SearchSeizureSchools.. - BCSD Static Server

Bakersfield City School District
Instructional Support Services Division
Student Services Department
Randall Ranes, Director
October 2012
Search Defined
Search - 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, [2006])
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)
Seizure Defined
Seizure (of property) includes a meaningful
interference with a person's rights in possessing
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
Presentation Summary
Define and illustrate contraband, search, and seizure.
Describe “school official” as the only position authorized
to conduct a search and make a seizure.
Identify the factors giving rise to a “reasonable
suspicion” and a 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.
What is Prohibited?
Unreasonable searches
Unreasonable seizures
A legal and reasonable search must begin with the
school official having knowledge concerning the
contraband to include the possible location(s)
constituting a “reasonable suspicion” a student
possesses contraband. This knowledge also sets the
parameters for the reasonable scope of the search
and how intrusive the search may be.
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)
Contraband Illustrated
Illegal items
Items that are not illegal to possess but are dangerous
and cannot be brought onto school property (e.g.,
Items board policy prohibits even though not otherwise
dangerous or illegal (e.g., laser pointer, cell phone)
◦ Illegal for everyone to possess (e.g., methamphetamine)
◦ Illegal for students to possess (e.g., marijuana, tobacco,
Hypothetical #1.
A student reports he observed another student, Joe, show a
knife to a third student and then put the knife in his backpack.
Do we have the authority to conduct a search?
If not, what else would we need to know?
If so, what next steps would we want to take?
Do we have a reasonable suspicion or justification?
Assuming we conduct a search
What person(s) should do it?
What logistical issues should be considered?
What steps could we take to minimize the intrusiveness of the search?
Where would the search begin?
How would the scope of the search be limited?
How would we make sure the search is reasonable?
What search techniques and procedures should be used?
(see “Search Considerations” and “Search Procedures” sections of
Student Search Checklist)
Example Search Procedures of
Individual Student
Take two people to get the student
Carry the student’s personal belongings to the location of the search
Keep the student out of his possessions
Tell student to keep his/her hands out of his/her pockets and to follow
(Heads Up) While en route to the office or location of the search
Precede search with questions directly related to nature of infraction
(Such questions may make the search unnecessary)
Backpack/book bag
Wallet/purses, etc.
Stay away areas
Avoid touching if at all possible
When to get law enforcement involved
Parent contact following a search:
The principal or designee shall notify the parent/guardian of a
student subjected to an individualized search as soon as possible
after the search. (Board Policy 601.11)
General Definition of Student
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.
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
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 [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.
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).
Consent Searches: Insufficient
Justification to Initiate a Search
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
 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]).
What position can conduct a search?
School administrators
 Any school personnel authorized by the school
board to conduct searches (Usually the principal,
vice-principal, dean, principal designee, or campus
supervisor. The usage of “school officials” does not include
◦ 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).
Search and Student Gender
Student searches shall be made by a staff
member of the same gender as the student
AND will be observed by a second staff
member (Board Policy 601.11 – Search and
What Conduct Amounts to a
Search? *
* 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.
Opening any closed container
Prying open locked containers
or possessions
Examples of student search
Enlarging the view into closed
or locked areas
Physically examining the
student’s “person”
Looking through personal
Taking extraordinary steps to
penetrate natural or other
barriers that screen activities
or possessions from open
public view
Handling or feeling any closed
item to determine its contents
Examining the contents of a
personal electronic device (cell
Protected Places or Things in the
School Setting
The student’s person and any immediately connected item
Enclosed stalls within public restrooms, dressing areas, and
similar spaces when occupied by a student
Any closed opaque container
Papers, notes, ledgers, calendars, appointment books,
literature, and the like
(Van Dyke & Sakurai, [2006], p. 19)
Search of School Properties
Lockers and student desks are under the
joint control of the student and the district.
School officials have the right to open and
inspect any locker or 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
The "reasonableness" of a search depends on two
(1) whether there is individualized suspicion that
the search will turn up evidence of a student's
violation of the law or school rules; and
(2) whether the search is:
(a) reasonably related to the objectives of the search; and
(b) not excessively intrusive in light of the student's age,
gender, and/or the nature of the infraction.
Remember: The U.S. Constitution permits reasonable
searches and bans unreasonable searches.
Scope of Search:
Scope of search is a three-part concept:
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)
Scope of Search
A 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
alleged 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
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.
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
contraband sought with the search procedures so
the result is a minimally intrusive search.
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 (contrast
prohibited chewing gum with locking blade knife).
Restrictions on Student Searches
(Note: This is a real big deal)
No search of any body cavity of a student
(mouth is not a body cavity for these
purposes, Penal Code Section 4030)
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
Hypothetical #2.
Two students report they saw student Alena on the campus
with a plastic bag containing a green and yellow substance.
Do we have a reasonable suspicion or justification to conduct
a search?
If so, what would be the contraband we would be seeking?
Where would we start the search to meet the “least
intrusive” standard?
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 [1985]; In re Lisa G., 23 Cal.Rptr.3d 163
Public and Plain View
Are 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 intrusion on any
justified privacy interest.
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.
Examples of Information Used to Validate
Actual observations of illicit activity
Tips or information from a reliable (may
be anonymous) source
Violation of school policy related to
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])
Questions Regarding Scope of
Search: Starting Point
Where should an employee begin a
search if no place has been identified?
To what extent can an employee continue
a search when the contraband that was
the object of the search has been found?
Scope of Search Continuum:
Most Intrusive
Less Intrusive
Least Intrusive
Student pockets
on person
 Purse/wallet
 Book bag/
 Desk/locker
Other 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 (magnesium) 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]).
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)
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?)
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]).
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).
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).
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]).
Examples (from Case Law)
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).
Breadth of Search:
How Long May A Search Remain
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]).
Reasonable Suspicion
Distinguished from Probable Cause
Probable Cause – Fourth Amendment Standard for law
enforcement to justify search
Reasonable Suspicion – Fourth Amendment Standard for
school officials 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].
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
Nexus Test
The reasonable suspicion standard requires a sufficient
nexus or connection to exist between:
The object sought (contraband);
The place to be searched; and the
The 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 code
Cell Phones
 Does looking at call history, text
messages, pictures/videos constitute
a search?
Search Plan
Know the contraband
Know your facts to establish a reasonable
suspicion and what justifies the search
Plan the scope of the search to begin with an
opportunity for student to give it up with a
Plan the maximum intrusiveness and the
starting point
Identify the areas in which the suspected
contraband could or could not be kept
Document, document, document
The School, Students, and
Constitutional Guarantees
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 (e.g., no
search warrant needed for school officials to
Fourth Amendment of the U.S.
Constitution (Privacy)
The Fourth Amendment of the U.S. Constitution
prohibits unreasonable search and seizure; it
applies to students in the school setting.
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)
Potential Actions and/or Claims Arising
from Violations of Civil and Constitutional
Lawsuit for injunction relief, damages, and attorneys’
Uniform Complaint Procedure
Disciplinary action against the offending employee or
the failure of supervisor to take appropriate action
Commission on Teacher Credentialing – Denial,
suspension, or revocation of certificate/credential
Punitive damages - District employees who knowingly
and regularly violate these rules could be individually
liable for damages
Lawsuits 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
Conclusion Remarks/Questions
Contraband, search, and seizure
School officials conduct searches and make
Searches are preceded by a “reasonable
suspicion” (justification at the inception of
the search)
Searches must be reasonable; unreasonable
searches are prohibited by the U.S.
Reasonable searches are limited in scope
and intrusiveness
Seizures can occur in two ways: contraband
and detention of students