WARRANTLESS WORKPLACE within which the principles outlined in SEARCHES OF GOVERNMENT O’Connor for “workplace” searches by EMPLOYEES government supervisors can be understood and applied. In sum, when a government

supervisor is considering the search of a Bryan R. Lemons government employee’s workspace, a two- Branch Chief part analysis can be utilized to simplify the

process. First, determine whether the There are a variety of reasons why employee has a reasonable expectation of a government supervisor might wish to privacy in the area to be searched. If a search a government employee’s reasonable expectation of privacy does workplace. For example, a supervisor exist, then consider how that expectation might wish to conduct a search to locate a can be defeated.2 Before turning to those needed file or document; the supervisor issues, however, it is necessary to first might wish to search an employee’s define exactly what is meant by the term workplace to discover whether the “workplace.” employee is misusing government property, such as a government-owned DEFINING THE “WORKPLACE” computer; or, a supervisor might seek to search an employee’s workplace because “Workplace,” as used in this he has information that the employee is article, “includes those areas and items committing a crime, such as using the that are related to work and are generally Internet to download child pornography. within the employer’s control.”3 This

would include such areas as offices, desks, In situations where a public filing cabinets, and computers. However, employer wants to search an employee’s “not everything that passes through the office or desk, a number of questions confines of the business address can be typically arise and must be addressed, considered part of the workplace including: Can government employees context.”4 As a general rule, a government have a reasonable expectation of privacy employee would continue to have an in their offices, desks, computers, and expectation of privacy in his or her filing cabinets? If such an expectation of personal belongings that have been privacy does exist, what standards must a brought into the workplace environment. supervisor follow to lawfully conduct a Thus, “the appropriate standard for a warrantless search of those areas? Must a workplace search does not necessarily supervisor have probable cause to search a government employee’s workplace? Or, is a search permitted on some lesser standard 2 See, e.g., State v. Ziegler, 637 So. 2d 109, 112 of suspicion? (La. 1994)(“The O’Connor Court set forth a two- pronged analysis for determining whether an employee’s Fourth Amendment rights were While the Supreme Court violated by an administrative search and seizure. addressed many of these questions in First, the employee must have a reasonable O’Connor v. Ortega,1 it has fallen to lower expectation of privacy in the area searched, or in courts to address others. The purpose of the item seized. … Second, if a reasonable expectation of privacy exists, the Fourth this article is to provide a framework Amendment requires that the search be reasonable under all circumstances”) 3 O’Connor, 480 U.S. at 715 1 480 U.S. 709 (1987)(plurality) 4 Id. at 716 apply to a piece of closed personal by Gonzalez when he first began working luggage, a handbag, or a briefcase that at the exchange put him on notice that he happens to be within the employer's might be required to submit to a search of business address.”5 This is not to say, of his personal belongings. Thus, Gonzalez’s course, that a public employee’s personal “expectation of privacy was limited by his property can never be included within the knowledge of the store policy of searching workplace context. In fact, just the employees’ belongings to deter and opposite is true. A public employee’s apprehend theft.”8 private property may, in certain circumstances, fall within the scope of a A similar result was reached by the “workplace” search.6 Although not Seventh Circuit Court of Appeals in always the case, this can occur when an Gossmeyer v. McDonald.9 Gossmeyer employee is put on notice that his or her was employed by the Illinois Department property can be searched as part of the of Children and Family Services (DCFS) workplace environment. as a Child Protective Investigator in the Joliet, Illinois, field office. Her “position For example, in the Ninth Circuit required her to investigate instances of case of United States v. Gonzalez,7 the child neglect, abuse, and sexual abuse,” defendant was an employee of a military and “involved photographing evidence for exchange. Upon leaving work, he was use in court proceedings.”10 Because of a stopped by a store detective, who sought lack of storage space, Gossmeyer, at her permission to search a personal backpack own expense, purchased two separate that was in Gonzalez’ possession. storage devices. Specifically, she bought a Because he had been required to sign a four-drawer filing cabinet, in which she paper indicating that his belongings, such kept “evidentiary photographs, as his personal backpack, might be photographic equipment, files, and inspected as a means of deterring theft documents,”11 and a two-door storage unit, among the employees, Gonzalez in which she kept various items. When a consented. Approximately $15.00 worth local detective received an anonymous tip of stolen spark plugs were found in the from one of Gossmeyer’s co-workers backpack. After his motion to suppress stating that Gossmeyer had pornographic this evidence was denied, Gonzalez pictures in these cabinets, the detective pleaded guilty to larceny, but reserved his notified the DCFS Office of Inspector right to appeal. On appeal, Gonzalez General. The next day, a warrantless claimed, among other things, that the search of Gossmeyer’s office, filing search of his backpack violated the Fourth cabinet, storage unit, and desk occurred, Amendment. In its ruling, the court did with some items being seized. No charges not reach the issue of whether the consent were ever brought against Gossmeyer, and given by Gonzalez was valid or not. she brought a lawsuit alleging the Instead, the court noted, the paper signed warrantless search violated her Fourth Amendment rights. Gossmeyer asserted

5 Id. that because she had personally bought the 6 See, e.g., United States v. Broadus, 7 F.3d 460, 463 (6th Cir. 1993)(Upholding search of employee’s jacket placed in locker where notice 8 Id. at 1054 provided locker was “subject to inspection at any 9 128 F.3d 481 (7th Cir. 1997) time by authorized personnel”) 10 Id. at 484 7 300 F.3d 1048 (9th Cir. 2002) 11 Id. filing cabinet and storage unit, those items cursory glance into any government office were not part of the “workplace” context, will show that individual government but rather her personal items not covered employees typically expect some form of by the O’Connor rules. However, the privacy, based on the intermingling of court failed to “find an expectation of their personal and professional lives (e.g., privacy in the cabinets simply because pictures of kids on desks and diplomas on Gossmeyer bought them herself.”12 As walls). To promote efficiency, many noted by the court: “The cabinets were not government agencies allow, if not personal containers which just happened to encourage, individuals to perform some be in the workplace; they were containers personal business while in a governmental purchased by Gossmeyer primarily for the workplace, such as using a government storage of work-related materials. … telephone to make a personal phone call These items were part of