locker search case study (regina v m)

Summary of R. v. M.R.M.

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On June 27, 2019, high school student Maria Calabretta stood in a security line to get into her prom. School administrators were checking everyone’s bag for weapons, alcohol and drugs. The mandatory search was to ensure students’ safety rather than to investigate criminal activity.

When she reached the front of line, Ms. Calabretta agreed to have her bag searched by the school’s vice-principal. Visible in the bag was a small section of straw. Further searching revealed a baggie containing two grams of cocaine. The vice principal handed the baggie to an attending police officer and Ms. Calabretta was arrested.

The Ontario Court of Justice ruled that a mandatory search by a school official, though lacking reasonable grounds, had not violated the student’s right to freedom from unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms . The ruling, issued by Justice Ghosh, is the latest development in case law on moderated privacy expectations in school settings.

Several factual details became relevant at trial. The mandatory search policy was put in place by the school, not the police. The school only searched students’ property. The prom ticket, which prohibited drugs and alcohol, did not specify that mandatory search was a condition of entry. Each search typically lasted five to 10 seconds. The police were present, but not involved in the search process. The vice-principal stated that she was not aware of any student refusing the search, but that resistance would likely have resulted in them asking the student to leave. 

The main issue at trial was whether there had been a violation of Ms. Calabretta’s constitutional freedom from unreasonable search and seizure. Ms. Calabretta claimed there had, saying that a mandatory search policy for all attendees lacked reasonable grounds.

Section 8 protections

Section 8 of the Charter guarantees freedom from unreasonable search and seizure. Its purpose is to safeguard an individual’s “reasonable expectation of privacy,” a concept used for determining whether a search has taken place.

A person’s reasonable expectation of privacy is deliberately context-specific. In school settings, students have a diminished privacy expectation due to the statutory duty of school officials to ensure the safety of students. This moderated constitutional standard, which applies to  environments both on and beyond school premises , was clearly set out by the Supreme Court of Canada in R v M(MR) :

[33] … [T]he reasonable expectation of privacy of a student in attendance at a school is certainly less than it would be in other circumstances. Students know that their teachers and other school authorities are responsible for providing a safe environment and maintaining order and discipline in the school. They must know that this may sometimes require searches of students and their personal effects and the seizure of prohibited items. It would not be reasonable for a student to expect to be free from such searches. A student’s reasonable expectation of privacy in the school environment is therefore significantly diminished.

The moderated standard of M(MR) has led to questions about the correct assessment of reasonableness in the context of school settings. In the present case, there was no disputing that Ms. Calabretta had a reasonable expectation of privacy in the contents of her bag. Her case hinged on whether the mandatory search was reasonable under the circumstances. In ruling that it was, the court clarified standards for school searches that include the question of whether reasonable grounds are necessary, the degree of a search’s invasiveness and the role of voluntary consent.

Reasonable grounds

Do school officials require reasonable grounds to search students’ property? The Supreme Court in M(MR) was clear that, in general, a search of a student by school officials is permissible when “there are reasonable grounds to believe that a school rule has been or is being violated, and that evidence of the violation will be found in the location or on the person of the student searched.”

Ms. Calabretta’s defence focused on the fact that the mandatory search lacked reasonable grounds. They argued that the school did not justify the search policy with specific or informed suspicions about individual students. The court agreed with this point, but insisted that the mandate to ensure a safe environment won out. In his decision, Justice Ghosh pointed to other familiar situations in which safety concerns moderate the boundaries of reasonableness:

[15] … The Supreme Court in M.(M.R.) articulated a somewhat helpful analogy that when people cross the border or board a plane, everyone accepts that they will be searched or subjected to intrusive inquiries about property where a far lesser expectation of privacy is engaged. Any related seizures are generally Charter -protected. Perhaps this is an inelegant analogy, but like a voluntarily attended prom party, you cannot even enter some amusement parks in Canada without having your bags searched.

The court might have added to its analogies other events where bag searches are both mandatory and uncontroversial, such as music festivals and nightclubs. Those scenarios, according to the court, uphold a clear message: while reasonable grounds provide an important starting point for the assessment of school searches, they do not impose an absolute standard. The correct interpretation of M(MR), said Justice Ghosh, was a context-specific approach to reasonableness attentive to all circumstances:

[19] … I accept the direction in M.(M.R.) that generally school authorities will require “reasonable grounds” to search and seize items from a student or her property. However, the court also acknowledged in discussing the reasonable grounds standard applicable to school authorities … that “Searches undertaken in situations where the health and safety of students is involved may well require different considerations … All the circumstances surrounding a search must be taken into account in determining if the search is reasonable.” Despite the absence of reasonable grounds, the mandatory security search of bags at a prom is reasonable in all the circumstances.

The circumstances in Ms. Calabretta’s case include the comparatively unobtrusive nature of the bag search. There were no full-body searches and the court considered it a “trite point of law” that bag searches are decisively less intrusive than the seizure of bodily samples. 

