Presentation on theme: "STUDENT SEARCHES AND SEIZURES: LEGAL STANDARDS, POLICY, AND PROCEDURES"— Presentation transcript:
1 STUDENT SEARCHES AND SEIZURES: LEGAL STANDARDS, POLICY, AND PROCEDURES Bakersfield City School DistrictStudent Services DepartmentSTUDENT SEARCHES AND SEIZURES: LEGAL STANDARDS, POLICY, AND PROCEDURESMike Skiba, SupervisorNovember 2009There are specific legal requirements on who, when, where, and how a search may be conducted.
2 AUDIENCE QUESTIONSMaterials Provided: Copy of the Powerpoint slides, a glossary of search and seizure terms, checklists to plan and document search activities.Should be plenty of questions since this is an area frequently scrutinized by parents, the media, and the courts. Also, because there are potentially significant sanctions for not knowing and following the applicable rules.When can you search? What if you have a hunch or intuition?Does age and maturity matter in a search?What person(s) in the school, has the authority to conduct a search?How far can you go? When must you stop?Where should you start?Must you give a notice to the student before beginning?Can you look anywhere for contraband?Must there be a gender match on student/staff?Should you ask permission to search?Are body cavity searches prohibited?Must you document the facts leading to the reasonable suspicion for the search?Student rights, school authority, limits, and sanctions.Definitions and application.Goals of search and seizure.Reasonable suspicion/justification, reasonable search, scope of search, and intrusiveness of search.At the beginning of each school year and whenever students are assigned lockers, desks or other district property, students and parents/guardians are informed of the possibility of random searches of students, their belongings and district properties under their control.
3 Presentation SummaryDefine and illustrate contraband, search, and seizure.Give an overview of the importance of rules related to search and seizure.Describe “school officials” as the positions authorized to conduct a search and make a seizure.Identify the factors giving rise to a “reasonable suspicion” or justification to initiate a search.Describe the factors likely to make a search reasonable and contrast that example with unreasonable searches.Limit searches to areas likely to contain suspected contraband (limit the scope of a search).Plan, design and carry out a search procedure with a minimal amount of intrusiveness.Describe parameters for accepted procedures for the seizure of property and the detention of students.Contraband - Includes all substances that law, school policies, and rules forbid students to possess.Search - A student search is any action taken by a school official to gain access to any item possessed by a student that is shielded from open public view and located in a place or contained within a thing that is reasonably assumed to have a degree of privacy by nature; an intrusion into an area in which a person has a reasonable expectation of privacy.Seizure - Includes the willful detention or willful taking of a person or thing.2. Expectation of Privacy - A belief in the existence of the right to be free of governmental intrusion in regard to a particular place or thing.School Official - Of or relating to an office or position of trust or authority; authorized or approved by a proper authority (a school district's official policy, Within the District, the superintendent, principal, vice principal, dean, authorized campus supervisor, but not a teacher.Suspicion, Reasonable - Suspicion based on objective, articulable facts and on reasonable inferences from those facts, not on mere curiosity, rumor, or hunchSearch, Justified - Reasonable grounds to suspect the search will turn up evidence of a pupil’s violation of the law or school rules5. Search, Reasonable - A justified, minimally intrusive search based on reasonable suspicion. A search that does not invade the expectation of reasonable privacy, minimally intrusive. Examples of unreasonable searches include those done by other than school officials, searches conducted without justification or a reasonable suspicion, those that proceed outside a reasonable scope and that are more intrusiveness than necessary.Scope is the breath of the search; where and how far do the methods take us? Search, Scope of - The method(s) used to search must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and gender of the pupil and the nature of the infraction7. Intrusiveness of search – Intruding on the student’s privacy by avoiding the search with questions and beginning any search at the least private place. Done in line with the scope and reasonableness principles, and in consideration of how important the contraband is to the school’s interests (prohibited candy vs. knife). The principle of intrusiveness requires that a student be first asked to give up any contraband, and that the least private place be first searched, followed by the next private place. Q. - Asking a student to validate the facts of a reasonable suspicion (“Do you or did you not have a knife with you today?” “Were you smoking marijuana in the boys bathroom?”).8. Seizure - Includes the willful detention or willful taking of a person or thing.Search, Prohibited - Prohibited searches include strip searches, body cavity searches, or any search that involves removing or arranging the pupil's clothing permitting visual inspection of his/her underclothes, breast, buttocks, or genitalia (Education Code 49050). Unreasonable searches are also prohibited.N0T REASONABLE – Teacher reports the student was not “acting right,” was unable to understand the pronunciation of his name where school officials had no prior knowledge of the student (A.H. v. State of Fla., 846. So. 2d 1215 [Fla. Dist. Ct. App. 2003]).N0T REASONABLE – School counselor observed student was “not acting himself,” had bloodshot eyes and that “something wasn’t right,” lacking reasonable suspicion where those characteristics occurred among students not involved with drugs (A.N.H. v. State, 832 So. 2d 1215 [Fla. Dist. Ct. App. 2002]).N0T REASONABLE – Teacher noticed the student had money in his hand and was “fiddling” in his pockets, even though the student had a prior record, had a bad attitude, and school had a growing drug problem (Commonwealth v. J.B., 719 A.2d 1058 [Pa. Super. Ct. 1998]).N0T REASONABLE - Generalized suspicion based on stale information, previous misbehavior, and heavy use of public telephone (Gordon J. v. Santa Ana Unified School Dist. [App. 4 Dist. 1984] 208 Cal.Rptr. 657, 162 Cal.App.3d 530).N0T REASONABLE - Making "eye contact" and looking back in a general direction while walking did not rise to the level of "objective, articulable suspicion" that defendant was carrying drugs as to justify even limited detention under the Fourth Amendment (U.S.C.A. Const.Amend. 4). (Wilson v. Superior Court of Los Angeles County  195 Cal.Rptr. 671, 34 Cal.3d 777, 670 P.2d 325). No search of any body cavity of a student
4 Search DefinedSearch - Any attempt to gain access to any item shielded from open public view and located in a protected place or thing (Van Dyke and Sajurai, )Search – A governmental (e.g., school) intrusion into an area in which a person has a reasonable expectation of privacy (Terry v. Ohio,  392 U.S. 1, 88 S.Ct. , 20 L.Ed.2d 889)In a democratic society, a citizen is given rights to move about freely and not have their property taken.The phrase “expectation of privacy” refers to a setting or place a reasonable person would expect to be private.To be searched by school staff is an intrusion if the place searched (e.g., pocket) is in a private place.Where a reasonable search may conducted is limited to an area where contraband may be found and begins in the least intrusive place the contraband may be found.Search –A governmental (e.g., school) intrusion into an area in which a person has a reasonable expectation of privacy (Terry v. Ohio,  392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889)
5 Seizure DefinedSeizure (of property) includes a meaningful interference with a person's rights in possessing propertySeizure, within the meaning of the Fourth Amendment, includes the willful detention or willful taking of both a person and thing (U.S.C.A. Constitutional Amendment 4)Something is “seized” when school officials confiscate or take it away from a student; a student is “seized” when detainedThere are three types of seizures: (1) Seizures incident to lawful student searches; (2) plain view seizures; and (3) open public view seizures.Plain View Doctrine: Prior intrusion must be valid; discovery of the items must be inadvertent; and the items found in plain view must be immediately recognizable as evidence (Coolidge v. New Hampshire, 403 U.S. 443, 465 ); 1 LaFave, Search and Seizure, s.s(a) at ).Identification of contraband in the course of a normal interaction with a student (plain view).Open public view: Something suspicious is exposed openly to public detection by sight, smell, and hearing.
6 Is Privacy Important in Today’s World? Secure in their personSecure in their houseSecure in their papersand effectsPrivacy is important in today’s world, but given 9/11, and more specifically Columbine, and the Russian terrorist attack in a school, we forecast society expects schools to show a heightened sense of vigilance and courts may be less likely to strike down a “marginal” case involving questionable search or seizure/detention procedures.
