The use of Police K-9s in school searches: Another question or interpretation?

Terry Fleck of Canine Legal Update and Opinions

When a student search is conducted by the police or other law enforcement -or- governmental agents (school officials??), even if on or about school grounds and even when done in respect to and with the physical presence and collaboration of school authorities, the constitutional effect is quite different. In those situations, the search must be in full compliance with all prerequisites of the Fourth Amendment, namely a warrant and probable cause. New Jersey v. T.L.O.

Would the fruits of the poison tree be applied here?

The US Supreme Court case in 1985, New Jersey v T.L.O. addressed searches byschool officials. The court separated these two groups of people, school officials and peace officers. TLO briefly addressed peace officers. Peace officers still need probable cause to apply for a warrant or conduct a warrantless search. TLO did address school officials. They are held to a lower standard under the Fourth Amendment, reasonable suspicion: "Although the court concluded that the Fourth Amendment did apply to searches carried out by school officials, it held that a school official may properly conduct a search of a student's person if the official has a reasonable suspicion that a crime has been or is in the process of being committed, or reasonable cause to believe that the search is necessary to maintain school discipline or enforce school policies."

"The school setting also requires some modification of the level of suspicion of illicit activity needed to justify a search. Ordinarily, a search -- even one that may permissibly be carried out without a warrant -- must be based upon "probable cause" to believe that a violation of the law has occurred.

However, "probable cause" is not an irreducible requirement of a valid search. The fundamental command of the Fourth Amendment is that searches and seizures be reasonable, and although "both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, . . . in certain limited circumstances neither is required." Thus, we have in a number of cases recognized the legality of searches and seizures based on suspicions that, although "reasonable," do not rise to the level of probable cause.

Where a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard."

"We here consider only searches carried out by school authorities acting alone and on their own authority. This case does not present the question of the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies, and we express no opinion on that question."

"Because the search of T. L. O.'s purse was based upon an individualized suspicion that she had violated school rules, see infra, at 343-347, we need not consider the circumstances that might justify school authorities in conducting searches unsupported by individualized suspicion."

"Our review of the facts [*34] surrounding the search leads us to conclude that the search was in no sense unreasonable for Fourth Amendment purposes".

TLO also addressed this fruits of the poison tree issue:

"Thus, our determination that the search at issue in this case did not violate the Fourth Amendment implies no particular resolution of the question of the applicability of the exclusionary rule."