N.D.Ill.: DUSM had no REP in his work cell phone nor computer because he was warned about lack of privacy

A deputy U.S. Marshal was indicted for a civil rights violation for excessive force on an arrestee and then seeking to cover it up with witnesses. He had no reasonable expectation of privacy in his work-issued Blackberry nor in the hard drives on his office computer because he was repeatedly warned of lack of privacy in them. He argued for a subjective expectation of privacy. Alternatively, even if he did, it was reasonable under the special needs exception for a government workplace search. United States v. Linder, 2012 U.S. Dist. LEXIS 112134 (N.D. Ill. August 9, 2012).* The concluding paragraph of this issue:

Linder did not have a reasonable expectation of privacy in his government-issued Blackberry or in his computer files stored on the government server. Linder was aware of the DOJ’s and USMS’s clear policies regarding the lack of a reasonable expectation of privacy in using both his Blackberry and the government information system. Furthermore, Linder was warned many times about these policies. Indeed, his computer displayed a banner and his Blackberry displayed a disclaimer every time he accessed them. Banners and policies generally eliminate an employee’s reasonable expectation of privacy in a government users’ network account. Furthermore, policies that authorize the employer to access the employee’s workplace diminish any reasonable expectation of privacy that the employee may have in their workplace. In addition, an employee cannot maintain a reasonable expectation of privacy in his electronic data when he is notified that his employer has reserved the right to access or inspect the information stored on his computer. For these reasons, Linder did not have a reasonable expectation of privacy in his Blackberry and the files he stored on the government server. Even if Linder’s subjective belief that he did have a reasonable expectation of privacy in these things were to be credited, such an expectation is not one that society is prepared to recognize as reasonable. And in the unlikely event that the search of Linder’s Blackberry and computer files did trigger Fourth Amendment protections, no warrant was required because the search falls within two well-recognized exceptions to the warrant requirement. First, the search was a reasonable government search regarding work-related misconduct, and therefore falls within the “special needs” exception to the warrant requirement. Second, Linder consented to the search by using the Blackberry and the government server aware that he was waiving his right to be free from government searches. For the foregoing reasons, Linder’s Motion to Suppress is denied.