BACKGROUND

Known by many names, LPR technology employs cameras and computer software to discern the letters and numbers of vehicle license plates and then compares them with records contained in state and federal databases. While recognition software (used to “see” the letters of the license plate) has become increasingly more accurate over the past several years, early programs had severely low recognition rates. Initially, cameras used to obtain images of vehicles—and, therefore, license plates—had to be mounted in a fixed location. New technology allows the imaging cameras to be placed on the front or roof of a vehicle or in a patrol unit’s light bar. Where LPR technology originally supplemented or replaced other identification devices (e.g., bar codes or radio equipment) to allow access and egress from secure facilities or charge fines or fees for travel or parking, new applications can enable the user to check information against department of motor vehicle or NCIC records.

Initially designed for use in parking lots (to record the time a vehicle entered), for access control (allowing authorized vehicles into a secure area), and for paying tolls, LPR technology recently has expanded into the realms of border control, identification of stolen vehicles, and traffic-fine enforcement (e.g., red-light running), with vendors marketing systems specifically for use by the law enforcement community.

Combating auto theft represents a particularly applicable use of LPR technology. Law enforcement agencies throughout the United States constantly seek tools to locate and recover stolen vehicles, with the ultimate goal of making arrests that not only help solve open auto-theft investigations but other crimes as well. For example, crime analysts often track auto theft as a precursor to robberies.

LITERATURE REVIEW

As early as 2000, immigration officials in the United States and Canada began promoting LPR technology and cargo X-ray scanners.¹ In 2005, patrol stations along the U.S. Mexico border also incorporated the technology to record the entry and exit of vehicles.² However, little academic research on LPR technology has occurred in the United States.

One of the most complete studies, conducted during a 4-month evaluation period in 2004, examined the effectiveness of the technology in identifying stolen vehicles and license plates, as well as vehicles driven by wanted felons.³ While the review of the technology was generally favorable, the report indicated that the software produced over 1.8 million scans during the research period but caused 3,286 alarms, of which 108 were positive (meaning the license plate characters and state matched a valid entry in the computer system). Of particular interest, the study found  that the reader could not match stacked or small characters on a license plate. At least one of the companies that produced the technology for LPR claimed that the device could prove instrumental in thwarting terrorist attacks. However, if the system cannot read stacked or small characters (often found on state commercial license plates), this issue becomes moot.

In Europe, the British Home Office also conducted research on the effectiveness of this technology. The pilot study showed that officers using the mobile plate recognition technology produced 100 arrests per officer per year—10 times the national average per officer.⁴

Mobile or portable LPR units also exist that can be mounted on marked or unmarked police, security, or government vehicles. Because of their portability, mobile devices allow for easy transfer from one vehicle to another. Some require installation onto a cruiser’s light bar; others use magnets that temporarily attach to the roof. Each system has its applications, but end users should determine which format best suits their needs. The magnet-mounted device seems to work well with undercover tactical units as it can be easily transported and mounted on a variety of vehicles with minimal downtime. The portable system affixed to a marked vehicle’s light bar allows consistent camera angles and familiarity with the equipment. In addition, covert devices that can operate in a variety of conditions and applications are now in production.

Data Input and Output

Getting information into the system is critical. Agencies may need the assistance of their criminal justice information administrators to receive daily lists of stolen vehicles, license plates, felony vehicles, and other relevant data. End users should determine a method of delivering that information to the LPR. Stand-alone units will require either a connection to the agency’s network or wireless air card. The other option is a dedicated server connected to all devices, whereby information is collected in real time from respective criminal justice networks and then broadcast to the LPR. Because a combination of fixed and portable units could be deployed, the latter choice may prove the best for agencies with the financial resources to purchase both types. In addition, an important feature would be software that permits individual officers during their tour to input license plate information relevant to vehicles of interest. Because witness descriptions vary, the ability to enter partial license plate data would be useful, similar to entering “wild card” characters into the system.

Uploading stored data also becomes a consideration. Again, the same protocols for retrieval will exist for uploading data. Managers should determine when this will occur, whether at the end of a shift or at a later date, depending on individual needs. Agencies also may consider immediately destroying the data at the end of the shift to alleviate concerns about collecting information. The best course of action lies in developing effective policies and procedures. Also, agencies should examine products that permit remote software updating and troubleshooting. This proves beneficial by keeping all units working properly with minimal downtime.

How the data output may look typically depends on the software installed on the agency’s computer. Usually, a positive match, or “hit,” on a plate includes the vehicle description, date of theft, originating agency, and any hazards and suspects associated with the incident. The system has an alarm, and action will be predicated on agency protocol. Again, agencies should develop policies and procedures related to the apprehension of the vehicle by confirming the hit by running the plate live through the criminal databases. Some vendors have developed tools that do not produce an alarm for the officer who encounters a vehicle of interest. Instead, the system sends an alarm to the investigator requesting the information who then decides whether to have the vehicle stopped or surveillance conducted.

Mobile LPR unit temporarily attached to vehicle’s roof.	LPR unit installed onto cruiser's light bar.
Fixed-mount LPR devices at tollbooth.	LPR unit installed onto cruiser's light bar.

