Justices Weigh Privacy Interests in Police Cellphone Searches

By Mark Walsh — April 29, 2014 4 min read

In two cases with potential implications for students and schools, the U.S. Supreme Court on Tuesday weighed privacy expectations in the age of digital smartphones that can hold thousands of photos, email messages, and other data.

The cases involve police searches of cellphones without a warrant, and the justices spent two hours considering the ubiquity of the devices and what such searches might mean for the police and those who are arrested.

“Most people now do carry their lives on cell phones, and that will only grow every single year as, you know, young people take over the world,” Justice Elena Kagan said during the arguments.

As I wrote in January when the court granted review in Riley v. California (No. 13-132), which involves a smartphone on which the police found evidence linking an arrestee to gang crimes, and United States v. Wurie (No. 13-212), a case involving an older flip phone that linked another arrestee to illegal drug sales, there were bound to be implications in the cases for schools and students. After all, there have been a number of controversies over student cellphones confiscated and searched by school administrators.

The cases deal with searches “incident to arrest,” which necessarily involve the police and implicate the “probable cause” standard of the Fourth Amendment’s prohibition against unreasonable searches and seizures.

When it comes to student searches and seizures, school administrators and, to a less-settled extent, school resource officers operate under the less stringent “reasonable suspicion” standard as set forth by the court’s 1985 ruling in New Jersey v. T.L.O.

Still, there have been a number of federal court decisions dealing with administrator searches of cell phones. And buried deep in a brief filed on behalf of one of the criminal defendants before the Supreme Court, and highlighted this week by Adam Liptak in The New York Times, was a citation to a lower-court decision that presents an angle on student cellphone searches that is closer to cases before the justices.

On Feb. 26, the Texas Court of Criminal Appeals, that state’s highest appellate court for criminal cases, ruled in favor of a Huntsville student who was charged with a felony based on evidence a school resource officer found on his cellphone after the student was jailed for causing a disturbance on his school bus.

Anthony Granville, whose age was not disclosed in the court opinion, was arrested one morning in 2012 in Hunstville on a misdemeanor charge of causing a disturbance on a bus.

Shortly after Granville was booked into the county jail, the school resource officer from his (unidentified) school went to the jail to get Granville’s cellphone from the jail property room, without a warrant. The SRO, Everett Harrell, had heard that the student had taken an unauthorized photo of a student in a school bathroom.

Harrell turned on Granville’s phone and searched its contents until he found the photo he was seeking. Granville was later charged with the state felony offense of “improper visual photography.”

Granville sought to suppress the warrantless search. He was successful at each level of the state court system, with the state trial court and midlevel appeals courts holding that the student had an expectation of privacy in the contents of his cellphone.

In an 8-1 decision in Texas v. Granville, the Court of Criminal Appeals affirmed the lower courts.

“Searching a person’s cell phone is like searching his home desk, computer, bank vault, and medicine cabinet all at once,” the majority said. “We do not think that a citizen, including [Granville], has lost his expectation of privacy in the contents of his cell phone merely because he has been arrested and his cell phone is in the custody of police for safekeeping.”

The Texas case was cited in a Supreme Court brief by Jeffery L. Fisher, a Stanford law school professor on behalf of his client in the California case, a gang member who was linked to certain crimes by photos on his cellphone, which the police had searched after a traffic stop.

“The modern reality of smartphones is that it is an indispensable item for everyday life of a modern professional and, indeed, most anyone,” Fisher said. “It’s a world where everybody has everything with them at all times,” he said.

“Well, including the criminals, who are more dangerous, more sophisticated more elusive with cell phones. That’s the other side of this,” said Justice Anthony M. Kennedy. He, like several members of the court, was wary of giving the police broad power to search cellphones without a warrant, but was also mindful of law enforcement interests.

California Solicitor General Edward C. Dumont, who was defending broad cellphone searches, agreed that “modern technology makes it possible for people to choose to carry a great deal of information. But that doesn’t change the fact that the reasonable expectation, if a person is subject to custodial arrest, is that the police will search the person and look at things that they find.”

Decisions in the two cases are expected by the end of June.

A version of this news article first appeared in The School Law Blog.

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