the ‘workplace,’ during a lunch hour. Nonetheless, an not part of Gossmeyer’s personal “expectation of privacy in commercial domain.”13 premises … is different from, and indeed less than, a similar expectation in an DOES A REASONABLE individual’s home.”17 A government EXPECTATION OF PRIVACY employee’s expectation of privacy is EXIST? limited by the “operational realities of the workplace,”18 and “whether an employee As noted previously, the first step has a reasonable expectation of privacy in any search of a public employee’s must be addressed on a case-by-case workplace is to determine whether the basis.”19 Although government ownership employee has a “reasonable expectation of of the property to be searched (e.g., a privacy” in that area or item. A reasonable government-owned computer assigned to a expectation of privacy exists when (1) an government employee) is an “important individual exhibits an actual expectation of consideration,”20 it does not, standing privacy, and (2) that expectation is one that society is prepared to recognize as reasonable expectation of privacy in her office”); being reasonable.14 If there is no People v. Rosa, 928 P.2d 1365, 1369 (Colo. Ct. App. 1996)(“Generally, government employees … reasonable expectation of privacy, “a have reasonable expectations of privacy in their workplace search by a public employer offices and workplaces”) will not violate the Fourth Amendment, 17 New York v. Burger, 482 U.S. 691, 700 (1987); regardless of the search’s nature and see also Vega-Rodriguez v. Puerto Rico Telephone 15 Company, 110 F.3d. 174, 178 (1st Cir. scope.” Government employees can, and 1997)(“Ordinarily, business premises invite often do, establish expectations of privacy lesser privacy expectations than do in their government offices, desks, residences”)[citing G.M. Leasing Corp. v. United computers, and filing cabinets.16 A States, 429 U.S. 338, 353 (1977)] 18 O’Connor, 480 U.S. at 717 (plurality) 19 Id. at 718 12 Id. at 490 20 United States v. Angevine, 281 F.3d 1130, 1134 13 Id. (10th Cir.)(citation omitted), cert. denied, ___ 14 Katz v. United States, 389 U.S. 347, 361 U.S. ___, 123 S. Ct. 182 (2002); see also United (1967)(J. Harlan, concurring) States v. Salvucci, 448 U.S. 83, 91 (1980)(While 15 Leventhal v. Knapek, 266 F.3d 64, 73 (2d Cir. ownership of an item does not confer “automatic 2001) standing,” the Court has long recognized that 16 O’Connor, 480 U.S. at 717 (plurality); see also property ownership is a “factor to be considered McGregor v. Greer, 748 F. Supp. 881, 888 (D.D.C. in determining whether an individual’s Fourth 1990)(Reiterating O’Connor’s holding that “a Amendment rights have been violated”); government employee may be entitled to a Rawlings v. Kentucky, 448 U.S. 98, 105 alone, dictate a finding that no reasonable other than official business. Further, the expectation of privacy exists. policy noted that FBIS would “Applicability of the Fourth Amendment “periodically audit, inspect, and/or does not turn on the nature of the property monitor the user’s Internet access as interest in the searched premises, but on deemed appropriate.”25 When a keyword the reasonableness of the person’s privacy search indicated that Simons had been expectation.”21 Courts have utilized a visiting numerous illicit web sites from his variety of factors to determine whether a government computer, multiple searches government employee has a reasonable of his hard drive were conducted from a expectation of privacy in his or her remote location, resulting in the discovery workspace. Among the most important of several pornographic images of minors. are the following: Simons challenged the search of his computer, claiming his Fourth PRIOR NOTICE TO THE EMPLOYEE Amendment rights had been violated. In (LEGITIMATE REGULATION) rejecting this challenge, the Fourth Circuit Court of Appeals held that Simons “did In O’Connor, the Supreme Court not have a legitimate expectation of held that an employee’s expectation of privacy with regard to the record or fruits privacy can be reduced through of his Internet use in light of the FBIS “legitimate regulation.”22 For example, Internet policy.”26 Through its language, “government employees who are notified “this policy placed employees on notice that their employer has retained rights to that they could not reasonably expect that access or inspect information stored on the their Internet activity would be private.”27 employer’s computers can have no reasonable expectation of privacy in the A similar result was reached by the information stored there.”23 United States Seventh Circuit in Muick v. Glenayre v. Simons24 illustrates this point. In Electronics.28 Muick was employed by Simons, the Foreign Bureau of Information Glenayre at the time of his arrest for Services (FBIS), a division of the Central receiving and possessing child Intelligence Agency, employed the pornography. At the request of federal defendant. FBIS had an Internet usage authorities, Glenayre seized a laptop policy that (1) specifically prohibited computer from Muick’s work area and accessing unlawful material, and (2) held it until a search warrant could be prohibited use of the Internet for anything obtained. The computer had been 29 furnished to Muick for his use at work. (1980)(“Petitioner's ownership of the drugs is Although Muick was ultimately convicted undoubtedly one fact to be considered” in for receipt and possession of child deciding whether standing existed) pornography, he brought a lawsuit against 21 Gillard v. Schmidt, 579 F.2d 825, 829 (3rd Cir. 1978); see also United States v. Taketa, 923 F.2d Glenayre. He claimed they had violated 665, 672 (9th Cir. 1991)(noting that “privacy his Fourth Amendment rights by seizing analysis does not turn on property rights”) the computer and turning it over to the 22 O‘Connor, 480 U.S. at 717 (plurality) 23 Searching and Seizing Computers and federal officers because the computer Obtaining Electronic Evidence in Criminal Investigations, Computer Crime and Intellectual 25 Id. at 396 Property Section, Criminal Division, Department 26 Id. at 398 of Justice at 41 (March 2001) 27 Id. 24 206 F.3d 392 (4th Cir. 2000), cert. denied, 534 28 280 F.3d 741 (7th Cir. 2002) U.S. 930 (2001) 29 Id. at 742 contained “proprietary and privileged might well be thought personal financial and contact data.”30 irresponsible.34 While the court determined that Glenayre was not acting as an agent of the federal Likewise, in State v. Francisco,35 a government, it nonetheless addressed departmental policy was used to defeat a Muick’s expectation of privacy in the police officer’s claim of an expectation of laptop computer that had been issued to privacy in a government vehicle. him by the company. Initially, the court Francisco was a narcotics detective who noted that it was possible to have “a right had been issued a government vehicle that of privacy … in employer-owned was assigned exclusively to him. When equipment furnished to an employee for Francisco’s supervisor received use in his place of employment.”31 So, for information that he (Francisco) was example, “if the employer equips the distributing cocaine, the supervisor employee’s office with a safe or file ordered a search of the government cabinet or other receptacle in which to vehicle. Cocaine was found inside a keep his private papers, he can assume that briefcase located in the vehicle. In a the contents of the safe are private.”32 motion to suppress, Francisco challenged However, in this case, “Glenayre had the seizure of the cocaine, claiming that announced that it could inspect