Search and Seizure: Your Child’s Fourth Amendment Rights in School

Introduction

As drugs and weapons infiltrate our nation’s schools, it is imperative that school officials take the necessary steps to maintain safety and preserve order in your child’s school. With that being said, your child has a right to privacy and school officials must not be overzealous in their investigation of alleged violations of school policy. The following will provide you, as a parent, with a basic understanding of the rights your child has as well as the requirements your child’s school must adhere to regarding the search of his or her person or property while in school.

The Fourth Amendment of the United States Constitution protects persons from unreasonable searches and seizures by agents of the government, which includes school officials.[1] The Fourth Amendment provides that, “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…”[2] First, we will discuss your child’s Fourth Amendment rights while he or she is at school and the applicable standard that will allow school administrators to conduct a search. Second, we will look at the permissible scope of locker and desk searches, searches of personal items, such as knapsacks and pocketbooks, as well as the use of drug testing, sniffer dogs and metal detectors.

While this is a practical overview of Fourth Amendment search and seizure issues pertaining to your child and their school, you should contact one of our attorneys at Maya Murphy P.C. if you believe that your child’s rights have been violated by a school official in the course of an investigation.

How does the Fourth Amendment apply to my child while at school?

The application of the Fourth Amendment to an in-school search of your child or their property differs from the more generally applicable criminal standard. With respect to the criminal standard, the Fourth Amendment requires law enforcement officials to first demonstrate that they have “probable cause” to believe that a crime has been committed. This usually means that evidence must be presented to a judge and a warrant must be obtained before law enforcement officials may conduct a search of private property. Unlike the criminal standard, the requirements for conducting a permissible search of your child while he or she is in school are somewhat different.

The United States Supreme Court has articulated a clear-cut standard that school officials must adhere to when conducting a search of your child or his or her property. First, school officials do not need to obtain a warrant before conducting a search of your child or his or her property.[3] The Court reasoned that requiring school officials to obtain a warrant would interfere with their ability to obtain evidence and maintain the informal disciplinary procedures that schools use to preserve order.[4] Moreover, the need to maintain safety in the school environment at all times outweighs the warrant requirement.

Unlike the criminal standard that requires probable cause, the legal standard set forth by the court for in-school searches by school officials is “reasonable, under all of the circumstances.” In determining what “reasonable” is, the Court has developed a two-fold inquiry before a search may be conducted of your child or his or her property. First, the search must be “justified at its inception.” Second, the search must be “permissible in its scope.”[5]

What does “justified at inception” mean?

A school official that conducts a search of your child must have reasonable grounds for suspecting that the search will reveal evidence demonstrating that your child has violated or is violating school rules or the law.[6] Here, unlike the probable cause standard requiring probability that a search will produce evidence, school officials using the reasonableness standard may conduct a search irrespective of whether it is probable that a search will reveal evidence of wrongdoing. School administrators, however, must not abuse this leniency in conducting a search and must do so “with reason and common sense.”[7] This relatively relaxed approach, while justified in deference to the safety of the school population, pertains only if at the time of the search, school officials had reasonable suspicion in conducting a search of your child or his or her property.

Reasonable suspicion sufficient to satisfy the “justified at inception” prong can be found in many different ways. For example, if your child is acting in a manner indicating that he or she has consumed alcohol or has taken illicit drugs, this will likely be found to be reasonable. Additional examples include, the smell of alcohol or drugs on your child, or other students informing school officials that your child may be engaging in activity inconsistent with school policy or the law.

To justify a search of your child or their property, school officials must have a logical reason for doing so in order to satisfy the “justified at inception” requirement. If a school official is able to demonstrate that school safety concerns were the primary factors for conducting a search, it is likely that the search will be found reasonable.

What does “permissible in its scope” mean?

A search will be found “permissible in its scope” when the measures that school officials employ in searching your child or their property were reasonably related to the objective of the search, and that the search was not excessively intrusive in light of the age and sex of your child.[8]

First, when conducting a search, school officials must show that the search was related to the object of the search. Therefore, if your child is accused of allegedly possessing or selling illegal drugs, a more thorough search may be tolerated. On the other hand, if your child is accused of possessing a bottle of alcohol, a search of her pocketbook or his knapsack may be reasonable, while the removal of clothing would likely be unreasonable.

Second, the search should not invade the legitimate privacy right of your child in relation to the search. Taking into consideration your child’s age and sex, different search procedures will be subjectively evaluated. For example, a school was found to have violated a thirteen-year old girl’s Fourth Amendment rights after school officials were informed that she allegedly possessed prescription painkillers. Following a search of the girl’s knapsack, which revealed no evidence of prescription drugs, she was sent to the nurse’s office for a strip search, which further revealed no evidence of prescription drugs. Due to its highly intrusive nature, a strip search of your child should only be conducted when there is reasonable suspicion of danger or the resort to underwear for hiding evidence of wrongdoing.[9] Conversely, pat-downs are held to be minimally intrusive. Thus, the means used in conducting a search and the age and sex of your child are pertinent factors that school officials must consider before conducting a search of your child’s person or their property.

What if a search of my child or their property results in the discovery of another item of contraband not subject to the initial search?

If a school administrator conducts a search of your child or their property when there is reasonable suspicion to do so and that search results in discovery of an item that was not the intended object of the search, the school may still use that evidence of contraband to discipline your child for violating school policy or the law. An example of such a scenario would include checking your child’s bag or purse for cigarettes and finding of illicit drugs, such as marijuana or other contraband.

