Rossi v. Pelham CV-96-139-SD 09/29/97 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cheryl B. Rossi

v. Civil No. 96-139-SD

Town of Pelham; Peter R. Flynn, individually and in his capacity as Pelham Administrative Ass't; Paul R. Scott, individually and in his capacity as Vice- Chairman of the Pelham Bd. of Selectmen; David Rowell, individually and in his capacity as Pelham Police Chief

O R D E R

In this civil rights action, plaintiff Cheryl B. Rossi, who

was serving as town clerk and town tax collector for the Town of

Pelham, New Hampshire, claims that Pelham officials unlawfully

searched her office at the town hall and unlawfully seized her

person and her property by placing a police guard in her office

to watch over her on her last day of service. Rossi also alleges

numerous state law claims arising out of the same facts.

At issue before the court is defendants' motion for summary

judgment and plaintiff's objection thereto. Statement of Facts

Plaintiff Rossi was serving as town clerk and town tax

collector for the Town of Pelham, New Hampshire, a position which

she held for 23 years. In 1993, Rossi lost her bid for

reelection to those offices. New Hampshire law requires a

succession audit when the position of town tax collector passes

to a successor. New Hampshire Revised Statutes Annotated (RSA)

41:36 provides: "Whenever the term of office of a collector of

taxes shall end . . . [t]he selectmen shall cause an audit of his

accounts to be made promptly." Rossi contacted the town's

auditing firm to make arrangements for the required succession

audit. She spoke with Paul Mercier at the firm, who told her

that the audit would take place on Monday, March 15, 1993.

During their conversation, Rossi told Mercier she planned to take

home for the weekend the books and records she kept as town tax

collector in order to prepare for the Monday audit. Later, in a

conversation with defendant Peter Flynn, a member of the Pelham

board of selectmen, Mercier mentioned Rossi's plans to remove the

books and records from the town hall to her house. In turn,

Flynn relayed word of Rossi's plan to defendant Paul Scott,

another selectman.

Selectman Scott convened a meeting of the board of selectmen

to inform them of Rossi's plan and to discuss what, if anything.

2 the selectmen should do about it. At the meeting, the selectmen

voted to have defendant Police Chief David Rowell take action to

prevent Rossi from removing the books and records from the town

hall. In carrying out the vote of the selectmen, Scott and Flynn

prepared the following letter for Chief Rowell to deliver to

Rossi:

Please be advised that the Board of Selectmen insist that no records pertaining to Town Clerk/Tax Collector transactions be removed from the Pelham Town Hall at any time. The Selectmen call your attention to the terms and conditions of RSA 33-A:1, III(a) and RSA 33-A:2 and :3 and RSA 5:38. The Selectmen recognize these records are your responsibility at this time. However, we still insist that these records remain in the Town Hall Office of Town Clerk/Tax Collector and be secured and bound in any manner you choose until the March 15, 1993 arrival of the auditors. To insure security of these records, the Board of Selectmen have arranged that the Pelham Police Department provide adeguate protection within the building. Thanking you for your cooperation in advance and trusting that this procedure will meet with your approval, I remain Respectfully yours,

Paul R. Scott Vice Chairman Board of Selectmen

Complaint, Exhibit 1.

The letter was delivered to Rossi on the Friday before the

Monday of the audit. Defendant Rowell deployed Police Officer

Robert Cunha to town hall instructing him to ensure Rossi did not

remove the books and records from that building.

3 Officer Cunha arrived at the town hall on Friday afternoon

and entered Rossi's office, announcing to her that he was acting

under orders from the police chief and the selectmen. He then

sat down in Rossi's private office and remained there while she

worked. After 45 minutes, he moved from her office to a desk

just outside her office door. Rossi decided to guit working at

7:00 p.m., at which time Officer Cunha escorted her first to the

vault, where she deposited the records, and then out of the town

hall.

Discussion

Constitutional Claims

The Fourth Amendment protects the "right of the people to be

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

unreasonable searches and seizures . . . ." U.S. Con s t , amend.

IV. Here, Rossi claims that three distinct Fourth Amendment

violations occurred when Officer Cunha positioned himself in her

private office to ensure that she did not remove any work-related

books and records. Rossi alleges that Officer Cunha's conduct

constituted an unreasonable search of her office, an unreasonable

seizure of her person, and an unreasonable seizure of her

property. The court will address the claims in that order.

Rossi alleges that Officer Cunha unreasonably searched her

4 office when he entered her private office and remained there for

45 minutes. Defendants argue that Officer Cunha's presence in

Rossi's office did not constitute a "search" within the meaning

of the Fourth Amendment because he intended only to prevent Rossi

from leaving town hall with work-related files, rather than to

discover evidence. The dictionary defines "search" as follows:

"To look into or over carefully or thoroughly in an effort to

find or discover." Webster's T h i r d N e w In t e r n a t i o n a l D i c t i o n a r y 2048

(1976). Likewise, the older Fourth Amendment caselaw focused on

the intent to discover: "A search implies an examination of one's

premises or person with a view to the discovery of contraband or

evidence of guilt . . . [and] implies exploratory investigation

or guest." Haerr v. United States,

(1957).

However, the more recent caselaw defines "search" as infringement

of "an expectation of privacy that society is prepared to

consider reasonable." United States v. Jacobsen,

(1984). A citizen's expectation of privacy may be egually

infringed by random and undirected trespass as by exploratory

investigation. Under modern jurisprudence, it is irrelevant

whether or not the search agent intended to discover evidence.

On this point, this court finds no distinction between Officer

Cunha's in-person monitoring of Rossi and the video surveillance

monitoring of public employees that has been clearly held to

5 constitute a search. Hector Vega-Rodriquez v. Puerto Rico Tel.

Co., 110 F .3d 174, 181 (1st Cir. 1997).

