FNF(LEGAL) - STUDENT RIGHTS AND RESPONSIBILITIES: INVESTIGATIONS AND SEARCHES

Searches of Students

Students shall be free from unreasonable searches and seizures by school officials. School officials may search a student's outer clothing, pockets, or property by establishing reasonable cause or securing the student's voluntary consent. Coercion, either expressed or implied, such as threatening to contact parents or police, invalidates apparent consent. U.S. Const., Amend. 4.; New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733 (1985); Jones v. Latexo Indep. Sch. Dist., 499 F.Supp. 223 (1980)

A search is reasonable if it meets both of the following criteria:

  1. The action is justified at the inception; i.e., the school official has reasonable grounds for suspecting that the search will uncover evidence of a rule violation or a criminal violation.
  2. The scope of the search is reasonably related to the circumstances that justified the search in the first place; i.e., the measures adopted are reasonably related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

New Jersey v. T.L.O,, 469 U.S. 325, 105 S.Ct. 733 (1985)

Intrusive Searches

A search of a student's underwear is impermissibly intrusive unless the school officials reasonably suspect either that the object of the search is dangerous or that it is likely to be hidden in the student's underwear. Safford Unified Sch. Dist. v. Redding, 557 U.S. 364 (2009), Littell v. Houston Indep. Sch. Dist., 894 F.3d 616 (2018)

Random Drug Testing

Whether a particular search is reasonable is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Thus, the reasonableness of a random student drug-testing policy is determined by balancing the following factors:

  1. The nature of the privacy interest compromised by the drug-testing policy.
  2. The character of the intrusion imposed by the drug-testing policy.
  3. The nature and immediacy of the governmental interests involved and the efficacy of the drug-testing policy for meeting them.

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386 (1995) (upholding a policy requiring urinalysis drug testing as a condition of participating in athletics); Bd. of Educ. of Indep. Sch. Dist<</abbr> No. 92 of Pottawatomie County v. Earls, 122 S.Ct. 2559 (2002) (upholding a policy requiring urinalysis drug testing as a condition of participating in competitive extracurricular activities)

Searches of Telecommunications/ Electronic Devices

A person is prohibited from obtaining, altering, or preventing authorized access to a wire or electronic communication while it is in electronic storage by:

  1. Intentionally accessing without authorization a facility through which an electronic communication service is provided; or
  2. Intentionally exceeding an authorization to access that facility.

Exceptions

This section does not apply with respect to conduct authorized:

  1. By the person or entity providing a wire or electronic communications service;
  2. By a user of that service with respect to a communication of or intended for that user; or
  3. By sections 18 U.S.C. 2703, 2704, or 2518.

18 U.S.C. 2701(a), (c)

Electronic Communication

"Electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system that affects interstate or foreign commerce. 18 U.S.C. 2510(12)

Electronic Storage

"Electronic storage" means:

  1. Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and
  2. Any storage of such communication by an electronic communication service for purposes of backup protection of such communication.

18 U.S.C. 2510(17)

Messages that have been sent to a person, but not yet opened, are in temporary, intermediate storage and are considered to be in electronic storage. See Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457 (5th Cir. 1994). Electronic communications that are opened and stored separately from the provider are considered to be in post-transmission storage, not electronic storage. See Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107 (3d Cir. 2004).

By Law Enforcement

A peace officer may not search a person's cellular telephone or other wireless communications device, pursuant to a lawful arrest of the person, without obtaining a warrant under Code of Criminal Procedure 18.0215.

A peace officer may search a cellular telephone or other wireless communications device without a warrant if:

  1. The owner or possessor of the telephone or device consents to the search;
  2. The telephone or device is reported stolen by the owner or possessor; or
  3. The officer reasonably believes that:
    1. The telephone or device is in the possession of a fugitive from justice for whom an arrest warrant has been issued for committing a felony offense; or
    2. There exists an immediate life-threatening situation, as defined by Code of Criminal Procedure 18A.201.

Code of Crim. Proc. 18.0215

Use of Trained Dogs

Trained dogs' sniffing of cars and lockers does not constitute a search under the Fourth Amendment. The alert of a trained dog to a locker or car provides reasonable cause for a search of the locker or car if the dog is reasonably reliable in indicating that contraband is currently present. A district need not show that the dog is infallible or even that it is reliable enough to give probable cause.

Trained dogs' sniffing of students does constitute a search and requires individualized reasonable suspicion.

Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470 (5th Cir. 1982)

Sivells Bend ISD

FNF(LEGAL)-P

UPDATE 113

DATE ISSUED: 6/6/2019