In the recent, landmark case of Riley v. California, the United States Supreme Court held that the police may not search digital data on the cell phone of an arrestee without a warrant, reasoning that smart phones not only possess an “immense storage capacity” containing “millions of pages of text, thousands of pictures, or hundreds of videos” permitting the owner to collect and aggregate in one place many distinct types of information — such as an address, a note, a prescription, a bank statement and a video — but also possess the ability to serve as portals to even greater quantities of similar private records stored outside the cell phone on servers. The Riley court’s confirmation that cell phone searches implicate substantially greater individual privacy interests raised questions as to the future viability of New Jersey v. TLO, which has long been the seminal case on school-based searches.
Some insight on that question might be found in what appears to be the first ruling on student smart phone searches issued since Riley. In Gallimore v. Henrico County School Board, et al, the United States District Court for the Eastern District of Virginia utilized the two-part “reasonableness” standard adopted by the Supreme Court in TLO to find that the search of the student’s cell phone contents might be unconstitutional. In TLO, the Court held that school officials could conduct warrantless searches of students if the search was: (1) justified at its inception; and (2) reasonably related in scope to the circumstances which justified the search in the first place.
The dispute in Gallimore arose out of school administrators’ decision to search a long-haired student after two parents had reported that a long-haired student had smoked marijuana on a school bus that morning. Items allegedly searched (the procedural posture of the case had the court assuming all allegations to be true) included the student’s pockets, backpack and shoes, as well as a Vaseline jar, sandwich wrapper and cell phone found on the student. No drugs were found, and the student subsequently filed suit alleging, in part, a violation of his Fourth Amendment rights.
The court found that the search satisfied the first prong of the “reasonableness” standard because it was “justified at its inception” due the fact that the student had long hair. The court, however, held that the search of the cell phone — as opposed to the search of the pockets, backpack and other items, which were all found to be reasonable and hence constitutional — failed the second prong because it “exceeded the scope of a reasonable search initiated to find drugs.” As the court noted, “the cell phone could not have contained drugs.”
Of note is the fact that in applying TLO, the Gallimore court made no reference to Riley. Instead, it simply noted that, at this state of the proceedings, the school had not asserted facts providing reasonable cause to check the cell phone’s contents, such as a reason to believe that text messages or telephone calls stored in the phone would disclose a marijuana supplier or purchaser in the school.
So, Can Schools Search a Student’s Smart Phone?
What if the administrators had, however, possessed such reasonable cause? While the Gallimore Court at least suggests that reasonable suspicion is sufficient, would administrators have been permitted to lawfully search the contents of the student’s smart phone in light of Riley?
Given the Riley court’s extensive discussion regarding the heightened privacy interests represented by smart phones, it will be interesting to see whether future courts confronted with a school-based search of a cell phone will still apply TLO, or whether they will fashion a more exacting standard. One cannot easily dismiss the obvious difference between a smart phone’s “immense storage capacity” and what might be stashed in a backpack, and that dichotomy could make a compelling basis for arguing that TLO is a product of an earlier era in which no court could have foreseen today’s technology. Thus, a student could assert that just as technology has evolved, so too must the law’s standards for balancing the government’s interest in avoiding a disruption of the learning environment against what the Supreme Court has determined to be a substantial and unique privacy right in smart phone data.
At the same time, there are strong countervailing reasons for maintaining the TLO standard, even when confronted with devices such as smart phones. TLO recognized a school district’s substantial interest in maintaining order and ensuring safety within schools, an interest that is far more compelling in today’s post-Columbine, post-Sandy Hook era. In light of those school tragedies, as well as the fact that school searches are conducted by school administrators, not the police, there is good reason to believe that TLO would be deemed as applicable to a smart phone as it is to a purse or backpack.