Wiley v. Department of Justice
| Decision Date | 12 May 2003 |
| Docket Number | No. 02-3044.,02-3044. |
| Citation | 328 F.3d 1346 |
| Parties | Derrick A. WILEY, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent. |
| Court | U.S. Court of Appeals — Federal Circuit |
Ari H. Mendelson, Law Office of Martin J. Rivas, P.A., of Coral Gables, Florida, argued for petitioner. On the brief was Martin J. Rivas.
Phyllis Jo Baunach, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With her on the brief were David M. Cohen, Director, and Deborah A. Bynum, Assistant Director. Of counsel on the brief was Neal J. Swartz, Assistant General Counsel, Federal Bureau of Prison, Department of Justice, of Washington, DC. Of counsel was Natalie R.W. Holick, Federal Bureau of Prisons.
Before CLEVENGER, GAJARSA, and PROST, Circuit Judges.
Opinion for the Court filed by Circuit Judge GAJARSA. Dissenting opinion filed by Circuit Judge PROST.
Derrick A. Wiley ("Wiley") petitions for review of the final decision of the Merit Systems Protection Board ("Board") concluding that the search of Wiley's car conducted by Wiley's employer, the Federal Bureau of Prisons in the Department of Justice ("agency"), did not violate the Fourth Amendment, thereby sustaining Wiley's removal from the agency for refusing to submit initially to the search when requested. Wiley v. Dep't of Justice, 89 M.S.P.R. 542 (M.S.P.B.2001). We reverse the Board's determination because we conclude that the search of Wiley's car was unreasonable within the meaning of the Fourth Amendment.
Wiley was employed by the agency as a teacher in a Miami, Florida, federal correctional institution ("Institution"). In 1997, Wiley was investigated for allegedly bringing a weapon onto Institution grounds ("the 1997 investigation"). No weapon was found in that investigation. On November 29, 1999, William Patrick, the Warden of the Institution, received a memorandum from the agency's Office of Internal Affairs ("OIA") in Washington, D.C. In the memorandum, dated November 10, 1999, the OIA alerted the Institution to a matter raised by a certain Mr. Martin St. Jones, who alleged that although the FBI had not been able to prove the earlier allegation, Wiley continued to keep a gun in his car in the Institution parking lot. The OIA also attached a letter that was dated January 7, 1999, and signed by "a friend," allegedly Mr. Martin St. Jones.1 The letter alleged that Wiley kept a loaded 9 mm weapon in his vehicle in the Institution's parking lot, that Wiley had bragged about having the gun, and that several unidentified correctional officers had seen the gun. In its entirety, the text of the letter reads as follows:
Dear sir,
I am writing to you because it seems very hypocritical that other officers in this place [Federal Correctional Institution] must abide by the rules and regulations and the overall institutional policy while one individual has been falunting [sic] the rules and the law by bringing in a loaded hundgun [sic] into the institution and be sheltered by the "Buddy Buddy System" while other officers must abide by the strictest of interpretations of regulations.
The individual in question had been seen having a loaded 9 mm weapon in the Education Department of the institution and the FBI was informed but because of the protective blanket thrown over him by the individuals who were incharge of the investigation nothing ever happened. Well it would seem that having learned the lesson this particular individual would never attempt to bring the weapon near the Federal Institution. Well, that would be erroneous since this Corrections Officer, in complete defiance of the law, has continued to laugh at all of us and the inmates by being above the law and he not only brings the weapon here but he boasts to others, including inmates, that as a corrections officer he is allowed to bring the weapon to this institution.
The weapon is always, now, being kept in the automobile in the general parking lot and this has been seen by other officers.
I am refering [sic] to officer WYLEY [sic] who works evenings in the Education Department.
SINCERELY
a friend
The OIA referred the matter to the Warden "for appropriate local investigation." The Warden testified that on November 29, 1999, through Special Investigative Agent ("SIA") Archie Longley, the Warden confirmed with the OIA that its letter referred to a new allegation and not the prior 1997 investigation. That same day, the Warden ordered SIA Longley to search Wiley's vehicle.