7 Fourth Amendment Overview (Privacy) Fourth Amendment (U.S. Constitution)“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . .”The fundamental element protected by the Fourth Amendment is the reasonable expectation of privacy to which each person is entitled (Katz v. United States  389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576)No issue has generated more litigation related to students over the past 20 years than the Fourth Amendment.QUESTION: Why would searches and school seizures be so frequently challenged in court?ANSWER: Because if the search is struck down as illegal, the consequence will be struck down.In re Lisa G., 23 Cal.Rptr.3d 163. Cal.App.4.Dist.,2004 Students in public schools have a legitimate expectation of privacy in the personal effects they bring to school. U.S.C.A. Const.Amend. 4.Although Fourth Amendment protections apply to public school children, students in the school environment have a lesser expectation of privacy than members of the population generally. Nicol v. Auburn-Washburn USD 437, 231 F. Supp. 2d 1107 (D. Kan. 2002).
8 Which Individuals Are Protected by the Constitutional Guarantees? Citizens/PersonsAnyone directly affected by a state law (Kentucky Finance Corp. v. Paramount Auto Exchange, 262 U.S. 544, 43 S.Ct. 636, 67 L.Ed ).Note for School Staff: Although the Fourth Amendment was written with general public in mind, the courts have held that other segments of the population (e.g., public school students) may have the legal rules applied differently.An example of applying the rules differently – no search warrant needed for school officials to search.School officials have comprehensive authority to maintain discipline in schools, but only to the extent such efforts are consistent with fundamental constitutional safeguards (Tinker v. Des Moines).The U.S. Supreme Court recognizes that children are entitled to constitutional protection, but reduces that protection in certain situations to less than would be accorded to an adult.In a post-Columbine era when the safety of students is at stake, courts are likely to emphasize lesser privacy expectations of students in upholding preventative actions taken by school officials to protect students.
9 Potential Actions and/or Claims Arising from Violations of Civil and Constitutional Rights Lawsuit for injunction relief, damages, and attorneys’ feesUniform Complaint ProcedureDisciplinary action against the offending employee or the failure of supervisor to take appropriate actionCommission on Teacher Credentialing – Denial, suspension, or revocation of certificate/credentialPunitive damages - District employees who knowingly and regularly violate these rules could be individually liable for damagesLawsuits can be costly to defend and can force the District to incur large attorney fees to defend. Where the District is found liable, the plaintiff may be awarded damages and attorneys’ fees. Typically, attorneys’ fees for both sides in these cases can exceed $100,000. Damage awards in reported cases have ranged from nominal sums to close to $5,000,000.Board Policy Excerpts: The governing board recognizes each pupil’s constitutional right to privacy and freedom from unlawful search and seizure (Search and Seizure, BP )The board urges that discretion, good judgment, and common sense be exercised in all cases of search and seizure. All search and seizure procedures shall be used within the boundaries of applicable law (Search and Seizure, BP )In re Jose Y., 46 Cal.Rptr.3d 268, Cal.App.2.Dist.,2006 Minor students may be detained without any particularized suspicion, as long as the detentions are not arbitrary, capricious, or for the purposes of harassment.REASONABLE - In re Ubaldo B., 2002 WL Cal.App.6.Dist.,2002 Action of learning director at public middle school, in arranging for minor to be escorted to director's office and questioning him concerning gang graffiti found in boys' bathroom, did not constitute a "detention" under Fourth Amendment; minor's liberty was not thereby restrained over and above the limitations that he already experienced in school. U.S.C.A. Const.Amend. 4.In Re Randy G., 28 P.3d 239, Cal., For purposes of reasonable analysis under the Fourth Amendment, the intrusion on a minor student occasioned by a temporary detention by school officials is trivial, since the minor is not free to move about during the school day; if the school can constitutionally require the minor's presence on campus during school hours, attendance at assigned classes during their scheduled meeting times, appearance at assemblies in the auditorium, and participation in physical education classes out of doors, liberty is scarcely infringed if a school security guard leads the student into the hall to ask questions about a potential rule violation. U.S.C.A. Const.Amend. 4.
10 Student Searches and Contraband * All student searches involve contraband*Contraband includes all substances that law, school policies and rules forbid students to possessDiligent enforcement of conduct rules for all students is a way for schools to prevent injuries from negligent (or intentional) actions of a student with dangerous contraband (e.g., a weapon)A young student may not fully understand the dangerous nature of objects that they bring to school but, while at school, they nonetheless are responsible for objects in their possession. As such, they are subject to school discipline.The issue for school officials is the extent to which violations of school rules permit searches of students and/or their possessions.
11 Contraband Illustrated Illegal itemsIllegal for everyone to possess(e.g., marijuana, methamphetamine)Illegal for students to possess (e.g., tobacco, alcohol)Items that are not illegal to possess but are dangerous and cannot be brought onto school property (e.g., knife)Items board policy prohibits even though not otherwise dangerous or illegal(e.g., cell phone)Firearm is illegal for a minor to possess in CA unless supervised by an adult in a controlled setting, plus Gun Free School Zones makes it illegal for anyone to have a firearm within a 1,000 yards of a school (excepting persons with a specific legal privilege – law enforcement officer).
12 General Definition of Student Search A student search is any action taken by a school official to gain access to any item possessed by a student that is shielded from open public view and located in a place or contained within a thing that is reasonably assumed to have a degree of privacy by nature.Van Dyke & Sakurai, 2006, p.18
13 What Conduct Amounts to a Search? * Opening any closed opaque containerPrying open locked containers or possessionsEnlarging the view into closed or locked areasTaking extraordinary steps to penetrate natural or other barriers that screen activities or possessions from open public viewExamining the contents of a cell phone* In general, the more difficult it is to gain access to something that is inaccessible, the more likely the effort to obtain it amounts to a search.Examples of student search include:Physically examining the student’s personLooking through personal possessionsHandling or feeling any closed opaque item to determine its contentsVan Dyke & Sakurai, , p. 18 & 19
14 Protected Places or Things in the School Setting The student’s person and any immediately-connected itemEnclosed stalls within public restrooms, dressing areas, and similar spaces when occupied by a studentAny closed opaque containerPapers, notes, ledgers, calendars, appointment books, literature, and the likeAny school property assigned for a student’s individual use(Van Dyke & Sakurai, , p. 19)MS*Virtually any attempt to find or discover something hidden from public view will be considered a search in the school setting.Lawful Observation and Detection - School officials may observe and detect anything openly exposed to the senses of sight, smell, and hearing so long as: (1) they are and continue to be located in a place where they have a right to be; and (2) they have not used any extraordinary means to gain their vantage point.O.K. to stand on tip-toes, look around corners and partitions, use binoculars, telescopes, and lighting devices.
15 Search of School Properties Lockers/student desks are under the joint control of the student and the district.School officials have the right to open/inspect any locker/desk when they have reasonable suspicion that the search will disclose evidence of illegal possession or activity or when odors, smoke, fire, and/or other threats to student health, welfare, or safety emanate from the locker and/or desk.Because lockers and pupil desks are under the joint control of the pupil and the district, school officials shall have the right and ability to open and inspect any school locker or desk without pupil permission when they have reasonable suspicion that the search will disclose evidence of illegal possessions or activity, or when odors, smoke, fire and/or other threats to pupil health, welfare or safety emanate from the locker and/or desk.In re Lisa G., 23 Cal.Rptr.3d 163 Cal.App.4.Dist.,2004 Ordinarily, a search of a student by a teacher or other school official will be justified at its inception when there are reasonable grounds for suspecting the search will disclose evidence the student has violated or is violating the law or school rules; there must be articulable facts supporting that reasonable suspicion, and neither indiscriminate searches of lockers nor more discreet individual searches of a locker, a purse or a person can take place absent the existence of reasonable suspicion. U.S.C.A. Const.Amend. 4.In re Cody S., 16 Cal.Rptr.3d 653 Cal.App.4.Dist.,2004 A minor who was being removed from his physical education (PE) class had no expectation of privacy in the sense of expecting that his backpack and street clothes could remain in the PE locker, which is reserved for PE use only, and removal of items from locker was not a search.
