Search and Seizure Issues Raised in Investigations of Work-related Misconduct: O'Connor v. Ortega and Its Progeny(1) by James M. Sullivan and John A. Gasiorowski
The Inspector General or public sector internal investigator faces an administrative/criminal dichotomy in most investigations. Whether to treat an investigation as a criminal investigation or as an administrative investigation presents great ramifications. These ramifications are especially apparent in the area of search and seizure.(2) The United States Supreme Court in O'Connor v. Ortega(3) announced a standard, distinct from the probable cause/warrant standard applied to criminal investigations, when examining whether a search by a public sector employer conducted as part of an investigation of work-related misconduct is consistent with the Fourth Amendment. This article will focus on the current state of the law with regard to the application of the United States Supreme Court's ruling in Ortega in the area of searches during investigations of work-related misconduct.(4)
I. Introduction
In order to understand the significance of Ortega, some basic principles of the Fourth Amendment must be examined. The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.(5) A search, or seizure for that matter, implicates the Fourth Amendment only when the government's conduct infringes on an expectation of privacy that society is prepared to consider reasonable.(6) Additionally, not only must that expectation of privacy be reasonable but that expectation of privacy must be personal to the person challenging the legality of the search, that is, the person challenging the legality of the search must have standing.(7)
After determining that a search infringes on a personal expectation of privacy that is reasonable, the focus then turns to whether the search is reasonable. Traditionally, a search has been viewed as reasonable only when conducted pursuant to a valid warrant based on probable cause.(8) However, over the years, the United States Supreme Court has delineated a number of exceptions to the warrant requirement. These exceptions include searches based on consent,(9) searches incident to a lawful arrest,(10) searches made in plain view,(11) certain searches of automobiles,(12) and searches for certain regulatory purposes.(13) The United States Supreme Court has also recognized that a "stop and frisk" need not be based on probable cause nor be done pursuant to a warrant.(14) The United States Supreme Court has likewise recognized situations of "special needs" beyond the normal need for law enforcement which make the probable cause requirement impracticle.(15) Based on this "special needs" exception to the warrant/probable cause requirement, the United States Supreme Court decided O'Connor v. Ortega.
II. O'Connor v. Ortega
Dr. Magno Ortega was a physician and psychiatrist. For seventeen years, Dr. Ortega was the Chief of Professional Education at Napa State Hospital. Dr. Ortega had primary responsibility for training young physicians in the psychiatric program. In July 1981, hospital officials became concerned with Dr. Ortega's management of the residency program, particularly with his acquisition of an Apple II computer for use in the residency program. The officials thought that Dr. Ortega may have misled the executive director of the hospital into believing that the computer had been donated, when in fact the computer had been financed by the possibly coerced contribution of residents. Hospital officials were also concerned with allegations that Dr. Ortega had sexually harassed two female hospital employees and had taken inappropriate action against a resident. On July 30,1981, the executive director of the hospital requested that Dr. Ortega take a paid leave during the investigation of these charges. At Dr. Ortega's request, the executive director allowed Dr. Ortega to take two weeks vacation instead of administrative leave. It was requested that Dr. Ortega stay off hospital grounds for the duration of the investigation. On August 14, 1981, Dr. Ortega was placed on administrative leave due to the fact that the investigation had not yet been completed, and he remained on paid administrative leave until his termination on September 22, 1981.
The investigation of Dr. Ortega was conducted by an investigative team led by a hospital administrator and made up of other hospital personnel, namely an accountant, a physician, and a security officer. During the course of the investigation, the investigation team decided to enter Dr. Ortega's office. The search of the office was allegedly conducted to secure state property, however there was also a contention that the search was made pursuant to a hospital policy of conducting a routine inventory of state property in the office of a terminated employee. It should be noted that at the time of the search, Dr. Ortega had not yet been terminated but remained on administrative leave.(16) The search was quite thorough. The investigators entered the office a number of times and seized several items from Dr. Ortega's desk and file cabinets, including a Valentine's Day card, a photograph, and a book of poetry all sent to Dr. Ortega by a former resident physician. These items were later used in a proceeding before a hearing officer of the California State Personnel Board to impeach the credibility of the former resident who testified on Dr. Ortega's behalf. The investigators also seized billing documentation of one of Dr. Ortega's private patients under the California Medicaid program, because, as one investigator testified, "(t)rying to sort State from non-State, it was too much to do, so I gave it up and boxed it up." No formal inventory of the property in the office was ever made. Instead, all papers in Dr. Ortega's office were merely placed in boxes and put in storage for Dr. Ortega to retrieve.
Dr. Ortega sued in Federal District Court alleging that the search of his office violated the Fourth Amendment. The District Court granted the hospital officials' motion for summary judgment. The District Court concluded that the search was proper because there was a need to secure state property in the office. On appeal, the Ninth Circuit Court of Appeals concluded that Dr. Ortega had a reasonable expectation of privacy in his office and that the search had violated the Fourth Amendment. The United States Supreme Court granted certiorari.(17)
The United State Supreme Court in a plurality opinion (18) reversed and remanded. The Court stated that two questions needed to be addressed: 1) whether Dr. Ortega, a public employee, had a reasonable expectation of privacy in his office, desk, and file cabinets at his place of work, and 2) what is the appropriate Fourth Amendment standard for a search conducted by a public employer in areas in which a public employee is found to have a reasonable expectation of privacy.
