Tips for Challenging School Searches & Interrogations

TIPS FOR CHALLENGING SCHOOL SEARCHES & INTERROGATIONS

NJDC Leadership Summit– October 2011

Randee J. WaldmanBarton Juvenile Defender ClinicEmory University School of [email protected]

Tobie J. SmithLegal Aid Society of [email protected]

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Road Map for this Session

Background on Criminalization of Student Behaviors and School Resource Officers

Search and Seizure Law Interrogations Law Practice Tips

Criminalization of Student Behavior

Background:3

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Criminalization of Student Behaviors

Youth crime declined 50% between 1992 and 2003BUT schools reporting at least one crime to law enforcement rose from 57% to 63%

Common school charges: disturbing peace disorderly conduct terroristic threats

Increase in school-specific offenses: school fights disrupting school assembly, class talking back to teachers loitering or trespassing on school grounds

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Disproportionate Racial Impact

Judith Browne, Advancement Project, Derailed: The Schoolhouse to Jailhouse Track 18-19 (2003)

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School Resource Officers

Depending on district, may be employed by: Local law enforcement School system

TRIAD Model Teacher Counselor Law enforcement officer

Look to MOUs for specific duties

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Schools with Security Officers/Police by Type of School

Public School Practices for Violence Prevention and Reduction: 2003-04, NCES (Sept. 2007)

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Schools with Security Officers/Police by Minority Enrollment at School

Public School Practices for Violence Prevention and Reduction: 2003-04, NCES (Sept. 2007)

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Percent of HS Students Subjected to School Searches

Rachel Dinkes et al., Indicators of School Crime and Safety: 2007, National Center for Education Statistics (Washington, DC 2008)

Searches & Seizures in School10

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Searches at School

Fourth Amendment applies (New Jersey v. T.L.O.) Standard varies depending on

Who initiated search? Who performed search?

If student consents to search: probable cause/reasonable suspicion not required consent cannot be established by merely showing

“acquiescence to a claim of lawful authority.” consent must be voluntary (totality of circumstances)

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Searches By School Officials

New Jersey v. T.L.O., 469 U.S. 325 (1985) Fourth Amendment (through 14th amendment)

applies to searches conducted by public school officials

Warrant and Probable Cause not required

Reasonable Suspicion Standard

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Searches By School Officials

The Test for Reasonable Suspicion:

justified at inception, and

reasonable in scope

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Justified at Inception

“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” (T.L.O.)

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Justified at Inception

What is not reasonable? Student’s status as rule

breaker Hunches or rumors Association with

wrongdoers Furtive gestures or non-

cooperation

What is reasonable? Reliable tips (including

anonymous tips with specifics)

Direct observations Prior history (needs to be

related; varies by juris.) Common sense conclusions

about individual behavior, when more than a hunch

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Reasonable in Scope

Means of search must be reasonably related to objectives, and

Not excessively intrusive In light of age and sex of student, and

Nature of infraction

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Reasonable in Scope

Courts weigh intrusiveness of search against the school’s interest

Nature of the offense implicates the importance of the school’s interest Drugs and weapons – legitimate interest Stolen money – low interest

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Reasonable in Scope

What is reasonable in scope? Pat frisks Pockets Strip Searches Purses Lockers Handcuffs

What is not reasonable in scope? Pat frisks Pockets Strip Searches Purses Lockers Handcuffs

Applying the New Jersey v. T.L.O. Framework…

Stafford Unified School District #1 v. Redding, 129 S. Ct. 2633 (2009).

School vice principal had reasonable suspicion to search a 13 year old girl for common pain killers where another student reported girl was involved in drug distribution at school

Scope of search was neither justified nor permissible where the vice principal required student to pull out her underwear. There was no indication that student was a danger to other students or that the vice principal had reason to believe student was carrying pills in her underwear.

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Group Searches at School

No need for individualized suspicion when: Privacy interests are minimal Important gov’t interests would be placed in jeopardy by a

requirement of individualized suspicion Pat / Cursory searches more likely to be acceptable Searches for drugs or weapons more likely to be acceptable

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Searches By Police at School

Exclusively By Police = Probable Cause

Not requested or authorized by school officials

Clearest example: detective comes to school to investigate a crime that occurred off-campus

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School Officials and Police

Standard depends on level of police involvement Factors include:

Who initiated or requested the search? Did school officials authorize the search? Who conducted the search?

Always argue probable cause when officers are involved

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School Resource/Liaison Officers

Nationally, more often than not, SROs are considered school officials for purposes of search and seizure

Factors courts consider include: Nature of employment

Are they employed by the school or members of the police force?

