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Andrew Contiguglia on School Search and Seizure Case

A recent case on the further erosion of Constitutional rights in the schools caught my eye. The news article is here.

Since this is a bit beyond my traditional areas of expertise, and it takes place in Colorado, I asked Colorado Attorney and brother FALA member, Andrew Contiguglia to share his thoughts on the matter. His thoughts were so extensive and well reasoned that I elected to inaugurate a new tradition of inviting guest bloggers to comment on interesting cases (an idea I stole from one of my other favorite bloggers, John Welch)

Without further ado, here is Mr. Contiguglia’s take:

Cell Phones, Text Messages, and the Right to be Free from Unreasonable Searches …

By Andrew J. Contiguglia, Esq.

I first heard about this case getting ready for my workday. I though to myself, “No, this can’t be happening. Have we really gone this far?” And I will admit, that as my day went on, I set the matter on the back burner of my mind trying to reconcile how to deal with the issue. It wasn’t until one of my students (thanks Jeremy F.) brought it again to my attention just before I blasted him with a mid term exam that I realized, this event was something that needed special attention.

Now, let me set the groundwork for the events unfolding in Louisville, Colorado, and specifically at Monarch High School. Colorado, as well as many other schools around our country have been at DEFCON 2 since Columbine, Platte Canyon High School, V Tech, not to mention other outrageous incidents high school student shootings have promulgated over the years. And, rightfully our educators have taken a very solid no tolerance policy toward students who engage in threatening or dangerous behavior. Over my years as an attorney I’ve represented plenty of students who have been the subject of various searches initiated by school officials all under the guise of “student protection.” And in those instances I have been a firm believer that many of the searches have gone way too far. But, this recent incident in Louisville I believe, went overboard.

According to a recent Rocky Mountain News article (read it here),

The inquiry started when a security officer at Monarch High School in Louisville accused a student of smoking and parking in the wrong lot.

Ok, so far so good. The local security officer is doing his job. However, I believe this was a school resource officer, read here a Louisville police officer stationed at Moanrch High — a common practice at many schools in Colorado.

But, as the article continues,

it ended in a “runaway investigation” by school officials who violated the rights of students last May when they confiscated cell phones and transcribed text messages, the American Civil Liberties Union said Wednesday.

Uh, not so good.

Apparently, according to the school district spokesman Briggs Gamblin, school officials consulted the district’s legal counsel before seizing the cell phones and transcribing the text messages and were told the actions were legal. However, according to the ACLU, which drafted a letter to the Boulder Valley School District, this was not entirely how the events unfolded. According to the article,

After the 16-year-old sophomore was taken to the principal’s office, Assistant Principal Drew Adams had him empty his pockets and backpack, looking for cigarettes. No cigarettes were found.

“At that point, the search should have ended,” ACLU staff attorney Taylor Pendergrass said.

But Adams demanded that the student turn over his cell phone, took it and left the office. When he returned, he said he had found some “incriminating” text messages that mentioned marijuana.

By the time the student’s mother arrived, Adams had made transcripts of the messages.

I see this as a complete contrast from the School District’s position. I seriously doubt that in the short time period the student was observed by the “security guard”, taken into the Principal’s office, searched and having his phone confiscated, make a transcript of the texts, did he have the opportunity to contact his counsel and be fully advised on the ramifications of his unlawful and illegal search. Interesting! Believe me there are too many contingencies to be examined before any proper advice could have been given on this subject.

Colorado law is no stranger to this type of administrative behavior. It is founded from US Supreme Court cases. Judging by the facts made public in this case, the circumstances surrounding the taking of the student’s statements and the confiscation of his cell phone makes the evidence inherently unreliable. In Re Gault, 387 US 1, 47 (1967) provides the policy reasons for assuring that actions such as these are free from coercion:

“The privilege against self-incrimination is, of course, related to the question of the safeguards necessary to assure that admissions or confessions are reasonably trustworthy, that they are not the mere fruits of fear or coercion, but are reliable expressions of the truth…In other words, the privilege has a broader and a deeper thrust than the rule which prevents the use of confessions which are the product of coercion because coercion is thought to carry with it the danger of unreliability. One of its purposes is to prevent the State, whether by force or by psychological domination, from overcoming the mind and will of the person under investigation and depriving him of the freedom to decide whether to assist the state in securing his conviction.”

Moreover, it is widely recognized that the particular vulnerabilities of youth may lead children to falsely confess far more often than adults, and that they therefore must be afforded extra protection under the law. Such protection has come to include the right to have their parents present during interrogation in a criminal setting, See C.R.S. §19-2-511 (2001).

For the skeptics out there who side with what the school officials would have you believe, this Student does have rights in the school setting. The United States Supreme Court has long recognized that children have constitutional rights. The Court stated in Tinker v. Des Moines Ind. School District, 393 US 503, 506 (1969), “It can hardly be argued that either students or teachers shed their constitutional rights of freedom of speech or expression at the school house gate.” In New Jersey v. T.L.O., the Court extended these constitutional rights to the arena of search and seizures in the school setting. 469 US 325 (1984). In T.L.O., the Court held that the Fourth Amendment’s prohibition on unreasonable searches and seizures applies to searches conducted by public school officials and is not limited to searches carried out by law enforcement officers. The Court further held that school officials, in carrying out searches and other disciplinary functions pursuant to school policies, act as representatives of the State, and not surrogates for the parents, and cannot claim immunity from the strictures of the Fourth Amendment. Id. at 336-37. In so holding, the Court held that students have legitimate expectations of privacy. The legality of a search by school officials depends on the reasonableness, under all of the circumstances, of the search. Id. at 742. Determining the reasonableness of a search involves a determination of whether the search was justified at the inception, and whether as conducted, it was reasonably related in scope to the circumstances that justified the interference in the first place. Id. at 742-743.

The taking of a student for questioning is a seizure, and the school administration must have reasonable cause for the seizure. Edwards v. Reis, 883 F.2d 882 (9th Cir. 1989).

As set forth in New Jersey v. T.L.O., in order to have sustainable grounds to question this student, the school administration was required to have reasonable cause for the intrusion. 469 US 325 (1984). Based on the facts that are public, this clearly did not exist. The Principal did not witness any activity that he could term as suspicious. This originated with a security guard’s observations. Not to mention, “after the 16-year-old sophomore was taken to the principal’s office, Assistant Principal Drew Adams had him empty his pockets and backpack, looking for cigarettes. No cigarettes were found.” The case, if any, to search and seize was quickly fading. No other evidence came to light until the student’s cell phone was confiscated, searched and transcribed.

The ACLU has taken a firm stance that the administration’s actions violate state statue and federal constitutional law. In addition to what I mentioned above, there is a Colorado statute that makes it a felony to read, copy or record a telephone or electronic communication without the consent of the sender or receiver. The practice also violates state and federal constitutional protection against unreasonable searches and seizures, the ACLU said.

To the contrary, the Boulder Valley School District believes that its search policy trumps the rights of the student. Specifically, the policy states,

A student’s person and/or personal effects, such as a purse, book bag, backpack, etc., may be searched whenever a school authority has reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.

While there is precedent that you can contractually waive certain rights, which would be the only argument to hold water in this case, there is substantial precedence that one cannot contractually waive his/her Constitutional rights. In any event, the ACLU put it best by saying, “But once they found nothing in the pockets or backpack, the administrators should have stopped.”

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