As weapons and drugs have become more prevalent on school campuses, there is greater pressure for school officials to conduct student searches to ensure campus safety. Any time school officials conduct such a search, however, they must understand and evaluate the Fourth Amendment issues that may be implicated. 

The Fourth Amendment to the U.S. Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This right generally requires school officials to have reasonable cause before searching or seizing an individual or their property. In 1985, the U.S. Supreme Court held that the Fourth Amendment applies to students in the public schools but concluded that the right is lessened in a school environment. Schools do not need a warrant or even “probable cause” before searching a student. Instead, the standard for student searches is “reasonable suspicion.” 

A school official conducts a “search” any time the official inspects a student’s person or property. A search includes opening a locker; reviewing the contents of a backpack, cell phone, or personal electronic device; or requiring a student to empty his pockets or undergo a “pat down.” Generally, students have a reasonable expectation of privacy in their personal items, like clothing, bags, vehicles, and cell phones. But, school policies may alter or remove students’ privacy expectations in district-owned items by notifying them that no privacy exists in desks, lockers, and district- issued technology. 

Where students have an expectation of privacy and school officials want to conduct a search, the search must be supported by “reasonable suspicion.” Reasonable suspicion exists if there are reasonable grounds for suspecting that the student has violated the law or school rules. The search must be reasonably related in scope to the circumstances which justified it in the first place. 

Whether a search is reasonable may depend on what the school official is searching. When searching a student’s person or belongings, “reasonable suspicion” exists when a school official has objective, articulable grounds to suspect that the search will provide evidence that the student is violating the law or a school rule. For example, reasonable suspicion is established if the school official sees drug paraphernalia or alcohol of if the school official observes physical factors indicating intoxication, e.g., slurred words, glassy eyes, or smell of alcohol or drugs. 

A school official may only conduct a “suspicionless search” (a search that does not require reasonable suspicion) in limited circumstances where the student has no expectation of privacy. Pursuant to board policy, a student may not have an expectation of privacy in district-owned items 

such as desks, lockers, and district-issued technology. There is also no expectation of privacy in items that are in plain view of a school official or for any smells coming from their personal belongings. For example, school officials may use drugs dogs to conduct indiscriminate sweeps of student vehicles, lockers, and belongings without reasonable suspicion. Note, however, that suspicionless drug sniffing searches of students’ bodies is not warranted. Because suspicionless searches may be subject to higher scrutiny, before conducting such searches, school officials should consult with legal counsel to enact policies governing the scope and process of the searches. School officials should also notify parents and students about the potential for such searches. 

Both suspicion-based and suspicionless searches must be reasonable in scope. Reasonableness, within the context of a search, requires the search to be related to a circumstance justifying the intrusion. When conducting a search, a school official should consider the following best practices to ensure the search is reasonable: 

  • Give the student a chance to surrender the item you believe the search will find; 
  • Have a witness to the search but conduct the search outside the presence of other students, where possible; 
  • Do not search personal items that could not realistically contain the contraband; 
  • When searching a student’s person, have the search conducted by a staff member of the same gender as the student; 
  • Do not require the removal of garments other than jackets or shoes; 
  • Do not touch intimate or private areas of the student’s body; 
  • When the contraband is found, stop the search if there are not reasonable grounds to believe additional searching would reveal more evidence; 
  • Call the School Resource Officer or law enforcement to search a student’s cell phone if the allegations involve inappropriate photos or videos of students. Do not search the phone yourself; and 
  • Document the search by noting: 
    • The bases relied upon for conducting the search and for searching that particular location; and
    • Whether the search ceased when the contraband was found or explain the reasonable bases that the school official relied upon to continue the search. 

In this age of social media, school officials are working under more intense scrutiny than ever before. Ensuring that you follow board policies and document the reasonableness of student searches may help manage that scrutiny.

Written by Thrun Law Firm, P.C.