Amicus Curiae Brief — O'CONNOR v. Ortega

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(9) [ Supreme Court, U.S,

FILED

No. 85-530 JUN 20 1989

cea Sennen JR,

CLERK

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1985

DENNIS M. O’CONNOR, ET AL.,

. Petitioners,

MAGNO J. ORTEGA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION

AND THE NATIONAL EDUCATION ASSOCIATION

AS AMICI CURIAE SUPPORTING RESPONDENT

PETER W. MORGAN

CARLA PERANTONI WALSH

DICKSTEIN, SHAPIRO & MORIN

2101 L Street, N.W.

Washington, D.C. 20037

(202) 785-9700

JACK NOVIK

Counsel of Record

BuRT NEUBORNE

AMERICAN CIVIL LIBERTIES UNION

132 West 43rd Street

New York, N.Y. 10036

(212) 944-9800

MICHAEL SIMPSON

NATIONAL EDUCATION ASSOCIATION

1201 16th Street, N.W.

Washington, D.C. 20036

(202) 822-7035

WILSON - Eres PrintTine Co.. Inc. - 789-0096 - WASHINGTON. D.C. 20001

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TABLE OF CONTENTS

Page

ee as cecmismenenenaies ii

INTEREST OF AMICI CURIAE ......0000000000000c 1

SUMMARY OF ARGUMENT ......................0.00.000000........ 2

PERTTI NE a CNS SE OE DE SO Ie ie

Ran RE rN aS NRT PRE REPT Bee ne elie Nl

I. The General Search And Seizure Conducted In

This Case Was Unreasonable ........... 5

Il. The Fourth Amendment Prohibits Government

Employers From Unreasonably Searching And

Seizing The Personal Papers And Effects Of

Government Employees .......................--ccccccccceceeeee 10

GMOITEET seonsmensantnrnnbiipstansceinentninintitaiiaasianaeptaniin 20

TABLE OF AUTHORITIES

CASES: Page

Arnett v. Kennedy, 416 U.S. 134 (1974) .............. 12

Board of Regents v. Roth, 408 U.S. 564 (1972)... 11

Bush v. Lucas, 462 U.f. 367 (1988)........................ 12

Camara V. Municipal Court, 387 U.S. 523 (1967)... 6,19

Chenkin vy. Bellevue Hospital Center, New York

City Health & Hospitals Corp., 479 F. Supp.

a 15, 18

Chimel v. California, 395 U.S. 752 (1969) ............ 6

Colonnade Catering Corp. Vv. United States, 397

EEE CLEC 13, 14, 16

Connick v. Myers, 461 U.S. 138 (1983) 2.00000... 7

G. M. Leasing Corp. v. United States, 429 U.S.

CE Eee 16

Gardner Vv. Broderick, 392 U.S. 273 (1968) ............. 11

Gillard v. Schmidt, 579 F.2d 825 (3d Cir. 1978).... 18

Ker v. California, 374 U.S. 23 (1963) —......0000000..... 6

Kingsley International Pictures Corp. v. Regents

of the University of the State of New York,

a escseavennenes 7

Lo-Ji Sales, Inc. v. New York, 442 U.S. 319

EE SES ae 3, 10

Madison School District v. Wisconsin Employment

Relations Commission, 429 U.S. 167 (1976) ........ 7

Mancusi Vv. DeForte, 392 U.S. 364 (1968) ............. 5,9

Marshall v. Barlow’s Inc., 436 U.S. 307 (1978) .... 14, 15,

New Jersey v. T.L.O., —— U.S. ——, 105 S. Ct.

EE passim

Perry v. Sindermann, 408 U.S. 593 (1972) ....3, 10, 11, 12

Pickering v. Board of Education, 391 U.S. 563

GR ELLE EE 10, 11, 12

Schneckloth v. Bustamonte, 412 U.S. 218 (1973).... 6

Shelton v. Tucker, 364 U.S. 479 (1960) 0.000000... 11

Torcaso Vy. Watkins, 367 U.S. 488 (1961) ............ 11

Uniformed Sanitation Men Association, Inc. Vv.

Commissioner of Sanitation, 392 U.S. 280

SE 3,11

iii

TABLE OF AUTHORITIES—Continued

Page

United States v. Blok, 188 F.2d 1019 (D.C. Cir.

TIED» cccscnsssosiniciahittimescatnapiieessininanndiniaiaicnaasanminnsinnaints 18

United States v. Bunkers, 521 F.2d 1217 (9th

Cir.), cert. denied, 423 U.S. 989 (1975) ............. 15

United States v. Collins, 349 F.2d 863 (2d Cir.

1965), cert. denied, 383 U.S. 960 (1966) ............. 15

United States v. Speights, 557 F.2d 362 (3d Cir.

