The workplace privacy of law enforcement and public employees.

Privacy in the workplace is an area of increasing concern for law enforcement agencies and officers. On a daily basis, unexpected situations occur that often require the retrieval of materials from an employee's office, desk drawer, file cabinet, or locker. Law enforcement organizations and employees have a shared interest in not banning access to these areas if the items they contain are necessary for work. On the other hand, there may be items in these areas that, if discovered, may cause embarrassment or result in administrative or criminal action. This article addresses the prerogatives of management in conducting workplace searches and the privacy rights of employees who may become implicated in them.

Fourth Amendment Considerations

The concept of privacy in the workplace is complex. The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated." Under the Fourth Amendment, a search must include two factors. First, it must involve a government action as opposed to a private action. Second, it must intrude upon an area that has a reasonable expectation of privacy.(1) In this article, the first factor is assumed because the government is conducting the search. The second factor, whether employees have a reasonable expectation of privacy in the workplace area searched, is the focus of this article.

If employees have no reasonable expectation of privacy in their offices, desks, files, lockers, or cruisers, intrusions into these areas would constitute searches under the Fourth Amendment. Conversely, if an employee does have a reasonable expectation of privacy in such areas, the extent to which the government may intrude on this constitutionally protected privacy interest is determined by whether the search itself is reasonable in both its inception and in its scope. This holds true whether the intrusion is for noninvestigatory, work-related reasons or for investigations of work-related misconduct. As a general rule, intrusions that are reasonably employment-related do not require warrants to be considered reasonable under the Fourth Amendment and are evaluated on a case-by-case basis.

Warrantless Administrative Searches

Police officers are not, by virtue of their employment, deprived' of the protection of the Constitution. The Supreme Court has ruled that police "are not relegated to a watered-down version of constitutional rights."(2) However, in O'Conner v. Ortega,(3) the Supreme Court decided that the very nature of a public employee's position allows some intrusions into privacy that would not otherwise be tolerated by the Fourth Amendment.

The reality is that the facilities of a government agency typically are shared by many and leave little space for privacy. Employees usually work in buildings and use equipment owned by the government as opposed to being privately owned. Also, the invasion of a public employee's expectation of privacy must be balanced against the government's need for super-vision and control. Additional considerations must involve the efficient operation of the workplace, including the issue of employee integrity.

In Ortega, a state hospital physician came under scrutiny due to possible improprieties in the management of a training program and was placed on administrative leave. During the ensuing investigation, hospital officials searched his office. Personal items seized from his desk and file cabinets were used in administrative proceedings that resulted in his discharge. The hospital claimed that the search was carried out pursuant to its policy of conducting a routine inventory of a terminated employee's office in order to secure state property. However, at the time of the search, the physician had not been terminated. He contended that the purpose of the search was to secure evidence against him. He subsequently brought a suit against the hospital, alleging the search was unreasonable and violated the Fourth Amendment.

The Supreme Court has identified certain factors, such as actual office practices or legitimate departmental regulations, that may reduce a public employee's expectation of privacy in an office, desk, or file cabinet. The boundaries of the workplace context include "those areas and items that are related to work and are generally within the employer's control."(4) Thus, the question of whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis in the context of the employment relationship.

In Ortega, the Court offered three examples of legitimate work-related reasons for employers to search employee work spaces: 1) The need to obtain correspondence or a file or report available only in an employee's office while the employee is away from the office; 2) the need to safeguard or identify state property or records in an office in connection with a pending investigation into suspected employee misfeasance; and 3) the need to conduct a routine inventory for the purpose of securing government property.

The Court noted that "not everything that passes through the confines of the business address can be considered part of the workplace context."(5) In fact, "the appropriate standard for a workplace search does not necessarily apply to a piece of closed personal luggage, a handbag, or briefcase that happens to be within the employer's business address."(6)

The Court concluded that "...requiring an employer to obtain a warrant whenever the employer wished to enter an employee's office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome."(7) Accordingly, the Court ruled that all an employer needs for a work-related intrusion to be deemed reasonable under the Fourth Amendment is a reasonable suspicion "that the search will turn up evidence that an employee is guilty of work-related misconduct or that the search is necessary for a noninvestigatory, work-related purpose, such as retrieving a needed file."(8)

Private Property in the Work Space

As a general rule, searches of employees' private property, such as purses, wallets, and personal mail, that is located in their work spaces are subject to full Fourth Amendment protection, requiring probable cause and a search warrant. However, there are exceptions. For example, in Gossmeyer v. McDonald,(9) the United States Court of Appeals for the Seventh Circuit found the warrantless search of privately owned property in the employee's work space reasonable under the Fourth Amendment.

