O‘CONNOR ET AL. v. ORTEGA
No. 85-530
Supreme Court of the United States
Argued October 15, 1986-Decided March 31, 1987
480 U.S. 709
Jeffrey T. Miller argued the cause for petitioners. With him on the briefs were John K. Van de Kamp, Attorney General of California, Marvin Goldsmith, Assistant Attorney General, and Jeffrey T. Miller and Teresa Tan, Deputy Attorneys General.
Joel I. Klein, by invitation of the Court, 475 U. S. 1006, argued the cause and filed a brief as amicus curiae in support of the judgment below. Magno J. Ortega, pro se, filed a brief as respondent.*
JUSTICE O‘CONNOR announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE POWELL join.
This suit under
I
Dr. Magno Ortega, a physician and psychiatrist, held the position of Chief of Professional Education at Napa State Hospital (Hospital) for 17 years, until his dismissal from that position in 1981. As Chief of Professional Education, Dr. Ortega had primary responsibility for training young physicians in psychiatric residency programs.
In July 1981, Hospital officials, including Dr. Dennis O‘Connor, the Executive Director of the Hospital, became concerned about possible improprieties in Dr. Ortega‘s management of the residency program. In particular, the Hospital officials were concerned with Dr. Ortega‘s acquisition of an Apple II computer for use in the residency program. The officials thought that Dr. Ortega may have misled Dr. O‘Connor into believing that the computer had been donated, when in fact the computer had been financed by the possibly coerced contributions of residents. Additionally, the Hospital officials were concerned with charges that Dr. Ortega had sexually harassed two female Hospital employees, and had taken inappropriate disciplinary action against a resident.
On July 30, 1981, Dr. O‘Connor requested that Dr. Ortega take paid administrative leave during an investigation of these charges. At Dr. Ortega‘s request, Dr. O‘Connor agreed to allow Dr. Ortega to take two weeks’ vacation instead of administrative leave. Dr. Ortega, however, was requested to stay off Hospital grounds for the duration of the investigation. On August 14, 1981, Dr. O‘Connor informed Dr. Ortega that the investigation had not yet been completed, and that he was being placed on paid administrative leave. Dr. Ortega remained on administrative leave until
Dr. O‘Connor selected several Hospital personnel to conduct the investigation, including an accountant, a physician, and a Hospital security officer. Richard Friday, the Hospital Administrator, led this “investigative team.” At some point during the investigation, Mr. Friday made the decision to enter Dr. Ortega‘s office. The specific reason for the entry into Dr. Ortega‘s office is unclear from the record. The petitioners claim that the search was conducted to secure state property. Initially, petitioners contended that such a search was pursuant to a Hospital policy of conducting a routine inventory of state property in the office of a terminated employee. At the time of the search, however, the Hospital had not yet terminated Dr. Ortega‘s employment; Dr. Ortega was still on administrative leave. Apparently, there was no policy of inventorying the offices of those on administrative leave. Before the search had been initiated, however, petitioners had become aware that Dr. Ortega had taken the computer to his home. Dr. Ortega contends that the purpose of the search was to secure evidence for use against him in administrative disciplinary proceedings.
The resulting search of Dr. Ortega‘s office was quite thorough. The investigators entered the office a number of times and seized several items from Dr. Ortega‘s desk and file cabinets, including a Valentine‘s Day card, a photograph, and a book of poetry all sent to Dr. Ortega by a former resident physician. These items were later used in a proceeding before a hearing officer of the California State Personnel Board to impeach the credibility of the former resident, who testified on Dr. Ortega‘s behalf. The investigators also seized billing documentation of one of Dr. Ortega‘s private patients under the California Medicaid program. The investigators did not otherwise separate Dr. Ortega‘s property from state property because, as one investigator testified, “[t]rying to sort State from non-State, it was too much to do, so I gave it
Dr. Ortega commenced this action against petitioners in Federal District Court under
We granted certiorari, 474 U. S. 1018 (1985), and now reverse and remand.