Initially, the Court examined whether Dr. Ortega had a reasonable expectation of privacy in his office, desk, and file cabinets. The Court stated that "we have no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable. Instead, 'the Court has given great weight to such factors as the intention of the Framers of the Fourth Amendment, the uses to which the individual has put a location, and our societal understanding that certain areas deserve the most scrupulous protection from government invasion.'"(19) The Court stated that because the reasonableness of an expectation of privacy is understood to differ according to context, it found it essential to first delineate the boundaries of the workplace context. The Court found that the workplace includes those areas and items that are related to work and are generally within the employer's control. The Court illustrated the work place of a hospital to include the hallways, cafeteria, offices, desks, and file cabinets. The Court stated that these areas are part of the workplace context even if an employee has placed personal items in them, such as a photograph placed in a desk or a letter posted on an employee bulletin board. However, the Court found that not everything that passes through the confines of a business address can be considered part of the workplace context. The Court illustrated this with the example of an employee bringing a closed piece of luggage to the office prior to leaving on a trip, or bringing a handbag or briefcase to work each day. The Court stated that "while whatever expectation of privacy the employee has in the existence and outward appearance of the luggage is affected by its presence in the workplace, the employee's expectation of privacy in the contents of the luggage is not affected in the same way. The appropriate standard for a workplace search does not necessarily apply to a piece of closed personal luggage, a handbag or a briefcase that happens to be within the employer's business address."(20) The Court further stated:
Individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer. The operational realities of the workplace, however may make some employees' expectations of privacy unreasonable when an intrusion is by a supervisor rather than law enforcement official. 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.....The employee's expectation of privacy must be assessed in the context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits.......Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.(21)
Based on the evidence before it, the Court found that Dr. Ortega did have an expectation of privacy at least in his desk and file cabinets, but felt that the record was not complete regarding the extent to which hospital officials may have had work-related reasons to enter Dr. Ortega's office. In finding that Dr. Ortega had a reasonable expectation of privacy in his desk and file cabinets, the Court relied on the following facts: Dr. Ortega did not share his desk or file cabinets with anyone. Dr. Ortega had occupied his office for 17 years and he kept materials in his office, which included personal correspondence, medical files, correspondence from private patients unconnected to the hospital, personal financial records, teaching aids and notes, and personal gifts and mementos. The files on physicians in residency training were kept outside his office. The only items found by the investigators were apparently personal items, because with the exception of the items seized for use in the administrative hearings, all the papers and effects found in the office were simply placed in boxes and made available to Dr. Ortega. The hospital had not established any reasonable regulation or policy discouraging employees from storing personal papers and effects in their desk or file cabinets. The Court noted that the absence of such a policy does not create an expectation of privacy where it would not otherwise exist. Based on these facts, the Court found that Dr. Ortega had a reasonable expectation of privacy in his desk and file cabinets, and found that the Court of Appeals should have remanded the case to the District Court for its further determination regarding Dr. Ortega's office.
Having found that Dr. Ortega had a reasonable expectation of privacy in his desk and file cabinets, the Court decided the appropriate standard of reasonableness to apply when determining whether the search of the desk and file cabinets was reasonable.(22) The Court, quoting New Jersey v. T.L.O.,(23) stated that "(w)hat is reasonable depends on the context within which the search takes place." The Court continued that "a determination of the standard of reasonableness applicable to a particular class of searches requires 'balancing the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion (cites omitted).'"(24) The Court stated that in the case of searches conducted by a public employer, we must balance the invasion of the employees' legitimate expectations of privacy against the government's need for supervision, control, and the efficient operation of the workplace. The Court balanced the "legitimate privacy interests of public employees in the private objects they bring to the workplace" against the "realities of the workplace, which strongly suggest that a warrant requirement would be unworkable."(25) The Court found that work-related searches are merely incident to the primary business of the agency. Under these circumstances, said the Court, the imposition of the warrant requirement would conflict with "the common-sense realization that government offices could not function if every employment decision became a constitutional matter."(26)
After deciding that the warrant requirement would not be appropriate for work-related searches, the Court determined that the probable cause standard would not be appropriate either. With regards to investigations of work-related employee misconduct, the Court found that when employers conduct an investigation, they have an interest substantially different from the need for law enforcement. The Court found that the "special needs, beyond the need for law enforcement make the....probable-cause requirement impracticle."(27) The Court therefore held that public employer intrusions on the constitutionally protected privacy interests of governmental employees for non-investigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances. The Court, again citing New Jersey v. T.L.O., stated:
Determining the reasonableness of any search involves a twofold inquiry: first, one must consider 'whether the...action was justified at its inception (cites omitted); second, one must determine whether the search as actually conducted was 'reasonably related in scope to the circumstances which justified the interference in the first place.'(cites omitted)(28)
The Court explained this standard in stating that:
Ordinarily, a search of an employee's office by a superior 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, or that the search is necessary for a non-investigatory work-related purpose such as to retrieve a needed file....we need not decide whether individualized suspicion is an essential element of the standard of reasonableness that we adopt today.(cites omitted) The search will be permissible in 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)(cites omitted).'"(29)
III. Application of O'Connor v. Ortega
a. Purpose of the Investigation
As is clear from the Court's ruling in Ortega, the "reasonable under all circumstances" standard will only be applied to determine the reasonableness of searches by government employers for non-investigatory, work-related purposes as well as searches during investigations of work-related misconduct. Therefore, the purpose of the search may dictate whether the Ortega standard or the probable cause standard will be applied to determine whether a search is consistent with the Fourth Amendment. In Lowe v. City of Macon,(30) a police officer's office, desk, and gym bag were searched during the course of an investigation. The plaintiff officer, who was contending that his rights had been violated by the search, contended that the purpose of the search was to gather evidence of criminal activity for later criminal prosecution. The defendant city contended that the search was conducted pursuant to the employer's interest in protecting itself from employee's work-related misconduct. In ruling that the defendant's motion for summary judgement should be denied, the court stated that it is the purpose of the search that is controlling as to which standard, probable cause or reasonble suspicion, will be applied.(31) The court denied the motion for summary judgement because the purpose behind the search, that is whether it was a search pursuant to a criminal investigation or pursuant to an investigation of work-related misconduct, was in dispute.
b. Reasonable Expectation of Privacy
The decision making process, in determining whether a search should be conducted or what the scope or manner of the search should be, must include a review of the Ortega standard. A knowledge of that standard, and the factors that could sustain a search or exclude the evidence seized, can prevent the Inspector General or public sector internal investigator from recommending unsubstantiated disciplinary or criminal charges and can also prevent unwanted litigation. First, the investigator must examine the concept of reasonable expectation of privacy.
