Disciplinary Proceedings: How to Get Proposed Action To Stand Up
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Disciplinary Proceedings: How to Get Proposed Action To Stand Up
- 1. Disciplinary Proceedings HOW TO GET PROPOSED ACTION TO STAND UP PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 2. Overview PUBLIC POLICIES BEHIND DISCIPLINE GOALS DURING THE DISCIPLINE PROCESS PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 3. How to conduct the investigation PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 4. Be prompt PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP Why?
- 5. It is the law PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP “Harassment of an employee … shall be unlawful if the entity … knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” FEHA, Cal. Gov. Code section 12940, subdivision (j)(1).
- 6. PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP What happens if I am not prompt?
- 7. PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP Who saw what happened? Larry, Moe and Curly Joe. I will get to them when I finish these other things
- 8. PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP May I speak with Larry? He retired last week. 30 days later … May I speak with Moe? He went out on baby bonding leave yesterday.
- 9. PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP May I speak with Curly Joe? Hello. Were you at a meeting in Mary’s office on 1/23? I have no idea. I can’t remember what I had for breakfast yesterday.
- 10. Rules about compelled statements Q: Did you take the money from the cash register? A: Yes. Q: Did you hide it under your mattress? A: Yes. Q: Did you take it out later and purchase drugs with it? A: Yes. PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 11. Respect privacy PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP “(1) the nature of any intrusion upon reasonable expectations of privacy, and (2) the offensiveness or seriousness of the intrusion, including any justification and other relevant interests.” Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (2009).
- 12. PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 13. PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 14. PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 15. PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 16. PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 17. Interview all the witnesses PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP Bob, you are a @#$!^. Bob W3 W5 W4W2 W1 SOI
- 18. PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP What did you hear? W1: SOI said Bob was an a_h_ W2: SOI said Bob was an a_h_ W3: SOI said Bob was an a_h_ W5: SOI said Bob was an a_h_ What did you hear? What did you hear? What did you hear? W4 is in the Needles office. These four all agree. I don’t need to go all the way out there.
- 19. PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP Sheriff’s Station, Needles, CA I wonder why nobody called me. I recorded the meeting Bob, you are an ace in the hole W4
- 20. Skelly Proceedings PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 21. Impact of mandatory leave statutes •FMLA •CFRA •PDL •ADA PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 22. Writing the Skelly letter PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 23. Skelly hearing PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 24. Record or not? PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 25. Order of imposition •Precise policies or rules violated •Full description of acts that constituted violation PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 26. Firefighters and Peace Officers PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 27. Public Safety Officers Procedural Bill of Rights Act PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP “When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions. For the purpose of this chapter, punitive action means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.”
- 28. Firefighters Procedural Bill of Rights Act PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP “When any firefighter is under investigation and subjected to interrogation by his or her commanding officer, or any other member designated by the employing department or licensing or certifying agency, that could lead to punitive action, the interrogation shall be conducted under the following conditions” “‘Punitive action’ means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.”
- 29. When does normal course of duty become under investigation? PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 30. Putting on the case at the Civil Service Commission PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 31. What to expect from the hearing officer PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 32. Five key points to remember about the hearing officer 1. Formal v. Informal 2. Expect stipulations 3. Expect familiarity with rules 4. Efficiency 5. Bias PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 33. Evidentiary concerns and introduction of exhibits and other evidence PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 34. Principal Considerations •Relevance •Foundation PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 35. Types of evidence PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP Writings Testimony Judicial Notice Stipulations
- 36. Writings and other documents •Evidence Code Definition •Authentication PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 37. Testimony •Direct examination •Cross examination PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 38. Cross-Examination 10 Commandments 1. Be brief. 2. Short questions, plain words. 3. Always ask leading questions. 4. Don’t ask a question to which you do not know the answer. 5. Listen to the witness’ answers. 6. Don’t quarrel with the witness. 7. Don’t allow the witness to repeat his direct testimony. 8. Don’t permit the witness to explain his answers. 9. Don’t ask the “one question too many.” 10. Save the ultimate point of your cross for summation. PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 39. PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 40. Judicial notice •Mandatory •Permissive PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 41. Stipulation •Anything Parties Agree To •No Further Testimony or Other Evidence Needed •Recite Stipulation Accurately PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
- 42. Closing Argument v. Closing Brief PRESENTED BY GUTIERREZ, PRECIADO & HOUSE, LLP
Editor's Notes
- Start the investigation immediately Interview all the witnesses Obtain narratives, don’t confirm assumptions Fifth Amendment compelled statements Privacy
- Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704 [88 Cal.Rptr.3d 590, 199 P.3d 1125]. Public defender’s dismissal based, in part, on refusal to answer questions, upheld. He was specifically advised that statements could not be used against him in a criminal proceeding. It is unclear whether such a warning is constitutionally required for most employees. For peace officers, Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822 [221 Cal. Rptr. 529, 710 P.2d 329] says that the Public Safety Officers Procedural Bill of Rights Act requires a specific advisement that the statements may not be used in subsequent criminal proceedings. See Gov. Code, § 3303(e). The Firefighters statute says: “The firefighter under interrogation shall not be subjected to offensive language or threatened with punitive action. A promise of reward shall not be made as an inducement to answering any question. The employer shall provide to, and obtain from, an employee a formal grant of immunity from criminal prosecution, in writing, before the employee may be compelled to respond to incriminating questions in an interrogation. Subject to that grant of immunity, a firefighter refusing to respond to questions or submit to interrogations shall be informed that the failure to answer questions directly related to the investigation or interrogation may result in punitive action.” Gov. Code, § 3253(e)(1).
