N.D.Ind.: No REP in an open office where others were free to come and go and document was taken at police insistence

Here the court considers a post-verdict motion to suppress. The court noted that there were kernels of cause for a motion to suppress, albeit a private search of an office, but the complete picture didn’t develop until trial. Giving he defendant the benefit of the doubt, the court goes to the merits, and he had no reasonable expectation of privacy in his open office space from which no one was excluded. United States v. Shelton, 2019 U.S. Dist. LEXIS 103267 (N.D. Ind. June 20, 2019):

Indeed, an office with an open-door policy such that any co-worker may simply waltz in whenever he pleases may not be entitled to any expectation of privacy. Id. at 718. See also United States v. Jenkins, 43 F.3d 447, 460 (7th Cir. 1995) (“[B]ecoming an ‘agent’ for purposes of Fourth Amendment analysis does not terminate one’s right to engage in conduct which was authorized prior to entering the agency relationship.”) An employer’s policy of conducting workplace searches, if made known to the employee, could also render an expectation of privacy unreasonable. Snider v. Pekney, 2010 U.S. Dist. LEXIS 17161 (N.D. Ind. Feb. 25, 2010). Still, the employee might have a reasonable expectation of privacy “in his desk and file cabinets,” depending on the circumstances. Id.

Here, several factors extinguish Defendant’s reasonable expectation of privacy. First, Garbutt had to enter Defendant’s office to sign his time sheets. (DE 258 at 198.) Second, Garbutt passed by her office to visit Elgin’s office, which he did regularly. (DE 193.) Third, Garbutt would often wander into Defendant’s office. Id. Fourth, Garbutt was often the first to arrive at work. (DE 257 at 168-69.) Even if Defendant did not know this, she herself started work early from time to time, and she knew of the “comp time” system, in which employees would receive benefits for arriving early or staying late. (DE 193.) Defendant was therefore on notice that her co-workers might take advantage of this opportunity by arriving early. Fifth, Elgin had security cameras plastered throughout the offices. Id. As Defendant testified, “Anything that happened in that office [Elgin] could see.” Id. Defendant knew Elgin often reviewed the footage these cameras captured. Id. Sixth, the CTTO had a company policy of conducting workplace searches of “[e]mployees, their possessions, and CTTO-issued [items] … at all times while on CTTO premises.” (Tr. Ex. 27 at 64.) Defendant acknowledged receiving an employee handbook that outlined this policy. (Tr. Ex. 55.) Seventh, and most importantly, Defendant left the documents on her desk. (DE 234 Ex. E at 2) (“CHS provided … [a] letter … which was discovered by CHS on Ethel Shelton’s desk.”). Thus, even if Defendant had a reasonable expectation of privacy in her desk, no reasonable person would expect privacy as to documents laying on a desk in what amounts to a monitored, high-traffic area subject to random searches.