Indecent Exposure: Do Warrantless Searches of a Student’s Cell Phone Violate the Fourth Amendment?

Berkeley Journal of Criminal Law, Forthcoming

26 Pages Posted: 13 Sep 2011 Last revised: 11 Mar 2014

Amy Vorenberg

University of New Hampsire School of Law

Date Written: September 13, 2011

Abstract

This article argues that searches of student’s cell phone should require a warrant in most circumstances. The amount and personal nature of information on a smart phone warrants special Fourth Amendment protection. This issue is particularly relevant in the public school setting where administrators routinely confiscate phones from students caught using them in school. With more frequency, administrators are looking at the phones, scrolling through text messages and photos, and on some occasions, responding to text messages.

The U.S. Supreme Court in Safford v. Redding, acknowledges the special considerations that school children should be afforded in part because of the unique subjective view they have of their own privacy. This same unique perspective should similarly be applied to the contents of a student’s cell phone. Over 75% of teenagers carry a cell phone on a daily basis, and many use the device as a private diary and portal for personal data and information. Teens appear willing to capture in their phone’s text or photos their most private world, and this might seem to signal a renunciation of their privacy. However it is because teens are so willing to expose themselves in a world that they think is private that their expectation of privacy in their phones should be accorded substantial protection. Cell phones in and of themselves are not dangerous. They cannot hold drugs or weapons - only information about drugs or weapons. Given that a cell phone contains highly private information, poses no imminent danger, and its contents can be preserved while a warrant is obtained, school officials should be required to get a warrant unless there are exigent circumstances such as immediate, apparent threat to student safety.

Keywords: Criminal Procedure, Fourth Amendment, Text Messages, Cell phones, Privacy

Suggested Citation

Vorenberg, Amy, Indecent Exposure: Do Warrantless Searches of a Student’s Cell Phone Violate the Fourth Amendment? (September 13, 2011). Berkeley Journal of Criminal Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1926923 or http://dx.doi.org/10.2139/ssrn.1926923

Amy Vorenberg (Contact Author)

University of New Hampsire School of Law ( email )

Two White Street
Concord, NH 03301
United States

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