1. Guidance for School Boards and School District Administrators Presented by Robert A. Useted and Erin M. Leach of Shands, Elbert, Gianoulakis & Giljum, LLP Missouri School Boards’ Association Annual Conference October 3, 2015

2. Copyright 2015 - Robert A. Useted

3. ► 4 th Amendment applies to students in public schools ► Established standard of “Reasonable Suspicion” ► Justified at its inception ► Reasonably related in scope to reason for search ► Reasonable cause < probable cause ► Search Warrants not necessary for school officials ► Rejects the “in loco parentis” doctrine in this context Copyright 2015 - Robert A. Useted

4. ► Reasonable Grounds for suspecting that intended search will reveal evidence that student has violated law or school rules. ► A school official has “reasonable suspicion” if he/she is aware of facts and information that would lead a reasonable person to suspect a violation and that evidence of it can be found in a certain place. ► Not a mere “hunch.” Copyright 2015 - Robert A. Useted

5. ► Nature of the potential harm (street drugs or weapons > looking for stolen property) ► and ► Why you are searching THIS student: “individualized suspicion” Intrusiveness of the search: (Search of locker < search of pockets < strip search) Copyright 2015 - Robert A. Useted Versus

6. Evidence discovered in an illegal search can’t be used against a defendant in a criminal case (or against a juvenile in a delinquency proceeding) BUT This rule DOES NOT APPLY to student discipline proceedings Copyright 2015 - Robert A. Useted

7. ► Schools NOT required to notify parents (or obtain their permission) prior to conducting search. ► If school policy requires notifying a parent before searching a student, follow the policy; otherwise, notify the parent afterward. Copyright 2015 - Robert A. Useted

8. ► How intrusive is the search? It’s a continuum: vehicles/lockers, bookbags, jackets, pockets, shoes, waistbands... ► Strip search: PROHIBITED under Missouri statute (R.S.Mo.§167.166) except under very limited circumstances; statute defines the term to include inspection of a student’s undergarments ► A matter of life and death; strip search is off-the-charts intrusive Copyright 2015 - Robert A. Useted

9.  Use least intrusive means to accomplish search objectives  No broader in scope or longer in duration than reasonably necessary to locate specific items being sought Copyright 2015 - Robert A. Useted

10.  Less intrusive than more “personal” kinds of searches  Students should be warned that vehicles and/or lockers may be searched based on reasonable suspicion  Policy should tell students it’s not YOUR locker, it’s OUR locker Copyright 2015 - Robert A. Useted

11.  SROs must have probable cause and a search warrant unless the search falls into one of several very narrow exceptions.  SROs should not become involved in administrative searches unless specifically requested by the school to provide security, protection, or for handling the contraband.  SROs should NEVER request that an administrative search be conducted for law enforcement purpose or to have the official act as his/her agent. Copyright 2015 - Robert A. Useted

12.  SROs can be present for any student searches, so long as not conducting or directing the search  Serious / dangerous situations, e.g., firearm  When it is probable that the issue is a criminal one as opposed to non- criminal violation of the Code of Student Conduct ◦ Example: If drug dog alerts on locker, law enforce- ment officer would have probable cause to conduct a search, but he will first have to obtain a search warrant Copyright 2015 - Robert A. Useted

13. Riley v. California – U.S. Supreme Court, 2014  Search of cell phone in connection with traffic stop – not qualified as a “search incident to arrest” because cell phone contains a huge amount of information. Holds that cell phone searches implicate “greater individual privacy interests” than other searches.  Don’t assume you have the authority to view pictures, videos, texts, or records of calls unless the student was using/possessing the cell phone in violation of school rules -- & be careful even then! Copyright 2015 - Robert A. Useted

14. Gallimore v. Henrico County School Board (E.D. Va. August 2014)  Dismisses most of a claim against school officials for a student search involving “long-haired student,” but doesn’t dismiss claim against principal for searching cell phone because the stated purpose of the search was to look for drugs.  Court found search was “reasonable” at its inception – because this was long- haired student who had been reported to have used marijuana on school bus.  BUT, exceeded the scope of the reason for the search (clearly the cell phone could not contain marijuana).  Does NOT hold that students cell phone can’t be searched – only that the record of facts before the court didn’t justify this search. Copyright 2015 - Robert A. Useted

