                                                                  NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 15-3502
                                         ___________

                                 SALAHUDDIN F. SMART,
                                        Appellant

                                               v.

                      INTENSIVE SUPERVISION PROGRAM;
                     SHIRLEY LENNON, Regional Supervisor;
                            CRAIG FOX, ISP Officer;
           ISP SOUTHERN REGIONAL OFFICE, Intensive Supervision, Manager
                     ____________________________________

                       On Appeal from the United States District Court
                                for the District of New Jersey
                               (D.C. Civil No. 1:14-cv-02302)
                        District Judge: Honorable Robert B. Kugler
                        ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      June 1, 2016
            Before: JORDAN, BARRY and VAN ANTWERPEN, Circuit Judges

                                 (Opinion filed: June 6, 2016)
                                        ___________

                                          OPINION*
                                         ___________

PER CURIAM

         Salahuddin F. Smart appeals the District Court’s order granting summary

judgment in favor of Defendants. For the reasons that follow, we will affirm.


*
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
       Smart is a participant in the state of New Jersey’s Intensive Supervision Program

(“ISP”). The ISP was created by the New Jersey judiciary as a “post-incarceration

program of judicial intervention and diversion back into the community.” State v. S.R.,

811 A.2d 439, 443 (N.J. 2002). To that end, the ISP requires its participants to maintain

full-time employment, keep a twelve-hour curfew from 6:00 p.m. to 6:00 a.m., perform

community service, and submit to searches and regular tests for drugs or alcohol. See

State v. Stewart, 642 A.2d 942, 944 (N.J. 1994). At issue here is the ISP’s drug-testing

policy, which involves a direct observation method for obtaining urine samples for

urinalysis—that is, an ISP employee must observe “the voiding of urine directly from the

participant to the specimen jar.” ISP Policy on Urine Monitoring 1.

       After Smart was required to provide a urine sample under an ISP employee’s

direct observation, he filed suit under 42 U.S.C. § 1983, claiming that his Fourth

Amendment rights were violated. Specifically, Smart alleged that Defendant Fox ordered

him to provide a urine sample as Fox watched. Smart objected to Fox watching him

urinate, but Fox ordered Smart to remove his pants so that Fox could directly observe

him. Smart alleged that Defendant Fox thus humiliated him and subjected him to a “strip

search” in violation of his Fourth Amendment rights. Smart also named as Defendants

the ISP, the ISP Southern Regional Office, and Defendant Lennon, who is Fox’s manager

at the ISP, claiming that she was liable for failing to properly train Fox.1


constitute binding precedent.
1
  Smart also claimed that Defendant Lennon violated his right to access the courts by
failing to set a hearing date in a timely manner. The District Court dismissed that claim
on a separate motion, and Smart has not challenged that decision on appeal.
Accordingly, we will not address it here. See United States v. Pelullo, 399 F.3d 197, 222
                                              2
       The District Court granted summary judgment in favor of Defendants.2 It ruled

that the ISP and the ISP Southern Regional Office enjoyed Eleventh Amendment

immunity from Smart’s suit. Likewise, the Court ruled that Defendants Lennon and Fox

were immune from suit challenging actions taken in their official capacities. To the

extent Smart sued either Defendant in his or her individual capacities, the District Court

ruled that the ISP’s direct observation method complied with the Fourth Amendment.

       Smart appealed. We have jurisdiction under 28 U.S.C. § 1291 and exercise a

plenary standard of review. See State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C.,

566 F.3d 86, 89 (3d Cir. 2009). The key issue in this case—whether the ISP’s direct

observation method violated Smart’s Fourth Amendment rights—is one of law, over

which we exercise plenary review. See Wilcher v. City of Wilmington, 139 F.3d 366,

373 (3d Cir. 1998).

       The Fourth Amendment guarantees the “right of the people to be secure in their

persons . . . against unreasonable searches and seizures.” U.S. Const. amend. IV. State-

compelled collection and testing of urine constitutes a “search” that must comply with the

strictures of the Fourth Amendment. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646,

652 (1995). Law enforcement must typically obtain a warrant before executing a search

for the purpose of investigating criminal wrongdoing. Id. at 653. However, a warrantless

search can be constitutional where a special need—different from the need for criminal

investigation and traditional law enforcement—makes the warrant and probable-cause


(3d Cir. 2005) (“It is well settled that an appellant’s failure to identify or argue an issue in
his opening brief constitutes waiver of that issue on appeal.”).
2
  Smart also moved for summary judgment, which the District Court denied.
                                               3
requirements impracticable. Id. at 653. The Supreme Court has applied this “special

needs” doctrine to permit suspicionless searches involving the provision of urine samples,

where the purpose of the search extends beyond the investigation of a crime. Id.; see also

Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987) (concluding that a “State’s operation

of a probation system” implicates special needs).

