Administrative Search: a Search Conducted by a School Administrator, Usually an Assistant

Background

Vocabulary

Dana Bedden, 2006, Ed Dissertion, 2006, Public School Law: Student Search & Seizure in K-12 Public Schools, https://theses.lib.vt.edu/theses/available/etd-03102006-174524/unrestricted/DBeddenFinalETD.pdf DOA: 6-22-16

Administrative Search: A search conducted by a school administrator, usually an assistant principal or principal.

Due Process: Law in the regular course of administration through courts of justice, according to those rules and forms that have been established for the protection of private rights.46

Exclusionary Rule: A rule that excludes or suppresses evidence obtained in violation of an accused person’s constitutional rights.

In Loco Parentis: The Latin phrase that literally means “in the place of parents.” This means that school officials may discipline students as if the students were their own children.

Individualized Suspicion: Individualized suspicion, also known as particularized suspicion, refers to suspicion that a particular individual has engaged in misconduct or may be in possession of contraband or evidence of misconduct.50

Probable Cause: Situation where the facts and circumstances within an officer’s

knowledge and of which he has reasonable caution in believing that an offense has been or is being committed. Fourth Amendment requirement that government officials must satisfy in order to secure a warrant to search.58

Reasonable Suspicion: Lesser Fourth Amendment standard applying to searches and seizures of students and their property by school officials. Developed from by the Supreme Court in New Jersey v. T.L.O. case.59

Statute refers to legislative law derived from actions of the legislature producing either state or federal law.

The Fourth Amendment

Ransom Ellis, JD, Missouri Bar Association, 2010, Public School Search & Seizure Law, http://www.eehjfirm.com/pdf/MO-Bar-Student-Seaches-100726.pdf DOA: 6-22-16

. “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.”

Purpose of the 4A is to Protect Privacy

. Ransom Ellis, JD, Missouri Bar Association, 2010, Public School Search & Seizure Law, http://www.eehjfirm.com/pdf/MO-Bar-Student-Seaches-100726.pdf DOA: 6-22-16

. The purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials and to give concrete expression to a right of the people which “is basic to a free society.”1

Government Searches Must Be Reasonable, Normally Based on Probable Cause

Ransom Ellis, JD, Missouri Bar Association, 2010, Public School Search & Seizure Law, http://www.eehjfirm.com/pdf/MO-Bar-Student-Seaches-100726.pdf DOA: 6-22-16

An unlawful “search” occurs when the government infringes upon an individual’s legitimate expectation of privacy.2 The test used to determine the existence of a “reasonable expectation of privacy” is whether the person expects his actions will be free from government intrusion.

The Fourth Amendment requires that governmental searches meet a “reasonableness standard.”

Reasonableness is measured by examining the totality of the circumstances surrounding the search and balancing the intrusion “on the individual’s Fourth Amendment interests” against the search’s “promotion of legitimate governmental interests.”3

Generally, any search will be found to be unreasonable “where the government or its agent has not proven it to be necessary.”4

The most common method of demonstrating the “reasonableness” of a search is by a showing of “probable cause” which is the “level of suspicion which is required to justify government intrusion upon interests protected by the Fourth Amendment.”5

Reasonable Suspicion, Probable Cause, and School Searches

Reasonable Suspicion, Not Probable Cause Required (New Jersey v. TLO)

Reasonable suspicion, not probable cause, is required for searches of students in public schools

Nicandro Iannacci is a web content strategist at the National Constitution Center, January 15, 2016, Constitution Daily, New Jersey v. TLO: The Fourth Amendment in Public Schools, http://blog.constitutioncenter.org/2016/01/new-jersey-v-t-l-o-the-fourth-amendment-in-public-schools/ DOA: 1-22-16