Moreover, the school still may take disciplinary action against your child even if they violate your child’s Fourth Amendment rights. These violations, however, may provide grounds for you and your child to bring a Title 42 U.S.C. Section 1983 action against the school and school personnel for infringing upon your child’s civil rights.

Can my child’s school search their personal property?

Provided school officials adhere to the “reasonable, under all of the circumstances” requirement, your child’s personal property, such as purses, backpacks, and even their car is subject to being searched. Although conducting a search of your child’s property is permissible, school officials still must adhere to the same standard applicable to the search of your child’s person, i.e., the search must be “justified at inception,” and it must be “permissible in its scope.” Again, the search must not be excessively intrusive, and school officials must adhere to this requirement even when it comes to the searching of your child’s personal property.

Can my child’s locker or desk be subject to a search?

The short answer is yes. The Connecticut General Assembly enacted legislation, whereby, all boards of education may authorize school officials or law enforcement officials to search lockers and other school property that is available for use by your child, which includes desks, for the presence of weapons, contraband or the fruits of a crime.[10] This legislation expressly states that a search of your child’s locker or other property owned by the school is permitted so long as the “reasonable, under all of the circumstances,” requirement is found (i.e., reasonable at inception and permissible in its scope).

Can my child’s school conduct a search without having reasonable suspicion?

Having discussed searches conducted by school officials where there was reasonable suspicion to support a search of your child or their property, we now turn our attention to random and suspicion-less searches involving your child.

Can my child be subject to random drug testing?

Drug testing is considered to be a type of search. For that reason, school officials may require your child to take a drug test when it is justifiable and the requisite “reasonable suspicion” standard is met. There are, however, in this context, certain exceptions to the reasonable suspicion standard, whereby your child may be subject to drug testing regardless of whether or not they are suspected of taking illicit drugs. In a case stemming from Oregon, the United States Supreme Court found that random drug testing of athletes through urinalysis was not a violation of a child’s Fourth Amendment rights.[11]

The Court articulated a three-part balancing test that is to be used when evaluating suspicion-less searches, consisting of:

  1. The nature of the privacy interest upon which the search intrudes,[12]
  2. The character of the intrusion,[13] and
  3. The nature and immediacy of the governmental concern and the efficacy of the means to meet it.[14]

Your child’s right to privacy in the school is distinct from that of the general population. This lessened right to privacy is even more pronounced for student-athletes, due in part to the voluntary nature of their child’s participation and the reduced expectation of privacy (i.e. communal showers and shared locker rooms). The Supreme Court extended this decision in a subsequent case, which now allows schools to drug-test any student who participates in extracurricular activities, such as the Academic Team, cheerleading team, the band and choir.[15] Further, the urinalysis test is designed to detect only the use of illegal drugs, such as amphetamines, marijuana, cocaine and opiates, and not for medical conditions or the presence of authorized prescription medication.[16] The circumstances surrounding a urinalysis test are no different than going to the restroom in a public facility, and a monitor is present only to make sure that your child does not tamper with the urine specimen. The procedure used to conduct a urinalysis test has been found not to be intrusive of your child’s expectation of privacy.[17]

Your child’s school has a compelling (and judicially countenanced) interest to deter, detect and prevent the use of drugs in their school in order to preserve the safety of the school environment. The results of your child’s drug test are confidential and only school personnel who are on a “need to know” basis will be granted access to the records.[18] Additionally, these tests may not be turned over to law enforcement officials or used to discipline your child. They are employed solely to identify if your child may have a drug problem and accordingly needs help. As a result, schools, at their discretion, may implement suspicion-less drug testing programs that your child must adhere to if they plan on participating in extracurricular activities.

Can my child’s school use metal detectors and/or sniffer dogs to conduct  searches?

Due to increasing violence in schools over the past two decades, school districts have been permitted to employ metal detectors to screen students for weapons or other contraband that may harm the student population. A metal detector, whether it be stationary or hand held, is considered to be a minimally intrusive search. The courts have allowed schools to use this method in order to ensure weapons are excluded from the school environment. In regards to the use of “sniffer dogs,” it is generally seen as being non-intrusive since sniffer dogs are exploring for items that while perhaps not in “plain sight,” are within “plain smell.” In accordance with C.G.S. § 54-33n, if a sniffer dog alerts to a certain smell within your child’s locker or other school property that has been made available to them, it will likely satisfy the “reasonable, under all of the circumstances” requirement and school personnel may conduct a search of your child’s locker or other property. Note, however, sniffer dogs may not be used to search your child’s person unless the reasonable suspicion requirement is satisfied. Although metal detectors and sniffer dogs are usually found to be minimally intrusive, your child’s school district must still have reasonable suspicion to conduct an additional search of your child or their property. If one of these devices was to alert school personnel of possible contraband, a search should not continue unless school personnel can show that it was reasonable for them to conduct a more detailed search at that time in order to obtain evidence that your child violated school policy or the law.


 

[1] New Jersey v. T.LO., 469 U.S. 325 (1985).
[2] U.S. Const. Amend. IV.
[3] New Jersey v. T.LO., 469 U.S. 325 (1985).
[4] Id. at 340.
[5] Id. at 341-342.
[6] Id. at 342.
[7] Id. at 343.
[8] Id. at 342.
[9] Id. 2643.
[10] Conn. Gen. Stat. Ann. §54-33n (West 2011)
[11] Vernonia School District 47J v. Acton, 515 U.S. 646 (1995).
[12] Id. at 654.
[13] Id. 658.
[14] Id. 660.
[15] Board of Education Independent School District No. 92 v. Earls, 536 U.S. 822 (2002).
[16] Id. at 826.
[17] Id. at 833.
[18] Id. at 883.

 

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