A majority of LPR units take photographs of the license plate and the vehicle simultaneously. Some vendors have the global positioning system (GPS) built into their systems. The combination of the photograph, GPS coordinates, and a time and date stamp can further aid in the location of the vehicle. Because agencies can incorporate GPS into mobile units, they also can implement “geofencing,” the virtual boundary of a geographic area. The monitoring of sexual predators can provide an example. Usually, such offenders are prohibited from certain common types of locations as a condition of their probation or parole. Stationary LPR cameras could geofence these areas. Offender license plate information could be listed in the LPR database and the system programmed to send an alert on a sexual offender present in the geofenced area to dispatchers, patrol officers, or investigators. Then, the agency could discern the reason for the offender being in the area and determine if a violation has occurred.

These units have many potential uses in the law enforcement environment. For example, investigators or analysts could compare information collected from the LPR unit to develop a list of likely leads for further investigation or to place a suspect’s vehicle in close proximity to a crime. This type of application holds a great deal of potential for the end user; however, privacy concerns also exist. Detractors of this technology insist that government will track the movements of ordinary citizens without regard to privacy. Because of these concerns, agencies should develop policies and procedures regarding storage, dissemination, and destruction of data gathered.

CONCLUSION

Although license plate recognition technology has drawbacks and areas where it needs improvement, it can enhance the quality of police service to the community, coupled with an efficient use of personnel. Law enforcement administrators considering this tool would be wise to develop specific policies and procedures that regulate the use of the data acquired from LPR technology. Perceptions of abuse can occur if the data is not stored securely, and safeguarding this information can be crucial for a successful program that sustains approval by the community. In addition, agencies should regulate those who have access to the database and have standing policies on the deletion of data from the system.

While the software and hardware utilized for LPR is far from perfect, it still is a significant resource for combating crime that police administrators should consider. A potential for significant growth in the technology available to law enforcement exists, making LPR equipment and software a viable tool for every department in combating terrorism, vehicle theft, and many other criminal activities.

Police Practice
Addressing High-Crime Motels
By Dan Willis

In yet another eventful day at a local motel, officers responded to an emergency call regarding a methamphetamine lab that a tenant had set up in one of the rooms. The inherent danger of this makeshift drug operation placed the lives and safety of everyone at the facility in danger, and police rushed to resolve the situation. They had become quite accustomed to repeatedly responding to calls for service here because they did so about five times more frequently than at any of the other lodging facilities in the city. Just in the past year, officers had addressed incidents involving crimes, such as prostitution, drug trafficking, gang activity, and murder, at this location. The motel proved to be an ongoing drain on police resources and a source of problems for the vicinity. Reducing illegal conduct at high-crime motels presents a challenge for law enforcement.¹ Poorly managed properties can attract criminal elements that create a substantial risk for victimization, result in an excessive number of police calls for service, and decrease the quality of life in the neighborhood. They produce an environment in which crime-related disturbances become prevalent. And, if officers become ineffective at preventing disorder at such motels, illicit activity can spread to surrounding areas.

THE PROGRAM

The La Mesa, California, Police Department developed a way to reduce arrests and calls for service at crime-prone motels in its jurisdiction. The Motel Crime Prevention Measures Program, a collaborative effort with the city attorney’s office, is designed to gain the willing compliance of the property owner and management in effectuating specific crime prevention measures. This endeavor provides a way for authorities to avoid—and use only as a last resort—civil abatement procedures, which result in substantial costs to both the motel owner and the government.² Fortunately, in many instances, warning of this possible action and notification of the intent of authorities to institute significant changes to the property motivate motel owners to willingly comply with officials’ requests.

Several components comprise the program. These include an analysis of the motel and its problems, an examination of the property, a meeting between police department and city attorney’s office representatives and the motel owner and managers, an appointment of officers to conduct high-visibility enforcement at the property, and an assessment of the program’s effectiveness.

First, officers analyze the lodging facility and the issues pertaining to it. A department’s crime analysis unit can provide statistics covering a certain period of time to reveal patterns of criminality at the motel. Investigators should consider the number and nature of all arrests and calls for service. To clearly demonstrate that a particular property serves as a significant crime location, officers should gather and compare information for all similar motels in the surrounding area. Agencies can use an effective tool, the calls-for-service-per-room (CFS/room) ratio, to determine a property’s rate of crime; in making this calculation, officers add the number of calls for service and self-initiated arrests for a 1-year period and divide the total by the number of rooms at the motel.³

Examination of the Property

Next, investigators conduct a thorough examination of the motel property. Specifically, they should note the security and crime prevention measures, or lack thereof, such as lighting, overall appearance, parking facilities, motel policies, landscaping, and fencing. Then, officers outline a specific plan for the motel owner and managers to use in improving the condition and operations of the facility, thereby making it less attractive to those involved in criminal activity. Many proven crime prevention measures exist that officers can present, including—

Formula for Determining the Ratio of
Calls for Service Per Room

Calls for service (50) + Self-initiated arrests (50) = Ratio (1.0) Number of rooms (100)

The calls-for-service-per-room ratio offers an effective way to gauge the level of criminal activity at a motel and to compare facilities within a jurisdiction. Ideally, a property will have a ratio of between .5 and 1.0, although this can vary, in part, according to the area. Problem motels will have a significantly higher ratio than others in the vicinity. The La Mesa Police Department strives to keep the ratio of all facilities in its jurisdiction at 1.0 or lower.

