Search and seizure of students: The who, what, why, when, and

how matter.

A review of the law on search and seizure of students

By Amy Peabody

Assistant General Counsel

Kentucky Department of

Education

October 21, 2015 1

Topics to be covered

• What does the law allow for search and seizure of students and their personal belongings and who can perform these actions and when?

• When are Miranda rights required prior to questioning students?

• When does immunity from liability exist for a school staff search of a student?

• Fact scenarios

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4th Amendment search and seizure• A 4th amendment “search” is an examination of something in which

the person has a reasonable expectation of privacy. A “seizure” of property is a government actor’s meaningful interference with the individual’s possession of the item (and a seizure of a person is detention of the person). In general, for a search to be lawful, a law enforcement officer must have “probable cause” to believe that evidence of criminal activity is currently located at this particular location. For a seizure/stop to be legal, a law enforcement officer must have an articulable “reasonable suspicion” that criminal activity is afoot.

• Analysis of the legality of the search or seizure/stop involves 1. looking at the information known at the time, 2. the extent of the search or the seizure/stop, and 3. the totality of the circumstances and particularized and objective

basis for the search or seizure/stop. 3

What have the courts said about searches generally?• Courts have long recognized that a person's reasonable expectation of privacy “turns in

large part” on their “ability to exclude others from the place searched.” Minnesota v. Carter, 525 U.S. 83, 107, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (Ginsburg, J., dissenting); see, e.g., Rakas v. Illinois, 439 U.S. 128, 149, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

• “Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy; warrantless searches of such effects are presumptively unreasonable.” United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); see United States v. Forrester, 512 F.3d 500, 511 (9th Cir.2008) (tracing this principle through history). Moreover, it has been an established principle, at least since the Supreme Court's decision in Katz v. United States, that the Fourth Amendment protects individuals from intrusions upon their private electronic conversations. 389 U.S. 347, 361–62, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)(Harlan, J., concurring).“Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.” United States v. Warshak, 631 F.3d 266, 285–86 (6th Cir.2010).

• One court recently concluded that private Facebook messages are, like email, “inherently private” because such messages “are not readily accessible to the general public.” Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 991 (C.D.Cal. 2010).

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What have the courts said about searches generally?

• A dog sniff is a search. Florida v. Jardines, 133 S.Ct. 2013).

• A cell phone itself does not pose any security threat as a weapon, and while it might possess potential evidence, once removed from the individual, the potential loss of evidence has been removed. Riley v. California, 134 S.Ct. 2473 (2014).

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Search and seizure of students and their personal belongings

• Students are protected by the U.S. Constitution’s 4th amendment from unlawful search and seizure.

• Same analysis for electronic device or account searches of students as for all other searches of students.

• Legal authorities: New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. (1985); Lamb v. Holmes, 162 S.W.3d 902 (Ky. 2005).

• Less stringent standard applies to school searches and seizures of students unless law enforcement is involved or unless school staff are acting on behalf of or in concert with law enforcement or following an established procedure involving law enforcement. If any of those are involved, then full 4th amendment protection applies.

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School staff search of students• The “special needs” of a school environment require a standard

lesser than probable cause when assessing the legality of searches.

• A “reasonableness standard” is used when reviewing the legality of school searches (two fold inquiry):

- 1. whether the search was “justified at its inception” (justified when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or rules of the school),

- 2. whether the search was “reasonably related in scope to the circumstances which justified the search” (permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction).

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School staff search of studentsCourts look at whether the school official has an individualized suspicion about a particular student or a suspicion regarding a group of students. In the absence of individualized suspicion, 3 factors are considered:

- 1. the student’s legitimate expectation of privacy (greatest expectation of privacy concerning the student’s person but lessened expectation if in a locker room);

- 2. the intrusiveness of the search (search of a purse or search of the student’s person);

- 3. the severity of the school system’s needs that were met by the search: health and safety (looking for drugs or weapons) versus enforcement of school rules (looking for evidence of violation of school policy (e.g., cigarettes)).

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School staff search of students

• School staff have to have a reasonable suspicion of wrongdoing or a moderate chance of finding evidence of wrongdoing to perform a search. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 128 S.Ct. 2633 (2009).

