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Students! Know Your Rights: Search and Seizure

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Search and Seizure

 

The Fourth Amendment allows people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.

The Fourth Amendment’s search and seizure restrictions apply in public schools, but, the Courts give school officials and police more leeway to conduct searches in school. 65 Courts balance a student’s privacy rights against the school’s interest in safety and student discipline. 66 This means that students often have less protection against what they might perceive as unreasonable searches and seizures at school, than in other places.

In most circumstances, a search by police requires a search warrant, which is advance written permission from a judge that the police have reasonable grounds to suspect that a crime has been committed. Police then must base their search on probable cause (see box below).

Definitions

Probable cause — A reasonable ground to suspect that a person has committed a particular crime or that a place contains specific items connected with a crime. Under the Fourth Amendment, probable cause – which amounts to more than a bare suspicion but less than legal proof – must be shown before an arrest warrant or search warrant may be issued. 67

Reasonable suspicion — A carefully considered presumption, based on specific facts and circumstances, that a person is probably involved in criminal activity. Before an officer can act on this level of suspicion, he must have enough knowledge to lead any reasonably cautious person to conclude that a crime has been (or is about to be) committed by the suspect. 68

 

At the level of probable cause, an officer may arrest a suspect; using reasonable suspicion, the officer may stop and detain the suspect but may not arrest him.

Courts have said that school officials can search students in public schools if there is a reasonable suspicion to search. They do not need probable cause.

There are two types of reasonable suspicion:

  • Individualized suspicion is when a school official has a reasonable belief that you personally might be doing something illegal.
  • Generalized suspicion is when school officials are concerned that there might be illegal activity somewhere in the school. This means that student drug tests or metal detectors are allowed when there is a general concern about students using drugs or carrying weapons. However, some courts have ruled that without any evidence of illegal activity, such a search would be unconstitutional. 69

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Property searches

Schools are primarily responsible for keeping you safe, and providing you with the best possible education, free from unnecessary disruption. This allows school officials some flexibility to conduct searches of the school and school grounds including the parking lots to ensure their students’ safety. These searches can be based on information supplied by students, school employees, and the police.

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Lockers

lockerYour school retains control and access to all lockers on its premises, therefore school officials can inspect student lockers. Many schools have created a written policy that permits principals or other school officials to search any locker and the contents inside it when they have a general concern that they might find evidence of a crime or a violation of a school rule. 70 You should check to see if your school has a policy on locker searches.

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Backpacks and purses

backpacksSchool officials may search your backpack or purse if they have a reasonable suspicion that you are breaking the law or violating a school rule. 71

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Cars

Student cars parked in a school parking lot are subject to search. Courts have said that police can search a car without a warrant in the school parking lot, because there was probable cause to believe they would find evidence of a crime. In that case, the school first allowed police officers to bring dogs in to sniff lockers for drugs. Next, the dogs sniffed in the parking lot, and alerted the officers to a specific car. Police officers opened and searched the vehicle and found drug paraphernalia inside. Since the police had probable cause after the dog sniffed the car, it was okay to search the car even though the student was inside the school. 72

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Strip searches and searches of one’s person

Schools should have individualized suspicion before searching a student. Except in very rare circumstances, strip searches of students by school officials are unconstitutional. 73

If a school official searches you without proper suspicion, the courts will weigh your privacy rights, the intrusiveness of the search, and the school’s safety concerns. 74 You have a significant right to privacy regarding your body, and strip searches are highly invasive. In most cases, a school’s suspicion warrants a strip search only if officials are looking for weapons or drugs, since these provide the most risk to the health and safety of students. 75

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Searches of the general student population

To search the student population as a whole, school officials must have a general suspicion of wrongdoing. This means that a school official may search students and their belongings at random even if he has no precise evidence that a specific student has broken the law or school rules.

Searches without individualized suspicion are legal when:

  • the student’s interest in privacy is weak;
  • the search does not intrude unreasonably on that interest;
  • the school has legitimate safety concerns, usually regarding drugs or weapons.

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Canine searches

privacycover-298x440The U.S. Supreme Court ruled that the use of drug-sniffing dogs for inspecting personal belongings is not a “search” under the Fourth Amendment. The Court said that being sniffed by a dog is not an intrusive way to find illegal items, such as drugs, so it should not be in the same category as a search. 76 Drug-sniffing dogs are legal inside a school, and school officials do not need individualized suspicion to allow the police to search you with a dog. 77

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Drug testing

In 1995, the Supreme Court ruled that athletes can be tested for drugs without individualized suspicion. The Court said that student athletes are used to being in locker rooms and showers together where there is not an expectation of privacy, and that urine samples are not an intrusive search. The Court also said the school’s efforts to stop illegal drug use justify urine testing for student athletes. 78 A policy requiring that all students participating in extracurricular activities get drug tested has also been ruled constitutional. 79

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Metal detectors

metaldetectorsSchools must have a general safety concern to justify the use of metal detectors. 80 For example, school officials may be concerned about students bringing weapons such as knives or guns into the building. One court that allowed metal detectors in school relied on the fact that students are all subject to the metal detectors without discrimination, and that the search itself is not intruding too much on student privacy rights. 81

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Police in schools

Sometimes schools rely on police for security and order. The way a police officer can legally search a student depends on the relationship between the officer, the school, and the search.

When a police officer is helping school officials with a search, then the officer may require only a reasonable suspicion of wrongdoing, instead of needing “probable cause” or specific evidence of a crime, as they would outside of a school. It is not clear whether the evidence found in one of these searches could be used in a criminal trial. 82

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Interrogations

School officials have a right to question you when they suspect wrongdoing. Sometimes police officers will be asked to interrogate students. If you are a minor, then a parent or guardian can be present during the questioning, but this is not required. 83

Even so, you do have some constitutional rights when being questioned by the police in school. For example, you have what are called “Miranda rights,” and in many cases the police must first advise you of your rights. The Miranda warning includes the following:

  • You have the right to remain silent;
  • Anything you say can and will be used against you in court;
  • You have the right to consult with a lawyer and to have the lawyer present during questioning; and
  • If you cannot afford a lawyer, you can ask the court to appoint one for you. 84

The police must stop interrogating you if you request a lawyer. However, police do not have to stop questioning you if you ask that your probation officer, parole officer, or parent be present. 85

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Off-Campus Searches

Rules that apply to school searches can be extended to off-campus activities which are sanctioned or sponsored by the school. Police officers or school officials need reasonable suspicion, rather than probable cause, that the student violated either school rules or the law.

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