United States Court of Appeals 

For the First Circuit 

No. 18-2098 

BRIAN JOHNSON; KELLEY O'NEIL; CHRISTOPHER JOHNSON; MINOR CHILD, 

Plaintiffs, Appellants, 

v. 

DUXBURY, MASSACHUSSETTS; MATTHEW CLANCY, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Nathaniel M. Gorton, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Kayatta and Barron, Circuit Judges. 

Michael S. Rabieh, with whom Margaret G. Plaza and The Law 

Office of Michael S. Rabieh were on brief, for appellants. 

John J. Davis, with whom Pierce Davis & Perritano LLP was on 

brief, for appellees. 

July 29, 2019 
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BARRON, Circuit Judge. This appeal concerns a suit that 

a police officer in the Town of Duxbury, Massachusetts (the "Town") 

filed under 42 U.S.C. § 1983 in the United States District Court 

for the District of Massachusetts against the Town and the Town's 

chief of police. The suit alleged that the defendants had violated 

the police officer's rights under the Fourth Amendment of the 

United States Constitution by demanding his cell and home phone 

records in connection with the Duxbury Police Department's ("DPD") 

internal investigation of him in 2015. The District Court granted 

the defendants' motion for summary judgment. We affirm. 

I. 

Brian Johnson was employed, at all relevant times, by 

the Town as a police officer. In December 2015, Matthew Clancy, 

the Town's Chief of Police, opened an internal investigation 

concerning Johnson. "The purpose of the investigation was to 

determine whether Officer Johnson . . . violated any DPD policies, 

procedures, rules or regulations upon [his] receipt of information 

regarding" an ongoing murder investigation in a nearby town. That 

murder investigation concerned the death of Robert McKenna, whose 

body was found in September 2015, and the five firearms that were 

stolen from the scene of that crime.

The undisputed record shows that Brianna St. Peter, an 

acquaintance of Johnson, called Johnson in October 2015 about the 

arrest of a potential suspect in the McKenna murder, that Johnson 
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was subpoenaed in November 2015 to testify before a grand jury 

about the McKenna murder, and that Johnson did not inform Clancy 

or any of his superiors at the DPD about either event. Clancy 

opened the internal investigation into Johnson after he 

"receiv[ed] information" that Johnson "may have had knowledge of 

the McKenna murder and/or of the stolen firearms, yet failed to 

disclose such knowledge to the investigating authorities, [his] 

superior officers or the DPD." 

In February 2016, as part of that investigation, Clancy 

"order[ed]" Johnson -- in a formal letter -- to provide "a copy of 

[his] Phone Records for the period of time including July 1, 2014 

through to February 15, 2016," including "the records for any phone 

numbers; landline(s) or cell phone(s) and any other cell phone 

records registered in [his] name and/or used by [him] during that 

time period." The letter further stated that "[t]he records for 

cellphones should include a listing (phone numbers) for all 

incoming and outgoing calls and text messages made by [Johnson] 

and to [him] from those cell phone[s] registered to [him] for the 

time period requested" and that "[t]he record(s) should be issued 

by the cell phone provider . . . in the normal format." The letter 

informed Johnson that "[f]ailure to conform to this 

order . . . will be considered a violation[] of the department's 
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rules and regulations . . . and will result in discipline up to 

and including termination."1

Johnson thereafter retained counsel through the union. 

That counsel informed Clancy that he had advised Johnson "to 

respectfully decline to comply with" the order because it was 

"unreasonably overbroad and vague." In March 2016, Johnson's 

counsel and the Town's counsel agreed upon a "limited production 

process for the requested phone records."2 Through that process, 

Clancy would "identify certain numbers potentially relevant to the 

[internal] investigation," and Johnson would produce redacted 

records that would contain only "information regarding the 

relevant phone numbers." Clancy then sent a letter to Johnson 

that detailed "order[s]" for the revised production process, in 

 1 Johnson had been the subject of an internal investigation 

in 2013 that concerned an alleged altercation between Johnson and 

his girlfriend that had been reported to the DPD. At the 

conclusion of that investigation, Johnson signed a "last chance 

settlement agreement" with the Town, in which Johnson agreed that 

he would be subject to termination if he "engage[d] in the same or 

substantially similar conduct as the conduct described in the 

investigative report, or other serious misconduct supported by 

substantial evidence" and that any such "termination . . . would 

be ineligible for review . . . , except for whether the Town's 

actions were arbitrary, capricious, or unsupported by substantial 

evidence."

