Back to School! – The 3 Types of Legal Searches in Public Schools

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

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.

Back to School!In a public school, the administration may conduct a “warrantless search” if it has reasonable concerns about suspicious conduct based on a review of all of the circumstances (totality) surrounding the conduct

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

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 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.

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. 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.

Notice 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 this type of search in my next blog (state actor search).  For now 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.  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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