Quincy Hoang, x-Attorney » Search & Seizure

Right to Privacy at Work FAQ

Quincy — Sat, 10 Oct 2009 01:15:41 +0000

Frequently asked questions about how much privacy you actually have at work.

Questions

Can my employer search me as I leave work for the day?
Can my employer install cameras in the workplace?
Can my employer fire me just because of my personal beliefs?
Can my employer require me to take a psychological test before giving me a promotion to management?
Can my employer read my email?

Answers

Can my employer search me as I leave work for the day?

The answer depends on your employer’s policies and your employer’s reason for searching. If something of great value to the company has been stolen that day, and the employer decides to search all employees in a reasonable way (for example, searching their bags, not their bodies), then it may be legal — particularly if your employer has a written policy warning employees that they might be subject to search. However, an employer who does this as a daily routine, or targets you specifically without a good reason for doing so, will be on shakier legal ground.

Can my employer install cameras in the workplace?

The answer depends on where the employer wants to put the cameras and why. The employer must have a reasonable, legitimate business reason for monitoring employees in this manner (for example, to discourage theft from a cash register or to enhance the security of customers and employees). And some states have made certain areas of the workplace (for example, the bathroom and changing areas) off-limits to this type of monitoring.

Even with a legitimate reason, your employer must inform you and your coworkers that the cameras are there. Also, some states prohibit the use of certain types of surveillance devices, such as one-way mirrors.

Can my employer fire me just because of my personal beliefs?

Your employer cannot fire you for your religious or political beliefs. Federal and state laws (and the First Amendment to the U.S. Constitution, if you are a public employee) protect workers from this type of discrimination. However, if you bring your beliefs into the workplace in a disruptive way — for example, by attempting to convert coworkers to your religion or by campaigning for a political candidate on work time — then your employer may legally put a stop to your conduct. For more information on religious beliefs, see Your Rights Against Religious Discrimination.

Can my employer require me to take a psychological test before giving me a promotion to management?

Psychological tests given by employers are often invasive and their purpose questionable. If the employer doesn’t seem to have a sound reason for giving the test, and if the questions make you uncomfortable, then you might have a legitimate claim that the employer is violating your privacy rights.

For more information on whether employee testing is allowed, see the article Workplace Testing: When You Must Submit.

Can my employer read my email?

Probably. If your employer has a policy saying that the computer and email systems should be used for business purposes only, then it has the right to monitor your work email. If, however, it has policies that lead you to believe your email is private, then its rights may be more limited. As a practical matter, however, most courts to consider email privacy claims have found in favor of the employer, regardless of its policies.

For more information on privacy in the workplace, see Your Rights in the Workplace, by Barbara Kate Repa (Nolo).

Reprinted by permission. Many thanks to Nolo • Legal Solutions for You, Your Family & Your Business.

Distinguishing Searches, Seizures and Miranda Rights

Quincy — Sat, 08 Sep 2007 14:47:59 +0000

This article briefly summarizes three very important areas of criminal law. Clients will often ask legal questions about the issues involved in (1) searches, (2) arrests, and (3) Miranda Rights (the right to remain silent). Clients often ask questions like(1) can a police officer search me for no reason, (2) do I have to consent to a search, and (3) does it matter that the police officers didn’t read me my rights?

Right to be free from unreasonable searches and seizures

Probable Cause to Search

The Fourth Amendment to the U.S. Constitution provides a right to be free from unreasonable searches and seizures (an arrest is considered a seizure.) Therefore as a general rule, law enforcement agents must have a warrant or probable cause to search or arrest a person.

However, there are many exceptions that allow police officers to search a person without probable cause. These include: (1) being on probation or parole, (2) limited pat-down search to ensure police officer safety, (3) and consensual searches.

Consenting to a Search

There is no law which requires a person to consent to a search. However, you should be aware that you may have already consented to a search or that you may need to trade consent. One such exception includes being on probation or parole – which subjects such a person to being searched at any time and place. Another exception is being in certain places. For example, entrance into an airport or jail facility provides consent to search by law enforcement agents. You can always refuse to be searched in these circumstances, however, you will be denied the opportunity to be free from incarceration and denied entrance into the airport or jail facility, respectively.

Contrary to popular belief, refusing to consent to a search is not probable cause to search. This is an area where many people, in an attempt to be law-abiding citizens, waive their rights to privacy. You should politely inquire why the police officer wishes to search for, so that you can evaluate whether his or her request is reasonable by using common sense. If the officer’s request does not seem reasonable, politely decline that request.

Miranda Protects Only Statements

There is a lot of confusion surrounding the meaning of Miranda and the 5th Amendment right to remain silent. Miranda basically states that a person has a right to remain silent, and once arrested, the police must inform you of that right against self-incrimination and they must not elicit any incriminating statements from you. It should be noted that if a police officer fails to give this warning, only statements made by an accused after an arrest will be excluded from use as evidence. Physical evidence is not a statement and not within the scope of Miranda.

