Warrantless Search in the Law Enforcement Workplace

• Author: William P. Bloss
• Date: 01 June 1998
• DOI: 10.1177/109861119800100203
• Published date: 01 June 1998
• Subject Matter: Articles

WARRANTLESS SEARCH IN THE LAW
ENFORCEMENT WORKPLACE:
Court Interpretation of Employer Practices
and Employee Privacy Rights
Under the Ortega Doctrine
1
WILLIAM P. BLOSS
The Citadel
One of the earliest areas of employee Fourth Amendment privacy juris-
prudence in the law enforcement workplace was employer warrantless
search. In O’Connor v. Ortega (1987), the United States Supreme Court
clarified the doctrine permitting public employers to conduct warrantless
searches in the workplace. Using federal and state case law, this paper ana-
lyzes lower court interpretation and application of the Ortega doctrine re-
garding employer warrantless search in the law-enforcement workplace.
The paper examines current lower court doctrine and discusses allowable
warrantless search practices by law enforcement employers. This study
concludes that lower courts, relying on a "balancing of competing inter-
ests" test between government and individual privacy, have found employer
warrantless noncriminal searches permissible because of a diminished
employee "expectation of privacy" in the public workplace. Further, in
supplanting traditional Fourth Amendment warrant and probable-cause
requirements with a reasonableness standard, the courts have expanded
law enforcement employer search authority to include areas such as em-
ployee offices, desks, briefcases, lockers and government-issued vehicles.
Privacy jurisprudence regarding government employees was recast follow-
ing the United States Supreme Court decision in O’Connor v. Ortega ( 1987)
(hereinafter Ortega). The holding permitted government employers to con-
duct warrantless searches of employee workplaces. The doctrine that emerged
stated government employees possessed a diminished &dquo;expectation of pri-
vacy&dquo; in the public workplace, resulting in fewer traditional Fourth Amend-
ment
warrant and probable-cause protections. Along with other government
employees, law enforcement officers were affected by the Ortega decision
POLICE QUARTERLY VOL. 1, NO. 2 1998
© 1998 Pohce Executive Research Forum

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52
when the lower courts applied Ortega’s principles to the law enforcement
workplace. Since the Ortega decision, lower courts have expanded the scope
of employer search to include a variety of locations and articles within the
workplace.
This paper analyzes the seminal Ortega decision and its interpretation
by the lower courts, as applied to the law-enforcement workplace. Relying
on
federal and state case law, the paper examines the evolution and applica-
tion of the jurisprudential precepts of employer warrantless search involving
law-enforcement personnel. The analysis concludes that lower court’s ap-
plication of the Ortega doctrinal principles, coupled with interpretation of
an employee diminished &dquo;expectation of privacy&dquo; in the law enforcement
workplace, have resulted in expanded warrantless search permissibility. These
expanded powers have enabled government employers to engage in a broader
scope of workplace searches involving employee desks, briefcases, lockers
and government-issued vehicles. Guidelines, practices and policy implica-
tions of legally permissible employer warrantless search within the law en-
forcement workplace are discussed.
Two litigational developments influenced the evolution of the cur-
rent doctrine regarding warrantless search within the government em-
ployee workplace. First, significant attention to libertarian and privacy
issues was garnered by the &dquo;underclass litigant&dquo; (Ulmer 1985) during
the Warren Court (1953-1969). Wasby (1988:8) reports that during the
Warren years, civil liberty claimants prevailed in &dquo;upwards of 80 per-
cent&dquo; of the cases before the Supreme Court. Many of these cases, as
well as those decided during the Burger and Rehnquist Courts, stemmed
from Fourth Amendment and privacy-related litigation. As such, the
United States Supreme Court reshaped the contours of interpretation
of individual privacy in several benchmark cases (e.g., Griswold v. Con-
necticut 1965; Eisenstadt v. Baird 1972; Roe v. Wade 1973), which re-
sulted in bringing libertarian privacy issues to the forefront.
Second, the Supreme Court concomitantly crafted a panoply of &dquo;ex-
ceptions&dquo; to traditional Fourth Amendment warrant and probable cause re-
quirements (Sundby 1988; Reamey 1992; Searle 1989; Nuger 1992; Vaughn
and del Carmen 1993). Among the litany of exceptions, the &dquo;administrative
search&dquo; (Camara v. Municipal Court 1967) and &dquo;special needs&dquo; (New Jersey v.
T.L.O. 1985) exceptions were the most influential in the development of the
Ortega doctrine (See generally Vaughn and del Carmen 1993). Although the
focus of many of these Fourth Amendment search and individual privacy
cases was on criminal defendants, inmates and others, the jurisprudential
doctrine that emerged affected numerous potential litigants, including gov-
ernment and law enforcement employees.

