Editor’s Note: This week’s PoliceOne First Person essay is from PoliceOne Member Gary Deutschle, a 13-year veteran police officer in the northwest suburbs of Chicago, In PoliceOne “First Person” essays, our Members and Columnists candidly share their own unique view of the world. This is a platform from which individual officers can share their own personal insights on issues confronting cops today, as well as opinions, observations, and advice on living life behind the thin blue line. If you want to share your own perspective with other P1 Members, simply send us an email with your story.
By Gary Deutschle
Police1 Member
“The right to be let alone-the most comprehensive of rights and the right valued by civilized men”
— Supreme Court Justice Louis Brandelis in Olmstead v. United States, 1928.
“For nearly two centuries Americans have enjoyed freedom of press, speech, and assembly, due process of law, privacy, freedom of conscience, and other important rights — in their homes, churches, political forums, and social and cultural life. But Americans have not enjoyed these civil liberties in most companies, government agencies, and other organizations where they work. Once a U.S. citizen steps through the plant or office door at nine A.M., he or she is nearly rightless until five P.M., Monday through Friday”
— David W Ewing
What rights do employees and government employees have to be left alone in the workplace? Courts in the United States have interpreted the right to privacy as protecting employees from desk searches, computer searches, and vehicle searches in very limited circumstances. The Fourth Amendment of the U.S. Constitution is a basis of privacy rights, and the Illinois Constitution also contains an explicit right to privacy and expressly prohibits the interception of communications by eavesdropping devices or other means.1 Federal and State statutes protect an employee’s privacy rights. This article will discuss privacy rights of employees, with an emphasis on government employees, who are guaranteed some privacy rights by the constitution.
Employee Searches
Most employees feel a degree of personal privacy in their desks, lockers, or employer owned vehicles in the workplace. This might be a false expectation on the part of the employee, as this expectation of privacy has not been uniformly protected or recognized by court when the employee or their belongings are searched. The validity of a search can depend on who is searching, the police or the employer, who the employer is, government or private employer, and what is being searched, and for what purpose.
Private employers are not subject to the restrictions of the Fourth Amendment, and the employees of private employers do not enjoy the same Fourth Amendment protection a public employee does in the workplace. This being said, the Government may not search the premises of a private employer for criminal evidence without a warrant. If a private employee feels as if their private employer has searched them in an unreasonable manner, their remedy is to file a tort law case for Invasion of Privacy.
Public employees do enjoy some Fourth Amendment protections from their government employer. The courts will look at the search of a government employee and first ask if there was a reasonable expectation of privacy. The court will then ask if the search is reasonable under the circumstances. The Supreme Court has said there are “occupational necessities”2 of a public workplace.
In U.S. v. Blok, the District of Columbia circuit held that a government employee had a reasonable expectation of privacy in a desk containing personal property.3 The court stated the desk could not be searched for evidence to further a criminal investigation that was not job related.
Public v. Private Employer
The government’s right to search a workplace for a criminal investigation depends on whether the employer is public or private. In Mancusi v. DeForte the court held the government may not search the premises of a private employer for evidence to be used in a criminal investigation without a warrant.4
In Mancusi, the police searched the office of a union leader without a warrant and seized records that were later used in a criminal prosecution. The U.S. Supreme Court held this search violated the Fourth Amendment reasoning that Fourth Amendment protections extend to commercial premises and papers in the union leader’s office.
The results of a warrantless search are different if the government, especially a police department, is the employer and the search is for evidence of a criminal offense. In People v. Neal, the Illinois Supreme Court upheld a warrantless search of a police officer’s squad car and a hidden pouch under the car seat.5 The court reasoned that since the squad car was periodically searched the car without notice and the squad was subject to reassignment there was no reasonable expectation of privacy in a job related vehicle and equipment.
Courts have also upheld searches by government employers of a jail guard’s locker,6 a postal worker’s locker 7, a U.S. Mint employee’s locker8, a deputy sheriff’s locker9, a uniform jacket hung in a U.S. Customs office10, and a police officer’s desk and squad car.11
The seminal U.S. Supreme Court case addressing the question of when public agency employees have legitimate privacy interests in their work areas as well as the circumstances under which work place searches are reasonable was O’Conner v. Ortega12. This case is the foundation for a public employer’s ability to search without violating an employee’s Fourth Amendment rights to be free from unreasonable searches and seizures. The Court stated that work place searches and “the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.”13 The Court considered factors such as whether the work space is so open to the public or other employees that no expectation of privacy is reasonable, the context in which the search occurs, and the balance between employees’ legitimate expectation of privacy and the government’s need for supervision and control, as well as the efficient operation of the workplace14.
