Nearly everyone in the United States uses a cell phone on a daily basis, and these devices contain a great deal of personal information. This is especially true for young people, who are always finding new uses for technology. While most people have some expectations of privacy when using electronic devices, there are situations where a phone may be subject to a search by school officials or law enforcement. Students will want to understand their rights regarding cell phones, since information uncovered during a search could lead to serious penalties, up to and including criminal charges.

Use of Phone Decryption Technology by Schools

Students will often use their phones to send text messages and emails, take and share photos and videos, browse the internet, and communicate with others using social media. All of these activities can involve intimate details of a person’s life that they will want to keep private. If teachers or administrators suspect that a student has violated a school’s policies or committed unlawful acts, they may ask a student to unlock their phone and submit to a search. In some cases, schools may tell students that school policies require them to unlock their phones when requested, or they may impose penalties if students refuse to comply.

In a troubling trend, some schools have begun using technology to hack into students’ phones. Several school districts throughout the United States have purchased mobile device forensic tools that can be used to bypass passcodes and access information stored on cell phones. This technology is often used by the FBI and other law enforcement organizations to investigate terrorism or other serious crimes, and when it is used by school officials, it may result in improper access to a student’s private information.

Many of the laws in the United States were written hundreds of years ago, when the most advanced forms of technology available were bifocal eyeglasses and steamboats. In today’s world, where everything is at your fingertips in the form of a handheld device, the application of these laws can become tricky. In recent years, people have argued that their Fourth Amendment rights have been overstepped at U.S. border checkpoints. Millions of people travel in and out of the United States on a daily basis, and they may be subject to electronic device searches, whether they are U.S. citizens or not. The question is, are these searches legal?

Civil Liberties Advocates Argue for More Privacy

In recent years, U.S. Customs and Border Patrol (CBP) agents have been searching more and more electronic devices at U.S. borders. In 2015, there were an estimated 8,500 searches conducted on electronic devices at the border. In 2018, there were 33,000 searches conducted, which is a three-fold increase. Many civil liberties advocates, most notably the American Civil Liberties Union (ACLU), have argued that these searches are often done for no apparent reason and violate the Fourth Amendment protections against unreasonable searches and seizures.

Federal Judge Rules in Favor of Privacy Advocates

In 2017, a lawsuit was filed against CBP by 11 people (10 of whom are U.S. citizens and one who is a lawful permanent resident) alleging that their electronic devices were taken by CBP, and their personal data was searched for no apparent reason. Recently, a federal judge in Boston ruled that CBP agents cannot take travelers’ electronic devices and conduct suspicionless searches. The U.S. has long asserted that it does not need to issue warrants to search devices at the border, but this judge has concluded that CBP agents must have reasonable suspicion and be able to point to specific facts to justify the search before a search is conducted.

In recent years, the recreational and medical use of marijuana has become legal in several states across the country. Currently, 33 states, including Connecticut, permit the medicinal use of marijuana, and 11 states and the District of Columbia allow the recreational use of marijuana for adults. Even just 10 years ago, police could use the “smell of marijuana” as a legitimate reason to search a citizen’s vehicle or person for evidence which could be used to pursue charges for drug possession or DUI. However, times have changed, and some courts have found that this is not an adequate reason to conduct a search.

Is Marijuana Odor Considered Evidence?

Now that more than half of the states have legalized marijuana in some way, lawmakers and law enforcement officials have run into an issue of constitutionality when it comes to using the smell of marijuana as probable cause to search a vehicle or a person. In the minority of states that have not legalized marijuana, a police officer who believes they smell pot has probable cause to search a vehicle in most cases. In other states, however, the line has become blurred, because the smell of pot does not necessarily point to a crime.

“Pot Smell” and the Fourth Amendment

The “automobile exception” has long been recognized by the Supreme Court as an exception to the Fourth Amendment, which states that citizens have the right to be free from unreasonable searches and seizures without a warrant. In many cases, a vehicle may be searched without the need to obtain a warrant if an officer has probable cause to believe that a crime has been committed. Police have long used the smell of marijuana as an excuse to conduct vehicle searches, though it is now being reconsidered whether or not the supposed presence of this type of odor is enough to allow a warrantless search. Courts in many states, such as Pennsylvania, Massachusetts, Vermont, and Maryland, have ruled that marijuana odor no longer gives police the right to search a vehicle.