Amicus Curiae Brief — O'CONNOR v. Ortega

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Text

No. 85-530

JOSEPH F. SPANIOL, JR.

—— ————————————

In the Supreme Court of the Gnited States

OCTOBER TERM, 1985

DENNIS M. O’CONNOR, ET AL., PETITIONERS

Vv.

MAGNO J. ORTEGA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

ALAN I. HOROWITZ

Assistant to the Solicitor General

BARBARA L. HERWIG

JOHN P. SCHNITKER

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

ee ee er a

ok en Wt as a ho

QUESTION PRESENTED

Whether state officials violated the Fourth Amendment

by entering and searching the office of a state employee in

connection with an administrative investigation of that

employee’s job performance and work-related conduct.

(1)

TABLE OF CONTENTS

Page

Interest of the United States .............. ccc cece eee eee 1

ee oe ol ds dn g6 0060s e ai een ne eeste’ |

REE GR ee Ree re a 5

Argument:

The entry and search of respondent’s office by his em-

ployer for business-related reasons did not violate the

ERNE GE ee ee 7

A. A government employee has no reasonable expecta-

tion that a supervisor or co-employee will not enter

his office in the course of performing employment-

I tree ie CU eens el 4 waa 6 dogs 460 6:64 8

B. A supervisor’s or co-employee’s search of an

employee’s office is reasonable if it is undertaken for

a legitimate employment-related purpose .......... 15

ee ee ee wees cae Rea key V4 6866 bie « 23

TABLE OF AUTHORITIES

Cases:

Arkansas v. Sanders, 442 U.S. 753... 0.20... eee eee. 21

Arnett v. Kennedy, 416 U.S. 134 ................005.. 12

Cafeteria & Restaurant Workers Union, Local 473 v.

ee nnn ge bcceeen st eeases 12

Chenkin v. Bellevue Hospital Center, 479 F. Supp. 207 .. 14

Comme W. Bre, GEG UB. OTD www ccc ccccccess 6, 12, 13, 17

ce EE eer 12

Davis v. Scherer, No. 83-490 (June 28, 1984) ........... 7

Delaware v. Prouse, 440 U.S. 648 ..........0.0.00.24... 18

Gillard v. Schmidt, $79 F.2d 825 ............... 00005. 20

Harlow v. Fitzgerald, 457 U.S. 800 ...........0.0..0.... 7

Hudson v. Palmer, No. 82-1630 (July 3, 1984) .......... s

Illinois v. Lafayette, 462 U.S. 640 ..............0...... 18, 21

Katz v. United States, 389 U.S. 347 ...............25.. 4,8

CE 12

Mancusi v. DeForte, 392 U.S. 364 .............. 5, 8, 9, 15 19

Marshall v. Barlow’s, Inc., 436 U.S. 307 «2... 00.00... 16

New Jersey v. T.L.O., No. 83-712 (Jan. 15, 1985) ....... 6, 8,

12, 15, 17, 21

Oliver v. United States, 466 U.S.170 .......0.0.0.0.0.0.....

(Itt)

13, 14

Cases — Continued:

Smith v. Maryland, 442 U.S. 735 ....... 0.0 cece eee

South Dakota v. Opperman, 428 U.S. 364 .............

cnc rasnddvccdseseecaeeees

United States v. Blok, 188 F.2d 1019 ..................

United States v. Bunkers, 521 F.2d 1217, cert. denied,

Se EE go ccc ua eee ceean neadewadereeicess

United States v. Collins, 349 F.2d 863, cert. denied, 383

I Se oe eee ae ee a ou aed

United States v. Gargiso, 456 F.2d 584 ................

United States v. Knotts, 460 U.S. 276 .................

United States v. Martinez-Fuerte, 428 U.S. 543 .........

United States v. Matlock, 415 U.S. 164 ................

United States v. Nasser, 476 F.2d 1111 ................

United States v. Place, 462 U.S. 696 ..................

United States v. Reeves, 730 F.2d 1189 ................

United States v. Sanders, 568 F.2d 1175 ...............

United States v. Speights, 557 F.2d 362 ................

United States v. Villamonte-Marquez, 462 U.S. 579 .....

Constitution, statutes and rule:

U.S. Const.:

RII ee i os hn aries nk ee ee

i a ee a eek eed

PS oe Castes teak enseswauaee

California Tort Claims Act, Cal. Gov’t Code (West

1980):

1,7

In the Supreme Court of the Anited States

OCTOBER TERM, 1985

No. 85-530

DENNIS M. O’CONNOR, ET AL., PETITIONERS

MAGNO J. ORTEGA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case involves a state governmental agency’s

authority to enter and search an office assigned to one of

its employees in order to inventory government property

in connection with an administrative investigation into the

employee’s work-related performance and conduct. The

court of appeals has held that a warrantless entry into such

an office violates the Fourth Amendment and provides a

basis for an award of damages under 42 U.S.C. 1983. Be-

cause the Court’s decision here regarding the constitu-

tionally permissible scope of a work-related intrusion into

a government employee’s workplace will also apply to the

federal government in its capacity as employer, the United

States has a strong interest in this case.