As stated previously, a search implicates the Fourth Amendment when the government's conduct infringes on an expectation of privacy that society is prepared to consider reasonable. Courts look to various factors in determining whether the party challenging the legality of the search had a reasonable expectation of privacy in the area or item searched. An employee who seeks to invoke Fourth Amendment protection need not have a property right in the area searched.(32) A reasonable expectation of privacy can exist in an area given over to an employee's exclusive use.(33) An employee can therefore have a privacy interest in his office as well as the personal effects kept in his office if that expectation of privacy is objectively reasonable. In United States v. Taketa,(34) the office of a Nevada Bureau of Investigations officer was searched. The court held that the officer maintained a reasonable expectation of privacy in his office despite arguments that the office was open to other employees and the officer may not have always locked his office door. The court ruled that the office was not so open to others that an expectation of privacy was unreasonable since only three other agents had access to the office.(35)
An expectation of privacy is not objectively reasonable when an area is not reserved for an employee's exclusive use. In Thompson v. Johnson County Community College,(36) security officers for a college were provided with a locker area to store their rain gear, radios, and other personal items. The lockers were located along one wall of a storage room. The security personnel also utilized this area as a dressing and changing room. The room also contained equipment for the college's heating and air-conditioning systems and the room was not locked. Other college employees had access to the room and did not need permission from security personnel to enter the room. A video surveillance camera was installed in the room after security personnel reported incidents of theft from their lockers and a security supervisor received reports that security personnel were bringing weapons on campus or storing them in their lockers. The security personnel claimed that the installation of the video cameras violated their Fourth Amendment rights. Their employer argued that the security personnel did not have a subjective expectation of privacy that was objectively reasonable because the locker area was more similar to hallway lockers in a school. The court held that the security personnel did not have a reasonable expectation of privacy in the locker area because the area was not enclosed and the activities of the security personnel could be viewed by anyone walking into or through the storage room/security personnel locker area.(37) The court also stated that the security personnel could not maintain that the security personnel locker area was reserved for their exclusive use considering that other college personnel had regular access to the area.(38)
A Michigan appellate court has also discussed the issue of reasonable expectation of privacy in its decision in People v. Duvall.(39) When work-related items were taken from the desk and a bookshelf of an office utilized by a deputy sheriff in charge of handling bond money, the court held that the sheriff did not have a reasonable expectation of privacy because he shared the office with two other deputy sheriffs and there was no evidence that there was anything of a personal nature in the office.(40)
An objectively reasonable expectation of privacy can also extend to areas outside of an office utilized by an employee. In United States v. Mancini,(41) the court ruled that the Mayor of North Providence, Rhode Island, maintained a privacy interest in files kept in an archive attic in the building where he maintained his main office. The court pointed out that the Mayor took steps to assure that no one would have access to his files without prior authorization and his belongings were clearly labeled and were segregated from other items in the attic.(42) Although the search of the Mayor's files stemmed from a purely criminal investigation, the court's rationale clearly shows that courts are willing to extend an objectively reasonable expectation of privacy to areas outside the immediate control of the aggrieved party.
The same court that decided Taketa also ruled that a reasonable expectation of privacy is not objectively reasonable when the employer engages in extremely tight security measures with constant searches and surveillances of employees.(43) This regulation would only apply to agencies that can legitimately say that they have a necessary need to impose such strict security concerns. In Schowengerdt v. United States, for example, the office of a civilian engineer for the Navy was searched without his consent or a search warrant. However, the engineer had been employed at the facility for thirteen years and had personally observed his office being searched on numerous occasions to ascertain his compliance with procedures related to the proper storage of classified documents.(44)
Likewise, strictly regulated working conditions imposed on Chicago firefighters served to lower their expectation of privacy in storage lockers assigned to them.(45) In Chicago Fire Fighters Union Local 2 v. City of Chicago, the fire department had issued a general order allowing for unannounced, warrantless searches of lockers assigned to and routinely used by fire fighters. The order was issued in response to Fire Department concerns that fire fighters had engaged in alcohol and drug use while on duty. The court upheld locker searches on the grounds that the Chicago Fire Department had a substantial interest in assuring that their fire fighters comply with the order to prevent accidents and casualties resulting from impairment of employees by alcohol or drugs.(46)
The Hamilton County Tennessee Sheriff's Department Policy and Procedure Manual established a rule designed to safeguard the proper use and control of departmental property and also to specifically avoid claims of privacy expectations. The rule subjected all departmental vehicles to search or inspection by the Sheriff, or his designated representative, at any time, day or night. The rule described departmental vehicles, regardless of to whom assigned or where parked, to include all enclosed containers inside those vehicles.(47) As such, a narcotics detective on the Hamilton County Sheriff's Department was determined to have no reasonable expectation of privacy in a briefcase discovered in a department vehicle assigned exclusively to the detective.(48) The court reasoned that the stated purpose of the department regulation was to avoid claims of privacy expectations.(49)
The same court later ruled that oral policies communicated to employees may also be used as a basis of overcoming an employees assertion of a reasonable expectation of privacy in the area searched or the items seized. In State v. Stoddard,(50) a police department security squad, investigating allegations that a police officer had taken photographs of a nude woman on his squad car, searched the officer's suitcase that was in the trunk of a police car. The suitcase belonged to the officer and was used to carry his police equipment. Cocaine and marijuana were found in the suitcase and the officer was subsequently criminally charged with possession of cocaine and possession of marijuana. The court ruled that the officer had no reasonable expectation of privacy in the suitcase because the suitcase was located in a police vehicle belonging to the Police Department and contained equipment issued by the department. Testimony also revealed that an oral policy had been communicated to officers concerning regular inspections of their vehicles. In light of those three factors, the court ruled that the officer could not contest the search since he failed to establish that he had a reasonable expectation of privacy in the suitcase.(51)
An expectation of privacy can also be overcome when employees have waived their privacy rights or their collective bargaining agreement allows for random inspections. In American Postal Workers Union v. U.S. Postal Service,(52) postal workers attempted to challenge a search of their lockers by the Postal Service. However, each postal employee who had requested the use of a locker within the Post Office had completed and signed a waiver providing that the lockers were subject to random inspection by authorized postal authorities. In addition to the waiver, the collective bargaining agreements applicable to the employees provided for random inspection of the lockers under specified circumstances. The court held that since the employees had signed waivers and the search did not violate the specified conditions of the collective bargaining agreement, the postal employees did not have a reasonable expectation of privacy.(53)
It should be noted that when an employment agreement contains provisions that may diminish an employee's expectation of privacy, the employee has not unconditionally waived his constitutional rights. A regulation that allowed the employer to make inspections of employees' personal property on departmental premises when there is reasonable cause to believe such items might serve to conceal contraband failed to diminish the employee's reasonable expectation of privacy when the search of the employee's office took place eight months after the employer obtained reasonable cause to conduct the search.(54)
An employee's expectation of privacy must also be assessed in the context of his employment relationship. In Sheppard v. Beerman,(55) a fired law clerk alleged that his Fourth Amendment rights were violated when the judge that fired him searched his office, desk and file cabinets and seized his belongings. The court noted that the working relationship between a judge and a law clerk is unique because it requires an absolute free flow of information between the clerk and the judge. The clerk has access to all the documents pertaining to a case and, more importantly, the clerk has access to the judge's confidential thoughts on a case. The judge may also discuss his personal feelings with his clerk, or may allow the clerk access to his personal notes. In turn, the judge may have access to the files and papers kept by the clerk. In such a relationship, the court ruled, the law clerk has no reasonable expectation of privacy in the appurtenances of the judicial chambers, including desks, file cabinets or other work areas.(56)
