SEARCHING FOR DRUGS WITHIN THE SCHOOL

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.

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