STATEMENT

1. Respondent was Chief of Professional Education at

Napa State Mental Hospital (Napa), a public institution

owned and operated by the State of California, and served

as a psychiatrist at that institution for 17 years, from

(1)

1964-1981. In July 1981, respondent became the subject of

an administrative investigation as a result of complaints of

sexual harassment filed by two female Napa employees

and certain questions raised about the management prac-

tices of his department, including the questionable acquisi-

tion of a computer (see Pet. App. A10-A13).' On or about

July 31, 1981, respondent was informed by the Executive

Director of Napa, petitioner O’Connor, that he was under

administrative investigation; respondent was directed in

writing to stay off the Napa premises and not to return

without written app: oval. Respondent thereupon took two

weeks vacation leave; upon the expiration of that leave on

August 14, he was placed on administrative leave with

pay pending completion of the investigation. Pet. App.

Al-A2.

On August 17, 1981, petitioner O’Connor was informed

by a hospital staff member that respondent had entered

the Napa premises the previous weekend without permis-

sion and had taken home the computer, which was kept in

| Specifically, respondent was charged with (i) making unwelcome

sexual advances to a young female student assistant working under

respondent’s supervision and to a female social worker at Napa (Pet.

App. A11); (ii) using his position to coerce money for the purchase of

a computer from residents under his supervision by promising them

that they would be given overtime work to cover their contributions

when such overtime work in fact was not authorized (id. at Al1-A12);

(iii) placing a resident under his supervision on unpaid leave for a

month for refusing to contribute to purchase of the computer (id. at

A12); (iv) causing the Executive Director of Napa, petitioner O’Con-

nor, to sign two subpurchase orders for additional computer parts by

misrepresenting to him that the computer had been donated to the

hospital (id. at A13); and (v) violating state rules and policies by ar-

ranging to have an outside consultant demonstrate the computer to

the hospital residents without obtaining prior approval and by agree-

ing to pay amounts in excess of the authorized rates for these services

(ibid.) These allegations were all determined adversely to respondent

at the administrative hearing concerning his discharge (id. at

A10-A14).

> oe eee eet eee ee en

a room adjacent to his office. Petitioner O’Connor be-

lieved that the computer was state property, although in

fact it was not. Pet. App. A2, Al3; see note 1, supra. Sub-

sequently, in furtherance of the administrative investiga-

tion and in light of the incident with the computer, peti-

tioner O’Connor directed four Napa employees —includ-

ing petitioner Friday —to enter respondent’s office on the

Napa premises “ ‘in order to separate the business files

from any personal files in order to ascertain what was in

his office’ ” (Resp. C.A. Br. 4 (quoting J.A. 50).? These

employees made some effort to sort the items found in the

office, but ultimately all the material, other than three

items retained in connection with the investigation (see

Pet. C.A. Br. 6), was placed in boxes and taken to a

locked storage area where it was made available for re-

spondent to collect. Pet. App. A2.

As a result of the investigation of the allegations of mis-

conduct identified above, respondent was eventually ter-

minated from his position at Napa as of September 22,

1981. The termination was upheld on appeal to the Cali-

fornia State Personnel Board. Pet. App. A9-A15.

2. Respondent brought this action against petitioners —

four Napa officials—in the United States District Court

for the Northern District of California under 42 U.S.C.

1983 alleging, inter alia, that their actions violated his

Fourth Amendment rights.’ Respondent sought $250,000

? Respondent’s practice was to lock his office when he went home

for the day, and he stated that he believed he had the only key to the

office. This was not the case, of course, and the hospital personnel

entered the office using another key. Pet. App. A2.

> Respondent also made pendent state law claims for invasion of

privacy and breach of covenant of good faith and fair dealing. Pet.

App. A3. The district court concluded that respondent’s state law

causes of action were barred by his failure to comply with the Cali-

fornia Tort Claims Act, Cal. Gov’t Code §§ 900, 905.2, 911.2, 911.4

(West 1980), and the court of appeals affirmed on that issue. Pet.

App. A3, A7, A8.

in compensatory damages and $500,000 in punitive

damages (J.A. 6). On cross-motions for summary judg-

ment, the district court granted summary judgment for

petitioners and dismissed the action without opinion. Pet.

App. A8. In a brief statement from the bench, the court

concluded that the entry into the office was justified by the

“need to secure the office” and therefore that the search

was “reasonable” (J.A. 23).

3. The court of appeals reversed (Pet. App. Al-A7). In

the court of appeals’ view, the Fourth Amendment issue

turned on “ ‘whether the area was such that there was a

reasonable expectation of freedom from government in-

trusion.’” Pet. App. A3 (quoting Katz v. United States,

389 U.S. 347, 352 (1967)). The court noted that respond-

ent worked in an office containing personal and confiden-

tial information with a lock on the door and that it was his

stated belief that the office had never been entered without

his permission in 17 years. The court also noted that office

inventories “were apparently reserved for employees who

were departing or were terminated,” whereas respondent

merely had been placed on administrative leave and was

not terminated until the following month. The court con-

cluded that these facts demonstrated that respondent “had

a subjective expectation of privacy in his office that socie-

ty is prepared to recognize and protect as reasonable.” Pet.

App. A4.

The court of appeals distinguished other decisions find-

ing no reasonable expectation of privacy in the workplace

from work-related searches on the ground that “Napa had

never instituted surveillance or searches and had no

general inspection policy that might have defeated [re-

spondent’s] expectation of privacy in his office.” Pet.

