By Robert E. Shepherd, Jr.
As noted in an earlier column, the law governing searches of juveniles
and their property has largely merged with the rules governing searches
of adults, with two major exceptions. (Robert E. Shepherd, Jr., Juvenile
Justice: Searches and Seizures Involving Juveniles, 5(1) Crim. Just.
27 (Spring 1990)). Those exceptions involve consent searches of a juvenile
or the juvenile's property, either on the street or elsewhere in public
or in the youth's room in the parents' residence, and searches conducted
in a school setting. Otherwise, the law of search and seizure has converged
into a single set of rulings. In recent years, searches of a youth or
his or her property on school premises have achieved greater importance
than consent searches, and the law has changed somewhat.
For many years there was a largely unresolved debate over the standards
governing searches of students and their possessions at school or on
school grounds. Much of that debate involved four major and critical
issues: 1) the legal status of the school official conducting the search
(whether he or she was deemed to be a state agent or a private citizen);
2) the nature of the school-pupil relationship (whether school officials
act in loco parentis (in place of the parents) in conducting a search);
3) the juvenile's proprietary interest in the item searched (whether
the student has a protectible expectation of privacy in the school locker
or desk or if they are deemed to be the school's exclusive property);
and 4) the reasonableness of the search itself, regardless of the subject
of the search. Since the 1985 United States Supreme Court decision in
New Jersey v. T.L.O., 469 U.S. 325 (1985), the primary focus has been
on the reasonableness of the search. In addition, the more recent case
of Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), addressing
random, suspicionless drug testing of public school athletes, has narrowed
the issue somewhat more.
New Jersey v. T.L.O.
The Supreme Court held in T.L.O. that the Fourth Amendment does indeed
apply to school searches as well as to searches elsewhere, and that
public school authorities conducting a search are acting as state agents;
those holdings generally have foreclosed any further examination of
the first two inquiries delineated above. Nonetheless, at least one
case since T.L.O. has applied an in loco parentis analysis to a search
of a student's room during a band field trip to Hawaii. (Webb v. McCullough,
828 F.2d 1151 (6th Cir. 1987)). The Supreme Court further held in T.L.O.
that school officials need not obtain a warrant before searching a student,
and that such a search 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 the law or the rules of
the school." (469 U.S. at 341-42) Similarly, "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 nature of the infraction." (Id.
at 342.) Thus, a standard lower than probable cause--articulated as
reasonable grounds or reasonable suspicion--governs school searches,
and a violation of school rules as well as violations of the law may
provide the impetus for the search. This is obviously a looser predicate
than would apply with adults, and in later cases the focus clearly has
been on the reasonableness of the school search rather than on the quantum
of suspicion required.
In T.L.O. the Court was looking at a search that in its inception
was focused on an allegation that T.L.O. and her friend were smoking
in the bathroom, contrary to school rules. When confronted with the
accusation, T.L.O. denied that she had been smoking and the assistant
principal of the school demanded to see her purse. Upon searching the
purse he discovered some marijuana, along with other items that indicated
she was dealing drugs. School disciplinary actions followed and juvenile
delinquency charges were filed as well. The juvenile court and superior
court denied motions to suppress, but the New Jersey Supreme Court declared
the search to be unreasonable and reversed the conviction. The United
States Supreme Court granted a writ of certiorari and upheld the validity
of the search. Although concluding that the Fourth Amendment applied
to the search, and that the assistant principal was a state actor subject
to the constraints of the amendment, the Court ruled that a "school
setting requires some easing of the restrictions to which searches by
public authorities are ordinarily subject." (469 U.S. at 340.)
The Court in T.L.O. reserved judgment in its opinion on the question
of whether individualized suspicion is a critical element in the determination
of reasonableness and on the applicability of its ruling to locker and
desk searches. Lower courts have tended to apply a less stringent standard
to locker and desk searches than to searches of the person. Even with
locker and desk searches, however, there should be an examination of
the exclusivity of the student's control over these locations and the
extent of the youth's expectation of privacy. What is the school's policy
as to inspections by school officials, and is that policy publicized?
Who supplies the lock on the locker? If the student supplies the lock,
must the combination or a duplicate key be provided to the school authorities?
Are there detailed rules and regulations governing what may be kept
in desks or lockers, and are spot checks conducted to police these edicts?
In other words, is the student's control over the locker or desk limited
to excluding other students, or does it extend to school officials?
Some cases have distinguished between the student's control of the locker
as against fellow students and the status of the youth's control vis-a-vis
the school authorities. (State v. Stein, 203 Kan. 638, 456 P.2d 1 (1969)).
Another inquiry the Court declined to address in T.L.O. was the impact
of police participation in a search, as opposed to action by school
personnel alone, unsolicited and undirected by law enforcement officials.
Most cases that address the issue of police involvement in a search
apply the more customary probable cause test rather than the T.L.O.
reasonable suspicion standard. (M. v. Board of Education, 429 F. Supp.
288 (S.D. Ill. 1977); Picha v. Wielgos, 410 F. Supp. 1214 (N.D. Ill.
1976)). In Cason v. Cook, 810 F.2d 188 (8th Cir. 1987), however, the
court of appeals applied the lower T.L.O. standard to a search conducted
by a vice-principal in the presence of a police-school liaison officer.
Veronia v. Acton
The Supreme Court did not revisit the school search issue for 10 years,
and the context in the second case was quite different. In Vernonia
School District 47J v. Acton, 515 U.S. 646 (1995), school officials
were disturbed by an increase in drug use by students in the rural Oregon
district and they mandated random urinalysis drug testing for those
who wished to participate in school-sponsored athletics. Athletes were
perceived to have greater problems with drug use than the student population
as a whole. James Acton wanted to play football, but was denied the
right to participate when he and his parents refused to sign the required
urinalysis consent form. They filed suit and were unsuccessful in the
district court, but succeeded in their challenge in the court of appeals.