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New Jersey v. T.L.O., 105 S.Ct. 733, 469 U.S. 325, 83 L.Ed.2d. (1985).

• Searches and seizures of students by school officials are prohibited by the 4th amendment if they are unreasonable. In carrying out searches and other disciplinary functions pursuant to school policies, school officials act as representatives of the state, not merely as surrogates for the parents, and school officials cannot claim the parents’ immunity from the restrictions of the 4th amendment.

• Search of a child’s person or of a closed purse or other bag carried on her person, no less than a similar search carried out on an adult, is undoubtedly a severe violation of subjective expectations of privacy. An expectation of privacy has to be one that society is prepared to recognize as legitimate to be protected by the 4th amendment. Students have a legitimate need to bring personal items with them to school (such as keys, money, cell phone today too) and students have not waived all rights to privacy in these items just by bringing them onto school grounds. School officials have a legitimate need to maintain order and a proper educational environment at school too. Requiring a warrant before school officials search a student suspected of an infraction of school rules or of the criminal law would interfere unduly with the maintenance of swift and informal disciplinary procedures needed in schools. 10

T.L.O. continued• For these reasons, probable cause is not required. The legality of a search of

a student should depend simply on the reasonableness, under all the circumstances, of the search. Under ordinary circumstances, a search of a student by a teacher or other school official will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. Exceptions to the requirement of individualized suspicion are generally appropriate only where the privacy interests implicated by a search are minimal and where “other safeguards” are available to assure that the individual’s reasonable expectation of privacy is not subject to the discretion of the official in the field. New Jersey v. T.L.O., 105 S.Ct. 733, 469 U.S. 325, 83 L.Ed.2d. (1985).

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Search and seizure of a student’s cell phone

• What is a seizure/stop of a student cell phone?

- Confiscation, even for a brief period; even requiring student to show school official the phone.

• What is a search of a student cell phone?

- Looking to see if the phone is on, in use, looking at the call/text history, looking through the texts/listening to voicemails, calling numbers on the phone/call history or texting contacts in the phone.

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What have the courts said about student drug test searches?

• Schools can use random, suspicionless drug-testing through urinalysis for athletes engaged in extracurricular activities because there is no property interest implicated and there were legitimate government interests in deterring drug use and in preventing injuries. Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386 (1995).

• Schools can use these random drug tests for all students in any extracurricular activity of the schools. Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 122 S.Ct. 2559 (2002).

• Schools have to have an articulable, individual, and reasonable suspicion under the T.L.O. standard to drug test a student otherwise.

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What have the courts said about videotaping students in various stages of undress?

• Videotaping middle school age male and female athletes in various stages of undressing in a school locker-room violated the students’ 4th Amendment rights. In this case, the school staff were prompted to install video surveillance cameras by a concern that school safety measures should be enhanced.  Neither students nor their parents were informed of video surveillance in locker rooms, students using locker rooms could reasonably expect that no one, especially school administrators, would videotape them in various states of undress while they changed clothes for athletic activities, school officials instituted no policies designed to protect students' privacy, and there was no indication that school officials entertained concerns about student safety or security in locker rooms that would reasonably justify installation of cameras there. Brannum v. Overton County School Bd., 516 F.3d 489 (6th Cir. 2008). 14

What have the courts said about student strip searches?

• Strip search of student for prescription (400 mg Ibuprofen pills) or over-the-counter pills (Naproxen which equals 2 Alleve) was unreasonable given the lack of any impending danger from the drugs suspected and the unlikelihood that the student would hide pills in her undergarments. The student had a subjective expectation of privacy against such a search which is embarrassing, frightening, and humiliating. These are vulnerable adolescents and a strip search is patently intrusiveness. A strip search can lead to serious emotional damage because having to expose parts of your body in response to an accusation of wrongdoing can be fairly understood to be degrading and for this reason is banned by Kentucky model school policies. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 128 S.Ct. 2633 (2009).

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What have courts said about student cell phone searches?