Likewise, when an employment relationship is terminated and the employee vacates his desk and leaves the work environment, he may abandon expectations of privacy that he may have had in the items left behind. In State v. Lambright,(57) an investigator for a local district attorney's office was terminated from employment and asked to clear his desk and leave. The investigator removed items from his desk and turned in his car keys, office keys and credit cards and left. The investigator's desk was later searched and bank statements were discovered that revealed that the investigator had been involved in criminal conduct. At his criminal trial, the investigator testified that it was not his intention to leave the bank statements in the desk, and the reason that he left them was because he forgot them. The court ruled that, under the circumstances of this case, the investigator did not have a reasonable expectation of privacy since the bank statements bore the official address of the district attorney's office and other than the investigator's name, bore no indicia that they were private and unrelated to the office.(58)
c. Reasonable Under All Circumstances
Upon determining that a reasonable expectation of privacy exists in the area or item searched, the next issue presented in analyzing whether a search pursuant to an investigation of work-related misconduct is consistent with the Fourth Amendment under the Ortega standard is whether the search or seizure was both justified at its inception and reasonably related in scope to the circumstances which justified the interference in the first place. In Louisiana, the Bureau of Vital Statistics was notified by the Immigration and Naturalization Service (INS) that a Louisiana birth certificate was bogus. The Bureau of Vital Statistics verified that the birth certificate was bogus and that it was produced within the office. The Louisiana State Police and the INS began a joint investigation. When the criminal investigation stalled, the Bureau of Vital Statistics took administrative action to prevent further malfeasance by Bureau employees. One day, after office hours, Bureau supervisors conducted a general administrative search of the work stations of Bureau employees. Approximately forty modular work stations were searched. The work stations were partially enclosed and included desks, drawers and shelves, none of which had locking mechanisms. At one desk, numerous items were found which the employee who occupied the desk did not have the authority to possess. That evidence was subsequently turned over to the state police and the employee was then charged with public bribery. In deciding the legality of the search, the Supreme Court of Louisiana, in State v. Ziegler,(59) was faced with deciding an issue not decided in Ortega. Contrary to the search conducted of Dr. Ortega's office, the supervisors of the Bureau of Vital Statistics did not have an individualized suspicion prior to the search that the employee possessed any items that would incriminate her in the bogus birth certificate scam. The Ziegler court cited Skinner v. Railway Labor Executives' Association for the proposition that:
A showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable. In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by the requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.(60)
The court went on to reason that since the bogus birth certificate was used by an illegal immigrant to obtain a passport and birth certificates have a wide ranging impact on the effectiveness of the federal government to control its borders, there was a strong governmental interest at stake. The court further ruled, circuitously, that the employee's expectation of privacy in her workplace was minimal since supervisors had access to all work spaces so they could respond to client requests, specifically when the employee who occupied the work space was not there, and the search took place after hours. The court then stated that they considered the search reasonable, despite the absence of an individualized suspicion, provided that it was justified at its inception and permissible in its scope.(61) The court went on to explain that there were reasonable grounds to conclude that the search would reveal the source of the misconduct and there was a concern that other fraudulent certificates were being issued from the office. Therefore, the court ruled that the search was justified at its inception.(62) The search was permissible in its scope, the court ruled, because the supervisors searched only those work spaces within the office from which the fraudulent birth certificates could have come, the evidence did not reveal that any personal containers, such as purses or briefcases, were searched and the search was confined to government supplied desks and work areas.(63)
In Diaz-Camacho v. Lopez Rivera,(64) the United States District Court in Puerto Rico reviewed a search conducted by officials of the Commonwealth Fire Department. After complaints were received that a fire department facility and equipment were being used improperly and a chief of a fire station was using foul language with subordinates and abusing alcohol on fire department premises, an investigation was initiated. The allegations were eventually sustained and the fire chief was notified of his dismissal. An administrative hearing contesting the dismissal was scheduled but was continued numerous times at the request of the chief. After three months of continuances, the chief was discharged without a hearing. Two officials from the fire department then went to the fire station where the chief worked to retrieve official documents from the chief's office. The chief had the only key to the office and could not be located. The officials then broke the locks on the door to the office and on a desk and small storage compartment within the office. The officials removed the materials they were looking for and possibly some of the chief's personal property. The court first assumed that the chief had a reasonable expectation of privacy in the office searched. The court held that the search was reasonable at its inception since there were reasonable grounds to suspect that the chief was guilty of work-related misconduct and that a search of his office might reveal evidence thereof.(65) The court also stated that the search may have had a non-investigative work related purpose since the office was primarily used to store the fire station's official records as well as maintenance and other equipment. The court also stated that the search was permissible in its scope since the officials did not act unreasonably in supposing that either official records or evidence of misconduct might be found in any or all of the places searched.(66)
A Philadelphia Housing Authority attorney attempted to make a claim that the housing authority violated his Fourth Amendment rights when, while he was on a leave of absence, a supervisor removed a computer disk from the attorney's desk. In Williams v. Philadelphia Housing Authority,(67) the court stated that such a search was reasonable at its inception since the supervisor was merely exercising her discretion in maintaining efficiency and productivity in the workplace. The facts showed that the supervisor reasonably located the disk in order to distribute the vacated workload to the remaining attorneys. The court also stated that the fact that the attorney was told to clear the office of his personal property while on leave lends credence to the argument that the search was conducted solely to locate work-related material. The court stated that the search was reasonable in scope even though the disk contained both housing authority and personal documents since it would have been necessary to review all documents to locate those items that were work related.(68)
In Varnado v. Department of Employment and Training, Office of Workers' Compensation,(69)
an appellate court was called upon to review the search of an attorney's office conducted by the State of Louisiana Labor Department. The attorney was an administrative hearing officer for the state's workers' compensation office and initially utilized his personal law office to conduct hearings. The workers' compensation office then acquired its own offices and equipment from which the attorney carried out his duties as a hearing officer. The attorney also maintained a private legal practice out of the workers' compensation office where his personal secretary also worked. Two years after his appointment as a hearing officer, the attorney and all other hearing officers were informed that they must cease any practice of law during regular office hours and that state personnel and equipment should not be used for any purpose not related to state business. Later that same year, a letter was sent to all hearing officers advising them that they would not be permitted to maintain an outside legal practice while in state service and all ongoing private legal matters should be concluded or referred to other counsel by December 15th of that year. The letter also warned the hearing officers that state civil service employees and state equipment could not be used in their outside practices. On December 14th, the attorney and another hearing officer filed for injunctive relief prohibiting the workers' compensation office from discharging them because of their outside legal practices. Two days later, the director of the workers' compensation office directed audits to be conducted of the two hearing officers' offices. The next day the audits were conducted and the audit teams were instructed to look at every file in the offices and to download all computer information onto diskettes. The audit teams arrived at the hearing officers' offices and searched the desks, file cabinets, credenzas and other furniture and retrieved information from the computers located in the offices. The audit teams reported the presence of private client files in the offices and the presence of non-workers' compensation material on the computers. The hearing officers were subsequently fired based on the results of the search. One of the hearing officers then sued the workers' compensation office and its director for violating his rights as guaranteed by the Fourth Amendment.
