South Dakota School Law Notes: Student Cell Phone Searches in the Age of Wireless Communication

 

When most people think about a student search, the image is usually a school official ordering a student to empty his pockets or backpack. However, an entirely different student search occurs when a school official confiscates a student’s cell phone. Most school districts have policies that prohibit students from having (or using) cell phones during school hours. These policies usually allow the school official to confiscate the student's cell phone for violating the policy.

These types of cell phone policies have been upheld under the Fourth Amendment.  However, can a school official access a student's cell phone to view text messages, listen to voice messages, or scan a student’s phone contact list? A recent report observed: “While courts have been somewhat generous in protecting school officials’ seizure of student cell phones, they have disagreed as to whether possession of a cell phone on campus in violation of school board policy permits accessing the cell phone content."[1]

T.L.O. and Recent Court Decisions

As a fundamental matter, searches conducted by school officials within the school environment are subject to the "reasonableness" standard spelled out in New Jersey v. T.L.O.  Under this standard, a search must be (1) justified at its inception and (2) reasonable in scope. However, even T.L.O. does not provide school officials with the unrestricted authority to search the digital conents of a student's cell phone.

 

The question for school officials is under what circumstances may they access the contents of a student’s cell phone without violating the Fourth Amendment? After the cell phone has been seized, does the fact that the student possessed or used it on school grounds (in violation of school policy) provide school officials with the authority to conduct a search of the device’s stored communications (text messages, contact lists, phone logs)?

 

Recently, a series of federal courts have reviewed whether school officials violated students' Fourth Amendment rights by viewing text messages on the student's cell phones. Unfortunately, as is often the case when courts are faced with applying "old rules" to new technology, these decisions have been a "mixed bag," with some courts finding school officials justified in the cell phone search and other courts finding that school officials were not justified in the cell phone search.

 

How Should School Officials Proceed?

School officials should approach the decision to search cell phone digitial contents with caution. Because they are not legal experts, school officials should resist the temptation to conduct a search of the phone’s digital contents based solely on the fact that the cell phone has been confiscated. Instead, they should first review school district policy on when searches of confiscated student property are justified. School officials should also consider consulting with the school district’s legal counsel before viewing digitial data on the cell phone.

Under most circumstances, it is unlikely that emergency circumstances will exist at the time the cell phone is confiscated. Also, there will probably be no concern regarding student safety. In a recent case, the U.S. Supreme Court found that police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. Analogizing this decison to the school setting, T.L.O.’s requirements neither authorize nor prohibit a digital contents search. When in doubt, school officials should seek legal counsel before conducting a search of a student's cell phone. School officials need to keep in mind that even if the initial seizure of the cell phone is justified under T.L.O., the search of its contents is a separate Fourth Amendment inquiry.

 

[1] Ralph D. Mawdslay, “Cell Phones and Student Searches: The Impact of Applying State Law to a Riley v. California Set of Facts,” 311 Ed. Law. Rep. 581, 582, Thompson Reuters West (Jan. 29, 2015)

Scott Swier
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