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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

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

slide2

www.khodges.com/iacp

  • These PowerPoint slides.
  • The complete article on government workplace searches.
  • Other 2003 IACP conference presentations by FLETC instructors.
slide3

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?

slide4

WHAT IS THE “WORKPLACE?”

Offices

Desks

Computers

Filing Cabinets

Government Vehicles

NORMALLY INCLUDES

slide5

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.
slide6

REASONABLE EXPECTATION OF PRIVACY

A REFRESHER

SUBJECTIVE

OBJECTIVE

slide7

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.
slide8

FACTOR #1:PRIOR NOTICE

  • Computer Banners
  • Inspection Policies
  • Employee Manuals

COMPUTER BANNERS

slide9

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?
slide10

FACTOR #3:OPENNESS AND ACCESSIBILITY

  • Shared office?
  • Cubicle?
  • Common areas?
  • Passwords?
slide11

FACTOR #4:POSITION OF THE EMPLOYEE

HIGH SECURITY REQUIREMENTS

POSITIONS OF TRUST AND RESPONSIBILITY

slide12

FACTOR #5:WAIVER OF RIGHTS

Precondition of Receiving a Certain Benefit

slide13

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.

slide14
Keith Hodges

Senior Instructor

FLETC Legal Division

how we defeat rep refresher from your police academy days
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
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
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
Special Work-Place Exceptions

Depends on the REASON for the search.

  • Work related
    • Non-Investigatory
    • Work-related misconduct
  • “Pure” criminal
slide19

Public Employers Have “Special Needs”

Balancing Test

FOURTH AMENDMENT CONCERNS

EFFICIENT WORKPLACE OPERATION

VS.

O’Connor v. Ortega (1987)

slide20

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)
slide21

“Justified at its Inception”

It means …

have a REASON for looking where you’re looking!

slide22

“Permissible In Scope”

It means …

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

slide23

Work-Related

Misconduct

  • Same as non-investigatory.
    • Justified at inception
    • Reasonable in scope
  • Terry reasonable suspicion.
    • “Criminal activity afoot.”
slide24

“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.
slide25

What if both Work-Related Misconduct and Criminal?

Has a criminal investigation been opened?

Was a workforce policy violated?

Who conducted the search?

slide26

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
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.
slide28

www.khodges.com/iacp

  • These PowerPoint slides.
  • The complete article on government workplace searches.
  • Other 2003 IACP conference presentations by FLETC instructors.