Search and Seizure Issues including SROs and "BYOD" © CAMPBELL SHATLEY, PLLC 674 MERRIMON AVE. SUITE 210 ASHEVILLE, NC

The 4 th Amendment o Applies to searches by school officials and protects students from unreasonable searches and seizures of their belongings and persons. o School officials have more power than law enforcement officers to search students as long as the search is related to school order and discipline.

"Reasonable Suspicion": The TLO Standard o School officials must have a "reasonable suspicion" that a student has violated or is violating a state law or school rule. o The TLO standard:  Search must be "permissible at its inception;" and  Reasonable in scope.

Top Ten Facts about the "Reasonable Suspicion" Standard 10. School officials do not need a search warrant. 9.Reasonable Suspicion must be present before the search begins. 8. Reasonable Suspicion may be based on common sense notions. 7. Reasonable Suspicion may be based on personal observation. 6. Reasonable Suspicion may be based upon reliable information.

Top Ten Facts about the "Reasonable Suspicion" Standard 5. Less suspicion is needed if the potential for harm is highly likely. More suspicion is needed if the infraction is minor. 4. The search must be limited to the area in which evidence is likely. 3. The suspicion must be individualized to a specific student. 2. If a student gives a voluntary and knowing consent, no suspicion is needed. 1. DO NOT CONDUCT STRIP SEARCHES.

Working with School Resource Officers o SRO is first and foremost a law enforcement officer, employed by local law enforcement agency. o Assignment to duty as SRO is usually pursuant to an MOU with the school district. o In order for evidence to be admissible in criminal court, a law enforcement officer must have had "probable cause" to believe a crime has been or was being committed prior to a lawful search.

Central Question: Authority to Search and Interrogate Students???

N.C. Law & Student Searches Involving SROs In Re: Murray, 136 N.C. App. 648 (2000)

A.Facts: 1.Principal told that student had something he "should not have at school" in his book bag. 2.Student refused to allow a search twice. 3.SRO was then summoned and asked to explain the reason for the search to the student. 4.Principal and student struggled for control of the book bag and the SRO restrained the student. 5.The book bag contained a pellet gun.

B.The "standard" of whether to apply reasonable suspicion or probable cause to a Fourth Amendment Search in applying the exclusionary rule depends on whether a school official or law enforcement officer conducted the search. C.Where the principal initiates and conducts the search directly, the search may be conducted based upon reasonable suspicion.

In re DD, 146 N.C. App. 309 (2001), cert. denied, 354 N.C. 572 (2001)

A.Facts: 1.Principal, SRO and regular law enforcement officers detained, searched and questioned students and non- students about a possible fight. 2.The individuals did not provide truthful information making it difficult for law enforcement to know who was and who was not a student. B.The Court again looked to the nature and extent of involvement by the SRO and other law enforcement.

C.The Court applied the reasonable suspicion standard to the search of a non-student under the facts. D.The Court ruled that the reasonable suspicion standard from TLO extends to searches made by SROs "in conjunction with" school officials in which law enforcement involvement is minimal.

Federal Law & Student Interrogations involving SROs J.D.B. v. North Carolina, 131 S.Ct (2011)

A.Facts: 1.13 year-old, seventh-grader 2.Stopped by police and questioned in his neighborhood following two home break-ins 3.Five days later – a.JDB was escorted from his classroom by a uniform officer b.Taken to a closed-door conference room c.Questioned by a police investigator for ½ hour d.No Miranda warning e.Was not told he could speak with his grandmother or leave f.Assistant principal and administrative intern were present but did not participate

Held:The objective custody analysis of Miranda and its progeny require consideration by police officers engaging in the interrogation of a juvenile with respect to criminal activity to take the juvenile’s age into consideration in determining whether and when Miranda rights must be afforded

Held: "…this is not to say that a child’s age will be a determinative, or even a significant, factor in every case."

Supreme Court Retort: J.D.B. v. North Carolina, 131 S.Ct (2011)

Supreme Court Retort: "In short, officers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child's age. They simply need the common sense to know that a 7–year–old is not a 13–year–old and neither is an adult."

Take away – 1.When police officers (including SROs) interrogate a student for law enforcement purposes, they must determine if a Miranda warning is due. 2.JDB was decided upon a motion in criminal court to suppress evidence.

Astute Legal Interpretation 1.AGE IS IMPORANT, 2.Unless it’s NOT! 3."Let’s be careful out there."

Cell phone searches G.C. v. Owensboro Public Schools, 711 F.3d 623 (6 th Circuit, 2013)

A.Facts: 1.G.C.’s freshman year o February: student tells A.P. that he was upset after fight with girlfriend and "didn’t want to be here any more." Per A.P.’s recommendation, student evaluated at mental health facility. o March: in course of drug/alcohol prevention counseling, student admits to daily marijuana use. 2.G.C.’s sophomore year o January: G.C. has cell phone in class. Teacher confiscates, later returns it. o March: upset at not being allowed to leave school, G.C. storms out of the building. A.P. finds G.C. on his cell phone, confiscates and searches it, finding a text to G.C.’s girlfriend reading "I need to smoke." G.C. tells A.P. he has been having suicidal thoughts. Four days ISS (for leaving). o April: G.C. "throws a fit" in hallway, yelling, and punching a locker. 20 days ISS.

A.Facts: 1.G.C.’s junior year o September: G.C. caught texting during class. A.P. confiscates and searches phone "to see if there was an issue with which I could help him so that he would not do something harmful to himself or someone else." Search yields texts related to marijuana use etc. District revokes G.C.’s privilege to attend the school. o October: G.C.’s parents sue the district for, among other things violation of G.C.’s Fourth Amendment rights.

B.Review - Two searches at issue: 1.March: upset at not being allowed to leave school, G.C. storms out of the building. A.P. finds G.C. on his cell phone, confiscates and searches it, finding a text to G.C.’s girlfriend reading "I need to smoke." G.C. tells A.P. he has been having suicidal thoughts. Four days ISS (for leaving). 2.September: G.C. caught texting during class. A.P. confiscates and searches phone "to see if there was an issue with which I could help him so that he would not do something harmful to himself or someone else." Search yields texts related to marijuana use etc. District revokes G.C.’s privilege to attend the school.

C.Federal District Court o School district wins under TLO: both searches "justified at their inception" and "reasonable in scope". o Articulation of harm: school had knowledge of suicidal ideation, drug use. In March, G.C. left school and used phone, in violation of policy. By the September search, school also knew G.C. might "throw a fit" if phone confiscated. o Scope of search: "no more intrusive than necessary to accomplish the purpose or objective of determining whether [G.C.] was a danger to himself or others or whether [he] was violating either the law or the rules of the school." o Possession of the phone, in violation of school policy, is sufficient justification for the search.

D.6 th Circuit Court of Appeals o March search permissible: G.C. left school, admitted making a call, returned and reported suicidal thoughts. o September search impermissible: "no indication in the hours, weeks, or months leading up" to the second search that "a search of the phone would reveal evidence of criminal activity, impending contravention of school rules, or potential harm to anyone in the school." o Court of appeals explicitly rejects notion that mere possession of the phone, in violation of school policy, is sufficient grounds to justify searching the phone.

Cell phone searches o Take home messages:  Law is still developing is this area. Owensboro case (6 th Circuit) not controlling in North Carolina. To date, no 4 th Circuit cases on cell phone searches in schools. Trend is to treat cell phones as more private: "today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives." Riley v. California, 573 U.S. ____ (2014). o Take home questions:  Why would use of the phone to make calls justify searching texts?  Are there practical limits on how much we can search anyway?  Partnership with NSA?