Treasury Employees v. Von Raab

United States Supreme Court

489 US 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989)

 

Justice Kennedy delivered the opinion of the Court.

 

            We granted certiorari to decide whether it violates the Fourth Amendment for the United States Customs Service to require a urinalysis test from employees who seek transfer or promotion to certain positions.

 

I

 

A

 

            The United States Customs Service, a bureau of the Department of the Treasury, is the federal agency responsible for processing persons, carriers, cargo, and mail into the United States, collecting revenue from imports, and enforcing customs and related laws. … An important responsibility of the Service is the interdiction and seizure of contraband, including illegal drugs.   In 1987 alone, Customs agents seized drugs with a retail value of nearly $9 billion. …

 

            In December 1985, respondent, the Commissioner of Customs, established a Drug Screening Task Force to explore the possibility of implementing a drug-screening program within the Service. … After extensive research and consultation with experts in the field, the task force concluded that “drug screening through urinalysis is technologically reliable, valid and accurate.”   Citing this conclusion, the Commissioner announced his intention to require drug tests of employees who applied for, or occupied, certain positions within the Service. …

 

            In May 1986, the Commissioner announced implementation of the drug-testing program. Drug tests were made a condition of placement or employment for positions that meet one or more of three criteria. The first is direct involvement in drug interdiction or enforcement of related laws, an activity the Commissioner deemed fraught with obvious dangers to the mission of the agency and the lives of Customs agents. … The second criterion is a requirement that the incumbent carry firearms, as the Commissioner concluded that “[p]ublic safety demands that employees who carry deadly arms and are prepared to make instant life or death decisions be drug free.” The third criterion is a requirement for the incumbent to handle “classified” material, which the Commissioner determined might fall into the hands of smugglers if accessible to employees who, by reason of their own illegal drug use, are susceptible to bribery or blackmail. Id., at 114.

 

            After an employee qualifies for a position covered by the Customs testing program, the Service advises him by letter that his final selection is contingent upon successful completion of drug screening. An independent contractor contacts the employee to fix the time and place for collecting the sample. On reporting for the test, the employee must produce photographic identification and remove any outer garments, such as a coat or a jacket, and personal belongings. The employee may produce the sample behind a partition, or in the privacy of a bathroom stall if he so chooses. To ensure against adulteration of the specimen, or substitution of a sample from another person, a monitor of the same sex as the employee remains close at hand to listen for the normal sounds of urination. Dye is added to the toilet water to prevent the employee from using the water to adulterate the sample.

 

            Upon receiving the specimen, the monitor inspects it to ensure its proper temperature and color, places a tamper-proof custody seal over the container, and affixes an identification label indicating the date and the individual’s specimen number. The employee signs a chain-of-custody form, which is initialed by the monitor, and the urine sample is placed in a plastic bag, sealed, and submitted to a laboratory.

 

            The laboratory tests the sample for the presence of marijuana, cocaine, opiates, amphetamines, and phencyclidine. Two tests are used. An initial screening test uses the enzyme-multiplied-immunoassay technique (EMIT). Any specimen that is identified as positive on this initial test must then be confirmed using gas chromatography/mass spectrometry (GC/MS). Confirmed positive results are reported to a “Medical Review Officer.” … After verifying the positive result, the Medical Review Officer transmits it to the agency.

 

            Customs employees who test positive for drugs and who can offer no satisfactory explanation are subject to dismissal from the Service. Test results may not, however, be turned over to any other agency, including criminal prosecutors, without the employee’s written consent.

 

B

 

            Petitioners, a union of federal employees and a union official, commenced this suit in the United States District Court for the Eastern District of Louisiana on behalf of current Customs Service employees who seek covered positions. Petitioners alleged that the Custom Service drug-testing program violated, inter alia, the Fourth Amendment. The District Court agreed. …The court acknowledged “the legitimate governmental interest in a drug-free work place and work force,” but concluded that “the drug testing plan constitutes an overly intrusive policy of searches and seizures without probable cause or reasonable suspicion, in violation of legitimate expectations of privacy.” … The court enjoined the drug-testing program, and ordered the Customs Service not to require drug tests of any applicants for covered positions.

