College and university students on campus are in a highly regulated environment. School rules and housing agreements may further limit student rights already closely regulated under criminal laws. A search of the student, student possessions, or student housing may turn up drugs, alcohol, tobacco products, weapons, explosives, fireworks, child pornography, or other prohibited and unlawful items, resulting in school discipline and risk of criminal charges. Yet you have rights against unreasonable searches. Retain the LLF National Law Firm’s premier Student Defense Team if you face school discipline related to a search of your person, housing, or property. Call 888.535.3686 or use our contact form now for our skilled and experienced attorney representation. Protect your education, reputation, and future.
A Search Illustration
College and university personnel, on their own or with the support of campus security or local law enforcement officers, conduct frequent student searches. Those searches frequently turn up contraband or other items subjecting students to school discipline and criminal charges, raising serious issues of student constitutional and privacy rights. The case of State v KLM provides a good example in which a student reported to a school official that another student was preparing to sell drugs on campus. The school official brought in a local police officer to assist with a search of the accused student. The search revealed a bag of marijuana, possession of which violated school rules and criminal laws. The local prosecutor pursued criminal charges while the school imposed discipline. The criminal court, though, suppressed the incriminating evidence, ruling that the school and officer had violated the student’s Fourth and Fourteenth Amendment rights against unreasonable search. If you face a similar issue, let us help you evaluate and enforce your legal and school rights.
Privacy Rights of Students on College Campuses
Abundant case authority, like the above State v KLM case, makes clear that students retain certain privacy rights on campus, even while college and university officials have substantial discretion to conduct searches to enforce school rules and protect the health, safety, and welfare of students. The reasonable expectation of privacy is not as great on a college or university campus as it is at one’s private home. Yet students do not relinquish all privacy rights and interests when entering a public college or university campus.
Students reasonably expect at least some degree of privacy in their person, in their personal effects, and in the private spaces like dormitory bedrooms and bathrooms that they occupy on campus. Students could rightly claim outrage, for instance, at attempts of school officials to secretly monitor student conduct in their leased bathrooms and bedrooms, when school officials had no specific information regarding endangering behavior occurring in those places. Generally, the greater the reasonable expectation of privacy, the greater the privacy rights. You do not give up all privacy rights on your public college or university campus simply because you are on public property. Our attorneys can rely on such legal authority to ensure that your college or university officials are not exceeding their authority and depriving you of privacy and constitutional rights.
College and University Authority to Search Students
The Fourth and Fourteenth Amendments prohibit government actors from conducting unreasonable searches. Public college and university officials are government actors, meaning the Fourth and Fourteenth Amendments do constrain them. Yet school officials are not law enforcement officers. Their searches are not directly to detect and prosecute crime but instead to enforce school rules, safety, and security. The cases thus tend to show that school searches by school officials are permissible, as the above case reiterated, “subject only to the most minimal restraints necessary to ensure that students are not whimsically stripped of personal privacy and subjected to petty tyranny.” We may be able to help you preserve your privacy rights and interest within that limitation.
Common Search Participants
You can see from the above case and discussion that who performs the search matters as to whether you have privacy rights against it. Common participants in college and university searches include resident assistants, building administrators, private security officials the school employs or contracts, and even professors, advisors, directors, and other school employees. Although at a public college or university, those employees are all government actors, they would not generally be acting as law enforcers and instead as school officials. Those officials would not need probable cause for the search. You’d more likely only have privacy rights against tyrannical searches without articulable suspicion by those school officials.
However, some colleges and universities have state authority to form police forces, while most or all colleges and universities welcome local law enforcement officers on campus for law enforcement efforts. Those law enforcement officers are also frequent participants in student searches, as the above State v KLM case shows. And constitutional law generally requires those law enforcement officers to have probable cause to believe that a search will discover evidence of a crime. Probable cause means a reasonable basis for believing that evidence of a crime is present in the search location. The participants matter to the outcome. Let us help you evaluate and enforce your rights against unreasonable searches.
Common Search Locations
The search location can also matter to the outcome of your school discipline charge based on the search discovery of contraband and to your other rights and interests. Colleges and universities may search students, student belongings such as backpacks, purses, and removed clothing; student electronics such as computers, phones, tablets, and stored files; student personal property including motor vehicles, motor bikes, and suitcases or storage bins, student dormitories, and other campus housing, and common spaces like hallways including lockers, classrooms, laboratories, bathrooms, cafeterias, locker rooms, and parking lots. Anywhere students go and might carry or leave prohibited items, school officials will search.
