Creating Safe and Drug-Free Schools: An Action Guide - September 1996

A r c h i v e d  I n f o r m a t i o n

Searches for Weapons and Drugs

If public schools experience high levels of violence and drug use, school officials may wish to consider adopting search policies that permit them under certain circumstances to screen students and search school property for weapons and drugs.

Compliance With Basic Dictates of the Fourth Amendment

Public school officials, like law enforcement officers, are State officers bound by the Fourth Amendment. Thus, school officials must understand the basic dictates of the Fourth Amendment--both to comport themselves within the bounds of the law and to implement an effective drug and weapons search policy. What follows is a general discussion on this important topic.

Contact an attorney before implementing a search policy.

The information contained in this section is meant to give school officials some basis for considering whether to pursue a search policy in their schools or school districts. Before implementing a search policy, schools should be sure to contact either the school attorney, the local district attorney, or the State attorney general.

School officials do not need a warrant or probable cause prior to conducting a search.

The Fourth Amendment prohibits all unreasonable searches and seizures by State officers. Reasonableness is determined by balancing the governmental interest behind the search against the privacy intrusion of the search. The Supreme Court has held that students have a legitimate expectation of privacy in their persons and accompanying possessions. However, the Court also has held that schools have a substantial interest in maintaining security and order in the classroom and on school grounds. The Court has determined that this interest justifies a more flexible standard of reasonableness for searches of students that are conducted by school officials as opposed to law enforcement officers. Thus, the Court has held that school officials, unlike the police, do not need to obtain a warrant prior to conducting a search. Nor do they need probable cause to believe that a violation of the law has occurred.

In order to conduct a search, school officials need only a "reasonable suspicion" that the search will turn up evidence that the student broke the law or the rules of the school.

School officials need only have "reasonable suspicion" that a particular search will reveal evidence that the student has violated or is violating either the law or the rules of the school. Even if reasonable suspicion exists, to be permissible, the scope of the search must be such that the measures used are reasonably related to the purpose of the search, and not excessively intrusive in light of the age and gender of the student and the nature of the suspected infraction. The Supreme Court has upheld searches that comply with this standard only insofar as such searches are initiated and conducted by school officials. A more stringent legal standard likely applies to searches conducted in conjunction with or at the behest of law enforcement officers.

The meaning of "reasonable suspicion."

In interpreting and applying the "reasonable suspicion" standard set forth by the Supreme Court, lower courts generally have required more than general suspicion, curiosity, rumor, or a hunch to justify searches of students and their possessions. Factors identified by courts in sustaining a search of a student include the observation of specific and describable behavior leading one reason-ably to believe that a particular student is engaging in or has engaged in prohibited conduct. The more specific the evidence in support of searching an individual student, the more likely the search will be upheld. For example, courts using the reasonable suspicion standard have upheld the right of school officials to search the following:

School officials may search students only within reasonable limits.

When reasonable suspicion exists, school officials may search students, but only within reasonable limits. Such limits require school officials to adopt measures that are reasonably related to the purpose behind the search. In addition, the search may not be excessively intrusive in light of the age and gender of the particular student and the nature of the infraction. For example, if a teacher thinks he or she has seen a student pass a marijuana cigarette to a second student, the teacher might reasonably search the two students and any nearby belongings in which the students may have tried to conceal the drug. If, however, the teacher discovers that what was actually observed was only a stick of gum or other noncontraband item, the teacher would be unjustified in searching either the students or their belongings any further.

As a general rule, the more intrusive the search, the greater the justification the courts will require. Thus, a search of a student's jacket or bookbag requires less suspicion than a physical pat-down or, at the extreme, a strip search. Courts consider strip searches to be highly intrusive of an individual student's privacy; thus, they should be premised only on probable cause.

A search does not have to end because the school official found the item that is sought.

In addition, school officials do not have to end a search simply because they uncover what they suspected would be found. Instead, if a search of a student reveals items that provide reasonable grounds for suspecting that the student might also possess other evidence of crimes or misconduct, the school officials may continue the search. For example, if a teacher justifiably searches a student's purse for cigarettes and finds rolling papers such as those used for marijuana cigarettes, it will be reasonable for the teacher to continue the search for further evidence of drugs.

