STATEMENT - “…all citizens are guaranteed equal protection, unfortunately this is not always the case. Students – who are generally minors-may not be able to benefit from such a Constitutional rights the same way an adult can.”

Unfortunately, the writer is very much mistaken. In point of fact, since I have been assigned to Alta Loma High School quite a bit of confusion about this subject has become apparent. Perhaps an overview and refresher course in the basics of Citizenship and Government 101 is in order to dispel the misinformation that seems all too common. Before I begin, it will be necessary to correctly define terms so as to clearly understand the principles at hand.

The Fourth Amendment to the United States Constitution reads, “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 persons or things to be seized.”

The Fourteenth Amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The California Constitution echoes the above rights as follows: Article 1, Section 13.” The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and
searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized. Article 1, Section 7(a) “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws…”

Statutory Laws are formal written laws voted upon and enacted by legislative bodies, whether federal, state, city, or county who are in turn empowered and entrusted by citizens who duly elect and appoint them into office by vote. These Statutory Laws are establishing either commanding, or prohibiting something that is according to the common will of the people. These Statutory Laws are placed into codified forms like the Penal Code, Vehicle Code, Fish and Game Code, etc. according to subject matter.

Law Enforcement entities such as the Police, Sheriff, Marshall, Highway Patrol and others enforce these various laws while under the under oath and regulations of the above rules as well as Federal Laws, Civil Liability, Departmental Policy, and Public Opinion.

Reasonable Suspicion is defined as that amount of knowledge or information based on clear and articulate facts that would cause an ordinarily prudent and cautious man under the same or similar circumstances to believe that criminal activity is at hand.

Probable Cause is an apparent state of facts found to exist upon reasonable inquiry into the case that would induce a reasonably intelligent and prudent person to believe that the accused person has committed a crime.

Case Laws – Every person accused of a crime is presumed innocent until they are proven guilty beyond a reasonable doubt by trial by a jury of their peers in a court of law. Beyond that, a defendant may appeal their case to an Appellate Court, or in California to the 9th Circuit Court of Appeals, or all the way to the United States Supreme Court. Case laws include an aggregate body of these reported cases, which in turn interpret statutory laws, regulations and Constitutional provisions on a case-by-case basis given the circumstances in question.

Expectation of Privacy – Generally, when the Fourth Amendment is under discussion. Expectation of privacy is a central theme. It is interpreted generically to mean each persons inherent right in an ordered society to have liberty and freedom in their movements, actions and decisions; to make fundamental choices involving themselves, their family, and their relationship with others; and to prevent arbitrary, malicious, capricious and unwarranted governmental interference with those rights.

 With these terms being defined, let us keep in mind that an individual’s expectation of privacy is not going to be absolutely equal in every circumstance in life, nor is there any provision in the Constitution or anywhere else requiring that there must be. Every incident is going to be situational according to mitigating factors such as environment, location, time, the training and experience of the officer, etc. as defined and guided by the constraints and limitations of the above rules.

For example, the highest level of expectation of privacy one may expect is in their home. As the saying goes, “A man’s home is his castle. Absent a warrant, consent, or exigent (life-threatening circumstances) no Peace Officer or other government entity can enter a person’s home. On the other hand what, if any, expectation of privacy do I have when boarding an airplane, entering a jail or prison, entering a court house, entering a government facility, a military base. The fact is that most of these places are facilities that allow access to the general public solely on the contingency that those desiring access to those facilities submit to some varying degree to consent search of their persons, places and things as the price of admission. While the Fourth Amendment still exists in all of the above places, various courts have rendered case law decisions based on public safety, national and local security, as well as other issues that dictate differing, and in some cases lower thresholds of intrusion of one’s expectation of privacy.

This brings us to the issue of schools, what is the expectation of privacy level on a school campus? The United States Supreme Court has held that although school officials are under the Fourth Amendment, the standard is considerably relaxed. Searches of students by public officials still must be “reasonable” (considering the offense, age of suspect, extent of intrusion, scope, etc.) and “justified at the inception,” but need not be supported by probable cause or a search warrant. (New Jersey v. T.L.O. (1985) 469 U.S. 325.), (Bobby B. (1985) 172 Cal. App.3d 377), (Robert B. (1985) 172 Cal.App.3d 763), and (William G. (1985) 40 Cal.3d 550.)

Basically, New Jersey v. T.L.O. among other things acknowledges the special authority of school officials to keep campuses safe from disruptions and antisocial student behavior that compromise educational objectives. T.L.O. allows educators to conduct searches based not upon probable cause, but rather under a modified standard of “Reasonable Suspicion” that a student has or is violating the law or the rules of the school.