ITT nccinsnttipsimitinianinimabininniainsioniieegadiiaiinarctewenes 15, 18

United States v. United States District Court, 407

| Sf SEE ere 3, 6, 17

Wyman v. James, 400 U.S. 309 (1971) ................... 13

UNITED STATES CONSTITUTION:

as sissishintivetinitensdesiibunnnnil 3, 7,11

A ea OT passim

SSE ere ene see eee 3

__ EEAESAATE ES UE CEN A ne N 12

STATUTES:

ee 13

IN THE

Supreme Coot of the United States

OCTOBER TERM, 1985

No. 85-530

DENNIS M. O’CONNOR, ET AL.,

" Petitioners,

MAGNO J. ORTEGA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION

AND THE NATIONAL EDUCATION ASSOCIATION

AS AMICI CURIAE SUPPORTING RESPONDENT

INTEREST OF AMICI CURIAE

The American Civil Liberties Union is a nationwide,

nonpartisan organization of more than 250,000 persons,

dedicated to preserving and protecting the civil rights

and civil liberties guaranteed by the Constitution.

The National Education Association (“NEA’’) is a na-

tionwide employee organization, with a current member-

ship of over 1.8 million. The vast majority of NEA’s

members are educators in public schools, colleges, and

universities.

The primary issue in this case—whether and to what

extent the Fourth Amendment protects public employees

from warrantless searches by their employers—directly

implicates the rights of all NEA members, and will have

a great impact on the rights of public employees through-

out the country.

With the consent of the parties, we file this brief

amici curiae in the belief that it will assist the Court

in its deliberations.

SUMMARY OF ARGUMENT

I. The general search and seizure conducted in this

case was unreasonable under the standards recently de-

clared in New Jersey v. T.L.O., —— U.S. , 105 S. Ct.

733, 744 (1985).

First, Petitioners’ action was unjustified at its incep-

tion. Petitioners’ own description shows that they were

engaged in an investigatory search, rather than a mere

“inventory” as they would characterize it. Such a search

is unreasonable unless authorized by a valid search war-

rant, except in certain carefully defined classes of cases,

none of which is applicable here. Even if no warrant

were required, the search was constitutionally defective

because it was unreasonable “under all the circum-

stances.” 7.L.0., 105 S. Ct. at 748. Petitioners should

have sought to obtain these materials from Respondent

rather than compelling his absence and then entering and

searching his locked office and seizing the materials

therein.

Second, even if Petitioners’ search had been justified at

the inception, it still would have been unreasonable in

scope. The “measures adopted” by Petitioners were not

“reasonably related to the objectives of the search and

not excessively intrusive” as 7.L.0. requires. Id. at 744.

It is basic Fourth Amendment law that a justified entry

to search for a particular item or items does not permit

a wholesale search and seizure of other property such as

occurred here. See, e.g., Lo-Ji Sales, Inc. v. New York,

442 U.S. 319, 325-28 (1979).

II. Petitioners, joined in large part by the United

States, propose an extremely restrictive view of the

Fourth Amendment rights of public employees. Their

respective positions are without merit.

It is by now well settled that .uwe Constitution protects

public employees in their relations with their govern-

ment employer. See, e.g., Perry v. Sindermann, 408 U.S.

593, 597, 599 (1972) (Fourteenth Amendment right not

to be deprived of property without due process of law) ;

Uniformed Sanitation Men Association v. Commissioner

of Sanitation, 392 U.S. 280, 284-85 (Fifth Amendment

privilege against self-incrimination). Employee Fourth

Amendment rights stand on no lesser footing. Cf. T.L.O.,

supra, rejecting the contention that public school stu-

dents have no Fourth Amendment right of privacy while

at school.

Petitioners assert that “a public employee’s right of

privacy in traditional Fourth Amendment terms is fun-

damentally incompatible with the need of agency officials

and supervisors to have access to the offices of public

employees, and their contents, to monitor performance,

administratively investigate work-related conduct, or

merely to retrieve government records.” (Pet. Br. at 16).

This position is entirely mistaken in principle. Individ-

ual expectations of privacy are not unreasonable for

purposes of the Fourth Amendment simply because the

government has a need to make an unfettered search.

E.g., United States v. U. S. District Court, 407 U.S. 297,

312 (1972); 7.L.0., supra, 105 S. Ct. at 742-43. More-

over, the claim that an unfettered right to enter and

search employees’ offices is administratively necessary is

wholly unsupported and, as the record in this case illus-

trates, is unsupportable.

ARGUMENT

Introduction

While Petitioners and the United States stop short of

asserting, in so many words, that a public employee is

wholly unprotected by the Fourth Amendment against

entry into and searches of his office, both take an exceed-

ingly narrow view of the Fourth Amendment protections.

Petitioners contend that “[a] public employee’s right of

privacy in traditional Fourth Amendment terms is funda-

mentally incompatible with the need of agency officials

and supervisors to have access to the offices of public em-

ployees, and their contents * * *.” (Pet. Br. at 16; em-

phasis added.)' The United States, in turn, asserts that

“a government employee has no reasonable expectation

that a supervisor or co-employee will not enter his office

in the course of performing employment-related duties.”

