FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JERILYN QUON; APRIL FLORIO; JEFF          
QUON; STEVE TRUJILLO,
               Plaintiffs-Appellants,
                 v.
                                                 No. 07-55282
ARCH WIRELESS OPERATING
COMPANY, INCORPORATED, a                           D.C. No.
                                               CV-03-00199-SGL
Delaware corporation; CITY OF
ONTARIO, a municipal corporation;             Central District of
LLOYD SCHARF, individually and as                 California,
Chief of Ontario Police                          Los Angeles
Department; ONTARIO POLICE                         ORDER
DEPARTMENT; DEBBIE GLENN,
individually and as a Sergeant of
Ontario Police Department,
              Defendants-Appellees.
                                          
                     Filed January 27, 2009

   Before: Harry Pregerson and Kim McLane Wardlaw,
  Circuit Judges, and Ronald B. Leighton,* District Judge.

                            Order;
                Concurrence by Judge Wardlaw;
                    Dissent by Judge Ikuta




   *The Honorable Ronald B. Leighton, United States District Judge for
the Western District of Washington, sitting by designation.

                                1129
1130                QUON v. ARCH WIRELESS
                           ORDER

  Judges Pregerson, Wardlaw, and Leighton voted to deny
Appellees’ petition for panel rehearing. Judges Pregerson and
Wardlaw also voted to deny Appellees’ petition for rehearing
en banc, and Judge Leighton so recommended.

   The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the mat-
ter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc
reconsideration. Fed. R. App. P. 35. Judge Bybee was
recused.

  The petition for rehearing en banc is denied.



WARDLAW, Circuit Judge, concurring in the denial of
rehearing en banc:

   No poet ever interpreted nature as freely as Judge Ikuta
interprets the record on this appeal. The dissent is not bound
by the facts, even those found by the jury; nor is it confined
to the actual fact-driven Fourth Amendment holding. The dis-
sent’s lofty views of how the City of Ontario Police Depart-
ment (“OPD”) should have guided the use of its employees’
pagers are far removed from the gritty operational reality at
the OPD. I write only to correct the seriously flawed under-
pinnings of the dissent and to demonstrate that our opinion
carefully and correctly applied the tests set forth in O’Connor
v. Ortega, 

(1987). That our opinion follows
Supreme Court precedent and accords with our sister circuits
is obviously why this appeal failed to win the support of a
majority of our active judges for rehearing en banc.

                               I.

  The dissent selectively recites facts to support its disagree-
ment with the outcome of our panel’s Fourth Amendment
                    QUON v. ARCH WIRELESS                   1131
analysis. For a full recitation of the record evidence, read the
opinion. See Quon v. Arch Wireless Operating Co., 

, 895-99 (9th Cir. 2008). Set forth below are the key fac-
tual findings that the dissent either mischaracterizes or over-
looks entirely.

   The record belies the dissent’s assertion that the OPD offi-
cers were permitted to use the pagers only during SWAT
emergencies. Dissent at 1138. Sergeant Jeff Quon (“Quon”)
and other SWAT team members, who were required to be on
call “24/7,” had been issued the pagers pursuant to an agree-
ment with the OPD. The agreement to provide the officers’
pagers resulted from the OPD’s “refusal to pay overtime or
stand-by pay to officers who must be available for SWAT
call-outs.”

   Moreover, the record is clear that the City had no official
policy governing the use of the pagers. 

. At the time it contracted for the pagers, the City had in
place a general “Computer Usage, Internet and E-mail Policy”
(the “Policy”), which Quon had signed before the City even
acquired the pagers. 

Policy does not
expressly cover the pagers or text messaging. 

