# FILED
February 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE WESTERN SECTION A T JACKSON RUDY HOLMES, ) ) Plaintiff/Appellant, ) Shelby Circuit No. 52789 T.D. ) VS. ) Appeal No . 02A01-9706-CV- 00115 ) SHERIFF JACK

OWENS, et al, ) ) Defendants/Appellees. )
APPEAL FROM

THE CIRCUI T COURT OF SH ELBY COUN TY AT MEMPHIS, TENNESSEE THE HONORABLE JAMES E. SWEARENGEN, JU DGE

ALAN BRYA

NT CHAMBERS Memphis, Tennessee Attorney for Appellant

BRIAN L. KUHN Memphis, Tennessee Attorney for Appellees

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . HOLLY KIRBY LI LLARD, J. This is an appeal from a decision of the Circuit Court at Shelby County , Tennessee,2

to sustain a discharge of Plai ntiff, Rudy Holmes (“Deputy

Holmes”), affirmed by the Shel by County Civil ServiceMerit Board, taken pursuant to the Shelby County Civil Service Merit Act. For reasons stated her einafter, we affirm the judgment of the trial court.

Facts and Procedural His tory Deputy Holmes is a form er deput y sheri ff with the Shelby County Sheriff’s Departmentworking in t h e Metro Narcotic Unit. As such, he was authorized to make undercover

buys as a Metro Narcotics officer. Deputie s in th e Metro Narcotics units, including Deputy Holmes, wer e directed by policy never to taste drugs in the pro cess of an undercover

buy. Deputy Holmes di d taste the drugs in vi olation o f Sheriff’s Department policy. In fact, Deputy Holmes tast ed cocaine in violation of said policy even in the Sheriff’s office and not on the streets. Sheriff Jack Owens decided to conduct a general search of the narcotics officers within the Shelby County Sheriff’s Department. A general sear ch was organized on May 4, 1989. As a part of thesearch, a drug screeni ng test was performed
on Deputy Holmes. The test resulted in a finding of large amounts of cocaine in his system. The standard of the lower limit of cocaine metabolite is 150 anigrams per mil. The level of cocaine found in Deputy Holmes system was 18, 000 anigrams per mil.
Deputy Holmes was discharged on May 12, 198 9 . On May 15, 1989, Officer Holmes appe aled this discharge to the She lby County Civ il Service Merit

Board. On No vember

16, 1989, the Civil Se rvice Boar d conducted a hearing, an d on Decemb er 8 , 1989, published a decision affirming Deputy Holmes’ dischar ge.

On February 1, 1990, Deputy Holmes filed a petition for statutory appeal and for the issuance of

writs of common law and statutory certiorari claiming that the decisi on of the Civil Servi ce Board was predicated upon ev idence obtained contrary t o the Fourth Amendment of the Constitution of the United St ates and Art. 1 § 7

of th e Constitution of Tennessee. Defendants/Appellees, Sheriff Jack O wens, th e Shelby County Sheriff’s Department, and the Civil Servi ce Merit Board of Shelby County, Tennessee (“Appellees”), filed an answer

on Februa ry 27, 1990, denying the violations of Deputy Holmes’3

constitutional rights and contending that the evidence was sufficie nt to justify the actions taken. This cause of action was initiall y filed on February 14,1990, in the Chancery Court of Shelby County, Tennessee. The matter, however, w as transferred to the

Circuit Court and h eard on April 2 4, 1995. At the conclusion of the hear ing, the court affirmed the decision of the Civil Servi ce Board and dismissed the petition for certiorari. The cour t, however, reserved the decisio n of whether or not there w as a claim under 42 U.S.C. § 1983 due to the allegations and/or proof of the Plaintiff that there was a violation of the Tennessee constitutional provi sion. The court further requ ested the parties to issue supplemental briefs

on the issue. Appellees filed their supplemental memorandum on this iss ue on May 12, 1995. Deputy Holmes did not file a response until Augus t 17, 1995, wherein he agreed to a par tial judgment filed in this matter on November 9, 1995.

