Guidance for School Boards and School District Administrators · Guidance for School Boards . and...

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

► 4th 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


► 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

► 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)


Versus

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


► 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.


►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


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


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


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.


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 enforcement officer would have probable cause to conduct a search, but he will first have to obtain a search warrant


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!


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.


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.


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.


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


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 4th Amendment)


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

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.


Facts Out-of-District student with prior drug and

suicide issues was given “last-chance” to continue attending

Then, caught texting in class


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

• 4th Amendment claim and the due process claim survive


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.


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


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.


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


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.


► 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


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


Are there any questions which have not been answered to this point?


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