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- Reasonable suspicion ignores fundamental aspects of the 4 th amendment
- Cell phones outweigh drug testing
- Privacy outweighs
- Probable Cause Solves Cyber Bullying
- Probable Cause Standard Needed – Riley Decision
- Probable cause solves – exceptions have precedents
- Anti-cyberbullying statutes are too vague.
Cell Phone SearchesReasonable Suspicion LinkCell phone searches need probable causeAmy Vorenberg, Indecent Exposure: Do Warrantless Searches of a Student's Cell Phone Violate the Fourth Amendment?, 17 Berkeley J. Crim. L. 62 (2012). Available at: http://scholarship.law.berkeley.edu/bjcl/vol17/iss1/2 The problem with applying the “reasonable suspicion” standard to a student cell phone search is that the level of intrusion is far higher than the analogous “pat down” or brief seizure of a suspect. As numerous cases demonsrate, searching a cell phone is likely to uncover information or images that are highly personal. Adolescents’ lives revolve around communication. Just as Justice Souter in Redding acknowledged that a teenage suspect’s sensibilities needed to be taken into account when contemplating a strip search,186 the same justification can reasonably be extended to student cell phone searches. Students may feel that the contents of their cell phones, with all the photos, texts, appointments and other personal information, are as private to them as their bodies themselves and should therefore be afforded a high level of acknowledged privacy.187 Reasonable suspicion ignores fundamental aspects of the 4th amendmentAmy Vorenberg, Indecent Exposure: Do Warrantless Searches of a Student's Cell Phone Violate the Fourth Amendment?, 17 Berkeley J. Crim. L. 62 (2012). Available at: http://scholarship.law.berkeley.edu/bjcl/vol17/iss1/2 Justifying a warrantless cell phone search with a subjective “reasonable suspicion” standard in the school setting ignores a fundamental aspect of students and their privacy. Students’ freedoms are already restricted because they are compelled by law to go to school and their in-school lives are governed by school regulations.189 Add to the mix that the majority of students carry cell phones (often at parents’ request),190 and that young people may lack judgment and discretion concerning what they store in their phones. Given these conditions, allowing school officials wide latitude to perform searches of cell phones violates fundamental Fourth Amendment principles.191 School administrators naturally assume authority for younger children under an in loco parentis paradigm, but the natural parental qualities of tolerance, understanding, and permanence recede as administrators are faced with the management of adolescents. While educators may still guide their older students with care and devotion, the modern high school must necessarily adopt a law enforcement model to cope with the range of student misbehavior. Schools have increased security procedures and staff; metal detectors, school police officers (known as SROs), random searches of students, and zero tolerance policies are now common in many public schools. .192 Indeed, in T.L.O., the Supreme Court recognized that “in carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents.”193 Outweighs Drug IntelCell phones outweigh drug testingAmy Vorenberg, Indecent Exposure: Do Warrantless Searches of a Student's Cell Phone Violate the Fourth Amendment?, 17 Berkeley J. Crim. L. 62 (2012). Available at: http://scholarship.law.berkeley.edu/bjcl/vol17/iss1/2 A search of a cell phone is far more intrusive than the suspicionless drug-testing regimes authorized by the Supreme Court. In a random drug test, the student reveals nothing ancillary to the object of the test. They are simply found to be “clean” or not. However, a suspicionless search of a cell phone might reveal a broad range of information—medical, psychiatric, romantic, or otherwise deeply private—completely unrelated to the school’s interest in monitoring compliance with school regulations. Privacy OutweighsPrivacy outweighsRoss Hoogstraten, Implications on the Constitutionality of Student Cell Phone Searches Following Riley v. California, 24 Wm. & Mary Bill Rts. J. 879 (2016), http://scholarship.law.wm.edu/wmborj/vol24/ iss3/13 Just as in Riley, the courts should review the original justifications of a warrantless search in a school and see if they apply to cell phones. T.L.O. justified warrantless searches of a student’s belongings in the school context in order for schools to maintain order and to protect students.238 Similar toRiley, T.L.O.’s justifications disappear with respect to cell phones.239Cell phones cannot hurt other students, and schools can maintain order by confiscating the cell phone.240 A cell phone in the teacher’s hands can no longer distract students, and the teachers often do not have a reason to search the phone.241 Warrantless searches of a cell