• G.C. v. Owensboro Public Schools, 711 F.3d 623 (6th Cir. 2013): School staff confiscation and search of student’s phone and its texts violated 4th amendment where the student had been caught texting in class, had previously had occasional suicidal thoughts and anger issues, but whose behavior had not constituted reasonable suspicion sufficient to justify the search of the confiscated phone on the date of the search. On the date of this search, the school officials had no specific reason at the inception of the search to believe that the student was contemplating injuring himself or another student or was engaging in any unlawful activity. 16

What have other courts said about student cell phone searches?

• Klump v. Nazareth Area School District, 425 F.Supp.2d 622 (E.D.Pa. 2006): School policies allow students to carry cell phones but students may not use or display cell phones during school day. Student was in class and his cell phone fell out of his pocket. Teacher confiscated the phone and gave the phone to the assistant principal and the two then accessed student’s contacts and called 9 other students to see whether those students were using their cell phones at school and then accessed student’s text messages and voice mail and then held a conversation with student’s younger brother using the phone’s Instant Messaging feature without identifying who they were.

• Court found violations of 1st amendment, 4th amendment, and wire tapping law. 17

What have other courts said about student cell phone searches?

• Parents’ report to school staff of a long-haired student on the bus smoking marijuana and staff identified a student as the one indicated in the parent reports. Search of student’s cell phone by school personnel was not reasonable (violated the 4th amendment) because the search of the phone exceeded the scope of a reasonable search initiated to find drugs on student suspected of using drugs that morning. No reasonable school administrator could believe that searching a student’s cell phone would result in finding marijuana, the purpose for which the administrator initiated the search. Search of the student’s person (by pat down), student’s backpack, shoes, and pockets were all reasonable in scope because these are likely places where drugs might be hidden. The reasonableness of the search of these areas/items was also enhanced by the fact that the search of the items took place in the student’s presence and in the relative privacy of the administrator’s office. Gallimore v. Henrico County School Board, 38 F.Supp.3d 721, 725 (E.D.Va. 2014).  18

If you find sexually explicit photos in a search

• If the photos are unquestionably photos of adults, then you can show to your supervisor and notify law enforcement, as needed.

• If the photos are or may possibly be photos of minors, you notify your supervisor but only show and give to law enforcement. Do not save a copy of the photos for disciplinary records. Charges of distribution or download of child pornography could result otherwise.

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What have courts said about student social media account searches by school staff?

• School district violated student’s 4th amendment rights by requiring her to reveal her log-in information so they could search her online communications, none of which occurred during school time or on the school campus, created any type of substantial disruption of the educational environment, or violated any school rule. R.S., a minor, by and through her mother, S.S. v. Minnewaska Area School District No. 2149, 894 F.Supp.2d 1128 (D.Minn. 2012).

• Cheer coach had qualified immunity because in 2007, when she required the student to reveal her Facebook account log-in information to investigate whether a threat had been made by the student against another student after an original disagreement erupted at a school sponsored event, coach did not have enough notice from case law that this would violate 4th amendment rights. Jackson v. Ladner, 2015 WL 5332664 (5th Cir.). (A court might find differently today since there are so many more cases on 4th amendment and student electronic accounts and devices.)

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Miranda rights required or not?

The issue is whether a student is entitled to the benefit of the Miranda warnings before being questioned by a school official in conjunction with, acting on behalf of or in concert with law enforcement, or following an established procedure involving a law enforcement officer (the SRO), when the student is later subjected to criminal charges in court.

The Kentucky Supreme Court, following previous federal holdings, found the student is entitled to Miranda warning/rights before 4th amendment search or seizure, including questioning while “in custody”, with the participation or presence of a police officer (and a school resource officer/SRO counts as a police officer). Under Miranda, "custodial interrogation ... mean[s] questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."

The failure to read the student his Miranda rights before school staff questioned the student, in custody with a police officer present/assisting, led to the suppression of the juvenile’s confession in the criminal case. N.C. v. Commonwealth, 396 S.W.3d 852 (Ky. 2013).

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When Miranda rights are not required in Kentucky

• In 2014, in an unpublished decision of the Kentucky Court of Appeals (discretionary review request denied by Kentucky Supreme Court on June 3, 2015 so the case is final), the court held Miranda rights were not required when a principal, not acting on behalf of or in concert with law enforcement or following an established procedure involving law enforcement, stopped a student in the hall, asked the student to accompany the principal to the teacher’s lounge, and then asked the student questions about alleged criminal activity.

