Legal Challenges Confronting Private Security Operations: Administrative Searches

Published: 2019-10-31 14:00:00
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Corporations are expected to guard their property to eliminate any instances of theft or robber, hence the need to hire private security. However, there are administrative and legal implications of hiring private security. For instance, Chenkin v. Bellevue Hosp. CTR., N. Y. C., ETC. provides an example of the legal and administrative ramifications involved. In essence, as opposed to the policeman, who regards himself as an enforcer of the criminal law or keeps peace, the private security agent has no direct commitment either to public order or to law enforcement. As such, the agents do what they are paid for: guarding, use of electronic devices and dogs to detect intruders or theft. Essentially this is without getting involved with the wrong or rights of the profession. However, in Chenkin v. Bellevue Hosp. CTR., N. Y. C., ETC., the private security was brought in the limelight for allegedly using unconstitutional means to search employees at the hospital. The employee in question, Mr. Chenkin, refused to be searched even though it was part and parcel of the hospitals policy. In essence, the action challenged the legality of a regulation that was issued by the urban municipal hospital in its effort to diminish and deter pilferage of the hospital property. After refusing to be searched on two occasions, he was suspended from job for five days, and in effect, took the matter to the district court. The company based the suspension on insubordination, but Mr. Chenkin still held that the private security search violated his Fourth Amendment right.

The issues related to the search include violation of the Fourth Amendment, unreasonable search, as well as the violation of the principle of equal protection as it exempts womens pocketbooks from the requirements of the inspections. In relation to the case, it is important to note that the searches were random and not particularly directed to a single category of people. In Katz v. United States, the U.S. Supreme Court held that the constitutional Fourth Amendment is set to protect people and not places, from mainly unreasonable intrusions into their privacy by the government (Leagle, n.d). However, subsequent decisions have revealed that not all privacy interests, which a person can claim are constitutionally protected (Kilburn 1988). As such, the Fourth Amendment is subject to limitations. Therefore, in instances when the employee or plaintiff, like in the case, does not want a search, the scenario can be checked for reasonableness. The application of the Fourth Amendment is dependent on whether the individual invoking its protection can claim the reason to be unjustifiable. Essentially, according to Kilburn (1988) a legitimate or reasonable invasion of privacy is justifiable under the Fourth Amendment. As such, the justifiability relies on dual inquiry whether the person in question has a conduct that evinces a subjective treatment. In addition, an inquiry into whether the expectation, via an objective point of view, is justifiable under the circumstances is important. As such, private security will always operate on instances when their action is justifiable and reasonable. In essence, if these two aspects hold, then the search will be constitutional, and no violation of the Fourth Amendment will result. As such, from superficial view, it is clear that a plaintiff, and in this case being Mr. Chenkin, exhibited subjective and an actual expectation of privacy in his bag, as well as its contents. In addition, it is clear that this expectation cannot be rendered unreasonable even whether he worked in a big public hospital, or after it made the announcement for its inspection policy.

The court case provides private security perspectives based on Mr. Chenkin and the hospital in question. Mr. Chenkin articulated that the search was unconstitutional as it violated his Fourth Amendment right, which forbids warrantless searches. Mr. Chenkin also pointed out that the searches did not involve unique circumstances like those that are conducted in airport boarding gates where the court relaxes the Fourth Amendment right for public protection against threat of terrorism or great physical harm. As such, the hospitals pilferage of public property was certainly insignificant and not on the scale of airport terrorism. Mr. Chenkin also argued that the hospital inspection policy violated the equal protection principle as women were exempted from inspections of their pocketbooks. As such, the plaintiff pointed out that women enjoyed undeserved exemption. The plaintiff compared the knapsack he carried to the pocketbooks. In addition, Mr. Chenkin also pointed out that even though he had clearly been informed of the hospitals inspection policy, the general public who frequent at the hospital had no ideal about the policy, and therefore, these searches were unreasonable when applied to them. Lastly, he argued that he had to be compensated for the days he was suspended. On the other hand, Bellevue Hospital claimed that Mr. Chenkins subjective belief that the searches were unreasonable because the hospital was large and thus a big number of people traversed on a daily basis warranting protection of its property against pilferage. In addition, the hospital also pointed out that it needed measures to curb pilferage, and the inspection system adopted provided just that. The hospital also contended that it had warning posters displayed that announced the package control system and that the employees were fully aware of it. In addition, the employees had an option of not having their property searched by checking their bags upon entry, which averted the risk of random spot checks. Lastly, the checks were random and not subjective, which made the search reasonable and justifiable.