Next, defendants argue that Rossi did not enjoy a reasonable

expectation of privacy in her office at the town hall and that

Officer Cunha's intrusion into that office therefore did not

constitute a "search." In Mancusi v. DeForte,

(1968), the Court held that employees may have a reasonable

expectation of privacy in their workplace against intrusions by

the police. In Oliver v. United States,

(1984), the

Court stated that such an expectation in one's place of work is

"based upon societal expectations that have deep roots in the

history of the Amendment."

at 17 8 n.8. TheCourt in Ortega,

supra, 480 U.S. at 717, extended Mancusi's protection of

workplace privacy to public employees, recognizing that

"[i]ndividuals do not lose Fourth Amendment rights merely because

they work for the government instead of a private employer."

Under Ortega, a public employee's office privacy is protected not

only against intrusions by law enforcers, but also against work-

related intrusions by public employers. Thus the Supreme Court

has extended Fourth Amendment protection beyond the "paradigmatic

entry" into a house by police officers in search of criminal

evidence to work-related investigation of apublic employee's

private office. Ortega, supra, 480 U.S. at 715 (noting that "it

6 would be 'anomalous to say that the individual and his private

property are fully protected by the Fourth Amendment only when

the individual is suspected of criminal behavior'") (quoting

Marshall v. Barlow's, Inc.,

(1978))).

Under Ortega, public employees may enjoy Fourth Amendment

protections against unreasonable work-related intrusions in their

offices, as a general matter. The qualifier indicates that,

according to the Court, an employee's expectation of privacy may

be undermined if co-workers, supervisors, and/or the general

public enjoy by practice or procedure a general right to access

the office or workplace. Ortega, supra, 480 U.S. at 718 ("[S]ome

government offices may be so open to fellow employees or the

public that no expectation of privacy is reasonable."). A

general right of access to an office erodes any expectation of

privacy, which may not then be revived and conjured up when a

state actor seeks access to that office.

According to the Court, "Given the great variety of work

environments in the public sector, the question whether an

employee has a reasonable expectation of privacy must be

addressed on a case-by-case basis." Ortega, supra, 480 U.S. at

718. The First Circuit recently surveyed the factors that

federal courts consider relevant in making the case-by-case

determination. Hector Vega-Rodriguez, supra, 110 F.3d at 179.

7 The circuit court identified the following factors: (1) whether

the work area in question was given over to an employee's

exclusive use, (2) the extent to which others had access to the

work space, (3) the nature of the employment, and (4) whether

office regulations placed the employee on notice that certain

areas were subject to employer intrusions. Id.

Here, there is no indication that the public or other town

officials enjoyed a general right of access to Rossi's office

under the practices or procedures of the work environment at town

hall. Rossi, as the town's clerk, was given exclusive access and

use of the office. She describes her offices as follows:

I had a small private office measuring about 8 feet by 8 feet, which was just off the main office . . . [which] had five desks where my deputy and other clerks worked. The public was served at a window. The public did not have access to either the main office or my private office.

Affidavit of Cheryl Rossi at 2 (attached to Plaintiff's

Objection). Further, Pelham did not place Rossi on notice that

her office was subject to intrusions by other town officials.

From the record, it appears that the office was maintained under

the practice and procedure at the town hall as Rossi's private

office.

Considering the relevant factors, this court finds that

Rossi enjoyed a reasonable expectation of privacy in her office

at the town hall. Thus, Officer Cunha's intrusion into her private office infringed Rossi's reasonable expectation of

privacy and constituted a search subject to Fourth Amendment

scrutiny.

Simply because Officer Cunha's conduct may be characterized

as a search does not mean it offends the Fourth Amendment, which

only prohibits unreasonable searches. According to the Supreme

Court, "[t]o hold that the Fourth Amendment applies to searches

conducted by [state actors] is only to begin the inguiry into the

standards governing such searches. . . . [W]hat is reasonable

depends on the context within which a search takes place." New

Jersey v . T .L .0.,

(1985) . The evidence is

undisputed that Officer Cunha entered Rossi's office without a

search warrant, and it is settled law that "'except in certain

carefully defined classes of cases, a search of private property

without proper consent is 'unreasonable' unless it has been

authorized by a valid search warrant.'"

(guoting Camara v. Municipal Court,

(1967)). The warrant reguirement may be rejected as the

governing Fourth Amendment standard of reasonableness only in

those exceptional circumstances when "'the burden of obtaining a

warrant is likely to frustrate the governmental purpose behind

the search.'" Ortega, supra, 480 U.S. at 720 (guoting Camara v.

Municipal Court, supra,

). The guestion therefore is whether Officer Cunha's warrantless search of Rossi's office

falls within the carefully defined classes of cases governed by a

less stringent standard of Fourth Amendment reasonableness.

The precedent most closely related to this case is Ortega,

in which the Court carved out an exception to the warrant

reguirement for certain work-related searches. In that case, the

Court was considering the appropriate standard of Fourth

Amendment reasonableness applicable to a warrantless search of

Dr. Ortega's private office at a state hospital conducted by Dr.

Ortega's supervisor to investigate charges of Ortega's work-

related misfeasance, as opposed to criminal misconduct. The

Court upheld the warrantless search as reasonable and enunciated

an exception to the warrant reguirement "for public employer

intrusions on the constitutionally protected privacy interests of

government employees for noninvestigatory, work-related purposes,

as well as for investigations of work-related misconduct."

Ortega, supra, at 725. The Court reasoned that the delay and

burden of obtaining a warrant would frustrate the government

purposes of work-related searches, namely, the "government's need

for supervision, control, and the efficient operation of the

workplace." Id. at 720. For instance, it would jeopardize the

work of public agencies if a public supervisor had to obtain a

warrant before entering an employee's office to obtain an

10 urgently needed correspondence, file, or report. Further, public

employers, according to the Ortega Court, must have wide latitude

in conducting investigations of work-related misfeasance to

minimize employee inefficiency, incompetence, or mismanagement in

government agencies. Otherwise, "[t]he delay in correcting the

employee misconduct caused by the need [for a warrant and

probable cause] . . . will be translated into tangible and often

irreparable damage to the agency's work, and ultimately to the

public interest." Id. at 724.

