TIPS FOR CHALLENGING
SCHOOL SEARCHES &
INTERROGATIONS
Randee J. Waldman
Barton Juvenile Defender Clinic
Emory University School of Law
rwaldm2@emory.edu
404-727-6235
Tobie J. Smith
Legal Aid Society of Birmingham
smithto@uccal.org
205-264-8071
NJDC Leadership Summit– October 2011
Road Map for this Session
2




Background on Criminalization of Student
Behaviors and School Resource Officers
Search and Seizure Law
Interrogations Law
Practice Tips
3
Background:
Criminalization of Student Behavior
Criminalization of Student Behaviors
4


Youth crime declined 50% between 1992 and 2003
BUT schools reporting at least one crime to law enforcement
rose from 57% to 63%
Common school charges:




disturbing peace
disorderly conduct
terroristic threats
Increase in school-specific offenses:




school fights
disrupting school assembly, class
talking back to teachers
loitering or trespassing on school grounds
Disproportionate Racial Impact
5
Judith Browne, Advancement Project, Derailed: The Schoolhouse to Jailhouse Track 18-19 (2003)
School Resource Officers
6

Depending on district, may be employed by:
 Local
law enforcement
 School system

TRIAD Model
 Teacher
 Counselor
 Law

enforcement officer
Look to MOUs for specific duties
Schools with Security Officers/Police by
Type of School
7
Public School Practices for Violence Prevention and Reduction: 2003-04, NCES (Sept. 2007)
Schools with Security Officers/Police by
Minority Enrollment at School
8
Public School Practices for Violence Prevention and Reduction: 2003-04, NCES (Sept. 2007)
Percent of HS Students Subjected to School Searches
9
Rachel Dinkes et al., Indicators of School Crime and Safety: 2007, National Center for Education Statistics (Washington, DC 2008)
10
Searches & Seizures in School
Searches at School
11


Fourth Amendment applies (New Jersey v. T.L.O.)
Standard varies depending on
 Who
initiated search?
 Who performed search?

If student consents to search:
 probable
cause/reasonable suspicion not required
 consent cannot be established by merely showing
“acquiescence to a claim of lawful authority.”
 consent must be voluntary (totality of circumstances)
Searches By School Officials
12
New Jersey v. T.L.O., 469 U.S. 325 (1985)
 Fourth Amendment (through 14th amendment)
applies to searches conducted by public school
officials

Warrant and Probable Cause not required

Reasonable Suspicion Standard
Searches By School Officials
13
The Test for Reasonable Suspicion:

justified at inception, and

reasonable in scope
Justified at Inception

14
“Reasonable grounds for suspecting that the
search will turn up evidence that the student
has violated or is violating either the law or the
rules of the school” (T.L.O.)
Justified at Inception
15
What is reasonable?




Reliable tips (including
anonymous tips with
specifics)
Direct observations
Prior history (needs to be
related; varies by juris.)
Common sense conclusions
about individual behavior,
when more than a hunch
What is not reasonable?




Student’s status as rule
breaker
Hunches or rumors
Association with
wrongdoers
Furtive gestures or noncooperation
Reasonable in Scope
16

Means of search must be reasonably related to
objectives, and

Not excessively intrusive

In light of age and sex of student, and

Nature of infraction
Reasonable in Scope
17

Courts weigh intrusiveness of search against the
school’s interest

Nature of the offense implicates the importance of
the school’s interest
 Drugs
and weapons – legitimate interest
 Stolen money – low interest
Reasonable in Scope
18

What is reasonable in
scope?






Pat frisks
Pockets
Strip Searches
Purses
Lockers
Handcuffs

What is not reasonable in
scope?






Pat frisks
Pockets
Strip Searches
Purses
Lockers
Handcuffs
Applying the New Jersey v. T.L.O.
Framework…
19
Stafford Unified School District #1 v. Redding, 129 S. Ct. 2633
(2009).

School vice principal had reasonable suspicion to search a 13 year old
girl for common pain killers where another student reported girl was
involved in drug distribution at school

Scope of search was neither justified nor permissible where the vice
principal required student to pull out her underwear. There was no
indication that student was a danger to other students or that the vice
principal had reason to believe student was carrying pills in her
underwear.
Group Searches at School
20

No need for individualized suspicion when:




Privacy interests are minimal
Important gov’t interests would be placed in jeopardy by a
requirement of individualized suspicion
Pat / Cursory searches more likely to be acceptable
Searches for drugs or weapons more likely to be acceptable
Searches By Police at School
21

Exclusively By Police = Probable Cause

Not requested or authorized by school officials

Clearest example: detective comes to school to
investigate a crime that occurred off-campus
School Officials and Police
22


Standard depends on level of police involvement
Factors include:
Who initiated or requested the search?
 Did school officials authorize the search?
 Who conducted the search?


