U.S. Supreme Court O'Connor v. Ortega, 480
U.S. 709 (1987) O'Connor v. Ortega No. 86-630 Argued October 16,
1986 Decided March 31,
1987 480
U.S. 709 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Respondent, a physician and psychiatrist, was an employee of a
state hospital and had primary responsibility for training
physicians in the psychiatric residency program. Hospital officials
became concerned about possible improprieties in his management of
the program, particularly with respect to his acquisition of a
computer and charges against him concerning sexual harassment of
female hospital employees and inappropriate disciplinary action
against a resident. While he was on administrative leave pending
investigation of the charges, hospital officials, allegedly in
order to inventory and secure state property, searched his office
and seized personal items from his desk and file cabinets that were
used in administrative proceedings resulting in his discharge. No
formal inventory of the property in the office was ever made, and
all the other papers in the office were merely placed in boxes for
storage. Respondent filed an action against petitioner hospital
officials in Federal District Court under 42 U.S.C. §1983, alleging
that the search of his office violated the Fourth Amendment. On
cross-motions for summary judgment, the District Court granted
judgment for petitioners, concluding that the search was proper
because there was a need to secure state property in the office.
Affirming in part, reversing in part, and remanding the case, the
Court of Appeals concluded that respondent had a reasonable
expectation of privacy in his office, and that the search violated
the Fourth Amendment. The court held that the record justified a
grant of partial summary judgment for respondent on the issue of
liability for the search, and it remanded the case to the District
Court for a determination of damages. Held: The judgment is reversed, and the case is
remanded.

															764 F.2d 703, reversed and remanded.

															JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHITE,
and JUSTICE POWELL, concluded that:

															1. Searches and seizures by government employers or supervisors
of the private property of their employees are subject to Fourth
Amendment restraints. An expectation of privacy in one's place of
work is based upon societal expectations that have deep roots in
the history of the Amendment. However, the operational realities of
the workplace may make some public employees' expectations of
privacy unreasonable Page 480 U. S. 710 when an intrusion is by a supervisor, rather than a law
enforcement official. Some government offices may be so open to
fellow employees or the public that no expectation of privacy is
reasonable. Given the great variety of work environments in the
public sector, the question whether an employee has a reasonable
expectation of privacy must be addressed on a case-by-case basis.
Because the record does not reveal the extent to which hospital
officials may have had work-related reasons to enter respondent's
office, the Court of Appeals should have remanded the matter to the
District Court for its further determination. However, a majority
of this Court agrees with the determination of the Court of Appeals
that respondent had a reasonable expectation of privacy in his
office. Regardless of any expectation of privacy in the office
itself, the undisputed evidence supports the conclusion that
respondent had a reasonable expectation of privacy at least in his
desk and file cabinets. Pp. 480 U. S.
714 -719.

															2. In determining the appropriate standard for a search
conducted by a public employer in areas in which an employee has a
reasonable expectation of privacy, what is a reasonable search
depends on the context within which the search takes place, and
requires balancing the employee's legitimate expectation of privacy
against the government's need for supervision, control, and the
efficient operation of the workplace. Requiring an employer to
obtain a warrant whenever the employer wishes to enter an
employee's office, desk, or file cabinets for a work-related
purpose would seriously disrupt the routine conduct of business and
would be unreasonable. Moreover, requiring a probable cause
standard for searches of the type at issue here would impose
intolerable burdens on public employers. Their intrusions on the
constitutionally protected privacy interests of government
employees for noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct, should be judged by
the standard of reasonableness under all the circumstances. Under
this standard, both the inception and the scope of the intrusion
must be reasonable. Pp. 480 U. S.
719 -726.

															3. In the procedural posture of this case, it cannot be
determined whether the search of respondent's office, and the
seizure of his personal belongings, satisfied the standard of
reasonableness. Both courts below were in error, because summary
judgment was inappropriate. The parties were in dispute about the
actual justification for the search, and the record was inadequate
for a determination of the reasonableness of the search and
seizure. On remand, the District Court must determine these
matters. Pp. 480 U. S.
726 -729.

															JUSTICE SCALIA concluded that the offices of government
employees, and a fortiori the drawers and files within
those offices, are covered by Fourth Amendment protections as a
general matter, and no special circumstances Page 480 U. S. 711 were present here that would call for an exception to the
ordinary rule. However, government searches to retrieve
work-related materials or to investigate violations of workplace
rules -- searches of the sort that are regarded as reasonable and
normal in the private employer context -- do not violate the Fourth
Amendment. Because the conflicting and incomplete evidence in the
present case could not conceivably support summary judgment that
the search did not have such a validating purpose, the decision
must be reversed and remanded. Pp. 480 U. S.
731 -732.

															O'CONNOR, J., announced the judgment of the Court and delivered
an opinion in which REHNQUIST, C.J., and WHITE and POWELL, JJ.,
joined. SCALIA, J. filed an opinion concurring in the judgment, post, p. 480 U. S. 729 .
BLACKMUN, J., filed a dissenting opinion, in which BRENNAN,
MARSHALL, and STEVENS, JJ., joined, post, p. 480 U. S.
732 .

															JUSTICE O'CONNOR announced the judgment of the Court and
delivered an opinion in which THE CHIEF JUSTICE, JUSTICE WHITE, and
JUSTICE POWELL join.

															This suit under 42 U.S.C. § 1983 presents two issues concerning
the Fourth Amendment rights of public employees. First, we must
determine whether the respondent, a public Page 480 U. S. 712 employee, had a reasonable expectation of privacy in his office,
desk, and file cabinets at his place of work. Second, we must
address the appropriate Fourth Amendment standard for a search
conducted by a public employer in areas in which a public employee
is found to have a reasonable expectation of privacy. I Dr. Magno Ortega, a physician and psychiatrist, held the
position of Chief of Professional Education at Napa State Hospital
(Hospital) for 17 years, until his dismissal from that position in
1981. As Chief of Professional Education, Dr. Ortega had primary
responsibility for training young physicians in psychiatric
residency programs.

															In July, 1981, Hospital officials, including Dr. Dennis
O'Connor, the Executive Director of the Hospital, became concerned
about possible improprieties in Dr. Ortega's management of the
residency program. In particular, the Hospital officials were
concerned with Dr. Ortega's acquisition of an Apple II computer for
use in the residency program. The officials thought that Dr. Ortega
may have misled Dr. O'Connor into believing that the computer had
been donated, when in fact the computer had been financed by the
possibly coerced contributions of residents. Additionally, the
Hospital officials were concerned with charges that Dr. Ortega had
sexually harassed two female Hospital employees, and had taken
inappropriate disciplinary action against a resident.

															On July 30, 1981, Dr. O'Connor requested that Dr. Ortega take
paid administrative leave during an investigation of these charges.
At Dr. Ortega's request, Dr. O'Connor agreed to allow Dr. Ortega to
take two weeks' vacation instead of administrative leave. Dr.
Ortega, however, was requested to stay off Hospital grounds for the
duration of the investigation. On August 14, 1981, Dr. O'Connor
informed Dr. Ortega that the investigation had not yet been
completed, and that he was being placed on paid administrative
leave. Dr. Ortega remained on administrative leave until Page 480 U. S. 713 the Hospital terminated his employment on September 22,
1981.

															Dr. O'Connor selected several Hospital personnel to conduct the
investigation, including an accountant, a physician, and a Hospital
security officer. Richard Friday, the Hospital Administrator, led
this "investigative team." At some point during the investigation,
Mr. Friday made the decision to enter Dr. Ortega's office. The
specific reason for the entry into Dr. Ortega's office is unclear
from the record. The petitioners claim that the search was
conducted to secure state property. Initially, petitioners
contended that such a search was pursuant to a Hospital policy of
conducting a routine inventory of state property in the office of a
terminated employee. At the time of the search, however, the
Hospital had not yet terminated Dr. Ortega's employment; Dr. Ortega
was still on administrative leave. Apparently, there was no policy
of inventorying the offices of those on administrative leave.
Before the search had been initiated, however, petitioners had
become aware that Dr. Ortega had taken the computer to his home.
Dr. Ortega contends that the purpose of the search was to secure
evidence for use against him in administrative disciplinary
proceedings.

															The resulting search of Dr. Ortega's office was quite thorough.
The investigators entered the office a number of times and seized
several items from Dr. Ortega's desk and file cabinets, including a
Valentine's Day card, a photograph, and a book of poetry all sent
to Dr. Ortega by a former resident physician. These items were
later used in a proceeding before a hearing officer of the
California State Personnel Board to impeach the credibility of the
former resident, who testified on Dr. Ortega's behalf. The
investigators also seized billing documentation of one of Dr.
Ortega's private patients under the California Medicaid program.
The investigators did not otherwise separate Dr. Ortega's property
from state property because, as one investigator testified,
"[t]rying to sort State from non-State, it was too much to do, so I
gave it Page 480 U. S. 714 up and boxed it up." App. 62. Thus, no formal inventory of the
property in the office was ever made. Instead, all the papers in
Dr. Ortega's office were merely placed in boxes and put in storage
for Dr. Ortega to retrieve.