In this case. Officer Cunha's search of Rossi's office, like

the search considered in Ortega, was conducted for the purpose of

investigating work-related misfeasance, instead of criminal

misconduct. Affidavit of Peter Flynn, Exhibit D (attached to

Defendant's Motion for Summary Judgment). However, this search

was a police intrusion on Rossi's privacy interests, and the

Ortega exception by its express terms applies only to "public

employer intrusions on the . . . privacy interests of government

employees . . . ." Ortega, supra, at 725 (emphasis added). The

issue is whether the Ortega exception may properly be extended to

work-related searches conducted by police officers rather than by

public supervisors.

It may be argued that the same reasons held by the Ortega

Court to justify a public supervisor's warrantless searches of a

11 public employee's private offices likewise justify a police

officer's warrantless search of that same office. Ortega may be

understood as recognizing that the ends of workplace efficiency

necessitate and justify warrantless searches of public employees'

private offices by a state actor with the reguisite authority,

but a state remains free to choose which of its agents, whether a

police officer or a supervisor, will be deployed to effectuate

the necessary warrantless search. Federal constitutional law

does not define limits on the otherwise lawful purposes or ends

for which police officers may be used, and there are no essential

police functions. The police have "complex and multiple tasks to

perform in addition to identifying and apprehending persons

committing serious criminal offenses." ABA S t a n d a r d s for C riminal

Justice § 1-1.1 (2d ed. 1980). Under federal law, states may use

police officers to pursue the goals of workplace efficiency in

public agencies. Thus, once it is recognized that the goals of

workplace efficiency justify a warrantless search of an

employee's private office, it may be argued that it is

constitutionally insignificant whether the searcher is a police

officer or a supervisor.

However, this argument must be rejected. The status of the

searcher, whether police officer or supervisor, bears on the

constitutional reasonableness of a warrantless search of a public

12 employee's private office. Generally, an exception to the

warrant requirement is only appropriate in "carefully defined

classes of cases,"

(emphasis

added), and extends only as far as the necessity from which it

was borne. The Court in Ortega defined an exception for "public

employer[s]," and it is unnecessary to extend that exception to

police searches of public employees' private offices. If

workplace efficiency demands an immediate warrantless search of

the office, the search may be conducted by the employee's

supervisor. Given this, there is no reason to deploy a police

officer, whose invasion of the private office is inherently more

intrusive than an equally effective search by the employee's

supervisor. The workplace efficiency of public aqencies will not

suffer for the delay of requirinq a police officer to obtain a

warrant before searchinq private offices because the supervisor

may conduct an immediate warrantless search under Ortega. Thus,

extending Ortega's warrant exception to police searches of public

employees' offices would be unnecessary, gratuitous, and

inappropriate.

It is a fundamental tenet of American jurisprudence that

"' [i]n every case [state power] must be so exercised as not, in

attaining a permissible end, unduly to infringe the protected

freedom.'" Buckley v. Valeo,

(1976) (Burger, J.,

13 concurring) (quoting Cantwell v. Connecticut,

(1940)). "Unduly" means more than necessary, and the enunciated

principle confines the government to the least intrusive means

adequate to achieve its goals. "'Even though the governmental

purpose be legitimate and substantial, that purpose cannot be

pursued by means that broadly stifle fundamental personal

liberties when the end can be more narrowly achieved.'"

(quoting Shelton v. Tucker,

(I960)). The least intrusive means test has been held to

govern some aspects of Fourth Amendment jurisprudence. See

Florida v. Rover,

(1983) ("the

investigative methods employed [by an officer conducting a Terry

stop] should be the least intrusive means reasonably available to

verify or dispel the officer's suspicion in a short period of

time. . . . The scope of the detention must be carefully

tailored to its underlying justification."); United States v.

Sanders,

(6th Cir. 1983) (same); but see United

States v. Sokolow,

(1988) ("The reasonableness of

the officer's decision to stop a suspect does not turn on the

availability of less intrusive investigatory techniques.");

United States v. LaFrance,

(1st Cir. 1989) ("The

result [of the district court's analysis] was to create a

standard tantamount to requiring government agents to adopt the

14 least intrusive means possible. In the package detention milieu,

we think this was plain error.").

Even though the extent to which the least intrusive means

reguirement is appropriate in Fourth Amendment jurisprudence is

unsettled, this court believes that a warrantless search should

not be upheld as constitutional unless it was the least intrusive

means to achieve the governmental purpose. The well-established

test for an exception to the warrant reguirement is "whether the

burden of obtaining a warrant is likely to frustrate the

governmental purpose behind the search."

. This test implies a least intrusive means inguiry. The

burden of obtaining a warrant would not frustrate the

governmental purpose behind the search if an alternate, less

intrusive means than the search will nonetheless fully realize

that governmental purpose, stripping away the necessity of a

warrantless search. Thus the test for a warrant exception is not

met when a less intrusive means than the warrantless search will

fully realize the governmental purpose.

The Supreme Court has implied as much in Cady v. Dombrowski,

(1972). In Cady, the Court upheld a

warrantless search of an off-duty police officer's automobile.

The officer was arrested for drunk driving, and the arresting

officers searched his automobile for the purpose of removing his

15 service revolver from the abandoned vehicle. The Court upheld

the warrantless search because of the "immediate . . . concern

for the safety of the general public who might be endangered if

an intruder removed a revolver from the trunk of the vehicle."

. The test for an exception to the warrant reguirement

was met because the burden and delay of obtaining a warrant for

the search would have frustrated the governmental purpose of the

search, which was a concern for public safety. Of particular

import here, the Court observed, "While perhaps in a metropolitan

area the responsibility to the general public might have been

discharged by the posting of a police guard during the night,

what might be normal police procedure in such an area may be

neither normal nor possible in [a rural community]."

This

implies that the availability of a less intrusive means, the

posting of a police guard, even if not "by itself" a dispositive

factor, would have been a factor in judging the reasonableness of

the warrantless search, if it had been available in fact, as

opposed to "in the abstract," or in a metropolitan rather than a

rural community.