the laptops his Fourth Amendment rights had been that it furnished for the use of its violated through the search of the vehicle employees …,” which “ … destroyed any and briefcase. The court rejected this reasonable expectation of privacy that claim, finding that Francisco had no Muick might have had ….”33 As stated by expectation of privacy in either area. In so the court: holding, the court relied upon the department’s policy and procedure The laptops were manual, which had a section titled “Search Glenayre’s property and it and Inspection of Department Vehicles (to could attach whatever avoid claims of privacy expectations).” conditions to their use it This section provided, in part, that “all wanted. They didn’t have departmental vehicles (to include all to be reasonable conditions; enclosed containers) shall be subject to but the abuse of access to search and inspection by the Sheriff or his workplace computers is so designated representative at anytime, day common (workers being or night.”36 prone to use them as media of gossip, titillation, and COMMON PRACTICES AND other entertainment and PROCEDURES distraction) that reserving a right of inspection is so far In O’Connor, the Supreme Court from being unreasonable recognized that “[p]ublic employees’ that the failure to do so expectations of privacy in their offices, desks, and file cabinets … may be reduced by virtue of actual office practices and

30 Id. 31 Id. at 743 34 Id. 32 Id. (citations omitted) 35 790 S.W. 2d 543 (Tenn. 1989) 33 Id. (citations omitted) 36 Id. at 544 procedures ….”37 Alternatively, common be unreasonable.”40 While there had been office practices and procedures may scattered instances of inspections of the permit a government employee to establish lockers for cleanliness (3-4 in 12 years), an expectation of privacy in an area where “there [was] insufficient evidence to one would otherwise not exist.38 For conclude that the police department example, in the Third Circuit case of practice negated Speights’ otherwise United States v. Speights,39 the defendant reasonable expectation of privacy.”41 was a police officer who retained a locker at his police headquarters. Both a personal Other federal courts in analogous lock and a lock that had been issued by the cases have reached parallel conclusions. department were used to secure the locker. For example, in United States v. Donato42, There were no regulations that addressed the search of a locker maintained by an the issue of personal locks on the police employee of the United States Mint was lockers, nor was there any regulation or upheld because, among other things, the notice that the lockers could be searched. locker was “regularly inspected by the There was also no regulation as to what a Mint security guards for sanitation police officer might keep in the locker. purposes.”43 In Shaffer v. Field44, the Upon receiving information that Speights search of a police officer’s locker was had a sawed-off shotgun in his locker, the upheld in part because three previous locker was opened with a master key (for searches had been conducted in the past.45 the police-issued lock) and bolt cutters (for In Schowengerdt v. United States46, the Speights’ personal lock). A sawed-off court found no reasonable expectation of shotgun was recovered in the search, and privacy could be expected in an office or Speights was convicted of illegally credenza due to “extremely tight security possessing the weapon. On appeal, he procedures,” to include “frequent claimed his Fourth Amendment rights had scheduled and random searches by been violated by the search of his locker. security guards.”47 In each of these cases, The Third Circuit Court of Appeals the courts “relied on specific regulations agreed, finding that “no regulation and no and practices in finding that an expectation police practice” existed to justify the of privacy was not reasonable.”48 search of Speights’ locker. According to Alternatively, in United States v. Taketa49, the court, “only if the police department the court held that a government employee had a practice of opening lockers with had a reasonable expectation of privacy in private locks without the consent of the his office because, among other things, the user would [Speights’] privacy expectation office was not “not open to the public and

37 O’Connor, 480 U.S. at 717 (plurality); see also Gillard v. Schmidt, 579 F.2d 825, 829 (3rd Cir. 40 Id. at 364 1978)(Holding that “an employer may conduct a 41 Id. search in accordance with a regulation or practice 42 269 F. Supp. 921 (E.D. Pa.), aff’d, 379 F.2d 288 that would dispel in advance any expectations of (3rd Cir. 1967) privacy”)(citation omitted) 43 Id. at 923 38 See, e.g., Leventhal, 266 F.3d at 74 (Finding 44 339 F. Supp. 997 (C.D. Cal. 1972), aff’d, 484 employee had a reasonable expectation of privacy F.2d 1196 (9th Cir. 1973) in the contents of office computer because, inter 45 Id. at 1001-03 alia, his employer did not have a “general 46 944 F.2d 483 (9th Cir. 1991) practice of routinely conducting searches of office 47 Id. at 488 computers”) 48 Speights, 557 F.2d at 365 39 557 F.2d 362 (3rd Cir. 1977) 49 923 F.2d 665 (9th Cir. 1991) was not subjected to regular visits of Offices that are “continually entered by inspection by [agency] personnel.”50 fellow employees and other visitors during the workday for conferences, OPENNESS AND ACCESSIBILITY consultations, and other work-related visits … may be so open to fellow employees or Courts will often look to the the public that no expectation of privacy is openness and accessibility of a workspace reasonable.”55 Where areas are, by their to determine whether an expectation of very nature, “open” and “public,” no privacy can be sustained.51 Generally reasonable expectation of privacy can exist speaking, the more an item or area in in that area.56 Nevertheless, the fact that question is given over to an employee’s others may be permitted access to an exclusive use, the more likely an employee’s office, desk, computer, or expectation of privacy would be found.52 filing cabinet, does not alone “Where a public employee has his or her automatically destroy an employee’s own office or desk which co-workers and privacy expectation. As one court has superiors normally do not enter, and where noted: “Privacy does not require no agency policy or regulation warns the solitude.”57 The existence of a master key employee that an expectation of privacy is will not defeat an employee’s expectation unreasonable, an expectation of privacy of privacy in his or her office,58 nor will an 53 may be reasonable.” The more accessible the item or area is to others, the reasonable expectation of privacy in classroom less likely it is an individual employee’s where classroom was “open to students, claim of privacy would be accepted.54 colleagues, custodians, administrators, parents, and substitute teachers,” it was not a private office, and “he did not have exclusive use of any 50 Id. at 673 furniture in the room”); State v. McLellan, 144 51 See People v. Holland, 591 N.Y.S. 2d 744, 747 N.H. 602, 605, 744 A.2d 611 (1999) (1992)(Noting “a person’s legitimate expectation 55 O’Connor, 480 U.S. at 717, 718 (plurality); see of privacy in a work area will vary depending on also Holland, 591 N.Y.S. 2d at 746-47 (Noting “… an evaluation of the ‘surrounding circumstances’ it is … obvious that an employee who has his including the function of the workplace and the desk positioned in the middle of an area open to person’s efforts to protect his area from intrusion. the public cannot reasonably expect