As well, school officials at the prom did not look at students’ cell phones, a variety of property search that case law has deemed comparatively more intrusive and oftentimes less reasonable.

Absence of a waiver

The court was similarly unsympathetic that Ms. Calabretta had not waived her constitutional right to be free from unreasonable search and seizure. The court explained that waivers become relevant typically under coercive circumstances – for example, police stops for impaired driving – which involve forced compliance with state-sanctioned interventions.

Ms. Calabretta attended prom voluntarily. She remained in “an obvious security line” aware that she would soon be subject to a mandatory search by a school official. Unlike the student in M(MR) , whose search was conducted in a principal’s office with police present, Ms. Calabretta had the option to leave the line, get rid of the drugs and return to prom. The expected search yielded two grams of cocaine, which were immediately given to an off-duty police officer. Ms. Calabretta’s consent to a search that lacked a coercive element was an important factor in the court’s rejection of a section 8 violation.

The case of Maria Calabretta is the latest example of the courts dealing with the diminished expectation of privacy in school settings. The decision clarifies the boundaries of reasonable search practices in the following ways:

• Despite the absence of reasonable grounds, the mandatory search of bags at a prom is reasonable due to overriding interests of student safety.
• The mandatory search is reasonable in part because it is a search of property, not of persons, and is comparatively unobtrusive. The seizure of body samples or searching cellphones is subject to different standards.
• A student’s voluntary attendance at a prom, and the lack of coercion or police involvement, remain important considerations in assessing reasonableness.

This article is authored by Nick Whitfield, Summer Law Student. 

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Supreme Court of Canada

R. v. M.R.M., (1998) 233 N.R. 1 (SCC)

R. v. M.R.M. (1998), 233 N.R. 1 (SCC)

MLB Headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [1998] N.R. TBEd. NO.017

M.R.M. (appellant) v. Her Majesty The Queen (respondent)

Indexed As: R. v. M.R.M.

Lamer, C.J.C., L'Heureux-Dubé,

Gonthier, Cory, McLachlin,

Iacobucci, Major, Bastarache

and Binnie, JJ.

November 26, 1998.

A junior high school vice-principal received reliable information that a 13 year old student was selling drugs on school property and would be in possession of drugs at a school dance. The vice-principal called the R.C.M.P. The vice-principal requested that the student come to his office and submit to a search. The student rolled up his pant leg and had a bag of marijuana hidden in his sock. The R.C.M.P. officer arrived during the search, but sat by only as an observer. The vice-principal voluntarily turned over the marijuana to the officer, who then arrested the student and advised him of his Charter rights. The student was charged with possession of a narcotic (Narcotic Control Act, s. 3(1)).

The Nova Scotia Provincial Court acquitted the student. The vice-principal acted as an agent for the R.C.M.P. The student was subjected to an unreasonable search and seizure (Charter, s. 8) and was denied his right to counsel (s. 10) upon detention. The trial judge excluded the evi­dence obtained under s. 24(2). The Crown appealed.

The Nova Scotia Court of Appeal, in a judgment reported 159 N.S.R.(2d) 321; 468 A.P.R. 321, allowed the appeal and ordered a new trial. The vice-principal was not an R.C.M.P. agent. There was no violation of s. 8 (search reasonably related to objective of maintaining order and discipline) or s. 10 of the Charter (no detention prior to arrest). The student appealed.

The Supreme Court of Canada, Major, J., dissenting, dismissed the appeal.

Civil Rights - Topic 1217

Security of the person - Lawful or rea­sonable search - Unreasonable search and seizure - What constitutes - A junior high school vice-principal received reliable information that a 13 year old student was selling drugs on school property and would be in possession of drugs at a school dance - The vice-principal called the R.C.M.P., then requested that the student come to his office to be searched - The student rolled up his pant leg and had a bag of marijuana hidden in his sock - The R.C.M.P. officer arrived during the search, but sat by only as an observer - The Supreme Court of Canada affirmed that there was no vio­lation of s. 8 of the Charter - The court assumed that schools were part of govern­ment, thereby engaging s. 8 - The vice-principal was not acting as an agent of police - The reasonable expectation of privacy of students was "significantly diminished" while in the school setting - School authorities need not obtain a search warrant or other authorization before con­ducting a search - The court held that where there were reasonable grounds to believe that a school rule was violated and that evidence of such violation would be found on a search, and where the search was conducted reasonably and was im­plicitly authorized by the Education Act, s. 8 was not violated - See paragraphs 1 to 64.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes - A junior high school vice-principal received reliable informa­tion that a 13 year old student was selling drugs on school property and would be in pos­session of drugs at a school dance - The vice-principal called the R.C.M.P., then requested that the student come to his office to be searched - The student rolled up his pant leg and had a bag of marijuana hidden in his sock - The R.C.M.P. officer arrived during the search, but sat by only as an observer (i.e. not an agent of police) - The vice-principal voluntarily turned over the marijuana to the officer, who then arrested the student and advised him of his rights - The Nova Scotia Court of Appeal rejected the submission that the student was detained when asked to go to the vice-principal's office or when the R.C.M.P. officer first arrived - The stu­dent was subject to school discipline and required to attend to undergo reasonable disciplinary or investigatory procedures at the request of school staff - The student was not detained until he was arrested - Absent "detention", there was no violation of his s. 10(b) Charter right to counsel where he was advised of his rights upon his arrest - The Supreme Court of Canada affirmed that the student was not detained for the purposes of s. 10(b) - See para­graphs 65 to 68.

