Children’s Rights – the Criminal Search in Texas

Your child just called you to report that she has been “searched” at her Texas school.  Was it lawful?  Who did the search and to what extent was she searched?  What was found?  Are they allowed to use what was found against your child?

The legality of a Texas search on a child  is determined by both Texas Law and Federal Law.   The first thing to realize is that children actually have less rights than adults.

As adults we have an “expectation of privacy” under the Fourth Amendment.  Children don’t have that same legal expectation.    In the 1985 landmark case of New Jersey v. T.L.O., the Supreme Court held that “ . . . the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search” effectively diminishing a student’s “expectation of privacy” under the Fourth Amendment.

The United States Supreme Court  set out a two-part test for reasonableness: 1) the search must be justified at its inception, and 2) the school official must believe he will find the item or items he is looking for in the place he is looking for them.

Texas public schools may also perform certain random searches, including desks and lockers.  If the school retains ownership of the lockers and such ownership policy is in writing and provided to the students, then the students no longer have an “expectation of privacy.”  Without the expectation of privacy, the random search of a locker is not a search under the Fourth Amendment.

If your child attends a private school, she may be subjected to a search of her person, her belongings, or her locker even with no basis for reasonable suspicion.  Private schools are not a government entity and its students have no constitutional protection against unreasonable searches by teachers and administrators.

The  “pat-down” search.    In Terry v. Ohio (1968) the Supreme Court stated: “The sole justification of the search is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.”

The “locker search.”  Who supplies the lock?  If the student does, is the combination or extra key given to the school?  If the school maintains access to the locker, the school may have a reasonable right of inspection, despite possible infringement of the student’s rights under the Fourth Amendment.

 The “Off-Campus” search.   If your child participates in class trips, her hotel room is subject to search by a school employee as long as the class trip is a school-sponsored trip.

The ” random search.”  Random searches  of students’ property, i.e. backpacks, purses, and pocket contents, without suspicion, was held by a court of appeals to be unconstitutional.  The school district must show a need beyond a generalized concern that such searches are necessary for the safety of the students and school employees.

 The “Dog“searches.”   These are considered differently.  A dog can be used to sniff hallways, lockers, and automobiles parked in public parking lots.  These “sniffs” are not considered to be searches and therefore are not a violation of the Fourth Amendment.  On the other hand, a “sniff” of a person by a dog is considered a search and the reasonable suspicion standard applies.

 The “Strip search.”   These types of searches  are very intrusive and have been almost universally disapproved.  The courts must be provided with substantial evidence that such a search is reasonable and that the school employee believed the search would succeed in finding dangerous items and/or illegal drugs.

If your child is taken to a juvenile detention center, an initial strip search may be justified, but repeated searches of the youngster (while still in custody) would require reasonable suspicion.

If you have any questions about the legality of a search, contact the attorneys at Hammerle Finley Law Firm.  We can advise you on your children’s rights under Texas Law, and especially on unlawful searches on children in Denton, Collin, Tarrant and Dallas Counties.