Amazon has approved almost all of my apps for their App Store but all apps go through a separate review process for Kindle. Amazon has declined to add almost every app to the Kindle store citing “app will not install”. Because of this extremely detailed explanation, I will not be adding my apps to Kindle until they can communicate a little better to specifically state what the issue is.

As for Blackberry, they have indicated only 4 issues (very detailed and specific) with the apps, which I am hoping can be addressed in the very near future. This is, however, entirely up to my hosting service to determine if they’ll incorporate the changes Blackberry requested they make.

There appears to be confusion regarding the application of U.S. v. Jones and the warrantless attachment of a GPS tracking device to vehicles. In Jones, “The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Therefore, the Court held that the use of the GPS was a search within the meaning of the Fourth Amendment.

In Jones, the government had a warrant for the placement of the GPS device but the warrant expired by one day prior to the placement of the device. Therefore, the Court DID NOT address whether a warrant was even required since warrant had expired and was therefore moot. Instead of arguing the search was reasonable under the Fourth Amendment, the government argued that placement of the GPS on the car was not a search within the meaning of the Fourth Amendment. However, during oral arguments, the government tried to argue the search was reasonable. This argument was not addressed by the Court. Therefore, the Court DID NOT address that even if placement of a GPS device is a search, such a search would be unreasonable to conduct without a warrant. The Court noted:

“The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable--and thus lawful--under the Fourth Amendment because “officers had reasonable suspicion, and indeed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” We have no occasion to consider this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it. We consider the argument forfeited.” (cites omitted).

As it has always been understood, when in doubt, get a warrant. But know the precedent established in United States v. Knotts, 460 U.S. 276 (1983) and United States v. Karo, 468 U. S. 705 (1984) still applies, which held that the warrantless monitoring of signals (beeper and wireless phone pings) inside an automobile traveling on public roads did not violate the Fourth Amendment because it did not reveal any information that was not also available through visual surveillance. However, Knotts and Karo are different then Jones in that the beeper had been placed in the container before it came into the defendants’ possession, with the consent of the then-owner. 460 U. S., at 278. Knotts did not challenge that installation, and the Court declined to consider its effect on the Fourth Amendment analysis. Id., at 279, n. However, in Karo, the installation was challenged. As in Knotts, at the time the beeper was installed the container belonged to a third party, and it did not come into possession of the suspect until later. 468 U. S., at 708. Thus, the specific question the Court considered was whether the installation “with the consent of the original owner constitute[d] a search or seizure . . . when the container is delivered to a buyer having no knowledge of the presence of the beeper.” Id., at 707 (emphasis added). The U.S. Supreme Court held not.

Conclusion: To date, there has been no U.S. Supreme Court decision that has established whether the placement of GPS device to the undercarriage of a vehicle, absent a warrant and in a public place, amounts to a "search" in violation of the Fourth Amendment. However, there have been multiple Federal Circuit Court decisions that support such placement:

In United States v. Sparks, 750 F.Supp.2d 384 (2010), the court held that U.S. v. Moore's 1977 holding that probable cause is required for the installation of a tracking device, is no longer good law following the U.S. Supreme Court's 1983 holding in U.S. v. Knotts. District Court Justice Young commented that “where the use of a tracking device serves only as a technological substitute for an otherwise legal activity, it must remain constitutionally sound.” Knotts at 284. In Sparks, FBI agents attached a GPS unit to a suspected bank robber's vehicle. The Court ruled that the suspect had neither a subjective expectation of privacy in the open air parking lot (where GPS was affixed), the exterior of the vehicle, or the movement of his vehicle on the streets. Id. at 396. With the absence of any reasonable expectation of privacy, the Court indicated that no warrant or court order was needed to install or monitor the GPS. Id.

In Morton v. Nassau County Police Department, 2007 WL 4264569 (E.D.N.Y. ), plaintiff’s brought a civil rights claim against police alleging the warrantless installation and use of a GPS violated her Fourth and Fourteenth Amendments rights against unreasonable searches and seizures. Nassau County Police had attached a GPS device to plaintiff’s vehicle based upon previous sightings at residential burglaries. The Court cited approvingly to U.S. v. Knotts, “a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Knotts at 281. The Court noted “the use of the GPS device did not permit the discovery of any information that could not have been obtained by following an automobile traveling on public roads either physically or through visual surveillance, conduct that neither requires a warrant nor implicated Fourth Amendment rights.” Id. at 282. In continuing to follow Knotts the Court held there was no reasonable expectation of privacy in one’s movements on public ways, and thus there was no search, seizure or Fourth Amendment implication by mere placement of a GPS device. at 4. See also U.S. v. Moran, 349 F.Supp. 2d 425 (N.D. N.Y. 2005).