privacy from … A receptionist in a hospital emergency room the eye of a stranger who is lawfully on the waiting area could not reasonably expect that his premises”) or her desk top would not be perused by those 56 Thompson v. Johnson County Community who seek to avail themselves of the hospital’s College, 930 F. Supp. 501, 507 (D. Kan. services but could legitimately expect that the 1996)(“Security personnel and other college drawers of that desk would not be invaded”) employees, including maintenance and service 52 Taketa, 923 F.2d at 671 (“[A] reasonable personnel, had unfettered access to this storage expectation of privacy … exists in an area given room. Consequently, defendants argue that the over to an employee’s exclusive use”) open, public nature of the security personnel 53 McGregor, 748 F. Supp. at 888; see also locker area defeats any reasonable expectation of Holland, 591 N.Y.S. 2d at 746 (Court noted “it is privacy in this area. The court agrees”), aff’d, clear that an individual employee has an 108 F.3d 1388 (10th Cir. 1997); O’Bryan v. KTIV expectation of privacy in a locked, private office Television, 868 F. Supp. 1146, 1159 (N.D. Iowa …”) 1994)(Court held that, where an unlocked desk or 54 United States v. Hamdan, 891 F. Supp. 88, 95 credenza was located in an “open, accessible (E.D.N.Y. 1995), aff’d, 101 F.3d 686 (2d Cir. area,” no reasonable expectation of privacy 1996) (“By contrast, the less private a work area - existed) and the less control a defendant has over that 57 Taketa, 923 F.2d at 673 work area - the less likely standing is to be 58 Id. (“Furthermore, the appellants correctly found”); see also Shaul v. Cherry Valley- point out that allowing the existence of a master Springfield Central School District, 218 F. Supp. key to overcome the expectation of privacy would 2d 266, 270 (N.D.N.Y. 2002)(Teacher had no defeat the legitimate privacy interest of any employee’s failure to consistently shut and did not have a reasonable lock an office door automatically sacrifice expectation of privacy in any expectation of privacy in that area.59 the cubicle itself. Thus, the entry of the cubicle … did Illustrative on this concept is Coats not violate Coats’ Fourth v. Cuyahoga Metropolitan Housing Amendment protections.61 Authority,60 in which the employee (Coats) brought an attaché case containing a In Brannen v. Board of firearm to his workplace. He laid the Education,62 the employees were attaché case next to his desk, which was custodians at a high school. Believing that located within a cubicle work station that some of the third-shift custodians were had six-foot partitions for walls. Another spending inordinate amounts of time in the employee entered the cubicle to answer a break room during their shifts, their ringing phone, and observed the barrel of a supervisor received permission from the firearm in plain view in the unzippered school superintendent to install a hidden case. A Housing Authority police officer video camera in the break room. The arrived, searched the attaché case, and camera recorded actions, but no sounds or confirmed the existence of the gun. Based conversations. The employees brought a on the incident, Coats was terminated. He lawsuit against the school, claiming the then filed suit alleging, in part, that his installation of the video camera violated Fourth Amendment rights had been their Fourth Amendment rights. In violated by the search of his cubicle. The rejecting this claim, the court found the court disagreed, holding that Coats had no employees had no reasonable expectation reasonable expectation of privacy in the of privacy in the break room, based upon cubicle. Specifically: its open and public nature. The court noted that other employees of the school … Coats’ cubicle was one had “unfettered access” to the break room, of several cubicles in a including “the principal and most of the larger office and was, in teachers.”63 Additionally, the court found some situations, open to view from certain vantage the break room was more of points in the larger office. an all-purpose utility room The cubicle was open to that contained a washing other employees with machine, clothes dryer, access to the cubicle for cleaning supplies, cleaning legitimate work-related machines, lockers, a reasons, such as, employees refrigerator, and a … picking up telephone microwave oven. Teachers calls throughout the office could access the room using, in this instance, whenever they needed Coats’ cubicle telephone something contained inside. line. Accordingly, Coats Crawford described the break room as “open all the hotel, office, or apartment occupant”) 59 Id. (“Nor was the expectation of privacy defeated by O'Brien's failure to shut and lock his 61 Id. at *10-11 door at all times”) 62 761 N.E. 2d 84 (Ohio 2001) 60 2001 Ohio App. LEXIS 1699 (2001) 63 Id. at 91 time.” The break room was computer in his office. so open to fellow Leventhal did not share use employees that the of his computer with other custodians could not have a employees in the reasonable expectation of Accounting Bureau nor was privacy in the break room.64 there evidence that visitors or the public had access to On the other hand, the Second his computer.67 Circuit case of Leventhal v. Knapek65 illustrates how the realities of the Finally, while support personnel workplace can result in a finding that a may have had access to Leventhal’s reasonable expectation of privacy does computer at all times, “there was no exist. Leventhal had a private tax evidence that these searches were preparation business. In running the frequent, widespread, or extensive enough business, he impermissibly loaded to constitute an atmosphere so open to unauthorized software on his government fellow employees or the public that no computer, which was a violation of agency expectation of privacy is reasonable.”68 policy. He committed a second violation when he improperly used agency computer THE POSITION OF THE EMPLOYEE equipment to print private tax returns. A warrantless search of his computer in Courts will consider both the response to an anonymous letter alleging position occupied by the employee and the misconduct uncovered the unauthorized surrounding work environment when software. After disciplinary actions were determining whether a reasonable completed, Leventhal filed suit alleging expectation of privacy exists. For the warrantless search of his computer was example, “when an individual enters into a violation of the Fourth Amendment. an employment situation with high While the court ultimately disagreed with security requirements, it becomes less Leventhal’s assertion, they did find that he reasonable for her to assume that her had a reasonable expectation of privacy in conduct on the job will be treated as the computer. Specifically, Leventhal’s private.”69 As noted by the Supreme agency had neither “a general practice of Court: “It is plain that certain forms of routinely conducting searches of office public employment may diminish privacy computers,” nor had the agency “placed expectations even with respect to … Leventhal on notice that he should have no personal searches. Employees of the expectation of privacy in the contents of United States Mint, for example, should his office computer.”66 Additionally, the expect to be subject to certain routine court noted: personal searches when they leave the workplace every day.”70 This is especially Leventhal occupied a true where the subject of the search is a private office with a door. law enforcement officer. In cases He had exclusive use of the desk, filing