USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 96-2061

HECTOR VEGA-RODRIGUEZ, ET AL.,

Plaintiffs, Appellants,

v.

PUERTO RICO TELEPHONE COMPANY, ET AL.,

Defendants, Appellees.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

___________________

__________________________

Before

Selya, Circuit Judge,

_____________

Coffin, Senior Circuit Judge,

____________________

and Stahl, Circuit Judge.

_____________

__________________________

Rick Nemcik-Cruz,
________________

with whom

Charles S. Hey-Maestre
______________________

was on

brief, for appellants.

Vannessa Ramirez,
________________
Dep't of Justice, with

Assistant Solicitor General,

Puerto Rico

whom Carlos Lugo-Fiol, Solicitor General,

________________

Garcia & Fernandez,

____________________

and John M. Garcia

________________

were

on brief,

for

gain access

to

appellees.

__________________________

April 8, 1997
__________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.

As employers

_____________

increasingly

destined

issue.

and

sophisticated

to suffuse the workplace.

new

legal

This appeal

issues seem

raises such an

In it, plaintiffs-appellants Hector Vega-Rodriguez (Vega)

Amiut

Reyes-Rosado

determination

Company

technology,

that

(PRTC),

continuous

may

video

Constitution.1

(Reyes)

revile

their employer,

monitor

their

surveillance

Because

the red

the

the

district

Puerto Rico

work

area

without

flag of

by

court's

Telephone

means

offending

of

the

constitutional breach

does not fly from these ramparts, we affirm.

I.
I.

FACTUAL SURVEILLANCE
FACTUAL SURVEILLANCE

In conformity with

we

the

accepted summary judgment protocol,

recount the undisputed facts

appellants and adopt

in the light

their version

of any

most congenial to

contested facts

which

are material

e.g.,
____

Garside v.
_______

to our

consideration of

Osco Drug, Inc., 895

________________

the issues.

F.2d 46,

See,
___

48 (1st

Cir.

1990).

The

located

in

Executive Communications

the

Guaynabo, Puerto

company's

duty,

penthouse

Rico.

of

PRTC's

(the Center)

office

It maintains communication

various operating

but it does not

the

Center

units and

the senior

complex

is

in

between the

executive on

have primary corporate responsibility for

____________________

1To

the

extent that

litigation

for

their wives

and conjugal

and names two

makes

example, the

we treat

Reyes, and PRTC.

parties are

involved

in this

plaintiffs' complaint

identifies

partnerships as additional

plaintiffs

PRTC executives as

no discernible

Consequently,

other

difference
the case

codefendants
from
as if

their

an analytic
it involved

presence

standpoint.

only Vega,

security and

it does not house

cables, transmission

reasons, access

communication switching centers,

lines, or kindred equipment.

to the Center

foyer on the penthouse

is restricted; both

floor and the doors to

For security

the elevator

the Center itself

are inaccessible without a control card.

PRTC

employs

Vega, Reyes,

and

others as

attendants

(known colloquially as "security operators") in the Center.

monitor

computer banks

to detect

signals emanating

They

from alarm

systems at PRTC facilities throughout Puerto Rico, and they alert

the

appropriate

individual

authorities

employees

work

if

an

alarm

eight-hour

sounds.

shifts,

the

Although

Center

is

staffed around the clock.

The work space inside the Center consists of a large L-

shaped

area

assorted

space

is

that

contains

furniture (e.g.,

completely

the computers,

desks, chairs,

open and

no

the

monitors,

consoles).

individual

and

The work

employee has

an

system at

the

assigned office, cubicle, work station, or desk.

PRTC

installed

video

surveillance

Center in 1990 but abandoned the project when employees

In

June

of 1994,

the

company

reinstated video

groused.

surveillance.

Three

cameras survey

the work

space, and

a fourth

tracks all

traffic passing through the main entrance to the Center.

them

cover

visual;

the

eavesdropping

every

the

rest

cameras

area.

have

capability.

The

surveillance

no microphones

Video

or

None of

is exclusively

other

immediate

surveillance operates all day,

day; the cameras implacably record every act undertaken in

the work area.

A video

recorder

are

manager,

Daniel

there.

monitor, a switcher

located in

PRTC has

the

office

unit, and a

of the

Rodriguez-Diaz, and

Center's

the videotapes

no written policy regulating any

video surveillance, but

it is

either

the completed

the monitor

or

undisputed that no

video

general

are stored

aspect of the

one can

tapes without

view

Rodriguez-

Diaz's express permission.

Soon

(claiming

that

appellants

and

asserted,

other

after

it

PRTC

was

several

among other

than to

turned a deaf

pry

installed

desirable for

fellow

surveillance

security

employees

things, that

into employees'

ear, the

the

system

reasons),

protested.

the

They

the system

had no

behavior.

