OPINION OF THE COURT
ONTARIO V. QUON
560 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 08-1332
CITY OF ONTARIO, CALIFORNIA, et al.,
PETITIONERS
v. JEFF QUON et al.
on writ of certiorari to the united states court of
appeals for the ninth circuit
[June 17, 2010]
Justice Kennedy delivered the
opinion of the Court.
This case involves the assertion
by a government employer of the right, in circumstances to be
described, to read text messages sent and received on a pager the
employer owned and issued to an employee. The employee contends
that the privacy of the messages is protected by the ban on
“unreasonable searches and seizures” found in the Fourth Amendment
to the United States Constitution, made applicable to the States by
the Due Process Clause of the Fourteenth Amendment.
Mapp
v.
Ohio,
367 U. S. 643 (1961).
Though the case touches issues of far- reaching significance, the
Court concludes it can be resolved by settled principles
determining when a search is reasonable.
I
A
The City of Ontario (City) is a
political subdivision of the State of California. The case arose
out of incidents in 2001 and 2002 when respondent Jeff Quon was
employed by the Ontario Police Department (OPD). He was a police
sergeant and member of OPD’s Special Weapons and Tactics (SWAT)
Team. The City, OPD, and OPD’s Chief, Lloyd Scharf, are petitioners
here. As will be discussed, two respondents share the last name
Quon. In this opinion “Quon” refers to Jeff Quon, for the relevant
events mostly revolve around him.
In October 2001, the City
acquired 20 alphanumeric pagers capable of sending and receiving
text messages. Arch Wireless Operating Company provided wireless
service for the pagers. Under the City’s service contract with Arch
Wireless, each pager was allotted a limited number of characters
sent or received each month. Usage in excess of that amount would
result in an additional fee. The City issued pagers to Quon and
other SWAT Team members in order to help the SWAT Team mobilize and
respond to emergency situations.
Before acquiring the pagers, the City
announced a “Computer Usage, Internet and E-Mail Policy” (Computer
Policy) that applied to all employees. Among other provisions, it
specified that the City “reserves the right to monitor and log all
network activity including e-mail and Internet use, with or without
notice. Users should have no expectation of privacy or
confidentiality when using these resources.” App. to Pet. for Cert.
152a. In March 2000, Quon signed a statement acknowledging that he
had read and understood the Computer Policy.
The Computer Policy did not apply, on its
face, to text messaging. Text messages share similarities with
e-mails, but the two differ in an important way. In this case, for
instance, an e-mail sent on a City computer was transmitted through
the City’s own data servers, but a text message sent on one of the
City’s pagers was transmitted using wireless radio frequencies from
an individual pager to a receiving station owned by Arch Wireless.
It was routed through Arch Wireless’ computer network, where it
remained until the recipient’s pager or cellular telephone was
ready to receive the message, at which point Arch Wireless
transmitted the message from the transmitting station nearest to
the recipient. After delivery, Arch Wireless retained a copy on its
computer servers. The message did not pass through computers owned
by the City.
Although the Computer Policy did not cover
text messages by its explicit terms, the City made clear to
employees, including Quon, that the City would treat text messages
the same way as it treated e-mails. At an April 18, 2002, staff
meeting at which Quon was present, Lieutenant Steven Duke, the OPD
officer responsible for the City’s contract with Arch Wireless,
told officers that messages sent on the pagers “are considered
e-mail messages. This means that [text] messages would fall under
the City’s policy as public information and [would be] eligible for
auditing.” App. 30. Duke’s comments were put in writing in a
memorandum sent on April 29, 2002, by Chief Scharf to Quon and
other City personnel.
Within the first or second billing cycle after
the pagers were distributed, Quon exceeded his monthly text message
character allotment. Duke told Quon about the overage, and reminded
him that messages sent on the pagers were “considered e-mail and
could be audited.”
Id., at 40. Duke said, however, that
“it was not his intent to audit [an] employee’s text messages to
see if the overage [was] due to work related transmissions.”
Ibid. Duke suggested that Quon could reimburse the City
for the overage fee rather than have Duke audit the messages. Quon
wrote a check to the City for the overage. Duke offered the same
arrangement to other employees who incurred overage fees.
Over the next few months, Quon exceeded his
character limit three or four times. Each time he reimbursed the
City. Quon and another officer again incurred overage fees for
their pager usage in August 2002. At a meeting in October, Duke
told Scharf that he had become “ ‘tired of being a bill
collector.’ ”
Id., at 91. Scharf decided to determine
whether the existing character limit was too low—that is, whether
officers such as Quon were having to pay fees for sending
work-related messages—or if the overages were for personal
messages. Scharf told Duke to request transcripts of text messages
sent in August and September by Quon and the other employee who had
exceeded the character allowance.