App. A6. The court also considered it irrelevant that “[t}he

search of [respondent’s] desk was apparently motivated by

concern with the whereabouts of a computer and by the

impending investigation of [respondent],” rather than by a

reason unrelated to respondent’s work. /d. at AS n.2. In

short, the court summarily concluded that “the search of

[respondent’s] office was not a reasonable search under

the fourth amendment” (id. at A6) and remanded the case

for entry of partial summary judgment in favor of respon-

dent and for a hearing to determine the amount of

damages (id. at A7).

SUMMARY OF ARGUMENT

A. The court of appeals’ holding that a government

employee has a reasonable expectation that his supervisor

will not enter his office without permission does not ac-

cord with this Court’s Fourth Amendment jurisprudence

or the realities of the workplace. An employee is given of-

fice space for only one reason: to facilitate his work for his

employer. Thus, while an employee may choose to keep

personal items in his office, it is ordinarily understood that

the office will be used primarily for work-related purposes

and will house primarily items that relate to the job. The

employer certainly does not relinquish access to his own

property simply by assigning it as office space to an

employee, and he will still have many legitimate reasons

for requiring access. For example, employees working on

cooperative projects often need to enter the offices of ab-

sent fellow employees to look for government property,

such as a case file; supervisors may need to enter an office

in the course of their duties to evaluate employee perform-

ance.

Thus, this Court has noted that an employee’s expecta-

tion that his office will not be entered by outsiders does

not extend to entries by his employer. Mancusi v.

DeForte, 392 U.S. 364, 369 (1968). The court of appeals

seriously erred in ignoring this distinction and instead

treating respondent’s office as a private enclave. The fact

that the office was part of a state hospital and was furnish-

ed for the purpose of conducting state business is of

crucial importance. Under these circumstances, even if

respondent had a subjective expectation that his office

would not be entered by anyone without his consent,

society would not recog:.ze such an exnectation as

reasonable with respect to entries by representatives of his

employer.

B. Assuming arguendo that a government employee has

a legitimate expectation of privacy in his office that suf-

fices to make the Fourth Amendment applicable to an in-

trusion by his employer, the court of appeais nonetheless

erred in holding that the search of respondents’ office was

unconstitutional. The Fourth Amendment proscribes only

unreasonable searches and, contrary to the court of ap-

peals’ apparent assumption, neither a warrant nor prob-

able cause is a prerequisite to a finding of reasonableness.

Given the employment situation presented here, these re-

quirements for criminal investigative searches make little

sense; the reasons for a supervisor’s or co-employee’s entry

have nothing to do with probable cause and the magistrate

would have no useful role to play. See generally New

Jersey v. T.L.O., No. 83-712 (Jan. 15, 1985).

We submit that in this context it is reasonable under the

Fourth Amendment for a supervisor to enter and search

an employee’s office if the entry is for a legitimate business

purpose. While an employee’s personal possessions, such

as a briefcase or purse, are not subject to search simply

because they may be brought to work, an employer retains

the authority to search its own office space when necessary

for the conduct of its business. In light of the extremely

limited privacy interest at stake —an employee’s interest in

using his government furnished office to store personal

items —a more exacting constitutional standard would un-

duly infringe the government’s legitimate irerest in effec-

tive management of the workplace. See Connick v. Myers,

461 U.S. 138 (1983).

This standard of reasonableness was surely satisfied

here. Petitioners conducted a search of respondent’s of-

fice, at a time when he was absent on indefinite admini-

;

strative leave, in order to locate state property in connec-

tion with an administrative investigation into his mal-

feasance on the job.