Gossmeyer involved an anonymous tip that a state child protective investigator was concealing child pornography in her office. Law enforcement officers from three different agencies conducted a warrantless search of the investigator's office. The search included a file cabinet and a storage unit that the investigator had purchased at her own expense, to which she maintained the only keys. Officers found no pornography - only work-related evidentiary photographs. The investigator brought suit, claiming that her Fourth Amendment rights had been violated through an illegal search and seizure.

The court advised that the government was "dealing with an activity - child protection - and a setting - the government workplace - that supported the government's reasonable access for the purposes of assuring that all relevant rules and regulations were being followed."(10) The suspect investigator had unusual access to children and the extraordinary authority to take explicit photographs of them. The court advised that the anonymous tip showed sufficient reliability because the source identified herself as a co-worker, made serious and specific allegations that created a reasonable suspicion, and gave detailed information as to the location of the photographs. The court found that the search was justified at its inception because the government had a reasonable suspicion that the search would uncover evidence of an employee's misconduct.

The court also found that the search was reasonable in its scope, including the private property of the employee. The court noted that although the investigator had exclusive control over the storage unit and filing cabinet with lock and key, these items were used to store evidentiary photographs, files, documents, work-related sundries, and some personal items. The court noted that most of the contents were work-related items, and the investigator was the subject of a work-related investigation. The court found that these containers were not personal containers that just happened to be in the workplace; they were containers purchased primarily for the storage of work-related materials.

The court determined that there was no constitutionally protected privacy interest in the office, desk, storage unit, or filing cabinet because the items were part of the workplace, rather than part of the individual's personal domain. The court concluded that the warrantless workplace search was reasonable in scope and that the presence of outside law enforcement officials was required in order to determine whether any of the items found would constitute illegal pornography.

Administrative vs. Criminal Searches

In United States v. Taketa,(11) the United States Court of Appeals for the Ninth Circuit determined that when the focus of a workplace search for evidence turns into a criminal investigation, a warrant based on probable cause is necessary. Taketa involved the office of a Nevada Bureau of Investigations (NBI) officer. The office was located in the work space of a joint task force run by the DEA.

In Taketa, an internal affairs investigation was begun when a DEA agent reported to her superior that another DEA agent had shown her how to modify pen register equipment to record phone conversations in violation of federal law. based upon this information, forced entry was made into the NBI officer's office, where a pen register was operational. This entry supposedly was made under the authority of DEA regulations that require employees to maintain clean desks and allow for periodic inspections to ensure regulation compliance.

Evidence of the inappropriate use of the pen register was found in the form of a conversation tape made by an "intelligence kit" used for covert audio surveillance, which recorded a conversation while the search was being conducted. At that time, a video camera was installed in a position to film only the area of the office where the pen register and the covert recording equipment were located.

Two subsequent entries were made into the office to replace tapes in the surveillance camera after a warrant to search the office had been obtained. The warrant, however, was not executed until the fourth entry into the office. At this time, numerous personal and business items were taken belonging to the NBI officer and the DEA agent, who were subsequently convicted of conducting illegal wiretapping.

The Ninth Circuit Court of Appeals found no Fourth Amendment violation in the warrantless search of the private office. However, the court concluded that the admission into evidence of the warrantless videotape of both the state officer and DEA agent violated the Fourth Amendment. The court determined that the initial search of the office was governed by the reasonableness standard of the Fourth Amendment because the DEA was acting in the capacity of an "employer" investigating an allegation of employee misconduct. Although the NBI officer was not a DEA employee, he was a part of the "informal task force," and his office was "part of the workplace that was within the control of the DEA." Also, the office was the only location where a pen register could be operated within the workplace because the phone lines terminated there.

However, the two subsequent entries into the NBI officer's office to retrieve videotapes were found by the court to be a violation of the Fourth Amendment. The reasonableness standard no longer applied because the investigation had changed from one involving employee misconduct to one involving criminal conduct. The search warrant obtained prior to these entries clearly shows the change in the character of the investigation. Another factor was that an agent who was not part of the initial internal investigation was called in to uncover criminal conduct. Whenever the nature of an investigation turns from administrative to criminal-generally at the point probable cause is established - Fourth Amendment protections arise, and a warrant based on probable cause is necessary.