cabinet, and 67 Id. at 73-74 68 Id. at 74 69 Cowles v. State, 23 P.3d 1168, 1173 (Alaska 64 Id. at 91-92 2001), cert. denied, 534 U.S. 1131 (2002) 65 266 F.3d 64 (2d Cir. 2001) 70 Nat’l Treasury Employees Union v. Von Raab, 66 Id. at 74 489 U.S. 656, 671 (1989) involving law enforcement officers, the moved to prevent the lineup, claiming that officer’s “special status must be factored it violated their Constitutional rights. In into the reasonableness analysis, for it is rejecting the officers’ argument, the within the State’s power to regulate the Second Circuit noted, “policemen, who conduct of its police officers even when voluntarily accept the unique status of the conduct involves the exercise of a watchman of the social order, may not constitutionally protected right.”71 While reasonably expect the same freedom from law enforcement officers do not lose their governmental restraints which are Constitutional rights by virtue of accepting designed to ensure his fitness for office as their position,72 there is a “substantial from similar governmental actions not so public interest in ensuring the appearance designed.”76 Further, said the court, “[t]he and actuality of police integrity,” in that “a policeman’s employment relationship by trustworthy police force is a precondition its nature implies that in certain aspects of of minimal social stability in our imperfect his affairs, he does not have the full society.”73 This “interest in police privacy and liberty from police officials integrity … may justify some intrusions on that he would otherwise enjoy.”77 the privacy of police officers which the Fourth Amendment would not otherwise A similar result was reached by the tolerate.”74 same court, albeit in a different context, in A case on point is Biehunik v. Sheppard v. Beerman.78 Sheppard, a law Felicetta,75 involving allegations of police clerk, brought a civil action against the brutality. After several citizens were judge for whom he clerked, alleging that severely beaten by a large group of police the judge impermissibly searched his desk officers, the police commissioner ordered in violation of the Fourth Amendment. In 62 police officers to participate in a lineup holding that Sheppard had no reasonable for investigative purposes. The officers expectation of privacy in the desk, the court relied upon the unique “working 71 Morris v. Port Auth. of N.Y. & N.J., 290 A.D.2d relationship between a judge and her 79 22, 28 (N.Y. 2002)(citations and internal clerk.” quotation marks omitted) 72 Garrity v. State of New Jersey, 385 U.S. 493, 500 (1967)(Law enforcement officers “are not Unlike a typical relegated to a watered-down version of employment relationship Constitutional rights”) …, in order for a judicial 73 Biehunik v. Felicetta, 441 F.2d 228, 230 (2d chambers to function Cir. 1971) 74 Kirkpatrick v. The City of Los Angeles, 803 efficiently, an absolute free F.2d 485, 488 (9th Cir. 1986); see also Shaffer, flow of information 339 F. Supp. at 1003 (“The Sheriff’s Department between the clerk and the has a substantial interest in assuring not only judge is usually necessary. the appearance but the actuality of police integrity. It is not unreasonable that they have Accordingly, the clerk has the right of inspection … so that the public may access to all the documents have confidence in public servants”); Morris, 290 pertaining to a case. In A.D. 2d at 28 (Noting “the privacy expectations of police officers must be regarded as even further turn, the judge necessarily diminished by virtue of their membership in a paramilitary force, the integrity of which is a recognized and important State 76 Id. at 231 concern”)(citations and internal quotation marks 77 Id. omitted); 78 18 F.3d 147 (2d Cir. 1994) 75 441 F.2d 228 (2d Cir. 1971) 79 Id. at 152 has access to the files and As noted by the court: “In light of the papers kept by the clerk, clearly expressed provisions permitting which will often include the random and unannounced locker clerk’s notes from inspections under the conditions described discussions with the judge. above, the collective class of plaintiffs had Because of this distinctive no reasonable expectation of privacy in open access to documents their respective lockers that was protected characteristic of judicial by the Fourth Amendment.”85 chambers, we agree with the district court’s Similarly, in United States v. determination that Bunkers,86 the defendant was a postal Sheppard had “no employee suspected of stealing parcels reasonable expectation of from the mail. As an incident of her privacy in chambers’ employment, she had been provided a appurtenances, embracing locker “ … to be used for [her] desks, file cabinets or other convenience and … subject to search by work areas.”80 supervisors and postal inspectors.”87 The Union Agreement provided that: “Except WAIVER OF RIGHTS in matters where there is reasonable cause to suspect criminal activity, a steward or Government employees may an employee shall be given the actually waive their expectation of privacy opportunity to be present in any inspection as a precondition of receiving a certain of employees’ lockers.” Following the benefit from their employer. In the Sixth recurring theft of C.O.D. parcels, Circuit case of American Postal Workers investigators discovered that the Union v. United States Postal Service,81 defendant’s work schedule coincided with postal employees were eligible to receive the losses. Surveillance was initiated, and personal lockers at their postal facility. she was observed taking a parcel from her Before being allowed to do so, however, work area to the women’s locker room each employee had to sign a waiver that and, within one minute, returning without noted the locker was “subject to inspection the package. Investigators then requested at any time by authorized personnel.”82 the defendant’s supervisor search the Further, the administrative manual of the locker. Throughout the day, three Postal Services noted that all property warrantless searches of the locker were provided by the Postal Service was “at all conducted outside of the defendant’s times subject to examination and presence, and a total of 9 mail parcels inspection by duly authorized postal were discovered. Following her officials in the discharge of their official conviction for postal theft, the defendant duties.”83 Finally, the collective appealed, claiming her Fourth Amendment bargaining agreement for these employees rights were violated by the warrantless “provided for random inspection of search of her locker. In rejecting her lockers under specified circumstances.”84 claim, the court determined the defendant

