Court Points Out The Fourth Amendment Still Protects Public School Students From Illegal Searches

Tech Dirt – by Tim Cushing

Students don’t sacrifice their Constitutional rights when they walk through the school’s door. Their protections are somewhat diminished but they don’t evaporate completely. There are reasons their rights aren’t eliminated and those are tied to the operation of government employeesoutside of the school doors.

A recent decision by an Ohio Appeals Court reiterates this fact and spells out exactly why we shouldn’t treat minors as possessors of only a minimum amount of civil liberties. (via 4thAmendment.com)   

At issue is a warrantless search of a student’s bag under the suspicion that he was carrying a gun. Considering the number of “zero tolerance” policies in place in many schools, you’d think the student’s rights would immediately have become subservient to the exercise of those policies. Not so.

A single witness testified at the hearing, a school security officer by the name of Robert Lindsey. Lindsey explained that he is not a police officer but that he is a safety and security officer employed by Columbus Public Schools and works at Whetstone High School. On February 5, 2013, when Lindsey was on duty, a school bus driver approached him with a book bag that had been left on a bus, seeking to have it returned to its owner. Lindsey testified that he opened the bag and was able to quickly determine that it belonged to Polk. However, he began to search further and dumped out the bag, “just to, you know, be precautious, [sic] that’s what we do.”2 (Tr. 6.) Lindsey said that when he saw Polk’s name, he remembered rumors that Polk was in a gang and he admitted he was thinking about that when he dumped out the bag. However, he also testified that he would have dumped out the bag and searched it, regardless of to whom it belonged, because even though there was nothing outwardly suspicious about the bag, it was unattended.

There’s your first rights violation. A warrantless, nearly suspicionless search of a student’s bag that went beyond the cursory search needed to determine ownership. The single witness showed his disregard for the students under his care by stating he would have dumped the bag out and searched it even without having heard somebody say something about this student possibly being a gang member.

Inside the bag were some bullets. The student was apprehended in the hallway and restrained. He was then searched in an empty classroom by a law enforcement officer. In the bag Polk wascarrying with him was a gun. Despite the apparent severity of the situation, the lower court found (and the Appeals Court confirmed) that, while the cursory search to determine ownership was constitutional, the emptying of the bag left on the bus was not.

We agree with the trial court that the second search could have been justified at the outset, “[i]f Officer Lindsay [sic] had dumped the entire contents of the bag in his initial search for safety purposes and/or to obtain the owners [sic] identity.” That is, in a school setting, emptying the entire bag would have been an acceptable way to meet the two initial justifications for the search: safety and identification. But Lindsey did not empty the bag at first. He testified he took the bag to the principal’s office, recalling that rumors existed that Polk was involved in gang activity, and then emptied the contents of the bag… The trial court was well within its fact-finding discretion to conclude, based on the circumstances, the testimony and its ability to evaluate the officer’s credibility, that the second search was based “solely” on rumors of Polk’s gang affiliation.

Rumors do not rise to reasonable suspicion, and mere affiliation with a criminal group does not constitute a crime or a justification for a search, even in a school.

Because the results of the unconstitutional second search led directly to the third search, both the bullets and the gun were suppressed. And while it may seem unconscionable that a student who brought a weapon to school will “get away with it,” there’s a very good reason why his Fourth Amendment rights are being recognized. If they were waived under the assumption that the lowered expectation of privacy afforded to students made the second search constitutional, the system would open itself up to further abuse.

The state argued the exclusionary rule (under which the gun and bullets were suppressed) only applies to law enforcement officers. The court corrects this misinterpretation, reminding the school that the rule applies to all government employees with the power to act on behalf of the state.

In short, public school employees are state actors for purposes of the Fourth Amendment, and evidence collected by teachers when they (or a school safety officer) investigate a student to determine whether the student has committed a criminal act may be subject to the exclusionary rule if a subsequent criminal prosecution occurs.

If the court had found otherwise, it not only would have gone against US Supreme Court precedent, but would have given the state a way to route around limitations imposed by the Fourth Amendment.

To hold otherwise would be to revive what was known as the silver platter doctrine for use against Ohio’s school children. This doctrine allowed law enforcement agents from jurisdictions outside the reach of the Fourth Amendment to develop evidence through means that would otherwise have been unconstitutional and then deliver that evidence on a “silver platter” to law enforcement officers who were subject to the Fourth Amendment’s strictures in order to avoid the operation of the exclusionary rule…

If the evidence they collect in violation of the Fourth Amendment were able to be used when turned over to law enforcement, school employees would have little incentive to respect students’ rights, and worse, law enforcement would have an incentive to use school employees as Fourth Amendment-immune agents to conduct illegal student searches in schools.

And no local government can act as though this wouldn’t be abused, because it was this exactabuse that lead to the Supreme Court decision: federal law enforcement using local law enforcement to route around the Fourth Amendment restrictions on wiretaps.

To grant the state’s arguments credence would undercut this fundamental American right. The court concludes by pointing out that the sting of losing evidence in criminal cases is meant to keep the government honest. It doesn’t do its job as well as it should — and the court notes it’s of almost no use in civil litigation — but the deterrent cannot be removed simply because a guilty person was apprehended.

The Fourth Amendment exists to be enforced, which means providing a remedy.As civil liability (in light of wide-ranging immunity and lack of practical damages) has not proven effective, exclusion, despite its costs, is the available remedy. Without the remedy of exclusion, no practical remedy would exist for Fourth Amendment violations, and “the protection of the Fourth Amendment declaring [one’s] right to be secure against such searches and seizures [would be] of no value, and… might as well be stricken from the Constitution.”

https://www.techdirt.com/articles/20160112/11162633311/court-points-out-fourth-amendment-still-protects-public-school-students-illegal-searches.shtml