As an attorney who represents juveniles charged with a crime and as a husband of a teacher I am often asked can the ________(teacher, principal, resource officer, cop or insert authoritative figure) go through my cell phone.

The answer for whether the police could search the phone was made clear in State v. Smith,124 Ohio St. 3d 163, 2009-Ohio-6426. The police must obtain a warrant in order to search the contents of the phone or be able to establish a darn good reason why there wasn’t time to get a warrant.

The issue in juvenile cases has always been a lot tougher to deal with in a school setting. I often encounter the situation where the police leave the interrogation or search of a student to the principal in order to avoid having to advise the individual of their Miranda warnings and to do an end-around of the constitution.

The United States Supreme Court has consistently held that “the legality of a search of a student should depend simply on the reasonableness, under all circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether the action was justified at its inception; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place. New Jerseyv. T.L.O., 469U.S. 325, 341-42 (1985)

Last week the United StatesCourt of Appeals for the Sixth Circuit which covers Michigan, Ohio, Kentucky, and Tennesseeaddressed the issue of the schools searching a student’s cell phone in G.C. v. Owensboro Public Schools, et al, No. 11-6476 (March 28th, 2013). The two issues that were addressed in the case were. (1) was G.C. entitled to a pre-expulsion hearing (2) did the school violate G.C.’s fourth amendment right by searching his cell-phone. The answer to the first part was addressed using aKentucky statute that held unless security was at issue a pre-expulsion hearing is required for any suspension of ten days or more.

G.C.’s fourth amendment right is the one that is more interesting. The Court ruled that the school did violate G.C.’s right from unreasonable search and seizure by searching his phone. BACKGROUND:

G.C. was an out-of-district student at Owensboro Public Schools. G.C. was caught sending test messages during class. School officials confiscated his phone and read the text messages. G.C. was expelled and not permitted to attend school as an out-of-district student again. Evidence showed that G.C. was a disciplinary problem and that he school was aware that he had prior suicidal thoughts.

FOURTH AMENDMENT:

The general rule has been “[a] student search is justified in its inception when there are reasonable grounds for suspecting that the search will garner evidence that a student has violated or is violating the laws or the rules of the school, or is in imminent danger of injury on school premises." Brannum v. Overton Cnty. Sch. Bd., 516 F. 3d 289, 295-496 (6th Cir. 2008) The court in G.C. stated that because Brannum was a body search and not a cell-phone search more analysis is needed. “Such broad language, however, does not comport with our precedent. A search is justified at its inception if there is reasonable suspicion that a search will uncover evidence of further wrongdoing or of injury to the student or another. Not all infractions involving cell phones will present such indications. Moreover, even assuming that a search of the phone were justified, the scope of the search must be tailored to the nature of the infraction and must be related to the objectives of the search. Under our two-part test, using a cell phone on school grounds does not automatically trigger an essentially unlimited right enabling a school official to search any content stored on the pohne that is not related either substantively or temporally to the infraction. “ G.C. v. Owesboro Pub. Sch. Et al page 13.

The search in G.C. focused mainly on at the time of inception of the search was there evidence of any improper activity. The school claimed that based on prior knowledge of G.C.’s past suicidal threats and drug use that they believed an issue may be present and G.C. may be suicidal. The court disagreed with this argument because no evidence existed at the time of this specific search that G.C. was likely to harm himself or others.

CONCLUSION:

Can the school search my phone? The answer that I tell teachers is that they should not go through a phone at all. This is mainly because it could get them involved with a case that they wouldn’t have been involved with but for the search. For example, if the teacher takes a juvenile’s phone and finds sexual images of another juvenile that teacher now has possession of child pornography and a duty to report that to the police which could result in testifying and additional problems. The answer I would give school administrators is that if you believe the child or another person is in immediate physical harm then you can go through the phone. I would suggest contacting the police and letting them deal with it if time permits. If I am asked by a student or parent of a student about if a school can go through their phone I would most likely tell them know and based on the G.C. decision my motion to suppress any evidence is a lot stronger. If you or your child is charged with a school related offense either in court of with the school board contact Beck Law Office, L.L.C. for a free case evaluation at 937-510-6110.

Attorney Chris Beck

Beck Law Office, L.L.C.

Beavercreek, Ohio 45434

(937)510-6110 phone

attycbeck@gmail.com

www.becklawofficellc.com