Rare Employee Privacy Victory, In New York No Less. Court Holds Search of Computer Suppressed

People v. Wilkinson, ___Misc. 3d___, 2008 NY Slip Op 28192 (Onondaga Co. Ct. May 22, 2008), is an unusal, but important case concerning an employee's right to privacy. It part of a rare breed of cases holding that an employee has a privacy interest in the contents of his assigned work computer.

This was actually a criminal case. The defendants were police officers and the search concerned alleged false time sheets. They were charged with crimes involving the defrauding of government because of these alleged false time sheets. Significantly, the police department  permitted its employees to use their computers for personal matters and therefore, they had a privacy interest in their assigned computers. As the court reasoned:

What makes Angevine and Slanina distinguishable from the instant case is that neither the University nor the City had a policy which gave the employees any specific expectation of privacy. To the contrary, the University specifically informed its employees that their use of the computers was monitored, that the contents of the computer were the property of the University, and that employees were forbidden from [*6]accessing obscene material defined under state or federal law. Similarly, Slanaina's employer had a specific prohibition against its employees accessing pornography.

A defendant seeking suppression of evidence has the burden of establishing standing by demonstrating a legitimate expectation of privacyin the premises or object searched .People v Ramirez-Portoreal, 88 NY2d 99, citing People v Wesley, 73 NY2d 351. This privacy evaluation has two components, "a subjective component-did defendant exhibit an expectation of privacy in the place or item searched" and an "objective [component]-does society generally recognize defendant's expectation of privacy as reasonable". People v O'Brien, 2 AD3d 1222, citing Portoreal.

In the case at bar, the North Syracuse police department had a written policy which permitted, if not encouraged, employees to utilize the computers for "personal needs at minimal or no cost to the taxpayer."

Likewise, the nature and the character of the evidence seized from the computers in Angelvine and Slanaina, i.e. child pornography, could not have led either defendant to reasonably believe that such material was permissibly downloaded and possessed under any circumstances. In the present case Defendant Casey had a spreadsheet on his computer, the nature and origin of which was unclear, and unlike child pornography, was not inherently incriminating, While the discovery of this spreadsheet led to the application for a search warrant to a member of this Court, there is little question that the decision to seek and obtain the warrant was the product of the warrantless search of Casey's computer, which the Court is unable to find was consensual.

Moreover, even if one could argue that the discovery of the spreadsheet provided sufficient probable cause to seize and search the Casey computer, nothing of a similar nature existed to justify the search and seizure of the Wilkerson computer.

In the Court's view both Defendants have demonstrated a legitimate and reasonable expectation of privacyin in the computers searched. The Court further finds that the searches were conducted without consent and that the seizures of the computers resulted solely from the warrantless search of the Casey computer prior to the issuance of a search warrant.

Accordingly, the Defendants motion to suppress the fruits of the searches is GRANTED.

Mitchell H. Rubinstein