- On June 20, 2000, Greenberg filed this action against Hospital, Schapper, and Weeks, alleging the following facts: In June 1999, Greenberg complained to Hospital regarding her concerns about Weeks's mismanagement of the nursing staff and Schapper's refusal to reprimand Weeks regarding her failings. Greenberg believed word of her complaint reached Weeks and Schapper, who then decided to terminate her. During Greenberg's tenure as Quality Assurance Manager, Greenberg forwarded to Weeks reports of deficiencies in patient care and nursing practices. Weeks suppressed these reports, in order to avoid the appearance of problems in her department. In July 1999, a nurse administered medication to the wrong patient, resulting in a serious adverse reaction. Greenberg prepared an incident report regarding [4] the error and "discussed [it] repeatedly with various staff at the hospital[, which] resulted in the matter receiving more attention than [Schapper] or [Weeks] wanted or were comfortable with." Greenberg believed she was terminated as a result of voicing these concerns. Additionally, Greenberg alleged that Weeks was so concerned with suppressing Greenberg's reports of improprieties, Weeks surreptitiously entered Greenberg's office to search Greenberg's desk, computer, filing cabinet, and purse. B. Invasion of Privacy Greenberg's final cause of action is against Weeks for invasion of privacy, for searching her desk, computer, files and purse. As we have discussed, Greenberg's admission that Weeks had a right to search her desk, computer, and files defeats her cause of action with respect to the search of these items. We reach a different result with respect to the search of Greenberg's purse. In moving for summary judgment, Weeks introduced her own declaration that she had never searched Greenberg's personal belongings. However, Weeks also introduced Greenberg's deposition testimony that she had been told by Lozano that he had seen Weeks search Greenberg's purse. Thus, Weeks introduced evidence raising a triable issue of fact as to whether she had searched Greenberg's purse. Greenberg was therefore not required to introduce any evidence to refute it. GREENBERG v. ALTA HEALTHCARE SYS., 2004 Cal. App. Unpub. LEXIS 3937, 42, 2004 WL 859185 (Cal. App. 2d Dist. Apr. 22, 2004).
- Syllabus [746] Petitioner Ontario (hereinafter City) acquired alphanumeric pagers able to send and receive text messages. Its contract with its service provider, Arch Wireless, provided for a monthly limit on the number of characters each pager could send or receive, and specified that usage exceeding that number would result in an additional fee. The City issued the pagers to respondent Quon and other officers in its police department (OPD), also a petitioner here. When Quon and others exceeded their monthly character limits for several months running, petitioner Scharf, OPD's chief, sought to determine whether the existing limit was too low, i.e., whether the officers had to pay fees for sending work-related messages or, conversely, whether the overages were for personal messages. After Arch Wireless provided transcripts of Quon's and another employee's August and September 2002 text messages, it was discovered that many of Quon's messages were not work related, and some were sexually explicit. Scharf referred the matter to OPD's internal affairs division. The investigating officer used Quon's work schedule to redact from his transcript any messages he sent while off duty, but the transcript showed that few of his on-duty messages related to police business. Quon was disciplined for violating OPD rules. He and the other respondents--each of whom had exchanged text messages with Quon during August and September--filed this suit, alleging, inter alia, that petitioners violated their Fourth Amendment rights and the federal Stored Communications Act (SCA) by obtaining and reviewing the transcript of Quon's pager messages, and that Arch Wireless violated the SCA by giving the City the transcript. The District Court denied respondents summary judgment on the constitutional claims, relying on the plurality opinion in O'Connor v. Ortega, 480 U.S. 709, 107 S. Ct. 1492, 94 L. Ed. 2d 714, to determine that Quon had a reasonable expectation of privacy in the content of his messages. Whether the audit was nonetheless reasonable, the court concluded, turned on whether Scharf used it for the improper purpose of determining if Quon was using his pager to waste time, or for the legitimate purpose of determining the efficacy of existing character limits to ensure that officers were not paying hidden [747] work-related costs. After the jury concluded that Scharf's intent was legitimate, the court granted petitioners summary judgment on the ground they did not violate the Fourth Amendment. The Ninth Circuit reversed. Although it agreed that Quon had a reasonable expectation of privacy in his text messages, the appeals court concluded that the search was not reasonable even though it was conducted on a legitimate, work-related rationale. The opinion pointed to a host of means less intrusive than the audit that Scharf could have used. The court further concluded that Arch Wireless had violated the SCA by giving the City the transcript. Held: Because the search of Quon's text messages was reasonable, petitioners did not violate respondents' Fourth Amendment rights, and the Ninth Circuit erred by concluding otherwise. Pp. 755-765, 177 L. Ed. 2d, at 225-232. The Amendment guarantees a person's privacy, dignity, and security against arbitrary and invasive governmental acts, without regard to whether the government actor is investigating crime or performing another function. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 613-614, 109 S. Ct. 1402, 103 L. Ed. 2d 639. It applies as well when the government acts in its capacity as an employer. Treasury Employees v. Von Raab, 489 U.S. 656, 665, 109 S. Ct. 1384, 103 L. Ed. 2d 685. The Members of the O'Connor Court disagreed on the proper analytical framework for Fourth Amendment claims against government employers. A four-Justice plurality concluded that the correct analysis has two steps. First, because “some government offices may be so open . . . that no expectation of privacy is reasonable,” a court must consider “[t]he operational realities of the workplace” to determine if an employee's constitutional rights are implicated. 