24