Searches for Weapons and Drugs
In the wake of escalating school violence, many school administrators are seriously considering the adoption of search policies that permit them, under certain circumstances, to search both student and school property for weapons and drugs. Public school officials, like law enforcement officers, are bound by the Fourth Amendment. Thus, school officials must understand the basic dictates of the Fourth Amendment when composing and implementing an effective drug and weapons search policy. Since school officials are not experts in the law, they should contact the school attorney, the local district attorney, or the State Attorney General for advice and counsel before implementing any search policy. (See Exhibit 1-1.22-Policy on Search and Seizure)The Supreme Court has held that school officials, unlike the police, do not need to obtain a warrant prior to conducting a search. Nor do they need probable cause to believe that a violation of the law has occurred. In order to conduct a search, school officials need only a “reasonable suspicion” that a particular search will reveal evidence that the student has violated or is violating either the law or the rules of the school. Even if reasonable suspicion exists, in order for the search to be permissible, the scope of the search and the measures used during the search must be reasonably related to the purpose of the search. The level of intrusion should be based upon the age and gender of the student and the nature of the suspected infraction. The Supreme Court has upheld searches that comply with this standard only insofar as such searches are initiated and conducted by school officials. A more stringent legal standard applies to searches conducted in conjunction with or at the request of law enforcement officers.(See Checklist for Developing Search and Seizure Policies)
The Meaning of “Reasonable Suspicion
To justify student searches, the lower courts have required the “reasonable suspicion” standard to be more than a general suspicion, curiosity, rumor, or hunch. The courts require some sort of observable, describable behavior which has lead some school official to believe that a particular student has engaged in prohibited conduct. For example, the reasonable suspicion standard has been successfully applied in the following general examples:·
- A search of a student’s purse, after a teacher saw her smoking in a restroom but the student denied smoking when confronted.
- A search of a student’s pockets, after several other students said he had been passing out firecrackers to other students.
- A search of a student’s pockets, after anonymous phone call gives information concerning drug possession and this caller has previously provided accurate information.
When reasonable suspicion exists, school officials may search students, but only within established limits. Search measures must be reasonably related to the purpose behind the search and may not be excessively intrusive. For example, if a teacher thinks he has seen a student pass an amphetamine to another student, the teacher might reasonably search the two students and any nearby belongings in which the drug could be concealed. If, however, the teacher discovers that what was actually observed was only a piece of candy, the teacher would be unjustified in searching either the students or their belongings any further. As a general rule, the more intrusive the search, the greater the justification must be for the search. (See Exhibit 1-1.23 Policy on Personal Search) If a search of a student uncovers evidence for suspecting that the student might also possess other evidence of crimes or misconduct, the school officials may continue the search. For example, if a teacher justifiably searches a student’s purse for cigarettes and finds rolling papers such as those used for marijuana cigarettes, the teacher is justified in continuing the search for further evidence of drugs.
Performing Effective Student Searches
Most school officials are well informed about the conditions under which they may conduct a search, but few school officials have actually received training in how to perform an effective student search.All administrators and security personnel should receive training on how to conduct a search. This training should include the following guidelines:
- An administrator should personally escort the students to be searched to the office, maintaining visible contact with the students from the classroom to the office. If there are several students, it would be wise if two staff members monitored the students so they could not throw away any contraband or attempt to assault or resist the escorting adults.
- An administrator should always watch the student’s hands. If a student is suspected of having a weapon or drugs, it is likely that he or she will try to “ditch” it if an opportunity arises. A student should never be permitted to follow behind a staff member.
- Before beginning the search, the administrator should ask the student if he/she has anything in his/her possession, in a locker, or in anyone else’s possession that violates the school rules or the law. The student should be advised that because of the existence of a reasonable suspicion, the administrator plans to conduct a search, and that it would save everyone time and unnecessary embarrassment if the student would cooperate now. Often this will result in the student producing the contraband before a search can be conducted.
- If the student denies that he/she possesses anything that violates school rules, the administrator should ask the student to remove outer clothing, such as heavy jackets, before beginning the search. The search should not be more invasive than a simple pat down.
After the search, the administrator should carefully secure any confiscated contraband and document the incident as soon as possible. (See Exhibit 1-1.25 Policy on Seizure of Contraband) If the contraband constitutes a criminal offense, the police should be notified immediately. Administrators, teachers, and staff must remember that strip searches by school personnel are frowned on by the legal system, not to mention parents and the media! Administrators should consult with local law enforcement, school security specialists, or both for training and for establishing detailed procedures for conducting student searches.