															Dr. Ortega commenced this action against petitioners in Federal
District Court under 42 U.S.C. §1083, alleging that the search of
his office violated the Fourth Amendment. On cross-motions for
summary judgment, the District Court granted petitioners' motion
for summary judgment. The District Court, relying on Chenkin v.
Bellevue Hospital Center, New York City Health & Hospitals
Corp., 479 F.
Supp. 207 (SDNY 1979), concluded that the search was proper
because there was a need to secure state property in the office.
The Court of Appeals for the Ninth Circuit affirmed in part and
reversed in part, 764 F.2d 703 (1985), concluding that Dr. Ortega
had a reasonable expectation of privacy in his office. While the
Hospital had a procedure for office inventories, these inventories
were reserved for employees who were departing or were terminated.
The Court of Appeals also concluded -- albeit without explanation
-- that the search violated the Fourth Amendment. The Court of
Appeals held that the record justified a grant of partial summary
judgment for Dr. Ortega on the issue of liability for an unlawful
search, and it remanded the case to the District Court for a
determination of damages.

															We granted certiorari, 474 U.S. 1018 (1985), and now reverse and
remand. II The strictures of the Fourth Amendment, applied to the States
through the Fourteenth Amendment, have been applied to the conduct
of governmental officials in various civil activities. New
Jersey v. T.L.O., 469 U. S. 325 , 469 U. S.
334 -335 (1985). Thus, we have held in the past that the
Fourth Amendment governs the conduct of school officials, see
ibid., building inspectors, see Camara v. Municipal
Court, 387 U. S. 523 , 387 U. S. 528 (1967), and Occupational Safety and Health Page 480 U. S. 715 Act inspectors, see Marshall v. Barlow's, Inc., 436 U. S. 307 , 436 U. S.
312 -313 (1978). As we observed in T.L.0., "[b]ecause the individual's interest in privacy and personal
security 'suffers whether the government's motivation is to
investigate violations of criminal laws or breaches of other
statutory or regulatory standards,' . . . it would be 'anomalous to
say that the individual and his private property are fully
protected by the Fourth Amendment only when the individual is
suspected of criminal behavior.'"

															469 U.S. at 469 U. S. 335 (quoting Marshall v. Barlow's, Inc., supra, at 436 U. S.
312 -313 and Camara v. Municipal Court, supra, at 387 U. S.
530 ). Searches and seizures by government employers or
supervisors of the private property of their employees, therefore,
are subject to the restraints of the Fourth Amendment.

															The Fourth Amendment protects the "right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures. . . . " Our cases establish
that Dr. Ortega's Fourth Amendment rights are implicated only if
the conduct of the Hospital officials at issue in this case
infringed "an expectation of privacy that society is prepared to
consider reasonable." United States v. Jacobsen, 466 U. S. 109 , 466 U. S. 113 (1984). We have no talisman that determines in all cases those
privacy expectations that society is prepared to accept as
reasonable. Instead,

															"the Court has given weight to such factors as the intention of
the Framers of the Fourth Amendment, the uses to which the
individual has put a location, and our societal understanding that
certain areas deserve the most scrupulous protection from
government invasion." Oliver v. United States, 466 U.
S. 170 , 466 U. S. 178 (1984) (citations omitted).

															Because the reasonableness of an expectation of privacy, as well
as the appropriate standard for a search, is understood to differ
according to context, it is essential first to delineate the
boundaries of the workplace context. The workplace includes those
areas and items that are related to work and are generally within
the employer's control. At a hospital, for Page 480 U. S. 716 example, the hallways, cafeteria, offices, desks, and file
cabinets, among other areas, are all part of the workplace. These
areas remain part of the workplace context even if the employee has
placed personal items in them, such as a photograph placed in a
desk or a letter posted on an employee bulletin board.

															Not everything that passes through the confines of the business
address can be considered part of the workplace context, however.
An employee may bring closed luggage to the office prior to leaving
on a trip, or a handbag or briefcase each workday. While whatever
expectation of privacy the employee has in the existence and the
outward appearance of the luggage is affected by its presence in
the workplace, the employee's expectation of privacy in the
contents of the luggage is not affected in the same way. The
appropriate standard for a workplace search does not necessarily
apply to a piece of closed personal luggage, a handbag, or a
briefcase that happens to be within the employer's business
address.

															Within the workplace context, this Court has recognized that
employees may have a reasonable expectation of privacy against
intrusions by police. See Mancusi v. DeForte, 392 U.
S. 364 (1968). As with the expectation of privacy in
one's home, such an expectation in one's place of work is "based
upon societal expectations that have deep roots in the history of
the Amendment." Oliver v. United States, supra, at 466 U. S. 178 ,
n. 8. Thus, in Mancusi v. DeForte, supra, the Court held
that a union employee who shared an office with other union
employees had a privacy interest in the office sufficient to
challenge successfully the warrantless search of that office:

															"It has long been settled that one has standing to object to a
search of his office, as well as of his home. . . . [I]t seems
clear that if DeForte had occupied a 'private' office Page 480 U. S. 717 in the union headquarters, and union records had been seized
from a desk or a filing cabinet in that office, he would have had
standing. . . . In such a 'private' office, DeForte would have been
entitled to expect that he would not be disturbed except by
personal or business invitees, and that records would not be taken
except with his permission or that of his union superiors."

															392 U.S. at 392 U. S.
369 .

															Given the societal expectations of privacy in one's place of
work expressed in both Oliver and Mancusi, we
reject the contention made by the Solicitor General and petitioners
that public employees can never have a reasonable expectation of
privacy in their place of work. Individuals do not lose Fourth
Amendment rights merely because they work for the government,
instead of a private employer. The operational realities of the
workplace, however, may make some employees' expectations of
privacy unreasonable when an intrusion is by a supervisor, rather
than a law enforcement official. Public employees' expectations of
privacy in their offices, desks, and file cabinets, like similar
expectations of employees in the private sector, may be reduced by
virtue of actual office practices and procedures, or by legitimate
regulation. Indeed, in Mancusi itself, the Court suggested
that the union employee did not have a reasonable expectation of
privacy against his union supervisors. 392 U.S. at 392 U. S. 369 .
The employee's expectation of privacy must be assessed in the
context of the employment relation. An office is seldom a private
enclave free from entry by supervisors, other employees, and
business and personal invitees. Instead, in many cases offices are
continually entered by fellow employees and other visitors during
the workday for conferences, consultations, and other work-related
visits. Simply put, it is the nature of government offices that
others -- such as fellow employees, supervisors, consensual
visitors, and the general public -- may have frequent access to an
individual's office. We agree with JUSTICE SCALIA that

															"[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the
government has the right to make reasonable intrusions in its
capacity as employer, " Page 480 U. S. 718 post at 480 U. S. 731 ,
but some government offices may be so open to fellow employees or
the public that no expectation of privacy is reasonable. Cf.
Katz v. United States, 389 U. S. 347 , 389 U. S. 351 (1967) ("What a person knowingly exposes to the public, even in his
own home or office, is not s subject of Fourth Amendment
protection"). Given the great variety of work environments in the
public sector, the question whether an employee has a reasonable
expectation of privacy must be addressed on a case-by-case
basis.

															The Court of Appeals concluded that Dr. Ortega had a reasonable
expectation of privacy in his office, and five Members of this
Court agree with that determination. See post at 480 U. S.
731 -732 (SCALIA, J., concurring in judgment); post at 480 U. S. 732 (BLACKMUN, J., joined by BRENNAN, MARSHALL, and STEVENS, JJ.,
dissenting). Because the record does not reveal the extent to which
Hospital officials may have had work-related reasons to enter Dr.
Ortega's office, we think the Court of Appeals should have remanded
the matter to the District Court for its further determination. But
regardless of any legitimate right of access the Hospital staff may
have had to the office as such, we recognize that the undisputed
evidence suggests that Dr. Ortega had a reasonable expectation of
privacy in his desk and file cabinets. The undisputed evidence
discloses that Dr. Ortega did not share his desk or file cabinets
with any other employees. Dr. Ortega had occupied the office for 17
years, and he kept materials in his office which included personal
correspondence, medical files, correspondence from private patients
unconnected to the Hospital, personal financial records, teaching
aids and notes, and personal gifts and mementos. App. 14. The files
on physicians in residency training were kept outside Dr. Ortega's
office. Id. at 21. Indeed, the only items found by the
investigators were apparently personal items, because, with the
exception of the items seized for use in the administrative
hearings, all the papers and effects found in the office were
simply placed in boxes and made available to Dr. Ortega. Page 480 U. S. 719 Id. at 68, 62. Finally, we note that there was no
evidence that the Hospital had established any reasonable
regulation or policy discouraging employees such as Dr. Ortega from
storing personal papers and effects in their desks or file
cabinets, id. at 44, although the absence of such a policy
does not create an expectation of privacy where it would not
otherwise exist.