However, law enforcement agents will commonly ask questions and elicit incriminating statements from a person prior to actually arresting that person. Thus, Miranda protections are inapplicable. So when faced with questioning by police officers, you should ascertain whether or not you are under arrest. If you are, obviously do not make any statements. If you are not under arrest, politely inform the police officer that you are in a hurry and must leave.

September 8, 2007 by Quincy Hoang.

Disclaimer

The information contained in this web site is provided as a service to the Internet community, and does not constitute legal advice. Attorney Quincy Hoang tries to provide quality information, but makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site. Since legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent counsel.

Attorney Quincy Hoang is not seeking to represent anyone based solely on a visit to this web site, therefore no attorney-client relationship is created by such a visit. If you do wish to retain legal representation for a specific matter, an agreement in writing must be executed.

Getting Pulled Over

Quincy — Sat, 11 Feb 2006 14:29:57 +0000

The following article addresses some of the questions common to a traffic stop and provides suggestions for maintaining your rights to privacy. It is important to understand your rights thereby making informed decisions when being pulled over. For example, you have the right to say no when a police officer asks to search your vehicle, although that might not be your best course of action. After all, getting pulled over should be just that, nothing more and nothing less.

What rights are involved?

The Fourth Amendment to the U.S. Constitution places limits on the power of the police to make arrests, the power to search people and their property, and the power to seize objects and contraband (such as illegal drugs or weapons). These limits are the bedrock of search and seizure law. This article covers the basic issues that you should know, beginning with an overview of the Fourth Amendment itself.

In the context of being pulled over, there are several societal interests that come into play. The more important interests are, first, the Fourth Amendment to the United States Constitution provides the right to be free from unreasonable searches and seizures. Second, society has an interest in enforcing the vehicle code and other state laws.

The Fourth Amendment: Protecting Your Privacy

The Fourth Amendment to the U.S. Constitution reads as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Fourth Amendment, U.S. Constitution.

The search and seizure provisions of the Fourth Amendment created an individual’s right to privacy. To effectuate this right, the Fourth Amendment protects against “unreasonable” searches and seizures by state or federal law enforcement authorities. The flip side is that the Fourth Amendment does permit searches and seizures that are considered reasonable.

In practice, this means that the police may override your privacy concerns and conduct a search of your home, barn, car, boat, office, personal or business documents, bank account records, trash barrel, or whatever, if the police have probable cause to believe they can find evidence that you committed a crime, and a judge issues a search warrant, or the particular circumstances justify the search without a warrant first being issued. In sum, police may search your vehicle if they have probable cause to do so.

THE PURPOSE OF A TRAFFIC STOP

It usually happens when you least expect it, but suddenly there are flashing red lights as well as a solid red light on the patrol vehicle following you. Obviously, when a marked patrol vehicle has its flashing red lights on, the officer in that vehicle is attempting to get your attention and is ordering you to pull over. You should pull over immediately when safe to do so. It is a good idea to extinguish that marijuana cigarette if yours is still lit.

Always drive with a valid license and registration, since any violation of the California Vehicle Code gives police officers the right to pull you over. It’s amazing how many people are pulled over and their vehicles searched because their registration tags are not current. You should always drive a vehicle that is properly registered and maintained so that the police have no reason to pull you over. Also, you should always obey the traffic laws. Even when you have not violated a law, a police officer may still pull you over if he has reasonable suspicion to do so. For example, you may match the description of a bank robber, or a police officer sees you smoking what obviously appears to be a “joint.”

DURATION AND SCOPE OF A TRAFFIC STOP

A traffic stop can be no longer than necessary to enforce the purpose of a traffic stop. In other words, police must diligently pursue their investigations in such a way that will confirm or dispel their suspicions quickly.

Therefore when a driver has produced a valid license, proof of insurance, and proof of entitlement to operate the vehicle (i.e. the driver states that the car is borrowed with verification that the car is not reported stolen), the officer may issue a warning or a citation, but then must usually allow the driver to proceed without further delay or questioning.

TIPS to avoid unnecessary delays

The following are things that you can do which will hopefully shorten any detention or traffic stop. Never get out of your car unless the police officer asks you to do so. Try to keep your hands where an officer can see them. Wait until you have asked and the police officer agrees for you to reach into the back seat for your wallet inside of your jacket, thus avoiding sudden movements. You get the idea. In essence, police officers must feel safe during a citizen encounter and will more likely believe your explanation if they are immediately at ease. For example when you say, “I didn’t see that stop sign” or “I didn’t know I had a taillight out.”

You may hate police officers when they’re issuing that fifth speeding ticket or when your vehicle from head to toe, but when you’re getting robbed or victimized in some other way, they are somehow now your best friend. So remember, police officers are people just doing their jobs, so show them a little courtesy. And hey maybe, just maybe they’ll let you off with a warning.

February 11,, 2006 by Quincy Hoang.