(U.S. Br. at 8; upper case omitted, emphasis added.)

On the latter issue, both briefs rely heavily on this

Court’s recent decision in New Jersey v. T.L.0., ——

U.S. 105 S. Ct. 733 (1985). (Pet. Br. at 22-25;

U.S. Br. at 15-17.) We agree that 7.L.0. provides the

appropriate framework for analysis of the reasonableness

of the search in this case; but, as we show in Part I of

our brief, under the standards there reaffirmed, the search

of Respondent’s office was clearly unreasonable and vio-

lated the Fourth Amendment. In Part II of the brief,

we show that 7.L.O.’s principal holding—which rejected

the State’s contention that a student has no reasonable

expectation of privacy in a public school setting—requires

rejection likewise of the respective views of the Petition-

ers and the United States with respect to the reasonable-

ness of a public employee’s expectation of privacy in his

office and the contents thereof.

1 Brief for Petitioners is referred to throughout as “Pet. Br.”

Brief for the United States as Amicus Curiae in Support of Peti-

tioners is referred to throughout as “U.S. Br.”

I. The General Search And Seizure Conducted In This

Case Was Unreasonable

This Court reaffirmed in New Jersey v. T.L.O. that:

{[djetermining the reasonableness of any search in-

volves a twofold inquiry: first, one must consider

“whether the * * * action was justified at its incep-

tion,” Terry v. Ohio, 392 U.S., at 20, 88 S. Ct. at

1879; second, one must determine whether the search

as actually conducted “was reasonably related in

scope to the circumstances which justified the inter-

ference in the first place,” ibid. 105 S. Ct. at 744

(emphasis added).

Although both Petitioners and the United States seek

to justify the search and seizure in this case largely as a

routine “inventory” search, neither can escape the fact

that the search occurred in connection with the hospital’s

pending investigation into sexual harassment and other

charges against Respondent. Petitioners concede that the

search and seizure was directed by the “investigative

team” looking into those charges (Pet. Br. at 4), and the

United States admits that the search was “in further-

ance of the administrative investigation and in light of

the incident with the computer” (U.S. Br. at 3; see also

id. at 7 (the purpose of the search was “to locate state

property in connection with an administrative investiga-

tion into [Respondent’s] malfeasance on the job”)).

Whatever the proffered justification, the search was un-

reasonable both (a) at its inception and (b) as actually

conducted.

A. To the extent the purpose of the search was in-

vestigative, the search was unjustified at its inception

because a warrant was required. “[I]t is settled for

purposes of the [Fourth] Amendment that ‘except in cer-

tain carefully defined classes of cases, a search of private

property without proper consent is “unreasonable” unless

it has been authorized by a valid search warrant.’ ”

Mancusi v. DeForte, 392 U.S. 364, 370 (1968), quoting

Camara Vv. Municipal Court, 387 U.S. 523, 528-29 (1967).

The few exceptions to the warrant requirement are nar-

row and arise in circumstances not present here. See

Chimel v. California, 395 U.S. 752, 762-63 (1969)

(search incident to arrest) ; Ker v. California, 374 U.S.

23 (1963) (exigent circumstances) ; Schneck/oth v. Bust-

amonte, 412 U.S. 218 (1973) (valid consent). See also

pp. 13-16, infra.

Administrative searches in connection with investiga-

tions may not be conducted without a warrant except

where the government can show that “the burden of ob-

taining a warrant is likely to frustrate the governmental

purpose behind the search.” Camara v. Municipal Court,

387 U.S. 528, 583 (1967). The Court held in T7.L.0O.

that the warrant requirement is unsuited to dealing

with students in the public school environment because

the delay involved “would unduly interfere with the

maintenance of the swift and informal disciplinary pro-

ceedings needed in the schools.” 105 8S. Ct. at 743. In

this case, however, Petitioners have made no showing

that obtaining a warrant would have jeopardized the ef-

fectiveness of their investigative search. Nor could they.

Having banned Respondent from the hospital grounds

and forbidden him from returning without their prior

written approval,? Petitioners had ample time to secure

a warrant—which, if not necessary for the initial entry

into the office, plainly would have been required for an

investigative search and seizure of Respondent’s personal

possessions. Since even the “special circumstances appli-

cable to domestic security surveillances” do not justify

an exception to the warrant requirement, United States

v. United States District Court, 407 U.S. 297, 318-21

(1972), surely the search by the hospital security guard

and other officials in this case merits no exception either.

2764 F.2d at 704. We rely generally in this brief upon the facts

set forth in the Brief For Amicus Curiae Appointed By The Couri

In Support Of Respondent, and do not burden the Court with

another iteration of them.

