The standard for school searches of students, backpacks, and such was discussed last time. Recall that the Fourth Amendment bars “unreasonable” searches and seizures, so the critical inquiry is what constitutes “reasonable” searches at school. In order to be “reasonable,” school searches must be (1) justified at their inception (i.e. justifiable when the search began), and (2) reasonably related in scope (i.e. who or what is searched, and to what extent) to the circumstances that justified the interference in the first place.
The need for some standard to search a student’s person or possessions stems from the Supreme Courts recognition that students have some expectation of privacy. Consider that “[s]tudents at a minimum must bring to school not only the supplies needed for their studies, but also keys, money, and the necessaries of personal hygiene and grooming…in addition, students may carry on their persons or in their purses or wallets such non-disruptive, yet highly personal items, such as photographs, letters, and diaries…[f]inally, students may have perfectly legitimate reasons to carry with them articles of property needed in connection with extracurricular or recreational activities.” Irby v. State, 751 S.W.2d 670, 672 (Tex.App,–Eastland 1988).
Justified At Inception: pretty much anything will work
“Justified at inception” refers to a standard of suspicion required to actually conduct the search in the first place. “[T]he standard of suspicion necessary to comport with the Fourth Amendment [for searches of students conducted by public school officials] is ‘reasonable suspicion,’ not the usual ‘probable cause.’” In re K.C.B., 141 S.W.3d 303 (Tex.App.—Austin 2004). Thus, reasonable suspicion (the same level of suspicion required to pull you over when driving or to temporarily detain you), not probable cause (the level of suspicion required to arrest you or to search your car, person, or home), is required to “justify the [search] at inception.” Russell v. State, 74 S.W.3d 887, 891-2 (Tex.App.—Waco 2002)(rehearing overruled).
At its essence, “justified at inception” is a fancy way of saying that a student cannot be arbitrarily searched. In order to effectuate a search, the school official must have a basis to believe that the search will yield evidence that a specific student is breaking the law or school rules. This is precisely what the Court meant when it held that “[u]nder ordinary circumstances, the search of a student by a school official will be justified at its inception where there are reasonable grounds for suspecting that the search will turn up evidence that student has, or is, violating the laws or the rules of the school.” TLO, 469 U.S. (1985).
For example, a report to the assistant vice principal that a specific student had been smoking warranted reasonable suspicion to justify a search of student’s purse for cigarettes. Id. Upon searching the student’s purse, the discovery of rolling papers gave reasonable suspicion to conduct a further search of the student’s purse for marijuana. Id.
Where a school security officer had observed a specific student and others smoking in the parking lot; the student was wearing baggy shorts; the principal had seen the student “messing with” his shorts in her office earlier; the student refused to empty his pockets for the principal; and the police officer who searched the student knew from experience that “students who refuse to empty their pockets for a school administrator are concealing something they don’t want to disclose, usually ‘a weapon, marijuana, or cigarettes,’ a patdown search of the student was “justified at inception.” Russell, 74 S.W.3d (2002). This was because the information made known to the officer who performed the search was sufficient to give the officer “reasonable grounds to believe that [student] was in possession of a weapon.” Id. At 893.
While the “justified at inception” standard might seem low (and it is, to be certain), it is not without limit. For example, an anonymous tip that a student has a bag of marijuana in his underwear was insufficient to raise reasonable suspicion for school officials to search the student, and thus did not justify the search at its inception. KCB, 141 S.W.3d (2004).
Additionally, the school must have a basis for suspecting a particular person possesses contraband or is breaking the law or school rules before subjecting that specific student to a search. Jones v. Latexo Independent School District, 499 F.Supp. 233 (E.D. Texas, Tyler Division 1980). “Neither police nor any other official may stop and search all persons present at a particular location simply because of generalized suspicion that somebody in attendance might possess contraband.” Id. At 234. Basically, school officials cannot “fish” for evidence of wrongdoing. Thus, “where there were no facts to raise reasonable suspicion regarding specific students, school officials exceeded the bounds of reasonableness in using a [drug sniffing dog] to inspect virtually the entire student body.” Id.
