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Search and Seizure for Police and Prosecutors

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IV. Searching a Student on School Premises

 

  1. Searching students on school premises.
    1. A warrant is not required for a search by a school official.
      1. School officials may search a student, or a student’s locker or personal belongings without a warrant.
      2. The school officials must have a reasonable suspicion, based on articulable facts, of the following:
        1. The student is violating, or has violated, the law, school rules or school policy, and
        2. The search would uncover evidence of the violation.
      3. The search must occur on school grounds.
      4. The search must occur during school hours or during a school activity.
    2. A warrant is not required for a student search conducted on school premises by a school resource officer on behalf of a school official.
      1. Definition of School Resource Officer:
        1. Full-time commissioned police officer,
        2. Assigned to a school as a resource officer,
        3. By the officer’s police department.
        4. A resource officer may be armed and in uniform while working at the school.
        5. A resource officer may have multiple roles:
          1. prevention of crime,
          2. law enforcement,
          3. assisting school officials in creating and sustaining a safe environment conducive to learning.
      2. The School Resource Officer may search without a warrant IF:
        1. The officer has a reasonable suspicion, based on articulable facts, that the student is violating, or has violated a law, school rule or school policy.
        2. The officer is acting at the behest of a school official.
        3. The purpose of the search is to maintain a safe and proper. educational environment.
        4. The search is conducted on school premises, during school hours or school activities.
        5. A valid exception to the warrant requirement applies:
          1. Probable cause plus exigent circumstances;
          2. Search incident to an arrest;
          3. Pat down during an investigatory stop.
      3. A warrant is required IF:
        1. The resource officer is acting as a law enforcement officer investigating a criminal matter, or
        2. The resource officer is acting independently from the school officials.
    3. A warrant is required for a student search conducted on school premises by a law enforcement officer.
      1. Students have the same protections as adults against unreasonable searches and seizures by law enforcement officers.
      2. To conduct a search of a student or student’s personal property on school premises, a police officer must obtain a warrant based on probable cause UNLESS an exception applies, such as
        1. Consent,
        2. Probable cause plus exigent circumstances,
        3. Pat down during an investigatory stop, or
        4. Search incident to arrest.
    4. The scope of a school search is limited.
      1. The search must be reasonably related to the objectives of the search.
      2. If the search includes the student and his locker or other personal property, each search must be separately justified by articulable facts indicating evidence of a violation will be found.
      3. The search must not be overly intrusive in light of the student’s age and sex.

“School children do not shed their constitutional rights at the schoolhouse gate.”61 Therefore, the Fourth Amendment applies to searches of students in schools.62 However, a student’s Fourth Amendment right to be free from unreasonable searches and seizures is tempered by the school’s interests in discipline and order.63 As a result, the United States Supreme Court has “rejected the need for school authorities to obtain search warrants before searching students and also lessened the search and seizure standard for school authorities from probable cause to reasonable suspicion.”64 The Court has also allowed suspicionless searches of students under very limited circumstances that establish a “safety concern that is substantial enough to override the individual’s privacy interests.”65

The reasonable suspicion standard for a warrantless search of a student applies in two circumstances. First, it applies to a search of a student, or a student’s personal property or locker, conducted by a school official.66 The school official must have a reasonable suspicion, based on articulable facts that the student is violating or has violated the law, a school rule, or school policy.67 The facts must also support a reasonable suspicion that evidence of the suspected violation will be found during the search. In addition, the search must occur on school grounds, either during school hours or during a school activity.68

Second, the reasonable suspicion standard applies to some searches of a student, or a student’s personal property or locker, conducted by a “school resource officer.”69 A school resource officer is a full-time commissioned police officer assigned to a school by the officer’s police department. “A school resource officer serves multiple purposes, including the prevention of crime, law enforcement, and assisting the school administration in creating and sustaining a safe environment conducive to learning.”70 Whether the lower standard of reasonable suspicion applies to a particular search depends on which of those roles the officer is fulfilling by conducting the search. If the officer is searching at the request of school officials in order to further the school’s goal of maintaining “a safe and proper educational environment,” then the lower standard of reasonable suspicion applies.71 In such a case, the officer could search if he has reasonable suspicion, based on articulable facts, that the student is violating or has violated a law, school rule, or school policy. On the other hand, if the officer is searching solely to obtain evidence of a crime, unrelated to the safety and welfare of other students, and the search is at the request of the school officials, the general warrant requirement applies.72 In that case, the officer would have to obtain a warrant, based on probable cause, unless a recognized exception to the warrant requirement applies, such as an exigent circumstance.

The reasonable suspicion standard for a warrantless search of a student on school premises never applies to a search conducted by a police officer for the sole purpose of investigating a crime. In other words, a police officer searching for evidence of a crime must obtain a search warrant based on probable cause, unless the circumstances surrounding the search support a recognized exception to the warrant requirement. Exceptions that might apply include consent, probable cause plus exigent circumstances, search incident to arrest, and pat down during an investigatory stop.

The validity of a school search depends not only on whether the search is justified under the appropriate standard (reasonable suspicion or probable cause), but also the scope of the search. To be valid, a school search must be limited in scope to the reason for the search.73 In addition, the search must not be “excessively intrusive in light of the age and sex of the student and the nature of the infraction.”74 For example, if a school official asks a school resource officer to search a student’s pocket because a bulge in the pocket suggests a weapon may be concealed, requesting the student to empty his pockets, or reaching into the pocket is permissible.75 In such a case, the search of the pocket is reasonably related to the purpose of the search.76 On the other hand, if the school resource officer reaches into the pocket and then searches the student’s backpack, that search would exceed the purpose of the search.

 

ENDNOTES

61 State v. Tywane H., 1997-NMCA-015, ¶ 7, 123 N.M. 42, 933 P.2d 251(citing Vernonia Sch. Dist. 47J v. Action, 515 U.S. 646 (1995) and Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969)).

62 Id.

63 Tywayne H., 1997- NMCA-015, ¶ 8.

64Id. (citing New Jersey v. T.L.O., 469 U.S. 325, 340-41 (1985)).

65 State v. Gage R., 2010-NMCA-104, ¶ 13, 149 N.M. 14, 243 P.3d 453 (citing Vernonia, 515 U.S. at 653, and Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 829, 837 (2002)). Suspicionless school searches of students include random drug tests for athletes and students who participate in other competitive extracurricular activities.

66 Tywayne H., 1997- NMCA-015, ¶ 8.

67 Id.; see also Gage R., 2010-NMCA-104, ¶¶ 12, 20 (child’s presence with other students who were smoking on school grounds was not sufficient to establish individualized suspicion that child was also smoking).

68 State v. Crystal B., 2001-NMCA-010, ¶ 14, 130 N.M. 336, 24 P.3d 771.  The lower standard of reasonableness under the circumstances to justify a school search applies “only in furtherance of the school’s education-related goals; that is in a situation where the student is on school property or while the student is under control of the school.” Id.

69 In re Josue T., 1999-NMCA-115, ¶ 20, 128 N.M. 56, 989 P.2d 431.

70 Id.

71 Id.

72 Id.

73 Id. ¶ 27; see also, State v. Pablo R., 2006-NMCA-072, 139 N.M. 744, 139 P.3d 1198 (search of a backpack belonging to a student who was stopped for being out of class without a pass was unreasonable because the backpack was not likely to contain evidence of the student’s infraction).

74 Id. (quoting T.L.O., 469 U.S. at 342).

75 Id.

76 Id.