Search of School Property
School officials may search lockers, desks, and other areas provided for the storage of school and personal belongings when they have reasonable grounds for suspecting that such a search will reveal evidence of illegal activity or a violation of school regulations.The courts are more likely to uphold searches of school property when students have been informed that the school considers their lockers, desks, etc. to be public and not private. Therefore, at the start of each academic year, school administrators should provide students with a written notification that details the school’s policy of conducting random, unannounced searches throughout the year of student lockers, desks, and any other targeted areas within the school. (Most schools use the student handbook for communicating these policies.) When the school retains joint control over the student lockers by requiring duplicate or master keys for all lockers and reserves the right to inspect lockers at any time, the students do not have any expectation of privacy. Additionally, after the policy of inspecting lockers and desks is communicated to the students, the school should make it a practice to implement the policy in order to keep student awareness high. (See Exhibit 1-1.26 Policy for Search of School Property)In each school, students should register the combinations of their locks whenever the lockers are assigned to them. (See Appendix-Exhibit 1.1.27 Locker Assignment Sheet) Unannounced general locker inspections serve as a deterrent and a safety precaution in the schools. The principal and the staff should have in place a plan and a timeline for general locker inspection.Every locker should be checked when a general locker inspection is conducted. Students should be directed to clean and organize their lockers, and extra wastebaskets should be placed at the ends of the halls. A member of the administrative staff should be on hand on each floor during the locker search.In addition to general locker searches, the school administrator has the right to search the locker of an individual student on the basis of reasonable suspicion. If such a suspicion exists, the student should be confronted and asked to surrender the item. If the student refuses, school administrators may nevertheless search the locker but, if possible, the student should be present during the search.
Student Vehicle Searches
School officials may also search student vehicles parked on school grounds when reasonable suspicion exists that the search will disclose evidence that the student has violated or is violating either the law or the rules of the school. When it is justifiable, as in schools with serious drug and weapon incidences, all students who park their vehicles on school property could be required to leave the ignition keys with school officials in the morning and then retrieve them before leaving at the end of the school day. Or, such students simply may be required to agree to provide school officials with access to their vehicles on demand. (See Exhibit 1-1.28 Policy for Vehicle Search) To justify such a policy, the school should be able to show either that (1) students are able to bring weapons and/or drugs from their vehicles into the schools or (2) weapons and/or drugs are used or exchanged within the immediate area of the parking lot.Random vehicle searches prohibit school officials from deciding which vehicles to search. These types of searches must be conducted uniformly or by some kind of systematic, random selection, such as every third car. When conducting these kinds of searches, the courts do not allow school officials to target particular students or student groups.Just as with student lockers/desks, the school must adequately inform all students who use the school’s parking lot that their vehicles are subject to search. The students should be informed of the grounds for the search, the extent of the search, and the frequency of the searches. Once again, if it is the policy of the school to conduct random vehicle searches, which should be the school’s actual vehicle search practice. For example, if school officials inform students that their vehicles will be subject to a search once a month, but in fact do not conduct such searches monthly, students could justifiably argue that they had an expectation of privacy in their vehicles because of the practice previously followed by the schools
Schools with severe drug or weapons problems may wish to consider metal detectors in order to screen students for drugs or weapons. Although the Supreme Court has not addressed the constitutionality of the use of these devices in the public schools, the lower courts have permitted schools to use either walk-through or hand-held metal detectors to search students and their personal effects for weapons prior to entering school premises.In order to justify the use of metal detectors in the courts, school officials must first be able to document a very serious problem with the possession of illegal weapons and the threat of related violence on school grounds. Secondly, school officials must use the device randomly and are prohibited from deciding whom to search. Thus, school officials may search every student who enters the building, or some other neutral category of persons, such as every third student. (See Exhibit 1-1.29 Policy for Trained Dogs and Metal Detectors) Such random use limits the stigma that would be attached to those searched and minimizes the risk of abuse by the searching officials. Finally, the routine use of a magnetometer is justifiable only to the extent school officials are searching for weapons. However, other contraband uncovered in plain view or by plain touch during a magnetometer search may be seized by school officials.
Another effective deterrent is the use of drug-detection dogs to inspect lockers, student belongings, and cars. When inspecting student belongings, students should be asked to leave their belongings (book bags, coats, purses, etc.) at their desks and exit the classroom with the teacher before the dog and handler enter the room. Drug-detection dogs and their handlers are usually available from local law enforcement agencies and can usually be requested through advanced planning and scheduling. (See Exhibit 1-1.30 Procedures for Conducting Drug Dog Searches) Explosive-detection dogs (trained to detect traces of gunpowder and other explosives) may also be available from local or state law enforcement agencies to seek out guns, bullets, and explosive related material.
The courts have generally agreed that the use of trained narcotics dogs to sniff objects (lockers, desks, student vehicles, book bags) requires no level of suspicion. When the dog alerts the school officials to a particular locker or vehicle, the reasonable suspicion requirement that justifies a more thorough search has been met.
Note of Caution: The use of dog sniffs on the student’s person is a search and therefore may not be justified in the absence of reasonable suspicion.Recommendations and considerations about the use of drug-sniffing dogs include the following:
1. Serious drug dealers will likely have their “products” concealed on their persons, where the dogs cannot check.
2. Some traces of drugs stored in lockers at some point may be detected, even if the contraband is not there at the time of the search.
3. Drug dogs are more effective as a deterrent only if the students are aware of them. Bringing them into the school at night is not a deterrent.
4. Bringing dogs in for an assembly is a good idea only if follow-up inspections are planned during the school year.
5. Administrators should not issue advance warnings about a specific inspection. This includes not only keeping it a secret from students but also from staff. If one staff member knows, the chances are that all staff members and a good number of students will know.
6. The notice of a potential dog inspection should not be given at the beginning of the year. District policies and student handbooks should include notice that the school is subject to such an inspection, without prior warning, at any time during the school year.
7. Administrators should not believe that drugs are not present nor available at their schools simply because a search comes up empty, since the majority of “successful” drug dealers will have their products on their persons. See Checklist for Developing Search and Seizure Policies