certain employees in the Department of Transportation. American Federation of Government Employees ("AFGE") v. Skinner, 280 U.S. App. D.C. 262, 885 F.2d 884 (D.C.Cir. 1989).
These decisions have established certain general principles. First, because "collection and testing of urine samples intrudes upon expectations of privacy that society has long recognized as reasonable," government-sponsored urine testing for drugs "must be deemed [a] search under the Fourth Amendment." Skinner, 109 S. Ct. at 1413; Von Raab, 109 S. Ct. at 1390 (Fourth Amendment protects against "unreasonable" searches conducted by the Government when it "acts as an employer"). But, the recognition that the Fourth Amendment applies to urine testing only starts the inquiry because the Fourth Amendment forbids only "unreasonable" searches and seizures. Von Raab, 109 S. Ct. at 1390; Skinner, 109 S. Ct. at 1413-14; AFGE v. Skinner, 885 F.2d at 889 ("This approach necessarily recognizes that not every invasion of privacy is proscribed by the Fourth Amendment.").
While a search must usually be supported by a warrant and probable cause to meet the Fourth Amendment's reasonableness requirement, "neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance." Von Raab, 109 S. Ct. at 1390; Skinner, 109 S. Ct. at 1414-16, 1417 ("We have made it clear, however, that a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable."). Instead, the Court has recognized "that where a Fourth Amendment intrusion serves special 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." Von Raab, 109 S. Ct. at 1390; Skinner, 109 S. Ct. at 1414.
After finding that certain special governmental needs existed in both Skinner and Von Raab, the Court applied this balancing test and sustained different types of suspicionless drug testing.
In Skinner, the Court found that the government's "surpassing" interest in ensuring the safety of the railroad industry outweighed the covered train workers' diminished expectations of privacy and sustained Federal Railroad Administration regulations that required blood and urine tests following certain types of accidents. In Von Raab, the Court found that the government's compelling interest in the integrity of the country's borders and in protecting the public outweighed the diminished privacy interests of the affected employees and sustained suspicionless, urinalysis testing for drugs of applicants to certain positions inside the Customs Department.
As recognized by the D.C. Circuit, the Supreme Court's decisions underscore certain additional principles important to the analysis here. First, the Court's decision in Von Raab indicates "that a documented drug problem . . . within a particular work place" need not be shown to justify a suspicionless drug testing program. Harmon, 878 F.2d at 487; AFGE v. Skinner, 885 F.2d at 895 (" Von Raab indicates that a history of intra-agency drug use is not an essential ingredient in establishing the reasonableness of a testing regime."). Second, while "a coherent theory might be constructed which would make" the privacy intrusion occasioned by a random urinalysis testing program "a fundamental distinction" from the analysis in Von Raab, the D.C. Circuit noted that "the Supreme Court has not encouraged the construction of such a theory." Harmon, 878 F.2d at 489. Instead, the D.C. Circuit has concluded that the random nature of a challenged urinalysis testing program is only a " relevant consideration" to be factored into the balancing test which, "in a particularly close case . . . would [possibly] tip the scales [against sustaining a particular program]." Id. (emphasis in original); Cheney, 884 F.2d at 608-09 ("'the random nature of the [subject] testing plan is a relevant consideration,' but does not 'require us to undertake a fundamentally different analysis from that pursued by the Supreme Court.'" (quoting Harmon, 878 F.2d at 489)); AFGE v. Skinner, 885 F.2d at 891 ("While it is true that the regulations sustained in Skinner required testing only after a triggering event . . . we do not find that . . . [this] fact compels 'a fundamentally different analysis from that pursued by the Supreme Court.'" (quoting Harmon, 878 F.2d at 489)).
Although the analytical framework used by the Supreme Court in Skinner and Von Raab has apparently discarded the two-pronged inquiry mandated by the D.C. Circuit (and applied by this court) that required a Fourth Amendment intrusion to be justified at its inception and reasonably related in scope to the circumstances that first justified the intrusion, Jones v. McKenzie, 266 App. D.C. 85, 833 F.2d 335, 339 (D.C.Cir. 1987), vacated and remanded, 490 U.S. 1001, 104 L. Ed. 2d 149, 109 S. Ct. 1633 (1989), and National Federation of Federal Employees ("NFFE") v. Weinberger, 260 U.S. App. D.C. 286, 818 F.2d 935, 943 (D.C.Cir. 1987), the essential elements in the balancing test remain the same. The court must again weigh the strength of the government's asserted interests supporting the urinalysis testing program against the individual's privacy interests to determine if the intrusion is reasonable under the Fourth Amendment.
The D.C. Circuit confirmed this conclusion in Cheney :
"In Von Raab and Skinner the Supreme Court laid out a balancing test that, while not self-executing, focuses our attention on a single question: Does the government's need to conduct the suspicionless searches outweigh the privacy interests of the covered employees in such a fashion that it is 'impractical to require a warrant or some level of individualized suspicion?'"