The Supreme Court granted certiorari and upheld the constitutionality
of the school policy. The Court reiterated the T.L.O. holding that public
school searches fall within the "special needs" exception to the warrant
and probable cause requirements of the Fourth Amendment. Also, as in
T.L.O., the Court used a balancing test to determine the reasonableness
of the search by weighing the severity of the intrusion on students'
privacy interests against the legitimate government interest in deterring
the use of drugs by students.
The Court determined that students' privacy expectations of privacy
were lower than adults', and participants in athletics subjected themselves
to even lower expectations than other students because they shared locker
rooms and other facilities with fellow athletes. The character of the
school administration's intrusion was also deemed to be minimal because
the testing took place while the students were fully clothed and urinated
normally with monitors only observing the boys' backs and merely listening
to the sounds of urination with both boys and girls. The urine samples
were utilized to test for illegal drugs only. Finally, the Court looked
at the "nature and immediacy of the governmental concern at issue, and
the efficacy of this means for meeting it." (515 U.S. at 660) The expectation
of privacy was diminished in this case while there also was a compelling
state interest for the school district's program in light of the significant
threat of illegal drugs in the schools. The Court also answered one
of the questions left open in T.L.O. by concluding that "individualized
suspicion" is unnecessary in school searches conducted for a legitimate
purpose. (Id at 662.)
Subsequent cases
Since T.L.O. and Vernonia School District, courts have applied the flexible
tests developed in those cases to allow school officials to conduct
searches of students in a variety of situations. Although earlier cases
seemed to focus on the relative intrusiveness of the search, later cases
focus more on the purpose of the search. For example, courts in early
cases have held searches of the person of school children and the use
of trained dogs to sniff students in a school setting to be unreasonable
searches, although the use of dogs to sniff students' lockers and automobiles
in public areas may be lawful. (Doe v. Renfrow, 631 F.2d 91 (7th Cir.
1980); Horton v. Goose Creek Independent School District, 690 F.2d 470
(5th Cir. 1982); Bellnier v. Lund, 438 F. Supp. 47 (N.D.N.Y. 1977))
In Jenkins v. Talladega City Board of Education, 95 F.3d 1036 (11th
Cir. 1996), for example, the court held strip searches by two teachers
of two eight-year-olds to be unreasonable and unconstitutional when
predicated on a classmate's accusation that they had stolen $7. Likewise,
in Desroches II v. Caprio, 974 F.Supp. 542 (E.D.Va. 1997), the search
of the backpacks of 19 students was ruled unreasonable without the presence
of individualized suspicion when the stolen property sought was a pair
of sneakers. In State v. Engerud, 463 A.2d 934 (N.J. 1983), the court
held that a student's locker is a "home away from home" and, therefore,
the subject of a reasonable expectation of privacy. Other courts, however,
have concluded that students do not have reasonable expectations of
privacy in their lockers because school officials have the master combinations
to open them. (State v. Stein, 456 P.2d 1 (Kan. 1969); Zamora v. Pomeroy,
639 F.2d 662 (10th Cir. 1981).)
Where searches are conducted for weapons or drugs, the courts seem
quite inclined to uphold the validity of a search, irrespective of the
factual circumstances of the search in question. For example, in Thompson
v. Carthage School District, 87 F.3d 979 (8th Cir. 1996), a bus driver
informed a school principal that there were fresh cut marks on the seats
of her bus. The principal decided that there must be a knife on school
premises and ordered a search of all male students in grades six through
12 with a metal detector. When the metal detector sounded, a search
of the person was conducted and a cigarette pack and used book of matches
were discovered on one student with crack cocaine inside. The court
of appeals upheld the search, employing the "special needs" exception.
Similarly, courts have upheld random school-based searches with metal
detectors for weapons after rolling dice to determine which school and
classrooms would be subject to search on a particular day (Florida v.
J.A., 679 So.2d 316 (Fla. Dist. Ct. App. 1996), and similarly random
searches with metal detectors at the school entrance in People v. Pruitt,
662 N.E.2d 540 (Ill. App. Ct. 1996). In Todd v. Rush County Schools,
133 F.3d 984 (7th Cir. 1998), the court of appeals upheld a random drug
testing program for students involved in any extracurricular activity.
The Sixth Circuit Court of Appeals even upheld a strip search of a girl
for drugs after a report that she was seen by a fellow student sniffing
a white powdery substance. (Williams v. Ellington, 936 F.2d 881 (6th
Cir. 1991)) When a search of the girl's locker, books, purse, and pockets
turned up nothing, the girl was told to remove her shirt and lower her
pants, but no drugs were ever discovered. However, since the substance
searched for was drugs, the court upheld the validity of the search.
The clear recent trend has been to sustain the validity of searches
where the purpose is to discover weapons or drugs, reflecting society's
general concern about adolescent exposure to illegal substances and
the even graver public fears about school safety in light of increasing
reports of weapons on school premises. This shift in the latitude permitted
to school officials in conducting searches has resulted in a significant
erosion in the Fourth Amendment's protections for school students. Lawyers
handling delinquency or criminal cases involving the seizure of contraband
or evidence during a search or searches in a school setting need to
thoroughly research the current law in the jurisdiction to determine
the latitude permitted school officials or law enforcement operating
on school premises.
Robert E. Shepherd, Jr., is a professor of law at T.C. Williams School
of Law, University of Richmond in Richmond, Virginia, and a contributing
editor to Criminal Justice magazine. He is also former chair of the
Juvenile Justice Committee of the Criminal Justice Section.
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