Supreme Court Finds Against Right to Privacy in Department Issued Pagers

On June 17, 2010 in City of Ontario v. Quon, 08-1332 (FEDSC) The Supreme Court ruled against an Ontario Califormia Police Officer in his claim that he had a reasonable expectation of privacy that was violated by the Departments audit of his department issued pager.

In deciding the case the court stated “This case involves the assertion by a government employer of the right, in circumstances to be described, to read text messages sent and received on a pager the employer owned and issued to an employee. The employee contends that the privacy of the messages is protected by the ban on “unreasonable searches and seizures” found in the Fourth Amendment to the United States Constitution, made applicable to the States by the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643 (1961). Though the case touches issues of far-reaching significance, the Court concludes it can be re solved by settled principles determining when a search is reasonable.

Even if Quon had a reasonable expectation of privacy in his text messages, petitioners did not necessarily violate the Fourth Amendment by obtaining and reviewing the transcripts. Although as a general matter, warrantless searches “are per se unreasonable under the Fourth Amendment, ” there are “a few specifically established and well-delineated exceptions” to that general rule. Katz, supra,at 357. The Court has held that the “‘special needs'” of the workplace justify one such exception. O’Connor, 480 U.S., at 725 (plurality opinion); id., at 732 (Scalia, J., concurring in judgment); Von Raab, 489 U.S., at 666–667.

Under the approach of the O’Connor plurality, when conducted for a “noninvestigatory, work-related purpos[e]” or for the “investigatio[n] of work-related misconduct, ” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’ ” and if ” ‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of'” the cir¬cumstances giving rise to the search. 480 U.S., at 725– 726. The search here satisfied the standard of the O’Connor plurality and was reasonable under that approach.

The search was justified at its inception because there were “reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related pur pose.” Id., at 726. As a jury found, Chief Scharf ordered the search in order to determine whether the character limit on the City’s contract with Arch Wireless was suffi cient to meet the City’s needs. This was, as the Ninth Circuit noted, a “legitimate work-related rationale.” 529 F.3d, at 908. The City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications.

As for the scope of the search, reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use. The review was also not “‘excessively intrusive.'” O’Connor, supra, at 726 (plurality opinion). Although Quon had gone over his monthly allotment a number of times, OPD requested transcripts for only the months of August and September 2002. While it may have been reasonable as well for OPD to review transcripts of all the months in which Quon exceeded his allowance, it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the char acter limits were efficacious. And it is worth noting that during his internal affairs investigation, McMahon re dacted all messages Quon sent while off duty, a measure which reduced the intrusiveness ofany further review of the transcripts.

Furthermore, and again on the assumption that Quon had a reasonable expectation of privacy in the contents of his messages, the extent of an expectation is relevant to assessing whether the search was too intrusive. See Von Raab, supra, at 671; cf. Vernonia School Dist. 47J v. Ac ton, 515 U.S. 646, 654–657 (1995). Even if he could as sume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications. Under the circumstances, a reasonable employee would be aware that sound manage ment principles might require the audit of messages to determine whether the pager was being appropriately used. Given that the City issued the pagers to Quon and other SWAT Team members in order to help them more quickly respond to crises-and given that Quon had re ceived no assurances of privacy-Quon could have antici pated that it might be necessary for the City to audit pager messages to assess the SWAT Team’s performance in particular emergency situations.
From OPD’s perspective, the fact that Quon likely had only a limited privacy expectation, with boundaries that we need not here explore, lessened the risk that the review would intrude on highly private details of Quon’s life. OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his per sonal e-mail account or pager, or a wiretap on his home phone line, would have been. That the search did reveal intimate details of Quon’s life does not make it unreason able, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters. The search was permissible in its scope.
The Court of Appeals erred in finding the search unrea sonable. It pointed to a “host of simple ways to verify the efficacy of the 25, 000 character limit . . . without intruding on [respondents’] Fourth Amendment rights.” 529 F.3d, at 909. The panel suggested that Scharf “could have warned Quon that for the month of September he was forbidden from using his pager for personal communica tions, and that the contents of all his messages would be reviewed to ensure the pager was used only for work-related purposes during that time frame. Alternatively, if [OPD] wanted to review past usage, it could have asked Quon to count the characters himself, or asked him to redact personal messages and grant permission to [OPD] to review the redacted transcript.” Ibid.

