Zimmerman v. Knight

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TRICIA ZIMMERMAN,

Plaintiff, : Case No. 2:15-cv-3115

-vs- Judge Sarah D. Morrison

Magistrate Judge Elizabeth Preston Deavers

JENNIFER KNIGHT, et al.,

:

Defendants.

JEFFREY LAZAR,

Plaintiff, : Case No. 2:16-cv-195

-vs- Judge Sarah D. Morrison

Magistrate Judge Elizabeth Preston Deavers

JENNIFER KNIGHT, et al.,

:

Defendants.

OPINION AND ORDER

This matter is before the Court upon Defendant David Barrowman’s Motion for

Summary Judgment (ECF No. 61), Plaintiff Jeffrey Lazar’s Brief in Opposition to Defendant’s

Motion for Summary Judgment (ECF No. 67), and Defendant’s Reply Memorandum in Support

of his Motion for Summary Judgment (ECF No. 71). For the reasons that follow, the Court

GRANTS Defendant’s Motion.

I. PROCEDURAL HISTORY

On December 28, 2015, Officer Tricia Zimmerman filed a lawsuit (2:15-cv-3115) against

several members of the Columbus Division of Police and the City of Columbus alleging First

Amendment retaliation, Due Process violations, gender discrimination, and Title VII violations.1

On March 2, 2016, Officer Jeffrey Lazar filed a separate lawsuit (2:16-cv-195) against similar

Defendants, which arose from the same facts as Officer Zimmerman’s lawsuit. Officer Lazar

alleged that Defendants engaged in First Amendment retaliation against him and violated his

Fourth Amendment rights. The Court consolidated the lawsuits on May 10, 2016. (ECF No. 5).2

Thereafter, several cross-motions for summary judgment were filed by the parties. On

March 29, 2019, the Honorable Michael H. Watson issued an Opinion and Order ruling on the

motions (ECF No. 55), after which the only surviving claims are Officer Zimmerman’s hostile

work environment claim against the City of Columbus and Officer Lazar’s Fourth Amendment

claim against Sergeant David Barrowman. Pertinently, in addressing the cross-motions for

summary judgment as to Officer Lazar’s Fourth Amendment claim, the Court concluded:

In sum, Sergeant Barrowman’s search was not a proper [O’Connor v. Ortega,

480 U.S. 709 (1987)] search because, in the Sixth Circuit, the workplace search

exception does not apply to searches of purely personal, non-workplace, items.

However, it was not clearly established in November 2014 that O’Connor

searches are constrained to workplace items. Thus, Sergeant Barrowman is

entitled to qualified immunity if his search comported with the O’Connor

standard. The Court cannot determine based on the current briefing whether the

search satisfied O’Connor’s “reasonableness in scope” requirement or, if not,

whether it was clearly established that his search was unreasonable in scope.

Moreover, the Court cannot determine whether the search satisfied the clearly

established law regarding private searches or consent to search. As such the

Court cannot rule on the motions for summary judgment regarding Lazar’s

Fourth Amendment claim, and the Court DENIES both motions at this time.

The Court intends to set this case for mediation and, if mediation is unsuccessful,

will order full re-briefing of the Fourth Amendment issue.

1 Officer Zimmerman filed an Amended Complaint on August 10, 2017. (15-cv-3115:

ECF No. 25).

2 All record citations refer to documents filed in Case No. 2:16-cv-195 unless otherwise

noted.

(Opinion, 42–43, ECF No. 55). The cases were subsequently transferred to the undersigned.

(ECF No. 56).

On August 8, 2019, the parties unsuccessfully attempted mediation. As such, this Court

granted the parties leave to file renewed motions for summary judgment on the Fourth

Amendment issue left open by the Court in its March 29 Opinion. On August 30, Sergeant

Barrowman filed his Motion for Summary Judgment (ECF No. 61). Officer Lazar filed his

Memorandum in Opposition on September 27 (ECF No. 67). Sergeant Barrowman filed his

Reply on October 11 (ECF No. 71). Defendant’s renewed Motion is now ripe for review.

II. RELEVANT FACTS

On November 5, 2014, Emily Lazar, then-wife of Columbus Division of Police (“CPD”)

Officer Jeffrey Lazar (“Plaintiff”), filed a citizen complaint with CPD’s Internal Affairs Bureau

(“IAB”). (Interview Transcript, 1, ECF No. 61-1). IAB is the CPD unit charged with

investigating complaints involving Division personnel. (Barrowman Aff., ¶ 3, ECF No. 61-1).

