STUDENTS

SEARCH AND SEIZURE

Introduction

The past year has brought some significant developments to the area of search and seizure in the schools. Most significantly, the United States Supreme Court has decided its first case regarding this issue in New Jersey v. T.L.O., 105 S. CT. 733 (1985). In addition, the Iowa legislature has recently passed Senate File 477 relating to searches within our schools. This special report is intended to provide some practical suggestions how T.L.O. and Senate File 477 might be applied in our school districts. For an in depth review of the case law on search and seizure in the schools, see the IASB Student Discipline Manual (1983) and IASB Special Report (1985-10).

The United States Supreme Court has recognized that the Fourth Amendment to the United States Constitution is applicable to searches conducted by school officials. However, the United States Supreme Court and the Iowa legislature also recognize that school districts have a right and a duty to maintain order and discipline in the schools, to promote the educational environment and to protect the safety and welfare of students and school personnel.. Consequently, the United states Supreme Court in the case of T.L.O. and the Iowa legislature through passage of S.F. 477 determined that school officials may conduct searches in school settings without a search warrant so long as they have a reasonable suspicion that the search will uncover evidence that the student has violate the laws or the rules of their school.

Inspections

It is important to distinguish between locker inspections and school searches.

In enacting Senate File 477, the Iowa legislature recognized that although school lockers are temporarily assigned to individual students, they remain the property of the school district at all times. Therefore, the school does have a reasonable and valid interest in ensuring that the lockers are properly maintained. Consequently, Senate File 477 allows school officials to conduct periodic inspections of the lockers to check for cleanliness and vandalism at any time upon at least 24 hours notice of the date and time of the inspection.

Because such inspections are conducted without any suspicion of wrongdoing on the part of any particular student and because the purpose of the inspections is to maintain the lockers, before recommending that disciplinary action be taken as a result of confiscation of contraband discovered during such an inspection, the district may attempt to control the problem through counseling, parental involvement, medical referrals, or other such referrals. If disciplinary action is to be taken under these circumstances, the administration should consult with legal counsel before proceeding due to the fact that there are unresolved legal questions regarding the use of such evidence in legal proceedings.

The United States Supreme Court has indicated that courts will apply a two-tiered analysis in determining the validity of school searches. The first issue which courts will need to resolve in determining the validity of the school search is whether the search was reasonable at its inception or whether there were reasonable ground for suspicion that the search would turn up evidence that the student had violated or was violating the laws or rules of the school. Senate File 477 narrows this rule only slightly by requiring that "the school official have reasonable and articulable suspicion that a criminal offense or school rule or regulation bearing on school order has been violated."

Various types of evidence will be considered in determining whether or not the school district had a reasonable suspicion prior to conducting the search. Among the types of evidence frequently relied upon are the following:

1. Eye witness observations of school personnel.
2. Information received from reliable sources.
3. Suspicious behavior by the student.
4. The student's past history and school record.

In many instances, several of these factors will need to be considered in assessing whether or not there is a reasonable suspicion.

One question which T.L,O. did not address but which Senate File 477 attempted to address is the question of whether a school official must have individualized suspicion that a particular student has violated school rules or committed a crime in order to conduct a search. Senate File 477 appears to require that a search be based upon particularized suspicion. This would be in line with the majority of decisions from courts of other jurisdictions. This issue frequently arises when an item is reported as having been stolen from a classroom or a locker room and the school official is of the opinion that one of the students assigned to that class must have committed the theft but has no particular information which would lead him to search any one student. The majority of the courts and Senate File 477 would appear to indicate that in the absence of some individualized suspicion concerning a particular student or group of students, the search may not be conducted.

The second level of analysis courts will look to in determining the validity of a school search is the reasonableness of the scope of the search. Generally, a search will be considered reasonable in scope or when the measures adopted are reasonable related to the objectives of the search. Reasonableness of scope or intrusiveness is generally determined by considering factors such as the following:

   1. The age of the student.
   2. The sex of the student.
   3. The nature of the infraction.
   4. The exigency requiring the search without delay.

There are several common sense rules that are helpful to keep in mind when conducting a school search with regard to scope. First, personally intrusive searches require a greater degree of suspicion.