480 U.S., at 717, 718, 107 S. Ct. 1492, 94 L. Ed. 2d 714. Second, where an employee has a legitimate privacy expectation, an employer's intrusion on that expectation “for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.” Id., at 725-726, 107 S. Ct. 1492, 94 L. Ed. 2d 714. Justice Scalia, concurring in the judgment, would have dispensed with the “operational realities” inquiry and concluded “that the offices of government employees . . . are [generally] covered by Fourth Amendment protections,” id., at 731, 107 S. Ct. 1492, 94 L. Ed. 2d 714, but he would also have held “that 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 . . . Amendment,” id., at 732, 107 S. Ct. 1492, 94 L. Ed. 2d 714. Pp. 755-757, 177 L. Ed. 2d, at 225-227. (b) Even assuming that Quon had a reasonable expectation of privacy in his text messages, the search was reasonable under both O'Connor approaches, the plurality's and Justice Scalia's. Pp. 758-765, 177 L. Ed. 2d, at 227-232. [748] (1) The Court does not resolve the parties' disagreement over Quon's privacy expectation. Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve. Because it is therefore preferable to dispose of this case on narrower grounds, the Court assumes, arguendo, that: (1) Quon had a reasonable privacy expectation; (2) petitioners' review of the transcript constituted a Fourth Amendment search; and (3) the principles applicable to a government employer's search of an employee's physical office apply as well in the electronic sphere. Pp. 758-760, 177 L. Ed. 2d, at 227-229. (2) Petitioners' warrantless review of Quon's pager transcript was reasonable under the O'Connor plurality's approach because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope. See 480 U.S., at 726, 107 S. Ct. 1492, 94 L. Ed. 2d 714. There were “reasonable grounds for [finding it] necessary for a noninvestigatory work-related purpose,” ibid., in that Chief Scharf had ordered the audit to determine whether the City's contractual character limit was sufficient to meet the City's needs. It was also “'reasonably related to the objectives of the search,'” ibid., because both the City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or, on the other hand, that the City was not paying for extensive personal communications. Reviewing the transcripts was an efficient and expedient way to determine whether either of these factors caused Quon's overages. And the review was also not “'excessively intrusive.'” Ibid. Although Quon had exceeded his monthly allotment a number of times, OPD requested transcripts for only August and September 2002 in order to obtain a large enough sample to decide the character limits' efficaciousness, and all the messages that Quon sent while off duty were redacted. And from OPD's perspective, the fact that Quon likely had only a limited privacy expectation lessened the risk that the review would intrude on highly private details of Quon's life. Similarly, because the City had a legitimate reason for the search and it was not excessively intrusive in light of that justification, the search would be “regarded as reasonable and normal in the private-employer context” and thereby satisfy the approach of Justice Scalia's concurrence, id., at 732, 107 S. Ct. 1492, 94 L. Ed. 2d 714. Conversely, the Ninth Circuit's “least intrusive” means approach was inconsistent with [749] controlling precedents. See, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 663, 115 S. Ct. 2386, 132 L. Ed. 2d 564. Pp. 760-765, 177 L. Ed. 2d, at 229-231. (c) Whether the other respondents can have a reasonable expectation of privacy in their text messages to Quon need not be resolved. They argue that because the search was unreasonable as to Quon, it was also unreasonable as to them, but they make no corollary argument that the search, if reasonable as to Quon, could nonetheless be unreasonable as to them. Given this litigating position and the Court's conclusion that the search was reasonable as to Quon, these other respondents cannot prevail. Pp. 765, 177 L. Ed. 2d, at 231-232. City of Ontario v. Quon, 560 U.S. 746, 769, 130 S.Ct. 2619, 2635 (2010) Syllabus [2480] In No. 13-132, petitioner Riley was stopped for a traffic violation, which eventually led to his arrest on weapons charges. An officer searching Riley incident to the arrest seized a cell phone from Riley's pants pocket. The officer accessed information on the phone and noticed the repeated use of a term associated with a street gang. At the police station two hours later, a detective specializing in gangs further examined the phone's digital contents. Based in part on photographs and videos that the detective found, the State charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based on Riley's gang membership. Riley moved to suppress all evidence that the police had obtained from his cell phone. The trial court denied the motion, and Riley was convicted. The California Court of Appeal affirmed. In No. 13-212, respondent Wurie was arrested after police observed him participate in an apparent drug sale. At the police station, the officers seized a cell phone from Wurie's person and noticed that the phone was receiving multiple calls from a source identified as “my house” on its external screen. The officers opened the phone, accessed its call log, determined the number associated with the “my house” label, and traced that number to what they suspected was Wurie's apartment. They secured a search warrant and found drugs, a firearm and ammunition, and cash in the ensuing search. Wurie was then charged with drug and firearm offenses. He moved to suppress the evidence obtained from the search of the apartment. The District Court denied the motion, and Wurie was convicted. The First Circuit reversed the denial of the motion to suppress and vacated the relevant convictions. Held: The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. Pp. ___ - ___, 134 S. Ct. 2473, 189 L. Ed. 2d, at 439-453. (a) A warrantless search is reasonable only if it falls within a specific exception to the Fourth Amendments warrant requirement. See Kentucky v. King, 563 U. S. ___, ___, 131 S. Ct. 1849; 179 L. Ed. 2d 865. The well-established exception at issue here applies when a warrantless search is conducted incident to a lawful arrest. Three related precedents govern the extent to which officers may search property found on or near an arrestee. Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685, requires that a search incident to arrest be limited to the area within the arrestee's immediate control, where it is justified by the interests in officer safety and in preventing evidence destruction. In United States v. Robinson, 414 U. S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427, the Court applied the Chimel analysis to a search of a cigarette pack found on the arrestee's person. It held that the risks identified in Chimel are present in all custodial arrests, 414 U. S., at 235, 94 S. Ct. 467, 38 L. Ed. 2d 427, even when there is no specific concern about the loss of evidence or the threat to officers in a particular case, id., at 236, 94 S. Ct. 467, 38 L. Ed. 2d 427. The trilogy concludes with Arizona v. Gant, 556 U. S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485, which permits searches of a car where the arrestee is unsecured and within reaching distance of the passenger compartment, or where it is reasonable to believe that evidence of the crime of arrest might be found in the vehicle, id., at 343, 129 S. Ct. 1710, 173 L. Ed. 2d 485. Pp. ___ - ___, 134 S. Ct. 2473, 189 L. Ed. 2d, at 439-441. (b) The Court declines to extend Robinson's categorical rule to searches of data stored on cell phones. Absent more precise guidance from the founding era, the Court generally determines whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U. S. 295, 300, 119 S. Ct. 1297, 143 L. Ed. 2d 408. That balance of interests supported the search incident to arrest exception in Robinson. But a search of digital information on a cell phone does not further the government interests identified in Chimel, and implicates substantially greater individual privacy interests than a brief physical search. Pp. ___ - ___, 134 S. Ct. 2473, 189 L. Ed. 2d, at 441-449. (1) The digital data stored on cell phones does not present either Chimel risk. Pp. ___ - ___, 134 S. Ct. 2473, 189 L. Ed. 2d, at 442-445. (i) Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee's escape. Officers may examine the phone's physical aspects to ensure that it will not be used as a weapon, but the data on the phone can endanger no one. To the extent that a search of cell phone data might warn officers of an impending danger, e.g., that the arrestee's confederates are headed to the scene, such a concern is better addressed through consideration of case-specific exceptions to the warrant requirement, such as exigent circumstances. See, e.g., Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 298-299, 87 S. Ct. 1642, 18 L. Ed. 2d 782. Pp. ___ - ___, 134 S. Ct. 2473, 189 L. Ed. 2d, at 442-443. (ii) The United States and California raise concerns about the destruction of evidence, arguing that, even if the cell phone is physically secure, information on the cell phone remains vulnerable to remote wiping and data encryption. As an initial matter, those broad concerns are distinct from Chimel's focus on a defendant who responds to arrest by trying to conceal or destroy evidence within his reach. The briefing also gives little indication that either problem is prevalent or that the opportunity to perform a search incident to arrest would be an effective solution. And, at least as to remote wiping, law enforcement currently has some technologies of its own for combatting the loss of evidence. Finally, law enforcement's remaining concerns in a particular case might be addressed by responding in a targeted manner to urgent threats of remote wiping, see Missouri v. McNeely, 569 U. S. ___, ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696, or by taking action to disable a phone's locking mechanism in order to secure the scene, see Illinois v. McArthur, 531 U. S. 326, 331-333, 121 S. Ct. 946, 148 L. Ed. 2d 838. Pp. ___ - ___, 134 S. Ct. 2473, 189 L. Ed. 2d, at 443-445. (2) A conclusion that inspecting the contents of an arrestee's pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but more substantial privacy interests are at stake when digital data is involved. Pp. ___ - ___, 134 S. Ct. 2473, 189 L. Ed. 2d, at 445-449. (i) Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee's person. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. This has several interrelated privacy consequences. First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone's capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years. In addition, an element of pervasiveness characterizes cell phones but not physical records. A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives. Pp. ___ - ___, 134 S. Ct. 2473, 189 L. Ed. 2d, at 446-448. (ii) The scope of the privacy interests at stake is further complicated by the fact that the data viewed on many modern cell phones may in fact be stored on a remote server. Thus, a search may extend well beyond papers and effects in the physical proximity of an arrestee, a concern that the United States recognizes but cannot definitively foreclose. Pp. ___ - ___, 134 S. Ct. 2473, 189 L. Ed. 2d, at 448-449. (c) Fallback options offered by the United States and California are flawed and contravene this Court's general preference to provide clear guidance to law enforcement through categorical rules. See Michigan v. Summers, 452 U. S. 692, 705, n. 19, 101 S. Ct. 2587, 69 L. Ed. 2d 340. One possible rule is to import the Gant standard from the vehicle context and allow a warrantless search of an arrestee's cell phone whenever it is reasonable to believe that the phone contains evidence of the crime of arrest. That proposal is not appropriate in this context, and would prove no practical limit at all when it comes to cell phone searches. Another possible rule is to restrict the scope of a cell phone search to information relevant to the crime, the arrestee's identity, or officer safety. That proposal would again impose few meaningful constraints on officers. Finally, California suggests an analogue rule, under which officers could search cell phone data if they could have obtained the same information from a pre-digital counterpart. That proposal would allow law enforcement to search a broad range of items contained on a phone even though people would be unlikely to carry such a variety of information in physical form, and would launch courts on a difficult line-drawing expedition to determine which digital files are comparable to physical records. Pp. ___ - ___, 134 S. Ct. 2473, 189 L. Ed. 2d, at 449-451. (d) It is true that this decision will have some impact on the ability of law enforcement to combat crime. But the Court's holding is not that the information on a cell phone is immune from search; it is that a warrant is generally required before a search. The warrant requirement is an important component of the Court's Fourth Amendment jurisprudence, and warrants may be obtained with increasing efficiency. In addition, although the search incident to arrest exception does not apply to cell phones, the continued availability of the exigent circumstances exception may give law enforcement a justification for a warrantless search in particular cases. Pp. ___ - ___, 134 S. Ct. 2473, 189 L. Ed. 2d, at 451-452. Riley v. California, 134 S.Ct. 2473, 2498 (2014)