“A complaint is an allegation of misconduct that, if true, may be a violation of law, Division

Rule of Conduct, or Division policy.” (Id.). Ms. Lazar relayed to IAB that she believed Plaintiff

and CPD Officer Tricia Zimmerman were involved in a sexual affair while on the job. (Interview

Tr., 1). There is no dispute that if an officer engages in sexual activity while on duty, he is in

violation of CPD’s Rules of Conduct. (Lazar Depo. Vol II, 9, ECF No. 25-14). After speaking

briefly with another officer on the phone, Ms. Lazar met with CPD Sergeant David Barrowman

(“Defendant”) for an administrative interview. (Interview Tr., 1). At that time, Defendant was an

IAB investigator, a position he held for approximately ten years. (Barrowman Aff., ¶ 2, ECF No.

61-1).

During the interview, Defendant learned that on November 4, 2014, Ms. Lazar drove to

Officer Zimmerman’s house. (Interview Tr., 2–3). After no one answered the door, she walked

over to Plaintiff’s car, which was parked outside. (Interview Tr., 3). Five to ten minutes later,

Plaintiff came out of Officer Zimmerman’s house and Plaintiff and Ms. Lazar got into his car to

talk. (Id; Lazar Decl., ¶ 8, ECF No. 67-1). Once in the car, Ms. Lazar located a cell phone on

Plaintiff’s person that was different from the cell phone he used to call and text Ms. Lazar.

(Interview Tr., 2–4; Lazar Depo. Vol I, 33–35, ECF No. 25-13). Ms. Lazar proceeded to take the

cell phone without Plaintiff’s permission. (Lazar Decl., ¶ 8). Although Plaintiff requested

multiple times to have the phone returned, Ms. Lazar refused. (Interview Tr., 5; Lazar Decl., ¶ 8).

While Ms. Lazar had become aware of the existence of this second cell phone in mid to late

August 2014, Plaintiff previously told Ms. Lazar the phone belonged to someone else. (Interview

Tr., 2).

Ms. Lazar brought Plaintiff’s second personal cell phone with her to CPD on November

5. (Id. at 5). Using a password to open it, Ms. Lazar showed Defendant and CPD Sergeant Dean

Worthington, who was also present for the interview, the contents of the phone, pointing out text

messages and photographs that she believed supported her allegations. (Barrowman Aff., ¶ 4,

ECF No. 61-1). Ms. Lazar indicated that she read through “[a] good bit of the messages from

[Plaintiff] to [Officer Zimmerman]” including five to ten text messages between the officers that

led her to believe that the two were having sex while on duty. (Interview Tr., 4). According to

Ms. Lazar, there was “more than that” but that “[t]here’s 5-10 that actually stood out . . .

definitely” spanning July 2014 to November 5, 2014. (Id.). Specifically, Ms. Lazar pointed to the

times the messages occurred and comments like, “do you want to meet at the normal spot?” after

one or both indicated they were “just clearing up on a [police] run” as evidence that Plaintiff and

Officer Zimmerman were engaging in sexual acts on duty. (Id. at 6).

At the conclusion of the interview, Defendant had an IT officer download “all the

contents of the cell phone . . . Mrs. Lazar had referred to and shown [him], all the text messages

and photos, not the entire contents of the cell phone[.]” (Barrowman Aff., ¶ 2, ECF No. 61-2).

Similarly, in his deposition, Defendant stated: “[Mrs. Lazar] provided me . . . information that I

thought was useful in our investigation. So that information, I had a copy made.” (Barrowman

Depo., 34, ECF No. 25-9). Based on the investigative file provided to Plaintiff, CPD downloaded

approximately 2,731 pages of text messages, photographs, web browser history, and call history

spanning June 2014 to November 2014 from Plaintiff’s cell phone. (Mobile Phone Examiner

Plus Report, ECF Nos. 68-1–5; Lazar Decl., ¶ 6). The phone was returned to Ms. Lazar before

she left the station. (Barrowman Depo., 32).

Although not captured in the audio recording or transcript of the interview, Defendant

testified during his deposition that Ms. Lazar expressed that it was her understanding that the

phone was communal property and that she was not required to return the phone to Plaintiff.

(Barrowman Depo., 28–29). Defendant also claimed that Ms. Lazar told him she paid for the cell

phone, but according to Plaintiff, “it was [his] personal cell phone” and he “paid for the cell

phone personally.” (Id. at 50; Lazar Decl., ¶ 7). Plaintiff stated during his deposition that he first

purchased the phone for “work purposes” to communicate with confidential sources and then

started using it to communicate covertly with Officer Zimmerman without his wife finding out.