In O’Conner, the employer searched the employee’s desk and file cabinets and seized his private property without a warrant during the course of an investigation into suspected work-related misconduct. Although the Court found that Ortega, the employee, had a protected privacy interest in these areas, the Court held that due to the employer’s legitimate work-related purpose for the search, requiring the employer to develop probable cause and obtain a warrant would be unreasonable. In reaching this conclusion the Court held that the standard for such searches is reasonableness based on all of the underlying circumstances, rather than probable cause.
What do we learn from the O’Conner decision? “Individuals do not lose Fourth Amendment rights merely because they work for the government, instead of a private employer.”15 Public employees have a diminished expectation of privacy in the workplace. Warrants for searches are only required when the searches are not work related or are for criminal misconduct. O’Conner established an “operating realities” test for future courts to consider when public employees challenged searches during investigations. The Court will ask whether the search was justified at its inception; that is, whether the employer had a legitimate belief of employee misconduct, or whether the employer needed to retrieve a work-related file or report, and whether the search reasonably related to its objectives, and “not excessively intrusive in light of... the nature of the misconduct.”16
Public employers conducting a search based upon suspected employee misconduct must be able to articulate specific, objective facts that support the suspicion. The public employer must also limit their search to the areas where one can realistically expect to find evidence of the misconduct and must end one’s search once this evidence is recovered.
Because employees have a heightened expectation of privacy in purses or briefcases, to search the contents of such containers, employers should likely use the probable cause standard and obtain a search warrant unless the public employee consents to such a search.
In a more recent U.S. Supreme Court case, City of Ontario v. Quon17, the issue of the extent to which the right to privacy applies to electronic communications in a government workplace was addressed. In Quon, the City provided alphanumeric pagers to police officers on the SWAT team. After Sgt. Quon exceeded his allotted usage limit, the City acquired transcripts from the pager provider and discovered that Quon had used the pager for personal purposes and that some messages were sexually explicit. Quon and others in the department were disciplined for the conduct. Quon and those with whom he had exchanged messages sued claiming an unlawful search in violation of the Fourth amendment. The trial court found that officers had a reasonable expectation of privacy in the text messages, but that the search did not violate the Fourth amendment. The Ninth Circuit reversed, holding that the search was unreasonable as matter of law.
The U.S. Supreme Court reversed, holding that the search of Quon’s text messages was reasonable and did not violate the Fourth amendment. The search was motivated by a legitimate work-related purpose, and it was not excessive in scope. The Court assumed - without deciding — that Quon had a reasonable expectation of privacy, however the search had been reasonable under O’Connor. At its inception, the audit of text messages was legitimately work-related.
When searching a government employee’s person or body, courts have held that higher standards are needed for this type of intrusive search. These types of “pat down” or body cavity searches might be allowed under these higher standards. In Kirkpatrick v. City of Los Angeles18, two L.A. Police Officers arrested a suspect at a traffic crash and brought him to a hospital before taking him to jail. The arrestee accused the officers of stealing between $600 and $60. After the accusation was made, a supervisor searched the squad car, the officer’s pockets, wallets, and weapons belts-no evidence of wrongdoing was found (neither officer had more than five dollars on him). The arrestee then retracted his accusation-the officers were then taken to the Police Station and strip searched in a locker room by a shift supervisor. The court held that there was no reasonable suspicion to justify the searches. The searches violated constitution, however the city ultimately prevailed on the Qualified Immunity Doctrine. In McDonnell v. Hunter,19 the court held that a strip search of a prison employee was valid under a reasonable suspicion standard, that is the suspicion was articulable, particularized, and individualized based on specific, objective facts and rational inferences based on those facts.
In McKenna v. City of Philadelphia,20 a police officer was searched with a full body cavity search after returning to work from a work related injury. The Court held a Police Officer could only be subjected to a full body cavity search upon a clear indication he was carrying contraband in his body cavity-more than a reasonable suspicion standard would apply. The Court found the City did not even have reasonable suspicion to conduct such an intrusive search.
Can a government employer randomly search an employee’s car without reasonable suspicion or probable cause of misconduct simply because the employee’s privately owned vehicle is parked on government property? This is an issue that is not clearly resolved. There are a few cases that suggest without a legitimate work related reason or reasonable suspicion of misconduct, these type of searches might not be allowed. In McGann v. Northeast Illinois Regional Commuter Rail Road (Metra)21, Metra (Metra is a public transit agency) employees had their vehicles searched as they were leaving a fenced in Metra employee parking lot.
