Yes and no, regardless of Judge Napolitano’s rhetoric. Let us use three other examples. (1) The right of a police officer to reach in a person’s pocket during a pat down, (2) search a person’s trunk during a traffic stop, and (3) to enter a person’s home to search for evidence of a crime all require reasonable suspicion and probable cause. Reasonable suspicion is a reasonable presumption that a crime has been, is being, or will be committed. It is a reasonable belief based on facts or circumstances and is informed by a police officer’s training and experience. Reasonable suspicion is seen as more than a guess or hunch but less than probable cause.
Reasonable suspicion can be used for number (1) in the above, but it takes probable cause and a search warrant for number (2) and (3). However, if the officer asks if he can search your trunk or house and you say yes, he now has the right to do so. In Terry Vs Ohio, Terry was in mid-July, in 90 something degree weather walking in front of a bank in Cleveland Ohio with a long heavy winter coat on, and had what looked like a long gun underneath. The police officer with many years on the job done what we call a stop and frisk, which is really now known as a Terry stop. Upon patting him down, he felt a shotgun, which gave him further rights to reach inside of his coat.
The fact that Spicer asked for personal phones and ordering government phones be handed over shows that he was given legal advice before making such requests and demands. Unless they signed some kind of employment form waiving their rights, he would have to of had a search warrant to get the personal phones. However, by his asking and their consenting, he now had the right. The government phones is a bit of a different story. They and the information on them are supposed to be government property and can be asked to be returned at any moment. There is no expectation of privacy of the employee from the employer. It is no different that a Captain of the police department saying to an officer, give me your badge, your gun, and your bullet proof vest. All of those are the department’s property that was issued to the police officer. Being that these government phones were not to be used for private circumstances all information on them are expected to be government related and belong to the government.
With all of the leaks from the White House, anyone having access to the information is now under reasonable suspicion. It is a reasonable belief based on facts of leaks and the circumstances of who has access and based on government investigator’s training and experience that they have more than a hunch or guess that one of these people are behind the leaks. However, they do not have probable cause to search private phones, so, this is why Spicer asked. If a finance company had ten million dollars stolen off of a company computer, all people with access to that computer would be under reasonable suspicion. However, no one could go into their private phones, laptops, or homes, banking accounts, unless there was probable cause and search warrant to do so. Unless they have the investigator has permission. The investigator can even say something like, “Look you are under suspicion by the simple fact you had knowledge of all of the leaked information. If you give me your phone, I can remove you from the list of suspicion and over to the list of trusted workers.” A defense attorney could argue that this is inappropriate coercion but it is not. Investigators are given a lot of latitude to get confessions, including lying to the suspect.