 

            A divided panel of the United States Court of Appeals for the Fifth Circuit vacated the injunction. …The court agreed with petitioners that the drug-screening program, by requiring an employee to produce a urine sample for chemical testing, effects a search within the meaning of the Fourth Amendment. The court held further that the searches required by the Commissioner’s directive are reasonable under the Fourth Amendment. It first noted that “[t]he Service has attempted to minimize the intrusiveness of the search” by not requiring visual observation of the act of urination and by affording notice to the employee that he will be tested. … The court also considered it significant that the program limits discretion in determining which employees are to be tested, … and noted that the tests are an aspect of the employment relationship. ...

 

… Illicit drug users, the court found, are susceptible to bribery and blackmail, may be tempted to divert for their own use portions of any drug shipments they interdict, and may, if required to carry firearms, “endanger the safety of their fellow agents, as well as their own, when their performance is impaired by drug use.”   “Considering the nature and responsibilities of the jobs for which applicants are being considered at Customs and the limited scope of the search,” the court stated, “the exaction of consent as a condition of assignment to the new job is not unreasonable.” …

 

            The dissenting judge concluded that the Customs program is not an effective method for achieving the Service’s goals. He argued principally that an employee “given a five day notification of a test date need only abstain from drug use to prevent being identified as a user.” … He noted also that persons already employed in sensitive positions are not subject to the test.   Because he did not believe the Customs program can achieve its purposes, the dissenting judge found it unreasonable under the Fourth Amendment.

 

            …We now affirm so much of the judgment of the Court of Appeals as upheld the testing of employees directly involved in drug interdiction or required to carry firearms. We vacate the judgment to the extent it upheld the testing of applicants for positions requiring the incumbent to handle classified materials, and remand for further proceedings.

 

II

 

            In Skinner v. Railway Labor Executives’ Assn., … decided today, we held that federal regulations requiring employees of private railroads to produce urine samples for chemical testing implicate the Fourth Amendment, as those tests invade reasonable expectations of privacy. Our earlier cases have settled that the Fourth Amendment protects individuals from unreasonable searches conducted by the Government, even when the Government acts as an employer, … and, in view of our holding in Railway Labor Executives that urine tests are searches, it follows that the Customs Service’s drug-testing program must meet the reasonableness requirement of the Fourth Amendment.

 

…[O]ur decision in Railway Labor Executives reaffirms the longstanding principle that neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance. … As we note in Railway Labor Executives, our cases establish that where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context. …

 

            It is clear that the Customs Service’s drug-testing program is not designed to serve the ordinary needs of law enforcement. Test results may not be used in a criminal prosecution of the employee without the employee’s consent. The purposes of the program are to deter drug use among those eligible for promotion to sensitive positions within the Service and to prevent the promotion of drug users to those positions. These substantial interests, no less than the Government’s concern for safe rail transportation at issue in Railway Labor Executives, present a special need that may justify departure from the ordinary warrant and probable-cause requirements.

 

A

 

… The Customs Service has been entrusted with pressing responsibilities, and its mission would be compromised if it were required to seek search warrants in connection with routine, yet sensitive, employment decisions.

 

            Furthermore, a warrant would provide little or nothing in the way of additional protection of personal privacy. A warrant serves primarily to advise the citizen that an intrusion is authorized by law and limited in its permissible scope and to interpose a neutral magistrate between the citizen and the law enforcement officer “engaged in the often competitive enterprise of ferreting out crime.” …But in the present context, “the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined narrowly and specifically … and doubtless are well known to covered employees.” … Under the Customs program, every employee who seeks a transfer to a covered position knows that he must take a drug test, and is likewise aware of the procedures the Service must follow in administering the test. A covered employee is simply not subject “to the discretion of the official in the field.” …The process becomes automatic when the employee elects to apply for, and thereafter pursue, a covered position. Because the Service does not make a discretionary determination to search based on a judgment that certain conditions are present, there are simply “no special facts for a neutral magistrate to evaluate.” …

 

B

 

