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Alain Leibman writes:

This blog has previously explored (here and here) courts' increasingly entangled and inconsistent efforts to apply the Fourth Amendment and its hoary doctrinal analyses to the modern technology of computers, cell phones and other smart electronic devices.  Courts have struggled to determine  whether and how a search warrant authorizes agents to rummage through a computer's enormous amounts of private data in the manner of a search through a conventional file cabinet for easily-detected letters and contracts germane to the warrant.

Recently, Judge Richard Posner of the Seventh Circuit pondered similar connundra in United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012).  Incident to the defendant's arrest in a drug distribution case, agents had without a warrant searched his cell phone to collect its telephone number, so that they could later subpoena from his provider its call history; the expectation was that there would be a pattern of calls connecting Flores-Lopez to other conspirators' known telephone numbers.

There is no question that a conventional container of information, such as a diary, could be cursorily searched without a warrant at the time of arrest if on or near the defendant's person and if the search was limited in scope.  Quickly analogizing a cell phone to a diary, as some courts have done, would have obviated the need for an opinion of any length. 

What intrigued Judge Posner enough to write more were the features of the modern mini-computer that is a cell phone -- including the ability to use an application to obtain for the agent-holder a view of the owner's residence, if equipped with a linked camera.  Concluding that "[w]e are quite a distance [in this case] from the use of the iCam to view what is happening in the bedroom of the owner of the seized cell phone," the court easily held that the superficial intrusion into the well of data on the phone was appropriately incident to the arrest.  However, the Seventh Circuit's exploration in this case of the distinctions between paper file and computer hard drive suggest that the court may align itself with those courts of appeal applying Fourth Amendment principles differently to each medium.

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)

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An earlier post considered the wide array of analyses employed by the courts of appeal in assessing under the Fourth Amendment the constitutionality of searches of computers and other electronic storage devices. (An article by the author, expanding substantially on the short-form blog entry, may be found at "Computer Search and Seizure Under the Fourth Amendment: The Dilemma of Applying Old-Age Principles to New-Age Technology," Criminal Law Reporter (March 2, 2011)). The differences among the courts turn on the degree to which they view the search of an electronic storage medium as like, or as unlike, a traditional search of a file drawer or other container of papers. A plurality of circuit courts have required law enforcement agents to proceed cautiously in searching through computers, cognizant both of the quantity of private data housed in a computer and the potentially corrosive effect on expectations of privacy when the “plain view” doctrine is used to justify a close review of data far afield from the original object of the search.

In a recent decision involving the search of a computer, a panel of the Sixth Circuit has taken its place in the cautious center of the judicial spectrum. The case of United States v. Lucas, 2011 WL 1775685 (6th Cir., May 11, 2011) involved an appeal of the denial of a motion to suppress child pornography found on a computer thumb drive; the appeals court focused largely on the extent to which Lucas’s consent to search his apartment for evidence of drug violations (he grew his own marijuana there) authorized a police officer to review the contents of the defendant’s laptop computer and associated storage media. Generally, the Sixth Circuit held in affirming denial of the motion, the breadth of a consented-to search is determined by an objectively reasonable standard -- what would a typical, reasonable person have understood he was consenting to? The seminal case is Florida v. Jimeno, 500 U.S. 248 (1991), in which the Court held that a police officer given consent to search a car for drug evidence enjoyed the owner’s consent to open a closed paper bag in the car, because it was understood that such containers might hold drugs. Id. at 251.

So, Lucas’s consent to a search for similar evidence effected a consent to search the entire apartment, including any closed containers; the laptop and its thumb drive were akin to a closed container, and their search was within the scope of the overall consent.

