Location, Location, Location: the Nebraska Supreme Court Impermissibly Restricted the Special-needs Exception to the Warrant Requirement in J.p. Ex Rel. A.p. v. Millard Public Schools

• Publication year: 2022

47 Creighton L. Rev. 167. LOCATION, LOCATION, LOCATION: THE NEBRASKA SUPREME COURT IMPERMISSIBLY RESTRICTED THE SPECIAL-NEEDS EXCEPTION TO THE WARRANT REQUIREMENT IN J.P. EX REL. A.P. V. MILLARD PUBLIC SCHOOLS

LOCATION, LOCATION, LOCATION: THE NEBRASKA SUPREME COURT IMPERMISSIBLY RESTRICTED THE SPECIAL-NEEDS EXCEPTION TO THE WARRANT REQUIREMENT IN J.P. EX REL. A.P. V. MILLARD PUBLIC SCHOOLS

Nathan K. Tenney

I. INTRODUCTION ................................... 168

II. FACTS & HOLDING ................................ 170

III. BACKGROUND .................................... 175

A. UNITED STATES SUPREME COURT CASES REGARDING THE SCHOOL-SEARCH EXCEPTION TOTHE WARRANT REQUIREMENT ..................... 175

1. New Jersey v. T.L.O.: The United States Supreme Court Determined that Special Needs Prevail in Public Schools and Established the School-search Exception to the Warrant Requirement .................... 175

2. Vernonia School District 47J v. Acton: The United States Supreme Court Reaffirms and Extends the School-search Exception to the Warrant Requirement .................... 178

B. THE EIGHTH CIRCUIT DETERMINED THAT SEARCHES BY SCHOOL OFFICIALS CAN OCCUR AWAY FROM THE SCHOOL BUILDING ............... 180

C. THE NEBRASKA COURT OF APPEALS DETERMINED THAT SCHOOL OFFICIALS ARE PERMITTED TO SEARCH STUDENT VEHICLES BASED ON REASONABLE SUSPICION .......................... 181

IV. ANALYSIS ......................................... 182

A. THE NEBRASKA SUPREME COURT CORRECTLY DETERMINED THAT THE DISTRICT HAD THE IMPLIED AUTHORITY TO SEARCH J.P. BECAUSE HE VIOLATED SCHOOL POLICY .................... 183

B. THE NEBRASKA SUPREME COURT ERRED IN DETERMINING THAT A SCHOOL OFFICIAL CAN NOT SEARCH A STUDENT'S VEHICLE THAT IS PARKED OFF SCHOOL PROPERTY DURING SCHOOL HOURS .......................................... 184

1. The District Maintained a Custodial and Tutelary Responsibility for J.P. When He Momentarily Left School Property and Went to His Truck ................................. 184

2. The Nebraska Supreme Court Failed to Properly Apply the Reasonable Suspicion Standard By Determining the Location of the Search to be a Dispositive Factor ......... 186

3. The Nebraska Supreme Court Incorrectly Determined that Attending School During School Hours Is Not Closely Related to a School-sponsored Event ...................... 188

C. THE NEBRASKA SUPREME COURT PROPERLY DETERMINED THAT GRIMMINGER LACKED THE REQUISITE REASONABLE SUSPICION TO CONDUCTA SECOND SEARCH BY SEARCHING J.P.'S TRUCK .... 189

V. CONCLUSION ..................................... 190

I. INTRODUCTION

The Fourth Amendment to the United States Constitution prohib-its the federal government, or its officers, from conducting unreasona-ble searches and seizures unless a warrant is issued based on probable cause or consent.(fn1) Additionally, it is well established that the Fourth Amendment, through the Fourteenth Amendment to the United States Constitution, applies to individual states and state officers.(fn2) The United States Supreme Court has determined that public school officials are state officers and therefore subject to the Fourth Amendment restrictions.(fn3)

However, the Court has carved out limited exceptions to the war-rant requirement when "special needs" exist, which would make ob-taining a warrant based on probable cause impracticable.(fn4) It has been determined that special needs exist in the public school setting.(fn5) Within the public school context, the Court has relaxed the probable cause standard and only requires a school official to have reasonable suspicion for a search to be deemed constitutional.(fn6) Whether a school search is reasonable is based on the totality of the circumstances.(fn7)

