Here the court considers a post-verdict motion to suppress. The court noted that there were kernels of cause for a motion to suppress, albeit a private search of an office, but the complete picture didn’t develop until trial. Giving he defendant the benefit of the doubt, the court goes to the merits, and he had no reasonable expectation of privacy in his open office space from which no one was excluded. United States v. Shelton, 2019 U.S. Dist. LEXIS 103267 (N.D. Ind. June 20, 2019):
Indeed, an office with an open-door policy such that any co-worker may simply waltz in whenever he pleases may not be entitled to any expectation of privacy. Id. at 718. See also United States v. Jenkins, 43 F.3d 447, 460 (7th Cir. 1995) (“[B]ecoming an ‘agent’ for purposes of Fourth Amendment analysis does not terminate one’s right to engage in conduct which was authorized prior to entering the agency relationship.”) An employer’s policy of conducting workplace searches, if made known to the employee, could also render an expectation of privacy unreasonable. Snider v. Pekney, 2010 U.S. Dist. LEXIS 17161 (N.D. Ind. Feb. 25, 2010). Still, the employee might have a reasonable expectation of privacy “in his desk and file cabinets,” depending on the circumstances. Id.
Here, several factors extinguish Defendant’s reasonable expectation of privacy. First, Garbutt had to enter Defendant’s office to sign his time sheets. (DE 258 at 198.) Second, Garbutt passed by her office to visit Elgin’s office, which he did regularly. (DE 193.) Third, Garbutt would often wander into Defendant’s office. Id. Fourth, Garbutt was often the first to arrive at work. (DE 257 at 168-69.) Even if Defendant did not know this, she herself started work early from time to time, and she knew of the “comp time” system, in which employees would receive benefits for arriving early or staying late. (DE 193.) Defendant was therefore on notice that her co-workers might take advantage of this opportunity by arriving early. Fifth, Elgin had security cameras plastered throughout the offices. Id. As Defendant testified, “Anything that happened in that office [Elgin] could see.” Id. Defendant knew Elgin often reviewed the footage these cameras captured. Id. Sixth, the CTTO had a company policy of conducting workplace searches of “[e]mployees, their possessions, and CTTO-issued [items] … at all times while on CTTO premises.” (Tr. Ex. 27 at 64.) Defendant acknowledged receiving an employee handbook that outlined this policy. (Tr. Ex. 55.) Seventh, and most importantly, Defendant left the documents on her desk. (DE 234 Ex. E at 2) (“CHS provided … [a] letter … which was discovered by CHS on Ethel Shelton’s desk.”). Thus, even if Defendant had a reasonable expectation of privacy in her desk, no reasonable person would expect privacy as to documents laying on a desk in what amounts to a monitored, high-traffic area subject to random searches.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)