1 Student Search and Seizure Cortland Area High School Principals Meeting July 30, 2009 presented by Donald E. Budmen, Esq. Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C.

2 Police Involvement Criminal behavior is a police matterCriminal behavior is a police matter –weapons –drugs –assault –sex-related crimes –theft –bomb scares secure the site, preserve the evidencesecure the site, preserve the evidence Focus: has a crime been committed?Focus: has a crime been committed?

3 PurposePurpose –determine if misconduct has occurred –identify and remove weapons, contraband, etc. –preserve evidence –understand and prevent –inform school and community School Administrative Investigations

4 Questioning Student SuspectsQuestioning Student Suspects –Questioning versus interrogation –Miranda? –5 th Amendment Rights against Self-Incrimination? School Administrative Investigations

5 Search and SeizureSearch and Seizure “In loco parentis” v. TLO“In loco parentis” v. TLO Legal Issues

6 Search and SeizureSearch and Seizure –Standards for Search Probable CauseProbable Cause The TLO Court’s Nod to School AdministratorsThe TLO Court’s Nod to School Administrators Reasonable SuspicionReasonable Suspicion Legal Issues

7 Search and SeizureSearch and Seizure –Rules for a Constitutional Search Justified at its inception;Justified at its inception; Reasonable in scopeReasonable in scope –Measured by the objectives of the search; and Not excessively intrusiveNot excessively intrusive –age and sex of student –nature of the infraction Legal Issues

8 What is a search?What is a search? –Reasonable Expectation of Privacy is the controlling factor. Legal Issues

9 What is a search?What is a search? –Lockers, Desks –Automobiles –Purses, Book Bags, Pockets, Persons –Strip Searches –Search Dogs –Metal Detectors –Breathalyzer –Cell Phones –Computers Legal Issues

10 Legal Issues Codes of Conduct: definitional concerns: “weapon” means a firearm as defined in 18 USC 921 for purposes of the Gun-Free Schools Act. It also means any other gun, BB gun, paintball gun, pellet gun, pistol, revolver, shotgun, rifle, machine gun, disguised gun, dagger, dirk, razor, stiletto, switchblade knife, gravity knife, brass knuckles, sling shot, metal knuckle knife, box cutter, cane sword, electronic dart gun, Ninja star, electronic stun gun, pepper spray or other noxious spray, explosive or incendiary bomb.

11 Student Discipline Codes of Conduct: definitional concerns What about: pocket knife water pistol or gun shaped lighter sharpened wooden pointer a chair raised above a student’s head a pencil used to stab in the eye

12 Student Discipline Codes of Conduct: definitional concerns Practice Tip: add the following: “pocket, pen or other knife, look alike fake weapon, or other device, instrument, material, or substance (“Other Item”) that can cause physical injury or death when used to cause physical injury or death, or when such Other Item is brandished as a weapon.”

13 Student Discipline Codes of Conduct: definitional concerns “Illegal Substances” include, but are not limited to, inhalants, marijuana, cocaine, LSD, PCP, amphetamines, barbiturates, ecstasy, heroin, steroids, and any substances commonly referred to as designer drugs.

14 Student Discipline Codes of Conduct: definitional concerns What about: prescription drugs sold, distributed; oregano sold as marijuana; aspirin sold as hydrocodone; cold medications abused in school?

15 Student Discipline Codes of Conduct: definitional concerns Practice Tip: add the following: “and look alikes and prescription or over-the-counter drugs when possession is unauthorized or such are inappropriately used or shared with others.”

16 Student Discipline Codes of Conduct: definitional concerns “under the influence” a borrowed criminal law term

17 Student Discipline Codes of Conduct: definitional concerns Practice Tip: provide a definition – A student shall be considered “under the influence” if he or she has used any quantity of an illegal substance or alcohol within a time period reasonably proximate to his/her presence on school property, on a school bus, in a school vehicle, or at a school-sponsored function and/or exhibits symptoms of such use as to lead to the reasonable conclusion of such consumption.

18 Search and Seizure - Summary School Officials must have “reasonable suspicion” that a search will disclose violation of law or school rules Issue 1: Search is justified at inception. Issue 2: Search is reasonable in scope. Issue 3: Not excessively intrusive.

19 Search and Seizure - Summary Practice Tips: Consult with another administrator when making “reasonable suspicion” determination; Consider how important it is to find the object of interest (i.e., do I really need to make a search?) Have a staff witness present when conducting a search; Document basis of reasonable suspicion, scope of search, and result of search.

20 Search and Seizure - Summary Practice Tips: Don’t strip search an entire fifth grade class to find $3.00 that is missing. Bellnier v. Lund, 438 F.Supp. 47 (N.D.N.Y. 1977)

21 Search and Seizure - Summary Practice Tips: Don’t strip search at all unless safety and urgency require the search. Safford Unified School District v. Redding

22 Search and Seizure - Summary Practice Tips: Have search conducted and witnessed, when possible, by administrators of same gender as student subject to search.

23 Search and Seizure - Summary Issue 4: Non-search Practice Tip: If we inform parents and students that lockers and desks are the property of the school district and are subject to random inspection, we can conduct such random inspections without reasonable suspicion. Why? There is no reasonable expectation of privacy.

24 Search and Seizure - Summary Issue 4: Non-search Dog sniffs of lockers have generally been upheld as Constitutional and the dog alerting provides reasonable suspicion to conduct a more thorough search. Similarly, dog sniffs of cars on school property.

25 Search and Seizure - Summary Practice Tips: When formulating search policy, consult with legal counsel. Mistakes can be very costly. Provide training to your administrators in search and seizure. They are on the front line and will make the critical decisions.

26 Student Search and Seizure Cortland Area High School Principals Meeting July 30, 2009 presented by Donald E. Budmen, Esq. Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C.