By: Richard A. Sinapi, Esq.
- The Protection of the Fourth Amendment and the Dangers of Mass, Suspicionless Searches.
- The Fourth Amendment Rights of Students in the Public School Context and the Requirement of Individualized Reasonable Suspicion
- Circumstances where Mass, Suspicionless Searches have been held to be Permissible and the Limitations thereon under Rhode Island Law.
- Model Secondary and Elementary School Search and Seizure Policy.
A. The Protection of the Fourth Amendment and the Dangers of Mass, Suspicionless Searches.
The overriding purpose of the Fourth Amendment is to safeguard the personal privacy and dignity of individuals against arbitrary invasions by governmental officials. New Jersey v. T.L.O., 469 U.S. 325, 335 (1985). Accordingly, the Fourth Amendment is implicated whenever the state intrudes upon an individual's reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351-352 (1967). One of the fundamental historical and legal underpinnings of the Fourth Amendment was a desire to prohibit the wholesale intrusions upon the personal security of individuals occasioned by mass or general searches experienced under colonial rule.[1] Accordingly, neither police nor any other official may stop and search all persons present at a particular location just because of a generalized suspicion that some of those present might possess contraband.[2] The observation of the Supreme Court in Carroll v. United States, 267 U.S. 132, 153-154 (1925), that blanket searches are "intolerable and unreasonable" is well grounded in history. Vernonia School Dist. v. Acton, 115 S.Ct. 2386, 2398 (1995)(O'Connor, J., dissenting). The Fourth Amendment's most categorical protection is "its strong preference for an individualized suspicion requirement with its accompanying antipathy toward personally intrusive, blanket searches of mostly innocent people." Id. at 2404; see also, Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 Mem.St.U.L.Rev. 483, 489 (1994)("[T]he historical record demonstrates that the framers believed that individualized suspicion was an inherent quality of reasonable searches and seizures"). Accordingly, for most of our constitutional history, mass, suspicionless searches have been generally considered per se unreasonable within the meaning of the Fourth Amendment, Vernonia, 115 S.Ct. at 2398 (O'Connor, J., dissenting), and with good reason:
Blanket searches, because they can involve "thousands or millions" of searches, "pos[e] a greater threat to liberty" than do suspicion-based ones, which "affec[t] one person at a time." Searches based on individualized suspicion also afford potential targets considerable control over whether they will, in fact, be searched because a person can avoid such a search by not acting in an objectively suspicious way.
Id. at 2397 (citation omitted).
Accordingly, blanket searches, even if applied without discretion, are prohibited insofar as it is the protection of privacy, not evenhandedness, which is the touchstone of the Fourth Amendment. Id. at 2399; Pimental v. Department of Transportation, 561 A.2d 1348 (R.I. 1989) (holding nondiscretionary sobriety roadblocks violate state constitution); see also, cases cited infra note 5.
B. The Fourth Amendment Rights of Students in the Public School Context and the Requirement of Individualized Reasonable Suspicion
It is well-settled law that the Fourth Amendment's prohibition against unreasonable searches and seizures applies to searches conducted by public school officials. New Jersey v. T.L.O., 469 U.S. at 325. In T.L.O., the Supreme Court declined to impose a probable cause requirement on searches of students in the school context and upheld the search of a student's purse based on an individualized reasonable suspicion standard. Although the T.L.O. Court declined to hold that the individualized suspicion standard "is an essential element of the reasonableness standard . . . adopt[ed] for searches by school authorities," the Court noted that "some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure." 469 U.S. at 342 n.8. The Court further noted that "[e]xceptions to the requirement of individualized suspicion are generally appropriate only where the privacy interests implicated by a search are minimal and where 'other safeguards' are available 'to assure that the individual's reasonable expectation of privacy is not subject to the discretion of the official in the field.'"[3] Id. at 342 n.8 (emphasis added) (quoting Delaware v. Prouse, 440 U.S. 648, 654-655 (1979) (citation omitted)). Neither the search of a student's person or intimate personal possessions-such as a purse, bookbag or knapsack-is considered a minimal intrusion on privacy. [4] See discussion of circumstances where exception to individualized reasonable suspicion requirement may apply infra §C.