When management

appellants filed suit

in Puerto

purpose

Rico's

federal

district

court.

They

contended

that

the

ongoing

surveillance constitutes an unreasonable search prohibited by the

Fourth

Amendment,

violates

constitutionally-conferred

entitlement

to privacy, and abridges rights secured by the First

Amendment.

After the parties had

PRTC

for

moved

dismissal

individual defendants

court

found

accordingly.

In

merit in

taken considerable discovery,

and/or

summary

judgment,

moved for summary judgment.

these

submissions

and

The district

and entered

judgment

The appellants then prosecuted this appeal.

the pages that follow, we deal first with a problem

of how best to characterize the district court's ruling.

address the

claims.

the

appellants' illegal

Because

We then

search and invasion

of privacy

the appellants have neither briefed

nor argued

their First Amendment claim in this venue, we deem it waived

and

do not pursue it.

II.
II.

THE CHARACTERIZATION QUESTION

THE CHARACTERIZATION QUESTION

In an effort to

perspective,

put the characterization question into

we trace the events leading up to the lower court's

dispositive ruling.

PRTC moved in the alternative for dismissal,

Fed. R.

56.

Civ. P. 12(b)(6), or

summary judgment, Fed. R.

In passing upon the motion, the district court

idiom of Rule

but

materials dehors

clarify

employed the

12(b)(6) (i.e., it said that it was dismissing the

suit for failure

granted),

to state

the

a claim

praxis

the

of

upon which

Rule

pleadings).

these mixed signals;

56

It

relief might

(i.e.,

is

although these

it

imperative

litigation

do

trialworthiness

We

they

that

not

operate from

conclude that the district

reach

that

two rules

both are designed to cut

cases

court's order ought

we

share a

short the

threshold

different legal

be

considered

certain family resemblance

of

Civ. P.

of

templates.

to be tested

against the summary judgment standard.

We start from the text

of Rule 12(b), which stipulates

that

if "matters outside the

excluded

by the

court," a

pleading are presented

motion brought

under

to and not

Rule 12(b)(6)

"shall be treated as one for summary judgment and disposed of

provided

in Rule

56."

approach

to incipient

rules is

functional,

We have

noted before

conversion

questions

not mechanical.

that

as

the proper

implicating

these

See Garita Hotel Ltd.

___ ___________________

Partnership v. Ponce Fed. Bank, F.S.B., 958 F.2d 15,

___________
________________________

Cir.

18-19 (1st

1992) (stating the test as "whether the court actually took

cognizance of

[supplementary materials], or invoked

Rule 56, in

arriving at its decision").

Here, language in the district court's ruling indicates

that

Thus,

it must

have considered

under the Garita Hotel

____________

materials outside

test, conversion is

circumstance militates

strongly in

court's decree

granting summary

only

as one

factor that tugs in

judge's choice of phrase

the pleadings.

proper.

favor of treating

judgment.

a different direction

This

the lower

Perhaps the

is the district

but an appellate tribunal is not bound

by the label that a district court attaches to its rulings.

e.g., Estate of Soler v. Rodriguez, 63 F.3d 45, 47

See,
___

n.1 (1st Cir.

____

_______________

_________

1995); cf. Cloutier v. Town of Epping, 714 F.2d 1184, 1188

___ ________
_______________

Cir.

1983)

standard

(affirming

although

dismissal

the lower

under

court

the

summary

had dismissed

(1st

judgment

for

lack of

the

summary

perceptible unfairness.

PRTC's

jurisdiction under Fed. R. Civ. P. 12(b)(1) - (2)).

We

judgment

hasten

to

add

standard produces

that application

no

of

motion invoked Rule 56 as one of two possible avenues for relief,

and the

dispositive motions

filed by the

asked exclusively for summary judgment.

to

these

adequate

motions in

opportunity

kind.

By that

for discovery

individual defendants

The appellants responded

time,

and

the

there had

record was

been an

well-

developed.2

We therefore treat the challenged ruling as an order

for summary judgment.

Before ending this discussion, we pause to rehearse the

summary judgment

standard.

lengthy exegesis

is unnecessary.

must

undertake

de

novo

Given the

review,

It

standard's familiarity, a

suffices to say

construing

all

that we

reasonable

inferences from the evidence in the nonmoving party's favor.

Garside, 895
_______

judgment

F.2d at 48.

is to

"pierce the

Since the core

purpose of

boilerplate of

the pleadings"

examine the parties' proof to determine whether a trial

is necessary, Wynne
_____

See
___

summary

and

actually

v. Tufts Univ. Sch. of Med., 976 F.2d

_________________________

791,

794 (1st Cir. 1992), the entry of summary judgment is appropriate

if (and only if) no genuine issue exists as to

and the

See id.;
___ ___

moving party is entitled to judgment as a matter of law.

see also
___ ____

Fed.

formulation, a fact is

outcome

any material fact

R. Civ. P.

56(c).

