Monday, May 6, 2013
I credit Lonnie Starr’s series of comments regarding the warrantless search by a school police officer of Trayvon Martin’s backpack for inspiring me to write today’s post.
The officer seized some women’s jewelry and a large flat head screwdriver that the officer described as a burglar tool. Trayvon was not charged with a criminal offense because no one had reported the jewelry stolen and the value of the jewelry was uncertain because no one had examined it to determine if it contained precious gems, or if it were worthless costume jewelry designed to look like real jewelry. The absence of a stolen property report suggests that it’s costume jewelry because, if it had any value, the owner likely would have filled out a stolen property report and filed an insurance claim.
IIRC, the suspension that resulted in his trip to Sanford involved a later incident.
Nevertheless, in response to demands from many of the defendant’s supporters at the Conservative Treehouse, defense counsel have commenced a snipe hunt into this closed matter in hopes of discovering that Trayvon was a member of a burglary ring in Miami. According to CTH logic, this would mean that Trayvon really was “up to no good” when the defendant encountered him walking home in the rain, presumably because once a burglar, always a burglar who must have continued burglarizing homes in Sanford.
Even if this were true, of course, the defendant would not have known it, and since the narrative description that he provided to the NEN dispatcher did not establish a reasonable suspicion to believe Trayvon was “up to no good,” he had no justifiable reason to follow and confront him. In addition, unless juvenile burglars in Miami are aggressive and violent MMA style ninja fighters who like to assault and kill people with their bare hands just for grins, the evidence would be inadmissible.
Therefore, this snipe hunt is going nowhere fast. It’s an absolute waste of time and money when the defense should be assembling a team of experts to review all of the reports, raw data and bench notes generated by the State’s experts.
Be that as it may, Lonnie has raised an issue of general concern to teachers and parents of school age children. Under what circumstances can a teacher search a student’s backpack for evidence of a crime without a search warrant?
The SCOTUS answered that question in 6-3 decision in New Jersey v. TLO, 469 U.S. 325, 328 (1985). Writing for the majority, Justice White described the facts as follows:
On March 7, 1980, a teacher at Piscataway High School in Middlesex County, N.J. discovered two girls smoking in a lavatory. One of the two girls was the respondent T.L.O, who at that time was a 14-year-old high school freshman. Because smoking in the lavatory was a violation of a school rule, the teacher took the two girls to the Principal’s office, where they met with Assistant Vice Principal Theodore Choplick. In response to questioning by Mr. Choplick, T.L.O’s companion admitted that she had violated the rule. T.L.O, however, denied that she had been smoking in the lavatory and claimed that she did not smoke at all.
Mr. Choplick asked T.L.O to come into his private office and demanded to see her purse. Opening the purse, he found a pack of cigarettes, which he removed from the purse and held before T.L.O as he accused her of having lied to him. As he reached into the purse for the cigarettes, Mr. Choplick also noticed a package of cigarette rolling papers. In his experience, possession of rolling papers by high school students was closely associated with the use of marihuana. Suspecting that a closer examination of the purse might yield further evidence of drug use, Mr. Choplick proceeded to search the purse thoroughly. The search revealed a small amount of marihuana, a pipe, a number of empty plastic bags, a substantial quantity of money in one-dollar bills, an index card that appeared to be a list of students who owed T.L.O money, and two letters that implicated T.L.O in marihuana dealing.
Mr. Choplick notified T.L.O’s mother and the police, and turned the evidence of drug dealing over to the police.
The New Jersey Supreme Court held that this warrantless search was unlawful, but the SCOTUS reversed. Justice White said,
There remains the question of the legality of the search in this case. We recognize that the “reasonable grounds” standard applied by the New Jersey Supreme Court in its consideration of this question is not substantially different from the standard that we have adopted today. Nonetheless, we believe that the New Jersey court’s application of that standard to strike down the search of T.L.O.’s purse reflects a somewhat crabbed notion of reasonableness. Our review of the facts surrounding the search leads us to conclude that the search was in no sense unreasonable for Fourth Amendment purposes.
The incident that gave rise to this case actually involved two separate searches, with the first — the search for cigarettes — providing the suspicion that gave rise to the second — the search for marihuana. Although it is the fruits of the second search that are at issue here, the validity of the search for marihuana must depend on the reasonableness of the initial search for cigarettes, as there would have been no reason to suspect that T.L.O. possessed marihuana had the first search not taken place. Accordingly, it is to the search for cigarettes that we first turn our attention.
