This is the first in a series of blog posts addressing an important area in our work as juvenile defenders. Part 1 is an overview of the topic and subsequent posts will go into greater detail, as well as provide case sites and practical applications for you to use when representing your clients. The topics that will be addressed in greater detail in upcoming posts include: consent, reliability of sources, law enforcement and school resource officers (SROs), probable cause and reasonable suspicion, and motions to suppress.
Many of our cases are referred to the juvenile court system from the schools – primarily from SROs. When this happens, it’s not uncommon for a search to have taken place. What are the legal standards for searching juveniles in a school setting? Are the legal standards different for the principal, SRO, or law enforcement? The short answer is “yes.”
What legal standard applies depends upon:
1. Who initiated the search? and 2. Who performed the search?
The 4th amendment standard requiring probable cause for any search by law enforcement also applies to law enforcement acting alone in a school setting. Generally that means when a law enforcement officer works outside of the school system and the officer, not the school official, has initiated the search. Probable cause is also required when school officials conduct a search at the request of law enforcement.
School officials acting alone require only a reasonable suspicion. In New Jersey v. T.L.O (469 U.S. 325 (1985)) the US Supreme Court determined that reasonable suspicion for searches by school officials relates to “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or rules of the school.” The standard that applies when school officials act in concert with law enforcement is generally dependent on several variables:
Reasonable suspicion: • School mainly controls the search; • Law enforcement involvement is minimal; • School officials initiate the investigation and law enforcement conduct the search at the request of the school officials; or • School officials perform searches based on information from, or in the presence of, law enforcement.
Probable cause: • Usually law enforcement works outside of the school system and is not acting under the school’s direction; or • School official acting at the direction of law enforcement.
Examples courts have found to constitute reasonable suspicion include: reliable, anonymous tip, school official witnessing an act or overhearing a conversation, reliable tip from a student (not anonymous), physical appearance of the student being under the influence of alcohol or drugs, or common sense conclusions about individual behavior, when based on more than a hunch.
Factors that have been found not to constitute reasonable suspicion include: association with wrongdoers, student’s status as a “rule breaker,” furtive gestures or noncooperation, or a hunch.
However, if the student consents to the search, neither probable cause nor reasonable suspicion is required. That consent must be:
• Voluntary (based on the totality of the circumstances); • Cannot be established by merely showing acquiescence to a claim of lawful authority; • May be voluntary even if the student is not informed of the right to refuse.
Consider filing a motion to suppress when there appear to be issues with the legal standard of the search. Look to see the underlying motivation for the search – was it based on a tip, was the tip reliable? If the search was based on direct observations, consider arguing the behavior can be viewed as innocent behavior or normal teenage behavior. Was there individualized suspicion? Do the school policies or the student handbook cover the type of search that was conducted?
Lastly, if your motion to suppress is denied, you need to renew your objection to the evidence or statement at trial to preserve the issue for appeal. The Juvenile Defender Manual contains an entire chapter addressing motions to suppress evidence. You can access it on our website.