Chapter 32: Workplace Searches
Generally
“Workplace” defined: A “workplace” consists of “those areas and items that are related to work and are generally within the employer’s control. At a hospital, for example, the hallways, cafeteria, offices, desks, and file cabinets, among other areas, are all part of the workplace.”[1] On the other hand, an employee’s personal effects, such as a purse, briefcase, or luggage do not become part of the workplace merely because they happened to be on the premises when the search occurred.[2]
Types of searches: As discussed below, there are two types of workplace searches: (1) searches for evidence of a crime, and (2) searches for evidence of governmental misconduct.
Related subjects covered elsewhere
Consent searches: See Chapter 16 Consent Searches.
Computer searches: See Chapter 15 Computer Searches.
Communications devices: See Chapter 39 Electronic Communications and Records Searches.
Criminal Investigation Searches
: There are two ways to obtain evidence of a crime in a suspect’s workplace:
Search warrants: A standard search warrant will ordinarily suffice. See search warrant chapters 32-35.
Recommendation: Seek a warrant: Even if the employer consents to a search, it may be better to seek a warrant because, as discussed in the next section, it is often unclear whether the employer had a legal right to consent.
Consent by employer: The suspect’s employer may consent to a search of places and things in the workplace if the employer had “common authority” over them. Also see Chapter 16 Consent Searches (Third Party Consent).
Requirements: An employer will ordinarily have common authority over a place or thing in the workplace if both of the following circumstances existed:
(1) Right to access or control: The employer must have had a right to access or control the place or thing, whether exclusively or jointly.
Common areas: An employer has a right to access or control common areas in the workplace, such as conference rooms, file rooms, libraries, and coffee rooms.[3]
Right to control set by company policy: An employer may have joint control of a place or thing that is used primarily by an employee if the employee had been notified that, per company policy, the employer retained the right to search or inspect it.[4]
Compare: Employee had exclusive control: An employer cannot consent to a search of places and things owned by the employee or to which he had been given a right to exclusive possession or control.[5]
Employer has master key: If the employee has a right to exclusive control of a locked place or thing, it is immaterial that the employer had a master key or otherwise had the ability to access it.[6]
(2) Actual exercise of right: The employer must have openly and regularly exercised the right to joint access or control so give the employee notice that he lacked privacy, at least as to his employer.[7]
Who can consent?
Company officers: It may be reasonable to believe that an officer of a company could consent to a search of company facilities.[8]
Agency heads: While consent may be given by the head of the agency for which the employee works, it is not clear if, or to what extent, consent may be given by administrators of other agencies; e.g., city attorney could not consent to a search of city housing department offices.[9]
Governmental Work-Related Misconduct
: A federal, state, or local government employer may search the “workplace” for evidence of an employee’s “work-related misconduct” if the employer had reasonable suspicion that such evidence would be found in the workplace.[10]
“Work-related”: The Ninth Circuit has narrowly defined the term “work-related misconduct” as misconduct that cannot be prosecuted criminally.[11]
Scope of search
Intrusiveness of search: The search must not have been unnecessarily intrusive.[12]
“Workplace”: The search must be limited to the “workplace” which consists of “those areas and items that are related to work and are generally within the employer’s control. At a hospital, for example, the hallways, cafeteria, offices, desks, and file cabinets, among other areas, are all part of the workplace.”[13] On the other hand, an employee’s personal effects, such as a purse, briefcase, or luggage do not become part of the workplace merely because they happened to be on the premises when the search occurred.[14]
Notes
[1] QUOTE FROM: O’Connor
v. Ortega (1987) 480 US 709, 715-16.
[2] USSC: O’Connor v.
Ortega (1987) 480 US 709, 716.
[3] CAL:
Sacramento County Deputy Sheriff’s Assn. v.
County of Sacramento (1996) 51 CA4 1468, 1482 [“the release
office was not exclusively assigned to him and had no lock on the
door. The release office was accessible to any number of people,
including other jail employees, inmates on cleaning detail and
outside personnel.”]. 9th CIR: Martinez v.
Nygaard (9C 1987) 831 F2 822, 826 [“the workers had no
private space in any part of the building, and no authority to
exclude others”]. OTHER: Vega-Rodriguez v.