At Duke’s request, an administrative assistant
employed by OPD contacted Arch Wireless. After verifying that the
City was the subscriber on the accounts, Arch Wireless provided the
desired transcripts. Duke reviewed the transcripts and discovered
that many of the messages sent and received on Quon’s pager were
not work related, and some were sexually explicit. Duke reported
his findings to Scharf, who, along with Quon’s immediate
supervisor, reviewed the transcripts himself. After his review,
Scharf referred the matter to OPD’s internal affairs division for
an investigation into whether Quon was violating OPD rules by
pursuing personal matters while on duty.
The officer in charge of the internal affairs
review was Sergeant Patrick McMahon. Before conducting a review,
McMahon used Quon’s work schedule to redact the transcripts in
order to eliminate any messages Quon sent while off duty. He then
reviewed the content of the messages Quon sent during work hours.
McMahon’s report noted that Quon sent or received 456 messages
during work hours in the month of August 2002, of which no more
than 57 were work related; he sent as many as 80 messages during a
single day at work; and on an average workday, Quon sent or
received 28 messages, of which only 3 were related to police
business. The report concluded that Quon had violated OPD rules.
Quon was allegedly disciplined.
B
Raising claims under Rev. Stat.
§1979, 42 U. S. C. §1983; 18 U. S. C. §2701
et
seq., popularly known as the Stored Communications Act (SCA);
and California law, Quon filed suit against petitioners in the
United States District Court for the Central District of
California. Arch Wireless and an individual not relevant here were
also named as defendants. Quon was joined in his suit by another
plaintiff who is not a party before this Court and by the other
respondents, each of whom exchanged text messages with Quon during
August and September 2002: Jerilyn Quon, Jeff Quon’s then-wife,
from whom he was separated; April Florio, an OPD employee with whom
Jeff Quon was romantically involved; and Steve Trujillo, another
member of the OPD SWAT Team. Among the allegations in the complaint
was that petitioners violated respondents’ Fourth Amendment rights
and the SCA by obtaining and reviewing the transcript of Jeff
Quon’s pager messages and that Arch Wireless had violated the SCA
by turning over the transcript to the City.
The parties filed cross-motions
for summary judgment. The District Court granted Arch Wireless’
motion for summary judgment on the SCA claim but denied
petitioners’ motion for summary judgment on the Fourth Amendment
claims.
Quon v.
Arch Wireless Operating Co., 445
F. Supp. 2d 1116 (CD Cal. 2006). Relying on the plurality
opinion in
O’Connor v.
Ortega,
480 U. S. 709, 711
(1987), the District Court determined that Quon had a reasonable
expectation of privacy in the content of his text messages. Whether
the audit of the text messages was nonetheless reasonable, the
District Court concluded, turned on Chief Scharf’s intent: “[I]f
the purpose for the audit was to determine if Quon was using his
pager to ‘play games’ and ‘waste time,’ then the audit was not
constitutionally reasonable”; but if the audit’s purpose “was to
determine the efficacy of the existing character limits to ensure
that officers were not paying hidden work-related costs, … no
constitutional violation occurred.” 445 F. Supp. 2d, at
1146.
The District Court held a jury trial to
determine the purpose of the audit. The jury concluded that Scharf
ordered the audit to determine the efficacy of the character
limits. The District Court accordingly held that petitioners did
not violate the Fourth Amendment. It entered judgment in their
favor.
The United States Court of Appeals for the
Ninth Circuit reversed in part. 529 F. 3d 892 (2008). The
panel agreed with the District Court that Jeff Quon had a
reasonable expectation of privacy in his text messages but
disagreed with the District Court about whether the search was
reasonable. Even though the search was conducted for “a legitimate
work-related rationale,” the Court of Appeals concluded, it “was
not reasonable in scope.”
Id., at 908. The panel disagreed
with the District Court’s observation that “there were no
less-intrusive means” that Chief Scharf could have used “to verify
the efficacy of the 25,000 character limit … without intruding on
[respondents’] Fourth Amendment rights.”
Id., at 908–909.
The opinion pointed to a “host of simple ways” that the chief could
have used instead of the audit, such as warning Quon at the
beginning of the month that his future messages would be audited,
or asking Quon himself to redact the transcript of his messages.
