By Steven Betz, Rains Lucia Stern, PC
As technology in our society progresses and becomes common use among the general public, new questions about the reaches of government and employer searches naturally arise. An area of particular concern for police officers is the degree of privacy officers have in the communications that are made through—and the data that is stored in—their cell phones. In a world of ever-increasing criticism of police officers, a central concern is what rights an officer has regarding maintaining the privacy of his or her cell phone during work place investigations.
I. Searches of Cell Phones Must Be Reasonable
Ultimately there are two important areas to consider: what are an employee’s rights regarding cell phone searches of department-issued cell phones versus personally owned cell phones? The short answer is that the department generally has carte blanche authority to search department-issued phones, whereas the department’s search of personally owned cell phones is limited by the reasonableness of the search.
A. Searches of Department-Issued Cell Phones
As a preliminary matter, it is important to note that the Fourth Amendment’s protection against unreasonable searches and seizures extends beyond criminal searches. U.S. Const. Amend. IV; Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 530 (1967). “The [Fourth] Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by offices of the Government,” without regard to whether the government actor is investigating crime or performing another function. Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 613-14 (1989). However, this ultimately begs the question: what is reasonable in the context of government employers searching the belongings of government employees?
Regarding searches of department-issued cell phones, the matter is settled. In City of Ontario v. Quon, 130 S. Ct. 2619 (2010), the City gave the members of its SWAT team, to which Officer Quon belonged, pagers that would be used for mobilization purposes. Additionally, before issuing the pagers, the City announced that employees would not enjoy an expectation of privacy regarding the data sent and received via those pagers. Quon sent text messages via this pager and exceeded the monthly allotment of texts.
The Ontario Police Department wanted to know whether Quon was exceeding his monthly allotment due to business reasons or because Quon was using the pager excessively for personal use. The City then contacted the pager provider and obtained the transcripts for all of Quon’s texts. After discovering that many of the texts were personal in nature, as well as sexually explicit, the Department referred the case to their internal affairs bureau. Quon challenged the search of his texts as unreasonable under the Fourth Amendment.
The Court ultimately determined that Quon could not have reasonably believed his text messages, sent from a department-issued PCD, would be protected from audit. Quon, 130 S. Ct. at 2632. This decision ultimately puts to rest the issue of whether an employer can search an employee’s department-issued PCD.
B. Searches of Personal PCDs
However, the issue remains as to under what circumstances an employer can search a personal cell phone. The Courts have recognized that “[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.” O’Connor v. Ortega, 480 U.S. 709, 717 (1987). However, “[t]he operational realities of the workplace . . . may make some employees’ expectation of privacy unreasonable when an intrusion is by a supervisor . . . . Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation.” Id. Nonetheless a search must be reasonable and “. . . what is reasonable depends on the context within which a search takes place.” New Jersey v. T.L.O., 490 U.S. 325, 336 (1985).
The Supreme Court ultimately created a two step process when determining whether a public employer has the authority to search the personal belongings of its employees: (1) the search must be justified at its inception; and (2) the actual search itself must be reasonably related in scope to the circumstances that justified the search in the first place. O’Connor, 480 U.S. at 726. The Court found that a search is justified in 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, or that the search is necessary for a non-investigatory work-related purpose such as to retrieve a needed file.” Id. “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].’” Id. (citing T.L.O., 490 U.S. at 342).
Additionally, the Ninth Circuit has established that reasonable suspicion is required when a police department wishes to search its officers in an intrusive manner. In Kirkpatrick v. City of Los Angeles, 803 F.2d 485 (1986), the Ninth Circuit found that the Los Angeles Police Department violated the Fourth Amendment rights of its officers when an lieutenant ordered a strip search of the officers in order to clear them from an accusation that they stole money from a suspect. The Court determined that reasonable suspicion was required based upon the highly intrusive manner of a strip search. Id. at 489. It is the position of this office that reasonable suspicion is also required when a department wishes to search a cell phone for misconduct, because of the highly sensitive, personal information that persons generally keep on their cell phones.
What this ultimately boils down to is that if a police department has reasonable suspicion to believe that evidence of employee misconduct can be found on an employee’s personal cell phone then, generally, a search of the cell phone will be permissible. It is not hard to imagine the myriad situations that this could manifest itself under: off-duty sexual harassment of a coworker, fights, sick-leave abuse, and so on. So long as there is evidence of work-related misconduct, even if it occurred off duty, the department may be able to establish a sufficient nexus to an officer’s job in order to authorize a search of the phone.
It is the position of this law firm, however, that if the department wishes to search an officer’s personal PDC, the department must comply with certain requirements. This includes providing the employee in writing with the articulable facts that support the search; the precise information that is sought; and an opportunity to be present when the search is conducted. It is our position that a failure to follow these minimal requirements would render the search of a personal cell phone unreasonable in its scope and inception.
II. Officers Should Avoid Using Personal PDCs For Work-Related Purposes
As shown above, the right of a police department to search officers’ cell phones, whether personal or not, is fairly extensive. However, when related to personal cell phones, a department must still comport with the Fourth Amendment’s reasonableness standard. This functionally means that the department must have reasonable suspicion supported by articulable facts that employee misconduct can be found on a personal cell phone.
Obviously the best advice this firm can give our police clients is to discourage them from using their personal cell phones for any work-related purpose. This does not mean that an officer should not bring a personal cell phone to work and use the phone for minor personal matters. However, officers should be warned that even strict personal use could lead to a search from their department under certain circumstances (e.g. when an officer is accused of excessive text messaging on duty, the department will probably possess the authority to search an officer’s cell phone for evidence of said misconduct if the search comports with the reasonableness requirement outlined above).
Officers should also take note that the policy may permit a department to search phones that are used off-duty, if the department is aware that the phone was used in connection with employee misconduct (and, of course, the search comports with the reasonableness requirement). Officers should be advised that even the private cell phone usage may be subject to search from the department if related to employee misconduct.
Many officers may (and perhaps should) be shocked at what is clearly a great potential intrusion into their personal lives. Many people these days keep extremely private, and voluminous, information in their cellular phones. Unfortunately, the law has created a high standard of conduct for police due to their special place in American society. On this issue, the Supreme Court of California once stated:
Courts have long recognized that, while the off-duty conduct of employees is generally of no legal consequence to their employers, the public expects peace officers to be ‘above suspicion of violation of the very laws [they are] sworn . . . to enforce.’ [citations] Historically, peace officers have been held to a higher standard than other public employees, in part because they alone are the ‘guardians of peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintain law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them.’ [citations] To maintain the public’s confidence in its police force, a law enforcement agency must promptly, thoroughly, and fairly investigate allegations of officer misconduct; if warranted, it must institute disciplinary proceedings.
Pasadena Police Officers v. Pasadena, 41 Cal.3d 572, 587 (1990). The state of the law is, clearly, not ideal for police officers and their privacy rights. Regardless, it is of course our policy to give our clients the most accurate description of the state of the law, regardless of whether that state is good or bad for our police clients. Despite the current state of the law, this firm’s position is that we will take an aggressive stance against cell phone searches, particularly those of personal phones, and ensure that such searches comply with the law as well as reasonable steps by the department in order to ensure that the officer is being treated fairly.
Officers should be cautioned to never give their cell phone to their employer without first consulting an attorney. As always, whenever an officer is accused of misconduct, his or her first step should be to contact the PORAC Legal Defense Fund about seeking representation.