O'Connor v. Ortega

Jeffrey T. Miller, one of Van de Kamp's deputies, argued for the petitioners. He did not deny that government employees had Fourth Amendment rights, but "the activity that took place in this case did not constitute a search within Fourth Amendment jurisprudence". He insisted that the Court should follow the district court's lead in finding that Dr. Ortega's office had been inventoried, not searched, until he was reminded that the district court had merely found the action to be a securing of the property in case Ortega returned to remove something else, and had not even used the word "inventory." It would not have been reasonable for the doctor to have imagined that no one else would or could have entered the office without his consent or knowledge in the 17 years he was employed at Napa.[11]

Likewise, a desk was a "common repository", likely to be used by many people besides the one regularly seated behind it. "It is foreseeable that a number of different people working for government, from clerical staff to supervisors to colleagues, will move into an office, that is, enter an office, open a desk for a variety of reasons." When Justice Sandra Day O'Connor challenged him as to whether employees in the private sector would have a reasonable expectation of privacy over their desks, he agreed that they might but reminded her the Fourth Amendment does not apply to private employers.[11]

He asked that the Court follow the logic of its 1985 ruling in New Jersey v. T. L. O.[12] in which it had held that only a reasonable belief that evidence of misconduct would be found was needed to justify a search of a student or possessions on school property during school hours. Chief Justice William Rehnquist asked Miller if he was arguing the Fourth Amendment did not apply at all in schools. "it seems to me there is certainly language in T.L.O. against you on that point." That case, Miller responded, "had at least made the initial inquiry into whether the Fourth Amendment was applicable."[11]

The other justices were not convinced that Ortega's office had been entered for inventory purposes. They pointed to facts in the record they saw as being at odds with the state's interpretation. Antonin Scalia asked if it were possible that the Court could rule that it was an inventory but the actions taken had exceeded the scope of those necessary to accomplish that. Miller said that would be moot as there was no expectation of privacy over the desk and office. He further explained that Ortega's key may have given him a subjective expectation of privacy, but not necessarily a reasonable one. Miller admitted to Thurgood Marshall that he did not know why the inventory could not have been done in Ortega's presence to better facilitate the sorting of property.[11]

He noted that most public agencies have an Inspector General or something similar, who "every now and then drops in on offices to see if employees have their own things in their office". When Justice Byron White asked if his position implied that a public agency could search its employees' desks or offices at any time of the day or night, he said yes. "It may give rise to work grievances, to state and common law tort remedies ... but it would not violate the Fourth Amendment in our view."[11]

"Our argument rests on three propositions", Klein told the justices. "[F]irst, that it is both customary and reasonable for a public employee to keep personal papers and effects in his work office and to expect that the privacy of such materials will be protected against arbitrary searches or seizures by his employer; second, that the application of the Fourth Amendment to office searches is not incompatible with the government's responsibilities as an employer."[13]

Before he could get to the third, he was challenged by Scalia, who posited a situation where he might be working late and need to retrieve a document or file. He would find it on the desk of one of his law clerks, who might have gone home for the day. "Now," he asked, "have I conducted a Fourth Amendment search and seizure, and I am only immune from ... suit because it was reasonable?[13]

Klein conceded to another justice's follow-up question that it was understood that, in all offices, "our expectation is, in the evenings, when people go home, others may on the basis of need enter ... The Fourth Amendment does not apply in most situations to a routine office entry, that is, if an employer or co-worker walks into your office looking for a paper clip." However, he said, that understanding did not defeat an expectation of privacy, likening it to a hotel room, where the Court had previously held there was an expectation of privacy even though hotel staff routinely enter for janitorial purposes. Scalia asked if it would be a Fourth Amendment violation if cleaning crews were to have looked through Ortega's desk and papers. "I don't think they would be exercising government authority in that situation", Klein answered, since the cleaning crews were presumably under instructions not to do so.[13]

O'Connor asked if it would be reasonable for a supervisor to enter an office and look through a desk to "discover whatever might be appropriate for work-related wrongdoing of some kind?" As an example, she suggested, a supervisor might want to assess an employee's progress toward a deadline. Klein did not think so, since normally such matters are handled by asking the employee to produce whatever work has been completed.[13]

