The Fourth Amendment to the U.S. Constitution protects persons from “unreasonable searches and seizures.” Searches can be physically invasive or may invade individuals’ legitimate expectation of privacy. Physical invasions, such as being forcibly restrained and ordered to strip for decontamination, seem clearly to invoke Fourth Amendment protection. However, the question of whether a search has taken place under less physically invasive circumstances, such as when a campus security officer looks into an open dormitory room, can be less clear. To make successful claims for protection under the Fourth Amendment for nonphysical invasions, individuals must have genuine beliefs not only that they have expectations of privacy but also that these expectations are reasonable in the view of an ordinary, reasonably prudent person experiencing the same circumstances. If challenges fail either prong of this test, then individuals lack legitimate expectations of privacy and are not entitled to protection under the Fourth Amendment.
At the same time, it is important to note that the right to be free from unreasonable searches or invasions of privacy under the Fourth Amendment cannot be casually conflated with the right of privacy under the Fourteenth Amendment. Moreover, faculty First Amendment and academic freedom concerns over access to material that is sexually explicit on the Internet via university-owned computers and systems, as was the issue in Urofsky v. Gilmore (2000), should not be confused with issues relating to searches. In light of the significant implications involving the rights of faculty members, particularly those at public colleges and universities, this entry examines the parameters of their Fourth Amendment rights, even though many of the cases are presented as nonbinding precedent due to the relative dearth of litigation in this important arena.
The General Rule for Searches: Probable Cause
The Fourth Amendment prohibits only unreasonable searches. Law enforcement officials often conduct investigations that obviously invade legitimate expectations of privacy, such as searches of the persons and homes of criminal suspects. In most such cases, searches of homes may occur only following the presentation of evidence to judges or magistrates and the issuance of warrants. This process ensures that searches are conducted following showings of probable cause that persons, places, or things to be searched will yield evidence of crimes. As a general rule, then, warrantless searches are deemed to be unreasonable and are prohibited by the Fourth Amendment. Yet not every investigative effort by governmental officials involves the enforcement of state or federal laws. Hence, the courts have recognized important exceptions to the general prohibition on warrantless searches. While searches of students in K–12 settings do not directly implicate the rights of faculty members in higher education, the U.S. Supreme Court’s rationale in its only case on this point is instructive for higher education.
Lesser Standard for Searches
Searches of Public School Students
In New Jersey v. T.L.O. (T.L.O., 1985), after a high school student was accused of smoking and a subsequent search of her purse by an assistant principal revealed that she possessed marijuana, she was ultimately unsuccessful in her attempt to suppress the evidence based on her claim that the warrantless search violated her rights under the Fourth Amendment. Although acknowledging that a search occurred within the meaning of the Fourth Amendment, the Supreme Court held that the Fourth Amendment’s warrant requirement was unsuited for school environments, because it would interfere with the need of educational officials to take swift and informal disciplinary action. The Court then determined that public school officials possess “special needs” and that these needs justify the application of a reasonableness standard for searches rather than the traditional probable cause standard that applies to the police.
The Supreme Court decided that under ordinary circumstances, searches of students, either by teachers or other educational officials, are justified as constitutional at their inception if educators have reasonable cause for suspecting that such searches will turn up evidence that students have violated either the law or school rules, and if the searches as actually conducted are reasonably related in scope to the circumstances that justified the searches in the first place. Even if officials have met both the subjective and objective requirements necessary to establish a legitimate expectation of privacy, warrantless searches may still be permissible if special needs are at issue. This deferential approach created an exception to the general probable cause rule and conceded that while public school students enjoy some protection under the Fourth Amendment, these safeguards are diminished within the educational environment, including at colleges and universities.
Searches of Employees of Public Universities
Diminished Fourth Amendment rights such as those identified in T.L.O. have since been extended to others within educational environments. Two years after T.L.O., in O’Connor v. Ortega (1987), the Supreme Court applied a reduced standard to public employees, including university faculty members. At issue in Ortega was a search of the office of a physician–faculty member at a state university hospital that was conducted in order to gather evidence of professional impropriety. The physician unsuccessfully filed suit, alleging that the search of his office and desk violated the Fourth Amendment.
In Ortega, the Supreme Court again conceded that a search had occurred, but citing T.L.O. as precedent, explained that a workplace search conducted by supervisory public officials in their capacity as employers is a special need that requires only reasonable cause. The Court noted that because a probable cause requirement would be impractical in circumstances involving workrelated, noninvestigatory intrusions as well as employee misconduct, the reasonableness standard under the circumstances applied. The Court was of the opinion that public employment represents another context in which public officials may face fewer restrictions with regard to the privacy rights of employees.