In applying

"material" if it potentially

of the case, and an

evidence on it conflicts.

this

affects the

issue is "genuine" if the probative

See Garside, 895 F.2d at 48.

___ _______

III.
III.

THE FOURTH AMENDMENT

THE FOURTH AMENDMENT

PRTC is a quasi-public corporation.

tit.

27,

401-424

(1991).

It

See P.R. Laws Ann.

___

is, therefore,

a government

____________________

2To be sure, the appellants opposed summary judgment in part

for want of

an opportunity to

Garcia-Acevedo.

But

the appellants

argument in this court that it

the

district court's order

objection on appeal.
is

difficult to

depose PRTC's president,

who

conceded

at oral

would not be unfair to scrutinize

under Rule 56

did

At any rate, given our ratio

_____

imagine how

Agustin

this

shore up the appellants' case.

deposition, if

not renew that

decidendi, it
_________

taken, might

actor, see Kauffman v. PRTC, 841 F.2d 1169, 1170 (1st Cir. 1988);
___ ________
____

Torres-Ponce
____________

v. Jimenez, 113 P.R. Dec. 58, translated in 13 P.R.

_______
__________ __

Sup. Ct. Off'l Trans. 77, 91-93 (1982), subject to the suasion of

the

Fourth Amendment, see Buenrostro v. Collazo, 973 F.2d 39, 43

___ __________
_______

(1st

allege

Cir. 1992).

Building on

this foundation,

the appellants

that PRTC's continuous video surveillance contravenes the

"right of the people to be secure in their persons . .

unreasonable searches."

U.S. Const. amend. IV.

We consider that

allegation.

A.

. against

Privacy Rights and the Fourth Amendment.

A.

Privacy Rights and the Fourth Amendment.

_______________________________________

Intrusions

implicate the

upon

personal

Fourth Amendment.

the constitutional line only

upon

some

Maryland,
________

mantra,

objective

reasonable

442

privacy expectation

expectation of

466 U.S. 170,

the

straightforward

as reasonable.

component

inquiry into

of

See
___

To qualify

meet

complainant

177 (1984); Smith,

_____

subjective

intrusions cross

of privacy.

must

privacy, and that

society recognizes

not invariably

if the challenged conduct infringes

740 (1979).3

the

do

Rather, such

expectation

U.S. 735,

criteria:

privacy

under this

both subjective

must

have

an

expectation must be

See Oliver
___ ______

test

and

actual

one which

v. United States,
_____________

442 U.S. at 740.

the

Smith v.
_____

Determining

requires

the complainant's

only

state of

mind,

and,

for purposes

arguendo
________

that

the

of

this appeal,

appellants,

we

are willing

as

they

tend

to

profess,

to

assume

had

some

adjectives

like

____________________

3In

this

"reasonable,"

context,

courts

"legitimate,"

or

use

"justifiable"

interchangeably.

See Smith, 442 U.S. at 740.

___ _____

subjective

expectation of privacy while at work.

We turn, then,

to the

objective reasonableness

of the asserted

expectation of

privacy.

In previous cases, the

type

of

question

Framers'

by

intent, the

Supreme Court has answered this

examining

uses

such

to which

location, and society's understanding

person's

home)

intrusions.

deserve

heightened

diverse factors

an

individual has

put

the

that certain areas (say, a

protection

See Oliver, 466 U.S. at

___ ______

as

178.

from government

But the Court has not

developed a routinized checklist that is capable of being applied

across

the

according

Mancini,
_______

alia,

board,

to

and

its own

8 F.3d

each

scenario.

104, 109

the totality

of

case

therefore

See,
___

(1st Cir.

must

be

judged

e.g., United States v.

____ ______________

1993)

circumstances, the

(considering, inter
_____

ability to

regulate

____

access

With

to particular

this in

principles

mind,

premises,

and

we proceed

by

the individual's

first surveying

status).

the

legal

that relate to searches of business premises and then

narrowing our focus to the facts of this case and the appellants'

asseverational array.

B.
B.

Privacy Rights and Business Premises.

Privacy Rights and Business Premises.
____________________________________

Generally

speaking,

privacy expectations than

v. United States, 429

_____________

Search & Seizure

________________

business

do residences.

U.S. 338, 353

premises invite

See G.M. Leasing Corp.

___ __________________

(1977); 1 Wayne R.

2.4(b) (3d ed. 1996).

lesser

Still, deeply

LaFave,

rooted

societal expectations foster some cognizable privacy interests in

business premises.

See

Oliver, 466 U.S. at 178

n.8; Mancusi v.

