Rethinking Student Cell Phone Searches

In Fourth Amendment analysis, warrants are ordinarily required to search for evidence of criminal wrongdoing. However, under the warrant requirement’s search-incident-to-arrest exception, once an individual has been placed under custodial arrest, certain warrantless searches may automatically follow, such as a search for weapons or destructible evidence potentially within the arrestee’s reach. As long as the arrest itself is lawful, the resulting search for weapons and destructible evidence requires no independent suspicion. In Riley v. California, the United States Supreme Court unanimously rejected the proposed extension of the search incident to arrest exception to cell phones, thereby requiring a warrant to search a cell phone’s digital contents notwithstanding the otherwise reduced privacy protections afforded arrestees. This article examines Riley’s impact on searches of K-12 and college students’ cell phones as an incident to a violation of law or school rule, the school setting’s analog to Riley. As of today, Riley requires probable cause and a warrant to search a cell phone’s digital contents as an incident to an ordinary arrest. However, neither of these safeguards is required to conduct the same search as an incident to a K-12 student’s suspected violation of law or school policy. Thus, Riley and K-12 precedents are in tension, particularly in those instances where K-12 students are arrested on school grounds in possession of a cell phone. The law is somewhat less clear in regards to college student cell phone searches. However, courts have recognized reduced Fourth Amendment protections there as well. After weighing the pros and cons of extending Riley to the schoolhouse gates, this article arrives at the simple conclusion that, despite its narrow holding, Riley’s sweeping pronouncements regarding the unique privacy concerns inherent in the modern cell phone demand a rethinking of the law governing student cell phone searches. Riley stated, for example, that the privacy protections owed modern cell phones are even greater than what we enjoy in our homes, the area that has traditionally received the greatest Fourth Amendment protection, thereby implying that cell phone searches, of any kind and in any place, are owed the greatest possible constitutional protection. In addition, although Riley involved searches of arrestees, who have traditionally enjoyed diminished privacy interests, the Court nevertheless found the privacy-related concerns in cell phones weighty enough to require a warrant, notwithstanding arrestees’ reduced expectations of privacy. This exact rationale can be applied to K-12 and college students, who, like arrestees, have also enjoyed reduced Fourth Amendment protections. This article concludes by proposing heightened Fourth Amendment protections for both K-12 and college cell phone searches. First, this article argues that although college students enjoy reduced expectations of privacy in certain instances, particularly for administrative inspections where campus safety concerns predominate, the justifications for such rulings do not apply to a cell phone’s digital contents. Quite simply, a cell phone’s digital data, unlike a weapon hidden in a dorm room, cannot harm anyone, and routinely inspecting such devices would not enhance the educational environment. Thus, this article contends that college students deserve the same protections in their cell phones enjoyed by the adult defendants in Riley, namely, the full protections of a warrant and probable cause. For K-12 students, this article advocates a middle-ground solution that accounts for the unique privacy interests that apply to all cell phones while preserving the need to control the K-12 learning environment without undue judicial supervision. This article thus proposes that K-12 schools adopt an internal system of checks and balances consisting of a higher-level, independent review of a school official’s desire to search a student cell phone, along with an administrative warrant the supervising official must sign before the search may be carried out. I hope you find this article achieves its intended purpose of carefully rethinking student cell phone searches in light of Riley v. California.