Puerto Rico Telephone Co. (1C 1997) 110 F3 174, 180 [no
reasonable expectation of privacy while working in “open and
undifferentiated work area”]. NOTE: The theory here is that
an employee cannot reasonably expect privacy in places and things
over which he and his employer share access or control. US
v. Matlock (1974) 415 US 164, 171, fn.7;
O’Connor v. Ortega (1987) 480 US 709, 715
[“Our cases establish that (the employee’s) Fourth Amendment
rights are implicated only if the conduct of the (consenting
employer) infringed an expectation of privacy that society is
prepared to consider reasonable.”]; US v.
Blok (DCC 1951) 188 F2 1019, 1020-21 [“Men who merely work
in a place no part of which is devoted to their exclusive use have
been held to have no standing to complain of a search.”].
[4] USSC: City of Ontario
v. Quon (2010) 560 US 746, 762 [“Quon was told that
his messages were subject to auditing.”]. CAL:
TBG Insurance Services Corp. v.
Superior Court (2002) 96 CA4 443. 452 [“TBG’s advance
notice to Zieminski (the company’s policy statement) gave
Zieminski the opportunity to consent to or reject the very thing
that he now complains about, and that notice, combined with his
written consent to the policy, defeats his claim that he had a
reasonable expectation of privacy.”]. 9th CIR: US
v. Gonzalez (9C 2002) 300 F3 1048 [random search of
backpack belonging to an employee of an Air Force exchange as he
was leaving work]; US v. Ziegler (9C 2007)
474 F3 1184, 1191 [“[Defendant’s employer] had complete
administrative access to anybody’s machine. The company had also
installed a firewall … that monitors Internet traffic from
within the organization to make sure nobody is visiting any sites
that might be unprofessional.”]. OTHER:
Vega-Rodriguez v.
Puerto Rico Telephone Co. (1C 1997) 110 F3 174, 180 [“PRTC
notified its work force in advance that video cameras would be
installed and disclosed the cameras’ field of vision. Hence, the
affected workers were on clear notice from the outset that any
movements they might make and any objects they might display
within the work area would be exposed to the employer’s sight.”];
Gillard v. Schmidt (3C 1978) 579 F2 825, 829
[“an employer may conduct a search in accordance with a regulation
or practice that would dispel in advance any expectations of
privacy”]; Biby v. Board of Regents (8C 2005)
419 F3 845, 850 [search of university employee’s computer];
US v. Simons (4C 2000) 206 F3 392, 398 [“in
light of the Internet policy, Simons lacked a legitimate
expectation of privacy in the files downloaded from the
Internet”]; US v. Thorn (8C 2004) 375 F3 679,
683 [“Thorn did not have any legitimate expectation of privacy
with respect to the use and contents of his DCSE computer. He was
fully aware of the computer-use policy, as evidenced by his
written acknowledgment of the limits imposed on his
computer-access rights in 2000.”]; US v.
Angevine (10C 2002) 281 F3 1130, 1134 [“Oklahoma
State University policies and procedures prevent its employees
from reasonably expecting privacy in data downloaded from the
Internet onto University computers. The University computer-use
policy reserved the right to randomly audit Internet use and to
monitor specific individuals suspected of misusing University
computers.”]; Muick v.
Glenayre Electronics (7C 2002) 280 F3 741, 743 [“But
Glenayre had announced that it could inspect the laptops that it
furnished for the use of its employees, and this destroyed any
reasonable expectation of privacy that Muick might have had and so
scotches his claim.”]. COMPARE: US v.
Speights (3C 1977) 557 F2 362, 363 [“There was no
regulation or notice to the ranks that the lockers might be
searched”]; Leventhal v. Knapek (2C
2001) 266 F3 64, 74.
[5] USSC: O’Connor v.
Ortega (1987) 480 US 709, 718 [state hospital physician had
standing to challenge a search by hospital officials of the desk
and files in his office]; Mancusi v.
DeForte (1968) 392 US 364, 368-69 [union official could
challenge search of union office he shared with others];
US v. Matlock (1974) 415 US 164, 171, fn.7
[“Common authority is, of course, not to be implied from the mere
property interest a third party has in the property. The authority
which justifies the third-party consent does not rest upon the law
of property”]. 9th CIR: US v.
Ziegler (9C 2007) 474 F3 1184, 1190 [“Ziegler’s expectation
of privacy in his office was reasonable on the facts of this case.
