Request By:
Mr. Robert L. Anderson
Assistant Principal
Casey County High School
Liberty, Kentucky 42539
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the Assistant Principal of the Casey County High School you have asked the Office of the Attorney General for an advisory opinion on the following question:
"Can the administrator (s) in charge of a high school, e.g., principal, assistant principal, search the vehicle of a student when the vehicle is on school property and when the administrator feels action of the student warrants the search for controlled substance?"
From your letter it is evident that you are aware your question presents for our consideration whether such action by a school official infringes upon any of the students' constitutional rights and specifically as regards protection against unreasonable search and seizure.
The brief factual background which prompted your opinion request was that in the morning of a school day before school had begun upon your arrival at school you noticed four students rush to a vehicle which had just pulled into the student parking lot. You stated your school has rules intended to prohibit students from sitting in vehicles after arriving at school and throughout the day. You further stated you went to the vehicle to bring the students to the school building and when the students opened the doors of the car, the odor of marijuana was quite prevalent. You then asked the driver if you could search the car. The driver did consent to your searching the car and you did find a marijuana cigarette. The students subsequently admitted their involvement with the smoking of the marijuana cirgarette. You question whether it would have been constitutionally acceptable for you to have searched the car had the student/driver refused you permission to do so.
There are scarcely any reported cases involving the validity of a search of a student's car on school property by school officials. There are only a very few cases of searches of students' persons or their lockers or desks by school officials. Many of the cases that have been found have considered the evidence seized in a search by a school official for purposes of a criminal prosecution and not its use in a school disciplinary proceeding. In light of this topic presenting something other than path-worn ground, we intend in this opinion to expansively consider search and seizure and the Kentucky school student.
Constitutional Applicability
Your question is one involving the Fourth Amendment to our United States Constitution applicable to the states through the Fourteenth Amendment. The Fourth Amendment protects:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."
The Kentucky Constitution counterpart is Section 10 which provides that:
"The people shall be secure in their persons, houses, papers and possessions, from unreasonable search and seizure; and no warrant shall issue to search any place, or seize any person or thing without describing them as nearly as may be, nor without probable cause supported by oath or affirmation."
Each of the above noted constitutional sections vouchsafe security to citizens against unreasonable search and seizure.
Trevathan v. Commonwealth, Ky., 384 S.W.2d 500 (1964). It is then unreasonable state action, governmental intrusion, that is prohibited. The United States Supreme Court has long ago held that the Fourth Amendment does not protect an individual against searches and seizures conducted by private persons not acting on behalf of the government.
Burdeau v. McDowell, 256 U.S. 465 (1921). The Fourth Amendment has also been construed as to not protect places but people.
Katz v. United States, 389 U.S. 347, 353 (1968). The United States Supreme Court has just recently reiterated that in Fourth Amendment considerations, there is a need to focus on whether there was a legitimate expectation of privacy protected by the Fourth Amendment.
Rakas v. Illinois, U.S., 50 L. Ed. 2d 387, 99 S. Ct. (decided December 5, 1978). Mr. Justice Powell, in his concurring opinion in Rakas, stated:
"The ultimate question, therefore, is whether one's claim to privacy from government intrusion is reasonable in light of all the surrounding circumstances." 58 L. Ed. 2d at 406.
The above brings forth two issues to consider. One is whether students are protected by the constitutional provisions regarding unreasonable search and seizure. The second is whether public common school teachers, administrators and other school officials in Kentucky are state actors or private persons within the scope of the Fourth Amendment and Section 10.
The school environment presents special characteristics for application of constitutional principles.
Tinker v. Des Moines Community School Dist., 393 U.S. 503, 506 (1969). Probably the most often paraphrased language in the Tinker opinion is that "students . . . (do not) shed their constitutional rights . . . at the schoolhouse gate." Id. Beyond peradventure, we believe it can be said and concluded that a student in Kentucky's public common schools has the constitutional right to be secure in his or her person from all unreasonable searches and seizures.
