Tips for Challenging School Searches & Interrogations

1. Randee J. Waldman Barton Juvenile Defender Clinic Emory University School of Law rwaldm2@emory.edu 404-727-6235 Tobie J. Smith Legal Aid Society of Birmingham smithto@uccal.org 205-264-8071 Tips for Challenging School Searches & Interrogations NJDC Leadership Summit– October 2011

2. Road Map for this Session • Background on Criminalization of Student Behaviors and School Resource Officers • Search and Seizure Law • Interrogations Law • Practice Tips

3. Background: Criminalization of Student Behavior

4. Criminalization of Student Behaviors • Youth crime declined 50% between 1992 and 2003 BUT 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

5. Disproportionate Racial Impact Judith Browne, Advancement Project, Derailed: The Schoolhouse to Jailhouse Track 18-19 (2003)

6. 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

7. Schools with Security Officers/Police by Type of School Public School Practices for Violence Prevention and Reduction: 2003-04, NCES (Sept. 2007)

8. Schools with Security Officers/Police by Minority Enrollment at School Public School Practices for Violence Prevention and Reduction: 2003-04, NCES (Sept. 2007)

9. 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)

10. Searches & Seizures in School

11. 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)

12. 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

13. Searches By School Officials The Test for Reasonable Suspicion: • justified at inception, and • reasonable in scope

14. 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.)

15. 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

16. 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

17. 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

18. 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

19. 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.

20. 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

21. 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

22. 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

23. 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?

24. 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

25. Interrogation in School

26. 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, and • Voluntary

27. 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?

28. 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)

29. 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)

30. 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?

31. 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)

32. 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)

33. Discovery

34. School-Based Discovery • Methods: • Subpoenas • Open Records/Freedom of Information requests • Client Releases

35. School-Based Discovery • Documents relating to relationship between SRO and local police department • Policies • Employment documents • Memorandum of understanding • Training manuals • Student handbooks

36. School-Based Discovery • 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

37. School-Based Discovery • 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

38. Practice Tips

39. 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)

40. 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

41. 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.

42. Practice Tips: Arguing the Motion SIMULATED CROSS-EXAMINATION