Civil Rights - Topic 4613

Right to counsel - Requirement of arrest or detention - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 8305

Canadian Charter of Rights and Freedoms - Application of - Persons protected - Students - A junior high school vice-prin­cipal received reliable information that a 13 year old student was selling drugs on school property and would be in pos­session of drugs at a school dance - The vice-principal called the R.C.M.P., then requested that the student come to his office to be searched - The student rolled up his pant leg and had a bag of marijuana hidden in his sock - The R.C.M.P. officer arrived during the search, but sat by only as an observer - The Supreme Court of Canada stated that "it would be best to assume simply, for the purposes of this case, that schools constitute part of gov­ern­ment and as a result the Charter applies to the actions of the vice-principal" - See paragraphs 24 to 25.

Education - Topic 5229

Students - Discipline and dismissal - Search and seizure by school authorities - The Supreme Court of Canada stated that "[t]he approach to be taken in considering searches by teachers may be summarized in this manner: (1) A warrant is not essen­tial in order to conduct a search of a student by a school authority. (2) The school authority must have reasonable grounds to believe that there has been a breach of school regulations or discipline and that a search of a student would reveal evidence of that breach. (3) School au­thorities will be in the best position to assess information given to them and relate it to the situation existing in their school. Courts should recognize the preferred position of school authorities to determine if reasonable grounds existed for the search. (4) The following may constitute reasonable grounds in this context: infor­mation received from one student con­sidered to be credible, information received from more than one student, a teacher's or principal's own observations, or any com­bination of these pieces of information which the relevant authority considers to be credible. The compelling nature of the information and the credibility of these or other sources must be assessed by the school authority in the context of the cir­cumstances existing at the particular school." - See paragraph 50.

Students - Discipline and dismissal - Search and seizure by school authorities - [See Civil Rights - Topic 1217 ].

Education - Topic 5283

Students - Students' rights - Expectation of privacy - [See Civil Rights - Topic 1217 ].

Students - Students' rights - Expectation of privacy - The Supreme Court of Canada stated that "the reasonable expec­tation of privacy of a student in attendance at a school is certainly less than it would be in other circumstances. Students know that their teachers and other school author­ities are responsible for providing a safe en­vironment and maintaining order and discipline in the school. They must know that this may sometimes require searches of students and their personal effects and the seizure of prohibited items. It would not be reasonable for a student to expect to be free from such searches. A student's reasonable expectation of privacy in the school environment is therefore signifi­cant­ly diminished." - See paragraph 33.

Cases Noticed:

R. v. J.M.G. (1986), 17 O.A.C. 107; 56 O.R.(2d) 705 (C.A.), consd. [para. 11].

New Jersey v. T.L.O. (1985), 469 U.S. 325 (U.S.S.C.), consd. [para. 17].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193, refd to. [para. 18].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241; 66 C.R.(3d) 297; 45 C.C.C.(3d) 296, refd to. [para. 19].

British Columbia Securities Commission v. Branch and Levitt, [1995] 2 S.C.R. 3; 180 N.R. 241; 60 B.C.A.C. 1; 99 W.A.C. 1; 97 C.C.C.(3d) 505, refd to. [para. 19].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1; 76 D.L.R.(4th) 545; 2 C.R.R.(2d) 1, refd to. [para. 24].

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340, refd to. [para. 24].

Eldridge et al. v. British Columbia (At­torney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 24].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189; 8 C.R.R.(2d) 274; [1992] 1 W.W.R. 289; 9 C.R.(4th) 1; 84 Alta. L.R.(2d) 1; 68 C.C.C.(3d) 308, appld. [para. 29].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136, refd to. [para. 31].

Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841; 225 N.R. 297, refd to. [para. 31].

R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81; 87 C.C.C.(3d) 193, refd to. [para. 31].

R. v. Wong et al., [1990] 3 S.C.R. 36; 120 N.R. 34; 45 O.A.C. 250; 60 C.C.C.(3d) 460, refd to. [para. 31].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 33].

Zamora v. Pomeroy (1981), 639 F.2d 662, refd to. [para. 34].

People v. Overton (1969), 301 N.Y.S.2d 479, refd to. [para. 34].

State in Interest of T.L.O. v. Engerud (1983), 94 N.J. 331, affd. (1985), 469 U.S. 325, refd to. [para. 34].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 46].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481, refd to. [para. 67].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289, refd to. [para. 67].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 85].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 85].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81; 18 C.C.C.(3d) 405, refd to. [para. 85].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81; 104 C.C.C.(3d) 23, refd to. [para. 87].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 10(b), sect. 24(2), sect. 32(1) [para. 8].

