REASONABLE SUSPICION IN THE CONTEXT OF STUDENT SEARCHES: JUST HOW REASONABLE IS REASONABLE?

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1 REASONABLE SUSPICION IN THE CONTEXT OF STUDENT SEARCHES: JUST HOW REASONABLE IS REASONABLE? JASON MICHAEL ROSE 1 1 LL.M. Trial Advocacy, California Western School of Law (2010); J.D., University of La Verne College of Law (2009); B.A. in Philosophy, Sacramento State (2005). 47

2 I. INTRODUCTION Savana, a 13 year-old honor student, sits at a desk in her eighth grade math class. She is doodling in her stenographic notepad, listening to a lecture about Pythagoras theorem. The classroom door opens and a school administrator, assistant principal Wilson, enters the room. He walks down the row of desks, past Johnny, past Sally, and abruptly stops in front of Savana. He asks her to collect her belongings and follow him to his office. Savana is embarrassed about being called out in front of her classmates, and nervous about the potential reason for this intrusion, but she obediently follows. When they reach Wilson s office, Savana is directed to take a seat. The administrator places four white pills 2 and a single blue pill 3 on the desk in front of her. A planner is also on the desk. Wilson asks Savana if the planner belongs to her. She answers yes, but states that she lent it to her friend Marissa about a week ago. Wilson tells Savana that her planner contains items, such as a knife, that violate school policies. He then asks her if she recognizes the pills. She doesn t and replies no. The assistant principal doesn t believe her. He tells Savana that the school caught Marissa with the planner and four prescription pills. Marissa has identified Savana as her drug supplier. Savana is shocked and assures Wilson that she has never brought prescription pills or a knife onto campus and that she has never provided any other students with them. Wilson still does not believe her. Wilson asks whether he can search Savana s belongings. Feeling compelled, and having nothing to hide, she agrees and Wilson sifts through her backpack, finding nothing. He then calls his administrative assistant into the room, and directs her to escort 2 Prescription strength ibuprofen. 3 Over the counter pain relief pill. 48

3 Savana to the nurse s office. Savana is confused; she has never been in trouble before and has told the principal the truth about not knowing anything about the pills. She feels helpless, but obediently follows the assistant into the school nurse s office. The female nurse closes the door, trapping Savana inside. She directs Savana to peel off layers of her clothing. First her shoes, then her socks, then her jacket. The nurse and administrative assistant search the clothing; no contraband is found. The nurse directs Savana to remove her T-shirt and stretch pants. Embarrassed and scared, she complies and then sits uncomfortably on the edge of a chair. She is wearing nothing but her bra and panties. The two adults search the rest of her clothes. They find no pills. The nurse asks Savana to pull her bra out to the side and shake it. Savana stands up and complies, revealing her naked breasts in the process. She does not dislodge any pills. The nurse tells Savana to pull out her underwear at the crotch and shake it. Hiding her head so that the adults cannot see that she is about to cry, she pulls out her underwear, and shakes. Her private area is exposed. Savana feels violated. No drugs are discovered. The school officials allow Savana to cover herself. Savana never agreed to a strip search, but felt she had no choice. She describes the event as "the most humiliating experience" of her life. Have Savana s Fourth Amendment rights been violated? Was this search reasonable? Was it Constitutional? Should assistant principal Wilson and the school district be held liable? These were essentially the facts of Safford Unified School Dist. v. Redding, a 2009 Supreme Court case. 4 The Court held that the search was unconstitutional, but that 4 Safford Unified Sch. Dist. v. Redding, 129 S. Ct (2009). 49

4 the law was sufficiently unclear and thus barred any liability on the part of the school or its administrators. 5 This Article will address whether application of the school search standard is any clearer, post Safford. In doing so, I will break down the schoolhouse suspicion standard, post-safford. It will specifically address the issues raised by the Ninth Circuit s majority, and dissenting opinions in Safford, which succinctly and completely discussed the application of the suspicion standard, and provided working solutions. Unfortunately, these proposed solutions were completely ignored in the Supreme Court decision; thereby perpetuating the existing confusion surrounding application of the enunciated standard. I undertake this endeavor with the hope that it may help practitioners in their representation of students who have been the victims of unconstitutional searches. II. OVERVIEW OF A STUDENT SEARCH CASE When a student is the victim of a school search in which contraband or evidence of a crime is discovered, several issues arise that must be immediately addressed by his or her attorney. First, was the search constitutional? While this is ultimately a factual inquiry for the court to decide, an attorney must make an initial educated evaluation, as your litigation strategy will arise out of this preliminary inquiry. Second, did the student retain the attorney before or after the school s disciplinary hearing? Unlike our often sloth-like criminal system, school districts typically hold disciplinary hearings immediately after the incident. The attorney will have to conduct research as to the policies and procedures of the implicated school district. The extent of the accused student s participation in these administrative proceedings can have dire 5 Id. 50

