Officer Has Privacy Rights In Personal Cellphone

Timothy Larios was an officer with the California Highway Patrol (CHP) and was assigned to the Shasta Interagency Narcotics Task Force. He was issued a cell phone by the CHP, and he also had a personal cell phone.

In September 2014, CHP removed Larios from his position and told him that he was the subject of an internal investigation. During the course of the investigation, Larios was ordered to relinquish his state-issued phone. As part of the investigation, that phone and Larios’s thumb drives, locker, work truck, and desk were all searched. In the meantime, Larios was also removed from patrol and was advised that he was not authorized to engage in any law enforcement activities.

On November 6, 2014, Larios met with a lieutenant and others involved in the internal investigation. Though the lieutenant had previously advised Larios that he would not need a union representative to be present, Larios contacted his union representative, who accompanied him.

The purpose of the meeting was to confiscate Larios’s personal cell phone. Larios refused to give up his phone on grounds that it contained purely personal information. In response, CHP directed that Larios’s phone had to be turned over so that the CHP could “conduct a data extraction to retrieve all work product.” The memo warned that Larios would be subject to “charges/disciplinary action” if he failed to cooperate.

Larios objected to the order and offered to voluntarily show the investigators any and all work product stored on Larios’s personal phone. The investigators rejected offer and assured Larios that his personal phone would only be confiscated for three to four hours. According to Larios, he was concerned he might be subject to criminal prosecution if he failed to obey his superior’s directives, and therefore eventually relinquished his personal phone.

Larios’s phone was returned to him approximately eight hours later. Upon its return, Larios noticed that phone calls had been made from his device after he had turned it over and that all of the information stored on the phone had been searched and downloaded.

When CHP terminated Larios, he brought a lawsuit alleging, among other things, that his Fourth Amendment rights to be free from unreasonable search and seizure had been violated by the order to produce his personal cell phone. CHP filed a motion to dismiss the lawsuit, and a federal court was required to decide whether Larios had Fourth Amendment privacy interests in his phone.

The Court sided with Larios, and refused to dismiss his Fourth Amendment claim. The Court found that Larios’s privacy interest turns in part on the “operational realities of the workplace. For example, an employee cannot reasonably have an expectation of privacy if their files, offices, or devices are open to fellow employees or the public. In addition, an employee’s expectation of privacy may be shaped by an employer’s policies.

“According to CHP, Larios had a diminished expectation of privacy in his personal cell phone because he was on notice that he would have to relinquish any work on personal devices upon demand. Indeed, General Order 100.95 of the CHP’s Policy and Guidelines states that ‘work stored on any type of electronic device is the property of the State and must be relinquished upon demand.’ Larios correctly counters, however, that this policy is silent as to whether its officers must submit their cellular telephones for inspection.

“Contrary to CHP’s arguments, Larios maintains a reasonable expectation of privacy in his password protected personal cell phone, despite having used it at times for work with the permission of his government employer, and even in the face of notice that any work product would have to be turned over to the State. Knowing that work product would remain open to inspection in no way puts an employee on notice that the government will also have carte blanche to review everything an employee keeps on his or her phone.

“To be sure, if the government’s argument is taken to its logical conclusion, permissively keeping work files at home would permit the government to search an employee’s house. Certainly employees have a legitimate expectation of privacy in their homes, and their interest in the contents of their cell phones is not materially different. In fact, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form – unless the phone is.”

The Court then turned to whether CHP’s search of the phone was reasonable. The Court observed that “when conducted for a non-investigatory, work-related purpose or for the investigation of work-related misconduct, a government employer’s warrantless search is reasonable if it is justified at its inception and if the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search. Here, a jury could find that the instant search was not justified at its inception.

“According to Larios, the search was conducted for the purpose of pursuing criminal charges, and thus was not necessarily directed at work-place misconduct. However, even if the search was originally justified because it was initiated for some permissible purpose, the measures purportedly adopted by Defendants to search Larios’s phone were not at all reasonably related to the objectives of the search and were, to the contrary, excessively intrusive under the circumstances.

“In this case, Larios has alleged that CHP searched everything contained on his phone. They purportedly confiscated his device, extracted all data, and made phone calls from the device. According to Larios, Defendants were not looking for a particular type of data or limiting their search to a particular time frame. If those allegations prove correct, CHP clearly overstepped the bounds of the Fourth Amendment.”

Larios v. Lunardi, 2016 WL 6679874 (E.D. Cal. 2016).