80 Id. 81 871 F.2d 556 (6th Cir. 1989) 85 Id. at 560 82 Id. at 557 86 521 F.2d 1217 (9th Cir.), cert. denied, 423 U.S. 83 Id. 989 84 Id. 87 Id. at 1219 had relinquished her Fourth Amendment Nevertheless, the Court has recognized rights based on her “voluntary entrance that in certain special situations, the into postal service employment and her requirement to obtain a warrant is acceptance and use of the locker subject to impractical. “In particular, a warrant the regulatory leave of inspection and requirement is not appropriate when the search and the labor union’s contractual burden of obtaining a warrant is likely to rights of search upon reasonable suspicion frustrate the governmental purpose behind of criminal activity ….”88 the search.”93 Such is the case with public employers, who find themselves in a IF A REASONABLE EXPECTATION somewhat unique situation. On the one OF PRIVACY DOES EXIST, HOW hand, they are obligated to follow the CAN THAT EXPECTATION BE mandates of the Fourth Amendment; on DEFEATED? the other, they are responsible for ensuring the efficient and proper operation of their If an employee has a reasonable specific department or agency. In cases expectation of privacy in his workplace, involving searches conducted by a public then an intrusion into that area qualifies as employer, courts must “balance the a “search” governed by the Fourth invasion of the employees’ legitimate Amendment.89 “The Fourth Amendment expectations of privacy against the protects individuals from unreasonable government’s need for supervision, searches conducted by the Government, control, and the efficient operation of the even when the Government acts as an workplace.”94 As noted by the Supreme employer.”90 Generally speaking, when Court: searches are performed, courts have expressed a strong preference that they be Employers and supervisors performed pursuant to warrants.91 It is are focused primarily on well-settled that searches conducted the need to complete the without warrants are per se unreasonable government agency’s work unless an exception to the warrant in a prompt and efficient requirement, such as consent, is present.92 manner. An employer may have need for 88 Id. at 1221 (citation omitted) correspondence, or a file or 89 Kyllo v. United States, 533 U.S. 27, 33 report available only in an (2001)(“A Fourth Amendment search does not employee's office while the occur … unless ‘the individual manifested a subjective expectation of privacy in the object of employee is away from the the challenged search,’ and ‘society [is] willing to office. Or … employers recognize that expectation as reasonable’”). may need to safeguard or 90 Nat’l Treasury Employees Union v. Von Raab, identify state property or 489 U.S. 656, 665 (1989) 91 United States v. Holloway, 290 F.3d 1331, 1334 records in an office in (11th Cir. 2002)(Noting “there is a strong connection with a pending preference for searches … conducted under the investigation into suspected judicial auspices of a warrant”) 92 See Mincey v. Arizona, 437 U.S. 385, 390 (1978)(Noting the “cardinal principle” that exceptions”)(emphasis in original)(citation “searches conducted outside the judicial process, omitted). without prior approval by judge or magistrate, 93 O’Connor, 480 U.S. at 720 (plurality)(citation are per se unreasonable under the Fourth and internal quotation marks omitted) Amendment, subject only to a few specifically 94 Id. at 719-720; see also Morris v. Port Auth. of established and well-delineated N.Y. & N.J., 290 A.D.2d 22, 27 (N.Y. 2002) employee misfeasance. In Court outlined two basic categories of our view, requiring an workplace searches: (1) Searches for employer to obtain a work-related purposes (either non- warrant whenever the investigatory or for the purpose of employer wished to enter investigating workplace misconduct), and an employee’s office, desk, (2) searches for evidence of criminal or file cabinets for a work- violations. Each of these will be related purpose would addressed in turn. seriously disrupt the routine conduct of business and SEARCHES FOR WORK-RELATED would be unduly PURPOSES burdensome. Imposing unwieldy warrant While “private citizens cannot procedures in such cases [generally] have their property searched upon supervisors, who without probable cause … in many would otherwise have no circumstances government employees reason to be familiar with can.”97 Work-related searches typically such procedures, is simply fall within one of two similar, but distinct, unreasonable.95 circumstances. First, a search of a government employee’s workspace may Accordingly, the Court has carved be conducted for a work-related, non- out an exception to the probable cause and investigatory purpose, such as retrieving a warrant requirements for public needed file. “The governmental interest employers, noting “the special needs, justifying work-related intrusions by beyond the normal need for law public employers is the efficient and enforcement make the … probable-cause proper operation of the workplace.”98 requirement impracticable for legitimate Operational efficiency would suffer “if work-related, noninvestigatory intrusions employers were required to have probable as well as investigations of work-related cause before they entered an employee’s misconduct.”96 In O'Connor, the Supreme desk for the purpose of finding a file or 99 piece of office correspondence.” For this 95 Id. at 721-22 reason, “public employers must be given 96 Id. at 725 (internal quotation marks and wide latitude to enter employee offices for citation omitted); see also Leventhal, 266 F.3d at work-related, noninvestigatory 73 (“The ‘special needs’ of public employers may 100 … allow them to dispense with probable cause reasons.” and warrant requirements when conducting workplace searches related to investigations of work-related misconduct”)(citation omitted); proper operation of a government workplace”); United States v. Fernandes, 272 F.3d 398, 942 Fink v. Ryan, 174 Ill. 2d 302, 305 (1996), cert. (7th Cir. 2001)(“This court has held that a denied, 521 U.S. 1118 (1997)(Noting the Supreme warrant or probable cause standard does not Court “has found the warrant and probable cause apply when a government employer conducts a requirement impracticable in a variety of search of its employees’ offices, desks or circumstances,” including those involving files”)(citation omitted); United States v. Reilly, “searches of government employees' desks and 2002 U.S. Dist. LEXIS 9865 at *10 (S.D.N.Y. offices”) 2002)(“Although the Fourth Amendment 97 Rutan v. Republican Party of Illinois, 497 U.S. generally requires a warrant and probable cause, 62, 94 (1990)(Scalia, J., dissenting) there are some well-established exceptions to 98 Id. at 723 these requirements. One such exception applies 99 Id. to the government’s interest in the efficient and 100 Id. Second, a search of an employee’s In either of the above situations, workspace may be performed during an the search must be “reasonable” based on investigation into allegations of work- the totality of the circumstances.102 related misconduct, such as improper Generally, “a public employer’s search of computer usage. As noted by the Supreme an area in which an employee had a Court: reasonable expectation of privacy is ‘reasonable’ when the measures adopted Public employers have an are reasonably related to the objectives of interest in ensuring that the search and not excessively intrusive in their agencies operate in an light of its purpose.”103 Under this effective and efficient standard, the search must be (1) justified at manner, and the work of its inception and (2) permissible in these agencies inevitably scope.104 suffers from the inefficiency, incompetence, Justified At Inception mismanagement, or other work-related misfeasance A supervisor’s search of a of its employees. Indeed, in government employee’s office “will be many cases, public ‘justified at its inception’ when there are employees are entrusted reasonable grounds for suspecting that the with tremendous search will turn up evidence that the responsibility, and the employee is guilty of work-related consequences of their misconduct, or that the search is necessary misconduct or for a non-investigatory, work-related incompetence to both the purpose, such as to retrieve a needed agency and the public interest can be severe. … In our view, therefore, a 102 Id. at 725-26; see also Fernandes, 272 F.3d at probable cause requirement 942 (Noting “government employers are subject for