School Searches and Seizure

Can a student be searched at school and have their property taken?

Students have an “expectation of privacy” that applies outside and on school property. However, there are different rules for the different locations. There are also different rules based on who is doing the search and what item is being searched.

 

Can a student’s school locker or desk be searched?

Generally, any item that is considered property of the school can be searched without letting the student or the parent know. School staff can also give permission to the police to look in your locker or desk, even though you use it. Schools may have a policy on this and must be provided to students upon request.  

 

Can the school search my pockets, backpack, or other personal items?

When it comes to your body and property, there are rules that must be followed. Which rules apply depends on who is doing the search.

School staff may search a student if there are “reasonable grounds” that the search will turn up evidence that the student broke a school rule. This means that staff have more than a hunch that the student did something wrong before the search can happen. They must have specific reason to believe you broke a school rule. The search must be:

  • Justified when it starts, and

  • Reasonable in how it is done

There are a couple of factors to be looked at to establish a reasonable search.

  • The child’s age,

  • The gender of the child and the gender of the staff searching the child,

  • The rule or law that is believed to be broken.

For example, if a student is accused of having aspirin, which violates the school drug policy, it is reasonable for school staff to have the student empty pockets and look in a backpack.  But, if nothing is found, it is not ok to ask you to pull out your underwear band to look for aspirin there.  

Can a police officer search my pockets, backpack and other personal items?

If a police officer is doing the search, a different set of rules apply.

The police must follow a higher standard to search you. The police must have either

  • “Probable cause,” (Probable cause means a reasonable person believes a crime was, is, or will be committed.) or

  • a search warrant from a Court.

If the police do not have probable cause or a warrant, you can refuse to be searched.  If you are searched and evidence of a crime is found, that evidence may be kept out of Court.  This is something you can talk to a juvenile defense attorney about if you are charged in Court.  But, that evidence will not be kept out of a school discipline hearing, like an expulsion.

Can a School Resource Office search my pockets, backpack, and other personal items?

School resource officers are a little trickier.  Some courts in the country have said that school resource officers are like school staff and can follow the “reasonable grounds” rule.  Other courts in the country have said that school resource officers are the police and must follow the “probable cause” standard.  Maine courts have not ruled on this issue yet, so we do not know which rule must be followed by a school resource officer.

 

Can a student be questioned by school staff?

School staff have the right to question students.  Maine law does not say anything about whether the school has to first contact your parent.  The school district may have a policy that talks about this. Check the school’s website or call the administration office to see if there is a policy. 

It is important to know that anything a student says to school staff can be used against the student in either a school discipline case or in a juvenile court case.

If the police are involved in questioning the student at school, things change.  If the point of questioning is to find out if the student committed a crime, the police have to follow the rules for any criminal investigation.  If they do not follow those rules, what the student says to the police may be kept out of court if they are charged with a juvenile offense.  The student first need to know if you were in a “custodial setting” when the police questioned them at school.

 

What is a custodial setting?

Generally, students are in a custodial setting when they are with the police and are not free to leave.  If the police question the student when they are not free to leave, it is a “custodial interrogation.”  There are two factors to look at:

  • What were the circumstances leading up to you being in the setting, and

  • Would a “reasonable person” have felt they could stop the police officer’s questions and leave?

The student may not be told they are under arrest but still be in a custodial setting. If the interrogation or questioning is custodial (meaning they student do not feel free to leave), the police must give the student Miranda warnings BEFORE asking questions. Miranda warnings are:

  • The right to remain silent

  • To be warned that anything you say can and will be used against you

  • The right to an attorney

  • If you cannot afford an attorney, one will be provided to you

  • Do you understand your rights

  • Will you talk to me

If the student understands the student Miranda rights and still agrees to talk to the police, the student has waived those rights. That means what the student says to the police can be used against them.

Also, under Maine law, if the student is in a custodial setting, before the police can question them about crimes they think the student committed, their parent or legal guardian must be contacted. The parent must either be with you for the questioning or agree the police can question you without them being there.  

Depending on what the student is accused of, they may be facing school disciplinary action, juvenile charges in Court, or both.  The school disciplinary action will happen much faster than a juvenile court case.  Anything you say in the school discipline case can be used against you in the court case. 

 

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