The Fifth Circuit standard for the warrantless installation of an electronic tracking device is an “intermediate standard”, requiring law enforcement officers to have reasonable suspicion that criminal activity is afoot. United States v. Michael, 645 F.2d 252 (5th Cir. 1981). In U.S. v. Michael, the Fifth Circuit held that DEA’s warrantless attachment of an electronic tracking device, to the exterior of a suspect’s vehicle while parked in a public place, based upon reasonable suspicion was sufficient to reduce any Fourth Amendment concerns. Id. at 257. The 5th Circuit en banc, noted expressly “...under the facts presented, the installation of the beeper was permissible, even if we assume the installation was a search.” Id. at 256. Thus in the Fifth Circuit in an abundance of caution, ruled that the warrantless GPS installation should be based upon reasonable suspicion that the suspect (vehicle) is involved in criminal activity.

The Seventh Circuit has continually held that there is no search or seizure under the 4th Amendment when police attach a GPS tracking device underneath a suspect’s vehicle, that does not draw power from the engine or battery, does not take up room occupied by passengers or packages, and does not alter the vehicles appearance. See, United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), and United States v. Cuevas-Perez, 2011 WL 1585072 (C.A.7 (Ill.)).

In United States v. Marquez, 605 F.3d 604 (8th Cir. 2010), the Eighth Circuit noted no reasonable expectation of privacy had been violated by DEA agents installing the GPS. Id. at 607. The Court explained that a person traveling in a motor vehicle via public roads has no reasonable expectation of privacy in his movements from one locale to another. Id. at 608. The 8th Circuit held that when police have reasonable suspicion that a specific vehicle is transporting drugs, a warrant is not required to install a non-invasive GPS tracking device, while the vehicle is parked in a public place, for a reasonable period of time. Id. at 610. Thus in the Eighth Circuit while law enforcement officials do not need a warrant to install a GPS device, they must possess a reasonable suspicion that the vehicle is involved in criminal activity.

The Ninth Circuit in following U.S. v. Knotts, ruled that United States Forest Service officers warrantless placement of two electronic tracking devices on the undercarriage of a suspect’s vehicle while parked outside the curtilage did not constitute a seizure in a Fourth Amendment sense. United States v. McIver, 186 F.3d 1119, 1127 (9th Cir. 1999). The Ninth Circuit cited to several cases which indicated that there is no reasonable expectation of privacy in the exterior of a vehicle. See, New York v. Class, 475 U.S. 106 (1980) - “(t)he exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a search” Id. at 114.

In United States v. Shovea, 580 F.2d 1382 (10th Cir. 1978), federal agents became aware of a suspicious order of precursor chemicals from a New York based company for the production of methamphetamine. Id. at 1383. Physical surveillance of the pick-up of the precursor chemicals, coupled with the suspicious manner of transport, and subsequent arrival at an airport for a trans-continental trip provided agents with the requisite probable cause to place an electronic tracking device onto a suspect’s vehicle. Id. at 1384. The 10th Circuit noted that although whether the installation of an electronic tracking device on a motor vehicle is a search or seizure under the 4th Amendment was a difficult question, it need not be reached in the present case. Id. at 1387. The 10th Circuit assumed without deciding that the installation of the tracking device was a search under the 4th Amd, that was justified by the existence of probable cause and exigent circumstances (ie., the inherent mobility of vehicles making the application for a warrant impracticable ie., motor vehicle exception) Id. at 1388. Thus in the 10th Circuit, the warrantless installation of a tracking device based upon probable cause without initially acquiring a court order does not violate the 4th Amendment. Id.

In United States v. Smith, 387 Fed.Appx. 918 (C.A. 11th Circuit), a DEA Task-Force Officer, without the benefit of a warrant attached a GPS unit to a marijuana trafficker’s Cadillac Escalade. The Court found that the GPS was installed in a public place and held that Smith lacked any reasonable expectation of privacy in the exterior of his vehicle. Id. at 921. The Court indicated that without any legitimate expectations of privacy there were no 4th Amendment issues. See, United States v. Barton, 698 F.Supp.2d 1303 (N.D. Fla. 2010) – “there is no 4th Amd violation for using a tracking device as a substitute for visual surveillance”. In the 11th Circuit warrantless installation of GPS devices does not impede on any reasonable expectations of privacy, thus no 4th Amendments concerns exist.