       We conclude that, contrary to some conclusory allegations that Smart has made in

his reply brief, because Defendant Fox—an ISP officer—was unquestionably seeking to

ensure compliance with ISP mandates as set forth in the ISP Policy on Urine Monitoring,

the special-needs doctrine applies here. See Norris v. Premier Integrity Sols., Inc., 641

F.3d 695, 698 (6th Cir. 2011) (“The use of that [direct observation] method involves a

matter of judicial administration, not law enforcement.”). In these circumstances, a

search is constitutional if it meets a general test of “reasonableness.” See Wilcher, 139

F.3d at 374. In applying this standard, we must consider: (1) the nature of Smart’s

privacy interest; (2) the extent to which the search intrudes on that interest; and (3) the

nature of the governmental concern at issue and the efficacy of the means employed for

meeting that concern. Id.

       Smart—as a participant in the highly-regulated ISP—enjoys only a diminished

expectation of privacy for two related reasons. First, Smart’s participation in the ISP

itself reduced his expectation of privacy because the ISP requires its participants to

consent to its strict limitations, including limiting their right to travel, prohibiting their

use of drugs or alcohol, and requiring them to submit to searches of their persons and

residences. See Norris, 641 F.3d at 699 (so holding in similar circumstances); see also

                                                4
Samson v. California, 547 U.S. 843, 849 (2006) (“a condition of release can so diminish

or eliminate a released prisoner’s reasonable expectation of privacy that a suspicionless

search by a law enforcement officer would not offend the Fourth Amendment.”). Just as

firefighters had a reduced expectation of privacy because they worked in a highly

regulated field, Wilcher, 139 F.3d at 374-75, Smart’s participation in the highly

regulated, Government-controlled ISP reduced his expectation of privacy. Second, Smart

agreed to random testing for drugs and alcohol as a condition of participating in the

voluntary ISP; his broad consent also diminished his expectation of privacy. See United

States v. Knights, 534 U.S. 112, 119-120 (2001).

       We turn to the character of the search and to the extent to which it intruded on

Smart’s diminished privacy interest.3 We acknowledge that the direct observation

method of obtaining a urine sample is intrusive. See Norris, 641 F.3d at 699; see also

Wilcher, 139 F.3d at 376. Nevertheless, the Supreme Court has “repeatedly refused to

declare that only the ‘least intrusive’ search practicable can be reasonable under the

Fourth Amendment.” City of Ontario v. Quan, 560 U.S. 746, 763 (2010) (internal

quotation omitted).

       Meanwhile, the Government concern at issue—namely, preventing ISP

participants from cheating on drug tests—is significant. Wilcher, 139 F.3d at 377


3
  Smart argues that, because he was required to pull down his underwear, he was “strip
searched.” We need not determine whether the search at issue is more appropriately
characterized as a strip search as opposed to a search using the direct observation method
because, “however one describes the search, the balancing inquiry under the Fourth
Amendment remains the same.” Norris, 641 F.3d at 701; see also Safford Unified Sch.
Dist. No. 1 v. Redding, 557 U.S. 364, 374 (2009) (“The exact label for this final step in
the [search] is not important.”).
                                             5
(“Cheating is a significant concern.”). New Jersey has an interest in “integrating

probationers back into the community and combating recidivism,” Samson, 547 U.S. at

849, and, to that end, in drug testing and providing substance-abuse treatment, see

Administrative Office of the Courts, New Jersey Intensive Supervision Program, Progress

Report (2011); see also ISP Policy on Urine Monitoring (“The goals of ISP urine

monitoring are to ensure compliance with program mandates to remain drug and alcohol

free, to provide a level of safety to the community, and to identify participants who

require substance abuse treatment to successfully complete ISP.”). Given New Jersey’s

“interest in conducting the tests . . . in the first place, certainly the government has a valid

interest in ensuring that those tests produce valid and reliable results.” Norris, 641 F.3d

at 701 (quotation marks omitted).4 We have previously recognized that the direct-

observation method is effective in preventing individuals from cheating on urinalysis

tests, see Wilcher, 139 F.3d at 377, and, as the Defendants have explained, this method is

widely used (and is specifically prescribed by the American Probation and Parole

Association). Thus, we are satisfied that New Jersey has a compelling interest in the

direct-observation procedures.

       Balancing the relevant factors, as in Wilcher, we conclude that the direct

observation method was reasonable under the Fourth Amendment. Because Smart has



4
  Indeed, in accepting Smart into the ISP, the ISP Resentencing Panel imposed the special
condition that he obtain drug treatment. Smart was also required to attend an orientation
about defrauding the ISP during drug tests, which described the serious consequences of
cheating. And Smart signed an acknowledgment that cheating occurs by submitting urine
from a false source or possessing a gadget designed to defraud the administration of a
drug test.
                                               6
not established that his Fourth Amendment rights were violated, we will affirm the

judgment of the District Court awarding summary judgment to each Defendant.5




5
  Because the District Court correctly concluded that Smart’s Fourth Amendment claim
lacks merit, we need not determine whether the Defendants were also immune from suit.
                                           7