 With this discussion in mind let us turn our attention to this article and the writer’s representation of search, seizure, the Fourth, and Fourteenth Amendments.

STATEMENT - Reasonable Suspicion is defined as follows: “when another person-aside from the officer performing the search-would agree that there is reason in suspecting the possibility that a student may be violating a law”. “…The question is: is there a possibility that a student is violating a law? There is always a possibility…”

 With all due respect this is an incorrect understanding of the Fourth Amendment search and seizure law. The Fourth Amendment, the California Constitution, and Case law make the argument very clear. First of all, reasonable suspicion is more than a mere possibility that a person, such as a student, might be violating a law or school policy. Reasonable suspicion includes a totality of the circumstances present in each event. Reasonable suspicion must include clear and articulate information and facts known to the officer that would make not only the officer, but also any ordinary prudent person, believe that a particular person is violating a law or school policy.

 STATEMENT - The writer asks, possibly in rhetorical argument, “But how does one defend against this?” “The fact is, then, that a student or other person cannot defend himself or herself against such “reasonable suspicion” without quite a bit of difficulty.” Additionally, the writer states, “A student may, if they choose, file a complaint and attempt a defense against the search, however by that time the search has already occurred. While yes, this may help keep our school safer, it also subjects some innocent students to a violation of their persons or privacy.”

Let us focus on these three questions and address each. Number one – How does a student defend against unreasonable search and seizure? Number Two – How does a student, or anyone else file a complaint? Number Three – Can we infringe on innocent students rights because we know there are other students out there that are, or might be breaking the law?

Question One - How does a student defend against unreasonable search and seizure?

Happily, the fact is that most of the effort of defending one’s self against unreasonable search and seizure has been done at the outset for the student in question. To begin with, the very existence of the various Constitutional Amendments, Statutory and Case Laws are in place to accomplish this very thing. More importantly, there are numerous repercussions on a myriad of levels, some with potentially serious penalties and consequences. Here are a few just for example

Title 42, U.S.C., Section 14141 makes it unlawful for any governmental authority, or agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.

Title 18, U.S.C., Section 242 makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S. This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race. Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs. Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results, or if such acts include the use, attempted use, or threatened use of a dangerous weapon, or threatened with the use of explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

This is to say nothing of the potential for departmental sanctions including anything from reprimand to termination; also civil litigation including the loss of personal finances, home and car; as well as loss of reputation and possibility of employment anywhere as a Peace Officer. The potential risk both professionally and personally far outweighs any imagined benefits from such callous and arbitrary actions by those in authority.

Question Two - How does a student, or anyone else file a complaint?

In so far as the ease of defending oneself is concerned, the difficulty level is only limited by one’s motivation. Police misconduct of any kind, whether real or imagined can be reported simply by going to one’s local Police or Sheriff’s station and requesting to file a complaint. As a matter of routine policy all law enforcement entities are mandated to provide complaint forms to any individual requesting one. Further, all law enforcement entities are required to fully investigate and disposition all complaints. The results of these complaints can and do serve as the basis for punitive action against the officer as well as the law enforcement entity in question when warranted. Keep in mind however that these forms are considered official police reports. As such, a person who knowingly files a false complaint can be held criminally and civilly liable under Penal Code 148.9.

Question Three - Can we infringe on innocent student’s rights because we know there are other students out there that are, or might be breaking the law?

Each search conducted on every individual must have its own individual application of reasonable suspicion or probable cause. Conducting searches exclusively on a body of collective information; whether it be statistics, or generalities about others is not permissible. As such, no person, including an innocent person can be searched without reasonable or probable cause conforming to the standards of the Fourth Amendment and Case Law given the circumstances in their individual situation.

Should a search and/or seizure be made otherwise, the argument can be made that the individual’s Fourth Amendment or other Civil Rights have been violated. In cases where a search and/or seizure does not comply with all of the restrictions of the Constitution, the Court will almost always move to suppress the evidence under the “Exclusionary Rule” of law. As such, there can be no use of the evidence in question to prosecute the individual for the crime in question. If the officer’s non-compliance with an individual’s Fourth Amendment or other Civil Rights is found to be willful or malicious then the officer is sanctioned and punished according the rules previously discussed. On the other hand, when the officer follows all of the rules applicable to search and seizure then there is no violation of rights that is not legally and Constitutionally permissible.

It has been my experience that people usually feel they have been damaged or violated by the discovery of contraband. In the case of students, contraband items usually include items such as drugs, cigarettes, weapons, etc. The definitions, existence, and consequences for these types of contraband are clearly published here on school campus and elsewhere. Since most of this information is known to the student population, I must point out in all candor that any perceived violation of rights would be the responsibility of the individual student for violating what they know to be a lawful standard, or school policy in the first place. As such, it would be every student’s responsibility to proactively read and understand school policy, local and state laws in order to avoid the inevitable consequences and punishment due to poor choices or lack of information.     STATEMENT - “By the logic of reasonable suspicion, theoretically a student could be searched if a school official notices an awkward step in their walk that might be caused by extra weight-like that of a gun hidden in the students trench coat.”

