slide 1 student searches and seizures: legal standards, policy, and procedures mike skiba,...

STUDENT SEARCHES AND SEIZURES: LEGAL STANDARDS,

POLICY, AND PROCEDURES

Mike Skiba, Supervisor

November 2009

Bakersfield City School District Student Services Department

AUDIENCE QUESTIONS

Presentation Summary

1. Define and illustrate contraband, search, and seizure.2. Give an overview of the importance of rules related to

search and seizure. 3. Describe “school officials” as the positions authorized to

conduct a search and make a seizure.4. Identify the factors giving rise to a “reasonable

suspicion” or justification to initiate a search. 5. Describe the factors likely to make a search reasonable

and contrast that example with unreasonable searches.6. Limit searches to areas likely to contain suspected

contraband (limit the scope of a search).7. Plan, design and carry out a search procedure with a

minimal amount of intrusiveness.8. Describe parameters for accepted procedures for the

seizure of property and the detention of students.

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)

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

http://web2.westlaw.com/Find/Default.wl?DB=1000546&DocName=USCOAMENDIV&FindType=L&AP=&RS=WLW2.66&VR=2.0&SP=&SV=Split&MT=California&FN=_top

Is Privacy Important in Today’s World?

Secure in their person Secure in their house

Secure in their papers and effects

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)

http://web2.westlaw.com/Find/Default.wl?SerialNum=1967129584&FindType=Y&AP=&RS=WLW2.66&VR=2.0&SP=&SV=Split&MT=California&FN=_top

http://web2.westlaw.com/Find/Default.wl?SerialNum=1967129584&FindType=Y&AP=&RS=WLW2.66&VR=2.0&SP=&SV=Split&MT=California&FN=_top

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.

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.

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)

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)

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.

What Conduct Amounts to a Search? *

* 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

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

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.

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

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).

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])

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.

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.

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.

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.

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])

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 (BoardPolicy 601.11 – Search and Seizure).

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.

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?)

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]).

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).

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).

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]).

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]).

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].

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.

Nexus Test

The reasonable suspicion standard requires a sufficient nexus or connection to exist between:

1.The object sought (contraband);2.The place to be searched; and the 3.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

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.

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)

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.

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]).

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?

Scope of Search Continuum

Student pockets on person

Purse/wallet Book bag/

backpack Desk/locker

Cell Phones

Slide 41

Contraband? Does looking at call history, text

messages, pictures/videos constitute a search?

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.

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).

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

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)

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

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]).

Conclusion Remarks/Questions

1. Contraband, search, and seizure2. School officials conduct searches and make

seizures3. Searches are preceded by a “reasonable

suspicion” (justification) 4. Searches must be reasonable; unreasonable

searches are prohibited by the U.S. Constitution

5. Reasonable searches are limited in scope and intrusiveness

6. Seizure of contraband and detention of students

Supplemental Slides

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

Slide 50

Video Surveillance

The use of video surveillance by authorized staff will be preceded by proper notification of affected persons (Video and Audio Recording, BP 300.32).

One form of “proper notification” is a sign containing the following language.

The recording of activity by video camera, including occasional monitoring in real time, is used in the open and public areas of these school grounds for the safety of students, staff, and visitors.

This language assumes two things. (1) A person may be viewing the camera screens in real time, or may be reviewing tapes at a time after events or activity has been recorded; and (2) the audio capability of the cameras, if any, will be disabled.

TYPES OF SUSPICION: INDIVIDUALIZED AND

GENERALIZED

Individualized Suspicion

Suspicion one specific student may have violated the law or district rules

Generalized Suspicion

Suspicion all members of an accused group may have violated the law or district rules (Alexander B., 1990 and Smith v. McGlothlin, 1997)

Search of an entire class, when school officials were not even certain that one of the students was guilty, was far too broad in scope (Bellnier v. Lund, 438 F. Supp. 47 [N.D.N.Y. 1997])

Examples Generalized Suspicion

In Alexander B. (2nd Dist. [1990] 220 Cal.App.3d 1572), the dean, attempting to prevent two groups of students from a clash, received information one member in an identifiable group had a gun. A search of all students in that group for weapons was upheld by the court.

A Vice Principal saw 20 students and saw smoking materials being discarded as he approached. Each student was searched individually during a two-hour period. The Court held individualized suspicion was not necessary to determine that a search is reasonable and the search (duration) was not unreasonable since students were required to be in school at that time anyway (Smith v. McGlothlin, 119 F.3d 786 [9th Cir. 1997]).

Review

When may a search be conducted? Reasonable suspicion or justification to search

What are the criteria used to determine if a search was reasonable? Justified at its inception (reasonable suspicion) Reasonable in scope (reasonable related to the

objectives of the search) Minimally intrusive given the student's

age/gender and the nature of the infraction

Summary and Conclusion

Note: Suspicionless searches (e.g., Metal Detectors) not covered in this presentation

Book Bags, Purses, and Other Personal Effects

Pupil’s personal possessions and effects fall somewhere on the spectrum between more intrusive searches of the person and the less intrusive search of jointly owned property such as lockers and desks (Pitasky, 1998, I.2:21)

A student has only a minimal expectation of privacy regarding the outer touching of a book bag by security (In the Matter of Gregory M., 606 N.Y.S.2d 579 [N.Y. Ct.App.1993])

Types of Reasonable Searches

In review: Reasonable Search based on individualized suspicion

In review: Reasonable Search based on generalized suspicion

SEIZURE: What may be seized?

