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

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).