II
The strictures of the Fourth Amendment, applied to the States through the Fourteenth Amendment, have been applied to the conduct of governmental officials in various civil activities. New Jersey v. T. L. O., 469 U. S. 325, 334-335 (1985). Thus, we have held in the past that the Fourth Amendment governs the conduct of school officials, see ibid., building inspectors, see Camara v. Municipal Court, 387 U. S. 523, 528 (1967), and Occupational Safety and Health
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....” Our cases establish that Dr. Ortega‘s Fourth Amendment rights are implicated only if the conduct of the Hospital officials at issue in this case infringed “an expectation of privacy that society is prepared to consider reasonable.” United States v. Jacobsen, 466 U. S. 109, 113 (1984). We have no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable. Instead, “the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment, the uses to which the individual has put a location, and our societal understanding that certain areas deserve the most scrupulous protection from government invasion.” Oliver v. United States, 466 U. S. 170, 178 (1984) (citations omitted).
Because the reasonableness of an expectation of privacy, as well as the appropriate standard for a search, is understood to differ according to context, it is essential first to delineate the boundaries of the workplace context. The workplace includes those areas and items that are related to work and are generally within the employer‘s control. At a hospital, for
Not everything that passes through the confines of the business address can be considered part of the workplace context, however. An employee may bring closed luggage to the office prior to leaving on a trip, or a handbag or briefcase each workday. While whatever expectation of privacy the employee has in the existence and the outward appearance of the luggage is affected by its presence in the workplace, the employee‘s expectation of privacy in the contents of the luggage is not affected in the same way. The appropriate standard for a workplace search does not necessarily apply to a piece of closed personal luggage, a handbag, or a briefcase that happens to be within the employer‘s business address.
Within the workplace context, this Court has recognized that employees may have a reasonable expectation of privacy against intrusions by police. See Mancusi v. DeForte, 392 U. S. 364 (1968). As with the expectation of privacy in one‘s home, such an expectation in one‘s place of work is “based upon societal expectations that have deep roots in the history of the Amendment.” Oliver v. United States, supra, at 178, n. 8. Thus, in Mancusi v. DeForte, supra, the Court held that a union employee who shared an office with other union employees had a privacy interest in the office sufficient to challenge successfully the warrantless search of that office:
“It has long been settled that one has standing to object to a search of his office, as well as of his home.... [I]t seems clear that if DeForte had occupied a ‘private’ office in the union headquarters, and union records had been seized from a desk or a filing cabinet in that office, he would have had standing.... In such a ‘private’ of-
fice, DeForte would have been entitled to expect that he would not be disturbed except by personal or business invitees, and that records would not be taken except with his permission or that of his union superiors.” 392 U. S., at 369.
Given the societal expectations of privacy in one‘s place of work expressed in both Oliver and Mancusi, we reject the contention made by the Solicitor General and petitioners that public employees can never have a reasonable expectation of privacy in their place of work. Individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer. The operational realities of the workplace, however, may make some employees’ expectations of privacy unreasonable when an intrusion is by a supervisor rather than a law enforcement official. Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. Indeed, in Mancusi itself, the Court suggested that the union employee did not have a reasonable expectation of privacy against his union supervisors. 392 U. S., at 369. The employee‘s expectation of privacy must be assessed in the context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits. Simply put, it is the nature of government offices that others-such as fellow employees, supervisors, consensual visitors, and the general public-may have frequent access to an individual‘s office. We agree with JUSTICE SCALIA that “[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as em-
The Court of Appeals concluded that Dr. Ortega had a reasonable expectation of privacy in his office, and five Members of this Court agree with that determination. See post, at 731-732 (SCALIA, J., concurring in judgment); post, at 732 (BLACKMUN, J., joined by BRENNAN, MARSHALL, and STEVENS, JJ., dissenting). Because the record does not reveal the extent to which Hospital officials may have had work-related reasons to enter Dr. Ortega‘s office, we think the Court of Appeals should have remanded the matter to the District Court for its further determination. But regardless of any legitimate right of access the Hospital staff may have had to the office as such, we recognize that the undisputed evidence suggests that Dr. Ortega had a reasonable expectation of privacy in his desk and file cabinets. The undisputed evidence discloses that Dr. Ortega did not share his desk or file cabinets with any other employees. Dr. Ortega had occupied the office for 17 years and he kept materials in his office, which included personal correspondence, medical files, correspondence from private patients unconnected to the Hospital, personal financial records, teaching aids and notes, and personal gifts and mementos. App. 14. The files on physicians in residency training were kept outside Dr. Ortega‘s office. Id., at 21. Indeed, the only items found by the investigators were apparently personal items because, with the exception of the items seized for use in the administrative hearings, all the papers and effects found in the office were simply placed in boxes and made available to Dr. Ortega.