(Lazar Depo. Vol I, 31–32). According to Plaintiff, his relationship with Officer Zimmerman

began sometime in February 2014. (Id. at 48).

III. ANALYSIS

Defendant filed a renewed Motion for Summary Judgment on the grounds that his search

of Plaintiff’s cell phone was permitted pursuant to three exceptions to the Fourth Amendment’s

protection against warrantless searches. Defendant also argues that even if the search did violate

the Fourth Amendment, he is nevertheless entitled to qualified immunity.

A. Legal Standard

Summary judgment is appropriate when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine

issue exists if the nonmoving party can present “significant probative evidence” to show that

“there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris

Cos., 8 F.3d 335, 339–40 (6th Cir. 1993). In other words, “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986) (concluding that summary judgment is appropriate when the evidence could not lead the

trier of fact to find for the non-moving party). When evaluating a motion for summary judgment,

the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H.

Kress & Co., 398 U.S. 144, 157 (1970).

Because Defendant has raised qualified immunity as a bar to the Fourth Amendment

claim brought against him in his personal capacity, Plaintiff bears the burden of proving that

Defendant is not entitled to summary judgment. Davenport v. Causey, 521 F.3d 544, 550 (6th

Cir. 2008). An official is entitled to the defense of qualified immunity so long as he has not

violated a “clearly established statutory or constitutional right[] of which a reasonable person

would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotations

omitted). This is a purposefully high bar for a plaintiff. Qualified immunity is intended to “give[]

government officials breathing room to make reasonable but mistaken judgments about open

legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). Accordingly, “it protects ‘all but

the plainly incompetent or those who knowingly violate the law.’” Id. (quoting Malley v. Briggs,

475 U.S. 335, 341 (1986)).

The qualified immunity analysis involves a two-step determination. At the summary

judgment stage, a defendant is entitled to qualified immunity if discovery fails to uncover

evidence sufficient to create a genuine issue as to whether the defendant violated a plaintiff’s

constitutional right or said right was not clearly established at the time of the alleged misconduct.

Pearson, 555 U.S. at 232; Behrens v. Pelletier, 516 U.S. 299, 306–07 (1996). It is in the

discretion of the Court to decide the order of these two steps, based on the particular

circumstances of the case. Pearson, 555 U.S. at 236.

B. Workplace Search Exception

Plaintiff argues that Defendant violated his rights under the Fourth Amendment by

searching his personal cell phone without a warrant in the course of CPD’s IAB investigation.

The Fourth Amendment reads, “[t]he 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 . . . .” U.S.

Const. Amend. IV. “It is well settled that the Fourth Amendment’s protection extends beyond the

sphere of criminal investigations[]” and applies “as well when the Government acts in its

capacity as an employer.” City of Ontario, Cal. v. Quon, 560 U.S. 746, 755–56 (2010) (citations

omitted).

In its March 29 Opinion, the Court examined the “workplace search” exception,

announced in O’Connor v. Ortega, 480 U.S. 709 (1987), and applied it to the facts of this case.

[T]he Supreme Court held that “special needs, beyond the normal need

for law enforcement make the . . . probable cause [and warrant] requirement

impracticable[] for . . . .investigations of work-related misconduct.” Id. at 725

(internal quotation marks and citation omitted). The plurality held that “public

employer intrusion on the constitutionally protected privacy interests of

government employees for . . . investigations of work-related misconduct,

should be judged by the standard of reasonableness under all the circumstances.”

Id. at 725–26. To satisfy this “reasonable under all the circumstances” test, “both

the inception and the scope of the intrusion must be reasonable.” Id. at 726.

* * *

In “delineat[ing] the boundaries of the workplace context” as part of the

threshold analysis, the plurality defined the workplace as including “those areas

and items that are related to work and are generally within the employer’s

control.” Id. at 715. It recognized, however, that “not everything that passes

through the confines of the business address can be considered part of the

workplace context . . . .” Id at 716. The plurality noted that an employee bringing

in closed luggage prior to a vacation or a briefcase or purse to work each day

may not have a reasonable expectation of privacy in the outward, public

appearance of the object, but “the employee’s expectation of privacy in the

contents . . . is not affected in the same way.” Id. The plurality recognized,

therefore, that “[t]he appropriate standard for a workplace search does not

necessarily apply to a piece of closed personal luggage, a handbag or a briefcase

that happens to be within the employer’s business address.” Id. In other words,

O’Connor developed a standard for acceptable warrantless searches of a public

employee’s workspace even when the public employee has a reasonable

expectation of privacy in that workspace, but it recognized that the “workplace

search” standard it announced would not necessarily apply to every search of a

public employee’s property that is conducted within the physical bounds of the

workplace.

