Cybertelecom Federal Internet Law & Policy An Educational Project

4th A :: Search Without Warrant :: Workplace

Derived From: Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations Computer Crime and Intellectual Property Section, Criminal Division, DOJ (2009) (Remember: This is a rendition of the state of the law from law enforcement and reflects their views)

Chapter 1 Searching and Seizing Computers Without a Warrant

C. Exceptions to the Warrant Requirements in Cases Involving Computers

D. Special Case: Workplace Searches

Workplace searches occur often in computer cases, as workplace computers frequently store evidence of criminal activity. Whether such searches require a warrant depends on several factual distinctions, beginning with whether the workplace is in the public sector or the private sector. In general, law enforcement officers can conduct a warrantless search of private (i.e., nongovernment) workplaces only if the officers obtain the consent of either the employer or an employee with common authority over the area searched. For government workplaces, the inquiry into whether a warrant is required to conduct a workplace search is based on the "special needs" framework set forth in O'Connor v. Ortega, 480 U.S. 709 (1987). Under that framework, a government employee may, depending on circumstances, enjoy a reasonable expectation of privacy in his workplace. However, even when the employee has a reasonable expectation of privacy, employers can nevertheless conduct warrantless searches provided the searches are work-related, justified at their inception, and permissible in scope. Id. at 725-26.One cautionary note is in order here. This discussion evaluates the legality of warrantless workplace searches of computers under the Fourth Amendment. In many cases, however, workplace searches will implicate federal privacy statutes in addition to the Fourth Amendment. For example, efforts to obtain an employee's files and email from the employer's network server raise issues under the Stored Communications Act, 18 U.S.C. §§ 2701-2712 (discussed in Chapter 3), and workplace monitoring of an employee's Internet use may implicate Title III, 18 U.S.C. §§ 2510-2522 (discussed in Chapter 4). Before conducting a workplace search, investigators must make sure that their search will not violate either the Fourth Amendment or relevant federal privacy statutes. []

1. Private Sector Workplace Searches

The rules for conducting warrantless searches and seizures in private-sector workplaces generally mirror the rules for conducting warrantless searches in homes and other personal residences. Private company employees generally retain a reasonable expectation of privacy in their workplaces. As a result, searches by law enforcement of a private workplace will usually require a warrant unless the agents obtain the consent of an employer or a co-worker with common authority.

a. Reasonable Expectation of privacy in Private Sector Workplace

Private-sector employees will usually retain a reasonable expectation of privacy in their office space. In Mancusi v. DeForte, 392 U.S. 364, 365 (1968), police officers conducted a warrantless search of an office at a local union headquarters that defendant Frank DeForte shared with several other union officials. In response to DeForte's claim that the search violated his Fourth Amendment rights, the police officers argued that the joint use of the space by DeForte's co-workers made his expectation of privacy unreasonable. The Court disagreed, stating that DeForte "still could reasonably have expected that only [his officemates] and their personal or business guests would enter the office, and that records would not be touched except with their permission or that of union higher-ups." Id. at 369. Because only a specific group of people actually enjoyed joint access and use of DeForte's office, the officers' presence violated DeForte's reasonable expectation of privacy. See id. See also United States v. Most, 876 F.2d 191, 198 (D.C. Cir. 1989) ("[A]n individual need not shut himself off from the world in order to retain his Fourth Amendment rights. He may invite his friends into his home but exclude the police; he may share his office with co-workers without consenting to an official search."); United States v. Lyons, 706 F.2d 321, 325 (D.C. Cir. 1983) ("One may freely admit guests of one's choosing-or be legally obligated to admit specific persons- without sacrificing one's right to expect that a space will remain secure against all others."). As a practical matter, then, private employees will generally retain an expectation of privacy in their work space unless that space is "open to the world at large." Id. at 326.Some courts have held that a private-sector employee has no reasonable expectation of privacy in the contents of his work computer or email account when his employer has explicitly reserved the right to monitor the employee's computer use or search his computer files. See United States v. Bailey, 272 F. Supp. 2d 822, 835-36 (D. Neb. 2003); Muick v. Glenayre Electronics, 280 F.3d 741, 743 (7th Cir. 2002). However, these cases rely on precedents from the public-sector context without considering the distinction between private and public employers. For example, the fact that a private employer reserves the right to search an employee's computer should not imply that the government can seize the computer without a warrant, absent the employer consenting or conducting a private search. Prosecutors should be wary in relying on these cases. For example, in United States v. Ziegler, 456 F.3d 1138, 1144-46 (9th Cir. 2006), the Ninth Circuit initially held that a private-sector employee had no reasonable expectation of privacy in his workplace computer based on his employer's monitoring and computer use policy. However, this opinion was withdrawn and superseded by United States v. Ziegler, 474 F.3d 1184, 1189- 90 (9th Cir. 2007), in which the court, relying on Mancusi v. DeForte, held that the employee in fact retained a reasonable expectation of privacy in his workplace computer.