5 consequences in the criminal case and ultimately on the student s educational future. It is possible that the prosecution could later admit any statements made at the hearing and use these statements against the student in the criminal case. 6 Additionally, it may be in the student s best interest to postpone the administrative hearing where the attorney feels that the student has a strong constitutional case for excluding the evidence discovered during the search; there is currently no universally applicable rule as to the admissibility of unconstitutionally obtained evidence at a school administrative hearing. The attorney must research the rule in his circuit. Even where the circuit has an applicable exclusionary rule, it may not be in the student s overall best interest to challenge the admissibility of evidence at the school hearing. The attorney must take into consideration the student s desires, the school s policies, the potential punishment, the school calendar, and the student s relative participation level in school activities. A long drawn-out legal battle over the admissibility of illegally obtained evidence could create a situation where a student is unable to participate in sports, school events, even graduation; whereas, immediate acceptance of responsibility for the student s actions might lead to the student s reinstatement. Where one decides not to challenge the admissibility of the evidence at the school hearing, it is in the best interest of the student to monitor his/her statements at the school hearing as to not compound his criminal liability. Additionally, it may be favorable and possible to make an agreement with the school district whereby the student accepts punishment, with the understanding that school will expunge the student s record if the 6 FED. R. EVID

6 search is later determined to have been unconstitutional. The attorney must be creative in representing students. Finally, an inquiry must be made as to whether or not you have a viable 42 U.S.C claim. This requires an analysis of similar case law, as well as an analysis of the school district s policies and the literature provided by the school legal counsel. Under current law, a court may address questions of qualified immunity after first deciding the underlying substantive constitutional issue. 7 Courts must follow a rigid order of battle. 8 First, they must determine whether the facts show that the government actor s conduct violated a constitutional right. 9 This is a threshold question, and a negative answer extinguishes need for further analysis. 10 Second, the court must decide whether that right was clearly established. 11 Only if the answer to both of these questions is yes, does liability attach. 12 Courts grant government actors qualified immunity as a shield[] from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. 13 Under this inquiry, a court may not deny immunity simply because the official s conduct was ultimately determined to be unlawful. 14 If the law at the time was unclear, courts cannot reasonably expect an official to anticipate the law s progression, nor could the official know that the law would suggest that his or her particular unidentified act is illegal See Saucier v Katz, 533 U.S. 194 (2001); Pearson v. Callahan, 129 S. Ct. 808 (2009). 8 Brosseau v. Haugen, 543 U.S. 194, (2004) (Breyer, J., concurring). 9 See Saucier, 533 U.S. 194 (2001). 10 Id. 11 Id. 12 Id. 13 Harlow v. Fitzergerald, 457 U.S. 800, 818 (1982). 14 Id. 15 Id. 52

7 Research is the key to piercing a school district s or administrator s qualified immunity. Practitioners should use discovery tools to obtain all documents provided by the school district to its employees concerning the constitutionality of school search in order to prove that the government official knew that the search was unconstitutional. The remainder of the article outlines the relevant Fourth Amendment law, discusses application of the school search standard under the law, and defines battle areas for practitioners under the current state of the law. III. FOURTH AMENDMENT BASICS The starting place for any student search inquiry is the Fourth Amendment. Without a firm grasp of general Fourth Amendment protections, one cannot understand the limited protections afforded to students in the school search context. The Fourth Amendment of the United States Constitution generally guarantees the right to be secure from unreasonable searches and seizures, and that no Warrants shall issue, but upon probable cause. 16 The fundamental purpose of the Fourth Amendment is to safeguard the privacy and security interests of individuals against arbitrary invasions by government officials. 17 It gives concrete expression to a right of the people that is basic to a free society, the right to be free from unreasonable government intrusion. 18 The Fourth Amendment has been incorporated through the Fourteenth Amendment, and is enforceable against not only the federal government and its actors, but against the 16 U.S. CONST. amend. IV. 17 Camara v. Municipal Court, 387 U.S. 523, 528 (1967). 18 Wolf v. People of State of Colorado, 338 U.S. 25, 27 (1949). 53

8 states and their actors. 19 School administrators are state actors for Fourth Amendment purposes. 20 Simplistically, the Fourth Amendment has two separate but linked clauses: the Reasonableness Clause, and the Warrant Clause. 21 The difference is that the Reasonableness Clause guarantees freedom from unreasonable searches and seizures, while the Warrant Clause specifies the form and content of search and arrest warrants. 22 The interplay between these clauses is and has been the source of much scholarly and judicial debate. 23 nation s history. 24 Several different interpretations have been favored throughout our The current prevailing view is that the clauses are independent declarations. 25 Under this view, the Fourth Amendment does not require authorization by judicial warrant of all government intrusions. 26 The Fourth Amendment specifically protects against unreasonable searches. 27 A search has both a subjective and objective component. 28 Both components are necessary in order to trigger Fourth Amendment protection. 29 A search occurs where government actors interfere with a personal interest in which an individual has a subjective or personal expectation of privacy, and where society objectively finds that expectation 19 Ker v. State of California, 374 U.S. 23, 30 (1963). See New Jersey v. T.L.O., 469 U.S. 325, (1985). 21 U.S. CONST. amend. IV. 22 See, Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 WM. & MARY L. REV. 197, 202 (1993). 23 Id. 24 Id. 25 Id. 26 Id. 27 U.S. CONST. amend. IV. 28 Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). 29 Id. 54