Representatives from the police department and the city attorney’s office then meet with the motel owner and management to discuss the ongoing problems and the measures that authorities expect to be taken. Ideally, motel representatives will comply willingly with all crime prevention measures, and no abatement action will be necessary. Upon agreement in writing, periodic meetings will help ensure compliance with all agreed terms, and progress can be documented.

Patrol Efforts

Next, the department designates officers to conduct self-initiated, high-visibility enforcement for at least a 6-month period. Coupled with the crime prevention measures put into place by the motel, thorough police enforcement should have a lasting and significant impact on criminal activity at the property.

Assessment of Results

Finally, law enforcement officers assess the overall effectiveness of the program by comparing the current CFS/room ratio with the figure pertaining to the same period for the preceding year. Initially, the number of calls for service and self-initiated arrests likely will rise during the first phase of the program, but these occurrences should decrease significantly over time.

THE RESULTS

The La Mesa Police Department found the Motel Crime Prevention Measures Program successful. For several years, one lodging facility in its jurisdiction had a higher number of calls for service, arrests, and incidents of criminal activity (including two murders and one attempted murder) than any other motel in the city. Before implementation of the program, its CFS/room ratio was 2.42, compared with an average of .8 for the other area motels.

Several meetings with the owner and managers resulted in an agreement that the motel would institute nearly all of the crime prevention measures mentioned earlier. After 1 year, the ratio for this facility dropped to 1.46. And, the number of calls for service and arrests continues to decline.

Many jurisdictions can relate to the problem faced by the La Mesa Police Department at this particular lodging facility. The Motel Crime Prevention Measures Program can have a lasting impact not only on a problem motel but the entire neighboring community. It can offer a way for officers to reduce the number of crime incidents and calls for service and to improve quality of life in the surrounding vicinity.

¹ This article mainly addresses motels because of their tendency to have lower lodging fees, thereby offering an incentive to individuals involved in crime. Many of the strategies presented also could apply to other types of facilities (e.g., hotels and apartment buildings).

² In most states, civil and criminal laws establish procedures that allow for city or county governments to either temporarily or permanently abate a motel if the property is declared a public nuisance through a court-ordered injunction. In such a case, the motel owner must cease conducting business, pay substantial fines and restitution, or take steps to deter crime and improve the property.

³ Karin Schmerler, “Disorder at Budget Motels”; retrieved from http:// www.cops.usdoj.gov/mime/open.pdf?Item=1422#search=%22disorder%2 0in%20budget%20motels%20karin%20schmerler%22.

Lieutenant Willis serves with the La Mesa, California, Police Department.

Book Review

Captain Duff serves with the Lynchburg, Virginia, Police Department. He delivered this speech to graduates of the Professional Executive Leadership School sponsored by the Virginia Association of Chiefs of Police.

On February 22, 1988, four motorists stopped on a highway to assist an Ohio state trooper struggling with a suspect attempting to take the trooper’s firearm. If no one had stopped to render assistance, the outcome may have been tragic. One of the citizens who stopped and assisted the trooper stated, “It seemed like the right thing to do.”

such as did I—

• spend time with my family?

• take care of myself physically, emotionally, and spiritually?

• manage myself this week or did I take the path of least resistance?

• spend time with my personnel?

• respond effectively to brief encounters with others where there was an opportunity to talk or listen to them? Did I pay attention, verbally and nonverbally, or did I continue reading and returning e-mails or checking voice mail?
• commend those who did exemplary work?

• spend time with someone going through a
  difficult time?
• confront marginal or unacceptable behavior this week?

• speak up against poor decisions?
• mentor or train individuals in need of
  improvement?
• learn something new this week?

Legal Digest
Getting Schooled in the Fourth Amendment
By LUCY ANN HOOVER, J.D., LL.M.

The principal called the police and turned over the camera, cash, steroids, and notebook. While at the school, the police turned on the digital camera and found the photos of the near-naked cheerleaders that had been posted on the Internet. Eventually, the student was charged with child pornography and narcotics violations. The defense motioned to suppress all evidence in the case on the grounds that the student’s Fourth Amendment right to privacy had been violated by the high school principal for the search of the locker and by the police for examining the contents of the camera. Neither the principal nor the police had obtained search warrants.

This hypothetical case raises several important issues for criminal investigators with respect to the boundaries of Fourth Amendment privileges enjoyed by students in public institutions. What are those protections, if any? What limits are placed on school administrators with regard to a student’s right of privacy? And, what must law enforcement professionals know before conducting student searches on school grounds? This article addresses the constitutional rights of students, as well as the rights of the teachers and administrators charged with their care, and the constitutional duties of law enforcement officers while acting on school grounds. While the hypothetical case does not involve firearms or explosives on schools grounds, a fear all too familiar in today’s headlines, those fears and the protection of children to ensure their safety in a learning environment must also be analyzed within the rubric of the Fourth Amendment to the U.S. Constitution.