b. Consent in Private Sector Workplaces

Although most non-government workplaces will support a reasonable expectation of privacy from a law enforcement search, agents can defeat this expectation by obtaining the consent of a party who exercises common authority over the area searched. See Matlock, 415 U.S. at 171. In practice, this means that agents can often overcome the warrant requirement by obtaining the consent of the target's employer or supervisor. Depending on the facts, a co-worker's consent may suffice as well.Private-sector employers and supervisors generally enjoy a broad authority to consent to searches in the workplace. For example, in United States v. Gargiso, 456 F.2d 584 (2d Cir. 1972), a pre-Matlock case, agents conducting a criminal investigation of an employee of a private company sought access to a locked, wired-off area in the employer's basement. The agents explained their needs to the company's vice-president, who took the agents to the basement and opened the basement with his key. When the employee attempted to suppress the evidence that the agents discovered in the basement, the court held that the vice-president's consent was effective. Because the vice-president shared supervisory power over the basement with the employee, the court reasoned, he could consent to the agents' search of that area. See id. at 586-87. See also United States v. Bilanzich, 771 F.2d 292, 296-97 (7th Cir. 1985) (holding that the owner of a hotel could consent to search of locked room used by hotel employee to store records, even though owner did not carry a key, because employee worked at owner's bidding); J.L. Foti Constr. Co. v. Donovan, 786 F.2d 714, 716-17 (6th Cir. 1986) (per curiam) (holding that a general contractor's superintendent could consent to an inspection of an entire construction site, including subcontractor's work area).In most cases, private-sector employers will retain sufficient authority over workplace computers to consent to a government search of the computers. In United States v. Ziegler, 474 F.3d 1184, 1191 (9th Cir. 2007), the court held that an employer could consent to a search of the computer it provided to an employee, explaining that "the computer is the type of workplace property that remains within the control of the employer 'even if the employee has placed personal items in [it].'" The court also noted the existence of a workplace policy and practice of monitoring employee computer use. See id. In a close case, an employment policy or computer network banner that establishes the employer's right to consent to a workplace search can help establish the employer's common authority to consent under Matlock. For more information on banners, see Appendix A.When co-workers exercise common authority over a workspace, investigators can rely on a co-worker's consent to search that space. For example, in United States v. Buettner-Janusch, 646 F.2d 759 (2d Cir. 1981), a professor and an undergraduate research assistant at New York University consented to a search of an NYU laboratory managed by a second professor suspected of using his laboratory to manufacture LSD and other drugs. Although the search involved opening vials and several other closed containers, the Second Circuit held that Matlock authorized the search because both consenting co-workers had been authorized to make full use of the lab for their research. See id. at 765-66. See also United States v. Jenkins, 46 F.3d 447, 455-58 (5th Cir. 1995) (allowing an employee to consent to a search of the employer's property); United States v. Murphy, 506 F.2d 529, 530 (9th Cir. 1974) (per curiam) (same); United States v. Longo, 70 F. Supp. 2d 225, 256 (W.D.N.Y. 1999) (allowing secretary to consent to search of employer's computer). But see United States v. Buitrago Pelaez, 961 F. Supp. 64, 67-68 (S.D.N.Y. 1997) (holding that a receptionist could consent to a general search of the office, but not of a locked safe to which receptionist did not know the combination).

c. Employer Searches in Private Sector Workplaces

Warrantless workplace searches by private employers rarely violate the Fourth Amendment. So long as the employer is not acting as an instrument or agent of the Government at the time of the search, the search is a private search and the Fourth Amendment does not apply. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 614 (1989).

