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\u2019Connor v. Ortega. Reynolds v. City of Rochester, 2026 U.S. Dist. LEXIS 93293 (W.D.N.Y. Apr. 28, 2026):<\/p>\n\n\n\n\n\n\n\n
\nThird, 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).<\/p>\n\n\n\n
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).<\/p>\n\n\n\n
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. \u2026<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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\u2019Connor v. Ortega. Reynolds v. City of Rochester, 2026 U.S. Dist. LEXIS 93293 (W.D.N.Y. Apr. … Continue reading