searches of the type at to a reasonableness standard when they conduct workplace searches”)(citation and internal issue here would impose brackets omitted); Finkelstein v. State Personnel intolerable burdens on Bd., 218 Cal.App.3d 264, 268, 267 Cal.Rptr. 133 public employers. The (1990)(Noting that “public employer intrusions delay in correcting the on the constitutionally protected privacy interests of government employees for employee misconduct noninvestigatory, work-related purposes, as well caused by the need for as for investigations of work-related misconduct, probable cause rather than should be judged by the standard of reasonableness under all the circumstances”) reasonable suspicion will 103 Leventhal, 266 F.3d at 73 (citation and be translated into tangible internal quotation marks omitted) and often irreparable 104 Id. at 726; see also Brannen v. Board of damage to the agency’s Education, 761 N.E.2d 84, 92 (Ohio 2001)(“There work, and ultimately to the is a two-part test to determine the 101 reasonableness of a search conducted by a public interest. government employer. First, a court must consider whether the governmental action was justified at its inception. … Second, the search as actually conducted must be reasonably related in scope to the circumstances that justified the 101 Id. at 724 interference in the first place”) file.”105 Stated differently, a supervisor to retrieve the hard drive was reasonable must have an articulable reason (or ….” Noting that O’Connor allowed a reasons) for believing that evidence of warrantless workplace search based on “a work-related misconduct or work-related government employer’s interest in the materials are located in the place to be ‘efficient and proper operation of the searched. This is essentially the workplace,’”110 the court analyzed the “reasonable suspicion” standard physical entry into Simons’ office under introduced in Terry v. Ohio.106 that standard. The court found the search justified at its inception based on the In United States v. Simons107 information already in the hands of (discussed in Part II, A, above), the Simons’ employer at the time of the employee’s computer was initially search. Specifically, “at the inception of searched from a remote location, revealing the search, FBIS had ‘reasonable grounds over 1,000 picture files containing for suspecting’ that the hard drive would pornographic images. Approximately two yield evidence of misconduct because weeks later, an individual “physically FBIS was already aware that Simons had entered Simons’ office, removed the misused his Internet access to download original hard drive, [and] replaced it with a over a thousand pornographic images, copy ….”108 No warrant had been some of which involved minors.”111 obtained prior to this physical intrusion. While the court rejected Simons’ argument In Gossmeyer v. McDonald112 that he had a reasonable expectation of (discussed in Part I, above), the employee privacy in the computer (based on his occupied a position that required her to employer’s Internet use policy), they noted investigate child sexual and physical abuse the “entry into Simons’ office to retrieve and to take photographs of the children for the hard drive present[ed] a distinct use in possible court proceedings. After question.” Unlike the computer itself, the an anonymous tip was received stating that court found Simons did have a reasonable Gossmeyer had “pornographic pictures of expectation of privacy in his office.109 children in her file cabinet at work,”113 a The physical entry to retrieve the hard warrantless search of Gossmeyer’s office, drive was a “search” implicating the filing cabinet, storage unit, and desk was Fourth Amendment. Accordingly, the conducted. Some items were seized, but court was required to determine whether no charges were ever brought against her. the “warrantless entry into Simons’ office Gossmeyer filed a lawsuit alleging the warrantless search violated her Fourth 105 Id. Amendment rights. In applying the 106 392 U.S. 1 (1968) O’Connor standard, the court initially 107 206 F.3d 392 (4th Cir. 2000), cert. denied, 534 addressed whether the search was justified U.S. 930 (2001) 108 Id. at 396 at its inception. In finding that it was, the 109 Id. at 399 (“Here, Simons has shown that he court relied on the following facts. First, had an office that he did not share. As noted while the search was initiated based upon above, the operational realities of Simons’ workplace may have diminished his legitimate an anonymous tip, the tip was sufficiently privacy expectation. However, there is no evidence in the record of any workplace practices, procedures, or regulations that had such an 110 Id. at 400 (citation omitted) effect. We therefore conclude that, on this record, 111 Id. at 401 (citation omitted) Simons possessed a legitimate expectation of 112 128 F.3d 481 (7th Cir. 1997) privacy in his office”)(footnote omitted) 113 Id. at 485 reliable to justify the search that was Permissible In Scope ultimately conducted. In order to be reasonable under the The informant identified standard announced in O’Connor, the herself as one of search must also be “permissible in Gossmeyer’s co-workers in scope.” A search will be “permissible in the Joliet office; made scope” when “the measures adopted are serious and specific reasonably related to the objectives of the allegations of misconduct - search and not excessively intrusive in that Gossmeyer had light of … the nature of the 117 pornographic pictures of [misconduct].” This means that the children; and stated where search may be made of only those areas those pictures could be where the item sought is reasonably found - in Gossmeyer’s file expected to be located. cabinets and desk. The search took place one day As an example, we can look once after Farley received the tip again at the Simons case. After receiving and passed it on to the OIG. information that Simons had downloaded In addition, there was numerous pornographic images to his reason to believe that office computer, the hard drive of the Gossmeyer’s cabinets were computer was retrieved during a physical more likely than most to entry into Simons’ office. This physical contain such pictures. She entry constituted a search, which the court had unusual access to analyzed under the O’Connor standard. children and extraordinary As noted in the preceding section, the authority (conferred by the court found the physical intrusion to state) to take such retrieve the hard drive justified at its pictures.114 inception. The court then addressed the second part of the reasonableness test, Additionally, Gossmeyer’s own namely, whether the search was duties supported the reasonableness of the permissible in scope. In finding the scope search. She was the only person in the of the search permissible, the court noted Joliet office who photographed and “the measure adopted, entering Simons’ maintained pictures of abused children, office, was reasonably related to the which provided her an opportunity to objective of the search, retrieval of the 118 commit the crimes alleged. Further, “the hard drive.” The search was not found search was prompted by serious to be overly intrusive, because “there allegations of specific misconduct against [was] no suggestion that Harper searched an employee in a sensitive position.”115 In Simons’ desk or any other items in the the end, the “allegations called for prompt office; rather, [he] simply crossed the floor attention and … the search was justified at of Simons’ office, switched hard drives, 119 its inception.”116 and exited.”