In consequence, the court ruled in favour of Bellevue Hospital. The court, having viewed the totality of all the accompanying circumstances and balancing the factors for consideration, ruled that the package control system and inspection was reasonable, fair, and was minimally intrusive. Besides, the strategy was effectively and efficaciously dealing with the public problem of pilferage, and thus, it is not prohibited under the Fourth Amendment (Leagle, n.d). The court also pointed out that its exemption for pocketbooks checks was from the hospitals rationality that pilfered items were more likely to be hidden in knapsacks compared to pocketbooks, and thus, no equal protection clause had been violated. In addition, by being part of the organization, the plaintiff had to abide by its policies.

The courts decision impacts security operations by ensuring that they adopt good policies, which allows reasonable and justifiable use of search against the Fourth Amendment. For instance, the court case proved that private security is a viable option for dealing with petty thefts and pilferages. However, the private security must operate within a policy set of the company and should minimally invade the privacy of the employees. In addition, the court decision meant that the employees should be provided with an alternative procedure, such as a checking system, that exempts those who do not want to be subjected to the random checks to avoid being sued. As such, putting in place a policy that allows these inspections is paramount. Besides, the employees must voluntary consent the inspections through signing the policy. Most importantly, employers may not conduct searches of the workers property of body even in instances when they suspect that the worker has committed a crime or stolen the entitys property.

To ACME Company, it is advisable that the executives should adopt a private security mechanism to control and deter internal theft that has cost the business tremendous losses. According to USLegal (n.d) public agencies are afforded greater protection against the searches under the US Fourth Amendment. In essence, this is by adopting an inspection policy. It should not be discriminatory. Besides, everyone in the organization should be aware of the inspections, and specify what exactly should be searched. In addition, it should not be discriminatory, which mean that all employees should be subject to the policy (Texas Workforce Commission, n.d). It should clearly state that the requested search is not an accusation of pilferage or theft, but a mere investigation. Also, it should state the punishment for refusing to be subjected to the search, which can range from suspension, warnings, or even termination. Further, it should be made clear that the search may include the workers, their vehicles if parked or driven into the business premises, work areas, lockers, as well as other personal items. However, as Clancy (1998) points out, the executives should also note that an employee should never be touched without their consent.

References

Clancy, T. K. (1998). What Does the Fourth Amendment Protect: Property, Privacy, or Security. Wake Forest Law Review, 33, 307.

Kilburn, E. M. (1988). Fourth Amendment: Work-Related Searches by Government Employers Valid on" Reasonable" Grounds. The Journal of Criminal Law and Criminology (1973-), 78(4), 792-827.

Leagle (n.d). 389 U.S. 347 (1967): Katz v. United States. Supreme Court of United States. Argued October 17, 1967. Decided December 18, 1967. Retrieved from http://www.leagle.com/decision/1967736389US347_1649/KATZ%20v.%20UNITED%20STATES

USLegal (n.d). Workplace Searches Law & Legal Definition. Retrieved from http://definitions.uslegal.com/w/workplace-searches/

Texas Workforce commission (n.d). Searches at work- legal issues to consider. Retrieved from http://www.twc.state.tx.us/news/efte/searches_at_work_legal_issues_to_consider.html

sheldon

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