In the light of Riley v. California and United States v. Wurie, which imposed a warrant requirement for the search of cellular phones incident to lawful arrest, some legal commentators believed the courts were poised to overturn the venerated “reasonable suspicion” standard for search and seizure in a public school context. Over two years after Riley, the 11th Circuit Court of Appeals reaffirmed that New Jersey v. T.L.O. 469 U.S. 325 (1985), is still the applicable standard for school searches in D.H. v. Clayton County School District—Case: 14-14960, filed: 07/29/2016. While the District Court hinted at a higher standard holding that the initial search was not justified in its inception, the Court of Appeals reversed that ruling. The Court of Appeals clearly renounced the “strip search” based on Safford Unified School District #1 v. Redding, 557 U.S. 364 (2009), and other long-standing 11th Circuit precedent. The clear message to the assistant principal in D. H., and other administrators throughout the country, is that you must exhaust all reasonable alternatives before considering a “strip search.”
Facts—There Is No Honor Among Middle School Thieves
The Eddie White Academy is a public K-8 school in Clayton County, Georgia. According to an assistant principal, some students had been found in possession of marijuana, and the presence of marijuana at the elementary school was a “very serious problem.” A School Resource Officer (“SRO”), received information that a 13-year-old student, D.V., possessed marijuana and was distributing it to other students. D.V. was brought before the assistant principal who searched his book bag. No marijuana was found, but D.V. stated that his classmate, R.C., had marijuana. R.C. was summoned to the office but denied having drugs. A backpack search revealed no drugs. However, R.C. stated that another student, T.D., had the marijuana.
T.D. was also summoned to the office. The SRO said, “you know what we’re looking for so you might as well give it to us.” In response, T.D. voluntarily unbuttoned his pants, turned away from the female assistant principal, and retrieved a small bag of marijuana from his underwear. The assistant principal requested a male assistant principal assist with further searching. While the assistant principal shared information concerning T.D.’s revelation, another assistant principal found marijuana in the sock of another student, R.C.. Based on the foregoing, Assistant Principal McDowell (“McDowell”) believed there should be a further search of D.V., with the SRO present. D.V. removed his shoes, socks, polo shirt, turned his pockets inside-out and pulled down his pants. At this point, D.V. was in an undershirt and basketball shorts. McDowell instructed D.V. to turn down his shorts and pulled the elastic band of his underpants away from his waist. He did so briefly exposing his genitals, but no drugs were found. However, a subsequent search of his backpack revealed more marijuana. D.V. then stated that D.H. also had marijuana.
D.H. was brought to the office with McDowell, the SRO, R.C., T.D. and D.V.. The SRO asked D.H. if he had any drugs he replied that he did not. He emptied his backpack which had no drugs. Next, McDowell told D.H. to take off his shoes, empty his pockets, and take off his pants. D.H. was wearing loose underwear with an elastic waistband. D.H. then removed his socks and shirt. Next, he was told to remove his underwear. He asked McDowell if he could continue the search privately in the restroom. The request was denied. D.H. testified that after he pulled his underpants down McDowell “bent over,” “paused for a little bit,” then told him to dress. D.H. had no marijuana. Prior to the “strip search” McDowell did not search his locker, gym locker, or desk. He testified that he had never previously conducted a “strip search” and admitted that he should have granted D.H.’s request to perform the search in the bathroom and there was no reason to perform the search with his classmates present.
The District Court—What Standard Was Applied?
Based on the above facts, D.H. sued McDowell, among others, under 42 U.S.C. §1983 alleging illegal search and seizure in violation of the Fourth Amendment and an unlawful invasion of privacy. McDowell filed a motion for summary judgment asserting that he was entitled to qualified immunity with respect to DH’s federal §1983 claims. The District Court denied the motion, finding McDowell was not entitled to immunity because the search was unreasonable at its inception and unconstitutionally excessive in scope.
Which begs the question, what was wrong with the search up until D.H. was required to publicly disrobe? At the point D.H. was contacted, three students were found with marijuana: T.D., R.C. and D.V.. T.D. concealed marijuana in his underwear and R.C. concealed marijuana in his sock. The majority of the information provided by the accused students was accurate, and McDowell was told D.V. was holding marijuana. At that point, wouldn’t any school administrator believe it was reasonable the search D.V.? And if that is true, McDowell would be entitled to qualified immunity. Setting aside the intrusive nature of the search, the District Court appeared to hold school officials to a more stringent standard, to justify the initial search of D.V.. Perhaps this is the influence of Riley on federal District Court judges.
The Court of Appeal—Perhaps a Different Standard, but the Same Result?
The Court of Appeal was not influenced by Riley in the least. Bearing in mind the Supreme Court’s recognition of the unique nature of cellphones, the Court of Appeal unequivocally stated, “The United States Supreme Court articulated the boundaries of a student’s Fourth Amendment rights in a school setting in New Jersey v. T.L.O. (citations omitted).” The “reasonable suspicion” standard is alive and well in public schools. The court made this abundantly clear by analyzing the constitutionality of the “strip search” in light of the T.L.O. factors.
A. The Inception Prong
In T.L.O., the court established a two-prong inquiry to determine the constitutionality of a school search. First, the search must be “justified at its inception.” A search will be justified at its inception if the school official has “reasonable grounds for suspecting that the search will turn up evidence that the student has violated either the law or school rules.” The appellate court articulated that: 1) illegal drugs’ presence at an elementary school is a serious problem that may justify an invasive search; 2) three other students were found in possession of marijuana; 3) D.V. possessed marijuana and specifically implicated D.H.; 4) McDowell was informed that students had secreted contraband in their socks and underwear. Based on the same facts relied upon by the District Court, the appellate court concluded that these facts demonstrate McDowell’s decision to conduct a strip search was reasonable at its inception.
B. The Scope Prong
While the search was justified at its inception, the appellate court rather easily concluded that forcing D.H. to strip fully naked before his peers was unconstitutionally excessive. In Safford, a female administrator strip searched a 13-year-old girl based on suspicion she was holding Aleve and Advil in violation of school regulations. The Safford court noted that a strip search was inherently embarrassing, frightening and humiliating thus making it a “categorically distinct” type of search, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings. (Safford at 374.).
McDowell even admitted it was unnecessary to force D.H. to remove all his underclothing in front of his peers. He could have searched D.H. in the bathroom as requested. The public strip search made it no more likely that McDowell would uncover marijuana. He also could have searched his desk and locker first, and/or simply required him to pull his waistband away from his underpants rather than exposing all present to full nudity. Due to the invasive and embarrassing nature of the search, the initial justification was no longer sufficient to support the intrusion. Stated differently, the means didn’t justify the end.
Conclusion—Think about It…
On its face, this case appears to be intuitively obvious. You simply do not strip search students. However, this case was much closer than it appears. First, the District Court found the initial search was not justified in its inception. That can be quite troubling in that many of us may have made the same decision. Secondly, the Court of Appeal suggests the intrusion would have been reasonable if it was either less thorough, by pulling of the waistband, or conducted privately. The Fourth Amendment and school searches remain confounding. It is important that school administrators receive periodic training and refresh their knowledge of the law so they do not end up like McDowell. …think about it.
This document is intended to provide you with information recent legal developments. The contents of this document are not intended to provide specific legal advice. This communication may be considered advertising in some jurisdictions.