If you child is searched at school, they should be polite to school officials and police. Neither parent or student should give consent. Contact a criminal defense lawyer, not your family friend personal injury or real estate lawyer

Alfonso Gambone
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A Philadelphia criminal defense lawyer representing accused persons throughout Pennsylvania and New Jersey.

Our Philadelphia Criminal Defense law firm represents accused person against a variety of criminal allegations throughout Pennsylvania and New Jersey.  In some cases, we are called on to represent a young person charged following an incident which occurred in a school.  Criminal Defense Lawyers need to be ready to defend students against different allegations but the majority of school incidents pertain to the illegal possession of controlled substances, illegal firearms or instruments, and crimes of violence such as aggravated assault, simple assault and terroristic threats  

 

Relaxed Constitutional Protections – Public Schools  

Prior to representation, your criminal defense lawyer must explain that the academic environment is different.  Courts recognize that the school environment requires order and discipline. It is for this reason that constitutional protections (4th amendment and the 14th Amendment) in a public school are different than those enjoyed when students aren’t on school grounds or within a school building. 

 

In a public school, the administration may conduct a “warrantless search” if it has reasonable suspicion of conduct based on a review of all of the circumstances (totality) surrounding the conduct 

 

3 Type of Constitutional Public School Searches 

 

There are three (3) types of searches in a public school: 

 

  • General or random searches of the student body; 

  • Individualized searches of a student; 

  • Questioning of a student 

 

General Searches The Student Body 

Students don’t give up all of their constitutional rights when they enter a school building they just have a different level of protection. Normally a search requires probable cause, but in a school setting a search is constitutional if it is reasonable. A school may conduct a general or random search of the entire student body if, based on a review of all of the circumstances surrounding its suspicion, the search is reasonable.  

 

A court will evaluate a reasonable search based on the following factors  

  • the student’s privacy interest,  

  • the nature of the intrusion that will be created by the search,  

  • the notice given by the school and  

  • the overall purpose to be achieved by the search. 

 

Individual Student Searches 

A court will deem the individual search of a student as reasonable if there are reasonable grounds for suspecting that a search would produce evidence that the student has violated or is violating school rules or the law. Further the search must reasonably related in scope to the circumstances justifying it.  

 

Questioning a Student – No Constitutional Protections  

While searches of a student or a student body require “reasonable grounds”, school officials don’t need any reasonable suspicion to question a student. School officials may detain and question a student without any reasonable suspicion or Miranda warnings.  

 

There are less constitutional protections in a school because courts must balance a student’s expectation to privacy with the goals of a school and student safety.  Our law firm has represented a number of students after searches. 

 

Government/State Actor Searches In School Settings –Different Evidentiary Standard 

In this article, we haven’t discussed a search conducted by law enforcement.  This is entirely different situation and requires a different analysis.  I will discuss it in this article.   

 

Conclusion – How Should Your Child Handle a School Search or Questioning  

 

If you child is searched at school, they should be polite to school official and police.  In most situation, school officials or police will not ask for the student’s consent.  If the student is asked for consent, they should never give it!  The student should simply ask to call a parent.  The parent should also not give consent but rather contact a criminal defense lawyer.   

Call a Criminal Lawyer NOT Your Real Estate or Personal Injury Lawyer who helped you with that underage drinking case.    

DO NOT call your family friend who happens to be a lawyer who typically handles real estate transaction to handle this situation.  This person, despite being a member of the bar, is not qualified to handle this situation and will likely do more harm than good.  Finally, please keep in mind that giving consent will never help the situation. You and your child have constitutional rights, exercise them!  If they are asking for your consent, they either don’t have enough evidence to search and your consent simply waives your constitutional rights. 

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