1. www.msbanet.org

2. SEARCHES SEIZURE AND SMART PHONES DO’S AND DON’TS FOR SCHOOL OFFICIALS

3. www.msbanet.org SCOTT T. SUMMERS DIRECTOR OF SCHOOL LAWS MISSOURI SCHOOL BOARDS’ ASSOCIATION SUMMERS@MSBANET.ORG1.800.221.6722

4. www.msbanet.org WHAT WOULD YOU DO? One fine morning, the Principal receives a report that a “long haired student” had been smoking marijuana on the bus that morning. Principal summons a student (B.D) to his office. Upon his arrival, the principal makes B.D. empty his pockets, and initiates a search.

5. www.msbanet.org W.W.Y.D.? His “search” consists of the following: Patted down the student’s “person” Searched the student’s: – Shoes – And pockets Searched the student’s backpack contents: – Vaseline jar – A sandwich wrapper – Cell phone – No MJ was found

6. www.msbanet.org THE RULES FOURTH AMENDMENT – Prohibits unreasonable searches and seizures of persons or property by government/government actors – Police Standard is probable cause

7. www.msbanet.org NEW JERSEY v. T.L.O. 4 th Amendment applies to school officers (state) – No warrant required in schools – New Standard REASONABLE SUSPICION – Reasonable/Justified at inception – Reasonable in its scope – Not excessively intrusive AND reasonable grounds to believe that search will turn up evidence that student has violated/is violating law or school rules

8. www.msbanet.org T.L.O. Remember: Time frame could matter Anonymous “tip” – be careful – Probably ok if an emergency/safety issue Random/suspicionless Searches Only in context of drug testing

9. www.msbanet.org RILEY v. CALIFORNIA Police see man make an apparent drug sale. Arrest him, take him to police station. Seize 2 cell phones from him. One of the phones begins buzzing – receiving calls. Open phone, press a button to access call log, then another to get the number. Use an online phone directory to get address. Go to the building (arrestee’s home) secure a warrant, search home and size drugs.

10. www.msbanet.org RILEY, CONT. Goes all the way to US Supreme Court Violation of 4 th amendment Court agrees – holds that it is a 4 th Amendment violation when police officers conduct a warrantless search of a smartphone incident to arrest Narrowly tailored to criminal area – but likely to have an impact on schools

11. www.msbanet.org WHY? Court’s findings – Smart phone searches implicate privacy concerns more than searches of wallets, purses, etc. – May reveal more to the searcher than any other type of search – Lots more private information on phones – Search is more intrusive – broad array of private info never found in any home – Most likely will be applied to all electronic devices

12. www.msbanet.org HYPOTHETICAL Justified/reasonable at inception? Yes – phone call enough Reasonable in scope? Backpack, shoes, pockets – Yes – what was object of search – Also occurred in relative privacy Vaseline jar/sandwich wrapper? – Yes…could have found drugs there

13. www.msbanet.org HYPOTHETICAL Smart phone? – No... Couldn’t find drugs there – Not reasonable in “scope” – Not reasonably related to the initial objective which was finding drugs!!

14. www.msbanet.org CHEATER!! Valley Fall’s school district has a policy that allows students to bring their electronic devices to school, but they are only able to access them at certain times during the day. At NO time are students allowed to have their device(s) out and open in class. Ms. Bond’s math class is having a test. During the test, Ms. Bond sees Bill looking at something under his desk. She goes to Bill and sees that he is looking at his smartphone. Bill immediately looks up and tries to hide his phone. What, if anything, may Ms. Bond do?

15. www.msbanet.org CHEATER!! What if Bill refuses to give Ms. Bond his phone? What is Ms. Bond suspects Bill was “texting” other students in the class? May she or other administrators go after those students? What if it was inappropriate subject matter? What about the phone? What happens to it?

16. www.msbanet.org EVERY PICTURE TELLS A STORY School has policy prohibiting possession or use of smart phone at school. Student (C.W.) is seen by school employee opening his phone during school to receive a text from his father. Employee asks for phone and hands it to teacher. Teacher opens phone and sees pictures stored on it. Pictures taken by C.W. One picture shows C.W. standing with another student who is holding a BB gun.

17. www.msbanet.org EVERY PICTURE TELLS A STORY Teacher takes C.W. to principal’s office. Principal opens phone and looks at pictures. Law enforcement was there and they opened phone and looked at pics. LE says the pics are “gang pics”. C.W. is expelled for gang related offense. C.W. says search was unconstitutional. Was it?

18. www.msbanet.org PICTURES… COURT HELD No 4 th Amendment violation Use “TLO” standard – Reasonable at inception – Policy against using phone at school – Used it at school – Ok for school official to base search Scope – reasonable too

19. www.msbanet.org I THOUGHT IT WAS YOU… Policy allows students to carry, but not use or display phones during school hours. D.M’s phone fell out of his pocket and came to rest on his leg. Teacher sees phone, confiscates it based on policy. Teacher and AP begin making phone calls with the phone to see if any other students are violating policy. Then, they access text and voicemail. Text D.M’s younger brother w/o identifying themselves. One of the texts came back with a request for D.M. to provide some drugs to the texter. Okay, right?

20. www.msbanet.org I THOUGHT IT WAS YOU… TLO STANDARD (again) Justified/Reasonable at inception – But only for seizing!! – But not in subsequent calls, texts, etc. – No reason to suspect he was violating another policy – using his phone to catch other students! – No reason to suspect drug use prior to texts!

21. www.msbanet.org MAKE UP YOUR MIND! Student has disciplinary problems. Numerous referrals. Has some suicidal thoughts and depression. Gets upset one day and walks out of school. Goes to car in parking lot and calls his dad. School officials see this and see tobacco products in plain view. No phones policy. Principal is worried about student and checked his phone to see if there were any indications of self harm, etc.

22. www.msbanet.org MAKE UP YOUR MIND… Student is disciplined and at the end of the year it was recommended he could return but one issue and he was gone. He comes back the next year and within a month violates policy – cell phone policy – texting in class. Teacher confiscates phone. Takes to Principal who reads messages. Based on this, student is suspended and recommended for expulsion. OK?

23. www.msbanet.org RESULTS TLO!! First search is ok – Reasonable at inception and in scope – he was suicidal and search was reasonable to protect safety Second search – No – Only violated policy of phone use – Ok to confiscate but why look – District argues safety concern for student based on his past behavior – Court says no need here. Nothing presently would give rise to the search

24. www.msbanet.org TAKEAWAYS IT’S OKAY FOR DISTRICT OFFICIALS TO SEARCH PHONES IT’S OKAY FOR DISTRICT OFFICIALS TO SEARCH PHONES REMEMBER – REASONABLE AT INCEPTION AND REASONABLE IN SCOPE REMEMBER – REASONABLE AT INCEPTION AND REASONABLE IN SCOPE NOT A BLANKET RULE TO GO ON A FISHING EXPEDITION NOT A BLANKET RULE TO GO ON A FISHING EXPEDITION LAW/SCHOOL VIOLATION IS OCCURRING LAW/SCHOOL VIOLATION IS OCCURRING

25. www.msbanet.org QUESTIONS?

26. THANK YOU!!