Courts Disfavoring Warrantless
Searches of Employees’ Personal Cell Phones
Federal Courts are increasingly disfavoring mandatory warrantless searches of employee personal cell phones by government employers, but that is not unanimous. In what has been a long time coming, district and appellate courts around the country have begun to conclude that the 4th Amendment to the United States Constitution prohibits such involuntary searches without a warrant or exigent circumstances. However, reflecting frequent court antipathy to employee rights, there are contrary views.
In O’Connor v. Ortega, 480 U.S. 709 (1987), the United States Supreme Court established the parameters for a public employer’s ability to conduct a warrantless search of its employees’ work area. The Court established two things: first, it announced a frustratingly vague "reasonableness" standard, and declared that future cases should be decided on a fact- specific, case by case basis. It also announced that public employers could search employer controlled workspaces without a warrant if they were, at the outset, investigating employee misconduct. This became known as the "workplace exception."
Cell phones were rare in 1987, and the Court did not address them at all. It was more concerned with physical spaces, like office closets and desk drawers. Subsequent cases established the reasonable expectation of privacy in certain areas that might be within an employer-controlled work area, like a locked safe or a personal briefcase.
By 2010, cell phones were prevalent, but so was other technology. Some police departments still issued pagers. Ontario v. Quon, 560 U.S. 746 (2010), was the Court’s next opportunity to address the limits of an employer’s right to a warrantless, non-consensual search. Quan was a swat officer with a department issued pager that had the capacity to text. His employer maintained a policy providing that it reserved the right to search texts from all pagers at will. His employer’s subscription allowed for a limited number of texts per month. Quon routinely exceeded the allotted number. Though he agreed to pay for the overage, his Chief quickly "tired of being a bill collector" and instead decided to see what Quon was texting about so much, ostensibly to see if the employer’s service agreement provided adequate limits for the officers to use for work. The Chief requested records of Quon’s texts from the pager service and found that the vast majority of Quon’s texts were personal, some of a sexual nature, and that he was spending substantial on-duty time texting friends, his ex-wife, and his girlfriend.
Quon alleged that the City violated his constitutional rights. Maintaining indecisiveness, the Court began its decision by discussing how carefully it would proceed when considering the concept of "privacy in communications" made on employer-owned equipment and noted its uncertainty on how "norms and the law" would evolve. Adding to the ambiguity, it noted both that the pervasiveness of electronic devices enhanced the expectation of privacy, but that their affordability also meant maybe people should just buy their own.
The Court held that Quon had a reasonable expectation of privacy. It also held that obtaining records of the texts from the pager service was a "search." However, it then said that the search was not necessarily unlawful under the workplace exemption. It held that if an employer search was non-investigatory or for investigation of misconduct, a warrantless search is reasonable if justified at its inception and the measures adopted are reasonably related to the objectives of the search and not excessively intrusive.
Turning to the search of Quon’s texts, if held that the City had a legitimate work-related rationale for the search, and that though Quon had a reasonable expectation of privacy, it was "limited" because he should have known his texts could be audited. The Court noted that though the City had other alternatives to determine the appropriateness of its rate plan, it "need not adopt the least intrusive means."
Four years later, in Riley v. California, 573 U.S. 373 (2014), the Court held that police officers must obtain a warrant before searching an arrestee’s cell phone. Though Riley involves a criminal matter, not an employment one, the rationale that the Court articulated paved the way for the work-related cases that followed. It again noted the "pervasive" use of cell phones; their being an insistent part of daily life that the proverbial "visitor from Mars might conclude they were part of the human anatomy." The Court stated that a cell phone search places "vast quantities of data in the hands of individuals." It distinguished this from a routine pat down or detainee search, saying that a cell phone search "bears little resemblance to the search of a person."
The Court also pointed out that referring to these devices as a "cell phone" was a misnomer, calling them "minicomputers" with a vast array of capabilities, and immense storage capacity. They hold months of mail, every article read, bank statements, videos, prescription information, and information about the owner’s precise location. It held that, "the sum of an individual’s private life can be reconstructed through a thousand photographs, labeled with dates, locations, and descriptions. Data dates back to the purchase of the phone, or farther." It noted that people did not used to carry a cache of personal information in their pocket wherever they went, and that both the "quality and quantity" of information contained on the phones revealed details about the owner’s personal life. It concluded that a cell phone was not like "a pack of cigarettes" that an officer could look into, and that just because someone may have had a piece of paper in their pocket that an officer could read does not justify searching through thousands of files. A cell phone search would reveal far more than the search of a house. Absent exigent circumstances, officers would need a warrant.
