Court Invalidates Backpack Search by School Resource Officer

Many of the cases we handle in the UNC Juvenile Justice Clinic involve school-based incidents that are then charged as criminal offenses in delinquency court.  Students who have acted out verbally or physically in school (where any “touch” that is not consented to can be considered an “assault”) as well as students who have brought contraband to school (from a pocket knife to drugs) find themselves suspended from school as well as facing charges in either juvenile or adult criminal court.  Evidence shows that the majority of students charged with school-based offenses are low-income children of color (typically those who have not performed well on standardized tests), thereby establishing the “school-to-prison pipeline.”

Last week the Washington Supreme Court adopted the minority view by ruling that searches conducted by school resource officers must be analyzed under the more rigorous “probable cause” standard, rather than the “reasonable suspicion” standard applied to teachers and administrators.

The following article from Mark Walsh at the School Law Blog discusses the case in detail:

A school resource officer did not have probable cause to search a student’s backpack and, thus, an air pistol that turned up had to be suppressed in a criminal proceeding, Washington state’s highest court has ruled.

The Washington Supreme Court ruled 7-2 that the school resource officer was not a school official and thus the more lenient standard of “reasonable suspicion” applied to searches by school personnel did not apply.

The Aug. 2 ruling in Washington v. Meneese stems from a February 2009 incident at Robinswood High School in Bellevue, Wash. School Resource Officer Michael Fry, of the Bellevue police department, spotted a student in a school restroom holding a bag of marijuana. Fry took the student, Jamar B.D. Meneese, to a school office where he placed him under arrest and handcuffed him. Fry then opened and searched the student’s locked backpack, which contained an air pistol.

Meneese, who was evidently an adult at the time, was convicted in a state trial court of possession of less than 40 grams of marijuana and unlawfully carrying a dangerous weapon at school. The student challenged the weapons charge based on the officer’s alleged lack of probable cause to search his backpack. Under relevant case law, the officer would have had to have a warrant to open the locked bag absent the “school exception,” or reasonable suspicion standard.

Lower courts rejected the argument, but in its decision this week, the Washington Supreme Court sided with the student. The majority said there where overwhelming indications that Fry was acting as a law enforcement officer, not a school official, in conducting the search.

“Fry’s job … concern[s] the discovery and prevention of crime, and he has no authority to discipline students,” said the majority opinion by Justice Susan Owens. “He is a uniformed police officer who responds to, and addresses, incidents occurring on school grounds. Moreover, his role as SRO does not exempt him from other police duties as he can still be called upon to answer police matters unrelated to the school.”

This is in contrast to searches conducted by school administrators. The underlying rationale for applying the lesser standard of reasonable suspicion is that “teachers and administrators have a substantial interest ‘in maintaining discipline in the classroom and on school grounds’ that often requires swift action,” the state high court said, quoting the U.S. Supreme Court’s 1985 decision inNew Jersey v. T.L.O.

The Washington Supreme Court majority noted that its decision ran counter to rulings in several other states that have treated school resource officers as school officials and have not required probable cause for their searches.

But the Washington court said several factors required its own ruling, including language in the Washington state constitution that provides stronger protections from illegal searches than that of the U.S. Constitution’s Fourth Amendment. And the specific facts of this case supported the probable cause requirement, as Officer Fry was not trying to further school discipline because he had already placed Meneese under arrest when he conducted the backpack search.

“There was no chance for swift and informal school discipline and further searching primarily promoted criminal prosecution, not education,” the majority said.

Writing for the dissenters, Justice Debra L. Stephens said the school search exception should apply to a search by a school resource officer “so long as it is related to school policy and not merely a subterfuge for unrelated law enforcement activities. This is the view of the overwhelming majority of jurisdictions to have considered the issue.”

“Schools will now be dissuaded from using SROs to detect and intercept violations of school rules or the law,” Stephens said. “Instead, teachers and other school administrators who have reasonable suspicion, but lack probable cause, must conduct such searches themselves. The Constitution does not demand such foolhardiness, nor is it necessarily conducive to respect for student privacy.”

Are school resource officers in your state required to have reasonable suspicion to search students or the more rigorous standard of probable cause?  Please share in the comments.

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About Tamar Birckhead

This entry was posted in Analysis, Case Law, Delinquency, School to Prison Pipeline, Search and Seizure, State Laws, Uncategorized. Bookmark the permalink.

4 Responses to Court Invalidates Backpack Search by School Resource Officer

  1. nina says:

    What are your thoughts on zero tolerance policies? It seems they would also contribute to the school to prison pipeline. Is it reasonable to expect school administrators to investigate every infraction instead of moving immediately to suspension, expulsion, or prosecution? I think if an administration’s true interest is to teach, protect, and advance the lives of their students, they have a responsibility to investigate. I’m interested in your thoughts and experience!

    • tbirckhe says:

      Hi, Nina,
      Yes, I agree that zero tolerance policies are often counterproductive, particularly in a state like North Carolina where 16 and 17 year olds are automatically prosecuted in adult criminal court. I’ve represented students (first-time offenders) at the “zero tolerance” high schools in Chapel Hill who have been criminally charged with “assault” or “disorderly conduct” for typical school hallway behavior that should never have found its way into a courtroom. They end up with school suspensions and criminal records, compounding whatever issues were underlying their original behaviors. There is a lot of academic research that confirms the wrongheadedness of zero tolerance: see, e.g., a 2008 report from the American Psychological Association: See also an earlier post on this blog on the much more effective approach to school discipline used by “trauma sensitive” schools:

      Thanks for your comment!

  2. In our school district they still practice zero tolerance despite state law making it illegal AND having been sued in Federal Court by parent & the parents won!!

    This is why we need state Tax Payer/Parent Trigger Laws with TEETH!

    My position is if a school is found to have broken ANY laws during the course of 1 calendar year, or a school district found to have broken 3 laws total (all schools & administrative actions) in one calendar year, the tax payers & parents can immediatly terminate any and all staff found guilty & turn that school into a charter or private school.

    On the administrative & school board level – those people either immediately fired upon conviction or recalled in the case of the school board.

    The school board in our district is fully aware & upholds any and all punishments dished out by the schools with no questions. Thus, they too have broken the laws.

    I thought the school board was there to be on the side of the students & tax payers?

    Fabulous blog yet again!

  3. Question…. if the school administrators did the search & found it – then the backpack evidence would stand… correct?

    That’s bogus.

    That’s how it would be done in Texas. The admin would search & have the police do the arrest.