The facts of a particular case may affect whether or not the employee has such a reasonable
expectation of privacy. In one case, a desk in a mailroom was searched. Personnel working there
were not allowed to bring personal items into the mailroom without written permission. This was, then,
not a search of one's "personal effects," and the accused should have expected governmental intrusion
"designed to insure proper, efficient, and secure operation of the postal unit, especially when pursuant
to regulation personal property was not to be brought into the work area." U.S. v. Torres, 46 CMR 96
(CMA, 1975). An important question in these cases, as the Supreme Court noted in the O'Connor
case, is whether persons are allowed to keep personal belongings in the office/desk, or whether there
is a policy against such. Also, was the property "made available...for his personal use so as to provide
him with an expectation of privacy from governmental intrusion?" An equally important consideration
"is the extent to which the government has retained the right to enter the property." U.S. v. Simmons,
46 CMR 288 (CMA, 1975). This of course, will be affected by command policies. U.S. v. Maglito, 43
CMR 296 (CMA, 1971), involved an accused who attempted to enter a restricted barracks. The
command's rule was that all persons entering it were subject to being searched. The accused,
therefore, "could not reasonably expect to be free of inspection." In another case, the command had a
policy of having officers and NCOs walk through the barracks at random. The policy was not unlawful
and was not a subterfuge for an illegal search. The policy, however, resulted in the accused having no
reasonable expectation of privacy. U.S. v. Frazier, 49 CMR 713 (CMA, 1975).
In U.S. v. Cunningham, 11 MJ 242 (CMA, 1978), the unit had a policy that doors to rooms were to
be left unlocked. This, therefore, put the occupants "on notice that they could not reasonably expect
that no one would enter their rooms without permission." Under such facts, the accused may not
reasonably expect that he may lock the doors and exclude his superiors. He was, instead, "on notice
that he would not be allowed to create a private sanctuary where he would be shielded from control by
his military superiors." U.S. v. Lewis, 11 MJ 188 (CMA, 1981).
Contrast these cases with those involving searches of government property issued for personal
use. In one case, the search was of a flight bag "issued to the accused for his individual use in carrying
government issue items, such as cold weather gear, as well as personal clothing and toiletries" Here,
there was a reasonable expectation of privacy. U.S. v. Bowles, 7 MJ 735 (AFCMR, 1979). The issue is
whether the military property "was designed or intended to be a place free from governmental
intrusion." U.S. v. Whalen, 15 MJ 572 (ACMR, 1983).
There is, then, no absolute rule in the areas of government property. One may have a reasonable
expectation of privacy therein, but this is not necessarily the case. Was the individual allowed to keep
personal belongings in his desk, or was there a policy against such? Check with JAG before
proceeding here; if the search is in connection with a criminal investigation, an authorization/warrant
may be necessary.
To sum up what we have covered thus far, the Fourth Amendment is triggered when we have two
things: (1) governmental action; and (2) a reasonable expectation of privacy on the part of the person
who is searched. When both are present, the protections of the Fourth Amendment apply and the
search/seizure must comply with the requirements of the Fourth Amendment. If not, the result will be
the application of the exclusionary rule. Violating the law, then, carries with it a high price.
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