2. Public Sector Workplace Searches

Although warrantless computer searches in private-sector workplaces follow familiar Fourth Amendment rules, the application of the Fourth Amendment to public-sector workplace searches of computers presents a different matter. In O'Connor v. Ortega, 480 U.S. 709 (1987), the Supreme Court introduced a distinct framework for evaluating warrantless searches in government workplaces, a framework that applies to computer searches. According to O'Connor, a government employee can enjoy a reasonable expectation of privacy in his workplace. See id. at 717 (O'Connor, J., plurality opinion); id. at 730 (Scalia, J., concurring). However, an expectation of privacy becomes unreasonable if "actual office practices and procedures, or . . . legitimate regulation" permit the employee's supervisor, co-workers, or the public to enter the employee's workspace. Id. at 717 (O'Connor, J., plurality opinion). Further, employers can conduct "reasonable" warrantless searches even if the searches violate an employee's reasonable expectation of privacy. Such searches include work-related, noninvestigatory intrusions (e.g., entering an employee's locked office to retrieve a file) and reasonable investigations into work-related misconduct. See id. at 725-26 (O'Connor, J., plurality opinion); id. at 732 (Scalia, J., concurring).

a. Reasonable Expectation of privacy in Public Workplaces

The reasonable expectation of privacy test formulated by the O'Connor plurality asks whether a government employee's workspace is "so open to fellow employees or to the public that no expectation of privacy is reasonable." O'Connor, 480 U.S. at 718 (plurality opinion). This standard differs significantly from the standard analysis applied in private workplaces. Whereas private-sector employees enjoy a reasonable expectation of privacy in their workspace unless the space is "open to the world at large," Lyons, 706 F.2d at 326, government employees retain a reasonable expectation of privacy in the workplace only if a case-by-case inquiry into "actual office practices and procedures" shows that it is reasonable for employees to expect that others will not enter their space. See O'Connor, 480 U.S. at 717 (plurality opinion); Rossi v. Town of Pelham, 35 F. Supp. 2d. 58, 63-64 (D.N.H. 1997). See also O'Connor, 480 U.S. at 730-31 (Scalia, J., concurring) (noting the difference between the expectationof- privacy analysis offered by the O'Connor plurality and that traditionally applied in private workplace searches). From a practical standpoint, then, public employees are less likely to retain a reasonable expectation of privacy against government searches at work than are private employees.Courts evaluating public employees' reasonable expectation of privacy in the wake of O'Connor have considered the following factors: whether the work area in question is assigned solely to the employee; whether others have access to the space; whether the nature of the employment requires a close working relationship with others; whether office regulations place employees on notice that certain areas are subject to search; and whether the property searched is public or private. See Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 179-80 (1st Cir. 1997) (summarizing cases); United States v. Mancini, 8 F.3d 104, 109 (1st Cir. 1993). In general, the courts have rejected claims of an expectation of privacy in an office when the employee knew or should have known that others could access the employee's workspace. See, e.g., United States v. King, 509 F.3d 1338, 1341-42 (11th Cir. 2007) (contractor had no reasonable expectation of privacy in "shared" files accessible by entire military base computer network); United States v. Barrows, 481 F.3d 1246, 1248-49 (10th Cir. 2007) (public employee had no reasonable expectation of privacy in his own computer in workplace when he left computer out and unprotected from use by others); Sheppard v. Beerman, 18 F.3d 147, 152 (2d Cir. 1994) (judge's search through his law clerk's desk and file cabinets did not violate the clerk's reasonable expectation of privacy because of the clerk's close working relationship with the judge); Schowengerdt v. United States, 944 F.2d 483, 488 (9th Cir. 1991) (civilian engineer employed by the Navy who worked with classified documents at an ordinance plant had no reasonable expectation of privacy in his office because investigators were known to search employees' offices for evidence of misconduct on a regular basis). But see United States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991) (concluding that public employee retained expectation of privacy in office shared with several co-workers). In contrast, the courts have found that a search violates a public employee's reasonable expectation of privacy when the employee had no reason to expect that others would access the space