When a Search May Occur: Reasonable Cause
Whether a search is reasonable is a determination made by balancing the rights of individuals against public interests. This balancing test is often discussed in terms of intrusiveness by considering whether the special need for a search justifies the resulting intrusion. If this seems less than clear, it is. The Supreme Court has found that an absolute definition of reasonableness in this balancing test is not possible. However, what is clear is that reasonable cause is a lesser standard than probable cause and that any search conducted under the reasonable cause standard must be objectively reasonable in both inception and in execution.
In order to evaluate whether there is reasonable cause to conduct a search, one must consider the factual circumstances and balance the interests of the individual and the public accordingly. This asks whether a reasonable person would find the motivation for and purpose of a search to be reasonable. If so, then the inception of the search is likely to have satisfied constitutional parameters. The next inquiry is into whether a reasonable person would think that that, in light of the purposes for a search, it was conducted in a reasonable manner. If so, then the execution of the search was likely permissible. The presence of protection for both the purpose and execution of the search reflects a recognition that even a search that is permissibly motivated may become impermissible if it becomes unreasonable in execution.
When Searches Begin and Why It Matters
Although searches can be benign intrusions, such as entry into an office to water potted plants, they can also be utilized to gather evidence of misconduct or criminal behavior. Consistent with the T.L.O. standard, searches that are conducted to investigate allegations of misconduct are usually justified at their inception if there are reasonable grounds for suspecting that they will uncover evidence that employees are guilty of having engaged in work-related misconduct (Wasson v. Sonoma County Junior College, 1997). To this end, any evidence that is collected in connection with such searches has been “seized” within the meaning of the Fourth Amendment. In this way, it is critical that information collected during searches be collected lawfully so that subsequent criminal prosecutions are not jeopardized.
In United States v. Butler (2001), for example, a student in Maine was expelled and charged with receiving child pornography over the Internet via the public university’s computers. The student left a pornographic image of a child frozen on at least one computer, and a university employee observed the image. The incident led to an investigation by university officials that revealed many more such images on computers that the student used. The student unsuccessfully argued that all the evidence collected was the product of an illegal search, and therefore inadmissible at trial. The court specified that insofar as a search must be permissible in purpose and execution, if one is impermissible at inception, any evidence subsequently seized will be inadmissible in a criminal proceeding. The court concluded that when it is known that evidence collected during a search is likely to be used for criminal prosecution, it may be prudent to consider whether a warrant should be sought. The same type of analysis would likely apply in cases involving faculty members.
Searches Outside the Scope of the Fourth Amendment
As should be clear, not all searches are protected by the Fourth Amendment. In determining whether searches are protected, the courts consider whether the searches were conducted with consent, whether the searches involved the observation of something that was readily apparent, and/or whether the searches took place in the context of regulations that affected whether there were reasonable expectations of privacy.
When individuals grant meaningful consent to searches, the general rule is that they have waived their protection. As a result, consent may play an important part in the efforts of employers to conduct suspicionless searches, those that are carried out despite the absence of reasons to believe that evidence of wrongdoing will be uncovered. Adopting this approach, the Supreme Court has consistently treated drug testing, which is often random and therefore suspicionless, as constituting a search within the meaning of the Fourth Amendment (Georgia v. Randolph, 2006). Under some circumstances, such as those with government employees who are responsible for enforcing antidrug laws (National Treasury Employees Union v. Von Raab, 1989), the Court has upheld the use of drug testing under the special needs exception. However, the Court has noted that permitting drug testing under such an exception is rare, because testing violates legitimate privacy expectations of most private citizens and public employees. In some circumstances, therefore, meaningful consent is likely to be the only means by which to remove warrantless searches from the protection of the Fourth Amendment.
Searches that consist of no more than observing that which is readily observable, such as items that are in plain view, are not considered searches within the protection of the Fourth Amendment on the basis that what individuals knowingly expose to the public, even in their homes or offices, is not subject to the protection of the Fourth Amendment. The application of this principle can be seen in two similar surveillance cases that produced different results.
In United States v. Knotts (1983), the Supreme Court addressed whether using a radio transmitter, which was placed inside a container used in a suspected illegal drug laboratory, constituted a search within the meaning of the Fourth Amendment. The transmitter permitted law enforcement to follow an automobile to a secluded location, where the activities of the suspects could be observed. The Court ruled that no warrant was necessary, because no search occurred insofar as the transmitter only aided officials in observation by adding to the sensory faculties. Yet, in United States v. Karo (1984), a case with similar facts, the Court thought that a search did occur when a transmitter was used to track a container not on public roads but on private property out of public view. The Court pointed out that because a private residence creates an expectation of privacy in individuals, government intrusion may occur only with proof of probable cause supported by a warrant.