Petitioners’ argument that no warrant was needed

depends ultimately upon their ipse dixit that the search

here was merely an “inventory.” Petitioners claim to use

the term solely “[f]or purposes of consistency and sim-

plicity” (Pet. Br. at 8 n.5), but they frame both their

question presented and entire argument around the con-

clusion that the search was only an “inventory.” As

Chief Justice Burger stated in an analogous situation,

“(t]his cryptic conclusion seems to ignore the ancient

wisdom that calling a thing by a name does not make

it so.” Madison School District v. Wisconsin Employ-

ment Relations Commission, 429 U.S. 167, 174 (1976).

In view of the investigative character of the search and

Petitioners’ notable failure to present facts that would

support the conclusion that obtaining a warrant would

have been unduly burdensome, Petitioners have failed to

overcome the constitutional preference for a warrant.

The outcome in this case would be the same, however,

if no warrant were required. Even if the search here

were properly characterized as an “inventory” search, and

even if it were analyzed under the relatively loose Fourth

Amendment balancing test applied by the Court in 7.L.0.

to the special circumstances of the search of a public

school student’s property, the search would still be con-

stitutionally defective because unreasonable “under all

the circumstances.” 7.L.0., 105 S. Ct. at 743. Petitioners

conjure up images—having nothing to do with the actual

record of this case—of public employees’ interdicting one

another from entering their respective “allocated office

space[s]” (U.S. Br. at 8) to obtain a file or a book (Pet.

Br. at 16; U.S. Br. at 11). While there may be difficult

public employee Fourth Amendment cases in the future—

just as there are difficult public employee First Amend-

ment cases, see, e.g., Connick v. Myers, 461 U.S. 188

(1983)—Petitioners’ conduct “cuts so close to the core of

constitutional freedom as to make it quite needless in this

case to examine the periphery,” Kingsley International

Pictures Corp. Vv. Regents of the University of the State

of New York, 360 U.S. 684, 689 (1959).

Dr. Ortega’s hospital office was a professional office.

It displayed his name on the door. It contained the con-

fidential files of his psychiatric patients, as well as his

own personal and professional papers and effects. It was

secured by a locked door. And during the 17 years he

occupied the office, no one previously had entered it with-

out his permission. Given Respondent’s obviously legiti-

miate expectation of privacy in his office, and even accept-

ing at face value Petitioners’ representation that their

search of Dr. Ortega’s office was “no more than an

attempt to sort government property from respondent’s”

(Pet. Br. at 25), Petitioners at a minimum should have

contacted Dr. Ortega in advance to ask his permission

to enter the office, to try to arrive at a compromise solu-

tion, to seek his assistance in identifying hospital prop-

erty, or to elicit information from him that would have

made a search unnecessary.

The course Petitioners pursued was not reasonably cal-

culated to achieve their stated objective of identifying

state property. Petitioners made certain that Dr. Ortega

was absent when they entered his office (see, e.g., U.S.

Br. at 2), yet, without his assisiance, their subsequent

attempt to determine whether his patient files and other

property were state or personal proved “impossible.”

(Pet. Br. at 8 n.5.) Had Petitioners contacted Dr.

Ortega, they would have discovered that the computer

Dr. Ortega was rumored to have stolen was not state

property, 764 F.2d at 704, and in fact still remained on

hospital grounds (in the office adjoining his). Jd. They

also apparently would have learned that the only state

property contained in Dr. Ortega’s office was his office

furniture, and that he maintained his hospital records

separately in two file cabinets outside his office door.

Id.2 In sum, they would have learned that no search of

8 The United States criticizes the Court of Appeals for accepting

Respondent’s declaration of this fact (U.S. Br. at 9), but Petitioners

do not dispute it.

Dr. Ortega’s office was necessary, certainly not a search

without his being present.*

B. Even if Petitioners’ search had been justified at

its inezption, it still would have been unreasonable in

scope. At a minimum, “the measures adopted” in such

a search must be “reasonably related to the objectives

of the search and not excessively intrusive * * *.” 7.L.O.,

105 §. Ct. at 744. The general search and seizure con-

ducted by Petitioners was neither.

First, it far exceeded any legitimate state interest in

an “inventory” search. As the Court of Appeals ob-

served: “Office inventories were apparently reserved for

employees who were departing or terminated. When

Ortega’s office was searched, he was neither scheduled to

depart nor had he been terminated.” 764 F.2d at 705-06.

And Petitioners’ erroneous suspicion that Dr. Ortega had

stolen a computer did not justify their sweeping search

and seizure of all of his files and personal belongings. It

is basic Fourth Amendment law that a justified entry to

search for a particular item or items does not permit a

wholesale search and seizure of other property such as

* The United States’ extraction of dicta from Mancusi v. DeForte,

392 U.S. 364 (1968), to justify the search is unavailing. (See U.S.

Br. at 8-9.) This Court held in Mancusi that an employee had

standing to object to the search and seizure by government officials

of business papers in the employee’s custody. The Court observed

that the employee, a union official, was entitled to expect that the

papers would not be seized without “his permission or that of his

union superiors.” 3892 U.S. at 369. The United States cites the

Court’s use of the words, “or that of his union superiors,” to mean

that an employer has the right to search his employee’s papers.