            Even where it is reasonable to dispense with the warrant requirement in the particular circumstances, a search ordinarily must be based on probable cause. … Our cases teach, however, that the probable-cause standard “‘is peculiarly related to criminal investigations.’” … In particular, the traditional probable-cause standard may be unhelpful in analyzing the reasonableness of routine administrative functions, … especially where the Government seeks to prevent the development of hazardous conditions or to detect violations that rarely generate articulable grounds for searching any particular place or person. … We think the Government’s need to conduct the suspicionless searches required by the Customs program outweighs the privacy interests of employees engaged directly in drug interdiction, and of those who otherwise are required to carry firearms. …

 

            It is readily apparent that the Government has a compelling interest in ensuring that front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment. Indeed, the Government’s interest here is at least as important as its interest in searching travelers entering the country. We have long held that travelers seeking to enter the country may be stopped and required to submit to a routine search without probable cause, or even founded suspicion, “because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.” …

            The public interest likewise demands effective measures to prevent the promotion of drug users to positions that require the incumbent to carry a firearm, even if the incumbent is not engaged directly in the interdiction of drugs. Customs employees who may use deadly force plainly “discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.” … We agree with the Government that the public should not bear the risk that employees who may suffer from impaired perception and judgment will be promoted to positions where they may need to employ deadly force. Indeed, ensuring against the creation of this dangerous risk will itself further Fourth Amendment values, as the use of deadly force may violate the Fourth Amendment in certain circumstances. …

 

            Against these valid public interests we must weigh the interference with individual liberty that results from requiring these classes of employees to undergo a urine test. The interference with individual privacy that results from the collection of a urine sample for subsequent chemical analysis could be substantial in some circumstances. … We have recognized, however, that the “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. … While these operational realities will rarely affect an employee’s expectations of privacy with respect to searches of his person, or of personal effects that the employee may bring to the workplace, … it is plain that certain forms of public employment may diminish privacy expectations even with respect to such personal searches. Employees of the United States Mint, for example, should expect to be subject to certain routine personal searches when they leave the workplace every day. Similarly, those who join our military or intelligence services may not only be required to give what in other contexts might be viewed as extraordinary assurances of trustworthiness and probity, but also may expect intrusive inquiries into their physical fitness for those special positions. …

 

            We think Customs employees who are directly involved in the interdiction of illegal drugs or who are required to carry firearms in the line of duty likewise have a diminished expectation of privacy in respect to the intrusions occasioned by a urine test. Unlike most private citizens or government employees in general, employees involved in drug interdiction reasonably should expect effective inquiry into their fitness and probity. Much the same is true of employees who are required to carry firearms. 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. … While reasonable tests designed to elicit this information doubtless infringe some privacy expectations, we do not believe these expectations outweigh the Government’s compelling interests in safety and in the integrity of our borders.

 

            …[P]etitioners … contend that the Service’s drug-testing program is unreasonable in two particulars. First, petitioners argue that the program is unjustified because it is not based on a belief that testing will reveal any drug use by covered employees. In pressing this argument, petitioners point out that the Service’s testing scheme was not implemented in response to any perceived drug problem among Customs employees, and that the program actually has not led to the discovery of a significant number of drug users… Counsel for petitioners informed us at oral argument that no more than 5 employees out of 3,600 have tested positive for drugs. Id., at 11. Second, petitioners contend that the Service’s scheme is not a “sufficiently productive mechanism to justify [its] intrusion upon Fourth Amendment interests,” … because illegal drug users can avoid detection with ease by temporary abstinence or by surreptitious adulteration of their urine specimens. … These contentions are unpersuasive.

 

            Petitioners’ first contention evinces an unduly narrow view of the context in which the Service’s testing program was implemented. Petitioners do not dispute, nor can there be doubt, that drug abuse is one of the most serious problems confronting our society today. There is little reason to believe that American workplaces are immune from this pervasive social problem, as is amply illustrated by our decision in Railway Labor Executives. …

 

            The mere circumstance that all but a few of the employees tested are entirely innocent of wrongdoing does not impugn the program’s validity. The same is likely to be true of householders who are required to submit to suspicionless housing code inspections, … and of motorists who are stopped at the checkpoints we approved in United States v. Martinez-Fuerte, 428 U.S. 543 (1976). …

 

