either approach that more than o'connor the search at issue here did not violate the fourth amendment either because mr lang didn't have a reasonable expectation of privacy or because it was just a reasonable search to retrieve work related materials  the reason he had no reasonable expectation of privacy is because he brought his x journal hard drive to work he connected it to his work computer and thus to the city's network and then he stored work files on his hard drive there's also in the record i would say i mean that he was storing his personal files that were on the on his own hard drive they were also on the work network now he denies that in his but if you look at what he said in his deposition deposition testimony i think it's fair to say let me ask you this question when this device was found that this is the equivalent of a thumb drive right i'm not exactly sure of the size i think it might be a little bit bigger but it's ok but where was it it was in the office someplace it was in his office connected to his computer so when you saw it was connected at that point by a cable to the city's computer yes was it was an open was it running well my understanding from reading the record is that he had been gone from his job for a while so at but he had left everything you know he just left his office and everything was there so guinness testimony is that he was so here's the reason i'm asking and this may ultimately make any difference but you keep saying it was connected there is a wire that goes from the hard drive to the laptop part of the p c i understand that but it was not on the network it was not connected to the network itself in terms of it running at the time that somebody came in was a i guess i'm not sure how to answer that all my understanding is just that mcginnis went in and he sat down  the computer turned it on and then when you're on your computer you can access the different drives so since this dry was connected to the computer he could see what was on it so he had to turn on the computer and then he had to click on the icon to go to the c drive or whatever  was in order to be able to access something that was stored on that external storage device so if this was the equivalent of a file cabinet the file cabinet would have been in the office he would have had to go to the file cabinet open the drawer he would have had to look at the folders and pull out the folders that he wanted to look at yes now if it had been a personal file cabinet even though it had a folder in it that appeared to be city information would he have had the opportunity to look at all of the other folders in that file cabinet merely because there was one folder of the city's well i guess the most analogous facts are in that case we're not asking you analogous facts in another case i'm just asking for the city's position well would then be able to look at all the other file folders in the traditional cabinet situation i believe so because if he knew that there was work related materials in there he would have to go through them all to find out which was working which was personal i guess in your example maybe he only knows that there's one folder and he went in to just get that one folder and he will then have to look for it in your next position would have to be he could take all the folders out of the file drawer take them down to the janitor and ask that they destroying all the personal property in my hypothetical file cabinet because there were folders in there that appeared to have city material i guess i think it might be different if it's a paper file as opposed to looked electronic well that's what i'm trying to figure out to you the only reason you say it's the same is because it was connected but it wasn't like this was up and running it readily accessible well i think it's somewhat different if you utilize the network to download work files to his hard drive apparently yes didn't use the network to get all the personal property that hard drive because you can't download  using the network because it was never on the network well that's a big issue you had with the personal stuff out of photographs or whatever they were many took the hard drive home i believe that the personal files were also on the on the network and i know that the other side disagrees so i'm just but i'm basing my statement on his deposition testimony and i can give you a page id number it's page id five nineteen and they had been asking him ok who knows that you had work materials on this hard drive and then they asked him who knows that you had personal items and he that everybody knew that i had my personal documents by the mere fact that i told them that its meaning the hard drive would back up everything off my main computer they knew it was backing up some personal items as well so it's me and i mean i know we have to go by what the plaintiffs does so that he doesn't you know that backing it up off of off of the city's network he apparently used it to back up the stuff at home as well isn't that what that means i guess you could be interpreted that there is not i'm asking these questions as it seems to me this whole business about being able to look at all the city files excuse me the personal files or as the alternative simply destroy all the personal files is a lot closer question than you might seem to think that it is and i'm wondering if the easier way to look at this was whether it was clearly established what the city was entitled to do in connection with this mixed city personal stuff on an external hard drive for which as far as i know we have no cases why would definitely agree that at the very least he's entitled apartheid munity because o'connor didn't set forth the rules regarding the actual seizure part and i believe that actually in judge keith's opinion james pointed that out  james you