                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON


RUDY HOLMES,                            )
                                        )                                 FILED
             Plaintiff/Appellant,       ) Shelby Circuit No. 52789 T.D.
                                        )                               February 23, 1998
VS.                                     ) Appeal No. 02A01-9706-CV-00115
                                        )                               Cecil Crowson, Jr.
SHERIFF JACK OWENS, et al,              )                               Appellate C ourt Clerk
                                        )
             Defendants/Appellees.      )


            APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                        AT MEMPHIS, TENNESSEE
              THE HONORABLE JAMES E. SWEARENGEN, JUDGE




ALAN BRYANT CHAMBERS
Memphis, Tennessee
Attorney for Appellant



BRIAN L. KUHN
Memphis, Tennessee
Attorney for Appellees




AFFIRMED




                                                            ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.
    This is an appeal from a decision of the Circuit Court at Shelby County, Tennessee,
to sustain a discharge of Plaintiff, Rudy Holmes (“Deputy Holmes”), affirmed by the Shelby

County Civil Service Merit Board, taken pursuant to the Shelby County Civil Service Merit

Act. For reasons stated hereinafter, we affirm the judgment of the trial court.



                              Facts and Procedural History

       Deputy Holmes is a former deputy sheriff with the Shelby County Sheriff’s

Department working in the Metro Narcotic Unit.        As such, he was authorized to make

undercover buys as a Metro Narcotics officer. Deputies in the Metro Narcotics units,

including Deputy Holmes, were directed by policy never to taste drugs in the process of an

undercover buy. Deputy Holmes did taste the drugs in violation of Sheriff’s Department

policy. In fact, Deputy Holmes tasted 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 search was

organized on May 4, 1989. As a part of the search, a drug screening 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, 1989. On May 15, 1989, Officer

Holmes appealed this discharge to the Shelby County Civil Service Merit Board. On

November 16, 1989, the Civil Service Board conducted a hearing, and on December 8,

1989, published a decision affirming Deputy Holmes’ discharge.



       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 decision of the

Civil Service Board was predicated upon evidence obtained contrary to the Fourth

Amendment of the Constitution of the United States and Art. 1 § 7 of the Constitution of

Tennessee. Defendants/Appellees,         Sheriff Jack Owens, the Shelby County Sheriff’s

Department, and the Civil Service Merit Board of Shelby County, Tennessee (“Appellees”),

filed an answer on February 27, 1990, denying the violations of Deputy Holmes’



                                              2
constitutional rights and contending that the evidence was sufficient to justify the actions

taken. This cause of action was initially filed on February 14, 1990, in the Chancery Court

of Shelby County, Tennessee. The matter, however, was transferred to the Circuit Court

and heard on April 24, 1995. At the conclusion of the hearing, the court affirmed the

decision of the Civil Service Board and dismissed the petition for certiorari. The court,

however, reserved the decision of whether or not there was 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 provision. The court further requested the parties to issue

supplemental briefs on the issue. Appellees filed their supplemental memorandum on this

issue on May 12, 1995. Deputy Holmes did not file a response until August 17, 1995,

wherein he agreed to a partial judgment filed in this matter on November 9, 1995.



       On January 25, 1996, the trial court issued a letter stating that it found that there

was a violation of Deputy Holmes rights under the Constitution of Tennessee. The trial

court did not hold that this violation would give rise to a 42 U.S.C. § 1983 claim. The trial

court requested that counsel for Deputy Holmes draft an order reflecting this decision.

Instead of drafting such an order, Deputy Holmes filed a motion for a new trial, to alter or

amend the judgment, and for reconsideration of the court’s decision. This was filed on

February 22, 1996. This motion was argued an April 19, 1996, at the conclusion of which

the trial court requested a supplemental memorandum be filed on whether there was any

authority for the trial court to subtract evidence from the hearing held before the Civil

Service Merit Board. On November 15, 1996, Deputy Holmes filed what was styled

“Appellant’s Motion for Ruling, Findings of Fact, and Conclusions of Law.” This motion

beseeched the trial court to return to the decision of the court that was made some two and

a half years earlier on April 24, 1995 (entered November 9, 1995), in order to get the court

to reverse its decision affirming the Civil Service Merit Board’s actions. The argument on

this motion was heard on March 7, 1997. The trial court again sustained 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 rights under Article 1 §

7, that Deputy Holmes had not sustained any violations of his federal constitutional or



                                             3
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 violations. This appeal ensued.



