Derrick A. Wiley v. Department of Justice, No. 02-3044 (Fed.Cir. May 12, 2003).

The Federal Circuit holds that searching an employee's car was unreasonable within the meaning of the Fourth Amendment.

The petitioner was employed by the agency as a teacher in a Miami, Florida, federal correctional institution. In 1997, the petitioner was investigated for allegedly bringing a weapon onto institution grounds. No weapon was found in that investigation. In 1999, the agency received an anonymous tip that the petitioner kept a loaded weapon in his vehicle in the agency parking lot. The agency requested a search of the vehicle, but the petitioner initially refused, left the building and drove away. He later returned and consented to the search, but no gun was found.

The agency removed petitioner on the charge of "refusing to submit to a search when initially instructed." The Merit Systems Protection Board (MSPB) administrative judge (AJ) sustained the removal in an initial decision, finding that the agency was able to prove the charge of refusing to submit to a search when initially instructed. The AJ rejected petitioner's arguments that the search violated the Fourth Amendment's prohibition on unreasonable searches and that the search was taken in reprisal for a prior Board appeal that same year regarding a proposal to remove petitioner.

On appeal to the full Board, the MSPB sustained the removal after finding the vehicle search did not violate the Fourth Amendment.

The Board next determined that the case fell under O'Connor v. Ortega, 480 U.S. 709 (1987), in which the Supreme Court held that a public employer must show only reasonable suspicion and not probable cause to justify Fourth Amendment searches undertaken in the workplace for noninvestigatory work-related purposes or for evidence of misconduct. The Board concluded that the agency established that the warden had reasonable suspicion to search petitioner's car based on the information available to the warden at the time he ordered the search.

However, the Federal Circuit reversed the MSPB's decision after finding the search of the petitioner's car was unreasonable. Unlike a situation in which a public employee brings a closed suitcase to work without any expectation that it would be searched, the petitioner was on notice that his car could be searched, the Federal Circuit said. His car, as situated in the agency's parking lot, was within the "workplace." In the petitioner's case, the purpose of the search was not to ferret out possible criminal activity, but to uncover work-related misconduct in an internal investigation by the agency for the purposes of maintaining security and order. Thus, the court agreed with the Board that the search should be analyzed pursuant to the reasonable suspicion standard.

The court concluded that the anonymous tip in this case, standing alone, lacked the necessary indicia of reliability to serve as the basis for the search. The court noted that its analysis, which applied the reasonable suspicion rather than the probable cause standard, had accounted for any special considerations present in the prison context. The court said it was not persuaded that this was an emergency situation so as to relax the usual test of reliability.

The court (Judge Prost dissenting) reversed the Board's decision sustaining of petitioner's removal for failure to submit to a search when initially requested. The court concluded that the search violated the Fourth Amendment's requirement of reasonableness.

Workplace searches are frequently undertaken by agencies as a means of investigating/proving employee misconduct. In many cases, the agency can meet the requisite legal standard required to perform the search. In other cases, such as the one summarized above, the agency cannot meet the "reasonable suspicion" standard required by O'Connor v. Ortega, and the search will be found unreasonable within the meaning of the Fourth Amendment. As a result, any action taken resulting from that search would also not be sustained by the MSPB or the courts.