Lieutenant Steve Duke (“Lt. Duke”), a Commander with
the OPD Administration Bureau, Quon attended a 2002 meet-
ing during which Lt. Duke allegedly informed those in atten-
dance that the pager messages “were considered e-mail, and
that those messages would fall under the City’s policy as pub-
lic information and eligible for auditing.” 

recalled attending” the meeting. 

did not recall Lt.
Duke stating at the meeting that the use of the pagers was
governed by the Policy—a fact the dissent fails even to men-
tion. See 

still is the dissent’s failure to consider the
OPD’s informal—but express and specific—policy and prac-
tices that did govern the use of the pagers, or Lt. Duke’s role
in effecting this policy. By burying these key facts, the dissent
1132                QUON v. ARCH WIRELESS
again misrepresents the record. See Dissent at 1139-40. Lt.
Duke, who was officially in charge of administering the use
of the pagers and procuring payment of overage charges,
explained the informal policy as follows:

    “[T]he practice was, if there was overage, that the
    employee would pay for the overage that the City
    had . . . . [W]e would usually call the employee and
    say, ‘Hey, look, you’re over X amount of characters.
    It comes out to X amount of dollars. Can you write
    me a check for your overage[?]’ ”

(alterations in original). Lt. Duke told Quon that it
was “not his intent to audit employee’s [sic] text messages to
see if the overage is due to work related transmissions.” 

(alteration in original). According to Quon, Lt. Duke
stated that “ ‘if you don’t want us to read [your messages],
pay the overage fee.’ ” 

result of his official position,
Lt. Duke’s statements carried “a great deal of weight,” as the
district court found. Quon v. Arch Wireless Operating Co.,

, 1141 (C.D. Cal. 2006). Because the
record evidence showed that Lt. Duke was in charge of the
distribution and use of the pagers, the district court and our
panel concluded “it was reasonable for Quon to rely on the
policy—formal or informal—that Lieutenant Duke estab-
lished and enforced.” 

.

   The practices of the OPD were consistent with Quon’s
understanding of the informal policy. Quon exceeded the
monthly character limit “three or four times” and paid the
City for the overages. 

. Each time, “ ‘Lieutenant
Duke would come and tell [him] that [he] owed X amount of
dollars because [he] went over [his] allotted characters,’ ” and
Quon would pay the City for the overages. 

original). The City did not review any of Quon’s messages in
any of these instances. 

policy remained in
place until Lt. Duke suddenly let it be known that he was
“tired of being a bill collector with guys going over the allot-
                    QUON v. ARCH WIRELESS                  1133
ted amount of characters on their text pagers.” 

Chief of Police Lloyd Scharf ordered Lt. Duke to “ ‘request
the transcripts of those pagers for auditing purposes.’ ” 

-98. Lt. Duke obtained and reviewed the transcripts of the
messages sent and received by Quon, which revealed that
Quon “ ‘had exceeded his monthly allotted characters by
15,158 characters,’ and that many of [the] messages were per-
sonal in nature and were often sexually explicit.” 

   The dissent also oversimplifies and misstates the proce-
dural posture of the case. The parties filed numerous rounds
of motions for summary judgment. 

to the
Fourth Amendment claims, the district court found that, in
light of the OPD’s informal policy that the text messages
would not be audited, Quon had a reasonable expectation of
privacy in his messages. 

.
Our unanimous panel agreed. 

(“We
agree with the district court that the Department’s informal
policy that the text messages would not be audited if he paid
the overages rendered Quon’s expectation of privacy in those
messages reasonable.”). The dissent’s suggestion that we
reversed the district court’s holding as to Quon’s reasonable
expectation of privacy is untrue. Dissent at 1141.

   The dissent incomprehensibly ignores the jury portion of
the trial as to the purpose of Chief Scharf’s search of the
pager transmissions. Denying summary judgment, the district
court had ruled that a jury would decide “the actual purpose
or objective Chief Scharf sought to achieve in having Lieuten-
ant Duke perform the audit of Quon’s pager.” Quon, 445 F.
Supp. 2d at 1144. A jury trial was held, during which Chief
Scharf testified that he asked Lt. Duke to audit “the top two
[pagers] that were in excess of the 25,000 character[ ] [limit]
to determine if [the OPD] needed to add more characters, or
— if it was occurring on duty time, were the officers paying
for the overages where the city should be, because it’s cer-
tainly cheaper to add more characters than it is to pay for
overages if it was occurring on duty time.” By special verdict,
1134                QUON v. ARCH WIRELESS
the jury found that Chief Scharf’s purpose was to “determine
the efficacy of the existing character limits to ensure that offi-
cers were not being required to pay for work-related
expenses.” The jury expressly rejected the alternative
possibility—that Chief Scharf’s purpose was to uncover mis-
conduct. See 