Special Agent Hoover is a legal instructor at the FBI Academy.

A Fourth Amendment Search

For almost 40 years, the U.S. Supreme Court has held steadfast to the presumption that searches conducted without a warrant are unreasonable.¹ The Supreme Court views this guiding principle as essential to ensuring that the carefully chosen phraseology of the Fourth Amendment of the U.S. Constitution is more than a mere litany of words.²

But, does that historical protection extend to minors who, traditionally, have lacked some of the most fundamental rights of self-determination?³ This is the challenge for school administrators, law enforcement, and the courts to address. For example, the U.S. Supreme Court has stated that a minor’s right to come and go at will, which is a basic right of liberty, is subject to the control of parents or guardians.⁴ This recognized authority over minors can be transferred, by the parents or guardians, when they are placed in the care and custody of others. Most often, this transfer of authority occurs when children are placed in school; this is known as in loco parentis. That is, school officials, such as teachers and administrators, now stand over the children entrusted to them. In the school setting, a parent or guardian may delegate part of their parental authority for the purpose of restraint and correction as may be deemed necessary and appropriate for the security and safety of the students and the school.

At police headquarters, T.L.O. confessed to selling drugs at school, and the state brought delinquency charges.⁸  T.L.O. moved to suppress the evidence on arguments that the search conducted by the vice principal was in violation of her Fourth Amendment rights against unreasonable search and seizure. She also moved to suppress her subsequent confession at police headquarters arguing that it was tainted by the allegedly illegal search.⁹ Both the juvenile court and the appellate division found no Fourth Amendment violation and denied the motion to suppress. The New Jersey Supreme Court rejected the lower court rulings and held that there was a Fourth Amendment violation and ordered the suppression of the evidence found in the student’s purse.¹⁰ The case was appealed to the U.S. Supreme Court.

Searches by School Officials and Reasonableness

The Supreme Court rejected the state’s argument that the history of the Fourth Amendment is clear in its original intent to regulate only the searches and seizures conducted by law enforcement officers. The Supreme Court “has long spoken of the Fourth Amendment’s strictures as restraints imposed upon ‘governmental action’ —that is ‘upon the activities of sovereign authority.’”¹¹ Accordingly, the Court has “held the Fourth Amendment applicable to the activities of civil as well as criminal authorities.”¹² For example, the Court has consistently held the Fourth Amendment restraints applicable to nonlaw enforcement authorities, including building inspectors,¹³ safety inspectors,¹⁴ and firefighters,¹⁵ thus refusing to limit the Fourth Amendment prohibition on unreasonable searches and seizures only to operations conducted by law enforcement officers.

Therefore, the U.S. Supreme Court rejected the argument put forward by the state of New Jersey in T.L.O. that the Fourth Amendment did not apply to school officials. In fact, the Court held that school officials act as representatives of the state, not merely in loco parentis, when they conduct such searches and, therefore, cannot claim the parents’ immunity from the Fourth Amendment.¹⁶

While declaring that the standards of the Fourth Amendment do indeed apply to the actions of school officials, however, the Court recognized that in the context of the school environment, as opposed to the traditional law enforcement contexts, the interest in maintaining a safe and secure

learning environment necessarily dictates a different analysis in the overall balancing scheme mandated by the Fourth Amendment. That is, typically in law enforcement situations, prior to conducting a search, a law enforcement officer must be able to articulate facts and circumstances that rise to the level of probable cause to believe that evidence of criminal activity presently exists in the place to be searched.¹⁷ However, where the interests of the public are best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, the Court has not hesitated to adopt such a standard.¹⁸ Therefore, for searches by school officials in educational institutions, directed at specific students, the standard the Court demands is still reasonableness but a reasonable suspicion, rather than a reasonable belief.

Reasonable suspicion as the justification for the intrusive nature of a search still must be warranted by the facts and circumstances surrounding the search. Determining the reasonableness of any search involves a twofold inquiry of its inception and its scope. That is, whether the action was justified at its inception and whether the search, as actually conducted, was reasonably related in scope to the circumstances that justified the interference in the first place.¹⁹

In the New Jersey case, the Court stated that under ordinary circumstances, a search of a student by a school official is “justified at its inception” when the school officials suspect that the search will reveal evidence that the student is in violation of a school law or rule. Further, the scope of the search will be determined reasonable if 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.²⁰ Focusing on the issue of reasonableness allows teachers and school administrators to regulate their conduct according to the dictates of reason and common sense, rather than attempting to keep abreast of the nuances of the concept of probable cause.²¹ The reasonableness standard also permits the school to achieve its legitimate end of preserving order, without invading the privacy interests of the student any more than necessary.²² As stated by the Court, “By striking the balance between schoolchildren’s legitimate expectations of privacy and the school’s equally legitimate need to maintain an environment in which learning can take place requires some easing of the restrictions to which searches by public authorities are ordinarily subject.”²³

T.L.O. involved two separate searches: the initial search for the cigarettes that sparked the motivation for the second, more intrusive, search once the cigarette rolling papers were discovered. The Court found that the initial search by the vice principal was reasonable under the facts: a teacher reported that the student was smoking in the lavatory; therefore, the vice principal’s suspicion that cigarettes would be found in her purse was a “common-sense conclusion upon which practical people—including government officials—are entitled to rely.”²⁴ The discovery of the rolling papers gave rise to a reasonable suspicion that marijuana was present and, therefore, the vice principal’s further exploration of the purse also was found to be reasonable.