															On the basis of this undisputed evidence, we accept the
conclusion of the Court of Appeals that Dr. Ortega had a reasonable
expectation of privacy at least in his desk and file cabinets. See Gillard v. Schmidt, 679 F.2d 826, 829 (CA3 1978); United States v. Speights, 667 F.2d 362 (CA3 1977); United States v. Blok, 88 U.S.App.D.C. 326, 188 F.2d 1019
(1951). III Having determined that Dr. Ortega had a reasonable expectation
of privacy in his office, the Court of Appeals simply concluded
without discussion that the "search . . . was not a reasonable
search under the fourth amendment." 764 F.2d at 707. But as we have
stated in T.L.O., "[t]o hold that the Fourth Amendment applies to searches
conducted by [public employers] is only to begin the inquiry into
the standards governing such searches. . . . [W]hat is reasonable
depends on the context within which a search takes place." New Jersey v. T.L.0., 469 U.S. at 469 U. S. 337 .
Thus, we must determine the appropriate standard of reasonableness
applicable to the search. A determination of the standard of
reasonableness applicable to a particular class of searches
requires

															"balanc[ing] the nature and quality of the intrusion on the
individual's Fourth Amendment interests against the importance of
the governmental interests alleged to justify the intrusion." United States v. Place, 462 U.
S. 696 , 463 U. S. 703 (1983); Camara v. Municipal Court, 387 U.S. at 387 U. S.
536 -537. In the case of searches conducted by a public
employer, we must balance the invasion of the employees' legitimate
expectations of privacy Page 480 U. S. 720 against the government's need for supervision, control, and the
efficient operation of the workplace.

															"[I]t is settled . . . that "except in certain carefully defined
classes of cases, a search of private property without proper
consent is unreasonable' unless it has been authorized by a
valid search warrant."" Mancusi v. DeForte, 392 U.S. at 392 U. S. 370 (quoting Camara v. Municipal Court, supra, at 387 U. S.
528 -529). There are some circumstances, however, in
which we have recognized that a warrant requirement is unsuitable.
In particular, a warrant requirement is not appropriate when "the
burden of obtaining a warrant is likely to frustrate the
governmental purpose behind the search." Camara v. Municipal
Court, supra, at 387 U. S. 533 .
Or, as JUSTICE BLACKMUN stated in T.L.O., "[o]nly in those exceptional circumstances in which special
needs, beyond the normal need for law enforcement, make the warrant
and probable cause requirement impracticable."

															469 U.S. at 469 U. S. 351 (concurring in judgment). In Marshall v. Barlow's, Inc., 436 U. S. 307 (1978), for example, the Court explored the burdens a warrant
requirement would impose on the Occupational Safety and Health Act
regulatory scheme, and held that the warrant requirement was
appropriate only after concluding that warrants would not

															"impose serious burdens on the inspection system or the courts,
[would not] prevent inspections necessary to enforce the statute,
or [would not] make them less effective."

															436 U.S. at 436 U. S. 316 .
In New Jersey v. T.L.O., supra, we concluded that the
warrant requirement was not suitable to the school environment,
because such a requirement would unduly interfere with the
maintenance of the swift and informal disciplinary procedures
needed in the schools.

															There is surprisingly little case law on the appropriate Fourth
Amendment standard of reasonableness for a public employer's
work-related search of its employee's offices, desks, or file
cabinets. Generally, however, the lower courts have held that any
"work-related" search by an employer Page 480 U. S. 721 satisfies the Fourth Amendment reasonableness requirement. See United States v. Nasser, 476 F.2d 1111, 1123 (CA7
1973) ("work-related" searches and seizures are reasonable under
the Fourth Amendment); United States v. Collins, 349 F.2d
863, 868 (CA2 1965) (upholding search and seizure because conducted
pursuant to "the power of the Government as defendant's employer,
to supervise and investigate the performance of his duties as a
Customs employee"). Others have suggested the use of a standard
other than probable cause. See United States v. Bunkers, 521 F.2d 1217 (CA9 1975) (work-related search of a locker tested
under "reasonable cause" standard); United States v. Blok,
supra, at 328, 188 F.2d at 1021 ("No doubt a search of [a
desk] without her consent would have been reasonable if made by
some people in some circumstances. Her official superiors might
reasonably have searched the desk for official property needed for
official use"). The only cases to imply that a warrant should be
required involve searches that are not work-related, see
Gillard v. Schmidt, supra, at 829, n. 1, or searches for
evidence of criminal misconduct, see United States v.
Kahan, 350 F.
Supp. 784 (SDNY 1972).

															The legitimate privacy interests of public employees in the
private objects they bring to the workplace may be substantial.
Against these privacy interests, however, must be balanced the
realities of the workplace, which strongly suggest that a warrant
requirement would be unworkable. While police, and even
administrative enforcement personnel, conduct searches for the
primary purpose of obtaining evidence for use in criminal or other
enforcement proceedings, employers most frequently need to enter
the offices and desks of their employees for legitimate
work-related reasons wholly unrelated to illegal conduct. Employers
and supervisors are focused primarily on the need to complete the
government agency's work in a prompt and efficient manner. An
employer may have need for correspondence, or a file or report
available only in an employee's office while the employee is Page 480 U. S. 722 away from the office. Or, as is alleged to have been the case
here, employers may need to safeguard or identify state property or
records in an office in connection with a pending investigation
into suspected employee misfeasance.

															In our view, requiring an employer to obtain a warrant whenever
the employer wished to enter an employee's office, desk, or file
cabinets for a work-related purpose would seriously disrupt the
routine conduct of business and would be unduly burdensome.
Imposing unwieldy warrant procedures in such cases upon
supervisors, who would otherwise have no reason to be familiar with
such procedures, is simply unreasonable. In contrast to other
circumstances in which we have required warrants, supervisors in
offices such as at the Hospital are hardly in the business of
investigating the violation of criminal laws. Rather, work-related
searches are merely incident to the primary business of the agency.
Under these circumstances, the imposition of a warrant requirement
would conflict with "the common sense realization that government
offices could not function if every employment decision became a
constitutional matter." Connick v. Myers, 461 U.
S. 138 , 461 U. S. 143 (1983).

															Whether probable cause is an inappropriate standard for public
employer searches of their employees' offices presents a more
difficult issue. For the most part, we have required that a search
be based upon probable cause, but as we noted in New Jersey v.
T.L.O., "[t]he fundamental command of the Fourth Amendment is that
searches and seizures be reasonable, and although !both the concept
of probable cause and the requirement of a warrant bear on the
reasonableness of a search, . . . in certain limited circumstances
neither is required."

															469 U.S. at 469 U. S. 340 (quoting Almeida-Sanchez v. United States, 413 U.
S. 266 , 413 U. S. 277 (1973) (POWELL, J., concurring)). Thus,

															"[w]here a careful balancing of governmental and private
interests suggests that the public interest is best served by a
Fourth Amendment standard of reasonableness that stops short of
probable cause, we have not hesitated to Page 480 U. S. 723 adopt such a standard."

															469 U.S. at 469 U. S. 341 .
We have concluded, for example, that the appropriate standard for
administrative searches is not probable cause in its traditional
meaning. Instead, an administrative warrant can be obtained if
there is a showing that reasonable legislative or administrative
standards for conducting an inspection are satisfied. See
Marshall v. Barlow's, Inc., 436 U.S. at 436 U. S. 320 ; Camara v. Municipal Court, 387 U.S. at 387 U. S.
538 .

															As an initial matter, it is important to recognize the plethora
of contexts in which employers will have an occasion to intrude to
some extent on an employee's expectation of privacy. Because the
parties in this case have alleged that the search was either a
noninvestigatory work-related intrusion or an investigatory search
for evidence of suspected work-related employee misfeasance, we
undertake to determine the appropriate Fourth Amendment standard of
reasonableness only for these two types of employer
intrusions, and leave for another day inquiry into other
circumstances.

															The governmental interest justifying work-related intrusions by
public employers is the efficient and proper operation of the
workplace. Government agencies provide myriad services to the
public, and the work of these agencies would suffer if employers
were required to have probable cause before they entered an
employee's desk for the purpose of finding a file or piece of
office correspondence. Indeed, it is difficult to give the concept
of probable cause, rooted as it is in the criminal investigatory
context, much meaning when the purpose of a search is to retrieve a
file for work-related reasons. Similarly, the concept of probable
cause has little meaning for a routine inventory conducted by
public employers for the purpose of securing state property. See Colorado v. Bertine, 479 U. S. 367 (1987); Illinois v. Lafayette, 462 U.
S. 640 (1983). To ensure the efficient and proper
operation of the agency, therefore, public employers must be given
wide latitude to enter employee offices for work-related,
noninvestigatory reasons. Page 480 U. S. 724 We come to a similar conclusion for searches conducted pursuant
to an investigation of work-related employee misconduct. Even when
employers conduct an investigation, they have an interest
substantially different from "the normal need for law enforcement." New Jersey v. T.L.O., supra, at 469 U. S. 351 (BLACKMUN, J., concurring in judgment). Public employers have an
interest in ensuring that their agencies operate in an effective
and efficient manner, and the work of these agencies inevitably
suffers from the inefficiency, incompetence, mismanagement, or
other work-related misfeasance of its employees. Indeed, in many
cases, public employees are entrusted with tremendous
responsibility, and the consequences of their misconduct or
incompetence to both the agency and the public interest can be
severe. In contrast to law enforcement officials, therefore, public
employers are not enforcers of the criminal law; instead, public
employers have a direct and overriding interest in ensuring that
the work of the agency is conducted in a proper and efficient
manner. In our view, therefore, a probable cause requirement for
searches of the type at issue here would impose intolerable burdens
on public employers. The delay in correcting the employee
misconduct caused by the need for probable cause, rather than
reasonable suspicion, will be translated into tangible and often
irreparable damage to the agency's work, and ultimately to the
public interest. See 469 U.S. at 469 U. S. 353 ("The time required for a teacher to ask the questions or make the
observations that are necessary to turn reasonable grounds into
probable cause is time during which the teacher, and other
students, are diverted from the essential task of education").
Additionally, while law enforcement officials are expected to
"schoo[l] themselves in the niceties of probable cause," id. at 469 U. S. 343 ,
no such expectation is generally applicable to public employers, at
least when the search is not used to gather evidence of a criminal
offense. It is simply unrealistic to expect supervisors in most
government agencies to learn the subtleties of Page 480 U. S. 725 the probable cause standard. As JUSTICE BLACKMUN observed in T.L.O., "[a] teacher has neither the training nor the day-to-day
experience in the complexities of probable cause that a law
enforcement officer possesses, and is ill-equipped to make a quick
judgment about the existence of probable cause." Id. at 469 U. S. 353 .
We believe that this observation is an equally apt description of
the public employer and supervisors at the Hospital, and we
conclude that a reasonableness standard will permit regulation of
the employer's conduct "according to the dictates of reason and
common sense." Id. at 469 U. S.
343 .