. The dissent’s statement
that Chief Scharf “sent the matter to internal affairs for an
investigation ‘to determine if someone was wasting . . . City
time not doing work when they should be,’ ” Dissent at 1141
(alteration in original), is directly contrary to Chief Scharf’s
testimony and the jury’s factual finding, which was not even
the subject of an appeal by the City. The City, for reasons of
its own, was quite content to have the jury find a legitimate
purpose for Chief Scharf’s search, and, as any first-year law-
yer would agree, we are bound on appeal by the jury’s factual
determination.

                               II.

   The dissent incorrectly asserts that the opinion “departs”
from O’Connor, 

. 

in fact adheres
to O’Connor’s holding, explicitly acknowledging that “ ‘[t]he
operational realities of the workplace . . . may make some
employees’ expectations of privacy unreasonable,’ ” and that
privacy “ ‘may be reduced by virtue of actual office practices
and procedures, or by legitimate regulation,’ ” 

(alterations in original) (quoting 

). However, our opinion—unlike the dissent—
also recognizes that in O’Connor, the Supreme Court man-
dated a “ ‘case-by-case’ ” approach to determining whether an
employee has a reasonable expectation of privacy in the
workplace. 

(quoting 

). Further, our opinion follows the Supreme
Court’s instruction that “ ‘public employer intrusions on the
constitutionally protected privacy interests of government
employees . . . should be judged by the standard of reason-
ableness under all the circumstances.’ ” 

(emphasis added) (quoting O’Connor, 480 U.S. at
                    QUON v. ARCH WIRELESS                    1135
725-26). Thus, the analysis is necessarily fact-driven, and all
the factual circumstances surrounding the search must be con-
sidered.

   In affirming the district court’s holding, we followed the
Supreme Court’s mandate to evaluate the “operational reali-
ties of the workplace.” 

. The dis-
sent’s suggestion to the contrary is simply due to its flawed
description of the realities of the OPD workplace. By failing
to consider all the circumstances of the issuance and use of
the pagers for text messaging, the dissent perceives a conflict
with O’Connor where none in fact exists.

   The dissent’s concerns regarding the California Public
Records Act (“CPRA”) similarly lack merit. See Cal. Gov’t
Code § 6253(a). The existence of the CPRA as a consider-
ation is offset by the existence of the informal but express
policy and practices governing the use of the pagers by the
OPD officers. Moreover, as our panel (and the district court)
note, there was “no evidence before the [c]ourt suggesting
that CPRA requests to the department are so widespread or
frequent as to constitute an open atmosphere so open to fellow
employees or the public that no expectation of privacy is rea-
sonable.” 

(alteration in original) (inter-
nal quotation marks omitted); see Zaffuto v. City of
Hammond, 

, 489 (5th Cir. 2002) (holding that,
notwithstanding the existence of the public records law, “[a]
reasonable juror could conclude . . . that [the plaintiff]
expected that his call to his wife would be private, and that
that expectation was objectively reasonable”); see also Yin v.
State of Cal., 

, 871 (9th Cir. 1996) (“Although
there is little direct case law on point, obviously there are lim-
itations on the state’s ability to erode reasonable expectations
of privacy by statutory enactments.”).

                               III.

  The dissent distorts our holding as to the scope of the
search. We did not adopt a “less intrusive means” test. See
1136                  QUON v. ARCH WIRELESS
Dissent at 1138-39, 1144-46. The “less intrusive means” dis-
cussion relates to the jury’s finding that Chief Scharf con-
ducted the search for noninvestigatory purposes.

   O’Connor provides the framework for evaluating the rea-
sonableness of a search in this context, which the dissent does
not dispute. 

Applying this framework, we first
held that the search was reasonable “at its inception” because
the officers conducted the search for the work-related purpose
of ensuring that “officers were not being required to pay for
work-related expenses,” as the jury had found below. 

