W.D.La.: Search of desk in criminal investigation not governed by O’Connor

Defendant was a school resource officer, and his desk was searched in a fraud investigation seizing his computer and bank statements. The search was not sustainable as a workplace search under Ortega and United States v. Slanina, 283 F.3d 670 (5th Cir. 2002), judgment vacated on other grounds, 537 U.S. 802, 123 S.Ct. 69 (2002). United States v. Johnson, 2012 U.S. Dist. LEXIS 67294 (W.D. La. May 14, 2012), R&R 871 F. Supp. 2d 539 (W.D. La. March 20, 2012):

Under Slanina, the Government is correct that the status of the “searcher” as a “law enforcement officer is not dispositive,” and that “‘work related misconduct’ can include criminal activity unrelated to the job.” [Doc. No. 31, p. 4]. However, the Government asks the Court to ignore the “critical distinction” between this case and Slanina: whether an investigation was “wholly criminal” or had the dual purpose of an internal investigation into work-related misconduct and into the possible commission of a crime. In this case, there was no dual purpose; the single purpose of this investigation was Johnson’s possible commission of a crime. On September 8, 2008, Sergeant Charles Roark of the MPD, opened a criminal investigation into the sale of stolen merchandise through an eBay account in Johnson’s name. On September 12, 2008, Sergeant Roark asked the Federal Bureau of Investigation (“FBI”) to become involved. By the time they searched Johnson’s desk at Carroll Junior High School on February 20, 2009, Sergeant Roark and Agent Chesser had been involved in a joint criminal investigation of Johnson for six months. Under these circumstances, the MPD’s interest in the prompt and efficient operation of its workplace is not compelling in the least. The search of Johnson’s desk should not be reviewed under the O’Connor exception, as interpreted by the Fifth Circuit, and Magistrate Judge Hayes properly recommended the exclusion of the evidence found as a result of the search of Johnson’s desk.