															Balanced against the substantial government interests in the
efficient and proper operation of the workplace are the privacy
interests of government employees in their place of work, which,
while not insubstantial, are far less than those found at home or
in some other contexts. As with the building inspections in Camara, the employer intrusions at issue here "involve a
relatively limited invasion" of employee privacy. 387 U.S. at 387 U. S. 537 .
Government offices are provided to employees for the sole purpose
of facilitating the work of an agency. The employee may avoid
exposing personal belongings at work by simply leaving them at
home.

															In sum, we conclude that the "special needs, beyond the normal
need for law enforcement make the. . . . probable cause requirement
impracticable," 469 U.S. at 469 U. S. 351 (BLACKMUN, J., concurring in judgment), for legitimate
work-related, noninvestigatory intrusions as well as investigations
of work-related misconduct. A standard of reasonableness will
neither unduly burden the efforts of government employers to ensure
the efficient and proper operation of the workplace nor authorize
arbitrary intrusions upon the privacy of public employees. We hold,
therefore, that public employer intrusions on the constitutionally
protected privacy interests of government employees for
noninvestigatory, work-related purposes, as well as for
investigations of work-related misconduct, should be judged by the
standard of reasonableness Page 480 U. S. 726 under all the circumstances. Under this reasonableness standard,
both the inception and the scope of the intrusion must be
reasonable:

															"Determining the reasonableness of any search involves a twofold
inquiry: first, one must consider 'whether the . . . action was
justified at its inception,' Terry v. Ohio, 392 U.S. at 392 U. S. 20 ; second, one must
determine whether the search as actually conducted 'was reasonably
related in scope to the circumstances which justified the
interference in the first place,' ibid. " New Jersey v. T.L.O., supra, at 469 U. S.
341 .

															Ordinarily, a search of an employee's office by a supervisor
will be "justified at its inception" when there are reasonable
grounds for suspecting that the search will turn up evidence that
the employee is guilty of work-related misconduct, or that the
search is necessary for a noninvestigatory work-related purpose
such as to retrieve a needed file. Because petitioners had an
"individualized suspicion" of misconduct by Dr. Ortega, we need not
decide whether individualized suspicion is an essential element of
the standard of reasonableness that we adopt today. See New
Jersey v. T.L.O., supra, at 469 U. S. 342 ,
n. 8. The search will be permissible in its scope when "the
measures adopted are reasonably related to the objectives of the
search and not excessively intrusive in light of . . . the nature
of the [misconduct]." 469 U.S. at 469 U. S.
342 . IV In the procedural posture of this case, we do not attempt to
determine whether the search of Dr. Ortega's office and the seizure
of his personal belongings satisfy the standard of reasonableness
we have articulated in this case. No evidentiary hearing was held
in this case, because the District Court acted on cross-motions for
summary judgment, and granted petitioners summary judgment. The
Court of Appeals, on the other hand, concluded that the record in
this case justified Page 480 U. S. 727 granting partial summary judgment on liability to Dr.
Ortega.

															We believe that both the District Court and the Court of Appeals
were in error, because summary judgment was inappropriate. The
parties were in dispute about the actual justification for the
search, and the record was inadequate for a determination on motion
for summary judgment of the reasonableness of the search and
seizure. Petitioners have consistently attempted to justify the
search and seizure as required to secure the state property in Dr.
Ortega's office. Mr. Friday testified in a deposition that he had
ordered members of the investigative team to

															"check Dr. Ortega's office out in order to separate the business
files from any personal files in order to ascertain what was in his
office."

															App. 50. He further testified that the search was initiated
because he

															"wanted to make sure that we had our state property identified,
and in order to provide Dr. Ortega with his property and get what
we had out of there, in order to make sure our resident's files
were protected, and that sort of stuff." Id. at 51.

															In their motion for summary judgment in the District Court,
petitioners alleged that this search to secure property was
reasonable as "part of the established hospital policy to inventory
property within offices of departing, terminated or separated
employees." Record Doc. No. 24, p. 9. The District Court apparently
accepted this characterization of the search because it applied
Chenkin v. Bellevue Hospital Center, New York City Health &
Hospitals Corp., 479 F.
Supp. 207 (SDNY 1979), a case involving a Fourth Amendment
challenge to an inspection policy. At the time of the search,
however, Dr. Ortega had not been terminated, but rather was still
on administrative leave, and the record does not reflect whether
the Hospital had a policy of inventorying the property of
investigated employees. Respondent, moreover, has consistently
rejected petitioners' characterization of the search as motivated
by a need to secure state property. Page 480 U. S. 728 Instead, Dr. Ortega has contended that the intrusion was an
investigatory search whose purpose was simply to discover evidence
that would be of use in administrative proceedings. He has pointed
to the fact that no inventory was ever taken of the property in the
office, and that seized evidence was eventually used in the
administrative proceedings. Additionally, Dr. O'Connor stated in a
deposition that one purpose of the search was "to look for
contractural [ sic ] and other kinds of documents that might
have been related to the issues" involved in the investigation.
App. 38.

															Under these circumstances, the District Court was in error in
granting petitioners summary judgment. There was a dispute of fact
about the character of the search, and the District Court acted
under the erroneous assumption that the search was conducted
pursuant to a Hospital policy. Moreover, no findings were made as
to the scope of the search that was undertaken.

															The Court of Appeals concluded that Dr. Ortega was entitled to
partial summary judgment on liability. It noted that the Hospital
had no policy of inventorying the property of employees on
administrative leave, but it did not consider whether the search
was otherwise reasonable. Under the standard of reasonableness
articulated in this case, however, the absence of a Hospital policy
did not necessarily make the search unlawful. A search to secure
state property is valid as long as petitioners had a reasonable
belief that there was government property in Dr. Ortega's office
which needed to be secured, and the scope of the intrusion was
itself reasonable in light of this justification. Indeed,
petitioners have put forward evidence that they had such a
reasonable belief; at the time of the search, petitioners knew that
Dr. Ortega had removed the computer from the Hospital. The removal
of the computer -- together with the allegations of mismanagement
of the residency program and sexual harassment -- may have made the
search reasonable at its inception under the standard we have put
forth in this case. As with the Page 480 U. S. 729 District Court order, therefore, the Court of Appeals conclusion
that summary judgment was appropriate cannot stand.

															On remand, therefore, the District Court must determine the
justification for the search and seizure and evaluate the
reasonableness of both the inception of the search and its scope. * Accordingly, the judgment of the Court of Appeals is reversed,
and the case is remanded to that court for further proceedings
consistent with this opinion. It is so ordered. * We have no occasion in this case to reach the issue of the
appropriate standard for the evaluation of the Fourth Amendment
reasonableness of the seizure of Dr. Ortega's personal items.
Neither the District Court nor the Court of Appeals addressed this
issue, and the amicus curiae brief filed on behalf of
respondent did not discuss the legality of the seizure separate
from that of the search. We also have no occasion in this case to
address whether qualified immunity should protect petitioners from
damages liability under § 1983. See Davis v. Scherer, 468 U. S. 183 (1984); Harlow v. Fitzgerald, 457 U.
S. 800 (1982). The qualified immunity issue was not
raised below, and was not addressed by either the District Court or
the Court of Appeals. Nor do we address the proper Fourth Amendment
analysis for drug and alcohol testing of employees. Finally, we do
not address the appropriate standard when an employee is being
investigated for criminal misconduct or breaches of other
nonwork-related statutory or regulatory standards.

															JUSTICE SCALIA, concurring in the judgment.

															Although I share the judgment that this case must be reversed
and remanded, I disagree with the reason for the reversal given by
the plurality opinion, and with the standard it prescribes for the
Fourth Amendment inquiry.

															To address the latter point first: The plurality opinion
instructs the lower courts that existence of Fourth Amendment
protection for a public employee's business office is to be
assessed "on a case-by-case basis," in light of whether the office
is "so open to fellow employees or the public that no expectation
of privacy is reasonable." Ante at 480 U. S. 718 .
No clue is provided as to how open "so open" must be; much less Page 480 U. S. 730 is it suggested how police officers are to gather the facts
necessary for this refined inquiry. As we observed in Oliver v.
United States, 466 U. S. 170 , 466 U. S. 181 (1984),

															"[t]his Court repeatedly has acknowledged the difficulties
created for courts, police, and citizens by an ad hoc, case-by-case definition of Fourth Amendment standards to be applied
in differing factual circumstances."