• The Kentucky Court of Appeals did find that continued questioning of the student by law enforcement, after Miranda rights were read and after the student plainly stated repeatedly that “I don’t want to tell on myself”, violated his Fifth Amendment right to remain silent. The student’s statements and confession made after that point were suppressed from presentation in a criminal trial. A.K.M. v. Com., 2014 WL 3887910 (Ky.App.). 22

Would school staff have qualified immunity for a search?

• Qualified immunity against a federal law claim shields federal and state officials from money damages unless a plaintiff shows (1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct. See Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

• “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ “ Id. at 2083 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). A case directly on point is not required, “but existing precedent must have placed the statutory or constitutional question beyond debate.” Id. Jackson v. Ladner, 2015 WL 5332664 (5th Cir.).

• For Kentucky state law claims, qualified official immunity can protect state and local officials who carry out executive and administrative functions from personal liability for negligent performance of discretionary acts that were made in good faith and within the scope of the employee’s authority. Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001).

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School policy and practice

• KSBA provides model policies on topics such as these and your district can seek this model policy from KSBA.

• Any attempts by school officials to search students or their property or to seize them or their property should be according to your district’s policies and procedures, the advice of your board attorney, and any standard practices created with the advice of your board attorney. Document all actions taken thereunder.

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School policies on search and seizure of studentsSTUDENTS 09.436

KSBA Policy on Search and Seizure

•REASONABLE SUSPICION (ADMINISTRATIVE SEARCH)No pupil's outer clothing, pockets, or his or her personal effects (e.g., handbags, backpacks, etc.) shall be searched by authorized school personnel unless there is reasonable suspicion to believe the search will reveal evidence that the pupil has violated or is violating either a school rule or the law.1 Search of a pupil's person shall be conducted only with the express authority of the Principal/designee. However, nothing herein will preclude a student from being subjected to a fixed or handheld electronic screening detector. An affirmative signal or response from a detector will serve as reasonable suspicion for a more intrusive search.•AUTHORIZED PERSONNEL•Searches of a pupil's person or his or her personal effects shall only be conducted by a certified person directly responsible for the conduct of the pupil or the Principal/designee of the school which the student attends.•WITNESS/PERSONAL SEARCHESWhen a pat‑down search of pupil's person is conducted, the person conducting the search shall be the same sex as the pupil; and a witness of the same sex as the pupil shall be present during the search. In addition, no search of a pupil shall be conducted in the presence of other students.These restrictions shall not apply to situations involving an imminent threat to students or staff where immediate action is required to prevent harm to health and safety.•STRIP SEARCHESNo strip searches of students shall be permitted. The phrase "strip search" means requiring a student to remove any article of clothing, or requiring a student to lift or lower an article of clothing, thereby causing the exposure of undergarments to allow for a visual inspection. The required removal of shoes, socks, or a hat or the removal or arrangement of outerwear does not constitute a strip search.•FAILURE TO COOPERATEStudents who fail to cooperate with school authorities when requested to shall be subject to other disciplinary action.

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School policies on search and seizure of students• REGULAR INSPECTION

School property, such as lockers, desks, and network systems, technology resources and accounts owned or supplied by the District are jointly held by the school and the pupil. School authorities have the right to conduct general inspection of all such property and resources on a regular basis. During these inspections, items which are school property, such as overdue library books, may be collected. Students should not expect privacy for items and information left in such locations. A single desk, locker or a technology resource/account may be searched if reasonable suspicion exists to believe that evidence of a violation of the law or a school rule is contained therein.

• ILLEGAL ITEMS

Illegal items (e.g., weapons, drugs, etc.) or other possessions reasonably determined by proper school authorities to be a threat to the pupil's safety or to others' safety and security may be seized by school officials.

• OTHER DISRUPTIVE ITEMS

Items which may be used to disrupt or interfere with the educational process may be temporarily removed form the pupil's possession by a staff member. Such items may be returned to the pupil by the staff member or through the Principal’s office.

• DISPOSITION OF ITEMS

Items which have been seized shall be turned over to the proper authorities or returned to the true owner.