- Syllabus Respondent, a physician and psychiatrist, was an employee of a state hospital and had primary responsibility for training physicians in the psychiatric residency program. Hospital officials became concerned about possible improprieties in his management of the program, particularly with respect to his acquisition of a computer and charges against him concerning sexual harassment of female hospital employees and inappropriate disciplinary action against a resident. While he was on administrative leave pending investigation of the charges, hospital officials, allegedly in order to inventory and secure state property, searched his office and seized personal items from his desk and file cabinets that were used in administrative proceedings resulting in his discharge. No formal inventory of the property in the office was ever made, and all the other papers in the office were merely placed in boxes for storage. Respondent filed an action against petitioner hospital officials in Federal District Court under 42 U. S. C. § 1983, alleging that the search of his office violated the Fourth Amendment. On cross-motions for summary judgment, the District Court granted judgment for petitioners, concluding that the search was proper because there was a need to secure state property in the office. Affirming in part, reversing in part, and remanding the case, the Court of Appeals concluded that respondent had a reasonable expectation of privacy in his office, and that the search violated the Fourth Amendment. The court held that the record justified a grant of partial summary judgment for respondent on the issue of liability for the search, and it remanded the case to the District Court for a determination of damages. Held: The judgment is reversed, and the case is remanded. JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE POWELL, concluded that: 1. Searches and seizures by government employers or supervisors of the private property of their employees are subject to Fourth Amendment restraints. An expectation of privacy in one's place of work is based upon societal expectations that have deep roots in the history of the Amendment. However, the operational realities of the workplace may make some public employees' expectations of privacy unreasonable when an intrusion is by a supervisor rather than a law enforcement official. Some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis. Because the record does not reveal the extent to which hospital officials may have had work-related reasons to enter respondent's office, the Court of Appeals should have remanded the matter to the District Court for its further determination. However, a majority of this Court agrees with the determination of the Court of Appeals that respondent had a reasonable expectation of privacy in his office. Regardless of any expectation of privacy in the office itself, the undisputed evidence supports the conclusion that respondent had a reasonable expectation of privacy at least in his desk and file cabinets. Pp. 714-719. 2. In determining the appropriate standard for a search conducted by a public employer in areas in which an employee has a reasonable expectation of privacy, what is a reasonable search depends on the context within which the search takes place, and requires balancing the employee's legitimate expectation of privacy against the government's need for supervision, control, and the efficient operation of the workplace. Requiring an employer to obtain a warrant whenever the employer wishes to enter an employee's office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unreasonable. Moreover, requiring a probable cause standard for searches of the type at issue here would impose intolerable burdens on public employers. Their intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances. Under this standard, both the inception and the scope of the intrusion must be reasonable. Pp. 719-726. 3. In the procedural posture of this case, it cannot be determined whether the search of respondent's office, and the seizure of his personal belongings, satisfied the standard of reasonableness. Both courts below were in error because summary judgment was inappropriate. The parties were in dispute about the actual justification for the search, and the record was inadequate for a determination of the reasonableness of the search and seizure. On remand, the District Court must determine these matters. Pp. 726-729. JUSTICE SCALIA concluded that the offices of government employees, and a fortiori the drawers and files within those offices, are covered by Fourth Amendment protections as a general matter, and no special circumstances were present here that would call for an exception to the ordinary rule. However, 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. Because the conflicting and incomplete evidence in the present case could not conceivably support summary judgment that the search did not have such a validating purpose, the decision must be reversed and remanded. Pp. 731-732. O'Connor v. Ortega (1987) 480 U.S. 709, 711 [107 S.Ct. 1492, 1494, 94 L.Ed.2d 714, 719]. In fall 2001, Plaintiffs were employed as Los Angeles County Deputy Sheriff Trainees at the Department's Academy. At approximately 9:00 a.m. on Friday, October 19, 2001, Trainee Stacie Dobine informed one of her instructors, Defendant Deputy William J. Bartlett, that some [1100] members her class (Class 325) possessed and/or were selling test questions for an exam. Bartlett questioned Dobine about the identity of the alleged wrongdoers, but was told only that they were members of the same study group. (Plaintiffs suggest Dobine knew the actual identities, but in any case she did not disclose them.) Around 9:15 a.m., the members of Class 325, including Plaintiffs, were ordered to open and unlock their briefcases, leave their classroom, and assemble outdoors in platoon formation. For the next hour, the members of Class 325 remained outside while a search of their classroom and briefcases was conducted by certain Defendant officials. Class 325 remained outdoors for about an hour, whereupon they were escorted by Academy instructors to classroom K-l, a room they did not regularly use. Upon arrival in room K-l, the trainees were instructed to sit in every other seat, to face forward, not to speak to anyone, and not to leave, read, write, use the phone, or go to the restroom without an escort. The record does not suggest that any instructors remained in the room, but the trainees were informed that