T.L.O. and Cell Phones: Student Privacy and Smart Devices After Riley v. California

Author:Bernard James
Position:Professor of Constitutional Law, Pepperdine University School of Law
Pages:343-370
 
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343
T.L.O. and Cell Phones: Student Privacy
and Smart Devices After Riley v. California
Bernard James
I. INTRODUCTION ............................................................................. 344
II. SEMINAL CASES ............................................................................. 346
A. RILEY V. CALIFORNIA ............................................................. 346
B. NEW JERSEY V. T.L.O. ............................................................ 348
III. RECONCILING RILEY AND T.L.O. ................................................... 351
A. THE COURTS AND THE PROPER TEST FOR PROTECTING
STUDENT PRIVACY INTEREST IN CELL PHONES .......................... 351
B. SCHOOL OFFICIALS AND THE PROPER JUSTIFICATION FOR
SEARCHING STUDENT CELL PHONES ......................................... 356
IV. MODELS OF RILEY AND ITS INFLUENCE ON SCHOOL
DISCIPLINE .................................................................................... 361
A. CELL PHONES AND SCHOOL DISCIPLINE: FIVE EXAMPLES ........... 361
1. Scenario 1: Violation of School Rules Unrelated to
Cell-Phone Possession and Use .................................... 361
2. Scenario 2: Use of Cell Phone in Actual
Misconduct .................................................................... 362
3. Scenario 3: Violation of School Rules That Prohibit
Cell-Phone Possession and Use .................................... 363
4. Scenario 4: The Confiscated Device ............................ 364
5. Scenario 5: The Abandoned or Lost Device ............... 365
V. CONCLUSION ................................................................................ 366
Professor of Constitutional Law, Pepperdine University School of Law. I would like to
thank Adam Lewental and Raija Churchill for their research and critical observations on the
contents of this Essay.
344 IOWA LAW REVIEW [Vol. 101:343
I. INTRODUCTION
A ruling by the United States Supreme Court will often alter a single
element of a rule of law in a manner that effects change throughout the
doctrine itself. This is plainly evident in the search-and-seizure case of Riley v.
California.1 The Court in Riley affirmed the vitality of the so-called “search-
incident-to-arrest” exception to the warrant requirement of the Fourth
Amendment.2 However, the Justices severely limited the exception in an
emerging context—when the property of the arrestee happens to be a cell
phone or device that contains smart technology. The Riley decision
categorically makes the warrantless seizure and harvesting of the digital
contents of smart devices unlawful absent additional justification by police.
Riley accomplishes this with aplomb, placing cell phones on a unique footing
as a matter of constitutional law because “[c]ell phones differ in both a
quantitative and a qualitative sense from other objects that might be kept on
an arrestee’s person” and “ha[ve] several interrelated consequences for
privacy.”3
A change in Fourth Amendment doctrine in light of Riley is predictable,
if not difficult to discern, in accord with the law of unanticipated
consequences.4 In education law, Riley sits uncomfortably alongside New Jersey
v. T.L.O.5 and its dominant role in resolving assertions of student privacy in
the context of campus safety and school discipline. T.L.O. establishes a
“search-incident-to-school-discipline” exception to the Fourth Amendment,
authorizing searches and seizures of students and their property based upon
mere reasonable suspicion.6 Under T.L.O., educators enjoy generous
deference from judicial review because “standards of conduct for schools are
for school administrators to determine without second-guessing by courts.”7
Except in cases both rare and egregious, most student searches are upheld
because “maintaining security and order in the schools requires a certain
1. Riley v. California, 134 S. Ct. 2473 (2014).
2. Id. at 2482–84; see also U.S. CONST. amend. IV (“The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things to be
seized.”).
3. Riley, 134 S. Ct. at 2489; see also id. (“[M]any of these devices are in fact
minicomputers . . . .”).
4. See Robert K. Merton, The Unanticipated Consequences of Purposiv e Social Action, 1 AM. SOC.
REV. 894, 895 (1936) (“[T]he consequences of purposive action are limited to those elements in
the resulting situation which are exclusively the outcome of the action, i.e. those element s which
would not have occurred had the action not taken place. Concretely, however, the consequences
result from the interplay of the action and the objective situation, the conditions of action.”).
5. New Jersey v. T.L.O., 469 U.S. 325 (1985).
6. Id. at 341–42.
7. Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 371 n.1 (2009) (citing T.L.O.,
469 U.S. at 342 n.9).

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