The answer to the second of this first set of issues is also fairly easily reached. Teachers and administrators and other school officials are responsible for the public education in Kentucky and are charged with the responsibility of implementing the rules and regulations of the Commonwealth (State Board for Elementary and Secondary Education) for the control and management of the common schools, KRS 156.160, and also through local board rules and regulation for schools in a school district, KRS 160.290(2). Pursuant to KRS 161.180, as amended in 1978, teachers and administrators are directed to hold each student to a strict account for their conduct. Also, under KRS 158.150, as amended in 1978, a superintendent, principal or head teacher may suspend and a local board of education may expel any student who is found to have failed to comply with the lawful regulations of the school or who has committed other specific acts of misconduct which constitute "cause" under the statute. For both KRS 161.180 and KRS 158.150, the geographical scope is for conduct on school premises and off school property at school sponsored trips and activities. In view of the responsibilities of teachers and school administrators in Kentucky and in view of the determination by our Kentucky appellate courts that teachers and administrators are state officers or employes [
Cottongim v. Stewart, 283 Ky. 615, 142 S.W.2d 171 (1940);
Board of Education of Graves County v. DeWeese, Ky., 343 S.W.2d 598 (1960)], we believe they are creatures of the Commonwealth and are within the purview of Fourth Amendment restraint upon activities of the government. We find no valid support for an argument found in some school search and seizure cases that teachers are for Fourth Amendment purposes to be considered private individuals. See, e.g., In re Donaldson, 269 Cal. App. 2d 509, 75 Cal.Rptr. 220 (1969) and
People v. Stewart, 313 N.Y.S. 2d 253 (1970).
For purposes of the Fourth Amendment and students in determining the reasonableness of a search, it is argued that the social utility of the search must be balanced against the students' reasonable expectation of privacy.
State v. Young, 216 S.E.2d 586, 589 (Ga. 1975); see
State v. Baccino, 282 A.2d 869 (Del. 1971). A search of a student by a school official is generally reasonable if it bears a rational relationship to a legitimate education interest which the school official was pursuing in conducting the search. S. Davis, Rights of Juveniles: The Juvenile Justice System, 66 (1974). The determination of whether a particular search conducted by school officials was reasonable depends upon a number of factors, including the nature of the place to be searched, the existence or absence of school customs or regulations allowing inspections by school officials, the scope of such regulations, the purpose for which the search was initiated, and the extent to which the court determines that the in loco parentis doctrine is applicable." Annot., Admissibility, in Criminal Case, of Evidence Obtained by Search Conducted by School Official or Teacher, 49 A.L.R.3d 978, 981-982 (1973).
In Kentucky, as in most states, school teachers and administrators stand in loco parentis to pupils under their charge. See
Casey County Board of Education v. Luster, Ky., 282 S.W.2d 333, 334 (1955). The philosophy of in loco parentis is that school officials take the place of parents with regard to the education and protection of children while they are at school. In undertaking this less than full parental role, school officials are vested with the powers of control, restraint and discipline over the students to achieve the goals of education. Davis, supra, at 62. Teachers and administrators in Kentucky are, as was noted earlier, to hold students to a strict account for their conduct. KRS 161.180. Teachers and administrators are empowered to exercise disciplinary measures for purposes which are consistent with the need to maintain an effective educational atmosphere and for compliance with reasonable rules and regulations regarding the conduct of pupils. KRS 160.290(1), KRS 160.340, and KRS 158.150. Also, see
Owens v. Commonwealth, Ky., 473 S.W.2d 827 (1971) and
Dorsey v. Bale, Ky., 521 S.W.2d 76 (1975).
As a factor affecting reasonableness, the question then becomes, as stated in
State v. Baccino, supra, 282 A.2d at 871, "what is the relationship of the doctrine of loco parentis to the Fourth Amendment. " We agree with the conclusion reached in Baccino at 872 that "the doctrine of loco parentis * * * must be balanced against the students' Fourth Amendment rights to determine whether or not those rights have been violated." The Court in Baccino goes on to say that "the only question remaining is the standard to be used to strike the balance." Id.
