Student Searches and Seizures by ewghwehws

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									Student Searches and Seizures:
  Everything you ever wanted to know--
and probably more--about the subject of
  the 4th amendment and public schools
                Rich Kitchens
            Piedmont High School
                 April 2005
                    The basic case law

•   TLO v. New Jersey and In re William G.
•   Board of Education v. Earls and Acton
•   In re Randy G.
•   BC v. Plumas County Schools
•   In re William V.
•   And then some hypotheticals….
       New Jersey v. T.L.O. (1985)
• Teacher found two girls smoking in bathroom, brought
  them to VP where one admitted smoking. The other
  denied smoking, and VP opened her purse and found
  cigarettes, and, as he reached for them found rolling
  papers, and decided to search further, finding
  marijuana, pipe, empty baggies, lots of dollar bills, and
  list of “people who still owe me money.” All this was
  then turned over to police. She was found “delinquent,”
  but challenged this determination as a result of an
  unconstitutional search of her purse. Is she right?
               USSC ruling in T.L.O.

• Search was reasonable. It was justified
  because there was a reasonable suspicion
  and the scope and conduct of search was
  reasonably related to circumstances
  giving rise to search.
• Note the standard for school officials is less
  than for police. Only reasonable suspicion
  is required to search, not probable cause.
             In re William G. (1985)
• Assistant principal Lorenz, stopped William
  and questioned him when he noticed him
  carrying a small black case with an “odd-
  looking bulge.” When William repeatedly
  refused to allow Lorenz to search the case,
  Lorenz “forcefully took and unzipped it.”
  Busted! Lorenz admitted he had no prior info
  that led him to believe William had violated a
  law or a school rule.
     Cal. SC ruling in William G.
• In re William G. determined that the lack of
  prior information led to the conclusion that
  Lorenz's search of the case was illegal.
  William’s furtive movements in trying to hide
  the case, his demand for a warrant, and
  Lorenz's suspicion that William was
  tardy or truant did not create a
  reasonable suspicion upon which to base
  the search.
             Board of Education of
         Pottawatomie Co. v. Earls
• Pottawatomie school district is in Tecumseh,
  OK. Its “Student Activities Drug Testing
  Policy” tested students wishing to participate in
  band, choir, color guard, FFA, FHA and the
  school’s athletic and academic teams--all extra-
  curricular activities. Students refusing to take
  these random, confidential, drug tests were
  barred from their chosen activity.
     The USSC said: The school’s
            actions were LEGAL

• “The Policy is a reasonable means of
  furthering the School District’s important
  interest in preventing and deterring drug use
  among its schoolchildren and does not
  violate the 4th Amendment.”
• This expanded the Acton rule (random drug
  tests of student athletes OK if there is a
  “legitimate government interest”)
             Vernonia School District
                     v. Acton (1995)
• An official investigation led to the discovery that high
  school athletes in the Vernonia School District
  (Oregon) participated in illicit drug use. School officials
  were concerned that drug use increases the risk of
  sports-related injury. Consequently, the school district
  adopted the Student Athlete Drug Policy which
  authorizes random urinalysis drug testing of its student
  athletes. James Acton, a student, was denied
  participation in his school's football program when he
  and his parents refused to consent to the testing. They
  then sued the school district. Who is constitutionally
  correct?
USSC decision in Acton
• The reasonableness of a search is judged by “balancing
  the intrusion on the individual's 4th Amendment
  interests against promotion of legitimate governmental
  interests.” High school athletes are under State
  supervision during school hours and are subject to
  greater control than free adults. Privacy interests
  compromised by urine samples are negligible since the
  conditions of collection are similar to public restrooms,
  and the results are viewed only by limited authorities.
  Furthermore, the governmental concern over the safety
  of minors under their supervision overrides the
  minimal, if any, intrusion in student-athletes’ privacy.
                      In re Randy G. (2001)
• CW, a campus security officer at R’s high school observed R and a
  friend in area of campus where students not permitted. When R
  saw CW, he “fixed his pocket very nervously.” Lining of pocket
  was still sticking out. Kids went back to class. CW followed to see
  where they were going because the minor acted “very paranoid
  and nervous.” CW went to R’s class and asked R if she could see
  him outside. Once in the hallway, CW asked R if he had anything
  on him. He replied “No” and repeated denial when asked again. R
  consented to search of bag, and replied “No” to CW’s repeated
  question whether he had anything on him. CW asked if it was okay
  to do a patdown, and R replied “Yes.” A patdown revealed a knife,
  later found to have a locking blade, in R’s left pocket. PC § 626.10.
  R made ward of court (W&I § 602), placed on probation. Appeals.
 Cal. SC rules in In re Randy G.

