The U.S. Supreme Court recently ruled in Riley v. California that police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. Although the Riley opinion contemplates cell phone searches of individuals in police custody, the Court's holding rests on privacy concerns likely applicable to student cell phones in the public school context.
Riley involves two different individuals who were lawfully arrested and who each had their cell phone searched by police shortly after the arrest. The practice, called a "search incident to arrest," is a common law rule recognized by the courts that allows law enforcement to conduct a warrantless search during the course of an arrest, or immediately thereafter. A search incident to arrest is considered an exception to the general Constitutional protection under the Fourth Amendment's prohibition against unreasonable searches and seizures. Previously, case law had addressed search incident to arrest scenarios in a suspect's home, vehicle, or the suspect's person. Courts previously upheld these warrantless searches in large part due to the interest in protecting officer safety, or to avoid the destruction of evidence.
Riley was the first U.S. Supreme Court decision to address the warrantless search of cell phones as part of a search incident to arrest. Both suspects in Riley faced additional charges after the suspects' phones turned up additional evidence of suspected criminal activity. However, in Riley, the high court held that in the case of cell phones, a warrantless search of the digital data was unreasonable under the Fourth Amendment.
The Court unanimously held that digital data does not bring with it the same considerations that accompany the search of a physical object. The Court noted that digital data can be preserved quickly and cheaply, making it unlikely for the evidence to be destroyed while a warrant is secured, and that digital data is unlikely to place law enforcement in danger, making it unnecessary to search the data prior to securing the warrant. Chief Justice Roberts energetically distinguished past precedent applying search incident to arrest to physical objects by laughing off the suggestion that the wealth of information available on a cell phone is in anyway similar to the search of a purse, wallet, or vehicle. "That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together." Riley v. California (2014).
Students in public schools retain the Fourth Amendment right to be free from unreasonable searches, however, those rights are balanced against the unique need to maintain student safety. Given the Court's opinion on cell phone data as it pertains to officer safety, it seems unlikely that school officials will meet the high standard required to justify the search of a student cell phone in most situations.
The reasoning in Riley is not inconsistent with the reasoning in G.C. v. Owensboro Public Schools, 711 F.3d 623 (6th Cir. 2013). In Owensboro, the school district caught student G.C. sending text messages in class, which was a violation of school policy. School officials confiscated the student's cell phone and read the text messages. The student had a history of discipline issues and also a history of drug abuse and suicidal threats and tendencies. The school official reading the messages stated that she did so to see if the student was planning to do something harmful to himself or someone else. The Sixth Circuit, building on the U.S. Supreme Court's 1985 decision in New Jersey v. T.L.O., applied a reasonableness standard to weigh whether school officials were justified in searching the student's cell phone.
The Sixth Circuit in the Owensboro case reiterated a two part test and applied it to the search of the cell phone. First, the search must be justified initially based on "reasonable suspicion that a search will uncover evidence of further wrongdoing or of injury to the student or another." The Sixth Circuit cautioned that not all infractions involving cell phones will present such indications. The second threshold that must be met is that even if the search is initially justified, the scope of that search must be appropriately tailored to the nature of the infraction. The Sixth Circuit stated that the second prong prohibits school officials from "search[ing] any content stored on the phone that is not related either substantively or temporally to the infraction."
The Owensboro court applied the two part test to G.C. and concluded that a student sitting in class texting did not indicate to school officials that a search of the cell phone would reveal evidence of any criminal activity, impending contravention of additional school rules, or potential harm to anyone in school. Therefore, school officials did not have a reasonable suspicion to justify the search of the cell phone even with the students' history of drug abuse or depressive tendencies.
The Owensboro court did not reach the second prong of the two part test and did not consider how school officials could appropriately tailor the scope of a cell phone search. The Supreme Court in Riley, however, did entertain the proposition that the Court could rule in a way that would restrict the scope of a cell phone search to those areas of the phone where an officer reasonably believes that information relevant to the crime, the arrestee's identity, or officer safety will be discovered. The Court flatly rejected this approach as it would "impose few meaningful constraints" on law enforcement. The Court also rejected the suggestion that officers might be allowed to review the digital data for information that would be available in some pre-digital counterpart. The Court pointed out the transparency in this suggestion, stating that many records in a phone would have a physical counterpart, but that "it is implausible that [Riley] would have strolled around with video tapes, photo albums, and an address book all crammed into his pockets." As a result, the Court rejected all proposed rules for addressing the scope of a cell phone search and instead held that "a warrant is generally required before such a search, even when a cell phone is seized incident to arrest."
Owensboro and Riley clearly signal to school districts that a search of a student's cell phone implicates the Fourth Amendment. Any review of data contained on cell phones, without a compelling justification based on the specific facts and circumstances may violate the students' constitutional rights. School districts may opt to draft policies describing the action taken when there is a suspicion of wrongdoing involving electronic devices. Following the Supreme Court's suggestion to law enforcement in Riley, schools should consider policies outlining when an electronic device may be confiscated and secured. Districts should secure the cell phone and then work to get student or parent consent to search the contents of the device, or, if the situation warrants, contact law enforcement.
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