Id., at 909. The Court of Appeals further concluded that
Arch Wireless had violated the SCA by turning over the transcript
to the City.
The Ninth Circuit denied a petition for
rehearing en banc.
Quon v.
Arch Wireless Operating
Co., 554 F. 3d 769 (2009). Judge Ikuta, joined by six
other Circuit Judges, dissented.
Id., at 774–779. Judge
Wardlaw concurred in the denial of rehearing, defending the panel’s
opinion against the dissent.
Id., at 769–774.
This Court granted the petition for certiorari
filed by the City, OPD, and Chief Scharf challenging the Court of
Appeals’ holding that they violated the Fourth Amendment. 558 U. S.
___ (2009). The petition for certiorari filed by Arch Wireless
challenging the Ninth Circuit’s ruling that Arch Wireless violated
the SCA was denied.
USA Mobility Wireless, Inc. v.
Quon, 558 U. S. ___ (2009).
II
The Fourth Amendment states: “The
right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not
be violated … .” It is well settled that the Fourth
Amendment’s protection extends beyond the sphere of criminal
investigations.
Camara v.
Municipal Court of City and
County of San Francisco,
387 U. S. 523, 530
(1967). “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.
Skinner v.
Railway Labor Executives’
Assn.,
489 U.
S. 602, 613–614 (1989). The Fourth Amendment applies as well
when the Government acts in its capacity as an employer.
Treasury Employees v.
Von Raab,
489 U. S. 656, 665
(1989).
The Court discussed this
principle in
O’Connor. There a physician employed by a
state hospital alleged that hospital officials investigating
workplace misconduct had violated his Fourth Amendment rights by
searching his office and seizing personal items from his desk and
filing cabinet. All Members of the Court agreed with the general
principle that “[i]ndividuals do not lose Fourth Amendment rights
merely because they work for the government instead of a private
employer.” 480 U. S., at 717 (plurality opinion); see also
id., at 731 (Scalia, J., concurring in judgment);
id., at 737 (Blackmun, J., dissenting). A majority of the
Court further agreed that “ ‘special needs, beyond the normal
need for law enforcement,’ ” make the warrant and
probable-cause requirement impracticable for government employers.
Id., at 725 (plurality opinion) (quoting
New
Jersey v.
T. L. O.,
469 U. S. 325, 351
(1985) (Blackmun, J., concurring in judgment); 480 U. S.
,
at 732 (opinion of Scalia, J.) (quoting same).
The
O’Connor Court did disagree on
the proper analytical framework for Fourth Amendment claims against
government employers. A four-Justice plurality concluded that the
correct analysis has two steps. First, because “some government
offices may be so open to fellow employees or the public that no
expectation of privacy is reasonable,”
id., at 718, a
court must consider “[t]he operational realities of the workplace”
in order to determine whether an employee’s Fourth Amendment rights
are implicated,
id., at 717. On this view, “the question
whether an employee has a reasonable expectation of privacy must be
addressed on a case-by-case basis.”
Id., at 718. Next,
where an employee has a legitimate privacy expectation, an
employer’s intrusion on that expectation “for noninvestigatory,
work-related purposes, as well as for investigations of
work-related misconduct, should be judged by the standard of
reasonableness under all the circumstances.”
Id., at
725–726.
Justice Scalia, concurring in the judgment,
outlined a different approach. His opinion would have dispensed
with an inquiry into “operational realities” and would conclude
“that the offices of government employees … are covered by Fourth
Amendment protections as a general matter.”
Id., at 731.
But he would also have held “that government searches to retrieve
work-related materials or to investigate violations of workplace
rules—searches of the sort that are regarded as reasonable and
normal in the private-employer context—do not violate the Fourth
Amendment.”
Id., at 732.
Later, in the
Von Raab decision, the
Court explained that “operational realities” could diminish an
employee’s privacy expectations, and that this diminution could be
taken into consideration when assessing the reasonableness of a
workplace search. 489 U. S., at 671. In the two decades since
O’Connor, however, the threshold test for determining the
scope of an employee’s Fourth Amendment rights has not been
clarified further. Here, though they disagree on whether Quon had a
reasonable expectation of privacy, both petitioners and respondents
start from the premise that the
O’Connor plurality
controls. See Brief for Petitioners 22–28; Brief for Respondents
25–32. It is not necessary to resolve whether that premise is
correct. The case can be decided by determining that the search was
reasonable even assuming Quon had a reasonable expectation of
privacy. The two
O’Connor approaches—the plurality’s and
Justice Scalia’s—therefore lead to the same result here.
