Drug Testing of Police

Under the provisions of the Fourth Amendment, a search and seizure can only be made with a warrant, or without a warrant based on probable cause or under certain recognized exceptions. It was left to the courts, however, to determine such issues as whether intrusions beyond the body's surface were reasonable searches and whether individuals could expect to be free from bodily intrusions by government employers. Bodily intrusion, typically in the form of urine testing, is the primary method of drug testing employees. The level of reasonableness in these cases is typically addressed by balancing the employees' expectations of privacy against the agency's needs and interests in testing for the use of drugs. When it comes to law enforcement personnel, the issue of drug testing has an additional ethical dimension because police are generally held to a higher standard. By the middle of the 1980s, partly as an outgrowth of the law enforcement focus on drug use, attention was drawn to drug abuse among American workers. This issue was highlighted in a report by the President's Commission on Organized Crime, published in March 1986. This Commission set forth 71 recommendations, among which was a recommendation that all federal employees and other workers submit to drug tests. The Commission recommended that the president direct all federal agencies to develop employee drug abuse policies that would include guidelines for drug testing.

In September 1986, President Reagan signed an executive order directing the head of each executive agency to develop a plan for achieving a drug-free workplace with due consideration of the rights of the government, the employee, and the public. Specifically, the executive order mandated that these plans include the following: (a) policy statements of the agency's expectations and the actions when drug use is identified; (b) employee assistance programs; (c) training for supervisors in identifying and handling illegal drug use by employees; (d) provisions for self-referrals and supervisory referrals to treatment with maximum respect for individual confidentiality; and (e) provisions for identifying illegal drug users, including drug testing.

In response to this executive order, the U.S. Customs Service developed a drug-testing program for certain employees. This program was challenged and taken to the U.S. Supreme Court. The Court ruled in National Treasury Employees Union v. Von Raab (1989) that the U.S. Customs Service's practice of testing current employees without suspicion but who applied for promotions or transfers into certain positions was constitutional. It is important to note that the Court ruled that this testing was a search under the Fourth Amendment, but the public interest outweighed the privacy concerns. The decision by the Court to uphold drug-testing law enforcement employees, even though limited, resulted in many other law enforcement agencies at all levels beginning to drug test employees.

Urine testing has become the method most commonly used by employers for determining drug use by employees and applicants. In the past decade, in response to the general labor pool and a shortage of law enforcement personnel, many police agencies changed their policies to allow applicants some prior use of drugs, although the types of drugs, the number of times they were used, and the timeframe of their use vary widely in departments throughout the country. However, once an individual is employed by an agency, detection of illegal drug use will usually end his or her career. A growing number of police agencies require officers to submit to urinalysis tests to determine illegal drug usage. These testing programs vary in scope from those based on reasonable suspicion to mandatory random tests of all officers.

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