Rest assured, I have been headstrong in submitting an update for everyone. There are a couple reasons for this delayed update: (1) school (21 credit hours while working full-time and maintaining these apps = no sleep); (2) A few secret-squirrel projects I have been working on that will come to light in the very near future, and; (3) The Federal Circuit Courts and SCOTUS has been pounding out court decisions that are almost impossible to keep up with. I hope to submit this update very soon…

For my Ohio Cop users with Cincinnati Police, a new Social Media policy went into effect today that not only covered agency utilization of social media outlets, but personnel use as well. In sum, the policy doesn't restrict use of social media any more than what the courts have restricted officer's free speech; well, maybe not section (j).

Policy 14.205 (D) Personal Use of Social Media

Precautions and Prohibitions - Barring state law or binding employment contracts to the contrary, Department personnel shall abide by the following when using social media.

a. Department personnel are free to express themselves as private citizens on social media sites to the degree that their speech does not impair working relationships in the Department for which confidentiality is important; does not impede the performance of duties, impair discipline and harmony among coworkers, or negatively affect the public perception of the Department.

b. As public employees, Department personnel are cautioned that speech on- or off-duty, made pursuant to their official duties, that owes its existence to the employee’s professional duties and responsibilities, is not protected speech under the First Amendment and may form the basis for discipline if deemed detrimental to the Department. Department personnel should assume that their speech and related activity on social media sites will reflect upon their office and this Department.

c. Department personnel shall not post, transmit, or otherwise disseminate any information, including photos, documents, etc., to which they have access as a result of their employment without written permission from the chief or his/her designee.

d. For safety and security reasons, Department personnel are cautioned not to disclose their employment with the Department nor shall they post information pertaining to any other member of the Department without his/her permission. As such, Department personnel are cautioned not to do the following:

• Display Department logos, uniforms, or similar identifying items on personal web pages.
• Post personal photographs or provide similar means of personal recognition that may cause them to be identified as a police officer of this Department. Officers who are, or who may reasonably be expected to work in undercover operations, are cautioned not post any form of visual or personal identification.

e. When using social media, Department personnel should be mindful that their speech becomes part of the worldwide electronic domain. Therefore, Department personnel should be mindful of the standards imposed by the Department’s code of conduct prior to engaging in any social media, which could be construed as reflecting poorly on Department personnel or the Department. In particular, Department personnel should be aware of the standards created by the Department code of conduct with regard to the following:

• Speech containing obscene or sexually explicit language, images, or acts and statements or other forms of speech that ridicule, malign, disparage, or otherwise express bias against any race, any religion, or any protected class of individuals.
• Speech involving themselves or other Department personnel reflecting behavior that would reasonably be considered reckless or irresponsible.

f. Engaging in prohibited speech noted herein, may provide grounds for undermining or impeaching an officer’s testimony in criminal proceedings. Department personnel thus sanctioned are subject to discipline up to and including termination of office as specified in the collective bargaining agreement.

g. Department personnel may not divulge information gained by reason of their authority; make any statements, speeches, appearances, and endorsements; or publish materials that could reasonably be considered to represent the views or positions of this Department without approval.

h. Department personnel should be aware that they may be subject to civil litigation for

• Publishing or posting false information that harms the reputation of another person, group, or organization (defamation)
• Publishing or posting private facts and personal information about someone without their permission that has not been previously revealed to the public, is not of legitimate public concern, and would be offensive to a reasonable person
• Using someone else’s name, likeness, or other personal attributes without that person’s permission for an exploitative purpose
• Publishing the creative work of another, trademarks, or certain confidential business information without the permission of the owner

i. Department personnel should be aware that privacy settings and social media sites are constantly in flux, and they should never assume that personal information posted on such sites is protected.

j. Department personnel should expect that any information created, transmitted, downloaded, exchanged, or discussed in a public online forum may be accessed by the Department at any time without prior notice.

If any Ohio LEOs have the opportunity to attend OPOTA's Regional Legal Update or Civil Liability and Use of Force trainings, both John Green and Jessica Didion do a phenomenal job presenting and dissecting recent court decisions that impact law enforcement. The course is FREE; take it if you can.