Reasonable In Scope: The Fourth Amendment Protects Your Underwear
A search will be reasonable in scope when the measures adopted are reasonably related to the objectives of the search and are not excessive intrusive in light of the student’s age and sex and the nature of the infraction.” TLO, 469 U.S. (1985).
Examples of searches “reasonably related in scope” include requiring a student empty his pockets after school administrator received a tip that the student was carrying a weapon was reasonably related in scope to search of student for weapons (Wilcher v. State, 876 S.W.2d 466 (Tex.App.—El Paso, 1994, pet. ref’d); search of student’s locker was reasonable under circumstances when another student informed the principal that student was “high” and a search of student revealed red eyes and dilated pupils but no drugs, as student had no reasonable expectation of privacy in contents of locker. (In re S.M.C., 338 S.W.3d 181 (Tex.App.—El Paso, 2011).
However, not all searches are held to be reasonable. Where the scope of the search seems excessive or extreme relative (e.g. requiring a male student to pull down his pants, or requiring a female student to pull out her bra) relative to the offense the student is suspected of committing (e.g. truancy) are generally held to be unreasonable.
Perhaps the most well-known case on this point is Safford Unified School District v. Redding. 557 U.S. 364 (2009). In Safford, school officials received a tip that Redding, a middle school student, had given pills to a classmate. The student who reportedly received the pills was called into the office. A search of her pockets and wallet revealed several pills and a razorblade. The student told the officials that Redding had given her the pills. (The pills were later identified as prescription strength Ibuprofen and over-the-counter naproxon, a pain reliever.) The officials did not ask any other questions (e.g. where Redding kept the pills, etc.) Instead, Redding was called to the office. School officials first searched Redding’s belongings and found no contraband. Believing that students frequently “hid contraband…under their clothing” they forced Redding to remove her clothing down to her underwear. She was then forced to “pull her bra out and to the side and shake it” and “pull the elastic” on her underpants to see “what might fall out.” The Supreme Court held that the search was justified at inception, but that the strip search was unreasonable in its scope. (Interestingly, the Court then found the school was protected from liability under qualified immunity.) Justice Stevens, agreeing that the search was unreasonable (but disagreeing that the school had immunity) was to the point: “It does require a constitutional scholar to conclude that a nude search of a 13 year-old girl is an invasion of constitutional rights of some magnitude.”
Nudity, however, is not required to make a search “unreasonable” in scope. In Coronado v. State, Coronado, a Clear Creek High School student, challenged his conviction for possession of a controlled substance (cocaine), alleging that a search of his vehicle was unlawful. The assistant principal had received information that Coronado had attempted to sell drugs to another student. The assistant principal then patted Coronado down, and made him turn his pant pockets inside-out, remove his shoes, and pull down his pants. No contraband was discovered during this search, but $300.00 in cash was found in his wallet. The assistant principal asked Coronado if he sold drugs at school, to which he replied, “Not on campus.” About a week later, Coronado was seen leaving school; he was confronted and asked about where he was going. He was evasive in his answers. A sheriff’s officer assigned to the school stated he suspected Coronado of “skipping school,” and patted him down and found $197.00 and car keys on his person. He was again required to pull down his pants. No contraband was found. The officer demanded that Coronado take him to Coronado’s car, and allow the officer to search his trunk. Marijuana, cocaine, and a triple beam scale were found. Coronado was handcuffed to a chair for 2-3 hours, and questioned; he eventually gave a statement revealing prior and pending drug deals. The Court held the initial patdown of Coronado to be warranted, but called the subsequent searches (requiring him to pull down his pants, pull out his pants pockets, and the search of his trunk) “excessively intrusive” and “not reasonably related in scope to the circumstances which justified [the vice principal’s] initial interference with [Coronado] which was to determine if he was skipping school.” 835 S.W.2d 636 (Tex.Crim.App. 1992)(en banc).
So, while school searches require a lesser standard than is typical, there are limits to the constitutionality of such searches.