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In a recent decision, the Appellate Division of New Jersey Superior Court upheld a warrantless search of an employee's workplace computers, and affirmed the resulting conviction of the employee for stealing more than $650,000 from his employer. The court's reasoning, however, left something to be desired, notwithstanding the arguably correct conclusion.

The employee in State of New Jersey v. M.A., Docket No. A-4922-06T4 (App. Div., Aug. 29, 2008) acted as a bookkeeper for a manufacturer of adhesive-backed labels. The owner confronted the employee over an unauthorized increase in the employee's salary; the latter admitted a small theft, offered repayment, and was fired. When the owner suspected that the defalcation was much greater, he called in the police and consented to a search of a desktop and laptop computer used by the former employee, but maintained at the company's offices. On the computers was found evidence of the employee's much larger theft.

The trial court denied a motion to suppress the results of the computer searches, and the appeals court affirmed. The Appellate Division reasoned first that the owner had the authority to consent to the searches, since he, and not the former employee, owned the computers. But, the court acknowledged, the search could still have been unlawful if the former employee had a reasonable expectation of privacy in the information he stored on the company-owned computers.

However, the court dismissed the "expectation of privacy" argument needed to ground a Fourth Amendment claim, saying simply "in the criminal context, employees have no reasonable expectation of privacy in a workplace computer." Yet, that statement is incorrect, jurisprudentially speaking, and the cases cited by the court do not support that broad assertion.

Generally, as shown in the federal cases cited by the court, employees can and do have a reasonable expectation of privacy in workplace computers, whether the context is criminal conduct or not. However, there is an exception to the Fourth Amendment's warrant requirement for a government employer which suspects the subject employee of workplace related misconduct; in that circumstance, warrantless searches of office computers are permitted. See O'Connor v. Ortega, 480 U.S. 709 (1987) (plurality opinion). (There is also a diminution of any expectation of privacy where the workplace computers announce via banners or the employer had declaimed through an explicit office policy that the computers' content are subject to review by the employer. See O'Connor).

In this case, the label manufacturer had in hand an admission from the former employee of an embezzlement, albeit a small one; this evidence of workplace misconduct would under O'Connor and subsequent cases have authorized a warrantless search of the computers. So, the Appellate Division reached what is likely the correct result, but got there for the wrong reasons.
 

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On August 28, 2008, the Department of Justice announced revisions to its controversial Principles of Federal Prosecution of Business Organizations.

Initially cast as the "Thompson Memo" and then revised as the "McNulty Memo," these principles had been wielded by federal prosecutors as a cudgel, used to bludgeon corporations into waiving the attorney-client privilege and work product protections associated with the fruits of internal investigations and to compel the turnover of those materials in order to qualify the corporation for lenient treatment or no prosecution at all. Corporations who would not comply with these demands could, and would, be charged. Prosecutors had gone even further; the earlier formulations of these Principles had implicitly authorized them to take severe measures against corporations which advanced the legal fees of indicted officers or which had joined in common defense arrangements with such officers.

Spurred by Judge Lewis Kaplan's excoriation of the government for such heavy-handed tactics and his dismissal of an indictment in the KPMG prosecution in the Southern District of New York (United States v. Stein, et al), the DOJ finally surrendered. Yesterday, the DOJ adopted changes to the Principles which now provide explicitly that corporate cooperation will not be judged by a willingness to waive the privilege or work product protection associated with employee interviews and other investigative efforts, but will turn only on a willingness to disclose relevant facts. Prosecutors are now prohibited from seeking disclosure of privileged communications or opinion work product.

Moreover, prosecutors may no longer consider in assessing a corporation's eligibility for leniency whether the corporation is advancing legal fees for employees, or whether the entity has or has not fired or disciplined culpable employees. No longer will corporate participation in a joint defense agreement render the entity ineligible for favorable treatment.

These changes have been a long time in coming. Punishing corporations which act to protect the Sixth Amendment rights of their employees and which take the ameliorative step of internally investigating allegations of misconduct in an appropriate and confidential manner was not right and it was not consistent with the Constitution. And now it is also prohibited.
 

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More than thirty years ago, the Supreme Court laid down in Doyle v. Ohio, 426 U.S. 610 (1976) a principle both elegant in its fairness and seemingly simple in its application: due process does not permit the government to make use of the silence at the time of arrest and/or questioning of a Mirandized suspect.  But, as illustrated in recent cases from the Fifth and Ninth Circuits, the results of applying Doyle have been less than even and predictable.

In the Fifth Circuit case, the defendant was arrested as a felon-in-possession and had been administered Miranda warnings, after which he answered some questions before stopping. United States v. Fambro, 526 F.3d 836 (5th Cir. 2008). Fambro did not testify at trial, but the interviewing officer testified that Fambro did not deny knowing of the existence of the weapon which was found and the prosecutor argued in closing that Fambro had not denied knowledge or possession of the weapon. The court held that there was no Doyle violation, but in doing so the Fambro panel seemed to distort the trial record and ignore inconsistent intra-circuit precedent. For example, the opinion reported a series of direct examination questions put to the interviewing officer which clearly intended to highlight the omissions in Fambro's arrest statement ("Did he say [X]? No, he did not"]. Yet, the Fambro panel somehow characterized these questions not as exploiting the defendant's Mirandized silence, but as "testimony [which] only emphasizes what Fambro had said in his post-Miranda statement." Of course, pointing out that which a witness did not say could always be characterized as emphasizing the remainder which was said, but that logic guts Doyle completely. The Fambro court also brushed aside other Fifth Circuit decisions which "seem[] internally inconsistent."

In contrast, the Ninth Circuit recently came out dramatically differently in its application of Doyle. In United States v. Caruto, 526 F.3d 445 (9th Cir. 2008), the defendant's conviction was reversed because of a Doyle violation. In a drug importation case, Caruto had been arrested at a border crossing when cocaine was found in the gas tank of her truck. After being read her Miranda rights, Caruto answered a few questions from ICE agents, then invoked her right to counsel and the interview ended. An issue at trial was under what circumstances was Caruto in possession of the truck. One of the interviewing agents testified affirmatively to what Caruto had said in the interview about the vehicle. But in summation, the government argued from the omissions in Caruto's statement, repeatedly asking the jurors "Why did she not say [X, Y, or Z as to the truck]?" The Ninth Circuit held that this argument impermissibly highlighted the omissions from Caruto's statement and violated Doyle.
 

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