Generally, the greater your privacy interest in the place your school searches, the greater your privacy rights. A search of a student’s own person can be the most invasive of searches, especially if involving the removal of clothing or other embarrassing displays in a public place. Video or other surveillance of a student’s bedroom or bathroom, in the form of a search, may be even more tyrannical and intrusive. Searches of this invasive kind may violate student rights, especially if the basis for the search is weak, without credible suspicion of a strong or emergency school interest. Searches of public spaces like hallways and classrooms, by contrast, are hardly invasive at all and would generally need less or little justification to uphold.
Types of Searches
The type of search may also matter to your privacy rights and protections, with more intrusive searches warranting greater privacy protections. A physical pat down of your person is one type of search, while a closer search of pockets or inside coats and clothing is another type of plainly more invasive search. Video observation or audio recording for search purposes may be either more or less intrusive, depending on where it occurs. Searches of your physical spaces like rooms, lockers, or vehicles may be less intrusive unless you are present or unless the search disrupts the order of those spaces. Searches of your physical effects can also differ in intrusiveness, with the search of a purse containing personal care products more intrusive than the search of a briefcase presumed to contain only or primarily books, papers, and writing implements. Searches of your electronic files are a different kind of search, less personally invasive but still potentially disturbing depending on the contents, such as private or intimate communications versus schoolwork files.
Grounds or Bases for Searches
The grounds or reasonable basis for your search can also matter to your privacy rights and protections. Generally, the greater the grounds and clearer the basis for the search, the fewer privacy rights and protections you would have in it. If, for instance, the grounds for the search are to discover a suspected weapon or explosives with which you could inflict serious harm on campus, school officials and law enforcement would have significantly broader search rights without your privacy protections. But the strength of the basis for that search would also matter. A direct report from an eyewitness that a weapon or explosive was present would make a strong basis, while rumor or speculation that a weapon could be present would make a weaker basis.
While student safety from violence is a strong ground to support a search, student protection from moral hazards could be a weaker but still sufficient ground. Search for prohibited gambling evidence or vaping products would be an example. Protection of school property would be another acceptable but not always compelling ground for student searches. If, for instance, school officials had rumors that a student had spray paint that could result in vandalism, tools that could unlock doors for trespass, or codes that could access school computers without authorization, that information could be reasonable but not convincing grounds for student search. Protection of school operations and integrity of school instruction, the latter relative to cheating suspicions, could be other weaker but arguably sufficient search grounds.
Inadvertent Discovery of Other Items
The above discussion shows that school officials and law enforcement officers generally need some information suggesting that their search will turn up certain specific evidence related to the violation of a school rule or the commission of a crime. They should not generally be searching for just anything. Instead, they may search for drugs in one instance, weapons in another, and stolen property in another, depending on the complaint, report, or other information that triggers the search. Problems arise for both the student and searchers, though, when the search turns up some other contraband or evidence of a rule violation or crime than the evidence for which the searchers searched. School officials or law enforcement officers may search for drugs but discover a gun or search for stolen property but discover tobacco or alcohol.
When school officials or law enforcement officers inadvertently discover an item for which they had no reasonable basis to search, the Supreme Court case Horton v California holds that they may use the evidence as long as the inadvertent discovery was in a place where they might have discovered the item for which they had a reasonable basis to search. The searching officials must not expand the search beyond its reasonable scope on a sort of fishing expedition. But if, for instance, they discover a gun where they might have discovered the drugs for which they had a basis to search, they get to use the gun as evidence unrestricted by constitutional rights against unreasonable searches. Let us help you apply this principle and assert your privacy rights in defense of your school discipline case.
Other Search Laws, Rules, and Principles
The foregoing discussion alludes to another legal principle that case authority on searches reflect. That principle, confirmed in Horton v California, is that the searching officials may use any evidence that they discover inadvertently pursuant to an otherwise lawful search. Another related principle, also confirmed in Horton v California, is that searching officials may use any evidence that they discover in plain view during an otherwise lawful search. Searching officials should not open doors, cupboards, cases, backpacks, purses, and similar containers, nor move covers, blankets, furniture, or furnishings to discover other items in places where the item for which they reasonably search could not hide. The inadvertently discovered item must instead be in plain view in an area where the item for which they searched could have been located.