Clearly, the more dangerous the item being sought the more justified you are in conducting a personally intrusive search. Common sense dictates what is and is not a prudent search in terms of the age and sex of the student. Senate File 477 requires that searches of students be conducted only by members of the same sex of the student. Presumably, searches of the student's belongings or lockers may be conducted by members of the opposite sex. In addition the location of the search is important. Keep in mind that the Fourth Amendment in intended to protect privacy rights. Consequently, it is recommended that when possible searches be conducted in a private area so that students are not unnecessarily exposed to embarrassing or humiliating situations before their peers. Existing case law, as well as Senate File 477, preclude school districts from conducting strip searches and body cavity searches of students. In addition, Senate File 477 precludes school districts from using drug detecting dogs when searching students. It is not recommended that you conduct these kinds of searches under any circumstances.

There is a continuum which is implied by the case law concerning student searches. As you move toward the right on the continuum, you will be expected to have a greater degree of reasonable suspicion to justify the search at its inception and you can expect that the scope of the search will be more closely scrutinized by the courts in determining its reasonableness.

Student Search Rule

Senate File 477 provides, among other conditions, that a search of more than one student or of a protected student area, must be "based upon and pursuant of a valid and reasonable student search rule." A "student search rule" means a rule established pursuant to Section 279.8 or 279.9 "controlling the manner of the searching of students or protected student areas." To be valid, it must be "reasonable" and be based upon "relevant factors "including, but not limited to, the following:

1. Seriousness of the violation.
2. Age of the students which may be searched.
3. Information or suspicion which must exist to warrant a search.

It would appear that in the absence of a "student search rule," no searches of students or protected student areas could be instituted.

1. Searches, in general.

1. Reasonable Suspicion: A search of a student will be justified when there are reasonable grounds for suspicion that the search will turn up evidence that the student has violated or violating the law or the rules of the school.
   
   Reasonable suspicion may be formed by considering factors such as the following:

• eyewitness observations of school personnel;
• information received from reliable sources;
• suspicious behavior by the student; or
• the student's past history and school record

   B.  Reasonable Scope: A search will be permissible in its scope or intrusiveness when the measures adopted are reasonably related to the objectives of the       search. Reasonableness of scope or intrusiveness may be determined based on factors such as the following:

• the age of the student;
• the sex of the student;
• the nature of the infraction; and
• the exigency requiring the search without delay.

2. Types of Searches

1. Personal Searches

1. A student's person and/or personal effects (e.g., purse, book bag, etc.) may be searched when a school authority has reasonable suspicion to believe that the student is in possession of illegal or contraband items.
    
2. Personally intrusive searches will require more compelling circumstances to be considered reasonable.

1. Pat-Down Search: If a pat-down search or a search of a student's garments (such as jackets, socks, pockets, etc.) is conducted, it will be conducted in private by a school official of the same sex and with another adult witness present, when feasible.
    
2. A more intrusive search of the student's person is permissable in emergency situations when the health and safety of the student, employees, or visitors on the school premises are threatened. Such a search may only be conducted in private by a school official of the same sex, with an adult of the same sex present, unless the health or safety of the students will be endangered by the delay which may be caused by following these procedures. A hand held metal detector may be used to assist in this process.
    
3. It is recognized that strip searches, body cavity searches and the use of a drug sniffing animal to search a student's body are not to be permitted under Iowa statute.

2. Locker Searches

1. Maintenance Searches: Although school lockers are temporarily assigned to individual students, they remain the property of the school district at all times. The school district has a reasonable and valid interest in insuring that the lockers are properly maintained. For this reason periodic inspections of lockers is permissible to check for cleanliness and vandalism. General maintenance inspections may be conducted by school authorities at any time upon at least 24 hours notice of the date and time of the inspection.
   
   Any contraband discovered during such searches shall be confiscated by the administration. The administration may try to correct the problem through counseling, parental involvement, medical referrals, or other such referrals depending on the severity of the situation.
    
2. Non-Maintenance Searches: The student's locker and its contents may be searched when a school authority has reasonable suspicion that the locker contains illegal or contraband items. Such searches should be conducted in the presence of another adult witness, when feasible.

3. Automobile Searches

Students are permitted to park on school premises as a matter of privilege, not of right. The school retains authority to conduct routine patrols of the student parking lots. The interior of a student's automobile on the school premises may be searched if the school authority has reasonable suspicion to believe that illegal, unauthorized or contraband items are contained inside.

4. Drug Sniffing Dog Searches

1. Periodically drug sniffing dogs will be used. No student will be searched by the dog. The whole process shall be conducted without students present in the hallways or parking lots at the time of the search.
    
2. The frequency of such searches will be at the discretion of the Superintendent of Schools and/or the Board of Education.

• Updated 4/91, 7/99, 4/04, Revised 6/10