- United States Supreme Court Update: Strip Search of Middle School Student by School Officials Was Unconstitutional Under Fourth Amendment
- July 9, 2009 | Author: Diana D. Halpenny
- Law Firm: Kronick Moskovitz Tiedemann & Girard, A Law Corporation - Sacramento Office
In Safford Unified School District No.1 v. Redding, (--- S.Ct. ----, U.S., June 25, 2009), the United States Supreme Court considered the issues of (1) whether a strip search of a middle school student by school officials who suspected the student of having prescription and over-the-counter drugs was unconstitutional; and (2) whether the school officials involved in the search were entitled to qualified immunity. The United States Supreme Court held that the search was unconstitutional but that the school officials involved in the search were entitled to qualified immunity.
This Legal Alert updates our previous Legal Alert on this case entitled, “School Officials’ Warrantless Search Of A Student’s Person During School Hours And On School Property Violates The Student’s Fourth Amendment Rights,” July 28, 2008. That Legal Alert should be disregarded.
Savana Redding (“Savana”) was a thirteen-year-old middle school student at the time the assistant principal of Safford Middle School (“School”) came into Savana’s math class and asked her to go to the office with him. When they arrived in the office, the assistant principal, Kerry Wilson, showed her a day planner which contained several knives, lighters, a permanent marker, and a cigarette. Although Savana admitted the planner was hers, she claimed that she had lent it to her friend, Marissa Glines (“Marissa”), a few days earlier.
Before Savana was called out of class that day, another student, Jordan Romero had told Wilson that Marissa had given him a white pill that was later determined to be Ibuprofen 400 mg, a pill that is only available by prescription. Wilson called Marissa to his office and asked her to turn out her pockets and open her wallet. Marissa produced several white pills, which were prescription-strength Ibuprofen, a blue pill, later revealed to be naproxen, which is available over the counter, and a razor blade. The day planner had been found within Marissa’s reach when she was taken out of class. She, however, denied knowing anything about the day planner and its contents. Marissa indicated Savanna had given her the pills. Wilson did not ask Marissa when she received the pills from Savana or where Savana might be hiding pills. Marissa was subjected to a search, which included a search of her bra and underpants, but no additional pills were discovered.
Wilson had called Savana to his office based on the information provided by Marissa. A search of Savana’s backpack conducted with her consent revealed no drugs. Wilson instructed an administrative assistant, Helen Romero, to take Savana to the nurse’s office to conduct a search of Savana’s clothing. Romero and the nurse, Peggy Schwallier, instructed Savana to remover her shoes, socks, and jacket, leaving her in stretch pants and a t-shirt, neither of which had pockets. They then instructed Savana to remove her pants and t-shirt. After she was clothed only in her bra and underwear, they told her “to pull her bra out to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree.” The search did not produce any pills.
Savana’s mother filed a lawsuit against Safford Unified School District, Wilson, Romero, and Schwallier for conducting a strip search in violation of Savana’s Fourth Amendment rights. The district court found there was no constitutional violation and a panel of the Ninth Circuit Court of Appeals affirmed that decision. The Ninth Circuit Court of Appeals sitting en banc reversed the district court’s decision finding that the search was unjustified and Wilson was not entitled to qualified immunity. The court, however, found that Romero and Schwallier were entitled to qualified immunity because “they had not acted as independent decisionmakers.”
Supreme Court Decision
The question before the Supreme Court was whether Savanna’s “Fourth Amendment right was violated when she was subjected to a search of her bra and underpants by school officials acting on reasonable suspicion that she had brought forbidden prescription and over-the-counter drugs to school.” The Court held that the search did violate the Constitution “[b]ecause there were no reasons to suspect the drugs presented a danger or were concealed in her underwear.”
The Fourth Amendment guarantees the “right of the people to be secure in their persons . . . against unreasonable searches and seizures” and “generally requires a law enforcement officer to have probable cause for conducting a search.” The probable cause standard requires that a law enforcement officer determine before conducting a search that there is a “fair probability… or substantial chance” of finding evidence of criminal activity. In a school setting, however, only reasonable suspicion is required to justify a search. There only needs to be “a moderate chance of finding evidence of wrongdoing.”
School’s policies strictly prohibit the possession, sale, or nonmedical use of drugs on school grounds. When Wilson called Savana into his office, Savana revealed that she was on friendly terms with Marissa. Wilson also knew that Savana and Marissa had been identified “as part of an unusually rowdy group” at a school dance where cigarettes and alcohol were found in the girls’ bathroom. Jordan Romero had told Wilson that he had been at a party at Savana’s house before the dance and that alcohol was served at the party. Marissa had also identified Savanna as the person from whom she got the pills and this statement was “sufficiently plausible to warrant suspicion that Savana was involved in pill distribution.” This suspicion was enough to warrant a search of Savana’s backpack and outer clothing. This suspicion, however, was not enough to warrant a strip search.
The Court found that the portion of the search where Savana had to pull out her underwear was in fact a strip search. Although Romero and Schwallier claimed “that they did not see anything,” the Court declined to define a strip search on the basis of “who was looking and how much was seen.” Savana was required to pull her underwear away from her body in the presence of two school officials who could “see her necessarily exposed” breasts and pelvic area. The Court opined that “both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings.”
Savana claimed that the search was “embarrassing, frightening, and humiliating.” The reasonableness of Savana’s expectation of privacy that she would not be subjected to such a search “is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure.”
The indignity of a search alone, however, does not outlaw the search but merely implicates the rule of reasonableness, which requires that “the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place.” The scope will be permissible when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”
The Court concluded that the content of the suspicion in Savana’s case did not match the degree of intrusion. Wilson knew that the pills were prescription-strength ibuprofen and over-the-counter naproxen. These are common pain relievers and the pills were equivalent to two Advil or one Aleve. Wilson must have been aware of the limited threat of the drugs for which he was searching. While the Court acknowledged that “just about anything can be taken in quantities that will do real harm,” Wilson, in fact, had no reason to suspect that there were large quantities of drugs passed around or that students were receiving a great number of pills. Wilson also had no reason to believe that Savana was hiding drugs in her underwear.
The Court found the extreme intrusiveness of the strip search conducted on Savana “requires some justification in suspected facts” and that “general background possibilities fall short.” Here, the strip search of Marissa did not reveal additional drugs. Wilson never even determined when Marissa received pills from Savana. If Marissa had obtained the pills a few days before the search, this fact “would weigh heavily against any reasonable conclusion that Savana presently had pills on her person, much less in her underwear.”
The Court concluded that “what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose Savana was carrying pills in her underwear.” The combination of these two deficiencies was fatal to a conclusion that the search was reasonable. The Court also stated that it wanted to make clear that the concern “to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts.”
The Court, however, concluded that Wilson, Romero, and Schwallier are protected from liability by the doctrine of qualified immunity. A school official who searches a student is entitled to qualified immunity if “clearly established law does not show that the search violated the Fourth Amendment.” The Supreme Court noted that lower courts have reached divergent conclusions on the reasonableness of strip searches in school settings. The Court concluded that the differences in the opinions are substantial enough to require immunity for Wilson, Romero, and Schwallier.