'Reasonable suspicion' must precede cellphone search
On Board Online • October 9, 2017
By the New York State Association of School Attorneys
In November 2015, administrators in a Suffolk County school district became aware that a video was circulating among 10th-grade students that showed sexual conduct between two 14-year-olds, one of whom was a student in the district. They confiscated the cellphones of several students, interviewed dozens of students and got the police involved. By the time the investigation was concluded, 28 students had been suspended.
Such incidents raise questions that can arise in any school: Under what conditions is it lawful for a school official to (a) confiscate and (b) search a student's cellphone?
The general rule is that a student's personal cellphone may be confiscated when its use or possession violates school policy. For instance, in a given district, it might be a violation of school policy to use a cellphone during class or anytime during the entire school day.
Courts have held that school officials are justified in searching the information contained in a student's cellphone only when there is reasonable suspicion that the search will reveal evidence of wrongdoing. It is important for teachers and school administrators to be aware of this standard; just because you have lawfully confiscated a cellphone, that does not give you the right to search the contents of the cellphone.
The 'reasonable suspicion' standard
The legal standard governing all student searches conducted by school officials was established by the U.S. Supreme Court long before the cellphone age. In New Jersey v. TLO, the court held that students are entitled to the protections of the Fourth Amendment against unreasonable searches, even when the search is conducted in the school setting by school officials. However, the court also recognized that the nature of the school setting "requires some easing of the restrictions to which searches by public authorities are ordinarily subject."
Proceeding from this premise, the court held that "the legality of the search of a student should depend simply on the reasonableness, under all the circumstances of the search."
"Reasonableness" is determined through a two-step inquiry. First, the search itself must be justified from inception. This step is satisfied when there are reasonable grounds to suspect that the search will produce evidence that the student has violated or is violating the law or school rules. Second, the search must be reasonable in scope, meaning the search may not be excessively intrusive, and the method and extent of the search must be reasonably related to the objectives articulated in step one.
Since the TLO decision, "reasonable suspicion" has remained the standard by which the legality of all in-school student searches, conducted under the direction of school officials, are evaluated.
How courts have applied TLO to cellphone searches
Although TLO was decided nearly 30 years ago, before the proliferation of cellphones, a number of federal courts have applied TLO's "reasonable suspicion" standard to cases involving cellphone searches by school officials.
To date, the highest level court to address the issue is the Sixth Circuit Court of Appeals in G.C. v. Owensboro Public Schools. In G.C., a student who was given permission to attend school as an out-of-district student was observed sending text messages in class, which was a violation of school policy. Based solely upon that infraction, the student's phone was confiscated. The phone was brought to a school administrator, who proceeded to read four text messages contained in the phone.
Following this incident, the district revoked G.C.'s permission to attend school in the district. The student brought a lawsuit against the district in which he made several constitutional claims, including that the search of his phone was unlawful.
The case was ultimately brought before the Sixth Circuit, which held that the search of the contents of G.C.'s cellphone violated his Fourth Amendment rights. Citing the reasonable suspicion standard, the court held that "using a cellphone on school grounds does not automatically trigger an essentially unlimited right enabling a school official to search any content stored on the phone that is not related either substantively or temporally to the infraction."
The court concluded that the district failed to demonstrate how reading G.C.'s text messages "would reveal evidence of criminal activity, impending contravention of additional school rules, or potential harm to anyone at the school." Stated more simply, the district did not have reasonable suspicion to justify the search, although the seizure of the phone was lawful.
Notably, the Sixth Circuit rejected the district's argument that the search was justified because the district was aware of G.C.'s long history of drug abuse and suicidal thoughts. The court held that possessing general background knowledge of a student's "drug abuse or depressive tendencies," by itself, does not provide reasonable suspicion for a school official to search the contents of a student's cellphone.
Although not binding in New York State, the Sixth Circuit's reasoning and analysis in this case should alert school officials to the importance of having adequate justification for searching content on a student's confiscated cellphone or other personal device.
This is particularly evident in light of the U.S. Supreme Court's unanimous decision in Riley v. California (2014). In Riley, the court addressed whether the police could conduct a warrantless search of the contents of a cellphone seized from an individual following an arrest. Although the decision did not address a cellphone search in the school setting, the decision established the Supreme Court's view that owners of cellphones possess an expectation of privacy in their cellphones based upon the vast amount of personal information that cellphones contain. The decision, written by Chief Justice John Roberts, noted that cellphones of typical American adults contain, "a digital record of nearly every aspect of their lives - from the mundane to the intimate."
How to approach doing a search
To avoid legal missteps, school administrators should do the following when contemplating a search of a student's cellphone:
1. Establish whether reasonable suspicion exists. At the outset, school officials should be confident that they have reasonable suspicion, consistent with the TLO standard. TLO requires that school administrators keep two fundamental questions in mind. First, is it reasonable to believe that the search will yield evidence that the student has violated the law or a school rule? If so, the next question is how to conduct the search so that the scope will be limited only to those parts of the phone where the evidence being sought may reasonably be expected to be found.
2. Always seek consent. If a search meets the TLO standard, a school official does not need a student's consent to proceed with a search of his or her cellphone. Nevertheless, school officials should always ask the student for their consent prior to the search. Valid consent will help defeat objections that the search constituted a violation of the student's Fourth Amendment rights. However, the student's consent must be unequivocal and given freely and voluntarily.
3. Involve other administrators. If evidence of misconduct is discovered, the content should be viewed by a second school official. Generally, evidence should be preserved in some manner so that it may be presented as evidence during a subsequent disciplinary proceeding, but sexting presents special considerations. If the material is child pornography, the mere possession of it can constitute a crime. Such material should not be copied, photographed or transmitted, as this could unintentionally expose school personnel to criminal liability. Rather, law enforcement should be called immediately and the phone should be handed directly to law enforcement personnel.
4. Disciplinary charges should match the offense. If a search results in a student suspension, it is imperative that the required written notice of suspension provide an accurate description of the offense which corresponds with conduct prohibited under the district's code of conduct. In the Suffolk County case mentioned earlier (Appeal of A.F.), the commissioner of education overturned two student suspensions because the district charged the students with "inappropriate use of an electronic device," when the charge that likely would have been supported by the facts was "possession of obscene material."
Of course, every situation presents unique challenges, and the decision to search a student's cellphone will depend entirely upon the facts of a particular case. For instance, credible evidence that students are involved in a plan to harm themselves or others may justify a search of the content of a cellphone, particularly if it is reasonable to view the threat as imminent.
While these rules of thumb can avoid most problems associated with cellphone searches, consultation with district counsel is highly recommended before any search takes place.
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Joseph P. Lilly and Nicole A. Donatich of Frazer & Feldman, LLP.