Newsletter - Berry Wilkinson Law Group

"Can they really do that?"

When and how searches of a public safety officer's personal property and other storage spaces can be done by a local public safety agency is a fact specific issue. That means the answer to the above-question invariably is: "It depends."

For that reason, this issue of the BW|LG Newsletter is dedicated to providing a basic outline of the rights afforded to public safety employees whenever the employer seeks to conduct an administrative search during a misconduct investigation.

Lockers and Other Employer-Owned Spaces for Storage: It is generally very easy for a public safety employer to search an employee's locker or "other space for storage" that is owned or leased by the employing agency and assigned to the employee. These "other spaces for storage" include areas such as a desk drawer, file cabinet, or the trunk of an assigned patrol car. See, Mullican v. City of Ontario 2004 Cal. App. Unpub. Lexis 3868. To search such spaces, all the employer has to do is to provide either advance notice of the search, have the officer be present during the search, obtain consent, or obtain a search warrant. See, Government Code section 3309 (the Public Safety Officers Procedural Bill of Rights Act) and Government Code section 3259 (the Firefighters Bill of Rights Act).

But, what happens when the employer opens the locker or "other space for storage" and finds inside an item of property belonging to the employee, such as a duffel bag, briefcase, wallet, purse, thumb drive, or laptop? Can the employer search the employee's personal property simply because it is found inside a locker or other space for storage owned or leased by the employer?

Personal Property: Labor and management attorneys have a difference of opinion as to whether the Bill of Rights Act protects employees from personal property searches. Government Code sections 3309 (police) and 3259 (firefighters) both prohibit an employer from requesting or requiring a public safety officer "to disclose any item of his or her property", which strongly suggests that an employer cannot compel an employee to produce personal property for a search during an administrative investigation. Nonetheless, employers often take the position that this section is inapplicable to a property search except when an investigation into personal finances is being conducted; whereas labor advocates contend that it prohibits an employer from forcing an employee to subject any of his or her personal property to a search. To date, no case law has resolved the debate.

Regardless, it is well-established that public safety employees maintain a constitutional right to privacy in personal possessions brought into the workplace. The seminal case in this area is O'Connor v. Ortega (1987) 480 U.S. 709, which held that searches and seizures by government employers and/or supervisors of the private property of their employees are subject to the restraints of the Fourth Amendment. The court noted that employers have the right to search "those areas and items that are related to work and are generally within the employer's control", but that "not everything that passes through the confines of the business address can be considered part of the workplace context." The court gave the following example: "An employee may bring closed luggage to the office prior to leaving on a trip, or a handbag or briefcase each workday. While whatever expectation of privacy the employee has in the existence and the outward appearance of the luggage is affected by its presence in the workplace, the employee's expectation of privacy in the contents of the luggage is not affected in the same way. The appropriate standard for a workplace search does not necessarily apply to a piece of closed personal luggage, a handbag, or a briefcase that happens to be within the employer's business address." 480 U.S. at 715-716. Thus, employers cannot search items of personal property maintained at the workplace if the employee maintains a reasonable expectation of privacy in the item.

Some internal investigators have attempted to dupe employees by serving them with an "administrative search warrant" purporting to give legal authority to conduct a search of personal property. Don't be fooled. There is no such thing. See, Los Angeles Police Protective League v. Gates (9th Cir. 1990) 907 F.2d 879.

But what about property that is not at the workplace, but which the employer orders that the employee produce for a search? Can an employer compel production under threat of insubordination? The recent decision of Delia v. City of Rialto (9th Cir., Sept. 9, 2010) holds that an employer cannot order an employee to remove items of personal property from his or her home so that a search can be conducted during the course of an administrative investigation.

In Delia, the employee was suspected of falsely claiming that he was disabled. The employer conducted surveillance, and observed the employee purchasing building supplies, including fiberglass insulation. During the internal affairs investigation, the employee was asked about home construction projects, and was shown a videotape of his purchase. The employee responded that the insulation was still bagged at his house. The employer then ordered the employee to produce the rolls of insulation from his house under threat of termination for failure to comply. The employee did so. The court found that this order to produce private property from the employee's home was a violation of the Fourth Amendment.

An employee thus maintains his or her right to privacy in those personal items that are brought to the workplace, as well as those that are kept at home. Employers cannot force employees to produce items for inspection or search in the context of an administrative investigation without violating Government Code sections 3308 and 3258, as well as the Fourth Amendment.