May 26, 2017

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California law requires that all parties consent to any recording of a conversation, and the state has some of the toughest anti-paparazzi laws in the country. In light of the lengths California’s lawmakers have gone to protect privacy, it is not surprising that a law prohibits a search of a person’s cellphone without a warrant or consent.

The question is: do these protections also apply to students on school grounds?

The 2016 Electronic Communications Privacy Act (PC 1546.1)

In 2016, the California Electronic Communications Privacy Act (CalECPA) became law. Under the law, California Penal Code Section 1546.1 prohibits the physical or electronic examination of a cellphone without one of the following:

  • A lawfully obtained search warrant
  • A court-ordered wiretap
  • Consent of the authorized possessor of the phone
  • Consent of the owner of the phone (if reported lost or stolen)
  • The official’s good faith belief of danger of death or serious injury that could be prevented by information contained in the cellphone

Do Students Have Fewer Rights?

In 1985, the U.S. Supreme Court ruled that schools need only a “reasonable suspicion” to conduct a search of a student’s belongings. Reasonable suspicion means that the school official has reasonable grounds to suspect that the search will reveal evidence that the student has violated or is violating the law or school rules. The search may not be excessiven considering the offense the student is suspected of committing, the student’s age and sex.

This means that the standard for school officials to search a student’s belongings or person is lower than that of the police searching a person suspected of committing a crime. The reason is that schools are legally considered to be standing in the place of the parents (in loco parentis) when it comes to the health, safety and welfare of students while in school.

Despite the strict requirements of this law, it has yet to be tested in the courts against the government interests in keeping schools safe. Furthermore, there is a bill working its way through the State Assembly to exempt educational agencies – defined as county offices of education, school districts, and charter schools – from the application of CalECPA. The bill is drawing furious opposition from privacy groups, such as the American Civil Liberties Union, the Electronic Frontier Foundation and the Center for Media Justice.

While the legal and legislative battles are ongoing, students may feel pressured by school administrators to give consent to searches of their phone. Students often feel that they have no choice but to turn over their cellphones, even when they have done nothing wrong. It is important for all students to know that they have the right to refuse a search of themselves and their personal property, and they should exercise that right at all times.

Contact a School Expulsion Attorney at Wallin & Klarich

Students have rights. If you believe your child’s rights were violated and he or she faces expulsion as a result, you need to contact an experienced school expulsion attorney immediately. Our skilled attorneys at Wallin & Klarich have more than 35 years of experience successfully defending students in school expulsion matters. Let us help you now.

With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance and Victorville, there is an experienced Wallin & Klarich school expulsion attorney available to help you no matter where you are located.

Contact our offices today at (877) 466-5245 for a free phone consultation. We will get through this together.

Author

Author: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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