9 reasonable. 30 The Fourth Amendment protects personal rights and, as such, protects individuals and their expectations of privacy. 31 For example, a person has a legitimate expectation of privacy in their home or living space, but not their barn, or unattached garage. 32 Any government invasion of a protected area is unreasonable without a search warrant. 33 Although some scholars contend that the warrant requirement has lost its teeth, it is still paid lip service in judicial opinions. 34 If the government conducts a search without first obtaining a warrant, the search is unlawful and unconstitutional, unless it falls into one of the numerous and ever-expanding judicially created exceptions. 35 Common examples include probable cause, individualized suspicion of wrongdoing, searches incident to an arrest, officer safety, inventory, and the inevitable discovery doctrine. 36 These exceptions have been held constitutional on the underlying belief that reasonableness, and not the Warrant Clause, controls application of the Fourth Amendment. 37 This belief suggests that certain circumstances dictate the suspension of individual rights for the greater good of our nation. 38 Under this utilitarian dogma, the proper Fourth Amendment criminal inquiry is no longer whether the government has obtained a warrant prior to the search. The Supreme 30 Id. 31 Id. 32 See Oliver v. U.S., 466 U.S. 170 (1984). 33 Katz, 389 U.S. at See Sherry F. Colb, The Qualitative Dimension of Fourth Amendment "Reasonableness," 98 COLUM. L. REV. 1642, 1648 (1998) (pointing to lack of teeth in the Court s current Fourth Amendment reasonableness balancing and proposing that the Court "recognize that an unreasonable search in violation of the Fourth Amendment occurs whenever the intrusiveness of a search outweighs the gravity of the offense being investigated"); see also Tracey Maclin, Constructing Fourth Amendment Principles from the Government Perspective: Whose Amendment Is It, Anyway?, 25 AM. CRIM. L. REV. 669, 719 (1988). 35 See, Tracey Maclin, supra note 46, at 719. But see Chandler v. Miller, 520 U.S. 305 (1997). 36 Harr, J. S., & Hess, K. M., CONSTITUTIONAL LAW AND THE CRIMINAL JUSTICE SYSTEM (3rd ed. 2005). 37 Id. 38 Id. 55

10 Court has recognized certain circumstances under which individualized suspicion is not required for a warrantless search. 39 It should be no surprise then that Fourth Amendment protections afforded to students in school searches have been limited, or that the Fourth Amendment inquiry is one that takes into consideration both individual liberty interests and societal safety concerns, thereby spawning its own thicket of case law. III. FOURTH AMENDMENT PROTECTION IN THE SCHOOLHOUSE In 1984, in New Jersey v. T.L.O., the Supreme Court addressed the following questions: (1) Whether administrative searches of students on school property are proper subject matter for Fourth Amendment protection, and; (2) If so, whether the Court should modify the standard of probable cause that applies in the criminal cases to reflect the special circumstances of public education and the relationship between school officials and students? 40 The Court, in a 6 to 3 decision authored by Justice White, held that searches and seizures by school officials without a warrant are constitutional, so long as they are reasonable under the specific factual circumstances. 41 The Court acknowledged the necessity for striking a balance between the student s legitimate expectations of privacy and the school s interest in maintaining order and discipline; however, the Court ultimately felt in this instance, similar to First Amendment decisions, that students do not shed their constitutional rights... at the schoolhouse gate, but they do not receive the full breadth of them either. 42 Instead, schools must take a balancing approach to 39 See City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) U.S Id. 42 Id. at 348 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)). 56

11 accommodate both the student s constitutional rights and society s interest in having safe and orderly schools for our children. 43 Subjectively, students may have an expectation of privacy in their persons and belongings, 44 but objectively, society is not willing to extend full Fourth Amendment protection to the school setting. Consequently, school officials do not need to obtain a warrant to search the belongings of a student, 45 but school officials do need evidence rising to the level of reasonable suspicion before conducting a warrantless search of a student. 46 The reasonable suspicion standard, a lower standard than the criminal probable cause standard, must be determined on a case-by-case basis. 47 This lower standard is limited to the factual scenario of school officials searching students in the school setting. 48 Within the school setting, the facts control the reasonableness of any student search is. 49 A two-step judicial process controls all inquiries into the constitutionality of a student search. 50 First, the court determines whether the government actor s actions were justified at inception. 51 Second, the court decides whether the search, as conducted, was reasonable and related in scope to the circumstances that justified the interference in the first place. 52 Only by applying this framework can a court determine the legitimacy of any administrative search. 53 In theory, this two-step process protects students privacy 43 Id. at See Id. 45 T.L.O., 469 U.S. 325, Id. at Id. at Id. 49 Id. 50 Id. 51 Id. 52 Id. 53 Id. 57