On the basis of this undisputed evidence, we accept the conclusion of the Court of Appeals that Dr. Ortega had a reasonable expectation of privacy at least in his desk and file cabinets. See Gillard v. Schmidt, 579 F. 2d 825, 829 (CA3 1978); United States v. Speights, 557 F. 2d 362 (CA3 1977); United States v. Blok, 88 U. S. App. D. C. 326, 188 F. 2d 1019 (1951).
III
Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of Appeals simply concluded without discussion that the “search ... was not a reasonable search under the fourth amendment.” 764 F. 2d, at 707. But as we have stated in T. L. O., “[t]o hold that the Fourth Amendment applies to searches conducted by [public employers] is only to begin the inquiry into the standards governing such searches. ... [W]hat is reasonable depends on the context within which a search takes place.” New Jersey v. T. L. O., 469 U. S., at 337. Thus, we must determine the appropriate standard of reasonableness applicable to the search. A determination of the standard of reasonableness applicable to a particular class of searches requires “balanc[ing] the nature and quality of the intrusion on the individual‘s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” United States v. Place, 462 U. S. 696, 703 (1983); Camara v. Municipal Court, 387 U. S., at 536-537. In the case of searches conducted by a public employer, we must balance the invasion of the employees’ legitimate expectations of pri-
“[I]t is settled ... that ‘except in certain carefully defined classes of cases, a search of private property without proper consent is “unreasonable” unless it has been authorized by a valid search warrant.‘” Mancusi v. DeForte, 392 U. S., at 370 (quoting Camara v. Municipal Court, supra, at 528-529). There are some circumstances, however, in which we have recognized that a warrant requirement is unsuitable. In particular, a warrant requirement is not appropriate when “the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.” Camara v. Municipal Court, supra, at 533. Or, as JUSTICE BLACKMUN stated in T. L. O., “[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” 469 U. S., at 351 (concurring in judgment). In Marshall v. Barlow‘s, Inc., 436 U. S. 307 (1978), for example, the Court explored the burdens a warrant requirement would impose on the Occupational Safety and Health Act regulatory scheme, and held that the warrant requirement was appropriate only after concluding that warrants would not “impose serious burdens on the inspection system or the courts, [would not] prevent inspections necessary to enforce the statute, or [would not] make them less effective.” 436 U. S., at 316. In New Jersey v. T. L. O., supra, we concluded that the warrant requirement was not suitable to the school environment, because such a requirement would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools.
There is surprisingly little case law on the appropriate Fourth Amendment standard of reasonableness for a public employer‘s work-related search of its employee‘s offices, desks, or file cabinets. Generally, however, the lower courts have held that any “work-related” search by an em-
The legitimate privacy interests of public employees in the private objects they bring to the workplace may be substantial. Against these privacy interests, however, must be balanced the realities of the workplace, which strongly suggest that a warrant requirement would be unworkable. While police, and even administrative enforcement personnel, conduct searches for the primary purpose of obtaining evidence for use in criminal or other enforcement proceedings, employers most frequently need to enter the offices and desks of their employees for legitimate work-related reasons wholly unrelated to illegal conduct. Employers and supervisors are focused primarily on the need to complete the government agency‘s work in a prompt and efficient manner. An employer may have need for correspondence, or a file or report available only in an employee‘s office while the employee is
In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employee‘s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable. In contrast to other circumstances in which we have required warrants, supervisors in offices such as at the Hospital are hardly in the business of investigating the violation of criminal laws. Rather, work-related searches are merely incident to the primary business of the agency. Under these circumstances, the imposition of a warrant requirement would conflict with “the common-sense realization that government offices could not function if every employment decision became a constitutional matter.” Connick v. Myers, 461 U. S. 138, 143 (1983).