On January 25, 1996, the trial court issued a letter st ati ng that it f ound that there
was a viol ation of Deputy H olmes rights under the Co nstitution of Tennessee. The trial court did not hold that this vi olation would giv e rise to a 42 U.S.C. § 1983 c laim. The trial court requested that counsel fo r Deputy H olme s d raft an order reflecting thi s decision. Instead of drafting such an order, De puty Holmes filed a motion for a new trial, to alter or amend the judgment, and for reconsider ation of the court’s decision. This wa s fi led on February22, 1996. This motion was ar gued an April 19, 1996, at the conclusion of which the trial court requeste

d a supplemental memorandum be filed on whether

there was any authority for the t rial co urt to subtract evidence from the hearing held before the Civil Service Merit Board. On Nov ember 15, 19 96, Depu ty Holmes filed what was styled “A ppellant’ s Motion for Ruling, Fi ndings of Fact, and Conclusi ons of Law.” This motion beseeched the trial court to return to the decision of the c ourt thatwas made some two and
a half years earlier on A pril 24, 1995(entered November 9, 1995) , in order to get the court to reverse its decision affirming the C ivil Service M erit Board’s actions. The a rgument on this motion was heard on March 7, 1997. The trial court again sus tained the decision of the Civil Service Merit Board, dismissed the petitions for certiorari, and ruled that Deputy Holmes had sustained a violation of his Tennessee constitutional r ights under Article 1 § 7, that Deputy Holmes had not s ustained any viol ations o f h is federal constitutional or4

statutory rights, and that Deputy Holmes did not have a 42 U.S.C. § 1983 cause of action under any Tennessee constitutional violations because of the lack of federal constitutional or federal statutory v

iolations. This appeal ensued.

On appeal, the sole issue before this cou rt is whether this c ourt should apply th e exclusionaryrule to evidence used in a Civ il Service Merit

Board hearing concerning the dischar ge of a de puty sh eriff.

Law and Discussion Common law writ of cer tiorari is provi ded for in T.C.A. § 27-8-101: The writ of certiorari

may be granted whenever authorized by law, and also in all cases where an i nferior tribunal, b o ard, or officer exercisi ng judicial functions has exceeded the jurisdi ction conferred, or is acting illegally, when, in the judgment of the court, th ere is no other plain, speedy, or ad equate remedy.

Review under the common law wr it is limited to whether the “ inferior board or tribunal (1) has exceeded its j urisdiction, or (2) has ac ted ill egally, arbitrar ily, or fraudulently.” McCallen v. City of Memphis , 786 S.W.2d 633, 638 (Tenn. 1990)(quoting Hoover Motor Exp. Co. v. Railroad and Public Uti lities Commi

ssion , 195 Tenn. 593, 604, 261 S.W.2d 233, 238 (Tenn 1953)). Th is C ourt’s primary reso lve is to refrain from substituting its judgment for that of the local governmental body. McCallen , 786 S.W.2d, at 641. An action should be inval idated only if it constitutes an abuse of discretion. If any possible reason exists to justify the action, such action should be uphel d. Both le gislative and administ rative decisions are presumed to be v alid and a heavy burden of proof rests upon the should ers of the party who challenges the action. An invali dation of the action of an “inferior tribunal, boar d, or officer

exercising judicial functions” should take place only when the decision is clearly illegal, arbitrary, or capricious.
Tennessee Constitution Article 1 Section 7 provides: T hat the people shall be secure i n their persons, houses, paper s an d possessions, from unreasonable searches and sei zures; and that general warrants, whereby an offic er m ay be commanded to search suspect ed p l aces, without evidence of the fact committed, or to seize any person or5

persons not named , whose offe nc es are not particularly described and supported by evidence, are dang erous to liberty and ought not t o be granted. Deputy Holmes ha s failed to cite us to, and we fail to find, one case in Tennessee dealing with whether the ex clusionary rule appl ies to proceedings which are purely civil in nature. Authority on this issue is sc ar ce in Tennessee. Deputy Hol mes does cite us to Basden v. Lawson , No. 01-A-019111CH00435, 1992 WL 58501 (Tenn. Ct. App. March 27, 1992). Basden , however, dealt w ith appli cation of the exclusionary rule in a civil s

etting involving a confiscation or forfeiture which is a penalty for criminal proceedings. The case under submission is pu rel y civil in nature, a nd, as such, is disting uishable fro m Basden

. Because of the lack ofdirection yielded by Tennessee authorities, we turn our examination to seek guidance elsew here.