Special Needs Searches in the School Setting

© Mark C. Ide

“Education ‘is perhaps the most important function’ of government and government has a heightened obligation to safeguard students whom it compels to attend school.”²⁵ The actions of school officials are done so in furtherance of publicly mandated educational and disciplinary policies.²⁶ “The special need for an immediate response to behavior that threatens either the safety of the schoolchildren and teachers or the educational process itself justifies the Court in excepting school searches from the warrant and probable cause requirement and in applying a standard determined by balancing the relevant interests.”²⁷

Public education in this country is compulsory. However, school officials are not merely parental surrogates wearing a banner of immunity from the constraints of the Fourth Amendment; they are representatives of the state and, therefore, subject to Fourth Amendment standards. The Court has found the warrant requirement “unsuited to the school environment”²⁸ and would create an impediment to the “swift and informal disciplinary procedures needed in the school.”²⁹ Accordingly, searches based on suspicion have been upheld. The question that remains is the extent to which any predication is required prior to engaging in a search.

While typically viewing suspicionless searches with disfavor, in the context of a school search, the Supreme Court has held that suspicionless searches can withstand constitutional challenge when undertaken in furtherance of the government’s responsibilities as guardian and tutor to children entrusted to its care. In 1995, and again in 2002, the Supreme Court was presented with cases involving suspicionless searches of students.³⁰ These cases involved the respective school district’s adoption of a drug testing policy for students involved in extracurricular activities. In Vernonia School District 47J   v. Acton,³¹ acting on information that student athletes in the Vernonia School District in Oregon were leaders in the student drug culture, the school district authorized and implemented random urinalysis drug testing of students who participated in its athletic programs.³² When one of the students refused to submit to the random drug screening, he was denied participation in his school’s football program. Thereafter, he and his parents filed a lawsuit against the school district on the grounds that the drug-screening program was a violation of his Fourth Amendment rights against unreasonable search and seizure.³³

The expressed purpose of the drug policy was to “prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs.”³⁴ The Supreme Court viewed the school district’s legitimate governmental interests in the drug policy as compelling.³⁵ The Court recognized that “the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction.”³⁶ Further, the Court’s concern was that “the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted.”³⁷

In Vernonia, the Supreme Court noted an important distinction in the facts of the 1985 New Jersey v. T.L.O. case and the 1995 Vernonia case.³⁸ The school search in T.L.O. was based upon individualized suspicion of wrongdoing by the student whose purse was searched. The student in the Vernonia district was not under any such individualized suspicion and, therefore, argued that the school district should have used a “less intrusive means” before conducting searches.³⁹ But the Court has repeatedly refused to declare that only the least intrusive search practicable can be considered reasonable under the Fourth Amendment.⁴⁰

The Court in Vernonia found the existence of special needs in the public school context.⁴¹ That is, the Court recognized the existence of circumstances when a search serves a special government need and, therefore, is deemed reasonable despite the absence of a search warrant or probable cause or even individualized suspicion.⁴² Where significant governmental interests exist, suspicionless searches calibrated to that risk may be deemed reasonable.⁴³ One of the legitimate purposes of the special needs exception is deterrence. To pass constitutional muster, a deterrent program must address a special need beyond the ordinary needs of law enforcement; the governmental interest behind the program must be compelling; and the program must be effective.⁴⁴ Finally, the Court has also stated that a special needs program must only intrude minimally upon a person’s privacy interests.

In 2006, a Florida court held that suspicionless searches conducted by school personnel in specific contexts were not in violation of the Fourth Amendment. In C.N.H. v. State,⁴⁵ a knife was found in a routine suspicionless search conducted at an alternative middle school. The student was placed on probation for being in possession of a weapon on school property. In her motion to suppress the evidence on the grounds that school personnel had no reasonable suspicion that she was in possession of a weapon, she asserted that the search of her purse was conducted in violation of her Fourth Amendment rights.⁴⁶ The court upheld the suspicion-less search citing the special context of an alternative school; “alternative schools…are ‘high risk’ schools.”⁴⁷ The markedly different nature of the student population in alternative schools necessitates a policy allowing school personnel to look for weapons and drugs to ensure the safety of both the students and the school personnel.

The Fifth District Court of Appeals in Florida cited the Supreme Court in T.L.O. and Vernonia and upheld the search as constitutional; “the searches are conducted to deter students from bringing drugs and weapons into the school.”⁴⁸ “The relevant inquiry is whether the interest being protected is important enough to justify the particular search.”⁴⁹

Law Enforcement in the School Setting

 

T.L.O. and its progeny have established that students in public schools are afforded Fourth Amendment protection from unreasonable searches and seizures but with limits. The limits, as discussed, are a delicate balance between a student’s privacy and the community’s need to protect the educational campus environment. Thus far, the focus has been on the authority of school officials vis-àvis the student population. The Fourth Amendment analysis is altered to some degree when the government actor involved in the school setting is a law enforcement officer.

