1 Student Search and Seizure Cortland Area High School Principals Meeting July 30, 2009 presented by Donald E. Budmen, Esq. Ferrara, Fiorenza, Larrison,

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Student Search and SeizureStudent Search and Seizure

Cortland Area High School Principals Cortland Area High School Principals MeetingMeeting

July 30, 2009July 30, 2009

presented bypresented by

Donald E. Budmen, Esq.Donald E. Budmen, Esq.Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C.Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C.

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Police InvolvementPolice Involvement

• Criminal behavior is a police matterCriminal behavior is a police matter– weaponsweapons

– drugsdrugs

– assaultassault

– sex-related crimessex-related crimes

– thefttheft

– bomb scaresbomb scares

• secure the site, preserve the evidencesecure the site, preserve the evidence

• Focus: has a crime been committed?Focus: has a crime been committed?

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• PurposePurpose

– determine if misconduct has occurreddetermine if misconduct has occurred– identify and remove weapons, contraband, etc.identify and remove weapons, contraband, etc.

– preserve evidencepreserve evidence

– understand and preventunderstand and prevent

– inform school and community inform school and community

School Administrative School Administrative InvestigationsInvestigations

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• Questioning Student SuspectsQuestioning Student Suspects

– Questioning versus interrogation Questioning versus interrogation

– Miranda?Miranda?

– 55thth Amendment Rights against Self-Incrimination? Amendment Rights against Self-Incrimination?

School Administrative School Administrative InvestigationsInvestigations

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• Search and SeizureSearch and Seizure

• ““In loco parentis” v. In loco parentis” v. TLOTLO

Legal IssuesLegal Issues

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• Search and SeizureSearch and Seizure

– Standards for SearchStandards for Search

• Probable CauseProbable Cause

• The The TLO Court’s Nod to School AdministratorsTLO Court’s Nod to School Administrators

• Reasonable SuspicionReasonable Suspicion


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• Search and SeizureSearch and Seizure– Rules for a Constitutional SearchRules for a Constitutional Search

• Justified at its inception;Justified at its inception;

• Reasonable in scope Reasonable in scope – Measured by the objectives of the search; andMeasured by the objectives of the search; and

• Not excessively intrusiveNot excessively intrusive– age and sex of studentage and sex of student

– nature of the infractionnature of the infraction


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• What is a search? What is a search?

– Reasonable Expectation of Privacy is the Reasonable Expectation of Privacy is the controlling factor.controlling factor.


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• What is a search? What is a search? – LockersLockers, , DesksDesks– Automobiles Automobiles – Purses, Book Bags, Pockets, PersonsPurses, Book Bags, Pockets, Persons– Strip Searches Strip Searches – Search DogsSearch Dogs – Metal DetectorsMetal Detectors– BreathalyzerBreathalyzer– Cell PhonesCell Phones– ComputersComputers


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Codes of Conduct: definitional concerns:Codes of Conduct: definitional concerns:

““weapon” means a firearm as defined in 18 USC 921 for purposes of the weapon” means a firearm as defined in 18 USC 921 for purposes of the Gun-Free Schools Act. It also means any other gun, BB gun, paintball Gun-Free Schools Act. It also means any other gun, BB gun, paintball gun, pellet gun, pistol, revolver, shotgun, rifle, machine gun, disguised gun, pellet gun, pistol, revolver, shotgun, rifle, machine gun, disguised gun, dagger, dirk, razor, stiletto, switchblade knife, gravity knife, gun, dagger, dirk, razor, stiletto, switchblade knife, gravity knife, brass knuckles, sling shot, metal knuckle knife, box cutter, cane sword, brass knuckles, sling shot, metal knuckle knife, box cutter, cane sword, electronic dart gun, Ninja star, electronic stun gun, pepper spray or electronic dart gun, Ninja star, electronic stun gun, pepper spray or other noxious spray, explosive or incendiary bomb.other noxious spray, explosive or incendiary bomb.

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Student DisciplineStudent Discipline

Codes of Conduct: definitional concernsCodes of Conduct: definitional concerns

What about:What about:pocket knifepocket knifewater pistol or gun shaped lighterwater pistol or gun shaped lightersharpened wooden pointersharpened wooden pointera chair raised above a student’s heada chair raised above a student’s heada pencil used to stab in the eyea pencil used to stab in the eye

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Practice Tip: add the following:Practice Tip: add the following:

““pocket, pen or other knife, look alike fake weapon, pocket, pen or other knife, look alike fake weapon, or other device, instrument, material, or substance or other device, instrument, material, or substance (“Other Item”) that can cause physical injury or (“Other Item”) that can cause physical injury or death when used to cause physical injury or death, death when used to cause physical injury or death, or when such Other Item is brandished as a or when such Other Item is brandished as a weapon.”weapon.”