To highlight his argument that the intrusion into Ortega's office had been a search rather than a property inventory, he used the example of the book of poetry, which was obviously personal property. "[I]f you pick up a book of poetry you don't have to open that book to find out who sent it to him." It was suggested that perhaps he read poetry to his patients, but Klein responded that the state had not suggested that and that, even if he did the book was still undeniably personal property.[13]

He, too, compared the case with T.L.O., telling Justice White that he believed a search warrant might have been necessary to enter Ortega's office in this situation. "[L]et me just say that I think that they were looking for information to use against him to take his job away from him. He had been singled out", Klein said. "[E]ven if you take the T.L.O. standard, it is inconceivable that we could have a lower standard at the work place than we have at the school given the interests of employees and their adult age ... [T]here has to be reasonable suspicion when you go in to do the search that you will uncover evidence." If the state or the hospital had really wanted the right to enter employees' offices, it could have followed the example of the Mint and the Customs Service and promulgated a regulation stating that employees' property could be subject to search.[13]

After recounting the history of the case and the sweep of the Court's prior Fourth Amendment jurisprudence, O'Connor, joined by Chief Justice Rehnquist, Justice White, and Justice Powell, defined the boundaries of the workplace context as "those areas and items that are related to work and are generally within the employer's control." Some items that passed through the workplace were personal, and as the Court had ruled in Mancusi, a reasonable expectation of privacy may exist there. "[W]e reject the contention made by the Solicitor General and petitioners that public employees can never have a reasonable expectation of privacy in their place of work," she wrote. "Individuals do not lose Fourth Amendment rights merely because they work for the government, instead of a private employer."[14]

She immediately qualified that holding.

The operational realities of the workplace, however, may make some employees' expectations of privacy unreasonable when an intrusion is by a supervisor, rather than a 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 ... 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. Simply put, it is the nature of government offices that others—such as fellow employees, supervisors, consensual visitors, and the general public—may have frequent access to an individual's office.[15]

Moving from the general principle to the case at hand, O'Connor agreed that Ortega had that same reasonable expectation of privacy, but that since the record did not reflect the extent of whatever legitimate work-related reasons the hospital administrators might have had to enter the office, the Ninth Circuit should have remanded the case to the district court to determine that, as the majority was doing. Following T.L.O., she said the inquiry should not stop with determining the Fourth Amendment applied, but whether the context made the search reasonable. "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."[16]

There was, O'Connor admitted, "surprisingly little case law" on the subject. That which existed did seem to support the standard she proposed for work-related searches, most notably a 1973 case from the Seventh Circuit in which the surreptitious recording of an Internal Revenue Service's agent's conversations at his desk by the agency's internal investigators was held to be reasonable and work-related,[17] and a 1951 case from the District of Columbia which held that although a search of the appellee's desk by local police with her government supervisor's permission was unconstitutional, a work-related search by her supervisor would not have been.[18] She distinguished these from other cases that proposed other standards for public workplace searches by noting that those cases were either not work-related or involved criminal misconduct.[19]

"In our view," O'Connor continued,

requiring an employer to obtain a warrant whenever the employer wished to enter an employee's office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable.

She quoted from Connick v. Myers, an earlier case which had considered the First Amendment rights of an assistant prosecutor fired for allegedly disruptive behavior: "[G]overnment offices could not function if every employment decision became a constitutional matter."[20]

O'Connor announced that the Court would consider only the constitutionality of work-related and investigatory searches "and leave for another day inquiry into other circumstances." She found "the efficient and proper operation of the workplace" to similarly justify investigatory searches, since supervisors had different needs from law enforcement. "The delay in correcting the employee misconduct caused by the need for probable cause, rather than reasonable suspicion, will be translated into tangible and often irreparable damage to the agency's work, and ultimately to the public interest." She again cited T.L.O. to justify this standard.[21] "Government offices are provided to employees for the sole purpose of facilitating the work of an agency. The employee may avoid exposing personal belongings at work by simply leaving them at home."[22]

