AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies


Back to list of subjects             Back to Legal Publications Menu

Search and Seizure

     A lieutenant at a county juvenile detention center was fired for testing positive for cocaine during a random drug test. In a lawsuit against the county, he and a number of his co-workers claimed that the drug test was an illegal search violative of the Fourth and Fourteenth Amendments, as well as breaching their employment contracts. A federal appeals court upheld summary judgment for the defendants, ruling that the drug testing furthered the county’s interest in ensuring the welfare and safety of the detained juveniles, and did not violate any of the plaintiffs’ rights. Their expectation of privacy was diminished as correctional employees and the drug test was minimally invasive, Their Fourteenth Amendment procedural due process claim based on deprivation of property failed because the sheriff's practices and the county's personnel policies did not show that they had a protected property interest in continued employment. Washington v. Unified Gov't of Wyandotte Co., #15-3181. 847 F.3d 1192 (10th Cir. 2017).

     A number of police officers claimed that two other officers violated their Fourth and Fourteenth Amendment rights when they complied with a court order to obtain DNA samples from them to exclude them as possible contributors of DNA at a crime scene. The samples were of saliva, obtained by use ol a mouth swab. A federal appeals court ruled that the court order in question satisfied the Warrant Clause of the Fourth Amendment, and that no undue intrusion occurred as the use of buccal swabs was brief and minimal, intrusions that involve almost no risk, trauma, or pain. As to a reasonable expectation of privacy, it was reasonable to require officers to produce such samples to to demonstrate that DNA left at a crime scene was not theirs and was not the result of inadvertent contamination of the crime scene by on-duty officers. Bill v. Brewer, #13-15844, 799 F.3d 1295 (9th Cir. 2015).
     A detective at a Veterans Administration medical center placed a hidden surveillance camera in the ceiling of an office at the center which female officers used as a changing area, capturing images of female officers dressing and undressing. A female officer learned that images of her changing were captured, and she sued the detective for unconstitutional search in violation of her Fourth Amendment rights. A federal appeals court upheld a ruling that the detective was not entitled to qualified immunity as the right of employees to be free from such unreasonable searches was clearly established. The court rejected the argument that the Civil Service Reform Act (CSRA) and the Federal Employees' Compensation Act (FECA) were the appropriate remedies instead for the plaintiff's claims, as FECA did not cover lawsuits against co-employees and the installation of the camera illegally was hard to characterize as an "injury by accident," or a "disease proximately caused by employment." The detective's actions were also not a "personnel action" covered by the CSRA. Gustafson v. Adkins, #15-1055, 2015 U.S. App. Lexis 17972 (7th Cir.).
     Police officials did not violate the Fourth Amendment rights of police officers by searching them after the residents of a home that they were searching accused them of stealing $1,750 in cash during the search. A reasonable person in the plaintiffs' position would not have feared arrest or detention if they had refused the defendants' request to search them for the money. The fact that one of the plaintiffs agreed to the search only because he was taking a nonprescription supplement to clean his colon and therefore had an immediate need to use the restroom and couldn't do so until he had been searched did not turn what occurred into a "seizure." Carter v. City of Milwaukee, #13-2187, (7th Cir.).
     A New York City Police Department order requires that any officer who fires his weapon and such firing results in injury or death to be administered a breathalyzer. Rejecting a Fourth Amendment challenge to the order, a federal appeals court found that the order was aimed at both personnel management and bolstering public confidence in the police, and thereby fell within the definition of "special needs" when analyzing the reasonableness of the search under the Fourth Amendment. These concerns were different from ordinary law enforcement concerns, so the warrant and probable cause requirements applicable to law enforcement searches did not apply. These warrantless suspicionless tests were reasonable as a matter of law since the special needs involved outweighed any privacy interests of the officers concerning whether they had consumed alcohol. Lynch v. City of New York, #12-3089, 2013 U.S. App. Lexis 23074 (2nd Cir.).
    The New Jersey Supreme Court has required law enforcement officers to get a warrant to obtain tracking information from a cell phone. While the decision came in a criminal case, the reasoning is broad enough to cover other situations. The decision holds that individuals have a reasonable expectation of privacy in their cell phone location data under the state Constitution. State v. Earls, #A-53-11/068765, 2013 N.J. Lexis 735
     During an investigation of a state employee, New York state investigators attached a global positioning system (GPS) device to his car, to look into suspicions that he was submitting false time reports. Based on the evidence gathered, he was fired. The highest court in New York ruled that the attachment of the device was a search not requiring a warrant and was within the workplace exception to the warrant requirement. At the same time, the search was not reasonable, as the employee's movements were tracked on evenings, weekends, and when he was on vacation, rendering it excessively intrusive. The employer failed to make a reasonable effort to avoid tracking the employees movements outside of business hours, rendering the entire search unreasonable. The evidence was ordered suppressed. Cunningham v. State Dep't of Labor, #123, 2013 N.Y. Lexis 1729.
