Cell Phone Search Ruling: An Impact on Public Schools?: Ohio v. Smith

By Education Law Association

Apr 1, 2010

On December 15, 2009, the Supreme Court of Ohio ruled on a case of first impression regarding the scope of privacy and technology. The facts stem from a criminal case dealing with a warrantless search of a cell phone pursuant to a lawful arrest, and the decision of the court demonstrates that cell phone searches by police are held to a higher standard than other permissible searches. Noting that neither the U.S. Supreme Court nor any other state supreme court have ruled on the Fourth Amendment implications of a cell phone search, the Ohio high court held that the warrantless search of data stored in a cell phone seized from its owner in the course of a lawful arrest violates the Fourth Amendment when the search is not necessary to protect the safety of law enforcement officers and there are no exigent circumstances. While the constitutional standard for a lawful search by school administrators in the public school context is different than the standard for law enforcement, this decision may have implications for cell phone searches conducted by school officials pursuant to conduct code violations. State of Ohio v. Smith, 124 Ohio St. 3d 163, 920 N.E.2d 949 (2009).

Antwaun Smith was arrested on drug-related charges after responding to a call to his cell phone that had been placed by a police informant. During the arrest, police searched Smith and found his cell phone. The arresting officer placed the cell phone in his pocket while searching the scene for evidence of drug dealing, where bags of crack cocaine were found. Later, the cell phone contents were searched without a search warrant or Smith’s consent. Police discovered call records and stored numbers that confirmed prior calls between Smith’s phone and the informant’s phone number. Smith was charged with possession of cocaine, trafficking in cocaine, tampering with evidence, and two counts of possession of criminal tools. Id. at 951.

In pretrial proceedings, the trial court denied Smith’s motion to suppress the call records and stored numbers obtained from the search of the cell phone, analogizing the phone to a “closed container,” which under Fourth Amendment precedent provides that a closed container that has objects posing a danger to the safety of the police officer can be lawfully searched. He was convicted and appealed his conviction and sentence, arguing that the search violated the Fourth Amendment because it was not conducted pursuant to a search warrant. A state appeals court affirmed. Id.

In a 4-3 decision, the Supreme Court of Ohio reversed, finding the closed container analogy implicating the search-incident-to-arrest exception to the search warrant requirement inapplicable due to the “unique nature of cell phones.” The court found that a cell phone is not a closed container and “because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.” Id. at 955. The contents of a cell phone were found to invoke a higher expectation of privacy than that of an address book or pager. Thus, the warrantless search of the cell phone was held to violate the Fourth Amendment’s protections against unreasonable search and seizure when the search is unnecessary for the safety of law enforcement officers and there are no exigent circumstances. Notably, the dissent argued that call logs in cell phones are no different from paper address books found on suspects, which courts have ruled can be legally searched without a warrant. Id. at 956-57.

In considering the implications of Smith as applied to cell phone searches conducted by school officials, two U.S. Supreme Court decisions are relevant to consider. In New Jersey v. T.L.O., 469 U.S. 325 (1985), the Court considered the permissibility of a search of a student’s purse, which revealed cigarettes, drug paraphernalia, marijuana, money, and documentation of drug sales. The Court held that a constitutionally lawful search in the public school context is reasonable if two conditions are met. First, the search must be justified at its inception; that is, a school official reasonably suspects through articulable facts that the rules of the school or the laws of the jurisdiction have been violated. Second, a search must be reasonable in scope. Under this second prong, a search may be pursued to its logical conclusion, but the measures adopted must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. Id. at 342.

The second case is Safford Unified School District v. Redding, 557 U.S. ___, 129 S. Ct. 2633 (2009). In this case, the Supreme Court held that the search for two prescription-strength ibuprofen tablets presumably hidden on the student’s body violated the reasonableness standard set forth in T.L.O. While the search was justified at its inception, the Court held that it was not reasonable in scope. Searching the student’s backpack and outer clothing was reasonable, but continuing the search to the student’s underclothing was constitutionally unreasonable. Given that the power of the drugs in question and their quantity posed limited danger and that school officials had no indication that the drugs were secreted in the place being searched, the search of her underclothing was held to be constitutionally unreasonable as the intrusiveness of the search violated “subjective and reasonable societal expectations of privacy.” Id. at 2641-2643.

The reasoning of Smith, though applicable to law enforcement, provides insight into one high court’s view of the Fourth Amendment’s protection of the contents of cell phones. Like the issue in Smith, neither the U.S. Supreme Court nor any of the state supreme courts have addressed the search of a student’s cell phone. Thus, it is helpful to apply the court’s reasoning in Smith (a cell phone is not a container, and there is a legitimate expectation of privacy in its contents), T.L.O.’s two-prong standard of reasonableness, and Redding (the reasonableness of the scope of a search depends, in part, on a subjective and reasonable societal expectation of privacy), to determine what authority a school administrator may have to scroll through and search the contents of a confiscated cell phone, including its pictures, videos, voice and text messages, address books, incoming and outgoing calls, emails, and instant messages. If given facts involving the search of a student’s cell phone, in applying the reasonableness standard of T.L.O., a court may give consideration as to whether a student has an objectively reasonable expectation of privacy in the contents of the phone. The Redding Court averred that the degree of dangerousness in the object of the search was a persuasive element of consideration, as did the Smith court. Will the cell phone be analogized to an address book, a container, like a purse, or will a higher standard apply given the “unique nature” and technological capacity of cell phones? Given these unanswered questions, school administrators should consult with legal counsel to discuss how these decisions may impact their authority to search a confiscated cell phone.

by Susan G. Clark