they were being videotaped and monitored. (The room was known to Plaintiffs Santa Maria and Ramos to include a one-way mirror where staff instructors could monitor the room's occupants without being observed.) Plaintiffs attest that all of the instructions were given in a loud or gruff manner, a characterization Defendants do not dispute. At this point, the trainees had not been told why their briefcases had been searched, why they had been ordered outside, or why they were now being sequestered in room K-l. Class 325 remained under these conditions until approximately 2:00 p.m. At that time, the trainees were permitted to retrieve their lunches from their usual room, and were afforded ten minutes in room K-l to eat. Following lunch, the class members were ordered to return to their regular classroom (room B-1). At this point, the trainees were informed by Defendant instructor Gregory S. Adams that there was an ongoing investigation into "misconduct." The class also was specifically told at this time that they were not free to leave until they had been interviewed by officials of the Internal Affairs Bureau 2Link to the text of the note ("IAB"), whom Adams indicated to be in route to the Academy. Plaintiffs attest that these comments were made in a "degrading, threatening, and belittling manner," and that the class members were compared to a disgraced former Los Angeles police officer who had recently been convicted of various criminal abuses of authority. Plaintiffs also attest that they felt if they tried to leave the classroom, they would by physically restrained from doing so. At this time, and at all times while Plaintiffs remained at the Academy on October 19, Plaintiffs were permitted to retain their departmentally-issued weapons. However, because Plaintiffs were not sworn peace officers, they were not authorized [1101] to carry loaded firearms. As such, Plaintiffs carried their weapons in their holsters but with no ammunition in the weapons and with orange tape over both the barrel and the magazine of the weapons. Between 2:00 and 3:30 p.m., the class was given a regularly scheduled lecture. Following the lecture, at about 3:30 p.m., Defendant Adams again informed the trainees that they were not free to leave, talk, or interact with their classmates until they were interviewed by IAB officials. Again, Plaintiffs attest that they did not feel free to leave and that if they did attempt to leave, they would be physically restrained from doing so. At approximately 6:00 p.m., the trainees were addressed by Defendant Dennis Burns, the head of the IAB. Burns informed Plaintiffs and their classmates that there was an investigation of "misconduct" underway, but did not specify the allegations. Burns then read off the names of nine trainees, including Plaintiffs, and specifically stated that these nine were not free to leave until they were interviewed by IAB. The other trainees were permitted to leave. Plaintiffs remained at the Academy until approximately 1:00 a.m. During the remainder of their time in room B-1, Plaintiffs were not permitted to eat (despite a request to do so), and could only use the restroom with an escort. They were allowed to meet with an attorney from their union (the Association for Los Angeles Deputy Sheriffs ("ALADS")), and were provided one opportunity to call their families regarding their whereabouts or to make childcare arrangements (if necessary). Plaintiffs attest that during this time they continued to feel that if they attempted to leave the Academy facility they would be physically restrained and prevented from doing so. Although Plaintiffs Myers and Santa Maria were never personally interviewed by any IAB official on October 19, 2001, they did observe certain other trainees being told to report to the staff office for interviews prior to the arrival of the ALADS representatives and attorneys. It appears to be disputed whether and/or when Plaintiff Ramos was ever interviewed, though he states that he was interviewed, and that the interview took place before the ALADS attorneys arrived. Shortly after midnight, Plaintiffs were escorted to the locker room, where they were instructed to turn in their weapons, batons, and other equipment. At that time, Plaintiffs were told that they could either resign or be fired the following Monday. By Sunday, this decision had apparently been reversed, and Plaintiffs were informed by phone that they could return to the Academy "as if nothing had happened." When they subsequently returned to the Academy, Plaintiffs filed for and were paid overtime for the events at issue. Defendants' explanation as to why this investigation was so lengthy, while materially undisputed, is a case study in bureaucratic inefficiency. For instance, although a search was completed by Academy instructors within thirty-five minutes of the initial cheating allegation, Department officials believed it was necessary to involve the entire chain of command before proceeding further. As a result, there was a nearly two hour delay while the Sheriff, Undersheriff and other executives attended a graduation ceremony. It would be another two hours before the Internal Affairs Bureau would be contacted, and a large team of investigators assembled, briefed and deployed to the Academy. Substantial delay is also attributable to the intervention of the trainees' union, which apparently came about by way of a [1102] call from a Sheriff's Deputy who had learned of the investigation. The union representatives who responded to the Academy were not authorized to represent the cadets during the interviews. They therefore demanded an end to interviewing, which demand was eventually acceded to. This precipitated another two-hour delay, while union attorneys in route to the Academy wound their way through Friday afternoon traffic. Upon arrival, and prior to a resumption of the interviews, the attorneys spent two to three hours meeting with their clients and Academy officials. The interviews then proceeded for at least a couple hours, followed by further debate among the investigators as to what to do with the information that had been gleaned. Finally, at about 1 a.m., approximately eight to nine hours after the training for the day would have ended, the trainees were released. Myers v. Baca (C.D.Cal. 2004) 325 F.Supp.2d 1095, 1099-1102. Result: Briefcase search was not a Fourth Amendment violations. Administrative, not criminal, investigation. Reduced expectation of privacy. Strong interest in honesty in the academy. Detention was a Fourth Amendment violations, but a reasonable officer would not have realized that it was.