            We think petitioner’s second argument - that the Service’s testing program is ineffective because employees may attempt to deceive the test by a brief abstention before the test date, or by adulterating their urine specimens - overstates the case. As the Court of Appeals noted, addicts may be unable to abstain even for a limited period of time, or may be unaware of the “fade-away effect” of certain drugs. …More importantly, the avoidance techniques suggested by petitioners are fraught with uncertainty and risks for those employees who venture to attempt them. A particular employee’s pattern of elimination for a given drug cannot be predicted with perfect accuracy, and, in any event, this information is not likely to be known or available to the employee. Petitioners’ own expert indicated below that the time it takes for particular drugs to become undetectable in urine can vary widely depending on the individual, and may extend for as long as 22 days. … Thus, contrary to petitioners’ suggestion, no employee reasonably can expect to deceive the test by the simple expedient of abstaining after the test date is assigned. Nor can he expect attempts at adulteration to succeed, in view of the precautions taken by the sample collector to ensure the integrity of the sample. In all the circumstances, we are persuaded that the program bears a close and substantial relation to the Service’s goal of deterring drug users from seeking promotion to sensitive positions.

 

            In sum, we believe the Government has demonstrated that its compelling interests in safeguarding our borders and the public safety outweigh the privacy expectations of employees who seek to be promoted to positions that directly involve the interdiction of illegal drugs or that require the incumbent to carry a firearm. We hold that the testing of these employees is reasonable under the Fourth Amendment.

 

C

 

            We are unable, on the present record, to assess the reasonableness of the Government’s testing program insofar as it covers employees who are required “to handle classified material.” … We readily agree that the Government has a compelling interest in protecting truly sensitive information from those who, “under compulsion of circumstances or for other reasons, . . . might compromise [such] information.” … We also agree that employees who seek promotions to positions where they would handle sensitive information can be required to submit to a urine test under the Service’s screening program, especially if the positions covered under this category require background investigations, medical examinations, or other intrusions that may be expected to diminish their expectations of privacy in respect of a urinalysis test. …

 

            It is not clear, however, whether the category defined by the Service’s testing directive encompasses only those Customs employees likely to gain access to sensitive information. … We assume these positions were selected for coverage under the Service’s testing program by reason of the incumbent’s access to “classified” information, as it is not clear that they would fall under either of the two categories we have already considered. Yet it is not evident that those occupying these positions are likely to gain access to sensitive information, and this apparent discrepancy raises in our minds the question whether the Service has defined this category of employees more broadly than is necessary to meet the purposes of the Commissioner’s directive.

 

            We cannot resolve this ambiguity on the basis of the record before us, and we think it is appropriate to remand the case to the Court of Appeals for such proceedings as may be necessary to clarify the scope of this category of employees subject to testing. Upon remand the Court of Appeals should examine the criteria used by the Service in determining what materials are classified and in deciding whom to test under this rubric. In assessing the reasonableness of requiring tests of these employees, the court should also consider pertinent information bearing upon the employees’ privacy expectations, as well as the supervision to which these employees are already subject.

 

III

 

            Where the Government requires its employees to produce urine samples to be analyzed for evidence of illegal drug use, the collection and subsequent chemical analysis of such samples are searches that must meet the reasonableness requirement of the Fourth Amendment. Because the testing program adopted by the Customs Service is not designed to serve the ordinary needs of law enforcement, we have balanced the public interest in the Service’s testing program against the privacy concerns implicated by the tests, without reference to our usual presumption in favor of the procedures specified in the Warrant Clause, to assess whether the tests required by Customs are reasonable.

 

            We hold that the suspicionless testing of employees who apply for promotion to positions directly involving the interdiction of illegal drugs, or to positions that require the incumbent to carry a firearm, is reasonable. The Government’s compelling interests in preventing the promotion of drug users to positions where they might endanger the integrity of our Nation’s borders or the life of the citizenry outweigh the privacy interests of those who seek promotion to these positions, who enjoy a diminished expectation of privacy by virtue of the special, and obvious, physical and ethical demands of those positions. We do not decide whether testing those who apply for promotion to positions where they would handle “classified” information is reasonable because we find the record inadequate for this purpose.

 

            The judgment of the Court of Appeals for the Fifth Circuit is affirmed in part and vacated in part, and the case is remanded for further proceedings consistent with this opinion.