School officials may search school property when they have "reasonable suspicion" that the search will turn up evidence that the student broke the law or the rules of the school.

The Supreme Court has not decided whether, and to what extent, students have legitimate expectations of privacy in school property such as lockers, desks, or other areas provided for the storage of school supplies and/or personal belongings. At a minimum, school officials may search all such areas when they have reasonable grounds for suspecting that such a search will reveal evidence of illegal activity or a violation of school regulations, as set forth above. Whether school officials may conduct suspicionless searches, however, will be determined by the nature of the specific privacy expectations students have in a particular area.

For example, a student's locker often serves as the repository for all school supplies and personal belongings that the student is required, or chooses, to bring to school. Indeed, at least one court has described the school locker as a student's "home away from home." Thus, when school officials permit a student exclusive, secured use of a locker to store his or her books and belongings throughout the school year, such student arguably has a legitimate expectation of privacy in the locker's contents.

On the other hand, students likely have a lesser expectation of privacy in the contents of classroom desks, at least to the extent these desks are unsecured and available for use by other students throughout the school day. When a school does permit its students to store and secure the contents of a desk such that others cannot gain access (in a homeroom, for example), a similar expectation of privacy as that retained by students in their lockers probably would attach.

Courts are more likely to uphold searches of school property when students have a reduced expectation of privacy.

Courts are more likely to uphold searches conducted by school officials of lockers, secured desks, and other areas in which students store personal effects when certain steps are taken to reduce the reasonable expectation of privacy students may have in these areas. First, at the start of each academic year, school administrators can provide students with a written statement that details the school's policy of conducting random, unannounced searches throughout the year of student lockers, desks, and any other targeted areas within the school. The statement should inform students that they are to consider all such areas to be "public," not "private."

Moreover, the nonprivate nature of areas such as lockers and desks should be made obvious to the students. Thus, courts have upheld locker searches when the school retains joint control over the student lockers, maintains duplicate or master keys for all lockers, and reserves the right to inspect lockers at any time. Other possibilities might include providing students with lockers that have transparent or grid doors that enable passersby to observe the contents therein or providing students with secured lockers only when the students consent to joint custody with the school.

When a policy of inspecting lockers or other school property is adopted, school officials should in fact implement it. Otherwise, the practice of not searching could negate the effect of the written policy by raising the expectation of privacy that students have in such areas.

Although these practices remain largely untested by the courts, locker and desk searches in schools will be easier to justify when the students' reasonable expectation of privacy is effectively reduced.

School officials may search student vehicles when they have "reasonable suspicion" that the search will turn up evidence that the student broke the law or the rules of the school.

School officials may search a student's vehicle that is left in a school parking lot when they have reasonable grounds for suspecting that the search will disclose evidence that the student has violated or is violating either the law or the rules of the school, as set forth above.

School officials may conduct random vehicle searches or keep students' car keys when the school has a very serious weapon or drug problem.

Under certain limited circumstances, school officials also may be able to conduct random, suspicionless weapon and/or drug searches of student vehicles parked on school grounds. When it is justifiable, all students who park their vehicles on school property therefore could be required to leave the ignition keys with school officials in the morning and then retrieve them before leaving at the end of the school day. Or, such students simply may be required to agree to provide school officials with access to their vehicles on demand.

To justify such a policy, a school will have to demonstrate that it has a very serious weapon and/or drug problem and that conducting these searches is a reasonably effective means of combatting that problem. For example, the school may have to show either that (1) students have access to their vehicles during the school day and thus are able to bring weapons and/or drugs from their vehicles into the schools or (2) weapons and/or drugs are used or exchanged within the immediate area of the parking lot. Moreover, the searches as conducted must be only as intrusive as necessary to further the interests at stake. For example, if a school official is searching for a firearm, it would not be reasonable to examine the ashtray.

Vehicle searches must be conducted in a manner that curtails undue discretion.

The vehicle searches must be conducted in a manner that curtails undue discretion on the part of school officials in deciding which vehicles to search. Suspicionless vehicle searches must be done uniformly or by systematically random selection, such as every third car. The courts have held that when the decision to search is left entirely to the discretion of the official, the searches may stigmatize or embarrass the isolated students searched, tending to make the search relatively more intrusive.