On January 15, 1985, the U.S. Supreme Court ruled in New Jersey v. T.L.O., holding that public school administrators can search a student’s belongings if they have a reasonable suspicion of criminal activity. The case originated in Piscataway, New Jersey, where, in 1980, a teacher at the local public high school stumbled upon two girls smoking in a bathroom. One of the girls was T.L.O., then a 14-year-old freshman. Because smoking was against school rules, the teacher brought T.L.O. and her companion to an assistant vice principal, who questioned both girls. During the questioning, T.L.O.’s friend admitted her own guilt, but T.L.O. denied the accusation. Unconvinced, the assistant vice principal demanded to see T.L.O.’s purse. Upon searching it, he discovered, among other things, a pack of cigarettes, a small amount of marijuana, rolling papers, and an index card with a list of students that owed T.L.O. money. The assistant vice principal turned over the contents to the police, who used that evidence to bring delinquency charges against T.L.O. At that point, T.L.O. moved to have the contents of her purse ruled inadmissible incourt, arguing that they were obtained through an illegal search under the Fourth Amendment. The trial and appeals courts rejected her motion, but the New Jersey Supreme Court disagreed, holding that the exclusionary rule applies to public school officials. Ultimately, the Supreme Court held 6-3 that the school’s search of T.L.O.’s purse was constitutional. Writing for the majority, Justice Byron White began by noting that public schools are institutions operated by the government. Therefore, public school students retain their Fourth Amendment rights. “This Court has never limited the Amendment’s prohibition on unreasonable searches and seizures to operations conducted by the police,” he explained. “Rather, the Court has long spoken of theFourth Amendment’s strictures as restraints imposed upon ‘governmental action’”—including actions taken by public school officials. Next, Justice White detailed precisely how the Fourth Amendment applies in public schools. On the one hand, he wrote, “schoolchildren have legitimate expectations of privacy.” On the other hand, schools have an “equally legitimate need to maintain an environment in which learning can take place.” What, then, would a proper balance of these interests look like? White answered by distinguishing the situation. “It is evident,” he wrote, “that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.” As such, a warrant is not required to search a student, nor is “probable cause” required. No, wrote White, “the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.” And under this new standard, the search of T.L.O.’s purse was not unreasonable.

The TLO “reasonableness” standard governs school searches

Dana Bedden, 2006, Ed Dissertation, 2006, Public School Law: Student Search & Seizure in K-12 Public Schools, https://theses.lib.vt.edu/theses/available/etd-03102006-174524/unrestricted/DBeddenFinalETD.pdf DOA: 6-22-16

Today, New Jersey v. T.L.O. is the standard by which the reasonableness of a search is determined in case law related to search and seizures in schools. In an attempt to balance the individual student’s rights to be free from unreasonable search and seizure against the desire to have a safe and secure school environment, the court established the “reasonableness standard”. Acknowledging that the higher probable cause standard that police must follow as being to restrictive for schools, the court felt reasonable suspicion should be an appropriate standard for school officials. In the reasonableness standard, a two-pronged test arose from T.L.O. which states: 1) the search must be justified initially by a reasonable suspicion and 2) that the scope and conduct of the search must be reasonably related to the circumstances that gave rise to the initial search. Therefore, school administrators must take such things as the student’s age and sex, and the nature of the offense into account before conducting a search.136

What is a “Reasonable” Search? (Under TLO)

A search is “reasonable” if it is justified at its inception and reasonably related in scope to the circumstances used to justify the search

Michael K. Jordan is Professor of Law at William Mitchell College of Law, 2010, From T.L.O to Safford: A Close Look at the Supreme Court’s Decisions on Searches and Principles that Emerge from These Cases, https://wmlawandpractice.com/2010/01/20/from-t-l-o-to-safford-a-close-look-at-the-u-s-supreme-court%E2%80%99s-decisions-on-searches-of-students-and-the-principles-that-emerge-from-these-cases/#Y DOA: 1-22-16

