You have the right to be protected from an “unreasonable search or seizure” or from being questioned in a “custodial” setting when you are:
- in school,
- at a school event, or
- on school property
Your rights depend on whether school staff or the police do the search, seizure or questioning. The rules are stricter, meaning you have more protections, if the police are involved.
People have an “expectation of privacy” when it comes to what is in their pockets, backpacks, cars, houses, etc. This “expectation of privacy” applies to students in public school. A search looks for evidence of wrongdoing in places where someone has an “expectation of privacy.”
A search can be of your:
- person (your pockets, a pat down of your body, etc)
- property (your backpack, purse, car, etc.)
- school property (the school locker, desk, etc that you use)
There is usually no “expectation of privacy” when it comes to school property, like a locker or desk. This means school staff can look at what is in your locker or desk, even without telling you. School staff can also give permission to the police to look in your locker or desk, even though you use it. The school district may have a policy about this. You can call your school administrative office or check out your school’s website to see if your school has a policy. You have a right to ask for a copy of that policy.
When it comes to your body and property (what is in your pocket, backpack, purse, car, etc.), there are rules that must be followed.
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 you did something wrong before they can search you.
The search must be:
- justified when it starts, and
- reasonable in how it is done
School staff must have a specific reason to believe you broke a school rule. For example, someone told school staff you had cigarettes in your bag. If there is no specific reason, then the search is probably not justified when it starts.
The search must also be reasonable in how it is done. All the circumstances must be looked at, such as:
- your age
- your gender and the staff's gender
- 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.
The police must follow a higher standard to search you. The police must have either “probable cause” or a search warrant from a Court. “Probable cause” means a reasonable person believes a crime was, is, or will be committed. 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.
School Resource Officers (SROs)
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.
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 you say to school staff can be used against you in either a school discipline case or in a juvenile court case.
If the police are involved in questioning you at school, things change. If the point of questioning is to find out if you committed a crime, the police have to follow the rules for any criminal investigation. If they do not follow those rules, what you say to the police may be kept out of court if you are charged with a juvenile offense. You first need to know if you were in a “custodial setting” when the police questioned you at school.
What is a custodial setting?
Generally, you are in a custodial setting when you are with the police and are not free to leave. If the police question you when you are not free to leave, it is a “custodial interrogation.” There are two factors to look at:
1. What were the circumstances leading up to you being in the setting, and
2. Would a “reasonable person” have felt he or she could stop the police officer’s questions and leave?
You may not be told you are under arrest but still be in a custodial setting.
Last year, the U.S. Supreme Court decided a case about a 13-year-old student being questioned at school by a police officer. The Supreme Court ruled that a student’s age must be considered by the police to decide if the student is in a custodial setting. It is called the “reasonable child” standard. The officer must know the child’s age or it must be obvious that the student is a child. The questions then become:
1. Does a reasonable child feel free to leave?
2. Does the child’s age affect his or her ability to voluntarily, knowingly and intelligently waive his/her Miranda rights?
If the interrogation is custodial (meaning you do not feel free to leave), the police must give you Miranda warnings BEFORE asking you 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 you understand your Miranda rights and still agrees to talk to the police, you have waived those rights. That means what you say to the police can be used against you. In deciding if a child has knowingly and voluntarily waived his or her rights, the Court will look at the reasonable child standard. In doing that, the Court will look at all the circumstances, such as :
- Does Maine law require you to be in school (if you are 7 years old until your 17th birthday the answer is yes)
- Do students get in trouble for not following school rules?
- Where did the questioning happen?
- How did you get to where the questioning took place (did the SRO bring you there)?
- Was the door closed or open?
- Were you told that you could leave at anytime?
- Was the police officer in uniform or have a weapon?
- Was anyone else in the room with you and the police officer?
- How long were you in the room?
- Were you told you could be sent to juvenile detention or jail?
Also, under Maine law , if you are in a custodial setting, before the police can question you about crimes they think you committed, your parent or legal guardian must be contacted. Your parent must either be with you for the questioning or agree the police can question you without them being there. Learn more about how juvenile law in Maine works.
In the Supreme Court case, the 13-year-old student was taken out of class and brought to a room by a uniformed SRO. The door to the room was closed, and there was a uniformed police officer and school staff in the room. He was questioned for 30 minutes and then threatened with detention. That was a custodial interrogation. The police should have given this student his Miranda warnings before asking him any questions.
Depending on what you are accused of, you 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. Learn more about student suspension and expulsions.
If you are charged with a crime and evidence from a school search is going to be used in Court, it will be up to your defense attorney to try to keep that evidence out. This is a called a motion to suppress. It will be based on if the person doing the questioning and/or the search followed the rule that he was supposed to follow.
Last updated: April 2013