Another related principle, applied in the federal court of appeals case U.S. v Tejada, is that searching officials may retain and use any evidence that they would have inevitably discovered, even if not the evidence for which they searched. Another related principle, recognized by the Supreme Court in Weeks v. United States and other decisions, is that officials may retain and use any evidence they discover in a search incident to arrest. Arresting officials have a legitimate concern for their personal safety and the safety of others when making an arrest, justifying a search. Other case law confirms another related principle justifying a search of an impounded vehicle. Still, other case law permits retention and use of items discovered in a brief stop and pat down or frisk following suspicious behavior. Let us help you evaluate and assert your privacy rights for the best outcome of your school discipline case.
Steps to Take Before a Search
The above discussion and case authority suggests that you take certain steps and follow certain practices before an implicating school search. One of those steps is not to bring any item on campus, whether kept in your vehicle, on your person, in your personal belongings, or in your housing or other personal space, that your college or university prohibits or that school officials could construe as incriminating evidence in a school discipline charge against you. Those items can include drugs, drug paraphernalia, tobacco, vaping products, alcohol, firearms, knives, explosives, and fireworks, but may also include spray paint, dyes, tools, scopes, and other innocent items that may have a nefarious use.
A related step to take is to be aware of and avoid possessing or appearing to possess the contraband or other suspect items that other students bring onto campus. Their peril may become your risk. School officials may construe your proximity to those items as indicating your control and possession. The student responsible for the contraband or other students observing it may also falsely or mistakenly blame you for its presence. To put it another way, be careful of the company you keep, especially if that company is violating school rules. A related principle is to be aware of any duty your college or university may impose on you to report rules violations by others, such as an honor code. Your failure to live up to a reporting obligation may lead to school discipline against you related to contraband, even if everyone knows it did not belong to you.
Steps to Take During a Search
If you face the request of a college or university official or a law enforcement officer working with school officials to agree to a search, you should not generally give any such consent. Consent to search permits school officials and law enforcement officers to retain and use any contraband or other evidence they discover, whether or not they follow other rules, including rules requiring probable cause or reasonable articulable suspicion. Keep in mind, though, that your school’s rules or housing agreement may require you to cooperate with any request for a search and that your refusal to consent and cooperate may be independent grounds for school discipline. If able, consult with us so that we can advise you about your legal rights and best interests under the specific facts and circumstances of your case.
A related step to take, or more accurately to avoid, in the event of a search is not to make statements during the course of the search that incriminate yourself in any potential crime or school rule violation. As to law enforcement actions relating to suspected crime, you have a Fifth and Fourteenth Amendment privilege against self-incrimination. While that privilege may not apply to school officials investigating suspected violations of school rules, and you could face disciplinary charges for failure to cooperate with a school investigation, you need to weigh your interest in avoiding criminal prosecution against your potential interest in needing to cooperate. School officials may respect your privilege against self-incrimination in such a situation. Again, consult us if possible so that we can properly advise you under your specific facts and circumstances.
What to Do About School Charges Based on a Search
If you already face college or university disciplinary charges related to contraband or other items discovered in a school search, you should immediately retain our skilled and experienced school discipline attorneys for your strategic and effective defense. Beyond that, you should avoid speaking with roommates, classmates, or others about your disciplinary matter. If possible, you should delay giving an interview or statement to school officials, either, until after retaining and consulting us. We can help you ensure that your information is truthful, accurate, and complete. You should also preserve any evidence related in any way to your school discipline matter, including text messages or other electronic information, notes or papers, and physical items. Loss or destruction of evidence could work against you in the proceeding.
Protective College and University Procedures
You should appreciate that you have protective procedures available to you that we can invoke for your school discipline defense. The procedures at the University of Alabama, University of Michigan, and University of Florida are examples. Generally, public colleges and universities must provide accused students with constitutional due process, meaning fair notice of charges followed by a fair hearing before an impartial decision maker. You must affirmatively invoke those procedures, though, without which your school officials may default you on the disciplinary charges. School suspension is a common default sanction in serious misconduct cases like those involving contraband. Let us help you invoke and navigate your school’s discipline process for the best possible outcome.
The Role of Defense Representation
A clear and important role exists for our skilled and experienced attorneys. We have the reputation and relationships to ensure that your school’s disciplinary officials respect your procedural and privacy rights. School officials, even your resident or academic advisors, are not your personal representatives. They have conflicts of interest between their role in giving you advice and the rights, benefits, and obligations they owe to their employer school. Let us gather and present your exonerating and mitigating evidence, advise you independently and wisely, and otherwise uphold your full rights for your best possible disciplinary outcome.
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