- FACTUAL AND PROCEDURAL BACKGROUND Upper Deck manufactures sports trading cards and sports memorabilia. In July 1991, Upper Deck interviewed Kraslawsky for an executive secretary position. Upper Deck notified Kraslawsky it would hire her if she underwent a medical examination and successfully completed a urine test for drugs and alcohol. 1Link to the text of the note During the ensuing medical examination, Kraslawsky voluntarily provided a urine sample and disclosed the prescription and nonprescription medications she was taking. The sample tested positive for a prescription medication. Kraslawsky later provided a doctor's note confirming the need for the medication. [183] Upper Deck then hired Kraslawsky as an executive secretary for company vice-president and marketing director Anthony Loiacono. The personnel department gave Kraslawsky a copy of the employee handbook, which included a discussion of the company policy against alcohol and drug use in the workplace and the company's reasonable cause drug testing policy. The handbook stated Upper Deck "may require an employee to submit to monitored tests whenever it has reasonable cause to believe that an employee is [under the influence of intoxicants] . . . . An employee's consent . . . to submission to tests is required as a condition of employment. An employee's refusal to consent when requested by [Upper Deck] may result in disciplinary action, including discharge, even for a first offense." Kraslawsky read the handbook, and signed a form stating she agreed to abide by the stated policies. Eight months later, on March 10, 1992, at approximately 4 p.m., an Upper Deck personnel employee requested that Kraslawsky drive to a medical facility and provide a urine sample for a drug test. Kraslawsky refused to take the test. Based on this refusal, Upper Deck terminated Kraslawsky. In support of its motion, Upper Deck proffered evidence showing that (1) Kraslawsky read and signed the employee handbook containing notice of the reasonable cause drug testing policy; (2) two Upper Deck managers personally observed Kraslawsky on March 10, 1992, and believed she was under the influence of intoxicants; (3) had Kraslawsky submitted to the test, her urination would not have been visually observed 2Link to the text of the note and the results would have been disclosed only to specified Upper Deck personnel; (4) Kraslawsky did not object to the preemployment urine test and at that time disclosed medications she was taking; and (5) Kraslawsky testified at a deposition that she did not believe the procedure involved in taking the test was intrusive. [184] Upper Deck also proffered the declaration of Brian Burr, an Upper Deck executive vice-president of operations. Burr stated Upper Deck maintains a suspicion-based drug testing policy to (1) "further its interest in the efficient operation of its business and performance of its employees"; (2) reduce the risks of liability associated with employee drug or alcohol use; (3) ensure that its policies are "consistent with the drug and alcohol policies" of sporting organizations since "an image of being soft on drugs . . . would hinder its business in promoting competitive sports and sports stars"; (4) reduce the costs of health care premiums; and (5) ensure the health and safety of its employees. Burr stated Upper Deck does "not favor 'random' [drug] testing.“ In opposition to the summary judgment motion, Kraslawsky contended she had a reasonable expectation of privacy and Upper Deck's asserted reasons for requiring the drug test were insufficient to overcome her privacy rights. Kraslawsky argued and presented evidence that Upper Deck did not have "reasonable cause" to believe she was under the influence of intoxicants. This evidence included Kraslawsky's declaration in which she denied that on March 10 she was intoxicated or acting as if she were intoxicated or that she exhibited the physical symptoms allegedly observed by the two Upper Deck managers. Kraslawsky also submitted deposition transcripts of the two managers who acknowledged they did not know what was wrong with Kraslawsky, never specifically believed she was under the influence of intoxicants, and had never received formal training on detecting substance abuse. Kraslawsky additionally proffered evidence that her job responsibilities were strictly secretarial and did not involve security or safety-related activities. Result: There was a triable issue of fact as to whether the employer had reasonable cause to believe she was under the influence. Kraslawsky v. Upper Deck Co., 56 Cal. App. 4th 179, 182-83, 65 Cal. Rptr. 2d 297, 298-99 (1997)
- In August 2008, Angelica Cobian of the DPW's Internal Audit Division received an anonymous complaint alleging possible employee misconduct by government employee Richards. (Carter Pl's Statement of Uncontroverted Facts ("SUF") ¶ 67.) The complaint alleged that, among other misconduct, Richards had engaged in sexual activity with a visitor in the dispatch room while she was on duty at night. (Id. ¶ 68.) Richards's supervisor, DWP Assistant Director Chuck Adams, considered the allegation of misconduct to be credible. (Adams Dep. 86: 6-13; Celles Dep. 39:18-40:22.) Adams, however, did not interview potential witnesses because, he stated, he worried that word of the investigation would spread thereby compromising the investigation. (Adams Dep. 118:13-18.) In September 2008, Adams installed a hidden camera inside of a fake smoke detector in the dispatch room. (Id. 93: 2-8.) Adams received the DWP Director's approval to do so. (Carter Pl's Statement of Genuine Issues("SGI") ¶ 16.) Adams assigned Rhea Celles of Internal Audit to review the video tapes for any inappropriate conduct. (Cholakian Dep. 93:15-20; Adams Dep. 93:2-8; 139:7-14.) Although it was possible to program the camera to record for limited intervals — for example, during Richards's shifts — no