O'Connor v. Ortega
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''O'Connor v. Ortega'', 480 U.S. 709 (1987), is a
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
decision on the Fourth Amendment rights of government employees with regard to administrative searches in the workplace, during investigations by supervisors for violations of employee policy rather than by law enforcement for criminal offenses. It was brought by Magno Ortega, a doctor at a California state hospital after his supervisors found allegedly inculpatory evidence in his office while he was on
administrative leave Administrative leave is a temporary leave from a job assignment, with pay and benefits intact. Generally, the term is reserved for employees of non-business institutions such as schools, police, and hospitals. The definition of administrative lea ...
pending an investigation of alleged misconduct. Some of what they uncovered was later used to impeach a witness who testified on his behalf at the hearing where he unsuccessfully appealed his dismissal. Although lower courts had considered the issue, it was the first time the Supreme Court had. By a 5-4 margin, the Court ruled that public employees retain their Fourth Amendment rights. Justice
Sandra Day O'Connor Sandra Day O'Connor (born March 26, 1930) is an American retired attorney and politician who served as the first female associate justice of the Supreme Court of the United States from 1981 to 2006. She was both the first woman nominated and th ...
's
plurality opinion A plurality opinion is in certain legal systems the opinion from one or more judges or justices of an appellate court which provides the rationale for the disposition of an appeal when no single opinion received the support of a majority of th ...
established an "operating realities" test for future courts to consider when public employees challenged searches during investigations, reflecting the lower
reasonable suspicion Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch; it must be based on "specif ...
standard the government had to meet as an employer. That did not establish binding
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
, since
Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
argued in a separate
concurring opinion In law, a concurring opinion is in certain legal systems a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for their deci ...
that her standard was too vague, and that the same searches which would be reasonable for a private employer were proper when conducted by their public counterparts.
Harry Blackmun Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1970 to 1994. Appointed by Republican President Richard Nixon, Blac ...
wrote for four dissenting justices that the search was clearly an investigatory one and thus a breach of the doctor's privacy. Since it could not decide how to apply that standard to Ortega's case as the record at that time did not establish whether the entry into Ortega's office had been for search purposes or not, the majority remanded the case to the district court. Eleven more years of litigation followed. At some points during it Ortega had to represent himself, and the Court itself had taken the unusual step of inviting
Joel Klein Joel Irwin Klein (born October 25, 1946) is an American lawyer and school superintendent. He was the Chancellor of the New York City Department of Education, the largest public school system in the United States, serving more than 1.1 million st ...
to argue Ortega's case before them. It went back and forth between the district and appellate courts twice. Ortega finally prevailed after a jury trial in the late 1990s, and the
Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
denied Ortega's superiors their appeal. Despite the two different standards resulting from the split five-justice majority, lower courts have generally followed O'Connor's "operational realities" test in future cases involving actual searches. Observers thought the justices might resolve the conflict the next time a similar case of public employees alleging a search violated their Fourth Amendment rights came before it. When it did, in 2010's '' Ontario v. Quon'', they declined to do so, leaving the matter open for yet another future Court.


Underlying dispute

In March 1981, Dr. Ortega, for 17 years the head of the psychiatric
residency Residency may refer to: * Domicile (law), the act of establishing or maintaining a residence in a given place ** Permanent residency, indefinite residence within a country despite not having citizenship * Residency (medicine), a stage of postgrad ...
program at
Napa State Hospital Napa State Hospital is a psychiatric hospital in Napa, California, founded in 1875. It is located along California State Route 221, the Napa- Vallejo Highway, and is one of California's five state hospitals. Napa State Hospital holds civil and for ...
, a
mental hospital Psychiatric hospitals, also known as mental health hospitals, behavioral health hospitals, are hospitals or wards specializing in the treatment of severe mental disorders, such as schizophrenia, bipolar disorder, eating disorders, dissociati ...
in
Napa, California Napa is the largest city and county seat of Napa County and a principal city of Wine Country in Northern California. Located in the North Bay region of the Bay Area, the city had a population of 77,480 as of the end of 2021. Napa is a major t ...
, purchased a new
Apple II The Apple II (stylized as ) is an 8-bit home computer and one of the world's first highly successful mass-produced microcomputer products. It was designed primarily by Steve Wozniak; Jerry Manock developed the design of Apple II's foam-m ...
computer to use in running the program. Half of the money for it had been donated by some of the residents; Ortega covered the rest. A month later, he asked Dr. Dennis O'Connor, the hospital's executive director and his superior, to sign some thank-you letters to the residents who had made contributions, and to authorize some purchase orders for
peripheral A peripheral or peripheral device is an auxiliary device used to put information into and get information out of a computer. The term ''peripheral device'' refers to all hardware components that are attached to a computer and are controlled by the ...
s and other accessories for the computer. O'Connor was not sure whether the computer had been properly donated to the hospital, and hesitated to sign the letters. Two months later, Ortega suspended a resident for failing to report for a
rotation Rotation, or spin, is the circular movement of an object around a '' central axis''. A two-dimensional rotating object has only one possible central axis and can rotate in either a clockwise or counterclockwise direction. A three-dimensional ...
. The resident complained to Dorothy Owen, the hospital's personnel director, that Ortega was retaliating against him for not only having not contributed to the purchase of the computer but advising other residents to ask him for their money back. In late July, Owen told O'Connor of the resident's complaint. O'Connor asked Richard Friday, the
hospital administrator Health administration, healthcare administration, healthcare management or hospital management is the field relating to leadership, management, and administration of public health systems, health care systems, hospitals, and hospital network ...
, to begin an investigation into the resident's allegations specifically and the purchase of the computer generally. He gave Friday and his investigative team broad authority, including permission to search Ortega's office. The hospital otherwise had no policy on such searches. O'Connor asked Ortega to take
administrative leave Administrative leave is a temporary leave from a job assignment, with pay and benefits intact. Generally, the term is reserved for employees of non-business institutions such as schools, police, and hospitals. The definition of administrative lea ...
the next day. Ortega instead received O'Connor's approval for two weeks of paid vacation, after which the administrative leave began. O'Connor told Ortega not to return to the hospital without his permission during his vacation. During the time Ortega was on vacation, Friday had the lock changed and kept the key in his own office. When Ortega's vacation ended, O'Connor sent a letter to Ortega informing him he was now on paid administrative leave, and extending the restriction on visits to the hospital. Before Ortega had received it, he returned to the hospital. Finding his office door locked and unable to open it himself, he took the computer, then in an unsecured nearby room, home to work with it there, as he had done on occasion in the past. Upon learning of this, O'Connor called the hospital police, believing that the computer was state property and thus Ortega had stolen it. At some other point during the time Ortega was on vacation and leave, a staff psychiatrist who ran a
support group In a support group, members provide each other with various types of help, usually nonprofessional and nonmaterial, for a particular shared, usually burdensome, characteristic. Members with the same issues can come together for sharing coping str ...
for residents told O'Connor about complaints of possible
sexual harassment Sexual harassment is a type of harassment involving the use of explicit or implicit sexual overtones, including the unwelcome and inappropriate promises of rewards in exchange for sexual favors. Sexual harassment includes a range of actions fro ...
on Ortega's part from two female residents. It was not clear whether this took place before or after at least one thorough, highly intrusive search of Ortega's office. Materials were removed from Ortega's office, boxed and stored when the security guard performing the inventory found it too difficult to sort out Ortega's property from the state's. On a separate visit to Ortega's office, Friday found several items—a Valentine, suggestively posed photo and inscribed book of love poetry—sent to Ortega several years earlier by a former resident. After the hospital fired Ortega in September, he appealed to the State Personnel Board. When the former resident testified on Ortega's behalf during the hearing, these items were introduced in an attempt to
impeach Impeachment is the process by which a legislative body or other legally constituted tribunal initiates charges against a public official for misconduct. It may be understood as a unique process involving both political and legal elements. In E ...
her. Owen asked Ortega after the firing if he wanted his personal possessions from his office returned. He did not. By spring of 1982 he had changed his mind. In response to another request, Asher Rubin, the deputy attorney general who had represented the state before the Personnel Board, told him he could make copies of his personal papers but could not keep the originals, nor any of his other personal property.