It is our belief that while the Fourth Amendment applies to prohibit unreasonable searches relating to Kentucky students by school teachers or administrators, the doctrine of in loco parentis permits a lesser standard than probable cause for a search to be reasonable. Some courts which have taken this viewpoint, and there is definitely a split of authority as well as splits on the courts themselves, consider the lesser standard to be one of "reasonable suspicion. " See, e.g.,
State v. Baccino, supra;
Nelson v. State, 319 So.2d 154 (Fla. App. 1975). Other courts have referred to the lesser standard in order to uphold a teacher's or administrator's search as reasonable in terms much like that expressed in
Bellnier v. Lund, 438 F.Supp. 47 (N.D. N.Y. 1977). In that case the federal district court stated as follows:
"This Court holds that, while there need not be a showing of probable cause in a case such as this, there must be demonstrated the existence of some articulable facts which together provided reasonable grounds to search the students, and that the search must have been in furtherance of a legitimate purpose with respect to which school officials are empowered to act, such as the maintenance of discipline or the detection and punishment of misconduct. (Citations omitted.) In making such an analysis, some factors which warrant consideration are: 1) the child's age; 2) the child's history and record in school; 3) the seriousness and prevalence of the problem to which the search is directed; and 4) the exigency requiring an immediate warrantless search."
See also
State v. McKinnon, 558 P.2d 781, 784 (Wash. 1977).
Before going on to consider several types of situations in light of our conclusion above on the manner in which the Fourth Amendment is applicable to students in Kentucky, we want first to sound a note of warning that the lesser standard of "reasonable suspicion" is premised upon a search without any pre-existing or concurrent involvement of law enforcement officers. We believe the effect of the doctrine of in loco parentis and the lesser standard for reasonableness is lost or is at the least seriously impaired where a teacher or administrator conducts a search with or prompted by law enforcement officers. Law enforcement officers are held, with very limited exceptions, to search only upon a warrant based on probable cause. In the situation where a search is conducted by a law enforcement officer with a school officer without consent, without a search warrant, and without any of the case law delineated exceptions existing (e.g., search incident to lawful arrest), the evidence seized would most likely be subject to the exclusionary rule (not available to be used as evidence to convict) in any criminal action and some case authority would support a conclusion that the evidence seized could also not be used in school disciplinary actions. See
United States v. Calandra, 414 U.S. 338 (1974).
Also Smyth v. Lubbers, 398 F.Supp. 777 (W.D. Mich. 1975), a college dormitory search case and the dissent in
State v. McKinnon, supra. For a consideration of school officials in loco parentis relationship to students with respect to involvement at school with law enforcement officers, see OAG 76-129 and OAG 78-716, copies attached.
The Nature of the Place Searched
As noted earlier, the nature of the place searched is an important factor. The nature of the place to be searched by school officials in student-related cases has been looked at closely. See Phay and Rogister, Searches of Students and the Fourth Amendment, 5 J. Law & Ed., 57, 64 (1976). We again mention here that while the Fourth Amendment protects people, not places, the nature of a place may have considerable bearing upon whether a person has a legitimate expectation of privacy in the place searched.
Rakas v. Illinois, supra, and
Katz v. United States, supra.
