City of Ontario, California v. Quon (2010)

560 U.S. 746

Case Year: 2010

Case Ruling: 9-0, Reversed

Opinion Justice: Kennedy

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Alito, Breyer, Ginsburg, Roberts, Scalia, Sotomayor, Stevens, Thomas


1st Concurring Opinion

Author: Stevens


1st Dissenting Opinion



2nd Concurring Opinion

Author: Scalia in Part


2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


The city of Ontario issued pagers to Jeff Quon and other officers in its police department so that they could send and receive text messages. The city’s contract with its service provider, Arch Wireless, put a monthly limit on the number of characters each pager could send or receive, and specified that usage exceeding that number would result in an additional fee. When Quon and others exceeded their monthly limits for several months running, the chief of the police department tried to determine whether the existing limit was too low or, conversely, whether the overages were a result of personal messages. After receiving transcripts of Quon's and another employee's text messages (obtained from Arch Wireless), it turned out that many of Quon's messages were not work related, and some were sexually explicit. The chief referred the matter to the department’s internal affairs division. The investigating officer used Quon's work schedule to redact from his transcript any messages he sent while off duty, but the transcript showed that few of his on-duty messages related to police business. Quon was disciplined for violating the department’s rules.

Quon filed this suit, alleging that the city and the department violated their Fourth Amendment rights by obtaining and reviewing the transcript of his pager messages.



The Fourth Amendment states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." It is well settled that the Fourth Amendment's protection extends beyond the sphere of criminal investigations. "The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government," without regard to whether the government actor is investigating crime or performing another function. Skinner v. Railway Labor Executives' Assn. (1989). The Fourth Amendment applies as well when the Government acts in its capacity as an employer.

The Court discussed this principle in O'Connor [v. Ortega (1987)]. There a physician employed by a state hospital alleged that hospital officials investigating workplace misconduct had violated his Fourth Amendment rights by searching his office and seizing personal items from his desk and filing cabinet. All Members of the Court agreed with the general principle that "[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer."

The O'Connor Court did disagree on the proper analytical framework for Fourth Amendment claims against government employers. A four-Justice plurality concluded that the correct analysis has two steps. First, because "some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable," a court must consider "[t]he operational realities of the workplace" in order to determine whether an employee's Fourth Amendment rights are implicated. On this view, "the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis." Next, where an employee has a legitimate privacy expectation, an employer's intrusion on that expectation "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."

Justice Scalia, concurring in the judgment, outlined a different approach. His opinion would have dispensed with an inquiry into "operational realities" and would conclude "that the offices of government employees . . . are covered by Fourth Amendment protections as a general matter." But he would also have held "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."

Before turning to the reasonableness of the search, it is instructive to note the parties' disagreement over whether Quon had a reasonable expectation of privacy. The record does establish that OPD, at the outset, made it clear that pager messages were not considered private. The City's Computer Policy stated that "[u]sers should have no expectation of privacy or confidentiality when using" City computers. Chief Scharf's memo and Duke's statements made clear that this official policy extended to text messaging. The disagreement, at least as respondents see the case, is over whether Duke's later statements overrode the official policy. Respondents contend that because Duke told Quon that an audit would be unnecessary if Quon paid for the overage, Quon reasonably could expect that the contents of his messages would remain private.

At this point, were we to assume that inquiry into "operational realities" were called for, it would be necessary to ask whether Duke's statements could be taken as announcing a change in OPD policy, and if so, whether he had, in fact or appearance, the authority to make such a change and to guarantee the privacy of text messaging. It would also be necessary to consider whether a review of messages sent on police pagers, particularly those sent while officers are on duty, might be justified for other reasons, including performance evaluations, litigation concerning the lawfulness of police actions, and perhaps compliance with state open records laws. These matters would all bear on the legitimacy of an employee's privacy expectation. . . .

A broad holding concerning employees' privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds. For present purposes we assume several propositions arguendo: First, Quon had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City; second, petitioners' review of the transcript constituted a search within the meaning of the Fourth Amendment; and third, the principles applicable to a government employer's search of an employee's physical office apply with at least the same force when the employer intrudes on the employee's privacy in the electronic sphere.