Warrantless work-related searches conducted by police should

not be upheld under the Ortega exception because a lesser

intrusive warrantless search by the employee's supervisor will

fully realize the concern for workplace efficiency. A work-

16 related search of an employee's private office is more intrusive

when conducted by a police officer rather than the employee's

supervisor. As a general matter, the intrusiveness of a search

depends in part on the status of the searcher and his relation to

the suspect. Justice Scalia confirms this in his Ortega

concurrence, arguing that "[t]he identity of the searcher (police

v. employer) is relevant . . . to whether the search of the

protected area is reasonable." 480 U.S. at 731 (Scalia, J.,

concurring). This is well-founded in reason. An expectation of

privacy is a characteristic or attribute of legal relationships,

conferring upon citizens the legally enforceable right to be left

alone rather than being compelled into unwanted interaction with

others. Obviously, different types of legal relationships are

defined by different characteristics, including the nature and

scope of any privacy expectations. For instance, a person's

expectation of privacy assertible against his neighbor differs

significantly from that assertible against his family, and, for

that reason, invasion of the person's private study by his

neighbor is more intrusive than a similar invasion by his family

members.

It has been generally recognized that the relationship

between public employees and their supervisors is characterized

by a diminished expectation of privacy with respect to office

17 privacy. National Treasury Employees Union v. Von Raab,

(1989). In the context of the employment relationship,

"[t]he operational realities of the workplace . . . may make some

employees' expectation of privacy unreasonable when an intrusion

is by a supervisor rather than a law enforcement official."

Ortega, supra, 480 U.S. at 717. An "office is seldom a private

enclave free from entry by supervisors, other employees, and

business and personal invitees." Id. However, vis- a-vis police

officers, an employee's office typically remains private. Given

this, searches of a public employee's office "involve a

relatively limited invasion of employee privacy," id. at 725,

when conducted by the employee's supervisor rather than by a

police officer.

On the other hand, a citizen's expectation of privacy

against unreasonable government intrusions is at its most robust

when the intruder is a police officer. Police officers have been

vested with a coercive authority that sets them apart from other

citizens, rendering self-help against unlawful police intrusions

both futile and often unlawful. Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics,

(1971).

The Massachusetts Supreme Judicial Court has noted that the law

should honor a stronger expectation of privacy against those who

are "formally affiliated with the sovereign and generally possess

18 authority beyond that of an ordinary citizen in matters such as

arrest and the use of weapons." Commonwealth v. Leone,

(Mass. 1982). Likewise, the United States

Supreme Court has recognized that the exercise of coercive

authority distinguishes the more intrusive invasions on privacy

by law enforcement officials from the less intrusive invasions by

other citizens.

. It is on these

grounds that a police search of an employee's private office may

be distinguished from a search by the employee's supervisor. The

typical employment relation between a public employee and his

supervisor is characterized by a formal eguality between two co­

citizens counseling a more limited constitutionally protected

expectation of privacy. Thus, a search of an employee's private

office intrudes upon a stronger expectation of privacy when

conducted by a police officer rather than a public employer.

It may be argued, albeit erroneously, that Officer Cunha

and Rossi did not have the traditional police-citizen relation

because Officer Cunha was acting at the behest of Rossi's public

employer. Officer Cunha was investigating work-related

misfeasance, not criminal activity, on behalf of the state in its

capacity as employer, as opposed to law enforcer. For this

reason, it may be contended that Rossi enjoyed only the

diminished expectation of privacy that characterizes employment

19 relations. However, this contention must be rejected because

citizens enjoy a heightened expectation of privacy against police

officers, regardless of the object of the officer's conduct. It

is the coercive authority vested in police officers that renders

a police invasion of privacy more onerous than an invasion by

another citizen, and police are vested with the same degree of

coercive authority, regardless of the object of their conduct.

Under no circumstances may the relation between a police officer

and a citizen be characterized as one based on formal eguality.

Furthermore, since police officers traditionally function as the

state's law enforcers, a police search may overtly manifest

suspicion of criminal activity, even when the search is, in fact,

unrelated to criminal investigation. A citizen's expectation of

privacy assertible against the police does not vary according to

the object of police conduct.

It is illustrative that the caselaw does not apply less

rigorous Fourth Amendment scrutiny to police searches conducted

for purposes other than criminal investigation unless there is

some compelling urgency for the search. See e.g.. People v.

Wright,

(Colo. 1991) (holding unconstitutional

a search of defendant's purse conducted for purposes of medical

assistance because officer "was not confronted with a situation

that posed a threat to the life or safety of the defendant"); see

20 also, Wavne v. United States,

(D.C. Cir. 1963)

("a warrant is not required to break down a door to enter a

burning home to rescue occupants or extinguish a fire, to prevent

a shooting or to bring emergency aid to an injured person. The

need to protect or preserve life or avoid serious injury is

justification for what would be otherwise illegal absent an

exigency or emergency."). This supports the proposition that

police searches are at the core of the Fourth Amendment, even

when the police are acting outside the scope of their traditional

law enforcement functions. In Specht v. Jensen,

(10th Cir. 1987), the court held unconstitutional a

warrantless police search of the defendant's office and home

conducted for the purpose of executing a civil order of

repossession. The court did not consider relevant the fact that

the search was not aimed at criminal investigation. In Soldal v.

County of Cook,

(7th Cir. 1991), the court

was judging the constitutionality of a police seizure of a

trailer home pursuant to an eviction order. The court cited

Specht as "the closest case to ours,"

because the police

conduct in both cases was unrelated to criminal investigation or

enforcement. The Soldal court noted that "[t]he invasion [and

search at issue in Specht 1 was no less extensive, intrusive, or

injurious just because the police were assisting a creditor

21 rather than enforcing criminal or other public law."

. Lastly, in Cornqold v. United States,

(9th

Cir. 1966), the court held unconstitutional a warrantless search

of a package checked for shipment on a private airline. The

package was searched by airline employees in conjunction with

customs agents. From the evidence, it was unclear whether the

object of the search was the custom agent's public purpose of

investigating crime or the airline's private purpose of ensuring

proper payment of tariffs on the package.