16 Legal Appropriateness of Student Searches: Key Concepts The courts use legal tests to balance the nature and quality of the intrusion on the student’s Fourth Amendment interests against the importance of the school’s interests alleged to justify the intrusion.Reasonable suspicion or justification to initiate search (also called inception)Reasonable searchScope of searchIntrusiveness of searchIn William V. the court held that a police officer, who was on a two-year assignment as a resource officer at the student’s school was a school official for the purposes of the Fourth Amendment and needed merely a reasonable suspicion, not probable cause to search the student (In re William V., No A [Cal. Ct. App. 09/17/03).Search of Non-student: In United States v. Aguilera, No. CR S FCD (E.D. Cal. 09/25/03) the U.S. District Court, Ester District of California concluded that a visitor’s status as a nonstudent did not determine the school administrator’s response to the threat of gun violence. A person called the school, identified herself as a “concerned parent” and informed the school she had just seen a person with a gun tucked in the waistband of his pants. The school security matched the description of the person’s appearance, identified the person when they came on the campus, and conducted a pat down of the nonstudent. The court concluded an anonymous tip can serve as the basis for reasonable suspicion if it has sufficient indicia of reliability, i.e., it includes a range of details and predicts the suspect’s future actions, which are subsequently corroborated by the police or school security personnel.In re Joseph F., 102 Cal.Rptr.2d 641Cal.App.1.Dist.,2000 Constitutional mandate and legislative scheme relative to school safety render schools akin to those places and situations in which administrative searches are permissible; statutory requirement that visitors during school hours register and disclose their name, address, occupation, and purpose of visit, although unjustified on a public street, is quite reasonable in the school context given the constitutional inalienable right of students to attend campuses which are safe, secure and peaceful, and the legislative finding that a disproportionate share of crimes on campuses are committed by outsiders. U.S.C.A. Const.Amend. 4; West's Ann.Cal. Const. Art. 1, § 28(c); West's Ann.Cal.Penal Code §§ 148(a)(1), 243(b), 626.8(a)(1, 2), (c)(3), 627.1, 627.2, 627.3, 627.7; West's Ann.Cal.Educ.Code §
17 Who can conduct a search? School administratorsAny school personnel authorized by the school board to conduct searches (generally principal, vice-principal, dean, principal designee, campus supervisor)School officials may search individual students and their property when there is a reasonable suspicion the search will uncover evidence that the student has or is violating the law or the district discipline code (BP ) (emphasis added).The courts make it clear that a principal, vice principal, and dean are school officials. The usage of “school officials” does not include teachers.Appropriate test for searches by high school officials is two-pronged: the first requirement is that the search be within the scope of the school's duties, and the second is that the action taken, the search, be reasonable under the facts and circumstances of the case. U.S.C.A.Const. Amend.In Re Randy G., 28 P.3d 239Cal.,2001 For purposes of reasonable analysis under the Fourth Amendment, the power of a school security officer temporarily to detain a minor student is not distinguishable from that of other school personnel, whose authority over student conduct may have been delegated to those officers. U.S.C.A. Const.Amend. 4.In re Lisa G., 23 Cal.Rptr.3d 163Cal.App.4.Dist.,2004 Public school officials are government agents within the purview of the Fourth Amendment, and their conduct is subject to the constitutional rights of their students against unreasonable searches and seizures.In re Cody S., 16 Cal.Rptr.3d 653 Cal.App.4.Dist.,2004 Because a student's legitimate expectation of privacy in their persons and in the personal effects they bring to school must be balanced against the school's obligation to maintain discipline and to provide a safe environment for all students and staff, school officials may conduct a search of the student's person and personal effects based on a reasonable suspicion that the search will disclose evidence that the student is violating or has violated the law or a school rule.
18 Fundamental Search Rules Must have a good reason and a plan!A search must be justified at its inception and the scope of the search must be reasonably related to the circumstances justifying the search in the first place.(New Jersey v. TLO, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 ; In re Lisa G., 23 Cal.Rptr.3d 163 Cal.App.4.Dist.,)Justified – Reasonable grounds/facts that can be articulated to indicate the search is likely to turn up evidence.In re Lisa G., 23 Cal.Rptr.3d 163Cal.App.4.Dist.,2004 The legality of a search of a student depends on the reasonableness under all of the circumstances of the search, which involves a two-fold inquiry, (1) whether the search was justified at its inception, and (2) whether the scope of the search, as actually conducted, was reasonably related to the circumstances that justified the initial search.
19 Plain View is Not a Search Open public view: Something suspicious is exposed openly to public detection by sight, smell, and hearing.Open public views are not searches; they do not involve a physical incursion or intrusion on any justified privacy interest.*Plain View Doctrine – Prior intrusion must be valid; discovery of the items must be inadvertent; and the items found in plain view must be immediately recognizable as evidence (Coolidge v. New Hampshire, 403 U.S. 443, 465 (1970); 1 LaFave, Search and Seizure, s.s(a) at ).In open public view, there is no intrusion on any privacy interest because the student does not have a justified expectation of privacy.Examples: Contraband observed on the student’s person (e.g., a weapon sticking partially out of a pocket); an item located somewhere that is not adequately shielded from public view, even if the location is a protected place (e.g., mesh opening, item left uncovered).
20 What is Prohibited? Unreasonable searches Unreasonable seizures Remember: Knowledge concerning the object for which a reasonable suspicion exists is necessary to legally begin a search. This knowledge also sets the parameters for the reasonable scope of the search and how intrusive the search may be.A search is not an opportunity for an open-ended intrusion into the person and the property of students.Reasonable suspicionReasonable searchScope of search (Where, in what locations or places may the item be found. Searches are limited to locations where the contraband can be located. Size may be an significant issue in scope A knife does not fit in small zippered pocket and therefore the principle of scope in a search would prohibit a search in this area if the suspected contraband was a knife.Intrusiveness of search (The principle of intrusiveness requires that a student be first asked to give up any contraband, and that the least private place be first searched, followed by the next private place. Consider how private a upper elementary/JH/Middle female student’s purse is compared to an exposed pocket).
21 INCEPTION OF THE SEARCH: When May a Search be Initiated? Must have a legally sufficient reason and a plan!A search may be initiated when there is reasonable suspicion.A plan begins with a starting point.In re: Jason B., no. B (Cal. Ct. App. 04/15/04) the court determined there was no evidence that what a student passed to another student was contraband or a weapon, that it could have been a candy bar or a note as easily; that the search was not based on specific, articulable facts to constitute a reasonable basis for searching the student. Therefore, the 41/2 inch knife found was not admissible in a juvenile court proceeding. Also, although the school administrator alleged he asked the student if a search could be conducted, the student denied this leading to the same outcome—violation of Fourth Amendment.RANDOM AND SUSPICIONLESS use of a a metal detector is a REASONABLE SEARCHRANDOM AND SUSPICIONLESS use of a drug-sniffing dog is a UNREASONABLE SEARCH.***Note: The following section is for districts that use trained drug-sniffing dogs for random and unannounced searches. In B.C. v. Plumas, the 9th Circuit Court of Appeals concluded that (1) the close proximity sniffing of a person by a drug-sniffing dog constituted a "search" within the meaning of the 4th Amendment, and (2) a random, suspicionless dog-sniff of a student as the student walked by is unreasonable, at least in the absence of a drug problem at the school. This court did not rule on whether searches of inanimate objects (such as automobiles or lockers) in a school setting are legal. However, courts outside of California (Zamora v. Pomeroy and Horton v. Goose Creek Independent School District) indicate that dog sniffing around lockers and cars would probably not be deemed a "search" and thus would be permissible on a random basis without individualized suspicion. If the dog then alerts on a particular car or locker, this alert could then constitute the reasonable suspicion needed in order to conduct a search. Districts should proceed cautiously in this area and consult legal counsel as appropriate.A search must be justified at its inception and reasonably related to the circumstances justifying the search in the first place (New Jersey v. TLO, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 ).