___

______

_______

DeForte,
_______

392

U.S.

protections that

safeguard

364,

(1968).

these expectations

individuals not

enforcer but also

367

entail are

only against

qua employer.
___

The

Fourth

Amendment

versatile; they

the government

qua law
___

See National Treasury Employees

___ ___________________________

Union v. Von Raab, 489 U.S. 656, 665 (1989).

_____

________

The watershed case in

jurisprudence

is

O'Connor
________

v.

this enclave of Fourth Amendment

Ortega,
______

480

U.S.

709

(1987).

O'Connor's central thesis is that a public employee sometimes may

________

enjoy a reasonable expectation of privacy in his or her workplace

vis- -vis searches

public

employer.

realities

of the

by a supervisor or other

Withal,

privacy

O'Connor recognized that "operational

________

workplace," such

procedures, or regulations,

expectations.

representative of a

as actual

office practices,

frequently may undermine

Id. at
___

717 (plurality

op.).

employees'

The four

dissenting Justices shared this belief, see id. at 737 (Blackmun,

___ ___

J., dissenting), and subsequent case law

confirms it, see, e.g.,

___ ____

Von Raab,
________

489

U.S.

objective component

privacy

at

669-72.

of

an employee's

must be assessed in

employment relation.

In

See
___

the

last

analysis,

professed expectation

the full context

the

of

of the particular

O'Connor, 480 U.S. at 717;

________

Mancini, 8
_______

F.3d at 109.

O'Connor is a typical case in which a public employee's

________

workplace-based privacy

was on administrative

when

hospital

interests were

leave from

personnel,

entered his office and

vindicated.

his post at

investigating

a state

misconduct

removed personal items from his

10

Dr. Ortega

hospital

charges,

desk and

file

cabinets.

Ortega

480 U.S. at

712-13.

had a reasonable expectation

file cabinets because he

The Court

of privacy in

did not share them with

held that Dr.

his desk and

other workers,

he used them to store personal materials, and the hospital had no

policy discouraging employees from stashing personal items there.

See id. at 718-19.

___ ___

issue,

majority

Moreover, although the plurality eschewed the

of the

Justices

believed

that Dr.

Ortega

maintained a reasonable privacy expectation in his private office

as well.

See id. at
___ ___

731-32 (Scalia, J., concurring); id. at 732

___

(Blackmun, J., dissenting).

Applying

federal courts

O'Connor in various
________

have inquired into

work area in question

work environments, lower

matters such

was given over to an

as whether

employee's exclusive

use, compare Thompson v. Johnson County Community Coll., 930

_______ ________
_______________________________

Supp. 501,

of

area

exclusive

(9th

sealed

video surveillance

from

view

or

use) with United States

____ _____________

Cir. 1991)

against

F.

507 (D. Kan. 1996) (finding no reasonable expectation

privacy against

not

the

(finding

surreptitious video

of an

provided

unenclosed locker

for

v. Taketa, 923
______

a reasonable

surveillance

any

employee's

F.2d 665, 673

expectation of

by DEA

privacy

agents in

an

office reserved for the defendant's exclusive use), the extent to

which others had

Television,
__________

reasonable

access to the work

KTIV
____

868 F. Supp. 1146, 1159 (N.D. Iowa 1994) (finding no

expectation

credenza located in an

the

space, see O'Bryan v.

___ _______

of

privacy

in

an

unlocked

"open, accessible area" of

nature of the employment,

see Sheppard v.
___ ________

desk

and

the station),

Beerman, 18 F.3d
_______

11

147,

152

(2d Cir.

1994)

(finding

that

a law

clerk

had

no

reasonable expectation

of

privacy in

chambers'

appurtenances,

desks, file cabinets, or other work spaces due to the open access

of

documents

between judges

regulations placed

and

employees on

clerks),

and whether

notice that certain

intrusions, compare Schowengerdt

_______ ____________

office

areas were

subject

to employer

States,
______

944 F.2d 483, 488 (9th Cir. 1991) (finding no reasonable

expectation of privacy

engineer

searches)

knew

of

in either office or locked

security

including

and American Postal Workers Union

___ _______________________________

Postal Serv., 871 F.2d 556,

_____________

reasonable expectation

lockers

regimen,

when

employer

560-61 (6th Cir.

of privacy against

had

promulgated

v. United
______

credenza when

daily

office

v. United States
______________

1989) (finding no

search of

employees'

regulations

expressly

authorizing random

Taketa, 923
______

did not

and
___

inspections

in certain

F.2d at 672-73 (finding

defeat an

McGregor v.
________

Greer,
_____

748 F.

by co-workers

with
____

that unenforced regulations

otherwise reasonable expectation

Supp.