. The court

said that the warrantless search would be unconstitutional, even

if it was assumed that the customs agents were assisting airline

employees in executing a search for the airline's purposes. The

only police searches in which courts have considered the non­

criminal purpose of the search relevant were conducted in the

context of "internal investigations." United States v. Taketa,

(7th Cir. 1991); Shields v. Burge,

(7th Cir. 1989); Copeland v. Philadelphia Police Dep't, 840

F .2d 1139 (3d Cir. 1988) .

Since courts locate police searches at the core of the

Fourth Amendment, regardless of the ends of the police conduct,

it is clear that the status of the searcher, whether or not a law

enforcement official, may be a more important factor than the

purpose of the search in settling on the appropriate standard of

22 Fourth Amendment reasonableness. Also illustrative, "[c]ourts

are understandably more ready to find a [private search] when the

conduct is by a government employee without law enforcement

responsibilities," 1 L a F a v e , S e a r c h a n d Seizure § 1.8(d), at 258 (3d

ed. 1996), leaving many searches by non-police government actors

outside the scope of constitutional protections.

The court in United States v. Blok,

(D.C. Cir. 1951), recognized as much, invalidating a warrantless

police search of a government employee's desk for evidence of

petty larceny. The court drew the following distinction: "No

doubt a search of it without her consent would have been

reasonable if made by some people in some circumstances. Her

official superiors might reasonably have searched the desk for

official property needed for official use. But . . . the search

that was made was not an inspection or search by her superiors."

. According to the court, the constitutionality of

the search depended on the status of the searcher.

In Ortega, the Court enunciated an exception to the warrant

reguirement for "public employer intrusions on the . . . privacy

interests of government employees." Ortega, supra, 480 U.S. at

725 (emphasis added). This exception should not be extended to

police searches of public employees' private offices, regardless

of whether the search is aimed at investigation of work-related

23 misfeasance or criminal misconduct. Work-related police searches

intrude on office privacy more significantly than the public

employer searches considered by the Court in Ortega. Police

officers occupy a special position in our society, and for that

reason police searches occupy a special position closer to the

core of the Fourth Amendment. The Ortega exception rested on the

rationale that the government's need for supervision, control,

and effective operation of the workplace would be frustrated if

public supervisors had to obtain a warrant before searching an

employee's office. This rationale does not apply when the

searcher is a police officer because concerns for workplace

efficiency may be met by a lesser intrusive search by the public

employer. The closely guarded warrant reguirement should not be

lightly set aside for searches that are unduly intrusive.

Therefore, this court holds that Officer Cunha's warrantless

search of Rossi's office does not fall within the Ortega

exception to the warrant reguirement. Under the general rule

that "except in certain carefully defined classes of cases, a

search of private property . . . is 'unreasonable' unless it has

been authorized by a valid search warrant,"

, Officer Cunha's warrantless search violated Rossi's

Fourth Amendment rights.

Rossi's next Fourth Amendment claim alleges that Officer

24 Cunha's conduct amounted to an unreasonable seizure of her

property because he prevented her from taking home her books and

records from the Pelham town hall on that Friday. A "seizure" of

property occurs when "there is some meaningful interference with

an individual's possessory interest in the property." United

States v. Jacobsen,

(1984).

This court rejects defendants' claim that Officer Cunha's

conduct was not a "seizure" because the scope of Rossi's property

rights in the records was narrow, and the Town of Pelham, not

Rossi, owned the records under state law. According to

defendants. Officer Cunha did not seize Rossi's property, but was

merely asserting Pelham's proprietary interest in the records.

However, a seizure occurs when there is an interference with a

possessory interest in property, Lesher v. Reed,

(8th Cir. 1994), even when another has paramount right to

possession under state law. Thus police seizure of stolen

property from a thief is subject to Fourth Amendment scrutiny,

even though the thief does not have rightful possession under

state law. Henry v. United States,

(1959).

Constitutional protection of possessory interests is not

diminished when the government, as opposed to a private

individual, has paramount right to possession. Warden v. Havden,

(1967) ("The premise that property

25 interests control the right of the government to search and seize

has been discredited."). In Lesher, the Eighth Circuit held in

error the district court's conclusion that no "seizure" occurred

when members of the Little Rock Police Department took a police

dog owned by the Department from the home of one of its officers.

The circuit rejected the district court's reasoning that there

can be no constitutional violation when the seizing agency owns

the property allegedly seized. The circuit said, "A government

employer's seizure of property possessed by an employee is

clearly subject to Fourth Amendment restraints."

. The "constitutional right against unreasonable

seizures is not vitiated merely because the defendants believed

the dog belonged to the LRPD."

at 150 (citing Soldal v. Cook

Countv, ___ U.S. ___, ___ , 113 S. C t . 538, 548 (1992)).

Defendants next argue that Officer Cunha did not

meaningfully interfere with Rossi's possessory interest in the

records because he never made any attempt to dispossess her of

custody or control of the records, which she retained for the

duration of the encounter. According to defendants. Officer

Cunha merely prevented Rossi from leaving town hall with the

records. However, Officer Cunha1s conduct conditioned Rossi's

right to possession on her remaining at the town hall, and that

condition was a sufficient interference with Rossi's possessory

26 interest, despite the fact that she technically retained full

possession. In United States v. Allen,

, 751 n.2

(9th Cir. 1980), the Ninth Circuit rejected the government's

claim that the briefcase of an alleged drug courier was not

seized when the officer announced an intention to seize the

briefcase. Rather, the government contended that the seizure did

not occur until the alleged courier left the police station

without the briefcase, because it was at that time that he was

dispossessed of property. The court disagreed, because after the

agent's statement of intent to seize the briefcase, "a reasonable

person would not have believed that he or she was free to leave

the station with the briefcase."