12 expectations and curbs government abuses. 54 In practice, its effectiveness is unclear; the majority of schoolchildren are unaware of their Fourth Amendment rights. It is an unfortunate certainty that violations of those rights go unreported. Some of the problems with the reasonable suspicion standard are that it is loose, ambiguous, and difficult to apply. 55 The Court has failed to establish a clear and easy-tofollow bright line rule. 56 When given the opportunity, the Safford Court failed to clarify application of the TLO standard. Post-Safford, practitioners and judges will continue to disagree about the reasonable suspicion standard and its application to particular factual scenarios. Egregious cases may be easy to identify, but the ambiguous, self-serving formation of the standard leads to difficult adjudication when cases are indistinct and not so egregious. 57 This formation has and will continue to create incongruity in application. While these incongruent judicial applications create social problems, 58 they also create opportunity. They provide working defenses, legal arguments, and winnable battleground. Utilization of these opportunities requires familiarity with the facts and arguments of T.L.O., the Ninth Circuit s conflicting positions, and the new language added to the T.L.O. standard in the majority opinion in Safford, which was ignored in the concurring opinion, and signaled a disastrous and fundamental change in the dissenting opinion. 54 Id. 55 See generally Safford Unified Sch. Dist. v. Redding, 129 S. Ct (2009) (proving the difficulty in applying the standard by the fact that at every level the court applied the standard differently, and came to different results). 56 See id. 57 See Redding v. Safford Unified Sch. Dist. No.1, 531 F.3d 1071, 1074 (9th Cir. 2008) (en banc); Phaneuf v. Fraikin, 448 F.3d 591 (2d Cir. 2006); Williams ex rel. Williams v. Ellington, 936 F.2d 881 (6th Cir. 1991). 58 Students constitutional rights are in jeopardy, student safety is at issue, and both schools and administrators can incur liability for unreasonable searches or misapplication of the standard. Liability can lead to potentially large payouts of monies that should be going to our children s educations. 58

13 The next section of this Article will individually summarize these familiarity requirements in order to provide a foundation of understanding from which one may utilize the opportunities created by the inherent inconsistencies. A. New Jersey v. TLO (1985) 59 In 1980, a teacher at a New Jersey high school discovered two girls smoking in the bathroom. 60 One of the two girls was a 14-year-old high school freshman, T.L.O. 61 School policy forbids smoking in school restrooms. 62 The teacher escorted the two girls to the assistant vice principal s office. 63 The vice principal asked the girls if they had been smoking in the bathroom. 64 T.L.O s companion admitted that she had she had been smoking. 65 T.L.O., however, denied the allegations and stated that she did not smoke at all. 66 The assistant vice principal, Mr. Choplick, demanded to see T.L.O. s purse. 67 Opening the purse, he immediately saw both a pack of cigarettes, and a package of rolling papers, which he associated with the use of marijuana. 68 He held the cigarettes before T.L.O. and accused her of lying to him. 69 Suspecting that a closer examination of the purse might yield further evidence of drug use, Choplick continued to search the 59 Even post-safford, every single school search case begins with both a legal and factual comparison to T.L.O. Especially now, considering the fact that many courts will most likely attempt to distinguish strip search cases like Safford from general school search cases due to the added elements or questionable language the courts introduced in Safford. See section New Jersey v. T.L.O., 469 U.S. 325, 328 (1985). 61 Id. Id. Id. 64 Id. 65 Id. 66 Id. 67 Id. 68 Id. 69 Id. 59

14 purse. 70 Inside of the purse he found a small amount of marijuana, a pipe, a number of empty plastic bags, a substantial quantity of money in one-dollar bills, an index card that appeared to be a list of students who owed T.L.O. money, and two letters that implicated T.L.O. in marijuana dealing. 71 The school contacted both T.L.O. s mother and the police. 72 Based upon the information provided by the school, and a subsequent confession by the girl to police, New Jersey filed delinquency charges. 73 T.L.O. pled not guilty, and motioned the court to suppress the evidence and her confession on the theory that the search of her purse violated the Fourth Amendment. 74 The juvenile court denied the motion to suppress and, after a hearing, held that T.L.O. was a delinquent and sentenced her to one year of probation. 75 T.L.O. appealed. 76 On appeal, a divided Appellate Division affirmed the trial court s finding that there had been no Fourth Amendment violation, but vacated the adjudication of delinquency and remanded for a determination whether T.L.O. had knowingly and voluntarily waived her Fifth Amendment right before confessing. 77 T.L.O. appealed the Fourth Amendment finding. 78 The Supreme Court of New Jersey reversed the judgment of the Appellate Division and ordered the suppression of all evidence found in the girl s purse. The Supreme Court 70 Id. 71 Id. 72 Id. 73 Id. at Id. 75 Id. at 330. Id. 77 Id. 78 Id. 60

15 of New Jersey also held that the exclusionary rule 79 is the proper remedy for evidence obtained through an unlawful search by a school administrator. 80 A major determining factor in the court s reasoning was that, although smoking on school property was a school rule violation, having cigarettes on campus was not. 81 It was therefore unreasonable for the assistant vice principal to invade the Fourth Amendment privacy interests of a student merely to prove she was lying. 82 The United States Supreme Court reversed the New Jersey Supreme Court s ruling, holding that the search was constitutional. 83 The Court held that the assistant vice principal s search of T.L.O. s purse, which resulted in the discovery of marijuana, when evaluated under the reasonable suspicion standard, was reasonable and therefore lawful. 84 The Court reasoned that, because smoking in the school bathroom was a violation, the vice principal s initial search for cigarettes was reasonable, despite the fact that possession of cigarettes on school property was not a school rule violation. 85 The Court then applied its newly minted two-step process to demonstrate the existence of reasonable suspicion, and the constitutionality of the search. 86 First, reasonable suspicion or justification for the search at its inception was based on a teacher s report that T.L.O. had been smoking in the bathroom. 87 This fact, when 79 See Mapp v. Ohio, 367 U.S. 643 (1961) (holding that application of the exclusionary rule is a simple corollary of the principle that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court"). 80 T.L.O., 469 U.S. 325, See State ex rel. T. L. O., 463 A.2d 934 (N.J. 1983). 82 Id. 83 T.L.O., 469 U.S. 325, Id. at 347. Id. 86 Id. 87 Id. at

