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 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 (New Jersey v. T.L.O., 1985). The Court concluded, however, that that right is lessened in a school environment and that schools do not need a warrant or even “probable cause” before searching a student. Instead, the standard for student searches is “reasonable suspicion.”

A “search” in the school setting is inspecting a student’s person or property when that student has a reasonable expectation of privacy in the searched item. By way of example, a search includes opening a locker; reviewing the contents of a backpack; reviewing the contents of a cell phone or personal electronic device; or requiring a student to empty his pockets or undergo a “pat down.” 

School policies may alter or remove students’ privacy expectations in district-owned items by notifying them that no privacy exists as to desks, lockers, and district-issued technology. But generally, students have a reasonable expectation of privacy in their personal items, like clothing, bags, vehicles, and cell phones. When school officials want to search a student, 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 as actually conducted must then be reasonably related in scope to the circumstances which justified it in the first place.

When determining whether a search is reasonable, the answer 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, school officials may test a student for drugs or alcohol if there is a reasonable suspicion that the student is under the influence at school or a school-sponsored event. Reasonable suspicion is, of course, established if the school official sees drug paraphernalia or alcohol, but it could also be established by a number of physical factors, i.e., slurred words, glassy eyes, or smell of alcohol or drugs. Student misconduct alone, without other markers that the student is under the influence of drug or alcohol, would not provide grounds for a drug or alcohol search or test. 

When conducting a search, a school official should consider the following best practices to ensure the search is reasonable in scope:

  • 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. If this is reasonably necessary, detain the student and contact law enforcement personnel;

  • When the contraband is found, stop the search if there are not reasonable grounds to believe additional searching would reveal additional 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 reasonable 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.

The next issue’s article will discuss when a school official may conduct a suspicionless search. Stay tuned!

Written by Thrun Law Firm, P.C.