The Varnado court ruled that the hearing officer and his secretary had a reasonable expectation of privacy in their offices, desks and file cabinets. The court stated that the offices were not generally open to public scrutiny and executive office arrangements are considered private by most members of society.(70) The hearing officer established that he kept personal papers and documents in his desk and he had private legal files in his office, desk and on his credenza. The court went on to rule that the search was unreasonable at its inception. The court reasoned that there were no reasonable grounds presented in the trial court record to establish that the director of the workers' compensation office could have concluded that the search would reveal any employee misconduct. The director stated that he had a gut feeling that the hearing officer was maintaining a private practice outside his duties as a hearing officer because of the hearing officer's reluctance to assimilate to the director's views that all private practice cease, but he had no information that the hearing officer was using state equipment or personnel.(71)
d. Inspector General Investigation
One of the basis that the Court in Ortega used to support its holding that probable cause is not the appropriate standard for work place searches was that when employers conduct an investigation, they have an interest substantially different from the need for law enforcement. In this regard, the Court stated that "while law enforcement officials are expected to school themselves in the niceties of probable cause, no such expectation is generally applicable to public employers, at least when the search is not used to gather evidence of a criminal offense. It is simply unrealistic to expect supervisors in most government agencies to learn the subtleties of the probable cause standard."(72) A reading of this justification for the Court's adaptation of a less than probable cause standard for work-related searches could cause one to derive the opinion that a work-related search by an investigative agency charged with the duty of investigating employee misconduct - like an Inspector General whom it could be assumed would know the law regarding issues of search and seizure - could not legally search an employee's office on less than probable cause. However, in Gossmeyer v. McDonald,(73) the United States Court of Appeals for the Seventh Circuit applied the Supreme Court's Ortega standard for public sector work-related searches in a case specifically dealing with an investigation conducted by an Inspector Generals Office.
Rose Gossmeyer was a Child Protective Investigator for the Illinois Department of Children and Family Services (hereinafter referred to as DCFS), and was assigned to a field office in Joliet, Illinois. In her position, Gossmeyer was required to investigate instances of child neglect, physical abuse, and sexual abuse and when necessary would photograph evidence for use in court proceedings. Due to limited storage space in the Joliet office, Gossmeyer bought, at her own expense, a four-drawer file cabinet and a two-door storage unit, each of which was equipped with a lock. Gossmeyer used the cabinet and storage unit to store work-related items. On August 8, 1994, Mary Dilworth, a Child Protective Lead Investigator from the Joliet office anonymously informed a detective with the Cook County Sheriff's Department that she worked in the Joliet office and that Gossmeyer had pornographic pictures of children in her file cabinet at work. The detective called the Office of Inspector General for DCFS (hereinafter referred to as the OIG).
On August 9, 1994, John Heath, an investigator for the OIG, called the supervisor of the Joliet office and instructed her to vacate all staff from the Joliet office. During the vacating of the office, Heath, two members of the Cook County Sheriff's Office, two Illinois State Police Officers, a United States Postal Inspector, and an unidentified DCFS employee named Jesse arrived at the Joliet office. Upon entering the office, Heath and Jesse stated that they were acting on an anonymous tip. No one in the group produced a warrant. Heath displayed a badge to the supervisor of the Joliet office, and Heath and Jesse were escorted to Gossmeyer's office. Heath and Jesse entered Gossmeyer's office and told the supervisor to unlock Gossmeyer's desk, filing cabinet, and storage unit. The supervisor had her own key to the storage unit, and she unlocked the unit. The supervisor did not have the key to unlock the file cabinet or desk. Heath and Jesse pried open the desk and file cabinet with their tools. The supervisor and another employee of the Joliet office were then detained in their offices, and were not allowed to make any telephone calls. Upon completing their search, Heath and Jesse put some items in a bag. Subsequently, Heath called the detective into Gossmeyer's office to look at some photographs. The detective told Heath that the photographs were evidence not pornography. Shortly thereafter, all left the premises. On August 10, 1994, Gossmeyer and her attorney met with Heath, who asked Gossmeyer if she would consent to a search of her desk. Gossmeyer refused.
Gossmeyer sued alleging, inter alia, a violation of her right to be free from unreasonable searches and seizures under the Fourth Amendment. The United States District Court granted motions to dismiss the counts alleging violations of the Fourth Amendment because it found that the search of Gossmeyer's office was reasonable and therefore legal. Gossmeyer appealed to the Seventh Circuit Court of Appeals arguing that the reasonableness standard from O'Connor v. Ortega was inapplicable because the search was not a workplace search but rather pursuant to a criminal investigation. Gossmeyer further argued that even if O'Connor v. Ortega applied, the district court erred in applying the standard because the search was unreasonable at its inception and in its scope.