															Even if I did not disagree with the plurality as to what result
the proper legal standard should produce in the case before us, I
would object to the formulation of a standard so devoid of content
that it produces, rather than eliminates, uncertainty in this
field.

															Whatever the plurality's standard means, however, it must be
wrong if it leads to the conclusion on the present facts that, if
Hospital officials had extensive "work-related reasons to enter Dr.
Ortega's office," no Fourth Amendment protection existed. Ante at 480 U. S. 718 .
It is privacy that is protected by the Fourth Amendment, not
solitude. A man enjoys Fourth Amendment protection in his home, for
example, even though his wife and children have the run of the
place -- and indeed, even though his landlord has the right to
conduct unannounced inspections at any time. Similarly, in my view,
one's personal office is constitutionally protected against
warrantless intrusions by the police, even though employer and
coworkers are not excluded. I think we decided as much many years
ago. In Mancusi v. DeForte, 392 U.
S. 364 (1968), we held that a union employee had Fourth
Amendment rights with regard to an office at union headquarters
that he shared with two other employees, even though we
acknowledged that those other employees, their personal or business
guests, and (implicitly) "union higher-ups" could enter the office. Id. at 392 U. S. 369 .
Just as the secretary working for a corporation in an office
frequently entered by the corporation's other employees is
protected against unreasonable searches of that office by the
government, so also is the government secretary working in an
office frequently entered by other government employees. There is
no reason why this Page 480 U. S. 731 determination that a legitimate expectation of privacy exists
should be affected by the fact that the government, rather than a
private entity, is the employer. Constitutional protection against unreasonable searches by the government does not disappear
merely because the government has the right to make reasonable
intrusions in its capacity as employer.

															I cannot agree, moreover, with the plurality's view that the
reasonableness of the expectation of privacy (and thus the
existence of Fourth Amendment protection) changes "when an
intrusion is by a supervisor, rather than a law enforcement
official." Ante at 480 U. S. 717 .
The identity of the searcher (police v. employer) is relevant not
to whether Fourth Amendment protections apply, but only to whether
the search of a protected area is reasonable. Pursuant to
traditional analysis, the former question must be answered on a
more "global" basis. Where, for example, a fireman enters a private
dwelling in response to an alarm, we do not ask whether the
occupant has a reasonable expectation of privacy (and hence Fourth
Amendment protection) vis-a-vis firemen, but rather
whether -- given the fact that the Fourth Amendment covers private
dwellings -- intrusion for the purpose of extinguishing a fire is
reasonable. Cf. Michigan v. Tyler, 436 U.
S. 499 , 436 U. S. 509 (1978). A similar analysis is appropriate here.

															I would hold, therefore, that the offices of government
employees, and a fortiori the drawers and files within
those offices, are covered by Fourth Amendment protections as a
general matter. (The qualifier is necessary to cover such unusual
situations as that in which the office is subject to unrestricted
public access, so that it is "expose[d] to the public" and
therefore "not a subject of Fourth Amendment protection." Katz
v. United States, 389 U. S. 347 , 389 U. S. 351 (1967).) Since it is unquestioned that the office here was assigned
to Dr. Ortega, and since no special circumstances are suggested
that would call for an exception to the ordinary rule, I would Page 480 U. S. 732 agree with the District Court and the Court of Appeals that
Fourth Amendment protections applied.

															The case turns, therefore, on whether the Fourth Amendment was
violated -- i.e., whether the governmental intrusion was
reasonable. It is here that the government's status as employer,
and the employment-related character of the search, become
relevant. While, as a general rule, warrantless searches are per se unreasonable, we have recognized exceptions when
"special needs, beyond the normal need for law enforcement, make
the warrant and probable cause requirement impracticable. . . . " New Jersey v. T.L.O., 469 U. S. 325 , 469 U. S. 351 (BLACKMUN, J., concurring in judgment). Such "special needs" are
present in the context of government employment. The government,
like any other employer, needs frequent and convenient access to
its desks, offices, and file cabinets for work-related purposes. I
would hold that government searches to retrieve work-related
materials or to investigate violations of workplace rules --
searches of the sort that are regarded as reasonable and normal in
the private employer context -- do not violate the Fourth
Amendment. Because the conflicting and incomplete evidence in the
present case could not conceivably support summary judgment that
the search did not have such a validating purpose, I agree with the
plurality that the decision must be reversed and remanded.

															JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE STEVENS join, dissenting.

															The facts of this case are simple and straightforward. Dr.
Ortega had an expectation of privacy in his office, desk, and file
cabinets, which were the target of a search by petitioners that can
be characterized only as investigatory in nature. Because there was
no "special need," see New Jersey v. T.L.O., 469 U.
S. 325 , 469 U. S. 351 (1985) (opinion concurring in judgment), to dispense with the
warrant and probable cause requirements of the Fourth Amendment, I
would evaluate the search by applying this traditional standard.
Under that Page 480 U. S. 733 standard, this search clearly violated Dr. Ortega's Fourth
Amendment rights.

															The problems in the plurality's opinion all arise from its
failure or unwillingness to realize that the facts here are clear.
The plurality, however, discovers what it feels is a factual
dispute: the plurality is not certain whether the search was
routine or investigatory. Accordingly, it concludes that a remand
is the appropriate course of action. Despite the remand, the
plurality assumes it must announce a standard concerning the
reasonableness of a public employer's search of the workplace.
Because the plurality treats the facts as in dispute, it formulates
this standard at a distance from the situation presented by this
case.

															This does not seem to me to be the way to undertake Fourth
Amendment analysis, especially in an area with which the Court is
relatively unfamiliar. [ Footnote
1 ] Because this analysis, when conducted properly, is always
fact-specific to an extent, it is inappropriate that the
plurality's formulation of a standard does not arise from a
sustained consideration of a particular factual situation.
[ Footnote 2 ] Moreover, given
that any standard Page 480 U. S. 734 ultimately rests on judgments about factual situations, it is
apparent that the plurality has assumed the existence of
hypothetical facts from which its standard follows. These "assumed"
facts are weighted in favor of the public employer, [ Footnote 3 ] and, as a result, the standard
that emerges makes reasonable almost any workplace search by a
public employer. I It is necessary to review briefly the factual record in this
case because of the plurality's assertion, ante at 480 U. S. 728 ,
that Page 480 U. S. 735 "[t]here was a dispute of fact about the character of the
search." The plurality considers it to be either an inventory
search to secure government property or an investigative search to
gather evidence concerning Dr. Ortega's alleged misdeeds. Ante at 480 U. S.
727 -728. It is difficult to comprehend how, on the facts
of this case, the search in any way could be seen as one for
inventory purposes. As the plurality concedes, the search could not
have been made pursuant to the Hospital's policy of routinely
inventorying state property in an office of a terminated employee,
because, at the time of the search, Dr. Ortega was on
administrative leave, and had not been terminated. Ante at 480 U. S.
712 -713. [ Footnote
4 ] Napa had no policy of inventorying the office of an employee
placed on administrative leave. Ante at 480 U. S.
713 .

															The plurality, however, observes that the absence of the policy
does not dispositively eliminate inventorying or securing state
property as a possible purpose for conducting the search. Ante at 480 U. S. 728 .
As evidence suggesting such a purpose, the plurality points to
petitioners' concern that Dr. Ortega may have removed from the
Hospital's grounds a computer owned by the Hospital and to their
desire to secure such items as files located in Dr. Ortega's
office. See ante at 480 U. S.
727 -728.

															The record evidence demonstrates, however, that ensuring that
the computer had not been removed from the Hospital was not a
reason for the search. Mr. Friday, the leader of the "investigative
team," stated that the alleged removal of the computer had nothing
to do with the decision to enter Dr. Ortega's office. App. 59. Dr.
O'Connor himself admitted that there was little connection between
the entry and an attempt Page 480 U. S. 736 by petitioners to ascertain the location of the computer. Id. at 39. The search had the computer as its focus only
insofar as the team was investigating practices dealing with its
acquisition. Id. at 32.

															In deposition testimony, petitioners did suggest that the search
was inventory in character insofar as they aimed to separate Dr.
Ortega's personal property from Hospital property in the office. Id. at 38, 40, 50. Such a suggestion, however, is
overwhelmingly contradicted by other remarks of petitioners, and
particularly by the character of the search itself. Dr. O'Connor
spoke of the individuals involved in the search as "investigators," see id. at 37, and, even where he described the search as
inventory in nature, he observed that it was aimed primarily at
furthering investigative purposes. See, e.g., id. at 40
("Basically what we were trying to do is to remove what was
obviously State records or records that had to do with his program,
his department, any of the materials that would be involved in
running the residency program, around contracts, around the
computer, around the areas that we were interested in
investigating"). Moreover, as the plurality itself recognizes, ante at 480 U. S.
713 -714, the "investigators" never made a formal
inventory of what they found in Dr. Ortega's office. Rather, they
rummaged through his belongings and seized highly personal items
later used at a termination proceeding to impeach a witness
favorable to him. Ibid. Furthermore, the search was
conducted in the evening, App. 53, and it was undertaken only after
the investigators had received legal advice, id. at
51.