       On appeal, the sole issue before this court is whether this court should apply the

exclusionary rule to evidence used in a Civil Service Merit Board hearing concerning the

discharge of a deputy sheriff.



                                    Law and Discussion

       Common law writ of certiorari is provided 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 inferior tribunal, board, or officer exercising judicial
       functions has exceeded the jurisdiction conferred, or is acting illegally, when,
       in the judgment of the court, there is no other plain, speedy, or adequate
       remedy.



       Review under the common law writ is limited to whether the “inferior board or

tribunal (1) has exceeded its jurisdiction, or (2) has acted illegally, arbitrarily, or

fraudulently.” McCallen v. City of Memphis, 786 S.W.2d 633, 638 (Tenn. 1990)(quoting

Hoover Motor Exp. Co. v. Railroad and Public Utilities Commission, 195 Tenn. 593, 604,

261 S.W.2d 233, 238 (Tenn 1953)). This Court’s primary resolve 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 invalidated only if it constitutes an abuse of discretion. If any

possible reason exists to justify the action, such action should be upheld. Both legislative

and administrative decisions are presumed to be valid and a heavy burden of proof rests

upon the shoulders of the party who challenges the action. An invalidation of the action

of an “inferior tribunal, board, 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:

       That the people shall be secure in their persons, houses, papers and
       possessions, from unreasonable searches and seizures; and that general
       warrants, whereby an officer may be commanded to search suspected
       places, without evidence of the fact committed, or to seize any person or

                                               4
       persons not named, whose offences are not particularly described and
       supported by evidence, are dangerous to liberty and ought not to be granted.


       Deputy Holmes has failed to cite us to, and we fail to find, one case in Tennessee

dealing with whether the exclusionary rule applies to proceedings which are purely civil in

nature. Authority on this issue is scarce in Tennessee. Deputy Holmes does cite us to

Basden v. Lawson, No. 01-A-019111CH00435, 1992 WL 58501 (Tenn. Ct. App. March 27,

1992). Basden, however, dealt with application of the exclusionary rule in a civil setting

involving a confiscation or forfeiture which is a penalty for criminal proceedings. The case

under submission is purely civil in nature, and, as such, is distinguishable from Basden.

Because of the lack of direction yielded by Tennessee authorities, we turn our examination

to seek guidance elsewhere.



       The United States Supreme Court has considered the issue 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 illegally seized by

state narcotic agents could be used as evidence in a federal tax proceeding. The

applicability of Janis was later expanded by Immigration and Naturalization Service v.

Lopez-Mendoza, 468 U.S. 1032, 104 S. Ct. 3479, 82 L. Ed. 2d 778 (1984). In Lopez-

Mendoza, the Supreme Court was faced with the question of whether evidence obtained

unlawfully by the Federal Immigration and Naturalization Service could be used by that

same agency in a civil deportation proceeding. In that case, the Court referred to its Janis

decision as setting forth a framework for deciding in what types of proceedings the

application of the exclusionary rule is appropriate. As the Lopez-Mendoza Court stated:

“The Court recognized in Janis that there is no choice but to weigh the likely social benefits

of excluding unlawfully seized evidence against the likely costs.”




       In the Federal court system, the leading case on whether it is a constitutional

violation to have law enforcement officers to undergo drug tests is National Treasury

Employees Union v. Von Raab, Commissioner, United States Custom Service, 489 U.S.


                                              5
656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989). In Von Raab, the United States Custom

Service had a program requiring a urinalysis test of service employees seeking transfer or

promotion to positions having a direct involvement with drug interdiction and/or requiring

the individuals to carry firearms or to deal with classified material. The employees union

filed a lawsuit stating that this program was an illegal search and seizure under the Fourth

Amendment to the United States Constitution and should not be permitted. The District

Court agreed and placed an injunction upon the program. The Court of Appeals vacated

the injunction, holding that, although the program effects a search within the meaning of

the Fourth Amendment , such searches are reasonable in light of their 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 analyzed for evidence of illegal drug use, the collection and

subsequent chemical analysis of such samples are searches that must meet the

reasonableness requirement of the Fourth Amendment. However, because the Service’s

testing program is not designed to serve ordinary needs of law enforcement -- i.e., the

purposes of the program are to deter drug use among those eligible for promotion to

sensitive positions and to prevent the promotion of drug users to those positions -- the

public interest in the program must be balanced against the individual’s privacy concerns

implicated by the tests to determine whether a warrant, probable cause, or some other

level of individualized suspicion is required in this particular context.