False – an awkward step absent additional facts, information or evidence would be insufficient by itself to warrant a search. On the other hand, if school dress code policy prohibited a trench coat a school official would be justified in detaining the student on that basis alone. Additional circumstances, such as 90-degree weather, a noticeable bulge in the clothing consistent with the shape of a gun could very well be ample justification for a search.

STATEMENT - “…it is much easier to search a minor – especially a student on campus – than it is to search an adult. Is this really equal protection? The Fourteenth Amendment guarantees that all citizens are granted equal protection, and the amendment does not differentiate citizens by gender or age.” “Students are not granted rights completely equal to their fellow (adult) citizens. Teachers, for example, are not subject to quite the same search policies – theirs are a bit stricter.”

First of all, the comparative ease of a search of an individual whether a minor or an adult is going to depend once again on the totality of the circumstances in each situation. As such, the Fourteenth Amendment would only apply to situations with equal circumstances. For example, in identical circumstances I cannot search one person simply because they are one race or ethnicity and another because they are not. In other instances age would actually play an important mitigating part in the legality of a search. For example, it is illegal for a person to possess tobacco products if they are under18. Again, a person under 18 is compelled by the Education and Municipal Code to be in school during school hours. These factors among others could be used as criteria for detention, search and seizure, whereas they would not for those 18 and over.

Secondly, school rules and standards of conduct can and will be used as a reason for search and or detention of students. Since students are compelled to follow school rules and adult non-students are not there is going to be a disparity of standards for school searches by definition.

Lastly, when we talk about searching adults when need to keep in mind where the adult is, whether they have permission to be on campus, whether they are a teacher or a non-student, and once again the totality of the circumstances. Since the aforementioned have some significant differences in legal standing there are going to be distinct differences in the scope of a proposed search contingent on the circumstances. Despite the author’s suggestion, the current standards for expectation of privacy under the Fourth and Fourteenth Amendments between adults and minor are neither arbitrary, unequal, ignored, manipulated, or bent.

STATEMENT - “Yes, high school students commit other crimes such as drug possession or theft, but these crimes are not typically violent in nature and do not threaten the safety of students Therefore, they would not justify a violation of my Constitutional rights.”

The threshold of reasonable suspicion or probable cause necessary for an officer to justify an infringement on a person’s expectation of privacy under the Fourth Amendment is not about the level of threats or violence present, or even an existence of threats or violence. The justification for infringement on a person’s expectation of privacy under the Fourth Amendment is based on clear and articulate facts that would cause an ordinarily prudent and cautious person under the same or similar circumstances to believe that criminal activity is at hand. Drug possession, theft, threats, and/or violence all amply meet the definition of “criminal activity” that can and will trigger sufficient justification for a search without any violation of any Constitutional right.

STATEMENT(S) – “In some recently obtained statistics, only ten percent of schools reported violent crimes occurring on campus”. “CNN reported that while school-shootings are high profile crimes, they are still relatively rare occurrences. So then, the amount of slack given to school authorities to search students and bend the rules outlined in the Constitution is really not worth the prevention of a rare occurrence”.

Since statistics appear at issue, perhaps a detailed examination of some statistics would clarify matters. The National Center for Children Exposed to Violence found the following: In a 2001 survey of high school students, 17.4% had carried a weapon to school during the 30 days preceding the survey. (Grunbaum Ja. KannL. Kinchen SA. Williams B. Ross Jg. Lowry R. Kolbe, L. Youth risk behavior surveillance - United States, 2001. In: Surveillance Summaries. June 28, 2002. MMWR 2002:51(No. SS-4))

