Defendant had a reasonable expectation of privacy in his desk at work

Defendant had a reasonable expectation of privacy in his desk at work, and the state did not show that the work area was shared with others to show that there was no expectation of privacy. Harper v. State, 283 Ga. 102, 657 S.E.2d 213 (2008):

The trial court made an alternative finding that no warrant was required for the search of Harper’s desk at work, because it was unlocked and was in a workspace shared by numerous coworkers. The trial court cited Mancusi v. DeForte, 392 U. S. 364 (88 SC 2120, 20 LE2d 1154) (1968), but it failed to recognize that that case controls this issue favorably to Harper. In DeForte, officials conducted a warrantless search of an office owned by a union. The Court held that the defendant had standing to insist that evidence seized during the search be suppressed despite the fact that the union held title to the office and despite the fact that he shared the office with several other union officials. Contrary to the trial court’s reasoning here, the Supreme Court stated as follows:

It seems to us that the situation was not fundamentally changed because DeForte shared an office with other union officers. DeForte still could reasonably have expected that only those persons and their personal or business guests would enter the office, and that records would not be touched except with their permission or that of union higher-ups.

Mancusi v. DeForte, supra at 369 (II). Because there was no evidence that any of Harper’s coworkers or supervisors gave valid consent to the search of his desk, we conclude, in light of DeForte, that a warrant was required for its search. The trial court’s conclusion regarding Harper’s desk is also contrary to O’Connor v. Ortega, 480 U. S. 709 (107 SC 1492, 94 LE2d 714) (1987). In Ortega, a plurality of the Court suggested that some office desks, filing cabinets, and similar items may be so open to the public or be subject to such general use that no one person has any reasonable expectation of privacy in them. However, the Court concluded that the desk and file cabinet in question were used exclusively by the defendant, that he regularly kept personal items in them, and that the defendant’s employer did not have any regulation or policy discouraging employees from storing personal items in their desks and file cabinets. Furthermore, a review of the concurring and dissenting opinions in Ortega reveals that the plurality opinion represented the most restrictive view of the defendant’s privacy interest and that a majority of the Court believed that the defendant plainly had a reasonable expectation of privacy, not only in his desk and file cabinet, but also in the whole of his office. See O’Connor v. Ortega, supra at 729-732 (732-748 (II) (Blackmun, J., dissenting). In light of the foregoing and our review of the evidence in the record, we conclude that the search of Harper’s desk at work invaded a reasonable expectation of privacy and, therefore, that the warrant requirement applied.