Westbrook v. City of Omaha

Officer Westbrook was employed by the Omaha police department. During that time he arrested Darrel Williams and booked him into jail. When Williams was released from jail he made allegations that Westbrook had taken one hundred six dollars from him and did not return it.

Criminal and internal investigations were initiated by the Omaha police department. The prosecutor's office refused to prosecute Westbrook on the theft.

The internal investigation revealed that witnesses saw Williams had money at the time of his arrest. It was discovered that Westbrook was at a casino the day after the arrest where he placed a bet of one hundred and twenty dollars. Westbrook explained that he would go by an ATM and remove one hundred twenty dollars to gamble with. Based on that statement Westbrook was ordered to produce his bank records for the day of William's arrest and the next day of the bet. Westbrook produced the records which revealed that he did not make a withdrawal of funds from his bank account.

Williams took a polygraph and passed same. Westbrook took a polygraph which revealed deception on the questions regarding the missing money.

The Omaha police department determined through the internal investigation that Westbrook had mishandled the money. Furthermore, he had taken the money for his use. A letter was delivered to Westbrook delineating the results of the investigation in which, Westbrook admitted that Williams did have the money when he was arrested but, Westbrook gave false statements regarding the theft. The letter detailed acts of misconduct, operating procedures and violation of the collective bargaining agreement regarding inmate property, false statements, and the theft of William's one hundred and six dollars. The letter detailed those articles as the basis for proposed dismissal from employment.

A pre-termination hearing was conducted and Westbrook had retained counsel. Westbrook was given the opportunity to give his side of the story. The Omaha police department was given the opportunity to prove the charges and dismissed Westbrook for the violations. An arbitrator agreed and found cause for termination.

Westbrook sued the City of Omaha police officials for: "asserting unlawful search and seizure, and violation of due process springing from his employment termination. After losing on summary judgment, Westbrook appeals." (David J. Westbrook, Jr., Appellant, v. City of Omaha, Alan Pepin, Tim Cavanaugh, James Roberts, and Cecil Hicks, Appellees. Cavanaugh, James Roberts, and Cecil Hicks, Appellees. No. 06-1935 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT 231 Fed. Appx. 519; 2007 U.S. App. LEXIS 752)

Westbrook alleged that the Omaha police department's order to reveal personal bank records without a warrant was a violation of the fourth amendment. "He also asserts that the entanglement between the department's law-enforcement function and its employer status requires strict application of the Fourth Amendment's standard of reasonableness. He further claims that because the bank records were requested from him, and not the bank, they are private records entitled to Fourth Amendment protection. At issue is the department's policy governing employees subject to an internal affairs investigation that states: "An employee may be requested to submit to a financial disclosure statement." (David J. Westbrook, Jr., Appellant, v. City of Omaha, Alan Pepin, Tim Cavanaugh, James Roberts, and Cecil Hicks, Appellees. Cavanaugh, James Roberts, and Cecil Hicks, Appellees. No. 06-1935 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT 231 Fed. Appx. 519; 2007 U.S. App. LEXIS 752)

Furthermore "Searches and seizures by government employers or supervisors of the private property of their employees . . . are subject to the restraints of the Fourth Amendment." O'Connor v. Ortega, 480 U.S. 709, 715, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987); see Lesher v. Reed, 12 F.3d 148, 150-51 (8th Cir. 1994) ("A government employer's seizure of property possessed by an employee is clearly subject to Fourth Amendment restraints"). The fourth amendment should protect him from intrusion of privacy as a governmental employee under all circumstances. The courts viewed investigations of work related misconduct would be judged upon the reasonableness of the scope of the investigation.

The court ruled that due to under these circumstances the Omaha police department was reasonable in its request. The immediacy of the theft and the bet by the officer was indeed reasonable. The agency was conducting an internal not a criminal investigation. Therefore, the information could not be used in a criminal investigation. Had it been a criminal investigation the requirements for search and seizure would have been in effect.

As employees of government entities our lives are a book that must be opened occasionally. We have to be transparent to our agencies and the public. This particular portion of the case merely scratches the surface of what part of how far reaching the courts allow our employers to delve into our lives.



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