Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Similar principles apply to a public employer’s work-related search of its employees’ offices, desks, or file cabinets, except that in this context the Court distinguished searches conducted for law enforcement purposes. In O’Connor v. Ortega,1 a majority of Justices agreed, albeit on somewhat differing rationales, that neither a warrant nor a probable cause requirement should apply to employer searches “for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct.” 2 Four Justices would require a case-by-case inquiry into the reasonableness of such searches;3 one would hold that such searches “do not violate the Fourth Amendment.” 4

In City of Ontario v. Quon,5 the Court bypassed adopting an approach for determining a government employee’s reasonable expectation of privacy, an issue unresolved in O’Connor. Rather, the Quon Court followed the “special needs” holding in O’Connor and found that, even assuming a reasonable expectation of privacy, a city’s warrantless search of the transcripts of a police officer’s on-duty text messages on city equipment was reasonable because it was justified at its inception by noninvestigatory work-related purposes and was not excessively intrusive.6 A jury had found the purpose of the search to be to determine whether the city’s contract with its wireless service provider was adequate, and the Court held that “reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether [the officer’s] overages were the result of work-related messaging or personal use.” 7

Footnotes

1

480 U.S. 709 (1987).

2

480 U.S. at 725. Not at issue was whether there must be individualized suspicion for investigations of work-related misconduct.

3

This position was stated in Justice Sandra Day O’Connor’s plurality opinion, joined by Chief Justice William Rehnquist and by Justices White and Lewis Powell.

4

480 U.S. at 732 (Scalia, J., concurring in judgment).

5

560 U.S. 746 (2010).

6

In Quon, a police officer was dismissed after a review of the transcripts of his on-duty text messages revealed that a large majority of his texting was not related to work, and some messages were sexually explicit.

7

560 U.S. 746, 761 (2010).