Public employee who was suspended then resigned had a significantly reduced expectation of privacy in his office thirty days after he left employment

Defendant was suspended from his job for thirty days and then resigned. He made no effort to recover all his personal property from the City’s premises. Having resigned and not seeking recovery of his property, he had a reduced expectation of privacy in this workplace search. United States v. Venkataram, 2007 U.S. Dist. LEXIS 852 (S.D. N.Y. January 5, 2007):

Mr. Venkataram argues that he maintained a reasonable expectation of privacy in his offices at the time of the search on September 13, 2005, despite having already been suspended for thirty days and having resigned his position because, unlike the teacher in Shaul, he was not provided with an adequate opportunity to recover his personal property. (Def. Mem 15.) Specifically, Mr. Venkataram reads Shaul to require an affirmative invitation to recover personal property by a former employer before reasonable expectation of privacy is lost. (Def. Post-Hr’g Mem. 3, quoting Shaul, 363 F.3d at 183 (“‘Taken together the demand [for his school keys] and the invitation [to remove personal belongings from his classroom] served as constructive notice that Shaul could have no reasonable expectation of privacy in anything that he did not remove from his former classroom after that date.'”).) While undoubtedly a persuasive factor in Shaul for determining whether there was still a reasonable expectation of privacy, the case does not go so far as to require an employer to always provide an affirmative invitation in order for there to be sufficient notice that a privacy interest is being lost. The search in Shaul took place fifteen days after the teacher had been only suspended, while the search of Mr. Venkataram’s Bellevue office took place more than thirty days after he had been suspended, as well as after he had officially resigned.

While a reasonable expectation of privacy may continue to exist following resignation if there is no opportunity at all to retrieve personal items, see Shaul, 363 F.3d at 183 (holding that the suspended schoolteacher forfeited his privacy interest in items left in his classroom by failing to retrieve them on the opportunities afforded), those facts are not present here. Mr. Venkataram had ample opportunity to inform DOI or OCME by himself or through his counsel that he needed to recover personal property from his former offices. He could have done so the night he was suspended; instead, Mr. Venkataram only requested permission to take two items, and that request was granted. He also could have made a request at any time during the thirty days of his suspension, in his resignation letter, or following his resignation. In the absence of a request for an opportunity to retrieve his other belongings until this motion was made, the Defendant Venkataram’s motion to suppress physical evidence seized from his former OCME offices at Bellevue Hospital and 520 First Avenue is denied.

Habeas court in a § 2254 claim interestingly considers a Fourth Amendment claim under AEDPA’s “reasonable application” of federal law rather than under Stone v. Powell, and the court finds the state court determination reasonable. Washington v. Rowley, 2007 U.S. Dist. LEXIS 855 (E.D. Mo. January 8, 2007):

As such, the court finds that the State appellate court’s decision in regard to the issues raised in Petitioner’s Ground 1 is not contrary to federal law and that it is a reasonable application of federal law. See Arvizu, 534 U.S. at 273; Terry, 392 U.S. at 9-10; Wipf, 397 F.3d at 683-84; Lewis, 183 F.3d at 794. For the reasons fully set forth above, the court further finds that the State appellate court reasonably applied federal law to the facts of Petitioner’s case. As such, the court finds that Petitioner’s Ground 1 is without merit and that it should be dismissed.

Two alleged Hell’s Angels were stopped for speeding, and the officer photographed them as a part of the stop. The District Court found a triable issue on taking the photograph under a threat of arrest but granted the officer qualified immunity because no court has explained the scope of Atwater v. City of Lago Vista on a stop like this. Yezek v. Mitchell, 2007 U.S. Dist. LEXIS 778 (N.D. Cal. January 8, 2007).*