															The search in question stemmed neither from a Hospital policy
nor from a practice of routine entrances into Dr. Ortega's office.
It was plainly exceptional and investigatory in nature.
Accordingly, there is no significant factual dispute in this
case. II Before examining the plurality's standard of reasonableness for
workplace searches, I should like to state both my Page 480 U. S. 737 agreement and disagreement with the plurality's discussion of a
public employee's expectation of privacy. What is most important,
of course, is that, in this case, the plurality acknowledges that
Dr. Ortega had an expectation of privacy in his desk and file
cabinets, ante at 480 U. S. 719 , and that, as the plurality concedes, ante at 480 U. S. 718 ,
the majority of this Court holds that he had a similar expectation
in his office. With respect to the plurality's general comments, I
am in complete agreement with its observation that "[i]ndividuals
do not lose Fourth Amendment rights merely because they work for
the government instead of a private employer." Ante at 480 U. S. 717 .
Moreover, I would go along with the plurality's observation that,
in certain situations, the "operational realities" of the workplace
may remove some expectation of privacy on the part of the employee. Ibid. However, I am disturbed by the plurality's
suggestion, see ante at 480 U. S.
717 -718, that routine entries by visitors might
completely remove this expectation.

															First, this suggestion is contrary to the traditional protection
that this Court has recognized the Fourth Amendment accords to
offices. See Oliver v. United States, 466 U.
S. 170 , 466 U. S. 178 ,
n. 8 (1984) ("The Fourth Amendment's protection of offices and
commercial buildings, in which there may be. legitimate
expectations of privacy, is also based upon societal expectations
that have deep roots in the history of the Amendment"); Hoffa
v. United States, 385 U. S. 293 , 385 U. S. 301 (1966) ("What the Fourth Amendment protects is the security a man
relies upon when he places himself or his property within a
constitutionally protected area, be it his home or his office, his
hotel room or his automobile"). The common understanding of an
office is that it is a place where a worker receives an occasional
business-related visitor. Thus, when the office has received
traditional Fourth Amendment protection in our cases, it has been
with the understanding that such routine visits occur there. Page 480 U. S. 738 Moreover, as the plurality appears to recognize, see
ante at 480 U. S.
717 -718, the precise extent of an employee's expectation
of privacy often turns on the nature of the search. This
observation is in accordance with the principle that the Fourth
Amendment may protect an individual's expectation of privacy in one
context, even though this expectation may be unreasonable in
another. See New Jersey v. T.L.O., 469 U.S. at 469 U. S. 339 . See also Lo-Ji Sales, Inc. v. New York, 442 U.
S. 319 , 442 U. S. 329 (1979) (the opening of a retail store to the public does not mean
that "it consents to wholesale searches and seizures that do not
conform to Fourth Amendment guarantees"). As JUSTICE SCALIA
observes,

															"[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the
government has the right to make reasonable intrusions in its
capacity as employer." Ante at 480 U. S. 731 .
Thus, although an employee might well have no reasonable
expectation of privacy with respect to an occasional visit by a
fellow employee, he would have such an expectation as to an
after-hours search of his locked office by an investigative team
seeking materials to be used against him at a termination
proceeding. [ Footnote 5 ] Page 480 U. S. 739 Finally and most importantly, the reality of work in modern
time, whether done by public or private employees, reveals why a
public employee's expectation of privacy in the workplace should be
carefully safeguarded and not lightly set aside. It is,
unfortunately, all too true that the workplace has become another
home for most working Americans. Many employees spend the better
part of their days and much of their evenings at work. See R. Kanter, Work and Family in the United States: A Critical Review
and Agenda for Research and Policy 31-32 (1977); see also R. Bellah, R. Madsen, W. Sullivan, A. Swidler, & S. Tipton,
Habits of the Heart: Individualism and Commitment in American Life
288-289 (1985) (a "less frantic concern for advancement and a
reduction of working hours" would make it easier for both men and
women to participate fully in working and family life).
Consequently, an employee's private life must intersect with the
workplace, for example, when the employee takes advantage of work
or lunch breaks to make personal telephone calls, to attend to
personal business, or to receive personal visitors in the office.
As a result, the tidy distinctions (to which the plurality alludes, see ante at 480 U. S.
715 -716) between the workplace and professional affairs,
on the one hand, and personal possessions and private activities,
on the other, do not exist in reality. [ Footnote 6 ] Not all of an employee's private Page 480 U. S. 740 possessions will stay in his or her briefcase or handbag. Thus,
the plurality's remark that the "employee may avoid exposing
personal belongings at work by simply leaving them at home," ante at 480 U. S. 725 ,
reveals on the part of the Members of the plurality a certain
insensitivity to the "operational realities of the workplace," ante at 480 U. S. 717 ,
they so value. [ Footnote 7 ] Page 480 U. S. 741 Dr. Ortega clearly had an expectation of privacy in his office,
desk, and file cabinets, particularly with respect to the type of
investigatory search involved here. In my view, when examining the
facts of other cases involving searches of the workplace, courts
should be careful to determine this expectation also in relation to
the search in question. III A At the outset of its analysis, the plurality observes that an
appropriate standard of reasonableness to be applied to a public
employer's search of the employee's workplace is arrived at from
"balancing" the privacy interests of the employee against the
public employer's interests justifying the intrusion. Ante at 480 U. S.
719 -720. Under traditional Fourth Amendment
jurisprudence, however, courts abandon the warrant and probable
cause requirements, which constitute the standard of reasonableness
for a government search that the Framers established,

															"[o]nly in those exceptional circumstances in which special
needs, beyond the normal need for law enforcement, make the warrant
and probable cause requirement impracticable. . . ." New Jersey v. T.L.O., 469 U.S. at 469 U. S. 351 (opinion concurring in judgment); see United States v.
Place, 462 U. S. 696 , 462 U. S.
721 -722, and n. 1 (1983) (opinion concurring in
judgment). In sum, only when the practical realities of a
particular situation suggest that a government official cannot
obtain a warrant based upon probable cause without sacrificing the
ultimate goals to which a search would contribute does the Court
turn to a "balancing" test to formulate a standard of
reasonableness for this context.

															In New Jersey v. T.L.O., supra, I faulted the Court for
neglecting this "crucial step" in Fourth Amendment analysis. See 469 U.S. at 469 U. S. 351 .
I agreed, however, with the T.L.O. Court's standard
because of my conclusion that this step, had Page 480 U. S. 742 it been taken, would have revealed that the case presented a
situation of "special need." Id. at 469 U. S. 353 .
I recognized that discipline in this country's secondary schools
was essential for the promotion of the overall goal of education,
and that a teacher could not maintain this discipline if, every
time a search was called for, the teacher would have to procure a
warrant based on probable cause. Id. at 469 U. S.
352 -353. Accordingly, I observed:

															"The special need for an immediate response to behavior that
threatens either the safety of schoolchildren and teachers or the
educational process itself justifies the Court in excepting school
searches from the warrant and probable cause requirements, and in
applying a standard determined by balancing the relevant
interests." Id. at 469 U. S.
353 .

															The plurality repeats here the T.L.O. Court's error in
analysis. Although the plurality mentions the "special need" step, ante at 480 U. S. 720 ,
it turns immediately to a balancing test to formulate its standard
of reasonableness. This error is significant because, given the
facts of this case, no "special need" exists here to justify
dispensing with the warrant and probable cause requirements. As
observed above, the facts suggest that this was an investigatory
search undertaken to obtain evidence of charges of mismanagement at
a time when Dr. Ortega was on administrative leave and not
permitted to enter the Hospital's grounds. There was no special
practical need that might have justified dispensing with the
warrant and probable cause requirements. Without sacrificing their
ultimate goal of maintaining an effective institution devoted to
training and healing, to which the disciplining of Hospital
employees contributed, petitioners could have taken any evidence of
Dr. Ortega's alleged improprieties to a magistrate in order to
obtain a warrant.