Lastly O'Connor found the district court's finding on summary judgment that the intrusion was for the purposes of securing state property to be in error since there was a genuine dispute of fact. It followed then that the appellate court could not have made a definitive finding of fact either. The case was remanded to the district court with instructions to both determine what justified the search and seizure of Ortega's property and whether that search was reasonable in both its inception and scope.[23]

Justice Scalia agreed that the case should be remanded, but felt it was not helpful to call for a case-by-case assessment, since it was difficult to make practical use of. He found fault with O'Connor's comment, justifying her "operating realities" test, that some public workplaces might be "so open" as to offer no reasonable expectation of privacy. "No clue is provided as to how open 'so open' must be; much less is it suggested how police officers are to gather the facts necessary for this refined inquiry ... [I]t is so devoid of content that it produces, rather than eliminates, uncertainty in this field."[24]

The plurality's standard could not be right if it led to a conclusion that the Fourth Amendment did not apply to a work-related entry into Ortega's office.

It is privacy that is protected by the Fourth Amendment, not solitude. A man enjoys Fourth Amendment protection in his home, for example, even though his wife and children have the run of the place—and indeed, even though his landlord has the right to conduct unannounced inspections at any time.

Whether it was a supervisor or police officer entering the office, he said, only made a difference as to whether the search was reasonable, not whether the Fourth Amendment applies. When a firefighter enters a house where an alarm has gone off, he noted, "we do not ask whether the occupant has a reasonable expectation of privacy (and hence Fourth Amendment protection) vis-a-vis firemen, but rather whether—given the fact that the Fourth Amendment covers private dwellings—intrusion for the purpose of extinguishing a fire is reasonable",[25] citing the Court's Michigan v. Tyler ruling.[26][note 3]

Scalia argued that the offices and desks of public employees were covered by the Fourth Amendment as a general matter, choosing his words to avoid the Katz rule that places exposed to public view are not covered by the Fourth Amendment since some government offices, as O'Connor had noted, were subject to unrestricted public access. "Government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private employer context—do not violate the Fourth Amendment." Since the evidence in the case did not support a summary judgement, he joined his colleagues in ordering the case remanded.[27]

At the outset of his dissent, signed by Justices Brennan, Marshall and Stevens, Justice Blackmun said "The facts of this case are simple and straightforward. Dr. Ortega had an expectation of privacy in his office, desk, and file cabinets, which were the target of a search by petitioners that can be characterized only as investigatory in nature." He disagreed with the plurality that there was anything special about a public workplace that justified a lower standard for such searches, and called the intrusion an unconstitutional search. Not only had it found what were to him clear facts in dispute,[note 4] it had nevertheless chosen to derive a standard from a case it had remanded to resolve that dispute. "As a result, the standard that emerges makes reasonable almost any workplace search by a public employer."[28]

As to the facts, Blackmun contended the plurality had been confused, partially relying on Ortega's removal of the computer as a reason to consider the intrusion reasonable when, he noted, the record itself had testimony from Friday that this had not triggered the search. Dr. O'Connor had further admitted in his deposition that there was an investigatory interest in the contents of Ortega's office. The searchers had also consulted with a lawyer and waited until the evening. "The search in question stemmed neither from a Hospital policy nor from a practice of routine entrances into Dr. Ortega's office", he wrote. "It was plainly exceptional and investigatory in nature. Accordingly, there is no significant factual dispute in this case."[29]

Blackmun began his disagreement with the plurality's embrace of the reasonable suspicion standard by agreeing with it that government employees retained their Fourth Amendment rights at work. He accepted as well that routine work-related intrusions might diminish their expectation of privacy. He did not accept that such intrusions would eliminate it.[30]

The Court had always recognized Fourth Amendment rights in offices, he said, despite the understanding that it would be visited by others. The plurality did recognize, he conceded, another point: that a search unreasonable in one context might be reasonable in another.[note 5] But