(U.S. Br. at 8-9.) This is not so. Unlike the papers and effects

seized here, the papers in Mancusi belonged to the employer, not

to the employee. 392 U.S. at 367. This Court’s dicta merely re-

flected the obvious truth that the employer had the right to

give its own papers to the government. If anything, Mancusi

supports affirmance in this case, for the Court found that employees

have legitimate expectations of privacy even in papers that they

do not own but merely maintain in non-private office areas.

occurred here. See, e.g., Lo-Ji Sales, Inc. v. New York,

442 U.S. 319, 325-28 (1979).

For the same reason, the search also was unnecessarily

intrusive as an investigative search. The search was un-

limited, unparticularized, and “reminiscent of the general

warrant or writ of assistance of the 18th century against

which the Fourth Amendment was intended to protect.”

442 US. at 325.

Contrary to assertions made both by Petitioners and

by the United States as amicus curiae, this case does not

concern some nebulous right of a public employee to be

secure in his “allocated office space.” (U.S. Br. at 8; Pet.

Br. at 16.) Rather, this case turns upon the Fourth

Amendment’s explicit protection of a person’s “papers

and effects’”—specifically, Respondent’s personal corre-

spondence, the confidential medical files of his private,

non-hospital patients, his appointment books and _ notes,

family photographs, and other personal documents and

materials maintained in his locked hospital office. The

general, unconsented search and seizure of these papers

and effects from Respondent’s locked hospital office was

unreasonable under any of the arguably applicable Fourth

Amendment standards.

II. The Fourth Amendment Prohibits Government Em-

ployers From Unreasonably Searching And Seizing

The Personal Papers And Effects Of Government

Employees

A. Petitioners grudgingly acknowledge that “a public

employee does not relinquish constitutional rights by

virtue of public employment.” (Pet. Br. at 10, citing

Pickering Vv. Board of Education, 391 U.S. 563 (1968).)

(See also U.S. Br. at 12.) This acknowledgment is en-

tirely justified.

In Perry v. Sindermann, 408 U.S. 593, 597 (1972),

the Court summarized what, at that time, was already

well-established principle:

For at least a quarter-century, this Court has made

clear that even though a person has no “right” to a

valuable governmental benefit and even though the

government may deny him the benefit for any num-

ber of reasons, there are some reasons upon which

the government may not rely. It may not deny a

benefit to a person on a basis that infringes his con-

stitutionally protected interests—especially, his in-

terest in freedom of speech. For if the government

could deny a benefit to a person because of his con-

stitutionally protected speech or associations, his ex-

ercise of those freedoms would in effect be penalized

and inhibited. This would allcw the government to

“produce a result which [it] could not command

directly.” Speiser v. Randall, 357 U.S. 518, 526.

Such interference with constitutional rights is im-

permissible.

Justice Stewart added, “[mJost often, we have applied

the principle to denials of public employment.” Jd. Among

the dozen cases cited for that proposition were those in-

volving the First Amendment right of freedom of reli-

gion,” freedom of speech,® and freedom of association.’

The Court also held in Perry and its companion case,

Board of Regents v. Roth, 408 U.S. 564 (1972), that a

public employee enjoys the Fourteenth Amendment right

not to be deprived of property without due process of law.

So too, “public employees are entitled, like all other per-

sons, to * * * the privilege against self-incrimination.”

Uniformed Sanitation Men Association, Inc. v. Commis-

sioner of Sanitation, 392 U.S. 280, 284-85 (1968); see

also Gardner V. Broderick, 392 U.S. 273 (1968). Em-

ployee Fourth Amendment rights stand on no lesser foot-

ing.

Moreover, “petitioners recognize * * * that Fourth

Amendment strictures apply to state officials, whether

5 E.g., Torcaso v. Watkins, 367 U.S. 488 (1961).

* E.g., Pickering v. Board of Education, 391 U.S. 568 (1968).

7 E.g., Shelton v. Tucker, 364 U.S. 479 (1960).

criminal or civil, in safeguarding reasonable privacy in-

terests against arbitrary governmental invasion.” (Pet.

Br. at 9, citing New Jersey v. T.L.O., —— US. —,

105 S. Ct. 733 (1985).) In 7.L.O., this Court rejected the

State’s contention “that the history of the Fourth Amend-

ment indicates that the Amendment was intended to

regulate only searches and seizures carried out by law

enforcement officers; accordingly, although public school

officials are concededly state agents for purposes of the

Fourteenth Amendment, the Fourth Amendment creates

no rights enforceable against them.” 105 S. Ct. at 740.