Reasonable suspicion may not be based on an "inchoate and unparticularized suspicion or 'hunch.'" Terry v. Ohio, 392 U.S. 1, 27 (1968). A school official performing a search "must have a particularized and objective basis for suspecting" that the person to be searched is in possession of contraband. United States v. Cortez, 449 U.S. 411, 417-18 (1981). The objective requirement of reasonable suspicion is to assure that governmental officials do not "arbitrarily [search] . . . based on nothing more substantial than inarticulate hunches." United States v. Covarrubia, 911 F. Supp. 1409, 1413 (D.N.M. 1994); see also, Vernonia, 115 S.Ct. at 2402 (O'Connor, J., dissenting)(required level of suspicion in school context is objectively reasonable suspicion); Horton v. Goose Creek Ind. School Dist., 690 F.2d 470, 481 (5th Cir. 1982). The reasonable suspicion standard demands more than a generalized probability -- it requires that the suspicion be particularized with respect to each individual searched. Kuehn v. Renton School Dist., 103 Wash.2d 594, 599, 694 P.2d 1078, 1081 (1985)(noting that in any sufficiently large groupthere is statistical probability someone will have contraband in his or her possession). Although this standard is less stringent than the probable cause standard applicable to law enforcement officers, "it requires more of the school official than good faith or minimal restraint. The Constitution does not permit good intentions to justify objectively outrageous intrusions on student privacy." Horton, 690 F.2d at 481.
Courts have unanimously held that intrusive general searches of students by public school officials absent an individualized, reasonable belief or suspicion that each student searched possessed contraband or other prohibited items violate the Fourth Amendment prohibition against unreasonable searches and seizures. [5]
In a post T.L.O. decision, the court in Burnham v. West, 681 F. Supp. 1160 (5th Cir. 1982), considered the constitutionality of a general search of students based on unparticularized suspicion that they may have been in possession of marijuana or other prohibited items. The Burnham court granted summary judgment in favor of the plaintiff middle school students for violation of their Fourth Amendment rights arising out of mass searches of all students ordered by the school principal on two separate occasions. On one occasion, upon hearing a report that several students riding on school buses were carrying "Walkman" devices or radios, the principal ordered a search of all students' bookbags and pocketbooks for these devices. The following month, after smelling marijuana smoke in two hallway areas near the school cafeteria, the principal ordered a search of all students' pocketbooks and bookbags and of all male students' pockets. The Burnham court held that the Walkman search was unjustified at its inception "because there was no reasonable grounds to suspect that the search of any given student would turn up evidence of that student's violation of any law or school rule. At best, it would have been reasonable to suspect that some unknown members of the student body had Walkmen or radios in their possession." 681 F. Supp. at 1165. With respect to the marijuana search, the school official's suspicion "could not reasonably be narrowed even to the entire student body." Id. at 1166. The odor of marijuana had been uncovered while students were in class and an initial investigation failed to determine whether any student had left class at the time. Moreover, the odor was detected in an open hallway accessible to non-students and to the outside. Id. at 1166. The Burnham court held that individualized suspicion was required in the searches "because the bare suspicion that a crime or infraction has occurred offers no protection to the legitimate expectation of privacy held by each member of the student body, an expectation that T.L.O. teaches must at least be weighed in the balance." Id. at 1167.
C. Circumstances where Mass, Suspicionless Searches have been held to be Permissible and the Limitations thereon under Rhode Island Law
- Mass, Suspicionless Searches in Non-School Contexts.