• School officials have the power to stop a
  minor student in order to ask questions
  or conduct an investigation even in the
  absence of reasonable suspicion, so long
  as such authority is not exercised in an
  arbitrary, capricious, or harassing
  manner.
Note what the Court in Randy G.
                  did NOT say...

• Is there a difference between a stop, with
  the attendant questions (“investigation”)?
• Yes there is.
• The Court did NOT say that the lessened
  standard (“no reasonable suspicion”) would
  justify a search or seizure. Some
  commentators have read this into the case.
• They are wrong. At least for now….
 B.C. v. Plumas County Schools
• B.C. was a student at Quincy High School in Plumas County,
  California, in May 1996. On May 21, 1996, Principal and Vice
  Principal told B.C. and his classmates to exit their classroom. As
  they exited, the students passed a Deputy Sheriff and "Keesha," a
  drug-sniffing dog, stationed outside the classroom door. Keesha
  alerted to a student other than B.C.. The students were told to wait
  outside the classroom while the dog sniffed backpacks, jackets,
  and other belongings which the students left in the room. When
  the students were allowed to return to their classroom, they again
  walked past the Deputy and the dog. Keesha again alerted to the
  same student. That student was taken away and searched by
  school officials. No drugs were found that day at Quincy High
  School. Is this a valid search? Was there a “seizure”?
  9th Circuit ruling in B.C. (1999)
• We agree with the Fifth Circuit (Horton) that “close proximity
  sniffing of the person is offensive whether the sniffer be canine or
  human.” Because we believe that the dog sniff at issue in this case
  infringed B.C.’s reasonable expectation of privacy, we hold that it
  constitutes a search. However, the students were not “seized” in
  the 4th amendment sense.
• Normally, there must be “individualized suspicion.” In the absence
  of a drug problem or crisis at Quincy High, the government's
  important interest in deterring student drug use would not have
  been “placed in jeopardy by a requirement of individualized
  suspicion.” Thus, in this balancing test, the search is not
  reasonable. It would have been unconstitutional...
• But the gov’t officials have qualified immunity from liability.
               In re William V. (2003)
• Police officer, on two-year assignment as
  “resource officer” at W's school, saw red bandana
  in back pocket of W (outlawed at school b/c of
  possible gang affiliation), asked him to remove it,
  told by W no, took the nervous W to office after
  pat-down which revealed knife in W’s waistband.
• Is a school resource officer a "school official"
  for purposes of detaining and searching
  students?
                The Delicate Balance

• One the one hand, teachers and school
  administrators have a solemn responsibility
  to protect the safety and well-being of our
  children and to ensure that schools can
  fulfill their educational mission.
• On the other hand, minor children attending
  school, like all persons in America, possess
  rights under the Constitution.
                     What makes for
             “reasonable suspicion”?

• Articulable facts and reasonable inferences
  creating nexus between infraction, object,
  and place. Factors sufficient to give rise to a
  reasonable suspicion:
  – information from teacher, suspicious bulges
    suggesting illegal object, direct observation of part
    of an object, sudden inexplicable moves toward
    pocket or other place, knowledge of previous
    infractions, discovery of one thing leads to another...
     The “exclusionary rule” in
public schools…should it apply?