Given the Court’s view that it was developing a standard to be applied in the real world of school discipline imposed by teachers and administrators who are not trained in the law, one would expect some type of clear formulation of or guidelines as to what constitutes reasonableness. Guidance was provided in the form of two questions that administrators or teachers should ask in assessing the reasonableness of their actions: (1) was the search justified at its inception?; and (2) was the search as actually conducted reasonably related in scope to the circumstances that justified the invasion of the privacy interest?[35] A search is justified at its inception if the school official had reasonable grounds (not probable cause) for suspecting that the search will lead to the discovery of evidence that the student was violating or had violated either the law or the rules of the school.[36] The scope of the search is proper in scope if it is conducted in a manner that is reasonably related to the objectives of the search and not excessively intrusive given the age and sex of the student and the nature of the rule violation.[37] As applied to Choplick’s search, it was both justified at its inception and proper in scope.[38] The initial discovery of the two girls smoking in the lavatory followed by T.L.O.’s denial of the rule infraction justified the initial search of her purse for evidence of the infraction: cigarettes in her purse.[39] The subsequent discovery of the marijuana justified a further search of the purse for evidence of further violations of rules or the law.[40]

The offense should be serious

There were other arguments raised against the legitimacy of the search and, in addressing these contentions, the Court provided further guidance as to how to apply the two-part test. One could argue, for example, that a search is reasonable only if the official were searching for evidence of a serious rule violation. That is, a school’s interest in order is triggered by violations of rules that actually serve the interest in maintaining order. Does smoking in the girls’ lavatory really undermine order and discipline at Piscataway High School?[43] After all, sneaking a smoke in the lavatory is akin to a high school rite of passage. The answer to this question appeared to be that it was not a relevant question for the Court to answer in assessing the constitutionality of the search.[44] School officials, not judges, should evaluate both the relative importance of offenses and which rules are necessary to maintain order and promote the educational mission of the school.[45]The outer limit of this deference to school officials appeared to be rules that, while promoting order, ran afoul of some other substantive constitutional guarantee. These types of rules would be subject to judicial review.[46]

What is “Reasonable Suspicion”?

Examples of acting on “reasonable suspicion” found to be reasonable and found to be “not reasonable”

Kate Ehlenberger, 2001/2, Educational Leadership, The Right to Search Students, http://www.ascd.org/publications/educational-leadership/dec01/vol59/num04/The-Right-to-Search-Students.aspx DOA: 6-22-16

In New Jersey v. T.L.O., a teacher's report of a student smoking in the bathroom justified a search of the student's purse. Since this landmark decision, several cases have debated what constitutes reasonable suspicion:

· Four students huddled together, one with money in his hand and another with his hand in his pocket, does not provide reasonable suspicion (A.S. v. State of Florida, 1997).

· An anonymous phone call advising an administrator that a student will be bringing drugs to school, coupled with the student's reputation as a drug dealer, creates reasonable suspicion to search the student's pockets and book bag (State of New Hampshire v. Drake, 1995).

· A report made by two students to a school official that another student possesses a gun at school constitutes reasonable suspicion to search the student and his locker (In re Commonwealth v. Carey, 1990).

· An experienced drug counselor's observation of a student who appears distracted and has bloodshot eyes and dilated pupils justifies taking the student's blood pressure and pulse (Bridgman v. New Trier High School District No. 203, 1997).

· The fact that the search of all but one student in a class fails to reveal allegedly stolen property gives school officials reasonable suspicion to search that student (DesRoches v. Caprio, 1998).

· The odor of marijuana in the hall does not provide reasonable suspicion to search all students' book bags, purses, and pockets (Burnham v. West, 1987).

Reasonable suspicion can’t be precisely defined

Although the legal standard for reasonable suspicion is clear, the application of it in different contexts is not always as clear. The Court has even noted that articulating precisely what reasonable suspicion means . . . is not possible. Reasonable suspicion is a commonsense, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. (Ornelas v. United States, 1996, at 695)

“Reasonable suspicion” in a school context

Ransom Ellis, JD, Missouri Bar Association, 2010, Public School Search & Seizure Law, http://www.eehjfirm.com/pdf/MO-Bar-Student-Seaches-100726.pdf DOA: 6-22-16

. In order to have “reasonable suspicion,” a school employee must have facts which are of sufficient quantity and certainty to establish a sufficient probability that the suspicion is true. To justify the search, the school employee must be able to:

(1) Identify specific observations or knowledge;

(2) Indicated the rational inferences that were drawn from all available observations and facts considered as a whole; and,

(3) Explain how the available facts and rational inferences provided a particular and objective basis for the suspicion when they were combined with the special background, training and experiences possessed by the school employee.12