22 What Justifies A Search? Reasonable grounds to suspect the search will turn up evidence of a student's violation of the law or school rules (New Jersey v. TLO, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 ).Cannot justify a search simply because a student violated a school rule—must be an objective relationship between the rule violation and the search conducted.In re Aldo G., 2002 WL 86873Cal.App.4.Dist.,2002 Search of a student by a public school official is unlawful if predicated on mere curiosity, rumor, or hunch. U.S.C.A. Const.Amend. 4.In re Lisa G., 23 Cal.Rptr.3d 163, Cal.App.4.Dist.,2004 Teacher's search of a high school student's purse and seizure of a knife found therein violated the Fourth Amendment, where teacher admitted she opened the purse to find an identification document so she could write a disciplinary referral for student's disruptive behavior, but where there were no facts suggesting teacher had any suspicion student had engaged or was engaging in any proscribed activity justifying a search, and teacher could have obtained identification from student, who was waiting outside the classroom.In People v. Parker (672 N.E.2d 813 [Ill.App.Ct. 1996])) an appellate court in Illinois upheld the suppression of a gun that was found on a student stopped simply because he was leaving the building.*The court will not defer to a search or seizure simply because a dangerous weapon is found even though the student broke a school rule (was leaving the building after entering). The student did not go through the metal detector.
23 Actual observations of illicit activity Examples of Information Used to Validate the INCEPTION OF A SEARCH and Give REASONABLE SUSPICIONActual observations of illicit activityTips or information from a reliable (may be anonymous) sourceViolation of school policy related to contrabandIdentification of contraband in the course of a normal interaction with a student (plain view)Reports that a student has threatened to bring weapons to school (Williams v. Cambridge Bd. Of Educ., 186 F. Supp. 2d 808 [S.D. Ohio, 2002])In re Karena B., 2003 WL Cal.App.4.Dist.,2003 Search of juvenile's backpack and school locker by junior high school's assistant vice principal were reasonable; juvenile was in locker room, unsupervised, for an unusual length of time, juvenile went to locker room to obtain her backpack, soon after juvenile was in locker room several items were reported missing, and locker was searched after items bearing another student's name were found in juvenile's backpack. U.S.C.A. Const.Amend. 4; West's Ann.Cal. Const. Art. 1, § 13.
24 Examples (from Case Law) Continued Present behavior of a student, compared with past observations of the student’s behavior that are compatible with drug usePresent observation of a bulge or other noticeable change in parts of student’s clothing along with the knowledge that students have used their clothing to hide contrabandStatements of students and/or school personnel that they have seen contraband or been told by the student searched that he had contraband (In Re William V., 4 Cal.Rptr.3d 695 [Cal. Ct. App. 2003])Facts leading to the reasonable suspicion for the searchshall be documented in writing by the school official (BoardPolicy – Search and Seizure).A search can be based upon a reasonable suspicion:The student possesses contrabandUsing the direct observation the student by school employees orFlowing from an anonymous tip(s).*Courts are generally supportive of searches and/or seizures flowing from reports that students have threatened to bring weapons to school and have refused to impose liability on school officials who investigate such reports.
25 REASONABLENESS OF SEARCH * * A reasonable search is: (a) justified at its inception and (b) reasonably related in scope to the circumstances that justified the interference in the first place (New Jersey v. TLO, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 ).A justified, minimally intrusive search based on reasonable suspicion. A reasonable search is one that does not invade the expectation of privacy society is prepared to recognize as reasonable (See Terry v. Ohio,  and United States v. Hensley, ).Remember: The U.S. Constitution permits reasonable searches and bans unreasonable searches.Scope is the breadth of the search; where and how far does it go?
26 Reasonableness of a Search: Additional Factors The search of a student is subject to escalating standards of reasonableness depending on several important characteristics associated with the search:Type of search;How intrusive it is;Who performs the search (school officials v. police);Object of the search; andHow imminent is the need that prompted the search(Pitasky, 1998, I.2:5)Individualized suspicion searches should be preceded by a question directly related to the nature of the infraction(e.g., Did you have a knife in the bathroom?)Individualized suspicion searches should be preceded by a question directly related to the nature of the infraction. For example, “Were you smoking on the playground?” The appropriate introductory question serves two purposes: A. Provides notice to the student of the objectionable conduct with which the student has been implicated and B. May obviate the need for a search if the student admits the conduct and/or produces the contraband. It also implies a limitation on the authority for such searches where the reason has been eliminated.What is reasonable depends on the context in which the search takes place. The nature of the infraction can affect whether a search is appropriate. Running in the hall may be a rule violation, but doesn’t justify a search on the basis of that infraction.Among the things to consider is the age of the student the nature of an infraction, the source of information and the search’s intrusiveness.Instructive features from T.L.O.Any search involving an alleged infraction violation requires a reasonable suspicion that evidence sought will relate to the ultimate fact in issue. The validity of search does not depend on whether it will conclusively prove the ultimate fact in issue. The search need only make the existence of the fact at issue either more probable or less probable.
27 Examples of Unreasonable Searches N0T REASONABLE – Teacher reports the student was not “acting right,” was unable to understand the pronunciation of his name where school officials had no prior knowledge of the student (A.H. v. State of Fla., 846. So. 2d 1215 [Fla. Dist. Ct. App. 2003]).N0T REASONABLE – School counselor observed student was “not acting himself,” had bloodshot eyes and that “something wasn’t right,” lacking reasonable suspicion where those characteristics occurred among students not involved with drugs (A.N.H. v. State, 832 So. 2d 1215 [Fla. Dist. Ct. App. 2002]).N0T REASONABLE – Teacher noticed the student had money in his hand and was “fiddling” in his pockets, even though the student had a prior record, had a bad attitude, and school had a growing drug problem (Commonwealth v. J.B., 719 A.2d 1058 [Pa. Super. Ct. 1998]).
28 Examples of Unreasonable Searches Continued N0T REASONABLE - Generalized suspicion based on stale information, previous misbehavior, and heavy use of public telephone (Gordon J. v. Santa Ana Unified School Dist. [App. 4 Dist. 1984] 208 Cal.Rptr. 657, 162 Cal.App.3d 530).N0T REASONABLE - Making "eye contact" and looking back in a general direction while walking did not rise to the level of "objective, articulable suspicion" that defendant was carrying drugs as to justify even limited detention under the Fourth Amendment (U.S.C.A. Const.Amend. 4). (Wilson v. Superior Court of Los Angeles County  195 Cal.Rptr. 671, 34 Cal.3d 777, 670 P.2d 325).