In T.L.O., the Supreme Court applied the well-settled Fourth Amendment test which requires "balancing the need to search against the invasion which a search entails" to the public school setting. 469 U.S. at 337 (quoting Camara v. Municipal Court, 387 U.S. 523, 536-537 (1967). The T.L.O. Court, in arriving at the proper balance, essentially adopted the majority individual reasonable suspicion standard as the test to ordinarily be applied. 469 U.S. at 341-342 and n.8. The failure of the T.L.O. Court to adopt the individual reasonable suspicion standard in all cases in the school context is neither surprising nor significant insofar as the Supreme Court had previously approved mass, suspicionless searches in other contexts where there was a compelling public need and the intrusion minimal.[6] With minor exception, all of the following six elements have been present and expressly or impliedly relied upon by the Court in upholding such searches:
- a comprehensive policy established as a result of deliberative governmental process;
- compelling governmental interest;
- diminished expectation of privacy;
- minimal intrusion on privacy;
- intrustion could be avoided by choice (i.e., not engaging in the activity, employment, and/or mode or location of travel to which the search applies) (with the arguable exception of Camara, 387 U.S. at 523);
- situations where one undetected incident could have injurious consequences for a great number of people, see, Vernonia, 115 S.Ct. at 2402 (O'Connor, J., dissenting)(with the arguable exception of United States v. Martinez-Fuerte, 428 U.S. 543, 551 (1976)).
It should be emphasized that the United States Supreme Court has never approved in any context, under any circumstances a mass, suspicionless search involving a hands-on pat or frisk search of an individual's person. See cases collected supra note 6.
- Mass, Suspicionless Searches in the School Context.
In Vernonia School Dist. v. Acton, 115 S.Ct. at 2386, the Supreme Court for the first time approved a mass, suspicionless search in the school context. In that case, the Supreme Court upheld a school district policy of random urinalysis drug testing of student athletes as a requirement for participation in interscholastic athletics. The policy was devised by district officials and approved by the school board. 115 S.Ct. at 2389. The express purpose of the policy was to prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs. Id. In upholding the policy, the Supreme Court applied a tripartite test previously applied in other cases where mass, suspicionless searches were approved. See cases cited supra note 6. The three components of the test are (1) the nature of the privacy interest upon which the search intrudes; (2) the character of the intrusion complained of; and, (3) the nature and immediacy of the governmental concern at issue and the efficacy of the search adopted to meet it. 115 S.Ct. at 2391-2394. Each of these factors is discussed seriatim below.
a. Privacy Interest Affected. The Vernonia Court noted that historically, with regard to medical examinations and procedures, students within the school environment have a lessor expectation of privacy than members of the population generally. 115 S.Ct. at 2392. The Court further found a diminished expectation of privacy among student athletes and cited in support of this finding the practice of athletes showering and changing in open locker rooms which provide little individual privacy. Id. at 2392-2393. The Court further found that by choosing to go out for a school team, student athletes subject themselves to a degree of regulation higher than that imposed on students generally in light of requirements that they submit to a pre-season physical exam, acquire adequate insurance coverage, sign an insurance waiver, maintain a minimum grade point average, and comply with the various rules of conduct, dress, training hours and related matters that are established for each sport by school officials. Id. at 2393. Analogous to adults who choose to participate in a "closely regulated industry," the Vernonia Court concluded that students who voluntarily participate in school athletics "have reason to expect intrustion upon normal rights and privileges, including privacy." Id. at 2393.
b. Character of the Intrusion. While conceding that the excretory function is entitled to privacy, the Vernonia Court reviewed the manner in which urine samples were obtained, monitored, and tested and concluded that the intrusion was "nearly identical to those typically encountered in public restrooms." Id at 2393. With respect to privacy interests in the test results, the Vernonia Court noted that testing was limited to specific drugs (amphetamines, cocaine, and marijuana), and the test results (1) were only disclosed to a limited class of school personnel who had a need to know, (2) were not disclosed to law enforcement authorities or used for any internal disciplinary function, and, (3) were not retained for more than one year. Id at 2389, 2393. Accordingly, the Vernonia Court concluded that the privacy interest compromised by the process of obtaining urine samples was "negligible" and that the overall invasion of privacy entailed by the policy was "not significant." Id. at 2393, 2394. The foregoing conclusion reached by the Vernonia Court was not surprising in light of the Supreme Court's previous decisions in Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) and National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), upholding similar mass, suspicionless drug testing programs, which the Court also found to cause minimal intrusion on privacy interests.