Nevertheless, the Lucas court showed that it -- unlike, say, the Fourth Circuit in United States v. Williams, 592 F.3d 511 (4th Cir.), cert. den., 131 S. Ct. 595 (2010) -- understood the difference between a file cabinet and a computer. The Lucas court warned that its affirmance “should not be read as a grant of broad authority to the police to open a suspect’s non-secured computer and examine at will all of the electronic files stored there.” In this case, the searching officer had conducted a limited search and, after finding a few images of child pornography, had concluded that search; a later-arriving computer search team then obtained Lucas’s second consent to continue and expand a computer search. A more intrusive and longer initial search could well have warranted suppression, notwithstanding the initial consent to search all closed containers in the apartment, because of the Fourth Amendment difference inherent in those special kinds of containers which store electronic data.
 

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)

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Over the last ten years, television viewers have been inundated with commercials starring “Smiling Bob,” whose enthusiastic mien, we learn, stems from his happy experiences with Enzyte, a male performance-enhancing product. His wife adores him, his friends envy him, and his life is good. Unfortunately, the study claimed to support the benefits of the product was a sham; the “doctors” who developed it were fictional; and the customer satisfaction reports provided to viewers were wholly fabricated. And now, Steve Warshak, its promoter, and Harriet, his mother, who worked for him, are in jail, having been convicted of mail fraud, bank fraud, and money laundering, and several interesting legal issues were addressed in their appeal.

The prosecution underlying United States v. Warshak, et als., 2010 WL 5071766 (6th Cir., 12/14/2010) depended in significant measure on emails exchanged between Mr. Warshak and other employees, largely his family members, which demonstrated the fraudulent nature of the product and the means used to frustrate customers’ ability to secure refunds. Nearly 30,000 emails were obtained from Warshak’s internet service provider, Nuvox.

The Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq., dictates the procedures to be employed by the government to obtain email content. Emails stored by the provider in the last 180 days may only be obtained through a warrant, § 2703(a), while older emails may be obtained by warrant, subpoena, or court order. § 2703(d). Also, under § 2703(f), the government may request a service provider to preserve all records in its possession pending issuance of process to compel their production; DOJ’s internal guidance makes clear that the preservation letter may not be used to prospectively request the maintenance of emails which have not yet been created by the client. Yet, in Mr. Warshak’s case, the government had requested Nuvox to prospectively save their client’s emails when they were created, emails which otherwise would have been deleted from the company’s server as they were downloaded and opened by the client. The government then used a subpoena to obtain the accumulated emails from Nuvox. Mr. Warshak claimed his Fourth Amendment rights were violated by this warrantless seizure of the content of his emails and that the government violated the SCA and DOJ guidelines.

The Sixth Circuit first considered the Fourth Amendment status of emails in the possession of a service provider. The court easily found that Mr. Warshak had a subjective expectation of privacy, and then turned to the thornier question whether that expectation was objectively reasonable. Tracing the expanding category of communication modalities which have been accorded Fourth Amendment protection, from the telephone calls in Katz v. United States, 389 U.S. 347 (1967) to private correspondence in United States v. Jacobsen, 466 U.S. 109 (1984), the court held that it would “defy common sense” to treat emails, which “play[] an indispensable part in the Information Age,” any differently. It did not matter under the Fourth Amendment that Nuvox had the ability to access its client’s emails, any more than it mattered that the telephone company in Katz could eavesdrop in on calls in 1967. While there could be a subscriber agreement which so broadly prescribed the provider’s announced intention to review its client’s email as to upset the client’s expectations of privacy, but the Nuvox agreement was not so broad. Therefore, the SCA is unconstitutional to the extent that it allows the government to obtain any emails from a service provider without a search warrant.

However, under the Leon good-faith doctrine, since the government agents in Warshak relied in good faith on the SCA provisions and since the statute was not obviously unconstitutional to them, the exclusionary remedy was inappropriate and the email evidence was not to be suppressed. As for the government’s improper use of a forward-looking SCA preservation letter, the court held that this statutory violation was irrelevant to the good-faith determination, since the critical inquiry was the actual obtaining of the evidence; the fact that the evidence would not have existed for later seizure but for the improper preservation request was of “no consequence.”