attempt was made to restrict the covert videotaping. (Cholakian Dep. 138:12-145:1.) Surveillance began on October 8, 2008. (Carter Pl's SGI ¶ 75.) Adams directed [1180] Cholakian to set the camera to record continuously, which it did, until it was discovered on December 10, 2008. (Cholakian Dep. 74:1-4; Celles Dep. 57:20-58:10.) According to Celles, the objective of the investigation was to ascertain whether Richards was in fact engaging in the alleged misconduct, and thus she would typically only view the portions of the tape where Richards worked alone and fast-forward the rest. (Celles Dep. 70:3-19.) Ultimately, Celles discovered several acts of inappropriate employee conduct by Richards, including inappropriate touching with visitors. (Carter Pl's SGI ¶ 18.) However, Jeanine Thomas, the Head Departmental Civil Service Representative in the Human Resource Division of the DPW, instructed Celles to check if there were any other violations of policy by other staff. (Thomas Dep. 33:1-23.) Celles admits to watching other employees on the tape. (Celles Dep. 198:19-199:2.) Plaintiffs each declared that they worked in the dispatch room and believed the dispatch room was private. (See, e.g., Carter Decl. ¶ 2; De Leon Decl. ¶ 2; Gentry Decl. ¶ 2.) The dispatch room is a secured space separated by restricted access. (Cholakian Dep. 64:17-65:4, 66:18-21.) It is located on the second floor of the DPW's headquarters building, with a window that is generally covered and, even if it were not covered, is too high up for a pedestrian to see inside. (Carter Pl's SUF ¶ 35.) There are two ways to enter the dispatch room: through the adjacent room, the Disaster Operations Center ("DOC") door, or through the door that leads into the hallway. (Cholakian Dep. 63:15-64:12.) The door that leads into the DOC and the door from the dispatch room to the hallway are both equipped with an OMNI lock system, which automatically lock outside of normal business hours. (Cholakian Dep. 65:1-17, 66:18-67:6; Carter Dep. 19:1-22.) Non-dispatcher County employees rarely enter the dispatch room, and when they do they typically knock to announce their presence before entering. (Mendoza Decl. ¶ 4; Cholakian Dep. 58:2-59:2, 69:1-10.) While on duty in the dispatch room, Plaintiffs often worked long shifts alone and generally did not leave their post except for brief bathroom breaks. (Carter Dep. 24:11-25:11; e.g. Carter Decl. ¶ 6.) Plaintiffs were required to take their meal and rest breaks in the dispatch room. (Richards Dep. 85:21-86:5.) It was not uncommon during the "after hours" shifts for the entire building to be empty with the exception of the dispatcher on duty and the security personnel. (Cholakian Dep. 54:12-56:17.) The DWP furnished the employees with personal lockers in the dispatch room, as well as with a television, food cooking items, and storage items. (Carter Pl's SGI ¶ 58.) Plaintiffs engaged in a number of private acts in the dispatch room, which are not disputed. For example, Plaintiffs admit that on occasion in the dispatch room they changed into or out of work-out clothes, pumped breast milk, adjusted or undid their bras, applied deodorant, picked zits, removed or adjusted their sanitary napkins, picked their nose, stretched, cleaned body piercings, and engaged in other acts normally reserved for private spaces. (Carter Pls.' SUF ¶ 61.) Richards v. Cnty. of L.A., 775 F. Supp. 2d 1176, 1179-80 (C.D. Cal. 2011). Defendants Hillsides, Inc., and Hillsides Children Center, Inc. (Hillsides), operated a private nonprofit residential facility for neglected and [277] abused children, including the victims of sexual abuse. Plaintiffs Abigail Hernandez (Hernandez) and Maria-Jose Lopez (Lopez) were employed by Hillsides. They shared an enclosed office and performed clerical work during daytime business hours. Defendant John M. Hitchcock (Hitchcock), the director of the facility, learned that late at night, after plaintiffs had left the premises, an unknown person had repeatedly used a computer in plaintiffs' office to access the Internet and view pornographic Web sites. Such use conflicted with company policy and with Hillsides's aim of providing a safe haven for the children. Concerned that the culprit might be a staff member who worked with the children, and without notifying plaintiffs, Hitchcock set up a hidden camera in their office. The camera could be made operable from a remote location, at any time of day or night, to permit either live viewing or videotaping of activities around the targeted workstation. It is undisputed that the camera was not operated for either of these purposes during business hours, and, as a consequence, that plaintiffs' activities in the office were not viewed or recorded by means of the surveillance system. Hitchcock did not expect or intend to catch plaintiffs on tape. Nonetheless, after discovering the hidden camera in their office, plaintiffs filed this tort action alleging, among other things, that defendants intruded into a protected place, interest, or matter, and violated their right to privacy under both the common law and the state Constitution. The trial court granted defendants' motion for summary judgment and dismissed the case. The Court of Appeal reversed, finding triable issues that plaintiffs had suffered (1) an intrusion into a protected zone of privacy that (2) was so unjustified and offensive as to constitute a privacy violation. Hernandez v. Hillsides, Inc., 47 Cal. 4th 272, 276-77, 97 Cal. Rptr. 3d 274, 277-78, 211 P.3d 1063, 1066 (2009)
- This section shall not apply to any interrogation of a public safety officer in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other public safety officer, nor shall this section apply to an investigation concerned solely and directly with alleged criminal activities.
- https://www.youtube.com/watch?v=dBP2if0l-a8 YouTube video of Younger delivering the Ten Commandments