Whether probable cause is an inappropriate standard for public employer searches of their employees’ offices presents a more difficult issue. For the most part, we have required that a search be based upon probable cause, but as we noted in New Jersey v. T. L. O., “[t]he fundamental command of the Fourth Amendment is that searches and seizures be reasonable, and although ‘both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, ... in certain limited circumstances neither is required.‘” 469 U. S., at 340 (quoting Almeida-Sanchez v. United States, 413 U. S. 266, 277 (1973) (POWELL, J., concurring)). Thus, “[w]here a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to
As an initial matter, it is important to recognize the plethora of contexts in which employers will have an occasion to intrude to some extent on an employee‘s expectation of privacy. Because the parties in this case have alleged that the search was either a noninvestigatory work-related intrusion or an investigatory search for evidence of suspected work-related employee misfeasance, we undertake to determine the appropriate Fourth Amendment standard of reasonableness only for these two types of employer intrusions and leave for another day inquiry into other circumstances.
The governmental interest justifying work-related intrusions by public employers is the efficient and proper operation of the workplace. Government agencies provide myriad services to the public, and the work of these agencies would suffer if employers were required to have probable cause before they entered an employee‘s desk for the purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory context, much meaning when the purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept of probable cause has little meaning for a routine inventory conducted by public employers for the purpose of securing state property. See Colorado v. Bertine, 479 U. S. 367 (1987); Illinois v. Lafayette, 462 U. S. 640 (1983). To ensure the efficient and proper operation of the agency, therefore, public employers must be given wide latitude to enter employee offices for work-related, noninvestigatory reasons.
Balanced against the substantial government interests in the efficient and proper operation of the workplace are the privacy interests of government employees in their place of work which, while not insubstantial, are far less than those found at home or in some other contexts. As with the building inspections in Camara, the employer intrusions at issue here “involve a relatively limited invasion” of employee privacy. 387 U. S., at 537. Government offices are provided to employees for the sole purpose of facilitating the work of an agency. The employee may avoid exposing personal belongings at work by simply leaving them at home.
In sum, we conclude that the “special needs, beyond the normal need for law enforcement make the ... probable-cause requirement impracticable,” 469 U. S., at 351 (BLACKMUN, J., concurring in judgment), for legitimate work-related, noninvestigatory intrusions as well as investigations of work-related misconduct. A standard of reasonableness will neither unduly burden the efforts of government employers to ensure the efficient and proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of public employees. We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness
“Determining the reasonableness of any search involves a twofold inquiry: first, one must consider ‘whether the ... action was justified at its inception,’ Terry v. Ohio, 392 U. S., at 20; second, one must determine whether the search as actually conducted ‘was reasonably related in scope to the circumstances which justified the interference in the first place,’ ibid.” New Jersey v. T. L. O., supra, at 341.
Ordinarily, a search of an employee‘s office by a supervisor will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file. Because petitioners had an “individualized suspicion” of misconduct by Dr. Ortega, we need not decide whether individualized suspicion is an essential element of the standard of reasonableness that we adopt today. See New Jersey v. T. L. O., supra, at 342, n. 8. The search will be permissible in its scope when “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the [misconduct].” 469 U. S., at 342.
IV
In the procedural posture of this case, we do not attempt to determine whether the search of Dr. Ortega‘s office and the seizure of his personal belongings satisfy the standard of reasonableness we have articulated in this case. No evidentiary hearing was held in this case because the District Court acted on cross-motions for summary judgment, and granted petitioners summary judgment. The Court of Appeals, on the other hand, concluded that the record in this case justi-
We believe that both the District Court and the Court of Appeals were in error because summary judgment was inappropriate. The parties were in dispute about the actual justification for the search, and the record was inadequate for a determination on motion for summary judgment of the reasonableness of the search and seizure. Petitioners have consistently attempted to justify the search and seizure as required to secure the state property in Dr. Ortega‘s office. Mr. Friday testified in a deposition that he had ordered members of the investigative team to “check Dr. Ortega‘s office out in order to separate the business files from any personal files in order to ascertain what was in his office.” App. 50. He further testified that the search was initiated because he “wanted to make sure that we had our state property identified, and in order to provide Dr. Ortega with his property and get what we had out of there, in order to make sure our resident‘s files were protected, and that sort of stuff.” Id., at 51.