The United St

ates Supreme

Court has considered the i ssue of the applicability of the exclusionary rule in a civil context. In United States v. Janis , 428 U.S. 433, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976), the Supreme Court held that evidence i llegally seiz ed by state narcotic agents could be used as evidence in a federal tax proceeding. The applicability

of Janis was later exp anded by Immigration and N aturalization Ser

vice v

. Lop ez-M end oza , 468 U.S. 1032, 104 S. Ct. 3479, 82 L. E d. 2d 778 (1984). In Lop ezMen doza , the Supreme Court was faced w ith the question of

whether evidence obtai ned unlawfullyby the Federal Immigra tion and Naturalization Service could be used by that
same agency in a

civil deportation proceeding. In that case, the Court referred to its Janis de cision as setting forth a framework for deciding in what types of proceedings th e application of the exclusionary r ule is appropriate. As

the Lopez-Mendoz

a Court stated: “The Court recognized in Janis that there is no choice but to weigh the lik ely social benefits of excluding unlawfully seized evidence against the likely costs.”

In the Federal c ou rt system, the leading case on whether it is a constitutional violation to hav e law e nforcement officers to undergo drug tests is National Treasury Employees Union v. Von R aab, Commissioner

, United States Custom Service , 489 U.S.6

656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 ( 1989). In Von Raab , the United States Custom Service had a program requiringa urinalysis test of s ervice employees seek ing transfer or promotion to positions havi ng a direct involv ement with drug interdiction and/or requiring the individuals to carr

y firearms or to dealwith classified materi al. The employees union filed a lawsuit stating that this program was an illegal search and seizure under the Four th Amendment to the United States Constitution an d should not be permitted. The District Court agreed and placed an injunctionupon the program. The Court of Appeal s vacated the injunction, holding th at, although the program effects a search within the meani ng of the Fourth Amendment , such searches are reasonable in light of thei r limited scope and the Service’s strong

interest in detecting

drug use among employees in covered positions. The United States Supreme Court held that where the Government requires its employees to produce urine samples to be anal yzed for evidence of il legal drug use, the col lection and subsequent

chemical analysi s of such samples are searches that must meet the reasonableness requirement of the Fourth Amendment. However, because the Service’s test ing program is not designed to serve ordinary needs of law enforcement -- i.e., th e purposes of th e program are to deter drug use among those eligible for promotio n to sensitive positions and to prevent the promotio n of drug users to those positions -- the public interest in the

program must be balanced agai nst the individual’s priv acy concerns imp licated by the tests to determine w hether a warrant, probabl e cause, or some othe r level of individuali zed suspicion is req uired in this particul ar context.

In the case before us, it is rea dily evident that the Appellees have a compelling interest in ensuring that front-l ine interdiction personnel such as Deputy

Holmes are physically

fit, and have a high level of probity and judgment. The state’s intere st in se lfprotection coul d b e hopelessly damaged if those authorized with safeg uarding it were, because of their own drug use, unsympathetic to their duty of interdicting narcotics. The public interest necessitates effective measures to bar drug users from p ositions directly involving the interdiction of

illegal drugs. Indeed, the almost unique duty of the Metro Narcotics Unit gives th e Appelle es a comp elling int erest in e nsuring th at many of the se deputies do not use drugs even off duty , for such use creates risks of bribery and blackmail7

against which the Go vernment of Tennessee is entitled to guard. In light of the extraordinarysafety and security haz ards that would attend t h e employment of deputies with drug problems to positio ns that require direct involvement with controlled substances, Appellees’ policy of deterri ng drug user s in positions such as thes e cannot be deemed unreasonable.
Furthermore, public c onc ern likewise demands effectiv e measures to prevent the promotion of drug users to positions that require the