According to the court, a

seizure of property occurred, even though the courier retained

possession. Clearly, when a government official conditions a

citizen's right to possession on remaining in a proscribed area--

whether in an interrogating room at an airport, as in Allen,

, or in public offices at a town hall, as in the case

at hand--by threatening to dispossess the citizen of property if

the citizen attempts to leave, a seizure of property has

occurred, even though the citizen does not attempt to leave and

the threat to dispossess is never carried out. See e.g.. United

States v. Place,

(1982) ("There is no doubt

that the agents made a 'seizure' of Place's luggage for purposes

27 of the Fourth Amendment when, following his refusal to consent to

a search, the agent told Place that he was going to take the

luggage to a federal judge to secure issuance of a warrant.")

Rossi reasonably believed that Officer Cunha would prevent

her from leaving town hall with the books and records by

dispossessing her if she attempted to leave. Thus Officer

Cunha's conduct conditioned Rossi's right to possession on her

remaining at town hall and constituted a seizure of property

subject to Fourth Amendment scrutiny.

Of course, a seizure of property is not unconstitutional

unless it fails standards of Fourth Amendment reasonableness.

The reasonableness determination reguires a careful balancing of

governmental and private interests.

The private interests compromised by the seizure of records

from Rossi do not reach the level of compelling. In Place,

, the Court said, "The intrusion on possessory

interests occasioned by a seizure of one's personal effects can

vary both in its nature and extent. . . . [It is a] fact that

seizures of property can vary in intrusiveness . . . Officer

Cunha's seizure of the town records from Rossi was relatively

nonintrusive. As discussed above, Rossi retained full possession

of the records, and the seizure was constituted by a condition

placed on her right of possession, which is a less intrusive

28 interference with property than formal dispossession. She

enjoyed full use of the records as long as she remained at the

town hall. There is no indication that Rossi wanted to make some

use of the records that required her to remove them from the town

offices to her home. Under those circumstances, the interference

with Rossi's possessory interests was of minimal intrusiveness.

There are several governmental interests asserted in support

of the warrantless seizure of Rossi's property. First, while

Rossi had possession of the records at the time, the Town of

Pelham retained a reversionary interest under RSA 41:36, which

provides: "Whenever the term of office of a collector of taxes

shall end . . . [a]11 books, records and papers of the outgoing

collector shall be delivered to the selectmen by every person

having possession thereof, and the selectmen shall deliver those

needed for his work to the successor collector . . . ." Thus it

is contended that protection of the Town's reversionary interest

in the records qualifies as an important governmental interest.

However, the governmental interest in enforcing a regime of

property rights is no greater when the property belongs to the

government than to a private individual. As an owner of

property, the government is on equal footing with other private

individuals. See generally Reeves v. Stake,

(1980).

In other words, a seizure of property is not more or less

29 reasonable depending on whether the property is owned publicly or

privately. Next, the town argues that the seizure served the

town's administrative interests in maintaining accurate financial

records. Rossi's removal of the records from town hall may have

threatened the proper administration of the town's financial

affairs, which was thwarted by seizing the records from Rossi.

The court finds that, on balance, protecting the town's

administrative interests justified the limited intrusion on

Rossi's possessory interests in the records. For this reason.

Officer Cunha's seizure of property from Rossi was reasonable,

and in compliance with the Fourth Amendment.

Next, Rossi claims that Officer Cunha's conduct constituted

an unreasonable seizure of her person because he restrained her

freedom to leave the town hall. "Obviously, not all personal

intercourse between policemen and citizens involves 'seizures' of

persons. Only when the officer, by means of physical force or

show of authority, has restrained the liberty of a citizen may we

conclude that a 'seizure' has occurred." Terry v. Ohio,

, 19 n.16 (1967) . Officer Cunha did not restrain Rossi's

freedom of movement by physical force. Nonetheless, a seizure by

show of authority occurs "if, in view of all the circumstances

surrounding the incident, a reasonable person would have believed

that he was not free to leave." United States v. Mendenhall, 446

, 554 (1980) .

It is undisputed that one reason Rossi remained at the town

hall was to prepare the books and records for the pending

succession audit required under state law at the end of a tax

collector's term. As the Court in INS v. Delgado,

(1983), pointed out, "Ordinarily, when people are at work

their freedom to move about has been meaningfully restricted, not

by the actions of law enforcement officials, but by the workers'

voluntary obligations to their employers." In such cases, the

restriction on the employee's freedom of movement has been

voluntarily assumed rather than coercively imposed. In Delgado,

the workers' voluntary obligation was owed to a private employer,

as opposed to a public agency, as is the case here. However, the

obligation to remain at work does not become less voluntary when

owed to a public agency.

However, another reason Rossi remained at the town hall was

to avoid being dispossessed of the books and records. Rossi

wanted to finish preparing for the succession audit at home, but

she believed that Officer Cunha would dispossess her of the

records if she attempt to remove them from the town hall. To

avoid this, she remained at the town hall to finish her work.

While Rossi technically remained free to leave the town hall, she

was not free to leave with the records. The Supreme Court has

31 implied that a seizure of property may translate into a seizure

of person because the owner may be practically deprived of

freedom to leave until the property is returned. In Place,

supra,

, the Court said:

The precise type of detention we confront here is a seizure of personal luggage from the immediate possession of the suspect for the purpose of arranging exposure to a narcotics detection dog. Particularly in the case of detention of luggage within the traveler's immediate possession, the police conduct intrudes on both the suspect's possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary. The person whose luggage is detained is technically still free to continue his travels or carry out other personal activities pending release of the luggage. Moreover, he is not subjected to the coercive atmosphere of a custodial confinement or to the public indignity of being personally detained. Nevertheless, such a seizure can effectively restrain the person since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return.

