Tuesday, July 15, 2014
Supreme Decision Probably Makes Student Cell Phone Searches Off Limits in the Average Student Discipline Case by Jason Nance
The United States Supreme Court recently issued a watershed decision that limited the reach of police officers to conduct searches under the Fourth Amendment. In Riley v. California, the Court unanimously held, overturning a prior California Supreme Court decision, that police officers generally must obtain a search warrant before searching through digital information that may be accessed on the cell phone of someone who has been arrested. In issuing this ruling, the Court declined to extend a warrantless search exception that allows police officers to search the area within arrestees’ immediate area of control to ensure the officers’ safety and prevent the loss of evidence. This decision has been hailed as a monumental victory by privacy rights activists who are concerned with the government’s growing ability and inclination to search digital information. Although its full ramifications are unclear, it undoubtedly will affect how searches of digital information are evaluated in other contexts, including how courts will evaluate searches by school officials of information stored on students’ smartphones.To be clear, the Supreme Court held in T.L.O. v. New Jersey that school officials need not obtain a warrant before searching a student; nor must a school official’s level of suspicion meet the probable cause standard normally required to obtain a warrant. Rather, the legality of a student search depends on (1) whether the school official has a reasonable suspicion that the student engaged in wrongful behavior, and (2) whether the search was reasonably related in scope to the circumstances that justified the search to begin with. Further, the Court held in Safford United School District v. Redding, a strip search case, that the content of the suspicion must match the degree of intrusion, and this is why the Riley decision may have a significant impact on searches of students’ smartphones.
There are several statements that demonstrate the Court’s view of the significant privacy interests one has with respect to the vast information that may be stored on a smartphone. For example, the Court explained that searching a smartphone implicates “privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” Because the average smartphone has a capacity to store 64 gigabytes, which is equivalent to millions of pages of text, thousands of photos, or hundreds of videos, a smartphone might store in one place a host of private information including bank statements, personal notes, prescriptions, personal videos, personal photographs, search history on the Internet, apps, and addresses and phone numbers of acquaintances that date back to the time of the purchase of the smartphone. The Court further observed that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.”
Now that the Court has clearly annunciated its view on the robust privacy interest of information stored on a smart phone, and how intrusive it would be for government officials to dig through all of the information that may be accessed through a smartphone, it would seem that school officials must be extremely cautious about searching through information contained on a students’ cell phones, even when school officials have a reasonable suspicion that a student engaged in some type of wrongdoing. As in other legal contexts, the “reasonableness” standard makes it extremely difficult to pinpoint where a court will fall when examining a certain set of facts. Nevertheless, consistent with the test laid out in T.L.O. and Redding, if a school official has a reasonable suspicion that the student engaged in minor wrongdoing, rummaging through all the information contained on that student’s cell phone in search of evidence of additional wrongful behavior, would appear to violate the Fourth Amendment. In contrast, if the school official has a reasonable suspicion that a student had engaged in serious wrongdoing, such as threatening another student with a firearm on campus, and that the search of information contained on the cell phone would uncover more evidence of this wrongful and harmful behavior, it seems likely that a court would grant school officials more leeway to conduct a search on a student’s cell phone. It will be interesting to follow how the lower courts apply Riley in this context (and others), and it seems likely that more lower courts will address the issue of searching students’ cell phones as students’ use of these devices at school becomes ever more commonplace.
Thanks to Jason Nance for this concise and poignant analysis above of the implications of the Supreme Court's recent cell phone search case on school searches. Jason joined the law faculty at the University of Florida three years ago and has already become a leading expert on student searches, privacy, and discipline. (I took the liberty of penning the title for his essay.)