also said well we're not going to decide the seizure issue either because we decided the search was illegal so hence the seizures are legal so there was no judge relied on her and relied on james or any other cases that you're aware of that address an analogous situation as far as deleting files that's a situation just like this where again i sat down he looked at the list and it appeared to be majority he actually thought they were all work files and so instead of going through each one he just deleted it returned the actual hard drive i didn't see a case like that i mean the closest i could come to was the file cabinet and the seizure issue was actually raised in there but i don't believe that the court addressed it it just said that there most analogous but yes there isn't a rule there is no rule as far as the seizure is and also i would argue that it's also not clearly established with the search and if it is i think it's more on our side that it was reasonable because they knew that they were with related materials there in addition to the judge from peaks point about the lack of a clearly established law and obviously we can hear if there is such a law as to the sorts of devices you know as opposed to filing cabinets it seems like this case is better analyzed under sort of a seizure rubric rather than search i mean the  destruction of these things was a seizure that summer search right ok that matter in terms of the legal analysis well i would argue that it was reasonable under the circumstances because there were well when you look at the file list i believe it was nine hundred sixty seven files now i didn't realize that some of those were folders a couple of them or folders and they contained hundreds of photographs so it might be more double that that might be more like seventeen or eighteen hundred files so i think it was reasonable under the circumstances for him to just wipe it because he's a public employee the city of benton harbor is under an emergency financial manager is he going to go through and look at each and every document and make a judgment on whether it or a practical argument but in terms of the law practical standards we're the cases that are out there does does the distinction here between search which the probably was to some extent but seizure does that matter in our analysis while it's still a fourth amendment so i would say it still has to be reasonable for my explanation that i just gave and also i guess i would go back to the clearly established because the workplace cases don't really get into seizure there was in a rule there's an act to really establish will for him to know if that was ok or not but i would just say for reasonable practical purposes but let's assume that there was another kind of an object in that office searching for what would be a good analogy and this might not be good oh let's say there's a gun in the office this guy was the police chief they're not sure whether it's his own personal gun or whether it's the city's gun so they destroy it would that be legitimate because i don't know why they would destroy it well they don't know why the destroyed all the personal folders either so that doesn't help us i say well i would say they destroyed the personal folders because they had to give him back the device they were on i mean i guess is this distinction between the device versus the files that are on it but he wanted his device returned and so they returned it but they just had to take off the work file so instead of making the distinction they just wiped it clean which i think for the practical reasons i just stated as far as the gun i mean i guess i mean i guess maybe not a good example because then you'd be able to tell who's going to it was and so maybe it would be wrong if they knew it was his and they just destroyed it because that was a lot easier to just hand back to him they knew some of the folders were his and he mcginnis is testimony is that he just saw the list and they appeared to be the majority work now may be i mean he was he didn't testify that he had done if i had them all as city property you know he thought that it was majority of the a proper approach was to destroy city property he said he knew that there were personal items on there and he didn't want to take the time to separate them out  so we have what this this person this expediency exception now you're advocating for the fourth amendment well i would say in this situation because because he brought this device and you can you can keep thousands of documents on it and he put work materials and yeah you would have to could he could name something a work file but where he could need something a personal file and it could actually be a work  you're not going to know until you look till you look at those and i guess i would say i'm i'm not generally advocating for it expediency in the fourth amendment but even the supreme court said the employee may have a way to exposing personal belongings at work by simply leaving them at home so i mean that's the guidance we get from the supreme court and then otherwise we have are we find ourselves in a situation like this so i'm sorry all right thank you you'll have your rebuttal family let me address judge mckee's question first question this was it an external hard drive belonging to roger language she hooked up to a docking station which then was hooked up to the computer owned by the city which was assigned to him was a laptop the device itself was not part of any of the network in the city in fact the testimony was that mcginnis had to go to computer in order to access that hard drive in according to the acceptable use policy by the city does it matter that when he left it there he didn't just disconnect it seems to me your argument i better if it wasn't physically connected to the law he had to do connected and