The Seventh Circuit Court of Appeals first examined whether Gossmeyer had a reasonable expectation of privacy in her office, filing cabinet, two-door storage unit and desk. The Court was not persuaded that Gossmeyer had an expectation of privacy because she purchased the cabinets herself. The Court stated that "the cabinets were not personal containers which just happened to be in the workplace: they were containers purchased by Gossmeyer primarily for the storage of work-related materials."(74) The Court also pointed out that the desk, which Gossmeyer did not purchase, also likely had work-related materials in it. The Court held that "Gossmeyer had no constitutionally-protected privacy interest in her desk, two-door storage unit, or filing cabinet. These items were part of the 'workplace, not part of Gossmeyer's personal domain.'"(75)
The Seventh Circuit further held that the search met both prongs of the Ortega test, in that the search was justified at its inception and was reasonable in scope. The Court found that the search was justified at its inception because although the tip may have been anonymous, it showed sufficient signs of reliability. The signs of reliability included that the informant identified herself as one of Gossmeyer's co-workers in the Joliet office, made serious specific allegations of misconduct (i.e., that Gossmeyer had pornographic pictures of children and stated where the photographs could be found), the search took place one day after the tip was received and passed on to the OIG, and there was reason to believe that Gossmeyer's cabinets were more likely than most to contain such pictures since she had unusual access to children and extraordinary authority (conferred by the state) to take such pictures. The Court also considered that Gossmeyer's position involved gathering photographic evidence of abuse or neglect. This fact, stated the Court, could be considered both justifying and unjustifying the search at its inception. The Court also found that the search was reasonable in its scope. The Court found that the places searched were those places where Gossmeyer would likely store the alleged photographic pictures. The Court placed much emphasis on the fact that only OIG and DCFS personnel conducted the search. The Court noted that the presence of law enforcement personnel did not transform the work-related search into a criminal search requiring probable cause and a warrant.(76) The Court also placed great emphasis in the OIG's role in DCFS employee investigations.
Gossmeyer clearly illustrates the applicability of Ortega in the setting of an investigation conducted by an Inspector General. The facts presented in Gossmeyer are illustrative of the issues that an Inspector General must consider to ensure that a search during an investigation of work-related misconduct will not be later determined by a court to be a criminal search requiring probable cause and /or a warrant and the items recovered possibly inadmissable.
e. Computer Search
In U.S. v. Simons,(77) an electrical engineer (Simons) employed by the Foreign Bureau of Information Services (FBIS) of the Central Intelligence Agency (CIA), had access to the government computer system owned and operated by the CIA, and had access to the Internet. The systems operations center manager (manager) examined the firewall of the system to determine the capabilities of the system. At that time he had no reason to believe that there was any inappropriate use of the network going on before he began his examination. The manager found that in searching by using the keyword "sex", the firewall's log contained many hits. The manager could see by looking at the web sites that they were not necessarily for business purposes. The manager informed a supervisor about what he had found. Robert Harper (Harper), whose duties include monitoring, troubleshooting, and repairing the computer system, was asked by the supervisor to verify whether the site was pornographic. Harper, from his office, went to the site and verified that it was pornographic. Then, again from his office, Harper accessed Simons' computer and determined that over one thousand files had been downloaded that contained pictures. Harper examined several of the downloaded files and determined that they were pornographic in nature. Harper then copied the contents of the hard drive of Simons' computer. This was done from Harper's computer via the network. Special Investigators for the CIA reviewed certain files which appeared to depict child pornography. After that, Harper went into Simons' office, removed his hard drive, and replaced it with a copy of the original hard drive. Subsequently, an FBI special agent reviewed the contents of the hard drive. The special agent obtained a search warrant to search Simons' office. During the search, copies were made of Simons' hard drive and of floppy disks found in Simons' desk. Copies were also made of documents that pertained to computer screen names and personal correspondence.
Simons was subsequently charged criminally with receiving and possessing materials containing child pornography. Simons moved to suppress evidence obtained from his office computer. Simons' motion to suppress was denied by a judge from the United States District Court for the Eastern District of Virginia. Initially in denying Simons' motion, the court found that Simons did not have a reasonable expectation of privacy with regard to any Internet use. The court gave great weight to the FBIS policy regarding Internet use. The FBIS policy provided that the permitted use of the Internet included official business use, incidental use, lawful use, and contractor communication. The policy further provided that audits would be performed of Internet use and that supervisors were responsible for ensuring appropriate Internet use for all employees under their direction. The court gave great weight to the fact that the policy stated that the audits shall be implemented to support identification, termination and prosecution of unauthorized activity. The court further placed great weight on the fact that the policy stated that the audits would be capable of recording web sites visited. In light of the language of the policy, the court found that Simons' did not have any reasonable expectation of privacy with respect to any of his Internet activities.
The court further found that even if Simons did have a reasonable expectation of privacy, under the Ortega standard, the searches of Simons' computer were consistent with the Fourth Amendment. First, the court found that the search of the computer was justified at its inception. The court found that when the manager first conducted his examination of the firewall, he did not look at one particular user's activity. After the keyword "sex" search showed a large number of hits, he determined that a significant number of hits traced back to Simons' computer. The court stated that "(t)his 'search'- and the court questions whether this even constitutes a search - was justified at its inception because it was (the manager's) duty as Manager to monitor Internet use. The search was also reasonably related in scope because it was reasonable that a keyword 'sex' search would show whether any users were engaging in inappropriate workplace computer activity."(78) The court further found that Harper's review of Simons' work station computer was justified at its inception because there was already evidence that Simons' computer had visited a pornographic web site. The court also found that a review of Simons' computer from Harper's own office was reasonable in scope because there was no entry into Simons' office. The court additionally found that the special investigators review of Simons' hard drive was also reasonable given that Harper had discovered that Simons had downloaded thousands of pictures, which were pornographic in nature. The court found that it was reasonable for the special investigators to review Simons' hard drive to make a determination of whether there was any child pornography, and the search was reasonable in scope because the investigators only reviewed the hard drive, without ever entering Simons' office. Finally, the court found that the retrieval of Simons' hard drive from his office was reasonable. The court found that at that point, there was evidence that Simons was downloading child pornography off the Internet onto his own computer. The court found that Harper took nothing more than Simons' hard drive, and found that this was reasonable in light of all the other evidence showing that Simons had engaged in improper computer activity.
Simons argued that once the manager discovered the high volume of Internet use at Simons' work station, the investigation should have ended because the CIA was on notice of the workplace misconduct. Simons argued that by further pursuing the investigation, the government was no longer investigating workplace misconduct, but was engaging in a criminal investigation. The court rejected this argument by finding that the CIA had a legitimate workplace interest in continuing with the investigation after the manager determined that one work station had a high volume of Internet use. The court stated that actions an employer might take in response to an employee's misconduct most likely would differ depending on the magnitude of the employee's misconduct; accordingly, the court found that the CIA had a legitimate interest in continuing the investigation into Simons' misconduct. The court also added that the FBIS policy provided that audits would be conducted to support the prosecution of unauthorized Internet activity illustrates the CIA's interest in fully investigating Simons' misconduct.