Education Act, R.S.N.S. 1989, c. 136, sect. 54(b), sect. 54(g) [para. 8].

Education Act Regulations (N.S.), General Regulations, Reg. 226/84, sect. 3(7), sect. 3(9) [para. 8].

Authors and Works Noticed:

Fischer, Thomas C., From Tinker to TLO; Are Civil Rights for Students "Flunking" in School? (1993), 22 J.L. & Education 409, generally [para. 42].

Sanchez, J.M., Expelling the Fourth Amendment from American Schools: Students' Rights Six Years After T.L.O. (1992), 21 J.L. & Education 381, generally [para. 42].

Mona Lynch and Cathy Benton, for the appellant;

Ivan G. Whitehall, Q.C., and Paula Taylor, for the respondent.

Solicitors of Record:

Nova Scotia Legal Aid, Halifax, N.S., for the appellant;

Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on June 25, 1998, before Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.

On November 26, 1998, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Cory, J. (Lamer, C.J.C., L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Bastarache and Binnie, JJ., concurring) - see paragraphs 1 to 69;

Major, J., dissenting - see paragraphs 70 to 90.

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Supreme Court Speaks on School Searches

Date: May 28, 2008

On April 25th the Supreme Court of Canada issued a much anticipated decision concerning a sniffer dog search of a high school that led to drug related charges against a student. A 6-3 majority of the Court held that the police violated the student’s Charter right to be free from unreasonable search and seizure and held that the evidence of drug possession found by the police should be excluded from use at trial. The decision, called R. v. A.M. , is significant because it establishes a standard for police searches on school premises. It does not directly speak to a school board’s own power to conduct searches of individual students or school premises.

THE M.R.M. CASE

Before discussing A.M. , we will review the Supreme Court of Canada’s leading case on school board searches. In 1997, in a case called “ M.R.M. ,” the Supreme Court recognized that teachers and principals must be able to react quickly to problems that arise in schools and, hence, should have greater search powers than those enjoyed by the police.

In M.R.M. , a junior high school vice-principal received information from several students that “M.R.M.” was selling drugs on school property and also received specific information from one of the student informants that M.R.M. would be carrying drugs to a school dance. When M.R.M. arrived at the dance, the vice-principal called the RCMP, asked M.R.M. to come to his office and then searched him in the presence of the RCMP officer. M.R.M. turned out his pockets and pulled up his pant legs, and the vice-principal found a bag of marijuana hidden in M.R.M.’s sock. He was then arrested and charged with possession of a narcotic.

The trial judge excluded the evidence which had been found in the search because the vice-principal had violated M’s right to be secure against “unreasonable search and seizure” as granted by section 8 of the Canadian Charter of Rights and Freedoms . This finding was ultimately overturned by the Supreme Court. In disposing of the case, the Supreme Court established the following rule (in our words) for “body searches” of students:

A school official who acts within the authority granted by the relevant education statute can search a student without a warrant when he or she has reasonable grounds to believe that a school rule has been or is being violated, and that evidence of the violation will be found in the location or on the person of the student searched.

The Court also said that courts should generally defer to the judgement of teachers and principals in determining whether there was enough evidence of wrongdoing to justify a search. It said that a body search could be justified by:

• information received from one student considered to be credible;
• information received from more than one student;
• a teacher’s or principal’s own observations; or
• any combination of these pieces of information which are considered to be credible.

THE A.M. CASE

The facts in A.M. are very different than those in M.R.M . In A.M. , a principal extended an open invitation to police to come onto school property and conduct sniffer dog searches. On the day in question, the police called the principal and received permission to enter the school. Students were told to remain in their classrooms while the police conducted the search. While searching a gymnasium, a sniffer dog identified “A.M.’s” backpack. The police opened it and found narcotics and drug paraphernalia. A.M. was arrested and charged with possession for the purpose of trafficking.

At trial, the principal admitted that he did not have any reason to believe that drugs would be found in the gymnasium. He could only testify to a general suspicion that drugs would likely be found somewhere in the school.

Five of the nine judges in the A.M. decision held that police can perform sniffer dog searches of schools without a warrant based on a “reasonable suspicion” but that the police did not meet this standard in conducting the search that led them to A.M.’s backpack. A reasonable suspicion exists when some objective evidence has led the police to believe that a targeted person has possibly engaged in criminal activity or that a “group of people closely linked in proximity” has possibly engaged in criminal activity. The problem in A.M. was that there was only general speculation about the presence of drugs in the entire school.

Importantly, A.M. establishes a standard for searches of school premises conducted by the police. The majority made a point of affirming the general principle from M.R.M. – that in matters of school discipline, a broad measure of discretion and flexibility will be afforded to school authorities. The majority also held that this principle did not apply in A.M. because the search was conducted by the police on their own initiative.