(KSBA Policy on Search and Seizure of students) 26

School policies on search and seizure of students• TRAINED DOGS

Law Enforcement Officers are authorized to arrange for the use of trained dogs to locate contraband (prohibited items) on property owned or controlled (i.e., used, leased, rented) by the Board of Education. Specifically, a minimum of two (2) such searches shall be conducted each year at each District middle and high school, pending availability of resources to conduct them. Searches shall be subject to the following conditions:

A District Law Enforcement Officer shall be present during any search.

The dogs shall not be used to search persons or items in their immediate possession.

The Department of Law Enforcement shall coordinate search activities with the school principal or designee.

The Department of Law Enforcement shall coordinate search activities with local law enforcement agencies for use of drug-detecting dogs.

Searches involving dogs shall be conducted only when students are not in the immediate area being searched (i.e., students shall be in classrooms or other designated safe area when hallways are searched, and areas shall be cordoned off so that students and other individuals cannot get into the area being searched while a dog is being used); no student or other unauthorized individuals shall be in the vicinity of lockers or other areas of school property being searched.

All dogs shall be in the immediate control of a handler and shall not be allowed to come in close proximity to any student or unauthorized individual.

The alert of trained dog to an item or area shall qualify as reasonable grounds on which to base a further search.

All searches by a trained drug-detecting dog shall have the recommendation of the Director of Law Enforcement and prior approval of the Superintendent of Schools. The results of all searches by a trained drug-detecting dog shall be reported to the Superintendent, the School Director, and other appropriate officials by the Director of Law Enforcement.

• SCHOOL LAW ENFORCEMENT OFFICERS

This policy has no application to searches by law enforcement officers employed by the Board since these persons are police officers with the power to investigate crime committed on school property and to arrest for same. The law of search and seizure, applicable to police officers generally, governs the extent of their authority to conduct searches of pupils and to seize contraband which might be revealed by such searches.

(KSBA Policy on Search and Seizure of Students)27

School policies on police officers in schoolSTUDENTS 09.4361 AP.1

KSBA Policy on Police Officers in the Schools

•STATEMENT OF ACCORD

The relationship between the Fayette County Board of Education and the Lexington‑Fayette Urban County Government, Division of Police, is reflected by their agreement of July 7, 1986, which is available for review in the Office of General Counsel to the Board.

•LIAISON OFFICER(S)

The Liaison Officer(s) for the Division of Police/Department of Law Enforcement, Fayette County Public Schools, shall provide and maintain a consistent means of communication between the agencies, and assist school personnel with school‑related problems occurring outside the jurisdiction of the Department of Law Enforcement. This position shall be staffed by law enforcement officers employed and compensated by the Lexington‑Fayette Urban County Government, Division of Police. (For further information, see the Board-approved job description.)

•RELATION OF SCHOOL TO CHILD

The Board does not have complete parental rights in connection with pupils at school. In certain areas, parental rights shall be recognized. When parents are suspected of criminal activity with relation to a pupil, officials of the school district shall endeavor to balance the rights of the parent, the child and society.

Therefore, any investigation during school hours involving school children whereby a member of the Division of Police wishes to contact a child at school shall be subject to applicable procedures.

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School policies on police officers in school• QUESTIONING STUDENT WITNESSES/SUSPECTS

The police department shall contact the Principal, inform him/her of the necessity of questioning a student and provide a brief explanation of the circumstances. The assistance of the Principal shall be obtained in locating the student at school.

The Principal shall contact the parents of all students being questioned at school. The Principal may consider the student’s age, maturity level, and case facts in determining whether contact with parents is made prior to or immediately after the questioning. An investigation may be jeopardized by contacting parents at an inappropriate time.

The Principal or designee shall be present during the questioning of the student and may participate therein to the extent deemed necessary to protect the interests of the child.

When a custody order or warrant has been issued for the apprehension of a student, juvenile or adult, the law enforcement officer shall take physical custody of said student and transport him/her to the appropriate facility, whether juvenile intake or adult detention center.

When the student taken in to custody is a juvenile, the law enforcement officer shall contact the student’s parents. However, when the student arrested is an adult, the officer is not required to so notify the parents.

