Law & Order, the ever present drama on some cable channel 24/7, returns again and again to milk the matter of searches for a story. The show teaches us all about such things as obtaining a warrant; "probable cause" for a warrantless search; and how even bad guys get off if the search is improper. Federal employees with things to hide or who have issues with authority shouldn’t take much comfort from the show when it comes to searches on the job.
Gnarly Jack McCoy and his always stunning co-counsels on Law & Order regularly go to the fourth amendment of the constitution which protects citizens against a search of their private property without a warrant or without proper consent unless "probable cause" exists to believe a crime has been committed. Since a government search of private property is unreasonable and unconstitutional under the Fourth Amendment without a warrant or proper consent, a couple of questions are important. First, is an employee’s workplace in any way private property; and second, can an Agency ever search an employee’s workplace without a warrant?
Is a Federal employee’s workplace in any way private property?
The Supreme Court has found that employees who enjoyed a reasonable expectation of privacy in their work areas may be protected from warrantless searches. However, according to a case titled O’Connor v. Ortega, the degree to which an Agency exercises control over its space lowers an employee’s expectation of privacy and limits the resulting right to privacy. So. simply, the answer is that since the property belongs to Uncle Sam, employees’ expectation of privacy depends on the Agency’s notice to them concerning how its space and other property may be used or examined. In other words, if the Agency says it can look in desks, files, computer data, etc., the employee has no reasonable expectation of privacy.
Can an Agency ever search an employee’s workplace without a warrant?
In Ortega, the Supreme Court ruled that warrant requirements were inappropriate when the burden of obtaining a warrant was likely to frustrate the governmental purpose behind the search. The Court recognized that employers will frequently need to enter the offices and desks of employees for legitimate, work-related reasons.
The Court decided that the applicable standard is "reasonableness under the circumstances." Whether the search is a non-investigatory, work-related intrusion or an investigatory search for evidence of suspected work-related employee misconduct, the proper approach (assuming that the search is reasonable and not arbitrary) is to balance the employee’s legitimate expectations of privacy against the government’s need for supervision, control, and efficient operation of the workplace.
Government space and furniture are used by employees for employees to do the work of an agency. So government searches to retrieve work-related materials or to investigate violations of workplace rules do not violate the Fourth Amendment. Supervisors are not, in most cases, required to obtain a search warrant whenever they wish to enter an employee’s desk, office, or file cabinet.
How about handbags, briefcases, backpacks and the like?
Items such as handbags, briefcases, backpacks are not usually considered part of the workplace and, therefore, a search warrant or authorization is generally required before searching them in the workplace unless there is probable cause to suspect a connection to a crime. However, if an Agency advises employees that such property may be examined coming or going for security reasons, they may be searched in that context. Employees can always avoid the risks of opining their bags and exposing their belongings at work by leaving them at home.
What about computers?
There’s a great online resource for those who want to know about computer security. It’s a hypertext guidance paper from the Computer Crime and Intellectual Property Section, Criminal Division, United States Department of Justice entitled "Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations."
Despite the title, the report has a lengthy discussion of public sector workplace searches not related to a crime. The gist of it is that the same rules apply to computers, email, computer files, and other media (disks, thumb drives, etc.) as described above regarding office searches. The report includes "banners" developed by Agencies and suggested by the article as a dialog box that employees must agree with before they may access the network.
Bryan R. Lemons with the Federal Law Enforcement Training Center in Glenco, GA also has a useful article that is titled: Warrantless Workplace Searches of Government Employees.
So what’s the lesson?
For a business reason, a far cry from probable cause or a search warrant, and particularly if employees have been notified that no expectation of privacy exists in the workplace, supervisors and managers can look at work areas, inside desks, file cabinets, and computers. One would have to be pretty dumb to keep anything at work that might indicate any misconduct on your part or really stupid to keep anything at work that could link someone to a crime. Of course, there is a saying in employee relations that the charge line in a disciplinary action could always be replaced by "too stupid to continue working" since getting yourself disciplined is not a high I.Q. business.
By the way, those of you who read my articles saw mention of an offering of Advanced Bargaining Training in the Fall. Those who are interested can get information and register here if you are so inclined.
The above as always reflects my views and mine alone. Thanks to the folks at Justice and FLETC who put the cited report and article together and put it out there for us to read and to learn.