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Schools Weigh Cellphone Search Ruling

West Lebanon — When David Baker was an assistant principal at Hartford High School about four years ago, he came upon a cellphone that had been left in the school’s auditorium. An announcement was made over the intercom looking for the owner of the phone, but no one claimed it. So Baker and another administrator turned on the phone to try to identify the owner. Once the phone was on, a text message popped up in plain view about a quantity of marijuana.

“It’s that kind of stuff that gets really tricky and sticky,” said Baker, who is now superintendent of Windsor Southeast Supervisory Union. “I don’t think you should ever arbitrarily search anything. It needs to be a matter of student safety, and it needs to have a level of student protection.”

If anything, school officials’ right to search students’ cellphones has only become trickier and stickier because of a recent Supreme Court decision making it clear that police officers need a warrant before searching a cellphone.

While the ruling applies directly to law enforcement officials, school officials say they believe it may affect them, too, in part because the Supreme Court was so emphatic in protecting the privacy of information stored on cellphones. In the meantime, most school officials say that when and how they can search students’ cellphones remains murky.

On the other hand, local police officers and prosecutors say the ruling will have little impact on them because they had put in place policies requiring warrants before searching cellphones prior to the high court ruling.

In that ruling, issued June 25, the justices unanimously held that modern cellphones are qualitatively and quantitatively different from other personal items that arrestees might have in their possession — such as a cigarette pack, a wallet or a purse — because they are more like minicomputers that can act as cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps and newspapers. The ruling says that if police officers cannot gain consent from a person to search a cellphone, then they must apply for a warrant before searching its contents. Consent or exigent circumstances — such as an emergency that requires an immediate response — are the exception to the warrant requirement.

Unclear Impact on Schools

The New Hampshire School Boards Association has advised school administrators not to search students’ cellphones for the time being, saying the Supreme Court ruling, as it relates to school districts, is unclear.

In fact, school officials’ authority to search students’ cellphones has always been uncertain, said Barrett Christina, staff attorney for the school boards association.

The most recent legal precedent on searching students’ property is a 1985 court case, New Jersey vs. TLO, that provides school officials more latitude than law enforcement when it comes to searching a student’s property, such as a backpack, on school grounds. Administrators can search lockers because they are owned by the school. While police officers must have probable cause to obtain a search warrant, school administrators need only reasonable suspicion, and they do not need a warrant. Many school administrators have said they view their role more as a parental one because they are responsible for students’ safety.

Technology has evolved since the 1980s, of course, and one of the personal possessions that students now commonly carry with them is a smartphone, which often contains a wealth of personal information. But no major ruling has updated school authorities’ right to search those phones.

Following the Supreme Court ruling in Riley vs. California, the New Hampshire School Boards Association sent a two-page letter advising administrators against searching students’ cellphones.

“While the direct impact on school boards may be minimal or tangential, the opinion may serve as guidance in the development of school board policies and administrative practices,” Christina advised.

In an interview last week, Christina said the recent Supreme Court ruling could provide support for an argument in a future case that the search of a cellphone without consent or a dire threat could violate a student’s rights.

“This could turn into a messy situation,” Christina said.

The school boards association is a nonprofit member service that has no regulatory authority over school administrators, but it does provide about 500 sample policies for school districts and their attorneys.

The association’s current policy on cellphones and other electronic items says, “The contents of an electronic communication device may be searched to determine ownership or to identify emergency contacts. Upon reasonable suspicion that a school rule or the law has been violated through the use of such a device, an administrator may also search for evidence of suspected wrongdoing. Any refusal on the part of a student to comply with a request to surrender the device may result in disciplinary action.”

In light of the recent ruling, Christina said, he’s uncomfortable promoting that policy.

In Vermont, the state school board association has issued no such guidance, and Nicole Mace, associate director of legal services, has said her current advice to school administrators is to consult their district’s lawyer before searching a student’s cellphone.