2 Although the undisputed record shows that Johnson's counsel 

and the Town's counsel had agreed upon the limited production 

process, Johnson maintains that he never consented to participate 

in that process. Johnson also maintains that he "never provided 

verbal or written consent" to his counsel to release his or his 

household members' phone records to Clancy or the Town. 
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which Clancy requested the "phone record[s] [that] will be 

redacted" to "contain[]" only "information . . . regarding the 

identified phone numbers."

Pursuant to that limited production process, Johnson's 

counsel sent the Town's counsel an email that contained a link to 

a copy of Johnson's unredacted phone records for the requested 

time period. The Town's counsel replied to the email with a list 

of nine telephone numbers "that the Duxbury Police Department [was] 

interested in." Johnson's counsel then sent the Town's counsel an 

email that contained a link to a copy of Johnson's phone records. 

That copy had been redacted to show only the incoming and outgoing 

call information that pertained to the nine phone numbers that the 

DPD had earlier identified. The Town's counsel forwarded the link 

to Clancy.

In December 2017, Johnson filed an amended complaint in 

the United States District Court for the District of Massachusetts 

against the Town and Clancy. The complaint alleged, as relevant 

here, that the Town and Clancy had compelled Johnson to turn over 

his phone records and that this constituted an "illegal warrantless 

search" in violation of Johnson's federal constitutional rights.3 

 3 Johnson also brought a claim under Massachusetts law against 

Clancy. On appeal, Johnson does not contest the District Court's 

grant of summary judgment to Clancy on that claim, so we do not 

address it. 
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The defendants moved for summary judgment. The District Court 

granted the defendants' motion, and Johnson timely appealed.

II. 

We review the grant of summary judgment de novo. See 

Sch. Union No. 37 v. United Nat'l Ins. Co., 617 F.3d 554, 558 (1st 

Cir. 2010). In undertaking that review, we "draw[] all reasonable 

inferences in favor of the nonmoving party while ignoring 

conclusory allegations, improbable inferences, and unsupported 

speculation." Shafmaster v. United States, 707 F.3d 130, 135 (1st 

Cir. 2013) (internal citations and quotation marks omitted). We 

may affirm only if the record reveals "no genuine dispute as to 

any material fact and [that] the movant is entitled to judgment as 

a matter of law." Fed. R. Civ. P. 56(a). 

III. 

Johnson brought federal constitutional claims under 

§ 1983 against both Clancy and the Town. Clancy asserted qualified 

immunity on the ground that the record did not show that he had 

violated a federal constitutional right or that any such right was 

"clearly established." See Ashcroft v. al-Kidd, 563 U.S. 731, 735 

(2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 

The Town, though not entitled to qualified immunity from § 1983 

claims, asserted that the record did not show that the alleged 

conduct violated the federal Constitution or that it constituted 

the "execution of [the Town's] policy or custom." See Monell v. 
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Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 691, 694 (1978). On 

that basis, the Town asserted it could not be subject to liability 

under § 1983. See id. 

The District Court granted summary judgment to both 

Clancy and the Town on the ground that the record did not show 

that Clancy had committed a federal constitutional violation. The 

District Court did so based on its conclusions that Clancy's order 

to Johnson to turn over his phone records was a reasonable 

"workplace search" under O'Connor v. Ortega, 480 U.S. 709, 725-26 

(1987) (plurality opinion), and, alternatively, that Johnson 

validly consented to turning over his phone records. We, too, 

conclude that the order at issue did not violate the Fourth 

Amendment, although for different reasons. Accordingly, we affirm 

the judgment below. See Gerald v. Univ. of P.R., 707 F.3d 7, 27 

(1st Cir. 2013) ("[W]e are . . . free to affirm a grant of summary 

judgment for any reason apparent in the record." (citing Jones v. 

Secord, 684 F.3d 1, 5 (1st Cir. 2012)). 

