BRICCIO Ricky A. POLLO v. CHAIRPERSON KARINA CONSTANTINO-DAVID, et al. G.R. No. 181881, Oc o!

"# 18, $%11 A search by a government employer of an employees office is justified at inception when there are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-related misconduct. Pursuant to a letter-complaint anonymously sent by a concerned government employee about an employee of the Civil Service Commission (CSC) who has been helping accused government employees with a pending case in the CSC, Chairperson David of the CSC issued a memo directing a team to conduct an investigation and specifically "to bac up all the files in the computers found in the !amamayan !una (P"#D) and #egal divisions$" %valuating the sub&ect documents obtained from petitioner's personal files, Chairperson David observed that the draft pleadings or letters in connection with administrative cases in the CSC and other tribunals obtained from the computer assigned to Petitioner (riccio Pollo invariably raises the presumption that he was the one responsible or had a hand in their drafting or preparation since the computer of origin was within his direct control and disposition$ Petitioner Pollo denied that he is the person referred to in the anonymous letter-complaint because he is not a lawyer and neither is he "lawyering" for people with cases in the CSC$ )e pointed out that though government property, the temporary use and ownership of the computer issued under a !emorandum of *eceipt (!*) is ceded to the employee who may e+ercise all attributes of ownership, including its use for personal purposes$ ,n view of the illegal search, the files-documents copied from his computer without his consent is thus inadmissible as evidence, being "fruits of a poisonous tree$" .he CSC issued a *esolution finding Pollo guilty of Dishonesty, /rave !isconduct, Conduct Pre&udicial to the (est ,nterest of the Service and 0iolation of *epublic "ct 1234$ ,n its *esolution, the CSC relied on "merican &urisprudence, citing the leading case of OConnor v. Ortega as authority for the view that government agencies, in their capacity as employers, rather than law enforcers, could validly conduct search and sei5ure in the governmental wor place without meeting the "probable cause" or warrant re6uirement for search and sei5ure, and the ruling in United tates v. !ark ". imons which declared that the federal agency's computer use policy foreclosed any inference of reasonable e+pectation of privacy on the part of its employees$ .hough the Court therein recogni5ed that such policy did not, at the same time, erode the respondent's legitimate e+pectation of privacy in the office in which the computer was installed, still, the warrantless search of the employee's office was upheld as valid because a government employer is entitled to conduct a warrantless search pursuant to an investigation of wor -related misconduct provided the search is reasonable in its inception and scope$

HELD&

P" i io' DENIED. ,n this in6uiry, the relevant surrounding circumstances to consider include 7(3) the employee's relationship to the item sei5ed8 (9) whether the item was in the immediate control of the employee when it was sei5ed8 and (4) whether the employee too actions to maintain his privacy in the item$: .hese factors are relevant to both the sub&ective and ob&ective prongs of the reasonableness in6uiry, and the two 6uestions together must be considered together$ .he Court answers the first in the negative$ Petitioner failed to prove that he had an actual (sub&ective) e+pectation of privacy either in his office or governmentissued computer which contained his personal files$ Petitioner did not allege that he had a separate enclosed office which he did not share with anyone, or that his office was always loc ed and not open to other employees or visitors$ !oreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual circumstances, that petitioner had at least a sub&ective e+pectation of privacy in his computer as he claims, such is negated by the presence of policy regulating the use of office computers, as in imons. .he CSC in this case had implemented a policy that put its employees on notice that they have no e+pectation of privacy in ('y )i'* they create, store, send or receive on the office computers, and that the CSC may monitor the use of the computer resources using both automated or human means$ .his implies that on-the-spot inspections may be done to ensure that the computer resources were used only for such legitimate business purposes$ "s to the second point of in6uiry on the reasonableness of the search conducted on petitioner's computer, the Court answers in the affirmative$ " search by a government employer of an employee's office is &ustified at inception when there are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of wor -related misconduct$ ;nder the facts obtaining, the search conducted on petitioner's computer was &ustified at its inception and scope$ Petitioner's claim of violation of his constitutional right to privacy must necessarily fail$ )is other argument invo ing the privacy of communication and correspondence under Section 4(3), "rticle ,,, of the 3<=2 Constitution is also untenable considering the recognition accorded to certain legitimate intrusions into the privacy of employees in the government wor place under the aforecited authorities$ >e li ewise find no merit in his contention that OConnor and imons are not relevant because the present case does not involve a criminal offense li e child pornography$ "s already mentioned, the search of petitioner's computer was &ustified there being reasonable ground for suspecting that the files stored therein would yield incriminating evidence relevant to the investigation being conducted by CSC as government employer of such misconduct sub&ect of the anonymous complaint$ .his situation clearly falls under the e+ception to the warrantless re6uirement in administrative searches defined in OConnor$