Mace said she plans to review the association’s policy and possibly offer new guidance before the school year starts, but said she wouldn’t tell school administrators to stop searching cellphones altogether.

“It’s not clear to what extent this opinion will significantly impact how schools approach searches,” Mace said. “I think certainly administrators ought to be thinking carefully before they search students’ cellphones given the wealth of information that is on them.”

Greg Glennon, general counsel for the Vermont Agency of Education, said he still regards New Jersey vs. TLO as the governing precedent, although he said he could imagine case law pertaining to school searches evolving in light of the Supreme Court decision.

Georgiana Miranda, an attorney in Montpelier who advises school districts around Vermont, agreed that the Supreme Court ruling will affect schools, but was reluctant to predict how. She suggested that the Supreme Court ruling could be used as a persuasive argument for parents and an attorney who want to sue a school for how officials conducted a cellphone search. And if cellphone searches are conducted, even in an emergency situation, a school could be placing itself at the mercy of the court if someone decided to sue.

Miranda said she would also recommend that school administrators consult with an attorney before searching a phone.

Protecting Students’ Safety

Enfield Police Chief Richard Crate said he hopes the ruling doesn’t affect school administrators’ ability to search cellphones because that is a valuable tool for keeping schools safe. School administrators, Crate said, serve more of a parental role than police. If Crate asked his son if he could look at his cellphone and his son said, “No,” Crate, as a father, would still have the right to look at it, Crate said. Principals should have that same authority, he said.

“When we send our kids to school, we obviously put them into a situation with the school officials. Although they are a government entity, it is not the same as law enforcement,” Crate said. “What they are looking at for the safety of our children is much different than what we deal with in law enforcement.”

While most school administrators interviewed acknowledged that students’ privacy should be respected, they also said they might feel compelled to search cellphones in emergency situations as a way of protecting students. They would deal with the legal complications later, they said.

Baker, the Windsor Southeast Supervisory Union superintendent, said it’s pretty rare for an administrator to search a student’s phone and said the issue usually comes up when it’s a matter of safety. He said the most likely situations aren’t necessarily emergencies involving immediate threats, but matters involving bullying, drugs or alcohol. Bullying problems may pull principals in opposite directions: They are obliged to respect students’ privacy, but they also have a legal obligation to protect them from bullying.

But given the courts’ record of providing school officials more authority when it comes to searches of students than police officers have when dealing with criminal suspects, Baker said he was hopeful that school officials will be able to continue to exercise that right.

“I have a strong suspicion that in matters of school and public safety, I think schools will get more latitude, even around cellphone seizure and search than law enforcement,” Baker said.

Hartford High School Principal Joseph Collea said he rarely searches students’ cellphones and said he can’t remember a time in which he asked a student if he could search a phone as part of an investigation. However, students will bring their cellphones to administrators with complaints of harassment or bullying if the student wants the administration’s help. If students have a complaint of bullying, he will ask students if there is evidence on their phone.

If students have a photo that has been used for sexting or a text message, Collea will ask the student to send the information to administrators or print it out so that the school has a copy of it.

And while the occasion has never come up at Hartford High, Collea said, he could imagine a situation in which he might need to search a student’s phone for a matter of safety. If the student didn’t provide consent, he might insist that he look at the phone anyway, and there might not be time to consult an attorney.

“If someone had information on their phone that could save a life and I had a way to get the cellphone, I would save the life first and deal with the ramifications later,” Collea said.

SAU 70 Superintendent Frank Bass, who oversees Hanover and Norwich schools, said he received the advisory from the New Hampshire School Boards Association, but said he doesn’t see it being a problem at Hanover High School.

If an administrator needed to see a cellphone and had reasonable suspicion, he or she would first ask the student for consent, Bass said. Nine times out of 10, a student would relinquish the phone, Bass said. But even if the student wouldn’t consent, Bass said, he couldn’t imagine a situation in which he would notify police and seek a warrant.

