In some circumstances, the most important tool for controlling drug
use is an effective program of drug searches. School administrators
should not condone the presence of drugs _anywhere_ on school
property. The presence of any drugs or drug-related materials in
school can mean only one thing--that drugs are being used or
distributed in school. Schools committed to fighting drugs should do
everything they can to determine whether school grounds are being used
to facilitate the possession, use, or distribution of drugs and to
prevent such crimes.
In order to institute an effective drug search policy in schools with
a substantial problem, school officials can take several steps. First,
they can identify the specific areas in the school where drugs are
likely to be found or used. Student lockers, bathrooms, and "smoking
areas" are obvious candidates. Second, school administrators can
clearly announce _in writing_ at the _beginning_ of the school year
that these areas will be subject to unannounced searches and that
students should consider such areas "public" rather than "private."
The more clearly a school specifies that these portions of the
school's property are public, the less likely it is that a court will
conclude that students retain any reasonable expectation of privacy in
these places and the less justification will be needed to search such
locations.
School officials should, therefore, formulate and disseminate to all
students and staff a written policy that will permit an effective
program of drug searches. Courts have usually upheld locker searches
where schools have established written policies under which the school
retains joint control over student lockers, maintains duplicate or
master keys for all lockers, and reserves the right to inspect lockers
at any time.[6] While this has not become established law in every
part of the country, it will be easier to justify locker searches in
schools that have such policies. Moreover, the mere existence of such
policies can have a salutary effect. If students know that their
lockers may be searched, drug users will find it much more difficult
to maintain quantities of drugs in school.
The effectiveness of such searches may be improved with the use of
specially trained dogs. Courts have generally held that the use of
dogs to detect drugs on or in _objects_ such as lockers, ventilators,
or desks as opposed to persons, is not a "search" within the meaning
of the Fourth Amendment.[7] Accordingly, school administrators are
generally justified in using dogs in this way.
It is important to remember that any illicit drugs and drug-related
items discovered at school are evidence that may be used in a criminal
trial. School officials should be careful, first, to protect the
evidentiary integrity of such seizures by making sure that the items
are obtained in permissible searches, since unlawfully acquired
evidence will not be admissible in criminal proceedings. Second,
school officials should work closely with local law enforcement
officials to preserve, in writing, the nature and circumstances of any
seizure of drug contraband. In a criminal prosecution, the State must
prove that the items produced as evidence in court are the same items
that were seized from the suspect. Thus, the State must establish a
"chain of custody" over the seized items which accounts for the
possession of the evidence from the moment of its seizure to the
moment it is introduced in court. School policy regarding the
disposition of drug-related items should include procedures for the
custody and safekeeping of drugs and drug-related materials prior to
their removal by the police and procedures for recording the
circumstances regarding the seizure.
_Searching Students_
In some circumstances, teachers or other school personnel will wish to
search a student whom they believe to be in possession of drugs. The
Supreme Court has stated that searches may be carried out according to
"the dictates of reason and common sense."[8] The Court has recognized
that the need of school authorities to maintain order justifies
searches that might otherwise be unreasonable if undertaken by police
officers or in the larger community. Thus the Court held in 1985 that
school officials, unlike the police, do _not_ need "probable cause" to
conduct a search. Nor do they need a search warrant.[9]
Under the Supreme Court's ruling:
. School officials may institute a search if there are "reasonable
grounds" to believe that the search will reveal evidence that
the student has violated or is violating either the law or the
rules of the school.
. The extent of the permissible search will depend on whether the
measures used are reasonably related to the purpose of the
search and are not excessively intrusive in light of the age and
sex of the student.
. School officials are not required to obtain search warrants when
they carry out searches independent of the police and other law
enforcement officials. A more stringent legal standard may apply
if law enforcement officials are involved in the search.
_Interpretation of "Reasonable Grounds"_
Lower courts are beginning to interpret and apply the "reasonable
grounds" standard in the school setting. From these cases it appears
that courts will require more than general suspicion, curiosity,
rumor, or a hunch to justify searching a student or his possessions.