Decisions dealing with how this applies in the context of an employer search of an employee’s cell phone began to appear about six years later, but with resistance from the courts. In Port Authority Police Benevolent Association, Inc. v. Port Authority of New York and New Jersey, 2017 WL 44303310 (S.D.N.Y. 2017), the court concluded that the employer did not have the right to demand the surrender and search of probationary officers’ phones. This appears to be the first reported case in which a court concluded that the workplace exemption does not apply to an employee’s personal cell phone. The court noted that the phones of the probationary employees, who were brand new hires, had not been used for work-related purposes, and were their private property. The court examined the O’Connor workplace exemption and concluded that it did not apply to cell phones. The Court in O’Connor had held that employers could search property "under their control"; an employee’s cell phone was not in that category. The court was not persuaded that the probationary officers’ surrendered their phones "consensually", noting that they could be fired without just cause, were ordered to cooperate with the investigation, and were not told that they had any say in the matter.
In contrast, in Lazar v. Knight, 2020 WL 7396255 (6th Cir. 2020), the court held that it was not clearly established that an employer could not conduct a warrantless search of an employee’s cell phone and dismissed a lawsuit due to qualified immunity. The phone in that matter had been taken by a Police Officer’s wife to his department for the purpose of showing that he had been cheating on her. The department copied the phone and gave it back. After the Officer sued, the court dismissed the case.
In Larios v. Lunardi, 2021 WL 1997941 (9th Cir. 2021), a case involving whether a government employee was entitled to qualified immunity in a suit against him for searching an employee’s cell phone, the court held that it was not clear whether the workplace exemption applied, though it believed that there was a "search" and "seizure" in that case. The Larios decision does not cite the Lazar case, but it does reference the notion that an employee cell phone may not be property under the employer’s control for purposes of O’Connor. The court also added that, though the work product the employer was seizing was the property of the employer, that did not necessarily allow access to the employee’s phone. Searching for communications with one specific person did not give the government the right to search the whole phone. Maintaining the vagueness that courts adore so much, the court held that "balancing an individual’s privacy interests in the vast amount of data contained in modern cell phones against the government’s legitimate investigative interests is a complex issue that we will continue to grapple with in future days." The court also noted that "overcollection" of electronic data was an accepted part of discovery in federal civil litigation. Citing, U.S. v. Comprehensive Drug Testing, 621 F.3d 1162 (9 th Cir. 2010).
The Larios court references the workplace exemption’s "within the employer’s control" proviso, suggesting that this was on the judges’ minds.
In Wolski v. Gardner Police Department,560 F.Supp.3d 387 (D.C. Mass. 2021), issued just after Larios, the court held that the State Police violated a Trooper’s rights by ordering him to tender his cell phone for imaging. The court noted that the Trooper no longer had the phone that allegedly contained potential work related material (a name), that the search was unreasonable in its scope in that the department copied his entire phone when it was looking only for a note of a name, and that the phone contained highly personal photographs of a sexual nature that the Trooper had taken with his wife, a fact that was subsequently disclosed to other Troopers. Though concluding that the search was a violation of the 4 th Amendment, it cited Larios for the proposition that it was not firmly established that the workplace exemption did not apply.
In Turiano v. City of Phoenix, 562 F.Supp.3d 261 (D.C. Az. 2022), the court held that the employer police department did not have the right to warrantless searches of its officers’ phones. The department conducted an investigation into whether a video taken during a protest had been disseminated or discussed among the officers, who all refused to provide their phones. The court commented that it "easily" concluded that the officers had a reasonable expectation of privacy. The employer did not pay for the phones, they were "generally" not used for work, and no other employer employees had access to the phones or their data. The court repeated that the phones contain "deeply personal information." It analyzed the workplace exception and found that it generally does not allow for warrantless searches of employees’ homes. Under O’Connor, the property has to be "under employer control" to justify a warrantless search.
This year, in Coleman v. Las Vegas, 2024 WL 1701967, a case where the plaintiff Police Officer appeared pro se after firing his lawyer for incompetence, the court concluded—notwithstanding the case law to the contrary—that it was "still unresolved" whether the workplace exemption applies to the search of an employee’s private cell phone. The court dismissed the plaintiff’s lawsuit because it was unclear when the phone was taken, years earlier, whether he had a right to not surrender it voluntarily.
It does not seem that this issue should continue to have a grey area. Courts have discussed at length the depth and breadth of information contained on a cell phone. Under O’Connor, the property must be within the employer’s control in order to justify a warrantless search, and that is simply not the case with a personal cell phone. Nonetheless, courts continue to cite to the holding in Larios that it is "undecided" whether the workplace exemption applies, despite also finding that the searches otherwise violated the 4th Amendment.
Illinois has a state law that prohibits employers from requiring employees and candidate employees from tendering passwords to social media accounts, and otherwise displaying to them information from the employee’s social media. (Illinois Right to Privacy in the Workplace Act, 820 ILCS 55/1-20).
It remains the best policy to never use your cell phone for work purposes, as there can be other ramifications from that practice.