Side Note: All the cases discussed turned out to be in the my app :)

Civil Liability and Use of Force training
Regional Legal Update training

State v. Gould, Slip Opinion No. 2012-Ohio-71. Case No. 2010-1315
Lucas App. No. L-08-1383, 2010-Ohio-3437

(Jan. 17, 2012) The Supreme Court of Ohio today held that a warrantless search of abandoned property does not violate the property owner’s Fourth Amendment right against unreasonable searches because the owner forfeits any expectation of privacy in the property after it has been abandoned. The Court held further that, to establish a reasonable expectation of privacy in property protected by the Fourth Amendment, a person must exhibit a subjective expectation of privacy that, viewed objectively, is reasonable under the circumstances.

Applying those holdings to a Lucas County criminal case, the Court reinstated the convictions and life prison sentence of Dennis Gould of Toledo on rape and child pornography charges.

The Court’s 7-0 decision reversed a ruling by the 6th District Court of Appeals that had vacated Gould’s convictions based on a finding that evidence obtained through a police search of a computer hard drive that Gould had left unattended at a former residence for several months after he left the city must be excluded because the search was unconstitutional.

In December 2005, after being laid off from his job, Gould moved in with his mother, Sharon Easterwood. At that time, he gave her a computer hard drive and told her to keep it and not ‘let anybody get their hands on it.’ Easterwood put the hard drive in an envelope and placed it in her nightstand. In May 2006, Gould moved into his own apartment, taking his belongings, but not the hard drive. About a month later, Gould’s twin brother, Douglas, told his mother that she should get the hard drive out of her house because it probably contained child pornography. As a result, she returned it to Gould.

Thereafter, in August 2006, after Gould’s older brother, Gregory had moved in with him, Gould stole Gregory’s truck and left Toledo without taking any of his belongings from the apartment, and he never advised anyone of his whereabouts. Sometime later, Gregory sold Gould’s belongings at a garage sale, but before the sale, Easterwood retrieved the hard drive because of her concerns about its contents.

On Sept. 6, 2006, Easterwood delivered the hard drive to Detective Regina Lester in the Special Victims Unit of the Toledo Police Department. According to Lester, Easterwood told her that it had been in her possession since December 2005. Easterwood further advised Lester that she believed that Gould had abandoned it and that she did not want it in her home because of her suspicions about its contents.

Lester did not attempt to access the data on the hard drive but booked it into the police property room and began efforts to locate Gould. In December 2006, after three months of attempts to contact Gould, Lester obtained permission from Easterwood for a police search of the hard drive.

A forensic examination conducted by Detective Jim Dec disclosed child pornography, including images of Gould engaging in sexual conduct with a seven-year-old child. Police identified the victim as the daughter of Gould’s former girlfriend. Federal marshals ultimately arrested Gould in Lansing, Michigan, and returned him to Toledo.

Based on the images discovered on the hard drive, a grand jury subsequently indicted Gould on two counts of rape, one count of gross sexual imposition, six counts of pandering sexually oriented material involving a minor, and five counts of illegal use of a minor in nudity-oriented material or performance. Gould moved to suppress the evidence obtained through the search of the hard drive, asserting that police had illegally searched it in violation of the Fourth Amendment. The trial court denied the motion, finding that “Lester reasonably could have believed that [Gould] had abandoned any reasonable expectation of privacy in the hard-drive,” such that the search did not violate the Fourth Amendment.

The case proceeded to trial, and a jury returned verdicts finding Gould guilty on all counts. He was sentenced to two concurrent life sentences for the rape convictions, and received additional prison terms for the other offenses.

On review, the 6th District Court of Appeals court reversed the judgment of conviction and held that the trial court should have suppressed the evidence obtained from the hard drive as the product of an illegal search, stating that “Lester’s subjective belief that the hard drive had been abandoned was unsupported by the objective facts and Easterwood's testimony.” The 6th District therefore concluded that “the state failed to demonstrate by credible, competent evidence that the hard drive was abandoned.”

Writing for the Court in today’s decision, Justice Terrence O’Donnell referenced a line of federal court cases dating back to the U.S. Supreme Court’s 1979 decision in Smith v. Maryland and including United States v. Hershenow (1982), United States v. Chandler (1999) and United States v. Davis (2010). He also cited the Supreme Court of Ohio’s 1980 decision in State v. Freeman as a state precedent addressing searches of property that an owner has abandoned.

Justice O’Donnell wrote: “The United States Supreme Court has long held that the Fourth Amendment prohibition against unreasonable searches does not apply to property that has been voluntarily abandoned, because society does not recognize an expectation of privacy in abandoned property as being objectively reasonable.”