16 viewed in their totality, raises a reasonable suspicion that T.L.O. had been smoking and that she had cigarettes in her purse. 88 Second, the scope of the search was both limited and specifically tailored to the circumstances. 89 The search conducted by the assistant vice principal was limited to searching for cigarettes and led to the discovery of materials raising suspicion that T.L.O. possessed marijuana. 90 This limited search was clearly reasonable in scope. 91 The Supreme Court of New Jersey rested on the theory that discovery of cigarettes upon T.L.O. at this stage would constitute mere evidence of a smoking rule violation, and not be in and of itself a school rule violation. 92 Therefore, the search was unnecessary and unreasonable. 93 The United States Supreme Court disagreed with this reasoning, arguing that reasonable suspicion encompasses not only the search for ongoing crimes or school rule violations, but also the reasonable search for evidence of either past or future violation. 94 teacher s accusation. 95 The discovery of cigarettes would reinforce and support the Failure to find cigarettes would also affect the administrator s investigation by lending credibility to T.L.O. s denial. 96 Either way, the administrator would have more information with which to make a reasonable and just decision regarding application of school disciplinary policies Id. at Id. 90 Id. 91 Id. 92 State ex rel. T. L. O., 463 A.2d 934 (N.J. 1983). 93 Id. 94 See T.L.O., 469 U.S. 325, Id. 96 Id. 97 Id. 62

17 The New Jersey Supreme Court stated that the search of the purse should have concluded with the discovery of the cigarettes. 98 The United States Supreme Court again disagreed with the New Jersey Supreme Court, arguing that the plain view discovery of rolling papers during the initial search for cigarettes gave rise to independent reasonable suspicion that the student was also carrying marijuana. 99 This independent suspicion justified the further limited scope exploration of T.L.O. s purse for marijuana. 100 This second justified search led to the discovery of the customer list, marijuana, and other marijuana paraphernalia. 101 The Court looked for reasonable suspicion at each phase of the search, in order to justify the search. 102 In summary, T.L.O. states that every court must, in every school search case, look to the totality of the circumstances, focus on the facts, and apply the two-step T.L.O. test to determine the constitutionality of any search. 103 The government actor s search must be justified at its inception, and limited in scope by tailoring it to the circumstances justifying its initial inception. 104 B. The Ninth Circuit s Debate About the Meaning of Reasonable Suspicion: Safford Unified School District v. Redding (2007) Part I of this Article summarized the facts of Safford. 105 During the school year, school officials caught Marissa carrying prescription pills and a day planner containing contraband. 106 They found the pills in her pocket. 107 Marissa told the 98 State ex rel. T. L. O., 463 A.2d 934, 943 (N.J. 1983). 99 T.L.O., 469 U.S. at Id. 101 Id. 102 Id. 103 Id. passim. 104 Id. passim. 105 See infra Part I. 106 Redding v. Safford Unified Sch. Dist. No.1, 531 F.3d 1071, 1076 (9th Cir. 2008) (en banc). 107 Id. 63

18 assistant principal that she received the planner and pills from her friend Savana. 108 Savana is an eighth grade honor student. 109 Another student claimed that Marissa and other students were going to take the pills together during lunch hour. 110 Savana was brought to the office where she admitted that the planner was hers, but stated that she had loaned it to Marissa a week before and was unaware of its contents. 111 She also denied having any knowledge of the pills. 112 The vice principal chose not to believe Savana, and had the nurse strip search her in hopes of discovering new pills. 113 No pills were found, but Savana suffered embarrassment and trauma resulting from the search. 114 Safford schools had several incidents including one near fatality in the preceding school years involving students and prescription drug use. 115 This is essential to the school district s defense. 116 It provides the basis for justification of the search at its inception. Additionally, there is some unsubstantiated hearsay evidence that Savana and Marissa may have been drinking alcohol at the school dance a week prior. 117 The school did not punish either student for the alleged drinking incident. 118 Upset after hearing what happened to her daughter, Savana s mother made an appointment with school administrators, seeking redress. 119 Unsatisfied with the school s 108 Id. 109 Id. at Id. at Id. at Id. 113 Id. 114 Id. 115 Id. 116 See id. at (Hawkins, J., dissenting). 117 Id. 118 Id. 119 Id. 64

19 response, she filed a 42 U.S.C action against the school. 120 The district court granted the school district s motion for summary judgment on the basis that, under the T.L.O. standard, the search did not constitute a violation of Savana s Fourth Amendment rights. 121 On appeal, a divided Ninth Circuit upheld the district court s ruling for defendants; however, the decision was vacated and the case was recalled before an en banc panel. 122 The en banc panel reversed the district court s determination that there was no violation of Redding s constitutional rights, and denied the vice principal s qualified immunity defense Was There Reasonable Suspicion to Strip Search Savana? There is no debate that a court must begin its reasonable suspicion analysis by applying the two-step test announced by Justice White in T.L.O. Step one: were the actions of the vice principal justified at their inception? 124 Step two: was the search reasonable, related in scope to the circumstances that justified its inception? 125 The debate begins with interpretation of the standard, and its application to the facts. 2. The Ninth Circuit Majority View (Sliding Scale Approach) The en banc Ninth Circuit majority adopted a sliding scale approach to determining whether the vice principal s actions were justified at their inception. 120 Id. 121 Id. 122 Id. at Id. 124 Id. at Id. 126 Id. at [U]nder ordinary circumstances, a search of a student by a teacher or other school official will be justified at its inception when there are reasonable grounds for suspecting that search will turn up evidence that the student has violated or is violating either the law or the rules of the school