c. Governmental Concern at Issue and Efficacy of Search Employed. In Vernonia, the Supreme Court found the school district had a compelling interest in detecting and deterring drug use. Relying heavily on findings of fact made by the district court, the Vernonia Court noted that a large segment of the student body in Vernonia's schools, particularly those involved in interscholastic athletics, was in a state of rebellion, that disciplinary problems had reached "epidemic proportions," and that there was a coincidence of an almost threefold increase in classroom disruptions and disciplinary reports along with direct observations by school staffers of students using drugs or glamorizing drug and alcohol use. Id. at 2388. The Court further noted that not only were student athletes included among drug users, but that athletes were the leaders of the drug culture. Id. at 2388-2389. The foregoing caused the school district's administrators particular concern because drug use increases the risk of sports-related injuries. Id. at 2389. Based on the foregoing findings, the Vernonia Court found a compelling governmental interest which constituted an "immediate crisis" of greater proportions than existed either in Skinner or Von Raab, where the Court had previously approved suspicionless drug testing. Id. at 2395. With respect to the efficacy of the means adopted for addressing the problem, the Vernonia Court found it to be "self-evident that a drug problem largely fueled by the 'role model' effect of athletes' drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs." Id. at 2395-2396. Accordingly, insofar as the means adopted were narrowly restricted to student athletes and would effectively deter and detect drug use among this group, the search modality chosen was found to be an appropriate and effective means for addressing the problem, under the extreme circumstances presented. Id.
To summarize, the Vernonia Court, in applying the tripartite test, found that there was a decreased expectation of privacy, a relatively unintrusive search, and a severe need which was met by the search, and thereby concluded that the suspicionless drug testing policy at issue was reasonable and hence constitutional. 115 S.Ct. at 2396. Finally, the Vernonia Court emphasized that the most significant element in that case was the fact that the policy at issue "was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care." Id. Although, as pointed out by the dissent, "intrusive, blanket searches of school children, most of whom are innocent, for evidence of serious wrongdoing are not part of any traditional school function . . . ." Vernonia, 115 S.Ct. at 2405 (O'Connor, J., dissenting).
- The Potential Harm of Mass, Suspicionless Searches in the School Context.
Suspicionless searches of school children -- even if non-discretionary -- are accusatory from the students' perspective and impair the educational process by undermining a student's sense of control and sending the wrong message: that to be responsible citizens, you must prove you are innocent. See Vernonia, 115 S.Ct. at 2405 (O'Connor, J., dissenting). Acknowledging and respecting the constitutional rights of students is as, if not more, important than teaching students what these rights are. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943). ("That [the public schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes"); see also, Burnham v. West, 681 F. Supp. at 1167 ("Given the special setting of the public schools, it is not enough to say merely that the Fourth Amendment protects the rights of public school children. We have the obligation to give life to the Constitution in our children's experience at every opportunity"); Jacobsen v. Seattle, 98 Wash.2d 668, 674, 658 P.2d 658 (1983) ("[T]he damage to the understanding of constitutional guarantees of freedom from unreasonable searches on the part of these young persons is incalculable"); People v. Scott D., 34 N.Y.2d at 490, 358 N.Y.S.2d at 410, 315 N.E.2d at 471 ("[A]lthough the necessities for a public school search may be greater than for one outside the school, the psychological damage that would be risked on sensitive children by [a] random search insufficiently justified by the necessities is not tolerable.").
- The Limitations on Mass, Suspicionless Searches under Rhode Island Law.
