Cell Phones, Schools, and Searches – How Far Can They Go?

The issue of cell phones in schools seems to keep coming up. New York City’s ban on cell phones in schools has been upheld, but the issue remains contentious between parents and school administrators.                 Now the issue may be turning from the ban itself to just how far can school administrators go to search students for prohibited cell phones. And what if in searching students for cell phones, other more illegal contraband is found? An interesting case from the First Department yesterday sheds some light on the matter – Matter of Elvin G., 2008 NY Slip Op 00555.

Elvin G. was a 15 year old student in middle school. The teacher of his class reported to the dean of the school that a noise, which sounded like a ringing cell phone, was disrupting her class. The dean entered the classroom to investigate and enforce the school rule that prohibited cell phone use in class. According to Elvin, the dean had the students stand up, and started checking their pockets for something that was making the musical sounds. As a result, Elvin G. took a hunting knife with a six-inch blade out of his pocket. The cell phone apparently was not found.

Elvin G. was then charged as a juvenile with criminal possession of a weapon in the fourth degree, and unlawful possession of a weapon by a person under sixteen. He moved to suppress the knife on the grounds that it was unlawfully obtained in violation of state law and the Federal and State Constitutions [The presenting agency claimed that in fact no search occurred because Elvin was holding the knife in plain view]. The Family Court summarily denied Elvin’s motion to suppress without conducting a hearing.

The First Department affirmed accepting Elvin’s version of the events as true. The Court set forth the law as follows: When there are reasonable grounds for suspecting that a search will turn up evidence that the student has violated or is violating the law or the rules of the school, a search is permissible when the measures adopted are reasonably related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction. And it stated:

[A]lthough the dean may not have had reasonable suspicion that [Elvin G.] was the offending student, such individualized suspicion in the context of an administrative search such as this was not required. The dean clearly had a reasonable basis to believe that some student in the classroom was violating school rules and there is no question that such breach was disrupting the class.

[I]t cannot be said, as a matter of law, that asking students to empty their pockets in order to restore order to the classroom and enable the classroom teacher to resume the lesson was unreasonable or overly intrusive.

The next case to come along will probably be where school administrators not merely ask students to empty their pockets, but have some school personnel actually reach into students’ pockets or bags.

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