Law enforcement officers acting in response to information given to them by school authorities cannot automatically proceed with a search under the same authority as school officials. Law enforcement officers are held to a stricter Fourth Amendment standard than school officials because their governmental functions are different, thus implicating different governmental interests. The governmental interest implicated by law enforcement activity in the school setting is arguably different than when school administrators act.

The line becomes blurred, however, when police officers serve as school liaison officers and often act as an arm of the school administration. For example, lower court cases have given special consideration to searches of students by law enforcement officers in specific contexts.⁵⁰ In Shade v. City of Farmington, Minnesota,⁵¹ a group of students from the Apple Valley Alternative Learning Center were transported by bus to a local business in a neighboring community for a special class. Along the way, the bus stopped at a local fast-food restaurant and the students purchased breakfast; one student bought a sandwich and a container of orange juice. Once they were all back on the bus, Shade asked his fellow students if any of them had something he could use to open his juice container. A fellow student offered his pocketknife, which Shade used and then handed back. Looking through the rearview mirror, a teacher saw him using the pocketknife but did not see where it came from or what was done with it once the container was opened.⁵²

Upon arrival at the business location, the teacher notified the school authorities of what he saw. The principal notified the school’s liaison officer and requested assistance in a search of all of the students prior to them reboarding the bus and heading back to school. In response to the principal’s request, two law enforcement liaison officers deployed to the business location where the students were being detained until the search was conducted. Prior to searching each of the students, the officers asked if any were in possession of a knife. The student from whom the knife was borrowed stepped forward and handed it to the officer. Thereafter, each student received a pat down search. No knife was found on Shade, but the officer did discover “an item similar in appearance to an ASP tactical baton” in Shade’s front pocket.⁵³ Shade then was charged with possession of a dangerous weapon on school property and expulsion proceedings were initiated.

Shade alleged that the school liaison officers lacked probable cause and, therefore, conducted an unreasonable search. In upholding the search, the U.S. Court of Appeals for the Eighth Circuit cited the Supreme Court’s “two part reasonableness inquiry”: whether the search was justified at its inception and whether the search was reasonable in scope.⁵⁴ The Eighth Circuit Court of Appeals found that the initial decision to investigate was made by the school authorities and that the liaison officer’s involvement was minimal. Further, because Shade had been seen with a knife, it was entirely reasonable for the liaison officers to play a greater role in questioning the students and in directing the mechanics of the search. The court found that the officer’s conduct fell “within that permissible range of reasonableness” because the school’s authorities initiated the investigation and the search in furtherance of their interest in maintaining a safe learning environment.”⁵⁵ “A contrary conclusion ‘might serve to encourage teachers and school officials, who generally are untrained in proper pat down procedures or in neutralizing dangerous weapons, to conduct a search of a student suspected of carrying a dangerous weapon on school grounds without the assistance of a school liaison officer or other law enforcement officials.’”⁵⁶

In contrast, in a case involving a search by a law enforcement officer of a student suspected of possessing drugs, the court concluded that the search violated the Fourth Amendment.⁵⁷ In this case, a school principal received information from another student that

K.L.M. was in possession of drugs that he had made arrangements to sell. The principal contacted a law enforcement officer and requested assistance in the search of K.L.M. While being questioned in the principal’s office, the student denied being in possession of any drugs. The principal then asked the law enforcement officer to search the student. The search revealed a bag of marijuana in the student’s pocket.⁵⁸

The student filed a motion to suppress the drug evidence on the basis that the search conducted by the law enforcement officer was in violation of his Fourth Amendment rights against unreasonable searches and seizures. The law enforcement officer testified that the purpose of his presence was “for the safety of the school personnel”; he conducted the search on behalf of the principal.⁵⁹

The court stated that it “could probably find that the officer was the principal’s agent acting in good faith” when he searched the student.⁶⁰ However, “since the actual search of the juvenile was done by a police officer and not a school official, the police officer was required to have ‘probable cause’ prior to his search of the juvenile.”⁶¹ Accordingly, the court held that the search violated the student’s Fourth Amendment rights.

In the Supreme Court’s 1985 decision in the New Jersey case, it was recognized that “[t]he sad truth is that many classrooms across the country are not temples of learning teaching lessons of good will, civility, and wisdom that are the fabric of American life. To the contrary, many schools are in such a state of disorder that not only is the educational atmosphere polluted, but the very safety of students and teachers is imperiled.”⁶² More than 20 years later, the unfortunate need for the presence of law enforcement in U.S. schools remains clear. However, the legal parameters governing their actions vis-à-vis students are not. There exists an increasingly complex relationship between school authorities and law enforcement officials generally involved in the same enterprise. The concern is that this relationship based on cooperation and interdependence, though essential, may tend to blur the line between reasonable suspicion and probable cause.⁶³ When engaged in investigative activities in the school setting, independent of the school administrator, law enforcement officers should confine their actions to those consistent with traditional Fourth Amendment principles requiring a warrant based on probable cause unless an exception to the warrant requirement exists. Recognizing the significant societal interest of maintaining a safe and secure educational environment, school liaison officers working in conjunction with the school administration to further that interest, as opposed to simply conducting a criminal investigation, arguably can act pursuant to the more generous interpretations of the Fourth Amendment announced in T.L.O. and Vernonia.