searched. See O'Connor, 480 U.S. at 718- 19 (plurality) (physician at state hospital retained expectation of privacy in his desk and file cabinets where there was no evidence that other employees could enter his office and access its contents); Rossi, 35 F. Supp. 2d at 64 (holding that town clerk enjoyed reasonable expectation of privacy in 8' x 8' office that the public could not access and other town employees did not enter).While agents must evaluate whether a public employee retains a reasonable expectation of privacy in the workplace on a case-by-case basis, official written employment policies can simplify the task dramatically. See O'Connor, 480 U.S. at 717 (plurality) ("legitimate regulation" of the work place can reduce public employees' Fourth Amendment protections). Courts have uniformly deferred to public employers' official policies that expressly authorize access to the employee's workspace and have relied on such policies when ruling that the employee does not retain a reasonable expectation of privacy in the workplace. See American Postal Workers Union, Columbus Area Local AFL-CIO v. United States Postal Serv., 871 F.2d 556, 559-61 (6th Cir. 1989) (postal employees retained no reasonable expectation of privacy in contents of government lockers after signing waivers stating that lockers were subject to inspection at any time, even though lockers contained personal items); United States v. Bunkers, 521 F.2d 1217, 1219-1221 (9th Cir. 1975) (same, noting language in postal manual stating that locker is "subject to search by supervisors and postal inspectors"). Of course, whether a specific policy eliminates a reasonable expectation of privacy is a factual question. Employment policies that do not explicitly address employee privacy may prove insufficient to eliminate Fourth Amendment protection. See, e.g., Taketa, 923 F.2d at 672-73 (concluding that regulation requiring DEA employees to "maintain clean desks" did not defeat workplace expectation of privacy of non-DEA employee assigned to DEA office).Written employment policies and computer log on "banners" are particularly important in cases that consider whether government employees enjoy a reasonable expectation of privacy in government computers. Banners are written notices that greet users before they log on to a computer or computer network; they can inform users of the privacy rights that they do or do not retain in their use of the computer or network. See generally Appendix A.In general, government employees who are notified that their employer has retained rights to access or inspect information stored on the employer's computers can have no reasonable expectation of privacy in the information stored there. For example, in United States v. Simons, 206 F.3d 392 (4th Cir. 2000), computer specialists at a division of the Central Intelligence Agency learned that an employee named Mark Simons had been using his desktop computer at work to obtain pornography available on the Internet, in violation of CIA policy. The computer specialists accessed Simons' computer remotely without a warrant, and obtained copies of over a thousand picture files that Simons had stored on his hard drive. Many of these picture files contained child pornography, which were turned over to law enforcement. When Simons filed a motion to suppress the fruits of the remote search of his hard drive, the Fourth Circuit held that the CIA division's official Internet usage policy eliminated any reasonable expectation of privacy that Simons might otherwise have in the copied files. See id. at 398. The policy stated that the CIA division would "periodically audit, inspect, and/or monitor [each] user's Internet access as deemed appropriate," and that such auditing would be implemented "to support identification, termination, and prosecution of unauthorized activity." Id. at 395-96. Simons did not deny that he was aware of the policy. See id. at 398 n.8. In light of the policy, the Fourth Circuit held, Simons did not retain a reasonable expectation of privacy "with regard to the record or fruits of his Internet use," including the files he had downloaded. Id. at 398.Other courts have agreed with the approach articulated in Simons and have held that banners and policies generally eliminate a reasonable expectation of privacy in contents stored in a government employee's network account. See Biby v. Board of Regents, 419 F.3d 845, 850-51 (8th Cir. 2005) (university policy stating that computer files and emails may be searched in response to litigation discovery requests eliminated computer user's reasonable expectation of privacy); United States v. Thorn, 375 F.3d 679, 683 (8th Cir. 2004) (computer use policy eliminated employee's reasonable expectation of privacy in computer); United States v. Angevine, 281 F.3d 1130, 1134-35 (10th Cir. 2002) (banner and computer policy eliminated a public