DragNet: February 1 – February 15, 2018


Image from ACLU.org

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Anthropolitea in the News 9/10 – 9/11

FIRST UP – Terrorist stop and search laws used on children (and 157,000 other times) in UK — Boing Boing asks: will watchdog agency begin watching?

SECOND UP – Graffiti artist receives four year prison sentence and we wonder why the prisons are both overcrowded and a booming industry?

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Commentary & Forums

Search and Seizure of Students at Public Schools

While at Cafe Pergolesi, yesterday, I overheard an extended discussion between two UCSC students discussing the legality of searches and seizures at schools. Being a deputy, I am somewhat familiar with Juveniles and the law. But I find that it is often unclear how deputies are supposed to deal with minors on school grounds. I have heard some deputies say that they need have only reasonable suspicion to conduct a search of a student on school grounds. That is flat out wrong!

Case Law has made several things clear:

1.) The Supreme Court has affirmed that minors have 4th amendment protections

2.) Schools, especially public schools, are not “special places” where the 4th amendment does not apply. The Court stated in Tinker v. Des Moines Ind. School District, 393 US 503, 506 (1969), “It can hardly be argued that either students or teachers shed their constitutional rights of freedom of speech or expression at the school house gate.”

3.) Per New Jersey v. T.L.O. 469 US 325 (1984), Public school employees are “creatures” of the State, and therefore they are subject to the 4th Amendments restrictions on search and siezure. If you are a student at a private school you are SOL, and your reasonable expectations to privacy are diminished and, further, private school employees are not “the State” and therefore the fruits of their search, so long as not coerced by law enforcement, are not subject to 4th amendment restrictions.

4.) Public school employees do not need search warrants to conduct searches of students

5.) Lockers and other jointly possessed spaces and property are searchable and seizable by public school employees as students do not have a reasonable expectation to privacy.

6.) The needs to maintain order, discipline, and safety in schools lowers the bar for searches. In most cases, teachers and administrators will only need reasonable suspicion that a crime has occurred to initiate a search (outlined in New Jersey v. T.L.O., 469 U.S. 325 (1985) and public safety searches have been upheld in several lower court rulings, Williams,
1991; Widener, 1992; Cornfield, 1992; Dukes, 1992). In re Alexander B. (1990), allows for group suspicion to legitimate searches where public safety is at risk. In this case, “someone” in a group was alleged to have a gun on school grounds. This justified a search of the whole group to locate the gun, even though no individualized suspicion existed.
Because schools have the need to maintain order in their setting, school officials need not obtain a warrant before searching a student. They also need not be held to the “probable cause” requirement to search. The legality of a student search should depend on reasonableness. Determining the reasonableness of any search involves determining whether or not the search was justified. There needs to be reasonable evidence that the student is, or will be violating school rules, or the law.
The bottom line is the “Gault Rule” which states that the rights of one bow to the safety of the group.

7.) Searches by public school employees are limited in their scope. They must be reasonable and congruent with the reasonable suspicion that led to the search, unless, in the course of a reasonable search, new evidence comes to light.

8.) Per Essex (2003), when public school officials are acting “in loco parentis” they may search even when only reasonable suspicion exists.

9.) When LAW ENFORCEMENT is involved in a search the PROBABLE CAUSE standard MUST be used. School Resources Officers are POLICE and not Public School Employees. Therefore the 4th Amendment demand for probable cause fully applies.

10.) Public School Employees do not need to Mirandize students. Miranda applies only when law enforcement is conducting interrogations in custodial environments. If a police officer is present during a public school employees interview or interrogation and is an observer ONLY, Miranda does not apply.

11.) A point of clarificaiton, according to the North Carolina Court of Appeals, In the Matter of D.D., 554 S.E. 2d 346 (North Carolina 2001), when the police work in conjunction with a school investigation, and are not conducting their own independent investigation, the case law from T.L.O. applies,

” [a] police investigation that includes the search of a public school student, when the search is initiated by the police and       conducted by police, usually lacks the commonality of interests existing between teachers and students.  But when school officials, who are responsible for the welfare and education of all the students within the campus, initiate an investigation and conduct it on school grounds in conjunction with the police, the school has brought the police into the school-student relationship.”

Of course, all of this begs the question of why we conceptualize a different legal theory at all for children? Why should children be treated any differently than adults? Why make the distinction, law, between children and adults, for without this distinction, it is unlikely that there would be any case law at all regulating search and seizure at schools. Invariably, we have to look to the early 20th century when new categories of “childhood” and attendant concepts such as “dependence,” “neglect,” and “delinquency” came into being. Similarly, compulsory education and other progressive institutions of the time, are pat of the story as well that leads to the development of a separate “juvenile justice system” (e.g. in CA, youth probation and the California Youth Authority).