United States: Illinois Police Officer Drug And Alcohol Tests Raise Constitutional Questions

William R Lyman is an Attorney in our Chicago office
  • Illinois expanded the Police and Community Relations Improvement Act (PCRIA) to add special procedures for officers involved in incidents where their firearm is discharged causing injury or death to an individual.
  • New Section 1-25 of PCRIA mandates that every law enforcement agency adopt a new written policy requiring an officer to submit to drug and alcohol testing, if 1) the officer discharges his or her firearm during the performance of his or her official duties or in the line of duty, and 2) the discharge causes injury or death.
  • The addition of this mandatory drug and alcohol testing of officers involved in a shooting causing injury or death raises two important constitutional questions for police chiefs and those responsible for administering these tests.

In 2015, in the wake of several well-publicized, officer-involved shooting incidents, Illinois enacted the Police and Community Relations Improvement Act (PCRIA) (50 ILCS 727/1-1 et seq.). The Act provides procedures for investigating officers involved in any incident that led to the death of an individual. On Aug. 25, 2017, the state expanded PCRIA to add special procedures for officers involved in incidents where their firearm is discharged causing injury or death to an individual.

This Holland & Knight alert examines the amendment and some of the Constitutional questions raised.

The PCRIA Amendment

New Section 1-25 of PCRIA1 mandates that every law enforcement agency adopt a new written policy requiring an officer to submit to drug and alcohol testing, if:

  1. the officer discharges his or her firearm during the performance of his or her official duties or in the line of duty
  2. the discharge causes injury or death

The new written policy must require that the drug and alcohol testing "be completed as soon as practicable after the officer-involved shooting but no later than the end of the involved officer's shift or tour of duty." 50 ILCS 727/1-25(b)(2).

Constitutional Questions Raised

Given the protections against self-incrimination and unreasonable searches and seizures afforded to individuals in the Fifth and Fourth Amendments to the U.S. Constitution, respectively, the addition of this mandatory drug and alcohol testing of officers involved in a shooting causing injury or death raises two important constitutional questions for police chiefs and those responsible for administering these tests:

  1. Does Section 1-25 run afoul of the U.S. Supreme Court's ruling in Garrity v. New Jersey such that it would be necessary under the Fifth Amendment to issue a Miranda-like "Garrity warning" to the involved officer prior to administering the mandated drug and alcohol test?
  2.  Is it necessary under the Fourth Amendment to obtain a warrant authorizing the drug and alcohol testing of the involved officer prior to administering the mandated drug and alcohol test?

The Fifth Amendment and Garrity v. New Jersey

Under Garrity, states are prohibited from "us[ing] the threat of discharge to secure incriminatory evidence against an employee[,]" and any statements obtained under such a threat of removal of office may not be used in subsequent criminal proceedings against police officers due to the Fifth Amendment individual protections against coerced statements, extended to the states pursuant to the 14th Amendment. Garrity v. New Jersey, 385 U.S. 493, 499 (1967). In order to ensure that statements obtained from police officers are voluntary and cannot be deemed to be coerced or compelled, investigators of police-involved incidents typically give police officers under investigation a "Garrity warning" prior to asking the officer any questions. This way, an officer is aware of his or her Fifth Amendment constitutional right to remain silent and not provide answers that may implicate the officer in a crime or be used against the officer in a criminal or administrative proceeding.

While the use of a "Garrity warning" has become commonplace in internal investigations of government employees such as police officers, less common is the understanding that "it is well settled" by the U.S. Supreme Court that the Garrity ruling and the Fifth Amendment protection against self-incrimination and coerced or compelled evidence apply only to "testimonial or communicative evidence and . . . not . . . to physical evidence[,]" such as evidence obtained from a state-compelled drug or alcohol test. People v. Carey, 386 Ill.App.3d 254, 266 (Ill. App., 1st Dist. 2008). In Schmerber v. California, the U.S. Supreme Court ruled that the results of a state-compelled, blood-drawn alcohol test constituted real or physical evidence – not "evidence of a testimonial or communicative nature" – and as such "the withdrawal of blood and use of the analysis in question in this case" did not trigger the Fifth Amendment privilege. 384 U.S. at 761, 764. In People v. Mulack, the Illinois Supreme Court extended the holding in Schmerber to Illinois state courts, ruling that a breath test alleged to be compelled in violation of a defendant's Fifth Amendment rights was admissible as evidence against the defendant. 40 Ill.2d at 431. Taken together, "Schmerber and Mulack . . . establish that a compulsory blood or breath test does not implicate the fifth amendment's prohibition on the use of compelled testimony because the results of such tests are not evidence of a communicative or testimonial nature." Carey, 386 Ill.App.3d at 267. As such, the drug and alcohol test mandated under new Section 1-25 of PCRIA does not require a "Garrity warning."