III
A
Before turning to the
reasonableness of the search, it is instructive to note the
parties’ disagreement over whether Quon had a reasonable
expectation of privacy. The record does establish that OPD, at the
outset, made it clear that pager messages were not considered
private. The City’s Computer Policy stated that “[u]sers should
have no expectation of privacy or confidentiality when using” City
computers. App. to Pet. for Cert. 152a. Chief Scharf’s memo and
Duke’s statements made clear that this official policy extended to
text messaging. The disagreement, at least as respondents see the
case, is over whether Duke’s later statements overrode the official
policy. Respondents contend that because Duke told Quon that an
audit would be unnecessary if Quon paid for the overage, Quon
reasonably could expect that the contents of his messages would
remain private.
At this point, were we to assume
that inquiry into “operational realities” were called for, compare
O’Connor, 480 U. S., at 717 (plurality opinion), with
id., at 730–731 (opinion of Scalia, J.); see also
id., at 737–738 (Blackmun, J., dissenting), it would be
necessary to ask whether Duke’s statements could be taken as
announcing a change in OPD policy, and if so, whether he had, in
fact or appearance, the authority to make such a change and to
guarantee the privacy of text messaging. It would also be necessary
to consider whether a review of messages sent on police pagers,
particularly those sent while officers are on duty, might be
justified for other reasons, including performance evaluations,
litigation concerning the lawfulness of police actions, and perhaps
compliance with state open records laws. See Brief for Petitioners
35–40 (citing Cal. Public Records Act, Cal. Govt. Code Ann. §6250
et seq. (West 2008)). These matters would all bear on the
legitimacy of an employee’s privacy expectation.
The Court must proceed with care when
considering the whole concept of privacy expectations in
communications made on electronic equipment owned by a government
employer. The judiciary risks error by elaborating too fully on the
Fourth Amendment implications of emerging technology before its
role in society has become clear. See,
e.g.,
Olmstead v.
United States,
277 U. S. 438 (1928),
overruled by
Katz v.
United States,
389 U. S. 347, 353
(1967). In
Katz, the Court relied on its own knowledge and
experience to conclude that there is a reasonable expectation of
privacy in a telephone booth. See
id., at 360–361 (Harlan,
J., concurring). It is not so clear that courts at present are on
so sure a ground. Prudence counsels caution before the facts in the
instant case are used to establish far-reaching premises that
define the existence, and extent, of privacy expectations enjoyed
by employees when using employer-provided communication
devices.
Rapid changes in the dynamics of communication
and information transmission are evident not just in the technology
itself but in what society accepts as proper behavior. As one
amici brief notes, many employers expect or at least
tolerate personal use of such equipment by employees because it
often increases worker efficiency. See Brief for Electronic
Frontier Foundation et al. 16–20. Another
amicus
points out that the law is beginning to respond to these
developments, as some States have recently passed statutes
requiring employers to notify employees when monitoring their
electronic communications. See Brief for New York Intellectual
Property Law Association 22 (citing Del. Code Ann., Tit. 19, §705
(2005); Conn. Gen. Stat. Ann. §31–48d (West 2003)). At present, it
is uncertain how workplace norms, and the law’s treatment of them,
will evolve.
Even if the Court were certain that the
O’Connor plurality’s approach were the right one, the
Court would have difficulty predicting how employees’ privacy
expectations will be shaped by those changes or the degree to which
society will be prepared to recognize those expectations as
reasonable. See 480 U. S., at 715. Cell phone and text message
communications are so pervasive that some persons may consider them
to be essential means or necessary instruments for self-expression,
even self-identification. That might strengthen the case for an
expectation of privacy. On the other hand, the ubiquity of those
devices has made them generally affordable, so one could counter
that employees who need cell phones or similar devices for personal
matters can purchase and pay for their own. And employer policies
concerning communications will of course shape the reasonable
expectations of their employees, especially to the extent that such
policies are clearly communicated.
A broad holding concerning employees’ privacy
expectations vis-À-vis employer-provided technological equipment
might have implications for future cases that cannot be predicted.
It is preferable to dispose of this case on narrower grounds. For
present purposes we assume several propositions
arguendo:
First, Quon had a reasonable expectation of privacy in the text
messages sent on the pager provided to him by the City; second,
petitioners’ review of the transcript constituted a search within
the meaning of the Fourth Amendment; and third, the principles
applicable to a government employer’s search of an employee’s
physical office apply with at least the same force when the
employer intrudes on the employee’s privacy in the electronic
sphere.