. We then turned to the second prong of the
O’Connor test: determining whether the measures adopted
were “reasonably related to the objectives of the search and
not excessively intrusive in light of . . . the nature of the [mis-

(internal quotation marks omitted).
Because “the Department opted to review the contents of all
the messages, work-related and personal, without the consent
of Quon,” we held that the search “was excessively intrusive
in light of the noninvestigatory object of the search.” 

. This holding was also based on our conclu-
sion that Quon’s “reasonable expectation of privacy in those
messages” was not outweighed by the government’s interest
—again, as found by the jury—in auditing the messages. 

incorrectly represents that we held that the
search was unreasonable “because the city could have used
less intrusive means to accomplish the objectives of the
search.” Dissent at 1144 (emphasis added). Although we cited
Schowengerdt v. General Dynamics Corp., 

,
1336 (9th Cir. 1987), we did not apply a “less intrusive
means” test.1 

-09; cf. Dissent at
1144-45 (conceding that “the panel does not explicitly state it
is applying a least restrictive means test”). We mentioned
  1
   In fact, we only considered Schowengerdt to the extent necessary to
consider the district court’s decision. See 

.
                    QUON v. ARCH WIRELESS                  1137
other ways the OPD could have verified the efficacy of the
25,000-character limit merely to illustrate our conclusion that
the search was “excessively intrusive” under O’Connor, when
measured against the purpose of the search as found by the
jury. 

. Moreover, the dissent’s conclu-
sion that we improperly analyzed the scope of the search is
dependent upon its faulty conclusion that Quon had a dimin-
ished or nonexistent expectation of privacy in the messages.
See Dissent at 1142, 1147-48.

   Our analysis is in no way inconsistent with the cases cited
by the dissent. See Dissent at 1142, 1147-48. The cases in
which the Supreme Court has cautioned against employing a
“least intrusive means” test have often involved circum-
stances in which the government had engaged in “years of
investigation and study” that resulted in “reasonable conclu-
sions” that the government conduct was necessary. Skinner v.
Ry. Labor Executives’ Ass’n, 

, 629 n.9 (1989).
By contrast, Chief Scharf impulsively ordered the search of
Quon’s messages without so much as pausing to consider
other ways to accomplish his stated goal of determining the
efficacy of the numeric character limit. See 

-09. Moreover, unlike in the cases cited by the dissent,
see Dissent at 1138-39, 1144-46, this case did not involve a
“special needs” search. In any event, because we did not use
a “least intrusive means” test, there is no conflict with either
the Supreme Court or our sister circuits.

                              IV.

   The dissent’s conclusion that our panel’s decision is “con-
trary to ‘the dictates of reason and common sense’ as well as
the dictates of the Supreme Court,” Dissent at 1148, is based
on its loose recitation of “facts,” untethered from the record
evidence or jury findings. It is the dissent—rather than our
opinion—that is at odds with O’Connor and the “operational
realities” of the OPD. By stripping public employees of all
rights to privacy regardless of the actual operational realities
1138               QUON v. ARCH WIRELESS
of each workplace, the dissent would have us create a far
broader rule than Supreme Court precedent allows. The
majority of our court properly rejected the dissenting judges’
efforts to do so.



IKUTA, Circuit Judge, dissenting from the denial of rehearing
en banc, joined by O’SCANNLAIN, KLEINFELD, TALL-
MAN, CALLAHAN, BEA, and N.R. SMITH, Circuit Judges:

   The Ninth Circuit holds that a city police department vio-
lated the Fourth Amendment because it audited the messages
sent from and received on its SWAT pagers to find out why
the department was exceeding its contract with its text mes-
sage service provider. According to the panel, the police
department’s failure to use a less intrusive search method vio-
lated a SWAT team member’s Fourth Amendment rights: “if
less intrusive methods were feasible, or if the depth of the
inquiry or extent of the seizure exceeded that necessary for
the government’s legitimate purposes, the search would be
unreasonable.” Quon v. Arch Wireless Operating Co., 

, 908-09 (2008) (alterations omitted).

