Major Cell Phone Decision From Phoenix

This article appears in the April 2022 issue of our monthly newsletter, Public Safety Labor News.

Christopher Turiano is a 25-year veteran of the Phoenix Police Department. Until recently, he served as a grenadier in the Department’s Tactical Response Unit (TRU).

On August 22, 2017, the TRU, including Turiano, was assigned to oversee ground operations at a large protest in downtown Phoenix. Throughout the course of the evening, the protest devolved into violence, with various reports of protesters defying law enforcement instructions, damaging property, and throwing items in the direction of law enforcement. After protester Joshua Cobin kicked a tear gas canister toward police, Turiano fired a 40mm OC direct impact round – a type of non-lethal munition – at him. The round struck Cobin in the groin area, and the incident was captured on video and published by various local and national news media outlets.

A year later, in September 2018, a group of protesters and two nonprofit groups filed a class action lawsuit against the City for excessive use of force in connection with the protest. During discovery, the City’s attorneys requested that the officer defendants, including Turiano, allow their personal cell phones to be imaged and searched for specific terms relating to the litigation. Upon voicing privacy con­cerns, the officers were assured that the data would be downloaded and stored by a third-party vendor, would be used only for purposes of the protest lawsuit, would remain confidential, and would be subject to a protective order.

In February 2021, a media report was released concerning the existence of a challenge coin that appeared to commemorate the events of August 22, 2017. On one side, the coin depicted a caricature of Cobin being hit in the groin by Turia­no’s munition, along with the words “Good Night Left Nut.” On the other side, the coin stated the date and location of the protest and the phrase “Make America Great Again One Nut at a Time.” The report spawned an investigation by the City’s lawyers into the creation and circulation of the coin and whether there was any potential connection between the inscription on the challenge coin and the neo-Nazi slogan “Good Night Left Side.”

The lawyers sought access to the officers’ cell phone data that was imaged in connection with the protest Lawsuit. The lawyers requested the officers’ consent to search the stored data. Each of the officers, including Turiano, declined. When the investigation was ultimately inconclusive, the Department’s Professional Standards Bureau (PSB) proceeded with its own investigation into the challenge coin. PSB compelled Turiano to consent to a targeted search of his stored cell phone data. Rather than comply, Turiano, with the assistance of the Phoenix Law Enforcement Association, filed a lawsuit contending that the compelled search of the phone violated Turiano’s Fourth Amendment rights.

A federal court judge ruled in Turia­no’s favor. The Court began by rejecting the City’s argument that Turiano had no reasonable expectation of privacy in his phone: “The Court easily concludes that Turiano has a reasonable expectation of privacy in the imaged data the City seeks to search. The data was imaged from Turiano’s personal cell phone, the City did not purchase the phone and does not pay for the data plan, Turiano generally does not use the phone for work purposes, and no other City em­ployees have access to the phone or its data. And the imaged data contains an enormous amount of deeply personal information that is entirely unconnected with Turiano’s employment, including his personal correspondence and finan­cial information. While an employee’s expectation of privacy in the workplace may be reduced by prior notice to the employee – e.g., through a policy or regulation established by the employer – that the workspace is subject to search, the Department had no such policy in place here.

“The Court must next determine whether the workplace exception is at all applicable in this case. If not, the Fourth Amendment’s ordinary warrant and probable cause requirement applies and no further analysis of the merits is needed, because the City neither has a warrant to search the imaged data nor argues that a warrantless search is per­missible under another exception. The workplace exception recognized in the Supreme Court’s O’Connor v. Ortega decision permits public employers to conduct warrantless searches for non-in­vestigatory work-related purposes or to investigate workplace misconduct.

“But not all searches conducted for such purposes come within the scope of the exception. An employer’s war­rantless search of an employee’s home, for instance, generally does not come within the exception even when the search is conducted to investigate work­place misconduct. Rather, such a search requires probable cause and a warrant, or another applicable exception to the warrant requirement, to pass constitu­tional muster. To hold otherwise and permit the workplace exception to justify warrantless government intrusion even into those areas, such as the home, that ‘deserve the most scrupulous protection from government invasion’ would evis­cerate the Fourth Amendment’s efficacy for government employees.

“Properly understood, the work­place exception is limited to those search­es that are conducted in the ‘workplace context.’ This ‘includes those areas and items that are related to work and are generally within the employer’s control.’ But it does not include those areas and items that are not related to the employ­ee’s work and are not generally within the employer’s control.

“For three reasons, this Court agrees with two other courts that have found cell phone searches to be outside the ‘workplace context.’ First, a personal cell phone is just that – personal. As such, it is not ‘generally within the employer’s control.’ In that sense, a cell phone is more closely analogous to ‘a piece of closed personal luggage, a handbag or a briefcase that happens to be within the employer’s business address’ than it is to an ‘office, desk, or file cabinet’ that is ‘part of the workplace.’

“Second, a personal cell phone, far more than even a closed briefcase or locked safe, contains sensitive personal information that is entirely unrelated to an individual’s employment. Third, cell phones are so pervasive an aspect of modern life that virtually any public employee will have, and occasionally use, a personal cell phone during business hours. That an employee’s personal cell phone happens to be within the employ­er’s business address or happens to be used to send the occasional work-related message, is therefore insufficient to ren­der the cell phone part of the workplace context.

“For these reasons, the Court con­cludes that the workplace exception is inapplicable in this case, where the Department, a public employer, seeks to search its employee’s purely personal cell phone for evidence of work-related mis­conduct. Since the Department neither has a warrant to search the imaged data, nor claims that another exception to the warrant requirement applies, Turiano is likely to prevail on the merits of his Fourth Amendment claim.”

Turiano v. City of Phoenix, No. CV-21-01428-PHX-MTL (D. Ariz. 2022).

Also in the April 2022 issue:

  • Mandatory Vaccination Not Negotiable In New Jersey
  • Failure To Offer Retest Invalidates Drug Termination
  • Fire Chief Not Entitled To Qualified Immunity
  • At-Will Former Chief Obtains Job Rights On Demotion
  • No Obligation To Arbitrate Free Speech Claims
  • Arbitrator Upholds Chicago Police Vaccine Mandate
  • No Conspiracy To Convince Miami Officer To Resign
  • ‘Gap Time’ And The FLSA
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