North Dakota: The current state of cell phone searches in the school setting post-Riley

 

SCHOOL OFFICIALS
School searches by administrators must meet a two-part test. First, the search must be justified by reasonable suspicion at its inception. Second, the search must reasonably relate in scope to the circumstances that justified the search in the first place. New Jersey v. T.L.O., 469 U.S. 325 (1985).  The two-part test requires balancing the type of item searched, the nature of the infraction, and the quality of the suspicion.

A student search is justified in its inception when there are reasonable grounds for suspecting that the search will garner evidence that a student has violated or is violating the law or the rules of the school, or is in imminent danger of injury on school premises.” Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489 (6th Cir.2008). Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

A student’s use of a cell phone on school grounds, in violation of school policy, does not automatically trigger a right to search the phone; it must be reasonably related to the particularized suspicion and reasonable to the infraction.  Even if a search is conducted of the phone, the content searched must be temporally related and in an area of the phone evidence of the crime could be located. G.C. v. Owensboro Pub. Sch., 711 F.3d 623 (6th Cir. 2013).

LAW ENFORCEMENT
The police generally may not, without a warrant or consent, search digital information on a cell phone seized from an individual who has been arrested; however, exigent circumstances exceptions may give law enforcement a justification for a warrantless search in particular cases.  Riley v. California, 134 US 189 (2014).

The search incident to arrest doctrine to search a cell phone is no longer available simply because evidence may be destroyed—absent very particular, imminent facts that the phone may be wiped from an off-site location and precautions such as the use of a Faraday bag are unavailable.

Another caveat expressly allowed in the Riley decision is for a legitimate concern for the safety of officers or citizens.  Perhaps there is probable cause to believe information on a phone will identify a child who may have an imminent plan to physically harm other students or may be immediately contemplating suicide.  A warrantless cell phone search would likely be allowed in this instance if it is believed evidence of such actions could be found in the phone.

The Ambiguity of School Resource Officers (SROs)
There are three categories of school searches based on the amount of police involvement: (1) when school officials initiate the search or police involvement is minimal, the reasonableness standard applies; (2) when the search involves school resource officers acting on their own initiative or at the direction of other school officials to further educationally related goals, the reasonableness standard applies; and (3) when “outside” police officers initiate the investigation or search, the warrant and probable cause requirements apply. State v. Alaniz, 2012 ND 76, 815 N.W.2d 234, 238.

In determining how much police involvement occurred and which standard applies, the factors include whether the officer was in uniform, whether the officer has an office on the school campus, how much time the officer is at the school each day, whether the officer is employed by the school system or an independent law enforcement agency, what the officer’s duties are at the school, who initiated the investigation, who conducted the search, whether other school officials were involved, and the officer’s purpose in conducting the search. Alaniz, at ¶11.

It is clear that after Riley, cell phone searches will be faced with greater scrutiny; however, Riley facially applies to searches incident to arrest.  At this time, there is no binding authority indicating that searching a cell phone in a school setting by school officials been altered to any degree.

However, when faced with the ultimate two question inquiry: (1) Is the search justified at inception with specific, individualized facts? (2) Is the search permissible in scope and reasonable in light of the offense? The typical course of action will be to not search a phone.

Examples:
School officials’ knowledge that, a year and a half earlier, a public high school student had expressed suicidal thoughts and had admitted that he smoked marijuana, combined with student’s violation of school policy barring use of cell phones in classrooms, did not provide reasonable grounds for school officials, upon seizing the phone based on violation of the policy, to search the phone by reading student’s text messages. G.C. v. Owensboro Pub. Sch., 711 F.3d 623 (6th Cir. 2013).

A school official’s general background knowledge of a student’s drug abuse or depressive tendencies, without more, does not enable a school official to search a student’s cell phone when a search would otherwise be unwarranted. G.C. v. Owensboro Pub. Sch., 711 F.3d 623 (6th Cir. 2013).

In a 2010 Texas case, a teacher confiscated an eighth grader’s phone after observing her looking at it with some friends. The teacher took the phone, searched through sent text messages, and found nude photos of the student. The student confessed that she had sent the photos to her boyfriend because he had sent similar photos to her. The student was suspended and assigned to a disciplinary program.  The Court found the teacher’s search to be unreasonable.  Mendoza v. Klein Indep. Sch. Dist., No. H-09-3895, slip op. at 2 (S.D. Tex. Mar. 15, 2011).

In Safford United School District V. Redding, the Supreme Court held that a strip search of a student accused of hiding “contraband” Ibuprofen went too far.  A student was suspected of dispersing prescription drugs to other students so administrators searched her bra and had her open her pants. No pills were found. The Court held that the search at its inception was justified because the principal had heard that the student was distributing pills to students.  However, the scope of the ultimate search was found to be not reasonably related to the circumstances. Safford Unified Sch. Dist. No.1 v. Redding, 557 U.S. 364 (2009).

In Pennsylvania, a teacher confiscated a student’s cell phone after it fell out of his pocket, pursuant to a school policy prohibiting the use or display of cell phones. Once it was taken away, school officials accessed the student’s text messages and voice mail and called nine numbers listed in the student’s contact list to see if the students would violate cell phone policy by answering their phones. At some point a text was received from the student’s girlfriend that read, “Get me a ***in tampon”–an apparent reference to a large marijuana cigarette. The court found that seizing the phone was justified at its inception because the student had violated a school rule. However, school officials were not justified in searching the contents of the phone, nor was it permissible to use the phone as a tool to stimulate additional violations of school policy.  Klump v. Nazareth Area Sch. Dist., 425 F. Supp. 2d 622, 627 (E.D. Penn. 2006).

-Chris Redmann