The Fourth Amendment protects "[t]he right of the people 

to be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures." U.S. Const. amend. IV. "'The 

Amendment guarantees the privacy, dignity, and security of persons 

against certain arbitrary and invasive acts by officers of the 

Government,' without regard to whether the government actor is 

investigating crime or performing another function," City of 
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Ontario, Cal. v. Quon, 560 U.S. 746, 755-56 (2010) (quoting Skinner 

v. Railway Labor Execs. Ass'n, 489 U.S. 602, 613-14 (1989)), such 

as "act[ing] in its capacity as an employer," id. at 756 (citing 

Treasury Emps. v. Von Raab, 489 U.S. 656, 665 (1989)). 

"The Fourth Amendment generally requires that the 

government obtain a warrant based on probable cause before 

conducting a search," United States v. Hood, 920 F.3d 87, 90 (1st 

Cir. 2019) (citing Katz v. United States, 389 U.S. 347, 362 (1967) 

(Harlan, J., concurring)), "with regard to those items ('persons, 

houses, papers, and effects') that it enumerates," United States 

v. Jones, 565 U.S. 400, 411 n.8 (2012). An "official intrusion 

into th[e] private sphere generally qualifies as a search," only 

where "an individual 'seeks to preserve something as private,' and 

his expectation of privacy is 'one that society is prepared to 

recognize as reasonable.'" Carpenter v. United States, 138 S. Ct. 

2206, 2213 (2018) (quoting Smith v. Maryland, 442 U.S. 735, 740 

(1979)). 

But, "the reasonableness of an expectation of privacy, 

as well as the appropriate standard for a search, is understood to 

differ according to context." O'Connor, 480 U.S. at 715. A 

majority in O'Connor thus agreed that, even where an employee has 

a reasonable expectation of privacy in the workplace context, 

"'special needs, beyond the normal need for law enforcement' make 

the warrant and probable-cause requirement impracticable for 
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government employers." Quon, 560 U.S. at 756 (quoting O'Connor, 

480 U.S. at 725). The District Court relied on the approach that 

the O'Connor plurality set out to evaluate the reasonableness of 

"searches" related to "legitimate investigations of work-related 

misconduct" and found that Clancy's request to Johnson for the 

phone records at issue was "reasonable in its inception and scope" 

and thus did not offend the Fourth Amendment. 

On appeal, Johnson argues that the District Court should 

not have applied "the holding of O'Connor . . . to the 

circumstances of this case," because Clancy's request for "the 

records of private telephones registered to Johnson and used by 

him and his household members . . . went well beyond the workplace 

environment contemplated by O'Connor." Johnson thus contends that 

the request for his phone records constituted a "search" that 

required a warrant before it could be carried out. 

We choose to bypass the dispute between the parties 

concerning "the appropriate standard of reasonableness," O'Connor, 

480 U.S. at 715, however, because we conclude that the order for 

the phone records at issue did not implicate the Fourth Amendment. 

As O'Connor explained, a government employee's "Fourth Amendment 

rights are implicated only if the conduct of the . . . officials 

at issue . . . infringe[s] 'an expectation of privacy that society 

is prepared to consider reasonable.'" Id. (quoting United States 

v. Jacobsen, 466 U.S. 109, 113 (1984)). Indeed, Johnson 
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acknowledges that he needed to have a reasonable expectation of 

privacy in the call records at issue in order to assert any Fourth 

Amendment interest in them. 

Johnson asserts that "there is no dispute that" "the 

records of private telephones registered to Johnson and used by 

him and his household members" "enjoyed a reasonable expectation 

of privacy," presumably because they contained information 

pertaining to personal -- as opposed to work-related -- calls that 

he and his household members made and received. But, we conclude 

that Johnson had no reasonable expectation of privacy in the phone 

records at issue. See Stewart v. Evans, 351 F.3d 1239, 1243-44 

(D.C. Cir. 2003) (Roberts, J.) (rejecting a government employee's 

Bivens claim that her government employer had violated the Fourth 

Amendment by taking certain documents from an office safe based on 

the threshold issue that the employee had no reasonable expectation 

of privacy in the safe or in the documents under the third-party 

doctrine). 

Every circuit to have considered the question has held 

that an individual has no reasonable of expectation of privacy in 

a phone service provider's records of the phone numbers that he 

has dialed or from which he has received calls. See, e.g., United 

States v. Clenney, 631 F.3d 658, 666-67 (4th Cir. 2011) (finding 

no reasonable expectation of privacy in "cellular phone records," 

even though the records include "basic information regarding 
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incoming and outgoing calls on that phone line"); United States v. 

