Constitutionality of Searches and Seizures

¶ … constitutionality of searches and seizures in school. The writer explores a hypothetical case and applies real life cases to the argument that the search of the hypothetical student was illegal. There were three sources used to complete this paper.

To Whom it May Concern,

As you know, we have been retained to represent the defendant in the recent New Jersey case in which a student was searched and arrested when a cocaine pipe was found in her coat pocket. As we prepare her defense against this charge there are several issues that come into play as we prepare her defense.

The most important issue is whether or not the search was legal. It is my opinion that it was not. It clearly violates the fourth amendment of the United States Constitution that protects people from unreasonable search and seizure.

The second issue surrounding the search is the fact that the school issued a directive for the officers to search all incoming book bags. It also provided a metal detector for the purpose of waving it near students who were suspected of having metal contraband on their person.

In this case the officer did not use a wand to discover the pipe in the student's pocket. He instead conducted a personal search and upon patting her coat pockets located a metal object that was later determined to be a pipe.

The third issue surrounding the search is the fruit that was located within the pipe. Testing of the substance proved it to be cocaine.

The final issue surrounding the search is the issue of school searches and whether or not students have the right to expect privacy or whether schools are acting as the student's parents during school hours, therefore allowed to search without reasonable cause (Czubaj, 1995).

In ranking the issues that surround the defendant's case I would place the invasion of privacy as the most important and the most likely to allow the exclusion of all evidence obtained from that search.

Several courts have ruled that students have the right to expect reasonable privacy when it comes to the search of their person or their closed items such as purses.

In the case of Terry v. Ohio, 392 U.S. 1, 24-25 (1967), the lower court initially upheld the search and therefore all evidence found from the search, however, the Supreme Court later ruled the search illegal. The judges ruled that searching closed items and the person is an intrusion from which the fourth amendment protects each individual. The court further ruled that though schools have a recognized need to have some flexibility so that a continued atmosphere conducive to education can be maintained, it is important to recognize and maintain student privacy as well (T.L.O. v N.J. (http://www.tourolaw.edu/patch/NewJersey/).

The second through fourth ranking of the issues would include (2) the officer's claim that the student appeared to be under the influence of drugs. In the report that discusses what lead to the arrest I see no evidence that the student was behaving in a manner that would lead a reasonable person to conclude she may be under the influence of drugs.

3) the method by which the search was conducted was outside of the directives that had been given by the school with regard to searching book bags and purses and using wands for students' bodies.

The fourth ranked issues were the fact that the substance in the pipe turned out to be cocaine. If the search is deemed illegal then we will have to accept a paraphernalia charge and argue against the possession of drugs charged with the argument that the pipe should not have been tested as it was gained as poisoned fruit.

When we prepare the defense we need to concentrate on the first issue which is the search itself.

Again, using the case of TLO v NJ the court found that the search of the student purse was unreasonable and a violation of the fourth amendment because the student had a cigarette in her hand, there was no need to move further with a search of her closed purse (T.L.O. v N.J. (http://www.tourolaw.edu/patch/NewJersey/).

In the case we are defending, the search of this student's person was in violation of the fourth amendment. She handed over her book bag, gave them permission to search it and stated she had to go as she was late to class. There was nothing found within her book bag that would later be able to be held as probable cause evidence to search her person. There is nothing in the report stating that the student had an odor of drugs about her person, nor was their any reported evidence that she was behaving in a manner that she acted under the influence. While the officer said he believed she acted like she was high, he provided no evidence or examples of what lead him to this conclusion.