IV. Other Considerations
a. Admissibility
An issue which frequently arises in the administrative setting is whether a personnel board, arbitrator, or other disciplinary forum can rely on evidence, which is excluded from a criminal proceeding as the fruits of an illegal search and seizure, to establish that an employer had just cause to fire an employee. The United States Supreme Court has construed the exclusionary rule as a remedy, not a right.(79) The Supreme Court takes the view that evidence, barred from a criminal proceeding as a deterrent to illegal police misconduct, may be admissible in a civil proceeding where the deterrent effect of applying the remedy is out-weighed by the costs of exclusion and where the party whose rights were violated is not without other forms of redress. In this regard, courts have found that evidence suppressed at a criminal proceeding would be admissible in a personnel board hearing, (80) an employee disciplinary hearing before an arbitrator,(81) in a federal civil tax proceeding,(82) and in an attorney disciplinary proceeding.(83)
In Finkelstein v. State Personnel Board,(84) the Court of Appeals for the Third District of California ruled that the exclusionary rule did not preclude the admission of evidence discovered during the search of an employee's briefcase that was not predicated on employee misconduct. In Finkelstein, the search was conducted by a supervisor who searched employees' desks to insure that all confidential material maintained by the office was boxed-up prior to relocating the office. In searching the desks of the employees, the supervisor noticed that two employees had left briefcases under their desks. The supervisor searched the briefcases and in one found evidence that the employee was engaged in a joint venture with a business that posed a conflict to the governmental agency. The court stated that the exclusionary rule would not deter this type of search since the search was not motivated by the desire to uncover evidence damaging to the employee.(85)
However, in Dyson v. California State Personnel Board,(86) a youth counselor was dismissed from employment after nine t-shirts and two intercoms belonging to the school where he worked were seized from his home. The search of the employee's home was initiated, directed and participated in by the chief of security from the school acting in his role as a peace officer investigating allegations of theft by the employee. The evidence was turned over to police authorities for use in the criminal prosecution of the employee for the offense of theft. The evidence was excluded and the criminal prosecution dismissed on grounds that the search violated the employee's constitutional rights to privacy. The employer then retrieved the evidence and introduced it in the administrative disciplinary hearing. The same California court that ruled the evidence admissible in Finkelstein held that the evidence must also be excluded from the administrative disciplinary proceeding. Due to the particular nature of the investigation of the criminal allegations and the extent of the agency (school) involvement, the court reasoned that the deterrent effect of the exclusionary rule would work directly on the agency conducting the search for evidence of the crime.(87)
b. Immunity
Another concept that an Inspector Generals Office or internal investigator must be aware of is immunity. Many causes of action brought by employees seeking redress for allegedly improper searches include claims against the individuals who conducted the search or their supervisors. A government official performing discretionary functions is shielded from liability for civil damages if his conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.(88) If a reasonable person would realize that what he is doing violates a clearly established right of the plaintiff, then immunity does not attach.(89) Therefore, if the investigator, or their supervisor who orders the search, knows that the search violates the rights of the person being searched, they can be subject to personal liability for their actions. An investigative office managed by an attorney may be held to a higher standard than offices managed by purely "investigative" personnel when determining whether or not to attach immunity to their actions.
In Varnado, discussed above, the director of the workers' compensation office contended that he was entitled to qualified immunity, since he acted reasonably and without malicious intent in attempting to enforce the laws of the state. The court stated that in reviewing the director's actions, the question is whether a reasonable person could have believed that these searches were lawful, in light of clearly established law and the information the director possessed. After reviewing all the facts of the case, the court held that a reasonable person could not have believed that these searches were lawful, in light of the law and the information possessed by the director.(90) The director was therefore personally liable for damages incurred by the hearing officer.
In Shields v. Burge,(91) a sergeant involved in narcotics investigations was suspected of providing information about an ongoing narcotics investigation to one of the investigation's targets and unlawfully transferring marijuana to a confidential source. An internal investigation was begun. As part of the investigation, internal investigators searched the sergeant's desk in his office and his state issued automobile. A locked briefcase found in the trunk of the vehicle was also searched. The sergeant eventually sued the internal investigators and his superiors alleging that the search of his desk, automobile and briefcase violated his Fourth Amendment rights. The court first noted that the record they were given on appeal did not contain sufficient facts for it to decide the propriety of the searches. The court did, however, state that since the sergeant only sought monetary damages from the internal investigators and the superiors, it could decide the case based on qualified immunity. The court noted that the search of the sergeant's property took place in 1985, prior to the United States Supreme Court's decision in Ortega. The court stated that prior to Ortega, little caselaw existed regarding the propriety of searches for work-related misconduct. Therefore, the court ruled, it would have been reasonable for the internal investigators in 1985 to have interpreted the caselaw as it existed and determine that searching the sergeant's desk would not violate the Fourth Amendment.(92) The court then addressed the search of the sergeant's briefcase which was discovered in his department issued vehicle. The court distinguished this case from searches of automobiles during criminal investigations and was unable to find any caselaw holding that it was unlawful to search a closed personal container found during a lawful workplace search. The court reasoned that a case directly on point is not necessary to clearly establish that the sergeant had a constitutional right to be protected from a search of his briefcase, but closely analogous cases, decided before the internal investigators acted, are required.(93) Without at least analogous caselaw holding that such a search was improper, the internal investigators could not be held personally liable for their actions. The court stated that in balancing all the relevant factors including the search's intrusiveness, the search's work related nature, and the special interest in police integrity, the internal investigators could have reasonably concluded that the briefcase search was reasonable and therefore lawful.(94)
V. Conclusion
In O'Connor v. Ortega, the United States Supreme Court, in a plurality opinion, held that reasonableness of searches conducted pursuant to investigations of work-related misconduct would be judged by a different standard than searches conducted pursuant to criminal investigations. The "reasonable under all circumstances" standard announced in Ortega and applied by the various state and federal courts presents the Inspector General with many issues. A clear understanding of the law in this area will aid the Inspector General in making effective investigative decisions and will enable the Inspector General to ensure the admissibility of evidence discovered in searches pursuant to investigations of employee misconduct.
1. This article was prepared to be part of a presentation by the authors to the National Training Conference and Meeting of the Association of Inspectors General on May 13, 1999 in Chicago, Illinois.
2. The administrative/criminal dichotomy has equally great ramifications in the area of investigative interviews and interrogations. See Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913 (1989); Blunier v. Board of Fire and Police Commissioners of the City of Peoria, 190 Ill. App. 3d 92, 545 N.E.2d 1363 (Ill. App. 3rd Dist. 1989).
3. 480 U.S. 709, 107 S. Ct. 1492 (1987).
4. It should be noted that this article will not discuss a vast area of work-related search and seizure namely drug testing. See National Treasury Employees' Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384 (1984).
