EXCEPTIONS TO THE WARRANT REQUIREMENT: SEARCHES AND INSPECTIONS IN BUSINESSES AND SCHOOLS Bennett Bryan Senior Assistant County Attorney DeKalb County Law Department Brandon Moulard Associate Attorney Nelson Mullins Riley & Scarborough LLP

Introduction: fourth amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. Amend. IV

Introduction: fourth amendment Warrantless searches are “presumptively unreasonable” but there are exceptions (Brigham City v. Stuart, 547 U.S. 398 (2006)) Balance privacy interests with state interests Well-established exceptions: Consent (U.S. v. Plasencia, 886 F.3d 1336 (11th Cir. 2018)) Exigent Circumstances (Montanex v. Carvajal, 889 F.3d 1202 (11th Cir. 2018)) Plain view (Fortson v. City of Elberton, 592 Fed.Appx. 819 (11th Cir. 2014))

Special contexts: administrative inspections of commercial property The law governing administrative searches continues to develop and the bench and bar must be on the lookout. Rivera-Corraliza v. Morales, 794 F.3d 208, 223 (1st Cir. 2015)

Special contexts: administrative inspections of commercial property What is an administrative inspection? Regulatory compliance, not criminal investigation (City of Indianapolis v. Edmonds, 531 U.S. 32 (2000)) Are warrants required? Generally, yes (Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523 (1967)) Are there exceptions to the warrant requirement? Traditional exceptions New York v. Burger’s closely regulated business exception City of Los Angeles v. Patel’s precompliance review “exception”

Special contexts: administrative inspections of commercial property New York v. Burger’s closely regulated business exception What is a closely regulated industry? Factors include: Pervasiveness of regulations Duration and history of regulatory scheme Consistency of pervasive regulations among jurisdictions Examples: Liquor (Colonnade Catering Corp. v. U.S., 397 U.S. 72 (1970)) Firearms (United States v. Biswell, 406 U.S. 311 (1972)) Mining (Donovan v. Dewey, 452 U.S. 594 (1981)) Auto salvage yards (New York v. Burger, 482 U.S. 691 (1987))

Special contexts: administrative inspections of commercial property Burger’s three-part test The government must have a substantial interest in regulating the particular business The inspection program is necessary to further the regulatory scheme The inspection program provides a constitutionally adequate substitute for a warrant in terms of certainty and regularity of application ***If these conditions are met, no warrant is required***

Special contexts: administrative inspections of commercial property City of Los Angeles v. Patel’s precompliance review “exception” Precompliance review before neutral magistrate Not really an exception (more work than a warrant) Makes facial challenges under the Fourth Amendment easier

Special contexts: administrative inspections of commercial property Warrantless inspections must be reasonable No pretext (Swint v. Wadley, 51 F.3d 988 (11th Cir. 1995)) Limited in scope (Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007)) Reasonable in execution (Crosby v. Paulk, 187 F.3d 1339 (11th Cir. 1999))

Special contexts: administrative inspections of commercial property PRACTICE TIPS

Special contexts: STUDENT SEARCHES in schools Students’ Expectation of Privacy v. School Security and Control Students do not forfeit their constitutional rights at school. (Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503(1969)). Administrators must prescribe and control student conduct. (Id. at 307). Warrants are unsuited to the “special needs” of schools. (New Jersey v. T.L.O., 469 U.S. 325 (1985)).

Special contexts: STUDENT SEARCHES in schools Student Searches Must Be Reasonable Two-Part Test: (1) Was the search justified at its inception? (2) Was the search reasonably related in scope? (T.L.O., 469 U.S. at 341).

Special contexts: STUDENT SEARCHES in schools Justified at Inception No warrant required. Reasonable suspicion standard. (T.L.O., 469 U.S. at 342). At least a “moderate chance of finding evidence of wrongdoing.” (Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 371(2009)).

Special contexts: STUDENT SEARCHES in schools Reasonably Related in Scope Search is permissible if: Reasonably related to the objectives of the search, and Not excessively intrusive Factors: (1) age, (2) sex and gender, and (3) nature of the suspected infraction. (T.L.O., 469 U.S. at 341-42).

Special contexts: STUDENT SEARCHES in schools Clothing, Personal Effects, and Lockers Reasonable suspicion typically based on: Student tips Admissions or threats of misconduct Suspicious behavior Drug dogs

Special contexts: STUDENT SEARCHES in schools Drug Testing of Students Collection of tissue or bodily fluids is considered a “search.” (Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995)). Drug testing for interscholastic sports: held constitutional. (Vernonia, 515 U.S. at 665). Drug testing for all extracurricular activities: held constitutional. (Board of Education of Indep. Sch. Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822 (2002)).

Special contexts: STUDENT SEARCHES in schools Strip Searches “Categorically distinct” type of search. Safford, 557 U.S. at 374. Greater justification typically necessary: Individualized suspicion Reasonable belief student has concealed contraband in underwear Dangerous v. non-dangerous items.

Special contexts: STUDENT SEARCHES in schools Off-Campus Events School boundaries, alone, do not dictate 4th Amendment standard. Consider “[t]he nature of administrators' and teachers' responsibilities for the students entrusted to their care.” (Ziegler v. Martin Cty. Sch. Dist., 831 F.3d 1309, 1320 (11th Cir. 2016)).

Special contexts: STUDENT SEARCHES in schools PRACTICE TIPS