Question – Can you be disciplined for refusing to produce your personal cell phone for an administrative search? <\/p>\n\n\n\n
Answer – In sum, peace officers can expect that their personal cell phones, if purchased by themselves, may generally not<\/strong> be searched by their employers, unless a specific policy or regulation gives the officer notice that those phones are subject to searches.<\/p>\n\n\n\n In August 2017 veteran Phoenix Police Officer Christopher Turiano fired a 40mm OC direct impact round at a political rally protester, striking that protester in the groin area. Turiano was part of the Department\u2019s Tactical Response Unit (\u201cTRU\u201d), a specialty detail responsible for crowd control and intervention at large events and protests. The rally, held in support of then-president Donald Trump, devolved into violence. Turiano discharged his launcher in response to the protester kicking a tear gas canister toward police. The injured protester and others filed a class action suit against Turiano and TRU, alleging excessive force.<\/p>\n\n\n\n Four years after the incident, a media report was released regarding the existence of a challenge coin commemorating the protest and shooting incident. One side of the coin depicted a caricature of the protester being struck in the groin by Turiano\u2019s munition along with the words \u201cGood Night Left Nut,\u201d a phrase resembling the neo-Nazi slogan \u201cGood Night Left Side.\u201d The other side of the coin included the date and location of the protest and the phrase \u201cMake America Great Again One Nut at a Time.\u201d<\/p>\n\n\n\n The Department initiated an investigation regarding the creation of the challenge coin. The investigators requested that Turiano and his TRU colleagues agree to provide access to their cell phone data. All officers refused the request.<\/p>\n\n\n\n Shortly thereafter, the Department informed Turiano that he was compelled to consent to a targeted search of his stored cell phone data. Turiano was further informed that he would be subject to discipline \u201cup to and including termination\u201d if he failed to comply. Turiano refused and the Department sought to discipline him for insubordination. Turiano filed a lawsuit, seeking to prevent the Department from disciplining him based on his refusal.<\/p>\n\n\n\n The District Court granted Turiano\u2019s motion and issued an injunction preventing the Department from disciplining Turiano based on his refusal to give the Department access to his personal cell phone data. In doing so, the court carefully dissected the scope of the Fourth Amendment as it pertains to law enforcement personnel and provided helpful guidance regarding officers\u2019 privacy rights regarding personal cell phone data.<\/p>\n\n\n\n Citing Supreme Court precedence, the court reiterated that an officer must satisfy two prongs to prevail against a search by his Department\/employer: First, the officer must have a reasonable expectation of privacy<\/em> in the item searched. Second, the Department\u2019s search must be unreasonable \u201cunder all the circumstances.\u201d<\/em><\/p>\n\n\n\n 1. Turiano had a reasonable expectation of privacy<\/p>\n\n\n\n The first prong is broken down into two sub-parts \u2013 one subjective, the other objective: First, \u201c[a] reasonable expectation of privacy exists where \u2018a person ha[s] exhibited an actual (subjective) expectation of privacy.\u2019\u201d In other words, the officer must actually believe that he had a protected privacy right and, that his cell phone data was protected from being searched. Second, that subjective expectation of privacy must be objectively reasonable. This simply means that the officer\u2019s belief cannot be far-fetched or speculative but must, in the eyes of an average person, make sense.<\/p>\n\n\n\n Applying those sub-parts, the court \u201ceasily [concluded] that Turiano has a reasonable expectation of privacy in the imaged [cell phone] data\u2026\u201d The court reasoned that the data at issue was on Turiano\u2019s personal cell phone, the department did not purchase the phone nor pay for the data plan, that Turiano generally did not use the phone for work purposes, and that no other department employee had access to his phone.<\/p>\n\n\n\n It is important to note, however, that the court came to this conclusion in part because this particular employer, the Phoenix PD, did not have a policy or regulation giving its employees notice that cell phones may be searched. If such a policy or regulation exists, the employee is deemed to be on notice, which means there is no reasonable expectation of privacy. So, you should carefully review your employer\u2019s policies to determine whether they contain any such notice. <\/p>\n\n\n\n 2. The workplace exception does not <\/u><\/strong>apply to the cell phone data search<\/p>\n\n\n\n Having determined that Turiano\u2019s subjective expectation of privacy was objectively reasonable, the court looked at the second prong \u2013 whether the department\u2019s search was reasonable \u201cunder all the circumstances.\u201d<\/p>\n\n\n\n Before doing so, the court examined the so-called \u201cworkplace exception\u201d as applied in this case. The workplace exception permits public employers, including law enforcement agencies, to conduct warrantless searches for non-investigatory work-related purposes or to investigate workplace misconduct. The scope of those searches is limited and does not include searching, for example, an employee\u2019s home without the need for probable cause and a warrant. Instead, the court explained that the workplace exception is limited to those searches that are conducted in the \u201cworkplace context.\u201d This includes \u201cthose areas and items that are related to work and are generally within the employer\u2019s control.\u201d For example, courts have held that \u201csearches of employees\u2019 locked personal safes, medical records, and homes are outside the scope of the workplace exception.\u201d<\/p>\n\n\n\n More importantly, the court also found that \u201c[a]t least two courts have held that a public employer\u2019s search of an employee\u2019s personal cell phone to obtain information concerning work-related misconduct was outside the scope of the workplace exception.