[...] the reality of work in modern time, whether done by public or private employees, reveals why a public employee's expectation of privacy in the workplace should be carefully safeguarded and not lightly set aside. It is, unfortunately, all too true that the workplace has become another home for most working Americans. Many employees spend the better part of their days and much of their evenings at work. [...] As a result, the tidy distinctions (to which the plurality alludes) between the workplace and professional affairs, on the one hand, and personal possessions and private activities, on the other, do not exist in reality. Thus, the plurality's remark that the "employee may avoid exposing personal belongings at work by simply leaving them at home," reveals on [their part] a certain insensitivity to the "operational realities of the workplace"[31]

Thus he thought it especially important that the context of the search be considered.[32]

Justice Blackmun reminded the plurality that his concurring opinion in T.L.O., from which Justice O'Connor had drawn support for her "special need" argument, was meant to address an error he believed that case's plurality had made. The balancing test he had proposed there was not needed here, since "[t]here was no special practical need that might have justified dispensing with the warrant and probable cause requirements." The time and effort required to get a warrant, he said, would not have detracted from the hospital's mission of providing quality patient care and educating new psychiatrists. An independent review by a magistrate might, he added, have helped make the search not only constitutional but more efficient, since they would have been forced to list and justify every aspect of the office and desk they wished to look through.[33]

And even if there were a special need, the balancing test would still not be necessary.

It is certainly correct that a public employer cannot be expected to obtain a warrant for every routine entry into an employee's workplace. This situation, however, should not justify dispensing with a warrant in all searches by the employer. The warrant requirement is perfectly suited for many work-related searches, including the instant one.

Despite claiming to have drawn well-defined standards from the facts of the case, the two categories of searches it had approved as not requiring warrants, they were, Blackmun felt, so broadly drawn that "it is difficult to imagine a search that would not fit into one or the other ..."[34]

As Ortega's dispute with his lawyer was coming to an end, elsewhere in California the events were unfolding that would lead to the next case where the Court would consider the Fourth Amendment rights of public employees during administrative investigations. In 2000 the city of Ontario purchased 20 alphanumeric pagers for its police department SWAT team to carry on and off-duty. A department policy, never put in writing, said that "light personal use" was permitted but that the pager messages could be audited at any time.

Several officers routinely exceeded the monthly character limit. The lieutenant in charge of the pagers at first allowed them to reimburse the city for the overage fees in exchange for not auditing the messages. Later, when he was "tired of being a bill collector", he and his superiors decided to audit the text messages to see if the character limit was too low.

Transcripts of the pager messages, redacted to include those sent only during work hours, showed that many of them were not work-related, and some were sexually explicit. Two officers were disciplined. Afterwards, they sued the superior officers, the department, the city and the pager provider for violation of the Stored Communications Act and their Fourth Amendment rights. The district court held a jury trial, which determined the audit was work-related, and it ruled for the defendants.

On appeal the Ninth Circuit reversed, calling the audit an unreasonable search.[50] After being denied their petition for an en banc rehearing, the defendants successfully petitioned the Supreme Court for certiorari.[51] The Court would only consider the Fourth Amendment claim, so the wireless provider was dropped as a petitioner there.

The case received much attention since it also was the first time the Court had considered Fourth Amendment rights in the rapidly expanding area of electronic telecommunications.[52] Only Scalia and Stevens remained from the O'Connor court. As a result, it was also seen as a possible chance to resolve the conflict between the plurality's "operating realities" standard and Scalia's.[53]

In June 2010, the Court unanimously upheld the search. Instead of choosing one of the O'Connor standards, it applied them both. Anthony Kennedy wrote for a seven-justice majority that since the audit had had a legitimate work-related purpose and its scope was limited to the pager messages sent at work, it was reasonable enough for the plurality in that case, and it would have been reasonable for a private-sector employer as Scalia had proposed.

Stevens and Scalia both wrote separate concurring opinions. The former felt that, under the case-by-case approach Blackmun had advocated in his O'Connor dissent, Quon in this case knew or should have known all his communications could have come under public scrutiny. Scalia's opinion of the "operational realities" test remained unchanged. He called it "standardless and unsupported" and said the Quon majority "underscores the unworkability of that standard".