As an attorney, I understand that employees have a limited expectation
of privacy when dealing with items, spaces, etc. owned by employers
and can thus be searched by employers without violating constitution
rights of employees.  As a police officer, I also understand how
search warrants work.  As an attorney and a police officer, I
understand subpoena duces tecum and other methods of obtaining
documentation and information.

My question is a combination of these concepts based on the following
hypothetical situation:

A police officer is issued a BlackBerry device for their use.  It is
not shared with other employees.  In conjunction with the BlackBerry,
the employee is also assigned a city email account which is used in
conjunction with the BlackBerry via BlackBerry's Enterprise Server
software.  The messages are maintained in city servers and are also
accessible through the Microsoft Exchange Server via webmail or
network terminal.  I assume that an employer has no legal barrier to
reading those email messages, and basing disciplinary action on them,
if applicable.

Employees are also allowed to utilize the BlackBerry devices to access
email, through Verizon Wireless servers, hosted by other email
providers, such as gmail.  PIN messages are also available as a means
of communications for employees issued BlackBerry devices(not all
employees are issued BlackBerry devices; in fact generally only
upper-middle to upper management are issued BlackBerry devices).  My
understanding is that PIN messages are device to device messages that
do not reside on any server and are therefore currently not accessible
by employers without access to the device itself.

My assumptions are the following:

1) Messages using the city email service are accessible without any
type of warrant or subpoena;
2) BlackBerry PIN messages do not reside on any of the servers between
the two or more users involved in the message;
3) Outside email accounts such as gmail are forwarded to the device
through the wireless provider?s server, not the city?s server.

My questions, specifically, are:

1) Please correct any of the above assumptions.
2) Can the city access the outside email messages (i.e. gmail, yahoo,
aol, etc.) without a search warrant or subpoena if it is actually on
the BlackBerry device?
3) Can the city access the outside email messages without a search
warrant or subpoena if it has been deleted from the BlackBerry device
and exists only on a server somewhere?
3) Does the employee have an expectation of privacy with regard to
outside email messages funneled to the BlackBerry device?
4) If a search warrant or subpoena is required to obtained and/or read
the outside email messages, would that search warrant or subpoena need
to be directed to Google in the case of gmail, Yahoo in the case of
Yahoo mail, AOL in the case of AOL mail, etc. or would it be
sufficient to direct the search warrant or subpoena to the wireless
provider or server host in between the email provider and the
BlackBerry device?

I know it is a complicated question.  I will be happy to clarify as requested.

Please cite authority and I am particularly interested in Louisiana,
if it is a circuit specific or jurisdiction specific answer.

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Clarification of Question by attorney26-ga on 11 Jun 2006 11:01 PDT

I would like to examine this question as it relates to administrative
investigations and criminal investigations.  For clarification, my
hypothetical revolves around an administrative investigation of an
upper level management employee accused of neglecting his
responsibilities.  In my hypothetical, a criminal prosecution has been
ruled out.  However, it is possible that a criminal prosecution could
be initiated on an unrelated situation with similar facts.

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Clarification of Question by attorney26-ga on 11 Jun 2006 11:04 PDT

This is NOT a homework of exam question.  I have already graduated
from law school and passed the bar exam...

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Clarification of Question by attorney26-ga on 11 Jun 2006 11:21 PDT

The hypothetical employee in question would be protected by La. R.S.
40:2532, et seq. and is a municipal civil service employee.

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Clarification of Question by attorney26-ga on 12 Jun 2006 05:14 PDT

I will tip to compensate for a complex answer, if necessary.

Maybe just some things to add as food for thought (and I'm a
California cop, used to dealing with the protections we have in this
state, so forgive me if I make any incorrect assumptions about LA
law):

I would not assume the PIN message (assuming I understand what that
is) does not reside on a server.  If the service allows for "store and
forward" messages (one of the devices is out of range or turned off,
for example), then I would certainly expect the message to be stored
on a server somewhere, for some length of time.

I would also REALLY not assume that outside email accounts such as
gmail are forwarded to the device through the wireless provider?s
server, and not the city?s server.  The device, I assume, would have
some kind of address that is connected to the city's Blackberry
"account" (and I know very little about those things), so no matter
what you may tell gmail your Blackberry device address is, it would
seem to me that it's bound to be associated with the employer's server
in some fashion.

I'd be interested in knowing how/why messages from outside services
such as gmail or Yahoo! are sent to the Blackberry.  Again, I assume
the Blackberry device has some kind of internet address, and I would
further assume that in order to have messages sent to it, a user would
have to supply that address to the sender of any messages.  In so
doing, the user might be accepting the employer's terms and conditions
of use, since the user is utilizing's the city's device.

As for your question #2:

If the email message actually resides on the Blackberry device, and
the device is public property, it would seem the message would be
available to the employer.  If the message actually resides on a
private server, and the device accesses it each and every time the
user attempts to read it, then it would seem to me the employer would
need subpoena or warrant.  If you keep a Playboy magazine in your desk
at work, the employer would have access to it when/if they inspected
the desk, no?  If the magazine was at your home, then the employer
would not have access to it.

Question #3:

Because at some point, it DID exist on the Blackberry device?  That
would seem like awfully strange logic to me...see the above Playboy
magazine argument.  Just because the magazine WAS in my desk but is
now at my home, the employer should have no more right to it than if
it was never in my desk at work.

Second Question #3:

I can't quote you a law, of course, and I'm not really attempting to
definitively answer your question, but I cannot imagine a situation
where an employee could complain that private messages on a
publicly-owned device must remain private.  Private email messages on
my publicly-owned PC at work are certainly subject to inspection, I
don't see why a Blackberry device would be any different.

Question #4:

I would think you'd want to go to the original host.  There's no
guarantee the message would exist any longer than necessary for
delivery on any intermediate host.

What a fascinating question you have here.  I will be really
interested to see what sort of answer you get.