       In the case before us, it is readily evident that the Appellees have a compelling

interest in ensuring that front-line interdiction personnel such as Deputy Holmes are

physically fit, and have a high level of probity and judgment. The state’s interest in self-

protection could be hopelessly damaged if those authorized with safeguarding 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 positions directly

involving the interdiction of illegal drugs. Indeed, the almost unique duty of the Metro

Narcotics Unit gives the Appellees a compelling interest in ensuring that many of these

deputies do not use drugs even off duty, for such use creates risks of bribery and blackmail



                                              6
against which the Government of Tennessee is entitled to guard.               In light of the

extraordinary safety and security hazards that would attend the employment of deputies

with drug problems to positions that require direct involvement with controlled substances,

Appellees’ policy of deterring drug users in positions such as these cannot be deemed

unreasonable.



       Furthermore, public concern likewise demands effective measures to prevent the

promotion of drug users to positions that require the individual to carry a firearm. Narcotics

deputies, such as Deputy Holmes, who may use deadly force plainly 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 interests we must weigh the interference with

individual liberty that is a consequence of requiring these classes of employees to undergo

a urinalysis. As the Von Raab court noted:

       The interference with individual privacy that results from the collection of a
       urine sample for subsequent chemical analysis could be substantial in some
       circumstances. We have recognized, however, that the “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. While these operational realities will rarely
       affect an employee’s expectations of privacy with respect to searches of his
       person, or of personal effects that the employee may bring to the workplace,
       it is plain that certain forms of public employment may diminish privacy
       expectations even with respect to such personal searches. Employees of
       the United States Mint, for example, should expect to be subject to certain
       routine personal searches when they leave the workplace every day.
       Similarly, those who join our military or intelligence services may not only be
       required to give what in other contexts might be viewed as extraordinary
       assurances of trustworthiness and probity, but also may expect intrusive
       inquiries into their physical fitness for those special positions. We think
       Customs employees who are directly involved in the interdiction of illegal
       drugs or who are required to carry firearms in the line of duty likewise have
       a diminished expectation of privacy in respect to the intrusions occasioned
       by a urine test. Unlike most private citizens or government employees in
       general, employees involved in drug interdiction reasonably should expect
       effective inquiry into their fitness and probity.



       We note that counsel for Deputy Holmes argues that the Tennessee Constitution

Art. 1 § 7 provides greater protection than does the Fourth Amendment of the United

States Constitution. In both Art. 1 § 7 of the Tennessee Constitution and the Fourth


                                              7
Amendment of the United States Constitution, the reasonableness of the search is the

paramount consideration in determining the validity of that search. Deputy Holmes and his

counsel do not dispute, nor can there be any doubt, that drug abuse is one of the most

profound problems challenging our society today. We agree with the United States

Supreme Court in Von Raab and adopt the framework for deciding in what types of

proceedings the application of the exclusionary rule is germane as set forth in Janis and

Von Raab, supra. Indeed, we must balance the costs and benefits of excluding the

obtained evidence to determine the application of this exclusionary rule in different

contexts. In the case under submission, we must balance the Governmental and societal

interest in ensuring that front-line interdiction personnel, such as Deputy Holmes, are

physically fit and have unimpeachable integrity and judgment with 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

directly involved in the interdiction of illegal drugs or who are required to carry a firearm in

the line of duty have a diminished expectation of privacy concerning the intrusions

occasioned upon them via a urine test. Employees directly involved with drug interdiction

reasonably should expect effective inquiry into their fitness and probity.



       In sum, we believe the Appellees’ compelling interest in safeguarding society and

the public safety outweigh the privacy expectations of deputies who are directly involved

with the interdiction of illegal drugs or that require the deputy to carry a firearm. We hold

the testing of Deputy Holmes reasonable under Art. 1 § 7 of the Tennessee Constitution

and, therefore, find the exclusionary rule inappropriate in this particular context. There is

ample material evidence in the 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 appeal are taxed to Deputy

Holmes, for which execution may issue if necessary.



                                               8
                           HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




LILLARD, J.




                       9
