A police officer walks up to a student on campus who is carrying a large wad of cash and cigarette rolling paper. The police officer reasonably assumes the student is a drug dealer, so the officer requests to search the student’s backpack. The officer finds marijuana in the student’s backpack and immediately arrests the student. However, due to the fact that the officer had only reasonable suspicion to search the student and not probable cause, all legal charges against the student are dropped.
This scenario involves reasonable suspicion and probable cause, both levels of standards of legal proof. Reasonable suspicion is more proof than a hunch, but less proof than probable cause. These levels of proof are important to know to figure out when someone can be frisked, searched, arrested, and convicted.
According to Cornell Law School, probable cause is defined as “reasonable basis for believing that a crime may have been committed or when evidence of the crime is present in the place to be searched.” Cornell Law School defines reasonable suspicion as “ specific reasonable inferences which [one can] draw from the facts in light of experience.”
In the original scenario, since the student is following the law and the officer is only making an inference on what the student could be doing, the police officer has reasonable suspicion, but not probable cause. Schools are allowed to use this evidence in a disciplinary hearing because the officer had reasonable suspicion, but the officer can not use this evidence in a court of law because he did not meet the criteria for probable cause.
Education law attorney Rich Kitchens said that schools do have the right to search students without probable cause due to the case New Jersey v. T.L.O. of 1985, but the school instead has to follow reasonable suspicion.
Kitchens said that administrators do not need a parent’s permission to search a student due to the school acting in “loco parentis”: legal term meaning “in place of a parent.” Since parents are legally allowed to search their kids at anytime and the school acts as a parent, the school is allowed to follow the same rules as parents.
Kitchens also explained a concept called the exclusionary rule, which prevents over broad searches. The exclusionary rule applies to police officers, but not teachers or administrators. This means if a teacher has reasonable suspicion that someone in a room has drugs, they are allowed to search every student in that room. If an officer thinks that someone in a convenience store has drugs, they are not allowed to search every single customer to find the one person who has the drugs.
“Most administrators err on the side of safety over privacy, so they sometimes still act even if there is no reasonable suspicion,” Kitchens said.
According to section 6163.4 in the PUSD Ed Code, “An individual search will be conducted if there is reasonable suspicion that a user has violated the law.”
Assistant Principal Irma Muñoz said that there is a gray area around reasonable searches that can make it hard for administrators to navigate when they can search a student or not, especially regarding looking through students’ phones.
Muñoz added that she has rarely had to search students at PHS, and the only times she has were related to drugs.