Looking first at searches of desks and lockers, the courts have indicated a relatively wide degree of latitude under certain circumstances. Part of the reasoning behind this sounds like a proprietary property theory but such is not really the case. It is true that in many schools, desks and lockers are very much under the ultimate custody and control of school officials. More than this, however, is the fact that the students' legitimate expectation of privacy in school lockers is quite limited. One court characterized the typical lockers/ desks situation by saying the student could only reasonably expect privacy from other students but not school officials. See
State v. Stein, 456 P.2d 1 (Kan. 1969). The reasonableness of the search of the locker or desk of a student and conversely the legitimate expectation of privacy of the student will be affected by the presence or absence of various circumstances, not the least of which is a published local board of education policy regarding the reservation for school officials of the right to inspect the contents of school lockers or desks. See Knowles, Crime Investigation in the School: Its Constitutional Dimensions, 4 J. of Fam. Law, 151, 165 (1964). One writer has suggested four circumstances which enhance the reasonableness of a search of a locker or desk by school officials:
"(1) The search is based on reasonable grounds for believing that something contrary to school rules or significantly detrimental to the school and its students will be found in that locker;
(2) The information leading to the search and the seizure are independent of the police;
(3) The primary purpose of the search is to secure evidence of student misconduct for school disciplinary purposes, although it may be contemplated in appropriate circumstances the evidence would also be made available to the police. If evidence of a crime or grounds for a juvenile proceeding is lawfully obtained by school personnel, it may be turned over to the police and used by them;
(4) The school has keys or combinations to the lockers and the students have been placed on prior notice that the school reserves the right to search the lockers. "
Eric Olson, "Student Rights - Lockers Searches," The NASST Bulletin, Vol. 55, No. 352 (Feb. 1971), pp. 49-50, cited in Giessellman, A Legal Guide for Development and Administration of Pupil Personnel Policy, 52 (1976).
A brief consideration in connection with the search of lockers by school officials is needed regarding what is sometimes referred to as an "administrative search." This class of search springs from the holding in a couple of United States Supreme Court cases which approved a lesser standard of probable cause to justify administrative searches to enforce municipal codes.
Camara v. Municipal Court, 387 U.S. 523 (1967) and See v. City of Seattle, 387 U.S. 541 (1967); also Pay and Rogister, supra, at 66. The Supreme Court carefully pointed out in these cases, however, that the administrative search must be neither personal in nature nor aimed at the discovery of evidence of crime. By analogy, then, a locker search by a school official cannot be termed an "administrative search" unless it is a general search of all lockers for the purpose of enforcing school policies or regulations for health, safety or educational order. As suggested in the Phay and Rogister article, a general search of all lockers for "rotting food, missing library books, or overall cleanliness" could be, under most circumstances, an administrative search; and, the fact that contraband, stolen articles, controlled drugs, alcoholic beverages or dangerous weapons, or the like, were inadvertently discovered during the administrative search would not void the search of its special characteristics. Compare
Coolidge v. New Hampshire, 403 U.S. 443 (1971) and United States v. Hare, No. 78-5220 (6th Cir., decided Jan. 8, 1979). Thus, any such unlawful items found could stand as evidence and as a basis for cause in possibly a suspension or expulsion hearing. KRS 158.150.
The second class of searches is that of a student's person. Searches of a student's person should be and have been by the courts measured for reasonableness against a more rigid criteria than locker or desk searches. The principal reason for this is very simply the feeling that a student has a more legitimate expectation of privacy of his or her person. The search of a student's clothing, accessories (purse, wallet, booksack, notebooks, gym bag), or his body, is a much greater intrusion of the student's privacy. Still, it seems the courts which have balanced Fourth Amendment rights of the student against stated society necessity, accompanied by the loco parentis of the school officials, have generally utilized, in regard to student person searches, the lesser standard of "reasonable suspicion. " See
State v. McKinnon, supra;
State v. Baccino, supra, and State v. Young, supra. Contra, see
State v. Mora, 307 So.2d 217 (La. 1975). Also, contra, Buss, "The Fourth Amendment and Searches of Students in Public Schools," 59 Iowa L. Rev. 739 (1974). Again we stress the importance of considering the purpose of the search, that is, whether the search is for maintaining order for a proper educational atmosphere or for the safety and welfare of all students, rather than for the purpose of crime detection and criminal prosecution. Also, we refer back to the factors mentioned above taken from
Bellnier v. Lund, supra.
