Work and Play: Phones, Tablets, and PCs – A Government Employer’s Right to Search Devices

Alfonso Gambone
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Alfonso Gambone is a Philadelphia criminal defense attorney dedicated to protecting your rights.

Employer’s Right to Search DevicesThe Fourth Amendment to the United States Constitution protects all persons against unreasonable searches and seizures. This constitutional amendment, however, isn’t as strong when it comes to government workplace searches. We are specifically talking about government and not private employers here. Remember, constitutional protections are only triggered if there is government involvement (government actor or agent) in the search and seizure of an item. Private employers are different because they don’t normally involve the government or its agent. Whenever a search involves the government, there are constitutional implications.

Normally, all searches require warrants provided there are no exigent circumstances which allows law enforcement to act without one. Searches with or without a warrant require probable cause. Without probable cause all evidence obtained from the search is inadmissible in court under the Exclusionary rule. Workplace searches, however, are different.

While the Fourth Amendment does still apply to workplace searches (government or private), the warrant and probable cause requirements of the Constitution don’t apply. The United States Supreme Court has ruled that the imposition of a warrant would conflict with the need to complete work in a prompt and efficient manner—basically the goal of any job!

The Supreme Court has not only ruled that traditional workplace searches do not require a search warrant or probable cause but has extended this ruling to electronic communication and devices; specifically smartphones, cell phones, tablets, and computers. These searches would include reviewing text messages, emails and other forms of electronic communications on mobile devices

It’s important to keep in mind that while employers don’t need probable cause or a warrant the search must still be reasonable. Specifically, a work place search is constitutional when there are reasonable grounds to believe that the search will turn up evidence that an employee is guilty of work related misconduct or that the search is necessary for non-investigatory work related purpose; such as to retrieve a needed file (employer have a wide range of discretion here.)  These searches may even apply to your own mobile device that is simply connected to a government network! Further, the court will consider all relevant circumstances pertaining to the search including the following:

  • The employees relationship to the items seized;
  • Whether the item was is in the immediate control of the employee when it was seized; and
  • Whether the employee took actions to maintain his privacy in the item.

If you believe that you’re a victim of an illegal search and seizure at your place of employment you should contact a criminal defense lawyer to understand your rights. Prior to contacting that lawyer I recommend thinking about the following questions and asking your attorney about each of them:

  1. Is there a question of whether the action was governmental (government agent-DOJ, FBI, Police, FTA, IRS, FDA?)
  2. Was the action taken against you a search at all (private employer with no government connection)?
  3. Did a work place supervisor conduct the search or law enforcement?
  4. What was the purpose of the search (investigate work place misconduct or non-investigatory reasons)?
  5. Was the search reasonable and was the scope of the search reasonable?

When a criminal court evaluates the reasonableness of a search it must balance the privacy interests against the realities of the workplace (actually getting work done.) This balancing test includes the search of private objects (purses, handbags, bags, containers) which the employee brings to work. With that said, many government agencies and employers have posted regulations informing individuals entering the property that their personal items are subject to inspection. Again, while a governmental employee or a person working for the government (contractor, etc) has a reasonable expectation of the privacy a warrantless search of that office and the computer is still constitutional if it meets the reasonableness test.

While Pennsylvania courts are bound by the Supreme Court’s “reasonableness test” there is no prohibition against Pennsylvania and other states providing a higher level of constitutional protections in these cases. Again, as I’ve written in the past, states are only required to comply with the US constitution but nothing prevents them from providing greater protection against illegal searches and seizures. Pennsylvania and its courts require search warrants if a member of law enforcement conduct a search, even if it the search is done in a place of employment (absent exigent circumstances.) All warrantless searches in Pennsylvania are thefore considered presumptively unconstitutional.

For more information on illegal searches and searches I encourage you to keep reading my blog and to check out my free download section.