Johnson v. Town of Duxbury , 931 F.3d 102 ( 2019 )

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
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.
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