In cases other than those involving suspected child abuse, the Principal or designee shall diligently attempt to notify the student’s parents immediately, regardless of the student’s age or whether the student was arrested or taken into custody.

(KSBA Policy on Police Officers in the Schools) 29

School staff searches of students for medical, not disciplinary investigation, purposes

• If the reason for the search is due to concern of medical issues, not suspicion of a student’s violation of a school rule or a law, then there might be a different approach to these searches. Our binding case law (6th Circuit) doesn’t have a ruling on this. Only a search that is truly for medical purposes will be viewed under this approach and school staff are strongly cautioned not to try to back-door a search into this category. My prediction is that this would go very wrong for all involved.

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School staff searches of students for medical, not disciplinary investigation, purposes

• The 6th Circuit has had an opportunity to speak to this issue but only said that at the time of the incident, there wasn’t existing precedent from our circuit giving the nurse fair warning that her actions would violate the 4th amendment. In that case, a school nurse was informed by school staff that a 6 year old had repeated a complaint of “burning” when she urinated, irritation in her genital area, had trouble sitting and reportedly “walked funny.” The female nurse and female school staffer took the student to a private bathroom used by teachers, asked the student to pull down her pants and to spread her labia, and the nurse visually inspected the student for signs of medical issues without touching the student. There were no suspicions of child abuse motivating the examination (suspicion of child abuse would have changed the examination into a 4th amendment issue because law enforcement actions could result against a person alleged to have committed abuse of the examined child). Hearring v. Sliwowski, 712 F.3d 275 (6th Cir. 2013).

• 4th amendment review applies. 10th Circuit (Dubbs v. Head Start, Inc., 336 F.3d 1194 (2003).

• 4th amendment review does not apply. 9th Circuit (U.S. v. Attson, 900 F.2d 1427 (1990)); 2nd Circuit (Kia P. v. McIntyre, 235 F.3d 749 (2000)). 31

Scenarios: Scenario 1• Student Anna, fourteen year old freshman, and her friends are in the

restroom. Teacher walks in and sees and smells cigarette smoke. Teacher asks the students if they have been smoking and the students all deny. Teacher takes students to principal’s office. Only Anna has a purse on her at the time. Principal asks Anna to come to his office and searches Anna’s purse and finds cigarettes and rolling papers, which are commonly used to roll marijuana for smoking. Principal also finds in Anna’s purse the following: small amount of marijuana, a pipe, plastic bags, a fairly substantial amount of money in one dollar bills, an index card appearing to be a list of students who owed Anna money, and two letters that implicated Anna in marijuana drug dealing. Principal notified Anna’s mother and the police and turned the evidence of drug dealing over to the police.

• Question: Was the search and seizure of Anna’s purse lawful under the 4th amendment? Yes or no.

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Answer to Scenario 1Yes. The U.S. Supreme Court in 1985 (T.L.O. case) ruled that a search by school officials under

these facts was lawful under the U.S. Constitution’s 4th amendment. This search was reasonable because of the context of the search. Justified at its inception and the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place. Because there was individualized suspicion that Anna had violated school rules, the principal’s search of her purse does not have to be considered under the analysis for justifying school officials in conducting searches unsupported by individualized suspicion.

There were 2 separate searches in these facts. First there was the search for cigarettes which provided the suspicion that gave rise to the second search for marijuana. The validity of the search for marijuana must depend on the reasonableness of the initial search for cigarettes since there was no suspicion involving Anna and marijuana at the inception of the search. The first search was reasonable since Anna and other students had been caught in the restroom smoking and Anna and her friends denied this. Anna’s possession of cigarettes would have been evidence of a violation of the smoking ban and would corroborate the teacher’s report of violation as well as undermine Anna’s credibility in her defense to the charge of smoking. The first search was therefore reasonable. The second search began during the first search when the principal saw rolling papers as he removed the pack of cigarettes from Anna’s purse. It was reasonable for the principal to suspect that rolling papers indicated the presence of marijuana too in Anna’s purse. The discovery of the rolling papers gave rise to a reasonable suspicion that Anna was carrying marijuana as well as cigarettes in her purse. This suspicion justified further exploration of Anna’s purse, which turned up more evidence of drug related activity. Under these circumstances, it was not unreasonable to expend the search to separate zippered compartments of the purse.