By seizing the traveler's luggage, the government agents had put

the traveler to the choice between his interests in libertyand

property, because if he chose to leave the airport, he would be

abandoning his luggage to the seizing agents. Traveling without

luggage and its contents would be impracticable, so the

traveler's freedom to leave was empty, and his decision to remain

with his luggage was not entirely a product of voluntary choice

but was, to one degree or another, coerced. Soldal, U.S. at

, ___ , 113 S. C t . at 544 n.8 ("Place also found that to detain

32 luggage for 90 minutes was an unreasonable deprivation of the

individual's 'liberty interest in proceeding with his itinerary,'

which also is protected by the Fourth Amendment." (guoting

, 103 S. C t . at 2645-46)). In most

cases where a citizen decides to remain with property that is

seized by a government agent, the decision is an admixture of

voluntary choice and coerced compliance, and the guestion is

which element preponderates. For instance, the voluntary

elements preponderate in a case where, for example, a government

agent seizes a watch from the possession of a citizen. In such a

case, it would not be impracticable for the citizen to leave

without his watch, as it was for the traveler in Place to leave

without his luggage and its contents. Unlike Place, there is

substance to the citizen's freedom to leave, and if he decides to

remain with his watch rather than abandon it and make

arrangements for its return later, that decision would be largely

the product of voluntary attachment to the seized property.

Under such circumstances, seizure of the watch does not translate

into seizure of the owner.

Unlike the traveler in Place, it would not have been

impracticable for Rossi to leave the town hall without the

records that were seized from her possession by Officer Cunha.

However, unlike the citizen in the watch example, Rossi did not

33 decide to remain at the town hall purely out of attachment to her

property. Rather, if she had left the town hall, abandoning the

records to Officer Cunha, she could not have fulfilled her

employment duty to prepare the records for the succession audit.

Under these circumstances, Rossi's freedom to leave the town hall

was conditional on her disregarding a duty to her employer.

Rossi's decision to remain at the town hall was partially

coerced, and she was seized within the meaning of the Fourth

Amendment.

Analysis now turns to the reasonableness inguiry, which

entails a balance of public and private interests. The public

interest served by the seizure of Rossi is the town's

administrative concerns discussed above in assessing the seizure

of property claim. The private interests at stake are, once

again, not compelling. Rossi's decision to remain at the town

hall was not entirely coerced, but was in part voluntary. As

pointed out above, it would not have been impracticable for her

to leave without the records, and while she would have had to

disregard a duty to her employer, this was a duty that Rossi

voluntarily assumed. On balance, this limited intrusion on

Rossi's liberty interests was justified by the public interest in

maintaining accurate financial records; therefore, the seizure

was reasonable.

34 Qualified Immunity

Defendants Selectmen Flynn and Scott and Police Chief Rowell

seek qualified immunity under Harlow v. Fitzgerald,

(1982). Government officials enjoy qualified immunity from

civil damaqes for a section 1983 violation unless their conduct

violated a "clearly established statutory or constitutional riqht

of which a reasonable person would have known." In defininq the

term "clearly established riqht," the Supreme Court has noted

that

[t]he contours of the riqht must be sufficiently clear that a reasonable official would understand that what he is doinq violates a riqht. This is not to say that an official action is protected by qualified immunity unless the very action in question has been previously held unlawful, but it is to say that in the liqht of pre-existinq law, the unlawfulness must be apparent.

Anderson v. Creighton,

(1987) (citation

omitted).

This court finds that the individual defendants Flynn,

Scott, and Rowell did not violate a clearly established right.

At the time the defendants acted, there was no clearly

established right against warrantless work-related police

searches because it would have been reasonable to conclude that

such searches were permissible under Ortega, even when conducted

by police officers. Thus, the unlawfulness of Officer Cunha's

warrantless search of Rossi's office was not apparent, and the

35 defendants Flynn, Scott, and Rowell are therefore entitled to

qualified immunity.

Municipal Liability

The Town of Pelham seeks dismissal of Rossi's section 1983

claim brought against the municipality under Monell v. New York

City Pep't of Social Servs.,

(1978). Under

Monell, a municipality may not be held liable under section 1983

on a theory of respondeat superior solely because it employs a

tortfeasor. Rather, municipal liability attaches only if a

municipal "policy" or "custom" caused plaintiff's injury.

. Only those decisions by an official whom state law vests

with final decisionmaking authority over the subject matter

qualify as policy. City of St. Louis v. Propotnik,

(1988). However, a policymaker's single decision may

constitute official policy. Id.; Pembaur v. Cincinnati,

(1985) .

In this case. Officer Cunha acted pursuant to orders from

Police Chief David Rowell, who in turn was merely passing on

orders handed to him from the board of selectmen. New Hampshire

law vests the chief of police and the board of selectmen with

final decisionmaking authority to direct and control town police

officers in the performance of their official duties. RSA 105:

36 2-a states, in pertinent part.

Subject to written formal policies as may be adopted by the appointing authority, each chief of police . . . of any city or town who is appointed rather than elected, shall have authority to direct and control all employees of his department in their normal course of duty . . . .

Since state law vests final decisionmaking authority in the

selectmen and the police chief, their decision to deploy Officer

Cunha to the town hall to search Rossi's office was official

policy. Thus, summary judgment on plaintiff's Monell claim

against the municipality is denied.

The Supreme Court's recent decision. Board of the County

Comm'rs of Bryan County v. Brown, ___ U.S. ,117 S. C t . 1382

(1997), does not undermine this conclusion. In Brown, the

subject of allegedly excessive police force claimed that the

municipality was liable for her injuries based on the sheriff's

decision to hire the police officer who assaulted her.

Specifically, the police officer had a record of violent crimes,

and Brown claimed that the sheriff failed to review the officer's

background adeguately before hiring him. According to Brown, the

sheriff's hiring decision was official policy that caused

deprivation of her constitutional rights. The Court disagreed,

holding that the reguisite causal link between the municipal

policy and the deprivation of constitutional rights could only be

shown where "a municipal decision reflects deliberate

37 indifference to the risk that a violation of a particular

constitutional or statutory right will follow the decision." Id.

at 1392. Further, the Court held that deliberate indifference

could only be demonstrated if the sheriff hired the officer in

disregard of a known or plainly obvious risk of the particular

injury suffered by Brown. It was not enough that the sheriff may

have disregarded a merely foreseeable risk of some injury;

rather, "[t]he connection between the background of the

particular [police] applicant and the specific constitutional

violation alleged must be strong." Id.

