Police Officers in Public Schools: What Are the Rules
Publication year | 1998 |
Pages | 79 |
Citation | Vol. 27 No. 11 Pg. 79 |
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]
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
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 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
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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