Opinion
06 CR 102 (RPP).
January 5, 2007
OPINION ORDER
By motion dated July 14, 2006, Defendant Natarajan Venkataram ("Raju") moved to suppress physical evidence seized by New York City Department of Investigation ("DOI") investigators from (1) his office at Bellevue Hospital, and (2) from his office at 520 First Avenue. On September 26, 2006, the Court held an evidentiary hearing to determine whether there were facts sufficient to suppress the evidence. At the hearing, DOI officials Robert Roach, Sam Amorese, and David Vandernaalt testified for the Government. The Court then requested supplemental briefings, which were submitted on November 10, 2006. For the reasons that follow, Mr. Venkataram's motion to suppress is denied.
I. BACKGROUND
In October 2004, New York City Department of Investigation ("DOI") officials commenced an investigation into computer services contracts that the Office of the Chief Medical Examiner ("OCME") awarded to a company named Comprehensive Computer Resources ("CCR"). (Hr'g Tr. 347, 368.) Specifically, Defendant Venkataram was suspected of "inappropriate procurement activities in relation to the acquisition of software" involving CCR. (Id. 347.) Control of the investigation was given to DOI Chief-of-Staff Robert Roach in approximately February or March of 2005. (Id. 346.) Mr. Roach has an extensive legal background in criminal law including working as an Assistant Attorney General from 1986 to 1995, and as an Assistant District Attorney in Manhattan from 1995 to 2001. (Id. 374.)
Defendant Natarajan Venkataram was employed as the Director of Management Information Systems at the Office of the Chief Medical Examiner ("OCME") since 1992. (Id. 346, Venkataram Affirm. Sept. 9, 2006 ¶ 1.) In this position he occupied two separate offices: one at Bellevue Hospital and another at Room 219 of OCME headquarters located at 520 First Avenue. (Venkataram Affirm. Sept. 14, 2006 ¶ 2-4; Hr'g Tr. 393, 427.) Room 219 at OCME headquarters was the technology hub for OCME and contained approximately fifteen computer servers. (Venkataram Affirm. Sept. 9, 2006 ¶ 4.) The Bellevue office contained OCME computer equipment, and Mr. Venkataram kept it locked at all times, with only building security having access besides himself. (Venkataram Affirm. Sept 14, 2006 ¶ 4-5.) Following September 11, 2001, Mr. Venkataram worked fifteen hour days. (Venkataram Affirm. Sept. 9, 2006 ¶ 8.) As a result, he conducted some personal business from the offices. (Id.) He spent approximately three days a week for a total of approximately ten hours at the Bellevue Office. (Venkataram Affirm. Sept. 14, 2006 ¶ 6.)
On August 9, 2005, Defendant Venkataram was questioned by Mr. Roach, Sam Amorese (DOI Inspector General for OCME), Stephan Zander, and Rose Gill Hearn (DOI Commissioner of Investigation) at the DOI offices located at 80 Maiden Lane about his relationship with CCR and several other companies suspected to be "shell companies" that were receiving and cashing checks from CCR. (Hr'g Tr. 347-48.) At the conclusion of the meeting, Mr. Venkataram was informed that the following morning he would receive official notice of a thirty-day suspension of his employment. (Id. 348.) Mr. Venkataram then agreed to accompany Mr. Amorese and Department of Information Technology Telecommunications ("DOITT") personnel to the OCME offices to orient them to the computer systems that he had managed so that OCME could continue to operate during his absence. (Id. 348-49.) Mr. Venkataram spent several hours explaining the computer systems to the DOITT staff with Mr. Amorese, including showing DOITT some computer equipment in his Bellevue office. (Id. 467.) Later in the evening, Mr. Venkataram asked Mr. Amorese if he could remove two personal items from the office. (Id. 350, 467-68.) Mr. Amorese asked Mr. Roach for instructions on how to respond to the request, and Mr. Roach responded that Mr. Venkataram "could take whatever personal items that he wanted to, but that Mr. Amorese should check the items before Mr. Venkataram left with them to ensure that they were personal and not property of the OCME." (Id. 350-351.) Mr. Amorese testified that he would not have permitted Mr. Venkataram to remove any objects which were not obviously personal on their face. (Id. 471) Specifically, he would not have permitted Mr. Venkataram to remove any documents or computer media. (Id.) Without knowledge of Mr. Amorese's restrictions, Mr. Venkataram only asked to take a few personal items including a framed photography of his parents and some type of award, both of which Mr. Amorese permitted him to remove that evening. (Id. 351, 467-68.)
In his September 9, 2006 Affirmation, Mr. Venkataram states that "Mr. Amorese did not allow [him] to remove any of [his] personal items" from his office at 520 First Avenue, and that when he asked Mr. Amorese if he could pick up his personal items from 520 First Avenue, Mr. Amorese did not answer. (Venkataram Affirm. Sept. 9, 2006 ¶ 11.) There was no testimony in support of this claim; however, at the hearing Mr. Amorese denied Mr. Venkataram ever made such a request. (Hr'g Tr. 467-68.)
