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Consent To Searches At Work

 Searches Based on Consent FormsYoung businessman

It is becoming common practice for employers to issue privacy waivers or consent forms to employees.  These forms typically make clear that employees do not maintain an expectation of privacy in specified places or functions within the business.  Common examples are forms waiving an employee’s expectation of privacy in the business’ files, phone and internet access, or certain facilities provided by the employer such as lockers.  Although enforceable in certain circumstances, courts will scrutinize these waivers very carefully to ensure that the defendant’s constitutional rights were not violated in any way.

When the police or an employer rely upon such a consent form as the basis for their warrantless search, they have no more authority than they have been given by the consent. Courts will take into account any express or implied limitations or qualifications relevant to the defendant’s consent to search.  The State bears the burden to affirmatively establish that consent was voluntary. The courts have held that consent shall not be inferred lightly. See State v. Roseboro, 1990 WL 277237 (Conn. Super. 1990) (unreported);  See also Brown-Criscuolo v. Wolfe, 601 F.Supp.2d 441, 243 Ed. Law Rep. 245 for more information.

 Third Party Consent

An additional concern affecting Fourth Amendment protection is third party consent.  An individual is deemed to have waived his or her constitutional protections, thus receiving no protection, when consenting to a governmental search.  Of particular concern in employment contexts is the ability of a person other than the defendant to appropriately authorize a search.  Courts have expressed contrary views on what gives a “third party” the authority to consent to a search of another’s property, and while no one approach is used exclusively in these cases some general considerations can be explained.

The Supreme Court has abandoned the notion expressed in Stoner v. California that a person may waive his Fourth Amendment rights only “directly or through an agent,” although the agency test appears to have retained some of its force in the employee consent cases because its relevance is more apparent in such a context.  While an agency type of analysis may often be useful in employment cases, this approach is certainly not used exclusively.  At least a handful of courts have used, in appropriate circumstances, other tests, including the “assumption of risk” doctrine and “apparent authority” formula. The “assumption of risk” view considers that certain risks are assumed when there is joint use of or access to certain property because of a familial or real property relationship.  Logically this extends to the employment context because an employer runs some necessary risks that his employees will permit a search–even if such permission is not strictly within their authority as an agent of the employer. The “apparent authority” approach views a search to be constitutional if government officials receive consent from a third party that they “reasonably believe” has authority to do so. This is an objective test that looks only to whether the government’s reliance on such consent was reasonable, and is not concerned with whether the consenting party actually had such authority.

These tests invariably consider the relationship between the consenting party to the nature and scope of the consent being given.  As a result the relationship between the defendant employer and consenting employee will be a crucial element.

Consent By Employer

In the case where the consenting party is the defendants employer or supervisor, courts may infer more authority because of the supervisory relationship.  Two factors have been important in the courts’ analysis to resolve this issue: (i) the extent to which the particular area searched may be said to have been set aside for the personal use of the employee; and (ii) the extent to which the search was prompted by a unique or special need of the employer to maintain close scrutiny of employees. State v. Roseboro, 1990 WL 277237 (Conn. Super. 1990) (unreported).

With respect to the nature of the particular area searched at the place of employment, it is clear that an employer or supervisor may consent to a search of those areas that are not set aside for exclusive use by a particular employee.  It is also clear that an employer’s authority to consent is limited to areas relating to the business, an employer does not have authority to consent to a police search of an employee’s person.

There are other circumstances in which, because of the nature of the employment, it must be concluded that the employees have assumed the risk of a closer degree of scrutiny than would be proper in the employer-employee context generally.  As a general proposition courts have held that employers should not be able to consent to a search of lockers on the business premises which have been set aside for the use of employees in storing their personal effects, and certainly not employees’ on-site sleeping quarters.  However, the nature of a person’s employment may expand an employer’s authority to authorize a search.  For example, given a police department’s “substantial interest in assuring not only the appearance but the actuality of police integrity,” a different conclusion may be justified as to the search of the lockers of police officers under United States v. Speights, 413 F. Supp. 1221 (D.N.J.1976); Shaffer v. Field, 339 F. Supp. 997 (C.D.Cal.1972), aff’d, 484 F.2d 1196 (9th Cir.1973); People v. Neal, 109 Ill.2d 216, (1985).  The same may be said of persons who are employed in places with special security requirements, such as jail guards and persons working in the U.S. Mint.

Consent By Employee

Generally, it may be said that courts attempt to assess and evaluate the employment responsibilities of the employee as they relate to the nature of the search being challenged, which makes sense both in terms of “agency” and “assumption of risk” theories of consent. It is significant, for example, whether the employer has absented himself for some period of time and left the employee in charge of the place searched.

The fact that the employee’s duties relate to the granting of access to a certain place or to certain objects may make it easier to find that the employee had authority to allow a search of that place or those objects. Such would be the case, for example, where consent to search a warehouse is given by an employee who was entrusted with a key to the warehouse and regularly worked therein and thus had the premises under his “immediate and complete control.” Similarly, where a particular corporate employee was vested with complete supervision of the corporate books, there would be no “more proper individual” from whom to obtain consent to examine those books.  By contrast, it might well be concluded that a secretary-receptionist could not consent to a police search of her boss’ office during his absence, for her duties concerning access to that place would appear to be limited to ushering in persons with appointments.

Angry bossAlthough it is difficult to generalize, the courts appear to be influenced by the “status” of the employee. There seems to be a greater willingness to find effective consent when it is given by a person with the title of office manager, foreman, or caretaker than when the consent comes from a clerk, secretary, or babysitter.  It also appears, although again there is seldom, explicit recognition of this in the cases, that the private nature of the place searched is an additional concern.  An employee’s consent, it would seem, is more likely to be found sufficient for the search of a warehouse than it is for the search of a private office or residential premises. See State v. Griswold, 67 Conn. 290 (1896).

This is not to say, however, that the “apparent authority” doctrine will not be utilized in this area.  Because “the circumstances as they objectively appear to the police at the time of the search are all to be considered” in determining if the police “could have reasonably believed the employee had the authority” he purported to have, mistakes made by police in determining who has proper authority to consent to a search may be deemed irrelevant by a court.  United States v. Grigsby, 367 F. Supp. 900 (E.D. Ky. 1973).

Government or State Agency As Employer

The constitutional provisions discussed above only protect individuals from unreasonable searches and seizures performed by the government. This typically means the police.  As an example, the average employee receives no protection from her boss searching through her desk; finding drugs; and subsequently reporting her to the police.  However, governmental employees (state or federal) will receive constitutional protection of the reasonable expectation of privacy in an identical situation.  This protection extends not only to individuals with an obvious employment relationship to government entities (such as legislative employees; judicial employees; and police officers), but also to employees of state agencies such as the department of education (teachers) and the department of transportation (bus drivers).

However, Connecticut courts have held that special needs of public employers may allow them to dispense with probable cause and warrant requirements when conducting workplace searches related to investigations of work-related misconduct.  A warrantless search by a public employer may be reasonable when measures adopted for the search are reasonably related to objectives of search, and not excessively intrusive in light of its purpose. See Brown-Criscuolo v. Wolfe,  601 F. Supp. 2d 441, 243 Ed. Law Rep. 245.  Even if a government employee has a reasonable expectation of privacy in the workplace, “[a]n investigatory search for evidence of suspected work-related employee misfeasance will be constitutionally ‘reasonable’ if it is ‘justified at its inception’ and of appropriate scope.’ Leventhal, 266 F.3d at 75 quoting O’Connor, 480 U.S. at 726.

If you are the victim of a search at work, please contact our office at 203-925-9201 to begin working on your defense today.

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