															Furthermore, this seems to be exactly the kind of situation
where a neutral magistrate's involvement would have been helpful in
curtailing the infringement upon Dr. Ortega's privacy. See United States v. United
States District Court , Page 480 U. S. 743 407 U. S. 297 , 407 U. S. 317 (1972) ("The historical judgment, which the Fourth Amendment
accepts, is that unreviewed executive discretion may yield too
readily to pressures to obtain incriminating evidence and overlook
potential invasions of privacy and protected speech"). Petitioners
would have been forced to articulate their exact reasons for the
search and to specify the items in Dr. Ortega's office they sought,
which would have prevented the general rummaging through the
doctor's office, desk, and file cabinets. Thus, because no "special
need" in this case demanded that the traditional warrant and
probable cause requirements be dispensed with, petitioners' failure
to conduct the search in accordance with the traditional standard
of reasonableness should end the analysis, and the judgment of the
Court of Appeals should be affirmed. B Even were I to accept the proposition that this case presents a
situation of "special need" calling for an exception to the warrant
and probable cause standard, I believe that the plurality's
balancing of the public employer's and the employee's respective
interests to arrive at a different standard is seriously flawed.
Once again, the plurality fails to focus on the facts. Instead, it
arrives at its conclusion on the basis of "assumed" facts. First,
sweeping with a broad brush, the plurality announces a rule that
dispenses with the warrant requirement in every public employer's
search of an employee's office, desk, or file cabinets because it
"would seriously disrupt the routine conduct of business and would
be unduly burdensome." Ante at 480 U. S. 722 .
The plurality reasons that a government agency could not conduct
its work in an efficient manner if an employer needed a warrant for
every routine entry into an employee's office in search of a file
or correspondence, or for every investigation of suspected employee
misconduct. In addition, it argues that the warrant requirement, if
imposed on an employer who would be unfamiliar with this procedure,
would prove "unwieldy." Ibid. Page 480 U. S. 744 The danger in formulating a standard on the basis of "assumed"
facts becomes very clear at this stage of the plurality's opinion.
Whenever the Court has arrived at a standard of reasonableness
other than the warrant and probable cause requirements, it has
first found, through analysis of a factual situation, that there is
a nexus between this other standard, the employee's privacy
interests, and the government purposes to be served by the search.
Put another way, the Court adopts a new standard only when it is
satisfied that there is no alternative in the particular
circumstances. [ Footnote 8 ] In Terry v. Ohio, 392 U. S. 1 , 392 U. S. 20 (1968), the Court concluded that, as a practical matter, brief,
on-the-spot stops of individuals by police officers need not be
subject to a warrant. Still concerned, however, with the import of
the warrant requirement, which provides the "neutral scrutiny of a
judge," id. at 392 U. S. 21 , the
Court weighed in detail the law enforcement and the suspect's
interests in the circumstances of the protective search. The
resulting standard constituted the equivalent of the warrant:
judging the officer's behavior from a reasonable or objective
standard, id. at 392 U. S. 21 , 392 U. S. 27 . In Camara v. Municipal Court, 387 U.
S. 523 (1967), on the other hand, the Court declined to
abandon the warrant as a standard in the case of a municipal health
inspection in light of the interests of the target of the health
investigation and those of the government in enforcing health
standards. Id. at 387 U. S. 532 -533. Page 480 U. S. 745 A careful balancing with respect to the warrant requirement is
absent from the plurality's opinion, an absence that is inevitable
in light of the gulf between the plurality's analysis and any
concrete factual setting. It is certainly correct that a public
employer cannot be expected to obtain a warrant for every routine
entry into an employee's workplace. [ Footnote 9 ] This situation, however, should not justify
dispensing with a warrant in all searches by the employer.
The warrant requirement is perfectly suited for many work-related
searches, including the instant one. [ Footnote 10 ] Moreover, although the plurality abandons
the warrant requirement, it does not explain what it will
substitute or how the standard it adopts retains anything of the
normal "neutral scrutiny of the judge." [ Footnote 11 ] In sum, the plurality's general result is
preordained because, cut off from a particular factual setting, it
cannot make the necessary distinctions among types of searches, or
formulate an alternative to the warrant requirement that derives
from a precise weighing of competing interests. Page 480 U. S. 746 When the plurality turns to the balancing that will produce an
alternative to probable cause, it states that it is limiting its
analysis to the two situations arguably presented by the facts of
this case -- the "noninvestigatory work-related intrusion"
( i.e., inventory search) and the "investigatory search for
evidence of suspected work-related employee misfeasance"
( i.e., investigatory search). Ante at 480 U. S. 723 .
This limitation, however, is illusory. The plurality describes
these searches in such a broad fashion that it is difficult to
imagine a search that would not fit into one or the other of the
categories. Moreover, it proposes the same standard, one
taken from New Jersey v. T.L.O., for both inventory and
investigatory searches. See ante at 480 U. S.
725 -726. Therefore, in the context of remanding a case
because the facts are unclear, the plurality is announcing a
standard to apply to all public employer searches.

															Moreover, the plurality also abandons any effort at careful
balancing in arriving at its substitute for probable cause. Just as
the elimination of the warrant requirement requires some nexus
between its absence, the employee's privacy interests, and the
government interests to be served by the search, so also does the
formulation of a standard less than probable cause for a particular
search demand a similar connection between these factors. See,
e.g., United States v. Brignoni-Ponce, 422 U.
S. 873 , 422 U. S. 881 (1975). The plurality's discussion of investigatory searches
reveals no attempt to set forth the appropriate nexus. [ Footnote 12 ] It is certainly true,
as the plurality observes, that a public employer has an interest
in eliminating incompetence and work-related misconduct in order to
enable the government agency to accomplish its tasks in an
efficient manner. It is also conceivable that a public employee's
privacy interests are somewhat limited in the workplace, although,
as noted above, not to the extent suggested by the plurality. The
plurality, however, fails to Page 480 U. S. 747 explain why the balancing of these interests necessarily leads
to the standard borrowed from New Jersey v. T.L.O., as
opposed to other imaginable standards. Indeed, because the
balancing is simply asserted, rather than explicated, [ Footnote 13 ] the plurality never
really justifies why probable cause, characterized by this Court as
a "practical, nontechnical conception," Brinegar v. United
States, 338 U. S. 160 , 338 U. S. 176 (1949), would not protect adequately the public employer's
interests in the situation presented by this case. See New
Jersey v. T.L.O., 469 U.S. at 469 U. S.
363 -364 (BRENNAN, J., concurring in part and dissenting
in part). [ Footnote 14 ] Page 480 U. S. 748 IV I have reviewed at too great length the plurality's opinion
because the question of public employers' searches of their
employees' workplaces, like any relatively unexplored area of
Fourth Amendment law, demands careful analysis. These searches
appear in various factual settings, some of which courts are only
now beginning to face, and present different problems. [ Footnote 15 ] Accordingly, I believe
that the Court should examine closely the practical realities of a
particular situation and the interests implicated there before
replacing the traditional warrant and probable cause requirements
with some other standard of reasonableness derived from a balancing
test. The Fourth Amendment demands no less. By ignoring the
specific facts of this case, and by announcing in the abstract a
standard as to the reasonableness of an employer's workplace
searches, the plurality undermines not only the Fourth Amendment
rights of public employees but also any further analysis of the
constitutionality of public employer searches. I respectfully dissent. [ Footnote 1 ]

															Although there has been some development on these issues in
federal courts, see ante, at 480 U. S.
720 -721, this Court has not yet squarely faced them.

															[ Footnote 2 ]

															It is true that this Court has expressed concern about the
workability of " an ad hoc, case-by-case definition of
Fourth Amendment standards to be applied in differing factual
circumstances.'" Ante at 480 U. S. 730 (SCALIA, J., concurring in judgment), quoting Oliver v. United
States, 466 U. S. 170 , 466 U. S. 181 (1984). Given, however, the number and types of workplace searches
by public employers that can be imagined -- ranging all the way
from the employer's routine entry for retrieval of a file to a
planned investigatory search into an employee's suspected criminal
misdeeds -- development of a jurisprudence in this area might well
require a case-by-case approach. See California v. Carney, 471 U. S. 386 , 471 U. S. 400 (1985) (STEVENS, J., dissenting) ("The only true rules governing
search and seizure have been formulated and refined in the
painstaking scrutiny of case-by-case adjudication"); New Jersey
v. T.L.O., 469 U. S. 325 , 469 U. S.
366 -367 (1985) (BRENNAN, J., concurring in part and
dissenting in part) ("I would not think it necessary to develop a
single standard to govern all school searches, any more than
traditional Fourth Amendment law applies even the probable cause
standard to all searches and seizures" (emphasis in
original)). Under a case-by-case approach, a rule governing a
particular type of workplace search, unlike the standard of the
plurality here, should emerge from a concrete set of facts and
possess the precision that only the exploration of "every aspect of
a multifacited situation embracing conflicting and demanding
interests" can produce. See United States v. Fruehauf, 365 U. S. 146 , 365 U. S. 157 (1961). The manner in which the plurality arrives at its standard,
it seems to me, thus not only harms Dr. Ortega and other public
employees, but also does a disservice to Fourth Amendment
analysis. [ Footnote 3 ]

															It could be argued that the plurality removes its analysis from
the facts of this case in order to arrive at a result unfavorable
to public employees, whose position members of the plurality do not
look upon with much sympathy. As Justice Cardozo long ago
explained, judges are never free from the feelings of the times or
those emerging from their own personal lives:

															"I have spoken of the forces of which judges avowedly avail to
shape the form and content of their judgments. Even these forces
are seldom fully in consciousness. They lie so near the surface,
however, that their existence and influence are not likely to be
disclaimed. But the subject is not exhausted with the recognition
of their power. Deep below consciousness are other forces, the
likes and the dislikes, the predilections and the prejudices, the
complex of instincts and emotions and habits and convictions, which
make the man, whether he be litigant or judge."

															B. Cardozo, The Nature of the Judicial Process 167 (1921). It
seems to me that whenever, as here, courts fail to concentrate on
the facts of a case, these predilections inevitably surface, no
longer held in check by the "discipline" of the facts, and shape,
more than they ever should and even to an extent unknown to the
judges themselves, any legal standard that is then articulated.
This, I believe, is the central problem of the opinion of the
plurality and, indeed, of the concurrence.