Several decades after O’Connor was decided, the Sixth Circuit

differentiated between searches of public workspace/workplace items and

searches of personal items located in a workspace in James v. Hampton, 592 F.

App’x 449 (6th Cir. 2015). In James, a state court judge challenged the search

of her office and the personal safe she kept therein. The Sixth Circuit concluded

that the judge had a reasonable expectation of privacy in both her office and the

personal safe kept therein. Id. at 456.

When analyzing whether the search of the office or safe was in the

workplace context such that the searches were subject to the “workplace search”

standard established in O’Connor, the court noted that “[a]lthough an office is

clearly within the bounds of the workplace context delineated in O’Connor, no

case in our circuit has presented the issue of a warrantless search of a locked

personal item that a public employee had not been previously notified would be

subject to search.” Id.

The court concluded that the personal safe, although within the physical

bounds of the “employer’s business address,” id. at 457 (quoting O’Connor, 480

U.S. at 716), was more analogous to the closed luggage or briefcase alluded to

in O’Connor than workplace space because it “was not within the employer’s

control.” Id. Accordingly, the court concluded that “O’Connor counsels that the

warrantless search of the safe f[ell] outside the bounds of the special needs

exception to the warrant requirement altogether.” Id. Instead, “[b]ecause the safe

[was] not a workplace item, it [was] subject to the general rule under the Fourth

Amendment,” and because the complaint alleged that the safe was searched

without a warrant, probable cause, or exception, the judge had stated a Fourth

Amendment claim. Id.

James is controlling with respect to O’Connor’s application in this

circuit. Therefore, in the Sixth Circuit, a government search of Lazar’s personal

cellphone (notwithstanding that the phone is within the physical boundaries of

the government employer’s workplace) would not typically be a search within

the workplace context, and the standard established in O’Connor would not

apply to such a search. Accordingly, the search would violate the Fourth

Amendment unless another exception applied.

James was not decided until 2015, however. Thus, it was not until 2015

that the Sixth Circuit clarified that the O’Connor workplace search standard

applied only to searches of workplace items.

The search of Lazar’s phone occurred in November of 2014. Barrowman

Aff. 11, ECF No. 37-1; Barrowman Dep. 13–14, ECF No. 37-9. At that time,

there was no opinion from the Supreme Court, Sixth Circuit, or this court, nor

was there a consensus among other circuits, clearly establishing that the

O’Connor workplace search standard did not apply to personal items in the

workplace searched pursuant to an investigation into employee wrongdoing. At

the time of the search, therefore, Defendant was not on notice that his actions in

performing a workplace search on Lazar’s personal cellphone violated clearly

established law. Accordingly, if the search otherwise conformed to the standard

set forth in O’Connor, Defendant is entitled to qualified immunity.

(Opinion, 33–37, ECF No. 55).

Following this analysis, the Court began to apply the O’Connor “reasonable under all the

circumstances” test and concluded that the search was reasonable at its inception. (Id. at 37–39).

However, after reviewing the briefing and evidence submitted at that time, the Court could not

determine whether the scope of the intrusion was reasonable. After further briefing by the

parties, the Court will now analyze whether the search, under O’Connor, was reasonable in

scope and, if it was not, whether it was clearly established law at that time that the search was

unreasonable in scope.

1. Scope of Search

A “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].” O’Connor, 480 U.S. at 726 (internal quotations omitted). “In many cases,

public employees are entrusted with tremendous responsibility, and the consequences of their

misconduct or incompetence to both the agency and the public interest can be severe.” Id. at 724.

As such, “[r]easonableness depends upon the circumstances presented in a given situation and

upon balancing the public, governmental, and private interests at stake in that situation.” Shields

v. Burge, 874 F.2d 1201, 1204 (7th Cir. 1989) (citing O’Connor, 480 U.S. at 722–23). The

Supreme Court has “repeatedly refused to declare that only the least intrusive search practicable

can be reasonable under the Fourth Amendment . . . because judges engaged in post hoc

evaluations of government conduct can almost always imagine some alternative means by which

the objectives of the government might have been accomplished[.]” Quon, 560 U.S. at 763

(internal quotations and citations omitted).