put in a personal file cabinet that would be you know the best scenario for for us but when you say it's not networked again it depends on how you define it when you set up part of the network it just depends on how you define the defining network is computers connected to one another and so if he went to his computer computers are nothing but it but hard drives and processors this happen to be an turning to the network but well that's because you say because you're using those words it wasn't external to the network any more than the p c was external to the network they're all connected together when they're wired all user passwords are strictly confidential in order to ensure individual accountability for system usage security and integrity employees show only logon in the system using their their own password s mcginnis couldn't even get into the office computer of landing without an i t guy or using his password in those passwords are confidential so that anybody who using it can't blame like pornography being on his computer because someone else used his office computer you would you would agree that it was that the employer had a legitimate interest in wanting to remove work files from this hard drive before they returned they would certainly have i think judge scalia and plurality and o'connor talked about that so the answer is yes the answer is yes but my point is that mcginest testified that he didn't know there were any city documents on that external hard drive until he got into the extra money had to because he can't just hand it back without removing the documents right well once he got in there he can't invade the privacy he knows it's as judgment he points out your client made it a part of the network so there's a possibility that there are work documents that he should not be able to take out of the workplace and they they had to they had to go in there to one way or another remove them i guess you're complaining about the way in which they removed their two six one is the invasiveness of the search and then the second part goes to that part of the o'connor toes there's no invasive they're actually wasn't a search your complaint is you wanted them to go through and separate these out seems to me that's a search what you're complaining about is not a search it's a seizure they were destroyed that's certainly part of our argument there was a search and destroy i mean there to look on his work computer to see what was on that external hard drive that was connected to the work computer based upon the test in o'connor where you have to have a reasonable suspicion so if there are look at this he testified that he had no idea that there were city documents on the hard drive until he got into the car it was a police officer any knowledge that the other police officers had would be attributed to him right but that's what we're looking at and you know  why wouldn't that be true with respect to this administrator i just don't understand how you can say they didn't even have a right to look to see if there was city material on the hard drive that makes no sense what they do once they discover that there are city files on the hard drive that's a separate question so really what we're talking about here it seems to me is the remedy what were they supposed to do and what you're complaining about is their remedy was to just wipe it all out device was actually backing up his home computer as well i'm just this seems like a giant waste of everybody's time frankly between people that are unhappy that they got fired or  the city i mean i understand if you've got an employment claim in this race discrimination or something like that i get that but here what was the information of his personal nature that was on this hard drive also on his p c at home i don't know if was just p c at home it was not on his p c at work i got that it was only on this external hard drive if this is he couldn't have gotten the personal stuff on there through the city computer you grew that right so he had to have gotten it on this hard drive through his personal computer at home and he took the device home every night now if all of the stuff that's on this hard drive is also on the p c what on earth are you claiming is the damages from from destroying what essentially is the backup of these photographs well there's nothing on the record to indicate that he also his personal items on the on his home computer the only evidence that we have is that it's on this external device is he claiming that things were destroyed that he that he's lost forever is claiming that his personal items were destroyed is damages here because damages are the laws of all of his photos eight hundred ninety nine items by even last are they on his how are they on his home computer they're not on his home computer but i'm just trying to they're not address to say that this remedy assuming that it was not a very good remedy that the city chose when they found there were personal files and work files on this extra no hard drive violated his constitutional rights  we have those cases a do with a seizure and if you look just tell me what judge bell only relied upon o'connor and james as i read his opinion he talked to some extent of the actual seizure o the items i used to tell me what your best cases are to say that it was that the law that was clearly established that they couldn't do what they did which the real hampton case  not and it was eighty seven i mean there's a profit i mean you really have a problem here i mean one of your brief has a few has a paragraph or two at the end that deals with the clearly established thing i mean that's a big deal and qualified immunity ownership and it seems like we've got you know a handful of cases that are at a very high level of generality have nothing to do with computers from the eighty's filing