Last Updated on March 22, 2023 by Michelle Ball
By Michelle Ball, Sacramento California Expulsion, Special Education, sports/CIF, College, Education and School Attorney/Lawyer for Students since 1995
Student cell phones are often searched by school officials (with consent or without it) to gather information in student discipline proceedings or to search for crimes alleged. Can parents or students refuse a search of a cell phone, computer, tablet or other electronic device? Yes! Generally, unless there is a warrant to search or an emergency, students may refuse to allow school officials to search their devices.
Penal Code Limits Searches of Electronic Student Devices
In October of 2015, the Governor signed into law SB (Senate Bill) 178, also known as the “Electronic Communications Privacy Act” which is reflected in California Penal Code §§1546-1546.4.
Penal Code Section 1546.1(c) states:
A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1) Pursuant to a warrant…
(2) Pursuant to a wiretap order…
(3) Pursuant to a tracking device search warrant…
(4) With the specific consent of the authorized possessor of the device.
(5) With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(6) If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.
(7) If the government entity, in good faith, believes the device to be lost, stolen, or abandoned, provided that the government entity shall only access electronic device information in order to attempt to identify, verify, or contact the owner or authorized possessor of the device…
This section applies to California public schools and students.
Searches Without Consent, Warrant or Emergency Are Usually Prohibited in Schools
Why is this code relevant? Because it generally restricts government entities, including school employees, from searching electronic devices without consent, a warrant, in a serious emergency or under other limited bases.
For our purposes, as there are not usually warrants to search students phones, unless the device was reported stolen, students can refuse schools requests to search!
I love this law!
Schools Cannot Just Search Student Devices Because They Feel Like It!
Public school and school district employees are agents of the government who work for the government run state school system. Many parents often overlook this fact when interacting with school employees.
As factually vice principals, principals and other school staff are government employees, this law applies to them.
For many years, school staffs would just take students devices and search them when suspecting wrongdoing, with a good basis or none.
Under this code, a student can refuse to let that demanding vice principal search his/her phone!
Students Should Not Consent to Electronic Device Searches
I have found that many students consent to a search of their phone when asked due to thinking they have nothing to hide, or they must consent.
If school officials get consent to search a student’s phone, this law no longer restricts them… they may search away.
Although students are “innocent” in many situations, this does not mean they don’t have other damning evidence on their phones which may be encountered during a school official’s search.
This personal student data, such as pictures, texts, email, etc. may provide proof of a different school crime than the one school officials are investigating, and could be used against the student in a suspension, expulsion or in other negative ways.
As such, it may be a good option for a student to decline a request for a search prior to it getting started, if possible.
Scope of School Search?
The scope of the school search is not defined if voluntary consent is given. If a student does consent, they should clearly limit that consent before handing over an electronic device- e.g. you can search only my texts from today, or only my photos from this week.
If a warrant is served, the search will be limited to fit the scope of the warrant.
Students Don’t Know They Can Refuse
Be sure to talk to your kids about refusing schools requests to search student electronic devices. Student phones, tablets, computers and other devices contain highly sensitive information that is not relevant to schools, perhaps about your family, their friends, or them.
Parents must advise students of this law and their legal protections.
If we don’t tell students about their legal protections, there is no check on the schools. The schools may just barrel forward regardless of the legal restrictions.
Schools Are Bound By the Law But May Continue To Break It
MANY schools continue to have ill-informed school staff who have no idea they are restricted from just grabbing and searching a student’s phone whenever they want. As such, parents and students need to hold them to their legal boundaries. School staff are government employees, not kings or queens who can do whatever they want. They are bound by the law.
Lawyer for students, Michelle Ball, assists in school discipline matters. Michelle has an office in Sacramento California and can assist students statewide in places such as Roseville, San Francisco, Stockton, Irvine, Los Angeles, Ceres, Merced and many other locations.
Originally published June 2, 2016