A.M. was not resolved in a manner that significantly alters or speaks to the law regarding searches conducted by school boards themselves. When police search schools using sniffer dogs or conduct similar “premises” searches, it is now clear they must meet the reasonable suspicion standard. Searches conducted by school boards themselves continue to be subject to different rules. School boards should only conduct body searches of students in compliance with the rules established by the Supreme Court in M.R.M . Regarding other searches by school boards – locker searches, for example – school boards arguably have significantly greater latitude to conduct such searches than police.

School boards should appreciate, however, that the right to be free from unreasonable search and seizure that is guaranteed by section 8 is conditioned on the level of privacy expected by an individual. Therefore, in order to ensure their searches are lawful, school boards should establish and publish policies that clearly communicate the searches that principals may conduct and the conditions that principals will abide by in conducting searches. And while a school board’s power of search is broad, we suggest that any school policy that permits routine or generalized suspicion searches be approached with caution based on input from legal counsel.

For more information on the issue of school searches, information and privacy or safe schools please contact Dolores Barbini (416-864-7303, Toronto), or George Vuicic (613-549-6353, Ottawa).

The articles in this Client Update provide general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©

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Supreme Court of Canada

PUBLIC SCHOOL LOCKER SEARCH AND REASONABLE EXPECTATION OF PRIVACY

In a recent case, the Court of Appeals of Texas, Eighth District (El Paso), decided  In the Matter of S.M.C .[i] which involved a search of a student’s locker in a public school.  Called into question was  whether the search of a student’s locker was conducted without any reasonable suspicion and in violation of his rights under the Fourth Amendment of the United States Constitution, as well as Article I, Section 9 of the Texas Constitution.

The facts of  S.M.C . are as follows:

[O]n or about March 11, 2009, a student at East Montana Middle School informed Ms. Josephine Angerstein-Guzman, an Assistant Principal, that “[Appellant] is high, you might want to check him out.” The same student had on a previous occasion discussed with Angerstein-Guzman Appellant’s use of drugs before school… Angerstein-Guzman and [Officer] Harrison escorted Appellant to the nurse’s office, where nurse’s aide Gonzalez was present. Angerstein-Guzman requested that campus security Officer Ponce attend Gonzalez’ examination of Appellant. Upon examination, Gonzalez found Appellant’s eyes to be red, but did not consider him to be under the influence of drugs.  Angerstein-Guzman, who had previous experience in observing individuals with red, glossy, and dilated eyes who were under the influence of drugs, observed Appellant’s eyes to be red as well as slightly glossy and dilated. Although Appellant asserted that pink eye and eye drops were the cause of his red eyes, Gonzalez had no parental note indicating that Appellant had pink eye or was otherwise being treated for that ailment. Gonzalez acknowledged that Appellant’s red eyes could have resulted from smoking marijuana. Angerstein-Guzman testified that upon receiving the tip and seeing Appellant’s eyes,  she suspected that he had used something, even if it was not enough to charge him with being under the influence. She also testified that the school’s administration follows through on every tip that comes in. In accordance with school procedure, Angerstein-Guzman continued to investigate the possibility that Appellant was under the influence of or had drugs at school. Angerstein-Guzman explained that when conducting a search, school  officials search the person’s belongings, backpack, person, pockets and “[i]f there is reasonable suspicion, we go ahead and continue to search lockers [and] vehicles, if we need to[.]”  Angerstein-Guzman stated that her training and experience have demonstrated that students hide drugs in shoes, notebooks, backpacks, lockers, and vehicles. Appellant’s notebook was searched for packets or residue of drugs, but none were found. Officer Ponce did a “pat down” search of Appellant for weapons. Appellant was asked to untuck his shirt and run his own fingers along the waistband of his pants, empty and turn out his pockets, and remove his socks and shoes but no drugs were found. Angerstein-Guzman then directed Officers Ponce and Harrison to check Appellant’s locker because he may have been hiding drugs there. Appellant was asked to accompany the officers to the locker. Officer Harrison asked Appellant if he had anything illegal in his locker, and Appellant initially said that he did not, but upon arriving at the locker, Appellant informed the officers that he had a belt buckle. As Officer Ponce proceeded to open the locker, Appellant told the officers that he had brass knuckles. As Officer Ponce pulled a backpack from Appellant’s locker, Officer Harrison noted that there was something shiny in the backpack. Officer Harrison reached into the backpack and retrieved brass knuckles, a weapon whose possession is prohibited on school premises. Tex. Penal Code Ann. §§ 46.03(a)(1), 46.05(a)(6). No other contraband was discovered in the locker.

