Search and Seizure in the
School Setting
ACSA LEADERSHIP SUMMIT
November 5, 2015
Presented by
Diane Beall
Is There a Search Implicating the
Fourth Amendment?
 Question:
 When is the 4th Amendment
implicated?
 Rule:
 The 4th Amendment applies to
all school searches. Students
have an expectation of privacy
at school.
 Question:
 Did a search, in fact, take
place? If so, what was the
extent of the intrusion?
 Rule:
 Some interactions (questions,
information gathering) do not
implicate the 4th Amendment.
2
Fourth Amendment in Schools
 Searches by school officials must be reasonable.
 Search must be justified at inception and be
reasonably related in scope to initial reason for
search.
 Reasonable means there are specific, articulable facts
to justify a search.
 Reasonableness may be determined by existing
school policies, consent, or exigency.
*New Jersey v. TLO (1985) 469 U.S. 325
3
Resource Officers v. Police Officers
School officials and
school resource officers
need reasonableness
to search.
Police officers need
probable cause to
search students.
4
Search Must be Reasonable at
Inception
Consider whether
conduct violates
school policies,
criminal law statutes
or Ed. Code (e.g.,
cyber bullying).
5
Searches May Be Necessary to
Maintain A Safe Environment
Reasonably suspected serious
violations create a more
significant justification for the
search.
6
Legitimate and Lesser
Expectations of Privacy
 Students have a reasonable expectation
of privacy in personal items.
 Time and location of search: Lesser
expectation of privacy on school
premises during school hours by school
officials and school resource officers.
 Lesser expectation of privacy where
school discipline policies allow
search.
 Search may be based on voluntary
consent of student or specific school
policies.
7
Searches Must Be Permissible In Scope
•
Consider the type of search:
locker, backpack, cell phone,
purse, metal detector, etc.
•
The greater the reasonably
suspected violation, the greater
the justification for the search.
continued …
8
Searches Must Be Permissible In Scope
continued
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
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Consider the initial basis for conducting
the search.
Strong initial basis for search may
create basis for wider scope of search.
Further search may be justified if, in the
course of the search, evidence of
another violation is found.
If items were not found where expected
at the inception of the search, wider
scope of search may be justified.
9
Beyond Reasonable Suspicion
Doctrines
CONSENT
PLAIN
VIEW
EXIGENCY
10
Consent/Waiver
 A search of a student’s personal
items, including a cell phone, is
reasonable if the student gives
voluntary consent to search.
 Consent given under duress, coercion
or threat is NOT voluntary consent.
• If consent is not given, search is still
permissible if it is: (1) justified and
reasonable; (2) is an item of contraband
in plain view; or (3) there is exigency to
conduct an immediate search.
11
Plain View Doctrine
 Under certain circumstances, an
object “in plain view” can be
searched when it is reasonably
believed to be contraband.
 Campus supervisor lawfully in
dormitory observed contraband
and could search it without a
warrant. (Washington v. Chrisman
(1982) 455 U.S. 1.)
continued …
12
Plain View Doctrine, continued
 School resource officer could
detain and search student
where colored, folded bandana
indicating gang activity and
prohibited by school rule was in
student’s pocket in plain view.
(In re William v. (2003) 111 Cal.
App.4th 1464.)
13
Exigent Circumstances
Exigent circumstances are those that require a school official
to act immediately to:
• Ensure safety of students or school staff; or
• Prevent physical or emotional harm to students, school
staff or others;
• Prevent destruction of contraband or other physical
evidence; or
• Maintain a safe school environment.
14
Examples of Exigent Circumstances
 Report of student with guns in backpack in
locker justified immediate search of locker.
(S.C. v. State (Miss., 1991) 583 S. 2d 188.)
 High school supervisor could search student’s
pockets and fanny pack where two students
overheard talking about a “gun on campus”
and student had possessed weapons on
campus in past. State ex rel. Juvenile Dep’t of
Washington County v. DuBois (1991) 110
Or.App.314.
continued ….
15
Examples of Exigent
Circumstances, continued
 Report of noxious odor in library
justified immediate search of
student’s personal items stored in
study carrel (found to contain
marijuana). (People v. Lanthier
(1971) 5 Cal.3d. 751.)
16
Strip and Pat Down Searches
 Strip searches of students are disallowed in
California under Ed. Code section 49050.
 Pat down searches of students are allowed where
reasonable suspicion of contraband exists. (Safford
USD v. Redding (2009) 129 S. Ct. 2633.)
 But, pat down searches at a high school graduation
or prom, without individualized reasonable
suspicion, are unreasonably intrusive. (Herrera v.
Santa Fe Public Schools, et al., 2011 WL 2433050
(U.S. Dist. Ct., New Mexico).
17
RANDOM SEARCHES
 Random, suspicionless searches of students’ personal items in
classrooms during school day unreasonable and held
unconstitutional. (Doe ex rel. Doe v. Little Rock School District
(8th Cir. 2004) 380 F.3d 349.)
 Blanket school search may be justified where school officials
receive specific information giving them reasonable grounds to
believe student safety is in jeopardy. (Thompson v. Carthage
Sch. Dist., (8th Cir. 1996) 87 F.3d 979.)
 “Furtive gesture” in moving to hide an article from school
official did not create reasonable suspicion justifying search
without additional facts. (In re William G. (1985) 40 Cal.3d
550.)
18
Administrative Searches
 Administrative searches (e.g., random drug testing)
involving participants in extracurricular activities have
been held to be reasonable. (Vernonia Sch. Dist. 47J v.