The child's age is quite critical concerning any class of search but this factor must be highlighted as regards a search of a student's person. The rationale behind the reasonableness of a search of the person of an elementary age child was well said in the Knowles article, supra, at pages 155-156:
"A school may search the person of young school children providing the search is in good faith for a school purpose. Searches of this nature may be justified on several grounds. A principle basis is implied parental consent, positing that parents delegate to the school certain parental rights over the child while the child is in the custody of the school. The dimensions of the delegated right are greatest at the lower age levels and at these levels would seem to include the right to search. Another reason tending to support the searches of elementary school children is that the school owes a duty to all children within its custody, and implicit in this duty is the power to protect children from other children. Consequently, if the purpose of this search is to uncover objects dangerous to children, the search is permissible. A third, and negative, basis for supporting the right to search children in the elementary schools is that the children have not reached the age of criminal responsibility, thus placing the search beyond the spirit of the constitutional safeguard against unreasonable searches and seizures. "
Even with the support behind teachers and administrators having the authority to conduct a reasonable search of an elementary age child's person, we caution school officials and suggest searching the person of the child in the presence of another teacher or administrator and out of the presence of the student's peers. And, so as to not be misunderstood, a search of the person may be conducted without a physical touching by the school teacher or official. "A search is made if the teacher compels the student to produce or at least expose matter otherwise covered from the plain view of the teacher. " Knowles, supra, at 153. Also, we believe it advisable not to "strip search" students of tender years or, for that matter, older students about which we will discuss below. See
Bellnier v. Lund, supra, a strip search of all students in a fifth grade class after a shortage of three dollars was discovered.
The parameter is tightened regarding a search of the person of an older student by a school official. One reason for this is the reaching of the age of criminal responsibility and a second reason is the purpose behind conducting such a search is more likely to involve activity which amounts to criminal conduct. Unlike with elementary age children where a school teacher or administrator may have an obligation to search, if a student is suspected of having items in his or her pockets or in a purse or booksack that not only could hurt the child but others, e.g., a knife or firecrackers, the fruits of a search of an older student are more likely to be controlled substances, weapons, contraband, and the like. Even of the primary purpose of a search of an older student is based upon reasonable suspicion and the purpose of the search is for possible school disciplinary action and not criminal prosecution, it must be remembered the "causes" upon which suspension or expulsion may be based are very much with overtones of criminality. KRS 158.150 (e.g. "possession of alcohol or drugs;" "stealing . . . of school property or personal property;" "the carrying . . . of weapons or dangerous instruments.") For representative cases approving and disapproving of the search of an older student, compare
State v. McKinnon, supra, with
Picha v. Wielgos, 410 F.Supp. 1214 (N.D. Ill., 1976). The Court in Picha based its decision in part on the cooperative conduct of the school officials and law enforcement officers in what was characterized as a search of the person in the nature of a criminal investigation. 410 F. Supp. at 1220. The Court concluded the higher standard of probable cause was needed to have justified the search.
Thus, we believe, all in all, a search of the person of an older student should be undertaken only under exigent circumstances. If the search is conducted, it should be supported by well-founded reasonable grounds to believe that the fruits of the search will be items prohibited under well delineated and published policies or regulations of the school, and that the objective of the search, if prohibited items are found, will be only to subject the student to school disciplinary action. Handled in this manner, the search of the older student should retain the trappings of actions taken under loco parentis. If it is felt by the teacher or administrator that the fruits of the person search will most likely be objects with a criminal element, and that the items would be turned over to the police for prosecution, we strongly advise school officials to pass the information behind their "reasonable grounds to believe" to the police for consideration and handling.
The last class of student searches to be covered in this opinion is even more hesitatingly gotten into than the first two discussed above. The undeniable "fact that the law is markedly unsettled on the issue of student searches in school,"
Bellnier v. Lund, supra, at 55, is a true understatement when the additional factor of the automobile is considered. As stated by the Supreme Court of Kentucky in a case decided on February 27, 1979, Gallman v. Commonwealth, No. 78-SC-394-NR, "the cases considered by the United States Supreme Court concerning automobile searches in recent years have been far from definitive." And these cases did not even involve students and school officials.