(finding that public employee's own

entered

circumstances)

881, 888

of privacy)

(D.D.C.

1990)

desk or office, normally not

or superiors,

may engender

a reasonable

expectation of privacy in the absence of any policy or regulation

warning otherwise).

C.
C.

Privacy Interests in the Appellants' Workplace.

Privacy Interests in the Appellants' Workplace.
______________________________________________

We

begin

with

first

principles.

It

is

simply

implausible to suggest that society would recognize as reasonable

an employee's

expectation of privacy against

being viewed while

toiling

in the

Center's

open and

undifferentiated work

area.

12

PRTC

did

not

provide

the

work

exclusive use, and its physical

station

for

the appellants'

layout belies any expectation of

privacy.

Security operators do

cubicles.

They toil instead in a vast, undivided space

area

not occupy

private offices

or

a work

so patulous as to render a broadcast expectation of privacy

unreasonable.

The

See O'Connor, 480 U.S. at 717-18.

___ ________

precise

extent

of an

privacy often turns on the nature

id. at 717-18;
___

instance the

id. at 738
___

legitimate

operation of the workplace,

this

See
___

In this

strengthens the conclusion

privacy attends the work area.

interest

in

the

efficient

see id. at 723, and one attribute of

___ ___

interest is that supervisors may monitor at will that which

is in plain view within an

attribute

has

a greater

employer acted overtly

PRTC

of an intended intrusion.

nature of the intrusion

possess

expectation of

(Blackmun, J., dissenting).

that no reasonable expectation of

Employers

employee's

open work area.

claim

on our

in establishing

Here, moreover, this

allegiance

the video

because the

surveillance:

notified its work force in advance that video cameras would

be installed and disclosed the cameras' field of vision.4

Hence,

____________________

4While
subjective

this
and

circumstance
objective

bears

heavily

reasonableness

expectation of privacy, we do not

of

on

both

the

an

employee's

mean to imply that an employer

always can defeat an expectation of privacy by pre-announcing its

intention to intrude into a specific area.
U.S. at

740

suddenly

n.5 (hypothesizing

to announce

henceforth would be

on

their homes, papers,

"if the

Government

were

that all

homes

nationwide television

subject to

still might entertain an

that

See, e.g., Smith, 442

___ ____ _____

warrantless entry,"

individuals

actual expectation of privacy regarding

and effects); see

___

also Heather L.
____

Hanson,

Note, The Fourth Amendment in the Workplace: Are We Really Being

___________________________________________________________
Reasonable?,
___________
which

79 Va.

notice would

L. Rev.
contradict

243, 250-52 (1993).

expectations

13

In

cases in

that comport

with

the

affected workers were on

clear notice from

the outset that

any

movements they might make and any objects they might display

within the work area would be exposed to the employer's sight.

The

appellants

employees should

while

at

work.

expect to

But at

becomes unreasonable.

electronic and,

human eye, never

terms,

In

concede

that,

their theory

a general

be under supervisors'

some

point, they

matter,

watchful eyes

argue, surveillance

their estimation, when surveillance is

therefore, unremitting

blinks

as

the

the

die is cast.

reduces to the

camera, unlike the

In

constitutional

contention that

the Fourth

Amendment precludes management from observing electronically what

it lawfully

can see with the

naked eye.

has failed

consistently under

the plain

This

sort of argument

view doctrine, and

musters no greater persuasiveness in the present context.5

LaFave, supra,
_____

2.7(f)

(expressing skepticism about

Fourth Amendment violation by

person's public

See 1
___

finding a

fixed police video surveillance of

activities).

When

all

employees must accept some circumscription

condition

it

of continued employment.

is said

and

done,

of their liberty as a

See INS v. Delgado, 466 U.S.

___ ___
_______

210, 218 (1984).

Once we put aside the appellants' theory that

there is

____________________

traditional

Fourth Amendment

freedoms, a

normative inquiry

is

proper

to

nonetheless

determine
legitimate.

whether

the

privacy

expectation

is

See Hudson v. Palmer, 468 U.S. 517, 525

___ ______
______

n.7 (1984); Smith, 442 U.S. at 740 n.5.

_____

5We caution, however, that cases involving the covert use of

clandestine cameras, or

cases involving

electronically-assisted

eavesdropping, may be quite another story.

14

something constitutionally sinister about videotaping, their case

crumbles.

If there is constitutional parity between observations

made

with the

naked

eye and

displayed video cameras

or articles that an

observations

recorded by

that have no greater range, then objects

individual seeks to preserve as

be constitutionally protected from

are not located in plain

openly

view.

private may

such videotaping only if they

See Taketa, 923 F.2d at 677.