Plunk, 153 F.3d 1011, 1020 (9th Cir. 1998) ("Under longstanding 

Ninth Circuit precedent, individuals possess no reasonable 

expectation of privacy in telephone records." (citing United 

States v. Lustig, 555 F.2d 737, 747 n.10 (9th Cir. 1977)); 

Reporters Comm. for Freedom of Press v. Am. Tel. & Tel. Co., 593 

F.2d 1030, 1045 (D.C. Cir. 1978) ("[S]ubscribers have no Fourth 

Amendment basis for challenging Government inspection of their 

toll records, since subscribers . . . have taken the risk in 

revealing their affairs to third parties that the information will 

be conveyed by that person to law enforcement officials . . . ."); 

Nolan v. United States, 423 F.2d 1031, 1044 (10th Cir. 1969) ("We 

fail to see how the Fourth Amendment is applicable to the keeping 

of telephone company records. There is no suggestion that these 

records represent anything other than records normally kept in the 

ordinary course of business on all customers' phones."); DiPiazza 

v. United States, 415 F.2d 99, 103–04 (6th Cir. 1969) ("[O]ne who 

uses a telephone to make long distance calls is not entitled to 

assume that the telephone company will require a warrant before 

submitting its records in response to an IRS summons."). 

We see no reason to conclude otherwise. The decisions 

quoted above rely on what is known as the third-party doctrine, 

under which the United States Supreme Court has "held that a person 

has no legitimate expectation of privacy in information he 
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voluntarily turns over to third parties, . . . even if the 

information is revealed on the assumption that it will be used 

only for a limited purpose." Carpenter, 138 S. Ct. at 2216 

(internal quotation marks omitted). 

The Court first announced the third-party doctrine in 

United States v. Miller, 425 U.S. 435 (1976), where it held that 

a customer can "assert neither ownership nor possession" over bank 

records, including the customer's "original checks and deposit 

slips." Id. at 440, 442-43. The Court noted that "th[ose] 

documents . . . are not respondent's 'private papers'" but are 

instead "the business records of the banks." Id. at 440. Thus, 

the Court concluded, the customer can assert no reasonable 

expectation of privacy in those records after "tak[ing] the risk, 

in revealing his affairs to another, that the information will be 

conveyed by that person to the Government." Id. at 443. 

Soon thereafter, the Court relied on similar logic in 

Smith to hold that a phone user has no "'legitimate expectation of 

privacy' regarding the numbers he dialed on his phone" that are 

captured by a pen register. Smith, 442 U.S. at 742. That is 

because, the Court explained, "[t]elephone users . . . typically 

know that they must convey numerical information to the phone 

company; that the phone company has facilities for recording this 

information; and that the phone company does in fact record this 

information for a variety of legitimate business purposes." Id. 
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at 743. Thus, the Court explained, "it is too much to believe 

that telephone subscribers, under these circumstances, harbor any 

general expectation that the numbers they dial will remain secret." 

Id. That is so even where an individual "dialed the number on his 

home phone rather than on some other phone," given that he "had to 

convey that number to the telephone company in precisely the same 

way." Id. 

Smith and Miller, therefore, comfortably support the 

conclusion that a phone subscriber has no reasonable expectation 

of privacy in the phone service provider's records of the numbers 

that the subscriber has dialed and from which the subscriber has 

received calls, just as the numerous circuits cited above have 

held. There is no dispute that a phone service provider creates 

these call records "to memorialize its business transaction with 

the target, rather than simply recording its observation of a 

transaction between two independent parties." In re Application 

of the United States for Historical Cell Site Data, 724 F.3d 600, 

611 (5th Cir. 2013).4 After all, the records contain primarily 

 4 The records at issue also contained information about the 

length of each incoming and outgoing call, as well as each call's 

"[r]ate [c]ode" and any associated "[a]irtime [c]harges" or 

additional charges. Johnson does not appear to assert a privacy 

interest in these particular aspects of the information contained 

in the phone records at issue. In any event, that information 

appears to be of a type that would provide a basis for concluding 

that it, too, "memorialize[s] [the provider's] business 

transaction with the target, rather than simply recording its 
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"addressing information, which the business needs to route those 

communications appropriately and efficiently." Id.; see also 

United States v. Forrester, 512 F.3d 500, 511 (9th Cir. 2008) 

(noting that there is no reasonable expectation of privacy in 

"whatever information people put on the outside of mail" (citing 

Jacobsen, 466 U.S. at 114; United States v. Van Leeuwen, 397 U.S. 