Even if Quon had a reasonable expectation of privacy in his text messages, petitioners did not necessarily violate the Fourth Amendment by obtaining and reviewing the transcripts. Although as a general matter, warrantless searches "are per se unreasonable under the Fourth Amendment," there are "a few specifically established and well-delineated exceptions" to that general rule. The Court has held that the "special needs" of the workplace justify one such exception. O'Connor.

Under the approach of the O'Connor plurality, when conducted for a "noninvestigatory, work-related purpos[e]" or for the "investigatio[n] of work-related misconduct," a government employer's warrantless search is reasonable if it is "justified at its inception" and if "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of" the circumstances giving rise to the search. The search here satisfied the standard of the O'Connorplurality and was reasonable under that approach.

The search was justified at its inception because there were "reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related purpose." As a jury found, Chief Scharf ordered the search in order to determine whether the character limit on the City's contract with Arch Wireless was sufficient to meet the City's needs. This was, as the Ninth Circuit noted, a "legitimate work-related rationale." The City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications.

As for the scope of the search, reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon's overages were the result of work-related messaging or personal use. The review was also not "excessively intrusive." Although Quon had gone over his monthly allotment a number of times, OPD requested transcripts for only the months of August and September 2002. While it may have been reasonable as well for OPD to review transcripts of all the months in which Quon exceeded his allowance, it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the character limits were efficacious. And it is worth noting that during his internal affairs investigation, McMahon redacted all messages Quon sent while off duty, a measure which reduced the intrusiveness of any further review of the transcripts. . . .

Even if [Quon] could assume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications. Under the circumstances, a reasonable employee would be aware that sound management principles might require the audit of messages to determine whether the pager was being appropriately used. Given that the City issued the pagers to Quon and other SWAT Team members in order to help them more quickly respond to crises—and given that Quon had received no assurances of privacy—Quon could have anticipated that it might be necessary for the City to audit pager messages to assess the SWAT Team's performance in particular emergency situations.

Because the search was reasonable, petitioners did not violate respondents' Fourth Amendment rights, and the court below erred by concluding otherwise. . . .




Although I join the Court's opinion in full, I write separately to highlight that the Court has sensibly declined to resolve whether the plurality opinion in O'Connor provides the correct approach to determining an employee's reasonable expectation of privacy. Justice Blackmun, writing for the four dissenting Justices in O'Connor, agreed with Justice Scaliathat an employee enjoys a reasonable expectation of privacy in his office. But he . . . emphasized that courts should determine this expectation in light of the specific facts of each particular search, rather than by announcing a categorical standard.

For the reasons stated [in] the Court's opinion, it is clear that respondent Jeff Quon, as a law enforcement officer who served on a SWAT Team, should have understood that all of his work-related actions—including all of his communications on his official pager—were likely to be subject to public and legal scrutiny. He therefore had only a limited expectation of privacy in relation to this particular audit of his pager messages. Whether one applies the reasoning from Justice O'Connor's opinion, Justice Scalia's concurrence, or Justice Blackmun's dissent in O'Connor, the result is the same: The judgment of the Court of Appeals in this case must be reversed.



. . . I continue to believe that the "operational realities" rubric for determining the Fourth Amendment's application to public employees invented by the plurality in O'Connor, is standardless and unsupported. In this case, the proper threshold inquiry should be not whether the Fourth Amendment applies to messages on public employees' employer-issued pagers, but whether it applies in general to such messages on employer-issued pagers.

Here, however, there is no need to answer that threshold question. Even accepting at face value Quon's and his co-plaintiffs' claims that the Fourth Amendment applies to their messages, the city's search was reasonable, and thus did not violate the Amendment. Since it is unnecessary to decide whether the Fourth Amendment applies, it is unnecessary to resolve which approach in O'Connor controls: the plurality's or mine. . . .

I concur in the Court's judgment.