Future SCA subpoenas in the Sixth Circuit, though, would seem to constitute unlawful seizures, and practitioners in other Circuits may be able to use this opinion to argue both that SCA subpoenas are unlawful and that agents may no longer assert a good faith reliance on the SCA in light of Warshak.
 

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Few provisions in the Bill of Rights better illustrate the shortcomings of an “original intent” approach to Constitutional interpretation than does the Fourth Amendment’s guarantee of “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  Eighteenth-century words must be given new meaning in order to have currency in the twenty-first century.  As record-keeping has shifted from storing a handful of parchment documents in a Colonial-era footlocker to housing millions of bytes of data on sleek laptops, Fourth Amendment jurisprudence has struggled to balance legitimate law enforcement needs with citizens’ modern expectations of privacy.  No consensus has been achieved on updating the legal construct of the Fourth Amendment to encompass both old and new means of maintaining information.

The Supreme Court has yet to offer definitive computer-search guidance, and in the last year, the courts of appeal have exemplified dramatically different approaches to the problem of limiting the propensity of law enforcement authorities to rummage through the contents of computers in search of evidence in the same way they would skim documents in a file cabinet.

In United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010), involving the BALCO steroids investigation, agents had obtained a warrant to search computer records related to 10 named ballplayers in a specimen-collection laboratory. Based on Ninth Circuit precedent, the magistrate judge conditioned the warrant to require non-case agents with computer training to first conduct preliminary data reviews on-site to limit the universe of computer media which needed to be removed from the site for further examination, and to require those persons to conduct their off-site review so that non-pertinent data could be returned quickly. But these restrictions were ignored in executing the warrant, and the lead case agent broadly reviewed all computer files and directories at the laboratory, searching for the files affecting the 10 players. He reviewed the drug tests of hundreds of other ballplayers, and later used that information to secure additional search warrants in other districts within the Circuit, leading to the seizure of additional evidence involving many other ballplayers.

The government sought to justify on “plain view” grounds the broad review of records of ballplayers not named in the search warrant, arguing that the others’ test results were intermingled in computer directories with the results for the players identified in the warrant. The Ninth Circuit, sitting en banc, rejected the argument that agents could permissibly review entire hard drive directories thought to contain the narrower data eligible to be seized under the terms of the warrant, mocking the argument in a series of rhetorical questions: “Why stop at the list of all baseball players when you can seize the entire [directory in which they were found]? Why just that directory and not the entire hard drive? Why just this computer and not the one in the next room and the next room after that? Can’t find the computer? Seize the Zip disks under the bed in the room where the computer once might have been … Let’s take everything back to the lab, have a good look around and see what we might stumble upon.” Id. at 1170-71. While “over-seizing” evidence is an “inherent part of the electronic search process,” the court of appeals called for greater vigilance on the part of judicial officers in striking a balance between the needs of law enforcement and the Fourth Amendment rights of individuals. Id. at 1177.  The court of appeals affirmed several district court orders compelling the return of all of the evidence improperly seized on the various warrants.

Not surprisingly, computer searches in the conservative-leaning Fourth Circuit are viewed through a more law enforcement-friendly prism. In United States v. Williams, 592 F.3d 511 (4th Cir. 2010), cert. den., 2010 WL 2504942 (Nov. 15, 2010), where the subject had sent threatening emails to a local church, police obtained a warrant to seize all computers and media in his residence which were “indicative” of the state offenses of harassment, through use of obscene and profane language, and making threats of injury. The police and FBI executed the warrant by removing all of his computers and media to an off-site location for review, where they found child pornography on a DVD. Williams moved unsuccessfully for the suppression of the child pornography evidence, arguing that the warrant did not authorize a search of each computer file in his possession, but only of those files related to the designated offenses; he also argued that “plain view” could not sustain the seizure, because then the exception would swallow the entire Fourth Amendment when it came to computer searches.

