May Teachers Search Students’ Cell Phones?

Download PDF

I have a “friend” whose teenage son was caught using his cell phone in class. The teacher saw him using it and took the phone. She looked at the phone when she picked it up and saw displayed on its screen a snapchat from another student in the class. So she took the other student’s phone too. My friend wanted to know what the teacher’s options were after that. Could she search the contents of the cell phones she had seized?

Does the Fourth Amendment apply?  The Fourth Amendment’s prohibition on unreasonable searches does apply to searches of students and student property conducted by school authorities. See New Jersey v. T.L.O., 469 U.S. 325, 332 (1985). Even though school officials sometimes act as surrogates for parents (whose searches are unquestionably exempt from the Fourth Amendment, no matter how “unreasonable” their children may deem them), school officials act as representatives of the State when they carry out searches related to school discipline.  Id. at 336-37.

Do school officials need a warrant? No. The United States Supreme Court recognized decades ago that the warrant requirement was “unsuited to the school environment,” since requiring a teacher to obtain a warrant before searching a child suspected of violating school rules or the criminal law would “unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools.” Id. at 340.

What’s the standard for suspicion? While a search normally must be based upon probable cause that a violation of the law has occurred, that standard is lowered in the school context. The legality of a search of a student or his or her property by a school authority is based on its reasonableness under the circumstances. Id. at 341 (1985). To be lawful, the school authority’s actions must be justified at their inception. Id. at 341-42. A search is so justified when there are reasonable grounds for suspecting that it will turn up evidence that the student has violated or is violating the law or school rules. Id. The ensuing search must be reasonably related in scope to the circumstances that initially justified the interference and must not be excessively intrusive in light of the age and sex of the student and the nature of the infraction. Id.

How does this apply to cell phone searches? The United States Supreme Court noted in Riley v. California, __ U.S. __, 134 S. Ct. 2473 (2014), that cell phones are “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Id. at __; 134 S. Ct. at 2484. This sort of device attachment is just as pronounced for teenagers as it is for adults. And teenagers, like adults, use their phones to store information that creates a digital record of their lives, from the mundane to the intensely personal. The pervasiveness of these handheld digital records of private information led the Riley court to conclude that a warrant is generally required before a cell phone may be searched by a law enforcement officer, even when the cell phone is seized incident to the person’s arrest. Id. at __; 134 S. Ct. at 2493.

Riley did not, of course, address searches of cell phones by school officials; therefore, it does not alter the decades-old rule that warrants are not required for school searches. Riley’s consideration of the privacy interests implicated by cell phone searches does, however, indicate that school officials should carefully limit their searches of students’ cell phones to ensure that the data they search relates to the suspected violation.

A case in point.  The Court of Appeals for the Sixth Circuit considered in G.C. v. Owensboro Public Schools, 711 F.3d 623 (6th Cir. 2013), whether an assistant principal lawfully read the text messages on a student’s phone after a teacher saw the student send two text messages during class. The court reasoned that using a cell phone 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.” Id. at 633. The court determined that school officials did not have reasonable suspicion to justify the search as they failed to demonstrate how searching the phone would reveal evidence of criminal activity, impending contravention of additional school rules, or potential harm to anyone in the school. Id. at 634.

So what’s the answer?  The G.C. court’s conclusions indicate that the teacher could not search the cell phone in the facts set out above.  But not every court has applied that analysis.  See, e.g., J.W. v. Desoto County School Dist., 2010 WL 4394059 (N.D. Miss. Nov. 1, 2010) (unpublished) (“Upon witnessing a student improperly using a cell phone at school, it strikes this court as being reasonable for a school official to seek to determine to what end the student was improperly using that phone.”). There is no North Carolina or Fourth Circuit case on point.  As a practical matter, I suspect that policy guidance on this issue may vary among school districts.

One comment on “May Teachers Search Students’ Cell Phones?

  1. My daughter attends a private school in NC, she is 12 years old and in 6th grade. Recently a student told one of the teachers that he saw a picture posted on Instagram of my daughter and her friend in the bathroom at school. The picture was not pornographic, it was of the girls looking in the mirror. At the school, students may have their phones in their lockers turned off during the school day, but may not access them until after school. So, if the picture was taken during the day it is a violation of school rules, if it was taken in after school it is not. Upon hearing the “complaint” from the student, two teachers asked my daughter and her friend to get their phones out of their lockers so they could search them. The Middle School Principal was not at school; however, the School Director and Elementary School Principals were. One of the teachers asked my daughter to log into her phone and scroll through the pictures while she watched. She then asked her to open Instagram and show her the posts there, which my daughter complied with. The other teacher and student had stepped into a room where that teacher reviewed her phone. They emerged from the room and the teacher stated that she had located the pictures in question and they were taken during after school so there was no violation. She further stated that she had seen a saved video on the student’s phone of a FaceTime video between the two girls while at home. In the about 10 seconds video, my daughter had her phone on the floor facing up. She was in shorts and the camera angle was looking up her shorts. She performed some dance moves (hip thrusts). She was fully clothed and although you could see a glimpse of her underwear, no private body parts were visible. The teacher was so upset by the video (fear that someone else might see it and/or it could be shared), she told the student to delete it. After discussing with the other teacher, they decided that they needed to retrieve the video and discuss next steps with the Elementary School Principal. Upon talking to her, the teacher was instructed to send the video to me and the Middle School Principal. The teacher did not know how to retrieve the video because it had been deleted. She enlisted the help of another Middle School teacher to retrieve it during lunch. Both phones were kept by the teachers for review during lunch. As previously stated, at this point they had found no school rule or law infractions on either phone. The video did not violate school rules, the teacher was just concerned as a mother about it being shared with others. The 3rd teacher had the student with the video write down her passwords where she proceeded to search the phone and retrieve the video which was sent from the student’s email box to me, the first teacher that viewed it, and the Middle School Principal an hour later. The first teacher proceeded to view other pictures on the student’s phone and make comments to the student about the content. Then they called my daughter over, had her write down her password, and they searched her phone, I do not know what all they looked at because my daughter was sent back to her table. They told me that it was because they wanted to make sure my daughter hadn’t shared the video – but it was never on her phone, as a matter of fact she didn’t even know the video existed until this incident. Neither girl received a punishment for the content of either phone. My question is, would this be considered a violation of my daughter’s 4th amendment right? The school is saying that they did nothing wrong and as a private school they can do this. I did search the policy and there is no statement about teacher’s searching phones. It does state that they can be penalized for vulgar, threatening, obscene, etc. things posted on social media or present on their phone whether or not it was done at school. I would appreciate your opinion on this.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.