___ ______

In

other words, persons cannot reasonably maintain an expectation of

privacy

in that

stated the

which

they display

openly.

proposition in no uncertain terms

"What a person knowingly

Justice

Stewart

three decades ago:

exposes to the public, even in

his own

home or office, is not a subject of Fourth Amendment protection."

Katz v. United States,

____
_____________

389 U.S. 347, 351 (1967).

Consequently,

no legitimate expectation of privacy exists in objects exposed to

plain

view as long as the viewer's presence at the vantage point

is lawful.

See
___

Horton v.
______

(1990); Oliver,
______

California, 496
__________

466 U.S. at

179.

observation is

accomplished by

naked eye, and

recorded on

memory, does

And the mere

a video

into a constitutionally forbidden

133, 137

fact that

camera rather

film rather than

not transmogrify

U.S. 128,

in a

than the

supervisor's

constitutionally innocent

one.6

the

See 1 LaFave,
___

act

supra,
_____

____________________

6It

is true, as

human observation
But we

is less

implacable

than video

point out, that

surveillance.

can find no principled basis for assigning constitutional

significance

to

observation and
Thus,

the appellants repeatedly

that

divagation.

video surveillance

videotaping

per

se

does not

perspective in any material way.

15

Both
perform
alter

methods

human

the same function.

the

constitutional

2.7(f)

(stating

that individuals

can

record

what is

readily

observable from a nonintrusive viewing area).

The bottom line is that since PRTC could

to

monitor the work

assign humans

station continuously without constitutional

insult, it could choose instead to

carry out that lawful task by

means of unconcealed video cameras not equipped with microphones,

which record only what the human eye could observe.

D.

The Appellants' Other Fourth Amendment Arguments.

D.

The Appellants' Other Fourth Amendment Arguments.

________________________________________________

The

asseverations

appellants

in their

trot

out a

effort

profusion

to convince

of

additional

us that

continuous

video surveillance of the workplace constitutes

search.

First,

invoking

Orwellian

catechism

pasted

together

from

pronouncements

recognizing

the

surveillance.

These

Without

exception,

surreptitiously during

See,
___

statements

they

the

pieces

intrusive

refer

course of

of

nature

taken

to

they

out

cameras

criminal

judicial

of

of

video

context.

installed

investigations.

1442

(10th Cir. 1990); United States v. Cuevas-Sanchez, 821 F.2d

_____________
______________

248,

(5th Cir. 1987); Hawaii

______

Mesa-Rincon, 911
___________

recite

F.2d 1433,

251

e.g., United States v.

____ ______________

imagery,

bits and

are

an impermissible

v. Bonnell, 856
_______

P.2d 1265, 1276-77

(Haw. 1993).

criminal

Concealed cameras which infringe upon the rights of

defendants

raise troubling

constitutional

concerns

concerns not implicated by the employer's actions in this case.

By like token,

the appellants'

attempts to

video monitoring to physical searches are unavailing.

video surveillance which

occurs at the Center is

16

analogize

The silent

less intrusive

than

most

physical searches

stationary

desks,

record

cabinets, or

only what

is

Sounds

are not recorded; thus,

private

conversations between

occasionally

search,

has

employers.

other enclosed

plainly visible

the cameras do

employees.

characterized

PRTC's

the

on

spaces, but,

the surface.

not eavesdrop on

And while

taking of

the Court

pictures

as

it is a constitutionally permissible activity if it does

not transgress an objectively

See, e.g., Dow Chem. Co. v.

___ ____ _____________

were limited

buildings

to

and equipment,

reasonable expectation of privacy.

United States, 476 U.S. 227,

_____________

(1986) (upholding a search by

taken

by

cameras do not pry behind closed office doors or into

drawers, file

rather,

conducted

238-39

aerial camera when the photographs

the outline

even though

of

the surveilled

the photos

plant's

revealed more

detail than could be seen by the human eye).

Next, the appellants complain

the

cameras'

perform

unrelenting eyes

any other

movement in

true, but it begs the question.

whether

person

chooses

they

that while at work under

cannot

privacy.

scratch, yawn,

This

or

complaint rings

"[T]he test of legitimacy is not

to

conceal

assertedly

`private'

activity," but whether the intrusion is objectively unreasonable.

Oliver, 466
______

U.S. at 182-83;

accord California
______ __________

v. Ciraolo,
_______

476

U.S. 207, 212 (1986).

Finally, the

abuse,

arguing,

for

appellants tout the potential

example,

that

surveillance "into the restrooms."

PRTC

might

for future

expand

video

Certainly, such an extension

would raise a serious constitutional question.

See, e.g., People

___ ____ ______

17

v. Dezek, 308 N.W.2d 652, 654-55 (Mich. Ct. App. 1981) (upholding
_____

a reasonable expectation of privacy against video surveillance in

restroom

stalls).

horrible

imaginings,

constitute searches

See Dow

But

present fears

are

potential
_________

privacy

and

within the purview of

Chem., 476 U.S. at

often no

more than

invasions do

not

the Fourth Amendment.