“ ... As in Hershenow, Freeman, Chandler, and Davis, here the evidence similarly weighs against a finding that Gould had an objectively reasonable expectation of privacy in the hard drive. He left the hard drive in his apartment with his other belongings when he stole his brother’s truck and left Toledo sometime in August 2006. From the time he left Toledo until his arrest by federal marshals sometime before June 3, 2007, Gould never inquired about the hard drive or attempted to assert control over it or its location, he concealed his whereabouts, and he never knew the hard drive had been removed from his apartment when his brother sold his other belongings.”

“And even if we consider the period of time from when Gould left Toledo until Detective Dec searched the hard drive in December 2006, the facts reveal that Gould had not made any inquiry about the hard drive or asserted control over it for almost four months. Hence, the police could have reasonably concluded Gould had abandoned it.”

“Thus, based on his conduct, Gould had no objectively reasonable expectation of privacy in the hard drive because when he relocated to Michigan he abandoned it by leaving it in his Toledo apartment without the ability to exert control over it. And, as the courts concluded in Chandler and Davis and as we held in Freeman, a warrantless search of abandoned property does not offend the Fourth Amendment. ... Accordingly, the judgment of the court of appeals ordering the exclusion of the evidence obtained from the hard drive is reversed, and Gould’s convictions and sentence are reinstated.”

Justice O’Donnell’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown. Justice Paul E. Pfeifer concurred in judgment only.

Get V.I.S. app for free on 12/31

App Store Link

From the V.I.S. Developer Website

The idea for VIS came on a boring Thursday night while flying patrol over Southern California. At the time I was full time flight officer assigned to the Air Support Unit. We were flying over down town just after mid night when a grand theft auto just occurred. Dispatch said a Saturn Ion was just stolen from a small car dealer.I instantly thought to myself, Saturn Ion, that's a small suv, we're going to own this guy. We were on scene and overhead in less than thirty seconds. I saw a small car going eastbound, I checked it with my binoculars just in case. It wasn't an suv so I dismissed it. We orbited the area for about a minute. There were no other cars on the road. I started to get frustrated. I saw a patrol unit light up that same small car a half mile to the east. It was the stolen vehicle. A Saturn Ion is a small car, not a small suv. The guy gave up and the call was over.

I couldn't believe I completely messed up the call. I just didn't know what I was looking for. Then again, how many times do street cops not know exactly what a car looks like. Sometimes you might only have thirty seconds to educate yourself about the car to make the difference. As cops do, I thought of a worse case scenario. What if that was a suspect who just shot a cop. I would have completely blown the chance to catch the guy.

That's when the light bulb went off. “There should be a program that you could reference cars in seconds.” I figured someone had already come up with the idea but to my surprise I couldn't find one. I spent the next couple weeks looking into the legal issues, copyrights, and patents. Luckily I had been a business major my first two years of college so I had a little bit of an idea of where to start looking.

I talked to one of our contract pilots Don, about the idea. He was a retired Captain and a small business owner. He motivated me to go all out on the idea. I took his advice and haven't looked back. Two and a half years later VIS has 10 years, 9500 images, and available on numerous platforms.

Both U.S. Cop and Ohio Cop was scheduled to be FREE during the Christmas holiday in the Apple App Store. Today, Apple released holiday stats that reveled 5,229 apps were downloaded between the 24th-25th. Some may be wondering why the Android version was only reduced to $.99 and not free. With Android, once an app is set to free, it will forever be free - a price can never be set unless a new app is created, which would prevent current users from receiving updates.

Happy Holidays!

Great News....transferability to SD card and Field Notes features are finished. Be looking for an update tomorrow afternoon or Monday. SD card transferability is only for v2.2 or higher.

I frequently receive requests to add the charge for Bath Salts in Ohio. Answer: It's already in the app. Bath salts is banned as a Schedule I drug under R.C. section 3719.41(C)(41) and (C)(42), MDPV and Mephedrone, respectively. [law effective 10-17-2011]

Possession: charge Aggravated Possession of Drugs, R.C. section 2925.11(A) per sub-section (C)(1)(a) (schedule I less than bulk amount) - F5.

Trafficking: charge Aggravated Trafficking in Drugs, R.C. section 2925.03(A)(1) per sub-section (C)(1)(a) (schedule I less than bulk amount) - F4.