15.  ANSWER: YES, probably, but in a limited way.  T.L.O. recognized a school district’s substantial interest in maintaining order and ensuring safety.  This interest is far more compelling in today’s post-Columbine, post-Sandy Hook era.  Probable that since school searches are conducted by school officials and not police, T.L.O. will be deemed applicable to a smart phone and “reasonable suspicion” is standard. Copyright 2015 - Robert A. Useted

16.  If you have reasonable suspicion to expect something on cell phone will show a violation of law or school rules, search ONLY the area of the phone consistent with suspicion.  Examples: ◦ If you have reasonable suspicion to expect cell phone contains pornography, may check specifically for that and, if found, report to police and go no further into phone. ◦ If you have reasonable suspicion to expect text messages with another student about a drug purchase, check only the text messages. Copyright 2015 - Robert A. Useted

18. School Response  Seized phone which had fallen out of student’s pocket  Accessed text messages and VM (found possible drug activity)  Called classmates in his contacts list  Had text conversation with student’s brother without identifying themselves Copyright 2015 - Robert A. Useted

19. Ruling  Search reasonable at inception, but not in scope because it was not reasonable to search for additional violations, or to use phone to catch other students violating rules (violated 4 th Amendment) Copyright 2015 - Robert A. Useted

20. Facts  Student observed using phone (while reading text message from father) in violation of school policy School Response  Seized phone  School officials AND local law enforcement viewed pictures  Suspended for depicted “gang activity” Copyright 2015 - Robert A. Useted

21. Ruling  Court believed it was reasonable to search a phone to determine “to what end” the student was improperly using the phone.  However, search was beyond scope of original infraction, so pictures could not be used to justify suspension.  Court dismissed case as to individual defendants, but case against school district remained. Copyright 2015 - Robert A. Useted

22. Facts  Out-of-District student with prior drug and suicide issues was given “last-chance” to continue attending  Then, caught texting in class Copyright 2015 - Robert A. Useted

23. School Response  Seized cell phone  Reviewed 4 text messages: “to see if there was an issue with which I could help him so that he would not do something harmful to himself or others”  Privilege of attending out of District revoked Ruling  Search was unreasonable and was not justified at its inception! School failed to demonstrate why these facts indicated to them a search of the phone would reveal evidence of a crime, impending school rule violation, or potential harm to anyone 4 th Amendment claim and the due process claim survive Copyright 2015 - Robert A. Useted

24.  Search should be directly related to and arise from the infraction.  Search is limited to the infraction.  Search must be reasonably likely to lead to actual evidence of the infraction. Copyright 2015 - Robert A. Useted

25.  Becoming more and more an everyday fact of life: access to public buildings, airport security  Relatively non-intrusive  Usually lacking in individualized suspicion: everybody passes through them on the way in, but this is generally OK BECAUSE they are relatively non-intrusive Copyright 2015 - Robert A. Useted

26.  Randomly sniffing student property  Randomly sniffing lockers, air, cars in parking lot  It is risky to use scent dogs to examine a student’s person, including their clothing while they are wearing it. Copyright 2015 - Robert A. Useted

27.  Random testing approved by the Supreme Court in two narrow and divided decisions:  Vernonia, in 1995, a 6-3 decision; drug testing for athletes; serious drug problem at school; athletes were leaders in the “drug culture”; and athletes at increased risk of illness or injury from drugs  Earls, in 2002, a 5-4 decision; some of the above factors were missing; approves random testing of athletes and participants in other competitive, extracurricular activities  Testing may be a condition for return to school if a student has violated drug rules Copyright 2015 - Robert A. Useted

28.  School officials’ authority to search students is not affected by their being off campus IF it is for a school-sponsored activity or on a school bus.  Otherwise, school officials’ authority to search students probably stops at the property line. Copyright 2015 - Robert A. Useted

29. ►The authority to search students is inherent in the teacher’s/administrator’s position ►Two cases apply the T.L.O. “reasonableness” tests to searches of non-students on school property ►The law on this subject is not well-developed Copyright 2015 - Robert A. Useted

30.  Stricter security measures, including searching, can probably be justified for alternative schools for individuals with discipline histories  This is almost certainly not true for special education facilities Copyright 2015 - Robert A. Useted

31.  Are there any questions which have not been answered to this point? Copyright 2015 - Robert A. Useted