The regulatory context of the workplace may also render a search outside the protection of the Fourth Amendment. Put another way, a work environment with no custom or policy of conducting searches may create a reasonable expectation of privacy on the part of employees. However, where employee surveillance is regularly and transparently conducted, employees are unlikely to have reasonable expectations of privacy. In United States v. Maxwell (1996), a federal military court indicated that an air force officer had a legitimate expectation of privacy where the officer composed and dispatched messages on employer computers but during the officer’s personal time and through a private Internet service provider. According to the court, the officer had a reasonable expectation that the e-mail communication was private. In contrast, in United States v. Monroe (1999), another military court affirmed that a sergeant who had a pornographic e-mail solicitation in his computer files had no reasonable expectation of privacy where the government owned both the computer and the e-mail system. In overruling the individual’s privacy claim, the court asserted that unlike the system involved in Maxwell, the electronic mail host system in this dispute was owned by the government and, as such, carried no expectation of privacy.
When employers monitor workplace e-mail, employees are often aware of what is taking place. In McLaren v. Microsoft Corp. (1999), an appellate court in Texas affirmed that that e-mail messages stored on employer-owned computers were not the employee’s personal property, nor were they private, because the employer was free to observe any communication passing through the account. The court reached this outcome despite the fact that the information was stored in a password-protected “personal” folder on the computer. Similarly, a federal trial court in Pennsylvania granted a private employer’s motion to dismiss a wrongful discharge claim that was filed by an employee who was fired for making inappropriate and unprofessional comments in e-mail messages. The court wrote that a reasonable person would conclude that a company’s interest in preventing inappropriate communication outweighs any employee privacy interest in work-related e-mail communication. The court reached this judgment even though officials of the employer broke an explicit promise to their employees that communication occurring through the employer-provided e-mail system would remain private and confidential and would not be used for the purposes of discharging an employee (Smyth v. Pillsbury Co., 1996).
In order to ensure that employees do not have any expectation of e-mail privacy, many employers require that employees acknowledge in writing their awareness of e-mail surveillance by the employers or even that their e-mail communications are not private. This practice has been successful in persuading courts to find no legitimate expectation of privacy in employee e-mail (Biby v. University of Nebraska at Lincoln, 2005). This success has usually been grounded in the objective prong of the expectation of privacy test. Insofar as it is widely known that employers, including public colleges and universities, routinely intercept and review employee e-mail, even if individuals genuinely think that the e-mail is private, such a belief may well not be reasonable.
Increasing Impact of Technology on Fourth Amendment Jurisprudence
Finally, it is important to keep in mind that most of the evolution in Fourth Amendment workplace legal analysis is being generated by technological advances, particularly on college and university campuses. To the extent that technology is expanding the scope of observable activity, and further because states can reduce the protections of public employees—including faculty members at institutions of higher learning—through regulation, an argument can be made that technological progress serves to shrink the realm of guaranteed privacy. As technology develops, a pattern or cycle may emerge in which what was once unobservable becomes observable. Once it is widely known that what was once unobservable is now observable, elements of society will cease to recognize it as private, and once there appears to be some societal acceptance of this shift, employers, including institutions of higher learning, are likely to implement regulatory policies to prevent faculty members from claiming legitimate expectations of privacy over that which was once private. Theoretically, this cycle results in fewer individuals satisfying both the subjective and objective prongs of the test necessary to place a search within the protections of the Fourth Amendment.
Philip T. K. Daniel
- Biby v. University of Nebraska at Lincoln, 419 F.3d 845 (8th Cir. 2005).
- Georgia v. Randolph, 547 U.S. 103 (2006).
- McLaren v. Microsoft Corp., 1999 WL 339015 (Tex. App. 1999).
- National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989).
- New Jersey v. T.L.O., 469 U.S. 325, 341 (1985).
- O’Connor v. Ortega, 480 U.S. 709 (1987).
- Smyth v. Pillsbury Co., 914 F. Supp. 97 (E.D. Pa. 1996).
- United States v. Butler, 151 F. Supp. 2d 82 (D. Me. 2001).
- United States v. Karo, 468 U.S. 705 (1984).
- United States v. Knotts, 460 U.S. 276, 282 (1983).
- United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996).
- United States v. Monroe, 50 M.J. 550 (A.F.C.C.A. 1999).
- Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000), cert. denied, 531 U.S. 1070 (2001).
- Wasson v. Sonoma County Junior College, 4 F. Supp. 2d 893, 905 (N.D. Cal. 1997).