This court believes that Brown has no application to the

facts of this case. Rather, Brown was intended to govern cases

where the municipal policy is not itself unconstitutional, but

rather is said to cause a downstream constitutional violation.

On the facts of Brown, the sheriff's decision to hire the police

applicant without adeguately reviewing his background was not

itself unconstitutional, but Brown claimed that the sheriff's

decision caused violation of her constitutional rights when the

hired police applicant used excessive force against her. In such

cases, the Court held that "rigorous standards of culpability and

causation must be applied to ensure that the municipality is not

held liable solely for the actions of its employee." Id. at

1389. The heightened deliberate indifference standard enunciated

38 by the Brown court was intended to ensure that a strong causal

link existed between a municipal policy, by itself

constitutional, and the underlying constitutional violation in

order to preclude a pure respondeat superior theory of the

municipality's liability.

When, as here, the policymaker specifically directs or

orders the conduct resulting in deprivation of constitutional

rights, there is a straightforward causal connection between the

municipal policy and the constitutional violation. The municipal

policymakers in this case, the selectmen and Police Chief Rowell,

directed Officer Cunha to engage in the conduct that constituted

a violation of Rossi's constitutional rights. Even under the

most rigorous standards of causation, the causal connection

between the municipal policy and violation of Rossi's

constitutional rights is plain and obvious; therefore, there is

no need to inguire whether the heightened deliberate indifference

standard enunciated by the Brown court is met.

State Claims

Plaintiff has also asserted several state law claims,

including false imprisonment, defamation, and intentional and

negligent infliction of emotional distress. The claims will be

addressed in that order.

39 Defendants seek summary judgment for plaintiff's false

imprisonment claim on grounds that plaintiff was not unlawfully

confined, but rather voluntarily remained at the town hall.

According to defendants, while Officer Cunha indicated he would

prevent Rossi from removing the books and records from the town

hall, he did nothing to indicate to Rossi that she was not free

to leave. However, as discussed above in addressing the seizure

of person claim, force or threats thereof against property in the

possession of another may constitute an unlawful confinement of

the owner who remains to protect his property. Prosser and K eaton

on the La w of T orts § 11, at 50 (5th ed. 1984) . "In a substantial

number of cases, false imprisonment was found where one's freedom

of motion was surrendered because of force directed against

valuable property, as where a woman remained in a store because

her purse was taken, or left a train because her suitcase was

removed from it." Id. Since Officer Cunha indicated to Rossi

that she was not free to leave with the books and records, he

confined her.

However, the confinement was not unlawful because it was

privileged. Tort law recognizes a privilege to confine another

if it appears reasonably necessary in defense of property.

Prosser & K eeton at 131. Officer Cunha was defending the town's

interest in the records, and the resort to self help was all the

40 more justified given the importance of the town's administrative

interests that would have been compromised if the records were

lost or destroyed.

Defendants next seek summary judgment on plaintiff's

defamation claim premised on the selectmen's order to Police

Chief Rowell directing him to place a police guard on Rossi. To

establish defamation, a plaintiff must show that the "defendant

failed to exercise reasonable care in publishing, without a valid

privilege, a false and defamatory statement of fact about the

plaintiff to a third party." Gordon T. Burke & Sons v. Indep.

Mechanical Contractors,

,

(1993). A communication is defamatory "if it tends so to harm

the reputation of another as to lower him in the estimation of

the community." Prosser and K eeton at 774. However, even if Rossi

could convince this court that the selectmen's order was false

and defamatory, the communication was privileged under an

immunity that extends to government officials ensuring that "the

administration of government should not be hampered by the fear

of lawsuits." Prosser and K eeton at 821; Surry v. Bolduc,

(1972) .

Selectmen have authority to manage the "prudential

affairs" of the town, empowering them to do "'only such acts as

are reguired to meet the exigencies of ordinary town business

41 . . . DeRochemont v. Holden,

(1954) (quoting

Moulton v. Beals,

). The authority to manage the

prudential affairs of the town would ordinarily include authority

to take apparently necessary measures to protect the town records

from threatened destruction. The selectmen made the allegedly

defamatory statement about Rossi to discharge the public duties

of their office, and the defamation was privileged.

Emotional Distress

Defendants seek summary judgment on plaintiff's two separate

claims for negligent and intentional infliction of emotional

distress. First, defendants correctly point out that the

exclusivity clause of the New Hampshire's Workers' Compensation

Law bars some of Rossi's claims for infliction of emotional

distress. The exclusivity clause provides:

281:12 Employees Presumed to have Accepted. An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions hereof and on behalf of himself, or his personal or legal representatives, to have waived all rights of action whether at common law or by statute or otherwise: I. Against the employer or the employer's insurance carrier; and II. Except for intentional torts, against any officer, director, agency, servant or employee acting on behalf of the employer or the employer's insurance carrier.

RSA 281 :12 (1987) .

42 Clearly, part I of the exclusivity clause bars both the

intentional and negligent infliction of emotional distress claims

against the municipality. In addition, part II of the clause

bars the negligence claim against Peter Flynn, Paul Scott, and

David Rowell as servants of a participating employer. Part II,

however, permits plaintiff's claim for intentional infliction of

emotional distress against the individual defendants.

Next, defendants argue that plaintiff cannot establish a

prima facie case for intentional infliction of emotional

distress. The R estatement notes:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

R estatement (Se c o n d ) o f T o r t s § 46, at 73 (1965) . This court holds

as a matter of law that recitation of the fact that defendants

placed a police guard on Rossi would not arouse resentment in the

breast of an average member of the community leading him to

exclaim, "Outrageous!"

43 Conclusion

For the foregoing reasons, the motion for summary judgment

as to defendants Peter Flynn, Paul Scott, and David Rowell is

granted in its entirety. The motion is also granted as to the

Town of Pelham except as to the section 1983 claim based on the

unreasonable search of plaintiff Rossi's office.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

September 29, 1997

cc: Michael L. Donovan, Esg. Donald E. Gardner, Esg. Diane M. Gorrow, Esg.

44