CA7: City surreptitiously recording work calls violated Fourth Amendment

Plaintiff city employee stated a claim for a Fourth Amendment violation for the city’s surreptitiously recording telephone calls to and from the department plaintiff ran. Qualified immunity also denied. Narducci v. Moore, 572 F.3d 313 (7th Cir. 2009):

Nor can this court take at face value Lemm and Moore’s claim that Narducci could not have expected his phone calls to remain private in a crowded work area. Narducci claimed in his deposition testimony that when discussing a confidential matter he “went to a phone where there wasn’t a lot of people working nearby.” If true, this would be sufficient for the jury to conclude that Narducci had a subjective expectation of privacy when using one of the village phone lines.

Lemm and Moore also argue, however, that even if Narducci had a subjective expectation of privacy it was not an objectively reasonable one. Their contention is that society would not recognize a reasonable expectation of privacy in a phone line provided by the Village of Bellwood for public purposes. Under their theory, the need to monitor the efficient provision of public services militates against an expectation of privacy on such a phone line. This broad exclusion is in tension with language from the Ortega opinion rejecting such a categorical approach to workplace privacy rights. See Ortega, 480 U.S. at 717 (“Given the societal expectations of privacy in one’s place of work expressed in both Oliver and Mancusi, we reject the contention made by the Solicitor General and petitioners that public employees can never have a reasonable expectation of privacy in their place of work.”). As the Court found in Ortega, the idea that one could conduct confidential business at work, and have an expectation of privacy when doing so, is not per se unreasonable.

Lemm and Moore also argue that there was no “search” here within the meaning of the Fourth Amendment because, while the calls were recorded, there was no evidence that anyone ever listened to them. Their claim here is that if nobody ever learned about the contents of the phone calls then nobody did anything that could have run afoul of the Fourth Amendment. Narducci argues that we cannot credit this claim at summary judgment because there is a factual dispute about whether anyone listened to the phone calls. Narducci has not come forward with any evidence that anyone listened to the calls, and is really alluding to the possibility of a factual dispute more than anything else. 2 Nevertheless, this is not a proper ground for summary judgment. The defendants ask us to infer from the absence of evidence in the record that nobody from the Village of Bellwood ever listened to the recorded phone calls, but drawing that inference would be incompatible with the requirement that we draw all reasonable inferences in favor of the non-moving party.

Officers with specific training and experience in overweight and overwidth trucks had reasonable suspicion for plaintiff’s stop, despite the permits plaintiff had. The truck was, in fact, over the weight and width in the permit papers. Reid Mach., Inc. v. Lanzer, 614 F. Supp. 2d 849 (N.D. Ohio April 30, 2009).*

On habeas, the Fourth Amendment merits question is irrelevant. Matthews v. Workman, 571 F.3d 1065 (10th Cir. 2009)* (death penalty case):

Mr. Matthews argues that Oklahoma misapplied Fourth Amendment doctrine in reaching these conclusions, but that is not the question before us. The question is whether he had a full and fair opportunity to present his Fourth Amendment claims in state court; he undoubtedly did.

(Affirmed en banc Matthews v. Workman, 577 F.3d 1175 (10th Cir. 2009).)

Officer had reasonable suspicion to stop defendant at a gun show for carrying a concealed weapon, which was still a crime even though there were plenty of people there carrying guns that were not concealed. United States v. Montoya-Rodriguez, 2009 U.S. Dist. LEXIS 57655 (N.D. Okla. July 7, 2009).*