Schools must adequately inform all students that their vehicles are subject to search.

In addition, the school must adequately inform all students who use the lot that their vehicles are subject to search. This notice should inform the students of the grounds for the search, the extent of the search, and the frequency or regularity of the searches. This notice must be consistent with the school's actual vehicle search practice. For example, if school officials inform students who use the school parking lot that their vehicles will be subject to a search once a month, but in fact do not conduct such searches until 6 months have elapsed, students may be justified in arguing that their expectation of privacy in the security of their vehicle was not adequately reduced by the practice followed by the school, regard-less of the specific terms of the initial notice.

A search is permissible if the student consents.

If a student consents to a search, the search is permissible, regardless of whether there otherwise would be reasonable grounds for the search. However, school officials should be extremely cautious in basing a search on a student's consent.

Consent must be given knowingly and voluntarily.

For a search based on a student's consent to be valid, such consent must be given knowingly and voluntarily. Establishing whether a student's consent was voluntary can be difficult and the burden remains with the school official to so prove. If a student agrees to be searched out of fear or as a result of other coercion, that consent will probably be found invalid. Similarly, if school officials indicate that a student must agree to a search, or if the student is very young or otherwise unaware that he or she has the right to object, the student's consent also will be held invalid. For example, a policy that permits vehicle searches will not be permissible in schools at which students have no choice other than to drive--for example, because of a lack of public transportation or the unavailability of school busing--and no viable parking options other than the school lot. In such cases, courts probably will find that any consent obtained is coerced and thus invalid. To enhance the voluntariness of a student's consent, school officials are advised to explain to students that they do not have to consent to a search. In some cases, consent forms may be useful.

If a student refuses to consent to a search, school officials still may conduct the search as long as there are reasonable grounds to justify it, as set forth above.

Alternative search techniques

Schools with severe drug or weapons problems may wish to consider special types of search techniques to screen students for drugs or weapons. Although the Supreme Court has not addressed the constitutionality of the use of these devices in the context of public schools, the case law has evolved in the lower courts as follows:

Trained narcotics dogs to sniff objects may be used at any time and without any particular suspicion by the school official.

The courts have generally agreed that the use of trained narcotics dogs to sniff objects, as opposed to people, is not a search within the meaning of the Fourth Amendment and thus requires no level of suspicion. School officials therefore may use trained narcotics dogs to sniff objects that are not affixed to, or carried by, an individual student, such as lockers, desks, student vehicles parked in school parking lots, or any articles of personal property that have been discarded or abandoned. If the dog alerts them to a particular locker or vehicle, school officials then will have satisfied the reasonable suspicion requirement that justifies a more thorough search to determine whether in fact drugs are present.

The use of dog sniffs on individual students in the absence of reasonable suspicion is more problematic. Of the few courts to consider the issue, the majority have concluded that the use of dog sniffs on students is a search and therefore may not be justified in the absence of reasonable suspicion.

When justified, schools may use metal detectors to search students and their personal effects.

Under certain circumstances, schools may be able to use magnetometers, or metal detectors, to search students and their personal effects for weapons prior to entering school premises. These devices could be either walk-through or hand-held. Although Federal courts have not yet addressed the constitutionality of such devices as used in public schools, the courts have upheld such use in the context of airports and courthouses. The courts have so concluded in light of the vital governmental interest in preventing air hijackings and safeguarding courthouses and of the relatively minimal intrusiveness of the magnetometer search.

Courts are likely to uphold the use of magnetometers in public schools subject to certain restrictions. First, school officials must be able to document a very serious problem with the possession of illegal weapons and the threat of related violence on school grounds. Second, school officials must use the device in a random fashion; they may not exercise any discretion in deciding whom to search. Thus, school officials may search every student who enters the building, or some other neutral category of persons, such as every third student. The courts have held that such random use of a magnetometer limits the stigma that attaches to those searched and minimizes the risk of abuse by the searching officials. Finally, the routine use of a magnetometer is justifiable only to the extent school officials are searching for weapons. However, other contraband uncovered in plain view or by plain touch during a magnetometer search may be seized by school officials. Subject to these restrictions, students may be required to submit to such a detection device daily or intermittently throughout the academic year.
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