Search & Seizures

Narcotics & Dangerous DrugsADJ-228Brian Hieatt

Search and Seizure

What rights do students have regarding search and seizure?

Should teachers or principals be permitted to search students for drugs or weapons?

Should teachers or principals have to get search warrants before searching students or lockers?

Are students entitled to privacy?

In Schools

"The reasonable expectation of privacy of a student in attendance at a school is certainly less than it would be in other circumstances. Students know that their teachers and other school authorities are responsible for providing a safe environment and maintaining order and discipline in the school. They must know that this may sometimes require searches of students and their personal effects and the seizure of prohibited items. It would not be reasonable for a student to expect to be free from such searches."

The Fourth Amendment to the federal Constitution gives people a right to be secure in their homes from unreasonable government searches. The question of what is unreasonable is the subject of many books and ongoing argument. However, it is clear that the police cannot search a person’s home without a warrant. The same goes for a police officer on school grounds.

What is a Search?

A governmental intrusion into a person’s reasonable expectation of privacy.

What is a seizure?

When a person has been restrained of freedom is a manner where a reasonable person would not have felt free to leave.

What is a Stop and Frisk?

Stop and Frisk is a form of search and seizure but less intrusive than an arrest and full blown search.

True or False

A Police Officer can look through someone’s garbage.

True. The U.S. Supreme Court decided this issue saying, in essence, that once papers, and other garbage have been thrown into a trash receptacle, it was considered "abandoned" property, and anyone, including governmental agencies, may claim ownership.

If there's anything you don't want to come back and bite you, invest in a shredder.

True or False

A School official can search a students locker.

True. While the U.S. Constitution upholds the right to be safe from unreasonable searches and seizures, the standard for school searches is less rigid. The search is lawful if the school has a "reasonable suspicion" that a school rule has been violated.

A School Official or Teacher can search a students belongings.

True. Search and seizure laws applicable to the police are generally not applicable to school officials, teachers, counselors. Lockers, personal items, pockets, cars, and so forth could be subject to search.

True or False

Flight from officer creates reasonable suspicion to justify a stop.

True. Illinois v. Wardlow (1999) – flight from officer creates reasonable suspicion to justify a stop.

True of False

A person who fits a “drug courier profile” be stopped by the police?

True. If based on “totality of the circumstances” rather than on “drug courier profile” alone.

True or False

An officer can frisk the inside of a person’s car.

True. Police may conduct a brief search of a vehicle after a stop, if officer has reasonable suspicion that the motorist is dangerous and there might be a weapon in vehicle

Schools are Quasi-Public Gault Rule – The Rights of one bow down to

the Safety of Others.

S.O.D. - Safety

Order

Discipline

Reasonable Suspicion

More than mere suspicion, but less than probable cause.– Information from another student.– Past experience with the offender.– Witnessing suspicious activity.

It is “mildly likely” that evidence will turn up.

**Articulable Facts***

Probable cause

Probable cause is what would lead a person of reasonable caution to believe that something connected with a crime is on the premises of a person or on persons themselves, including vehicles, clothing, or personal items.

Observation

-- These are things that is obtained trough knowledge, via the senses: sight, smell, hearing; but this category would also include the kinds of inferences to be made when the experienced police officer, or teacher is able to detect a familiar pattern (of criminal activity) that contains a series of suspicious behaviors (e.g., smoke in the restroom, long coats in summer)

Expertise

-- These are the kinds of things that a police officer or teacher is specially trained at; such things as drug awareness and identification, recognition of behavioral problems, the ability to foresee violence, and various other techniques in the general direction of knowing when certain gestures, movements, or preparations tend to indicate impending criminal activity.

Circumstantial Evidence

-- This is evidence that points the finger away from other suspects or an alibi, and by a process of elimination, the only probable conclusion to be drawn is that the person or things left behind is involved in crime.

Information

-- This is a broad category which includes informants, statements by witnesses and victims, and announcements via police bulletins, or broadcasts.

