What can school personnel search and seize? (September 2003)
Ya know, some time back, I mentioned that my faithful shedding canine, Mary Margaret the Wonder Pooch, told me that a good sniff would take care of a lot of student search problems. Although I expressed reservations about such a procedure, pointing out that it is not permissible to allow a dope-sniffing dog to sniff kids, Mary Margaret is not really off the mark. There are circumstances when a good pooch-sniff can do wonders.

There are different kinds of student searches, some requiring individualized suspicion of a particular student, and others which can be done on a bunch of kids at a time.

Since we’ve been over the general law on searches in the not-too-distant past, let’s stick with just a few this month: backpacks, purses and pockets; and vehicles.

Okay, let’s review: In the last column on searches, I pointed out how judges love things to be reasonable, so they talk about reasonableness a lot. For example, if a student has a reasonable expectation of privacy in a certain thing or area, you may not search that thing or area unless you have reasonable suspicion that there is something in that thing or area that shouldn’t be there. (Remember that? Of course you do). Do you wonder what the heck I’m talking about? (Of course you do). Let’s look at the difference in searches of students and things which are not students such as vehicles.

Most girls and ladies have a reasonable expectation of privacy in their purses. That is, they expect that you won’t go looking around in there, unless you are told it’s okay. Same with guys’ pockets. Book bags usually are like purses: don’t go looking in there unless you want to lose a hand or have your nose moved from the front of your head. That’s an expectation of privacy, and most of us would agree that expectation is reasonable (thereby making judges happy. Reasonably happy).

However, what if, say, your principal has information from a fairly reliable source that a student, say Bill, has some green vegetable material (marijuana to those of you who have never been in court while the stuff is being discussed) in a baggie, stuffed in between the pages of his otherwise never-opened World History book. That’s reasonable suspicion, and the principal can look into Bill’s book bag. Now, as for Bill’s girlfriend, the lovely and intelligent Sally, although she has used disastrously poor judgment in dating Bill, that does not give the principal the right to look into Sally’s purse. No one has even suggested that she has anything in her purse that shouldn’t be there. Ergo, there is no reasonable suspicion that Sally is holding some green vegetable material which could be of interest to law enforcement and/or the principal. If the principal looks into Sally’s purse, he has violated her Fourth Amendment right to be free from unreasonable searches and seizures. Her daddy will sue you and then buy Sally another new BMW to stop her sobs caused by the horror of it all. (“My purse, daddy! He looked in my purse!”)

“Fine,” you’re thinking. “But, Paul, what about the book bags at our school? We require all book bags to be see-through, either mesh or clear plastic. What about that?” Well, that’s different. In that situation, the students have no more expectation of privacy than Wonder Woman does in her airplane.

Well, then. What about vehicles? Generally speaking, a student who drives to school has little or no reasonable expectation of privacy in the vehicle. Although we may not allow a dope-sniffing pooch to sniff any student, even Bill, we may allow the cars and trucks on the parking lot to be sniffed. We may even open trunks or toolboxes.

In a case out of Indiana, “a dog duly trained and certified in exploratory sniffing” alerted on a truck in the school parking lot. That meant that the duly trained and certified dog might have detected the odor of green vegetable material in the truck during his exploratory sniffing, so the school officials went to work. They found no green vegetable material or any other recreational substances; but, in the locked toolbox in the bed of the truck, they found a machete. The school officials, upon seeing the machete, said that “it was ‘immediately apparent’ that the machete was an illegal knife under the school district rules.” Bundick vs. Bay City Independent School District, 140 F.Supp. 735, 738 (N.D. Ind. 2000). The truck’s owner (who was also the owner of the machete which did not comply with school district rules for knives) sued the school district. The judge said that the search was legal; and, the fact that the school people weren’t looking for machetes or any other type of cutlery didn’t mean that the folks doing the search had to look away at the sight of a knife which did not comport with school rules. Amazing what people will sue over.

Well, Mary Margaret is feeling pretty spunky since she thinks her “sniffing theory” of student searches was vindicated. So, I have to go find some treats for her. She’ll never let me forget this.

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