Johnson v. Town of Duxbury
Opinion
This appeal concerns a suit that a police officer in the Town of Duxbury, Massachusetts (the "Town") filed under
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 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 *104 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 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 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 The defendants moved for summary judgment. The District *105 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.
,
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
,
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
,
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 Ontario, Cal.
v.
Quon
,
"The Fourth Amendment generally requires that the government obtain a warrant based on probable cause before conducting a search,"
United States
v.
Hood
,
*106
(Harlan, J., concurring)), "with regard to those items ('persons, houses, papers, and effects') that it enumerates,"
United States
v.
Jones
,
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
,
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
,
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
,
*107
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
,
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 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
,
The Court first announced the third-party doctrine in
United States
v.
Miller
,
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
,
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
,
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 *109 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.
,
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.
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."
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.
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.
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 observation of a transaction between two independent parties."
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
,
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.
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 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.
Reference
- Full Case Name
- Brian JOHNSON; Kelley O'Neil; Christopher Johnson; Minor Child, Plaintiffs, Appellants, v. DUXBURY, MASSACHUSETTS; Matthew Clancy, Defendants, Appellees.
- Cited By
- 14 cases
- Status
- Published