Stop and FriskTerry vs. Ohio

A stop is justified in any combination of the following circumstances:

the suspect doesn't seem to "fit" the time or place the suspect fits a description of a wanted person in a flyer the suspect is acting strangely, emotional, angry, frightened, or

intoxicated the suspect is loitering, hanging out, or looking out for something the suspect is running away or engaging in furtive movements the suspect is present in a crime scene area the area is a high-crime area (not sufficient by itself or with

loitering)

A frisk is ALWAYS justified in the following circumstances:

there are concerns of safety for the students, teachers, or officer

there is suspicion that the suspect is armed & dangerous

there is suspicion that the suspect is about to commit a crime & a weapon is commonly used.

Steps to Arrest

Mere Evidence (Hunch)

Reasonable Suspicion

Probable Cause

COMMONLY ASKED QUESTIONS AND ANSWERS

Are School Resource Officers considered police or school officials for 4th amendment purposes?

Answer: They are considered to be police officers regardless as to whom might be paying for their services.

What does a school official need to make a search of a student? Answer: A reasonable suspicion that the student might be engaging in

illegal activity. Does a school official need to have a reasonable suspicion before asking a

student for consent to search? Answer: No Does a school official need to worry about the Miranda warning before

questioning a student about possible criminal activity? Answer: No, the Miranda warning is only applicable for the police. If a school official is searching a locker can they search any item found in

the locker, regardless of ownership? Answer: Yes

If a student parks his vehicle outside of school property but during school hours can the school search with reasonable suspicion?

Answer: No, since the vehicle is not on school grounds any search should be conducted by the police and under police 4thy amendment guidelines which require probable cause or consent before a lawful search can take place.

When both school officials and police join in a stop or search whose rules control?

Answer: It depends. For example if the school asks the police for assistance then the school’s less stringent 4th amendment rules would control but if the police initiates the investigation then their standards of probable cause and warrant would be applicable.

What is meant by the term exigent circumstances? Answer: Exigent circumstances are those kind of emergency

situations, which allow the police to make warrantless searches and seizures. In a school setting a bomb threat would be an example of an exigent circumstance.

Is there an obligation for the police to contact the parents before interviewing a student on school grounds?

Answer: No. However, most schools have a policy requirement that they notify the parents in such a circumstance and this policy should be followed.

If a school official interviews a student and a police officer is present does the school official have to read the Miranda warning?

Answer: No, but the police officer should have an observer non-participatory role. If the officer joins in the questioning, Miranda might be required if the setting is viewed to be custodial. To emphasize the intent not to make the setting custodial the officer should preface the questioning by advising the student that he/she should feel free to end the interview anytime they wish.

NEW JERSEY v. T. L. O.

SUPREME COURT OF THE UNITED STATES469 U.S. 325January 15, 1985, Decided

On March 7, 1980, a teacher at Piscataway High School in Middlesex County, N. J., discovered two girls smoking in a lavatory. One of the two girls was the respondent T. L. O., who at that time was a 14-year-old high school freshman. Because smoking in the lavatory was a violation of a school rule, the teacher took the two girls to the Principal's office, where they met with Assistant Vice Principal Theodore Choplick. In response to questioning by Mr. Choplick, T. L. O.'s companion admitted that she had violated the rule. T. L. O., however, denied that she had been smoking in the lavatory and claimed that she did not smoke at all.

Mr. Choplick asked T. L. O. to come into his private office and demanded to see her purse. Opening the purse, he found a pack of cigarettes, which he removed from the purse and held before T. L. O. as he accused her of having lied to him. As he reached into the purse for the cigarettes, Mr. Choplick also noticed a package of cigarette rolling papers. In his experience, possession of rolling papers by high school students was closely associated with the use of marihuana. Suspecting that a closer examination of the purse might yield further evidence of drug use, Mr. Choplick proceeded to search the purse thoroughly. The search revealed a small amount of marihuana, a pipe, a number of empty plastic bags, a substantial quantity of money in one-dollar bills, an index card that appeared to be a list of students who owed T. L. O. money, and two letters that implicated T. L. O. in marihuana dealing.

