The Fourth Amendment and Search and Seizure Rights

Hello, I’m Brian L. Jackson, a fathers’ rights attorney in Tulsa with Dads.Law. Let’s talk about your child’s search and seizure rights in a public school. Now, public schools, as the name implies, are an organ of the government. They’re a government agency. And like any other government agency, if you’re talking about a criminal search and seizure, your child would have certain protections under the Fourth Amendment, which is the right against unreasonable searches and seizures under the federal constitution.

As a general rule, though, you’re talking about kind of a two-layered approach to searches and seizures in school. Depending on whether you’re talking about a search or seizure at the direct behest of law enforcement for criminal enforcement purposes, or a search and seizure that has to do with internal school disciplinary matters or building security, because those are two totally different rules.

Shorthand, the school does have the legal right, for example, to have a metal detector at the door for security purposes that everybody has to pass through to go in and out. And yes, the metal detector is considered a search, but that would come in under a similar set of laws as to, for example, if you’re entering into a courthouse, if you’re entering into the secure portion of an airport, where your presence in that sensitive area is considered consent to the search. If you don’t want to be searched, don’t go there.

Internal School Disciplinary Matters and Building Security

Now, what about like searching lockers? Well, here’s the rule. If the search is being done as a disciplinary matter internally or is being done for security purposes internally to the school and not at the behest of law enforcement, it’s usually a reasonable suspicion standard. If they have some articulable reason disciplinary-wise for why they are going to search your child’s locker, their backpack, whatnot, they can do so. It has to be reasonable. Like, for example, if they think the child has cigarettes, they can’t strip search them. But they could search their backpack, they could search their locker.

On the other hand, if the child is suspected of having a weapon, that might justify a strip search because, again, it’s a serious security threat. The cigarettes could be considered a disciplinary issue, but it’s not the same security threats as like a weapon. So it’s different standards.

Searches at the Behest of Law Enforcement

What about if it’s at the behest of law enforcement? Well, in that case, now you’re talking probable cause. But, again, it has to be at the direct behest of law enforcement. For example, if the cops have probable cause to believe your student is in possession of cocaine, for example, just to give an instance, then they could approach the school and ask the school to toss the locker to look for cocaine or any other contraband that might be present there. And that’s a valid search.

On the other hand, they can’t just randomly say, hey, we want to toss this kid’s locker and not have a particular articulable reason and do that. If the school complies, in all likelihood, the evidence would be excluded. However, an interesting wrinkle with lockers, the law is going to generally consider the locker to be property of the school and not the student. And so your expectation of privacy in that locker is not the same as your backpack, for example.

And why that matters is that the rule we generally use for what’s considered a search or not, the fundamental baseline rule as a case, is the Katz case. And the Katz case was where the Supreme Court originally articulated this idea of expectation of privacy vis-a-vis when it’s considered a search for the purposes of the Fourth Amendment or not. So one might argue that you do not have the same expectation of privacy in your school locker as you might have on you as, you know, like your person, i.e. whatever you have on your body or your backpack. Arguendo. So it’s a little bit of a different standard there is what I’m getting at.

Consult with a Lawyer for Your Child’s Protection

Now, one thing to be aware of, if your child is ever searched at school for any reason at all, this is a good reason to consult with a lawyer. A place where you can find a good family lawyer in Oklahoma is at Dads.Law, where fathers are not disposable.