If he had a “very, very strong reason” to search a phone, Bass said, the school would ask the parent to ask the child to turn over the phone.

Patrick Andrew, superintendent of the Mascoma Valley Regional School District, said administrators in his district would search cellphones only after “considerable caution and (with) real reason.”

“There won’t be anything arbitrary about this,” Andrew said.

Andrew agreed that safety would trump privacy in certain situations.

New Hampshire was actually ahead of the Supreme Court with House Bill 1533, which passed earlier this year and requires a warrant be obtained before a “portable electronic device” can be searched by a government entity. The law actually goes a step further than the Supreme Court decision and says that evidence obtained in violation of the law would be inadmissible in criminal, as well as civil and administrative cases, and says that a person injured by a government entity in violation of the law can file a civil suit.

As with the Supreme Court ruling, there’s uncertainty about how the law will be applied to schools. Christina, the staff attorney for the New Hampshire School Boards Association, said the impact will depend on whether school districts are considered a government entity. School districts are generally regarded as political bodies, Christina said, not government entities.

While Rep. Neal Kurk, R-Weare, who sponsored the bill, argued that schools are considered government entities, he acknowledged they are different because they are responsible for caring for children. A warrant would be necessary for a school to search the cellphone of adult employees of a school, Kurk said. But a warrant wouldn’t be necessary to search a child’s cellphone in an emergency situation or if school officials felt a school policy had been violated.

“There has always been an exception for schools when they are dealing with children,” Kurk said. “They take the place of a parent.”

Few Changes for Law Enforcement

While the Supreme Court ruling could change how school districts conduct searches of cellphones, police officers in both Vermont and New Hampshire said they will proceed as they have been all along: no phone searches without a warrant.

It would be easier for officers if, upon an arrest, they could search a suspect’s cellphone and immediately begin searching for evidence related to the crime. But officers in both states say it’s not how they have been trained. Police academy training teaches them to get a warrant before conducting a search to prevent evidence from becoming inadmissible in court.

One of the worst things an officer could do, said Vermont State Police Capt. Ray Keefe, is to obtain strong evidence, especially in a major crime, and then have it suppressed in court because it was obtained improperly.

“We’re always interested in covering ourselves with warrants,” Keefe said. “All this case does at the end of the day is bring the Fourth Amendment into the digital age,” referring to the section of the U.S. Constitution that prohibits the government from searches and seizures without probable cause.

Local police officers say cellphones have become an integral part of many of their investigations, especially those involving drug sales and sexual assaults.

Prosecutors in both New Hampshire and Vermont say police have followed the rule of acquiring a warrant before searching a cellphone for years because both states’ constitutions have been interpreted to be more rigorous than the U.S. Constitution in protecting individuals from unreasonable searches.

For instance, in State vs. Goss, a case that involved the Enfield Police Department searching a man’s trash for evidence of marijuana, the court ruled that it is reasonable for a person to have an expectation of privacy in his trash and the warrantless search of the defendant’s garbage violated the state constitution.

“If garbage set out for collection on the curb is protected,” Sullivan County Attorney Marc Hathaway said, “it was not too far a leap to think that the court might find that the cellphone in your pocket and the emails and phone numbers in there might likewise be covered by an expectation of privacy.”

Hathaway said the majority of prosecutors and police officers recognized that the courts were headed in the direction of recognizing a strong right to privacy in cases involving cellphone searches, and law enforcement would likely lose if it tested the need for a warrant in court.

Vermont police officers and prosecutors have also recognized that citizens have a greater right to privacy under the state constitution, said Windsor County State’s Attorney Michael Kainen.

“We assumed under the Vermont Constitution that they couldn’t just grab a cellphone without a warrant and start looking at it,” Kainen said. “To me, it was really a no-brainer that you need a warrant.”

Sarah Brubeck can be reached at sbrubeck@vnews.com or 603-727-3223.