What 4th Amendment privacy rights does my minor child have at school?
What if the police are involved?
The Fourth Amendment to the U.S. Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” from the State, including public schools.
Generally, students have a reasonable expectation of privacy in their personal items, like clothing, bags, vehicles, and cell phones. A school official conducts a “search” by inspecting a student’s person or property. A search includes opening a backpack; reviewing the contents of a cell phone or personal electronic device; or requiring a student to empty their pockets or undergo a “pat down.”
Whether a search is “reasonable” usually depends on balancing the intrusiveness of the search with appropriate privacy protections. In New Jersey v TLO, 469 U.S. 325 (1985), the U.S. Supreme Court held that the Fourth Amendment applies to students in public schools but concluded that student privacy rights are often diminished in a school environment.
Schools do not need a warrant or even “probable cause” before searching a student. Instead, the general standard for student searches is “reasonable suspicion.” School policies and student handbooks may alter or eliminate students’ privacy expectations in school-owned items by notifying students that no privacy exists in desks, lockers, and district-issued technology.
Reasonable Suspicion Required
The fundamental factor determining the legality of any student search is the reasonableness of the search involved. Determining the reasonableness of a student search in the school setting is a two-part inquiry:
- Was the search justified at its inception?
- Was the search reasonable in scope?
For a search to be justified at its inception, school officials must have reasonable suspicion. In other words, where students have an expectation of privacy and school officials want to conduct a search, school officials must have reasonable grounds to suspect that the search will produce evidence that a student violated either the law or school rules.
Whether a search is reasonable may depend on what the school official is searching for. When searching a student’s person or belongings, reasonable suspicion exists when a school official has objective, articulable grounds to suspect that the search will provide evidence that the student is violating the law or a school rule.
For example, reasonable suspicion is likely established if the school official sees drug paraphernalia or alcohol or if the school official observes physical factors indicating intoxication, e.g., slurred words, glassy eyes, or smell of alcohol or drugs.
How a Minor Stopped By School Authority/Police Should Act
Michigan law requires that before police can interrogate a minor (under the age of 17) in custody, they must first provide the minor’s parents or legal guardian with notice of the interrogation and an opportunity to be present during the interrogation.
Under Michigan’s Juvenile Code, a “custodial interrogation” means any questioning of a minor by a law enforcement officer, or any person acting on behalf of a law enforcement agency, while the minor is in custody, or when the officer or person conducting the interrogation should know that the minor is likely to incriminate themselves.
The law requires that the notice to the parents or legal guardian must be provided in writing or orally, and must include a statement of the child’s right to remain silent, the right to have an attorney present during questioning, and the right to have an attorney appointed if they cannot afford one.
Therefore, in Michigan, police generally must provide notice to the parents or legal guardian of a minor and provide them an opportunity to be present during any custodial interrogation of the minor. However, there are exceptions to this rule, such as in cases of emergency or where the minor’s parent or legal guardian cannot be located despite reasonable efforts.
A minor child needs to comply with a police officer if they are asked to give basic information i.e. their name and address. After giving the police officer this information, politely tell the law enforcement agent that you want to contact your parent, lawyer, and other adult responsible for the minor’s welfare before answering further questions. When dealing with law enforcement a minor needs to know that:
- The minor has the right to ask for the presence of a lawyer, legal representative, or parents before they answer questions.
- School law enforcement or security can search the minor’s locker or their car while on school property. Many schools also are allowed to examine bags and other items that are brought onto school property. You have no expectation of privacy with school property.
- Students should not allow law enforcement to search their cell phones without their attorney present/a signed search warrant.
Every parent should prepare their young minor child on how to deal with police or school security respectfully but without giving up their rights.