phone are unreasonable almost in every context because of the reasonable expectation of privacy a student has in the data on her phone.242 This expectation of privacy outweighs the governmental concerns that are absent in the context of cell phones in schools.243 Probable Cause Solves Cyber BullyingProbable cause can solve cyber bullyingRoss Hoogstraten, Implications on the Constitutionality of Student Cell Phone Searches Following Riley v. California, 24 Wm. & Mary Bill Rts. J. 879 (2016), http://scholarship.law.wm.edu/wmborj/vol24/ iss3/13 There is an argument, however, that the pervasiveness of cyber-bullying is greatly affecting children today.178 Cyber-bullying is a terrible thing, and school officials should do whatever is possible to stop it, but investigations of cyber-bullying should be left to law enforcement. School officials can be on the lookout to report cyberbullying and to counsel affected students, but again there is no need for a school search. If there is a great deal of evidence that a student is a cyber-bully, police should obtain a warrant to search all of the student’s electronic devices. Upon that report of cyber-bullying, school administrators can confiscate a student’s electronic device, but there is not much else to be done.179 The cyber-bully can no longer bully a student without his electronic devices, and, once the warrant is obtained, school officials can turn the devices over to police. Probable Cause Standard Needed – Riley DecisionRiley decision forces probable cause for phonesRoss Hoogstraten, Implications on the Constitutionality of Student Cell Phone Searches Following Riley v. California, 24 Wm. & Mary Bill Rts. J. 879 (2016), http://scholarship.law.wm.edu/wmborj/vol24/ iss3/13 Even though there is a set standard for determining the reasonableness of a warrantless search in the school context, a court should re-weigh the balancing test. There was a set standard for determining the reasonableness of a warrantless search in the search incident to arrest context, but that did not stop the Court from re-examining the original justifications of the exception.136 The technology at issue in Riley a cell phone was the driving factor in the determination to re-weigh the balance of interests:137 the same technologya cell phoneshould produce the same result of re-weighing the interests in other exceptions to the warrant requirement of the Fourth Amendment. In Riley, the Court could have followed the original search incident to arrest rule,138 but decided to review the original rationales for the exception to see if they a were still present.139The Court determined it was compelled to conduct a newbalancing test because the technology at issue was not present when the original cases were decided, and the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ 140 The re-weighing should also be done in public schools for searches of a student’s cell phone. Currently, courts have allowed a warrantless search of a cell phone based on the original rule from T.L.O.141 Following Riley (as well as other cases), this is not the correct process because the cell phone technology was not present when T.L.O. was decided.142 The courts, because of the unique characteristics of cell phones, should review the underlying rationales for allowing warrantless searches in schools. A court facing this problem should weigh the governmental interests in protecting order and maintaining discipline in schools against a student’sreasonable expectation of privacy in her cell phone.143 This is always the test conducted when a new problem faces the Court under the Fourth Amendment.144 AT: DelayProbable cause solves – exceptions have precedentsAmy Vorenberg, Indecent Exposure: Do Warrantless Searches of a Student's Cell Phone Violate the Fourth Amendment?, 17 Berkeley J. Crim. L. 62 (2012). Available at: http://scholarship.law.berkeley.edu/bjcl/vol17/iss1/2 Requiring warrants to search a student’s cell phone would admittedly restrict the discretion the Supreme Court has given schools— a move that might seem ill-advised given concern about in-school crime, drug use, and violence. However, statistics do not support the contention that incidences of drugs and violence are increasing in schools.198 According to the Center for Disease Control, the most recent survey data (through 2009) shows that drug and tobacco use on school property is flat and that neither the sale of drugs nor violence is on the increase.199 The decrease is part of an overall decline in both youth and adult crime. A warrant requirement that allows for an exception in emergency situations involving the health and safety of students would cover circumstances where examination of phone messages or data could prevent imminent harm. Such an exception is not without ample precedent. The Supreme Court has carved out numerous exigencies justifying a warrantless search.200 Underlying these exceptions is an acknowledgment