Case 3:14-cv JAG Document 21 Filed 07/17/14 Page 1 of 8 PageID# 110

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1 Case 3:14-cv JAG Document 21 Filed 07/17/14 Page 1 of 8 PageID# 110 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division DANIEL AND MANUELA GALLIMORE, PARENTS AND NEXT FRIENDS OF W.S.G., a minor. Plaintiffs, Civil Action No. 3:14CV009 v. HENRICO COUNTY SCHOOL BOARD And DIANE R. SAUNDERS, individually, and in her official capacity. And ROBERT A. TURPIN, III, individually, and in his official capacity. Defendants. MEMORANDUM IN RESPONSE TO COURT S JUNE 25, 2014 ORDER AND IN FURTHER OPPOSITION TO DEFENDANTS MOTION TO DISMISS Plaintiffs, Daniel and Manuela Gallimore, Parents and Next Friends of W.S.G., a minor (at the time this suit commenced, ( Plaintiffs, by counsel, hereby submit this memorandum in response to the Court s Order of June 25, 2014, which directs the parties to file briefs stating what effect, if any, the U.S. Supreme Court s recent decision in Riley v. California, No , slip op. (U.S. Jun. 25, 2014 has on this case. INTRODUCTION The United States Supreme Court s recent ruling in Riley v. California, No , slip op. (U.S. Jun. 25, 2014 prompted this court to order the parties to file 1

2 Case 3:14-cv JAG Document 21 Filed 07/17/14 Page 2 of 8 PageID# 111 supplemental briefs to discuss what impact, if any, the ruling has on this case for good reason. In Riley, the United States Supreme Court used the cell phone search to further identify the scope and reasonableness of a search. The Supreme Court in Riley cited a previous case, when they stated: As the text makes clear, the ultimate touchstone of the Fourth Amendment is reasonableness. Brigham City v. Stuart, 547 U.S. 398, 403 (2006. As explained throughout this brief, the search of W.S.G. was not justified at its inception and continued along the path of being more and more unreasonable all the way through his cellphone being searched. I. At the Time of the Search, The Defendants were on Notice that a search needed to be reasonable by being both justified at its inception and reasonable in scope. The Defendants in this matter vehemently contend that the February 11, 2013 search of W.S.G. at issue was reasonable and that it was both justified at its inception and permissible in scope. The Defendants further argue as it relates to the search of W.S.G s phone, that even a potential search of the cellular phone belonging to W.S.G., by Defendant Saunders, would either not be beyond the scope of a reasonable search, that the ruling in Riley is too different to apply to them, since they are not the police, or finally that they were not on notice at the time of the February 11, 2013 search, that a search of W.S.G s cellular phone would be considered unreasonable or violate his rights. The Defendants could not be more wrong. The Riley case is about more than just a police officer needing to have a warrant to search a cellphone; it reaffirms the reasonableness requirement for conducting a search. The Riley case really reaffirms the standard for reasonableness articulated by the United States Supreme Court in its cornerstone 1985 decision of New Jersey v. T.LO, 578 2

3 Case 3:14-cv JAG Document 21 Filed 07/17/14 Page 3 of 8 PageID# 112 U.S. 325, The Defendants have been on notice as to the standard of what constituted a reasonable school search since the 1985 T.L.O ruling, which long pre-dates the February 11, 2013 search. Additionally, the T.L.O ruling from 1985 should have provided the Defendants with sufficient notice that searching someone s cellphone for drugs would not be reasonable and be beyond the scope what is permissible in relation to what was being sought, and should therefore not entitle the Defendant administrators to any form of qualified immunity and therefore create liability for the Henrico County School Board for the violation of W.S.G. s Fourth Amendment privacy rights under the United States Constitution. W.S.G s case is much more than just about whether or not his cellular phone was searched, as the entire search in general fails to meet the standards articulated in T.L.O and reaffirmed by Riley. Like the Riley case, the Court in T.L.O focused on what was reasonable based on the circumstances surrounding the situation. W.S.G s search was unreasonable as the circumstances surrounding the situation did not warrant the search being initiated, his sandwich wrapper being searched, or his cellphone being searched. A part of The United States Supreme Court s ruling in New Jersey v. T.LO, 578 U.S. 325, 1985, was that Schoolchildren have legitimate expectations of privacy. They may find it necessary to carry with them a variety of legitimate, noncontraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items by bringing them onto school grounds. While school officials in general do not need to have a warrant to conduct a school search, a search must still must be reasonable by being both justifiable in its inception and not excessively exceeding the scope of the search, by having reasonable grounds for suspecting that the search will turn 3

4 Case 3:14-cv JAG Document 21 Filed 07/17/14 Page 4 of 8 PageID# 113 up evidence that the student has violated or is violating either the law or the rules of the school. T.L.O at On February 11, 2013, Defendants Diane R. Saunders (hereinafter: Saunders and Robert A. Turpin, III (hereinafter: Turpin were acting in their official capacity as administrators and employees of Henrico County Public Schools. After purportedly receiving a vague description of someone with long hair, smoking marijuana on a school bus with tinted windows, from two parents, W.S.G. was pulled from class and searched by Defendants Turpin and Saunders. Before conducting the search, Defendant Saunders said that she did not think W.S.G. had anything, but was going to search him anyway and did. Compl. at 17, 19. The totality of the circumstances support a finding that the basis for the search was not justified at its inception and therefore fails to satisfy the first prong of the T.L.O. test. The school argues that it had a legitimate interest in protecting the school from drugs and was purportedly responding to calls from two parents. Yet, they apparently made no efforts to create any logs, reports, or documentation about the search or what led to the search until Counsel for the Plaintiffs got involved in this case with an investigation being done after the fact. The vague description of someone with long hair, smoking marijuana, on a bus with tinted windows, was too generic to provide a basis to search W.S.G. If the court agrees with the Defendants that there was a justification to initiate the search, the search became unreasonable after W.S.G. s sandwich wrapper was searched, and or his cellphone was searched. See Compl. at 27, 28. 4