employee's reasonable expectation of privacy in data downloaded from Internet); United States v. Monroe, 52 M.J. 326, 330 (C.A.A.F. 2000) (Air Force sergeant did not have a reasonable expectation of privacy in his government email account because email use was reserved for official business and network banner informed each user upon logging on to the network that use was subject to monitoring); Wasson v. Sonoma County Junior College Dist., 4 F. Supp. 2d 893, 905-06 (N.D. Cal. 1997) (public employer's computer policy giving the employer "the right to access all information stored on [the employer's] computers" defeats an employee's reasonable expectation of privacy in files stored on employer's computers); Bohach v. City of Reno, 932 F. Supp. 1232, 1235 (D. Nev. 1996) (police officers did not retain a reasonable expectation of privacy in their use of a pager system, in part because the Chief of Police had issued an order announcing that all messages would be logged). But see DeMaine v. Samuels, 2000 WL 1658586, at *7 (D. Conn. Sept. 25, 2000) (suggesting that the existence of an employment manual explicitly authorizing searches "weighs heavily" in the determination of whether a government employee retained a reasonable expectation of privacy at work, but "does not, on its own, dispose of the question"). Conversely, a court may note the absence of a banner or computer policy in finding that an employee has a reasonable expectation of privacy in the use of his computer. See United States v. Slanina, 283 F.3d 670, 676-77 (5th Cir. 2002), vacated on other grounds, 537 U.S. 802 (2002), aff'd, 359 F.3d 356, 358 (5th Cir. 2004); Leventhal v. Knapek, 266 F.3d 64, 73-74 (2d Cir. 2001) (noting that agency had not placed employee on notice that he had no expectation of privacy in his computer).Of course, whether a specific policy eliminates a reasonable expectation of privacy is a factual question. Agents and prosecutors must consider whether a given policy is broad enough to reasonably contemplate the search to be conducted. If the policy is narrow, it may not waive the government employee's reasonable expectation of privacy against the search that the government plans to execute. For example, in Simons, the Fourth Circuit concluded that although the CIA division's Internet usage policy eliminated Simons' reasonable expectation of privacy in the fruits of his Internet use, it did not eliminate his reasonable expectation of privacy in the physical confines of his office. See Simons, 206 F.3d at 399 n.10. Accordingly, the policy by itself was insufficient to justify a physical entry into Simons' office. See id. at 399. See also Taketa, 923 F.2d at 672-73 (concluding that regulation requiring DEA employees to "maintain clean desks" did not defeat workplace expectation of privacy of non- DEA employee assigned to DEA office). In addition, United States v. Long, 64 M.J. 57 (C.A.A.F. 2006), supplies an example of a court interpreting a banner very narrowly. In Long, a Department of Defense banner warned users that the government could monitor the computer system "for all lawful purposes, including to ensure that their use is authorized, for management of the system, to facilitate protection against unauthorized access, and to verify security procedures. . . ." The court held that a user maintained a reasonable expectation of privacy in her email, stating that the "banner described access to 'monitor' the computer system, not to engage in law enforcement intrusions by examining the contents of particular emails in a manner unrelated to maintenance of the e-mail system." Id. at 63. However, in a subsequent case before the same court with a similar computer banner, the court declined to follow Long. See United States v. Larson, 66 M.J. 212, 216 (2008) (finding no expectation of privacy in government computer where banner established consent to monitor). Sample banners appear in Appendix A.Furthermore, courts may consider whether or how the employer actually enforces its policy when deciding whether the policy eliminates an employee's expectation of privacy. For example, in Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008), a city employee had signed a computer use policy acknowledging that he had no expectation of privacy in his use of the pager provided to him by the city. Although the court noted that this policy would eliminate the employee's reasonable expectation policy "[i]f that were all," id. at 906, the court nevertheless found that the employee had a reasonable expectation of privacy because of an "informal policy that the text messages would not be audited" if the employee paid any charges incurred through his use of text messaging for non-official purposes. Id. See also Long, 64 M.J. at 64 (noting network administrator's testimony that he did not monitor individual email accounts when testing or monitoring the network).