His office was not shared by co-workers, and kept locked.”];
US v. Gonzalez (9C 2003) 328 F3 543, 548
[“one may have an objectively reasonable expectation of privacy in
private work areas given over to an employee’s exclusive use”];
US v. Taketa (9C 1991) 923 F2 665, 671;
Schowengerdt v. General Dynamics (9C 1987)
823 F2 1328, 1333. OTHER: Gillard v.
Schmidt (3C 1978) 579 F2 825, 829 [“Applicability of the
fourth amendment does not turn on the nature of the property
interest in the searched premises”]; US v.
Bilanzich (7C 1985) 771 F2 292, 297; US v.
Blok (DCC 1951) 188 F2 1019, 1021 [employer could not
legally consent to a search of an employee’s desk because the
employee’s “exclusive right to use the desk assigned to her made
the search of it unreasonable.”]; Vega-Rodriguez v.
Puerto Rico Telephone Co. (1C 1997) 110 F3 174, 179-80
[“Applying O’Connor in various work environments, lower
federal courts have inquired into matters such as whether the work
area in question was given over to an employee’s exclusive use.”].
[6] 9th CIR: US v.
Taketa (9C 1991) 923 F2 665, 673; US v.
Ziegler (9C 2007) 474 F3 1184. OTHER: US
v. Speights (3C 1977) 557 F2 362, 364 [“that most of
the lockers could be opened with a master key does not make an
expectation of privacy unreasonable”].
[7] USSC: O’Connor v.
Ortega (1987) 480 US 709, 717 [privacy expectations “may be
reduced by virtue of actual office practices and procedures, or by
legitimate regulation”]. 9th CIR: US v.
Ziegler (9C 2007) 474 F3 1184, 1192 [“Monitoring was
routine”]. OTHER: Vega-Rodriguez v.
Puerto Rico Telephone Co. (1C 1997) 110 F3 174, 179
[“operational realities of the workplace, such as actual office
practices, procedures, or regulations, frequently may undermine
employees’ privacy expectations”]; Sheppard v.
Beerman (2C 1994) 18 F3 147, 152 [because of the close
working relationship between a judge and law clerk, the clerk did
not have reasonable expectation of privacy as to documents in
desks, file cabinets, and other work areas]. COMPARE:
US v. Taketa (9C 1991) 923 F2 665, 672-73
[“unenforced” regulation “cannot reasonably serve as an
after-the-fact rationalization of the DEA’s entry”].
[8] 9th CIR: US v.
Fiorillo (9C 1999) 186 F3 1136; US v.
Ziegler (9C 2007) 474 F3 1184 [chief financial officer
could consent to search of defendant’s office].
[9] 9th CIR: US v.
Jones (9C 2002) 286 F3 1146, 1150-51.
[10] USSC: O’Connor v.
Ortega (1987) 480 US 709, 725-26; City of Ontario
v. Quon (2010) 560 US 746, 761 [“there were
reasonable grounds for suspecting that the search was necessary
for a noninvestigatory work-related purpose”]. 9th CIR:
US v. Taketa (9C 1988) 923 F2 665, 674;
Schowengerdt v. General Dynamics (9C 1987)
823 F2 1328, 1335-36 [“Ordinarily, a search of an employee’s
office by a supervisor will be justified at its inception when
there are reasonable grounds for suspecting that the search will
turn up evidence that the employee is guilty of work-related
misconduct”].
[11] 9th CIR: US v.
Jones (9C 2002) 286 F3 1146, 1151 [“there is a difference
between a work-related search and a search conducted to
investigate the violation of criminal laws”]; US v.
Taketa (9C 1991) 923 F2 665, 675 [public employer “cannot
cloak itself in its public employer robes in order to avoid the
probable cause requirement when it is acquiring evidence for a
criminal prosecution.”].
[12] USSC: O’Connor v.
Ortega (1987) 480 US 709, 726 [“The search will be
permissible in its scope when the measures adopted are reasonably
related to the objectives of the search and not excessively
intrusive in light of the nature of the misconduct.”];
City of Ontario v. Quon (2010) 560 US 746,
761 [the search was reasonable “because it was an efficient and
expedient way to” discover the evidence, and was not “excessively
intrusive”]. 9th CIR: Schowengerdt v.
General Dynamics (9C 1987) 823 F2 1328, 1336 [“the measures
adopted [must be] reasonably related to the objectives of the
search and not excessively intrusive in light of the nature of the
misconduct.”].
[13] QUOTE FROM: O’Connor
v. Ortega (1987) 480 US 709, 715-16.
[14] USSC: O’Connor v.
Ortega (1987) 480 US 709, 716.