The Fourth Circuit had no difficulty in affirming denial of the defendant’s suppression motion. Even if the warrant did not authorize the seizure of child pornography, the “plain view” exception controlled. Id. at 521. The warrant “impliedly authorized officers to open each file on the computer and view its contents, at least cursorily” to determine if the file fell within the scope of the warrant; after all, the court noted, the designation or labeling of files on a computer can easily be manipulated to hide their contents. Id. at 522. Lest there be any doubt about the chasm between the views of the Ninth and Fourth Circuits, the latter concluded: “At bottom, we conclude that the sheer amount of information contained on a computer does not distinguish the authorized search of the computer from an analogous search of a file cabinet containing a large number of documents.” Id. at 523.

Between the two extremes is the view typified in the Tenth Circuit’s decision in United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009), cert. den., 130 S. Ct. 1028 (2009). Authorities in Burgess executed a search warrant for evidence of drug sales and seized a laptop and two hard drives from the defendant’s motor home. An agent searching for photos of drugs and drug proceeds on the computer media found child pornography during his preview of image files; he then ceased the preview and obtained a new warrant for child pornography files. Burgess moved unsuccessfully to suppress evidence of those images, and the Tenth Circuit affirmed the denial of his motion. The court held that it was “unrealistic” to expect a warrant to narrow the scope of a search by filename or extension, since names could be altered, and that keyword searches directed against an entire hard drive might miss evidence, and so the search process must be “dynamic.” Id. at 1093-94. Although attempting to structure the mechanics of the search in the warrant (as the Ninth Circuit now requires) is “folly,” id. at 1094, there are some functional limits on computer searches; the officer must first look in the most obvious places on the computer, starting with file structure, then look for suspicious file folders, and then look for files and types of files most likely to contain the objects of the search, using keyword searches. “But in the end, there may be no practical substitute for actually looking in many (perhaps all) folders and sometimes at the documents contained within those folders, and that is true whether the search is of computer files or physical files. It is particularly true with image files.” Ibid.

These contrasting approaches illustrate the degree to which confusion will reign until the Supreme Court speaks to the matter.
 

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There are several recurring instances in the practice of criminal law where the use of particular terminology in the right circumstance makes the difference between an action which is unconstitutional or improper and one which is not, e.g., effectively invoking the right to counsel under the Fifth Amendment; saving an indictment from a fatal flaw by using the disjunctive or conjunctive to connect its means and methods; saving a co-conspirator statement under Bruton and the Sixth Amendment through the application of the correct pronoun.  It seems sometimes that medieval scholastics are not as far removed from present-day lawyers as the intervening centuries would suggest.

The Third Circuit recently added to the Fourth Amendment analysis which attaches dispositive significance to mundane terms. In United States v. Tracey, 2010 WL 681364 (3d Cir., Mar. 1, 2010), a Pennsylvania police officer had drawn up a detailed search warrant affidavit in a child pornography investigation. His seven-page affidavit -- which detailed the offense under investigation, the location to be searched, and the items which might be located there, was physically attached to the warrant application and warrant form itself -- was signed on each page by the officer who signed the application, and was referenced in various places on the warrant application. However, the warrant only generally described the items to be seized, in contrast to the greater, and sufficient, level of detail in the attachment. The district court suppressed the search in question, finding that the warrant was not particularized, or was too “general,” under the Fourth Amendment and therefore inadequate.

The Third Circuit agreed that the warrant was defectively “general,” a point the government conceded, and held that the more-detailed affidavit was not sufficiently incorporated into it. While incorporation would have cured the warrant’s defect, the warrant application failed to use words such as “attached affidavit which is incorporated herein,” “see attached affidavit,” or “described in the affidavit.” The application thus failed to “contain explicit words of incorporation.” But in a small nod to substance over linguistic precision, the Court did hold that the Leon good faith exception applied to save the search for the government, because the attached affidavit was in sufficient proximity to the search warrant to support the objective good faith of the officers in conducting their search.