According to Defendant, he directed an IT officer to download all that “Mrs. Lazar had

referred to and shown [him], all the text messages and photos, not the entire contents of the cell

phone[.]” (Barrowman Aff., ¶ 2, ECF No. 61-2). Plaintiff argues that “Defendant has to pretend

that his search was limited in that way because, were it broader, it would be a search whose

scope was unreasonable . . . .” (Memo. Opp., 9, ECF No. 67). Rather, according to Plaintiff, “the

search downloaded the entire contents of the phone.” (Id. at 2).

There is no dispute that the search at issue resulted in a download of 2,731 pages of text

messages, photographs, web browser history, and call history from Plaintiff’s cell phone.

(Examiner Report, ECF Nos. 68-1–5; Lazar Decl., ¶ 6). The only factual issue before the Court is

whether that download included all or only some of the contents of Plaintiff’s cell phone. And

while the evidence seems to suggest that the search did not include a download of the entire

contents of the phone, the Court must construe the evidence in the light most favorable to

Plaintiff as the non-moving party.

To be sure, there was a great deal of information that was downloaded from Plaintiff’s

cell phone. Defendant focuses on the fact that approximately 1,982 pages of what was

downloaded from Plaintiff’s phone were text message conversations or screenshots of text

message conversations between Plaintiff and Officer Zimmerman that included the same

potentially implicating content that Ms. Lazar pointed out to Defendant. Additionally, there were

approximately 58 pages of photographs of Officer Zimmerman or photographs sent between

Officer Zimmerman and Plaintiff that are arguably relevant to the misconduct inquiry.

Plaintiff emphasizes that the download also included approximately 13 pages of web

browser history, 10 pages of call history, 16 pages of text message conversations with two

numbers not identified as Officer Zimmerman, and 533 pages of personal, family, and

nondescript photographs. While it is unclear to the Court whether any of these materials were

sent between Officer Zimmerman and Plaintiff, this information seems to be unrelated to the

IAB investigation.

Neither party has submitted evidence that compares what was available to download on

the phone and what was actually downloaded. Rather, the Court has only Defendant’s statement

in his affidavit3 that he did not download all the contents of the phone, and Plaintiff’s argument

that Defendant did. However, it does appear that the entire contents of the phone were not

downloaded. For example, Plaintiff states that he initially purchased the phone to communicate

3 The Court is mindful that there may be a discrepancy between Defendant’s deposition

testimony and his second-filed affidavit about what was downloaded from the cell phone.

(Compare Barrowman Depo., 35, with Barrowman Aff., ¶ 2, ECF No. 61-2). If this issue were to

have affected the Court’s ultimate decision, that discrepancy would have been resolved in favor

of Plaintiff. It did not.

with confidential sources.4 However, no such conversations appeared in the download. Similarly,

according to Plaintiff, his relationship with Officer Zimmerman started in February 2014;

Plaintiff testified that since that time, the two talked “quite often” by text message. (Lazar Depo.

Vol I, 48). From what the Court can discern from its review of the download (ECF Nos. 68-1–5),

the information downloaded spans roughly June 11, 2014 through November 4, 2014, closely

matching the timeframe of the allegations raised by Ms. Lazar.

Nevertheless, whether the download was all of the contents of the cell phone or not does

not necessarily decide the analysis of whether the search was reasonable in scope. See Quon, 560

U.S. at 761–62 (inferring that even though the defendant only requested transcripts of the

plaintiff’s text messages from his work pager for two months, it would have been reasonable to

review transcripts for all months in which the plaintiff exceeded his character allowance to see if

the messages were personal in nature). Defendant was not required to limit his search to only

those text messages and photographs shown to him by Ms. Lazar. He was permitted to

investigate the allegations in a manner that was reasonable in scope in relation to the misconduct,

which in this case was serious. Ms. Lazar alleged that Plaintiff was having a sexual affair with

another police officer and at least some of it was occurring while one or both of the officers were

on duty. A police officer engaging in sexual activity on the job undermines public safety and the

community’s trust in its public servants. See Shields, 874 F.2d at 1204 (“The public and

government have strong interests in ferreting out misconduct by police officers.”). Ms. Lazar

reached that conclusion after looking through text messages and pictures on Defendant’s second

4 It is disingenuous for Plaintiff to describe his second cell phone as purely personal

throughout his Memorandum in Opposition when Plaintiff admittedly purchased it for and used

it to communicate with confidential sources in furtherance of his duties as a CPD officer. (Lazar

Depo. Vol I, 31; Egelhoff Depo., 16, ECF No. 25-8).

personal cell phone. Defendant then searched that same phone for evidence of misconduct during

the timeframe alleged. See Gossmeyer v. McDonald, 128 F.3d 481, 491 (7th Cir. 1997) (finding

the search reasonable in scope where it was limited to those places where evidence of the alleged

misconduct was likely be found and did not extend to places where evidence would not

reasonably have been found). Ancillary exposure to Plaintiff’s personal information does not

automatically elevate a search to one that was excessively intrusive. See Quon, 560 U.S. at 763

(explaining that because a search reveals details of an employee’s personal life does not make it

per se unreasonable).

