STEVEN M. BETZ
Rains Lucia Stern, PC
As technology in our society progresses and becomes common use among the general public, new questions about the reaches of government and employer searches naturally arise. An area of particular concern for police officers is the degree of privacy officers have in the communications that are made through—and the data that is stored in—their cell phones. In a world of ever-increasing criticism of police officers, a central concern is what rights an officer has regarding maintaining the privacy of his or her cell phone during workplace investigations.
Searches of Cell Phones Must Be Reasonable
Ultimately, there are two important areas to consider: what are an employee’s rights regarding cell phone searches of department-issued cell phones, and what are the employee’s rights regarding personally owned cell phones? The short answer is that the department generally has carte blanche authority to search department-issued phones, whereas the department’s search of personally owned cell phones is limited by the reasonableness of the search.
A. Searches of Department-Issued Cell Phones
As a preliminary matter, it is important to note that the Fourth Amendment’s protection against unreasonable searches and seizures extends beyond criminal searches. U.S. Constitution Amendment IV; Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 530 (1967) “The [Fourth] Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by offices of the Government,” without regard to whether the government actor is investigating crime or performing another function. Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 613-14 (1989) However, this ultimately begs the question: What is reasonable in the context of government employers searching the belongings of government employees?
Regarding searches of department-issued cell phones, the matter is settled. In City of Ontario v. Quon, 130 S. Ct. 2619 (2010), the City gave the members of its SWAT team, to which Officer Quon belonged, pagers that would be used for mobilization purposes. Additionally, before issuing the pagers, the City announced that employees would not enjoy an expectation of privacy regarding the data sent and received via those pagers. Quon sent text messages via this pager and exceeded the monthly allotment of texts.
The Ontario Police Department wanted to know whether Quon was exceeding his monthly allotment due to business reasons or because Quon was using the pager excessively for personal use. The City then contacted the pager provider and obtained the transcripts for all of Quon’s texts. After discovering that many of the texts were personal in nature, as well as sexually explicit, the Department referred the case to its internal affairs bureau. Quon challenged the search of his texts as unreasonable under the Fourth Amendment.
The Court ultimately determined that Quon could not have reasonably believed his text messages, sent from a department-issued PCD, would be protected from audit. Quon, 130 S. Ct. at 2632 This decision ultimately puts to rest the issue of whether an employer can search an employee’s department-issued PCD.
B. Searches of Personal PCDs
However, the issue remains as to under what circumstances an employer can search a personal cell phone. The courts have recognized that “[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.” O’Connor v. Ortega, 480 U.S. 709, 717 (1987) However, “[t]he operational realities of the workplace…may make some employees’ expectation of privacy unreasonable when an intrusion is by a supervisor …. Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation.” Id. Nonetheless, a search must be reasonable and “…what is reasonable depends on the context within which a search takes place.” New Jersey v. T.L.O., 490 U.S. 325, 336 (1985)
The U.S. Supreme Court ultimately created a two-step process when determining whether a public employer has the authority to search the personal belongings of its employees: 1. the search must be justified at its inception; and 2. the actual search itself must be reasonably related in scope to the circumstances that justified the search in the first place. O’Connor, 480 U.S. at 726 The Court found that a search is justified in its inception “when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a non-investigatory work-related purpose such as to retrieve a needed file.” Id. “The search will be permissible in its scope when ‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of…the nature of the [misconduct].’” Id. (citing T.L.O., 490 U.S. at 342)
Additionally, the Ninth Circuit Court has established that reasonable suspicion is required when a police department wishes to search its officers in an intrusive manner. In Kirkpatrick v. City of Los Angeles, 803 F.2d 485 (1986), the Ninth Circuit found that the Los Angeles Police Department violated the Fourth Amendment rights of its officers when a lieutenant ordered a strip search of the officers in order to clear them from an accusation that they stole money from a suspect. The Court determined that reasonable suspicion was required based upon the highly intrusive manner of a strip search. Id. at 489 It is the position of this office that reasonable suspicion is also required when a department wishes to search a cell phone for misconduct because of the highly sensitive, personal information that persons generally keep on their cell phones.
What this ultimately boils down to is that if a police department has reasonable suspicion to believe that evidence of employee misconduct can be found on an employee’s personal cell phone then, generally, a search of the cell phone will be permissible. It is not hard to imagine the myriad situations that this could manifest itself under—off-duty sexual harassment of a co-worker, fights, sick-leave abuse and so on. So long as there is evidence of work-related misconduct, even if it occurred off duty, the department may be able to establish a sufficient nexus to an officer’s job in order to authorize a search of the phone.