• What is “the exclusionary rule”?
  – Material or information gained from an illegal
    search, seizure (4th amendment) or
    interrogation (Miranda) is inadmissible in
    court.
  – The rule applies to criminal cases
  – Exceptions: “good faith” exception, etc.
• Purpose is to deter illegal police behavior.
         Gordon J. v. Santa Ana
   Unified School District (1984)
• “Consequently, after balancing the competing
  interests involved, we hold the exclusionary
  rule inapplicable in high school disciplinary
  proceedings -- even where, as here, they are
  concededly directed in part toward punishment
  of the offending student. The social cost in
  terms of harm to other students, to say nothing
  of the damage to the morale of parents and
  teachers, is too dear.
           Hypo #1 (In re Johnny F.)
• After several taggings, security aide and counselor go
  to 3rd period class to search for markers. They asked
  students to empty pockets, noticed a lighter on J’s desk,
  sniffed it, determined marijuana smell, took kid to
  principal who asked J to empty pockets. He refused,
  but principal saw plastic baggie in wide open jacket
  pocket. J was then patted down, baggie felt, was asked
  what was in pocket. He said “Nothing.” He was told
  “not to lie,” asked again, and J admitted it was
  marijuana. It was then seized and J was made ward of
  court under W&I 602, fined, and placed on probation.
          Hypo #2 (In re Corey L.)

• 3 students individually warned principal
  that another student carrying drugs.
  Principal confronted Corey and asked.
  Corey denied it and said “you can search
  me if you want.” Principal searched and
  found 2 bags of cocaine. Corey argued that
  the search was unlawful due to the failure to
  warn him of his Miranda rights.
      Hypo #3 (In re Alexander B.)
• Summer school in Van Nuys. Gang confrontation between two
  groups. A third group gathered, watching the fracas, and a kid
  from original confrontation said “one of those guys has a gun,”
  pointing to 3rd group. School Dean tells police officer, “Check the
  group over there. One of them is supposed to have a weapon.” He
  detained students and Alexander stood up. Officer ordered him to
  sit down. Instead, he turned away from the officer and started to
  step away. In the course of wrestling appellant to the ground, the
  officer noticed a black handle sticking out from the belt
  underneath the pants. Appellant was handcuffed and a machete
  knife and scabbard were removed from inside his trouser leg.
  Violated PC 12020 (concealing dirk or dagger), made ward of
  court (W&I 602) and placed on probation. Valid detention?
  Search?
     Hypo #4: In re Aldo G. (2002)
• Students at Aldo's school told the assistant principal about some
  students displaying knives. The incident occurred on a Friday, and
  the assistant principal gave the campus security supervisor Aldo's
  and other students' names to “check out.” The following Monday,
  the security supervisor approached Aldo when he should have
  been in class and asked him if he had a weapon. Aldo responded
  “no,” and the security supervisor asked him to empty his pockets.
  Aldo complied and produced a lipstick tube. Because the security
  supervisor thought it was strange a male was carrying a tube of
   lipstick, she opened it and found a knife inside.
• Was this a valid detention? Was this a valid search?
                       The issue of
         “individualized suspicion”

• If school officials have reason to believe an
  infraction occurred at a specific location, it
  will occasionally be reasonable for them to
  search all students who were present at the
  place where it occurred. These blanket
  searches are valid of:
  – location/area is closed or relatively confined
  – infraction is so overt, open & illicit
      Smith v. McGlothlin (1997)

• Two hour search of about 20 students who
  were discovered on a cul-de-sac near school
  by the vice principal, who observed a cloud
  of smoke over their heads and furtive
  gestures suggesting students were
  discarding smoking materials.
• Is there individualized suspicion? Does it
  matter?
Brousseau v. Town of Westerly

• Pat down searches of sixth graders who
  were eating in the school cafeteria when a
  cafeteria worker announced that a 13 ½
  inch pizza-cutting knife was missing.
• Is this valid?
      DesRoches v. Caprio (1998)

• Search of backpacks of 19 ninth-grade art
  students after a pair of sneakers was
  reported missing from their classroom
• Valid search?
       Kennedy v. Dexter Schools

• Strip search of two students who were
  around a group of about ten students present
  at the scene of an apparent crime (missing
  diamond ring)
• Valid search?
     Searches prior to a field trip?

• Desilets: District had a stated policy of
  searching all students hand luggage prior to
  field trips, despite absence of any
  individualized suspicion
• Compare to Kuehn v. Renton: school told
  student band members they had to submit
  luggage to search prior to out-of-town
  concert; one kid refused and sued

								
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