   There are two problems with this conclusion: First, in rul-
ing that the SWAT team members had a reasonable expecta-
tion of privacy in the messages sent from and received on
pagers provided to officers for use during SWAT emergen-
cies, the panel undermines the standard established by the
Supreme Court in O’Connor v. Ortega, 

(1987),
to evaluate the legitimacy of non-investigatory searches in the
workplace. In doing so, the panel improperly hobbles govern-
ment employers from managing their workforces. Second, the
method used by the panel to determine whether the search
was reasonable conflicts with binding Supreme Court prece-
dent, in which the Court has repeatedly held that the Fourth
Amendment does not require the government to use the “least
intrusive means” when conducting a “special needs” search.
                   QUON v. ARCH WIRELESS                  1139
See Bd. of Ed. of Independence Sch. Dist. No. 92 of Pottawa-
tomie County v. Earls, 

, 837 (2002); Vernonia
Sch. Dist. 47J v. Acton, 

, 663 (1995); Skinner v.
Ry. Labor Executives’ Ass’n, 

, 629 n.9 (1989).
The panel’s decision to adopt a less intrusive means test con-
flicts not only with Supreme Court case law, but also with the
decisions of seven of our sister circuits.

   Because the panel’s decision adopts a standard that makes
it exceptionally difficult for public employers to go about the
business of running government offices, and in doing so con-
flicts with Supreme Court precedent and the decisions of
seven other circuits, I must dissent from the denial of rehear-
ing en banc.

                               I

   The Ontario Police Department obtained two-way pagers
for its SWAT team members to enable better coordination,
and more rapid and effective responses to emergencies. The
SWAT team members were told orally and in writing that
under the city’s applicable policy, the text messages, includ-
ing any personal messages, were subject to auditing and were
not private.

   Under the terms of the city’s contract with its service pro-
vider, each pager could send and receive 25,000 characters at
a flat rate; after that, the pagers incurred overage charges on
a per-character basis. 

. During the first
eight months the pagers were in use, a number of SWAT team
members went over the 25,000 character allotment. One of
the SWAT team members who exceeded the number of char-
acters was Sergeant Jeffrey Quon. Unbeknownst to the
department, Quon was using his pager to send and receive
both personal and sexually explicit text messages. 

  After reviewing one or two rounds of bills for the pagers,
Lieutenant Steve Duke (who was in charge of providing and
1140               QUON v. ARCH WIRELESS
accounting for the pagers) met with Quon about the overages.
Quon v. Arch Wireless Operating Co., 

,
1124 (C.D. Cal. 2006). Duke informed Quon that the text
messages were considered emails and subject to the city’s
computer usage policy, which allowed the department to audit
the pages. 

. Quon, as a member of the
police department and a city employee, had previously
received a copy of the city’s computer usage policy and had
signed a form acknowledging that he had reviewed and under-
stood the policy. 

Duke told Quon that, in order to
“streamlin[e] administration and oversight over the use of the
pagers,” Quon, 

. at 1125, if a SWAT team
member paid all overage charges, Duke would not audit the
text messages to determine if the team member’s overage was
due to business or personal use, but Duke also told Quon he
“needed to cut down on his transmissions.” 

. In April 2002, Quon was present at the supervisory
staff meeting when Lieutenant Duke reiterated that the text
messages sent from and received on the SWAT pagers were
subject to the city’s usage policy and could be audited. Quon
later received a memorandum from the Chief of Police stat-
ing: “Reminder that two-way pagers are considered email
messages. This means that messages would fall under the
City’s policy as public information and eligible for auditing.”

   In August 2002, less than four months after this meeting,
and after the pagers had been in use for only eight months,
Lieutenant Duke made it known that “he had grown ‘tired of
being a bill collector with guys going over the allotted amount
of characters on their text pagers.’ ” Quon, 

.
at 1125. In response, the Chief of Police ordered an audit of
the text messages to determine whether the police depart-
ment’s contract with their service provider was sufficient to
meet its needs for text messaging. 

-98.

   Upon examination of the transcripts, it was clear that Quon
was using the pager for more than the “light” personal use
allowed under the city’s policy. Of the more than 450 texts he
                    QUON v. ARCH WIRELESS                   1141
sent while on duty in a single month, only 57 of them were
for business purposes. The remainder were personal. The
Chief of Police sent the matter to internal affairs for an inves-
tigation “to determine if someone was wasting . . . City time
not doing work when they should be.” Quon (as well as his
wife and friends) filed suit, alleging that the police department
and individual officers had violated their Fourth Amendment
rights by reviewing the transcripts of the text messages sent
to and from Quon’s SWAT pager.