cabinets whatever you know this case the city was presented with a problem that was a problem of your client's creation they tried to figure out the best way to do it they did what they did the question is was there you know a supreme court case case that made clear they couldn't do what they did and i mean just to build on judgment key question you know if o'connor and james don't make it clear that you can't delete the files on the hard drive as an alternative to more invasively going through them what cases do you have that would speak with that kind of specificity that supreme court sometimes in reversing us has said the cases have to speak with we don't have a deletion of personal files on the hard drive type of case but i think those are so closely analogous that that's why we rely on them so heavily right and i think there's sufficient quite frankly i mean the more egregious the violation the more general the case can become i think too to me just host of the clearly established law let me ask you this question and let's say there's a filing cabinet somebody has been terminated department goes in there they oh they're going through the cabinets most of the stuff is work  stuff they open one and it's got work stuff intermingled with very personal stuff that they just don't want to have anything to do with and so rather than in there not even folders it's all just sheets of paper mixed together rather than go through it all they just incinerate is there a case that says that is so they don't look at it apart from just like well i don't want to get into this you know there's like letters to you know somebody they should be writing letters to i don't want to get into this and just they go over and they just dump it and center a bit is there anything that says that kind of seizure is you know not permissible for anderson in your hypothetical correctly and official from the city in this case a deputy director of the police department finds personal items you know so personal items but he's not going through them and age by page evident that belongs to the person they brought it in but they've put work stuff in there which cities in total take out is too lazy or careless to go through it's not lazy or careless they don't this stuff is so personal and sensitive and it looks like you know just copies or something or enough and then we destroy it turn it so it's there's no case and then there's probably a good reason because it's pretty audacious in fact that's the word used going judge bell in this case to go ahead and take all of the personal items in essence we don't have a seizure case sort of in the physical world that would parallel this not that i've been able to find or that you know you're a little salt i don't think it's all about our take is which i've been referring to as as o'connor and that's speaking about whether there's a reasonable expectation of privacy that's the search it's not the seizure i think so let's talk just for a second about this is not a case where like dr otay had stuff in a desk in a file cabinet he had it on a hard drive that was physically connected by wire to the city's computer or and he told his colleagues that he was backing up city files on that hard drive so i'm trying to figure out why does he have an expectation privacy that society would consider to be reasonable under the fourteenth amendment to say that nobody can can then look to see what's on that hard drive why would we consider that to be reasonable well policy the policy talks about the city not my argument is not it's not part of the network it's sort of a dead end a storage device vent you can access well i'm through the office computer with a password but he didn't have  privacy interest in the city computer on his desk duty not not not so you open up that computer whether it had a password or not there's no reasonable expectation of privacy that somebody has on the city computer itself this just happens to be a storage device that's off to the side as a part as opposed to in inside the c p u i say it's off to the side so much that it because you're going to sue the computer why is that you have city drives then you have the hard drive you're speaking to the chair of our i t committee just so you know i've been listening for several hours and i had to i'm trying to figure out against it i can tell me if he had disconnected this hard drive and it was just sitting in a desk drawer or something like that i would at least understand your argument but when he chooses to leave it there any chooses to hook it up and he doesn't otherwise protect the hard drive itself so that once somebody is on the network it doesn't really matter whether they click hard drive a b c or d or network drive a b c or d or cloud or whatever you have ready access to it i'm just trying to find out from a threshold standpoint why you have a reasonable expectation of privacy in determining whether the city information on that that hard drive understood it's just it's was the answer the question is the answer is that the hard drive is not part of that city computer it's one step removed from it is what i'm saying because it's not part of those city drives it's something that is unique to that particular hard to have and the hard drive as everybody knew was personal the device itself was personal so briefcase is locked you open it up and then you destroy everything in it all right i thank you thank you as i read just to reiterate that everything in my brief that we believe the search and seizure were both reasonable but that if you're not going to go that way he's definitely entitled to qualified immunity because the only cases we have are james and i hire and they didn't even address the seizure issue i would just and with that unless you have any other questions i think thank you your arguments case will be submitted