In Pimental v. Department of Transportation, 561 A.2d at 1348, the Rhode Island Supreme Court held that sobriety roadblocks or checkpoints established to apprehend drunk drivers which operate without probable cause or reasonable suspicion violate the Rhode Island Constitution. Id. at 1352. In reaching this conclusion, the Rhode Island Supreme Court acknowledged that the Supreme Court of the United States would probably hold that the "nondiscretionary," "minimally intrusive" sobriety checkpoints at issue in that case passed constitutional muster under the Fourth Amendment. Id. at 1353.[7] The Pimental court noted that this was not the first time the Rhode Island Supreme Court had departed from the "minimum level of protection" provided under the federal constitution and required greater guarantees against unreasonable searches and seizures under the Rhode Island Constitution. Id. at 1350. Moreover, the Pimental court reached this holding even though it expressly found that the state had a compelling interest in detecting drunk drivers, the roadblock stops were nondiscretionary, advance notice was provided to the public -- thereby enabling citizens to avoid the checkpoints and therefore the privacy intrusion which they entailed, and the stops constituted a minimal intrusion on the privacy rights of motorists. Id. at 1351-1353. The Pimental court clearly and unequivocally held that roadblock seizures were prohibited under Rhode Island law "because they are conducted totally in the absence of probable cause or reasonable suspicion that a motor-vehicle violation had occurred." Id. at 1353 (emphasis added). The court noted that "[i]tis a illogical to permit law enforcement officers to stop fifty or a hundred vehicles on the speculative chance that one or two may be driven by a person who has violated the law in regard to intoxication." Id. at 1352 (emphasis added). While such techniques may in fact improve the effectiveness of law enforcement, the court noted that it would be "purchased at too high a price" and would "diminish the rights of all in order to secure the punishment of a few." Id.
Accordingly, in light of the holding in Pimental, it is unclear whether any form of mass, suspicionless search would pass muster under Article 1, §6 of the Rhode Island Constitution.[8] At best, where a sufficiently compelling governmental interest is shown to justify the intrusion, certain minimally intrusive non-ad hoc searches which satisfy the criteria set forth in §C.1. above may be permissible, where the three requirements set forth in §C.2. are met (i.e. requiring all students to pass through a metal detector where it has been established that possession of weapons by students in a particular school is commonplace and poses a material danger to health and safety and the proper functioning of the school). However, not even this is certain under Rhode Island law. On the other hand, under both the Fourth Amendment and Rhode Island law, ad hoc mass, suspicionless searches are clearly forbidden except under the most extraordinary of circumstances. [9]
D. MODEL SECONDARY AND ELEMENTARY SCHOOL SEARCH
AND SEIZURE POLICY
I. SEARCH AND SEIZURE SCOPE AND STANDARD
A. Definitions.
1. Contraband: a) Any illegal substance or item; or, b) any item prohibited by rules of the school department or school and which, in the possession of a student, poses a material danger to the health, safety and welfare of students or staff.
2. Person: Any portion of the head, torso, extremities or body of a student or clothing worn thereon.
3. Personal possessions: Backpacks, pocketbooks, billfolds, change purses, and any other items customarily carried on and/or intimately connected with a student's person.
4. Property: Bicycles, lunch boxes, lockers and the contents thereof, and any other items of personal property not customarily carried on a student's person.
5. School officials: A principal, vice-principal, teacher or administrator.
6. Staff: Any employee of the school department.
B. Standard. School officials may search a student's person, personal possessions or property only when there is an individualized, reasonable belief that the particular student to be searched has in his or her possession a weapon, contraband, or evidence of a crime. By way of example, knowledge sufficient to authorize a search under this policy includes a reasonable belief that a particular student is in possession of illegal drugs, alcohol, a weapon, stolen property, or any illegal substance or item.
C. General Searches. General searches of a student's person, personal possessions, or property are prohibited; provided however, general sniff searches of a student's property of a non-intrusive nature performed by specially trained animals are permitted when specifically authorized by the school committee and conducted in the manner provided herein.
