Search And Seizure – Search Of High School Student

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Where a public high school student, suspected of truancy, was subjected to a search of his person, marijuana found during that search should have been suppressed at the student’s delinquency proceeding, as the search was unreasonable.

Delinquency finding vacated.

Unjustified Search

“This case presents the question whether, consistent with the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, a public school administrator may search a student premised solely on that student’s violation of a school rule unrelated to the possession of contraband or the threat of violence. We hold that, in the circumstances of this case, the search of the student was unreasonable and therefore barred by the Fourth Amendment. …

“Turning to the facts of this case, it is undisputed that the only basis for the search was Damian [D.]’s truant behavior (i.e., being out of the school building and missing a class on Friday, and not being in his proper class on Tuesday when he failed to attend his disciplinary hearing) and his failure to bring his mother to school on Monday to meet with the housemaster about his truant conduct. School officials had no evidence that suggested Damian was in possession of contraband when they searched him on Tuesday, October 26, [1999], or that he had violated any law or any school rule other than truancy. There was no testimony at the motion hearing that Damian’s physical appearance or conduct suggested his use or possession of contraband, or that school officials had received information from any source that Damian was in possession of or had ever been in possession of contraband in school.

“The assistant headmaster contended the ‘administrative search’ was appropriate because the student had violated school rules, and a violation of school rules is an adequate basis under the Boston public school policy on the subject of student searches, to justify a search. This contention is based on a misunderstanding of the [New Jersey v. T.L.O., 469 U.S. 325 (1985)] decision and a misreading of the Boston public school policy. Both are consistent in limiting student searches to those occasions when the school administrator has reasonable grounds to believe that the search will yield evidence that the student has violated or is violating either the law or the rules of the school. A violation of school rules, standing alone, may or may not provide reasonable grounds for such a search. It will depend on whether the specific facts of the violation create a reasonable suspicion of wrongdoing, the evidence of which is likely to be found in a search of the student. In this case, we conclude that they do not.

“Damian was not searched for evidence of his uncontested truancy; he was searched for contraband. It was pure speculation to conclude that, because Damian was out of class for a period of time during the day, he was likely to have contraband. The possibility that he had contraband with him when he missed his class and his hearing on Tuesday, seems no more likely than the possibility that he had no contraband at all. Indeed, because he voluntarily appeared at the housemaster’s office after missing the hearing, it would seem more likely that if there had been contraband it would have been gone by then. In any event, the school administration had neither empirical data nor information of an individualized nature from which any reasonable conclusion about either of these possibilities could have been drawn. Damian’s unexplained failure to bring his mother to Monday’s scheduled meeting added nothing of relevance to the factual basis on which the school claims the search was reasonable. Possibility and speculation, like hunches and unparticularized suspicion, do not constitute reasonable grounds for the search of a student. The search was unreasonable at its inception.

“Because we conclude that the search of Damian did not meet the reasonableness standard required by the Fourth Amendment, we need not address the constitutionality of its scope, or whether art. 14 imposes a standard stricter than reasonableness on student searches. We vacate the judge’s order denying the motion to suppress. The finding of delinquency is vacated and a finding of not delinquent shall enter.”

Commonwealth v. Damian D. (Lawyers Weekly No. 10-139-01) (9 pages) (Cordy, J.) (SJC) Motion to suppress heard by Nasif, J.; case heard by Lewis, J., in Juvenile Court. Kenneth J. King on appeal for the juvenile; Joseph M. Ditkoff for the commonwealth; Peter M. Onek submitted a brief for amicus curiae Committee for Public Counsel Services; Brigid Kennedy-Pfister submitted an amicus curiae brief for the Children’s Law Center of Massachusetts; Thomas F. Reilly, Barbara F. Berenson an Pamela L. Hunt submitted a brief for the Attorney General, amicus curiae (Docket No. SJC-08457).

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