b. "Reasonable" Workplace Searches Under OConnor v Ortega

In most circumstances, a warrant must be obtained before a government actor can conduct a search that violates an individual's reasonable expectation of privacy. In the context of government employment, however, the government's role as an employer (as opposed to its role as a law-enforcer) presents a special case. In O'Connor, the Supreme Court held that a public employer or the employer's agent can conduct a workplace search that violates a public employee's reasonable expectation of privacy so long as the search is "reasonable." See O'Connor, 480 U.S. at 722-23 (plurality); id. at 732 (Scalia, J., concurring). The Court's decision adds public workplace searches by employers to the list of "special needs" exceptions to the warrant requirement. The "special needs" exceptions permit the government to dispense with the usual warrant requirement when its officials infringe upon protected privacy rights in the course of acting in a non-law enforcement capacity. See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring) (applying the "special needs" exception to permit public school officials to search student property without a warrant in an effort to maintain discipline and order in public schools); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 677 (1989) (applying the "special needs" exception to permit warrantless drug testing of Customs employees who seek promotions to positions where they would handle sensitive information). In these cases, the Court has held that the need for government officials to pursue legitimate non-law-enforcement aims justifies a relaxing of the warrant requirement because "the burden of obtaining a warrant is likely to frustrate the [non-law-enforcement] governmental purpose behind the search." O'Connor, 480 U.S. at 720 (quoting Camara v. Municipal Court, 387 U.S. 523, 533 (1967)).According to O'Connor, a warrantless search must satisfy two requirements to qualify as "reasonable." First, the employer or his agents must participate in the search for a work-related reason, rather than merely to obtain evidence for use in criminal proceedings. Second, the search must be justified at its inception and permissible in its scope.