                               II

   The panel reversed the district court’s dismissal of the
Fourth Amendment claims based on two untenable conclu-
sions: First, the panel concluded that Quon had a reasonable
expectation of privacy in the text messages sent from and
received on his SWAT pager. Second, building on this errone-
ous conclusion, the panel concluded that the police depart-
ment’s search was not reasonable in scope because there were
less intrusive ways the police department could have deter-
mined whether the contract with its service provider was suf-
ficient to meet its paging needs.

                               A

   The panel departs from O’Connor v. Ortega in concluding
that Quon’s reasonable expectation of privacy in the text mes-
sages sent from and received on his SWAT pager was undi-
minished by the written policy or the needs of a police
department managing a SWAT team. O’Connor mandates a
practical approach to evaluating a public employer’s searches
of government offices and equipment. It requires us to con-
sider the “operational realities of the workplace” when deter-
mining whether an expectation of privacy is 

.

  Under O’Connor, a public employer may conduct searches
of employees subject only to a standard of reasonableness
1142                QUON v. ARCH WIRELESS
“under all the circumstances.” 

accord 

. Although “[i]ndividuals do not lose Fourth
Amendment rights merely because they work for the govern-
ment instead of a private employer[, t]he operational realities
of the workplace . . . may make some public employees’
expectations of privacy unreasonable,” and an employee’s
expectation of privacy “may be reduced by virtue of actual
office practices and procedures, or by legitimate regulation.”

(emphasis omitted).

   These principles establish that Quon’s expectation of pri-
vacy in the text messages he sent and received on his SWAT
pager was either significantly diminished or non-existent.
Quon was aware of the city’s written policy mandating that
even personal messages are subject to “access and disclo-
sure.” This official policy was reinforced by the “operational
realities” of this particular workplace. Quon was using a
SWAT pager, issued to him as a member of the SWAT team
to facilitate the police department’s goal of “enabl[ing] better
coordination and a more rapid and effective response to emer-
gencies by providing nearly instantaneous situational aware-
ness to the team as to the other members[’] whereabouts.”
Quon, 

at 1123. Given that the pagers were
issued for use in SWAT activities, which by their nature are
highly charged, highly visible situations, it is unreasonable to
expect that messages sent on pagers provided for communica-
tion among SWAT team members during those emergencies
would not be subsequently reviewed by an investigating
board, subjected to discovery in litigation arising from the
incidents, or requested by the media.

   Moreover, messages sent from and received by the SWAT
pagers may be subject to the California Public Records Act,
which makes most police records accessible to the public and
requires police departments to review and disclose an excep-
tionally wide range of public records. Under this act, “[p]ublic
records are open to inspection by the public at all times during
the office hours of the state or local agency and every person
                    QUON v. ARCH WIRELESS                   1143
has a right to inspect any public record,” except under speci-
fied circumstances. Cal. Gov’t Code § 6253(a). Government
employees in California are well aware that every government
record is potentially discoverable at the mere request of a
member of the public, and their reasonable expectation of pri-
vacy in such public records is accordingly reduced. As noted
in O’Connor, where the public has access to a government
workplace, it may be that “no expectation of privacy is rea-

.

  In light of these operational realities, a police officer could
not reasonably expect to keep communications over a SWAT
pager confidential. Rather, Quon could have avoided expo-
sure of his sexually explicit text messages simply by using his
own cell phone or pager. See 

(not-
ing that a government employee “may avoid exposing per-
sonal belongings at work by simply leaving them at home”);
see also Katz v. United States, 

, 351 (1967)
(“What a person knowingly exposes to the public, even in his
own home or office, is not a subject of Fourth Amendment
protection.”).

   Under these circumstances, balancing whatever remained
of Quon’s expectation of privacy with the police department’s
need to manage its SWAT pagers, the police department’s
search was “justified at its inception” and “was reasonably
related in scope to the circumstances which justified the inter-
ference in the first place.” 

