Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.
Dear Legal Mailbag:
I have long suspected that one of the students at my high school is a dealer and I would love to prove it. Yesterday, another student told me confidentially that he saw the student rolling a joint in the bathroom and I called the suspected student down to the office for a little questioning.
I started the conversation by asking him if he had anything illegal in his possession and he denied it in a particularly unconvincing way. So I told him to empty his pockets and, suddenly, he “remembered” that a friend asked him to hold a couple of joints, which he then produced.
Things were going so well that I was sorely tempted to ask him to hand over his cell phone so that I could check it for text messages about drug deals. But I chickened out and simply suspended him for possession of marijuana on school property. Now I am kicking myself, thinking that I blew an opportunity to put this miscreant away for good. Could I have searched the cell phone?
Having Second Thoughts
Your willingness to engage in self-criticism is an inspiration to the rest of us. However, in this case, you have nothing to regret. Cell phones are certainly a tempting target for our curiosity, but a cell phone search is subject to the same rules under the Fourth Amendment as any other search of students or their possessions.
As you will recall from that great course you took on school law, students have rights under the Fourth Amendment notwithstanding the in loco parentis doctrine. In 1985, the United States Supreme Court ruled in T.L.O. v. New Jersey that school officials may search students for contraband or evidence that the student has violated school rules. Given Fourth Amendment protections, however, any such search must meet two tests the Supreme Court announced in the T.L.O. case. First, there must be reasonable cause for the search at its inception. Second, the scope of the search must be reasonably related to the purpose of the search, and the search should not be excessively intrusive in light of the age and the sex of the students involved.
Given legitimate privacy interests that students have in their cell phones, these rules certainly apply when student cell phones are searched. Indeed, the United States Supreme Court ruled unanimously in 2014 that police searches of cell phones must be justified by probable cause. Riley v. California, 134 S. Ct. 2473 (U.S. 2014). The standard is different for school administrators, of course, but T.L.O. tests still apply when school officials want to search a cell phone.
Here, you heard that the student was seen rolling a joint in the bathroom, and you determined personally that the student was in fact in possession of three joints when you searched him. Would these facts give rise to a reasonable suspicion that a search of a student cell phone would yield evidence of a violation of school rules or the law? The answer is no because you have no specific evidence that the student was using his cell phone to pursue his illegal involvement with drugs. If another student provided you a text from the suspected student concerning drugs, for example, you would have information reasonably connecting your suspicions to his cell phone, thus justifying a search. However, you did not have such information when you were contemplating a search of his cell phone and, therefore, you made the right call in this case. Good work!