It has been reported that the Central Regional School District in Ocean County, New Jersey has updated their policy on “use of electronic communication and recording devices” to allow school officials to search a student’s phone “if there is reasonable suspicion that district or Board policies, rules or regulations have been violated, as well as if there is a reasonable suspicion that the electronic mobile device contains information that may be pertinent to a school investigation.”  The new policy also requires middle school students to store their phones in special cell phone pockets while in class and high schoolers to either turn their cell phones off and put them away or place them in cell phone pockets while in class.

Policies allowing the search of students’ cell phones certainly raise concerns about students’ rights to privacy and the broader issue of surveillance in schools.  Under the United States and the New Jersey Constitutions citizens are protected against unreasonable searches and seizures and the State must obtain a warrant prior to a search or seizure.  U.S. Const. amend. IV; N.J. Const. art. I, P 7.  Those constitutional protections apply to minors and students.  State v. Best, 201 N.J. 100, 108 (2010).  It is well established that law enforcement must obtain a Communications Data Warrant (CDW) to search the contents of a cell phone.  See Facebook, Inc. v. State, 254 N.J. 329, 341 (2023).  Certainly, as the New Jersey Supreme Court found, “[c]ell-phone records can reveal intimate details about peoples’ lives and relationships — the persons and groups with whom they associate, the doctors they choose, the religious services they attend, the stores they patronize, the recreational places they visit, and much more.”  State v. Manning, 240 N.J. 308, 316-317 (2020).

In fact, the New Jersey Supreme Court has “construed Article I, Paragraph 7 of our State Constitution more broadly than its Fourth Amendment counterpart in ensuring ‘a person’s reasonable expectation of privacy from untoward government intrusion,’ particularly within the sphere of telecommunications.”  State v. McQueen, 248 N.J. 26, 42 (2021) (citing State v. Manning, 240 N.J. at 328).  Under both the federal and state constitutions, “searches and seizures conducted without warrants issued upon probable cause are presumptively unreasonable and therefore invalid.” State v. Goldsmith, 251 N.J. 384, 398 (2022).  To overcome that presumption, the State must show by a preponderance of evidence that the search falls within one of the well-recognized exceptions to the warrant requirement.  State v. Manning, 240 N.J. at 329.

However, “[j]ust as courts recognize exceptions to the warrant requirement, courts also recognize in limited circumstances exceptions to the probable cause standard and permit searches and seizures based on reasonable grounds.”  State v. Best, 201 N.J. at 108 (citing New Jersey v. T. L. O., 469 U.S. 325, 340 (1985).  “The school setting is one such limited circumstance.”  State v. Best, 201 N.J. at 108.

In T. L. O., the United States Supreme Court recognized “that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.”  469 U.S. at 340.  In weighing the student’s expectations of privacy against the school’s interest in maintaining discipline and order, the Court found that “the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause.”  Id. at 341.  Under the reasonable grounds standard, a search by school authorities “will be permissible . . . when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id. at 342.  “[T]he legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.”  Id. at 341.  Moreover, the New Jersey Supreme Court explained that “[i]t is the school environment and the need for safety, order, and discipline that is the underpinning for the school official–who has reasonable grounds to believe that a student possesses contraband–to conduct a reasonable search for such evidence.”  State v. Best, 201 N.J. at 114.

The  Central Regional School District’s new policy on “use of electronic communication and recording devices” raises important constitutional questions.  The Bianchi Law Group is at the forefront of research on these cutting edge issues.  Search and seizure law is constantly changing and/or being refined by our courts.  If you are facing criminal charges you should immediately reach out to our team of experienced former prosecutors to schedule a free case review with one of our expert criminal defense attorneys. A complete understanding of criminal law by your attorney is crucial to your defense. Your rights and freedoms are in jeopardy, and you owe it to yourself to act. We are available to provide immediate assistance and further counsel on your criminal case at (862) 315-7929.

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