So, words do and always will matter under the Fourth Amendment, and Tracey provides counsel with yet another, technical basis on which to attack an improper search.
 

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The usual protocol when agents execute a search warrant at an office or home is to leave a copy of the warrant with the person in control of the premises, often but not necessarily the owner.  Rule 41(f)(1)(C) requires it.  But what kind of notice is required when agents execute a search warrant to seized stored emails from a subject's internet service provider (ISP), such as Google or Hotmail or Verizon?  Answer: none. to the subscriber.

A District of Oregon judge recently considered this question in a case involving a warrant served under the terms of the Stored Communications Act, 18 U.S.C. § 2703(a), which requires a search warrant -- as opposed to a mere subpoena -- if law enforcement officers wish to obtain e-mails stored for 180 days or less.  In re Application of United States for Search Warrant, 2009 WL 3416240 (D. Ore., June 23, 2009).  The magistrate judge presented with the government's application for a warrant granted the warrant but rejected the Government' s arguments that supplying the warrant to the ISP was sufficient notice under the SCA and that Rule 41's notice procedure was not applicable; the Government was initially ordered to provide notice of the seizure to the individual subscriber.

On an appeal by the Government, the district judge reversed.  While the opinion contains a useful summary of search procedures under the involved provisions of the SCA and the interplay of the SCA with Rule 41, the rationale of decision was rather straightforward.  The third party electronic context is no different than other third party contexts, such as when agents seize a package in the control of Federal Express.  In the latter instance, a copy of the search warrant is permissibly left only with Fed Ex and there is no need to inform the sender or recipient of the package of its seizure.  ISP's are analogous to Fed Ex, and notice to the individual subscriber to the ISP is unnecessary.

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When law enforcement officers execute a search warrant in a suspected drug case and the warrant does not explicitly provide for the search of computers in the residence, the officers run afoul of the Fourth Amendment if they search a bedroom computer without securing it and seeking a new warrant, according to the Ninth Circuit.

In United States v. Payton, 2009 U.S. App. LEXIS 15969 (9th Cir., July 21, 2009), .local police obtained a warrant to search for drugs, as well as sales ledgers and financial records of the person controlling the subject residence.  No drugs were found, but a police officer happened on a bedroom computer, and with a few mouse clicks discovered and viewed child pornography.  The appeals court, reversing the trial court, held that the search of the computer was improper.

Although recognizing that the search of a computer generally is more intrusive than searches of other containers, the Payton court emphasized that there is not special categorical protection against computer searches in the Fourth Amendment.  However, in this case the warrant did not specify computers as things to be searched; while ledgers and financial records are capable of being stored in a computer, the lack of specificity in the warrant combined with the lack of circumstantial indicia that ledgers and financial records were on this computer (i.e., there was an absence of such documents in proximity to the computer), to render the search unreasonable.

The better practice, and one the court expressly intended to encourage, would have been for the officers to secure the computer and seek a second warrant specifically oriented toward its search.  Such a practice would better accord with "the special considerations of reasonableness involved in the search of computers."

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Conditions of probation or supervised release sometimes include special conditions by which the defendant consents to warrantless searches of his residence by his/her probation officer. (In the District of New Jersey, standard probation conditions provide only for consent to "visits" by a probation officer and the corresponding consent to the confiscation of contraband in the plain view of that officer). Even in the absence of such conditions, the Eleventh Circuit recently held, a probation officer can conduct a warrantless search of the probationer's residence based only on "reasonable suspicion." The justification for the seeming Fourth Amendment violation: a probationer by virtue of his/her status simply enjoys a lower expectation of privacy than does the average citizen.

In United States v. Carter, 2009 U.S. App. LEXIS 8838 (11th Cir., April 27, 2009), the district court had denied Carter's motion to suppress guns and drugs found in his home in the course of a warrantless search conducted by his probation officer and state drug agents. No prior Eleventh Circuit case had approved of the warrantless search of a probationer's residence simply because of his status. The Supreme Court had previously endorsed in United States v. Knights, 534 U.S. 112 (2001), such a warrantless search only where the defendant had given prior consent as a condition of probation.

But the court of appeals nonetheless affirmed the district court, holding that Carter's status as probationer alone meant that he enjoyed a reduced expectation of privacy. When combined with the substantial government interest in "monitoring" him because of his prior drug and violent crime background, the lowered expectation of privacy justified the use of warrantless searches of Carter's home based only on a reasonable suspicion standard.

It is unclear if the Carter rationale would extend to probationers who had committed fraud crimes, resulting one might argue in a presumably lesser government interest in their being "monitored." Of course, the government could argue that, depending on the scope and effects of the prior white collar crime, such probationers are even more worthy of "monitoring." Practitioners may need to warn their clients on probation or supervised release that their status alone may justify a raid of their homes conducted solely on the basis of a belief, held by an officer of the court not trained in law enforcement and untested by judicial review, that there might be evidence of a federal crime in the home.
 

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It has been told to every law student (and even many non law students) for over two hundred years: The Fourth Amendment to the United States Constitution forbids unreasonable searches and seizures and, for the most part, requires the police to have probable cause or a warrant before making an arrest. Sounds simple enough. In practice, of course, it is anything but.

Case law has established an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial. This judicially created rule was and is designed to safeguard our Fourth Amendment rights through its deterrent effect.

But the Supreme Court has recently cut back on the scope of the exclusionary rule. Herring v. United States, 129 S. Ct. 695 (2009). In this case, Bennie Herring was arrested in one Alabama county based on a warrant listed in a neighboring county. A search incident to that arrest found a gun and drugs. It was subsequently discovered that the warrant had been recalled months earlier, though the recall had never been entered into the database. Herring, who was indicated on federal gun and drug charges, moved to suppress the evidence on the ground that his initial arrest had been illegal. The District Court, even after assuming a Fourth Amendment violation, found the exclusionary rule did not apply. The Eleventh Circuit affirmed, finding the arresting officers were innocent of any wrongdoing and that the failure to update the database was merely negligent.

In a 5-4 decision, the Supreme Court affirmed and held that when police mistakes which lead to an unlawful search are the result of isolated negligence attenuated from the search – as contrasted with systemic error or a reckless disregard of constitutional requirements – the exclusionary rule does not apply. The Court found that the conduct here was not objectively culpable as to require exclusion as the marginal benefits that might follow from suppressing evidence obtained in this circumstance cannot justify the substantial cost of exclusion.

To trigger the exclusionary rule, the law enforcement conduct must be sufficiently deliberate and culpable such that exclusion can meaningfully deter similar conduct in the future. The analysis is objective, it is not an inquiry into the arresting officers’ subjective awareness. Had the police knowingly made false entries in the database or if it was shown law enforcement was reckless is maintaining the warrant system, that conduct would have justified application of the exclusionary rule. No such conduct took place here as it was an administrative oversight. Excluding the evidence in this case would have provided no deterrence to future misconduct.

The dissent argued that the exclusionary rule is often the only effective remedy to redress a Fourth Amendment violation and that it remains absolutely necessary to ensure that the Fourth Amendment prohibitions are observed. Further, the dissenters contended that to compel respect for our constitutional guarantees, the Court should have excluded the evidence to ensure that there existed no any incentive to disregard the Fourth Amendment. Finally, the dissent contended that the majority opinion runs counter to a foundational premise of tort law – that liability for negligence (a lack of due care) creates an incentive to act with greater care.
 

(With appreciation to Scott M. Badami, Esq., for contributing this entry)

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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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