29 Examples of Reasonable Searches REASONABLE - Opening school locker with master key following student report marijuana was in the locker (In re W. [App. 1 Dist. 1973] 105 Cal.Rptr. 775, 29 Cal.App.3d 777).REASONABLE - Search of high school student's locker for handgun, pursuant to information provided by identified mother of another student, was reasonable; five-day-old information was not stale, and search of contents of student's locker was minimal intrusion (In re Joseph G. [App. 4 Dist. 1995] 38 Cal.Rptr.2d 902, 32 Cal.App.4th 1735).Student should be present when searching desk or other district property areas assigned to the student.REASONABLE - In re Fred C., 102 Cal.Rptr. 682.Cal.App.4.Dist.,1972 Where school vice principals had been informed that a student was selling narcotics the vice principals properly interviewed student as part of such investigation and since suspicious circumstances developed at interview where the bulging pockets, student's possession of money a student ordinarily does not carry on his person at school, and student's refusal to permit a search of bulging pockets after voluntarily disclosing contents of pouch attached to his belt, student's refusal to permit search was a circumstance indicating guilt, authorizing principals to search the student in discharge of their duties. West's Ann.Education Code, §
30 Examples of Reasonable Searches REASONABLE – Student was staggering in the hallway and speaking with a slurred speech, behaviors never exhibited by the student in the past and consistent with numerous students encountered in the past under the influence of drugs (In re L.A., 21 P.3d 952 [Kan. 2001]; Greenleaf ex rel. Greenleaf v. Cote 77 F. Supp. 2d 168 [D. Me. 1999]).REASONABLE – Where official relied upon knowledge of gang apparel and observed a student that had, in his back pocket, a bandanna of the color often associated with gangs leading the person to believe a bandanna folded and hanging from a pocket indicated that something was going to happen, the court finding the initial detention, history of gang violence, color and manner of bandanna display justified the search (In Re William V., 4 Cal.Rptr.3d 695 [Cal. Ct. App. 2003]).In re Karena B., 2003 WL Cal.App.4.Dist.,2003 Search of juvenile's backpack and school locker by junior high school's assistant vice principal were reasonable; juvenile was in locker room, unsupervised, for an unusual length of time, juvenile went to locker room to obtain her backpack, soon after juvenile was in locker room several items were reported missing, and locker was searched after items bearing another student's name were found in juvenile's backpack. U.S.C.A. Const.Amend. 4; West's Ann.Cal. Const. Art. 1, § 13.
31 How Long May A Search Remain Justified? A search of a student may be justified even though the information about a student’s possession of contraband on school grounds occurred several days earlier.Span of time – Once a search is initiated, it may be continued until the amount of time becomes too great (hours or days, as opposed to minutes), after which a new reasonable suspicion will be needed (C.S. v. State, 735, N.E. 2d 273 [Ind. Ct. App. 2000]; In re Joseph G., 38 Cal. Rptr. 902 [Cal. Ct. App. 1995]; Wilcher v. State, 876 S.W. 2d 466 [Tex. Ct. App. 1994]).School officials may be justified in searching a student’s desk more than once where a student identified as having possessed a weapon on school property is seen by school officials to have placed a book bag in his desk shortly after school officials had searched the desk and found no weapon. The operative concept is that the span of time must be sufficiently small so that the second search is connected to the reasonable suspicion for the first search. If the amount of time becomes too great (hours or days, as opposed to minutes), a new reasonable suspicion will be essential (C.S. v. State, 735, N.E. 2d 273 (Ind. Ct. App. 2000]; In re Joseph G., 38 Cal. Rptr. 902 [Cal. Ct. App. 1995]; Wilcher v. State, 876 S.W. 2d 466 [Tex. Ct. App. 1994]).
32 Reasonable Suspicion Distinguished from Probable Cause Probable Cause – Fourth Amendment Standard for lawenforcement to justify searchReasonable Suspicion – Fourth Amendment Standard for schoolsto justify searchAmount of InformationIn schools, the amount of information needed is only sufficient probability, not certainty.In criminal law, a tip must be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.Role of InformantIn schools, an anonymous tip is sufficient as long as it contains allegations about a violation of law/rules.Police need the testimony of a reliable informant to meet the probable cause standard.Florida v. J.L., 529 U.S. at 272; Russo, C.J. & Mawdsley, R.D. .In re Fred C., 102 Cal.Rptr Cal.App.4.Dist.,1972 School authorities may not search a student without provocation; such a search is not within scope of their duties, but when purpose of search is within scope of their duties, justification therefore is not measured by rules authorizing the search of an adult by the police. Both the probable cause and reasonable suspicion standards require clear logical relationships between: (1) the particular object sought; (2) a specific illegal activity; and (3) the place to be searched. However, probable cause and reasonable suspicion differ on the degree of certainty required. For probable cause, the belief that evidence of illegal conduct will be found in a particular place must be unequivocally “more-probable-than-not” while the reasonable suspicion standard required only a “sufficient probable” that evidence of illegal conduct will be found in a particular place. It is not necessary to rule out every possible contradictory or innocent belief.The U.S. Supreme Court in T.L.O., held that the Fourth Amendment required that searches of students by school officials only need meet the reasonable standard (applied to both inception and scope of a search) as opposed to the probable cause standard.Reasonable suspicion is a lower standard. The amount of information needed for reasonable suspicion needs to be found somewhere on a continuum between objective certainty at one end and “subjective good-faith belief” at the other.The interest to keep children safe is sufficiently compelling to justify the intrusion on privacy caused by conducting a search; thus the lower standard.Any search requires more than the subjective belief an individual or group possesses contraband.Although schools are not required to evaluate the reliability of a tip, a search based on an informant’s information might be challenged if school officials know the informant to be unreliable. In schools, the source of the information regarding contraband is generally irrelevant.A “reasonable suspicion” for an in-school search requires proof that school officials have specific and articulable facts that, when taken together with the rational inferences from those facts, reasonably warrant the intrusion
33 Involvement of Law Enforcement Which Fourth Amendment standard (Probable Cause/Reasonable Suspicion) applies?Is there a point at which Miranda warnings apply?When law enforcement joins the school, it is recommended that school officials be directly involved in student searches, including the questioning of students to increase the likelihood of keeping the reasonable suspicion standard and inapplicability of Miranda warnings.Education officials frequently request law enforcement participation in searches. When such involvement occurs, the most frequent challenge to the searches and any resultant seizures of contraband revolves around the appropriate constitutional standard to be applied. Probable cause or lower reasonable suspicion? If school officials are held to the probable cause standard, must the school officials and/or law enforcement secure a search warrant before searching students or their property?Generally courts have determined that Miranda warnings, designed to secure an accused person’s constitutional rights against self-incrimination in custodial settings, do not apply to questioning by school officials and law enforcement officers where the students are not in custody (See S.A. v. State, 654 N.E.2d 791 [Ind. Ct. App. 1995]); In re S.K., 647 A.2d 952 [Pa. Super. Ct. 1994]).Courts grant leeway in school officials questioning students without invoking concern about Miranda warnings because school officials are responsible for district actions, determining whether a student should be suspended/recommended for expulsion, lack arrest power and state laws do not invoke student rights to a warning about self-incrimination and presence of an attorney.PROBABLE CAUSE probable cause. 1. Criminal law. A reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime. • Under the Fourth Amendment, probable cause -- which amounts to more than a bare suspicion but less than evidence that would justify a conviction -- must be shown before an arrest warrant or search warrant may be issued. -- Also termed reasonable cause; sufficient cause; reasonable grounds; reasonable excuse. Cf. REASONABLE SUSPICION. [Cases: Arrest 63.4(2). C.J.S. Arrest § 22.] "Probable cause may not be established simply by showing that the officer who made the challenged arrest or search subjectively believed he had grounds for his action. As emphasized in Beck v. Ohio [379 U.S. 89, 85 S.Ct. 223 (1964)]: 'If subjective good faith alone were the test, the protection of the Fourth Amendment would evaporate, and the people would be "secure in their persons, houses, papers, and effects" only in the discretion of the police.' The probable cause test, then, is an objective one; for there to be probable cause, the facts must be such as would warrant a belief by a reasonable man." Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 3.3, at 140 (2d ed. 1992). PROBABLE CAUSE
34 Nexus TestThe reasonable suspicion standard requires a sufficient nexus or connection to exist between:The object sought (contraband);The place to be searched; and theInfractionThe school official must be able to establish (and document) a link (connection/nexus) between the person/place to be searched, the object sought, and the violation of the law and discipline codeNEXUS nexus, n. 1. A connection or link, often a causal one <cigarette packages must inform consumers of the nexus between smoking and lung cancer>. Pl. nexuses; nexus. “Probable cause exists when the information on which the warrant is based is such that a reasonable person would believe that what is being sought will be found in the location to be searched.” ( People v. Stanley (1999) 72 Cal.App.4th 1547, 1554, 86 Cal.Rptr.2d 89.) “Probable cause must attach to each place to be searched. ( Fenwick & West v. Superior Court, supra, 43 Cal.App.4th at pp , 51 Cal.Rptr.2d 294.)NEXUS = Affidavit must establish a nexus between the criminal activities and the place to be searched. ( People v. Hernandez (1994) 30 Cal.App.4th 919, 924, 35 Cal.Rptr.2d 916.) “
35 SCOPE OF SEARCH *The search is permissible in scope when: (a) the measures adopted are reasonably related to the objectives of the search and (b) not excessively intrusive in light of the student's age/gender and the nature of the infraction (New Jersey v. TLO, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 ).* The scope of the search must be reasonably related to the violation, which justified the search. The search cannot be legitimized by what is found.In re Aldo G., 2002 WL Cal.App.4.Dist.,2002 Search on school grounds is permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. U.S.C.A. Const.Amend. 4.
36 Concept of Scope of Search Sequence of the search (order in which places are searched)Selection of first place to be searchedBreadth of search (whether a search can continue if the first place searched did not produce contraband)Scope of search issues focus on the place or places to be searched (Russo & Mawdsley, 2004, p. 27)The scope of a law enforcement officer’s search is determined in much the same manner as a search by a school official. In Interest of Angelia D.B. (564 N.W.2d 6823 [Wis. 1997]), after establishing a reasonable suspicion of having a knife, an assistant principal searched the student’s book bag and locker and found no weapon, at which point the student was taken to the law enforcement officer who pulled up her shirt to reveal a nine-inch knife tucked into the waistband of her hip. The student did not challenge the initial search components but claimed that lifting her shirt above her waistband was excessively intrusive. The court upheld the search indicating the search did not begin at the most intrusive place. Second, the court noted the search ended once the knife was found, thus reinforcing the principle that a continuation of a search after the object of the search has been found would exceed the limit of the scope of a reasonable search under T.L.O.
37 Example: Scope of Search * A school official may not inspect the text of the student’s personal diary while searching for a knife, because reading the text is not reasonably related to the objective of locating a knife.* Scope is about how far you can go and is tied to what you are legitimately searching for.
38 Others Examples: Scope of Search A search for a knife did not justify searching a small zippered side pocket inside a purse (T.J. v. State, 538 So. 2d 1320 [Fla. App. 1989]).A search for stolen coins allows officials to look in very small boxes (Blair v. Commonweath, 225 Va. 483, 303 S.E.2d 881, 886 ).A search for stolen mag wheels does not allow police to search the top shelf of a closet, since the wheels could not fit into such a small space (United States V. Chadwell, 427 F. Supp. 692, 696 [D.Del.1977]).
39 Questions Regarding Scope of Search Where should an employee begin a search if no place has been identified?To the extent no place to begin the search has been identified, would the employee be advised to select a less intrusive place to begin the search?To what extent can an employee continue a search when the contraband that was the object of the search has been found?As a general rule, school officials are unlikely to face adverse legal consequences if they begin a search at the place reported as having the contraband. Searches that begin in other than reported places are usually upheld as long as the place of the first search is reasonably related to the purpose of the search and would have been permissible in any case under the definition of the search’s scope.If there is no specific place reported, known or suspected (Joey has a knife, but I don’t know where he has it), begin the search at a less intrusive point and proceed to more intrusive.The more dangerous the item that is the object of the search (e.g., drugs, weapons), the less likely courts will hold to the inception/scope distinction as long as the places being searched fit within the definition of reasonableness (Interest of Isaiah B., 500 N.W.2d 637 [Wis. 1993]).
40 Scope of Search Continuum Student pockets on personPurse/walletBook bag/ backpackDesk/lockerNext level up would be pat down (not recommended for school employees), then searches prohibited by law for school employees to include exposing undergarments, strip search, and body cavity search.School officials should, as much as possible, avoid physical contact with students being searched, recognizing that courts are not likely to protect such contact unless it involves drugs, dangerous weapons, or threatening behavior. Pat down procedures or other procedures where there is physical contact with the student can lead to Section 1983 claims and state law damage claims under a number of torts such as unlawful imprisonment, battery, and invasion of privacy.In Oliver v. McClung (not a CA case) students touched by the teacher or principal during a strip search were entitled to go to trial on their claim of battery. Battery is generally defined as the intentional harmful or offensive contact with another person with out their consent.
41 Cell Phones Contraband? Does looking at call history, text messages, pictures/videos constitute a search?
42 INTRUSIVENESS OF SEARCH The concept of intrusiveness is embedded in reasonableness and scope.School officials are to consider the contraband, age and maturity of student, and carefully match the sought contraband with the search procedures to be minimally intrusive.As a general rule, officials may search as carefully and meticulously as is consistent with the nature of the objects they are seeking to find.The level of fine scrutiny permitted in searching for a threatening extortionary note will not be considered reasonable for a stolen basketball.
43 Search and Student Gender Student searches shall be made by a staff member of the same gender as the student and whenever possible, will be observed by a second staff member (Board Policy – Search and Seizure).
44 Search Plan Know the contraband Know your facts to establish a reasonable suspicion and what justifies the searchPlan the scope of the search to begin with an opportunity for student to give it up with a questionPlan the maximum intrusiveness and the starting pointIdentify the areas in which the suspected contraband could or could not be keptDocument, document, document
45 Example Search Procedures of Individual Student Take two people to get the studentCarry the student’s personal belongings to the location of the searchKeep the student out of his possessionsTell student to keep his/her hands out of his/her pockets and to follow directions(Heads Up) While en route to the office or location of the searchPrecede search with questions directly related to nature of infraction (Such questions may make the search unnecessary)Backpack/book bagWallet/purses, etc.ClothingStay away areasAvoid touching if at all possibleWhen to get law enforcement involvedParent contact following a search (ASAP, BP )Individualized suspicion searches should be preceded by a question directly related to the nature of the infraction. For example, “Were you smoking on the playground?” The appropriate introductory question serves two purposes: A. Provides notice to the student of the objectionable conduct with which the student has been implicated and B. May obviate the need for a search if the student admits the conduct and/or produces the contraband. It also implies a limitation on the authority for such searches where the reason has been eliminated (Russo & Mawdsley, 2004, p. 21).The principal or administrative designee will strive to contact the parent/guardian of a pupil subjected to an individualized search as soon after the search as possible. (Search and Seizure, BP )
46 Restrictions on Student Searches (Note: This is a real big deal) No search of any body cavity of a student (mouth not a body cavity for these purposes, Penal Code Section 4030, In Law in the School, CDJ)No search involving removal or arranging student's clothing to permit visual inspection of his/her underclothes, breast, buttocks, or genitalia (Education Code Section 49050)No unreasonable searches
47 Consent Searches: Don’t Do It * * Student consent to a search will not legitimatize the lack of a reasonable suspicion.All a student needs to do following a “consent search” is say he/she felt coerced in the presence of school officials, he/she thought there was no other choice than to consent, etc., and the consent will be struck down.Even if it is determined that consent was freely given, it will not operate to validate an otherwise invalid search. Consent is not a means of legitimizing a potentially illegal and improper search (Pitasky, 1998, I.2:64) (See In re Corey L., 203 Cal. App. 3d 1020 [Cal. Ct. App. 1988]).Difference between attempting to avoid the intrusiveness of a search by asking a student to validate the facts of a reasonable suspicion (“Do you or did you not have a knife with you today?” “Were you smoking marijuana in the boys bathroom?” )Avoid“Have you done anything wrong?”“Would you mind if I search your backpack?”