individual to carry a firearm. Narcotics deputies, such as Deputy Holmes, w ho may use deadly force plai nly discharge responsibilities replete with such risks of injury to others that even a momentary lapse of attention can have horrendous ramifications.
Against these genuine public inter ests we must weig h the interfere nce with individual liberty that is a consequence of requiring these clas ses of employe es to undergo a urinalysis. As th e Von Raab court noted: The interference with individual privacy that results from the co lle ction of a urine sample for subsequent chemical analysis could be substantial

in some circumstances. We have recognized, however, that the “operational real ities of the w ork place” may render entir ely reasonable certain work-related i n trusionsby supervisors an d co-workers that mig ht be viewed as unreasonable in other contexts. While these operational realities will rarely affect an employee’s expectati ons of privacy with respect tosearches of his person, or of personal effects that the employ ee may bring to the w

orkplace, it is plain that certain forms of public employment may dimin ish pr ivacy expectations

even with respect t

o such person al sear ches. Employees of the United States Mint, for ex ample, should e xpect to be subject to certain routine personal searches when they leave the wo rkplace e very day. Similarly, those who join our militaryor intelligence ser vices may not only

be required to give what in other contexts might be viewed as e xt raordinary assurancesof trustworthiness a nd probity, b ut also ma y expect int rusive inquir i es into their physical fitness for those special positions. We think Cus toms e mployees who are directly involved in the interdiction of ill egal drugs or who are required to carry firearms in the line o f duty like wise have a diminished expectation of privacy in respect to theintrusions occasioned by a urine test. Unlike most private citizens or government employees in general, employees involved in drug interdict ion reasonably should expect effect ive inquiry in to their f itness an d probity.

We note that counsel for Deputy H olmes argues that the Tennessee Constitution Art. 1 § 7 provides greater protection than does

the F ourth Amendment of the United State s Constitution. In both Art. 1 § 7 of the Tennessee Constitution and the Fourth8

Amendment of the United States Co nsti tution, the reasonableness of the sea rch is the paramountconsideration in determining the valid ity of that search. Deputy Holmes and his counsel do not dispute, nor can t here be a ny doubt, that drug abuse is one of the most profound problems challenging our socie ty today. We agree with the United States S up reme Court in Von Raab and adopt the framework for decidi ng in what types of proceedings the applicati on of the exclusionary r ule is germane as

set forth in Janis and Von Raab , supra . Indeed, we must balance the c osts and benefits of excluding the obtained evidence t o dete rmine the application of this ex clusionary rule in different contexts. In the case under submission, we must balance the Gover nmental and societal interest in ensuring that front-line interdiction personnel, su ch as De puty Holmes, are physically

fit and have unimpeachable integ rity and judgment w ith the interference with an individual’s liberty interest in being free from unreasonable searches and seizures.

Like Von Raab , we think that sheriff deputies within the narcotics unit who are directlyinvolved in the int erdiction of illegal drugs or who are required to carry a firearm in the line of duty hav

e a d iminished expectation of pri vacy concerning the intrusions occasioned upon them via a urine test. Employees directly involved with drug interdiction reasonably should expec t effective inquiry i nto their fitness and probity

.
In sum, we believe the A ppellees’ compelling

interest in safeguarding society and the public safety outwei gh the privacy ex pectations of deputies who are directly invol

ved with the interdiction of illegal drugs or that requir

e the deputy to

carry a firearm. We hold the testing of Deputy Hol mes reasonable under Art. 1 § 7 o f the Tennessee Constitution and, therefore, find the exclusionary rule inappropriate in this particular context. There is ample material ev idence in th e record to conclude the drug testing was reasonable in purpose and scope. Also, there is no evidence that the Shelby County Civil Service Merit Board’s action in terminating Deputy Holmes was arbitrary or capricious.

The judgment of the trial court is affirmed. Costs of this app eal are taxed to Deputy Holmes, f or which exe cution m ay issue if necessar y.9 HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

LILLARD, J.