The Fourth Amendment

Under the Fourth Amendment, searches and seizures must be "reasonable." City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). Typically, a search or seizure is unreasonable "in the absence of individualized suspicion of wrongdoing." Id. However, the U.S. Supreme Court has upheld certain regimes of suspicionless searches where the program was designed to serve special needs, beyond the normal need for law enforcement. "A 'program' or 'general scheme' of searches qualifies for treatment under the "special needs" doctrine only if the program's 'primary purpose' is not a 'general interest in crime control.'" Lynch v. City of New York, 589 F.3d 94, 100 (2nd Cir. 2009) (emphasis in original). Federal courts have applied the "special needs" doctrine in upholding the reasonableness of warrantless blood, breath and urine testing of government employees in various sensitive positions or positions of great trust. See Skinner v. Railway Labor Executives' Association, 489 U.S. 602, 621 (1989) (mandatory blood, breath and urine alcohol and drug testing of railroad employees who are involved in major train accidents or incidents or violate certain safety rules); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 666, 670-71 (1989) (mandatory urine drug testing of U.S. Customs Service 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"); Lynch, 589 F.3d at 101-102 (mandatory alcohol breathalyzer testing of New York Police Department (NYPD) police officers who fire their weapon causing injury or death). In Lynch, the court determined that the primary purposes of the NYPD's policy requiring alcohol breathalyzer testing of officers involved in shootings was not a "general interest in crime control," but rather: 1) "a substantial interest in detecting and disciplining officers who violate" its "regulations involving alcohol and firearms [that] are vital to public safety[;]" 2) "a substantial interest in deterring its officers from using their firearms when intoxicated[;]" and 3) "an important governmental interest" in improving the NYPD's public reputation. Lynch, 589 F.3d at 104.

Since the favorable Lynch ruling is not binding on state and federal courts in Illinois, it remains to be seen whether those courts would view the testing mandated under the new Illinois law similarly to the testing mandated under the NYPD policy. Yet, it does not strain credulity to imagine those courts determining that the primary purposes of Section 1-25 are those same "special governmental needs" articulated above in Lynch – and not crime control – and finding the "special needs" doctrine applicable to Section 1-25's new testing requirement, thus negating a need for a warrant. However, because those courts have not yet issued such a ruling, the most legally prudent route for a law enforcement agency would be to obtain a warrant for all testing mandated under Section 1-25, especially considering the minimal burden it would require given the infrequency at which these incidents happen.

While Section 1-25 does not direct whether a breath, blood or urine test should be used, law enforcement agencies expose themselves to greater liability taking blood and urine tests without a warrant than they do with warrantless breathalyzer tests.2 As such, a law enforcement agency should select its method of testing carefully.

Holland & Knight attorneys will continue to monitor Illinois and federal court decisions interpreting this new statute or involving the "special needs" doctrine in search of further clarification regarding any warrant requirement for testing administered pursuant to Section 1-25. Holland & Knight will issue updates as warranted.

Footnotes

1 See 50 ILCS 727/1-25

2 See Birchfield v. North Dakota, 136 S.Ct. 2160, 2176-78, 2184-85 (2016); North Dakota v. Helm, 2017 ND 207, No. 20170036 (Aug. 29, 2017); State v. Thompson, 886 N.W.2d 224, 230-33 (Minn. 2016), cert. denied, 137 S.Ct. 1338 (2017).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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