Search and Seizure in the School Setting

ACSA LEADERSHIP SUMMITNovember 5, 2015

Presented by

Diane Beall

Is There a Search Implicating the Fourth Amendment?

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Question: When is the 4th Amendment

implicated?

Rule: The 4th Amendment applies to

all school searches. Students have an expectation of privacy at school.

Question: Did a search, in fact, take

place? If so, what was the extent of the intrusion?

Rule: Some interactions (questions,

information gathering) do not implicate the 4th Amendment.

Fourth Amendment in Schools

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Searches by school officials must be reasonable. Search must be justified at inception and be

reasonably related in scope to initial reason for search.

Reasonable means there are specific, articulable facts to justify a search.

Reasonableness may be determined by existing school policies, consent, or exigency.

*New Jersey v. TLO (1985) 469 U.S. 325

Resource Officers v. Police Officers

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School officials and school resource officers need reasonableness to search.

Police officers need probable cause to search students.

…

Search Must be Reasonable at Inception

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Consider whether conduct violates school policies, criminal law statutes or Ed. Code (e.g., cyber bullying).

Searches May Be Necessary to Maintain A Safe Environment

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Reasonably suspected serious violations create a more significant justification for the search.

Legitimate and Lesser Expectations of Privacy

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Students have a reasonable expectation of privacy in personal items.

Time and location of search: Lesser expectation of privacy on school premises during school hours by school officials and school resource officers.

Lesser expectation of privacy where school discipline policies allow search.

Search may be based on voluntary consent of student or specific school policies.

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Searches Must Be Permissible In Scope

• Consider the type of search: locker, backpack, cell phone, purse, metal detector, etc.

• The greater the reasonably suspected violation, the greater the justification for the search.

continued …

Searches Must Be Permissible In Scopecontinued

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Consider the initial basis for conducting the search.

Strong initial basis for search may create basis for wider scope of search.

Further search may be justified if, in the course of the search, evidence of another violation is found.

If items were not found where expected at the inception of the search, wider scope of search may be justified.

Beyond Reasonable Suspicion

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Doctrines

CONSENTPLAIN VIEW

EXIGENCY

Consent/Waiver

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A search of a student’s personal items, including a cell phone, is reasonable if the student gives voluntary consent to search.

Consent given under duress, coercion or threat is NOT voluntary consent.

• If consent is not given, search is still permissible if it is: (1) justified and reasonable; (2) is an item of contraband in plain view; or (3) there is exigency to conduct an immediate search.

Plain View Doctrine

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Under certain circumstances, an object “in plain view” can be searched when it is reasonably believed to be contraband.

Campus supervisor lawfully in dormitory observed contraband and could search it without a warrant. (Washington v. Chrisman (1982) 455 U.S. 1.)

continued …

Plain View Doctrine, continued

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School resource officer could detain and search student where colored, folded bandana indicating gang activity and prohibited by school rule was in student’s pocket in plain view. (In re William v. (2003) 111 Cal. App.4th 1464.)

Exigent Circumstances

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Exigent circumstances are those that require a school official to act immediately to:

• Ensure safety of students or school staff; or• Prevent physical or emotional harm to students, school

staff or others; • Prevent destruction of contraband or other physical

evidence; or • Maintain a safe school environment.

Examples of Exigent Circumstances

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Report of student with guns in backpack in locker justified immediate search of locker. (S.C. v. State (Miss., 1991) 583 S. 2d 188.)

High school supervisor could search student’s pockets and fanny pack where two students overheard talking about a “gun on campus” and student had possessed weapons on campus in past. State ex rel. Juvenile Dep’t of Washington County v. DuBois (1991) 110 Or.App.314.

continued ….

Examples of Exigent Circumstances, continued

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Report of noxious odor in library justified immediate search of student’s personal items stored in study carrel (found to contain marijuana). (People v. Lanthier (1971) 5 Cal.3d. 751.)

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Strip and Pat Down Searches Strip searches of students are disallowed in

California under Ed. Code section 49050. Pat down searches of students are allowed where

reasonable suspicion of contraband exists. (Safford USD v. Redding (2009) 129 S. Ct. 2633.)

But, pat down searches at a high school graduation or prom, without individualized reasonable suspicion, are unreasonably intrusive. (Herrera v. Santa Fe Public Schools, et al., 2011 WL 2433050 (U.S. Dist. Ct., New Mexico).

RANDOM SEARCHES Random, suspicionless searches of students’ personal items in

classrooms during school day unreasonable and held unconstitutional. (Doe ex rel. Doe v. Little Rock School District (8th Cir. 2004) 380 F.3d 349.)

Blanket school search may be justified where school officials receive specific information giving them reasonable grounds to believe student safety is in jeopardy. (Thompson v. Carthage Sch. Dist., (8th Cir. 1996) 87 F.3d 979.)

“Furtive gesture” in moving to hide an article from school official did not create reasonable suspicion justifying search without additional facts. (In re William G. (1985) 40 Cal.3d 550.)

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Administrative Searches

Administrative searches (e.g., random drug testing) involving participants in extracurricular activities have been held to be reasonable. (Vernonia Sch. Dist. 47J v. Acton (1995) 515 U.S. 646.)

