1. 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

2. 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

3. 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))

4. 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)

5. 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”

6. 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 (1972))
Mining (Donovan v. Dewey, 452 U.S. 594 (1981))
Auto salvage yards (New York v. Burger, 482 U.S (1987))

7. 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***

8. 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

9. 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))

10. Special contexts: administrative inspections of commercial property
PRACTICE TIPS

11. 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 (1985)).

12. 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).

13. 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)).

14. 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 ).

15. 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

16. 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)).

17. 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.

18. 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)).

19. Special contexts: STUDENT SEARCHES in schools
PRACTICE TIPS