ARGUMENT

THE ENTRY AND SEARCH OF RESPONDENT'S OFFICE

BY HIS EMPLOYER FOR BUSINESS-RELATED REASONS

DID NOT VIOLATE THE FOURTH AMENDMENT

The court of appeals has created a regime of Fourth

Amendment regulation of the workplace that is complete-

ly unsuppo: cable. First, in considering whether respondent

had an expectation of privacy in his office, the court ig-

nored the undeniable fact that a government institution,

like any other employer, provides an office for its

employees in order to facilitate their work for the

employer, not to give employees a private preserve in

which to transact nongovernment business. Second, the

court completely misapplied .‘ourth Amendmeni law in

reasouing that respondent’s expectation of privacy in his

office necessarily meani that petitioners’ warrantless entry

amounted to a constitutional violation. A search violates

the Fourth Amendment only if it is “unreasonable,” yet

the court made no attempt to assess the reasonableness of

petitioners’ conduct. The decision below, if taken at face

value, suggests that Fourth Amendment vioiations occur

whenever government employees enter 2 co-worker’s of-

fice to look for a file or to borrow a pencil. This extreme

view is not justified by this Court’s Fourth Amendment

jurisprudence and is not necessary to safeguard the

privacy rights of government employees.‘

* Whether or not the search in this case violated the Fourth Amend-

ment, it cannot seriously be contended that petitioners’ actions

violated “clearly established” constitutional standards. Therefore,

qualified immunity should protect petitioners against damages liabili-

ty under Section 1983. See Davis v. Scherer, No. 83-490 (June 28,

1984), slip op. 7; Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

The qualified immunity issue apparently was not raised below and cer-

A. A Government Employee Has No Reasonable Expectation

That A Supervisor Or Co-Employee Will Not Enter His Of-

fice In The Course Of Performing Employment-Related

Duties

Since Katz v. United States. 389 U.S. 347 (1967), the

Court has consistently taken the view that the Fourth

Amendment applies only where an individual has a “justi-

fiabl{e]” or “legitimate” “expectation of privacy” (id. at

353; Smith v. Maryland, 442 U.S. 735, 740 (1979)). The

inquiry whether an area is protected by the Fourth

Amendment consists of two parts—“whether the in-

dividual by his conduct, has ‘exhibited an actual (subjec-

tive) expectation of privacy’ * * * [and] whether the in-

dividual’s subjective expectation is ‘one that society is

prepared to recognize as “reasonable” ’—whether * * *

the individual’s expectation, viewed objectively, is

‘justifiable’ under the circumstances.” Smith, 442 U.S. at

740 (quoting Katz, 389 U.S. at 353, 361); see also New

Jersey v. T.L.O., No. 83-712 (Jan. 15, 1985); Hudson v.

Palmer, No. 82-1630 (July 3, 1984); United States v.

Knotts, 460 U.S. 276, 280-281 (1983). While the court of

appeals paid lip service to this two-part inquiry, the court’s

analysis does not seriously attempt to address the objective

component of the inquiry. In our view, the nature of the

employment relationship and the purpose for which

employees are allocated office space suggest chat society

would not deem it reasonable for an employee to expect

his office to be completely free from unconsented entries

by his employer or fellow workers. The decision below

provides no basis for doubting the correctness of this view.

The court of appeals’ finding that respondent had some

expectation of privacy in his office is unremarkable on its

face. In Mancusi v. DeForte, 392 U.S. 364 (1968), this

tainly was not addressed by the lower courts. In light of this Court’s

limited grant of certiorari, we will treat this case as involving solely an

issue of substantive Fourth: Amendment law.

Court recognized that an employee generaily has a suffi-

cient expectation of privacy in the office provided him by

his private employer to give him “standing” to challenge a

police search of that office. Here, respondent reasonably

could have expected that personal possessions in his office

would not be exposed to the view of outsiders having no

connection with the hospital. That does not mean, how-

ever, that he legitimately could have expected that his of-

fice would remain free from entry by other workers at the

hospital.

It surely cannot be doubted that the reason that an

employer provides one of its employees with an office,

even an office that is “private” in the sense that the

employee does not share the workspace with another

employee, is io facilitate the employee’s performance of

his work fc: that employer. While ith. employer recognizes

that the employee may elect to keep some personal items in

his office, it is plainly the understanding of all concerned

that the office will be used primarily for work-related pur-

poses. By the same token, the employer cannot be taken to

have surrendered access to its own office space simply by

assigning a particular office to an employee. Thus, in

Mancusi, the Court recognized that the employee’s expec-

tation of privacy in his office was qualified by the employ-

ment relationship and bv the fact that the office remained

the property of the employer. The Court described Man-

cusi’s expectation as one that the records in his office would

not be taken or touched without “his permission or that of

his union superiors” (392 U.S. at 369 (emphasis added)).

The court of appeals’ decision fails to take cognizance

of these elementary principles. Relying largely on respond-

ent’s assertions and subjective impressions, the court

assumed that the hospital retained no cognizable interest

in the office space that it assigned to respondent. The

court apparently credited respondent’s assertion that he

believed tha: he possessed the only key to his office and

that no one had entered it without his permission in 17

years. The court also stated that no state records and files

were located in respondent’s office, apparently accepting

respondent’s declaration that the office contained no state

property (other than furniture) but instead was used to

store his personal possessions. See Pet. App. A2, A4 n.1;

Ortega Declaration ¢ 5. The court viewed the office as

respondent’s private enclave—one that was untainted

either by entry by any co-workers or by the presence of

any materials relating to hospital business. Under the

court of appeals’ approach, therefore, the fact that the of-

fice was located in the state hospital is an irrelevant hap-

penstance, and the case should be treated the same as if

petitioners had searched an office owned or leased by re-

spondent many miles from state property.

We find respondent’s assertions concerning che private

nature of his hospital office to be inherently incredible; the

taxpayers of California ought to be entitled to assume that

they are not providing office space and furniture solely for

a state employee’s private use.’ Thus, we question whether

respondent can be said even to have had a “subjective” ex-

pectation that his supervisors or fellow employees would

not enter his office without his express permission. It is

* Respondent’s assertions are belied to some extent by the limited

record made in this case. Obviously, the hospital did have another key

to respondent’s office, which is what petitioners used to enter the of-

fice to conduct the inventory. It would be quite irresponsible for a

State institution to give an employee its only key to state property,

thereby requiring the state to break the lock or somehow force entry in

the event that the employee lost the key or was unavailable. In addi-

tion, respondent’s secretary declared that respondent left his door ajar

during the work day and that he sometimes took the files relating to

hospital residents into his office. Ciraulo Declaration 2.

