In a 9-0 ruling that will reverberate in the nation’s schoolhouses, the Supreme Court decided Wednesday that police can’t automatically search the contents of a motorist’s cellphone just because they arrest him.
Instead, the Court decided in Riley v. California, the search must be justified by probable cause to believe that the portions of the phone being searched contain evidence of a crime — the same justification the Fourth Amendment requires for any warrantless search.
Normally, when police make a traffic stop, they can conduct a search “incident to arrest” that includes the motorist’s pockets and personal effects. That intrusion is legitimized by officer safety — to make sure the detainee isn’t carrying weapons — and by the need to preserve evidence that the detainee might destroy.
But in David Riley’s case, the search went further. After California police lawfully stopped Riley for a traffic offense, then arrested him after discovering two illegally concealed firearms under the car’s hood, they went through his cellphone messages and photos, where they discovered evidence linking him to a gang-related shooting. Riley sought to throw out the cellphone evidence on the grounds that the search violated his Fourth Amendment rights. On Wednesday, a unanimous Supreme Court (in an opinion written by Chief Justice John Roberts) agreed that police went too far.
In a 1973 case, United States v. Robinson, the Court said that once police have lawfully arrested a suspect, a search of that person’s belongings requires neither a warrant nor a showing of probable cause. In Riley’s case, the Court declined to extend that rule to searches of cellphones. Rather, a cellphone search — even during an arrest — will be legal only if police show probable cause overcoming the owner’s Fourth Amendment privacy interests. And that applies even if the police search only the log of incoming and outgoing calls, the Court ruled.
Although nothing in the Riley case or the Court’s ruling directly addresses schools, the justices’ expansive view of cellphone privacy is certain to have an impact on all phone searches.
The Fourth Amendment does protect students even while they are in school, though school authorities need less justification to legitimize a search than police do. The Court set the Fourth Amendment standard for in-school searches in a 1975 case, New Jersey v. T.L.O., involving a school administrator’s demand to look inside a student’s purse for cigarettes (he found them, plus a pot pipe and a list of marijuana customers). In T.L.O., the Court decided that “probable cause” was too high a burden for the unique school setting, and that a search of a student’s belongings would be legal as long as it was supported by “reasonable suspicion” that the belongings contained evidence of a crime or a rule violation.
The key passage from the T.L.O. case is that a search is constitutionally allowable if the scope of the search is “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.”
This is where today’s Supreme Court ruling becomes relevant to schools — it explains that the search of a smartphone is, by its nature, more “intrusive” than the search of a backpack, purse or other physical space:
Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. … But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones.
In other words, the burden to justify searching a cellphone will be higher than the burden to search other possessions, because the phone contains limitless amounts of personal information beyond what a person could physically carry. As in the police/motorist context, courts have been struggling to find the right balance between school authority and student privacy:
- Last year, a federal appeals court decided that a Kentucky school overreached in reading a student’s text messages after confiscating his phone on the grounds that he was caught texting. The search was unjustified, the Sixth Circuit U.S. Court of Appeals ruled, because the search was unnecessary to gather evidence of the texting infraction; the school was merely fishing for evidence of other possible misdeeds, which it had no reasonable grounds to suspect. In language that anticipated the Supreme Court’s Riley ruling, the Sixth Circuit said 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.”
- In 2010, a federal judge in Mississippi threw out the Fourth Amendment claims of a student whose phone was searched after he was caught reading a text-message during class in violation of school rules. (However, the judge allowed the student to proceed on claims that the district violated his constitutional rights by expelling him for photos found on the phone, which showed him dancing in front of his parents’ bathroom mirror and flashing what the school described as “gang signs.”)
- A federal district court ruled in 2006 that a Pennsylvania school acted not just unlawfully but clearly so, in using a student’s confiscated cellphone to dial other students in the phone’s address book, to see whether their phones could be triggered to ring, exposing them as violators of the school’s cellphone restrictions.
The Riley opinion may not cause schools to rewrite their phone-search policies, but it should certainly cause them to reexamine how those policies are applied.
Searches that were dubiously constitutional in the past — such as a 2011 drug sweep at Illinois’ Stevenson High School, where students were pulled into the principal’s office and ordered to “unlock” their cellphones based on nothing more than sharing a first name with someone identified as a drug buyer — are more clearly unconstitutional today.
As a final P.S., students who use their cellphones to gather news may have additional recourse under the federal Privacy Protection Act. The 1990 statute forbids government officials from searching for journalists’ unpublished work, whether in a newsroom, a car, an apartment — or a smartphone. The statute won’t work if the student is being searched for reasons unrelated to journalism, but if the phone contains unpublished news photos, interview recordings or messages exchanged with sources, it’s always wise to mention the PPA at the first sign of a search and contact a lawyer as quickly as possible.
For more information on protecting your rights, consult the SPLC’s Tip Sheet, “Responding to School Seizures and Searches of Cell Phones.”