D. Persons Authorized to Search. Only school officials are authorized to conduct a search of a student's person, personal property or possessions, with the exception of sniff searches of student's property conducted by specially trained animals which may be performed with the assistance of a trained professional in the manner provided herein.
II. NOTIFICATION
A. Posted Notice. The school committee shall cause to be posted in each public school, in a place readily seen by students, a notice stating that a student's person, personal possessions or property, including lockers or other storage areas, are subject to search when there is a reasonable belief that a search would uncover a weapon, contraband, or evidence of a crime.
B. Presence of Parent. Prior to any search, a student will be informed that he or she has the right to have a parent present during the search. No search shall take place until a parent has been contacted and invited to be present during the search or until the student has waived this right, unless a determination is made by the school principal that failure to perform the search immediately would place the health, safety and welfare of students or staff in imminent danger.
C. Subsequent Notice. Should a search of a student's person, personal possessions and/or property be conducted, the school principal shall within 24 hours provide written notice to the student and his or her parents of the specific reason for the search, including the item(s) believed to be in the student's possession and the ground(s) upon which the reasonable belief to search was based.
D. Sniff Searches by Specially Trained Animals. General sniff searches of student property, including lockers or desks, are permitted only when expressly authorized by the school committee and only after written notice has been provided to students and parents at least one week in advance of such a search announcing the week (but not necessarily the specific day) in which the search will be performed. Should such a search produce a positive indication with respect to a student's property, no further or subsequent search may be performed other than by a school official in accordance with this policy, including but not limited to the notice provision provided in §II.B. above.
III. SEARCH GUIDELINES AND PROCEDURES
A. Guidelines and Limitations. All searches performed by school officials shall be conducted in accordance with the following guidelines and limitations:
1. No search shall be performed without the authorization of the school principal or his or her designee.
2. The least intrusive form of search or successive searches, if necessary, shall be employed in accordance with §III.B.
3. Searches should occur in private, whenever possible, and should be designed to minimize the embarrassment, discomfort or exposure of the student.
4. For the protection of all parties, a school official shall perform a search only in the presence of another school official.
5. Student motor vehicles parked on school property and students on school grounds after school hours when not participating in school-sponsored activities are not subject to this policy and are therefore subject to search and seizure only upon probable cause in accordance with applicable criminal law.
6. Frisk or pat-down searches of a student's person shall be conducted only as a last resort and only by a school official of the same sex as the student being searched.
7. No school official shall conduct a search that involves:
a)Conducting a body cavity search of a student manually or with an instrument.
b)Removing or arranging any or all of the clothing of a student to permit a visual inspection of the underclothing, breasts, buttocks, or genitalia of the student.
c)Items that do not violate the law or endanger the health, safety or welfare of students or staff.
B. Order in which search methods are to be employed. Whenever practicable, school officials shall employ search methods in the order set forth below, from the least intrusive to the most intrusive:
1. Request that a student voluntarily remove an over-garment such as a hat, vest, coat, scarf or gloves.
2. Request that a student voluntarily empty his or her pockets.
3. Request that a student voluntarily empty the contents of his or her personal possessions.
4. Use a metal detector or other such non-invasive investigatory device or specially trained animal to search a student's person, personal possessions or property.
5. Search a student's property.
6. Search a student's personal possession that has been removed from a student's person or possession.
7. Conduct a frisk or pat-down search of a student's person.
IV. INDEMNIFICATION
The school committee shall indemnify and hold harmless any school official from and against any loss or liability, including damages and reasonable attorneys' fees, incurred as a result of a search performed in accordance with this policy based on a reasonable belief that the student searched possessed a weapon, contraband, or evidence of a crime; provided, however, this provision shall not apply to a search conducted maliciously with intent to harass, embarrass, or intimidate the student.
