A Public Employer’s Right to Search in the Workplace

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The employer is responsible for ensuring the efficient and effective operation of the workplace. Citizens
need the assurance that the department will protect their privacy within the parameters of the law. Given
the diverse situations and environments in which law enforcement officers work and the modern
technology available to them, they can easily circumvent those departmental rules or policies that exist
to protect sensitive or confidential information they gather. Without the ability to monitor and control the
data and information gathered, an employer has no way of uncovering violations of rules or policies
unless the information or pictures appear in the media or on the internet.

Unlike private sector employees, public employees have protection under the Constitution’s Fourth
Amendment protections against unreasonable search and seizure. It is necessary two explore two factors
when discussing Fourth Amendment protections: (1) the expectation of privacy for the employee, and
(2) the reasonableness of the search.

Expectation of Privacy

The federal courts first addressed the issue of expectation of privacy in Katz v United States, 389 US 347
(1967), a case which did not involve a public employer. The Katz case involved the FBI’s recording of a
bookmaker’s telephone while in a phone booth. The Court felt that society would think that Katz had a
reasonable expectation that his conversation would be private once he entered the booth and closed the
door. The Court felt that the FBI’s intrusion was unreasonable and disallowed the use of the recorded
evidence. The Court held that the Fourth Amendment protected Katz from the warrantless eavesdropping
because he “justifiably relied” upon the privacy of the telephone booth. Id., at 353. As Justice Harlan’s
oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a
subjective expectation of privacy that society recognizes as reasonable. See id., at 361. The Court said
that if the phone booth had not had a door, any passerby could hear the conversation, so that the
expectation of privacy may not be reasonable.