Police Officers in Public Schools: What Are the Rules

JurisdictionUnited States,Federal
CitationVol. 27 No. 11 Pg. 79
Publication year1998
27 Colo.Law. 79
Colorado Lawyer

1998, November, Pg. 79. Police Officers in Public Schools: What are the Rules


Vol. 27, No. 11, Pg. 79

The Colorado Lawyer
November 1998
Vol. 27, No. 11 [Page 79]

Specialty Law Columns
Government and Administrative Law News
Police Officers in Public Schools: What are the Rules
by Mary Pat Daviet

Column Eds.: Victoria M. Bunsen of the City of Westminster (Government Law) - (303) 430-2400, ext. 2231; Steven H Denman of Denman & Corbetta, P.C., Denver (Administrative Law) - (303) 830-2250

The administrative law portion of the column is sponsored by the CBA Administrative Law Forum Committee. This column provides information to attorneys dealing with the various state and federal administrative agencies as well as attorneys representing public or private clients in the areas of municipal, county, and school or special district law Persons interested in writing for this column are encouraged to call the appropriate column editor. This month's article was written by Mary Pat Daviet, Assistant City Attorney in Greeley, (970) 350-9757

Crime and violence have increased drastically in public schools, and, as a result, there are more and more police officers present in the schools. From Congress to local governments across the United States, legislation and proposals to crack down on kids, especially teenagers, have caught fire. These regulations venture into what traditionally was considered to be the domain and responsibility of parents, and constitutional issues are present throughout the laws and regulations pertaining to children, including and especially concerning juvenile discipline and law enforcement.

Fourth Amendment and Constitutional Rights

The Constitution's Fourth Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and evasive acts by officers of the government or by those acting at their direction.1 In simpler terms, the Fourth Amendment prohibits unreasonable searches and seizures. Nevertheless, what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.2 Most of the law and regulation concerning law enforcement officers and the Fourth Amendment address questions of what constitutes a search and what is a reasonable search.

Search and Seizure

U.S. citizens enjoy the right to be free from unreasonable search and seizure, and students in public schools also have that right. The U.S. Supreme Court recognizes that public school students have substantive and procedural rights while at school,3 although school officials are given wide latitude by the courts in exercising their duties and discretion.

Law enforcement officers, however, are governed by the same laws of search and seizure in a school environment as they are out on the streets. The Fourth Amendment applies and extends to actions by the state - that is, law enforcement - and does not have the same application to school officials.4 Application of the Fourth Amendment is a source of many questions and volumes of court cases and decisions.

Reasonable Suspicion

The discovery of a weapon or drugs at school usually follows a search of a student's person, possessions, or locker. If the search is conducted by law enforcement officers, it is governed by much the same limitations as any other police search, and it is subject to the requirements of the Fourth Amendment. However, if the search is conducted by a school official, the applicable law is outlined in the landmark Supreme Court case of New Jersey v. T.L.O.5 Under T.L.O., the search may be predicated on "reasonable suspicion" rather than probable cause, and may be for items that violate school rules as well as the law.6

College/Older Students

While the Supreme Court has recognized that schools act in loco parentis with regard to school children, that principle is not applied to searches of older students. Courts have declined to rely on the in loco parentis theory in assessing searches conducted on college campuses. The reported cases that deal with searches on college and university campuses reflect the fact that these searches are generally of a different nature than those occurring in high schools, and that there is no basis consistent with established Fourth Amendment doctrine on which to uphold these college searches with less than a full showing of probable cause.7

Individualized Suspicion

Random mass searches are generally unconstitutional without individualized suspicion. In other words, a reasonable suspicion must be directed specifically to an individual student before a school can search that student. Courts have repeatedly ruled that a sniff search by drug dogs around students' bodies is unconstitutional without individualized suspicion.8

Police Officer Versus
School Staff Member

School Officials

Public school officials act as representatives of the state and not as private citizens in carrying out searches and other disciplinary functions.9 Searches of students by school officials are, according to the U.S. Supreme Court, limited by the Fourth Amendment, which protects students from unreasonable searches of their persons and property. However, the usual warrant or consent requirements of the Fourth Amendment do not apply to student searches by school officials, and the officials need not obtain a warrant before searching a student who is under their authority.

The Supreme Court in T.L.O. concluded that requiring a warrant based on probable cause would "unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in schools."10 The Court ruled that two requirements must be met for a student search to be reasonable: (1) the official must have a good reason prior to conducting the search to believe evidence of wrongdoing will be found, and (2) the search cannot be more intrusive than necessary to find the specific thing the school official expects to find. In other words, the search must be based on reasonable suspicion and the search must be reasonable. Under those circumstances, no search warrant is required for a search by a school official.


Police officers, on the other hand, are held to the same probable cause and warrant requirements of the Fourth Amendment in the schools as they are on the street.11 However, as on the street, police may make a warrantless search if emergent or exigent circumstances make it likely that someone will be hurt or evidence will be destroyed if they wait for a warrant.12 Nevertheless, absent exigent circumstances, no amount of probable cause can validate a warrantless search, and these rules apply equally inside and outside of a school.13

Agency Rule

Questions often arise as to whether a school official in a particular situation truly acted as a school official or as an agent of the police in conducting a search. The so-called "agency rule" exists to prevent police from circumventing the requirements of the Fourth Amendment by directing a third party to perform a search that would be improper if the police did it themselves.14 If an officer (intentionally or unintentionally) enlists a school official to perform a search that is truly a police search, any evidence that is discovered during the search will be subject to suppression and inadmissible against the suspect.15

"The Fourth Amendment applies and extends to actions by the state - that is, law enforcement - and does not have the same application to school officials."

A "totality of circumstances" test has been applied in determining whether an official is acting in an administrative capacity or as an agent for the police. For example, the Colorado Supreme Court, in 1988, analyzed whether school officials were acting as agents of the police when they conducted a student search after a police officer had provided them with information giving rise to reasonable suspicion, and where the search was conducted while a police officer remained on the school premises. In the oft-cited case of In re P.E.A.,16 the court applied a "totality of the circumstances" test to the determination, and found that the principal and school security officer did not act as police agents because the police officer did not request or in any way participate in the searches or interrogations of the students, and he did not know the school was conducting an investigation. The U.S. Supreme Court has applied a similar test in determining whether a private party was truly acting as an agent for the police.17

For a police officer to search a student, unless exigent circumstances are present that lawfully justify a warrantless search, the officer must have probable cause and obtain a search warrant. This is true whether the police officer is serving an assignment at the school, or whether the officer is on duty for the police department and is only temporarily present at the school. Even school security...

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