114 Id. at 491 117 O’Connor, 480 U.S. at 726 (plurality) 115 Id. 118 Simons, 206 F.3d at 401 116 Id. 119 Id. In Gossmeyer, the court also Several lower courts have addressed whether the search of addressed the standard required for Gossmeyer’s office was permissible in searches conducted solely for the purpose scope. The court noted that “the targets of of obtaining criminal evidence, and found the search were those places where that “[t]he rationale for the lesser burden Gossmeyer would likely store the alleged O’Connor places on public employers is pornographic pictures.”120 Because the not applicable for [public employers] search “did not extend to places where the engaged in a criminal investigation.”124 pictures would not reasonably have been Thus, a public employer “may not cloak found,”121 the court found it to be itself in its public employer robes in order permissible in scope. to avoid the probable cause requirement when it is acquiring evidence for a SEARCHES FOR EVIDENCE OF criminal prosecution.” Where the sole CRIMINAL VIOLATIONS motivation behind a workplace search is to uncover evidence of criminal wrongdoing, In O’Connor, the Supreme Court the appropriate standard is probable specifically declined to address the cause.125 In such situations, “the crucial appropriate standard for searches when an question is not whether the investigation employee is being investigated for involves actions arising out of a [public criminal misconduct that does not violate employee’s] duties, but whether the some workforce policy.122 While not investigation’s objective is to discipline addressing the issue directly, the Court did the [employee] within the department or to comment on the distinction between seek criminal prosecution.”126 criminal investigations and investigations into work-related misconduct. “DUAL-PURPOSE” SEARCHES Specifically, the Court noted: “While police, and even administrative While the standards set out above enforcement personnel, conduct searches appear relatively clear, there are often for the primary purpose of obtaining situations in which a government evidence for use in criminal or other employee’s misconduct might well fit into enforcement proceedings, employers most both the work-related misconduct and frequently need to enter the offices and criminal violation categories. For desks of their employees for legitimate example, a government employee may be work-related reasons wholly unrelated to receiving and downloading child the illegal conduct.”123 pornography from a government computer. While clearly criminal in nature, this conduct also could (and most 120 Gossmeyer, 128 F.3d at 491 likely does) constitute a violation of 121 Id. 122 O’Connor, 480 U.S. at 723 (“Because the workforce policy rules on appropriate parties in this case have alleged that the search government computer/Internet usage. In was either a noninvestigatory work-related intrusion or an investigatory search for evidence of suspected work-related employee misfeasance, 124 Taketa, 923 F.2d at 675 we undertake to determine the appropriate 125 See, e.g., United States v. Jones, 286 F. 3d Fourth Amendment standard of reasonableness 1146, 1151 (9th Cir. 2002)(“The O’Connor only for these two types of employer intrusions standard is not applicable to federal agents and leave for another day inquiry into other engaged in a criminal investigation”) circumstances”)(emphasis in original) 126 Cerrone v. Fresenius, 246 F.3d 194, 200 (2d 123 Id. at 721 Cir. 2001) such a situation, a supervisor really has obtained was evidence of a two purposes in conducting a search: to crime. Simons’ violation of uncover evidence of the administrative FBIS’ Internet policy violation, and to uncover potential happened also to be a criminal evidence. In such situations, the violation of criminal law; question becomes obvious: When a this does not mean that government supervisor receives FBIS lost the capacity and information that an activity is occurring interests of an employer.129 that violates both workforce regulations and criminal statutes, what standard must Similarly, in United States v. be followed when searching the Reilly,130 the defendant was accessing employee’s workspace? Because of the child pornography from his government work-related misconduct that is occurring, computer, a clear violation of both the will the lesser standard of O’Connor Department of Labor’s computer use suffice? Or, because of the criminal policy and federal statutes. During a nature of the allegations, must the search of his cubicle, two diskettes were traditional probable cause and warrant seized from the defendant, both of which requirements be met? “[T]he courts have were later found to contain child adopted fairly generous interpretations of pornography. At trial, the defendant O’Connor when confronted with mixed- moved to suppress both diskettes, claiming motive searches.”127 the warrantless search and seizure violated his Fourth Amendment rights. The As an example, we can once more defendant claimed the seizure of the look to the Simons case for guidance. The diskettes was not truly part of an court upheld the search of the Simons’ investigation into work-related office using the “reasonableness” standard misconduct, because the agency was set out in O’Connor. More importantly, aware of his administrative violations prior the court noted they were doing so, even to the seizure of the diskettes and could “assum[ing] that the dominant purpose of have taken action against him without the warrantless search … was to acquire seizing them. The defendant argued the evidence of criminal activity.”128 search was actually made for the sole purpose of uncovering evidence of Nevertheless, the search criminal violations, which would require remains within the probable cause and a warrant. In denying O’Connor exception to the his motion to suppress, the District Court warrant requirement; FBIS held the search of the diskettes fell within did not lose its special need O’Connor’s “work-related misconduct” for “the efficient and proper exception. “Agent Wager’s dual role as an operation of the investigator of workplace misfeasance and workplace,” merely criminal activity does not invalidate the because the evidence otherwise legitimate workplace search.”131

127 Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, Computer Crime and Intellectual Property Section, Criminal Division, Department 129 Id. (internal quotations and citations omitted) of Justice at 45 (March 2001) 130 Supra at note 51 128 Simons, 206 F.3d at 400 131 Id. at 9881 SUMMARY

A search of a government employee’s workplace must comply with the Fourth Amendment. In addressing these situations, a two-part analysis can be used. First, it must be determined whether the employee had a reasonable expectation of privacy in the area searched. In making this determination, factors relied upon by courts include whether prior notice was provided to the employee; common practices of the agency; the openness and accessibility of the area; the position of the employee; and whether the employee waived his expectation of privacy. If the employee does not have a reasonable expectation of privacy in the area searched, the Fourth Amendment is not implicated. If a reasonable expectation of privacy does exist, then the purpose behind the search must be analyzed. A search for work-related purposes (either non-investigatory or for work-related misconduct) must be reasonable based on the totality of the circumstances. To qualify as reasonable, the search must be (1) justified at its inception, and (2) permissible in scope. If the search is made to solely uncover evidence of criminal misconduct, then probable cause and a search warrant are required, unless an exception to the warrant requirement of the Fourth Amendment exists (e.g., consent). In situations where the search is conducted for dual purposes, courts have been fairly generous in finding that the “special needs” rules announced in O’Connor apply.