\u201d The district court in Turiano agreed with those courts for three reasons:<\/p>\n\n\n\n First, the court found that \u201ca personal cell phone is just that \u2013 personal\u201d \u2013 and is not within the employer\u2019s control.<\/p>\n\n\n\n Second, the court found that \u201ca personal cell phone\u2026 contains sensitive personal information that is entirely unrelated to an individual\u2019s employment.\u201d<\/p>\n\n\n\n Third, the court reasoned that cell phones are such an integral part of most people\u2019s lives that the mere presence of the phone at the workplace does not mean it is in a \u201cworkplace context\u201d for purposes of the workplace exception.<\/p>\n\n\n\n For these reasons, the court concluded that the workplace exception did not apply to <\/strong>Turiano\u2019s personal cellphone.<\/p>\n\n\n\n 3. The Department\u2019s search was unreasonable <\/p>\n\n\n\n Where the workplace exception does not apply, the issue of whether the department\u2019s search was reasonable is moot. Without the exception, the employer must have probable cause and a warrant to conduct the search.<\/p>\n\n\n\n Nonetheless, the court analyzed whether \u201creasonableness\u201d existed. The court found it did not.<\/p>\n\n\n\n To be reasonable, the search must be (1) \u201cjustified at its inception\u201d and (2) \u201creasonably related in scope to the circumstances which justified the interference in the first place.\u201d<\/p>\n\n\n\n In a public employment context a search is justified in its inception \u201cwhen there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct.\u201d This is akin to the \u201creasonable suspicion\u201d standard that you are all familiar with. Here, the Department\u2019s sole justification for searching Turiano\u2019s cell phone was that the data may contain evidence that was generated close to the time of the 2017 protest incident and the subsequent coin creation. In the court\u2019s view, this alleged nexus fell far short of satisfying the justification prong. While the department may have suspected (or hoped) that Turiano\u2019s cell phone would contain incriminating data, that suspicion was not, in the court\u2019s view, reasonable.<\/p>\n\n\n\n Because the department did not satisfy the first prong (\u201cjustified at its inception\u201d), the court did not need to address whether the search was \u201creasonably related in scope to the circumstances which justified the interference in the first place.\u201d Nonetheless, the court again went out of its way to provide additional guidance, this time regarding the required nexus between the justification and the scope of the search, i.e., prong number two.<\/p>\n\n\n\n 4. Insufficient nexus between the justification and the scope of the search<\/p>\n\n\n\n The Department\u2019s justification for searching Turiano\u2019s cell phone data was the belief that the data would reveal evidence of who designed, created, and distributed the challenge coin. The Department, conceded it neither had evidence nor a suspicion that Turiano himself was the perpetrator. Instead, the scope of the search targeted potential wrongdoing of other officers, who the Department hoped would be incriminated by the cell phone data. The court found that absent \u201csome quantum of individualized suspicion\u201d against Turiano himself, the search failed to satisfy the second prong. The Court found a cell phone search affects Turiano\u2019s substantial privacy interests and thereby found this prong, too, had not been satisfied.<\/p>\n\n\n\n 5. Irreparable harm, the balance of hardships and public interest<\/p>\n\n\n\n To prevail on his motion, Turiano had to show (1) that irreparable harm would result if the motion was denied and (2) that Turiano\u2019s hardships, if the motion was denied, would outweigh the public interests in disclosing the cell phone data. The court found that the illegal search violated Turiano\u2019s constitutional rights (under the Fourth Amendment), which automatically made the harm irreparable. As for hardships, the court stated: \u201cThe balance of hardships tips sharply toward appellants [including Turiano], who face a stark choice \u2013 either violation of their constitutional rights or loss of their jobs.\u201d<\/p>\n\n\n\n By satisfying the harm and hardship elements (in addition to showing that his expectation of privacy was reasonable and the department\u2019s search was unreasonable), the court granted Officer Turiano\u2019s motion and enjoined the Department from disciplining him for his refusal to consent to a search of his personal cell phone data.<\/p>\n\n\n\n Stay Safe and Healthy!<\/strong><\/p>\n\n\n\n Michael Silander defends the rights of peace officers in administrative hearings, discrimination and harassment proceedings, and in state and federal courts. He has over 20 years of litigation experience and serves as general counsel for public agencies<\/em>.<\/p>\n","protected":false},"excerpt":{"rendered":" Question – Can you be disciplined for refusing to produce your personal cell phone for an administrative search? Answer – In sum, peace officers can expect that their personal cell phones, if purchased by themselves, may generally not be searched by their employers, unless a specific policy or regulation gives the officer notice that those […]<\/p>\n","protected":false},"author":1,"featured_media":2046,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[29],"tags":[],"class_list":["post-2538","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-discipline"],"_links":{"self":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts\/2538","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/comments?post=2538"}],"version-history":[{"count":0,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts\/2538\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/media\/2046"}],"wp:attachment":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/media?parent=2538"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/categories?post=2538"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/tags?post=2538"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}