. The
panel’s conclusion to the contrary, based solely on the infor-
mal statement of Lieutenant Duke that he personally would
not audit the pagers if the SWAT team members agreed to
pay for any overages, departs from the practical approach of
O’Connor and effectively precludes a public employer from
undertaking investigations reasonably necessary to conduct its
business.

                               B

  As troubling as this misreading of O’Connor is the panel’s
conclusion that in light of Quon’s reasonable expectation of
1144                QUON v. ARCH WIRELESS
privacy, the scope of the police department’s search was
unreasonable. To reach this conclusion, the panel quotes
Schowengerdt v. Gen. Dynamics Corp. for the principle that
“[i]f less intrusive methods were feasible, or if the depth of
the inquiry or extent of the seizure exceeded that necessary
for the government’s legitimate purposes, such as its interest
in security, the search would be unreasonable and [the
employee’s] Fourth Amendment rights . . . would have been
violated.” 

, 1336 (9th Cir. 1987) (footnotes
omitted). Relying on this language, the panel rejected the dis-
trict court’s determination “that there were no less-intrusive
means” to determine whether the 25,000-character limit was
sufficient and concluded that the scope of the search was
unreasonable. According to the panel, because the city could
have used other less intrusive means to accomplish the objec-
tives of the search, the city violated Quon’s Fourth Amend-
ment rights. 

-09.

   The panel’s reliance on Schowengerdt is misplaced. The
quoted language from that case has been superceded not once,
but three times by subsequent Supreme Court opinions. The
Court stated in Skinner that “[t]he reasonableness of any par-
ticular government activity does not necessarily or invariably
turn on the existence of alternative ‘less intrusive’ 

n.9 (internal quotation marks omitted). Again
the Court stated in Vernonia, “[w]e have repeatedly refused
to declare that only the ‘least intrusive’ search practicable can
be reasonable under the Fourth 

. Finally, for a third time, with some frustration, the Court
reiterated in Earls that “this Court has repeatedly stated that
reasonableness under the Fourth Amendment does not require
employing the least intrusive 

. The
Supreme Court has repeatedly rejected a “least intrusive
means” analysis for purposes of determining the reasonable-
ness of a search in a “special needs” context.

  And yet the panel does exactly what the Supreme Court has
precluded. Although the panel does not explicitly state it is
                     QUON v. ARCH WIRELESS                    1145
applying a least restrictive means test, it does just that. Rather
than evaluate whether the search “actually conducted” by the
police department was “reasonably related to the objectives of
the search and not excessively intrusive in light of [its pur-
pose],” as O’Connor requires us to 

(emphasis added), the panel looks at what the police depart-
ment could have done. As the panel explains, “[t]here were a
host of simple ways to verify the efficacy of the 25,000 char-
acter limit . . . without intruding on Appellants’ Fourth
Amendment rights.” 

. The panel then
proposes other means of verifying the number of personal
pages sent:

      For example, the police department could have
      warned Quon that for the month of September he
      was forbidden from using his pager for personal
      communications, and that the contents of all of his
      messages would be reviewed to ensure the pager was
      used only for work-related purposes during that time
      frame. Alternatively, if the Department wanted to
      review past usage, it could have asked Quon to count
      the characters himself, or asked him to redact per-
      sonal messages and grant permission to the Depart-
      ment to review the redacted transcript. Under this
      process, Quon would have an incentive to be truthful
      because he may have previously paid for work-
      related overages and presumably would want the
      limit increased to avoid paying for such overages in
      the future. These are just a few of the ways in which
      the Department could have conducted a search that
      was reasonable in scope.

panel could come up with a “host of simple
ways” that would be less intrusive, it concluded that the
police department’s search was excessively intrusive and
therefore violated Quon’s Fourth Amendment rights. 