Mr. Choplick notified T. L. O.'s mother and the police, and turned the evidence of drug dealing over to the police. At the request of the police, T. L. O.'s mother took her daughter to police headquarters, where T. L. O. confessed that she had been selling marihuana at the high school. On the basis of the confession and the evidence seized by Mr. Choplick, the State brought delinquency charges against T. L. O. in the Juvenile and Domestic Relations Court of Middlesex County. Contending that Mr. Choplick's search of her purse violated the Fourth Amendment, T. L. O. moved to suppress the evidence found in her purse as well as her confession, which, she argued, was tainted by the allegedly unlawful search.

Four rules of T.L.O.

Reasonable Suspicion replaced Probable Cause

Search Warrants in school were Eliminated Miranda Rights of Students do not extend to

school disciplinary questioning. Standard School Operations are not subject

to Parental Notification requirements.

Private Area Searches

Can a School Official conduct a pat down, touching the breast and crotch area?

Does he need Reasonable Suspicion or Probable Cause?

--If there are good articulate facts a pat down search can be given, and in some cases should be given for safety reasons.

Strip Searches

Can a School Official conduct a Strip Search? Yes. If a student has committed a crime that

would be considered a felony if committed by an adult, and if the student possess evidence which would be material in proving the commission of the crime.

**Asking clothing to be loosened and shook is not a strip search.

Body Cavity Searches

Can a School Official conduct a Body Cavity Search?

No. Unless a warrant has been obtained, or there is an extreme emergency.

Virginia School to Pay $170,000In Student Strip-Search Case

Monday, November 30, 1998 RICHMOND, VA -- Twenty-eight high school

students who were strip-searched last year by school officials have been awarded a total of $140,000, the American Civil Liberties Union announced today. The ACLU of Virginia, which had filed a federal lawsuit in January on behalf of the students, welcomed the settlement.

The strip-searches occurred in May 1997 when a student in a gym class reported $100 missing from his wallet. School officials responded by indiscriminately rounding up approximately 50 boys and forcing them to strip down to their underwear to prove that they were not carrying the missing money.

"Strip-searches, which should be banned from public schools, are legal only under the most extreme circumstances, where the suspicion is well informed and individualized, and where the immediate safety of other students is at stake," Willis said. "None of these essential ingredients was present in this case."

Today's settlement marks the conclusion of the second of two lawsuits filed by the ACLU of Virginia on behalf of the William Monroe High School students who were strip-searched during the incident. In the first suit, which was filed shortly after the incident, the ACLU represented six students. That case was settled out of court last December when each student received $5,000 and the attorneys were awarded $2,500. The ACLU also received an additional $30,000 in today's out-of-court agreement.

K-9 Searches

K-9s Searching Lockers. K-9s Searching Vehicles. K9s Searching Classrooms. K-9s Searching Students.

Anonymous Tips

Florida v. J.L. (2000) The Court held that an anonymous tip

that a person is carrying a gun does not, without more, justify a police officer’s stop of that person.

Miranda vs. Arizona (1966)

Ernesto Miranda, a rape suspect, was arrested and taken to the police station. After two hours of questioning, he signed a written confession and was subsequently found guilty. Miranda appealed his conviction on the grounds that prior to confessing, he had not been informed of his Fifth Amendment right against self incrimination or his Sixth Amendment right to counsel.

Miranda does not apply under the following circumstances:

1. Questions asked at a crime scene.

2. Any statements volunteered by the suspect at any time.

3. Questioning of individuals for fact-finding purposes.

4. Questioning during an investigatory stop.

Mapp v. Ohio

Police officers forcibly entered Mapp’s home in search of a bombing suspect. In the course of the search, officers failed to produce a valid search warrant and denied Mapp contact with her attorney, who was present at the scene. While the suspect was not found, officers did discover illegal pornography in Mapp’s home, for which she was charged and convicted.

Mapp appealed her conviction claiming that the evidence against her should not be admissible in court because it was illegally obtained.

This led to the exclusionary rule.

Exclusionary Rule

The exclusionary rule is a critical remedy against improper searches, and can be used as an effective protection by citizens who know their rights.

If police violate your constitutional rights in order to obtain evidence, they cannot use that evidence against you.

Search and Seizures

Tazewell Police Department