48 Conclusion Remarks/Questions Contraband, search, and seizureSchool officials conduct searches and make seizuresSearches are preceded by a “reasonable suspicion” (justification)Searches must be reasonable; unreasonable searches are prohibited by the U.S. ConstitutionReasonable searches are limited in scope and intrusivenessSeizure of contraband and detention of students
50 CASE STUDY: FACTS Staff member saw 2 students smoking in restroom Student A admitted smoking, student B denied smokingVP searched B’s purse, found cigarettesVP looked further in the purse, found rolling papers, plastic bags, marijuana, and a substantial amount of money.VP confiscated the items and suspended student B
51 Video SurveillanceThe use of video surveillance by authorized staff will be preceded by proper notification of affected persons (Video and Audio Recording, BP ).One form of “proper notification” is a sign containing the following language.The recording of activity by video camera, including occasional monitoring in real time, is used in the open and public areas of these school grounds for the safety of students, staff, and visitors. This language assumes two things. (1) A person may be viewing the camera screens in real time, or may be reviewing tapes at a time after events or activity has been recorded; and (2) the audio capability of the cameras, if any, will be disabled.
52 TYPES OF SUSPICION: INDIVIDUALIZED AND GENERALIZED
53 Individualized Suspicion Suspicion one specific student may have violated the law or district rules
54 Generalized Suspicion Suspicion all members of an accused group may have violated the law or district rules (Alexander B., 1990 and Smith v. McGlothlin, 1997)Search of an entire class, when school officials were not even certain that one of the students was guilty, was far too broad in scope (Bellnier v. Lund, 438 F. Supp. 47 [N.D.N.Y. 1997])
55 Examples Generalized Suspicion In Alexander B. (2nd Dist.  220 Cal.App.3d 1572), the dean, attempting to prevent two groups of students from a clash, received information one member in an identifiable group had a gun. A search of all students in that group for weapons was upheld by the court.A Vice Principal saw 20 students and saw smoking materials being discarded as he approached. Each student was searched individually during a two-hour period. The Court held individualized suspicion was not necessary to determine that a search is reasonable and the search (duration) was not unreasonable since students were required to be in school at that time anyway (Smith v. McGlothlin, 119 F.3d 786 [9th Cir. 1997]).In re Johnny F., 2002 WL Cal.App.2.Dist.,2002 Sufficient articulable facts existed to support objectively reasonable suspicion that someone in school class had tagged school property, and thus school officials were justified in conducting search of students in class for markers used for tagging, where teacher had reported that taggings had occurred during class, and tagging was a violation of school rules. U.S.C.A. Const.Amend. 4.
56 Review When may a search be conducted? Reasonable suspicion or justification to searchWhat are the criteria used to determine if a search was reasonable?Justified at its inception (reasonable suspicion)Reasonable in scope (reasonable related to the objectives of the search)Minimally intrusive given the student's age/gender and the nature of the infractionOverzealous school officials have pressed the bounds of credulity and ventured into interpretive silliness by finding that innocuous items, such as toothpicks holding together a sandwich or a plastic knife to cut fruit included in a lunch by a parent, are weapons justifying a suspension or expulsion.
57 Summary and Conclusion Note: Suspicionless searches (e.g., Metal Detectors) not covered in this presentationIn re Jose Y., 46 Cal.Rptr.3d 268 Cal.App.2.Dist., 2006 Completely random searches of students who enter school grounds are authorized for the purpose of determining whether a weapon is being brought on campus. U.S.C.A. Const.Amend. 4; West's Ann.Cal. Const. Art. 1, § 28(c).
58 Book Bags, Purses, and Other Personal Effects Pupil’s personal possessions and effects fall somewhere on the spectrum between more intrusive searches of the person and the less intrusive search of jointly owned property such as lockers and desks (Pitasky, 1998, I.2:21)A student has only a minimal expectation of privacy regarding the outer touching of a book bag by security (In the Matter of Gregory M., 606 N.Y.S.2d 579 [N.Y. Ct.App.1993])
59 Types of Reasonable Searches In review: Reasonable Search based on individualized suspicionIn review: Reasonable Search based on generalized suspicionTaken out of this presentation: Introducing: Reasonable Search which is suspicionless (must meet all implementation criteria described below to be reasonable).
60 SEIZURE: What may be seized? Any item discovered during a valid and lawful student search that has been properly connected beforehand with a specific infraction (e.g., contraband)It is also possible to have a plain view seizure of contraband
61 Seizure/Detention of Students Seizure includes the willful detention or willful taking of a person or thing.Student constitutional protections apply to the willful detention of a student.
62 Seizure/Detention of Students Continued In the case, In re Randy G. (2001), the California Supreme Court held:Students can be detained for questioning while on school grounds without the detention constituting a violation of the student’s right to be free from unreasonable searches and seizures, even in the absence of reasonable suspicion, so long as such authority is not exercised in an arbitrary, capricious, or harassing manner.The court concluded that moving students about the classroom, or from one classroom to another, sending students to the office, or taking them into the hallway to ask a question would not seem to qualify as a detention as defined in the Fourth Amendment.In re Jose Y., 46 Cal.Rptr.3d 268, Cal.App.2.Dist.,2006 Minor students may be detained without any particularized suspicion, as long as the detentions are not arbitrary, capricious, or for the purposes of harassment.REASONABLE - In re Ubaldo B., 2002 WL Cal.App.6.Dist.,2002 Action of learning director at public middle school, in arranging for minor to be escorted to director's office and questioning him concerning gang graffiti found in boys' bathroom, did not constitute a "detention" under Fourth Amendment; minor's liberty was not thereby restrained over and above the limitations that he already experienced in school. U.S.C.A. Const.Amend. 4.In Re Randy G., 28 P.3d 239, Cal., For purposes of reasonableness analysis under the Fourth Amendment, the intrusion on a minor student occasioned by a temporary detention by school officials is trivial, since the minor is not free to move about during the school day; if the school can constitutionally require the minor's presence on campus during school hours, attendance at assigned classes during their scheduled meeting times, appearance at assemblies in the auditorium, and participation in physical education classes out of doors, liberty is scarcely infringed if a school security guard leads the student into the hall to ask questions about a potential rule violation. U.S.C.A. Const.Amend. 4.
63 Notice and Announcement * * Before actually conducting a search, a school official must give notice and announce their identity and purpose.“My name is (name) and I am (position). I have a reasonable suspicion that evidence of (infraction) will be found at (location) and I will be conducting a search.”
64 Materials on Search and Seizure Glossary for Search And SeizureDefinitionsBoard Policy (Search and Seizure)Publish Powerpoint On Web Site
66 Additional References Russo, C.J. & Mawdsley, R.D. (2004). Searches, Seizures and Drug Testing Procedures: Balancing Rights and School Safety. Horsham, Penn: LRP Publications.Van Dyke. J.M. & Sakurai, M.M. (2006). Checklists for Searches and Seizures in Public Schools. Eagan, MN: Thomson West.
67 Search Procedure: Use of a Metal Detector With and Without Suspicion The use of scanning devices such as metal detectors (or magnetometers) has been deemed a "search" within the meaning of the Fourth Amendment (New Jersey v. T.L.O.  469 U.S. 325, 333; In re William G.  40 Cal.3d 550, 557, 561).In a metal detector search, the object sought is always some type of metal substance, presumably a weapon, which would set off the device. The machinery does the searching for school officials.
68 Use of Metal Detectors in Society AirportsCourt BuildingsLaw Enforcement/Security
69 Exclusionary RuleIn judicial proceedings, any evidence obtained illegally is inadmissible; the search or seizure is then in violation of the Fourth AmendmentMajority of courts have held the “exclusionary rule” doesn’t apply to school disciplinary proceedingsMeans there may have been “mistakes” in the search and seizure that permits students to still be suspended or expelled even though they cannot be prosecuted.School officials are not law enforcement officers, “School officials do not have an adversarial relationship with students,” and “children’s legitimate expectations of privacy are somewhat limited at school.”