     A drug suspect frisked by officers claimed that they stole money from him. At headquarters, the officers learned that an internal affairs complaint had been filed and they were taken to an office where they did not feel free to leave. They were instructed to stay in the office and not use their cell phones, and later told to remove their jackets, pull out their pant legs, pull down their socks, and open their wallets. Fearing discipline and loss of employment, they obeyed. They were then questioned and allowed to leave. Their lockers were allegedly also searched. Ruling on a federal civil rights lawsuit by the officers, a federal appeals court upheld summary judgment for the defendants. Police administrators who engage in employment-related, non-criminal detentions do not seize officers for Fourth Amendment purposes. The searches in question were reasonable. Gwynn v. City of Philadelphia, #12-2208, 2013 U.S. App. Lexis 12453 (3rd Cir.).
     Three unions representing various ranks of a city police department challenged a departmental order requiring that any police officer involved in a shooting resulting in injury or death take a breathalyzer. They claimed that this constituted an unreasonable search in violation of the Fourth Amendment. The court rejected that argument, granting summary judgment to the city. The court found that the searches represented by the breathalyzer tests were justified under the special needs doctrine which has been used to justify drug and alcohol testing for railway employees involved in train accidents. The primary purpose of the searches was not crime control, but personnel management--to deter officers from becoming intoxicated and discharging their weapons. These special needs outweigh any privacy interest that officers might have in not submitting to the tests. Palladino v. City of New York, #07 CV 9246, 2012 U.S. Dist. Lexis 90291 (S.D.N.Y.).
     In a criminal prosecution for drug trafficking, a federal appeals court held that a warrant was not required under the Fourth Amendment for GPS cell phone tracking of a suspect's real-time physical location. The federal agents used data being sent by the GPS device in the defendant's pay-as-you-go cell phone. The defendant had no reasonable expectation of privacy in the GPS data since the agents were tracking a known number and he was voluntarily using it while traveling on public roads. The court also commented that no "extreme" comprehensive tracking was present in the immediate case. U.S.A. v. Skinner, #09-6497, 2012 U.S. App. Lexis 16920, 2012 Fed App. 262P (6th Cir.).
     A city concerned about the suspected ongoing theft of water services decided to perform a water use survey using current and retired city employees as a test group. It felt this would work well, as the city had good information about how many people lived in the employees' households. Finding that employees from the public services department appeared to be paying far lower water bills, the city decided to look into this more by sending inspectors to their homes to attempt to inspect the water meters to see if they were working properly or had been tampered with. Employees who refused to let the inspectors enter were informed that they had to consent to entry "or else." A number of employees whose water meters had been sabotaged were fired. A group of terminated employees sued city officials for violation of their Fourth Amendment rights against unreasonable search and seizure. Two defendants were entitled to qualified immunity on the Fourth Amendment claim, since it was not clearly established that "public employees cannot be given a stark choice between asserting a constitutional right and keeping their jobs." The plaintiffs further failed to show that they were fired in unlawful retaliation for trying to assert their Fourth Amendment rights. The court also rejected First Amendment right to association and municipal liability claims. Clemente v. Vaslo, #10-2506, 2012 U.S. App. Lexis 9746; 2012 Fed. App. 0135P (6th Cir.).
     The U.S. Supreme Court held that attaching a GPS device to a vehicle to track a criminal suspect constitutes a search under the Fourth Amendment. It upheld the ruling of a federal appeals court suppressing the evidence and overturning a conviction based on it, since the device was attached without a valid warrant authorizing it. The Court declined to consider the government's alternative argument that the attachment and use of the device was a reasonable search, because it was not raised in the courts below. U.S. v. Jones, #10-1259, 2012 WL 171117, 2012 U.S. Lexis 1063.
      Officials at a correctional training facility were entitled to qualified immunity in a civil rights lawsuit by employees subjected to screening with a portable ion scanner as they entered the building, and then to a body cavity search if this resulted in a positive alert for drugs. No clearly established federal law gave notice that attempting to keep contraband out of a correctional building with these methods was illegal. Braun v. Maynard, #10-1401, 2011 U.S. App. Lexis 14940 (4th Cir.).
    Federal appeals court upholds conviction of a person who downloaded kiddy porn on a workplace computer. Appellant had no reasonable expectation of privacy . U.S. v. Ziegler, # 05-30177, 456 F.3d 1138, 2006 U.S. App. Lexis 20255 (9th Cir. 2006). {N/R}
     Illinois and Michigan determine whether search warrants are needed for arson searches. People v. Patrick, 355 N.E.2d 224 (Ill.App. 1976).
     Officers responding to fire call could forcibly open door; contraband observable in plain view was lawfully seized. State v. Jones, 573 P.2d 1134 (Kan. App. 1978).
     Search by Oregon firemen and police of fire scene over a period of days without a warrant ruled as valid. State of Oregon v. Felger, 526 P.2d 611 (Or.App. 1974).
     Evidence from swabbing of suspected bomber's hands for traces of explosive materials held admissible. U.S. v. Bridges, 499 F.2d 179 (7th Cir. 1974).
     See also: Disciplinary Investigations and Disciplinary Searches (for search of employees).

  
Back to list of subjects             Back to Legal Publications Menu