Litigation

Ortega retained an attorney and filed a
Section 1983 The Enforcement Act of 1871 (), also known as the Ku Klux Klan Act, Third Enforcement Act, Third Ku Klux Klan Act, Civil Rights Act of 1871, or Force Act of 1871, is an Act of the United States Congress which empowered the President to suspend ...
suit against O'Connor (who had now become director of the California Department of Mental Health) Owen, Friday, other parties and the state shortly afterwards in federal court, seeking $750,000 in compensatory and
punitive damages Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. ...
. In addition to the violation of his Fourth Amendment protections against unreasonable search and seizure, he made
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
claims for
invasion of privacy The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy. On 10 December 194 ...
and breach of covenant of good faith and fair dealings under California law. The defendants argued that they had entered Ortega's office and gone through the contents of his desk purely to
inventory Inventory (American English) or stock (British English) refers to the goods and materials that a business holds for the ultimate goal of resale, production or utilisation. Inventory management is a discipline primarily about specifying the shap ...
property and separate state-owned items from the doctor's personal possessions, which it claimed was standard practice when employees had resigned or been terminated. Both sides moved for
summary judgement may refer to: * Abstract (summary), shortening a passage or a write-up without changing its meaning but by using different words and sentences * Epitome, a summary or miniature form * Abridgement, the act of reducing a written work into a sho ...
, which Judge John P. Vukasin Jr. granted to the defendants on all claims. It found that the entry into Ortega's office had been for the purpose of securing state property for use by a successor. Ortega appealed to the
Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
. In 1985 a three-judge panel unanimously reversed the district court on the search but upheld it on the state-law tort claims. "The entry into the office seems to have been for no other purpose than to secure evidence for use in the ongoing investigation of Ortega," Judge
Dorothy Wright Nelson Dorothy Wright Nelson (born September 30, 1928) is a Senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit. Education and career Born in San Pedro, California, Wright received an Artium Baccalaureus degr ...
wrote." While the state had said that the entry to the office was not intended as a search, she noted that at the time the doctor had not yet been fired or resigned but was merely on administrative leave. Nor did this seem to have been regularly undertaken in situations where it did apply. After that finding, Wright considered whether such a warrantless search was reasonable under the Fourth Amendment. She applied the two-pronged test from the Supreme Court's 1967 ''
Katz v. United States ''Katz v. United States'', 389 U.S. 347 (1967), was a landmark decision of the U.S. Supreme Court in which the Court redefined what constitutes a "search" or "seizure" with regard to the protections of the Fourth Amendment to the U.S. Constitution ...
'' decision''
Katz v. United States ''Katz v. United States'', 389 U.S. 347 (1967), was a landmark decision of the U.S. Supreme Court in which the Court redefined what constitutes a "search" or "seizure" with regard to the protections of the Fourth Amendment to the U.S. Constitution ...
'', .
to establish whether Dr. Ortega had a
reasonable expectation of privacy Expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution. It is related to, but is not the same as, a ''right to privacy ...
over the contents of his desk and office. First, did he have a subjective expectation that they would be left undisturbed by others, and second, would that expectation be one that society would consider reasonable and respect? On the first prong, he had occupied the office for all 17 years of his employment. He kept within his desk not only personal papers and effects but confidential patient records. He had believed he had the only key, and was not aware of any other time during his employment at Napa in which his office had been entered without his permission. In '' Mancusi v. DeForte'',''Mancusi v. DeForte'', . the Supreme Court had held that an employee can have a reasonable expectation of privacy over his or her desk at work from searches by law enforcement.The Court, in that case, overturned the conviction of a
Long Island Long Island is a densely populated island in the southeastern region of the U.S. state of New York (state), New York, part of the New York metropolitan area. With over 8 million people, Long Island is the most populous island in the United Sta ...
labor union official on corruption and racketeering-related charges since the principal evidence had been taken from his desk by investigators who only had a
subpoena A subpoena (; also subpœna, supenna or subpena) or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of ...
.
Two cases from the
Third Circuit The United States Court of Appeals for the Third Circuit (in case citations, 3d Cir.) is a federal court with appellate jurisdiction over the district courts for the following districts: * District of Delaware * District of New Jersey * Easte ...
, with direct similarities to Ortega's, argued for the reasonableness of his privacy expectation. In one, the presence of sensitive and confidential documents within a deskIn that case, a member of the
Fair Lawn, New Jersey Fair Lawn is a borough in Bergen County, New Jersey, United States, and a bedroom suburb located northwest of New York City. As of the 2020 United States Census, the borough’s population was 34,940, which constituted a 7.7% increase from 32, ...
,
school board A board of education, school committee or school board is the board of directors or board of trustees of a school, local school district or an equivalent institution. The elected council determines the educational policy in a small regional are ...
had opened a
guidance counselor A school counselor is a professional who works in primary (elementary and middle) schools or secondary schools to provide academic, career, college access/affordability/admission, and social-emotional competencies to all students through a school ...
's desk drawer and found the original draft of a pseudonymously published cartoon that ridiculed the board.
was held to strengthen the privacy expectation; and in the other, the personal lock that a police officer had used for his department locker led to the suppression of a sawed-off shotgun seized by federal agents. In the latter case, the department had also lacked a formal policy on whether the lockers could be searched, as had been the case at Napa. This Wright used to distinguish it and Ortega's case from other precedents''United States v. Bunkers'', 521
F.2d The ''Federal Reporter'' () is a case law reporter in the United States that is published by West Publishing and a part of the National Reporter System. It begins with cases decided in 1880; pre-1880 cases were later retroactively compiled by W ...
br>1217
(9th Cir. 1975); ''United States v. Collins'', 349 F.2
863
( 2d Cir. 1965), '' cert''. denied, and
where warrantless searches of public employees' lockers, jackets or backpacks had been upheld due to broadly disseminated and actively implemented policies that such searches could occur at any time. "Here, Napa had never instituted surveillance or searches and had no general inspection policy that might have defeated Ortega's expectation of privacy in his office," she concluded. The appeals court ordered the district court to enter judgement in Ortega's favor on that issue and hold proceedings to fix damages. The pendent state-law claims had not been filed in a timely fashion, and the panel affirmed that part of the summary judgement.


Before the Court

The state of California's ''
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
'' petition was granted by the Supreme Court in 1985. Since he was representing himself, Ortega filed his own
brief Brief, briefs, or briefing may refer to: Documents * A letter * A briefing note * Papal brief, a papal letter less formal than a bull, sealed with the pope's signet ring or stamped with the device borne on this ring * Design brief, a type of ed ...
. The Court invited
Joel Klein Joel Irwin Klein (born October 25, 1946) is an American lawyer and school superintendent. He was the Chancellor of the New York City Department of Education, the largest public school system in the United States, serving more than 1.1 million st ...
, the future New York City Schools Chancellor then in private practice, to argue Ortega's case,. and he also filed an ''
amicus curiae An ''amicus curiae'' (; ) is an individual or organization who is not a party to a legal case, but who is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. The decision on ...
'' brief on Ortega's behalf. The appellants' brief was filed by
California Attorney General The attorney general of California is the state attorney general of the Government of California. The officer's duty is to ensure that "the laws of the state are uniformly and adequately enforced" (Constitution of California, Article V, Section ...
John Van de Kamp John Kalar Van de Kamp (February 7, 1936 – March 14, 2017) was an American politician and lawyer who served as Los Angeles County District Attorney from 1975 until 1981, and then as the 28th Attorney General of California from 1983 until 1991. ...
and several of his assistants. Solicitor General
Charles Fried Charles Anthony Fried (born April 15, 1935) is an American jurist and lawyer. He served as United States Solicitor General under President Ronald Reagan from 1985 to 1989. He is a professor at Harvard Law School and has been a visiting professor ...
filed an ''amicus'' brief on behalf of the federal government urging reversal. The
American Civil Liberties Union The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
and
American Federation of State, County and Municipal Employees The American Federation of State, County and Municipal Employees (AFSCME) is the largest trade union of public employees in the United States. It represents 1.3 million public sector employees and retirees, including health care workers, correcti ...
urged affirmance in their ''amici''.
Oral argument Oral arguments are spoken presentations to a judge or appellate court by a lawyer (or parties when representing themselves) of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also a ...
s were held in October 1986.


Petitioners' oral argument

Jeffrey T. Miller, one of Van de Kamp's deputies, argued for the petitioners. He did not deny that government employees had Fourth Amendment rights, but "the activity that took place in this case did not constitute a search within Fourth Amendment jurisprudence". He insisted that the Court should follow the district court's lead in finding that Dr. Ortega's office had been inventoried, not searched, until he was reminded that the district court had merely found the action to be a securing of the property in case Ortega returned to remove something else, and had not even used the word "inventory." It would not have been reasonable for the doctor to have imagined that no one else would or could have entered the office without his consent or knowledge in the 17 years he was employed at Napa. Likewise, a desk was a "common repository", likely to be used by many people besides the one regularly seated behind it. "It is foreseeable that a number of different people working for government, from clerical staff to supervisors to colleagues, will move into an office, that is, enter an office, open a desk for a variety of reasons." When Justice
Sandra Day O'Connor Sandra Day O'Connor (born March 26, 1930) is an American retired attorney and politician who served as the first female associate justice of the Supreme Court of the United States from 1981 to 2006. She was both the first woman nominated and th ...
challenged him as to whether employees in the private sector would have a reasonable expectation of privacy over their desks, he agreed that they might but reminded her the Fourth Amendment does not apply to private employers. He asked that the Court follow the logic of its 1985 ruling in '' New Jersey v. T. L. O.'''' New Jersey v. T. L. O.'', . in which it had held that only a reasonable belief that evidence of misconduct would be found was needed to justify a search of a student or possessions on school property during school hours. Chief Justice
William Rehnquist William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...
asked Miller if he was arguing the Fourth Amendment did not apply at all in schools. "it seems to me there is certainly language in ''T.L.O.'' against you on that point." That case, Miller responded, "had at least made the initial inquiry into whether the Fourth Amendment was applicable." The other justices were not convinced that Ortega's office had been entered for inventory purposes. They pointed to facts in the record they saw as being at odds with the state's interpretation.
Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
asked if it were possible that the Court could rule that it was an inventory but the actions taken had exceeded the scope of those necessary to accomplish that. Miller said that would be moot as there was no expectation of privacy over the desk and office. He further explained that Ortega's key may have given him a subjective expectation of privacy, but not necessarily a reasonable one. Miller admitted to
Thurgood Marshall Thurgood Marshall (July 2, 1908 – January 24, 1993) was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme Court's first African-A ...
that he did not know why the inventory could not have been done in Ortega's presence to better facilitate the sorting of property. He noted that most public agencies have an
Inspector General An inspector general is an investigative official in a civil or military organization. The plural of the term is "inspectors general". Australia The Inspector-General of Intelligence and Security (Australia) (IGIS) is an independent statutory off ...
or something similar, who "every now and then drops in on offices to see if employees have their own things in their office". When Justice
Byron White Byron "Whizzer" Raymond White (June 8, 1917 April 15, 2002) was an American professional football player and jurist who served as an associate justice of the U.S. Supreme Court from 1962 until his retirement in 1993. Born and raised in Color ...
asked if his position implied that a public agency could search its employees' desks or offices at any time of the day or night, he said yes. "It may give rise to work grievances, to state and common law tort remedies ... but it would not violate the Fourth Amendment in our view."


Respondent's oral argument

"Our argument rests on three propositions", Klein told the justices. " rst, that it is both customary and reasonable for a public employee to keep personal papers and effects in his work office and to expect that the privacy of such materials will be protected against arbitrary searches or seizures by his employer; second, that the application of the Fourth Amendment to office searches is not incompatible with the government's responsibilities as an employer." Before he could get to the third, he was challenged by Scalia, who posited a situation where he might be working late and need to retrieve a document or file. He would find it on the desk of one of his
law clerk A law clerk or a judicial clerk is a person, generally someone who provides direct counsel and assistance to a lawyer or judge by researching issues and drafting legal opinions for cases before the court. Judicial clerks often play significant ...
s, who might have gone home for the day. "Now," he asked, "have I conducted a Fourth Amendment search and seizure, and I am only immune from ... suit because it was reasonable? Klein conceded to another justice's follow-up question that it was understood that, in all offices, "our expectation is, in the evenings, when people go home, others may on the basis of need enter ... The Fourth Amendment does not apply in most situations to a routine office entry, that is, if an employer or co-worker walks into your office looking for a paper clip." However, he said, that understanding did not defeat an expectation of privacy, likening it to a hotel room, where the Court had previously held there was an expectation of privacy even though hotel staff routinely enter for janitorial purposes. Scalia asked if it would be a Fourth Amendment violation if cleaning crews were to have looked through Ortega's desk and papers. "I don't think they would be exercising government authority in that situation", Klein answered, since the cleaning crews were presumably under instructions not to do so. O'Connor asked if it would be reasonable for a supervisor to enter an office and look through a desk to "discover whatever might be appropriate for work-related wrongdoing of some kind?" As an example, she suggested, a supervisor might want to assess an employee's progress toward a deadline. Klein did not think so, since normally such matters are handled by asking the employee to produce whatever work has been completed. To highlight his argument that the intrusion into Ortega's office had been a search rather than a property inventory, he used the example of the book of poetry, which was obviously personal property. " you pick up a book of poetry you don't have to open that book to find out who sent it to him." It was suggested that perhaps he read poetry to his patients, but Klein responded that the state had not suggested that and that, even if he did the book was still undeniably personal property. He, too, compared the case with ''T.L.O.'', telling Justice White that he believed a
search warrant A search warrant is a court order that a magistrate or judge issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find. In most countries, ...
might have been necessary to enter Ortega's office in this situation. " t me just say that I think that they were looking for information to use against him to take his job away from him. He had been singled out", Klein said. " en if you take the ''T.L.O.'' standard, it is inconceivable that we could have a lower standard at the work place than we have at the school given the interests of employees and their adult age ... ere has to be reasonable suspicion when you go in to do the search that you will uncover evidence." If the state or the hospital had really wanted the right to enter employees' offices, it could have followed the example of the
Mint MiNT is Now TOS (MiNT) is a free software alternative operating system kernel for the Atari ST system and its successors. It is a multi-tasking alternative to TOS and MagiC. Together with the free system components fVDI device drivers, XaA ...
and the
Customs Service Customs is an authority or agency in a country responsible for collecting tariffs and for controlling the flow of goods, including animals, transports, personal effects, and hazardous items, into and out of a country. Traditionally, customs ...
and promulgated a regulation stating that employees' property could be subject to search.


Decision

Five months later, in March 1987, the Court handed down its decision. All nine justices agreed that public employees had Fourth Amendment protections during administrative searches in the workplace, and that routine work-related intrusions as discussed at oral argument did not constitute a violation. They differed as to whether Ortega's had been breached by the search. The five-justice majority believed it could not determine the purpose of the intrusion into Ortega's office and so remanded the case to the district court to do so. Justice O'Connor wrote for a four-justice plurality that the same
reasonable suspicion Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch; it must be based on "specif ...
standard it developed for ''T.L.O.'' was applicable to administrative searches of public employees' workspace or possessions, since the "operational realities" of a public work environment may substantially reduce or eliminate a standard expectation of privacy. In a separate
concurring opinion In law, a concurring opinion is in certain legal systems a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for their deci ...
, Justice Scalia rejected that as too vague to be useful to lower courts, and proposed instead that any search that would be reasonable for a private employer would be permissible for a public one.
Justice Blackmun Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1970 to 1994. Appointed by Republican President Richard Nixon, Blac ...
wrote for the four
dissenting Dissent is an opinion, philosophy or sentiment of non-agreement or opposition to a prevailing idea or policy enforced under the authority of a government, political party or other entity or individual. A dissenting person may be referred to as ...
justices. He believed the majority had put too much weight on the different interpretations of the intrusion by the district and appellate courts, since he felt it was clearly an investigatory search for evidence against Dr. Ortega. Also, he charged, the majority had taken his concurrence in ''T.L.O.'' out of context to support its reasonableness standard. He did not feel, as they did, that outside of special cases such as the school system that it would have been detrimental to the operations of a public agency such as the hospital to have some sort of independent review and establish
probable cause In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition or f ...
for an administrative search related to possible violations of policy.


Plurality opinion

After recounting the history of the case and the sweep of the Court's prior Fourth Amendment jurisprudence, O'Connor, joined by Chief Justice Rehnquist, Justice White, and
Justice Powell Lewis Franklin Powell Jr. (September 19, 1907 – August 25, 1998) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1972 to 1987. Born in Suffolk, Virginia, he gradua ...
, defined the boundaries of the workplace context as "those areas and items that are related to work and are generally within the employer's control." Some items that passed through the workplace were personal, and as the Court had ruled in ''Mancusi'', a reasonable expectation of privacy may exist there. " reject the contention made by the Solicitor General and petitioners that public employees can never have a reasonable expectation of privacy in their place of work," she wrote. "Individuals do not lose Fourth Amendment rights merely because they work for the government, instead of a private employer."''O'Connor v. Ortega'', , 712–17. She immediately qualified that holding. Moving from the general principle to the case at hand, O'Connor agreed that Ortega had that same reasonable expectation of privacy, but that since the record did not reflect the extent of whatever legitimate work-related reasons the hospital administrators might have had to enter the office, the Ninth Circuit should have remanded the case to the district court to determine that, as the majority was doing. Following ''T.L.O.'', she said the inquiry should not stop with determining the Fourth Amendment applied, but whether the context made the search reasonable. "We must balance the invasion of the employees' legitimate expectations of privacy against the government's need for supervision, control, and the efficient operation of the workplace."''O'Connor'', at 719–20. There was, O'Connor admitted, "surprisingly little
case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a l ...
" on the subject. That which existed did seem to support the standard she proposed for work-related searches, most notably a 1973 case from the
Seventh Circuit The United States Court of Appeals for the Seventh Circuit (in case citations, 7th Cir.) is the U.S. federal court with appellate jurisdiction over the courts in the following districts: * Central District of Illinois * Northern District of Ill ...
in which the surreptitious recording of an
Internal Revenue Service The Internal Revenue Service (IRS) is the revenue service for the United States federal government, which is responsible for collecting U.S. federal taxes and administering the Internal Revenue Code, the main body of the federal statutory ta ...
's agent's conversations at his desk by the agency's internal investigators was held to be reasonable and work-related, and a 1951 case from the
District of Columbia ) , image_skyline = , image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle, Jefferson Memorial, White House, Adams Morgan, ...
which held that although a search of the appellee's desk by local police with her government supervisor's permission was unconstitutional, a work-related search by her supervisor would not have been. She distinguished these from other cases that proposed other standards for public workplace searches by noting that those cases were either not work-related or involved criminal misconduct.''O'Connor'', 480 U.S. at 721. "In our view," O'Connor continued, She quoted from ''
Connick v. Myers ''Connick v. Myers'', 461 U.S. 138 (1983), is a United States Supreme Court decision concerning the First Amendment rights of public employees who speak on matters of possible public concern within the workplace context. It was first brought by She ...
'', an earlier case which had considered the
First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and rec ...
rights of an assistant prosecutor fired for allegedly disruptive behavior: " vernment offices could not function if every employment decision became a constitutional matter."''O'Connor'', 480 U.S. at 722. O'Connor announced that the Court would consider only the constitutionality of work-related and investigatory searches "and leave for another day inquiry into other circumstances." She found "the efficient and proper operation of the workplace" to similarly justify investigatory searches, since supervisors had different needs from
law enforcement Law enforcement is the activity of some members of government who act in an organized manner to enforce the law by discovering, deterring, rehabilitating, or punishing people who violate the rules and norms governing that society. The term en ...
. "The delay in correcting the employee misconduct caused by the need for probable cause, rather than reasonable suspicion, will be translated into tangible and often irreparable damage to the agency's work, and ultimately to the public interest." She again cited ''T.L.O.'' to justify this standard.''O'Connor'', 480 U.S. at 723–24. "Government offices are provided to employees for the sole purpose of facilitating the work of an agency. The employee may avoid exposing personal belongings at work by simply leaving them at home."''O'Connor'', 480 U.S. at 725. Lastly O'Connor found the district court's finding on
summary judgment In law, a summary judgment (also judgment as a matter of law or summary disposition) is a judgment entered by a court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes ...
that the intrusion was for the purposes of securing state property to be in error since there was a genuine dispute of fact. It followed then that the appellate court could not have made a definitive finding of fact either. The case was remanded to the district court with instructions to both determine what justified the search and seizure of Ortega's property and whether that search was reasonable in both its inception and scope.''O'Connor'', 480 U.S. at 726–29.


Scalia concurrence

Justice Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectua ...
agreed that the case should be remanded, but felt it was not helpful to call for a case-by-case assessment, since it was difficult to make practical use of. He found fault with O'Connor's comment, justifying her "operating realities" test, that some public workplaces might be "so open" as to offer no reasonable expectation of privacy. "No clue is provided as to how open 'so open' must be; much less is it suggested how police officers are to gather the facts necessary for this refined inquiry ... is so devoid of content that it produces, rather than eliminates, uncertainty in this field."''O'Connor'', 480 U.S. at 729–30 (Scalia, J., concurring). The plurality's standard could not be right if it led to a conclusion that the Fourth Amendment did not apply to a work-related entry into Ortega's office. Whether it was a supervisor or police officer entering the office, he said, only made a difference as to whether the search was reasonable, not whether the Fourth Amendment applies. When a firefighter enters a house where an alarm has gone off, he noted, "we do not ask whether the occupant has a reasonable expectation of privacy (and hence Fourth Amendment protection) vis-a-vis firemen, but rather whether—given the fact that the Fourth Amendment covers private dwellings—intrusion for the purpose of extinguishing a fire is reasonable",''O'Connor'', 480 U.S. at 730–31 (Scalia, J., concurring). citing the Court's '' Michigan v. Tyler'' ruling..That case had dealt with Fourth Amendment rights during the subsequent investigations of the fire, not the firefighters' initial entry. Scalia argued that the offices and desks of public employees were covered by the Fourth Amendment as a general matter, choosing his words to avoid the ''Katz'' rule that places exposed to public view are not covered by the Fourth Amendment since some government offices, as O'Connor had noted, were subject to unrestricted public access. "Government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private employer context—do not violate the Fourth Amendment." Since the evidence in the case did not support a summary judgement, he joined his colleagues in ordering the case remanded.''O'Connor'', at 731–32 (Scalia, J., concurring).


Dissent

At the outset of his dissent, signed by Justices Brennan,
Marshall Marshall may refer to: Places Australia * Marshall, Victoria, a suburb of Geelong, Victoria Canada * Marshall, Saskatchewan * The Marshall, a mountain in British Columbia Liberia * Marshall, Liberia Marshall Islands * Marshall Islands, an i ...
and Stevens, Justice Blackmun said "The facts of this case are simple and straightforward. Dr. Ortega had an expectation of privacy in his office, desk, and file cabinets, which were the target of a search by petitioners that can be characterized only as investigatory in nature." He disagreed with the plurality that there was anything special about a public workplace that justified a lower standard for such searches, and called the intrusion an unconstitutional search. Not only had it found what were to him clear facts in dispute,In his footnote 3, Blackmun accused the plurality of letting its opinion on this issue be shaped by its members' antipathy to public workers. it had nevertheless chosen to derive a standard from a case it had remanded to resolve that dispute. "As a result, the standard that emerges makes reasonable almost any workplace search by a public employer."''O'Connor'', 480 U.S. at 732–34 (Blackmun, J., dissenting). As to the facts, Blackmun contended the plurality had been confused, partially relying on Ortega's removal of the computer as a reason to consider the intrusion reasonable when, he noted, the record itself had testimony from Friday that this had ''not'' triggered the search. Dr. O'Connor had further admitted in his deposition that there was an investigatory interest in the contents of Ortega's office. The searchers had also consulted with a lawyer and waited until the evening. "The search in question stemmed neither from a Hospital policy nor from a practice of routine entrances into Dr. Ortega's office", he wrote. "It was plainly exceptional and investigatory in nature. Accordingly, there is no significant factual dispute in this case."''O'Connor'', 480 U.S. at 735–36. Blackmun began his disagreement with the plurality's embrace of the
reasonable suspicion Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch; it must be based on "specif ...
standard by agreeing with it that government employees retained their Fourth Amendment rights at work. He accepted as well that routine work-related intrusions might diminish their expectation of privacy. He did not accept that such intrusions would eliminate it.''O'Connor'', 480 U.S. at 737. The Court had always recognized Fourth Amendment rights in offices, he said, despite the understanding that it would be visited by others. The plurality did recognize, he conceded, another point: that a search unreasonable in one context might be reasonable in another.In his footnote 2, Blackmun responded to Scalia's criticism by quoting from other opinions, most by his fellow dissenters, to the effect that a case-by-case analysis might be the only way to create effective Fourth Amendment jurisprudence But Thus he thought it especially important that the context of the search be considered.''O'Connor'', 480 U.S. at 739–40. Justice Blackmun reminded the plurality that his concurring opinion in ''T.L.O.'', from which Justice O'Connor had drawn support for her "special need" argument, was meant to address an error he believed that case's plurality had made. The balancing test he had proposed there was not needed here, since " ere was no special practical need that might have justified dispensing with the warrant and probable cause requirements." The time and effort required to get a warrant, he said, would not have detracted from the hospital's mission of providing quality patient care and educating new psychiatrists. An independent review by a
magistrate The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a '' magistratus'' was one of the highest ranking government officers, and possessed both judici ...
might, he added, have helped make the search not only constitutional but more efficient, since they would have been forced to list and justify every aspect of the office and desk they wished to look through.''O'Connor'', 480 U.S. at 741–42. And even if there were a special need, the balancing test would still not be necessary. Despite claiming to have drawn well-defined standards from the facts of the case, the two categories of searches it had approved as not requiring warrants, they were, Blackmun felt, so broadly drawn that "it is difficult to imagine a search that would not fit into one or the other ..."''O'Connor'', 480 U.S. at 745–46.


Reaction

The case was closely watched by the parties to '' National Treasury Employees Union v. Von Raab'', then on appeal to the
Fifth Circuit The United States Court of Appeals for the Fifth Circuit (in case citations, 5th Cir.) is a United States federal court, federal court with appellate jurisdiction over the United States district court, district courts in the following United Stat ...
and seen as likely to reach the Supreme Court (as it eventually did). It involved a challenge by employees of the
United States Customs Service The United States Customs Service was the very first federal law enforcement agency of the U.S. federal government. Established on July 31, 1789, it collected import tariffs, performed other selected border security duties, as well as conducted c ...
to a proposal by the agency that employees in certain positions submit to mandatory
drug testing A drug test is a technical analysis of a biological specimen, for example urine, hair, blood, breath, sweat, or oral fluid/saliva—to determine the presence or absence of specified parent drugs or their metabolites. Major applications of dr ...
. The employees' union had sued to block it, arguing it was a violation of their Fourth Amendment protections. The union and the
American Civil Liberties Union The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
, which had also filed an ''amicus'' brief urging affirmance in ''O'Connor'', praised the court's holding that public employees had Fourth Amendment rights in the workplace. They said it made their arguments in ''Von Raab'' stronger. The
Justice Department A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
maintained that it still believed the Customs Service's drug testing requirement would be held constitutional.


Disposition

Within two months of the Court's decision the Ninth Circuit formally remanded it to the district court. A new trial was held five years later, in 1992, again before Judge Vukasin. Dr. Ortega once again had to represent himself, and when the defense failed to receive his witness list the court sanctioned him by refusing to allow him to present them. As a result, he was largely limited to cross-examining the opposing witnesses, and when the defense was done presenting its case the court granted its motion for a
directed verdict In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. In a bench trial, the judge's decision near the end of the trial is simply referred to as a finding. In England and Wales, ...
. Ortega appealed to the Ninth Circuit again, retaining his lawyer to do so. He challenged not only the sanctioning but the trial court's refusal to let him include Asher Rubin as a defendant. In late 1994 a three-judge panel heard the case; it announced its decision five months later. Circuit judge
Diarmuid O'Scannlain Diarmuid Fionntain O'Scannlain ( ; born March 28, 1937) is a Senior Status, Senior United States federal judge, United States circuit judge of the United States Court of Appeals for the Ninth Circuit. His chambers are located in Portland, Oregon, ...
wrote for a unanimous panel that the sanctions, while within limits of judicial discretion, had so adversely affected Ortega's case that the verdict was tainted. Reduced to merely cross-examining opposing witnesses, he could not present his own case-in-chief. And, further, they were unjustified as the trial record included a letter from Ortega to Paul Hammerness, the assistant attorney general handling the case, referring to "the enclosed witness list", that had been stamped as received by the court in November 1992. "The court appears to have overlooked this evidence of Dr. Ortega's compliance", O'Scannlain wrote. "Dr. Ortega's compliance is not negated by the fact that opposing counsel failed to receive the list." Therefore, the sanctions against his witnesses had clearly been erroneous. The panel then affirmed the district court on its denial of the additional defendant, as the district court that had first heard the case dismissed that defendant on
prosecutorial immunity In United States law, absolute immunity is a type of sovereign immunity for government officials that confers complete immunity from criminal prosecution and suits for damages, so long as officials are acting within the scope of their duties. The Su ...
grounds. Had Ortega wished to challenge that holding, the panel said, he had to have done so on his original appeal to the Ninth Circuit. On remand, O'Connor and Friday, the only defendants left, changed their strategy and asserted
qualified immunity In the United States, qualified immunity is a legal principle that grants government officials performing discretionary (optional) functions immunity from civil suits unless the plaintiff shows that the official violated "clearly established statu ...
,
Qualified immunity In the United States, qualified immunity is a legal principle that grants government officials performing discretionary (optional) functions immunity from civil suits unless the plaintiff shows that the official violated "clearly established statu ...
bars suits against those acting under
color of law Color (American English) or colour (British English) is the visual perceptual property deriving from the spectrum of light interacting with the photoreceptor cells of the eyes. Color categories and physical specifications of color are associ ...
for actions that might have been illegal, or were later prohibited, but for which there was a lack of settled law at the time.
for the first time, dropping their claim that the need to secure or inventory state property justified their intrusion. Instead, they said, the claims of misconduct, particularly the alleged
sexual harassment Sexual harassment is a type of harassment involving the use of explicit or implicit sexual overtones, including the unwelcome and inappropriate promises of rewards in exchange for sexual favors. Sexual harassment includes a range of actions fro ...
, made it necessary. During pretrial motions, Judge
Marilyn Hall Patel Marilyn Hall Patel (born 1938) is a former United States federal judge, United States district judge of the United States District Court for the Northern District of California. Patel is Indian-American, hailing from the famous Mumbai Patel famil ...
, who took over the case since Vukasin had died, barred the use of qualified immunity and ruled that sexual harassment could not have justified the search. As a result, both parties agreed not to introduce the book of poetry, photo and Valentine. A jury found for Ortega on all his claims. It awarded him $376,000 in compensatory damages, and $35,000 and $25,000 respectively against O'Connor and Friday respectively. Afterward, the district court awarded almost $32,000 in attorney's fees.
Graham v. Ortega
' (Cal. Ct. App.) (unpublished).
O'Connor and Friday appealed. A three-judge panel, including two of the judges who had been on the 1985 panel, found Patel's rulings on qualified immunity and the sexual harassment claims worthy of consideration.
Stephen Reinhardt Stephen Roy Reinhardt (born Stephen Roy Shapiro; March 27, 1931 – March 29, 2018) was a United States circuit judge of the United States Court of Appeals for the Ninth Circuit, with chambers in Los Angeles, California. He was the last federal ...
, one of those original judges, noted that Judge Vukasin had rejected the qualified immunuity defense at the first trial and that the
jury instructions Jury instructions, directions to the jury, or judge's charge are legal rules that jurors should follow when deciding a case. They are a type of jury control procedure to support a fair trial. Description Jury instructions are the set of legal ...
Patel and both sides had approved made such a defense possible even if the exact words "qualified immunity" were not used. Nor were the defendants correct in arguing that there was no settled law before the Supreme Court's ruling. " was clearly established in 1981 that, in the absence of an accepted practice or regulation to the contrary, government employees such as Dr. Ortega had a reasonable expectation of privacy in their private offices, desks, and file cabinets, thereby triggering the protections of the Fourth Amendment with regard to searches and seizures", Reinhardt wrote. He quoted explicit language to that effect from the Supreme Court's 1966 holding in '' Hoffa v. United States''. and noted the Supreme Court plurality's citation of existing lower-court holdings saying the same thing. Even if it had not been, it was not "reasonable under the circumstances", as ''
Terry v. Ohio ''Terry v. Ohio'', 392 U.S. 1 (1968), was a landmark U.S. Supreme Court decision in which the Court ruled that it is constitutional for American police to "stop and frisk" a person they reasonably suspect to be armed and involved in a crime. Sp ...
''. required. O'Connor and Friday had argued that, by denying them the opportunity to raise the sexual harassment claims as a justification for the search, Patel had improperly granted what amounted to ''
sua sponte In law, ''sua sponte'' (Latin: "of his, her, its or their own accord") or ''suo motu'' ("on its own motion") describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken wi ...
'' partial summary judgement against them. Reinhardt countered that they had had adequate time to develop their defense and so the judge was "procedurally free" to do that. He turned to whether such a ruling was justified and not an abuse of discretion. Even if he resolved an issue of disputed fact in their favor and assumed that O'Connor and Friday knew of the sexual harassment allegations before they went into Ortega's office, the allegations themselves were vague, and one of them was ten years old. Thus, he continued, they did not create a reasonable suspicion that he was harassing residents, and even if they did they could not have reasonably established a likelihood that evidence supporting them would be found there. "The search was, at best, a general and unbounded pursuit of anything that might tend to indicate any sort of malfeasance—a search that is almost by definition, unreasonable." It had also been properly excluded since its prejudicial value outweighed its probative value. "It is now seventeen years since the search of Dr. Ortega's office occurred and his most personal letters and possessions were examined and seized. It is time to bring this matter to a conclusion", wrote Reinhardt. He dismissed the remaining grounds for appeal as meritless, and the panel unanimously upheld the district court. The appellate decision was not further appealed. After the state paid his claim, amounting to over $700,000 with
interest In finance and economics, interest is payment from a borrower or deposit-taking financial institution to a lender or depositor of an amount above repayment of the principal sum (that is, the amount borrowed), at a particular rate. It is distinct ...
, Dr. Ortega was sued by one of his former attorneys for unpaid bills. The two settled the claim in
arbitration Arbitration is a form of alternative dispute resolution (ADR) that resolves disputes outside the judiciary courts. The dispute will be decided by one or more persons (the 'arbitrators', 'arbiters' or 'arbitral tribunal'), which renders the ' ...
, but after Ortega refused to comply, the attorney sued him and won an adjustment to the arbitration award correcting some errors made in calculating the interest rate. A state appellate court upheld the trial court verdict in 2001, saying Ortega's "often rambling and incoherent narratives" in briefs he wrote himself left them with little in the way of substantive legal argument. Ortega died in 2009.


Subsequent jurisprudence

The first case after ''O'Connor'' to involve the Fourth Amendment rights of government employees at work was, as expected, '' National Treasury Employees Union v. Von Raab''. A 5-4 majority held that the urine testing the
Customs Service Customs is an authority or agency in a country responsible for collecting tariffs and for controlling the flow of goods, including animals, transports, personal effects, and hazardous items, into and out of a country. Traditionally, customs ...
proposed for internal promotion to positions involving
drug interdiction The war on drugs is a global campaign, led by the United States federal government, of drug prohibition, military aid, and military intervention, with the aim of reducing the illegal drug trade in the United States.Cockburn and St. Clair, 199 ...
, carrying firearms or handling classified material was reasonable since it was "not designed to serve the ordinary needs of law enforcement."'' National Treasury Employees Union v. Von Raab'', . Scalia, in a dissent joined by Stevens, called the program "a kind of immolation of privacy and human dignity in symbolic opposition to drug use". The Customs Service, he said, had not introduced "real evidence of a real problem that will be solved by urine testing."''Von Raab'', 489 U.S. at 681, Scalia, J., dissenting. Later, when turning down a 1997 challenge by employees of
Puerto Rico Telephone Claro Puerto Rico is one of the largest telecommunications services company in Puerto Rico. It is headquartered in Guaynabo, Puerto Rico, and has operated for almost a century offering voice, data, long distance, broadband, directory publishing ...
to a proposed
video surveillance Closed-circuit television (CCTV), also known as video surveillance, is the use of video cameras to transmit a signal to a specific place, on a limited set of monitors. It differs from broadcast television in that the signal is not openly tr ...
plan, Judge
Bruce M. Selya Bruce Marshall Selya (born May 27, 1934) is a Senior United States circuit judge of the United States Court of Appeals for the First Circuit and former chief judge of the United States Foreign Intelligence Surveillance Court of Review who is kn ...
of the
First Circuit The United States Court of Appeals for the First Circuit (in case citations, 1st Cir.) is a federal court with appellate jurisdiction over the district courts in the following districts: * District of Maine * District of Massachusetts * ...
called ''O'Connor'' " e watershed case in this enclave of Fourth Amendment jurisprudence". His opinion surveyed a number of other district and circuit cases considering the "operating realities" of public workplaces to establish whether a legitimate expectation of privacy existed. A key issue was whether the workplace or portion in question was reserved for the employee's personal use. A judge in the District of Kansas had granted summary judgement to
Johnson County Community College Johnson County Community College (JCCC) is a public community college in Overland Park, Kansas, which is in Johnson County. History In 1963, Johnson County Commissioners, recognizing the emerging community college movement and seeking to acco ...
against its security guards who challenged its video surveillance of their locker room by noting that the locker area under view was not exclusive to any of them. This distinguished it from the
Drug Enforcement Administration The Drug Enforcement Administration (DEA; ) is a Federal law enforcement in the United States, United States federal law enforcement agency under the U.S. Department of Justice tasked with combating drug trafficking and distribution within th ...
's surreptitious videotaping of two agents convicted of illegal
wiretapping Telephone tapping (also wire tapping or wiretapping in American English) is the monitoring of telephone and Internet-based conversations by a third party, often by covert means. The wire tap received its name because, historically, the monitorin ...
, where the Ninth Circuit suppressed the videos because it found the agents had exclusive use of their offices. In a New York case that echoed Scalia's questions to Klein at oral argument, the
Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate jur ...
found it reasonable for a judge to have court officers seize the contents of his just-fired law clerk's desk since the relationship between the two required free and complete access to each other's papers. As in cases preceding ''O'Connor'', a workplace policy on searches has been held to defeat or diminish expectations of privacy. The Ninth Circuit upheld a civilian engineer's discharge from the Naval Reserve was upheld on the grounds that regular workplace searches removed any expectation of privacy over documents revealing his
bisexuality Bisexuality is a romantic or sexual attraction or behavior toward both males and females, or to more than one gender. It may also be defined to include romantic or sexual attraction to people regardless of their sex or gender identity, whic ...
. An unenforced or absent policy has been held to create a legitimate expectation.


''Ontario v. Quon''

As Ortega's dispute with his lawyer was coming to an end, elsewhere in California the events were unfolding that would lead to the next case where the Court would consider the Fourth Amendment rights of public employees during administrative investigations. In 2000 the city of
Ontario Ontario ( ; ) is one of the thirteen provinces and territories of Canada.Ontario is located in the geographic eastern half of Canada, but it has historically and politically been considered to be part of Central Canada. Located in Central Ca ...
purchased 20 alphanumeric pagers for its police department
SWAT In the United States, a SWAT team (special weapons and tactics, originally special weapons assault team) is a police tactical unit that uses specialized or military equipment and tactics. Although they were first created in the 1960s to ...
team to carry on and off-duty. A department policy, never put in writing, said that "light personal use" was permitted but that the pager messages could be audited at any time. Several officers routinely exceeded the monthly
character Character or Characters may refer to: Arts, entertainment, and media Literature * ''Character'' (novel), a 1936 Dutch novel by Ferdinand Bordewijk * ''Characters'' (Theophrastus), a classical Greek set of character sketches attributed to The ...
limit. The lieutenant in charge of the pagers at first allowed them to reimburse the city for the overage fees in exchange for not auditing the messages. Later, when he was "tired of being a bill collector", he and his superiors decided to audit the
text message Text messaging, or texting, is the act of composing and sending electronic messages, typically consisting of alphabetic and numeric characters, between two or more users of mobile devices, desktops/ laptops, or another type of compatible comput ...
s to see if the character limit was too low. Transcripts of the pager messages, redacted to include those sent only during work hours, showed that many of them were not work-related, and some were sexually explicit. Two officers were disciplined. Afterwards, they sued the superior officers, the department, the city and the pager provider for violation of the
Stored Communications Act The Stored Communications Act (SCA, codified at 18 U.S.C. Chapter 121 §§ 2701–2712) is a law that addresses voluntary and compelled disclosure of "stored wire and electronic communications and transactional records" held by third-party i ...
and their Fourth Amendment rights. The district court held a jury trial, which determined the audit was work-related, and it ruled for the defendants. On appeal the Ninth Circuit reversed, calling the audit an unreasonable search.', ( 2008). After being denied their petition for an ''
en banc In law, an en banc session (; French for "in bench"; also known as ''in banc'', ''in banco'' or ''in bank'') is a session in which a case is heard before all the judges of a court (before the entire bench) rather than by one judge or a smaller ...
'' rehearing, the defendants successfully petitioned the Supreme Court for ''
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
''.; U.S. Supreme Court. The Court would only consider the Fourth Amendment claim, so the wireless provider was dropped as a petitioner there. The case received much attention since it also was the first time the Court had considered Fourth Amendment rights in the rapidly expanding area of electronic telecommunications. Only Scalia and Stevens remained from the ''O'Connor'' court. As a result, it was also seen as a possible chance to resolve the conflict between the plurality's "operating realities" standard and Scalia's. In June 2010, the Court unanimously upheld the search. Instead of choosing one of the ''O'Connor'' standards, it applied them both.
Anthony Kennedy Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Presid ...
wrote for a seven-justice
majority A majority, also called a simple majority or absolute majority to distinguish it from #Related terms, related terms, is more than half of the total.Dictionary definitions of ''majority'' aMerriam-Webster

Analysis and commentary

When considering what approach the Court would take in ''Quon'',
George Washington University law professor
Orin Kerr Orin Samuel Kerr (born June 2, 1971) is an American legal scholar and professor of law at the UC Berkeley School of Law."Faculty , UC Berkeley School of Law"Orin Kerr faculty profile/ref> He is known as a scholar in the subjects of computer crim ...
, a Fourth Amendment scholar, noted that courts have generally used the plurality standard from ''O'Connor''. "Exactly how you get there is sort of tricky, though", he commented. "So courts have mostly just figured that four Justices is more than one and that they should follow the analysis in the concurring opinion." O'Connor biographer Ann Cary McFeatters writes that her and Scalia's separate opinions in this case were the first of many clashes between the two justices in their joint tenure on the Court. "It would not be the last time Scalia went after her with verbal venom. It would not be the last time his doctrinaire certitude conflicted with her case-by-case approach."


Notes


See also

*
List of United States Supreme Court cases, volume 480 This is a list of all the United States Supreme Court cases from volume 480 of the ''United States Reports The ''United States Reports'' () are the official record ( law reports) of the Supreme Court of the United States. They include rulings, ...
*
List of United States Supreme Court cases by the Rehnquist Court This is a partial chronological list of cases decided by the United States Supreme Court during the Rehnquist Court, the tenure of Chief Justice William Rehnquist from September 26, 1986, through September 3, 2005. The cases are listed chronolo ...
* Special needs exception


References


External links

* {{US4thAmendment, warrantexceptions, state=expanded United States Supreme Court cases United States Supreme Court cases of the Rehnquist Court United States Court of Appeals for the Ninth Circuit cases United States Fourth Amendment case law United States public employment case law 1987 in United States case law Search and seizure case law Napa, California