The Clint Independent School District’s Student Code of Conduct was admitted into evidence along with a receipt signed by Appellant and his mother, acknowledging that they had received, read, and agreed to abide by the Code of Conduct. The Code of Conduct provides:

Students shall have a diminished expectation of privacy while under the jurisdiction of the District. School administrators may search a student’s outer clothing, pockets, or property by establishing reasonable suspicion or securing the student’s voluntary consent. . . . Areas such as lockers, which are owned by the District and jointly controlled by the District and student, may be searched, and school Administrators may routinely conduct blanket locker searches. Students shall not place, keep, or maintain any article or material in school-owned lockers that is forbidden by District Policy or that would lead school officials to reasonably believe that it would cause a substantial disruption on school property or at a school-sponsored function. Students are responsible for any prohibited item found in their possession, in their lockers, or in vehicles parked on school property, and shall be subject to appropriate school disciplinary action in accordance with this CISD Student Code of Conduct and/or [prosecution]…

East Montana Middle School Principal Alfredo Solis testified that school lockers are searched “continuously,” and that students are aware of the searches. When random searches are performed at the school, they are typically performed sporadically with the assistance of a dog. [ii]

S.M.C. filed a motion to suppress and argued that the search of his locker violated the  Fourth Amendment of the United States Constitution  and  Article I, Section 9 of the Texas Constitution .  The trial court denied the motion and adjudicated S.M.C. delinquent.  S.M.C. appealed the denial of his motion to suppress to the Court of Appeals of Texas, Eighth District, El Paso.

The issue before the court was characterized as  whether the search of his locker was conducted without any reasonable suspicion and in violation of his rights under the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Texas Constitution. 

The court then examined  New Jersey v. T.L.O.  [iii] , the lead United States Supreme Court case regarding the standard to determine the reasonableness of searches conducted in the public school setting.  The Supreme Court held that there are two requirements for an in-school search conducted by school personnel to be reasonable under the Fourth Amendment.  First, the search must be  justified at its inception .  A search is justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Second, the  scope of the search must be reasonably related to the circumstances which justified the search .  This means that the manner and extent of the search must be reasonably related to the objectives of the search and not overly intrusive in light of the nature of the infraction and the age and sex of the student.

On appeal, S.M.C. argued that because Gonzales did not believe that he was under the influence of drugs, and because the tip did not indicate that he was in possession of drug, the search of his person and his locker were not supported by the required reasonable suspicion.  The court of appeals, after examining the facts of the case, determined that the initial search of S.M.C. was justified when a known student reported to the assistant principal that S.M.C. was “high.”

Further, after conducting this initial search, Gonzales and Angerstein-Guzman observed that S.M.C.’s eyes were red and his pupils were dilated.  Both also testified that they had observed students who had been smoking marijuana with similar physical manifestations.  Based upon the tip and these facts, the court stated:

While it is true that no drugs were found during the initial search of Appellant’s notebook and clothing, both Gonzalez and Angerstein-Guzman had observed that persons who smoke marijuana thereafter exhibit red eyes with dilated pupils, and Angerstein-Guzman testified that some students hide contraband in the school lockers. Angerstein-Guzman had reasonable grounds for suspecting that a search of Appellant’s locker would produce evidence that he was violating school rules, namely that Appellant had contraband in the locker. [iv]

The court of appeals then concluded that the subsequent search of the locker was reasonably related in scope to the circumstances that initially justified the search; further they concluded that the search was not excessively intrusive. [v]

The court of appeals then spoke to whether S.M.C. even possessed a reasonable expectation of privacy in his locker.  The court stated:

[T]he Code of Conduct informs students and parents that school lockers, which are owned by the school district, may be searched and that students are responsible for any prohibited items, such as knuckles, that are found in his or her school locker. Therefore, the trial court’s conclusion that a student, here Appellant, does not have a legitimate expectation of privacy in a school locker was correct. [vi]

As such, the court of appeals affirmed the denial of the motion to suppress.

___________________________________________ NOTE:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

CITATIONS:  

[i] No. 08-09-00184-CV, 2011 Tex. App. LEXIS 2069 (Decided March 23, 2011)

[ii]  Id.  at 2-5

[iii] 469 U.S. 325 (1985)

[iv]  S.M.C.  at 13

[v]  Id.  at 13-14

[vi]  Id . at 14 (see  Shoemaker v. State , 971 S.W.2d 178, 182 (Tex. App. – Beaumont 1998, no pet.) (court of appeals held that a student does not have a reasonable expectation of privacy in his school locker, which is school property that remains under the control of the school authorities))

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Privacy in Schools: Dogs, Lockers, Bodies and Backpacks

Cases Considered: R. v. Kang-Brown , 2008 SCC 18 , R. v. A.M., 2008 SCC 19.

PDF Version: Privacy in Schools: Dogs, Lockers, Bodies and Backpacks

I would like to believe that teenagers are protected from all of the evils of the world when they are at school. At the same time, teenagers are growing into adults and do have rights, such as a reasonable expectation of privacy. The Canadian Charter of Rights and Freedoms (“ Charter “) s. 8 provides that:

8. Everyone has the right to be secure against unreasonable search or seizure.

This section applies to everyone, including young people. This actually makes sense, as society expects them to be contributing citizens once they turn 18. In order to be full citizens, with both rights and responsibilities, they have to have some experience with these. One rights issue that tests parents’ protective instincts is the area of searches, including those using drug sniffing dogs in schools. The law on this issue is actually quite complex, and this post discusses some of the key cases that will affect decisions about what kinds of searches are reasonable in Alberta schools.