On December 1, 1999, SIA Longley called Wiley to his office and requested a search of Wiley's car. Wiley initially refused, left the Institution building, got into his car, and drove away. He returned about twenty to thirty-five minutes later and consented to the search. SIA Longley then searched Wiley's vehicle in the parking lot of the agency, but no gun was found. On February 3, 2000, the agency notified Wiley of his removal from employment, effective the same day, based on the charge of "refusing to submit to a search when initially instructed."
Wiley appealed his removal to the Board. On July 13, 2000, an administrative judge ("AJ") sustained Wiley's removal in an initial decision, finding that the agency was able to prove the charge of refusing to submit to a search when initially instructed. The AJ rejected Wiley's arguments that the search violated the Fourth Amendment's prohibition on unreasonable searches and that the search was taken in reprisal for a prior Board appeal that same year regarding a proposal to remove Wiley.2 Wiley petitioned for review of the AJ's decision to the full Board.
On September 4, 2001, the Board granted Wiley's petition, but sustained his removal, concluding that the search of his vehicle did not violate the Fourth Amendment. The Board first determined that the Fourth Amendment was implicated by the search as Wiley had a reasonable expectation of privacy in the contents of his car. The Board next determined that the case fell under O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987), in which the Supreme Court held that a public employer must show only reasonable suspicion and not probable cause to justify Fourth Amendment searches undertaken in the workplace for noninvestigatory work-related purposes or for evidence of misconduct. The Board concluded that the agency established that the Warden had reasonable suspicion to search Wiley's car based on the information available to the Warden at the time he ordered the search. The Board found no error by the AJ in all other regards, including the AJ's treatment of the charge itself, the reprisal defense, and various alleged procedural deficiencies in the proceeding before the AJ. Wiley timely appealed the Board decision, and this court has jurisdiction over the case pursuant to 28 U.S.C. § 1295(a)(9).
The Supreme Court has instructed that the ultimate question of reasonable suspicion and probable cause to make a warrantless Fourth Amendment search generally should be reviewed de novo, with the underlying findings of fact and drawn inferences reviewed under the appropriate deferential standard. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). This court will overturn a Board decision if it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without adherence to procedures required by law, rule, or regulation; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000).
Wiley does not dispute that the agency was able to prove the stated charge of failure to submit to the search when initially requested. Rather, Wiley attacks his removal by contending that the search to which he initially refused to submit was unconstitutional. Specifically, Wiley argues that (1) the Supreme Court's Ortega decision and its attendant reasonable suspicion standard are inapplicable, and therefore the Board should have required the agency to prove that the Warden had probable cause to search his car, and (2) even assuming that reasonable suspicion is the applicable standard, the Board erred in finding that the Warden had the requisite reasonable suspicion to justify the search.
We disagree with Wiley that the Warden was required to have probable cause to conduct a lawful search of Wiley's vehicle. Wiley was employed as a teacher at the Institution while his car was parked in a restricted area within the confines of the Institution. This case falls squarely under the Ortega decision and thus should be analyzed under the reasonable suspicion standard.
The Fourth Amendment prohibits the government from undertaking "unreasonable searches and seizures" of individuals and their property. U.S. Const. amend. IV. Ordinarily, a Fourth Amendment search must be supported by probable cause. See New Jersey v. TLO, 469 U.S. 325, 340, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). The fundamental precept of the Fourth Amendment, however, is that a search must 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." Id. (quoting Almeida-Sanchez v. United States, 413 U.S. 266, 277, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) (Powell, J., concurring)). Ultimately, the determination of the standard of reasonableness governing any specific class of searches requires balancing the "individual's legitimate expectations of privacy and personal security" with the "government's need for effective methods to deal with breaches of public order." Id. at 337, 105 S.Ct. 733. Indeed, the Supreme Court has stated that where "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...
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