Any item discovered during a valid and lawful student search that has been properly connected beforehand with a specific infraction (e.g., contraband)

It is also possible to have a plain view seizure of contraband

Seizure/Detention of Students

Seizure includes the willful detention or willful taking of a person or thing.

Student constitutional protections apply to the willful detention of a student.

Seizure/Detention of Students Continued

In the case, In re Randy G. (2001), the California Supreme Court held:

Students can be detained for questioning while on school grounds without the detention constituting a violation of the student’s right to be free from unreasonable searches and seizures, even in the absence of reasonable suspicion, so long as such authority is not exercised in an arbitrary, capricious, or harassing manner.

The court concluded that moving students about the classroom, or from one classroom to another, sending students to the office, or taking them into the hallway to ask a question would not seem to qualify as a detention as defined in the Fourth Amendment.

Notice and Announcement *

* Before actually conducting a search, a school official must give notice and announce their identity and purpose.

“My name is (name) and I am (position). I have a reasonable suspicion that evidence of (infraction) will be found at (location) and I will be conducting a search.”

Materials on Search and Seizure

Glossary for Search And Seizure

Definitions

Board Policy 601.11 (Search and Seizure)

Publish Powerpoint On Web Site

Thank you for your attendance and attention!

Additional References

Russo, C.J. & Mawdsley, R.D. (2004). Searches, Seizures and Drug Testing Procedures: Balancing Rights and School Safety. Horsham, Penn: LRP Publications.

Van Dyke. J.M. & Sakurai, M.M. (2006). Checklists for Searches and Seizures in Public Schools. Eagan, MN: Thomson West.

Search Procedure: Use of a Metal Detector With and Without Suspicion

The use of scanning devices such as metal detectors (or magnetometers) has been deemed a "search" within the meaning of the Fourth Amendment (New Jersey v. T.L.O. [1985] 469 U.S. 325, 333; In re William G. [1985] 40 Cal.3d 550, 557, 561).

In a metal detector search, the object sought is always some type of metal substance, presumably a weapon, which would set off the device. The machinery does the searching for school officials.

Use of Metal Detectors in Society

Airports

Court Buildings

Law Enforcement/Security

Exclusionary Rule

In judicial proceedings, any evidence obtained illegally is inadmissible; the search or seizure is then in violation of the Fourth Amendment

Majority of courts have held the “exclusionary rule” doesn’t apply to school disciplinary proceedings

Search Procedure: Use of a Metal Detector With and Without Suspicion Continued

Courts have upheld the reasonable use of a metal detector when the school can demonstrate a strong interest in eliminating the threat of death or serious injury to students and staff posed by knives and, as the evidence in the case law on point indicated (i.e., random metal detector search), the intrusion on the student’s liberty was limited (The People of the State of Cal. V. Latasha W., 60 Cal. App. 4th 1524 (Cal. Ct. App. 1998).

Metal Detectors: Restricted to JH/Middle School Campus

“The (Bakersfield City School District ) board also finds that random metal detector searches may offer a reasonable means to reduce the weapons and to mitigate the fears of students and staff on our middle school and junior high campuses”(BP 601.11 – Search and Seizure)(emphasis added).

During the 2000-01 school year, Safe School

Block grant funding was used to purchase a metal detector for each JH/Middle School campus.

Three Ways Metal Detectors May Be Used

Individualized – Reasonable search based on individualized suspicion

Generalized - Reasonable search based on generalized suspicion

Suspicionless - Reasonable search based on random (or “mass”) search for weapons (Administrative Plan and Report required!)

Required Safeguards in Random (or Mass) Use of Metal Detectors

Pupils must receive advance notice the school will be using metal detectors (See Notice #1 and Notice #2 below).

If a JH/Middle School elects to use random metal detector scans as part of its school safety program, a written notice shall be provided to both the parents and students of that school. This written notice shall briefly describe the school’s use of a metal detector and shall be given upon enrollment and at the beginning of each school year.

Additionally, a notice shall be posted at any school using metal detectors to explain that anyone may be scanned by a metal detector for guns, knives, or other illegal weapons when on campus or attending extracurricular events.

Required Safeguards in Random (or Mass) Use of Metal Detectors Continued

An administrative procedure must be established (and followed) to eliminate arbitrary discretion as to who will be searched (e.g., every student, every fifth student entering the campus will go through the metal detector scan).

Review form entitled, “Metal Detection: Administrative Plan and Report.”

Examples of How Arbitrary Discretion in a Random (or Mass) Search Can Be Eliminated

A Random schedule for metal detector scanning can be implemented by: Scanning every student Scanning every 4th or 10th, or 20th student

In all cases, an individualized search rising from the metal detector activation detected during a mass or random search would be conducted out of view of other students or the public.