70 Search Procedure: Use of a Metal Detector With and Without Suspicion Continued Courts have upheld the reasonable use of a metal detector when the school can demonstrate a strong interest in eliminating the threat of death or serious injury to students and staff posed by knives and, as the evidence in the case law on point indicated (i.e., random metal detector search), the intrusion on the student’s liberty was limited (The People of the State of Cal. V. Latasha W., 60 Cal. App. 4th 1524 (Cal. Ct. App. 1998).
71 Metal Detectors: Restricted to JH/Middle School Campus “The (Bakersfield City School District ) board also finds that random metal detector searches may offer a reasonable means to reduce the weapons and to mitigate the fears of students and staff on our middle school and junior high campuses”(BP – Search and Seizure)(emphasis added).During the school year, Safe School Block grant funding was used to purchase a metal detector for each JH/Middle School campus.
72 Three Ways Metal Detectors May Be Used Individualized – Reasonable search based on individualized suspicionGeneralized - Reasonable search based on generalized suspicionSuspicionless - Reasonable search based on random (or “mass”) search for weapons (Administrative Plan and Report required!)
73 Required Safeguards in Random (or Mass) Use of Metal Detectors Pupils must receive advance notice the school will be using metal detectors (See Notice #1 and Notice #2 below).If a JH/Middle School elects to use random metal detector scans as part of its school safety program, a written notice shall be provided to both the parents and students of that school. This written notice shall briefly describe the school’s use of a metal detector and shall be given upon enrollment and at the beginning of each school year.Additionally, a notice shall be posted at any school using metal detectors to explain that anyone may be scanned by a metal detector for guns, knives, or other illegal weapons when on campus or attending extracurricular events.
74 Required Safeguards in Random (or Mass) Use of Metal Detectors Continued An administrative procedure must be established (and followed) to eliminate arbitrary discretion as to who will be searched (e.g., every student, every fifth student entering the campus will go through the metal detector scan).Review form entitled, “Metal Detection: Administrative Plan and Report.”
75 Examples of How Arbitrary Discretion in a Random (or Mass) Search Can Be Eliminated A Random schedule for metal detector scanning can be implemented by:Scanning every studentScanning every 4th or 10th, or 20th studentIn all cases, an individualized search rising from the metal detector activation detected during a mass or random search would be conducted out of view of other students or the public.
76 NOTICE #2: Posted (Sign) at School Site California law (Penal Code & ) prohibits weapons on or near a school campus. All persons, packages, and containers may be searched in accordance with applicable law. A refusal to submit to a search will result in denial of entry to the school campus.
77 Additional Legal Issues in the Use of Metal Detectors The majority of court cases concerning metal detectors at schools have involved urban schools in large cities. Courts generally have upheld such searches when conducted in a random, suspicionless manner, where they are tied to the purpose of school safety, and the school is located in an area of high crime and violence (Pitasky, 1998, I.2:48).A characteristic of mass searches is that there is no element of individualized suspicion. Every student is subjected to a search on an equal basis.
78 Additional Legal Issues in Metal Detectors Continued A student entering the school building, saw metal detectors, and then revealed his pistol to an officer. The appeals court held that the detention of the student constituted an illegal seizure as the student had been specifically told to walk through the metal detectors even though he was leaving the building (People v. Parker, 672 N.E. 2d 813 [Ill. App. Ct. 1996]).
79 Additional Legal Issues in Metal Detectors Continued The use of metal detectors does not violate a student’s right to be free from unconstitutional searches and seizures. The use of the metal detector must pass the two prong test established in T.L.O.:(1) justified at its inception, and(2) reasonably related in scope to the circumstances that initially justified theinterference.One court ruled a reasonable procedure involved asking students to remove all metal objects to avoid setting off the wand, and the student’s person was searched only if the wand repeatedly indicated the presence of metal (The State of Florida v. J.A., 679 So.2d 316 [Fla.App.1996]).
80 Restriction to Random (or Mass) Searches with Metal Detector Pupils may be required to pass through a metal detector as a condition for entering school premises and as a general matter, no individualized suspicion is necessary to justify the use of this equipment. However, if a student does not willingly subject to the metal detector search and elects to leave the school grounds (elects not to enter the campus) without passing through the metal detector, the school still would need reasonable suspicion to order the student to submit to the metal detector search just as it would in any other student search (People v. Parker, 672 N.E. 2d 813 [Ill. App. Ct. 1996]).
81 Video SurveillanceThe use of video surveillance by authorized staff will be preceded by proper notification of affected persons (Video and Audio Recording, BP ).One form of “proper notification” is a sign containing the following language.The recording of activity by video camera, including occasional monitoring in real time, is used in the open and public areas of these school grounds for the safety of students, staff, and visitors. This language assumes two things. (1) A person may be viewing the camera screens in real time, or may be reviewing tapes at a time after events or activity has been recorded, and (2) the audio capability of the cameras, if any, will be disabled.
82 QuestionsYou know that you lack a reasonable suspicion to conduct a search. You talk to the student and ask for his permission to look inside his backpack. He consents. Will it stand up?
83 Questions ContinuedYou observe a student stagger twice and then walk fine. Nothing else out of the ordinary is known to you. Do you have reasonable suspicion? If yes, what are your articulable facts? If no, what risk would you run if you conducted a search on this person?
84 Questions ContinuedYou heard a rumor, from an unreliable source, there is going to be a serious knife fight at school. In desperation, you are thinking about searching with your metal detector any suspicious student you see, as they enter the campus in the morning. Would any of the searches be legal? If you find something, will the evidence be legally admissible to support a disciplinary action? Why?
85 Questions ContinuedFrom a distance, you see a group of children on the playground passing around a knife. By the time you get to the location, you can identify a group of students you believe had the knife, but don’t know the current location of the knife. No one is talking. What type of suspicion do you have and whom, if anyone, can you search?
86 Questions ContinuedRelative to search and seizure, what benefits accrue to school officials possessing a developed understanding of a student’s civil and constitutional rights?
87 Questions ContinuedToday is a day to conduct a mass (random) metal detector search of students as they first enter the campus. All the prerequisite steps have been taken. Joey is observed as he stands in line to enter the campus. He appears very anxious and repeatedly appears to be counting to determine the likelihood of being scanned. He bolts and runs right before he gets to the gate. What can be done? Why?
88 Definition – Mass (or Random) Search Search, Mass (or Random) - A mass search or random sweep refers to any search in which school officials seek to examine more than one student at a time and do not possess the requisite “reasonable individualized suspicion” or “reasonable generalized suspicion.”
89 Search, ProhibitedProhibited searches include strip searches, body cavity searches, or any search that involves removing or arranging the student's clothing permitting visual inspection of his/her underclothes, breast, buttocks, or genitalia (Education Code 49050). Unreasonable searches are also prohibited.Also, even out of California.School search in which student was required to strip to his underwear while being watched by two school officials in effort to locate another student's ring violated student's clearly established rights in 1992 to be free of searches that were excessive in scope, given student's youth, significant possibility that ring was simply lost and no infraction ever occurred, and nondangerousness of hypothesized infraction. U.S.C.A. Const. Amend. 4; 42 U.S.C.A. § Kennedy v. Dexter Consol. Schools, NMSC- 025, 129 N.M. 436, 10 P.3d 115, 148 Ed. Law Rep (2000).
90 Search, RandomSearch (Random) - A search without an individualized or generalized suspicion a student(s) is violating or has violated law or district rules; every student is subjected to the search on an equal basis.
91 Search, ReasonableSearch, Reasonable – A justified, minimally intrusive search based on reasonable suspicion. A search that does not invade the expectation of privacy society is prepared to recognize as reasonable (See Terry v. Ohio,  & United States v. Hensley, ).