Acton (1995) 515 U.S. 646.)
 Large-scale administrative searches using
magnetometers are generally reasonable: they are
minimally intrusive and identify need for more
intrusive search. (Doe ex rel. Doe v. Little Rock School District
(8th Cir. 2004) 380 F.3d 349.)
19
Admissibility of Evidence
 Question:
 If school officials seize evidence in
violation of the 4th Amendment, is
it still admissible in school
disciplinary proceedings,
including expulsion hearings?
 Rule:
 The exclusionary rule does not
apply to school disciplinary
proceedings, and evidence seized
in violation of the 4th Amendment
can still be used to uphold a
suspension or expulsion.
 Question:
 If school officials seize evidence in
violation of the 4th Amendment,
can it be excluded in
criminal/juvenile proceedings?
 Rule:
 Yes, evidence seized by school
officials in violation of the 4th
Amendment can be excluded at
juvenile or criminal proceedings,
making it unavailable as evidence.
20
Case Study #1: Facts
 One week prior, Principal given information student
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selling drugs, and searched student’s person and
found $300 but no drugs
Next week, student leaving school in morning,
claimed going to family funeral, on pay phone
Family denied funeral, said student drove to school
Student evasive about how he got to school, denies
having car on campus
Principal verifies student’s car IS on campus
21
Case Study #1: Search
 Sheriff’s officer and security guard present
 Principal patted down student, searched
person, found $197 in wallet and keys
 Principal searched locker, no drugs
 Principal directed student to open car,
searched entire car
 In trunk, found cocaine, marijuana and
weighing scales
22
Case Study #1: Analysis
 Was pat down of student justified?
 Was search of pockets, wallet justified?
 Did reasonable suspicion exist to search student’s
locker?
 Was there reasonable suspicion to search student’s
car?
 Did student consent to car search?
How do you think the court ruled?
23
Case Study #2: Facts
 Student identified as possibly smoking marijuana on
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school bus by principal
Principal pulled student from class; student smelled of
marijuana, evaded questions
Principal called in SRO, both took student to office
Student had hands in pocket, had large hidden object
in pocket
Student refused Principal’s order to remove hand and
empty pocket
24
Case Study #2: Search and Analysis
 Principal directed SRO to search student
 SRO reached into pocket, removed firearm
-Was the search justified at its inception?
-If pocket didn’t contain contraband, would a search of
student’s backpack be justified?
-Locker?
-Car?
25
Cell Phone Searches
Reasonableness of search of cell phone depends on
several factors:
If there are policies in place prohibiting
possession, use or display of cell phone,
then cell phone is contraband.
• Which portion of the cell phone
school policy did student violate?
• Extent of student violation of
school policy (possession v. use)
may result in diminished expectation
of privacy.
26
Klump v. Nazareth Area School District (2006) 425
F. Supp. 2d 622 (U.S. Dist. Ct., E.D. Penn.)
 School policy prohibited students from display or use of cell phones, but

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

possession was allowed.
School official confiscated student phone after student accidentally
dropped phone from pocket, thereby displaying it.
Due to display of phone, school officials called classmates listed in
contacts on phone and accessed student’s text messages and voicemails
to see if other students were violating school policy.
Court held reasonable search only allowed confiscation of cell phone,
not “wholesale fishing expedition” into student’s personal life.
Further search of cell phone unreasonable where no evidence existed
that student violated other school policies.
27
But, see J.W. V. DeSoto County School District, 2010
WL 4394059 (U.S. Dist. Ct., N.D. Miss.)
 School policy prohibited use or possession of cell phone at school.
 Student used cell phone in class to retrieve text message.
 Cell phone searched and had pictures with student and another student
holding BB guns.
 School expelled student on grounds that BB gun photos constituted “gang
activity” and student was threat to school safety.
 Court held cell phone was contraband under school policy and search was
justified at its inception.
 It was reasonable for school officials to search cell phone to see to what
extent student was improperly using cell phone, e.g., cheating.
28
(G.C. v. Owensboro Public Schools,
711 F.3d 623 (6th Cir. 2013))
 “Using a cell phone on school grounds does not automatically
trigger an essentially unlimited right enabling a school official
to search any content stored on the phone that is not related
either substantially or temporally to the infraction.”
 Teacher should not have searched a student’s text messages
despite her concern about the student’s suicidal tendencies
and suspected drug use. While the student was upset his
phone had been taken away as a result of texting during class,
teacher not justified in reading text messages without more
information about any threat of harm to the student or others.
29
Questioning / Detaining Students
 Question:
 Question:
 Do school officials have to call
 Do students have to be given
the student’s parents before
they can detain them and
question them?
Miranda warnings before
being questioned by school
officials?
 Rule:
 Rule:
 School officials can detain
 No, unless student is “in
students and question them
for a reasonable length of
time
without
contacting
parents.
custody”
and
is
being
questioned by school official
as “an agent of law
enforcement” [in concert with
SRO or police officer.]
30
COURT DECISIONS ON MIRANDA
IN SCHOOLS
JDB v. North Carolina (2011) 131 S.
Ct. 2394
 13-year-old student
removed from class by SRO
officer regarding stolen
property
 Student questioned by two
administrators, SRO and
juvenile court investigator
 Miranda applied if child was
“in custody”-remanded for
consideration of “all
relevant circumstances”
N.C. v. Kentucky (2013)
 16-year-old student gave
away prescription pills in
school
 Principal and SRO remove
student from class, bring to
school office, close door,
and both question about
pills, student admits and
charged with felony.
 Miranda required because
student in custody
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Thank You!
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