City of Ontario v. Quon (08-1332)

The City of Ontario argues that the search of Quon’s text messages was constitutional because Quon did not have a reasonable expectation of privacy for his communications on a work-issued pager. On the other hand, Quon counters that the search violated the Fourth Amendment because it was unnecessarily intrusive and his superior, Lieutenant Drake, had authorized personal communication on the pager. Both the City of Ontario and Quon agree that the case is governed by O’Connor v. Ortega, which established the standard for when non-investigative searches of government employees by their employers violate the Fourth Amendment. In O’Connor, the Court indicated that the “operational realities of the workplace” and the need for efficiency lessen Fourth Amendment protection for government employees. However, the Court also cautioned that the search must still be reasonable within the context. For these purposes, a reasonable search will be both “justified at its inception” and “reasonably related in scope to the circumstances which justified the interference in the first place.”

Did Quon have a reasonable expectation of privacy concerning his text messages?

The City of Ontario claims that Quon did not have a reasonable expectation of privacy, because the pager was issued by the police department for use in SWAT activities, and not for personal use. The City also notes that Quon signed a no-privacy form in regards to his e-mail and computer use and that it was made clear to Quon and other officers that this policy applied to the pagers. The City argues that Quon’s text messages could be disclosed under the California Public Records Act, eliminating any legitimate expectation of privacy. Finally, the City notes that Lieutenant Duke’s statements, expressing that he would not audit the phones except for issues related to overage charges, did not create an expectation of privacy. The City argues that Duke’s statements concerned accounting and did not relate to Quon’s privacy and that Duke furthermore did not have the authority to override Department policy.

In response, Quon first notes that Lieutenant Duke established that the Department computer use policy would apply to the pagers. However, it was also Duke who told Quon that he would not audit the pager, so long as he agreed to pay the overage charges. Quon claims that the City’s position is inconsistent: the City would allow Duke to lower expectations of privacy by unilaterally establishing the policy on pagers, yet it would not allow Duke the power to then increase expectations by only auditing for overage purposes. Quon argues that, in both cases, Duke dictated a communications policy to officer Quon, demonstrating that the City is able to selectively decide when Duke is a policy-making official. Quon also asserts that O’Connor requires a flexible assessment of the entire employment context, not just an evaluation of formal stated policies. Finally, Quon argues that the California Public Records Act does not apply because the text messages are not “public records,” but were archived and maintained by the private wireless company. Quon counters that, under the federal Stored Communications Act, the company could not divulge the content of the messages without Quon’s consent.

Was the City of Ontario’s search of text messages unreasonable?

The City of Ontario argues that even if Quon had a legitimate expectation of privacy as to the content of his text messages, its search of the text messages was reasonable. The City argues that, under O’Connor, privacy interests at the workplace are much lower than those at the home because of the government’s interest in running an efficient workplace. The City argues that the Ninth Circuit Court of Appeals applied a “less intrusive means” test, which finds a search unreasonable if the government could have used a less invasive procedure for searching a person or his belongings. However, the City argues that Supreme Court case law and the majority of Circuit Court opinions do not apply a “less intrusive means” test for Fourth Amendment search cases, because it is fairly easy for a judge to determine a less invasive method after the fact. Rather, the City asserts that, under O’Connor, a court must look only at the actual search to determine reasonability.

The City further maintains that the review was reasonable because it was undertaken to determine if the communication plan’s character limit on text messages was too low, and thereby decreasing the efficiency of the Department. The search was reasonably related in its scope, because the Department, by reviewing the transcripts, could determine what percentage of the texts was being used for business reasons. The City also argues that that search was reasonable even if it was for the purpose of investigating potential misconduct by Quon, because excessive personal pager use was never allowed, and the City has an interest in its employees working efficiently.

However, Quon argues that, because he had a reasonable expectation of privacy in his pager communications, a search must be both justified at its inception and reasonable in its scope. Quon argues that the search was not justified at its inception, because the Department could not access the text messages under the Stored Communications Act. Quon also claims that the search was not necessary, because Quon fully paid the overage charges, and the City was not burdened by the personal text messages.

In asserting that the search was unreasonable in its scope, Quon argues that his Fourth Amendment rights significantly outweigh the method of the search. Quon claims that, if the purpose of the search was to find out if officers were personally paying for work-based communication the officer would have exercised his right to file a claim with the Department. Quon argues that the search was unreasonable, because the officers were told that their messages would not be reviewed so long as they paid for overage fees, as Quon did. Quon does not argue in favor of a “less intrusive means” test, but asserts that the Ninth Circuit merely found the search unreasonable in light of Quon’s reasonable expectations, as established by his superiors in the Department.

Does the Fourth Amendment protection extend to the parties to whom Quon sent his text messages?

The City argues that additional respondents April Florio, Jerilyn Quon, and Sergeant Trujillo should not receive Fourth Amendment protection in regards to the messages exchanged with Quon, because they similarly had no reasonable expectation of privacy. The City argues there was no justified expectation of privacy because all three of the other parties knew that they were exchanging messages with a Department-issued pager, and there is no indication that any of them were aware of Lieutenant Duke’s arrangement with Quon. The City asserts that it is objectively unreasonable for a person to assume that communication sent to a police officer’s work pager would be completely private.

Quon counters that, because the search against him was an unreasonable violation of the Fourth Amendment, the entire search is unreasonable as to other parties involved. Quon argues that text messages are the equivalent of both telephone calls and written letters, and that the content of those forms of communication are protected by the Fourth Amendment. Quon argues that his legitimate expectation of privacy extends protection to the parties with whom he is communicating.