															[ Footnote 4 ]

															The plurality is correct in pointing out that the District Court
erred in its conclusion that there was a Hospital policy that would
have justified this search. Ante at 480 U. S. 728 .
This was not the only error on the District Court's part. That
court also concluded that Dr. Ortega was notified of the search and
could have participated in it, see App. 23, a conclusion
at odds with the record, see id. at 24, 40.

															[ Footnote 5 ]

															This common sense notion that public employees have some
expectation of privacy in the workplace, particularly with respect
to private documents or papers kept there, was exemplified by
recent remarks of the Attorney General. In responding to questions
concerning the possibility of a search and seizure of papers and
offices of Government employees in connection with an investigation
into allegedly illegal diversion of funds to Central American
recipients, he is reported to have stated:

															"I'm not sure we would have any opportunity or any legal right
to get into those personal papers. . . . There was certainly no
evidence of any criminality that would have supported a search
warrant at that time. . . . I don't think public employees' private
documents belong to the. Government."

															N.Y. Times, Dec. 3, 1986, p. All, col. 3.

															Moreover, courts have recognized that a public employee has a
legitimate expectation of privacy as to an employer's search and
seizure at the workplace. See, e.g., Gillard v. Schmidt, 579 F.2d 825, 829 (CA3 1978) (search of desk); United States v
McIntyre, 582 F.2d 1221, 1224 (CA9 1978) (monitoring
conversations at office desk). But see Williams v.
Collins, 728 F.2d 721, 728 (CA5 1984) (search of desk). In
some cases, courts have decided that an employee had no such
expectation with respect to a workplace search because an
established regulation permitted the search. See United States
v. Speights, 557 F.2d 362, 364-365 (CA3 1977) (describing
cases); United States v. Donato, 269 F.
Supp. 921 (ED Pa.), aff'd, 379 F.2d 288 (CA3 1967)
(Government regulation notified employees that lockers in the
United States Mint were not to be viewed by employees as private
lockers). The question of such a search pursuant to regulations is
not now before this Court.

															[ Footnote 6 ]

															Perhaps the greatest sign of the disappearance of the
distinction between work and private life is the fact that women --
the traditional representatives of the private sphere and family
life -- have entered the workforce in increasing numbers. See BNA Special Report, Work & Family: A Changing
Dynamic, 1, 3, 13-15 (1986). It is therein noted:

															"The myth of 'separate worlds' -- one of work and the other of
family life -- long harbored by employers, unions, and even workers
themselves has been effectively laid to rest. Their inseparability
is undeniable, particularly as two-earner families have become the
norm where they once were the exception and as a distressing number
of single parents are required to raise children on their own. The
import of work-family conflicts -- for the family, for the
workplace, and, indeed, for the whole of society -- will grow as
these demographic and social transformations in the roles of men
and women come to be more fully clarified and appreciated." Id. at 217 (remarks of Professor Phyllis Moen). As a
result of this disappearance, moreover, the employee must attempt
to maintain the difficult balance between work and personal life. Id. at 227 (remarks of Barney Olmsted and Suzanne
Smith).

															[ Footnote 7 ]

															I am also troubled by the plurality's implication that a public
employee is entitled to a lesser degree of privacy in the workplace
because the public agency, not the employee, owns much of what
constitutes the workplace. This implication emerges in the
distinction the plurality draws between the workplace "context,"
which includes "the hallways, cafeteria, offices, desks, and file
cabinets," and an employee's "closed personal luggage, a handbag,
or a briefcase." Ante at 480 U. S.
715 -716. This Court, however, has made it clear that
privacy interests protected by the Fourth Amendment do not turn on
ownership of particular premises. See, e.g., Rakas v.
Illinois, 439 U. S. 128 , 439 U. S. 143 (1978) ("[T]he protection of the Fourth Amendment depends not upon
a property right in the invaded place, but upon whether the person
who claims the protection of the Amendment has a legitimate
expectation of privacy in the invaded place"); Katz v. United
States, 389 U. S. 347 , 389 U. S. 353 (1967) (Fourth Amendment protects people, and not simply "areas").
To be sure, the public employer's ownership of the premises is
relevant in determining an employee's expectation of privacy, for
often it is the main reason for the routine visits into an
employee's office. The employee is assigned an office for work
purposes; it is expected that the employee will receive
work-related visitors, and that the employer will maintain the
office. This fact of ownership, however, like the routine visits,
does not abrogate the employee's expectation of privacy.

															[ Footnote 8 ]

															This part of the analysis is related to the "special need" step.
Courts turn to the balancing test only when they conclude that the
traditional warrant and probable cause requirements are not a
practical alternative. Through the balancing test, they then try to
identify a standard of reasonableness, other than the traditional
one, suitable for the circumstances. The warrant and probable cause
requirements, however, continue to serve as a model in the
formulation of the new standard. It is conceivable, moreover, that
a court, having initially decided that it is faced with a situation
of "special need" that calls for balancing, may conclude after
application of the balancing test that the traditional standard is
a suitable one for the context after all.

															[ Footnote 9 ]

															In some workplace investigations, the particular goals of the
government agency, coupled with a need for special employee,
discipline may justify dispensing with the warrant requirement. See, e.g., Security and Law Enforcement Employees, Dist.
Council 82, American Federation of State, County and Municipal
Employees, AFL-CIO v. Carey, 737 F.2d 187, 203-204 (CA2 1984)
(government interest in maintaining security of a correctional
facility justifies strip searches of correctional officers, in
certain circumstances, in absence of a warrant).

															[ Footnote 10 ]

															While the warrant requirement might be "unwieldy" for public
employers if it was required for every workplace search, the
plurality has failed to explain why, on the facts of this case,
obtaining a warrant would have been burdensome for petitioners,
even if one assumes that they were unfamiliar with this
requirement. In fact, the opposite seems true. Moreover, contrary
to the plurality's suggestion, see ante at 480 U. S. 722 ,
the warrant requirement is not limited to the criminal context. See Camara v. Municipal Court, 387 U.
S. 523 , 387 U. S.
530 -531 (1967).,

															[ Footnote 11 ]

															The plurality adopts a "standard of reasonableness under all the
circumstances." Ante at 480 U. S.
725 -726. It fails completely to suggest how this
standard captures any of the protection of the traditional warrant
requirement; indeed, the standard appears to be simply an
alternative to probable cause.

															[ Footnote 12 ]

															The same holds true for the plurality's discussion of inventory
searches.

															[ Footnote 13 ]

															The plurality's attempt at explication consists of little more
than a series of assertions: that the probable cause requirement
"would impose intolerable burdens on public employers"; that the
delay caused by such a requirement would result in "tangible and
often irreparable damage" to a government agency; and that public
employers cannot be expected "to learn the subtleties of the
probable cause standard." See ante at 480 U. S.
724 -725. Such assertions cannot pass for careful
balancing on the facts of this case, given that the search was
conducted during Dr. Ortega's administrative leave from the
Hospital, with the advice of counsel, and by an investigating party
that included a security officer. My observation that a particular
Fourth Amendment standard of reasonableness should be developed
from a specific context bears repeating here.

															[ Footnote 14 ]

															Even if I believed that this case were an appropriate vehicle
for development of a standard on public employer searches, I would
fault the plurality for its failure to give much substance to the
standard it has borrowed almost verbatim from New Jersey v.
T.L.O. See ante at 480 U. S.
714 -715. The T.L.O. Court described in some
detail the substance of its test, which was tailored to the
circumstances of the case before it, and thus is not directly
transferable from the halls of a high school to the offices of
government. In any event, were I to apply the rather stark standard
of reasonableness announced by the plurality, I would conclude that
petitioners here did not satisfy it. Assuming, without deciding,
that petitioners had an individualized suspicion that Dr. Ortega
was mismanaging the psychiatric residency program, I believe the
scope of the search was not reasonably related to this concern. If
petitioners were truly in search of evidence of respondent's
mismanagement, it is difficult to understand why they looked
through the personal belongings of Dr. Ortega, a search that
resulted in the seizure of a Valentine's Day card, a photograph,
and a book of poetry, which could have no conceivable relation to
the claimed purpose of the search. Although, in the plurality's
view, the seizure of these items is not an issue in this case, see ante at 480 U. S. 729 ,
n., I would think that this seizure is relevant to determining the
reasonableness of the scope of the search. Accordingly, under the
plurality's own standard, this search was unreasonable.

															[ Footnote 15 ]

															One example is the Fourth Amendment problem associated with drug
and alcohol testing of employees. See, e.g., Shoemaker v.
Handel, 795 F.2d 1136, 1141-1143 (CA3) (administrative search
exception extended to warrantless breath and urine testing of
jockeys, given the heavily regulated nature of the horse-racing
industry), cert. denied, 479 U.S. 986 (1986); National
Treasury Employees Union v. Von Raab, 649 F.
Supp. 380 (ED La. 1986) (wide-scale urinalysis of United States
Customs Service employees without probable cause or reasonable
suspicion struck down as violative of the Fourth Amendment).

Summary: In O'Connor v. Ortega, the Supreme Court considered whether a government employer's search of an employee's workplace is governed by the Fourth Amendment. The Court concluded that public employees do have a reasonable expectation of privacy in their workplaces, but that the standards for a reasonable search may vary depending on the operational realities of the workplace. The case was remanded for further consideration.