20 The Ninth Circuit began to carve out a sliding scale exception evaluating and giving weight to the totality of the circumstances, the subject matter of the search, its level of intrusiveness, and the potential injury to the student s psyche. 127 The court stated, [R]easonableness... depends on context. 128 The Ninth Circuit looked to its sister circuits for support. The court noted and endorsed the Seventh Circuit s view that T.L.O. requires that, as intrusiveness of the search of a student intensifies, so too does the standard of Fourth Amendment reasonableness. What may constitute reasonable suspicion for a search of a locker... or pocketbook may fall well short of reasonableness for a nude search. 129 The court also endorsed the Second Circuit s interpretation: Although T.L.O. held that reasonable suspicion is the governing standard, the reasonableness of the suspicion is informed by the very intrusive nature of a strip search, requiring for its justification a high level of suspicion. 130 The court argued that this sort of sliding scale interpretation best protects the interest of our children, and ensures that administrators act both in the best interest of each child, and in the best interest of the school. 131 Under this analytical framework, the Ninth Circuit Court found the vice principal s search of Savana was not justified from its inception. 132 It emphasized that the search was in fact a strip search. 133 This determination was important because, in their view, the 127 Redding, 531 F.3d at Id. at Id. (quoting Cornfield by Lewis v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1321 (7th Cir. 1993). 130 Id. (quoting Phaneuf v. Fraikin, 448 F.3d 591, 592 (2d Cir. 2006)). 131 Id. at Id. at Id. at

21 context of the search determines reasonableness at the search s inception. 134 Administrators have a heavy burden to justify a humiliating and embarrassing strip search. 135 The court then turned to the facts of Savana s case to prove its point. 136 It noted that, unlike in T.L.O. where a teacher witnessed the infraction, here a self-interested informant--another student--who was caught with drugs and a weapon, made the accusations against Savana. 137 The court noted that criminal law does not treat all informant tips equally in their reliability. 138 Rather, the court looks to the totality of the circumstances and takes into consideration the informant s veracity and basis of knowledge. 139 In this instance, the court viewed the informant s statement as being selfserving and exculpatory. 140 Consequently, the vice principal should have questioned the motive behind Marissa s accusation and assigned little weight to its accuracy. 141 The court argued that Marissa s unreliable statements provided the sole legitimate piece of evidence by which Vice Principal Wilson justified the strip search of Savana at its inception. 142 The alleged drinking incident weeks before was too attenuated, speculative, and unproven. 143 Wilson s interview of Savana produced only a denial. 144 Wilson s subsequent (and in the court s view justified) search of Savana s belongings 134 Id. at Id. 136 Redding, 531 F.3d at Id. at Id. at 1082 (citing Adams v. Williams, 407 U.S. 143, 147 (1972)). 139 Id. (citing U.S. v. Rowland, 464 F.3d 899, 907 (9th Cir. 2006)). 140 Id. 141 Id. 142 Id. at Id. 144 Id. at

22 produced nothing. 145 The informant s statement alone, absent corroborating evidence produced by continued reasonable investigation did not support the high level of reasonable suspicion necessary to strip search a student. 146 The Ninth Circuit then bolstered its position by comparing the facts of Safford against strip search cases in other jurisdictions. 147 The Ninth Circuit s analysis of the scope prong of T.L.O. is similar and, under its view, inherently linked to the justified at its inception prong analysis. 148 The scope inquiry begins with a recitation of the controversial wording in T.L.O., which ultimately leads to the split in judicial interpretation. 149 The scope of a search is permissible only if the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in the light of the age and sex of the student and the nature of the infraction. 150 Both prongs require a totality of the circumstances inquiry. 151 However, the court focuses its ruling on two particular points. First, the infraction--possession of prescription medication--was not urgent, and relatively minor in scope. 152 Second, a strip search is a highly intrusive and psychologically invasive act. 153 The Ninth Circuit argued that common sense dictates that a strip search of a thirteen-year-old girl for prescription medication, a non-immediate threat, is a 145 Id. at Id. at Id. at 1084 (citing Cornfield by Lewis v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316 (7th Cir. 1993) (holding justifiable at its inception a strip search of a 16-year-old male behavioral disorder high school student, where a teacher s aide observed that the student was too well endowed suggesting he might be crotching drugs )); id. at (citing Phaneuf v. Fraikin, 448 F.3d 591 (2d Cir. 2006) (striking unjustifiable a strip search of an 18-year-old high school student where an informant told teachers the girl was hiding marijuana in her underwear. Student tips, even when not blame-shifting, only justify further inquiry, not an intrusive strip search)). 148 Id. at Id. 150 Id. at 1085 (citing TLO, 269 U.S. at 342). 151 Id. at 1079 (citing TLO, 269 U.S. at 342). 152 Id. at Id. at

