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September 20, 1979

PAUL CHENKIN, Plaintiff, against BELLEVUE HOSPITAL CENTER, NEW YORK CITY HEALTH & HOSPITALS CORPORATION and ANNE P. RYAN, in her official capacity as Director of Personnel Management of the New York City Health & Hospitals Corporation, Defendants.

The opinion of the court was delivered by: WEINFELD

This action challenges the legality of a regulation issued by a large urban municipal hospital in an effort to prevent or reduce pilferage of hospital property, whereby bags, packages and large parcels carried by employees leaving the hospital are subject to random spot inspection. The question for decision is whether such inspections are violative of the Fourth Amendment, made applicable to the States through the Fourteenth Amendment. *fn1"

Plaintiff is an assistant chemist employed by Bellevue Hospital Center ("Bellevue"). He instituted this action for a declaratory judgment that Bellevue's "pilferage control-package pass system" (the "package control system," or "the system") is unconstitutional, and to enjoin its continued enforcement. In addition, he seeks reimbursement for one week's lost wages, which amount was deducted from his salary after a hearing officer had determined that he was "insubordinate" in willfully failing to comply with the requirements of the package control system. The defendants contend that the system is fair and reasonable and a valid condition of employment, and, therefore, that it is constitutional.

 The material questions of fact are undisputed. The parties agree that the matter is ripe for summary judgment disposition and that the sole issue for determination is the constitutionality of the package control system.

 Bellevue is a municipal medical complex of enormous size. It is the largest municipal hospital in Manhattan and the second largest in the City of New York. It covers four entire city blocks, stretching from 26th to 30th Streets and from First Avenue to the East River. It employs approximately 5,600 people and has 22 exits through which those employees, as well as visitors, may leave.

 In March 1978, Bellevue officials determined to stem what they perceived to be a rising tide of pilferage of hospital property including, but not limited to, medical equipment, sheets, towels, flatware and foodstuffs, all of which were readily available throughout the hospital. Accordingly, on March 17, 1978, they issued a memorandum that was posted on elevators, corridors, walls and various departments and laboratories throughout the hospital announcing the adoption of the package control system effective on April 3, 1978. Under the system employees leaving the hospital with packages may be asked by guards of the hospital's security division to permit inspection of those packages. The system requires all staff and employees carrying "shopping bags, brown paper bags, boxes, tote bags, wrapped packages, suitcases, etc." when leaving the hospital to use either of two designated exits. At each of these exits security guards are intermittently placed and are authorized at random intervals to stop persons carrying parcels from the hospital and to inspect those parcels for the sole purpose of determining whether they contain pilfered hospital property. Because of the volume of the traffic in and out of the facility, and the limited size of the security force, not all persons carrying such packages are stopped. Instead, the officers randomly select packages for inspection. Persons whose packages are selected are required to open them and exhibit their contents. When packages are inspected only a minimal examination is undertaken. The security guards making these inspections are not authorized to confiscate personal property or examine personal papers, and there is no claim that they ever did so. Nor do they ever conduct "frisks" or "pat downs" or any other contact searches. Moreover, women's pocketbooks are never inspected.

 An important feature of the system announced at its inception is an alternative procedure whereby employees may entirely avoid having their packages searched. Upon entering the hospital those who wish to do so may "check" their packages at one of three locations where they are stored until the owner is ready to leave the building. Checked packages are not inspected at any time. Thus, hospital personnel who avail themselves of this procedure may enter and leave without having their packages inspected by anyone.

 Bellevue maintains that the system reduces the amount of pilferage of hospital property in two ways: it provides a means of detecting theft of hospital property and constitutes a general deterrent to those who might otherwise be inclined to pilfer hospital property. While no precise statistical data has been submitted, Bellevue's officers swear that pilferers have been apprehended on "numerous occasions" since the system was implemented and that the system has been an effective deterrent.

 The origin of the present controversy stems from an incident on June 28, 1978, when security guards stopped the plaintiff Chenkin while he was on his way out of the hospital and attempted to inspect the contents of the knapsack he was carrying with him. The officers chose Mr. Chenkin's bag at random as the object of their search; it is undisputed that they had no probable cause to believe, or even an articulable suspicion supporting an inference, that plaintiff's bag in particular contained any hospital property. The plaintiff has never denied that he had received due notice of the existence of the regulation, which included notice of the availability of the alternate procedure. In the absence of such a denial, it may be assumed that at the time of the incident, he was aware of the package control system, which had already been in effect for more than twelve weeks. *fn2"

 When asked by security guards to exhibit the contents of his knapsack, plaintiff refused to do so. Upon presenting his identification to a security guard, his name was noted, and he was permitted to leave the hospital without being searched. No immediate action was taken against plaintiff as a result of this incident. *fn3"

 On July 14, 1978, security guards again stopped plaintiff while he was leaving the building. Again, the stop was made randomly, as part of the "spot-check" program. No suspicion of unauthorized activity was directed at plaintiff; nor is there any evidence that the security guards who stopped him on the second occasion remembered him from the first. A scenario ensued similar to that which had transpired on the first occasion. The guards requested that the plaintiff open his knapsack, and he refused. His name was once more taken, and he was allowed to leave with his bag uninspected. Plaintiff was never subjected to any coercion, physical or mental abuse. *fn4"

 Following the second incident, the plaintiff was summarily suspended without pay for a five-day period, from July 24 to July 28, 1978, for his refusal to comply with "instructions for inspection of bags (he was) carrying out of the hospital." Thereafter and pursuant to New York law, a hearing was conducted on October 5, 1978, before a neutral hearing officer. *fn5" Plaintiff appeared, with counsel, and testified on his own behalf. The only issue raised in defense of plaintiff's conduct was the claim that the system was unconstitutional. The hearing officer found that the plaintiff had "knowingly violate(d), after due notice, an official regulation of the Corporation and therefor(e) is guilty of insubordination." *fn6" He found the package control system to be a "fair and reasonable means of coping with (the) serious problem" of pilferage, and "a reasonable condition of employment." *fn7" He recommended that the suspension of plaintiff for five days without pay be upheld. After a final appeal, the recommendation of the hearing officer was accepted and implemented; the penalty was imposed by Bellevue's Director of Personnel Management, who is named in her official capacity as a defendant in this suit.

 Upon these facts the plaintiff claims that, as a matter of law, Bellevue's policy is violative of the Fourth Amendment to the United States Constitution. He claims that the system authorized unreasonable intrusions into his privacy, that are made without compelling justification and that achieve no discernible reduction of pilferage. With equal vigor Bellevue asserts that employees have no reasonable expectation of privacy in the packages they bring to work; that, when viewed in the totality of circumstances, its regulation is reasonable; and that in any event the plaintiff impliedly consented to be searched. Each of these contentions will be examined in turn.

 A. The Plaintiff's Expectation of Privacy

 Counsel for the parties cite leading Supreme Court cases in support of their respective positions, but none of these is dispositive of the issues here presented. *fn8" While those cases give direction to the general principles to be applied when an issue is raised as to whether a particular action constitutes a "search" within the meaning of the Fourth Amendment, and if so, whether it is "reasonable," ...

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