It is the position of this law firm, however, that if the department wishes to search an officer’s personal PCD, the department must comply with certain requirements. This includes providing the employee, in writing, the articulable facts that support the search, the precise information that is sought and an opportunity to be present when the search is conducted. It is our position that a failure to follow these minimal requirements would render the search of a personal cell phone unreasonable in its scope and inception.
Officers Should Avoid Using Personal PCDs For Work-Related Purposes
As shown above, the right of a police department to search officers’ cell phones, whether personal or not, is extensive. However, when related to personal cell phones, a department must still comport with the Fourth Amendment’s reasonableness standard. This functionally means that the department must have reasonable suspicion supported by articulable facts that employee misconduct can be found on a personal cell phone.
Obviously, the best advice this firm can give our police clients is to discourage them from using their personal cell phones for any work-related purpose. This does not mean that an officer should not bring a personal cell phone to work and use the phone for minor personal matters. However, officers should be warned that even strict personal use could lead to a search from their departments under certain circumstances (e.g., when an officer is accused of excessive text messaging on duty, the department will probably possess the authority to search an officer’s cell phone for evidence of said misconduct, if the search comports with the reasonableness requirement outlined above).
Officers should also take note that the policy may permit a department to search phones that are used off-duty if the department is aware that the phone was used in connection with employee misconduct (and, of course, the search comports with the reasonableness requirement). Officers should be advised that even the private cell phone usage may be subject to search from the department if related to employee misconduct.
Many officers may (and perhaps should) be shocked at what is clearly a great potential intrusion into their personal lives. Many people these days keep extremely private, and voluminous, information in their cellular phones. Unfortunately, the law has created a high standard of conduct for police due to their special place in American society. On this issue, the Supreme Court of California once stated:
“Courts have long recognized that, while the off-duty conduct of employees is generally of no legal consequence to their employers, the public expects peace officers to be ‘above suspicion of violation of the very laws [they are] sworn . . . to enforce.’ [citations] Historically, peace officers have been held to a higher standard than other public employees, in part because they alone are the ‘guardians of peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintaining law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them.’ [citations] To maintain the public’s confidence in its police force, a law enforcement agency must promptly, thoroughly, and fairly investigate allegations of officer misconduct; if warranted, it must institute disciplinary proceedings. Pasadena Police Officers v. Pasadena, 41 Cal.3d 572, 587 (1990)”
The state of the law is clearly not ideal for police officers and their privacy rights. Regardless, it is, of course, our policy to give our clients the most accurate description of the state of the law regardless of whether that state is good or bad for our police clients. Despite the current state of the law, this firm’s position is that we will take an aggressive stance against cell phone searches, particularly those of personal phones, and ensure that such searches comply with the law as well as reasonable steps by the department in order to ensure that the officer is being treated fairly.
Officers should be cautioned to never give their cell phone to their employers without first consulting an attorney. As always, whenever an officer is accused of misconduct, his or her first step should be to contact the PORAC Legal Defense Fund about seeking representation.
About the Author
Steven M. Betz is an associate with Rains Lucia Stern, PC. Steven’s practice focuses primarily on labor issues, including unfair practices, grievances and bargaining. Steven also has experience representing peace officers in administrative, disciplinary and critical incident matters.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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- Noe Cordero San Diego POA
Thank you for your help. I feel very secure as you assisted me.
- Joseph Barrett LA Airport POA
I was very well represented by a professional. I felt well represented and got great advice.
- James F. Beland Lake County SDA
- David Heller Yolo County DSA
The charges against me, if sustained, would have likely ended my LE career. I was rightfully exonerated on all charges. I was well represented by [My Representative] and thank him for a job well done!!
- Alvaro Ancheta Glendora POA
I felt I was represented in a thorough and professional manner.
- Chris Lyon Tulare Co DSA
Very thorough group of sharp/smart government concerned [attorneys]. They understood what was happening and briefed me on everything. I was very impressed.
- Malcolm Norrington LA School PA
I am very pleased with LDF and would use and recommend them again and again and again.
- Nicholas Belliveau Sebastopol POA
High quality service, proficient, well informed. Overall, very happy with experience.
- Patrick Davis Oakland POA
Very knowledgeable and thorough and would use the rep again.
- Ricky L. Hemphill Los Angeles School PA
[My representative] was an excellent lawyer.
- Melissa Geraci Oakland POA
This is my 1st time using LDF and was very pleased with the service I got. [My representative] was so friendly & always returned my calls & even called to update me without provocation.
- Billy Aldridge Chico POA
[My representative] was awesome! He provided an excellent explanation of the process and was very professional. This was my first IA in 11 years of LE and [my representative] did a great job of reassuring me that I had nothing to worry about. Thank you so much for all your help.
- Greg Harman Kensington POA
[My representative] is the best!!
- Yvonne Heuston ERS/SPPOA Supervisors
My representative was outstanding and knew what to lookout for and how to handle situations as they appeared. He told me what to expect and how he proposed to handle the hurdles. Just telling what to expect helped put me at ease as the situation was so foreign to me, and intimidating.
- Allison Clark Twin Cities POA
[My representative] is the best attorney LDF has. Her attention to details, professionalism, and intelligence were off the charts. If I did not have her as a rep I would probably be out of a job. She is fair and she was honestly concerned about me, my family and my case.
- Christopher Walters Antioch POA
My LDF rep was very attentive, and courteous. She made every effort to keep me informed, and kept my best interests at the front of the process. I was very satisfied with my LDF rep, and the entire process.
- Michael Shephard Suisun City POA
LDF is a very valuable resource. I would not do this job without it.
- Jack Ellis Lompoc POA
An excellent plan. Very valuable to its members.
- Brent Teasley ERS/Reno PSAEA
[ My representative ] was bogged down with multiple cases when he represented me, but I feel he did an excellent job. I would not have wanted anyone else to represent me during a very troublesome time.
- Ernest Marugg San Diego Deputy DA Association
The LDF responded immediately upon my request for counsel. LDF provided the best representative I could receive! When I called LDF for advice, I was given advice again immediately. Thank you LDF for your concern.
- Christopher Wirth A F G E Border Patrol
LDF referred me to [ representative ] in Spokane, WA. [ Representative ] did an outstanding job representing me. Thank you very much for the referral ! I would not be employed any longer had it not been for [ representative ] and his legal team.”
- Nestor Hernandez San Diego POA
This is a great program designed to protect LEO’s in need
- Korey Lankow Assn Highway Patrol of Arizona
Outstanding service from bottom-to-top.
- Rachel Tyner Transit EOA of San Diego
All the LDF representatives were very courteous and attentive with a punctual response to all of my concerns, inquiries and appointment scheduling. My representative was very informative about the legalities and kept in contact with me regularly. He was also very patient and straight forward. I would definitely want to use the LDF again and felt more confident through my proceedings because I had representation!
- Roman Fernandez Inglewood POA
My representatives were always well-prepared and organized for hearings and meetings. Their efforts, hard work and full support is truly appreciated.
- Stephen Woodward Palm Springs POA
Great job by my LDF lawyer. I have had to use them several times over my 20 year career and their service is invaluable.
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- German Alvarez Anaheim PA
[My representative ] was great!
- Jason Boust Sanger POA
My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
- Rodd N. Joseph Clearlake MMA
I appreciate the fact that my representative met with me in a social setting prior to the interview, during which time she learned the facts of the case. She was prepared for the interview. She seemed to have a genuine interest in my case.
- James Beckman Miracosta College POA
Highly recommend this program for any LEO!
- Brad Young Oakland POA
[My representative] is an excellent attorney and I am very happy he picks up the phone and answers my questions whenever possible.
- Tia Dixione Inglewood POA
My representative was very helpful and informative.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- Jon Seabron Oceanside POA
[My Representative] was the best and if I ever need to call al lawyer again for anything, I'll be calling her.
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- Alfredo Hernandez El Centro POA
[My representative] was very attentive, [informative] and knowledgeable. He spoke very clearly and explained things in ways easy to understand. [He] made me feel like he truly cared about what was going on with this case and me. Not to mention [he] was funny and witty, traits which made him trustworthy and someone who would stand by me and other police officers.
- Christopher Wells Hollister POA
My rep was great.
- Robert Morales Rialto PBA
I was very pleased with the service I received
- Robyn Delaney Mono County PSOA
[My Representative] truly is an exceptional attorney. He has always represented me with honesty and compassion. Well Done.
- Gregory Carbett Ontario POA
The attorney assigned to my case was GREAT! It's sad, but it's impossible to be an officer in today's world without a defense fund like PORAC LDF. I am now retired and signed up for the retired officers CCW LDF. Thanks!
- Tai Pena-Hornung Oakland POA
Those who foolishly feel LDF is not a valuable resource, do so only because they have not yet needed legal representation.
- Jason Walters Claremont POA
LDF was very informative and provided me with the direction on how to handle my case. I was very happy with LDF and their staff.
- George Fierro El Monte POA
I am a firm believer that LDF serves an essential part in the assistance to protect an officer's POBR & in the integrity of an investigation or complaint. I highly recommend the law office of [My Represenative].
- Jurell Snyder Oakland POA
My LDF representative had a power point presentation, which was extremely professional.
- John Tinder Chino POA
Having an LDF attorney who is experienced, knowledgeable and professional is an outstanding quality. [My representative ]exhibit all of these qualities and more. They are outstanding and I would not entrust my career to anyone else!
- Ron Ruddy Riverside POA
- Kerry Carlson Midpeninsula Ranger POA
I have held leadership positions in our POA most of my career. Because of my role as President and Vice President I have been a target to management. I feel that if it were not for LDF I wouldn't have a job
- Omar Daza-Quiroz Oakland POA
I have had (2) two cases in which LDF represented me. Both lawyers were exceptionally professional, intelligent and caring for me. They were friendly and very helpful.
- James Stephenson Petaluma POA
Outstanding service. Thanks.
- Gerhard Wallace Santa Clara Co DSA
I think that [my representative] did a great job in presenting my case. I would recommend her to any deputy (officer) facing disciplinary action. My case was minor compared to other cases but [she] still did a professional job.
- Gary J. Foppiano Oakland POA
[My representative] has been in my corner for 28 years. I have been represented by this firm probably 6 times in my career from minor to major discipline cases with a great outcome for me. They're batting 100%
- Steven Curtiss Shasta Co DSA
This was my first need for LDF support and I was very happy with the level of service. Thank you.
- Phillip Flores Oxnard POA
My attorney was excellent. I would use her again.
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- James Walker Yakima Police Patrolsman Assn
This attorney and her legal team were one of the best I’ve seen and interacted with. I was always in the loop and constantly updated on the case status. I would use (my attorney) again if the need came and recommend her to anyone.
- Jeff Stanley Upland POA
Excellent program, no one should be without this coverage.
- Patrick Beggs Fresno Co DSA
Good service. Thank you.
- Kelly K. Roe San Joaquin Co Corr Officers
[My representative] did a fantastic job at returning my phone calls and keeping me informed of any and all information pertaining to my case. I would recommend him to anyone.
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- William Pryor Statewide University PA
Very helpful program. Helped keep department personnel focused on the issue regardless of their personal issues.
- Kenneth Nelson Plumas Co SA
Good job. Thank you! [My representative] does an outstanding job representing the employees and seems to be very intimidating to the [County Management]. We like it this way!
- Robert Hartman Contra Costa Co DSA
Quick response, experienced and knowledgeable attorney which assisted in every step. [My representative] kept me apprised through the process. Thank you.
- Christopher Adams Modesto POA
Thank you for all your help!
- Andrea Salas Sonoma County DSA
[My Representative] was great! Thank you.
- Rick Stephens Alpine CO DSA
My representative was very good. I highly recommend my lawyer to anyone.
- Brad Young Oakland POA
[ My representative ] is an awesome attorney.
- Matthew Gardner Colorado PPA
I would not want to be an officer without this coverage. It was great to have it and kept my mind at ease.
- Tamboura Nettingham Claremont Custody Center EA
My representative was an outstanding rep. I was very fortunate to be represented by her and the firm should be very proud to have her in it. She's courteous, smart and aggressive when needed. I would not ask for anyone else, if any other situation evolved, she's the best. Thanks.
- Stephanie Haas Lyon Co SEA
When I first contacted LDF re: my case I was unsure of how well/poor I'd actually be represented. I was impressed beyond belief. From the timely responses from my attorney, his knowledge in my case, advising me what my rights were and where I stood. I felt like I was genuinely being protected from unwarranted and unfounded accusations and believe, as long as I am in the right, I have someone fighting for me. Thank you, Thank you.
- Jonathan Smith San Diego D.A. Investigators
I couldn't be happier or more satisfied with my LDF Representative, the process and the outcome of my case.
- Scott Muir Tracy POA
Very satisfied with the service I was given.
- John Dougherty National City POA
My LDF Representative was [Representative]. He did an outanding job with my case and I am overjoyed with the results.
- Christopher Delaney Upland POA
Your rep was very personal. Even though my case involved something minor, your rep made me [feel] my case was his most important. I am very satisfied with my LDF team.
- Craig Caches Fremont POA
I have only used LDF once for myself, which with the circumstance was great. I work with LDF in my assignment ( OIS investigator ) and after approximately 4-5 OIS's, I have great experiences with LDF.
- Robert Curato Anderson POA
He did a great job for me!!! He always returned my phone calls within 24-hours. He showed an interest in my case and we were able to get the issue resolved in less than 45 minutes. Thank you for being there when I needed the legal assistance.
- Chad Sakamoto National City POA
Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.