23 disproportionate and unreasonable method of investigation under these facts. 154 The court emphasized the potential resulting psychological trauma from the strip search, and the feelings of humiliation and degradation, which could ultimately impact Savana s self-esteem. 155 These factors contravene any safety and order concerns under the circumstances. 156 The court further stated that [A] highly intrusive search in response to a minor infraction would... not comport with the sliding scale advocated... in T.L.O. Here, we have exactly such a scenario with the important additional variable that the subject of the search was a thirteen-year-old pubescent girl. 157 Approval of this search would ultimately contravene the policy goals put forth by the T.L.O. Court. 158 In conclusion, the strip search was impermissible in scope. The Safford public school officials violated Savana s Fourth Amendment rights Ninth Circuit Dissent View (Individual Prong Approach) Not all of the judges on the Ninth Circuit subscribe to the sliding scale approach. 160 Judge Hawkins, in his dissent, argued that the sliding scale approach ignores the policy reasons behind T.L.O., and that the Ninth Circuit majority failed to consider recent, and analogous, Supreme Court rulings. 161 He argues that the purpose of the T.L.O. standard was to create flexibility for the school administrators, so that they may respond swiftly and informally to effect their substantial interest in maintaining order in schools Id. at Id. 156 Id. 157 Id. at 1087 (citations omitted). 158 Id. 159 Id. at Id. at (Hawkins, J., dissenting). 161 Id. 162 Id. at

24 The sliding scale approach frustrates this purpose, tips the scale back into the students favor, and will ultimately create a more chaotic and dangerous school environment. 163 Hawkins argues: Teachers have a degree of familiarity with, and authority over, their students that is unparalleled, except perhaps in the parent-child relationship. 164 Teachers have a unique position of authority where they are responsible for protecting and developing both the educational and welfare needs of the child. 165 Law enforcement, on the other hand, has an adversarial relationship with criminal suspects. 166 These different relationships have unique challenges and fulfill different societal needs. 167 Hawkins argues that the majority fails to acknowledge the need for both informal and flexible disciplinary measures. 168 The familiar student-teacher relationship, combined with the unique societal interests present in the school setting (i.e., protecting children, furthering education, and maintaining order), allows for a more relaxed or flexible standard tipped in favor of school administrators. 169 This, according to Hawkins, was the Supreme Court s reasoning in T.L.O. 170 Hawkins cites to Supreme Court decisions for analogous support of his position. 171 In Acton, the Supreme Court noted that T.L.O. emphasized the State s power over 163 See Id. 164 Id. at Id. 166 Id. (Hawkins, J., dissenting). 167 Id. (Hawkins, J., dissenting). 168 Id. at 1091 (Hawkins, J., dissenting). 169 Id. at 1093 (Hawkins, J., dissenting). 170 Id. (Hawkins, J., dissenting). 171 Id. at (Hawkins, J., dissenting) (discussing the following cases: Vernonia School district 47J v. Acton, 515 U.S. 646, 648, 650, (1995) (rejecting, Fourth Amendment challenge to a school district s policy of conducting random urinalysis drug testing on student athletes, which required those students to urinate under teacher supervision); Bd. of Educ. Of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822 (2002) (upholding urinalysis drug-testing policy that applied not only to school athletes, but also to all students who participated in competitive extracurricular activities), and; Morse v. Frederick 551 U.S. 393 (2007) (holding School can restrict expression that they reasonably regard as promoting drug use). 70

25 schoolchildren is.... custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults. 172 In Earls, the Court said, A student s privacy interest is limited in a public school environment where the State is responsible for maintaining discipline, health, and safety. 173 The Earls Court also noted the necessity for students to submit to physical examinations and vaccinations against disease. 174 The Court did not limit the exams to purely medical reasons; a search based on safety or drug concerns could potentially create the need for a medical exam. 175 The Court furthered this interpretation in Morse, where it drew on the prior school search cases and restated, The nature of [school children s] rights is what is appropriate for children in schools.... [D]eterring drug use by schoolchildren is an important [and] indeed perhaps compelling interest. 176 Hawkins suggests that the correct application of the T.L.O. test is one that keeps the two prongs separate and distinct. 177 The justified at its inception prong would only inquire whether, based on all the circumstances, officials have a reasonable suspicion that the particular individual being searched is engaged in wrongdoing. 178 This initial analysis of the justified in its inception prong must be conducted completely independent of the issue of nature of the infraction or intrusiveness, and, as such, only requires analysis of the underlying evidence, and not the actual search itself Acton, 515 U.S. at Earls, 536 U.S. at Id. 175 Id. at Morse, 551 U.S. at 2627, 2628 (citations omitted) (internal quotations marks omitted). 177 Redding, 531 F.3d at 1095 n.3 (Hawkins, J., dissenting). 178 Id. (Hawkins, J., dissenting) (citations omitted) (internal quotation marks omitted). 179 Id. (Hawkins, J., dissenting). 71