Large-scale administrative searches using magnetometers are generally reasonable: they are minimally intrusive and identify need for more intrusive search. (Doe ex rel. Doe v. Little Rock School District (8th Cir. 2004) 380 F.3d 349.)

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Admissibility of Evidence

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Question: If school officials seize evidence in

violation of the 4th Amendment, is it still admissible in school disciplinary proceedings, including expulsion hearings?

Rule: The exclusionary rule does not

apply to school disciplinary proceedings, and evidence seized in violation of the 4th Amendment can still be used to uphold a suspension or expulsion.

Question: If school officials seize evidence in

violation of the 4th Amendment, can it be excluded in criminal/juvenile proceedings?

Rule: Yes, evidence seized by school

officials in violation of the 4th Amendment can be excluded at juvenile or criminal proceedings, making it unavailable as evidence.

Case Study #1: Facts

One week prior, Principal given information student selling drugs, and searched student’s person and found $300 but no drugs

Next week, student leaving school in morning, claimed going to family funeral, on pay phone

Family denied funeral, said student drove to school Student evasive about how he got to school, denies

having car on campus Principal verifies student’s car IS on campus

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Case Study #1: Search

Sheriff’s officer and security guard present Principal patted down student, searched

person, found $197 in wallet and keys Principal searched locker, no drugs Principal directed student to open car,

searched entire car In trunk, found cocaine, marijuana and

weighing scales22

Case Study #1: Analysis

Was pat down of student justified? Was search of pockets, wallet justified? Did reasonable suspicion exist to search student’s

locker? Was there reasonable suspicion to search student’s

car? Did student consent to car search? How do you think the court ruled?

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Case Study #2: Facts

Student identified as possibly smoking marijuana on school bus by principal

Principal pulled student from class; student smelled of marijuana, evaded questions

Principal called in SRO, both took student to office Student had hands in pocket, had large hidden object

in pocket Student refused Principal’s order to remove hand and

empty pocket24

Case Study #2: Search and Analysis

Principal directed SRO to search student SRO reached into pocket, removed firearm

-Was the search justified at its inception?-If pocket didn’t contain contraband, would a search of student’s backpack be justified?-Locker?-Car?

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Cell Phone Searches

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Reasonableness of search of cell phone depends on several factors:If there are policies in place prohibiting possession, use or display of cell phone, then cell phone is contraband.

• Which portion of the cell phone school policy did student violate?

• Extent of student violation of school policy (possession v. use) may result in diminished expectation of privacy.

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Klump v. Nazareth Area School District (2006) 425 F. Supp. 2d 622 (U.S. Dist. Ct., E.D. Penn.)

School policy prohibited students from display or use of cell phones, but possession was allowed.

School official confiscated student phone after student accidentally dropped phone from pocket, thereby displaying it.

Due to display of phone, school officials called classmates listed in contacts on phone and accessed student’s text messages and voicemails to see if other students were violating school policy.

Court held reasonable search only allowed confiscation of cell phone, not “wholesale fishing expedition” into student’s personal life.

Further search of cell phone unreasonable where no evidence existed that student violated other school policies.

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But, see J.W. V. DeSoto County School District, 2010 WL 4394059 (U.S. Dist. Ct., N.D. Miss.)

School policy prohibited use or possession of cell phone at school. Student used cell phone in class to retrieve text message. Cell phone searched and had pictures with student and another student

holding BB guns. School expelled student on grounds that BB gun photos constituted “gang

activity” and student was threat to school safety. Court held cell phone was contraband under school policy and search was

justified at its inception. It was reasonable for school officials to search cell phone to see to what

extent student was improperly using cell phone, e.g., cheating.

(G.C. v. Owensboro Public Schools, 711 F.3d 623 (6th Cir. 2013))

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“Using a cell phone on school grounds does not automatically trigger an essentially unlimited right enabling a school official to search any content stored on the phone that is not related either substantially or temporally to the infraction.”

Teacher should not have searched a student’s text messages despite her concern about the student’s suicidal tendencies and suspected drug use. While the student was upset his phone had been taken away as a result of texting during class, teacher not justified in reading text messages without more information about any threat of harm to the student or others.

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Questioning / Detaining Students

Question: Do school officials have to call

the student’s parents before they can detain them and question them?

Rule: School officials can detain

students and question them for a reasonable length of time without contacting parents.

Question: Do students have to be given

Miranda warnings before being questioned by school officials?

Rule: No, unless student is “in

custody” and is being questioned by school official as “an agent of law enforcement” [in concert with SRO or police officer.]

COURT DECISIONS ON MIRANDA IN SCHOOLS

JDB v. North Carolina (2011) 131 S. Ct. 2394

13-year-old student removed from class by SRO officer regarding stolen property

Student questioned by two administrators, SRO and juvenile court investigator

Miranda applied if child was “in custody”-remanded for consideration of “all relevant circumstances”

N.C. v. Kentucky (2013) 16-year-old student gave

away prescription pills in school

Principal and SRO remove student from class, bring to school office, close door, and both question about pills, student admits and charged with felony.

Miranda required because student in custody

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Thank You!

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