At any rate, in the absence of any fact finding by the district court,

the court of appeals plainly was not entitled to rely on these assertions

to order the entry of judgment for respondent. At most, it should have

vacated the entry of summary judgment for petitioners and ordered

the district court to hold a trial to resolve disputed questions of fact.

not necessary for the Court to consider these factual mat-

ters, however, because, even if respondent did take

unusual steps to give himself a greater subjective expecta-

tion of privacy in his office than most employees have, his

expectation was not one that society ought to recognize as

reasonable. The fact that the office searched here be-

longed to the State, was located on state property, and was

provided to respondent for use in performing his duties as

a state employee is not an irrelevant happenstance; rather,

it is the critical aspect of this case. The realities of the

workplace simply do not justify giving an employee the

same constitutional protection in his government-fur-

nished office — with respect to privacy from intrusions by

his supervisor or co-workers —that he has in his home.

It cannot seriously be disputed that in the ordinary

course of business many employment situations occa-

sionally involve routine unconsented entries into an

employee’s office for work-related purposes. Cooperative

projects often require one employee to enter another’s of-

fice to borrow a book or to look at a case file. Moreover,

apart from these everyday sorts of entries, there

periodically will be situations in which a supervisor needs

to enter an employee’s office for a special reason. For ex-

ample, when an employee is unexpectedly absent for a

length of time, it may be necessary for a supervisor to

retrieve documents or to inventory the contents of the

employee’s work area in order to maintain the efficiency

of the office. (Here, for example, the entry occurred while

respondent was On indefinite administrative leave.) Final-

ly, a supervisor may need to enter an office as part of his

responsibility to oversee employee performance, par-

ticularly when he has reason to suspect substandard per-

formance or misconduct. Thus, because of the ordinary

operation of the workplace and because of the employer’s

interest in effectively managing its business, an employee

must be aware that from time to time the interior of his

office, including items left in the office, will be exposed to

the view of his business associates. Accordingly, an entry

by a supervisor into an employee’s office is not an intru-

sion into an area in which there is a legitimate expectation

of privacy, and hence does not implicate the protections of

the Fourth Amendment.

The fact that the employer here is the State does not

alter this conclusion, because the important interests in ef-

fective management noted above apply equally whether

the employer is a private person or a government. This

Court has long recognized the government’s legitimate in-

terest in “promot{ing] efficiency and integrity in the

discharge of official duties, and * * * maintain[ing]

proper discipline in the public service.” Ex parte Curtis,

106 U.S. 371, 373 (1882). The Court has also noted, in the

First Amendment context, that “government officials

should enjoy wide latitude in managing their offices.”

Connick v. Myers, 461 U.S. 138, 146 (1983). See also

Kelley v. Johnson, 425 U.S. 238, 247 (1976); Arnett v.

Kennedy, 416 U.S. 134, 168 (1974) (opinion of Powell, J.);

Cafeteria & Restaurant Workers Union, Local 473 v.

McElroy, 367 U.S. 886, 896-898 (1961). Therefore, even

assuming that government employees are entitled to special

Fourth Amendment protection vis-a-vis their employers

that their counterparts in the private sector lack (see New

Jersey v. T.L.O., No. 83-712 (Jan. 15, 1985), slip op. 8-10),

their status as government employees does not confer upon

them a unique expectation of privacy that insulates them

from intrusions that would otherwise be anticipated as a

normal part of the employment relationship. In other

words, the Fourth Amendment protection afforded govern-

ment employees is triggered when a legitimate expectation

of privacy is unreasonably infringed, but the Constitution

does not operate to broaden that expectation of privacy.

And the privacy considerations must be assessed in the

particular context of the employment relationship,

because the government enjoys a freedom to act with

respect to its own employees On internal government mat-

ters that it would not have with respect to the public in

general. See Connick, 461 U.S. at 147.

Against this background, the court of appeals failed to

explain why respondent had an objectively reasonable ex-

pectation to be free from unconsented entries by represen-

tatives of his employer. The court of appeals seems to have

relied entirely on the fact that Napa had no well estab-

lished policy that would have put respondent on notice

that his office was subject to entry by a supervisor in the

precise fact situation presented here. See Pet. App. A6.°®

But this factor cannot be dispositive of the question of a

legitimate expectation of privacy. On the one hand, if

there is a sufficient weighty privacy interest at stake, the

government may not eliminate Fourth Amendment pro-

tection simply by announcing its intention to do so; for ex-

ample, public notice that houses will be subject to war-

rantless searches would not eliminate the constitutional

objection to such searches. On the other hand, if there is

no legitimate privacy interest at stake, One is not created

simply by the absence of an announced government policy

of searches or even by an individual’s unilateral assertion

of a privacy interest. See Oliver v. United States, 466 U.S.

170 (1984).’ Moreover, the rule proposed by the court of

appeals is hardly calculated to contribute to the protection

* The court of appeals’ premise may well be incorrect. The court

acknowledged petitioner’s contention that it was “established hospital

policy * * * to inventory property in the offices of departing or ter-

minated employees to determine which property was state property

and which was personal” (Pet. App. A3). The situation involving

respondent, who was placed on leave because of a pending investiga-

tion that, as expected, led to his termination the following month, fell

quite close to, if not within, this policy.

’ We do not suggest that the existence of an established policy is

completely irrelevant. On the contrary, if there were a published

regulation here notifying state employees that their offices were sub-

of privacy in the workplace. It would encourage employers

to search their employees’ offices more frequently in order

to establish a practice that would then justify a search in

those situations in which a search was truly necessary.