Always argue probable cause when officers are
involved
School Resource/Liaison Officers
23


Nationally, more often than not, SROs are
considered school officials for purposes of search
and seizure
Factors courts consider include:

Nature of employment
 Are they
employed by the school or members of the police
force?
 Look to Memos of Understanding and/or other school
policies

Nature of job responsibilities within the school
 Is the
SRO furthering educationally-related goals?
Brief Detention / Questioning
24

Many courts have held that school officials,
including SROs, have the authority to briefly detain
and question a student on less than reasonable
suspicion
Can stop to ask for program card, etc.
 Cannot be arbitrary, capricious or harassing

25
Interrogation in School
Interrogations in School
26

Two-Part Inquiry:
 Is
the statement voluntary
 If not
voluntary, cannot be used even for
impeachment purposes
 Is
the waiver of Miranda:
 Knowing,
 Intelligent, and
 Voluntary
Voluntariness: Factors to Consider
27

Coercion
Threats / brutality
 Length of interrogation
 Did the child’s age make him susceptible to coercion?
 Did officials exploit the child’s mental impairment to
elicit the statement?





Influence of Drugs / Alcohol
Promises
Lack of Miranda during a custodial interrogation
School Setting?
Are Miranda Warnings Required?
28

Is the interrogation custodial?
 Objective test: Reasonable person standard
 Whether a
reasonable person would feel that he or
she was not at liberty to terminate the interrogation
and leave. Thompson v. Keohane 516 U.S. 99, 112 (1995)
 Whether there is a “formal arrest or restraint on
freedom of movement” of the degree associated
with a formal arrest. CA v. Beheler 463 U.S. 1121, 1125 (1983)
Custody Analysis: Impact of Age
29

J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011):
 Child’s
age has a bearing on the Miranda analysis if the
child’s age was known to the officer, or was objectively
apparent to a reasonable officer.
 “A child's age is far ‘more than a chronological fact.’ It
is a fact that ‘generates commonsense conclusions
about behavior and perception.’ Such conclusions
apply broadly to children as a class. And, they are selfevident to anyone who was a child once himself,
including any police officer or judge.” (internal
citations omitted)
Custody Analysis: Factors to Consider
30

Who conducted the interrogation?
 School official = almost never custodial
In what capacity is the school official acting? For
an educational purpose?
SROs treated more like law enforcement in this
analysis




Who was present for the interrogation?
 Police / SRO presence increases likelihood of
custodial finding
Circumstances of questioning
 Was the student mandated to report to the
office?
Voluntariness and Custody:
Impact of School Setting
31

“the effect of the schoolhouse setting cannot be
disentangled from the identity of the person questioned.
A student—whose presence at school is compulsory and
whose disobedience at school is cause for disciplinary
action—is in a far different position than, say, a parent
volunteer on school grounds to chaperone an event, or
an adult from the community on school grounds to
attend a basketball game. Without asking whether the
person ‘questioned in school’ is a ‘minor,’ the coercive
effect of the schoolhouse setting is unknowable.” J.D.B. v.
North Carolina, 131 S. Ct. 2394, 2405 (2011)
Waiver of Miranda
32

Was a Miranda waiver knowing, intelligent and
voluntary?
 Totality
of Circumstances Test, Fare v. Michael C., 442 U.S. 707 (1979).
 Juvenile’s
age, experience, education, background,
intelligence
 Whether juvenile understands the warnings, nature of 5th
Amendment rights, and consequences of waiver
 Context of questioning, including relationship with
questioner
 Interested Adult
Rule (minority of jurisdictions)
33
Discovery
School-Based Discovery
34

Methods:
 Subpoenas
 Open
Records/Freedom of Information requests
 Client Releases
School-Based Discovery
35

Documents relating to relationship between SRO
and local police department
Policies
 Employment documents
 Memorandum of understanding
 Training manuals
 Student handbooks

School-Based Discovery
36

Documents relating to the incident
Miranda waiver forms
 Police reports
 School reports
 Witness statements
 Surveillance videos
 Records from any discipline proceedings

 Both
formal and informal
School-Based Discovery
37

Client Records
Transcripts, progress reports, standardized testing,
attendance records
 Special education records



Referrals for special education, evaluations, IEPs
Discipline records

School level and formal
Correspondence between the school and the parent /
guardian
 Mental health/counseling records

38
Practice Tips
Practice Tips: Filing the Motion
39


Always consider filing a motion to suppress
Benefits:
 May
lead to dismissal of the case
 May weaken prosecution’s case, leading to a reduction
in charges / better chance of prevailing in court
 Offers significant opportunities for discovery
 Preview of
prosecutor’s case
 Get a trial run at cross-examination of prosecutor’s
witness(es)
 Lock witness in to version of events (impeachable)
Practice Tips: Filing the Motion
40

Allege violations of both Federal and State
Constitutions and Statutes
 States
often provide greater protections than the
U.S. Constitution

Allege both involuntary and not an intelligent,
knowing and voluntary waiver of Miranda
 An
involuntary statement cannot be used even for
impeachment purposes

Look to the law in other states for support
Practice Tips: Preparing for the Motion
41


Consider retaining an expert
If funds are lacking, be creative:
 Psychologists
/ therapists who have worked with the
child
 School special education personnel
 School
psychologists, special education teachers, etc.
42
Practice Tips: Arguing the Motion
SIMULATED CROSS-EXAMINATION