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GOVERNMENT WORKPLACE SEARCHES. Bryan R. Lemons (912) 267-2945 [email protected] Keith Hodges (912) 554-4757 [email protected] Federal Law Enforcement Training Center Glynco, GA. www.khodges.com/iacp. These PowerPoint slides. The complete article on government workplace searches.

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GOVERNMENT WORKPLACE SEARCHES

Bryan R. Lemons

(912) 267-2945

[email protected]

Keith Hodges

(912) 554-4757

[email protected]

Federal Law Enforcement Training Center

Glynco, GA


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www.khodges.com/iacp

  • These PowerPoint slides.

  • The complete article on government workplace searches.

  • Other 2003 IACP conference presentations by FLETC instructors.


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OVERVIEW OF WORKPLACE SEARCHES

Does the employee have a reasonable expectation of privacy in the place searched?

If so, what was the motivation behind the search of that area?


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WHAT IS THE “WORKPLACE?”

Offices

Desks

Computers

Filing Cabinets

Government Vehicles

NORMALLY INCLUDES


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WHAT ABOUT PERSONAL ITEMS AT THE WORKPLACE?

  • Generally NO, but …

  • If storing government items … OR

  • Notice has been provided …

  • Then could become part of the workplace.


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REASONABLE EXPECTATION OF PRIVACY

A REFRESHER

SUBJECTIVE

OBJECTIVE


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GOVERNMENT EMPLOYEES AND EXPECTATIONS OF PRIVACY

  • They can have it …

  • Even though the government owns the property …

  • But … it is reduced by the “operational realities” of the workplace.


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FACTOR #1:PRIOR NOTICE

  • Computer Banners

  • Inspection Policies

  • Employee Manuals

COMPUTER BANNERS


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FACTOR #2:PRACTICES AND PROCEDURES

  • Does the employer actually follow its regulations?

  • Does the employer actually inspect lockers?

  • Does the employer actually monitor Internet/e-mail usage?


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FACTOR #3:OPENNESS AND ACCESSIBILITY

  • Shared office?

  • Cubicle?

  • Common areas?

  • Passwords?


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FACTOR #4:POSITION OF THE EMPLOYEE

HIGH SECURITY REQUIREMENTS

POSITIONS OF TRUST AND RESPONSIBILITY


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FACTOR #5:WAIVER OF RIGHTS

Precondition of Receiving a Certain Benefit


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A WRAP UP ON PRIVACY EXPECTATIONS

If there is no expectation of privacy: The 4th Amendment DOES NOT apply.

If there is an expectation of privacy: The 4th Amendment DOES apply.


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Keith Hodges

Senior Instructor

FLETC Legal Division


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

  • Reminder – No REP

    • We can search non-REP places at will.

  • Consent always works.

  • Warrants always work.

  • Special work-place search exceptions.


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Consent Always Works

  • From the person who has the REP.

  • Advantages:

    • Quick and cheap.

  • Disadvantages:

    • Target can refuse.

    • Scope of search limited to consent.

    • Target can withdraw consent.

    • Later claim consent was involuntary.


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Search Warrants

  • Probable cause (of course.)

  • We can secure the scene while waiting for the warrant.

    • Illinois v. McArthur, 531 U.S. 326 (2001)


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Special Work-Place Exceptions

Depends on the REASON for the search.

  • Work related

    • Non-Investigatory

    • Work-related misconduct

  • “Pure” criminal


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Public Employers Have “Special Needs”

Balancing Test

FOURTH AMENDMENT CONCERNS

EFFICIENT WORKPLACE OPERATION

VS.

O’Connor v. Ortega (1987)


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Work-Related

(Non-Investigatory)

  • Work-related searches must be “reasonable”

  • To be “reasonable,” the search must be:

  • - Justified at its inception, and

  • - Reasonable in scope.

  • (Like reasonable suspicion)


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“Justified at its Inception”

It means …

have a REASON for looking where you’re looking!


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“Permissible In Scope”

It means …

look ONLY where what you’re looking for could be located!


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Work-Related

Misconduct

  • Same as non-investigatory.

    • Justified at inception

    • Reasonable in scope

  • Terry reasonable suspicion.

    • “Criminal activity afoot.”


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“Pure” Criminal

  • No longer searching for “efficiency” of the office.

  • Preparing criminal prosecution.

  • Exactly what the 4th Amendment was meant to protect against.

  • Get a warrant.


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What if both Work-Related Misconduct and Criminal?

Has a criminal investigation been opened?

Was a workforce policy violated?

Who conducted the search?


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Work-Related Misconduct and Criminal?

  • Same standard as work-related.

    • Reasonable suspicion (Terry).

  • But, be conservative.

    • Warrant is probably the better course.


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Review (REP Exists)

  • Work-Related – Non-Investigatory.

    • Justified at its inception.

    • Permissible in scope.

    • (Reasonable suspicion)

  • Work-Related Misconduct – Investigatory.

    • Terry reasonable suspicion.

  • Pure criminal.

    • Search warrant.

  • Mixed Purpose (criminal and work-related misconduct).

    • Same as work-related misconduct (Terry).

    • Best to get a warrant.


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www.khodges.com/iacp

  • These PowerPoint slides.

  • The complete article on government workplace searches.

  • Other 2003 IACP conference presentations by FLETC instructors.


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