Search and Seizure
Under what circumstances can a student be searched?
It is important to recognize that all searches entail an invasion of privacy. Whether a particular search is legally permissible involves a balancing of competing interests: the individual student’s right to privacy and security against the school division’s interests in maintaining order, discipline, and the security and safety of other students.
Best practice involves coherence in school division mission statement, student conduct policy, search policy, and procedures for implementing searches. The mission statement should clearly articulate the school division’s commitment to provide a safe and disciplined school environment conducive to learning. Consistent with the mission statement, the student conduct policy should define expectations and rules, including privacy expectations. Virginia law requires written notice of the student conduct policy to students and their parents; best practice is to notify, or otherwise make available, the written school policy on student searches also.
Are there different types of searches?
Yes. Searches can be categorized as follows:
- blanket and random administrative searches;
- warrantless or reasonable suspicion searches;
- consent searches; and
- law enforcement searches based on probable cause.
Blanket and random administrative searches are typically conducted to serve as a deterrent in the interest of maintaining safe and drug-free schools. These random searches, including group searches, may be conducted only in accordance with formally adopted school board policies which include procedures to ensure that searches are conducted in a neutral fashion. Random locker searches, metal detector screenings, and use of drug-detection canines are examples of blanket searches.
What are best practices in conducting blanket and random searches?
Key best practices involve written notice to students (reducing expectations of privacy) and procedures which ensure that the searches are conducted in a random, systematic, nonselective manner in accordance with a predetermined plan.
Type of Search
Notice: Written policies and periodic notice to students (and their parents) which make it clear that the school retains ownership and control of the locker and that the student’s use of the locker does not constitute exclusive possession.
Neutral plan: Procedures/documentation which ensure a neutral blanket screening or random search.
|Use of metal detectors at school entrances||
Notice: Written policies and notice to students (and their parents) which makes it clear that persons entering the school are subject to metal detector screening. In addition, written warning notices should be posted conspicuously at the entrances of the school to notify visitors that they will be subject to this form of inspection.
Neutral plan: Procedures that carefully limit the discretion of school employees who operate metal detectors and that provide a very detailed script for these employees to follow as they search for weapons.
|Use of drug detection canines||
Notice: Periodic written notice that trained drug-detection canines may be used. Requires planning and sensitivity to limit direct contact with students.
Neutral plan: Canine sniffs of student lockers in a sweeping fashion do not initially constitute a “search.” If however, the dog alerts to a specific locker, then individualized suspicion to search the specific locker exists. Likewise, using dogs to sniff around student automobiles in a sweep of the school parking lot does not ordinarily constitute a search. Educational policy considerations regarding the health and psychological well-being of students also come into play when police-trained dogs are brought near students in schools. Sound educational judgment should be used in deciding whether, when, and under what circumstances drug sniffing dogs will be used in schools.
A warrantless or reasonable suspicion search is based on suspicion of either a criminal offense or a violation of school rules and is conducted with a view to discovery of evidence of the offense or violation. The search can be for contraband (e.g., drugs, alcohol, explosives or fireworks, and/or prohibited weapons); an instrument used to commit an offense or school rule violation (e.g., a weapon used to assault or threaten another); the fruits or spoils of an offense or school rule violation (e.g., the cash proceeds of a drug sale, gambling profits, or a stolen item) or other evidence of an offense or school rule violation (e.g., gambling slips, hate pamphlets, records of drug or illegal gambling debts, etc.).
How is a warrantless or reasonable suspicion search initiated?
To initiate a lawful search, a school official must have reasonable grounds to believe that:
- a law or school rule has been or is being broken;
- a particular student(s) has committed the violation or infraction;
- the suspected violation or infraction is of a kind for which there may be physical evidence ( e.g., contraband, instrumentality, fruits or spoils, or other evidence); and,
- the sought-after evidence would be found in a particular place associated with the student(s) suspected of committing the violation or infraction.
What is reasonableness?
In order for a search to be reasonable, a school official must satisfy two separate inquiries:
- Was the search justified at its inception?
- Was the search conducted in an appropriate manner, that is, was the actual search reasonable in its scope, duration, and intensity?
A search is constitutionally permissible at its inception when the school official has reasonable grounds based on the totality of the known circumstances for suspecting that the search will reveal evidence that the student has violated or is violating either the law or the rules of the school. Reasonable grounds are more than a mere hunch or unsubstantiated rumor.