NOTICE #2: Posted (Sign) at School Site

California law (Penal Code 626.9 & 626.10) prohibits weapons on or near a school campus. All persons, packages, and containers may be searched in accordance with applicable law. A refusal to submit to a search will result in denial of entry to the school campus.

Additional Legal Issues in the Use of Metal Detectors

The majority of court cases concerning metal detectors at schools have involved urban schools in large cities. Courts generally have upheld such searches when conducted in a random, suspicionless manner, where they are tied to the purpose of school safety, and the school is located in an area of high crime and violence (Pitasky, 1998, I.2:48).

A characteristic of mass searches is that there is no element of individualized suspicion. Every student is subjected to a search on an equal basis.

Additional Legal Issues in Metal Detectors Continued

A student entering the school building, saw metal detectors, and then revealed his pistol to an officer. The appeals court held that the detention of the student constituted an illegal seizure as the student had been specifically told to walk through the metal detectors even though he was leaving the building (People v. Parker, 672 N.E. 2d 813 [Ill. App. Ct. 1996]).

Additional Legal Issues in Metal Detectors Continued The use of metal detectors does not violate a

student’s right to be free from unconstitutional searches and seizures. The use of the metal detector must pass the two prong test established in T.L.O.:

(1) justified at its inception, and (2) reasonably related in scope to the

circumstances that initially justified the

interference. One court ruled a reasonable procedure involved

asking students to remove all metal objects to avoid setting off the wand, and the student’s person was searched only if the wand repeatedly indicated the presence of metal (The State of Florida v. J.A., 679 So.2d 316 [Fla.App.1996]).

Restriction to Random (or Mass) Searches with Metal Detector

Pupils may be required to pass through a metal detector as a condition for entering school premises and as a general matter, no individualized suspicion is necessary to justify the use of this equipment. However, if a student does not willingly subject to the metal detector search and elects to leave the school grounds (elects not to enter the campus) without passing through the metal detector, the school still would need reasonable suspicion to order the student to submit to the metal detector search just as it would in any other student search (People v. Parker, 672 N.E. 2d 813 [Ill. App. Ct. 1996]).

Video Surveillance

The use of video surveillance by authorized staff will be preceded by proper notification of affected persons (Video and Audio Recording, BP 300.32).

One form of “proper notification” is a sign containing the following language.

The recording of activity by video camera, including occasional monitoring in real time, is used in the open and public areas of these school grounds for the safety of students, staff, and visitors.

This language assumes two things. (1) A person may be viewing the camera screens in real time, or may be reviewing tapes at a time after events or activity has been recorded, and (2) the audio capability of the cameras, if any, will be disabled.

Questions

You know that you lack a reasonable suspicion to conduct a search. You talk to the student and ask for his permission to look inside his backpack. He consents. Will it stand up?

You observe a student stagger twice and then walk fine. Nothing else out of the ordinary is known to you. Do you have reasonable suspicion? If yes, what are your articulable facts? If no, what risk would you run if you conducted a search on this person?

Questions Continued

You heard a rumor, from an unreliable source, there is going to be a serious knife fight at school. In desperation, you are thinking about searching with your metal detector any suspicious student you see, as they enter the campus in the morning. Would any of the searches be legal? If you find something, will the evidence be legally admissible to support a disciplinary action? Why?

Questions Continued

From a distance, you see a group of children on the playground passing around a knife. By the time you get to the location, you can identify a group of students you believe had the knife, but don’t know the current location of the knife. No one is talking. What type of suspicion do you have and whom, if anyone, can you search?

Questions Continued

Relative to search and seizure, what benefits accrue to school officials possessing a developed understanding of a student’s civil and constitutional rights?

Questions Continued

Today is a day to conduct a mass (random) metal detector search of students as they first enter the campus. All the prerequisite steps have been taken. Joey is observed as he stands in line to enter the campus. He appears very anxious and repeatedly appears to be counting to determine the likelihood of being scanned. He bolts and runs right before he gets to the gate. What can be done? Why?

Questions Continued

Search, Mass (or Random) - A mass search or random sweep refers to any search in which school officials seek to examine more than one student at a time and do not possess the requisite “reasonable individualized suspicion” or “reasonable generalized suspicion.”

Definition – Mass (or Random) Search

Prohibited searches include strip searches, body cavity searches, or any search that involves removing or arranging the student's clothing permitting visual inspection of his/her underclothes, breast, buttocks, or genitalia (Education Code 49050). Unreasonable searches are also prohibited.

Search, Prohibited

Search (Random) - A search without an individualized or generalized suspicion a student(s) is violating or has violated law or district rules; every student is subjected to the search on an equal basis.

Search, Random

Search, Reasonable – A justified, minimally intrusive search based on reasonable suspicion. A search that does not invade the expectation of privacy society is prepared to recognize as reasonable (See Terry v. Ohio, [1968] & United States v. Hensley, [1985]).

Search, Reasonable

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