There is no reason why the Fourth Amendment ought to

allow such indiscriminate searches and yet prohibit

searches that are performed only in more focused and

selective instances.

In sum, there is no basis for concluding that respondent

had a legitimate expectation that his office would not be

entered by his supervisor or fellow employees. The office

remained government property, and respondent had no

right to exclude other employees engaged in government

business.* While a person may have an expectation of

privacy from strangers to a particular area, he can hardly

expect to maintain a similar privacy from persons — such

as his employer’s authorized representative — who have an

equal or greater right of access to the area. See generally

United States v. Matlock, 415 U.S. 164 (1974); see also

ject to entry and search by their supervisors, respondent’s claim of a

subjective expectation of privacy would be frivolous. Indeed, such an

established employment policy could justify a considerably more

significant privacy intrusion than what occurred here; as long as the

policy was reasonable, the employee could hardly complain about

what he consented to as a condition of his employment. See Chenkin

v. Bellevue Hospital Center, 479 F.Supp. 207 (S.D.N.Y. 1979) (state

hospital anti-theft policy requiring employees to make parcels

available for inspection upon exiting the hospital). But the absence of

such an established policy does not itself confer an expectation of

privacy where one does not otherwise exist.

* Respondent, like most employees, no doubt had a right to exclude

outsiders from his office, but that right is one that is exercised

derivatively on behalf of the employer; it would not justify excluding

representatives of the employer. Even a right to exclude, of course,

does not necessarily suffice to confer an expectation of privacy for

Fourth Amendment purposes. See Oliver v. United States, supra.

Mancusi, 392 U.S. at 369-370; United States v. Reeves,

730 F.2d 1189, 1193-1194 (8th Cir. 1984); United States v.

Gargiso, 456 F.2d 584, 586-587 (2d Cir. 1972). According-

ly, the court of appeals erred in holding that petitioners’

entry into respondent’s office violated a reasonable expec-

tation of privacy.

B. A Supervisor Or Co-employee’s Search Of An Employee's Of-

fice Is Reasonable If It Is Undertaken For A_ Legitimate

Employment-Related Purpose

Even if an employee is held to have a reasonable expec-

tation that his superiors or fellow workers will not general-

ly enter his office without permission, the court of appeals’

decision is still unsupportable.? The court of appeals con-

cluded its analysis with its finding that respondent had a

legitimate expectation of privacy, but such a finding is

only the beginning of the inquiry. The Fourth Amendment

prohibits only unreasonable searches and seizures, and

“what is reasonable depends on the context within which a

search takes place.” New Jersey v. T.L.O., slip op. 10.

* The court of appeals did not distinguish between the entry into the

office here and the further search that took place, but it appears un-

disputed that petitioners looked through respondent’s desk and filing

cabinet in an attempt to identify materials belonging to the State.

While we maintain that it is clearly unreasonable for an employee to

expect his office to be free from entries by supervisors and fellow

employees in the normal course of business, we acknowledge that

there are areas within an office, such as the interior of a desk, that pre-

sent a closer question with respect to the existence of a legitimate ex-

pectation of privacy. Cf. Mancusi v. DeForte, 392 U.S. at 377 (White,

J., dissenting). It is unnecessary to decide in this case whether re-

spondent may have had a reasonable expectation of privacy in parts of

his office, because, as w explain below (see pages 16-22, infra), peti-

tioners’ intrusion was reasonable within the meaning of the Fourth

Amendment.

The court of appeals did not explain why the entry here

was unreasonable, but it cannot seriously have meant to

hold that petitioners could not constitutionally have

entered respondent’s office under any circumstances.

Rather, it seems to have assumed that any intrusion into a

legitimate expectation of privacy (or at least an intrusion

that is in part investigatory (see Pet. App. A6)) is

automatically unreasonable in the absence of a warrant

based on probable cause.'® There is no justification,

however, for importing these requirements, which are

generally applicable when an individual is singled out on

the basis of suspicion of criminal activity, into the employ-

ment context. The concepts of a search warrant and

criminal probable cause have no application to the sort of

“searches” involved here, which were simply part of the or-

dinary employee/employer relationship and were not

designed to ferret out evidence of criminal activity. “The

standard of probable cause is peculiarly related to criminal

investigations, not routine, non-criminal procedures.”

South Dakota v. Opperman, 428 U.S. 364, 370 n.5 (1976).

By the same token, it makes no sense to require govern-

ment supervisors to obtain an “administrative warrant” to

enter their subordinates’ offices. These entries are not

based on administrative probable cause either; they are

not justified as part of a neutral administrative plan in fur-

therance of regulatory requirements (see Marshall v.

Barlow’s, Inc., 436 U.S. 307, 323 (1978)). Interposition of

the judgment of a neutral magistrate would serve no pur-

pose. It is simply not “reasonable,” either in common

sense or Fourth Amendment terms, to expect a fellow

employee to apply to a magistrate for a warrant every time

he needs to enter an employee’s office to look for a

why the search was unreasonable, but, on those few occasions that the

brief did advert to the issue (at 7, 17, 18), it complained about the

absence of a search warrant.

eS CNS ee

case file or to inventory government property or to obtain

information to assist in an investigation of the employee’s

performance. See generally New Jersey v. T.L.O., slip op.

