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

1. STUDENT SEARCHES AND SEIZURES: LEGAL STANDARDS, POLICY, AND PROCEDURES Bakersfield City School District Student Services Department Mike Skiba, Supervisor November 2009

2. AUDIENCE QUESTIONS

3. Presentation Summary • Define and illustrate contraband, search, and seizure. • Give an overview of the importance of rules related to search and seizure. • Describe “school officials” as the positions authorized to conduct a search and make a seizure. • Identify the factors giving rise to a “reasonable suspicion” or 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.

4. 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)

5. Seizure Defined • Seizure (of property) includes a meaningful interference with a person's rights in possessing 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

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

7. Fourth Amendment Overview (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)

8. 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.

9. Potential Actions and/or Claims Arising from Violations of Civil and Constitutional Rights • Lawsuit for injunction relief, damages, and attorneys’ fees • 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 $5,000,000.

10. 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)

11. 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 phone)

12. 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.

13. *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 Examining the contents of a cell phone What Conduct Amounts to a Search? *

14. 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 • Any school property assigned for a student’s individual use (Van Dyke & Sakurai, [2006], p. 19) MS

15. 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.

16. 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

17. Who can conduct a search? • School administrators • Any school personnel authorized by the school board to conduct searches (generally principal, vice-principal, dean, principal designee, campus supervisor) • 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).

18. 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 163Cal.App.4.Dist.,[2004])

19. 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.

20. What is Prohibited? • Unreasonable searches • Unreasonable seizures Remember: Knowledge concerning the object for which a reasonable suspicion exists is necessary to legally begin a search. This knowledge also sets the parameters for the reasonable scope of the search and how intrusive the search may be.

21. INCEPTION OF THE SEARCH: 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.

22. 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.

23. 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 related to contraband • 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])

24. 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).

25. 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.

26. 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?)

27. 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]).

28. 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).

29. 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).

30. 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]).

31. 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]).

32. 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].

33. 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.

34. 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 • Infraction 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

35. 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.

36. 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)

37. 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.

38. 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]).

39. 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?

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

41. Cell Phones • Contraband? • Does looking at call history, text messages, pictures/videos constitute a search?

42. 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.

43. 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).

44. 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 question • 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

45. 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 directions • (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. • Clothing • Stay away areas • Avoid touching if at all possible • When to get law enforcement involved • Parent contact following a search (ASAP, BP 601.11)

46. 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, Penal Code Section 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

47. Consent Searches: Don’t Do It * *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 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]).

48. Conclusion Remarks/Questions • Contraband, search, and seizure • School officials conduct searches and make seizures • Searches are preceded by a “reasonable suspicion” (justification) • Searches must be reasonable; unreasonable searches are prohibited by the U.S. Constitution • Reasonable searches are limited in scope and intrusiveness • Seizure of contraband and detention of students

49. Supplemental Slides

50. CASE STUDY: FACTS • Staff member saw 2 students smoking in restroom • Student A admitted smoking, student B denied smoking • VP searched B’s purse, found cigarettes • VP looked further in the purse, found rolling papers, plastic bags, marijuana, and a substantial amount of money. • VP confiscated the items and suspended student B