Following Mr. Venkataram's suspension, DOI locked the OCME computer facilities at Bellevue Hospital including Defendant Venkataram's and Defendant Abreu's offices, giving OCME employees the instruction that only DOI and DOITT personnel were permitted to enter. (Id. 353, 450-52.) In addition, Mr. Venkataram's Bellevue Hospital office was locked and no one was permitted entrance without the specific permission of Mr. Roach. (Id. 353, 447.) Mr. Venkataram's office at 520 First Avenue was also locked, with Mr. Roach granting access to no one. (Id. 354.) At no time after August 9, 2005 did Mr. Venkataram or his counsel contact DOI and ask to remove personal property from any OCME office. (Id. 351.)
Mr. Venkataram resigned his position at OCME by letter on September 8, 2005. (Hr'g Tr. 362-63; Def's Ex. 10.) Shortly after the resignation — between September 10 and 12 of 2005 — OCME general counsel Jody Lipton contacted DOI, claiming that she needed the physical space of the defendants' offices at Bellevue Hospital. (Hr'g Tr. 353-56.) Since Mr. Venkataram had already resigned, Mr. Roach organized a search of Mr. Venkataram and Ms. Abreu's Bellevue Hospital offices by DOI personnel on September 13, 2005 to "separate out OCME property," "inventory and secure personal property," and secure any evidence of wrongdoing related to DOI's investigation. (Id. 356.) Roach supervised the DOI officials performing the search; the investigators first photographed the premises, and then labeled each door and cabinet before systematically cataloguing the contents of each using two-person teams of searchers and recorders. (Id. 357-58.) The search was performed solely by members of DOI, without any personnel from OCME taking part. (Id. 379.) No documents were discarded, and the documents left in the offices were those that Roach believed might be useful to DOITT. (Id. 379-80.) The investigators seized property including floppy disks, CD-ROM disks, and OCME computer hard drives, none of which was believed to be Mr. Venkataram's personal property. (Id. 358-59, 417-20, 442.) At no time after the search did DOI notify Mr. Venkataram or his attorney that he was "free to come in and pick up any property" that was recovered in the search. (Id. 442.)
The verbal request was confirmed by an e-mail sent to Mr. Roach by Nicole Murphy, the Assistant Commissioner of Human Resources at OCME. (Hr'g Tr. 365, 445-46; Def's Ex. 13.)
DOI also did a walk-through of Mr. Venkataram's office at 520 First Avenue but decided not to search that office. (Hr'g Tr. 359-60.) However, DOI had previously imaged the hard drives of the OCME-owned computers in Mr. Venkataram's office at 520 First Avenue. (Id. 360-61.)
II. DISCUSSION
A. Reasonable Expectation of Privacy in the Workplace
In order for the warrantless search of Defendant's offices to be illegal, Defendant must first show that he had a reasonable expectation of privacy in the areas searched at the time of the search, after which he must still show that the search was unreasonable. See O'Connor v. Ortega, 480 U.S. 709 (1987). Traditionally, to make this showing, the defendant "must demonstrate (1) that he had an expectation of privacy that society is prepared to consider reasonable and (2) that he had acted in a way with respect to the property in question that indicated a subjective expectation of privacy." Shaul v. Cherry Valley-Springfield Cent. Sch., 363 F.3d 177, 181-82 (2d Cir. 2004). The burden of showing standing — "that he had a legitimate expectation of privacy" — to object to the legality of a search rests with the defendant. Rawlings v. Kentucky, 448 U.S. 98, 104-05 (1980).
Although often invoked by courts when stating the test, the second, subjective prong is illusory and merges with the first prong. See Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 U. Minn. L.Rev. 349, 384 (1973-74).
Substantial expectation of privacy interests frequently exist in private property in the workplace. O'Connor v. Ortega, 480 U.S. 709, 721 (1987). However, even if an employee has a substantial reasonable expectation of privacy while at work, "[c]ertainly, the discharge or suspension of an employee greatly reduces — if not eliminates — his reasonable expectation of privacy in his former workplace." Shaul, 363 F.3d at 183.
B. Search of Defendant's Offices
While working at OCME, Mr. Venkataram may have had a substantial expectation of privacy in his offices. Access to the offices was highly restricted — they were kept locked by Mr. Venkataram. (Venkataram Affirm. Sept. 14, 2006, ¶ 4-5.) Mr. Venkataram spent approximately fifteen hours each day since September 11, 2001 working in the offices. (Venkataram Affirm. Sept. 9, 2006 ¶ 8.) Due to this heavy time commitment, he needed to use the office for limited personal uses in additional to his professional duties. (Id.) Given the intensity of his workload and security of his offices, Mr. Venkataram likely had some "expectation of privacy that society is prepared to consider reasonable" in his workspace. Shaul, 363 F.3d at 181-82. However, the issue here is not what reasonable expectation of privacy Mr. Venkataram had while an active employee at OCME, but what reasonable expectation of privacy he had in the areas searched "at the time of the search." O'Connor, 480 U.S. at 728.
