Crim Pro Notes O’Connor v. Ortega PDF

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Criminal Procedure 2020 Notes...

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Criminal Procedure Fall 2020

[2] Searches Directed at Public Employees O’Connor v. Ortega This case involved the reasonableness of a search conducted by a public employer of the office, including the desk and file cabinets, of an employee suspected of employment improprieties. Analysis: o Justice O’Connor, writing for a four-justice plurality, stated that the existence of Fourth Amendment protection for a public employee’s business office should be assessed on a case-by-case basis – that some offices might be “so open to fellow employees or the public that no expectation of privacy is reasonable,” and thus, that the Fourth Amendment would not apply at all. o The plurality concluded that the realities of the workplace strongly suggest that a warrant requirement would be unworkable. Regarding probable cause, the plurality was careful to note that it was only considering the issue in regard to a non-investigatory work-related intrusion or an investigatory search for evidence of suspected work related employee misfeasance. ▪ In such circumstances, as with searches in the public school context, the employer’s conduct is judged by the standard of reasonableness, both at its inception and regarding the scope of the intrusion. Rule: For a search to be reasonable at its inception, there must exist “reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a non-investigatory work-related purpose such as to retrieve a needed file. As for the

scope of the search, the measures taken must be reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the misconduct....