                QUON v. ARCH WIRELESS
is the essence of the “least intrusive means” test, which the
Supreme Court has expressly rejected. Indeed, the panel’s
approach fits squarely within the Supreme Court’s explana-
tion of why the least intrusive means test is not appropriate:
“[i]t is obvious that the logic of . . . elaborate less-restrictive-
alternative arguments could raise insuperable barriers to the
exercise of virtually all search-and-seizure powers, because
judges engaged in post hoc evaluations of government con-
duct can almost always imagine some alternative means by
which the objectives of the government might have been
accomplished.” 

n.9 (internal quota-
tion marks, alterations, and citations omitted); accord 

. The Ninth Circuit has similarly held that it
is improper to apply the “least restrictive means” test in the
context of a “special needs” search. See Yin v. California, 

, 870 (9th Cir. 1996) (“Under the balancing test, the
Court determines if a search is reasonable by weighing the
privacy interests of the individual against the government’s
interest in the search . . . the government does not have to use
the least restrictive means to further its interests.”).

   Seven other circuits have followed the Supreme Court’s
instruction and explicitly rejected a less intrusive means
inquiry in the Fourth Amendment context. See Davenport v.
Causey, 

, 552 (6th Cir. 2008) (“Also irrelevant,
despite plaintiffs’ argument to the contrary, is whether or not
the officer had other means of force at his disposal. The
Fourth Amendment does not require officers to use the best
technique available as long as their method is reasonable
under the circumstances.” (internal quotation marks and alter-
ations omitted)); Lockhart-Bembery v. Sauro, 

, 76
(1st Cir. 2007) (“To the extent Lockhart-Bembery argues that
Sauro acted unreasonably [under the Fourth Amendment]
because there were other, less intrusive ways to reduce the
safety hazard, that argument fails as a matter of law. There is
no requirement that officers must select the least intrusive
means of fulfilling community caretaking responsibilities.”
(footnote omitted)); Cassidy v. Chertoff, 

, 79 (2d
                    QUON v. ARCH WIRELESS                   1147
Cir. 2006) (“The Supreme Court has repeatedly stated that
reasonableness under the Fourth Amendment does not require
employing the least intrusive means to accomplish the gov-
ernment’s ends.” (internal quotation marks omitted)); Shell v.
United States, 

, 956 (7th Cir. 2006) (“As an ini-
tial matter, we note that a search does not need to be the least
intrusive alternative to be constitutionally valid, it simply has
to be reasonable.”); United States v. Prevo, 

,
1348 (11th Cir. 2006) (“Suffice it to say that the Fourth
Amendment does not require the least intrusive alternative; it
only requires a reasonable alternative.”); Shade v. City of Far-
mington, 

, 1061 (8th Cir. 2002) (“The Fourth
Amendment does not require officers to use the least intrusive
or less intrusive means to effectuate a search but instead per-
mits a range of objectively reasonable conduct.”); United
States v. Melendez-Garcia, 

, 1052 (10th Cir.
1994) (stating that the Fourth Amendment does not require
police “to use the least intrusive means in the course of a
[Terry] detention, only reasonable ones”).

   By reintroducing the least-intrusive means test into our
Fourth Amendment jurisprudence, the panel departs from
Supreme Court precedent and from the decisions of seven of
our sister circuits, and reaches the untenable conclusion that
the police department acted unreasonably in auditing mes-
sages sent and received on a SWAT pager, provided to
SWAT members to facilitate communications during emer-
gencies.

                               III

   This case is, at its core, a workplace privacy case. The
panel turns its back on “the common-sense realization that
government offices could not function if every employment
decision became a constitutional matter.” 

(quoting Connick v. Myers, 

, 143 (1983)).
By holding that a SWAT team member has a reasonable
expectation of privacy in the messages sent to and from his
1148                QUON v. ARCH WIRELESS
SWAT pager, despite an employer’s express warnings to the
contrary and “operational realities of the workplace” that sug-
gest otherwise, and by requiring a government employer to
demonstrate that there are no more less intrusive means avail-
able to determine whether its wireless contract was sufficient
to meet its needs, the panel’s decision is contrary to “the dic-
tates of reason and common sense” as well as the dictates of
the Supreme Court. The panel’s decision undercuts the
Supreme Court’s consistent and explicit prohibition on read-
ing a less intrusive means requirement into the Fourth
Amendment’s prohibition on unreasonable searches. It also
undermines the reasoning and logic of O’Connor v. Ortega.
I respectfully dissent from our denial of rehearing en banc.
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