13-14.'' The contrary rule adopted by the court of appeals

runs afoul—in extreme fashion—of “the common-sense

realization that government offices could not function if

every employment decision became a constitutional mat-

ter” (Connick v. Myers, 461 U.S. at 143 (footnote

omitted)).

The view that petitioners’ actions here could have in-

vaded a legitimate expectation of privacy, thereby invok-

ing the protections of the Fourth Amendment, yet still be

constitutional in the absence of a warrant and probable

cause is fully consistent with established precedent of this

Court. It has long been recognized that even in the

criminal investigation context, “the Fourth Amendment

imposes no irreducible requirement of [individualized]

suspicion” or a warrant. United States v. Martinez-Fuerte,

428 U.S. 543, 561 (1976); see also Terry v. Ohio, 392 U.S.

1 (1968). And just last Term, the Court emphasized that

these requirements did not apply in the special setting of a

school, even where the case involved the discovery of il-

legal drugs in a student’s purse. New Jersey v. T.L..O., slip

op. 10-16. The relationship between employer and em-

ployee, like that between school authorities and students,

is quite distinct from that between law enforcement of-

ficers and criminal suspects. !?

'' Indeed, the implicit premise of the court of appeals’ decision is

quite dubious; it is not apparent that a magistrate would even have the

authority to issue such a warrant, which would not entail an assess-

ment Of probable cause or any other standard that could reasonably

be said to be within the magistrate’s ken. See Fed. R. Crim. P. 41.

‘2 If there is an analogy in the criminal area to the sort of Fourth

Amendment claim brought by respondent here, it lies in the “iniven-

tory search” cases. The Court has recognized that incident to booking

and jailing a criminal suspect, the police may search his possessions,

including personal items such as a pocketbook, for inventory pur-

“(T]he overarching principle * * * embodied ‘n the

Fourth Amendment” is one of “ ‘reasonableness.’ ” United

States v. Villamonte-Marquez, 462 U.S. 579, 588 (1983).

That “reasonableness” determination is made _ by

“balanc[ing] the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the im-

portance of the governmental interests alleged to justify

the intrusion.” United States v. Place, 462 U.S. 696, 703

(1983); Delaware v. Prouse, 440 U.S. 648, 654 (1979). We

submit that the “reasonableness” test of the Fourth

Amendment is satisfied in this context if the employer’s

search of an employee’s office is reasonably related to the

performance of his duties, /.e., if it is pursuant to a

legitimate business purpose. These justifiable purposes

should not be restricted to innocuous entries intended to

facilitate particular projects, but should also extend to en-

tries to inventory or search for government property and

entries to assist in evaluating an employee’s performance,

even if he is suspected of misconduct.

This standard takes account of the strong governmental

interest in effective management of the workplace (see

pages 11-13, supra), while still according some degree of

protection to an employee’s quite limited interest in using

his government-furnished office for the storage of personal

items that he would prefer not to have exposed to his fellow

employees. Moreover, the standard sensibly equates the

special Fourth Amendment protection that is accorded to

an employee because of the happenstance that he works for

the government with the ordinary expectation of privacy

(albeit not of constitutional dimension) that an employee

would have in the private sector.

poses, without probable cause or a warrant. //linois v. Lafayette, 462

U.S. 640 (1983); South Dakota v. Opperman, supra. An inventory

search is not based on a reason to suspect that evidence will be found,

but rather it is justified on the basis of a range of government interests

relating to the efficient operation of the police station. See Lafayette,

462 U.S. at 646-647.

shim

The lower courts have consistently applied this kind of

approach in assessing the validity of workplace searches.

The first case to address the question was United States v.

Blok, 188 F.2¢ 1019 (D.C. Cir. 1951). In Blok, the court

held invalid a warrantless police search of the desk of a

government employee who was suspected of petty larceny.

Anticipating Mancusi, the court held that the employee’s

exclusive right to use the desk gave her standing to

challenge the search, which it found to be unreasonable.

The court added, however, that “[n]o doubt a search of

{the desk] without her consent would have been reasonable

if made by some people in some circumstances. Her of-

ficial superiors might reasonably have searched the desk

for official property needed for official use.” /d. at 1021.'3

Similady, in United States v. Bunkers, 521 F.2d 1217,

1220 (9th Cir.), cert. denied, 423 U.S. 989 (1975), the

court stated that a postal employee could not seriously

maintain a reasonable expectation of privacy from a

search by postal inspectors of her government-supplied

locker tor fruits of a work-connected crime, viz., stealing

postal parcels. The court upheld the warrantless search,

though it reserved the question whether a different result

would be in order if the search were “not work connected.”

521 F.2d at 1220 n.1; see also United States v. Sanders, 568

F.2d 1175 (Sth Cir. 1978). And in United States v. Collins,

349 F.2d 863, 867-868 (2d Cir. 1965), cert. denied, 383 U.S.

960 (1966), the court stated that it had “no doubt that the

search of defendant’s work area, including the surface and

interior of his deck, conducted by [a Customs agent] was a

constitutional exercise of the power of the Government as

defendant’s employer, to supervise and investigate the per-

'’ The issue presented in Blok concerning whether a law enforce-

ment Officer could search the desk of a government employee for

evidence of a non-work-related crime pursuant to consent of a super-

visor is not presented here, and we express no view as to how it should

be resolved.

formance of his duties as a Customs employee.” See also

Williams v. Collins, 728 F.2d 721, 728 (Sth Cir. 1984) (“It

is by no means certain that Williams had a reasonable ex-

pectation of privacy in his government-furnished desk, in

relation to the possibility of his supervisors entering the

desk as part of an investigation of Williams’ job perform-

ance or as part of an office inventory.”); United States v.