The New Jersey Supreme Court pointed to two grounds for its holding that the search for cigarettes was unreasonable. First, the court observed that possession of cigarettes was not in itself illegal or a violation of school rules. Because the contents of T.L.O.’s purse would therefore have “no direct bearing on the infraction” of which she was accused (smoking in a lavatory where smoking was prohibited), there was no reason to search her purse. [Footnote 11] Second, even assuming that a search of T.L.O.’s purse might under some circumstances be reasonable in light of the accusation made against T.L.O., the New Jersey court concluded that Mr. Choplick in this particular case had no reasonable grounds to suspect that T.L.O. had cigarettes in her purse. At best, according
to the court, Mr. Choplick had “a good hunch.” 94 N.J. at 347, 463 A.2d at 942. Both these conclusions are implausible. T.L.O. had been accused of smoking, and had denied the accusation in the strongest possible terms when she stated that she did not smoke at all. Surely it cannot be said that under these circumstances, T.L.O.’s possession of cigarettes would be irrelevant to the charges against her or to her response to those charges. T.L.O.’s possession of cigarettes, once it was discovered, would both corroborate the report that she had been smoking and undermine the credibility of her defense to the charge of smoking. To be sure, the discovery of the cigarettes would not prove that T.L.O. had been smoking in the lavatory; nor would it, strictly speaking, necessarily be inconsistent with her claim that she did not smoke at all. But it is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.Rule Evid. 401. The relevance of T.L.O.’s possession of cigarettes to the question whether she had been smoking and to the credibility of her denial that she smoked supplied the necessary “nexus” between the item searched for and the infraction under investigation. See Warden v. Hayden, 387 U. S. 294, 387 U. S. 306-307 (1967). Thus, if Mr. Choplick in fact had a reasonable suspicion that T.L.O. had cigarettes in her purse, the search was justified despite the fact that the cigarettes, if found, would constitute “mere evidence” of a violation. Ibid.
Of course, the New Jersey Supreme Court also held that Mr. Choplick had no reasonable suspicion that the purse would contain cigarettes. This conclusion is puzzling. A teacher had reported that T.L.O. was smoking in the lavatory. Certainly this report gave Mr. Choplick reason to suspect that T.L.O. was carrying cigarettes with her; and if she did have cigarettes, her purse was the obvious place in which to find them. Mr. Choplick’s suspicion that there were cigarettes in the purse was not an “inchoate and unparticularized suspicion or hunch,'” Terry v. Ohio, 392 U.S. at 392 U. S. 27; rather, it was the sort of “common-sense conclusio[n] about human behavior” upon which “practical people” — including government officials — are entitled to rely. United States v. Cortez, 449 U. S. 411, 449 U. S. 418 (1981). Of course, even if the teacher’s report were true, T.L.O. might not have had a pack of cigarettes with her; she might have borrowed a cigarette from someone else or have been sharing a cigarette with another student. But the requirement of reasonable suspicion is not a requirement of absolute certainty: “sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment. . . .” Hill v. California, 401 U. S. 797, 401 U. S. 804 (1971). Because the hypothesis that T.L.O. was carrying cigarettes in her purse was itself not unreasonable, it is irrelevant that other hypotheses were also consistent with the teacher’s accusation. Accordingly, it cannot be said that Mr. Choplick acted unreasonably when he examined T.L.O.’s purse to see if it contained cigarettes.
Our conclusion that Mr. Choplick’s decision to open T.L.O.’s purse was reasonable brings us to the question of the further search for marihuana once the pack of cigarettes was located. The suspicion upon which the search for marihuana was founded was provided when Mr. Choplick observed a package of rolling papers in the purse as he removed the pack of cigarettes. Although T.L.O. does not dispute the reasonableness of Mr. Choplick’s belief that the rolling papers indicated the presence of marihuana, she does contend that the scope of the search Mr. Choplick conducted exceeded permissible bounds when he seized and read certain letters that implicated T.L.O. in drug dealing. This argument, too, is unpersuasive. The discovery of the rolling papers concededly gave rise to a reasonable suspicion that T.L.O. was carrying marihuana as well as cigarettes in her purse. This suspicion justified further exploration of T.L.O.’s purse, which turned up more evidence of drug-related activities: a pipe, a number of plastic bags of the type commonly used to store marihuana, a small quantity of marihuana, and a fairly substantial amount of money. Under these circumstances, it was not unreasonable to extend the search to a separate zippered compartment of the purse; and when a search of that compartment revealed an index card containing a list of “people who owe me money” as well as two letters, the inference that T.L.O. was involved in marihuana trafficking was substantial enough to justify Mr. Choplick in examining the letters to determine whether they contained any further evidence. In short, we cannot conclude that the search for marihuana was unreasonable in any respect.
Because the search resulting in the discovery of the evidence of marihuana dealing by T.L.O. was reasonable, the New Jersey Supreme Court’s decision to exclude that evidence from T.L.O.’s juvenile delinquency proceedings on Fourth Amendment grounds was erroneous. Accordingly, the judgment of the Supreme Court of New Jersey is
New Jersey v. TLO, 469 U.S., at 343-348.
Using the reasonableness test the SCOTUS has approved of the use of random drug testing of student athletes in Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), and eventually extended the rule to apply to all students engaged in extracurricular activities in Board of Education v. Earls, 536 U.S. 822 (2002).
The SCOTUS drew the line, however, in Safford Unified School District v. Redding, 557 U.S. 364 (2009), where school officials strip searched a girl in middle school for pills where the school lacked reasons to suspect either that the drugs (Ibuprofen) presented a danger or that they were concealed in her underwear.
Lonnie argues that the search of Trayvon’s backpack for the grafitti marker that led to the discovery of the jewelry and screwdriver a day after the police official claimed to have seen him mark-up a door in the school with WTF, violated his right to privacy and I agree that it did. Although reasonable minds might differ, I believe the search was unreasonable because the information was stale.
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