249, 251–52 (1970); Ex parte Jackson, 96 U.S. 727, 733 (1877))).5 

And, Johnson points to nothing in the record that would show "the 

existence of any agreement [by the provider] with its customers to 

keep their usage . . . records confidential" or that "the nature 

of the . . . records gave . . . customers [any] reason to expect 

that they would be kept confidential from the government." United 

States v. Golden Valley Elec. Ass'n, 689 F.3d 1108, 1116 (9th Cir. 

2012). 

 

observation of a transaction between two independent parties." 

Id. 

5 By contrast, "[c]ommunications content, such as the contents 

of letters, phone calls, and emails, which are not directed to a 

business, but simply sent via that business, are generally 

protected." In re Application of the United States for Historical 

Cell Site Data, 724 F.3d at 611; see also, e.g., Jacobsen, 466 

U.S. at 114 ("Letters and other sealed packages are in the general 

class of effects in which the public at large has a legitimate 

expectation of privacy; warrantless searches of such effects are 

presumptively unreasonable."); United States v. Warshak, 631 F.3d 

266, 288 (6th Cir. 2010) ("The government may not compel a 

commercial [internet service provider] to turn over the contents 

of a subscriber's emails without first obtaining a warrant based 

on probable cause." (emphasis added)). 
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Johnson does identify one possible ground of distinction 

from this body of precedent: Clancy asked Johnson, and not the 

phone service provider, for the call records at issue. To be sure, 

the undisputed record shows that the records that Clancy requested 

were to "be issued by the cell phone provider . . . in the normal 

format." And, the undisputed record shows that the records that 

were turned over were in fact obtained by Johnson from the 

provider.6 But, Johnson nonetheless suggests that the fact that 

Clancy asked Johnson to first obtain a copy of the records at issue 

from the provider made them Johnson's "private property" and for 

that reason alone gave him a reasonable expectation of privacy in 

them. 

Consistent with our decision in Alinovi v. Worcester 

Sch. Comm., 777 F.2d 776 (1st Cir. 1985), however, Johnson's 

receipt of a copy of those records from the provider did not 

subsequently establish any reasonable expectation of privacy in 

the phone call information contained in those documents.7 Alinovi 

 6 The undisputed record shows that Johnson obtained a copy of 

the phone records at issue from the carrier, that Johnson gave the 

records to his counsel, that Johnson's counsel scanned the copy of 

the records into a PDF format, that Johnson's counsel uploaded the 

PDF of the records to a Dropbox account that Johnson's counsel had 

created, and that Johnson's counsel sent an email with the Dropbox 

link to the copy of the records to the Town's counsel. 

7 Johnson does contend that Clancy "should have obtained th[e] 

information" at issue "through St. Peter's telephone records, 

which they could not have obtained without a warrant" and that 

"[b]y ordering Johnson to turn over his telephone records, Clancy 

may well have been attempting to circumvent the need for a 
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held that a public school teacher "could [not] have reasonably 

expected her [term] paper to remain private" after submitting the 

paper to her professor and to a school administrator and expressly 

rejected the argument that her "right [to privacy] was subsequently 

reinvoked when the paper was returned to her" because we concluded 

that she "had already frustrated her privacy expectation by 

voluntarily and unconditionally giving her paper . . . to her 

professor and [the school administrator]." Id. at 784-85. The 

same logic decides this case. Johnson should not reasonably have 

expected privacy in his phone service provider's call records, 

simply because he was in physical possession of a copy of them. 

IV. 

 For the foregoing reasons, we affirm the District 

Court's grant of summary judgment to the defendants. Each party 

shall bear its own costs. 

 

warrant -- any warrant." He points to Clancy's testimony that he 

was "not . . . familiar with the means to secure a search warrant 

in a work-related matter." But, Johnson does not explain how the 

Fourth Amendment would have required Clancy to get a warrant before 

requesting the records at issue from St. Peter's or Johnson's phone 

service provider.