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Scenario 2

• School policies allow students to carry cell phones but students may not use or display cell phones during school day. Kevin, a high school student, is in class and his cell phone falls out of his pocket.

• May the teacher search the phone’s contents? Yes or no.

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Answer to Scenario 2• No. This is the case of Klump v. Nazareth Area School District, 425

F.Supp.2d 622 (E.D.Pa. 2006).

• The circumstances did not create a reasonable suspicion that the student was using the phone. Additionally, the teacher in this case gave the phone to the assistant principal and the two then accessed Kevin’s contacts and called 9 other students to see whether those students were using their cell phones at school and then accessed Kevin’s text messages and voice mail and then held a conversation with Kevin’s younger brother using the phone’s Instant Messaging feature without identifying who they were. The federal court found violations of 1st amendment, 4th amendment, and wire tapping laws by school staff for these actions.

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Scenario 3• Elisa is a middle school student. The assistant principal has escorted

Elisa from class to his office. He showed her a day planner containing knives and other contraband. She admitted owning the planner, but said that she had lent it to her friend (another student) and that the contraband was not hers. He then produced four prescription-strength 400 mg Ibuprofen pills, and one over-the-counter, pain relief Naproxen (equal to 2 Aleve) pills, all of which are banned under school rules without advance permission. She denied knowledge of them, but the assistant principal said that he had a report that she was giving pills to fellow students. She denied it and agreed to let him search her belongings. He and a female administrative assistant (AA) searched Elisa’s backpack, finding nothing. He then had the AA take Elisa to the school nurse’s office to search her clothes for pills. After the AA and the female nurse, had Elisa remove her outer clothing, they told her to pull her bra out and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found. Was any search reasonable and was the strip search reasonable? Yes or no. 36

Answer to Scenario 3• A search would be reasonable here but a strip search would not. This

is the case of Safford Unified School Dist. No. 1 v. Redding, 557 U.S. 384, 129 S.Ct. 2633 (2009). The U.S. Supreme Court held that the assistant principal had sufficient grounds to have enough suspicion to justify a search of Elisa’s backpack and outer clothing. If a student is reasonably suspected of giving out contraband pills, she is reasonably suspected of carrying them on her person and in the carryall that has become an item of student uniform in most places today. If the assistant principal’s reasonable suspicion of pill distribution was not understood to support searches of outer clothes and backpack, it would not justify any search worth making. And the look into Elisa’s bag, in her presence and in the relative privacy of his office, was not excessively intrusive, any more than the AA’s subsequent search of Elisa’s outer clothing. The strip search of Elisa violated the 4th amendment. 37

Scenario 4

• Nate is a high school student suspected of possessing and giving away hydrocodone pills. A local deputy sheriff assigned to the school as a School Resource Officer (SRO) and an assistant principal went to Nate’s classroom and took him from class to the school office. After questioning by the assistant principal in the deputy sheriff’s presence, the student admitted to giving pills to students. Testimony at the suppression hearing revealed the assistant principal and the SRO “had a loose routine they followed for questioning students when there was suspected criminal activity.” Should Nate have been read his Miranda rights before questioning? Yes or no. 38

Answer to Scenario 4Yes, Miranda rights should have been read to the student prior to questioning. This is the Kentucky case N.C. v. Commonwealth, 396 S.W.3d 852 (Ky. 2013). The student is entitled to Miranda warning/rights before 4th amendment search or seizure, including questioning while “in custody”, with the participation or presence of a police officer (and a school resource officer/SRO counts as a police officer). Under Miranda, “in custody” during questioning, or “custodial interrogation ... mean[s] questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

The failure to read the student his Miranda rights before school staff questioned the student, in custody with a police officer present/assisting, acting on behalf of or in concert with law enforcement or following an established procedure involving law enforcement, violated the 4th amendment and this led to the suppression of the student’s confession in the criminal case. 39

Questions?

Specific situation questions?

Consult your policies and your leadership and your board attorney.

General questions on the presentation?

Amy Peabody

Assistant General Counsel

KDE

500 Mero Street, 1st Floor CPT

Frankfort, KY 40601

Amy.Peabody@education.ky.gov

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