August 30, 1994
Subject: Metal Detector Searches In Schools
Written By: Lynne Schroering
Requested By: J. Stephen Kirby
Syllabus: It is constitutionally permissible for school officials to use a metal detector to determine if students are carrying weapons into school; however, the school district should adopt policies to ensure the reasonableness of the metal detector search.
OPINION OF THE ATTORNEY GENERAL
The Office of the Attorney General has been requested to address the constitutionality of using metal detectors to ascertain if students are carrying weapons into public schools.
It is the opinion of the Attorney General that the use of metal detectors to search for weapons in public schools is constitutional if the search is reasonable and follows established school district policies. In this opinion, we shall discuss the applicable law governing searches in public schools and conclude with a list of recommendations which may be considered by a school district desiring to use metal detectors in schools.
We believe that the use of metal detectors to detect weapons which may be carried into schools is consistent with recent statutes enacted by our General Assembly. In 1994 the legislature enacted two statutes which address the growing problem of school violence and juveniles carrying weapons. The first statute, KRS 527.070, makes it unlawful for any person to possess a weapon on school property. The second statute, KRS 527.100, prohibits persons under the age of 18 from possessing a handgun. We note that both KRS 527.070 and KRS 527.100 contain several exceptions which are not relevant to the issue before us. These new statutes recognize the need for society to confront the problem of juvenile violence. The use of metal detectors to detect weapons in the possession of students entering the school building may be an effective control on school violence. However, school districts faced with the duty to protect their students from harm must also be cognizant of the privacy rights of students.
The Fourth Amendment of the United States Constitution is designed to protect individuals from unlawful government searches and seizures. The Fourth Amendment is applicable to the states through the Fourteenth Amendment. Ker v. State of California, 374 U.S. 23, 30, 69 S.Ct. 1359 (1963). The United States Supreme Court held that the protection against illegal searches applies to searches conducted by public school officials since school children have a reasonable expectation of privacy. New Jersey v. T.L.O., 469 U.S. 325, 338, 105 S.Ct. 733, 741 (1985).
As a general rule, a search warrant based on probable cause is required before the belongings or body of an individual may be searched. However, among the exceptions to this rule, two exceptions exist wherein school officials may conduct limited searches: First, a warrant is not necessary for a search conducted pursuant to the administrative search doctrine which allows warrantless searches at airports and courthouses. Second, a warrant is not required for a school search that is consistent with the Court's opinion in New Jersey v. T.L.O. and based on the reasonable suspicion that a particular student has violated the law or school policy. We shall explain the two theories.
ADMINISTRATIVE SEARCH DOCTRINE
One exception to the warrant requirement for a search is the administrative search doctrine. The theory behind this doctrine "is that searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of a crime, may be permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched." United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973).
Historically, the administrative search doctrine has been used to support the use of metal detector searches in airports and sensitive government facilities, such as courthouses. Now, because of the increased number of weapons in schools, it also provides the necessary support for the installation of metal detectors in school buildings.
The goal of an administrative search is not to discover and arrest the individuals who are carrying concealed weapons. Rather, the objective in an administrative search is to deter these individuals from even bringing their weapons with them when they enter a public location such as an airport or courthouse. United States v. Albarado, 495 F.2d 799, 804 (2d Cir. 1974). Notwithstanding the deterrence objective, an individual may be charged with a crime discovered during an administrative search.
As is the case with other searches, an administrative search must also be conducted in a "reasonable" manner. The "reasonableness" of a search is determined by balancing the individual's privacy interest against the government's interest in promoting public safety. Because the government's interest is ordinarily the greater of the two, it follows that the use of metal detectors in highly congested public facilities is a "reasonable" way to protect the public without violating the Fourth Amendment. Id.
The airport search developed in response to a wave of airline highjackings. United States v. Albarado, 495 F.2d 799, 803 (2d Cir. 1974). The Albarado court noted that there "is a compelling need for a search to detect weapons before they are brought on an airplane." Id. at 805. Additionally, the Albarado court noted that use of a metal detector involves only a minimal invasion of privacy. Id. at 806. See also, United States v. Dalpiaz, 494 F.2d 374, 376 (6th Cir. 1974).
The administrative search doctrine has also been used to uphold the validity of metal detector searches in courthouses. In McMorris v. Alioto, 567 F.2d 897 (9th Cir. 1978), the court held that the metal detector search of persons who enter a courthouse does not violate the fourth amendment.
The Sixth Circuit upheld the administrative search of all persons entering a federal courthouse in Downing v. Kunzig, 454 F.2d 1230, 1232 (6th Cir. 1972). While the Downing case involved a physical search of a lawyer's briefcase, and not the use of a metal detector, the case balanced the government's interest in a safe courthouse against the limited intrusion of a brief stop to examine a package or briefcase of all persons entering the courthouse. Id.
NEW JERSEY V. T.L.O.
Another exception to the warrant requirement for searches of students involves an application of the Supreme Court case of New Jersey v. T.L.O., supra. In New Jersey v. T.L.O. the Supreme Court stated that the Fourth Amendment commands that all searches and seizures be conducted in a "reasonable" manner. 469 U.S. at 336. However, the definition of "reasonable" varies according to the particular circumstances surrounding a search or seizure. In order to determine if a school search is reasonable, the student's interest in privacy must be balanced against the interests that the teachers and administrators have in maintaining discipline and running an orderly school. T.L.O., 469 U.S. at 340.