B
Even if Quon had a reasonable
expectation of privacy in his text messages, petitioners did not
necessarily violate the Fourth Amendment by obtaining and reviewing
the transcripts. Although as a general matter, warrantless searches
“are
per se unreasonable under the Fourth Amendment,”
there are “a few specifically established and well-delineated
exceptions” to that general rule.
Katz, supra, at
357. The Court has held that the “ ‘special needs’ ” of
the workplace justify one such exception.
O’Connor, 480 U.
S., at 725 (plurality opinion);
id., at 732 (Scalia, J.,
concurring in judgment);
Von Raab, 489 U. S., at
666–667.
Under the approach of the
O’Connor plurality, when conducted for a
“noninvestigatory, work-related purpos[e]” or for the
“investigatio[n] of work-related misconduct,” a government
employer’s warrantless search is reasonable if it is
“ ‘justified at its inception’ ” and if “ ‘the
measures adopted are reasonably related to the objectives of the
search and not excessively intrusive in light of’ ” the
circumstances giving rise to the search. 480 U. S., at 725–726. The
search here satisfied the standard of the
O’Connor
plurality and was reasonable under that approach.
The search was justified at its inception
because there were “reasonable grounds for suspecting that the
search [was] necessary for a noninvestigatory work-related
purpose.”
Id., at 726. As a jury found, Chief Scharf
ordered the search in order to determine whether the character
limit on the City’s contract with Arch Wireless was sufficient to
meet the City’s needs. This was, as the Ninth Circuit noted, a
“legitimate work-related rationale.” 529 F. 3d, at 908. The
City and OPD had a legitimate interest in ensuring that employees
were not being forced to pay out of their own pockets for
work-related expenses, or on the other hand that the City was not
paying for extensive personal communications.
As for the scope of the search, reviewing the
transcripts was reasonable because it was an efficient and
expedient way to determine whether Quon’s overages were the result
of work-related messaging or personal use. The review was also not
“ ‘excessively intrusive.’ ”
O’Connor,
supra, at 726 (plurality opinion)
. Although Quon
had gone over his monthly allotment a number of times, OPD
requested transcripts for only the months of August and September
2002. While it may have been reasonable as well for OPD to review
transcripts of all the months in which Quon exceeded his allowance,
it was certainly reasonable for OPD to review messages for just two
months in order to obtain a large enough sample to decide whether
the character limits were efficacious. And it is worth noting that
during his internal affairs investigation, McMahon redacted all
messages Quon sent while off duty, a measure which reduced the
intrusiveness of any further review of the transcripts.
Furthermore, and again on the assumption that
Quon had a reasonable expectation of privacy in the contents of his
messages, the extent of an expectation is relevant to assessing
whether the search was too intrusive. See
Von Raab,
supra, at 671; cf.
Vernonia School Dist. 47J v.
Acton,
515
U. S. 646, 654–657 (1995). Even if he could assume some level
of privacy would inhere in his messages, it would not have been
reasonable for Quon to conclude that his messages were in all
circumstances immune from scrutiny. Quon was told that his messages
were subject to auditing. As a law enforcement officer, he would or
should have known that his actions were likely to come under legal
scrutiny, and that this might entail an analysis of his on-the-job
communications. Under the circumstances, a reasonable employee
would be aware that sound management principles might require the
audit of messages to determine whether the pager was being
appropriately used. Given that the City issued the pagers to Quon
and other SWAT Team members in order to help them more quickly
respond to crises—and given that Quon had received no assurances of
privacy—Quon could have anticipated that it might be necessary for
the City to audit pager messages to assess the SWAT Team’s
performance in particular emergency situations.
From OPD’s perspective, the fact that Quon
likely had only a limited privacy expectation, with boundaries that
we need not here explore, lessened the risk that the review would
intrude on highly private details of Quon’s life. OPD’s audit of
messages on Quon’s employer-provided pager was not nearly as
intrusive as a search of his personal e-mail account or pager, or a
wiretap on his home phone line, would have been. That the search
did reveal intimate details of Quon’s life does not make it
unreasonable, for under the circumstances a reasonable employer
would not expect that such a review would intrude on such matters.
The search was permissible in its scope.
The Court of Appeals erred in finding the
search unreasonable. It pointed to a “host of simple ways to verify
the efficacy of the 25,000 character limit … without intruding on
[respondents’] Fourth Amendment rights.” 529 F. 3d, at 909.