Conclusion

Returning to Hometown, USA, the holdings in T.L.O. suggest that the search of the star quarterback’s locker may have been reasonable so long as the school system and the principal could clearly articulate that they acted on reasonable suspicion. The police officer’s warrantless inspection of the digital camera, however, would be scrutinized by a court under a different standard. Reasonableness would still be the hallmark, but the officer should have secured the evidence and applied for a search warrant. Therefore, in the hypothetical case presented, a court most likely would suppress the digital photos discovered on the camera.

When it comes to searching students within the school setting, the roles of each of the public officials who may be involved, whether it is the school administrator, the school liaison officer, or an outside law enforcement officer, may not be clear or easily defined within the parameters of the Fourth Amendment. However, regardless of which official responds to an incident resulting in a search, reasonableness remains the cornerstone by which the official’s actions will be judged. The Supreme Court demands an understanding of the necessary balance between the responsibilities of protecting those students compelled to be in school with the recognition that they do not “shed their constitutional rights at the schoolhouse gate.”⁶⁴

Endnotes

¹ U.S. v. Katz, 389 U.S. 347 (1967) (“Searches conducted without warrants have been held unlawful ‘notwithstanding facts unquestionably showing probable cause,’ for the Constitution requires ‘that the deliberate, impartial judgment of a judicial officer…be interposed between citizen and the police’…the mandate of the Fourth Amendment requires adherence to the judicial process and that searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment. Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.”).

² U.S. Const. amend. IV, “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

³ Vernonia School District 47J v. Acton, 515 U.S. 646, at 655. 59 Am. Jur. 2d, Parent and Child Section 10 (1987).

⁴ Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 606, 89 S. Ct. 733, 736, 21 L. Ed. 2d731 (1969). See also L.W. Blackstone, Commentaries on the Laws of England 441 (1769), as Blackstone describes it, a parent “may…delegate part of his parental authority, during his life, to the tutor or school master of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz that of restraint and correction, as may be necessary to answer the purposes for which he is employed.”

⁵ New Jersey v. T.L.O., 469 U.S. 325, at 327.

⁶ Id. at 325.

⁷ 469 U.S. 325, 105 S. Ct. 733 (1985).

⁸ Id. at 330.

⁹ State ex rel T.L.O., 178 N.J. Super. 329, 428 A.2d 1327 (1980); State ex rel T.L.O., 185 N.J. Super. 279, 448 A.2d 493 (1982); State ex rel T.L.O., 94 N.J. 331, 463 A.2d 934 (1983).

¹⁰ 469 U.S., at 333.

¹¹ 469 U.S., at 343. See United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S. Ct. 2574, 2580, 45 L. Ed. 2d 607 (1975) (Supreme Court required specific articulable facts, together with rational inferences, which would reasonably warrant suspicion.); Delaware v. Prouse, 440 U.S. 648, 654-655, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660 (1979) (Unless there is at least articulable and reasonable suspicion…to seize…stopping…and detaining… unreasonable under the Fourth Amendment); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976) (The Fourth Amendment imposes limits on search and seizure powers to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of the individuals.).

¹² Bourdeau v. McDowell, 256 U.S. 465, 475, 41 S. Ct. 574, 576, 65 L.Ed 1048 (1921) (The Fourth Amendment gives protection against unlawful searches and seizures, and…its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority….).

¹³ See Camara v. Municipal Court, 387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 18 L. Ed. 2d 930 (1967) ([A]dministrative searches by municipal health and safety inspectors constitute significant intrusions upon interests protected by the Fourth Amendment, and such searches, when authorized and conducted without warrant procedure, lack traditional safeguards, which Fourth Amendment guarantees to individuals.).

¹⁴ See Marshall v. Barlow’s Inc., 436 U.S. 307, 312-313, 98 S. Ct. 1816, 1820, 56 L. Ed.2d 305 (1978) (The rule that warrantless searches are generally unreasonable applies to commercial premises, as well as to homes.).

¹⁵ See Michigan v. Tyler, 436 U.S. 499, 506, 98 S. Ct. 1942, 1948, 56 L. Ed. 2d 486 (1978); Michigan v. Clifford, 464 U.S. 287 (1984) (In cases of firefighters entering privately owned premises to battle a fire, the initial entry requires no warrant to investigate the cause of the blaze. Thereafter, additional inquiries to investigate cause of the fire must be made pursuant to the warrant procedures….).

¹⁶ 469 U.S., at 337-338.

¹⁷ 469 U.S., at 342. See Terry v. Ohio, 392 U.S. 1, at 20, 88 S. Ct. 1868, at 1879. (The scope of the search must be strictly tied to and justified by the circumstances that rendered its initiation permissible.)

¹⁸ Id.

¹⁹ Id.

²⁰ Id. at 343, see Tinker v. Des Moine Independent Community District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969) (First Amendment rights applied in light of the special characteristics of the school environment are available to teachers and students.).