Nasser, 476 F.2d 1111, 1123 (7th Cir. 1973) (“element of

work-relatedness” is basis for assessing validity of super-

visor’s search).'* Thus, whether cast in terms of a lack of

expectation of privacy or reasonableness, the courts have

consistently recognized that an area furnished to a govern-

ment employee for use in performing his duties is not pro-

tected from a work-related search by a superior, including

searches occasioned by concern about the employee’s

misconduct.

This line of authority plainly comports with the Fourth

Amendment, and application of the principles it reflects

makes clear that petitioners’ actions were constitutional.

Indeed, th‘s case is considerably easier than many of the

cases cited above, which involved searches of areas (such

as lockers) set aside primarily for storage of personal items

or searches designed to confirm suspicions of criminal

(albeit work-related) activity. Here, the search was con-

ducted primarily for inventory purposes, /.e., to identify

'4 Gillard v. Schmidt, 579 F.2d 825 (3d Cir. 1978), on which the

court of appeals primarily reliea, is fully in accord with these deci-

sions. In that case a member of the Board of Education was upset by

an unflattering cartoon that appeared in a newspaper. Acting on a tip,

he searched the desk of a school guidance counselor in an effort to

determine the identity of the cartoonist. The court of appeals held that

the search violated the Fourth Amendment. The court specifically

noted, however, that it had no occasion to consider the line of authori-

ty upholding searches for work-related reasons because there was no

claim that the board member was acting to recover government prop-

erty Or to monitor the guidance counselor’s performance of his official

duties. 579 F.2d at 829 n.1.

state records in connection with a pending administrative

investigation of respondent (which was directed at his

malfeasance in office, not at uncovering criminal activity).

And it was performed at a time when respondent was ab-

sent from work indefinitely on involuntary administrative

leave. An inventory search may be performed at a police

station without any suspicion of uncovering evidence of a

crime, so long as there is reasonable justification for the

inventory (see //linois v. Lafayette, 462 U.S. 640 (1983)).

It would seem to follow @ fortiori that an office inventory

may be performed in furtherance of a supervisor’s duties.

Unlike the stationhouse inventory, which may involve the

most personal of possessions, the inventory in the work

setting is limited to property that belongs to the govern-

ment and from which the employee has no right to exclude

his employer.

We emphasize that this would be a different case if peti-

tioners had searched a private item found in the office,

such as a briefcase or a purse or a file of papers whose

cover clearly showed it to be non-work-related.'>

Employees have a far stronger expectation of privacy in

such personal effects (see, e.g., Arkansas v. Sanders, 442

U.S. 753, 762 (1979)), and the government’s need to search

for business-related reasons is substantially less compel-

ling. A supervisor would not be entitled to search an

employee’s briefcase if the employee were holding it while

'S New Jersey v. T.L.O., supra, was such a case. There, a school of-

ficial searched a student’s pocketbook, an item infused with a strong

degree of privacy. Thus, the fact that the Court applied a reasonable

suspicion standard in 7.L.O. (while noting that it did not preclude the

possibility that a lesser standard weuld suffice (slip op. 15 & 9.8)) does

not suggest that such a standard would be appropriate here. Indeed,

the Court in 7.4.0. expressly reserved the question whether a student

had any expectation of privacy in school-provided storage areas such

as desks or lockers (slip op. 11 n.5).

standing on a street corner, and the briefcase does not lose

all protection simply because it happens to be in a govern-

ment office at a particular time.'® But a government office

or a government-furnished desk or file cabinet is different;

an employee cannot reasonably expect to have a right to

deny his supervisor or co-employee access to such govern-

ment property.

In sum, the court of appeals manifestly erred in finding

a Fourth Amendment violation here. This case does not

involve a search by law enforcement agents for the pur-

pose of investigating criminal activity or compliance with

regulatory requirements. It does not involve a search by a

supervisor for reasons unrelated to a legitimate business

purpose. It does not involve an intrusion into a private

possession of an employee, such as a briefcase, or an area

specifically set aside for storage of personal items. Racher,

it involves an entry into an employee’s workspace fur-

nished to him by the State to facilitate his work for the

State. The search was conducted at the direction of re-

spondent’s supervisor for the legitimate purpose of ac-

counting for state property in the office, while respondent

was suspended pending an administrative investigation

that would shortly lead to his termination. Moreover, the

entry was triggered in part by the revelation that respond-

ent had violated the terms of his suspension by entering his

office and removing what was reasonably thought to be

State property. The court of appeals’ view that, in these

circumstances, the Fourth Amendment prohibited the en-

try into respondent’s office cannot be countenanced.

reflect this distinction. There the court invalidated an employer search

of a locker issued to police officers fo~ storage of their personal

belongings, relying heavily on the fact that the employee. had been

permitted to use private locks that could not be opened by the

employer.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.