In their motion for summary judgment in the District Court, petitioners alleged that this search to secure property was reasonable as “part of the established hospital policy to inventory property within offices of departing, terminated or separated employees.” Record Doc. No. 24, p. 9. The District Court apparently accepted this characterization of the search because it applied Chenkin v. Bellevue Hospital Center, New York City Health & Hospitals Corp., 479 F. Supp. 207 (SDNY 1979), a case involving a Fourth Amendment challenge to an inspection policy. At the time of the search, however, Dr. Ortega had not been terminated, but rather was still on administrative leave, and the record does not reflect whether the Hospital had a policy of inventorying the property of investigated employees. Respondent, moreover, has consistently rejected petitioners’ characterization of the search as motivated by a need to secure state property.
Under these circumstances, the District Court was in error in granting petitioners summary judgment. There was a dispute of fact about the character of the search, and the District Court acted under the erroneous assumption that the search was conducted pursuant to a Hospital policy. Moreover, no findings were made as to the scope of the search that was undertaken.
The Court of Appeals concluded that Dr. Ortega was entitled to partial summary judgment on liability. It noted that the Hospital had no policy of inventorying the property of employees on administrative leave, but it did not consider whether the search was otherwise reasonable. Under the standard of reasonableness articulated in this case, however, the absence of a Hospital policy did not necessarily make the search unlawful. A search to secure state property is valid as long as petitioners had a reasonable belief that there was government property in Dr. Ortega‘s office which needed to be secured, and the scope of the intrusion was itself reasonable in light of this justification. Indeed, petitioners have put forward evidence that they had such a reasonable belief; at the time of the search, petitioners knew that Dr. Ortega had removed the computer from the Hospital. The removal of the computer-together with the allegations of mismanagement of the residency program and sexual harassment-may have made the search reasonable at its inception under the standard we have put forth in this case. As with the
On remand, therefore, the District Court must determine the justification for the search and seizure, and evaluate the reasonableness of both the inception of the search and its scope.*
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE SCALIA, concurring in the judgment.
Although I share the judgment that this case must be reversed and remanded, I disagree with the reason for the reversal given by the plurality opinion, and with the standard it prescribes for the Fourth Amendment inquiry.
To address the latter point first: The plurality opinion instructs the lower courts that existence of Fourth Amendment protection for a public employee‘s business office is to be assessed “on a case-by-case basis,” in light of whether the office is “so open to fellow employees or the public that no expectation of privacy is reasonable.” Ante, at 718. No clue is provided as to how open “so open” must be; much less
Whatever the plurality‘s standard means, however, it must be wrong if it leads to the conclusion on the present facts that if Hospital officials had extensive “work-related reasons to enter Dr. Ortega‘s office” no Fourth Amendment protection existed. Ante, at 718. It is privacy that is protected by the Fourth Amendment, not solitude. A man enjoys Fourth Amendment protection in his home, for example, even though his wife and children have the run of the place—and indeed, even though his landlord has the right to conduct unannounced inspections at any time. Similarly, in my view, one‘s personal office is constitutionally protected against warrantless intrusions by the police, even though employer and co-workers are not excluded. I think we decided as much many years ago. In Mancusi v. DeForte, 392 U. S. 364 (1968), we held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared with two other employees, even though we acknowledged that those other employees, their personal or business guests, and (implicitly) “union higher-ups” could enter the office. Id., at 369. Just as the secretary working for a corporation in an office frequently entered by the corporation‘s other employees is protected against unreasonable searches of that office by the government, so also is the government secretary working in an office frequently entered by other government employees. There is no reason why this
I cannot agree, moreover, with the plurality‘s view that the reasonableness of the expectation of privacy (and thus the existence of Fourth Amendment protection) changes “when an intrusion is by a supervisor rather than a law enforcement official.” Ante, at 717. The identity of the searcher (police v. employer) is relevant not to whether Fourth Amendment protections apply, but only to whether the search of a protected area is reasonable. Pursuant to traditional analysis the former question must be answered on a more “global” basis. Where, for example, a fireman enters a private dwelling in response to an alarm, we do not ask whether the occupant has a reasonable expectation of privacy (and hence Fourth Amendment protection) vis-à-vis firemen, but rather whether—given the fact that the Fourth Amendment covers private dwellings—intrusion for the purpose of extinguishing a fire is reasonable. Cf. Michigan v. Tyler, 436 U. S. 499, 509 (1978). A similar analysis is appropriate here.
