GOVERNMENT WORKPLACE SEARCHES

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GOVERNMENT WORKPLACE SEARCHES
Bryan R. Lemons [phone] Bryan.Lemons_at_dhs.go
v

• Keith Hodges
• [phone]
• Keith.Hodges_at_dhs.gov

Federal Law Enforcement Training Center Glynco, GA
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www.khodges.com/iacp

• These PowerPoint slides.
• The complete article on government workplace
  searches.
• Other 2003 IACP conference presentations by FLETC
  instructors.

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OVERVIEW OF WORKPLACE SEARCHES
Does the employee have a reasonable expectation
of privacy in the place searched? If so, what
was the motivation behind the search of that area?
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WHAT IS THE WORKPLACE?
Offices Desks Computers Filing Cabinets Government
Vehicles
NORMALLY INCLUDES
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WHAT ABOUT PERSONAL ITEMS AT THE WORKPLACE?

• Generally NO, but
• If storing government items OR
• Notice has been provided
• Then could become part of the workplace.

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REASONABLE EXPECTATION OF PRIVACY A REFRESHER
SUBJECTIVE
OBJECTIVE
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GOVERNMENT EMPLOYEES AND EXPECTATIONS OF PRIVACY

1. They can have it
2. Even though the government owns the property
3. But it is reduced by the operational
   realities of the workplace.

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FACTOR 1 PRIOR NOTICE

• Computer Banners
• Inspection Policies
• Employee Manuals

COMPUTER BANNERS
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FACTOR 2 PRACTICES AND PROCEDURES

1. Does the employer actually follow its
   regulations?
2. Does the employer actually inspect lockers?
3. Does the employer actually monitor
   Internet/e-mail usage?

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FACTOR 3 OPENNESS AND ACCESSIBILITY

• Shared office?
• Cubicle?
• Common areas?
• Passwords?

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FACTOR 4 POSITION OF THE EMPLOYEE
HIGH SECURITY REQUIREMENTS POSITIONS OF TRUST
AND RESPONSIBILITY
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FACTOR 5 WAIVER OF RIGHTS
Precondition of Receiving a Certain Benefit
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A WRAP UP ON PRIVACY EXPECTATIONS
If there is no expectation of privacy The 4th
Amendment DOES NOT apply.
If there is an expectation of privacy The 4th
Amendment DOES apply.
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• Keith Hodges
• Senior Instructor
• FLETC Legal Division

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How We Defeat REP(Refresher from your police
academy days)

• Reminder No REP
• We can search non-REP places at will.
• Consent always works.
• Warrants always work.
• Special work-place search exceptions.

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Consent Always Works

• From the person who has the REP.
• Advantages
• Quick and cheap.
• Disadvantages
• Target can refuse.
• Scope of search limited to consent.
• Target can withdraw consent.
• Later claim consent was involuntary.

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Search Warrants

• Probable cause (of course.)
• We can secure the scene while waiting for the
  warrant.
• Illinois v. McArthur, 531 U.S. 326 (2001)

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Special Work-Place Exceptions

• Depends on the REASON for the search.
• Work related
• Non-Investigatory
• Work-related misconduct
• Pure criminal

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Public Employers Have Special Needs
Balancing Test
FOURTH AMENDMENT CONCERNS
EFFICIENT WORKPLACE OPERATION
VS.
OConnor v. Ortega (1987)
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Work-Related (Non-Investigatory)

• Work-related searches must be reasonable
• To be reasonable, the search must be
• - Justified at its inception, and
• - Reasonable in scope.
• (Like reasonable suspicion)

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Justified at its Inception
It means have a REASON for looking where youre
looking!
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Permissible In Scope
It means look ONLY where what youre looking
for could be located!
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Work-Related Misconduct

• Same as non-investigatory.
• Justified at inception
• Reasonable in scope
• Terry reasonable suspicion.
• Criminal activity afoot.

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Pure Criminal

• No longer searching for efficiency of the
  office.
• Preparing criminal prosecution.
• Exactly what the 4th Amendment was meant to
  protect against.
• Get a warrant.

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What if both Work-Related Misconduct and
Criminal?
Has a criminal investigation been opened? Was a
workforce policy violated? Who conducted the
search?
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Work-Related Misconduct and Criminal?

• Same standard as work-related.
• Reasonable suspicion (Terry).
• But, be conservative.
• Warrant is probably the better course.

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Review (REP Exists)

• Work-Related Non-Investigatory.
• Justified at its inception.
• Permissible in scope.
• (Reasonable suspicion)
• Work-Related Misconduct Investigatory.
• Terry reasonable suspicion.
• Pure criminal.
• Search warrant.
• Mixed Purpose (criminal and work-related
  misconduct).
• Same as work-related misconduct (Terry).
• Best to get a warrant.

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www.khodges.com/iacp

• These PowerPoint slides.
• The complete article on government workplace
  searches.
• Other 2003 IACP conference presentations by FLETC
  instructors.