ACLU Lawsuit Says Student's Cell Phone Was Illegally Searched

A middle school honor student who was expelled after authorities searched his cell phone and found evidence of what they claimed were "gang-related activities" now has a lawyer: the American Civil Liberties Union.

The Mississippi ACLU this week filed a federal civil rights lawsuit, arguing that the 2008 cell phone search was illegal and the expulsion wrongful. The lawsuit claims that the gang activities were simply photos showing the student, then-12-year-old Richard Wade, dancing in the bathroom of his own home, and a friend, also at Wade's home, with a BB gun held across his chest.

According to the ACLU press release, Wade, then a 12-year-old at Southaven Middle School, Southhaven, Miss., had his phone confiscated and then searched by his football coaches, the class principal, and a police sergeant after he read a text message received from his father during football class.

The school bans cell phone use by students, and lets teachers and coaches take the phone away and turn it into the main office, where parents can pick it up after paying a fine, according to the DeSoto Times-Tribune.

But a statement by school authorities cast the policy in a somewhat different light, according to a story in the Memphis Commercial Appeal: "School system officials earlier cited the district's policy on the use of cell phones during school hours and said 'students know that if they break the rules, their cell phone will be confiscated and that school officials reserve the right to look through the cell phone to see if they were cheating on a test or conducting illegal activities related to gangs or drugs.'"

The ACLU argues that the search of the phone and the subsequent expulsion of Wade violated his constitutional rights.

Students still have a right to freedom from unreasonable search and seizure, and to due process, when in school, the group says. There was "no basis" for authorities to search Wade's phone after seizing it, and "nothing to substantiate" the accusation of gang-related activity. Those actions were a "gross violation" of Wade's constitutional rights, including his freedom of speech, the group argues.

Based on the search and their conclusions, officials suspended Wade for three days and ordered him to attend a disciplinary hearing, after which he was expelled. He enrolled at Oakhaven Middle School in nearby Memphis, Tenn., a school "plagued by serious gang problems and which posed a constant threat of harm" to Wade, according to the ACLU statement. The family eventually moved to Georgia, where he's currently enrolled.

The suit seeks unspecified damages as well has having the charges against Wade deleted from school and police records.

Mobile phones as sources of information for police and prosecutors have been creating a rising tide of case law and legal reasoning, much around Fourth Amendment protections against unreasonable searches and seizures. The May issue of Police Chief Magazine had a brief summary of a half dozen relevant rulings in just the first months of 2009, concluding "The case law regarding the searching of cell phones incident to arrest is growing by the day, and not always consistently. The authority to search a cell phone incident to arrest currently depends on location, so close consultation with a legal adviser is necessary."

Orin Kerr, who writes at The Volokh Conspiracy legal blog, took note in late 2008 of a district court decision (United States v. Fierros-Alavarez) that ruled a defendant has no privacy rights regarding the phone numbers listed in his cell phone. Kerr argued the decision was wrong: "The police shouldn't be allowed to go through your private stuff so long as they only look for and take information that is in some sense 'non-private.'... The same goes for the numbers dialed stored in the cell phone in Fierros-Alavarez.

"Sure, if the police had installed a pen register in the phone and collected the information at the phone company, then collecting the number dialed wouldn't have triggered the Fourth Amendment. But the police didn't do that. And the police can't go hunting through private things like cell phones on the theory that they're only looking for information that they could have collected constitutionally if they had only thought of it at the time. Numbers dialed that are stored in a cell phone are normally protected by the Fourth Amendment as much as anything else stored in a cell phone...."

Kerr is the author of a 2005 Harvard Law Review article, "Searches and Seizures in a Digital World," which lays out a framework for applying the Fourth Amendment to hard drives and other storage device. 

The same issues are cropping up elsewhere. In 2007, an Israeli court ruling put restrictions on what information police and prosecutors could obtain from a defendant's cell phone without a warrant. Defense attorneys in that case argued that cell phones were in effect computers, and therefore should have the same protections applied to them as Israeli law then granted to PCs or laptops.

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