In his September 14, 2006 Affirmation, Mr. Venkataram claims that he kept personal papers in desk drawers and personal files on the hard drives of the computers in his Bellevue office. (¶ 3-4.) There is no evidence that any of these papers or files were marked as personal property or clearly segregated from OCME property.
On the day of his suspension, August 9, 2005, Mr. Venkataram's actions indicated that he was knowingly relinquishing control over his offices. He voluntarily accompanied DOITT personnel to his offices at OCME headquarters and Bellevue Hospital and spent a few hours explaining the computer systems to them. (Hr'g Tr. 467.) This shows Mr. Venkataram was aware that he was yielding control of his offices, and the computer systems they contained, to DOITT pending the resolution of his suspension. Additionally, Mr. Venkataram asked to take a few personal items with him; specifically, a photograph and an award. (Id. 351, 466-68.) It is doubtful that Mr. Venkataram had some pressing need for these items — and made no such assertion in his affirmations — but it is instead probative of the fact that Mr. Venkataram realized he was going to lose control of his office space, perhaps permanently, and that he needed to take this opportunity to remove any personal documents or materials. He made no request to retrieve any personal items other than the two he was permitted to take at that time, nor has he made such a request at any later time. (Id. 351-52, 433-38, 467-68.)
Although Mr. Amorese's testimony suggests that he would not have permitted Mr. Venkataram to remove any documents or computer media materials from his office the night he was suspended, it is immaterial since Mr. Venkataram was not told of any such restriction; he only requested to take the two personal items. Finally, neither Mr. Venkataram nor his counsel ever requested from DOI an opportunity to retrieve personal items in the thirty days of Mr. Venkataram's suspension or in Mr. Venkataram's resignation letter dated September 6, 2005. (Def. Ex. 10.) As a result, by the time of the search of the Bellevue office on September 13, 2005, Mr. Venkataram had abandoned any reasonable expectation he might have had in repossessing the items in the offices he had occupied while working at OCME. See Shaul, 363 F.3d at 181-82.
Mr. Venkataram argues that he maintained a reasonable expectation of privacy in his offices at the time of the search on September 13, 2005, despite having already been suspended for thirty days and having resigned his position because, unlike in the teacher in Shaul, he was not provided with an adequate opportunity to recover his personal property. (Def. Mem 15.) Specifically, Mr. Venkataram reads Shaul to require an affirmative invitation to recover personal property by a former employer before reasonable expectation of privacy is lost. (Def. Post-Hr'g Mem. 3, quotingShaul, 363 F.3d at 183 ("'Taken together the demand [for his school keys] and the invitation [to remove personal belongings from his classroom] served as constructive notice that Shaul could have no reasonable expectation of privacy in anything that he did not remove from his former classroom after that date.'").) While undoubtedly a persuasive factor in Shaul for determining whether there was still a reasonable expectation of privacy, the case does not go so far as to require an employer to always provide an affirmative invitation in order for there to be sufficient notice that a privacy interest is being lost. The search in Shaul took place fifteen days after the teacher had been only suspended, while the search of Mr. Venkataram's Bellevue office took place more than thirty days after he had been suspended, as well as after he had officially resigned.
While a reasonable expectation of privacy may continue to exist following resignation if there is no opportunity at all to retrieve personal items, see Shaul, 363 F.3d at 183 (holding that the suspended schoolteacher forfeited his privacy interest in items left in his classroom by failing to retrieve them on the opportunities afforded), those facts are not present here. Mr. Venkataram had ample opportunity to inform DOI or OCME by himself or through his counsel that he needed to recover personal property from his former offices. He could have done so the night he was suspended; instead, Mr. Venkataram only requested permission to take two items, and that request was granted. He also could have made a request at any time during the thirty days of his suspension, in his resignation letter, or following his resignation. In the absence of a request for an opportunity to retrieve his other belongings until this motion was made, the Defendant Venkataram's motion to suppress physical evidence seized from his former OCME offices at Bellevue Hospital and 520 First Avenue is denied.
Mr. Venkataram argues that the language in his resignation letter requiring OCME to "contact [his] attorney's office in regard to any legal issues that may arise" placed the burden on OCME and DOI to contact him to provide an opportunity to retrieve any personal property before searching his former office. (Def. Post-Hr'g Mem. at note 3.) However, such general language does not suffice. It provides no notice to OCME or DOI that Mr. Venkataram still had personal property in his former offices or that he desired an opportunity to retrieve it.
IT IS SO ORDERED.