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GOVERNMENT WORKPLACE SEARCHES. Bryan R. Lemons (912) 267-2945 Bryan.Lemons@dhs.gov. Keith Hodges (912) 554-4757 Keith.Hodges@dhs.gov. 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

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GOVERNMENT WORKPLACE SEARCHES

Bryan R. Lemons

(912) 267-2945

Bryan.Lemons@dhs.gov

Keith Hodges

(912) 554-4757

Keith.Hodges@dhs.gov

Federal Law Enforcement Training Center

Glynco, GA


www.khodges.com/iacp

  • These PowerPoint slides.

  • The complete article on government workplace searches.

  • Other 2003 IACP conference presentations by FLETC instructors.


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?


WHAT IS THE “WORKPLACE?”

Offices

Desks

Computers

Filing Cabinets

Government Vehicles

NORMALLY INCLUDES


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.


REASONABLE EXPECTATION OF PRIVACY

A REFRESHER

SUBJECTIVE

OBJECTIVE


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.


FACTOR #1:PRIOR NOTICE

  • Computer Banners

  • Inspection Policies

  • Employee Manuals

COMPUTER BANNERS


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?


FACTOR #3:OPENNESS AND ACCESSIBILITY

  • Shared office?

  • Cubicle?

  • Common areas?

  • Passwords?


FACTOR #4:POSITION OF THE EMPLOYEE

HIGH SECURITY REQUIREMENTS

POSITIONS OF TRUST AND RESPONSIBILITY


FACTOR #5:WAIVER OF RIGHTS

Precondition of Receiving a Certain Benefit


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.


Keith Hodges

Senior Instructor

FLETC Legal Division


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.


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.


Search Warrants

  • Probable cause (of course.)

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

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


Special Work-Place Exceptions

Depends on the REASON for the search.

  • Work related

    • Non-Investigatory

    • Work-related misconduct

  • “Pure” criminal


Public Employers Have “Special Needs”

Balancing Test

FOURTH AMENDMENT CONCERNS

EFFICIENT WORKPLACE OPERATION

VS.

O’Connor v. Ortega (1987)


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)


“Justified at its Inception”

It means …

have a REASON for looking where you’re looking!


“Permissible In Scope”

It means …

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


Work-Related

Misconduct

  • Same as non-investigatory.

    • Justified at inception

    • Reasonable in scope

  • Terry reasonable suspicion.

    • “Criminal activity afoot.”


“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.


What if both Work-Related Misconduct and Criminal?

Has a criminal investigation been opened?

Was a workforce policy violated?

Who conducted the search?


Work-Related Misconduct and Criminal?

  • Same standard as work-related.

    • Reasonable suspicion (Terry).

  • But, be conservative.

    • Warrant is probably the better course.


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.


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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