Ultimately, however, it is unnecessary to determine definitively whether the scope of the

search was “excessively intrusive in light of . . . the nature of the [misconduct]” in violation of

Plaintiff’s constitutional rights because the applicable case law at the time of the alleged

violation did not clearly establish the right allegedly violated. O’Connor, 480 U.S. at 726

(internal quotations omitted). Plaintiff’s Fourth Amendment claim is resolved on the basis of the

second prong of the qualified immunity inquiry.

2. Clearly Established Law

Plaintiff has failed to establish that the law was sufficiently clear at the requisite time that

the scope of the search was unreasonable. Defendant is entitled to qualified immunity.

In order for a right to be “clearly established” the “contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). This requires a high degree of

specificity. Id. That is, “in the light of pre-existing law the unlawfulness must be apparent.” Id.

For purposes of this Court, “[a] right is clearly established if there is binding precedent from the

Supreme Court, the Sixth Circuit, or the district court itself, or case law from other circuits which

is directly on point.” Blake v. Wright, 179 F.3d 1003, 1007 (6th Cir. 1999) (internal quotations

and citations omitted).

As previously discussed, in the 1987 O’Connor v. Ortega decision, the Supreme Court

decided that investigations of work-related misconduct should be judged by the standard of

reasonableness under all the circumstances. 480 U.S. at 725–26. O’Connor concerned physical

files and said nothing about electronic devices. Over two decades later, in 2010, the Eleventh

Circuit posited that “[t]he Supreme Court’s more-recent precedent shows a marked lack of

clarity in what privacy expectations as to content of electronic communications are reasonable.”

Rehberg v. Paulk, 611 F.3d 828, 844 (11th Cir. 2010) (discussing Quon, 560 U.S. 746). Instead,

the Supreme Court cautioned that “[t]he judiciary risks error by elaborating too fully on the

Fourth Amendment implications of emerging technology before its role in society has become

clear.” Quon, 560 U.S. at 759.

By November 2014, the time of the search in this case, there was still no precedent that

set limitations on a reasonable cell phone search within the O’Connor context. Notwithstanding

the Supreme Court’s Riley v. California, 573 U.S. 373 (2014) decision, which, as the Court

previously explained applies to criminal searches incident to arrest (Opinion, 32–33), the case

law has not progressed. To illustrate, in Sollenberger v. Sollenberger, 173 F. Supp. 3d 608 (S.D.

Ohio 2016), the plaintiff’s wife extracted digital information from one of plaintiff’s old cell

phones, which included text messages, pictures, and other deleted information, and sent it to the

NAACP. 614–15. Upon learning of the derogatory and racist nature of the extracted information

from the NAACP, the plaintiff’s employer, a county sheriff’s office, initiated an administrative

investigation into the plaintiff. Id. at 615. As part of that investigation, the plaintiff’s wife

provided the same phone to the sheriff’s office, which extracted digital information from the

phone. Id. at 616. On March 25, 2016, this Court found in that case that, even if the plaintiff had

alleged facts to support that the scope of the search was unreasonable, there was no clearly

established law governing the parameters of the warrant exception for investigations of employee

misconduct in electronic devices. Id. at 624–25. To say that such guidance was nevertheless

available in this case in 2014 defies logic. Plaintiff has not identified any case law to the

contrary.

Because Plaintiff has failed to establish that the scope of the search violated a clear

constitutional right, the Court GRANTS Defendant’s Motion for Summary Judgment. In light of

this conclusion, the Court does not address the parties’ arguments regarding the consent or

private search exceptions to the Fourth Amendment’s warrant requirement.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant’s Motion for Summary

Judgment. (ECF No. 61). The Clerk is DIRECTED to ENTER JUDGMENT accordingly and

terminate 2:16-cv-195 ONLY from the docket records of the United States District Court for the

Southern District of Ohio, Eastern Division.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE