This encounter is becoming more and more common in today’s public safety employee administrative investigations. Can you order your employee to produce and assist in discovery of materials that might be on his/her personal cell phone or smart device? The basic answer is yes; subject to certain conditions.
What are some of the kinds of public safety administrative investigations where the need to get into an employee’s personal cell phone/smart device have recently occurred?
- SRO sexting with students
- Correctional officer making contacts with current and prior inmates
- A Chief of Police sending photos of his ‘junk’ to female subordinates
- Proof of disobeying protective/no-contact administrative orders in domestic related incidents
- Investigators making sexual contact with crime victims
- Revenge porn between agency employees
- Abuse of sick leave
- Abuse of paid detail work
- Accessing/participating in homophobic, racist activity websites
- Crime scene photographs shown to others or ending up on the internet
- Neglect of duty by failing to be available for calls for service
The first consideration is what type of investigation are you conducting? If it’s a criminal investigation you better get a warrant. Even if the employee were to ‘consent’ to the search in a criminal investigation, its evidentiary potential will be severely compromised. If the purpose for your investigation is to determine whether the employee violated a workplace rule violation, you have very good standing to order the device’s production and the cooperation of the employee in its discovery. However even then the search purpose and scope must be reasonable.
There are many cases that give us a fairly clear indication of reasonable directions for our investigations and written policy. The guiding case is O’Conner v Ortega, 480 US 709 (1987). This concerned a work-related misconduct/rule violation and issues of the employee’s reasonable expectation of privacy. The Court’s resultant two prong test is most important: (1) the search was justified at inception based upon reasonable suspicion and (2) the search was reasonable in scope. The Court recognized that some of these types of searches, particularly for public employers, were “special needs” and needed no warrant and the employee’s expectation would be weighed against the interests of the employer. This expectation of privacy was earlier addressed in Katz v US, 389 US 347 (1967). That case said that the employee exhibited an actual expectation of privacy and it was one that society was prepared to recognize as being reasonable.
The US Supreme Court again addressed this issue specifically with law enforcement in City of Ontario v Quon, 2010 LEXIS 4972. This dealt with an agency smart device issued to its SWAT team. The agency was concerned that officers were not heeding their request to use the device only for official purposes. The agency received text messaging information for one month’s usage from the provider, redacted the content limiting it to only duty hours, and found that Sgt. Quon violated the agency’s rule on usage. The Court concluded this met the O’Conner two-part test and was a special needs search. The Court also acknowledged this was a new, emerging field and wanted to proceed slowly.
A case out of the St. Louis area gives us very specific guidance. The Court in Manasco v Bd. Of Police Commissioners, 2011 US Dist. LEXIS 157310, addressed the issue of the police agency’s order that a member turn over a personal cell phone. This officer was one of the team that fatally shot a fugitive suspect. A photo of the bullet riddled body ended up on YouTube. The officer contended that the phone was his wife’s and the union sought to have the court prohibit the order. The court refused and assumed that the officer had some degree of expectation of privacy, but the agency’s order was reasonable under the circumstances. The court further acknowledged that the officer knew he violated a policy for the unauthorized use of the phone at a crime scene even though there was no specific written policy. In this case the agency’s order to the officer was specific in what it was looking for and the exact time periods.
A more recent police case further highlights the courts’ concerns. In Larios v Lunardi, WL 6679874 (E.D. Cal. 2016) the CHP was conducting an investigation of one of its members who was assigned to a multi-agency drug task force. The agency was searching for all ‘work product data.’ While the officer believed it was also for some criminal investigative purpose, he eventually gave up his personal cell phone. The agency made two calls on the phone and downloaded ALL data from this phone. The court ruled that this was “excessively intrusive.”
“To be sure, if the government’s argument is taken to its logical conclusion, permissively keeping work files at home would permit the government to search an employee’s house. Certainly employees have a legitimate expectation of privacy in their homes, and their interest in the contents of their cell phones is not materially different. In fact, ‘a cell phone search’ would typically expose to the government far more than the most exhaustive search of a house. A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form – unless the phone is.’ Riley v California…” Taken from Larios case
Considering these cases and the continuing issues we are and will be confronting, the following are suggestions for your agency to consider in drafting a written policy and methods for production of specifically personal cell or smart phone devices during an administrative investigation.
“This agency recognizes that employees are allowed to use personal cell phones and other smart devices during work hours. This use should be consistent with agency policies and procedures and should not be used in a manner to interfere with the employee’s job performance or service to our community.
“Employees should be aware that these devices might be subpoenaed in civil or criminal matters.
“This agency also advises all employees that during an administrative investigation regarding allegations of workplace rule violations s/he is required to assist in the production of and data retrieval from any device that might reasonably contain evidence of a workplace rule violation. This could have occurred both on and off the job and the employee may be either the target of or witness to the allegation. If a device is reasonably believed to contain evidence of a workplace rule violation, it does not matter in whose name to device might be registered.
“The procedures to be used by administrative investigators if evidence of a workplace rule violation is reasonably suspected to be contained on a personal cell phone or similar device:
- The investigator will seek approval for this type of search from his/her supervisor or person designated by the agency;
- The investigator will provide written notice to the employee of the specific rule violation alleged and the specific information and period of time sought in this device data retrieval and order the employee to comply;
- If the information sought is in the possession of the device carrier, the employee will be ordered to agree to retrieval by the carrier;
- If practicable, the examination should be conducted consistent with current forensic standards preferably by a trained examiner; and
- Whenever practicable, any review of the data will be done in the presence of the employee.”