The parking lot had a sign posted that all vehicles were subject to search. Metra argued the employees consented to the search by parking in the lot with the sign and Metra did not offer a reasonableness argument to search the cars. The court held that a single sign was not enough to establish implied consent to search as a matter of law. In True v. State of Nebraska, a correctional officer for the state of Nebraska was randomly selected to have his vehicle searched in the employee parking lot. There was no suspicion he had violated any workplace rules. He refused to submit to the search and was ultimately fired. True filed suit for violation of his Fourth Amendment rights. The 8th Circuit remanded the case for further findings of fact on the question of if any inmates had access to the employee parking lot. The Court was stating that if any inmates had access to the lot, the search would be reasonable-the court did not directly indicate, but hinted that if no inmates had access to the employee parking lot, the search would not be reasonable.
Considerations for Government Employers
What can public employers do to comply with the law and still operate a safe and effective workplace? It is recommended that public employers establish and publish policies informing public employees that their work areas are subject to search. The policies should state clearly that there is no expectation of privacy for any property that is located on the workplace or used while in the course of the employee’s duties regardless of ownership. This property includes electronic communications devices, computers and/or audio or visual recording devices.
Public employers should provide employees with a copy of the policy and train them to its intent. Government employers should establish a practice of inspecting governmental property on a random but regular basis by supervisory personnel. This will diminish any reasonable expectation of privacy
It is important to note that employers who conduct a search based upon suspected employee misconduct must be able to point to specific, objective facts that support this suspicion. They must also limit their search to areas where they can reasonably expect to find evidence of misconduct and must end their search once this evidence is recovered. Ensure that all searches of personal property are reasonable and based only on a legitimate business reason.
The courts have not specifically addressed when government employers may search employees’ purses, briefcases, or other personal bags during a misconduct investigation. Because employees have a heightened expectation of privacy in the contents of such containers, government employers should use the probable cause standard or obtain a search warrant unless the employee consents to such a search.
Before conducting a workplace search of employee lockers, offices, files, government vehicles, or other areas where employees might have a legitimate expectation of privacy, employers should ask whether the need for such a search outweighs employees’ privacy interests and if the search is related to an investigation into suspected employee misconduct and limited to those areas where the search may find evidence.
Even if an employee can assert a reasonable expectation of privacy, a public employer can meet the burden of showing the search’s reasonableness through a combination of factors. These include reasonable suspicion of misconduct, a lowered expectation of privacy because of accessibility, or a reliable coworker tip of misconduct.
About the Author
Gary Deutschle is a 13-year veteran police officer in the northwest suburbs of Chicago. He also has worked as a police officer in Minneapolis and Farmington, Minnesota. He is currently in his 3rd year of law school at Northern Illinois University in DeKalb, Illinois.
1 Illinois Constitution, Article I, §§ 6, 12
2 O’Conner v Ortega, 480 U.S. 709 (1987).
3 U.S. v Blok, 188 F2d 1019 (DC Cir 1951).
4 Mancusi v DeForte, 392 US 364 (1968).
5 People v Neal, 109 Ill 2d 216 (1985).
6 People v Tidwell, 133 Ill App 2d 1 (1971).
7 U.S. v Bunkers, 521 F2d 1217 (9th Cir 1975).
8 U.S. v Donato, 379 F2d 288 (3rd Cir 1967).
9 Schaffer v Field, 339 F Supp 997 (CD Cal 1972).
10 U.S. v Collins, 349 F2d 863 (2d Cir 1965).
11 Shields v Burge, 874 F2d 1201 (7th Cir 1989).
12 O’Conner v Ortega, 480 U.S. 709 (1987).
13 Id. at 709.
14 Id. at 717.
15 Id. at 717.
16 Id. at 726, citing New Jersey v. T.L.O., 469 U.S. 325 (1985).
17 City of Ontario v. Quon, 560 U.S. ____ (2010).
18 Kirkpatrick v. City of Los Angeles, 803 F. 2d 485 (9th Cir. 1986).
19 Mc Donnell v. Hunter, 809 F.2d 1302 (8th Cir. 1987).
20 McKenna v. City of Philadelphia, 771 F. Supp. 124 (E.D. Pa. 1991).
21 McGann v. Northeast Illinois Commuter Railroad Corp., 8 F.3d. 1174 (7th Cir. 1993).