Notwithstanding the foregoing, Petitioners contend

“that the Fourth Amendment does not apply to an entry

into and inventory of a public employee’s government-

assigned office by agency administrators in the context

of supervision or administrative investigation into work-

related conduct.” (Pet. Br. at 14.) In so arguing, Peti-

tioners rely on three lines of cases, whic.. we shall discuss

seriatim.

1) The first of these relates to the authority of gov-

ernment to control and discipline its employees. (See Pet.

Br. at 10-12.) That authority is simply not at issue in

this case; even if it were, the decisions of this Court, such

as Pickering and Sindermann—as well as Justice Pow-

ell’s opinion in Arnett v. Kennedy, 416 U.S. 134, 164-67

(1974), which Petitioners cite (Br. at 10)—establish

that the exercise of that authority is subject to consti-

tutional constraints.*®

® This is recognized by Bush v. Lucas, 462 U.S. 367 (1983),

which Petitioners quote at length. Bush holds that the “elaborate

remedial system that has been constructed step by step with careful

attention to conflicting policy considerations” under the federal

service laws is not to be “augmented by the creation of a new

judicial remedy for the constitutional violation at issue.” Id. at

388 (emphasis added). Bush does not hold that the employment

relationship cannot give rise to “a constitutional tort,” let alone

touch upon the scope of the rights of government employees under

2) Next, Petitioners seek to analogize this case to

Wyman v. James, 400 U.S. 309 (1971), which held that

a social worker’s home visitation for the purpose of mon-

itoring health and decency conditions and verifying justi-

fication for financial assistance was not a search “in the

Fourth Amendment meaning of that term.” (Pet. Br.

at 12-13, quoting id. at 317.) In so doing, Petitioners

wrest out of context Wyman’s distinction between such

visitations and a “search in the traditional criminal law

context.” Jd. It is plain that the quoted passage cannot

be taken—and we do not believe that it was intended in

Wyman—to be a holding that a search for Fourth Amend-

ment purposes can arise only out of a criminal investiga-

tion.” 7.L.0. disapproved just that proposition, observ-

ing that:

this court has never limited the amendment’s pro-

hibition on unreasonable searches and seizures to op-

erations conducted by the police. Rather, the Court

has long spoken of the Fourth Amendment’s stric-

tures as restraints imposed upon “governmental ac-

tion”—that is, “upon the activities of sovereign au-

thority.” Burdeau v. McDowell, 256 U.S. 465, 475.

105 S.Ct. at 740.

3) Petitioners also rely on two “business inspection

cases that hold voluntary entry into an industry ‘closely

regulated’ by government removes reasonable expecta-

tions of privacy related to the object of regulation.”

(Pet. Br. at 13-14, citing United States v. Biswell, 406

U.S. 311 (1972), Colonnade Catering Corp. v. United

any constitutional provision. Nor does the case affect the remedy

Congress has provided in 42 U.S.C. § 1983 for constitutional viola-

tions under color of state law.

*In the immediately succeeding sentence the Wyman opinion

notes “that the visitation in itself is not forced or compelled, and

that the beneficiary’s denial of permission is not a criminal act.”

Id. In this respect, Wyman differs toto coelo from the forced entry

in this case, which Respondent was given no opportunity to pre-

vent.

States, 397 U.S. 72 (1970).) The limited scope of those

decisions was stressed by this Court when the Solicitor

General relied on them in Marshall v. Barlow’s Inc., 436

U.S. 307, 309 (1978), to urge the constitutionality of

warrantless searches by agents of the Secretary of Labor

to inspect the work areas of employment facilities for

safety hazards and violations of regulations:

Certain industries have such a history of government

oversight that no reasonable expectation of privacy,

see Katz v. United States, 389 U.S. 347, 351-352

(1967), could exist for a proprietor over the stock

of such an enterprise. Liquor (Colonnade) and fire-

arms (Biswell) are industries of this type; when an

entrepreneur embarks upon such a business, he has

voluntarily chosen to subject himself to a full arsenal

of governmental regulation. * * * The element that

distinguishes these enterprises from ordinary busi-

nesses is a long tradition of close government super-

vision, of which any person who chooses to enter such

a business must already be aware. “A central differ-

ence between those cases [Colonnade and Biswell]

and this one is that businessmen engaged in such

federally licensed and regulated enterprises accept

the burdens as well as the benefits of their trade,

whereas the petitioner here was not engaged in any

regulated or licensed business. The businessman in a

regulated industry in effect consents to the restric-

tions placed upon him.” Almeida-Sanchez v. United

States, 413 U.S. 266, 271 (1973). The clear import

of our cases is that the closely regulated industry of

the type involved in Colonnade and Biswell is the

exception. The Secretary would make it the rule.