F:\RAS\Research\Fourth Amend. Issues in Pub. Schools-2
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[1] See generally, Frank v. Maryland, 359 U.S. 360, 362-365 (1959) (describing pre-Revolutionary inception of Fourth Amendment protection as response to writs of assistance); Anthony Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 394-397 (1974) (In explaining the historical underpinnings of the Fourth Amendment, Amsterdam, quoting in part 2 L. Wroth & H. Zobel, Legal Papers of John Adams 141-42 (1965) states: "The power asserted by the English messengers and colonial customs officers and condemned by history was 'a discretionary power ... to search wherever their suspicions may chance to fall, a power that places the liberty of every man in the hands of every petty officer.'" Id. at 396).
[2] Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (search of all patrons in bar where illicit drug trafficking was suspected unlawful); Davis v. Mississippi, 394 U.S. 721, 726-27 (1969)(describing Fourth Amendment as prohibition against "wholesale intrusions upon the personal security of our citizenry" in context of warrantless detention and interrogation of black youths in dragnet investigation); Carroll v. United States, 267 U.S. 132, 153-154 (1925) ("It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search"); see also, Kuehn v. Renton School Dist., 103 Wash. 2d 594, 601-602, 694 P.2d 1078, 1082 (1985) ("The general search is anathema to Fourth Amendment and [state constitutional] protections, and except for most compelling situations, should not be countenanced"); Jones v. Latexo Independent School Dist., 499 F. Supp. 223, 234 (E.D. Tex. 1980) ("The blanket search or dragnet is, except in most unusual and compelling circumstances, anathema to the protection accorded citizens under the fourth amendment. The state may not constitutionally use its authority to fish for evidence of wrongdoing.").
[3] Accordingly, the T.L.O. Court's refusal to adopt an individualized reasonable suspicion standard in all cases involving school searches is not surprising insofar as the Supreme Court had recognized exceptions to this standard in the past. See discussion in text and cases cited infra note 6. The actual test set forth in T.L.O., which provides little guidance in the absence of any case law elucidating the standard, is as follows:
[F]irst, one must consider "whether the . . . action was justified at its inception," . . . ; second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place[.]" Under 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 the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a 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.
T.L.O., 105 S.Ct. at 743 (citations and footnotes omitted).
[4] As noted by the Court in T.L.O., "[a] search of a child's person or of a closed purse or other bag carried on her person, no less than a similar search carried out on an adult, is undoubtedly a severe violation" of an individual's reasonable expectations of privacy. 469 U.S. at 337-338 (emphasis added); see also, Horton v. Goose Creek Ind. School Dist., 690 F.2d 470, 478 (5th Cir. 1982)("[S]ociety recognizes the interest in the integrity of one's person, and the fourth amendment applies with its fullest vigor against any intrusion on the human body.").
[5] Webb v. McCullough, 828 F.2d at 1151 (general search of student hotel rooms on field trip because chaparones suspected some students may have consumed alcohol on trip and may have alcohol in their rooms provided insufficient grounds for summary judgment on behalf of school official who searched room since he lacked particularized suspicion and was engaging in random search not justified at its inception under T.L.O.); Horton v. Goose Creek Ind. School Dist., 690 F.2d at 470 (random and unannounced canine sniff searches of students in search of alcohol and controlled substances); Burnham v. West, 681 F. Supp. 1160 (E.D. Va. 1987)(general searches of students who were required to empty purses, bookbags, and pockets exposing contents thereof to view in search of marijuana and portable radios); Jones v. Latexo Independent School Dist., 499 F. Supp. 223, 236-37 (E.D. Tex. 1980) (blanket canine sniff searches of students on school campus in search of controlled substances); Bellnier v. Lund, 438 F. Supp. at 47 (indiscriminate strip search of all students in fifth grade class in search of allegedly stolen $3.00); Kuehn v. Renton School Dist., 103 Wash.2d at 594, 694 P.2d at 1078 (mandatory across-the-board search of student luggage as condition to participation in band concert tour); see also, R.J.M. v. State, 456 So.2d 584, 585 (Fla.App. 1984)(search of student's person because female friend of student fainted at school reportedly because of drugs improper since officials did not have "anything remotely resembling [] reasonable suspicion"); People v. Scott D., 34 N.Y.2d 483, 358 N.Y.S.2d 403, 315 N.E.2d 466 (1974) (search of student for drugs unlawful absent individualized, reasonable suspicion).
[6] Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451 (1990) (brief and easily avoidable detention of all motorists approaching roadblock for purposes of observing signs of intoxication imposes only slight intrusion on motorists while serving compelling governmental interest in eradicating drunk driving which causes 25,000 deaths, one million personal injuries and more than five billion dollars in property damage annually); Skinner v. Railway Labor Executives' Ass'n., 489 U.S. 602, 628 (1989) (mandatory drug and alcohol program requiring blood, breath, and urine testing of railroad employees involved in serious train accidents constitutes minimal intrusion and furthers compelling governmental interest in preventing "disastrous consequences" of train accidents including "great human loss"); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 669-671, 674, 677-678 (1989) (urine testing for illegal drug use of customs employees who apply for promotion to positions involving interdiction of illegal drugs, requiring them to carry firearms or handle classified materials, constitutes minimal intrusion on privacy interests and furthers compelling governmental interest in detecting custom officials involved with drugs, who by virtue of impairment, susceptibility to bribes or indifference, could facilitate noninterdiction of "sizeable drug shipmen[t]," which directly injures lives of thousands, or "breach of national security"); United States v. Martinez-Fuerte, 428 U.S. 543, 551 (1976)(brief interrogative stops of all motorists crossing certain border checkpoints constitutes minimal intrusion while serving compelling public interest in furthering "national policy" of preventing flow of illegal aliens); Camara v. Municipal Court, 387 U.S. at 535 (area wide searches of private residences for safety code violations constitutes minimal intrusion while serving compelling governmental interest in preventing safety code violations which could cause "fires and epidemics [that] ravage large urban areas"); see also, United States v. Edwards, 498 F.2d 496, 500 (2nd Cir. 1974) (electronic searches of airline passengers and their carry-on luggage constitutes minimal intrusion on privacy and serves compelling governmental interest of preventing hijacked and blown-up airplanes which can destroy "hundreds of human lives and millions of dollars of property").
[7] A year later in Michigan Dept. of State Police v. Sitz, 496 U.S. at 444, the Supreme Court did, in fact, hold that nondiscretionary sobriety checkpoints were permissible under the Fourth Amendment.
[8] An intrusion on a person's privacy interest entailed by a search prohibited by either the Fourth Amendment or Article 1, §6 of the Rhode Island Constitution also qualifies as the type of "unreasonable intrusion" upon one's "physical solitude or seclusion" made actionable under R.I.G.L. §9-1-28.1(a)(1). That statute provides as follows in pertinent part:
(a) Right to Privacy Created. It is the policy of this state that every person in this state shall have a right to privacy which shall be defined to include any of the following rights individually:
(1) The right to be secure from unreasonable intrusion upon one's physical solitude or seclusion;
(A) In order to recover for violation of this right, it must be established that:
(i) It was an invasion of something that is entitled to be private or would be expected to be private;
(ii) Such invasion was or is offensive or objectionable to a reasonable man; . . .[.]
R.I.G.L. §9-1-28.1(a)(1) (emphasis added). In addition to compensatory and punitive damages, a successful party is also entitled to attorneys' fees under the statute. R.I.G.L. §9-1-28.1(b).
[9] The paradigm scenario is a teacher's observation of a student brandishing a handgun in the midst of a group of students. See Burnham, 681 F.Supp. at 1167, n.8. Arguably, assuming there is no reason to doubt the accuracy of the observation, a search of a clearly defined and reasonably small group of students is probably permissible under the T.L.O. test, see supra note 3, even in the absence of individualized suspicion that each person in the group to be searched is in possession of the weapon, under the extreme circumstances presented. Id.