5. Skinner v. Railway Labor Executives' Association, 489 U.S. 602, 109 S.Ct. 1378 (1989).
6. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656 (1984).
7. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421 (1978).
8. Skinner, supra note 4.
9. Massachusetts v. Shepard, 468 U. S. 981, 104 S.Ct. 3424 (1984).
10. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034 (1969).
11. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2020 (1971).
12. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860 (1981).
13. New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636 (1987).
14. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).
15. See Skinner, supra note 4(drug and alcohol testing of railroad employees); Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164 (1987)(search of probationer's home); New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733 (1985)(search of student's property by school officials); Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979)(body cavity searches of prison inmates).
16. It should be further noted that by the time that this case was remanded to the District Court, the hospital took the position that the search was made as part of its investigation of allegations of sexual misconduct by Dr. Ortega. See, Ortega v. O'Connor, 146 F.3d 1149 (9th Cir. 1998).
17. 474 U.S. 1018 (1985).
18. A plurality opinion occurs when the Court decides a case without a majority of justices agreeing on a rationale. See Shields v. Burge, 874 F.2d 1201, 1203-1204 (7th Cir. 1989) and Schowengerdt v. General Dynamics Corp., 823 F.2d. 1328, 1335 (9th Cir. 1987). For purposes of this article, the plurality's opinion will be referred to as the "Court's opinion".
19. Ortega, 480 U.S. 709, 716, 107 S.Ct at 1496.
20. Id., 480 U.S. at 717, 107 S.Ct. at 1497.
21. Id., 480 U.S. at 718, 719, 107 S.Ct at 1497, 1498.
22. The Ninth Circuit Court of Appeals held, after finding that Dr. Ortega had a reasonable expectation of privacy in the desk and file cabinets, that the search was unreasonable and thus unlawful applying the traditional warrant probable cause standard.
23. 469 U.S. 325, 337, 105 S.Ct. 733, 740 (1985).
24. Ortega, supra 480 U.S. at 720, 107 S.Ct. at 1498-99.
25. Id., 480 U.S. at 722, 107 S.Ct. at 1499.
26. Id., 480 U.S. at 723, 107 S.Ct. at 1500.
27. Id., 480 U.S. at 726, 107 S.Ct. at 1502, citing New Jersey v. T.L.O., 469 U.S. at 351, 105 S.Ct. at 478 (Blackmun, J., concurring in judgment).
28. Id., 480 U.S. at 727, 107 S.Ct. at 1502.
29. Id., 480 U.S. at 727, 107 S.Ct. at 1502.
30. 720 F. Supp. 994 (M.D. Ga. 1989).
31. Id. at 998.
32. Mancusi v. DeForte, 392 U.S. 364, 368 (1968).
33. Schowengerdt v. General Dynamics, 823 F.2d 1328, 1335 (9th Cir. 1987).
34. 923 F.2d 665 (9th Cir. 1991).
35. Id. at 673.
36. 930 F. Supp. 501 (D. Kan. 1996).
37. Id. at 507.
38. Id.
39. 170 Mich. App. 701 (1988).
40. Id. at 707.
41. 8 F.3d 104 (1st Cir. 1993).
42. Id. at 110.
43. Schowengerdt v. United States, 944 F.2d 483 (9th Cir. 1991).
44. Id. at 485.
45. Chicago Fire Fighters Union Local 2 v. City of Chicago, 717 F. Supp. 1314, 1318-1319 (N.D. Ill. 1989).
46. Id. at 1321.
47. State v. Francisco, 790 S.W.2d 543, 544 (Tenn. Crim. App. 1989).
48. Id. at 545.
49. Id.
50. 909 S.W.2d 454 (Tenn. Crim. App. 1994).
51. Id. at 458-459.
52. 871 F.2d. 556 (6th Cir. 1989).
53. Id. at 560.
54. Bateman v. State, 513 So. 2d 1103 (Fla. App. 2d Dist. 1987).
55. 18 F.3d 147 (2nd Cir. 1994).
56. Id. at 152 (For a more complete discussion of the law as it applied to the facts in this case, see Sheppard
v. Beerman, 822 F. Supp. 931 (E.D.N.Y. 1993).
57. 525 So.2d 84 (La. App. 3rd Cir. 1988).
58. Id. at 87.
59. 637 So. 2d 109 (La. 1994).
60. Id. at 112.
61. Id. at 113.
62. Id.
63. Id.
64. 699 F. Supp. 1020 (D. Puerto Rico 1988).
65. Id. at 1025.
66. Id.
67. 826 F. Supp. 952 (E.D. Pa. 1993).
68. Id. at 954.
69. 687 So. 2d 1013 (La.App. 1st Cir. 1996).
70. Id. at 1024.
71. Id. at 1030.
72. Id., 480 U.S. at 725, 726, 107 S.Ct. at 1501.
73. 128 F.3d 481 (7th Cir. 1997).
74. Id. at 490.
75. Id.
76. The Court relied on Shields v. Burge, 874 F.2d 1201 (7th Cir. 1989) and United States v. Nechy, 827
F.2d 1161 (7th Cir. 1987) to support its position that the presence of outside law enforcement personnel and the
possibility of the search leading to criminal charges do not inevitably transform the work-related search into a
criminal search requiring probable cause and a warrant.
77. 29 F. Supp. 2d 324 (E.D. Va. 1998).
78. Id. at 328.
79. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613(1974); United States v. Janis, 428 U.S. 433,
96 S.Ct. 3021(1975).
80. Finkelstein v. State Personnel Board, 218 Cal. App. 3d 264 (3d Dist. 1990).
81. Pennsylvania Social Services Union v. Pennsylvania Board of Probation and Parole, 508 A.2d 360
(1986).
82. United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021(1975).
83. Emslie v. State Bar, 11 Cal.3d 210, 520 P.2d 991(Cal. 1974).
84. 218 Cal. App. 3d 264 (Third Dist. 1990).
85. Id. at 268-271.
86. 213 Cal. App. 3d 711 (Third Dist. 1989).
87. Id. at 719.
88. Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 (1982).
89. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3038-39 (1987).
90. Varnado v. Department of Employment and Training Office of Workers' Compensation, 687 So.2d 1013
(La. App. 1st Cir. 1996).
91. 874 F.2d 1201 (7th Cir. 1989).
92. Id. at 1206.
93. Id. at 1208, citing Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir.), cert.denied 109 S.Ct. 497 (1988);
See also Ross v. Hinton, 740 F. Supp. 451 (S.D. Ohio 1990).
94. Id. at 1209.