The police can also be the target of illegal searches and seizures as much as anyone, but there is no Fourth Amendment violation in the case of police officers waiting on and cooperating with a police misconduct investigation.

The Third Circuit ruled last Wednesday that two Philadelphia police officers who were told to wait on Internal Affairs agents, had their lockers searched, and had to turn out their pockets were not subject to an illegal search or seizure.

For these two cops, the next criminal pat-down they perform may have a different air of caution.

Police Misconduct Investigation

The Gwynn v. City of Philadelphia case stems from a Section 1983 action by two police officers who were, along with their fellow officers, told by a commanding officer to wait while Internal Affairs arrived to investigate allegations that the officers had stolen money from a suspect during a pat-down.

As you may well know, Terry pats are tricky business, but the courts seem to agree that pickpocketing during a detention is a no-go.

The officers suspected of stealing the money were told to wait in an office, were allowed to get a drink and watch TV, and were asked to expose their pockets, socks, and wallets to their commanding officer.

Police Office Discipline Is O.K.

Generally, the Supreme Court recognized that public employees, just like private employees, can be subject to discipline and told to obey their superiors without necessarily raising constitutional issues.

The Third Circuit hadn’t ruled on this particular issue of police office searches and seizures when dealing with claims of misconduct, so they turned to their sister circuits for guidance:

  • Pennington (6th Cir). Officer was ordered, not arrested, to return to police station for breathalyzer, not a seizure
  • Driebel (7th Cir). Officers can be told to wait at a location pending an internal investigation without being seized.
  • Aguilera (9th Cir). Being told to stay after work to speak with Internal Affairs was not a seizure.

In agreeing with all these authorities, the Third Circuit held that police officers, like normal employees waiting to be chewed out by their boss, could be told to stay somewhere to wait for Internal Affairs without being seized.

In addition, the Court opined that the officers were “free to leave,” and that Mendenhall-style reasoning actually seems to work then the parties are all police officers.

Though there wasn’t a seizure found by the court, no one contests that there were searches of the two officers’ persons and lockers during the misconduct investigation.

Fortunately for the City of Philadelphia, there is a “special government needs” exception to the Fourth Amendment probable cause requirement that allows government searches to be judged under a different standard.

The Supreme Court in O’Connor v. Ortega defines that standard for a reasonable search in two parts:

  • Reasonable grounds that search will turn up evidence of employee misconduct
  • Search measures not overly intrusive and reasonably related to objectives of the search

It’s a pretty low standard compared to the traditional Fourth Amendment analysis, and for that reason, the police brass did not violate the officers’ rights by searching their clothes and lockers for evidence of misconduct.

Related Resources:

  • Civil Rights Claim Follows Officer, Even After Death (FindLaw’s U.S. 3rd Circuit Blog)
  • Posner Chides Government for ‘Ostrich Conduct,’ Not Cite-Checking (FindLaw’s U.S. 7th Circuit Blog)
  • 6th Circuit Allows Taser Suit Against Cleveland Cop (FindLaw’s U.S. 6th Circuit Blog)
  • How Does Due Process Protect a Public Employee? (FindLaw)

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