Following media coverage on the San Francisco police officers accused of sending racist text messages? You're not alone. We are living at a time of great public interest in policing, fitness for duty, and how police departments across the country address misconduct issues. In San Francisco, for example, an investigation of a police officer amid rape allegations forced the Police Department to turn over documents showing that members of the force had exchanged racist text messages. While the public is clamoring for answers and accountability, at the same time, public interest in mobile devices and data privacy concerns continues to escalate. Meanwhile, a federal court in Dayton recently became the first to balance the need to investigate misconduct against an officer's alleged privacy interest where the officer had been accused of sending racist text messages. Sollenberger v. Sollenberger, No. 3:15-CV-00213, 2016 U.S. Dist. LEXIS 39528 (S.D. Ohio Mar. 25, 2016). Bloomberg BNA just offered its take on Sollenberger – in which FI&C successfully defended a Dayton-area Sheriff's Office that investigated the text messages – here.
In Sollenberger, a former detective with a local Sheriff's Office alleged that the Sheriff's Office violated his Constitutional rights under 42 U.S.C. § 1983 and Ohio privacy laws when it conducted a warrantless search of his personal cell phone during the course of an administrative investigation. As the case caption of Sollenberger v. Sollenberger foreshadows, it was Plaintiff's spouse who found derogatory messages on her soon-to-be ex-husband's smart phone and reported them to the NAACP. Thereafter, the NAACP showed printed copies of the text messages to the Sheriff's Office, which messages prompted the Sheriff's Office to open an administrative investigation to determine the messages' authenticity. Review of the source cell phone confirmed that the text messages at issue resided on the phone. Plaintiff was terminated, and filed suit shortly thereafter. Representing the Defendant Sheriff's Office and deputies who participated in the investigation ("Sheriff Defendants"), FI&C removed the case to federal court and successfully argued for dismissal of all claims. As to the legality of the search, the Court agreed in a lengthy opinion that, under the circumstances alleged, Plaintiff failed to establish that the text message review was unreasonable. Sollenberger, 2016 U.S. Dist. LEXIS 39528, at *30-31. Furthermore, the warrant requirement for administrative searches of cell phones, under the specific circumstances alleged, was not "clearly established" and thus the Sheriff Defendants were entitled to qualified immunity. Id. ("Assuming arguendo, Plaintiff Sollenberger sufficiently pleaded the first element of qualified immunity[,] he has nevertheless failed to establish actions that were objectively unreasonable and constituted a violation of a clearly established constitutional right.").
Although the exact facts of Sollenberger are unlikely to repeat themselves – as there were some questions about whether Plaintiff legally abandoned the phone at issue in the residence he formerly shared with his wife – the scandal in San Francisco shows that other law enforcement departments are being confronted with similar situations, such as text messages that implicate some officers' fitness for duty. Thus, the Sollenberger decision will be significant as courts grapple with litigation that will similarly implicate privacy in electronic devices and cell phones. Generally, a government employee cannot be held liable for violations of another person's Constitutional right unless that right is "clearly established" (Sollenberger, 2016 U.S. Dist. LEXIS 39528, at *30-31), and Sollenberger confirms that, as of this moment, the contours of privacy rights when it comes to cell phones are still evolving – for good reason. The Supreme Court of the United States has carefully avoided broad rulings when it comes to privacy in electronic devices, because technology is constantly changing. For example, in City of Ontario v. Quon, the Supreme Court, in a nearly-unanimous decision (based on highly case-specific facts) held that a police department legally conducted a warrantless review of the transcript of an officer's work-issued pager, but declined to offer a bright-line holding on the officer's privacy interest in that pager:
"Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve."
560 U.S. 746, 762, 130 S. Ct. 2619, 2632 (2010). A lot has happened since the 2010 Quon decision, but when given the chance in 2014 to mandate warrants for law enforcement review of all personal cell phones in Riley v. California, the Supreme Court again demurred (Chief Justice Roberts delivering the opinion). Though Riley effectively ruled that law enforcement does not have carte blanche to search the cell phones of arrestees pursuant to the "search incident to arrest exception" to the warrant requirement, other situations may justify a warrantless review of cell phones: "[E]ven though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone." 134 S. Ct. 2473, 2495 (2014). Indeed, the Sollenberger court reasoned that Riley did nothing to clearly define cell phone privacy rights when it comes to government administrative searches, observing that "Riley interprets the warrant exception for searches incident to arrest, whereas the case here involves the parameters of the warrant exception for investigations of employee misconduct." Sollenberger, 2016 U.S. Dist. LEXIS 39528, at *30.
Sollenberger does not give law enforcement unfettered ability to search any officer's phone, at any time, for any reason. Likewise, it does not hold that cell phone searches are always fair game during the course of administrative investigations. However, it is one of the few current guideposts of legal authority available to police departments grappling with whether they may search officers' phones once presented with independent evidence of misconduct. Not surprisingly, the validity of such searches turns on the reasonableness of the search under all of the circumstances, which must be considered on a case-by-case basis. Sollenberger shows that, under the right set of circumstances, it may be possible to review officer text messages without a warrant. With the scandal in San Francisco right now, Sollenberger may be the first federal case to address the legality of searching an officer's phone where there is evidence of racist text messages, but it is unlikely to be the last.