Search and Seizure: Searching Students for the Possession of Drugs

1. Search and Seizure:Searching Students for the Possession of Drugs Michael Shumate Clay Moran

2. Searching Students for the Possession of Drugs • The Fourth Amendment of the United States Constitution requires that a search: (1) be conducted pursuant to a search warrant issued upon probable cause or • (2) be otherwise “reasonable” under the Fourth Amendment. School officials have broad authority to conduct searches in the public school environment. (Zigmund- pg1).

3. Searching Students for the Possession of Drugs • With the increase in drug use among students, school officials have stepped up their efforts to ensure student safety by allowing intrusive searches of students. Student rights have diminished in recent years through various court findings.

4. Searching Students for the Possession of Drugs • The landmark case from the United States Supreme Court decision in New Jersey v T.L.O., 469 U.S. 325, 105 S.Ct 733 (1985) involves warrantless student searches based upon reasonable suspicion. • There are three categories that cases can be divided into • searches initiated and conducted by school officials with minimal police involvement. • searches conducted by school. • searches conducted by outside police officers or officers working independently of the school environment.

5. Searching Students for the Possession of Drugs • The scope of the search is limited to the objective of the search considering the student’s age, sex, and the nature of the infraction. • T.L.O. impacted public school student rights. The ruling guaranteed public school students constitutional protection; however the cases that have followed T.L.O. have generally provided school officials greater leeway in performing search and seizures and have continued to limit student rights within the doctrine of school safety.

6. Searching Students for the Possession of Drugs: Locker Searches • A guiding principal for searches is that the more intrusive the search, the greater the need for justification. • Some school districts conduct general searches of student lockers. School districts attempt to extinguish any reasonable expectation of privacy students might have in their lockers. If no reasonable expectation of privacy exists in the lockers, then no justification is needed.

7. Searching Students for the Possession of Drugs: Locker Searches • Often, a locker policy will state that lockers are subject to search by the school officials at any time, often without any level of suspicion. • In April 2000 In re Patrick Y., 746 A.2d 405 (Md. Ct. App. 2000), it was concluded that a search of an eighth graders locker was reasonable because the government was acting as guardian and tutor, and the search was one that a reasonable guardian and tutor might undertake. In this case a student’s locker yielded a folding knife and a pager.

8. Searching Students for the Possession of Drugs: Use of Dogs • Great concern about drug use and drug possession in public schools has prompted administrators to utilize police officers to assist with searches. One example is the involvement of canines to sniff out drugs. • In State v. Barrett, 683 So.2d 331 (La. Ct. App. 1996), a school board drug detection team consisting of members of a sheriff’s office conducted a search for drugs at a school using drug detection dogs.

9. Searching Students for the Possession of Drugs: Use of Dogs • During the search of the school parking lot, the dog alerted to the 18 year olds car. The student gave verbal consent to a search of the car, and the officers found a marijuana roach in the ashtray. • The court found that the action of the dog sniffing the wallet was not a search. When the dog alerted on the wallet, the principal had cause to suspect the wallet contained drugs and was justified in searching the wallet without a warrant.

10. Searching Students for the Possession of Drugs: Use of Dogs • When officers decided to search the defendant’s car, they had probable cause because they had found $400.00 in cash, a beeper, and a book bag decorated with drawings of marijuana leaves.

11. Searching Students for the Possession of Drugs: Use of Dogs • The warrantless search of the car also was appropriate under the consent exception. School officials may search a vehicle parked on school premises if they have reasonable suspicion that the vehicle contains contraband or evidence of a violation. • However, searches of property are different than a dog sniffing an actual person. Some courts consider a dog sniff of an actual person a “search” under the Fourth Amendment because of the intrusiveness of this action. These courts, therefore, require at least reasonable suspicion to conduct a dog “sniff” of a student.

12. Searching Students for the Possession of Drugs:Drug Testing • Drug testing through urinalysis comes under scrutiny of the Fourth Amendment. Such testing is considered an intrusive search and you must have strong reasonable and individualized suspicion that a student is a drug user. • In 1995, the Supreme Court ruled 6-to-3 that random drug testing of high school athletes does not violate the Fourth Amendment protection against unreasonable search and seizure.

13. Searching Students for the Possession of Drugs: Drug Testing • On October 5, 1998, the high court let stand a 7th Circuit U.S. Court of Appeals decision allowing an Indiana school district to randomly drug test all students who participate in extracurricular activities (Todd v. Rush County, No. 97-2021, 1998WL334388)

14. Searching Students for the Possession of Drugs:Drug Testing • On March 22, 1999, the U.S. Supreme Court declined to review a U.S. Court of Appeals for the 7th Circuit decision in an Indiana case that said forcing suspended students to submit to drug testing before they can return to school violates their privacy rights. • In that case, the 7th Circuit ruled that, unlike students who voluntarily chose to play sports or engage in extracurricular activities, a boy who was suspended for five days for fighting and refused to submit to a urine test had not surrendered any of his privacy rights (Anderson Community School Corp. v. Willis, 158 F.3d 415 (1998))

15. Searching Students for the Possession of Drugs • A student’s person and/or personal effects may be searched by a school official whenever the official has reasonable suspicion to believe that the student has violated or is about to violate the law or a school rule and a search will yield evidence of the violation.

16. Searching Students for the Possession of Drugs:Pat down • A pat-down search of a student may only be conducted if a school administrator has established a high level of reasonable suspicion and that evidence will be found to corroborate suspicion that a law or school rule has been broken. • A pat down search of a student’s person is conducted in private by a school official of the same sex and with an adult witness of the same sex present

17. Searching Students for the Possession of Drugs: Strip Searches • Strip searches may only be used when an extreme situation exists requiring immediate action. Such a search should be used only in the event of imminent threat of death or great bodily injury to a person or persons.

18. Searching Students for the Possession of Drugs:Strip Searches • When a strip search is necessary, the school official should contact the appropriate law enforcement official, and the search should be conducted by a sworn law enforcement officer of the same sex and in the presence of the same sex adult witness. • School officials may only conduct a strip search in cases where it is necessary to avoid the imminent threat of death or great bodily injury to the student or another person

19. Searching Students for the Possession of Drugs:Strip Searches • When a school official conducts a strip search, it must be by a same sex official with a same sex adult witness, and the official must have the prior approval of the superintendent or his designee, unless the health or safety of the student is endangered by the delay.

20. Searching Students for the Possession of Drugs:Strip Searches • A search of a student’s person is a more serious intrusion into the student’s privacy. As a result, school officials should be cautious when conducting such a search. A strip search should be avoided if possible.

21. Searching Students for the Possession of Drugs:Strip Searches • Cases that justify the strip search of students by school officials in public schools are infrequent. • School officials may be justified in using strip search’s that involve weapons and drugs but the case must involve exigent circumstances. However, searching a seventh grade class of girls to recover $4.50 would be found unreasonable.

22. Searching Students for the Possession of Drugs: What we learned • Despite Fourth Amendment guidelines, school officials and school police have broad authority to search within the public school environment. • Two types of warrantless searches can be “reasonable” and hence legal under the Fourth Amendment. First, warrantless student searches based on individualized suspicion, and second, warrantless student wide searches, especially for weapons or drugs.

23. Searching Students for the Possession of Drugs: What we learned • The cost of doing a search can be great in both dollars and morale. Careful analysis of the cost and benefits should be weighed. • Also, school officials must consider that even though various courts have upheld searches it does not mean they should employ these methods.

24. Searching Students for the Possession of Drugs: What we learned • In addition, it is important to note that states can use their respective state constitutions to impose greater restrictions on searches than allowed under federal law.