Shields v. Burge

• Decision Date: 20 September 1988
• Docket Number: No. 88-1485,88-1485
• Citation: 874 F.2d 1201
• Parties: Gerald W. SHIELDS, Plaintiff-Appellant, v. David BURGE, Individually, and as Superintendent with the Illinois State Police, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1201

874 F.2d 1201

4 Indiv.Empl.Rts.Cas. 623

Gerald W. SHIELDS, Plaintiff-Appellant, v. David BURGE, Individually, and as Superintendent with the Illinois State Police, et al., Defendants-Appellees.

No. 88-1485.

United States Court of Appeals Seventh Circuit.

Submitted Sept. 20, 1988. ^*

Decided May 15, 1989.

Jeff Justice, Hull Campbell & Robinson, Decatur, Ill., for plaintiff-appellant.

Neil F. Hartigan, Atty. Gen., William D. Frazier, Asst. Atty. Gen., Chicago, Ill., for defendants-appellees.

Before BAUER, Chief Judge, CUDAHY and MANION, Circuit Judges.

MANION, Circuit Judge.

This case presents issues of potential 42 U.S.C. Sec. 1983 liability stemming from Illinois State Police officials' investigation of alleged misconduct by a State Police officer. Plaintiff Gerald Shields was a State Police sergeant and a narcotics investigator in the department's Division of Criminal Investigation. In January, 1985, Shields was removed from his assignment as a narcotics investigator based on reports that he had unlawfully transferred marijuana to a confidential source. At that time, the State Police's Division of Internal Investigations began an investigation (the "internal investigation") to determine if Shields had violated any departmental rules and regulations. In March, 1985, Shields' supervisor told the superintendent of Internal Investigations, David Burge, that a confidential source had stated that Shields had provided information about an ongoing narcotics investigation to one of that investigation's targets. The Division of Internal Investigations continued to investigate both allegations against Shields.

In June, 1985, as part of the internal investigation, Sergeants Gerald Courtney and Gerald Leisch of the Division of Internal Investigations searched the desk in Shields' office. Courtney and Leisch also searched Shields' state-issued automobile. During the automobile search, Courtney and Leisch happened upon Shields' locked briefcase, which they also opened and searched. Courtney and Leisch had neither a warrant nor Shields' consent to search the desk, automobile, or briefcase.

In the meantime, in May, 1985, the Macon County Circuit Court had appointed a special prosecutor to investigate whether Shields had committed any crimes. That investigation eventually resulted in an indictment against Shields but no convictions. Although the special prosecutor's investigation paralleled the internal investigation, the June, 1985 searches by Courtney and Leisch were not connected with the criminal investigation.

During the time the investigations were ongoing, Shields was suffering a great deal of stress. In June and July of 1985, Shields was seeing a State Police psychologist for counseling. The psychologist recommended that Shields take a medical disability leave. Shields' superiors granted him the leave. However, Shields alleged that Gerald Hopper, the Division of Internal Investigations' second in command, pressured the psychologist into reversing his opinion that Shields needed a medical leave. According to Shields, Burge had ordered Hopper to pressure the psychologist.

Shields sued Burge, Hopper, Courtney, and Leisch for damages under 42 U.S.C. Sec. 1983 for violating his civil rights during the internal investigation. Specifically, Count I of Shields' complaint alleged that the desk, automobile, and briefcase searches violated the Fourth Amendment. Count II alleged that the effort to persuade the psychologist to change his diagnosis violated Shields' constitutional right to privacy. The district court granted the defendants summary judgment on Count I and dismissed Count II for failure to state a claim. ¹ Shields appeals.

I.

Shields asserts that the district court erred in granting the defendants summary judgment on the desk search. The district court, applying the plurality's test in O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987), held that searching Shields' desk did not violate the Fourth Amendment. In Ortega, the plurality refused to apply a warrant or probable cause standard when a government employer searches an employee's office, desk, or file cabinet to retrieve government property or to investigate work-related misconduct. Id. at 719-26, 107 S.Ct. at 1499-1503. Instead, such a work-related "workplace" search is lawful if the search is "reasonable[ ] under all the circumstances." Id. at 725-26, 107 S.Ct. at 1502. The plurality explained that a search is reasonable if it is "justified at its inception" and if it is "reasonably related in scope to the circumstances" that justified it. Id. at 726, 107 S.Ct. at 1503 (citing New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 742-43, 83 L.Ed.2d 720 (1985)). A workplace search to investigate work-related misconduct ordinarily is "justified at its inception" if reasonable grounds exist to suspect that the search will turn up evidence of the employee's misconduct. Id. 480 U.S. at 726, 107 S.Ct. at 1502-03. An investigatory workplace search is reasonable in scope "when the measures taken are reasonably related" to the search's objective and are not excessively intrusive in light of the misconduct's nature.

