Petersen v. City of Mesa

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