238 n.5; United States

v. Karo, 468

___ __________

_____________

____

U.S. 705, 712 (1984).

We have said enough on this score.

failed

to demonstrate the existence of an issue of material fact

sufficient

Amendment

to

withstand

claim.

reasonable

video

The appellants have

Because

expectation of

summary

they

judgment

do

not enjoy

privacy against

surveillance while at work,

on

their

an

Fourth

objectively

disclosed, soundless

they have no

cause of action

under the Fourth Amendment.7

IV.
IV.

THE RIGHT OF PRIVACY

THE RIGHT OF PRIVACY

In

addition

to

appellants contend that the

in

the nature

of

their

Fourth

Amendment

claim,

the

Constitution spawns a general right,

privacy

surveillance in the workplace.8

right,

to

be

free

We do not agree.

from

video

Although

the

Constitution

creates

no

free-floating

____________________

7In light of this conclusion, we need not reach the question

of whether the intrusion

attributable to PRTC's video monitoring

is reasonable under the circumstances.

See O'Connor, 480 U.S. at

___ ________

725-26.

8As

presented

rises or falls on

in this

proceeding, this

claim necessarily

principles of federal constitutional law.

We

are aware both that privacy interests are somewhat more zealously
guarded by Puerto Rican norms, see, e.g., P.R. Const. art. II,
___ ____

1, 7, and that the appellants have a parallel suit pending in the

local courts.

18

right

to

privacy,

see
___

Katz,
____

389

U.S.

at

350-51,

guarantees may create

protectable zones of privacy.

Davis,
_____

424 U.S. 693,

712-13 (1976); Roe v.

___

152-53

(1973).

prosper

Thus,

unless it

the appellants'

is anchored

in an

specific

See Paul v.
___ ____

Wade, 410 U.S. 113,

____

privacy

claim

cannot

enumerated constitutional

guaranty.

The Fourth

purpose.

introduce

Amendment obviously is unavailable for this

See supra Part III(C) & (D).

___ _____

the Ninth

Ninth Amendment

Amendment

The appellants' effort to

is similarly

which stipulates that "the

misdirected.

The

enumeration in the

Constitution of certain rights, shall not be construed to deny or

disparage others

retained

substantive rights beyond

by

the

people"

does

532, 537 (6th Cir. 1991); see

___

John E. Nowak & Ronald D. Rotunda, Constitutional Law

__________________

as

create

those conferred by governing law.

Gibson v. Matthews, 926 F.2d

______
________

ed.

not

See
___

also
____

11.7 (5th

1995) (observing that "the Ninth Amendment has not been used

the basis

for defining

rights of

individuals") (collecting

cases).

The appellants' privacy claim

to privacy

concept

which has

of personal liberty.9

Roe, 410 U.S. at

___

rights

its origin

in the

thus hinges upon a right

Fourteenth Amendment's

Such privacy rights do exist, see

___

152, but they have been limited

that are implicit in

the concept of

to fundamental

an ordered liberty.

See
___

Paul, 424 U.S. at 713.

____

On the facts of this case, the right

____________________

9The Fourteenth
state

Amendment guarantees,

shall "deprive any

person of life,

without due process of law."

inter alia,
_____ ____

that no

liberty, or property,

U.S. Const. amend. XIV,

1.

19

to be free from disclosed video surveillance while at work in

an

open, generally accessible area does not constitute a fundamental

right.

The courts

privacy

rights

have

recognized by

bundle of rights relates

kinds

of significant

ensuring

identified two

the

clusters of

Fourteenth

personal

Amendment.

to ensuring autonomy in making

personal decisions;

the other

the confidentiality of personal matters.

One

certain

relates to

See Whalen v.
___ ______

Roe, 429 U.S. 589, 598-600 (1977); Borucki v. Ryan, 827 F.2d 836,
___
_______
____

840 (1st Cir. 1987).

PRTC's monitoring does not implicate any of

these rights.

The autonomy

branch of the

Fourteenth Amendment right

to privacy is limited to decisions arising in the personal sphere

matters

relating

to

marriage,

procreation,

family relationships, child rearing, and the like.

contraception,

See Paul, 424

___ ____

U.S.

at

713;

Griswold v.
________

type

of

Connecticut,
___________

(1965).

The

threatened

by workplace surveillance

any of these categories.

governmental

privacy

interest

U.S. 479,

which

cannot be

485-86

arguably

is

shoehorned into

Because the appellants do not challenge

restriction

uniquely personal

381

imposed

upon

matters, they cannot bring

decisionmaking

in

their claim within

the reach of the "autonomy" cases.