Factors that will help sustain a search include the observation of
specific and describable behavior or activities leading one reasonably
to believe that a given student is engaging in or has engaged in
prohibited conduct. The more specific the evidence in support of
searching a particular student, the more likely the search will be
upheld. For example, courts using a "reasonable grounds" (or similar)
standard have upheld the right of school officials to search:
. A student's purse, after a teacher saw her smoking in a restroom
and the student denied having smoked or being a smoker.[10]
. A student's purse, after several other students said that she
had been distributing firecrackers.[11]
. A student's pockets, based on a phone tip about drugs from an
anonymous source believed to have previously provided accurate
information.[12]
_Scope of the Permissible Search_
School officials are authorized to conduct searches within reasonable
limits. The Supreme Court has described two aspects of these limits.
First, when officials conduct a search, they must use only measures
that are reasonably related to the purpose of the search; second, the
search may not be excessively intrusive in light of the age or sex of
the student. For example, if a teacher believes she has seen one
student passing a marijuana cigarette to another student, she might
reasonably search the students and any nearby belongings in which the
students might have tried to hide the drug. If it turns out that what
the teacher saw was a stick of gum, she would have no justification
for any further search for drugs.
The more intrusive the search, the greater the justification that will
be required by the courts. A search of a student's jacket or bookbag
can often be justified as reasonable. At the other end of the
spectrum, strip searches are considered a highly intrusive invasion of
an individual's privacy and are viewed with disfavor by the courts
(although even these searches have been upheld in certain
extraordinary circumstances).
School officials do not necessarily have to stop a search if they find
what they are looking for. If the search of a student reveals items
that create reasonable grounds for suspecting that he may also possess
other evidence of crime or misconduct, the school officials may
continue the search. For example, if a teacher justifiably searches a
student's purse for cigarettes and finds rolling papers like those
used for marijuana cigarettes, it will then be reasonable for the
teacher to search the rest of the purse for other evidence of drugs.
_Consent_
If a student consents to a search, the search is permissible,
regardless of whether there would otherwise be reasonable grounds for
the search. To render such a search valid, however, the student must
give consent knowingly and voluntarily.
Establishing whether the student's consent was voluntary can be
difficult, and the burden is on the school officials to prove
voluntary consent. If a student agrees to be searched out of fear or
as a result of other coercion, that consent will probably be found
invalid. Similarly, if school officials indicate that a student must
agree to a search or if the student is very young or otherwise unaware
that he has the right to object, his consent will also be held
invalid. School officials may find it helpful to explain to students
that they need not consent to a search. In some cases, standard
consent forms may be useful.
If a student is asked to consent to a search and refuses, that refusal
does not mean that the search may not be conducted. Rather, in the
absence of consent, school officials retain the authority to conduct a
search when there are reasonable grounds to justify it, as described
previously.
_Special Types of Student Searches_
Schools with severe drug problems may occasionally wish to resort to
more intrusive searches, such as the use of trained dogs or urinalysis
to screen students for drug use. The Supreme Court has yet to address
these issues. The following paragraphs explain the existing rulings on
these subjects by other courts:
. _Specially trained dogs._ The few courts that have considered
this issue disagree as to whether the use of a specially trained
dog to detect drugs on students constitutes a search within the
meaning of the Fourth Amendment. Some courts have held that a
dog's sniffing of a student is a search, and that, in the school
setting, individualized grounds for reasonable suspicion are
required in order for such a "sniff-search" to be held
constitutional.[13] Under this standard, a blanket search of a
school's entire student population by specially trained dogs
would be prohibited.
At least one other court has held that the use of trained dogs
does not constitute a search, and has permitted the use of such
dogs without individualized grounds for suspicion.[14] Another
factor that courts may consider is the way that the dogs detect
the presence of drugs. In some instances, the dogs are merely
led down hallways or classroom aisles. In contrast, having the
dogs actually touch parts of the students' bodies is more
intrusive and would likely require specific justification.
Courts have generally held that the use of specially trained
dogs to detect drugs on objects, as opposed to persons, is not a
search within the meaning of the Fourth Amendment. Therefore,
school officials may often be able to use dogs to inspect
student lockers and school property.[15]
. _Drug testing._ The use of urinalysis or other tests to screen
students for drugs is a relatively new phenomenon and the law in
this area is still evolving. The few courts that have considered
this issue so far have not upheld urinalysis to screen public
school students for drugs.[16] The permissibility of drug
testing of students has not yet been determined under all
circumstances, although drug testing of adults has been upheld
in the criminal law setting.