Look to Memos of Understanding and/or other school policies

Nature of job responsibilities within the school Is the SRO furthering educationally-related goals?

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Brief Detention / Questioning

Many courts have held that school officials, including SROs, have the authority to briefly detain and question a student on less than reasonable suspicion Can stop to ask for program card, etc. Cannot be arbitrary, capricious or harassing

Interrogation in School25

Interrogations in School

Two-Part Inquiry: Is the statement voluntary

If not voluntary, cannot be used even for impeachment purposes

Is the waiver of Miranda:Knowing, Intelligent, andVoluntary

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Voluntariness: Factors to Consider

Coercion Threats / brutality Length of interrogation Did the child’s age make him susceptible to coercion? Did officials exploit the child’s mental impairment to

elicit the statement? Influence of Drugs / Alcohol Promises Lack of Miranda during a custodial interrogation School Setting?

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Are Miranda Warnings Required?

Is the interrogation custodial? Objective test: Reasonable person standard

Whether a reasonable person would feel that he or she was not at liberty to terminate the interrogation and leave. Thompson v. Keohane 516 U.S. 99, 112 (1995)

Whether there is a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest. CA v. Beheler 463 U.S. 1121, 1125 (1983)

Custody Analysis: Impact of Age

J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011): Child’s age has a bearing on the Miranda analysis if

the child’s age was known to the officer, or was objectively apparent to a reasonable officer.

“A child's age is far ‘more than a chronological fact.’ It is a fact that ‘generates commonsense conclusions about behavior and perception.’ Such conclusions apply broadly to children as a class. And, they are self-evident to anyone who was a child once himself, including any police officer or judge.” (internal citations omitted)

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Custody Analysis: Factors to Consider

Who conducted the interrogation? School official = almost never custodial

In what capacity is the school official acting? For an educational purpose?

SROs treated more like law enforcement in this analysis

Who was present for the interrogation? Police / SRO presence increases likelihood of

custodial finding Circumstances of questioning

Was the student mandated to report to the office?

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Voluntariness and Custody: Impact of School Setting

“the effect of the schoolhouse setting cannot be disentangled from the identity of the person questioned. A student—whose presence at school is compulsory and whose disobedience at school is cause for disciplinary action—is in a far different position than, say, a parent volunteer on school grounds to chaperone an event, or an adult from the community on school grounds to attend a basketball game. Without asking whether the person ‘questioned in school’ is a ‘minor,’ the coercive effect of the schoolhouse setting is unknowable.” J.D.B. v. North Carolina, 131 S. Ct. 2394, 2405 (2011)

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Waiver of Miranda

Was a Miranda waiver knowing, intelligent and voluntary? Totality of Circumstances Test, Fare v. Michael C., 442 U.S. 707 (1979).

Juvenile’s age, experience, education, background, intelligence

Whether juvenile understands the warnings, nature of 5th Amendment rights, and consequences of waiver

Context of questioning, including relationship with questioner

Interested Adult Rule (minority of jurisdictions)

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Discovery33

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School-Based Discovery

Methods: Subpoenas Open Records/Freedom of Information requests Client Releases

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Documents relating to relationship between SRO and local police department Policies Employment documents Memorandum of understanding Training manuals Student handbooks

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Documents relating to the incident Miranda waiver forms Police reports School reports Witness statements Surveillance videos Records from any discipline proceedings

Both formal and informal

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Client Records Transcripts, progress reports, standardized testing,

attendance records Special education records

Referrals for special education, evaluations, IEPs Discipline records

School level and formal Correspondence between the school and the parent /

guardian Mental health/counseling records

Practice Tips38

Practice Tips: Filing the Motion

Always consider filing a motion to suppress Benefits:

May lead to dismissal of the case May weaken prosecution’s case, leading to a reduction

in charges / better chance of prevailing in court Offers significant opportunities for discovery

Preview of prosecutor’s case Get a trial run at cross-examination of prosecutor’s

witness(es) Lock witness in to version of events (impeachable)

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Practice Tips: Filing the Motion

Allege violations of both Federal and State Constitutions and Statutes States often provide greater protections than the

U.S. Constitution Allege both involuntary and not an intelligent,

knowing and voluntary waiver of Miranda An involuntary statement cannot be used even for

impeachment purposes Look to the law in other states for support

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Practice Tips: Preparing for the Motion

Consider retaining an expert If funds are lacking, be creative:

Psychologists / therapists who have worked with the child

School special education personnel School psychologists, special education teachers, etc.

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SIMULATED CROSS-EXAMINATION

Practice Tips: Arguing the Motion42