This approach was inconsistent with controlling prece dents. This Court has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reason able under the Fourth Amendment.” Vernonia, supra, at 663; see also, e.g., Board of Ed. ofIndependent School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 837 (2002); Illinois v. Lafayette, 462 U.S. 640, 647 (1983). That rationale “could raise insuperable barriers to the exercise of virtually all search-and-seizure powers, ” United States v. Martinez-Fuerte, 428 U.S. 543, 557, n. 12 (1976), because “judges engaged in post hoc evaluations of government conduct can almost always imagine some alternative means by which the objectives of the govern ment might have been accomplished, ” Skinner, 489 U.S., at 629, n. 9 (internal quotation marks and brackets omit ted). The analytic errors of the Court of Appeals in this case illustrate the necessity of this principle. Even assum ing there were ways that OPD could have performed the search that would have been less intrusive, it does not follow that the search as conducted was unreasonable.

Respondents argue that the search was per se unrea sonable in light of the Court of Appeals’ conclusion that Arch Wireless violated the SCA by giving the City the transcripts of Quon’s text messages. The merits of the SCA claim are not before us. But even if the Court of Appeals was correct to conclude that the SCA forbade Arch Wireless from turning over the transcripts, it does not follow that petitioners’ actions were unreasonable. Respondents point to no authority for the proposition that the existence of statutory protection renders a search per se unreasonable under the Fourth Amendment. And the precedents counsel otherwise. See Virginia v. Moore, 553 U.S. 164, 168 (2008) (search incident to an arrest that was illegal under state law was reasonable); California v. Greenwood, 486 U.S. 35, 43 (1988) (rejecting argument that if state law forbade police search of individual’s gar bage the search would violate the Fourth Amendment). Furthermore, respondents do not maintain that any OPD employee either violated the law him- or herself or knew or should have known that Arch Wireless, by turning over the transcript, would have violated the law. The other wise reasonable search by OPD is not rendered unreason able by the assumption that Arch Wireless violated the SCA by turning over the transcripts.

Because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable under the approach of the O’Connor plurality. 480 U.S., at 726. For these same reasons-that the employer had a legitimate reason for the search, and that the search was not excessively intru sive in light of that justification-the Court also concludes that the search would be “regarded as reasonable and normal in the private-employer context” and would satisfy the approach of Justice SCALIA’s concurrence. Id., at 732. The search was reasonable, and the Court of Appeals erred by holding to the contrary. Petitioners did not vio late Quon’s Fourth Amendment rights.”

Commentary,

Take this case, and also take into account COMMONWEALTH vs. JOHN EASON. 427 Mass. 595 (1998) which stated that there is no expectation of privacy in a telephone conversation. The fact that it was a department issued pager weighed heavily hear, and as for the claims of the other parties that they had a reasonable expectation of privacy in texts they sent to him, just refer back to Eason in Massachusetts to get a clear answer to that. Eason stated ” This court stated that any expectation of privacy in a telephone conversation is not objectively reasonable, because a person is not reasonably entitled to assume that no one is listening in on an extension telephone; consequently, at the retrial of an indictment, testimony of police officers, concerning telephone conversations they monitored on a telephone extension without a warrant but with the consent of a party who telephoned the defendant at the officers’ request, will be admissible in evidence.” In other words, once you put it out there, its unreasonable to believe the person receiving it would not be allowed to share it with others absent some specific agreement.

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to RSellon@PoliceLegalPromotions.com
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