We go back to the beginning to reiterate the usual rule that the Fourth Amendment is applicable to protect against unreasonable searches and seizures unless based upon probable cause. In a criminal context, only in carefully defined and delineated cases is a search and seizure not based upon a probable cause warrant and without consent upheld. A search incident to a lawful arrest is one of the limited exceptions to the usual rule. There may exist an automobile exception. In a most recent, albeit split five-to-four decision of the
United States Supreme Court, Rakas v. Illinois, supra, in a concurring opinion, it was noted that "nothing is better established in Fourth Amendment jurisprudence than the distinction between one's expectation of privacy in an automobile and one's expectation when in other locations." 58 L. Ed. 2d at 408. The reasoning behind the distinction rests with the fact ". . . automobiles operate on public streets; they are serviced in public places; they stop frequently; they are usually parked in public places; their interiors are highly visible; and they are subject to extensive regulation and inspection." Rakas, 58 L. Ed. 2d at 408, fn. 2.
We have been able to find very few cases involving the search of a student's car in a school context or even in a criminal situation. The chief case of a warrantless search by school officials of a student car parked on school premises is
Keene v. Rodgers, 316 F.Supp. 217 (D.Me. 1970). We find very little comfort in the Keene decision, both as to the facts and the law. Briefly, the facts of the Keene case were that a senior at the Maine Maritime Academy, a state and federally supported quasi-military educational institution, was asked by a school official to unlock the doors of his automobile, based upon the witnessing of American flags hanging across the windows of the vehicle. The student did not protest the school official's request and unlocked the vehicle. Inside were found a frayed American flag, a can of bear, and marijuana in a small metal card file. The federal district court found the search to not have violated the Fourth Amendment. The Court specifically noted that the school official was not a federal or state law enforcement officer. The Court concluded that: "Quite plainly, the search was conducted solely for the purpose of enforcing the Academy Rules and Regulations and of insuring proper conduct and discipline on the part of a cadet." 316 F.Supp. at 220.
We have determined and concluded early in this opinion that Kentucky teachers and administrators are part of the government to which the Fourth Amendment applies. The fact that the teacher and administrator are not law enforcement officers does not preclude the need for the protection of students' constitutional rights. We also believe the facts in the Keene case are more consistent with a college setting and reference was made to college cases in the judge's decision. College situations, for purposes of search and seizure, are generally viewed differently than school age circumstances. Cf. OAG 76-671, copy attached.
One other case involving the search of a student's car, distinguishable from the facts in Keene, is also not helpful. In
Caldwell v. Cannady, 340 F.Supp. 835 (N.D. Tex. 1972), the federal district court was reviewing the legality of the expulsion of students who had been found in possession of dangerous and narcotic drugs in their automobiles. However, in this case the search of the student's automobile was conducted by law enforcement officers after school hours and not on school property. The Court found the search without a warrant to have been unreasonable and that the evidence obtained by the peace officers could not be used as a basis for expelling the student from school. The Court did conclude in a situation where the search by the peace officers was reasonable, that the evidence could be properly considered by the school board in an expulsion hearing.
Thus, we know of no school cases in point to support a conclusion one way or the other regarding the facts you have given us. Criminal cases involving the search of an automobile are generally not applicable. Nevertheless, we believe under exigent circumstances a teacher or administrator may search a student and a student's car when he or she is in it.
In support of our conclusion relative to the car search we look first to various concerns that have been considered regarding students driving to school. This office has concluded in an opinion that a local board of education may not adopt a regulation banning the driving to school by students or the limiting of transporting by students of other students. OAG 74-783, copy attached. We do not believe that opinion can be extended to suggest that a local board of education is unauthorized to regulate the parking of students' cars on school premises or to regulate access to the cars so as to gain some order which will minimize danger to other students and eliminate disruption in the daily program of the school and undesirable activity which is against other lawful and reasonable school regulations.
