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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Great program. I was lost until the attorneys explained the situation. I was very impressed and satisfied. Thanks LDF.
- Adam Laird Eureka POA
Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
- 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.
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.
- Christopher M. Fuzie Modesto POA
I was very impressed with the speed at which the case was handled. Thank you!
- Melvarene Hayes LA Airport POA
They were there when I needed them and my whole case was handled on the phone. I met my representative after my case closed and he was at our union meeting when I had the pleasure to meet him and thank him in person.
- Miguel Masso Oakland POA
[I'm very satisfied and grateful] for LDF representing me. My attorney was professional, honest, and very knowledgeable of his profession. During these tough times my attorney would contact me on a regular basis to see how I was doing. This was obviously not part of his job description, but it kept me at ease and not losing my mind. I'm thankful that I was represented by LDF.
- Patricia Goss San Anselmo POA
[My Representative] is fabulous! Thanks for all the exra work she did for me!
- Shaun Luciano LA School PA
LDF assisted by taking a stressful situation and calmed it down by thoroughly explaining the entire process. It was nice to know that I had an ally when I was sure that I was alone.
- Gilbert Salazar Montebello POA
Can’t say enough. Both representatives that I had in 2016 were excellent. ( My attorney ) made himself available to me in late night hours, which made me feel comfortable and at ease. This program is essential to us in law enforcement.
- Diana Drummey Coronado POA
I so appreciated my LDF rep - his kindness and understanding re my case during an embarrassing and uncomfortable time - he was so caring.
- Michael Kan Palo Alto POA
I have always been and will continue to be a strong supporter of LDF and would not work as a police officer without it. I am extremely happy with the service I have received both from LDF and [my representative].
- Linda Mendez Imperial Co Prob and Corr
I'm very pleased with the services offered by the LDF. I feel so fortunate to enjoy the benefits of having the membership. The services provided by LDF to its members is simply 110% professional, supportive, great!! LDF care for its members is reflected by the quality of Best Law Firm offered, simply the best!
- Ricky L. Hemphill Los Angeles School PA
[My representative] was an excellent lawyer.
- Nicholas Ward Antioch POA
[ Representative ] did a great job. My case was extremely complicated and difficult. She did a great job.
- Roy Iler San Benito CO LEM
[My representative] always returned phone calls and let me know if he was contacted with information.
- 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.
- Erick Gaunt Palos Verdes POA
- Jack Ellis Lompoc POA
An excellent plan. Very valuable to its members.
- Noe Cordero San Diego POA
Thank you for your help. I feel very secure as you assisted me.
- Daniel Smock Ventura County PPOA
Everything went smooth. I think the current system works very well.
- Jeff Griffin Downey POA
My experience with the LDF, and in particular my attorney, was extremely positive. [ My attorney ] worked very hard and kept me informed along the way.
- 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!
- Scot Hicks Humbolt County DSO
My experience was made much less stressful thanks to the LDF representation.
- Christopher Connally Assn of LEA
To whom it may concern: Let me start by saying how much I appreciate the opportunity to join the PORAC Legal Defense Fund. This is a great benefit for our membership. During the past twelve months I was fortunate to have access to the Legal Defense Fund through MPCA. Earlier this year I was both surprise, and disappointed, when realized that I needed to provide counsel to mediate pending litigation. In accessing the Legal Defense Fund I found your staff to be very professional and reassuring. The staff felt that [my representative]., would be the best ft for the situation. I would like to take the opportunity to express my appreciation for being represented by [Rick Barry]. Not only was he a good fit for the circumstances, at times it seemed as if he was the only attorney out of several involved that really had a grasp on the issues. Again, I would like to thank the PORAC staff, and know that I could not have been better served than by what was provided by [my representative].
- Alvaro Ancheta Glendora POA
I felt I was represented in a thorough and professional manner.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- Kenneth S. Blonski East Bay Regional Parks PMA
I was very pleased with my representative.
- 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.
- Dan Lovelace Chandler LEA
Thank you for the funding and support. I would be in jail right now if it were not for LDF. I would not have had the funding to pay for the case. It was a tremendous help having [my representative] and his support team and the many experts supplied by LDF. I speak for myself, my family and other members of my association.
- 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.
- Nicholas Belliveau Sebastopol POA
High quality service, proficient, well informed. Overall, very happy with experience.
- Michael Sexton Manteca POA
[My representative] was awesome.
- 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.
- Dennis W. Ostini Lake County DSA
[My Representative] was fantastic, knowledgeable, professional and easy to talk and work with. Even though the allegations lodged have not been resolved, [My Representative] continued to communicate with me, to offer his assistance.
- Joe Charvez Santa Clara Co DSA
I could not be happier with the interest, work put into my case, and assistance from [my representative]. Thanks !!
- 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.
- Gina Romines San Joaquin Co Corr POA
I couldn't have been more satisfied with the representative!
- 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.
- Doug Plumhoff Ridgecrest PEA
Great job by all! Always great to know LDF is there when needed.
- Marshall Henderson Vancouver Police Officers Guild
I have used LDF in 3 OIS's. Each time I have been very well taken care of. I highly recommend [ representative ] and the PORAC system. Well done and thank you.
- Martha Tschetter Carson City Sheriffs PA
The LDF process was painless and I was able to get immediate representation in an urgent time of need. Thank you LDF
- Jay Garacochea Culver City POA
[My representative] not only did he do a great job but he listened to my concerns. He did not force his views or game plan and we worked well w/ each other. We agreed on a goal and achieved it.
- 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.
- Scott King Ripon POA
[My representative] is the best LDF rep I have ever had. If I were to need an LDF rep again I would want it to be [my representative].
- Miguel Suarez Monterey Co DSA
[My representative] was very knowledgeable and courteous. He knew his stuff, and I couldn't have asked for a better guy to be on my side on this matter. Thanks.
- 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.
- Oliver Sansen Concord POA
In 14 years I have never had to deal with an "IA." [My representative] was wonderful & put my mind at ease throughout the entire process. Thank you!
- 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!!
- Malcolm Norrington LA School PA
I am very pleased with LDF and would use and recommend them again and again and again.
- William Burdette Newport Beach PMA
26 years and I have never needed a LDF rep, but the one time you need one, it was worth the fee’s paid.”
- Wendy Morrow Chico Public Safety Association
I had never been through an I.A. in my 21 years. I was scared and ashamed and humiliated. ( My attorney ) was excellent. He helped me through one of the worst times of my life. Had great outcome and I am grateful.
- Rachael Van Sloten Oakland POA
LDF is absolutely essential to help make a system that is somewhat broken work more effectively. [My Representative] is excellent and takes a great deal of time to lisen and represent.
- William Pryor Statewide University PA
Very helpful program. Helped keep department personnel focused on the issue regardless of their personal issues.
- Andrew J. Brice Santa Maria POA
As always... an excellent result.
- James F. Beland Lake County SDA
- Cherie Rye Lyon Co SEA
I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
- Alex Camarillo LASchool P A
[My Representative] did an excellent job with my case. He was very professional and kept me well informed throughout this case. Thank you for an awesome job.
- Brian Schopf Elk Grove POA
Keep up the good work.
- Tia Dixione Inglewood POA
My representative was very helpful and informative.
- Toinie Lee Jackson Madera Co DSA
Unfortunately, I have been placed in the position to use LDF several times in my career. Without their valued services, I would not be here to write this. I and my family thank you.
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- Clyde Williams San Diego Harbor POA
Thank you for all of the work related to my officer involved shooting case.