in having a password and a user id montana also specifically created policies regarding the use of that computer and these policies were reinforced and and given as reminders by pop ups on the front of every computer when one log on each employee was cautioned not to use the office computer for personal purposes in this particular matter it was discovered in this particular matter we believe that the seminal case that control is the case o'connor versus ortega the nine hundred eighty seven decision of the united states supreme court in that case the not specifically workable to computer and internet access because it hardly existed the fatah time there's subsequently been some cases that have applied in cases of factual situations much more similar to this one the fourth circuit was accessing our naked pictures of women and in that case after the workplace investigation had ceased the f b i obtained a warrant and that is approved method and that is the method we that information along with other information the warrant was obtained around what do we do with that unwarranted if i can use it that way and three by the two employees one of whom was a law enforcement investigative officer i think that the o'connor verses are taking a ca clearly indicates that an employer supervisor coworkers even visitors have access to an office very frequently with the next government contacts or even the private business back here and there's no limitation placed by our honor for sure take off on a supervisor or a coworker necessarily entering and conducting a workplace related search the limitation of o'connor versus work take is that once that workplace and workplace investigation has ceased then you cuba where the d a s office became a focus of the search and he has obviously law enforcement you have to acknowledge that there is a sliding scale when it comes to your expectation of privacy and perhaps you have a higher expectation of privacy where you work and why that sector maybe you have somewhat less of an expectation of privacy when you work for all the montana department of mind and maybe you have even a lesser expectation of privacy when you are working for a law enforcement agency however in this particular situation mr greiner works for a home for wayward boys he worked high inhales and while you can stretch it and say that maybe this is  in a similar situation would know that he would be monitored by people at the home office and d l say and that they would be keeping track of what he was accessing on the computer there is a difference between the employer conducting a workplace search assigned a particular individuals whether it's a governmental or business situation people as a matter of common practice do you lies their office computers for personal purposes is and personal emails to friends they may engage in office betting pool they may they made by something online people do utilize their computer but where some of the some of the others for it is protected from that's correct it's not protected from the employer and if the employer comes in and as part of an employer and reasonably say you know it's possible my boss may come in and do it on my computer or see if i've been doing personal e mails or going on chat lines it's another thing for the employee to say and gee maybe they're going to call in the summons which dealt with the cia person or even angela in the o s u professor who is accessing it requiring all of these people were in situations where the court said you had to have a warrant you had to have a warrant before you could take that next step in a criminal you know all of the cases o'connor salman's decatur all of these cases really do not boil down to the issue that this case addressed because in lots of those cases there were multiple searches of the office some of the equipment was found to be the the employer did not have an employee did not have a reasonable expectation of privacy yet maybe in the office they did and then the court went on to analyze the warrant issue this case boils down really to just the basic fact of whether mr greiner had a reasonable expectation of privacy why because there were there are those other corollary searches this case focuses on the computer and whether mr greiner had a reasonable expectation of privacy well let's start with a little kind of work into the actual facts of this case  i'm assuming and if i'm if you disagree with me make sure you say so i'm assuming there if the f b i for some reason begins to think that someone is using his office computer to access child pornography which is not only a violation of workplace policy but is independently a violation from a law yes the f b i if it's it if it becomes suspicious or they're not involved with the employer it needs a warrant to get into that office there right if the person has a reasonable expectation of privacy and let's assume that there's a a lock off those the person is not a shared office people can come in and out during the day but when the i goes there the person is not there the office is locked the f b i goes in and i assume that they need a warrant to do that you're correct your honor the cases have been pretty clear that on the last office the cases have found that persons have a reasonable expectation of privacy in that office and a search conducted of the office and this was a locked office it was a locked office but there was no search conducted of the office this was but there was a search in the sense that the i had to get into the locked office in order to get a computer or that was not done by the f b i that was done by the employer well you want your first comes down and disconnects right then leaves the investigation going on the distinction here that the united states is that there is there was no evidence of child pornography found in anything but the computer in th you had a reasonable expectation of privacy in which items they did such as desks and file cabinets or places that are open to other employees that they wouldn't have an expectation of privacy and in th case it really goes down to the basic question of whether this employee had a reasonable expectation of privacy in this computer and the factual circumstances surrounding the computer that's where the evidence was discovered you have also though c m s the acknowledgment that these true types of investigations will meld together at times they will be a violation of work related permissible here from the government's point of view is that it was not the f b i but the employer acting of the f b i agents or the employers acting in its own instance for its own purposes as well as the f b i s purposes and they can't be very factually similar although there was a warrant obtained in that case that wasn't addressed by the court as to whether that was needed or appropriate the language in the simons case and there is language melding between the employers investigation and the criminal investigation and that they cannot be separate and that's that is what we're relying on in the end the principle here  did have an expectation of privacy and that is not what we have here but the but the court found that there was an expectation of privacy in a shared analog on first and the investigation was undertaken with the and depending on what the item is that is what you decide whether the individual has a reasonable expectation of privacy in this case it's the government's position that mr graner did not have a reasonable expectation of privacy in the computer we understand that and i think there's common ground he does have some expectation of privacy with respect to entry into his locked office yes and the to key to the case is one in which there was an entry into the office here in this case too you're saying for example he had an expectation of privacy against the f b i coming in on the sisterhood or independently of the employee the question is as i'm trying to figure out the difference between tequila and simon's if there is one well as you are you simons you're saying well this and that was employer involvement because the employer and the investigative officer were doing it at the same time and while there were two expectation of privacy and the case that some other circuit cited in the brief telling you why the fact that the then the policies the messages on the future every every circuit this case the employer started the investigation called in the f b i legitimately was able to access the second puter and turn it over to the f b i the f b i did not invade mr graner's expectation of privacy if you had one in this office they did not search or in any way go into the office to take back if you are the employer under the o'connor doctor and has an ability with out a warrant with reason to do what it did in this case i hope you don't mind us taking you over as a practical matter not only in this particular case but in this category of what obstacles to the needs of law trying to figure out what the rule out to be for this category of case which is now quite common in law private office the employer has a suspicion or maybe even direct knowledge that the computer is being used not only for college or things that violate the situation that arises and there's no doubt that the best practices in this situation would be for law enforcement to get a warrant in fact just about every case in this area that has been cited by the defendant in the government that's exactly what law enforcement know if they got to one of them would have spared you a trip when the question here and the question the court has to answer is not whether the law enforcement conducted itself with the best practices but whether they complied with the lead in any way and in fact justice o'connor in the o'connor opinion made it very clear she said for example that the hospital administrators were not law enforcement and that they were not allowed to see this what was their authorized meaning to be but if we didn't have justice o'connor's opinion in their chairs or if we were just very well there is that opinion but as judge fletcher pointed out the whole official policy and uses the computer for personal e mails or to mail order something from a catalog company or whatever and while the employee may think to himself well someday it may happen that i get in trouble for ordering mother's day flowers from the mail order company on the e mail you might not necessarily be thinking of how this could rise to the level of a federal pants this could be some sort of a of a trouble with their employer for misuse or violating a company policy it's quite another thing to think well and the f b i is going to come knocking at my door and so i think that there really is a distinction thank you all ok thank y