Dear Legal Mailbag:
As an assistant principal in a large middle school, I have to search students from time to time who are accused of being in possession of contraband (you name it, cigarettes, vapes, box cutters). It’s been a while since I took that school law course. I do remember that I must have some reasonable basis for the search. But how far I can go with the search is a bit of a mystery.
Let me give you an example. Last week, I got a tip from a student that another student was in possession of weed in school. I called that student down to the office and asked him to empty his pockets. He just sat there and tried to stare me down. So I stood up and moved toward him to conduct the search notwithstanding his lack of cooperation. Apparently, that was enough to convince the student that I was serious, and he quickly reached into his jacket pocket and pulled out a baggie with weed.
Here’s the question. Once I obtained from the student the weed that I suspected he had, could I insist on his emptying all of his pockets? I certainly wanted to, but I wasn’t sure if I had the right to do so. After all, my “reasonable suspicion” was that the student was in possession of weed, and at that point I knew that he was. Could I keep going with my search?
Searching for Guidance
Dear Searching:
Legal Mailbag is pleased that you remember that you must have reasonable suspicion before initiating a search of a student. T.L.O. v. New Jersey (U.S. 1985) may sound familiar, because that was the case decided forty years ago in which the United States Supreme Court established the rules for student searches, rules that still apply today,
First, as you remember, there must be reasonable cause at the inception of the search to suspect that the search will yield evidence of a violation of school rules or the law. Here, you clearly passed that hurdle because a tip by a student is generally considered reasonable cause to initiate a search.
The second requirement governing student searches is where your memory apparently failed you: the scope of the search must be reasonably related to the object of the search and must not be excessively intrusive in light of the age and sex of the student involved. In plain English, the scope of your search must be limited to what is necessary to find the object you are seeking. For example, searching a student’s change purse may be reasonable if you are searching for drugs, but such a search would be unreasonable if you are searching for a weapon that could not fit in that change purse.
Your specific question is whether you can keep searching once you have found the object you are looking for, and Legal Mailbag has pondered this question over the years. You find weed. Are you done? Similarly, you find a weapon. Are you done? You find a threat on a student’s cell phone. Are you done?
In each case, Legal Mailbag would say no. The fact that the student is in possession of one baggie with weed does indeed create reasonable suspicion that the student may be in possession of more weed in different pockets. The same can be true of weapons or even threatening texts. In each case, you will want to know the scope of infraction, and your further search of the student in each of these cases would be justified by reasonable suspicion that searching further may yield additional evidence of a violation of school rules or the law.
Given that we are discussing student searches, Legal Mailbag offers two other observations. First, asking a student to empty his pockets may be polite, but it has no bearing on the constitutional protections students have under the Fourth Amendment. Administrators and teachers are in positions of power over students, and thus students cannot freely consent to a directive, even if it is framed as a question. Accordingly, when a student cooperates with a request to empty his or her pockets, the rules governing student searches still apply.
Second, in a given situation, you may have reasonable cause to search for one thing, say, weed, and you find something else, say, a weapon. As long as the search was reasonable at its inception and reasonable in scope for the object you were searching for, you are certainly free to use any other contraband you may find in subsequent disciplinary proceedings.