Opinion
CRIMINAL ACTION NO. 03-137 SECTION "C"
March 8, 2004
ORDER AND REASONS
The Defendant filed a Motion to Suppress Drag Test and/or 403 Motion to Exclude Drag Test on February 19, 2004. The Government filed an opposition on March 1, 2004. Oral argument was heard on March 3, 2004. A jury trial is set for March 15, 2004.
After a thorough review of the law, the record, the Motion, and the memoranda filed in support of and in opposition thereto, the Defendant's Motion to Suppress Drag Test and/or 403 Motion to Exclude Drag Test is DENIED.
BACKGROUND
The Defendant has been indicted by the Government for violating 18 U.S.C. § 1115, colloquially referred to as the seaman's manslaughter statute. Before the occurrence of the allegedly criminal activity for which the Government now seeks to indict the Defendant, he was employed as a tugboat pilot. The Government alleges that, as a result of the Defendant's cocaine induced impairment, he negligently operated a vessel in navigation, the tugboat M/V AMY ANN, causing the tugboat to sink and thereby causing the death of Gale Imboden.
After the incident, the Defendant's employer requested the hospital where O'Keefe was taken to run a urine test to determine whether drugs or alcohol were involved in the incident, as required by 46 C.F.R. § 4.06-1. Although the test was not mandatory, failure to undergo the test could result in suspension of the Defendants' license to operate the tugboat. 46 C.F.R. § 4.06-5. The Defendant acquiesced to the request and gave a urine sample at the St. Charles General Hospital. Upon testing, the urine was found to contain Cocaine Metabolites, a byproduct of the body's use of cocaine.
Shortly after the incident, the Defendant's employer, also owner and operator of the tugboat the M/V AMY ANN, filed a petition for limitation of liability in the Eastern District of Louisiana. In re LL Marine Transp. Co., 01-cv-775. The Defendant answered the petition and brought a claim for damages against his employer on his own behalf and on behalf of the minor children of Gale Imboden. The Defendant's employer denied liability and asserted a claim counterclaim against the Defendant. During the course of the litigation, the Defendant's employer used the results of the urine test to allege that the Defendant was the culpable party liable for the death of Gale Imboden. The litigation terminated on February 28, 2002 after the Defendant's employer settled with the minor children of Gale Imboden and successfully moved for summary judgment against the Defendant.
As a result of the civil litigation, the Government became aware of the results of the urine test. On May 3, 2003, the Government indicted the Defendant for violating the seaman's manslaughter statute. After several continuances of the trial, the Defendant objects to the use of the urine test because, as he argues, it was taken in violation of the Fourth Amendment and its use at trial would be overly prejudicial in violation of Rule 403 of the Federal Rules of Evidence.
FOURTH AMENDMENT
The Defendant has asserted that the urine test was taken in violation of the Fourth Amendment. The Fourth Amendment prevents a government actor from conducting unreasonable searches and seizures. Normally, this prohibition prevents a government actor from seizing a person or his property without a warrant supported by probable cause. However, this warrant requirement created by the Fourth Amendment is subject to many judicially created exceptions. Courts have recognized that, in some cases, a search or seizure may still be constitutionally valid even where a warrant has not been obtained or probable cause does not exist.In this case, because a warrant was not obtained, the burden is on the Government to prove that the search was done in compliance with the Fourth Amendment's prohibition against unreasonable searches and seizures.
Both parties agree that under the circumstances here St. Charles Parish Hospital was a government actor, to whom the Fourth Amendment applies. The Government does not argue that the test was taken strictly voluntarily. Likewise, the Government does not argue that individualized probable cause that the Defendant committed a crime existed and the likelihood that evidence of that crime would be destroyed necessitated the urine test. Instead, the government argues that the exception to the Fourth Amendment's warrant requirement created by Skinner v. Railway Labor Executives' Assn. applies and, accordingly, (he urine test was not an unreasonable search and seizure. Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 (1989).
In Skinner, the United States Supreme Court recognized that, in some cases, a search or seizure of a person or his property may be justified, even when individualized suspicion or a warrant is not present, if the legitimate non-law enforcement interests of the government outweigh the liberty interests of the individual in being free from unreasonable searches and seizures. In Skinner, plaintiffs, employees of the defendant Federal Railway Labor Executives' Association, brought suit to enjoin the enforcement of a "Post Accident Toxicological Testing" regulation promulgated by the Federal Railroad Administration. Plaintiffs argued that the regulation violated their Fourth Amendment rights. The regulation mandated that, following railway accidents, railroads must take all practicable steps to assure that the railway employees involved in the accident provide blood and urine samples for toxicological testing for the Federal Railroad Administration. The purpose of the regulation was to ensure the safety of the railway employees and travelers against the dangers created by railway employees working under the influence of alcohol or narcotics.