Bulk Amount: Since MDPV and Mephedrone is scheduled as a hallucinogen under R.C. section 3719.41(C) and not a depressant (D) or stimulant (E), the bulk amount of 2925.01(D)(1)(c) applies: "equal to or exceeding thirty grams or ten unit doses."

In November, aside from the usual legal updates and minor additions, two new features will be added to Android:

1. SD Card transfer (v2.2 or higher req'd)
2. Notepad feature

In December, there will be two minor improvements to iOS. ThePhoto Library for the Evidence Camera will be optimized to:

1. Cache the images so that they don't take so long to load
2. Select multiple images for email, deletion, etc.

After these changes have been implemented, it's full speed ahead to complete the Field Interview feature.

If you receive a "Download unsuccessful" message when attempting to download an app, try the following troubleshooting steps to resolve the issue:

• Restart your phone then try downloading the app again.
• Try cleaning Market cache like this:
  1. Settings -> Applications -> Manage Applications
  2. Open settings for Market app
  3. Tap [Force Stop]
  4. Tap [Clear data]

If you're still unsuccessful, let Google know. Some users have had to Factory Reset their phone to retrieve app updates as a result of the recent Android Market update.

U.S. Cop has reentered the Top 10 Downloads list for Android under the Books & Reference category. This is an incredible feat, especially since the forerunners consist of WolframAlpha, Dictionary.com, iKamasutra, and religious apps. While I have no intention of defeating religion, sex positions, the English language, or the brains behind Siri, I think the support for U.S. Cop has been incredible. The app will only get better with future updates. Thanks for everyones support!

Source: U.S. Cop Reenters Top 10 Android Book Apps List

I'm still working on have the apps transferable to SD card. I previously indicated this should be available in October but it looks like we may be going into November for this feature. Please note that Android v2.2 and higher will be required for this feature.

I have received an influx of questions pertaining to social media policies lately and I have to ask why? This issue has already been discussed almost 20-years ago when the courts ruled that public employees have fewer rights to free speech under the First Amendment than private citizens. This is because the government has become your direct employer and so the government has a direct interest in regulating the speech of its employees.

As a public employee, your right to speak, even on matters of public concern, is only protected when the value of the speech outweighs the interest of the police department to maintain efficiency, morale and discipline.

The courts have held that police officers should keep in mind the following three principles:

1. The First Amendment gives officers the right to freely discuss their thoughts on matters of public interest (not of personal concern);
2. Officers should not make comments that negatively impact the efficiency, effectiveness, or morale of their respective police department;
3. The merits of 1) should outweigh the merits of 2).

For example, an off-duty police officer would be free to express his or her thoughts on a local issue (taxes, etc) in the public comments portion of a town council meeting, as he or she would be protected under the First Amendment in this case. Such an officer could even publicly criticize his or her department, as long as the complaints touch on matters of public concern and are not personal issues the officer has with his or her agency. As examples, these can include criticisms on whether the department is properly staffed to adequately protect the public, or concerns on whether an investigation was properly handled.

In a different example, a police officer who chooses to bad-mouth his or her agency on issues that have nothing to do with matters of public interest (complaints against his or her agency for personal reasons, publicizing personality conflicts with co-workers or superiors, publicly making bad jokes about the chief’s lousy haircut, etc.) would not only conflict with the first principle outlined above but would conflict with the second as well. As a result, such an officer could be lawfully disciplined by his or her police agency.

A public employee should ask, “Did I speak as a citizen on a matter of public concern?” If the answer is yes, then your employer must justify treating you differently from any other member of the general public.

The rationale for limiting a Government employee's constitutional rights are: (1) government employees can have a greater propensity to adversely affect government operations because public employees often occupy trusted positions in society; and (2) government offices could not function if every important decision became a constitutional matter.

So I ask, what’s the difference between already decided free-speech issues, as it effects public employees, and social media postings? I can think of two:

1. Posting messages publicly to fellow employees could be construed as “concerted activity” by the NLRB; and
2. Social media has an immense effect on reaching those that wouldn’t ordinarily be ‘around the water cooler.’

But even these two differences don’t change the aforementioned court decisions regarding the free speech of public employees. Simply put, don't bitch about work publicly through social media. If you have a legitimate gripe or concern, file a grievance. If it's not grievable, you should evaluate whether your gripe is sufficient enough to be vocal about. Remember the rule of thumb, “Comply now, grieve later.”

For supportive case law and details of the “balancing test” and “matter of public concern” analysis, view the Case Law tab and scroll to Internal Investigations > Free Speech Issues.