I would hold, therefore, that the offices of government employees, and a fortiori the drawers and files within those offices, are covered by Fourth Amendment protections as a general matter. (The qualifier is necessary to cover such unusual situations as that in which the office is subject to unrestricted public access, so that it is “expose[d] to the public” and therefore “not a subject of Fourth Amendment protection.” Katz v. United States, 389 U. S. 347, 351 (1967).) Since it is unquestioned that the office here was assigned to Dr. Ortega, and since no special circumstances are suggested that would call for an exception to the ordinary rule, I would
The case turns, therefore, on whether the Fourth Amendment was violated—i. e., whether the governmental intrusion was reasonable. It is here that the government‘s status as employer, and the employment-related character of the search, become relevant. While as a general rule warrantless searches are per se unreasonable, we have recognized exceptions when “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable . . . .” New Jersey v. T. L. O., 469 U. S. 325, 351 (1985) (BLACKMUN, J., concurring in judgment). Such “special needs” are present in the context of government employment. The government, like any other employer, needs frequent and convenient access to its desks, offices, and file cabinets for work-related purposes. I would hold that government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer context—do not violate the Fourth Amendment. Because the conflicting and incomplete evidence in the present case could not conceivably support summary judgment that the search did not have such a validating purpose, I agree with the plurality that the decision must be reversed and remanded.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting.
The facts of this case are simple and straightforward. Dr. Ortega had an expectation of privacy in his office, desk, and file cabinets, which were the target of a search by petitioners that can be characterized only as investigatory in nature. Because there was no “special need,” see New Jersey v. T. L. O., 469 U. S. 325, 351 (1985) (opinion concurring in judgment), to dispense with the warrant and probable-cause requirements of the Fourth Amendment, I would evaluate the search by applying this traditional standard. Under that
The problems in the plurality‘s opinion all arise from its failure or unwillingness to realize that the facts here are clear. The plurality, however, discovers what it feels is a factual dispute: the plurality is not certain whether the search was routine or investigatory. Accordingly, it concludes that a remand is the appropriate course of action. Despite the remand, the plurality assumes it must announce a standard concerning the reasonableness of a public employer‘s search of the workplace. Because the plurality treats the facts as in dispute, it formulates this standard at a distance from the situation presented by this case.
This does not seem to me to be the way to undertake Fourth Amendment analysis, especially in an area with which the Court is relatively unfamiliar.1 Because this analysis, when conducted properly, is always fact specific to an extent, it is inappropriate that the plurality‘s formulation of a standard does not arise from a sustained consideration of a particular factual situation.2 Moreover, given that any standard
I
It is necessary to review briefly the factual record in this case because of the plurality‘s assertion, ante, at 728, that
The plurality, however, observes that the absence of the policy does not dispositively eliminate inventorying or securing state property as a possible purpose for conducting the search. Ante, at 728. As evidence suggesting such a purpose, the plurality points to petitioners’ concern that Dr. Ortega may have removed from the Hospital‘s grounds a computer owned by the Hospital and to their desire to secure such items as files located in Dr. Ortega‘s office. See ante, at 727-728.