Backpacks Two recent decisions of the Supreme Court of Canada have provided some much needed guidance on searching backpacks using sniffer dogs. In R. v. A.M. , 2008 SCC 19 (“ A.M. “), the police had a long-standing invitation from the principal of a high school to bring sniffer dogs into the school to search for drugs. The police had no knowledge that there were drugs in the school and they would not have been able to obtain a warrant to search the school. During the police’s visit to the school, the students were confined to their classrooms as a trained police dog sniffed their backpacks in an empty gymnasium. The dog led police to a backpack which contained marijuana and magic mushrooms. A youth (A.M.) was subsequently charged with possession of marijuana for the purpose of trafficking. In 2004, the Ontario Court of Appeal upheld a trial judge’s decision to exclude the drugs as evidence and acquit the youth. The Court held that the accused’s rights under Charter s. 8 had been violated. The Crown appealed to the Supreme Court of Canada.

In a 6-3 majority, the S.C.C. held that the dog sniff amounted to a “search” within s. 8 of the Charter . The S.C.C. held that the subject matter of the sniff is not public air space. It is the concealed contents of the backpack. As with briefcases, purses and suitcases, backpacks are the repository of much that is personal, particularly for people who lead itinerant lifestyles during the day as in the case of students and travellers. Teenagers may have little expectation of privacy from the searching eyes and fingers of their parents, but they expect the contents of their backpacks not to be subject to the random and speculative scrutiny of the police. This expectation is a reasonable one that society should support. The guilty secret of the contents of the accused’s backpack was specific and meaningful information, intended to be private, and concealed in an enclosed space in which the accused had a continuing expectation of privacy. By use of the dog, the policeman could “see” through the concealing fabric of the backpack. ( A.M. , paras. 62 to 67).

The S.C.C. also noted that a warrantless search using sniffer dogs would be justified in the case where the police held a reasonable suspicion. However, in this case, there was no proper justification for the search ( A.M. , para. 91).

The dissenting justices argued that the accused did not have a reasonable expectation of privacy in light of the circumstances of the case. Students and parents had been made aware of the drug problem and the zero-tolerance drug policy and of the fact that sniffer dogs might be used. Dogs had in fact been used on prior occasions to determine whether narcotics were present at the school. While school policy must be implemented in a manner consistent with a legitimate expectation of privacy, the well-advertised means devised and used by the school reduced the accused’s subjective expectation of privacy very significantly ( A.M. , para. 129).

In a companion case released the same day, R. v. Kang-Brown , 2008 SCC 18, the accused was found with cocaine and heroin when his bags were flagged by a drug sniffing dog at a Calgary bus terminal in 2002. The S.C.C. held that the warrantless police search was a random search based on the notion that sometimes buses running from Vancouver to Calgary are used by drug couriers. Thus, there was no proper justification for the search.

The implication of these cases for Alberta schools is that drug-sniffing dogs cannot be brought into schools to search backpacks unless there is a reasonable suspicion that students possess drugs. However, other cases (discussed below) indicate that students do have a diminished expectation of privacy in the school setting and that in some circumstances, warrantless searches of their person, their backpacks or their lockers might be constitutional.

Body Searches In R. v. M.R.M. , [1998] 3 S.C.R. 393, a student attending a school dance was searched by the vice-principal and was found to be secreting a bag of marijuana in his sock. The vice-principal had acted on information he had received from “several students that the appellant was selling drugs on school property” and “had reason to believe this information because the students knew the appellant well and one of them had, on an earlier occasion, given him information which had proven to be correct” (at para. 6).

The majority (per Justice Cory) accepted that a student attending school has a reasonable expectation of privacy so as to engage s. 8 of the Charter . However, Cory J. reasoned (at para. 33):

Students know that their teachers and other school authorities are responsible for providing a safe environment and maintaining order and discipline in the school. They must know that this may sometimes require searches of students and their personal effects and the seizure of prohibited items. It would not be reasonable for a student to expect to be free from such searches. A student’s reasonable expectation of privacy in the school environment is therefore significantly diminished.

Cory J. adopted (at para. 42) the test established in the majority decision of the United States Supreme Court in New Jersey v. T.L.O. , 469 U.S. 325 (1985), aff’g 94 N.J. 331 (1983) that “dispenses not only with the warrant requirement but also with the need for probable cause, imposing instead a generalized standard of reasonableness in all the circumstances.” In rejecting the application of the “reasonable and probable grounds” requirement for a reasonable search enunciated in Hunter et al. v. Southam Inc. , 1984 CanLII 33 (S.C.C.), [1984] 2 S.C.R. 145, Cory J. reasoned (at paras. 47 and 48):

Yet teachers and principals must be able to act quickly to protect their students and to provide the orderly atmosphere required for learning. If a teacher were told that a student was carrying a dangerous weapon or sharing a dangerous prohibited drug the parents of all the other students at the school would expect the teacher to search that student. The role of teachers is such that they must have the power to search. Indeed students should be aware that they must comply with school regulations and as a result that they will be subject to reasonable searches. It follows that their expectation of privacy will be lessened while they attend school or a school function. This reduced expectation of privacy coupled with the need to protect students and provide a positive atmosphere for learning clearly indicate that a more lenient and flexible approach should be taken to searches conducted by teachers and principals than would apply to searches conducted by the police.

