My dear client has a love-hate relationship with his school district. He is currently at an alternative school. One day in January, he left his school and entered the main high school. He was let in by another student and bypassed the metal detector. He wandered the school, entering classrooms and generally raising a ruckus. The school is aware that he has been diagnosed with bipolar disorder, other mental health concerns, and a learning disability.
The school called the police to take him to the precinct so that his mother could pick him up. After my client exited the school building and as he was about to enter the police vehicle, the school security guard grabbed his duffle bag from him and took it back into the school building.
The police took my client to the station and later received a call from the school security guard, stating that he searched my client’s bag and found four BB guns. The police were not going to charge my client for entering the main high school, and only charged him once the security guard informed them of what he “found” in the bag.
Is this a legal search? Does the school’s authority end once the police have taken responsibility for the client? What would T.L.O.[i] say about this?
I Want an Official Red Ryder Carbine-Action Two-Hundred-Shot Range Model Air Rifle
Dear Red Ryder,
Ya know why I chose your letter? It’s the “Is this a legal search?” followed by a compelling argument as to why it most certainly is NOT a legal search, you saucy defense minx! I am here for it!
But why must you breaka my stride by mentioning T.L.O.? It is my third most angering Jersey reference, behind when people say Joisey, ask “what exit,” or compare Springsteen to Billy Joel. (One is a national treasure who wrote Thunder Road and the other is Billy. Joel.)
But, I digress. T.L.O. says decreased protections for students, but not no protections for students.
T.L.O. holds that while the 4th Amendment applies to searches by public school officials, no warrant or probable cause is required. Rather, the court adopted a reasonableness test. The search must be reasonable at its inception, and there must be “reasonable grounds” that the search will produce evidence the child is violating the law or a school rule.
In your case, given that the student was no longer in the custody of the school means that the school official’s snatching the child’s bag was completely unreasonable. Further, there were no reasonable grounds to believe that the search would produce evidence of anything related to the “trespass” or “raising a ruckus,” well, cuz those don’t exist in a bookbag. Further, there are no reasonable grounds related to the breaking of any other rules or laws. There was no reason to believe that the youth was involved in anything more than normative adolescent behavior of causing a ruckus and roaming the hallways of a school.
The T.L.O. test of reasonableness, which I think your school gets an F- on, is:
- Was the search justified at its inception?
When the child was with an armed police officer who had decided to drive him to the station so mom could get him? NO
2. Was the search conducted in a scope reasonably related to the circumstances that justified the interference in the first place?
The details will be helpful here, but a zipped bookbag suggested no potential evidentiary connections to the ruckus or the trespass, so there was no scope that would have been reasonable and certainly not rummaging through the bag of a child who had already left the building.
While I like your “end of authority” argument, the details of the search may encourage you to consider the school as an agent of the police by collecting the bag and searching it. That way, you sidestep T.L.O. The lower standard of “reasonableness” covers only “searches carried out by school authorities acting alone and on their own authority” and not to searches carried out by police officers or school officials acting in conjunction with police officers.[ii]
I mean, why didn’t they just have mom come pick him up from the school?
When the judge says, “Counsel, Counsel, Counsel. So a school can never search a student?” (Because they like to exaggerate your position to a place that makes no sense, but they say that part on the inside.) Tell them to compare your little ruckus-maker with A.J.C. in Oregon.
What facts did the Oregon Supreme Court use to determine that the search of A.J.C.’s backpack was reasonable under school safety exception? A report by another student, who identified A.J.C. by name, to have threatened to shoot her and potentially other students on that date. With a gun.
As opposed to your friend, who took an impromptu tour of the larger campus of his school.
Once you get the BB guns suppressed, please file a motion to dismiss any remaining counts as a manifestation of a disability and violative of the state’s juvenile court purpose clause. That will be a nice treat for the State.
To convict the involuntary committee of a quasi-criminal offense for displaying the symptoms of his illness while in a place intended to treat that illness, and upon the complaint of one whose duty it is to have the care and custody of such a patient, imposes punishment where none can either constitutionally or morally be justified. The application of the statute to this defendant under the facts presented not only constitutes a misapplication of the statute but constitutes an unconstitutional infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.[iii]
To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the “crime” of having a common cold.[iv]
I could groan on and on. Please let us know how it turns out!
Go get’ em!
[i] New Jersey v. T.L.O., 469 U.S. 325 (1985).
[ii] See T.L.O at 341.
[iii] See Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962).
[iv] State v. Cummins, 168 N.J. Super 429 (1979).