26 The court should analyze the reasonable in scope prong second; and its analysis requires a three-step inquiry, which focuses on the nature and intrusiveness of the search. 180 First, courts should determine whether the measures adopted are reasonably related to the objectives of search. 181 This inquiry focuses on the administrator s probability of conducting a successful search (i.e., finding the item sought, under the factual circumstances). 182 Second, courts should consider whether a search that has some probability of success is unreasonable because it is excessively intrusive. 183 The third and final step in the scope analysis is consideration of the nature of the infraction. 184 Hawkins acknowledges this is where the analysis gets complicated. 185 According to Hawkins, the Ninth Circuit majority wrongly applies the nature of the infraction analysis to the justified at its inception prong, when it conducts its initial totality of the circumstances analysis. 186 T.L.O. expressly states that the nature of the infraction is part of the scope analysis. 187 Hawkins points to Justice Stevens s dissenting opinion in T.L.O. for support of this position. 188 Hawkins states that Stevens position is almost identical to the one promulgated by the Ninth Circuit majority, and it was rejected by the Supreme Court majority Id. at (Hawkins, J., dissenting). 181 Id. at 1103 (Hawkins, J. dissenting) (quoting New Jersey v. T.L.O., 469 U.S. 325, 342 (1985). 182 Id. (Hawkins, J., dissenting). 183 Id. at 1104 (Hawkins, J., dissenting) (quoting T.L.O., 469 U.S. at 342). 184 Id. (Hawkins, J., dissenting) (quoting T.L.O., 469 U.S. at 342). 185 Id. (Hawkins, J., dissenting). 186 Id. (Hawkins, J., dissenting). 187 Id. (Hawkins, J., dissenting) (quoting T.L.O., 469 U.S. at 342). 188 Id. (Hawkins, J., dissenting). 189 Id. (Hawkins, J., dissenting). 72

27 C. The Supreme Court s New/Old Standard: Safford Unified School District v. Redding (2009) Justice Souter delivered the majority opinion of the Court, holding Assistant Principal Wilson had reasonable suspicion that Savana was distributing contraband drugs; but the principal's reasonable suspicion did not justify a strip search. However, the law regarding strip searches of students was not clearly established, and therefore the officials were entitled to qualified immunity. 190 Specifically, the Court concluded that the proposed danger was not significant enough to warrant a strip search, nor was there any evidence in the record that tended to suggest that students hide things in their underwear. 191 The Court began by affirming the standard announced in T.L.O.: [A] school search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. 192 The Court emphasized that reasonableness is a fluid concept and that the lesser standard required for a student search can be described as a moderate chance of finding evidence of the wrongdoing. 193 Moreover, the Court appears to have analyzed each prong individually. The Court at least implies, if not states directly, that assistant principal Wilson was justified in his search of Savana s outer clothes and backpack. 194 The Court also refused to define strips search and its Fourth Amendment consequences. 195 Arguable meaning is that at any moment the search could become unreasonable. This presents a multiplicity of attack avenues for attorneys representing a student. One can argue that the search became 190 Safford Unified School District v. Redding, 129 S. Ct. 2633, (2009). 191 Id. at Id. at 2639 (citations omitted) (internal quotation marks omitted). 193 Id Id. at Id. 73

28 unreasonable at multiple instances. In essence, a leash has been placed upon the searching official; at each stage of the search he must conduct a new reasonableness inquiry. For example, the official may have had sufficient evidence to open a backpack or outer pocket, but not a locker or an inner pocket. Perhaps the official can search inside your bra, but not your underwear. Maybe under the same facts it is reasonable to search a 16-year-old boy with a record of mischief, but not an honor roll student who is a girl. Additionally, the court refused to define strip search, instead categorically stating that the Fourth Amendment concept of subjective expectations of privacy apply with full force in the school setting, especially in the context of strip searches. 196 Although the Court specifically does this to avoid further litigation, such action invites further litigation by failing to articulately segment a strip search case from that of a non-strip search case. The Court instead stated that the indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T.L.O. 197 This implies that, despite the gravity of indignity of the search, T.L.O. always applies. Finally, the Court stated, the content of the suspicion failed to match the degree of intrusion.. Nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear.... In sum, what was missing from the suspected facts that point to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carting pills in her underwear Id. at Id. at Id. at

29 Danger or individualized suspicion sufficient to overcome the T.L.O. standard was necessary to validate the strip search of Savana. This statement will become the keystone for Fourth Amendment school litigation. The concurrence authored by Justice Stevens, and joined by Justice Ginsburg, stated Nothing the Court decides today alters [the] basic framework of T.L.O. 199 I point this statement out because Justice Thomas argues in his dissent, that the decision does exactly that; it changes current precedent by creating additional search requirements not present in the T.L.O. decision. 200 Specifically, either a danger or reason to suppose the drugs were in the underwear must now be present to justify a search. 201 These additional requirements will, according to Justice Thomas, create a dangerous school environment where students will know exactly where to hide contraband. 202 Justice Thomas argues that school officials should receive great deference, and we should restore the common law doctrine of in loco parentis. 203 I fear that this drastic position taken by Justice Thomas will dissuade attorneys from utilizing, and undercut the effectiveness of, the arguments made in his dissent. Although slightly over-the-top in ultimate perspective, it is full of well-reasoned counterarguments capable of spinning in the favor of defense counsel. Justice Thomas is correct the Court has introduced new requirements. These new requirements present opportunities for defense counsel to present justified Fourth Amendment defenses for unreasonable school searches, and not just in the scope of strip searches, but as to all school searches. 199 Id. at 2644 (Stevens, J., concurring). 200 Id. at 2649 (Thomas, J., dissenting). 201 Id. 202 Id. at 2650 (Thomas, J., dissenting). 203 Id. at 2657 (Thomas, J., dissenting). 75