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““Illegal Substances” include, but are not Illegal Substances” include, but are not limited to, inhalants, marijuana, cocaine, limited to, inhalants, marijuana, cocaine, LSD, PCP, amphetamines, barbiturates, LSD, PCP, amphetamines, barbiturates, ecstasy, heroin, steroids, and any ecstasy, heroin, steroids, and any substances commonly referred to as substances commonly referred to as designer drugs.designer drugs.

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What about: What about:

prescription drugs sold, distributed;prescription drugs sold, distributed;

oregano sold as marijuana;oregano sold as marijuana;

aspirin sold as hydrocodone;aspirin sold as hydrocodone;

cold medications abused in school?cold medications abused in school?

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Practice Tip: add the following:Practice Tip: add the following:

““and look alikes and prescription or and look alikes and prescription or over-the-counter drugs when possession is over-the-counter drugs when possession is unauthorized or such are inappropriately unauthorized or such are inappropriately used or shared with others.”used or shared with others.”

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““under the influence” under the influence”

a borrowed criminal law terma borrowed criminal law term

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Practice Tip: provide a definitionPractice Tip: provide a definition – –

A student shall be considered “under the influence” if he or A student shall be considered “under the influence” if he or she has used any quantity of an illegal substance or alcohol she has used any quantity of an illegal substance or alcohol within a time period reasonably proximate to his/her within a time period reasonably proximate to his/her presence on school property, on a school bus, in a school presence on school property, on a school bus, in a school vehicle, or at a school-sponsored function and/or exhibits vehicle, or at a school-sponsored function and/or exhibits symptoms of such use as to lead to the reasonable conclusion symptoms of such use as to lead to the reasonable conclusion of such consumption.of such consumption.

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Search and Seizure - SummarySearch and Seizure - Summary

School Officials must have “reasonable School Officials must have “reasonable suspicion” that a search will disclose suspicion” that a search will disclose violation of law or school rulesviolation of law or school rules

Issue 1: Search is justified at inception.Issue 1: Search is justified at inception.

Issue 2: Search is reasonable in scope.Issue 2: Search is reasonable in scope.

Issue 3: Not excessively intrusive.Issue 3: Not excessively intrusive.

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Practice Tips:Practice Tips:

Consult with another administrator when making Consult with another administrator when making “reasonable suspicion” determination;“reasonable suspicion” determination;

Consider how important it is to find the object of Consider how important it is to find the object of interest (i.e., do I really need to make a search?)interest (i.e., do I really need to make a search?)

Have a staff witness present when conducting a search;Have a staff witness present when conducting a search;

Document basis of reasonable suspicion, scope of search, Document basis of reasonable suspicion, scope of search, and result of search.and result of search.

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Don’t strip search an entire fifth grade Don’t strip search an entire fifth grade class to find $3.00 that is missing.class to find $3.00 that is missing.

Bellnier v. LundBellnier v. Lund, 438 F.Supp. 47 , 438 F.Supp. 47 (N.D.N.Y. 1977)(N.D.N.Y. 1977)

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Don’t strip search at all unless Don’t strip search at all unless safety and urgency require the search.safety and urgency require the search.

Safford Unified School DistrictSafford Unified School Districtv. Reddingv. Redding

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Have search conducted and Have search conducted and witnessed, when possible, by witnessed, when possible, by administrators of same gender as administrators of same gender as student subject to search.student subject to search.

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Issue 4: Non-searchIssue 4: Non-search

Practice Tip:Practice Tip:

If we inform parents and students If we inform parents and students that lockers and desks are the property that lockers and desks are the property of the school district and are subject to of the school district and are subject to random inspection, we can conduct such random inspection, we can conduct such random inspections without reasonable random inspections without reasonable suspicion. Why? There is no suspicion. Why? There is no reasonable expectation of privacy.reasonable expectation of privacy.

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Issue 4: Non-searchIssue 4: Non-search

Dog sniffs of lockers have generally been Dog sniffs of lockers have generally been upheld as Constitutional and the dog upheld as Constitutional and the dog alerting provides reasonable suspicion alerting provides reasonable suspicion to conduct a more thorough search.to conduct a more thorough search.

Similarly, dog sniffs of cars on school Similarly, dog sniffs of cars on school property.property.

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When formulating search policy, When formulating search policy, consult with legal counsel. Mistakes can consult with legal counsel. Mistakes can be very costly.be very costly.

Provide training to your Provide training to your administrators in search and seizure. administrators in search and seizure. They are on the front line and will make They are on the front line and will make the critical decisions.the critical decisions.

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Student Search and SeizureStudent Search and Seizure

Cortland Area High School Principals Cortland Area High School Principals MeetingMeeting

July 30, 2009July 30, 2009

presented bypresented by

Donald E. Budmen, Esq.Donald E. Budmen, Esq.Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C.Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C.

Documents

1 Student Search and Seizure Cortland Area High School Principals Meeting July 30, 2009 presented by Donald E. Budmen, Esq. Ferrara, Fiorenza, Larrison,