In 1999, 12% of 12- through 18- year-old students reported experiencing "any" form of victimization at school. (The Condition of Education 2002 Washington, D.C.: U.S. Dept. of Education, Office of Educational Research and Improvement, National Center for Education Statistics, June 2002.)
          In 1999, 12- through 18-year-old students living in urban and suburban locales were equally vulnerable to serious violent crime at school. (Indicators of School Crime and Safety, 2001 )
          In 1999, one in six teachers report having been the victim of violence in or around school. This compares to one in nine teachers in 1994. (The Metropolitan Life Survey of the American Teacher, 1999: Violence in America's Public Schools - Five Years Later, Metropolitan Life, 1999)
          Nationwide, 15% of high school students had participated in a physical fight in 1998. (Juvenile Offenders and Victims: 1999 National Report, Office of Juvenile Justice and Delinquency Prevention, 1999)
          57% of expulsions for bringing firearms to school involved high school students, 33% involved junior/middle school students, and 10% involved elementary school students. (Gun-Free Schools Act Report: School Year 1998-1999, U.S. Department of Education, October 2002)
     The Bureau of Justice found the following statistics:
          Students age 12-18 were victims of about 1.2 million crimes of theft and 764,000 nonfatal crimes of violence or theft at school in 2001.
          Data on homicides and suicides at school show there were 32 school-associated violent deaths in the United States between July 1, 1999 and June 30, 2000, including 24 homicides, 16 of which involved school-age children.
          Between 1995 and 2001, the percentage of students who reported being victims of crime at school decreased from 10 percent to 6 percent.
     The Center for Teen Violence found the following statistics:
          3 Million Crimes are committed in our 85,000 schools a year 1989
          9% of eighth graders carry a gun, knife, or club to school at least once a month 1993
          9 of 10 school incidents are never reported
          135,000 students bring handguns to school everyday 1989
          One in four students are a victim of school violence 1993
          16% of eight graders, 14% of tenth graders, and 12% of twelfth graders feared for their safety in school 1993
          20% of students believed it was ok to kill someone if they stole something from you, 8% if they "dissed" you (Inner City Schools) 1993
          10% of all schools experience some sort of violent crime (Murder, Rape, or sexual battery, suicide, physical attack, fight w/weapon, robbery) 1998
          1 in 12 students who stay home from school do so in fear 1998
          1 out of 6 students knows someone that died in a violent incident 1994
          15% of gun violence at school erupts over long-standing arguments, 12% romantic disagreements, and 10% are disputes over possessions 1993
          15% of students report that gangs are in their schools 1993
          1 in 6 students claim they've been robbed at gunpoint/knifepoint. 1994

STATEMENT – “With these search policies, there is yet to be an on-campus shooting at ALHS. But if it were made more difficult to search a student, would we still have the same amount of safety? Are student searches and bent Constitutional rights worth the safety we have, that of which we may have had anyway? No.”

Apparently the author is undecided about the value of a concerned and attentive proactive approach to campus and student safety. Well just so these safety issues and the statistics don’t seem so distant, unrelated and impersonal I have included the following web-link http://www.nssc1.org/. This site contains a 35 page report detailing school associated violent deaths authored by the National School Safety Center. The report tells the horrible and senseless stories of 347 lives taken in violent death on or near school campuses, and countless others who were wounded, or who’s lives were changed forever between the year of 1992 to present. I challenge all, including the author, to read the brief synopsis that is included with each instance and not get a small glimpse and sense of the personal anguish associated with these events.

Perhaps the author would volunteer to make personal contact with the surviving family members of those affected in the attached report, look them in the eye and tell them that their rights were not worth it. Perhaps likewise they will volunteer to make the suggestion that we need to make searches more difficult in and about a school campus. Perhaps they can address the Constitutional rights of the families of those students whose lives and dreams were cut short?

Since there has yet to be an on-campus shooting at ALHS, perhaps we should abandon all pretenses to campus safety and let every person, adult or student, fend for themselves. This way we can wait for tragedy that has yet to happen so as to more fully justify a comprehensive safety program on this campus. If we grant this request, and the unthinkable does happen, I’m wondering if the author of this article would agree to explain and defend to the family and loved ones, the remaining school body, and the community the wisdom and rationale behind their hap-hazard, teen-something decision.

CONCLUSION: Maybe it’s my imagination, perhaps I’m just paranoid or neurotic but I couldn’t help but get the feeling that there was some suggestion in this article that there are those here on this campus who willfully, maliciously, or arbitrarily violate student’s rights on a regular basis. If I’m wrong perhaps you would be willing to clarify the fact in print. Either way, permit me to comment.

Every Peace Officer takes an Oath to uphold and defend and protect the Constitution of the United States of America. This includes the Fourth and Fourteenth Amendments. Most officers, including myself, leave family and loved ones every morning to put on a bullet proof vest, a uniform, and about 20 pounds of equipment, including handcuffs, pepper spray, a baton, and a handgun with which, if necessary, we place our very lives in peril to protect every citizen and student, including even those would trivialize the sacrifices made. I personally, despite what others may think or do, take my oath and office with the highest sincerity, integrity, honesty, and respect. While these precepts we hold dear may be only a matter of idle philosophic debate to some, they are by nature a matter of our sweat, tears, and lifeblood in some cases. I also take it personally that anyone might glibly imply these things against the administration, staff, security, and teachers on this campus who work tirelessly and often thanklessly to promote staff and student safety.