A search by school officials of a student under their authority may be undertaken if there are reasonable grounds to believe that a school rule has been or is being violated, and that evidence of the violation will be found in the location or on the person of the student searched. Searches undertaken in situations where the health and safety of students is involved may well require different considerations. All the circumstances surrounding a search must be taken into account in determining if the search is reasonable.

Cory J. summarized the approach to be taken in considering searches by teachers as follows (at para. 50):

(1) A warrant is not essential in order to conduct a search of a student by a school authority. (2) The school authority must have reasonable grounds to believe that there has been a breach of school regulations or discipline and that a search of a student would reveal evidence of that breach. (3) School authorities will be in the best position to assess information given to them and relate it to the situation existing in their school. Courts should recognize the preferred position of school authorities to determine if reasonable grounds existed for the search.

(4) The following may constitute reasonable grounds in this context: information received from one student considered to be credible, information received from more than one student, a teacher’s or principal’s own observations, or any combination of these pieces of information which the relevant authority considers to be credible. The compelling nature of the information and the credibility of these or other sources must be assessed by the school authority in the context of the circumstances existing at the particular school.

Lockers Generally, school lockers are the property of the school board and are used by the students only with the permission of the school. Schools are advised to inform each student of the school’s right to search lockers (including removal of locks) and should have appropriate policies in place that they communicate to students, so that the students have a reduced expectation of privacy (see: E. Roher and S. Wormwell, An Educator’s Guide to the Role of the Principal , Canada Law Book, 2008 at 280).

In R. v. Z (S.M.) (1998), 131 C.C.C.(3d) 136 (Man. C.A.), the vice-principal of a junior high school conducted a locker search of a 15 year old student’s locker, after reports of drug use in the school. Students had reported that the student (“Z”) was present when drug use took place or was associated with other students thought to be involved in drugs. Also, there were reports of illness associated with drug use. On the morning of the search, Z was absent without permission and had returned to the school through an entrance that was not usually open during the day. These factors caused the vice-principal to suspect that Z may have picked up drugs that day. The vice-principal searched Z’s locker and found some marijuana. The trial judge acquitted Z, holding that the search was unconstitutional. The summary conviction appeal judge overturned the acquittal. The Manitoba Court of Appeal agreed and the conviction was upheld.

It remains to be seen how A.M. and Kang-Brown will influence these earlier decisions concerning searches on school property. The reasonable expectation of privacy will likely continue to be assessed in a contextual fashion, based on the particular circumstances of the case.

An earlier version of this post was published in LawNow Volume 33 No. 4.

About Linda McKay-Panos

3 responses to privacy in schools: dogs, lockers, bodies and backpacks.

Interesting article! I’m curious, does it say teachers or police can search a students cell phone without warrant?

Manitoba K12 ICT Supt. I would think it reasonable then to view/treat System Folders & Network Shares (Data Storage on District Servers/networks) as ‘Virtual’ school lockers. They are secured to provide privacy to the student but are provided and maintained by the school district.

The district gain gain access based on reasonable cause with or without the student’s permission?

Thoughts…?

What if the student is a minor? Can the principal search their backpack without a parent present?

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Landmark Case: Sniffer Dogs, School Searches, and the Charter: R. v. A.M.

Each OJEN Landmark Case includes a case summary, classroom discussion questions and worksheets that encourage students to explore both the legal and societal importance of the case.

In 2002, the police accepted a standing invitation from a principle at a Sarnia, Ontario high school to bring sniffer dogs into the school to search for drugs. The sniffer dog reacted to A.M.’s backpack and, without obtaining a warrant, the police opened the backpack and found illegal drugs. A.M. was arrested and charged with possession of drugs for the purpose of trafficking. A.M. argued that his right to be free from unreasonable search or seizure under s. 8 of the Canadian Charter of Rights and Freedoms had been violated, and that the evidence should therefore be excluded under s. 24(2) of the Charter .

The Supreme Court of Canada (SCC) held that students are entitled to privacy in a school environment and police do not have the right to conduct searches of public spaces when the search is not authorized by statute or at common law. Since there was no authority for the police search of A.M.’s backpack, it amounted to a violation of s. 8 of the Charter . The SCC ruled that the evidence should be excluded pursuant to s. 24(2) of the Charter . The full decision is available here.

Date Produced: 2009

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R. v. A.M., 2008 SCC 19 (CanLII), [2008] 1 SCR 569

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