 

 

Justice Marshall, with whom Justice Brennan joins, dissenting. …

 

 

Justice Scalia, with whom Justice Stevens joins, dissenting.

 

            The issue in this case is not whether Customs Service employees can constitutionally be denied promotion, or even dismissed, for a single instance of unlawful drug use, at home or at work. They assuredly can. The issue here is what steps can constitutionally be taken to detect such drug use. …

 

            Until today this Court had upheld a bodily search separate from arrest and without individualized suspicion of wrong-doing only with respect to prison inmates, relying upon the uniquely dangerous nature of that environment. S. Today, in Skinner, we allow a less intrusive bodily search of railroad employees involved in train accidents. I joined the Court’s opinion there because the demonstrated frequency of drug and alcohol use by the targeted class of employees, and the demonstrated connection between such use and grave harm, rendered the search a reasonable means of protecting society. I decline to join the Court’s opinion in the present case because neither frequency of use nor connection to harm is demonstrated or even likely. In my view the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use. …

 

            What is absent in the Government’s justifications - notably absent, revealingly absent, and as far as I am concerned dispositively absent - is the recitation of even a single instance in which any of the speculated horribles actually occurred: an instance, that is, in which the cause of bribetaking, or of poor aim, or of unsympathetic law enforcement, or of compromise of classified information, was drug use. Although the Court points out that several employees have in the past been removed from the Service for accepting bribes and other integrity violations, and that at least nine officers have died in the line of duty since 1974, … there is no indication whatever that these incidents were related to drug use by Service employees. Perhaps concrete evidence of the severity of a problem is unnecessary when it is so well known that courts can almost take judicial notice of it; but that is surely not the case here. The Commissioner of Customs himself has stated that he “believe[s] that Customs is largely drug-free,” that “[t]he extent of illegal drug use by Customs employees was not the reason for establishing this program,” and that he “hope[s] and expect[s] to receive reports of very few positive findings through drug screening.” … The test results have fulfilled those hopes and expectations. According to the Service’s counsel, out of 3,600 employees tested, no more than 5 tested positive for drugs. …

 

            The Court’s response to this lack of evidence is that “[t]here is little reason to believe that American workplaces are immune from [the] pervasive social problem” of drug abuse. … Perhaps such a generalization would suffice if the workplace at issue could produce such catastrophic social harm that no risk whatever is tolerable - the secured areas of a nuclear power plant, for example. … But if such a generalization suffices to justify demeaning bodily searches, without particularized suspicion, to guard against the bribing or blackmailing of a law enforcement agent, or the careless use of a firearm, then the Fourth Amendment has become frail protection indeed. …

 

            Today’s decision would be wrong, but at least of more limited effect, if its approval of drug testing were confined to that category of employees assigned specifically to drug interdiction duties. Relatively few public employees fit that description. But in extending approval of drug testing to that category consisting of employees who carry firearms, the Court exposes vast numbers of public employees to this needless indignity. Logically, of course, if those who carry guns can be treated in this fashion, so can all others whose work, if performed under the influence of drugs, may endanger others - automobile drivers, operators of other potentially dangerous equipment, construction workers, school crossing guards. A similarly broad scope attaches to the Court’s approval of drug testing for those with access to “sensitive information.” Since this category is not limited to Service employees with drug interdiction duties, nor to “sensitive information” specifically relating to drug traffic, today’s holding apparently approves drug testing for all federal employees with security clearances - or, indeed, for all federal employees with valuable confidential information to impart. Since drug use is not a particular problem in the Customs Service, employees throughout the Government are no less likely to violate the public trust by taking bribes to feed their drug habit, or by yielding to blackmail. Moreover, there is no reason why this super-protection against harms arising from drug use must be limited to public employees; a law requiring similar testing of private citizens who use dangerous instruments such as guns or cars, or who have access to classified information, would also be constitutional. …

 

            Those who lose because of the lack of understanding that be-got the present exercise in symbolism are not just the Customs Service employees, whose dignity is thus offended, but all of us - who suffer a coarsening of our national manners that ultimately give the Fourth Amendment its content, and who become subject to the administration of federal officials whose respect for our privacy can hardly be greater than the small respect they have been taught to have for their own.