The panel suggested that Scharf “could have warned Quon that for
the month of September he was forbidden from using his pager for
personal communications, and that the contents of all his messages
would be reviewed to ensure the pager was used only for
work-related purposes during that time frame. Alternatively, if
[OPD] wanted to review past usage, it could have asked Quon to
count the characters himself, or asked him to redact personal
messages and grant permission to [OPD] to review the redacted
transcript.”
Ibid.
This approach was inconsistent with
controlling precedents. This Court has “repeatedly refused to
declare that only the ‘least intrusive’ search practicable can be
reasonable under the Fourth Amendment.”
Vernonia,
supra, at 663; see also,
e.g.,
Board of Ed.
of Independent School Dist. No. 92 of Pottawatomie Cty. v.
Earls,
536
U. S. 822, 837 (2002);
Illinois v.
Lafayette,
462 U. S. 640,
647 (1983). That rationale “could raise insuperable barriers to the
exercise of virtually all search-and-seizure powers,”
United
States v.
Martinez-Fuerte,
428 U. S. 543, 557,
n. 12 (1976), because “judges engaged in
post hoc
evaluations of government conduct can almost always imagine some
alternative means by which the objectives of the government might
have been accomplished,”
Skinner, 489 U. S., at 629,
n. 9 (internal quotation marks and brackets omitted). The
analytic errors of the Court of Appeals in this case illustrate the
necessity of this principle. Even assuming there were ways that OPD
could have performed the search that would have been less
intrusive, it does not follow that the search as conducted was
unreasonable.
Respondents argue that the search was
per
se unreasonable in light of the Court of Appeals’ conclusion
that Arch Wireless violated the SCA by giving the City the
transcripts of Quon’s text messages. The merits of the SCA claim
are not before us. But even if the Court of Appeals was correct to
conclude that the SCA forbade Arch Wireless from turning over the
transcripts, it does not follow that petitioners’ actions were
unreasonable. Respondents point to no authority for the proposition
that the existence of statutory protection renders a search
per
se unreasonable under the Fourth Amendment. And the precedents
counsel otherwise. See
Virginia v.
Moore,
553 U. S. 164,
168 (2008) (search incident to an arrest that was illegal under
state law was reasonable);
California v.
Greenwood,
486 U. S. 35, 43 (1988)
(rejecting argument that if state law forbade police search of
individual’s garbage the search would violate the Fourth
Amendment). Furthermore, respondents do not maintain that any OPD
employee either violated the law him- or herself or knew or should
have known that Arch Wireless, by turning over the transcript,
would have violated the law. The otherwise reasonable search by OPD
is not rendered unreasonable by the assumption that Arch Wireless
violated the SCA by turning over the transcripts.
Because the search was motivated by a
legitimate work-related purpose, and because it was not excessive
in scope, the search was reasonable under the approach of the
O’Connor plurality. 480 U. S., at 726. For these same
reasons—that the employer had a legitimate reason for the search,
and that the search was not excessively intrusive in light of that
justification—the Court also concludes that the search would be
“regarded as reasonable and normal in the private-employer context”
and would satisfy the approach of Justice Scalia’s concurrence.
Id., at 732. The search was reasonable, and the Court of
Appeals erred by holding to the contrary. Petitioners did not
violate Quon’s Fourth Amendment rights.
C
Finally, the Court must consider
whether the search violated the Fourth Amendment rights of Jerilyn
Quon, Florio, and Trujillo, the respondents who sent text messages
to Jeff Quon. Petitioners and respondents disagree whether a sender
of a text message can have a reasonable expectation of privacy in a
message he knowingly sends to someone’s employer-provided pager. It
is not necessary to resolve this question in order to dispose of
the case, however. Respondents argue that because “the search was
unreasonable as to Sergeant Quon, it was also unreasonable as to
his correspondents.” Brief for Respondents 60 (some capitalization
omitted; boldface deleted). They make no corollary argument that
the search, if reasonable as to Quon, could nonetheless be
unreasonable as to Quon’s correspondents. See
id., at
65–66. In light of this litigating position and the Court’s
conclusion that the search was reasonable as to Jeff Quon, it
necessarily follows that these other respondents cannot
prevail.
* * *
Because the search was
reasonable, petitioners did not violate respondents’ Fourth
Amendment rights, and the court below erred by concluding
otherwise. The judgment of the Court of Appeals for the Ninth
Circuit is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
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