5 Case 3:14-cv JAG Document 21 Filed 07/17/14 Page 5 of 8 PageID# 114 As part of the search, W.S.G s cellular telephone was taken from him and searched without his consent by Defendant Saunders. Compl. at 28. Defendants argue that specific details into how the phone was searched was omitted from the complaint, if the court believes it to be appropriate, or needs more specific information, the Plaintiffs would ask for leave to file an Amended Complaint or to file a short statement to provide further information. However, Plaintiffs argue that the search of W.S.G. s phone was not reasonable; because it was unreasonable to think that they could possibly find marijuana in his cellphone and therefor outside the permissible scope of what was being sought, thus failing to satisfy the second prong of the reasonable standard from T.L.O. If this court agrees that one or both of the prongs of the T.L.O standard of reasonableness was not met by how the search was conducted, then the search cannot be said to be reasonable under the current applicable law. II. The Reasonableness Standard for School Searches was Reaffirmed by Riley and is Not Wholly Distinct from the Law-Enforcement Standards. The Defendants argue that the Riley decision has nothing to do with them, it is about police officers, and the T.L.O. standard is what governs them as school officials, but the holdings in T.L.O say otherwise. The United States Supreme Court in Riley v. California, No , slip op. (U.S. Jun. 25, 2014 held that police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. Riley slip op. at The Defendants argue the application to law enforcement and the schools are completely distinct. A part of The United States Supreme Court s ruling in New Jersey v. T.LO, 578 U.S. 325, 1985, however, was essentially that the Fourth Amendment's prohibition on 5

6 Case 3:14-cv JAG Document 21 Filed 07/17/14 Page 6 of 8 PageID# 115 unreasonable searches and seizures applies to searches conducted by public school officials and is not limited to searches carried out by law enforcement officers. Nor are school officials exempt from the Amendment's dictates by virtue of the special nature of their authority over schoolchildren. In carrying out searches and other functions pursuant to disciplinary policies mandated by state statutes, school officials act as representatives of the State, not merely as surrogates for the parents of students, and they cannot claim the parents' immunity from the Fourth Amendment's strictures. See T.L.O at The one thing that both school officials and the police have in common is that they are government actors, and the Supreme Court of the United States has treated them differently than the way that the parent searches a child at home. CONCLUSION The United States Supreme Court s ruling in Riley v. California, No , slip op. (U.S. Jun. 25, 2014 is applicable to his case, as it reaffirms the importance of reasonableness that was also found in New Jersey v. T.LO, 578 U.S. 325, The search of W.S.G. was not reasonable, as it fails to satisfy either prong of the reasonableness standard articulated by the United States Supreme Court in the T.L.O. case. The Defendants should have been on notice that their search was beyond the scope of what was reasonable and legal when they conducted the search of W.S.G., including his cell phone. Even if the court finds that there was a sufficient basis for the search at its inception, it can still find that the search was unreasonable for being excessive in scope. 6

7 Case 3:14-cv JAG Document 21 Filed 07/17/14 Page 7 of 8 PageID# 116 For the forgoing reasons, the Plaintiffs respectfully ask this Court to Deny the Motions to Dismiss on behalf of the Defendants, or in the alternative consider allowing the Plaintiffs leave to Amend their Complaint to provide them with an opportunity to cure any defects or allow for clarifications. DANIEL AND MANUELA GALLIMORE, PARENTS AND NEXT FRIENDS OF W.S.G., a minor. By: /s/ Counsel Scott D. Cardani, VSB# Robert L. Peresich, VSB# Bowen Ten Cardani, PC 3957 Westerre Parkway, Suite 105 Richmond, VA Telephone Fax scottcardani@gmail.com rperesich@btclawva.com Counsel for Plaintiffs 7

8 Case 3:14-cv JAG Document 21 Filed 07/17/14 Page 8 of 8 PageID# 117 CERTIFICATE OF SERVICE I hereby certify that on this 17 th day of July, 2014, I will electronically file the foregoing Memorandum in Response to Court s Order of June 25, 2014, and in Further Opposition to Defendants Motion to Dismiss, with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF to the following: Audrey J. Burges (VSB #72569 Henrico County Attorney's Office P.O. Box Henrico, Virginia Telephone: ( Facsimile: ( ajburges@henrico.k12.va.us Lee Ann Anderson (VSB #72419 Henrico County Attorney's Office P.O. Box Richmond, Virginia Telephone: ( Facsimile: ( and93@co.henrico.va.us Joseph P. Rapisarda, Jr. (VSB #14836 Henrico County Attorney s Office P.O. Box Richmond, Virginia Telephone: ( Facsimile: ( rap@co.henrico.va.us /s/ Robert L. Peresich, VSB# Bowen Ten Cardani, PC 3957 Westerre Parkway, Suite 105 Richmond, VA Telephone Fax rperesich@btclawva.com Counsel for Plaintiffs 8