that the warrant requirement must give way when there is an immediate risk of physical harm or destruction of evidence. In the school context, maintaining safety is of paramount concern. Thus, when school administrators have credible, reliable information that a threat of imminent harm necessitates ascertaining information from a student’s cell phone, they should be permitted to search without a warrant.201 But anything less than such an immediate and particularized threat should not suffice. If there is no immediate threat, the phone should be removed from the student’s possession and preserved until a warrant is obtained. A cell phone and its data can be preserved while authorities notify the police, who have the option to get a warrant.202 AT: Cyber BullyingAnti-cyberbullying statutes are too vague.John O. Hawyward, [M.P.A. Harvard University, Senior Lecturer in law, Bentley Univer- sity], “Anti-Cyber Bullying Statutes: Threat to Student Free Speech,” Cleveland State Law Review Vol. 85, 2011. Because of their vagueness and overbreadth, it is likely that many anti-cyber¶ bullying statutes will suffer the same fate as campus speech codes 7’ and some antiharassment¶ policies.“‘They share many of their characteristics in seeking to¶ prohibit “hostile envi- ronments” and end “intimidating” school speech. They usually¶ contain these phrases along with prohibitions against “interfering with a student’s¶ educational performance and benefits” or strictures against comments that are¶ “motivated by actual or perceived characteristics or traits of a student.” ’ Whether¶ these expressions encompass simple acts of teasing or name-calling among school¶ children the courts will have to decide, but the Supreme Court has said they cannot¶ be a basis for damages under federal anti-discrimination law’ and so it is doubtful¶ they can withstand a First Amendment challenge. Anti-bullying statutes are overly broad and infringe on the free speech of students.John O. Hawyward, [M.P.A. Harvard University, Senior Lecturer in law, Bentley Univer- sity], “Anti-Cyber Bullying Statutes: Threat to Student Free Speech,” Cleveland State Law Review Vol. 85, 2011. New Hampshire’s revised bullying law is a good example of just how far antibullying¶ hysteria can go in silencing student free speech. One section reads¶ “Bullying” shall in- clude actions motivated by an imbalance of power¶ based on a pupil’s actual or perceived personal characteristics, behaviors,¶ or beliefs, or motivated by the pupil’s association with another person and¶ based on the other person’s characteristics, behaviors, or be- liefs.‘¶ This certainly takes in a large area of speech that could include teasing someone¶ because they are obese, skinny, tall, short, wear eyeglasses, have long, short or no¶ hair, or speak with a high or low pitched voice. One court characterized attempts to¶ prohibit such speech in the context of a anti-harassment policy as “brave, futile, or¶ merely silly.” ’ 82 However, the court had harsher words for attempts to censor speech¶ dealing with “beliefs” or “values.” To quote:¶ But attempting to proscribe negative comments about “values,” as that¶ term is commonly used today, is something else altogether. By¶ prohibiting disparaging speech directed at a person’s “values,” the [antiharassment]¶ Policy strikes at the heart of moral and political discourse-the lifeblood of constitutional self government (and democratic education)¶ and the core concern of the First Amend- ment. That speech about “values”¶ may offend is not cause for its prohibition, but rather the reason for its¶ protection: “a principal ‘function of free speech under our system of¶ government is to invite dispute. It may indeed best serve its high purpose¶ when it induces a condition of unrest, creates dissatisfaction with¶ conditions as they are, or even stirs people to anger.“’ No court or¶ legislature has ever suggested that unwelcome speech directed at¶ another’s”values” may be prohibited under the rubric of antidiscrimination.¶’¶ Undoubtedly suppressing student speech under the guise of preventing”cyber¶ bullying” is no more permissible than attempting to stifle it under the rubric of “antiharassment.”¶ Both run afoul of the First Amendment’s guarantee of free speech. Directory: files files -> Answer True False 2 points Question 2 files -> Integer programming and game theory files -> 4 Integer Programming files -> Bpa vehicle Window Repair Scenario #1 task: Procure vehicle window relacement. Objective files -> Pop Warner History files -> North Carolina Inclusion Initiative Mapping Where Children with ieps are Being Served Purpose files -> Fall 2013 Spring 2014 Program Data: Standard 1 Exhibit 4d files -> Hanban – asia society confucius classrooms network 2010 request for proposal files -> Northern England’s set-jetting locations Download 356.46 Kb. Share with your friends:
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