In New Jersey v. T.L.O. the Court held that the legality of a search of a student depends on the "reasonableness under all the circumstances of the search." 469 U.S. at 341. Two factors must be evaluated in order to determine if a search of a student was "reasonable." The first step is to determine if the action was "justified at its inception." In order for a search to be justified at its inception there must be reasonable grounds for suspecting that the search will turn up evidence that the student has broken either the law or the rules of the school. T.L.O., 469 U.S. at 341 (citing Terry v. Ohio, 392 U.S. at 20). The second step is to determine if the search was "reasonably related in scope to the circumstances which justified the interference in the first place." T.L.O., 469 U.S. at 341 (citing Terry v. Ohio, 392 U.S. 20). The Court elaborated on the meaning of the second step when it stated that a search of a student by a school official will be "permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." T.L.O., 469 U.S. at 342.
Kentucky applies the "reasonable suspicion" standard to school searches. Prior to the Supreme Court's T.L.O. decision, the Kentucky Court of Appeals stated that reasonable suspicion, as opposed to probable cause, was the appropriate level of suspicion required for a school official to search a student without the presence of law enforcement personnel. Rone v. Daviess County Board of Education, Ky. App., 655 S.W.2d 28, 30 (1983).
METAL DETECTORS IN SCHOOLS
At the date this opinion is written there are no published Kentucky or Supreme Court cases addressing the constitutionality of using metal detectors in schools. We have located only one reported case dealing with the use of metal detectors to detect weapons on persons entering a school building. In the New York case of People v. Dukes, 580 N.Y.S.2d 850, 853 (1992), the court held that an administrative search with a metal detector of students entering a public school was reasonable. Utilizing a balancing test, the court concluded that the scanning of students with a metal detector is minimally intrusive compared to the great public interest in a "violence-free atmosphere" at schools. Id. at 853.
The court in People v. Dukes noted that generally in administrative searches at the airport or courthouse people have an opportunity to walk away and not be searched. Id. Thus, any further search is based on the consent of the individual. However, in the school setting, a student is not allowed to walk away during the middle of a search since this would encourage truancy. The court found that the consent element in the school setting would be almost impossible to administer. In conclusion, the court reasoned that the metal detector search in the school setting is minimally intrusive despite the absence of consent. Id.
It is clear that administrative searches are used to promote public safety and decrease violence in high traffic areas such as airports and courthouses. There seems to be no reason why the administrative search doctrine cannot also be used to decrease violence in public schools. The goal of using metal detectors is to deter students from bringing weapons to school in the first place. If metal detector searches in schools are conducted in a similar manner as airport and courthouse searches there should be no problem protecting the Fourth Amendment rights of students.
Due to the paucity of case law regarding the use of metal detectors at school, we believe that Opinion No. 92-201 of the Attorney General of California is helpful for guidance in this new area of law. This opinion provides several logical guidelines to help ensure the reasonableness of metal detector searches.
Our office is not mandating that each school district follow our recommendations listed below to conduct a reasonable metal detector search. We have given suggestions to assist a district in creating an appropriate school district policy to
insure that the privacy interests of the students are sufficiently balanced against the need to remove weapons from the school setting.
Before a school begins using metal detectors to search students for weapons the school board should enact a school district policy setting forth the problems in the school district with student violence or students bringing weapons to school. Additionally, the board policy should contain procedures to be followed by school employees in conducing the metal detector searches.
One of the most important safeguards to ensure a reasonable search is to give advance notice of the existence of metal detector searches, including the use of signs, written notice to the student and parents or a public announcement. The compulsory education law does not grant students an option to avoid attending school. However, the advance notice alerts the students to remove potentially embarrassing items from their belongings before coming to school.
Guidelines may be necessary to ensure a reasonable, non-discriminating search. The concern is that the search will be viewed as unreasonable since the school official has too much discretion in deciding which students should pass through the metal detector. Of course, a search is less likely to be attacked on a discriminatory basis if every person entering the building is required to walk through the metal detector. If all persons are not scanned, then the school district should have specific procedures to be followed to help ensure that the school officials do not exercise arbitrary discretion in determining which persons should be searched. For example, these guidelines could allow the officials to require that one out of every three or four students pass through the metal detector. This type of procedure would lessen the risk that the school official acted with arbitrary discretion in choosing which students were searched but still operate as a deterrence to bringing weapons into the school.
Under the New Jersey v. T.L.O. line of cases, school officials may search a student whom the officials reasonably suspect to be carrying a weapon. This does not mean that a student should be singled out to be searched because he is a discipline problem. Rather, the official should have an individualized reasonable suspicion that the particular student has a weapon.
Prior to beginning the search, the students could be asked to remove all metal objects from their pockets. If the
metal detector is activated, then the student could be asked to pass through the metal detector again. At this point, if the student continues to activate the device, then a more extensive search may be conducted.
Any further search of the student is also governed by the reasonableness under all the circumstances standard and should be conducted with as little intrusion as possible. For example, the student could be asked to accompany the official to a private area where two school officials, preferably of the same sex as the student, would continue the search for the weapon. Policies governing these searches could instruct the officials to limit the search to weapons and "not a general license to search for anything." Albarado, 495 F.2d at 900. Lastly, the search generally should terminate after the item activating the device has been located.
It is important to remember that for purposes of reasonableness of a search under the Fourth Amendment, the court will analyze each stage of the search to ascertain the reasonableness of the conduct of the school official. Thus, it is imperative that the school district enact specific policies or guidelines for its officials to follow in conducting the searches and require training for the individuals operating the scanners.
Assistant Attorney General