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STUDENT SEARCHES AND SEIZURES: LEGAL STANDARDS, POLICY, AND PROCEDURES

STUDENT SEARCHES AND SEIZURES: LEGAL STANDARDS, POLICY, AND PROCEDURES. Randall Ranes Administrator, Student Services Bakersfield City School District. Presentation Goals. Use applicable law to enhance school safety and fulfill the duty to protect

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STUDENT SEARCHES AND SEIZURES: LEGAL STANDARDS, POLICY, AND PROCEDURES

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  1. STUDENT SEARCHES AND SEIZURES: LEGAL STANDARDS, POLICY, AND PROCEDURES Randall Ranes Administrator, Student Services Bakersfield City School District

  2. Presentation Goals • Use applicable law to enhance school safety and fulfill the duty to protect • Be fully empowered to act appropriately in areas of search and seizure • Fulfill job responsibilities without violating a student’s civil rights • Avoid the consequences of acting outside the law and policy in the area of search and seizure • Identify the factors giving rise to a “reasonable suspicion” • List the legal rules that justify a student search • Describe the legal rules to determine if a search was reasonable • Limit searches to areas likely to contain suspected contraband (limit scope of a search) • Define, compare, and contrast between individualized suspicion and generalized suspicion • Describe parameters for accepted procedures for the seizure of property and the detention of students

  3. Search Defined • Search – A governmental (e.g., school) intrusion into an area in which a person has a reasonable expectation of privacy (Terry v. Ohio, [1968] 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889)

  4. Seizure Defined • Seizure (of property) includes a meaningful interference with a person's possessory interests in that property • Seizure, 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 detained

  5. Fourth Amendment - 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 [1967] 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576)

  6. Which Individuals Are Protected by the Constitutional Guarantees? Citizens/persons Anyone directly affected by a state law(Kentucky Finance Corp. v. Paramount Auto Exchange, 262 U.S. 544, 43 S.Ct. 636, 67 L.Ed. 1112 [1923]). 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.

  7. Is Privacy Important in Today’s World? • Secure in their person • Secure in their house • Secure in their papers and effects

  8. Student Searches and Contraband • All student searches involve contraband • Contraband includes all substances that law, school policies and rules forbid students to possess • Diligent 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)

  9. Contraband Illustrated • Illegal items • Illegal 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 phones, beepers)

  10. 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.

  11. 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 person Looking through personal possessions Handling or feeling any closed opaque item to determine its contents Opening any closed opaque container Prying open locked containers or possessions Enlarging the view into closed or locked areas Taking extraordinary steps to penetrate natural or other barriers that screen activities or possessions from open public view What Conduct Amounts to a Search?

  12. Protected Places or Things in the School Setting • The student’s person and any immediately connected item • Enclosed stalls within public rest rooms, dressing areas, and similar spaces when occupied by a student • Any closed opaque container • Papers, notes, ledgers, calendars, appointment books, literature, and the like • Any school property assigned for a student’s individual use Van Dyke & Sakurai, 2004,2-2 & 2-3

  13. 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 search • Scope of search • Intrusiveness of search

  14. Who can conduct a search? • School administrators • Any school personnel authorized by the school board to conduct searches as follows • 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 601.11) (emphasis added)

  15. Fundamental Search Rules Gotta have a good reason and a plan! 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 [1985]).

  16. 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

  17. What is prohibited? • Unreasonable searches • Unreasonable seizures

  18. INCEPTION OF THE SEARCH: When May a Search be Initiated? Gotta 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.

  19. Justified 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 [1985]). 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.

  20. Examples of Information Used to Validate the INCEPTION OF A SEARCH and Give REASONABLE SUSPICION • Actual observations of illicit activity • Tips or information from a reliable (may be anonymous) source • Violation of school policy • Identification 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])

  21. Examples (from Case Law) Continued • Present behavior of a student, compared with past observations of the student’s behavior that are compatible with drug use • Present 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 contraband • Statements 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 search shall be documented in writing by the school official (Board Policy 601.11 – Search and Seizure).

  22. 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 [1985]) • 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, [1968] and United States v. Hensley, [1985]) • Remember: The U.S. Constitution permits reasonable searches and bans unreasonable searches

  23. 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; and • How imminent is the need that prompted the search (Pitasky, 1998, I.2:5)

  24. Examples of Unreasonable Searches • N0T REASONABLE – Teacher report 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])

  25. 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 [1983] 195 Cal.Rptr. 671, 34 Cal.3d 777, 670 P.2d 325)

  26. 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)

  27. 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])

  28. 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])

  29. 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

  30. Reasonable Suspicion Distinguished from Probable Cause • Probable Cause – Fourth Amendment Standard for law enforcement to justify search • Reasonable Suspicion – Fourth Amendment Standard for schools to justify search • Amount of Information • In 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 Informant • In 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. (2004).

  31. Exclusionary Rule • In judicial proceedings, any evidence obtained illegally is inadmissible; the search or seizure is then in violation of the Fourth Amendment • Majority of courts have held the “exclusionary rule” doesn’t apply to school disciplinary proceedings

  32. 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 [1985]) • 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

  33. Concept of Scope of Search • Sequence of the search (order in which places are searched) • Selection of first place to be searched • Breadth of search (whether a search can continue if the first place searched did not produce contraband)

  34. 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

  35. 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 [1983]) • 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])

  36. 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?

  37. Scope of Search Continuum • Student pockets on person • Purse/wallet • Book bag/ backpack • Desk/locker

  38. 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 601.11 – Search and Seizure).

  39. Example Search Procedures of Individual Student • (Heads Up) While en route to the office or location of the search • Precede search with questions directly related to nature of infraction (May search be made unnecessary?) • Backpack/book bag • Wallet/purses, etc. • Clothing • With a little help from your friend(s) • Stay away areas • Avoid touching if at all possible • When to get law enforcement involved

  40. 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

  41. 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 PC 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

  42. Consent Searches: Don’t Do It • Student consent to a search will not legitimatize the lack of a reasonable suspicion • All a student need 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])

  43. TYPES OF SUSPICION: INDIVIDUALIZED AND GENERALIZED

  44. Individualized Suspicion • Suspicion one specific student may have violated the law or district rules

  45. 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])

  46. Examples Generalized Suspicion • In Alexander B. (2nd Dist. [1990] 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 VP 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])

  47. Drug Sniffing Dog Gone Bad

  48. 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

  49. Search of School Properties Continued • School officials need to give prior notice that lockers/desks will be subject to regular inspection. Notification may be made through the school handbook and/or posting on the school bulletin board. Notice is given to all students when lockers/desks are assigned • NOTICE: For health and safety reasons, a general inspection of school properties such as lockers and desks may be conducted on a regular, announced basis, with students standing by their lockers or desks. Any items contained in a locker shall be considered the property of the student to whom the locker/desk was assigned

  50. 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])

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