436 U.S. at 313.

Like the Solicitor General in Barlow’s, Petitioners here

contend:

In the context of supervision and administration, a

government agency’s access to the offices of its em-

ployees, and the contents of those offices, cannot be

conditioned upon prior compliance with standards of

Fourth Amendment protection. (Pet. Br. at 13.)

They thus would make it the “rule” rather than the

“exception” that the warrant requirement of the Fourth

Amendment does not apply to government employers’ en-

try into and search of their employees’ offices. Under this

argument, the warrant requirement would be inapplica-

ble generally, rather than only to some specially sensitive

governmental employment (such as police and other se-

curity forces)"® or where there is particular danger of

theft of government ‘property,’ and without regard to

the nature and extent of the search. This argument is

oblivious to the history and purpose of the Fourth

Amendment’s Warrant Clause as reaffirmed in Barlow’s:

The Warrant Clause of the Fourth Amendment pro-

tects commercial buildings as well as private homes.

To hold otherwise would belie the origin of that

Amendment, and the American colonial experience.

* * * The general warrant was a recurring point

of contention in the Colonies immediately pre

ceding the Revolution. The particular offensiveness

it engendered was acutely felt by the merchants and

businessmen whose premises and products were in-

spected for compliance with the several parliamen-

tary revenue measures that most irritated the col-

onists. “[T]he Fourth Amendment’s commands grew

in large measure out of the colonists’ experience with

writs of assistance * * * [that] granted sweeping

power to customs officials and other agents of the

King to search at large for smuggled goods.” United

States v. Chadwick, 433 U.S. 1, 7-8 (1977). * * *

Against this background, it is untenable that the ban

on warrantless searches was not intended to shield

places of business as well as of residence. 436 U.S.

at 311-12 (footnotes omitted).

10 Cf. United States v. Speights, 557 F.2d 362 (3d Cir. 1977).

11Cf. United States v. Bunkers, 521 F.2d 1217 (9th Cir.), cert.

denied, 423 U.S. 989 (1975) ; United States v. Collins, 349 F.2d 863

(2d Cir. 1965), cert. denied, 383 U.S. 960 (1966); Chenkin v.

Bellevue Hospital Center, New York City Health & Hospitals Corp.,

479 F. Supp. 207 (S.D.N.Y. 1979).

Of course; Barlow’s and the other decisions in this

Court which uphold a warrant requirement for the

search of places of business do not address the precise

question whether warrants can be dispersed with in all

or some government employment contexts. But they do

show that that issue cannot be decided by invoking the

Colonnade and Biswell cases, which “represent responses

to relatively unique circumstances”—liquor and firearms

regulation. For, “effective supervision of its employees”

by government (Pet. Br. at 13), though a weighty con-

cern, is no more so than the public interest in employee

safety and health, which is the goal of OSHA (as in

Barlow’s), or in the collection of taxes (as in G.M. Leas-

ing Corp. v. United States, 429 U.S. 338 (1977)).

Moreover, as we have shown in Part I, supra, Peti-

tioners’ search would be unconstitutional even without

regard to the Warrant Clause, because the search was

plainly unreasonable. The Colonnade-Biswell exception

does not touch upon that question at all.

B. Petitioners contend that their conduct did not

breach any “privacy expectation that society is prepared

to recognize as reasonable.” (Pet. Br. at 14; upper case

omitted.) The heart of Petitioners’ position is their as-

sertion that a “public employee’s right of privacy in tra-

ditional Fourth Amendment terms is fundamentally in-

compatible with the need of agency officials and super-

visors to have access to the offices of public employees,

and their contents, to monitor performance, administra-

tively investigate work-related conduct, or merely to re-

trieve government records.” (Pet. Br. at 16.)

This assertion of need, even if wholly justified (as it

is not, see pp. 17-19, infra), would not justify the

sweeping denial of privacy that Petitioners press upon

this Court. Individual expectations of privacy are not

unreasonable for purposes of the Fourth Amendment

simply because the government has a need to make an

unfettered search. Thus, while recognizing that “unless

Government safeguards its own capacity to function and

to preserve the security of its people, society itself could

become so disordered that all rights and liberties would

be endangered,” this Court nevertheless held that the

Fourth Amendment’s warrant requirement app!es to

electronic surveillance of telephone conversations in do-

mestic security investigations. United States v. United —

States District Court, 407 U.S. 297, 312 (1972).