A search will be reasonable in its scope and intensity where it is reasonably related to the objectives of the search and is not excessively intrusive in light of the age and sex of the student and the nature of the suspected infraction.
It is important to note, according to a 2010 Virginia Attorney General Opinion (10-105), that electronic devices, such as laptops and cell phones, are permitted to be searched by school officials when based on the reasonable suspicion that the particular student is violating the law or the rules of the school.
The legal standard for searches on school grounds extends from the Supreme Court ruling New Jersey vs. TLO, 469 U.S. 325 (1985), in which the court ruled that school officials can search students when that student has violated either the law or school policy and the school has reasonable suspicion that additional evidence of malfeasance exists and is held by the student. Reasonable suspicion is defined as: “[R]easonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.”
Reasonableness is predicated on clearly explicated school rules and policies. For example, if a school policy exists that precludes possession of cell phones and a student is found with a cell phone, the student has violated school policy. A search of the cell phone, however, would only be permissible if school officials reasonably believe the student has engaged in additional wrongdoing (like cyberbullying or sexting).
A consent search of a student exists when a student grants the school official permission to search. A student’s consent is valid only if given willingly and with knowledge of the meaning of consent. School officials have the burden of proving that the search was voluntary and documenting all aspects of obtaining permission to search.
A school official may ask for permission to conduct a search, even if the official does not have reasonable grounds to believe that the search would reveal evidence of an offense/ infraction. A student’s refusal to give permission may not be considered as evidence of guilt. If the school official already has reasonable suspicion to believe that evidence of an offense/infraction will be found in a particular place, school officials need not rely on consent being given and may conduct a search of that location even over a student’s objection.
SROs are law enforcement officers and searches by SROs must be based on the higher standard of probable cause rather than the reasonable suspicion standard for school administrator searches. Put simply, probable cause means a reasonable belief that a person has committed a crime.
As a matter of practice, the MOU between the school division and the local law enforcement agency should define and clarify the responsibilities of the school resource officer related to school searches. In general, the MOU should clarify:
- that any search by a school resource officer shall be based upon probable cause and, it is recommended that a search warrant will be obtained unless exigent circumstances are present;
- that the school resource officer shall not become involved in administrative searches unless specifically requested by the school to provide security, protection, or handle contraband; and
- that at no time should the SRO request that an administrative search be conducted for law enforcement purposes or have the administrator act as his or her agent.
When can a school security officer (SSO) search a student?
SSOs are school employees who serve under the guidance of the principal. SSOs are under the same search requirements as school officials; however, SSOs are not typically the persons designated by the principal to conduct student searches. Because SSOs can assist school officials in conducting student searches, they should be trained in appropriate search procedures and knowledgeable of laws and policy that govern student searches.
Are there any special considerations when school officials encounter child pornography?
According to the 2010 Virginia Attorney General Opinion (10-105), “Upon discovery of potential child pornography, the teacher or principal should promptly contact the appropriate law-enforcement agency within his jurisdiction and turn the material over to one of its authorized agents without distributing the material to others.” This action reduces the risk of exposure of the child to other individuals and also reduces the forensic chain of custody.
For more information on school searches, see the Virginia Department of Education’s Virginia School Search Resource Guide
A new guide addressing searches in schools will be available on the Virginia Center for School and Campus Safety website in the near future. It will be known as the School/Police Partnership Implementation Guide. This guide will inform school administrators, decision makers, and public safety personnel on the scope and parameters of searches in schools and law enforcement authority. A model MOU will also be included in the new Guide.
Is student drug testing permissible?
Code of Virginia § 22.1-279.6 states that “a school board may, in its discretion, require or encourage drug testing in accordance with the Board of Education’s guidelines and model student conduct policies.” The state statutory provisions do not require the adoption of drug testing programs by local school boards, but allow school boards to decide whether drug testing will be encouraged or required. The Virginia Department of Education advises:
“The question of whether to test students for drugs involves myriad complex issues that must be fully understood and carefully weighted before testing begins… Before implementing a drug testing program, local school boards should consult with legal counsel familiar with the laws regarding student drug testing.”
For more in-depth information about drug testing in schools, see the Virginia Department of Education’s Drug Testing Guidelines.