In an employment action against a city, plaintiff sought discovery of messages on cell phones. Making the city seek them raises Fourth Amendment concerns under O’Connor v. Ortega. Reynolds v. City of Rochester, 2026 U.S. Dist. LEXIS 93293 (W.D.N.Y. Apr. 28, 2026):
Third, Plaintiff has not shown that the City had a legal right to obtain communications from the Individual Defendants’ personal devices and accounts. In particular, Plaintiff fails to address any Fourth Amendment considerations related to the City’s status as a public employer. See Leventhal v. Knapek, 266 F.3d 64, 72-73 (2d Cir. 2001) (“[T]he Fourth Amendment protects individuals from unreasonable searches conducted by the Government, even when the Government acts as an employer.” (quoting Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989)). Public employees “have a reasonable expectation of privacy in their personal devices, and thus some of the information on their personal devices triggers Fourth Amendment protections and requires [their employer] to obtain a warrant before searching [the employees’] personal property.” ACLU of Tennessee, Inc. v. City of Memphis, No. 2:17-CV-02120 (JPM)(JAY), 2020 WL 4819544, at *2 (W.D. Tenn. Aug. 19, 2020).
In O’Connor v. Ortega, 480 U.S. 709 (1987), a plurality of the Supreme Court recognized an exception to the warrant requirement in connection with “searches conducted in the ‘workplace context,’ meaning searches of ‘those areas and items that are related to work and are generally within the employer’s control.'” Port Auth. Police Benevolent Ass’n, Inc. v. Port Auth. of New York & New Jersey, No. 15-CV-3526 (KMW)(RLE), 2017 WL 4403310, at *4 (S.D.N.Y. Sept. 29, 2017) (quoting O’Connor, 480 U.S. at 715). Under the O’Connor exception, “when conducted for a ‘noninvestigatory, work-related purpos[e]’ or for the ‘investigatio[n] of work-related misconduct,’ a government employer’s warrantless search is reasonable if it is ‘justified at its inception’ and if ‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of” the circumstances giving rise to the search.” City of Ontario, Cal. v. Quon, 560 U.S. 746, 761 (2010) (quoting O’Connor, 480 U.S. at 725-26).
Some courts have found that the O’Connor exception does not apply where the government employer conducts searches of its employees’ “purely personal” cell phones. See, e.g., Turiano v. City of Phoenix, 562 F. Supp. 3d 261, 277 (D. Ariz. 2022); Port Auth. Police Benevolent Ass’n, 2017 WL 4403310, at *5. Determining whether an employee’s personal cell phone falls within the O’Connor exception, and can therefore be subject to a warrantless search, requires especially difficult line-drawing exercises. …
"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, Let it Bleed (album, 1969)
"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]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"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)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