The district court found that searching Shields' desk was reasonable under Ortega. The court found that the search was reasonable at its inception because the defendants had an individualized suspicion of work-related misconduct by Shields and because the defendants had investigated Shields five or six months before searching his desk. The court found that the search was reasonable in scope because it was reasonable for the defendants to expect Shields' desk to contain information regarding Shields' misconduct.

Before analyzing the merits, we must determine what the Court (not just the plurality) held in Ortega. Whenever the Court decides a case without producing a majority rationale, it is necessary to decide whether the lead opinion or one of the other Justices' opinions supplies the Court's holding that binds lower courts. Cf. Virgin Islands v. Rasool, 657 F.2d 582, 592-93 (3d Cir.1981). The four dissenters in Ortega insisted on a probable cause and warrant requirement for workplace searches. 480 U.S. at 732-48, 107 S.Ct. at 1514 (dissenting opinion). Justice Scalia, who supplied the fifth vote necessary for the Court's decision to reverse and remand, arguably adopted a less stringent standard than the plurality: "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." Id. at 732, 107 S.Ct. at 1506 (Scalia, J., concurring in the judgment).

We conclude that the Ortega plurality's reasonableness analysis governs work-related workplace searches. This court has recently stated that in Ortega, "the Court concluded that government employers were subject to a reasonableness standard when they conducted workplace searches." Schaill v. Tippecanoe County School Corp., 864 F.2d 1309, 1314 (7th Cir.1988). We did not distinguish between the plurality and concurring opinions. Moreover, the Ninth Circuit has found that Justice Scalia did not articulate a different standard than the plurality but joined in the plurality's "reasonableness under all the circumstances" test. Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1335 (9th Cir.1987). This is consistent with our statement in Schaill. Even if we believed that Justice Scalia did adopt a less stringent standard than the plurality, we would still follow the plurality's reasonableness test because it is the Court's least-common-denominator holding. See Britton v. South Bend Community School Corp., 819 F.2d 766, 768-69 (7th Cir.1987). Assuming Justice Scalia has adopted a less stringent standard, if a work-related workplace search was reasonable under the plurality's test, five Justices (the plurality and Justice Scalia) would uphold it. If a workplace search was not reasonable under the plurality's test, eight Justices (the plurality and the dissenters) would hold it unlawful. Therefore, applying the plurality's reasonableness test is the proper course to follow. Cf. Britton, 819 F.2d at 770-72 (discussing the application of the Court's opinions in Wygant v. Jackson Bd. of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986)).

Applying the reasonableness test here may present a problem, though, for as Shields points out the factual record concerning the desk search is extremely thin. The only evidence concerning the search (and the entire investigation for that matter) is Burge's affidavit. That affidavit essentially stated that Burge had received reports of Shields' misconduct, and that the Division of Internal Investigations had been investigating Shields since January, 1985. The record contains nothing concerning the tip's nature, the informant's reliability, the extent to which the tip was corroborated, or any other facts that might have led the defendants to suspect that Shields was involved in any misconduct. See Copeland v. Philadelphia Police Dept., 840 F.2d 1139, 1144 (3d Cir.1988). The affidavit also contains nothing to indicate why the defendants expected to find any evidence in Shields' desk.

It may be that such evidentiary detail is not necessary. The essential principle that Ortega teaches is that an employer's workplace search must be reasonable. Reasonableness depends upon the circumstances presented in a given situation and upon balancing the public, governmental, and private interests at stake in that situation. See Ortega, 480 U.S. at 722-23, 107 S.Ct. at 1500-01; cf. Schaill, supra, at 1318-22 (balancing the competing interests involved and upholding a high school athletic program drug testing plan). Llaguno v. Mingey, 763 F.2d 1560, 1564-65 (7th Cir.1985).

Several factors in this case favor concluding that searching Shields' desk...