The

appellants'

confidentiality

bough

privacy.

if

broader

Even

of

argument

the

the right

is no

Fourteenth

of

stronger

Amendment

confidentiality has

under

the

right

to

range

than that associated with the right to autonomy, but cf.

___ ___

20

Borucki,
_______

827

F.2d

at

confidentiality protects

within

the scope of

extended

financial,

n.8

beyond

841-42

only

(suggesting

prohibiting profligate

and other intimately personal

video surveillance

the

information relating

the right to autonomy),

& 842 (collecting cases).

that

right of

to

matters

that range has not

disclosure

data.

of medical,

See
___

id. at 841
___

Any data disclosed through PRTC's

is qualitatively

different, if for

no other

reason than that it has been revealed knowingly by the appellants

to all observers (including the video cameras).

This information

cannot

"personal"

be

characterized

accurately

as

or

"confidential."

The appellants also appear to rely upon the substantive

component of the Due Process Clause as a source of the envisioned

privacy

right.

graveyard.

are

this extent,

The boundaries

not sufficiently

claim.

the

To

scope

of

substantive

to

due process

past the

process analysis

accommodate the

424 U.S. at 713

interest in preventing publication

see
___

are whistling

of substantive due

flexible

See, e.g., Paul,

___ ____ ____

they

appellants'

(declining to enlarge

to

include

privacy

of a person's arrest record);

generally Collins v. City of Harker Heights,

_________ _______
_______________________

503 U.S. 115,

125

(1992)

(expressing reluctance

"to

expand

the concept

of

substantive due process").

Insofar as this claim invites a substantive due process

analysis by purporting to

challenge the existence of a

rational

relationship between PRTC's video surveillance and its legitimate

needs qua employer, the claim is a non-starter.

___

21

Even if we leave

security concerns to one side,10 video surveillance is a rational

means to advance the employer's legitimate, work-related interest

in monitoring

employee performance.

See O'Connor, 480

___ ________

U.S. at

724 ("[P]ublic employers have a direct and overriding interest in

ensuring that the work of the agency is conducted in a proper and

efficient manner.");

Alinovi v.
_______

776,

1985) (stating

782

interest

(1st Cir.

may

oversight

be

lessened

Worcester Sch. Comm.,

____________________

due to

responsibilities and

that an

employee's privacy

"supervisor's

the special

777 F.2d

legitimate

duties that

may be

owed by the employee by virtue of his employment").

V.
V.

LEAVE TO AMEND
LEAVE TO AMEND

In a last-ditch effort to save the day,

assert

the appellants

that the district court should have granted them leave to

amend

and that its

judgment.

failure to

do so

requires vacation

of the

The assertion is meritless.

The short, dispositive answer to the appellants' plaint

is that they never sought permission to amend in the court below.

See Beaulieu
___ ________

v. United States IRS, 865 F.2d 1351, 1352 (1st Cir.

_________________

1989) ("[I]t is

that might

court

a party's

fairly have

been thought

before seeking it on

equally

first obligation to

dispositive answer

available in

appeal.").

is that

seek any

The

relief

the district

slightly longer but

where, as

here, plaintiffs

____________________

10The

appellants

improper judicial

berate

the

notice of the

enforcement agencies authorized to

district

court

Center's role in

for

assisting law

perform wiretaps.

has been plenary, and whether PRTC coordinates wiretaps

bear

on our analysis.

taking

Our review

does not

Accordingly, any error in this regard was

harmless.

22

elect

to stand upon their

complaint and appeal

judgment, we have been exceedingly

court

from an adverse

reluctant to direct the trial

to permit amendment upon affirmance of the judgment.

e.g., Dartmouth Review v.

____ ________________

Cir. 1989).

Dartmouth Coll., 889 F.2d 13,

_______________

Nothing in this

See,
___

23 (1st

case warrants a deviation from that

sound

praxis.

The

facts necessary

judgment are undisputed and

any

support the

the appellants have not

additional facts which,

breathe

to

if inserted into

leave to amend would

be an empty

Correa-Martinez v. Arrillaga-Belendez, 903

_______________
__________________

of

adverted to

the record, could

new life into their moribund federal claims.

circumstances,

entry

Under such

exercise.

See
___

F.2d 49, 59 (1st Cir.

1990); Dartmouth Review, 889 F.2d at 23.

________________

VI.
VI.

CONCLUSION
CONCLUSION

We need go no

further.

Because the appellants

do not

have an objectively reasonable expectation of privacy in the open

areas

of their

workplace, the

their

employer

does not

rights.

video surveillance

infract

PRTC's employees may

their

conducted by

federal constitutional

register their objections

to the

surveillance system

with management, but they may

the Constitution for support.

Affirmed.
Affirmed.
________

23

not lean upon