The record evidence demonstrates, however, that ensuring that the computer had not been removed from the Hospital was not a reason for the search. Mr. Friday, the leader of the “investigative team,” stated that the alleged removal of the computer had nothing to do with the decision to enter Dr. Ortega‘s office. App. 59. Dr. O‘Connor himself admitted that there was little connection between the entry and an at-
In deposition testimony, petitioners did suggest that the search was inventory in character insofar as they aimed to separate Dr. Ortega‘s personal property from Hospital property in the office. Id., at 38, 40, 50. Such a suggestion, however, is overwhelmingly contradicted by other remarks of petitioners and particularly by the character of the search itself. Dr. O‘Connor spoke of the individuals involved in the search as “investigators,” see id., at 37, and, even where he described the search as inventory in nature, he observed that it was aimed primarily at furthering investigative purposes. See, e. g., id., at 40 (“Basically what we were trying to do is to remove what was obviously State records or records that had to do with his program, his department, any of the materials that would be involved in running the residency program, around contracts, around the computer, around the areas that we were interested in investigating“). Moreover, as the plurality itself recognizes, ante, at 713-714, the “investigators” never made a formal inventory of what they found in Dr. Ortega‘s office. Rather, they rummaged through his belongings and seized highly personal items later used at a termination proceeding to impeach a witness favorable to him. Ibid. Furthermore, the search was conducted in the evening, App. 53, and it was undertaken only after the investigators had received legal advice, id., at 51.
The search in question stemmed neither from a Hospital policy nor from a practice of routine entrances into Dr. Ortega‘s office. It was plainly exceptional and investigatory in nature. Accordingly, there is no significant factual dispute in this case.
II
Before examining the plurality‘s standard of reasonableness for workplace searches, I should like to state both my
First, this suggestion is contrary to the traditional protection that this Court has recognized the Fourth Amendment accords to offices. See Oliver v. United States, 466 U. S. 170, 178, n. 8 (1984) (“The Fourth Amendment‘s protection of offices and commercial buildings, in which there may be legitimate expectations of privacy, is also based upon societal expectations that have deep roots in the history of the Amendment“); Hoffa v. United States, 385 U. S. 293, 301 (1966) (“What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile“). The common understanding of an office is that it is a place where a worker receives an occasional business-related visitor. Thus, when the office has received traditional Fourth Amendment protection in our cases, it has been with the understanding that such routine visits occur there.
Dr. Ortega clearly had an expectation of privacy in his office, desk, and file cabinets, particularly with respect to the type of investigatory search involved here. In my view, when examining the facts of other cases involving searches of the workplace, courts should be careful to determine this expectation also in relation to the search in question.
III
A
At the outset of its analysis, the plurality observes that an appropriate standard of reasonableness to be applied to a public employer‘s search of the employee‘s workplace is arrived at from “balancing” the privacy interests of the employee against the public employer‘s interests justifying the intrusion. Ante, at 719-720. Under traditional Fourth Amendment jurisprudence, however, courts abandon the warrant and probable-cause requirements, which constitute the standard of reasonableness for a government search that the Framers established, “[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable . . . .” New Jersey v. T. L. O., 469 U. S., at 351 (opinion concurring in judgment); see United States v. Place, 462 U. S. 696, 721-722, and n. 1 (1983) (opinion concurring in judgment). In sum, only when the practical realities of a particular situation suggest that a government official cannot obtain a warrant based upon probable cause without sacrificing the ultimate goals to which a search would contribute, does the Court turn to a “balancing” test to formulate a standard of reasonableness for this context.
In New Jersey v. T. L. O., supra, I faulted the Court for neglecting this “crucial step” in Fourth Amendment analysis. See 469 U. S., at 351. I agreed, however, with the T. L. O. Court‘s standard because of my conclusion that this step, had
The plurality repeats here the T. L. O. Court‘s error in analysis. Although the plurality mentions the “special need” step, ante, at 720, it turns immediately to a balancing test to formulate its standard of reasonableness. This error is significant because, given the facts of this case, no “special need” exists here to justify dispensing with the warrant and probable-cause requirements. As observed above, the facts suggest that this was an investigatory search undertaken to obtain evidence of charges of mismanagement at a time when Dr. Ortega was on administrative leave and not permitted to enter the Hospital‘s grounds. There was no special practical need that might have justified dispensing with the warrant and probable-cause requirements. Without sacrificing their ultimate goal of maintaining an effective institution devoted to training and healing, to which the disciplining of Hospital employees contributed, petitioners could have taken any evidence of Dr. Ortega‘s alleged improprieties to a magistrate in order to obtain a warrant.