Electronic Communications

Today's office landscape is crowded with such technological advances as alphanumeric pagers, computers, and e-mail. It is crucial that departments acknowledge the privacy issues inherent in the daily use of such technologies. Under the Electronic Communications Privacy Act, which protects e-mail messages from interception and disclosure to third parties, three primary exceptions exist: 1) interception is allowed if one party either expressly or implicitly consents to the communication; 2) providers of electronic communications services may monitor the lines to ensure adequate service; and 3) interception may be done in the interceptor's ordinary course of business.(12)

In Bohach v. City of Reno,(13) a federal district court addressed privacy issues relating to an "alpha-page" system, which is similar to an e-mail system. Bohach involved a police department that had implemented a computer program that would allow the transmission of brief alphanumeric messages to pagers with visual display capability. The same computer system recorded and stored the messages. Two officers complained that their right to privacy and federal wiretapping statutes had been violated by the department's storage of certain "private" messages and sought an injunction to halt the investigation into their alleged misuse of the department's paging system.

The court found that the officers did not have a reasonable expectation of privacy in the use of the paging system. The department in this case had notified all of the users of the system that their messages would be "logged on the network" and that certain types of messages would be banned from the system, such as those violating the department's antidiscrimination policy. The system was set up so that anyone could access it. There was no password or clearance required. The court also noted that police departments often record all incoming and outgoing phone calls for various purposes and that pagers could be treated similarly. For these reasons, the court found that the officers should not have believed that they had a privacy interest in such communications.

In regard to the alleged federal wiretap statute violation, the court found that no "interception" had occurred because the messages were "electronic communications" instead of the "wire" or "oral communications" that would fall under the wiretap statutes.(14) Also, no actual "tapping" or "cloning" had occurred, merely the retrieval of stored messages by the "employer," who was also the "provider" of the service. The court explained that providers can do as they wish with respect to the access to messages stored on their systems. Thus, the federal statutes distinguish "interception" of an electronic communication at the time of transmission from the retrieval of communications after they have been stored electronically.(15)

Although employers generally may monitor officers' e-mail or computers where the department has provided the service or equipment, some factors may affect officers' reasonable expectations of privacy. For instance, if officers have private passwords or have been assured by the department that their e-mail or computers will not be monitored, officers may have reasonable expectations of privacy that are sufficient to impede the department's access.

Departmental Decisions and Privacy Expectations

The Supreme Court has given three examples of legitimate work-related reasons for employers to search employee work space: 1) The need for correspondence or a file or report available only in an employee's office while the employee is away from the office; 2) the need to safeguard or identify state property or records in an office in connection with a pending investigation into suspected employee misfeasance; and 3) a routine inventory conducted for the purpose of securing government property. Otherwise, a search may be based on departmental regulations or policies that provide notice to officers that their work space is subject to search without prior notice or other work-related justification.

If there is no clear policy, then the department may need a reasonable suspicion that officer misconduct exists in order to allow a warrantless administrative search. A policy alone may not be sufficient if the department has not put the policy into practice through periodic inspections. A lack of inspections may create a reasonable expectation of privacy for the employee in the work space that otherwise would not have existed.

A department may dispel expectations of privacy if it maintains open work spaces, offices without doors, or doors with duplicate keys. Personal items such as purses, briefcases, or coats in such spaces may not be included in the definition of work space and would likely require a warrant to search except in cases involving exigent circumstances.(16)

A specific monitoring policy should be enacted in regard to cell phones, pagers, e-mail, and computers. For computers, notice of inspection and monitoring may be included on the screen as a user logs on to the system. Departments should install superseding passwords allowing management access to "private" files despite any private passwords installed by officers.

Conclusion

As police departments strive to keep pace with the tremendous advancements in technology and electronic communications, they also must keep abreast of the privacy issues these advancements may present. Employers should adopt formal workplace privacy policies and provide employees with clear guidelines regarding what they, and others, are authorized to do with any work product or equipment used in the department. These policies should consider all aspects of the workplace from the desk drawer to e-mail to the police cruiser.

Endnotes

1 Katz v. U.S., 389 U.S. 347 (1967).

2 "Garrity v. New Jersey, 87 S. Ct. 616, 620 (1967).

3 107 S. Ct. 1492 (1987).

4 Id. at 715-716.

5 Id. at 716.

6 Id.

7 Id. at 722.

8 Id.

9 128 F.3d 481 (7th Cir. 1997).

10 Id. at 493.

11 923 F.2d 665 (9th Cir. 1991).

12 18 U.S.C.A. Sec. 2511.

13 932 F.Supp. 1232 (D. Nev. 1996).

14 Id. at Sec. 2510 (1,2,12,18).

15 Id. at Sec. 2701(c)(1).

16 Id. 3. at 716.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

Special Agent Michael J. Bulzomi is a legal instructor at the FBI Academy.