i. The Search Must Be Work Related

The first element of O'Connor's reasonableness test requires that the employer or his agents must participate in the search for a work-related reason, rather than merely to obtain evidence for use in criminal proceedings. See O'Connor, 480 U.S. at 721. This element limits the O'Connor exception to circumstances in which the government actors who conduct the search act in their capacity as employers, rather than law enforcers. The O'Connor Court specified two such circumstances. First, the Court concluded that public employers can conduct reasonable work-related noninvestigatory intrusions, such as entering an employee's office to retrieve a file or report while the employee is out. See id. at 721-22 (plurality); id. at 732 (Scalia, J., concurring). Second, the Court concluded that employers can conduct reasonable investigations into an employee's work-related misconduct, such as entering an employee's office to investigate employee misfeasance that threatens the efficient and proper operation of the office. See id. at 724 (plurality); id. at 732 (Scalia, J., concurring).The line between a legitimate work-related search and an illegitimate search for criminal evidence is clear in theory, but often blurry in fact. Public employers who learn of misconduct at work may investigate it with dual motives: they may seek evidence both to root out "inefficiency, incompetence, mismanagement, or other work-related misfeasance," id. at 724, and also to collect evidence for a criminal prosecution. Indeed, the two categories may merge altogether. For example, government officials who have criminal investigators under their command may respond to allegations of work-related misconduct by directing the investigators to search employee offices for evidence of a crime.The courts have adopted fairly generous interpretations of O'Connor when confronted with mixed-motive searches. In general, the presence and involvement of law enforcement officers will not invalidate the search so long as the employer or his agent participates in the search for legitimate work related reasons. See, e.g., United States v. Slanina, 283 F.3d 670, 678-79 (5th Cir. 2002), vacated on other grounds, 537 U.S. 802 (2002), aff'd, 359 F.3d 356, 358 (5th Cir. 2004) (approving search by official in charge of fire and police departments and stating that "O'Connor's goal of ensuring an efficient workplace should not be frustrated simply because the same misconduct that violates a government employer's policy also happens to be illegal"); Gossmeyer v. McDonald, 128 F.3d 481, 492 (7th Cir. 1997) (presence of law enforcement officers in a search team looking for evidence of work-related misconduct does not transform search into an illegitimate law enforcement search); Taketa, 923 F.2d at 674 (search of DEA office space by DEA agents investigating allegations of illegal wiretapping "was an internal investigation directed at uncovering work-related employee misconduct."); Shields v. Burge, 874 F.2d 1201, 1202- 05 (7th Cir. 1989) (applying the O'Connor exception to an internal affairs investigation of a police sergeant that paralleled a criminal investigation); Ross v. Hinton, 740 F. Supp. 451, 458 (S.D. Ohio 1990) (a public employer's discussions with law enforcement officer concerning employee's alleged criminal misconduct, culminating in officer's advice to "secure" the employee's files, did not transform employer's subsequent search of employee's office into a law enforcement search).Although the presence of law enforcement officers ordinarily will not invalidate a work-related search, a few courts have indicated that whether O'Connor applies depends as much on the identity of the personnel who conduct the search as whether the purpose of the search is work-related. For example, in United States v. Simons, 206 F.3d 392, 400 (4th Cir. 2000), the Fourth Circuit concluded that O'Connor authorized the search of a government employee's office by his supervisor even though the dominant purpose of the search was to uncover evidence of a crime. Because the search was work-related and conducted by the employee's supervisor, the Court indicated, it fell within the scope of O'Connor. See id. ("[The employer] did not lose its special need for the efficient and proper operation of the workplace merely because the evidence obtained was evidence of a crime." (internal quotation marks and citations omitted)). Conversely, one district court has held that the O'Connor exception did not apply when a government employer sent a uniformed police officer to an employee's office, even though the purpose of the police officer's presence was entirely work-related. See Rossi v. Town of Pelham, 35 F. Supp. 2d 58, 65- 66 (D.N.H. 1997) (in civil action pursuant to 42 U.S.C. § 1983, concluding that O'Connor exception did not apply when town officials sent a single police officer to town clerk's office to ensure that clerk did not remove public records from her office before a scheduled audit could occur; the resulting search was a "police intrusion" rather than an "employer intrusion").Of course, courts will invalidate warrantless workplace searches when the facts establish that law enforcement provided the real reason for the search, and the search violated an employee's reasonable expectation of privacy. See United States v. Hagarty, 388 F.2d 713, 717 (7th Cir. 1968) (surveillance installed by criminal investigators violated the Fourth Amendment where purpose of surveillance was "to detect criminal activity" rather than "to supervise and investigate" a government employee); United States v. Kahan, 350 F. Supp. 784, 791 (S.D.N.Y. 1972) (invalidating warrantless search of INS employee's wastebasket by INS criminal investigator who searched the employee's wastebasket for evidence of a crime every day after work with the employer's consent), rev'd in part on other grounds, 479 F.2d 290 (2d Cir. 1973), rev'd with directions to reinstate the district court judgment, 415 U.S. 239 (1974).

