PAX Centurion - September / October 2014

www.bppa.org PAX CENTURION • September/Octoberr 2014 • Page 27 Workplace cellphone searches under Federal and Massachusetts law A recent article written byAttorney Steven Betz gives a thor- ough examination of an officers’ privacy rights with respect to his or her cellphone during workplace investigations. 1 While the article lays out some guiding principles and scenarios from which an employer could potentially search your cellphone, it does so analyzing US Supreme Court decisions. Decisions that set the floor, but not the ceiling here in the Commonwealth. So the question is – has Massachusetts set tighter restrictions on maintaining the privacy of a police officer’s cell-phone during work- place investigations? 2 Unfortunately, the answer appears to be ‘no.’ Overview Federal Case Law A s Betz explains, the basic rule is that a cellphone search in the workplace must be “reasonable.”What does that mean?With respect to department is- sued cellphones or devices, the US Supreme Court answered that in 2010. In City of Ontario v. Quon, 560 U.S. 746 (2010), an officer challenged the po- lice department’s search of his department issued beeper (which resulted in an internal affairs investigation) as unreasonable under the FourthAmendment. Quon, supra at 753. Even assuming that the officer had a reasonable expectation of privacy in text messages he sent from this device, the Court held that the department’s search was reasonable, in that it was motivated by legitimate work-related purpose (reviewing the data plan) and was not excessively intrusive in nature. Id. at 764-65 . 3 With respect to personal cellphones or devices, Betz states that a police department can most likely search the contents of a cell-phone if the department has met a standard similar to reasonable suspicion to believe that evidence of employee misconduct can be found on an employee’s personal cellphone. This determination comes from the High Court’s decision in O’Connor v. Ortega, 480 U.S. 709, 726 (1987), which set out a two-step process for determining the validity of a public employer’s search of an employee’s personal property: (1) justification for the search; and (2) the scope of the search must be reasonably related to circumstances giving rise to it in the first place. Betz makes several suggestions for protecting the officer from having his or her electronic device searched in the workplace, how- ever. Aside from the clearest and most obvious protection – limiting use of a personal cellphone for any work related purpose – he also suggests, in the event of a search, requiring the employer to provide notice of what justified the search, the precise information being sought, and an opportunity to be present during the search. In Massachusetts A lthough there is no case law in the Commonwealth which ad- dresses this specific point, it does appear that our highest court follows the reasonableness/expectation of privacy analysis when it comes to an employees’ privacy rights in the public workplace. In Nelson v. Salem State College, 446 Mass. 525, 534 (2006), an employee filed a civil right suit under §1983 against the college, claim- ing invasion of her privacy, after she was videotaped by a hidden cam- era while changing in an open area of her workplace. The Court held that the employee had no objectively reasonable expectation of privacy in her workplace, as the un-enclosed space lacked a door and could be entered into by anyone at any time with no prior notice. Id. Therefore, taking the holding in Nelson and factoring it in to the Supreme Court’s holdings in and O’Connor and Quon, it follows that the Supreme Judicial Court would, if faced with a situation like that in Quon, look to see whether (a) the officer had a reason- able expectation of privacy in the electronic device being searched (department issued vs. personal device, as well as the content and nature of what the department is searching for); and (b) the overall reasonableness of the department’s search, once executed. As Betz states in his article, the most important safeguards any officer can take start with limiting your use of a personal cellphone/ device at work (or involving work, coworkers, etc.), being aware and taking more precaution in how a department issued device is being used, and demanding due process (in the form of notice, scope, and being present), in the event a search ultimately takes place. Legal Notes: Kareem Morgan, Esq. Sandulli Grace P.C., Counsel to Members of the Boston Police Patrolmen’s Association establishments, special events, weekends, holidays, etc. as an entice- ment for officers to accept these assignments. Boston, however, is locked in a political time-warp and personal vendetta mental- ity: “You won’t get anything until they (the detectives) settle their contract.” It really is like the old days in Catholic school: until somebody turns in the person who threw the eraser at Sister Mary, everybody has to stay after class and everybody suffers. BPD – grow up: not only will the city see an increase in the amount of money they earn from the 10% administrative fee charged from each detail, but they may actually see an increase in morale and public safety due to more officers voluntarily accepting detail assignments that previously were not attractive due to the low rate of pay.You can do it tomorrow with the stroke of a pen, Comm. Evans. Please do… From Detail Rates on page 12 Detail rate increase overdue… 1 Betz, Steven, Can Officers Expect Privacy on Their Cell Phones?, http://www.rlslawyers.com/can-officers-expect-privacy-on-their-cell-phones (2014) 2 Id. 3 Note also the recent Supreme Court decision, Riley v. California, in which the Supreme Court held that the police may not generally conduct a warrantless search of digital information on a cell-phone seized from an individual they have arrested.