The recent decision in 7.L.0., supra, is again very

much in point. The Court recognized “the substantial in-

terest of teachers and administrators in maintaining dis-

cipline in the classroom and on school grounds,” and de-

scribed in some detail the seriousness of disciplinary

problems in the schools. 105 S.Ct. at 742-43. Nevertheless,

the Court rejected the State’s contention that students

in the public schools may claim no legitimate expectation

of privacy. Id. at 742. Instead, the Court determined

the scope of the Fourth Amendment in a school setting

on the basis of a “balance between the schoolchild’s legit-

imate expectations of privacy and the school’s equally

legitimate need to maintain an environment in which |

learning can take place.” Jd. at 743. Even the Solici-

tor General acknowledges that “the employer recognizes

that the employee may elect to keep some personal items

in his office, [although] it is plainly the understanding

of all concerned that the office will be used primarily for

work-related purposes.” (U.S. Br. at 9.) These “items”

normally include private papers and correspondence. Un-

less directed otherwise by their employers, many individ-

uals use their offices during nonworking hours for private

correspondence, paying bills, preparing their tax returns

and the like. If the employees’ expectation of privacy in

such materials is no longer one “that society is prepared

to recognize as ‘reasonable,’” it will cease to be the

society the framers of the Fourth Amendment envisioned.

C. We may readily grant that there is frequently a

“need of agency officials and supervisors to have access

to the offices of public employees.” (Pet. Br. at 16.) But

it is a substantial and unjustified leap from the indis-

putable fact “that in the ordinary course of business

many employment situations occasionally involve routine

unconsented entries into an employee’s office for work-

related purposes” (U.S. Br. at 11) to the conclusion that

public employees can never have a reasonable expectation

that their offices will not be entered. Where, as in the

present case, employees have been permitted to and do lock

their office doors, their expectation that their offices will

not be entered without their knowledge and consent is

wholly justified.* See, e.g., U.S. v. Speights, 557 F.2d

362, 364 (3d Cir. 1977) ;'* Gillard v. Schmidt, 579 F.2d

825, 828-29 (3d Cir. 1978). They will thus leave private

materials where they would not be when others are

likely to come into their office (as in business hours), and

the materials would be subject to view. The denial of a

right of privacy in this situation is not necessary to

enable agency officials and fellow employees to have ac-

12 Of course, the situation would be otherwise if employees have

been put on notice that their employer has a key and may enter at

any time. Cf. Chenkin v. Bellevue Hosp. Ctr., N.Y.C., Ete., 479

F. Supp. 207, 215 (S.D.N.Y. 1979). The importance of the reliance

element is also shown by United States v. Blok, 188 F.2d 1019

(D.C. Cir. 1951), on which Petitioners mistakenly place reliance.

In the passage which follows immediately beyond that which is

quoted at Pet. Br. at 16, the Court said:

In the absence of a valid regulation to the contrary appellee

was entitled to, and did keep private property of a personal

sort in her desk. Her superiors could not reasonably search

the desk for her purse, her personal letters, or anything else

that did not belong to the government and had no connection

with the work of the office. 188 F.2d at 1021, emphasis added.

13 The “criminal nature of the investigation in Speights’’ (Pet.

Br. at 18) is, of course, irrelevant to the reasonableness of the em-

ployee’s expectation of privacy prior to any search (see pp. 11-12,

supra). Thus, even if this fact were otherwise relevant, Peti-

tioners’ attempt to distinguish Speights would be untenable.

cess to offices in the normal course of a working day “to

obtain a file or piece of correspondence, or borrow a

paper clip” (Pet. Br. at 16), or for other purposes.

Accordingly, the proposition that public employees never

have a reasonable expectation that their offices will not

be entered cuts too deeply into the privacy interests pro-

tected by the Fourth Amendment. Since the Respondent

in this case clearly had a reasonable expectation that his

office would not be unlocked and entered (see pp. 15-17,

supra), it is unnecessary for the Court to decide under

what circumstances such an expectancy would be unrea-

sonable, and this is a matter better left for decision on

a case-by-case basis.**

Even less plausible is Petitioners’ contention, not joined

by the United States, that the employee does not have a

reasonable expectation of privacy in his office desk or file

cabinet.* Although Petitioners grandly assert that ‘‘[s]o-

ciety has no interest in government offices, desks, and file

cabinets becoming citadels of inefficiency” (Pet. Br. at 16),

they fail to demonstrate that they will become such

“citadels” unless agency officials enjoy an unfettered right

to enter and search.”* But the experience of centuries

lies behind the societal interest which is truly at stake

in this case, and which underlies the Fourth Amendment

14 The question of how extensive an examination of materials that

are not hidden from view may be permitted after a constitutionally-

permitted entry is not presented by this record.

15To be sure, where a file cabinet contains only work-related

materials, or is one to which other employees have regular access,

the expectation of privacy would crdinarily be unreasonable; but

this does not justify a blanket exclusion of office file cabinets from

Fourth Amendment protection.

16 Of course, public employees can be required by their superiors

to yield up government records or other work-related papers; but

Petitioners, having required Respondent to take administrative

leave, cannot rely on his consequent inability to give them any

materials that they might legitimately have sought.

—“to safeguard the privacy and security of individua!s

against arbitrary invasions by governmental officials.”

Camara Vv. Municipal Court, 387 U.S. 5238, 528 (1967).

CONCLUSION

For the reasons stated herein, the judgment of the

Court of Appeals should be affirmed.

Respectfully submitted,