The Court reasoned that the Government's interest in safety outweighed the privacy interests of the railway employees who were both aware of the requirements set forth in the regulations and were working in an occupation where the risk of property damage or personal injury is very high if employees operate under the influence of alcohol or narcotics. The Court found that the regulation did not authorize unreasonable searches and seizures and therefore did not violate the Fourth Amendment.
46 C.F.R. § 4.06-1 in this case is analogous to the railroad requirements. It requires a marine employer, after an accident involving serious marine incident, to take all practicable steps to have each individual engaged or employed on board the vessel who is directly involved in the incident chemically tested for evidence of drug or alcohol abuse. 46 C.F.R. § 4.06-1. A serious marine incident includes a total loss of a vessel or the death of an individual. 46 C.F.R. § 4.03-2. A chemical test is a scientifically recognized test which analyzes an individual's breath, blood, urine, saliva, bodily fluids, or tissues for evidence of dangerous drug or alcohol use. 46 C.F.R. § 4.03-7. When directed to do so by a marine employer or a law enforcement officer, an employee must provide a urine specimen as required above. 46 C.F.R. § 4.06-5. A refusal would likely result in a suspension of the employee's piloting license. 46 C.F.R. § 4.06-60.
The purpose of this requirement is to ensure the safety and proper investigation of maritime death. Transportation Institute v. United States Coast Guard, 727 F. Supp. 648, 654 (D.D.C. 1989). This is evident by viewing the federal regulations governing maritime drug testing as a whole as well as the post-search procedures outlined in the federal regulations.
The Code of Federal Regulations requires maritime employers to regularly test their employees for drug or alcohol abuse. The maritime employer must test employees not just after a serious marine incident but also before he hires the employee, at set periodic times during the employee's employment, when he reasonably suspects drug use, and randomly. All of these requirements are designed solely to prevent and investigate serious marine accidents, collisions, and all is ions.
The post urine test procedures are specifically designed to remove dangerous individuals from the water by suspending or revoking the license of a person who fails an urine test. After a positive urine test is performed, the employer is required to appoint a medical review officer to determine whether the individual is drug free and may return to work. 46 C.F.R. § 16.350(b). Regardless of the Medical Review Officer's findings, the employer must report the Coast Guard, the body responsible for licensing maritime pilots and investigating serious marine incidents, among other things. 46 C.F.R. § 16.370. If the Coast Guard issues formal charges against the employee, the employee may, depending on certain circumstances, voluntarily deposit his license, voluntarily surrender his license, or contest the charges. 46 C.F.R. § 5.203; 46 C.F.R. § 5.201(d); 46 C.F.R. § 5.5. At any rate, it is clear that the Coast Guard is little interested in the criminal prosecution of the employee, only in eliminating unsafe pilots from the waterways by suspending or revoking their licenses. 46 C.F.R. § 5.5. Therefore, the initial search was appropriate.
The Defendant next suggests that, because the Government did not have a Court order allowing the Government to use the results of the test in a criminal prosecution, it should not be allowed to use the evidence. The Defendant relies on 49 C.F.R. § 40.323. This particular regulation requires judicial authorization for an employer to release the results of a drug test in a criminal prosecution. To the extent it may be applicable, this Court now authorizes its use in this criminal proceeding. Another regulation which appears even more applicable, 46 C.F.R. § 4.23-1, allows and, in fact, requires employers to turn over evidence of a positive drug test to the United States Attorney without any judicial authorization. Finally, it would appear that judicial authorization may not be necessary at all since the test result was obtained through the public record of the civil proceeding.
The Defendant last suggests that the urine test was taken in violation of the Fourth Amendment because the test was not taken properly. The Government has produced evidence to suggest that the test was performed properly. The Defendant has produced no evidence that suggests otherwise. Even assuming that the manner in which the test was conducted could affect its admissibility vel non, there is no basis in the record for the facts Defendant alleges underlie his argument. Accordingly, this argument is likewise without merit.
RULE 403 OF THE FEDERAL RULES OF EVIDENCE
Defendants' last argument is that the introduction of a positive urine test for cocaine taken after the accident will unfairly prejudice the Defendant because he contends the science does not support any inference of actual impairment based on the evidence. The Court finds this argument goes to the weight of the evidence, not its admissibility.
CONCLUSION
Accordingly, the Defendant's Motion to Suppress Drug Test and/or 403 Motion to Exclude Drug Test is DENIED.