ii. The Search Must Be Justified At Its Inception and Permissible In Its Scope

To be "reasonable" under the Fourth Amendment, a work-related employer search of the type endorsed in O'Connor must also be both "justified at its inception" and "permissible in its scope." O'Connor, 480 U.S. at 726 (plurality). A search will be justified at its inception "when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose." Id. See, e.g., Simons, 206 F.3d at 401 (entrance into employee's office to seize his computer was justified at its inception because employer knew that employee had used the computer to download child pornography); Gossmeyer, 128 F.3d at 491 (co-worker's specific allegations of serious misconduct made Sheriff's search of Child Protective Investigator's locked desk and file cabinets justified at its inception); Taketa, 923 F.2d at 674 (report of misconduct justified initial search of employee's office); Shields, 874 F.2d at 1204 (suggesting in dicta that search of police officer's desk for narcotics pursuant to internal affairs investigation might be reasonable following an anonymous tip); DeMaine v. Samuels, 2000 WL 1658586, at *10 (D. Conn. Sept. 25, 2000) (search of police officer's day planner was justified by information from two reliable sources that the officer kept detailed attendance notes relevant to overtime investigation involving other officers); Williams v. Philadelphia Housing Auth., 826 F. Supp. 952, 954 (E.D. Pa. 1993) (employee's search for a computer disk in employee's office was justified at its inception because employer needed contents of disk for official purposes). But see Wiley v. Department of Justice, 328 F.3d 1346, 1356-57 (Fed. Cir. 2003) (search of employee's car based on ten-month-old anonymous tip was not justified); Ortega v. O'Connor, 146 F.3d 1149, 1162 (9th Cir. 1998) (vague, uncorroborated and stale complaints of misconduct do not justify a decision to search an employee's office). A search will be "permissible in its scope" when "the measures adopted are reasonably related to the objectives of the search and [are] not excessively intrusive in light of the nature of the misconduct." O'Connor, 480 U.S. at 726 (plurality) (internal quotation marks omitted). This standard requires employers and their agents to tailor workrelated searches to the alleged misfeasance. See, e.g., Leventhal v. Knapek, 266 F.3d 64, 75-77 (2d Cir. 2001) (search for the presence of non-agency-approved software on employee's computer was not excessively intrusive because officials searched only file names at first and then searched only suspicious directories on subsequent visits); Simons, 206 F.3d at 401 (search for child pornography believed to be stored in employee's computer was permissible in scope because individual who conducted the search "simply crossed the floor of [the defendant's] office, switched hard drives, and exited"); Gossmeyer, 128 F.3d at 491 (workplace search for images of child pornography was permissible in scope because it was limited to places where such images would likely be stored); Samuels, 2000 WL 1658586, at *10 (search through police officer's day planner was reasonable because Internal Affairs investigators had reason to believe day planner contained information relevant to investigation of overtime abuse). If employers conduct a search that unreasonably exceeds the scope necessary to pursue the employer's legitimate work-related objectives, the search will be "unreasonable" and will violate the Fourth Amendment. See O'Connor, 146 F.3d at 1163 ("a general and unbounded" search of an employee's desk, cabinets, and personal papers was impermissible in scope where the search team did not attempt to limit their investigation to evidence of alleged misconduct); Narducci v. Village of Bellwood, 444 F. Supp. 2d 924, 932 (N.D. Ill. 2006) (purpose of addressing threats to employees did not justify recording all employee phone calls, without notice to employees, for six years after complaints of threats had stopped).

c. Consent in Public Sector Workplaces

Although public employers may search employees' workplaces without a warrant for work-related reasons, public workplaces offer a more restrictive milieu in one respect. In government workplaces, employers acting in their official capacity generally cannot consent to a law enforcement search of their employees' offices. See United States v. Blok, 188 F.2d 1019, 1021 (D.C. Cir. 1951) (a government supervisor cannot consent to a law enforcement search of a government employee's desk); Taketa, 923 F.2d at 673; Kahan, 350 F. Supp. at 791. The rationale for this result is that the Fourth Amendment cannot permit one government official to consent to a search by law enforcement that he could not conduct himself. See Blok, 188 F.2d at 1021 ("Operation of a government agency and enforcement of criminal law do not amalgamate to give a right of search beyond the scope of either."). Accordingly, law enforcement searches conducted pursuant to a public employer's consent must be evaluated under O'Connor rather than the third-party consent rules of Matlock. The question in such cases is not whether the public employer had common authority to consent to the search, but rather whether the combined law enforcement and employer search satisfied the Fourth Amendment standards of O'Connor v. Ortega.

E. International Issues