Search and Seizure Guidelines
Administrative Searches
Most student searches in schools begin because of some reasonable suspicion by a school district employee that the student has violated a law or school policy. In order to have reasonable suspicion, a school employee must have articulable facts that support the suspicions are true. A justifiable search is one in which a school employee:
- Has made specific observations or knowledge.
- Had rational inferences that were supported by all observations & facts found & collected.
- Explained how the available facts and rational inferences provided an objective basis for suspicion when combined with the training and experience of the school employee.
The information or knowledge possessed by the school employee must come from a valid and reliable source to be considered reasonable. These sources can include the employee’s personal observations and knowledge, reliable reports of other school officials, reports of eyewitnesses and victims, and/or informant tips. The suspicion must be based on facts and weighed so that the probability is sufficient enough that the suspicion may be true.
A justifiable student search must include each of the following components:
- Reasonable suspicion must exist that a particular student has committed or is committing a violation of law or school policy.
- There must be a direct connection between what is being sought and the suspected infraction.
- There must be a direct connection between what is being sought and the place to be searched.
In general, school officials cannot search a large group of students just because they suspect that a policy has been violated but have been unable to connect the violation to a particular student. However, there are court cases that have allowed such large group searches, particularly concerning the suspicion of someone possessing a dangerous weapon, which jeopardizes the safety of the student body.
Metal Detectors and Use of Metal Detecting Wands
Administrative searches such as walk-through metal detectors or use of wands in schools can be done for safety and securely based on the following restrictions:
- Each and every student must be required to pass through the checkpoint.
- The intrusion on privacy is minimally invasive.
- Checkpoints are clearly defined at the entrance(s), by placards and notices.
- Students have advance notice of detectors.
Walk through metal detectors have been deemed minimally invasive and have been ruled constitutional. A handheld metal detector can be used to search any student with which there is reasonable suspicion that they may have something harmful on their persons. In addition, the Court has upheld rulings that a handheld metal detector may be used to search every student and their possessions as they enter the school building. However, a random use of a handheld metal detector without reasonable suspicion is not recommended.
Use of Canine Detector Teams
The use of trained canine detector teams is not considered a search under the Fourth Amendment as the courts have held there is no reasonable expectation of privacy to odors present in the air.
A “dog sniff” is not a search within the meaning of Fourth Amendment. Thus, no probable cause is required for a drug sniffing dog when used in this sense. Court rulings have declared that persons should have no reasonable expectations of privacy to the air surrounding inanimate objects. This makes student lockers, student automobiles, backpacks, book bags, purses, etc. that are not physically on the student permissible for a drug dog to sniff. If a dog does “hit” on contraband, then that establishes probable cause for a physical search to take place.
Courts have disagreed upon the use of drug-sniffing dogs to search the air around a student’s physical person. In two cases the state courts ruled the dog was intrusive and comprised a search. In B.C. v. Plumas Unified School District, the dog in question touched, put its nose upon the student and in one case scratched at the student. This may be due to a failure of training on the part of the dog handler teams. Air searches close to people require very specialized training over and above normal detector dog training. There are no cases on the national level which support or dispel the use of dogs to search people. Random searches of lockers and classrooms are normally allowed. Random searches of bags are allowed if the bags are separated from the person.
Plain View Doctrine 1971
No warrant is needed nor justification of reasonable suspicion in cases of plain view discovery. According to the Plain View Doctrine as defined in Coolidge v. New Hampshire, if an officer is lawfully present, he may seize objects that are in “plain view”. However, the officer must have had probable cause to believe that the objects are contraband. What’s more, the criminality of the object in plain view must be obvious by its very nature. As an example, if a school employee noticed a plastic bag with marijuana in it, on the table in front of a student, the marijuana could be seized, provided that the school employee had reasonable knowledge the substance was marijuana based on their training, knowledge, and experience.
Consent Search
If a party gives consent to a search, a warrant is not required. There are exceptions and complications to the rule, including the scope of the consent given, whether the consent is voluntarily given, and whether an individual has the right to consent to a search of another’s property. To be safe, consent should be in writing and signed by the person being searched to cover either their person or belongings. Keep in mind, that the search MUST stop when the person says to “stop” and the consent search may only go as far as the person permitted. All officers (SRO, SPO and SSO) may conduct a consent search.
Police Consent Search
In Schneckloth v. Bustamonte (1973), the Court ruled that a consent search is still valid even if the police do not inform a suspect of his right to refuse the search. However, the officer should ensure that the person giving consent knows that they can refuse at any time (this should be in the written consent form and be told to the person).
Administrative Consent Search
When a school official or law enforcement officer lacks the necessary legal standard to search (reasonable suspicion or probable cause), he or she may ask the student for his or her consent to search. For consent, to be valid, it must be voluntary. With this in mind, prior to asking for consent, the administrator or law enforcement officer should consider the student’s age and mental capacity, and the context. It must be shown the student can knowingly, willingly and intelligently consent. If a student gives consent to search, the search must be conducted only as far as the student has consented and no further. For example, if a student consents to a search of their locker, you may not search their bookbag without gaining additional consent (unless, of course, the search of the locker provides reasonable suspicion or probable cause).
Exigent Circumstances – circumstances that are of such urgency as to justify a warrantless entry, search, or seizure by police when a warrant would ordinarily be required. SROs, SPOs and SSOs can intervene with physical force if needed in such urgent conditions such as a person wielding a weapon, the smell of an illegal substance behind a closed door that is locked or a bomb threat.
A thorough understanding of when and how searches can take place allows for greater protection of everyone at the school.