In J.P. ex rel. A.P. v. Millard Public Schools,(fn8) the Nebraska Su-preme Court determined that a school official's search of a student's vehicle, which was parked off school property on an adjacent public street, was unreasonable and unconstitutional.(fn9) In Millard Public Schools, a high school student was subject to two separate searches after breaking school policy by leaving the school building and going to his vehicle without permission.(fn10) After both searches concluded, the student, J.P., was found to be in possession of drug paraphernalia and was suspended for nineteen days.(fn11) J.P., by and through his father, A.P., challenged the school board's decision in the district court of Douglas County, Nebraska, alleging the school's search of J.P.'s truck was unreasonable because it occurred off school property and, there-fore, violated the United States and Nebraska Constitutions.(fn12) The district court reversed J.P.'s suspension by the school board, reasoning that the initial search of J.P.'s person did not produce contraband or evidence of being in possession of contraband, therefore, the school of-ficial did not have reason to extend the search to J.P.'s vehicle.(fn13) On appeal, the Nebraska Supreme Court determined that the search was unreasonable because the school did not have the implied authority to search a student's vehicle parked off school grounds and not associ-ated with a school-sponsored activity.(fn14)

This Note will first demonstrate that the Nebraska Supreme Court improperly determined that the school official did not have the authority to search J.P.'s vehicle.(fn15) Next, this Note will assert that the court impermissibly contradicted controlling precedent by deter-mining that the location of the search was a dispositive factor.(fn16) Fi-nally, this Note will argue that the court correctly determined that the school official lacked the requisite reasonable suspicion to authorize the search of J.P.'s vehicle.(fn17) Specifically, because the initial search of J.P.'s person failed to produce contraband or evidence of contraband, the school official did not have a reasonable basis to extend the search to J.P.'s vehicle.(fn18)

II. FACTS & HOLDING

In J.P. ex rel. A.P. v. Millard Public Schools,(fn19) a student at Mil-lard West High School ("Millard West") in Omaha, Nebraska brought an action against Millard Public Schools ("MPS"), the Board of Educa-tion for MPS ("Board"), and various school officials (collectively, the "District") in the District Court of Douglas County, Nebraska.(fn20) The plaintiffs, J.P., a minor, by and through his father, A.P. (collectively, "J.P."), alleged that the District contravened J.P.'s rights under the Fourth and Fourteenth Amendments to the United States Constitu-tion, and article one, section seven of the Nebraska Constitution, by illegally searching his vehicle.(fn21)

In August of 2010, J.P. drove his truck to school at approximately 7:45 am to attend class and parked on 176th Avenue, a public street off campus adjacent to the school.(fn22) Although a majority of Millard West students parked on school property in a designated lot, around fifteen percent of the students parked on 176th Avenue.(fn23) At some point thereafter, J.P. and another student attempted to leave the school building through the front doors, but were stopped by a hall monitor, Lori Bishop ("Bishop").(fn24) After stopping and speaking with J.P. and the other student, Bishop only gave permission for the other student to leave the building.(fn25)

Subsequently, Dennis Huey ("Huey"), a Millard West security guard patrolling the parking lot, observed J.P. and a female walking from the school building.(fn26) Huey immediately approached J.P. and the female student to ask why they left the school building and where they were going.(fn27) J.P. told Huey that they were going to J.P.'s truck to get some personal items.(fn28) Huey allowed them to continue and ob-served the students until they returned through the front doors of the school building.(fn29) As J.P. and the female student returned, Bishop asked them why they were outside.(fn30) In response, J.P. told Bishop that Huey had given them permission, which Huey subsequentlydenied.(fn31)

Bishop then contacted an assistant principal, Harry Grimminger ("Grimminger"), to report J.P. for leaving school grounds and stating that he had permission to do so.(fn32) Based on Bishop's information, Grimminger became suspicious of the incident and requested that J.P. be brought to Grimminger's office for further investigation.(fn33) Once J.P. arrived at his office, Grimminger questioned J.P. about leaving the school building, and J.P. stated again that Bishop gave him per-mission to leave.(fn34) Grimminger then searched J.P.'s backpack and di-rected J.P. to empty his pockets.(fn35) Both the search of J.P.'s pockets and his backpack failed to produce contraband or evidence of contra-band, so Grimminger informed J.P. that the truck would need to be searched.(fn36) Grimminger requested that a school resource officer be present during the search of J.P.'s vehicle.(fn37) J.P. became visibly anx-ious and flustered and told Grimminger that J.P.'s father did not con-sent to the truck being searched.(fn38)

As they reached the truck, J.P. continued to refuse consent for the search, and even stood in between the school officials and the driver's side door to block entry.(fn39) Eventually, J.P. moved away from the truck door and Grimminger conducted a search that lasted around ten minutes.(fn40) Grimminger discovered drug paraphernalia, cigarettes and a lighter in the cab and various compartments of J.P.'s truck.(fn41) On August 24, 2010, J.P. was suspended nineteen days for...