You referred in your letter to school rules which deny students from sitting in vehicles upon arrival to school and until dismissal time. When, as under the facts given by you, the primary purpose for you going to the automobile was not in the furtherance of a criminal type of investigation but for enforcement of a reasonable policy of the school, we believe a search conducted of the vehicle based upon the reasonable grounds to believe other school regulations were also being violated (i.e., possession of drugs), is a reasonable search when balanced against the expectation of privacy of the student otherwise protected by the Fourth Amendment. We do note that the other students in the car even for criminal prosecution purposes would probably lack standing to complain of the search of the automobile at all under the reasoning of the United States Supreme Court in the recent case of
Rakas v. Illinois, supra.
We do not believe a student's car may be lawfully searched by school officials when the student is not in or about the car nor do we believe the car can be searched by the school officials after the student has been taken to the car by the school officials. The anticipated fruits of a search of a student's car would most likely be for items associated with criminal misconduct and the student is of the age of criminal responsibility. Even if only school disciplinary action would result, extreme reluctance should be exercised before a search of an automobile is conducted by the teacher or administrator.
The facts you have given us cause us to consider another as ect of search and seizure cases that permeates all three classes of situations discussed. That aspect is consent to a warrantless search. The case law recognizes that a voluntary consent by an individual with the power to give it will justify a search that would otherwise be illegal. See Buss, supra, at 776;
State v. Stein, supra. To be voluntary a consent must be freely and knowingly given. For a student's consent to be considered voluntary several obstacles must be overcome, the first of which is the position taken by the courts regarding the inherent unreliability of actions taken by children that has prejudiced their constitutional rights. That is, a consent that affects constitutional rights is closely scrutinized by the courts and especially so regarding children. The second is the position taken by the
United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218 (1973) that the failure to advise a person of his rights not to consent is a relevant factor to be considered on the issue of voluntariness. See
State v. Stein, supra, and Buss, supra, at 778, and Knowles, supra, at 154, 163. The third obstacle is that it is not a valid consent if the search is the result of coercion in response to a school official's demand. The pressures involved, especially with older aged children, of a school official attempting to gain consent to search by laying out alternatives of not consenting, such as calling the police, militate against any voluntary consent by the student.
Consequences of an Unconstitutional Search
The last issue to be briefly discussed in this opinion on search and seizure rights of students in Kentucky is what may happen if a teacher or administrator conducts or participates in an unreasonable search. See Knowles, supra, at 157. One possibility would be an action in a state court for damages on the theory of invasion of privacy or trespass and with a search of a student's person a possible claim of assault and battery. In federal court, relief for damages could be sought by filing a civil rights action under 42 U.S.C. § 1983 for violation of Fourth Amendment rights. See
Potts v. Wright, 357 F.Supp. 215 (E.D. Pa. 1973);
Picha v. Wielgos, supra, and
Bellnier v. Lund, supra.
Conclusion Summary
The case law at the present time tends to support under certain circumstances searches by school teachers and administrators. Local boards of education need to delineate rules, regulations or policies regarding various classes of searches to inform the students of the manner and under what circumstances a search may be conducted. The purpose underlying a search is an extremly critical factor. A search should be conducted only if it is based on reasonable suspicion or reasonable grounds to believe that the search will uncover activity that is inimical to the safety and welfare of a student or other students or activity which is antithetical to the educational atmosphere of the school. The teacher and administrator must remember they have an obligation to act in good faith in their position of loco parentis to the students. The very essence of their limited authority to search students, who do have constitutional rights to be free from unreasonable searches and seizures, is based upon the felt need for a careful balance between the interest of the school and the student's interest. We believe searches by school officials handled within the admittedly broad standards discussed in this opinion will more likely than not be considered reasonable for purposes of the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution.