Searches at Work Generally

In cases involving an employee’s claim of a violation of the Fourth Amendment or a similar state constitutional provision, Connecticut courts hold a certain position. They hold that a person asserting such a violation must establish two things. They must establish both that she had an actual subjective expectation of privacy in the place searched. Also, they must prove that this subjective expectation of privacy constitutes reasonable privacy under the law. This approach follows the U.S. Supreme Court’s analysis of Smith vs. Maryland, 442 US 735 (1979). Whether a reasonable expectation of privacy exists varies case by case. The reasonableness of a search or seizure will depend on the facts and circumstances of each individual case. So, forming clear rules as to the type of governmental intrusion that is permissible, or impermissible is difficult.

In determining whether a reasonable expectation of privacy existed Connecticut courts have explained that some of the factors considered under See State vs. Roseboro, 1990 WL 277237 (Conn. Super. Ct. 1990), judgment aff’d on other grounds, 221 Conn. 430 (1992) are:

• The use made of the premises searched.
• The normal precautions taken to maintain privacy.
• The property interests of the objecting party in the area of the search.

Ownership of the area or object subjected to search is relevant in determining whether an individual’s expectations of privacy are reasonable. But, ownership is not necessary to establish a finding that a defendant maintained an expectation of privacy. Also, it does not provide an automatic showing of a reasonable expectation of privacy.

At Your Office

As with any other search or seizure by government officials, a defendant seeking suppression must have had a reasonable expectation of privacy in the area or object of the search/seizure. So, a defendant must establish both that they have exhibited an actual subjective expectation of privacy, and, that society recognizes this expectation as reasonable.

When making the determination of whether or not an employee held an expectation of privacy in the area searched or item seized, the courts consider the specific area that was searched or the property that was seized; and the specific form of the intrusion by governmental agents on the employee’s privacy.

Areas that an employee has complete control over suggest a greater expectation of privacy, such as an employee’s desk or personal computer. A reasonable expectation of privacy is less likely to be found in areas that are shared by employees, such as break rooms or storage areas. Courts are unlikely to find a reasonable expectation of privacy in areas of the business that are open to the public such as lobbies, waiting areas, and public restrooms. Again, no clear lines can be drawn because the determination of whether an employee retained a reasonable expectation of privacy will depend on the particular facts and circumstances of each case.

At Someone Else’s Office

While working at someone else’s place of employment, an employee will likely have a reduced expectation of privacy. This is because the off site employee usually has only a very temporary relationship with the work area, and likely does not have exclusive control of the area that they are working in. However, the employee will usually retain a reasonable expectation of privacy in items that they bring with them to a job site; which they own; or that are under their complete control. Some common examples are: brief cases, toolboxes, or the employee’s car.

The nature of the off-site work place may also affect a defendant’s expectation of privacy. For example, because the Fourth Amendment provides the home its highest level of protection, off-site locations that are in a home or home office (even though not the employee’s home) may provide the off-site employee with a reasonable expectation of privacy.

Case Law

In an action in which a babysitter and other parties were charged with possession of drugs found during a police search of the apartment in which the babysitter was taking care of the residents’ child, the court, in State vs. Anonymous (1984-1), 40 Conn. Supp. 20 (Super. Ct. 1984), held that the babysitter had a reasonable expectation of privacy in the apartment under the Fourth Amendment and Conn. Const. Art. I, § 7 even though they did not reside in that home.

As a result, the babysitter had standing to contest the lawfulness of the search. As the caretaker of the child, the court reasoned, the babysitter undoubtedly had a socially acceptable expectation of privacy. A babysitter had an obligation, the court emphasized, to protect their charge from harm. Of necessity, the court reasoned, this obligation entitled them to exclude others from the premises. Accordingly, the court granted the babysitter’s motion to suppress evidence discovered during the search.

If you would like to challenge a search conducted at your place of business, take certain steps.