Guidance on Standards and Procedures for Searches

of Personal ElectronicDevices

Elk Grove Unified School District

This a summary of legal issues and concerns that surround the search of personal electronic devices by school administrators and personnel. It covers the standards for permissible searchesand the consequences of potentially unlawful searches.

Q:What is the applicable legal standard for search of a student’s belongings?

A:The legality of a school’s search of a student or his/her personal belongings “depends on the reasonableness under all the circumstances of the search.” (In re Lisa G, (2004) 123 Cal.App.4th 801, 805, citing New Jersey v. T.L.O. (1985) 469 U.S. 325, 341.) The Fourth Amendment to the United States Constitution protects all persons, including minor students, against unreasonable searches and seizures.

To be lawful, a student search must be based on “reasonable suspicion.” The courts use a two-part inquiry:

  • whether the search was justified at its inception, and
  • whether the scope of the resulting search, as actually conducted, was reasonably related to the circumstances that justified the original search.

As the courts put it, this requires “articulable facts, together with rational inferences from those facts, warranting an objectivelyreasonablesuspicion that the student or students to be searched are violating or have violated a rule, regulation, or statute.” And “the corollary to this rule is that a search of a student by a public school official is unlawful if predicated on mere curiosity, rumor, or hunch.” (In re William G. (1985) 40 Cal.3d 550, 564.)

(In re Lisa G. at p. 805.)

Q:What makes a search “justified at its inception?”

A:The norm is that a search is “justified at its inception” when a school official has reasonable grounds to suspect that the search of the student or the student’s belongings will disclose evidence that the student has or is violating the law or a school rule. (Id. citing T.L.O., 469 U.S. at 341-42.)

Q:How do I prove that the scope of the result was “reasonably related” to the circumstances that justified the original search?

A:A school official’s reasonable suspicion must be supported by articulable facts and absent same, the student’s privacy interests trump a school official’s desire to conduct a search. (Id. at 806, citing In re William G. (1985) 40 Cal.3d 550, 564.) There must be a “correlation between the wrongful behavior of the student and the intended findings of the search” in order for there to be a “valid search of the student [and the student’s belongings] under the fourth Amendment.” (Id.)

Q:If a student uses a personal electronic device in class or on school grounds, or otherwise violates a school rule regulating the use of devices on campus, can school personnel search the contents of the student’s phone (i.e. look through text messages, video, or other information)?

A:No.

Q:Under what circumstances canschool personnel further search a student’s personal electronic device?

A:In order to justify a further search into the contents of a student’s personal electronic device the school administrator must have articulable facts supporting a reasonable suspicion that a certain law or school rule is being violated through the use of a device and that the search into the contents of the device is directed at finding evidence to support such a violation of the law or school rule.

For example, in Klump v. Nazareth Area School District (E.D. Pa. 2006) 425 F.Supp. 622, a high school student and his parents filed suit against the school district, superintendent, assistant principal, and teacher. The student claimed that the school confiscated the student’s cell phone, called classmates listed in the student’s phone number directory, accessed student’s text messages and voice mail, and held instant messaging conversations with the student’s younger brother without identifying themselves. The court ruled that in calling other students the defendants were conducting a search to find evidence of other students’ misconduct, which they may not do under the standard articulated above. (Id.at 640.) The defendants had no reason to suspect at the outset that such a search would reveal that the student was violating another school policy; rather they hoped to utilize his phone as a tool to catch other students’ violations. (Id.)

This case demonstrates that mere violation of a school rule regarding use of a cell phone does not justify a search of the cell phone’s contents unless there is a reasonable suspicionthat the student was violating another law or school rule that would require a search of the phone’s contents to confirm. Further, the scope of any search is limited to the reasonable suspicion and facts supporting the same. For example, a reasonable suspicion that a student has violated a school rule by using his or her phone to video record a teacher in class does not justify a search of all contents on a phone, but rather only the recorded videos within the time frame of the suspected violation. (Quon v. Arch Wireless Operating Co. (9th Cir. 2008) 529 F.3d 892.)

Q:What if school personnel conduct a search that is unlawful, can the school still use the evidence obtained in an unlawful search in a school disciplinary proceeding?

A:Yes, school officials may still use the evidence obtained in an arguably unlawful search in a school disciplinary proceeding. (See Gordon J. v. Santa Anan Unified Sch. Dist. (1984) 162 Cal.App.3d 530, 542-46.)

However, there are two negative consequences that overall, likely outweigh the benefit of evidence obtained through an unlawful search. First, the evidence obtained through an unlawful cell phone search cannot be utilized by law enforcement or prosecutors in a juvenile or criminal proceeding. (In re William G. (1985) 40 Cal.3d 550, 567.) Second, the unlawful search may subject school administrators and the District to a lawsuit based on violation of the student’s Fourth Amendment rights and predicated on the federal civil rights law, 42 U.S.C. § 1983.

Q:What if a cell phone is found and the administrator searched the cell phone contents with the intent of finding the owner?

A:The search of a phone to find the owner is permissible, however, one would have to analyze whether any information discovered that shows a violation of law or school rules falls within the parameters discussed above.

Please note: this memorandum is intended asgeneral guidance only and not as legal advice. If you have questions about specific situations, please contact a school administrator or an attorney.

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