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53
In addition to the effects of Fourth Amendment exceptions, the evolv-
ing warrantless workplace search doctrine distinguished between the public
and private workplace regarding permissible employer practices and em-
ployee privacy rights. As Hoekstra (1996 :130) noted, &dquo;Public sector
searches...may involve considerations private sector employers do not have
to address since private sector employers are not subject to the Fourth Amend-
ment.&dquo; Fourth Amendment requirements placed public employer searches
squarely within certain constitutional mandates. As a result, both Fourth
Amendment jurisprudence and the public nature of the workplace are cen-
tral to court mterpretation of warrantless search in the law enforcement
workplace.
Pre-Ortega Court Doctrine Regarding
Law Enforcement Workplace Search
Although the United States Supreme Court in O’Connor v. Ortega ( 1987:721 )
had noted, &dquo;there is surprisingly little case law on the appropriate Fourth
Amendment standard of reasonableness for a public employer’s work-
related search of its employee’s offices, desks and filing cabinets,&dquo; there did
exist precendent that lower courts used for doctrinal guidance. Prior to Ortega,
lower courts interpretmg the propriety of warrantless workplace searches
largely had relied upon doctrine developed in Mancusi v. DeForte (1968).
The United States Supreme Court in Mancusi held that employee DeForte
had a reasonable &dquo;expectation of privacy&dquo; over the documents within his
union office and his possessions were protected from warrantless subpoena-
based searches by the police. Though Mancusi neither involved the public
workplace nor employer search, several courts relied on its principles for
much of the doctrinal authority before Ortega (See United States v. Kahan
1972; United States v. Speights 1977; Gilliard v. Schmidt 1978; Williams v.
――
CoUtnSN84). -
In the law enforcement workplace, precedent existed in several cases
that were generally decided through an mterpretation of the scope of indi-
vidual employee &dquo;expectation of prmacy&dquo; Applying the Katz v. United States
(1967) &dquo;expectation of privacy&dquo; standard-which stated an individual could
demonstrate a subjective and reasonable expectation of privacy protecting
persons and places from government intrusion-courts vacillated on the
permissibility of employer warrantless search within law enforcement em-
ployee workplaces. Several courts before the Ortega decision ruled on war-
rantless searches of the law enforcement workplace but failed to establish a
lucid or consistent doctrine. The common denominator among these early
cases was
an interpretation of the reasonableness of the employer search based
on the legitimacy of the employee claim of &dquo;expectation of privacy.&dquo; In a

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54
1973 decision, the United States Court of Appeals for the Ninth Circuit in
Shaffer v. Field (1973) held that a police employee had no &dquo;expectation of
privacy&dquo; over the contents of a locker to which the employer also had a key.
Conflicting with the Ninth Circuits’ ruling, the United States Court of Ap-
peals for the Third Circuit held in United States v. Speights (1977) that an
employer warrantless search of a police employees’ locker without prior no-
tice and after his personal lock was removed violated the employees’ reason-
able &dquo;expectation of privacy&dquo; over the locker contents. The Speights court
opined such searches may only be permissible in the presence of established
departmental policy and practice and with prior employee notice.
A
year later, the United States Court of Appeals for the Fourth Circuit
reasoned in United States v. Mclntyre ( 1978) that the warrantless surrepti-
tious electronic surveillance of
an assistant police chief’s office violated the
employee’s reasonable &dquo;expectation of privacy.&dquo; However, in Thornton v.
University Civil Service Merit Board ( 1987), the Appellate Court of Illinois
held that a university police officer suspected of misconduct had no reason-
able &dquo;expectation of privacy&dquo; over the general work area of the campus po-
lice office. Hence, the employer could observe the employee through
electronic surveillance. The Thornton court found that, because the office
area was
open and accessible to several employees, any reasonable employee
&dquo;expectation of privacy&dquo; was removed. Following the premise of prior notice
and employee consent, the United States District Court for the Central Dis-
trict of California ruled in LosAngeles Police...