Furthermore, this seems to be exactly the kind of situation where a neutral magistrate‘s involvement would have been helpful in curtailing the infringement upon Dr. Ortega‘s privacy. See United States v. United States District Court,
B
Even were I to accept the proposition that this case presents a situation of “special need” calling for an exception to the warrant and probable-cause standard, I believe that the plurality‘s balancing of the public employer‘s and the employee‘s respective interests to arrive at a different standard is seriously flawed. Once again, the plurality fails to focus on the facts. Instead, it arrives at its conclusion on the basis of “assumed” facts. First, sweeping with a broad brush, the plurality announces a rule that dispenses with the warrant requirement in every public employer‘s search of an employee‘s office, desk, or file cabinets because it “would seriously disrupt the routine conduct of business and would be unduly burdensome.” Ante, at 722. The plurality reasons that a government agency could not conduct its work in an efficient manner if an employer needed a warrant for every routine entry into an employee‘s office in search of a file or correspondence, or for every investigation of suspected employee misconduct. In addition, it argues that the warrant requirement, if imposed on an employer who would be unfamiliar with this procedure, would prove “unwieldy.” Ibid.
Moreover, the plurality also abandons any effort at careful balancing in arriving at its substitute for probable cause. Just as the elimination of the warrant requirement requires some nexus between its absence, the employee‘s privacy interests, and the government interests to be served by the search, so also does the formulation of a standard less than probable cause for a particular search demand a similar connection between these factors. See, e. g., United States v. Brignoni-Ponce, 422 U. S. 873, 881 (1975). The plurality‘s discussion of investigatory searches reveals no attempt to set forth the appropriate nexus.12 It is certainly true, as the plurality observes, that a public employer has an interest in eliminating incompetence and work-related misconduct in order to enable the government agency to accomplish its tasks in an efficient manner. It is also conceivable that a public employee‘s privacy interests are somewhat limited in the workplace, although, as noted above, not to the extent suggested by the plurality. The plurality, however, fails to
IV
I have reviewed at too great length the plurality‘s opinion because the question of public employers’ searches of their employees’ workplaces, like any relatively unexplored area of Fourth Amendment law, demands careful analysis. These searches appear in various factual settings, some of which courts are only now beginning to face, and present different problems.15 Accordingly, I believe that the Court should examine closely the practical realities of a particular situation and the interests implicated there before replacing the traditional warrant and probable-cause requirements with some other standard of reasonableness derived from a balancing test. The Fourth Amendment demands no less. By ignoring the specific facts of this case, and by announcing in the abstract a standard as to the reasonableness of an employer‘s workplace searches, the plurality undermines not only the Fourth Amendment rights of public employees but also any further analysis of the constitutionality of public employer searches.
I respectfully dissent.
Notes
It seems to me that whenever, as here, courts fail to concentrate on the facts of a case, these predilections inevitably surface, no longer held in check by the “discipline” of the facts, and shape, more than they ever should and even to an extent unknown to the judges themselves, any legal standard that is then articulated. This, I believe, is the central problem of the opinion of the plurality and, indeed, of the concurrence.“I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments. Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge.” B. Cardozo, The Nature of the Judicial Process 167 (1921).
Moreover, courts have recognized that a public employee has a legitimate expectation of privacy as to an employer‘s search and seizure at the workplace. See, e. g., Gillard v. Schmidt, 579 F. 2d 825, 829 (CA3 1978) (search of desk); United States v. McIntyre, 582 F. 2d 1221, 1224 (CA9 1978) (monitoring conversations at office desk). But see Williams v. Collins, 728 F. 2d 721, 728 (CA5 1984) (search of desk). In some cases, courts have decided that an employee had no such expectation with respect to a workplace search because an established regulation permitted the search. See United States v. Speights, 557 F. 2d 362, 364-365 (CA3 1977) (describing cases); United States v. Donato, 269 F. Supp. 921 (ED Pa.), aff‘d, 379 F. 2d 288 (CA3 1967) (Government regulation notified employees that lockers in the United States Mint were not to be viewed by employees as private lockers). The question of such a search pursuant to regulations is not now before this Court.