We’ve got another “searching the cell phone” case to tell you about.

Do you have a clear understanding of exactly how the law applies to the search of a student’s cell phone?  No?  Well, then, you are right in line with the 11th Circuit, which recently concluded that the legal parameters about cell phone searches by school administrators are anything but “clearly established.”

The plaintiff tried to pin personal liability on the assistant principal for searching a student’s cell phone.  The A.P. responded with a Motion to Dismiss based on “qualified immunity.”  The A.P. would be entitled to immunity unless he violated legal standards that are “clearly established.”  The court held that the A.P. was entitled to immunity because the law is not “clearly established.”

This all goes back to the case in 1985 when SCOTUS decided that the 4th Amendment applies to searches of a student’s personal belongings, New Jersey v. T.L.O.  The Court ruled that the search would be constitutionally permissible if it was “justified at the inception” and “reasonable in scope.”  So in light of that decision, let’s think about what is “clearly established” and what is not. 

It’s clearly established that the search of a student’s belongings, such as a cell phone, is a “search” under the 4th Amendment.  It’s clearly established that such a search must be “justified at inception” and “reasonable in scope.”  But the application of those two standards to a particular set of facts puts you in a lot of “not clearly established” territory. 

Context: this came up when an assistant principal searched a student’s cell phone looking for evidence that she was sending out ugly, demeaning texts about a classmate. Why would the A.P. do this?  Because the targeted student reported it, two other students confirmed it, and school policy prohibited bullying and disrespect.  Based on that, the court held that the search of the cell phone might very well be “justified at inception.”

The analysis of “reasonable in scope” was a slightly closer call because the A.P. did not just look at the text messages sent to other students. He also explored communication with family members and an ex-boyfriend.  If I’m the lawyer for the plaintiff, I’m going to scream “fishing expedition!” But the court held that this fell within the murky standards of the law, and thus, was not clearly established as a violation of the Constitution. The court pointed out that the student acknowledged that she sometimes used labels or emojis rather than names to identify people in her contacts list. So the court gave the A.P. the benefit of the doubt, holding that it was not “clearly established” that this was an excessively intrusive search.

The Dawg’s advice about searches remains as it has been.  Pause before conducting a search. Ask yourself two questions: what am I looking for? Why do I think it might be where I am looking?  The answer to these questions should be based on sensory data—what I saw, heard, or smelled.

Here, the A.P. was looking for nasty text messages that violated school policy. He was looking at a particular student’s phone because three other students had told him he would find the text messages there.  By the way: he found nothing.  But that did not make the search illegal.  It was within the not so clearly established standards for searches that the courts have given us.

The case is Jackson v. McCurry, decided by the 11th Circuit Court of Appeals on March 12, 2019.  We found it at 2019 WL 1122999.


Tomorrow: Is our sense of LRE outdated?