²¹ Id. at 344.
²² Id.
²³ Id. at 327.
²⁴ Vernonia School District 47J v. Acton, 515 U.S. 646 at 653, 115 S. Ct. 2386, at 2397; New Jersey v. T.L.O., 469 U.S., at 340, 105 S. Ct., at 742.

²⁵ Id. at 353, see also Brown v. Board of Education, 347 U.S. 483, 493, 74 S. Ct. 686, 691, 98 L. Ed. 873 (1954) ([E]ducation is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society…. It is the very foundation of good citizenship.).

²⁶ Ingraham v. Wright, 430 U.S. 651, 662, 97 S. Ct. 1401, 1407, 51 L. Ed. 2d 711 (1977) (Under the longstanding accommodation between the child’s interest in personal security and the traditional common law privilege, there can be no deprivation of substantive rights….).

²⁷ See State ex rel. T.L.O., 94 N.J., at 343, 463 A.2d, at 934, 940.

²⁸ Id. at 341, see also Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727 (1967).

²⁹ See State ex rel. T.L.O., 94 N.J., at 343, 463 A.2d, at 934, 940.

³⁰ Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386 (1995); Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 122 S. Ct. 2559 (2002) (Policy requiring all students who participated in competitive extracurricular activities to submit to drug testing was a reasonable means of furthering the school district’s important interest in preventing and deterring drug use among its schoolchildren and, therefore, did not violate the Fourth Amendment.).

³¹ 515 U.S. at 646.

³² 515 U.S. at 666.

³³ 515 U.S. at 647.

³⁴ Id., see Skinner v. Railway Labors Executives’ Ass’n, 489 U.S. 602, 617, 109 S. Ct. 1402, 1413, 103 L. Ed. 2d 639 (1989); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989) (Drug and alcohol tests mandated or authorized by regulations were reasonable under the Fourth Amendment even though there was no requirement for a warrant or a reasonable suspicion that any particular employee might be impaired due to the compelling government interest served by the regulations, which outweighed employees’ privacy concerns.).

³⁵ 515 U.S. at 662-663.

³⁶ Id.

³⁷ Id.

³⁸ Id. at 654. T.L.O., 469 U.S. at 340, 341, 342, 105 S. Ct., at 742, 743. See United States v. Martinez-Fuerte, 428 U.S. 543, 560-561, 96 S. Ct. 3074, 3084, 49 L. Ed. 2d 1116 (1976) (Fourth Amendment not violated for stops at fixed check points even though there is no reason to believe the particular vehicle contains illegal aliens.).

³⁹ 515 U.S. at 650.

⁴⁰ Id. at 647.

⁴¹ Id. at 654.

⁴² Skinner v. Railway Labors Executives’ Ass’n, 489 U.S. 602, 617, 109 S. Ct. 1402, 1413, 103 L. Ed. 2d 639 (1989); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S. Ct. 1384, 103 L.Ed.2d 685 (1989).

⁴³ See generally, Martin J. King, “The Special Needs’ Exception to the Warrant Requirement,” FBI Law Enforcement Bulletin, June 2006, 21-32.

⁴⁴ Id.

⁴⁵ 927 So. 2d 1, 31 Fla. L. Weekly D521, 31 Fla. L. Weekly D1069 (Feb. 17, 2006).

⁴⁶ Id. at 3.

⁴⁷ Id.

⁴⁸ Id. at 4.

⁴⁹ Id. at 6.

⁵⁰ See, e.g.., D.R.C. v. State, 646 P.2d 252 (Alaska App. 1982); In re G., 11 Cal. App. 3d 1193, 90 Cal. Rptr. 361 (1970); In re Donaldson, 269 Cal. App. 2d 509, 75 Cal. Rptr.220 (1969); R.C.M. v. State, 660 S.W.2d 552 (Tex.App.1983); Mercer v. State, 450 S.W. 715 (Tex.Civ. App.1970).

⁵¹ 309 F.3d 1054 (8th Cir. 2002).

⁵² Id. at 1058.

⁵³ Id.

⁵⁴ Id. at 1060. See T.L.O., 469 U.S. at 341, 105 S. Ct. 733.

⁵⁵ Id. at 1062, See Gardner v. Buerger, 82 F.3d 248, 252 (8th Cir. 1996) (Courts are careful not to indulge in armchair quarterbacking or exploit benefits of hindsight when evaluating police officer’s use of deadly force…police officers have tough jobs, and calculus of reasonableness must embody allowance for fact that police officers often are forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving.).

⁵⁶ Id. at 1062, See In re Angelia D.B., 564 N.W. 2d 682, at 690 (Wis. 1997) (The investigation was initiated at the request of school officials. The investigation continued in conjunction with school officials. Angelia D.B. was suspected of possessing a dangerous weapon within a public high school. Unlike a dangerous weapon located within a residence, a dangerous weapon within a school setting poses a significant and imminent threat of danger to school staff and to the other students compelled to be there.).

⁵⁷ State v. K.L.M., 278 Ga. App. 219, 628 S.E.2d 651 (2006).

⁵⁸ Id. at 221.

59 Id.

⁶⁰ Id., see State v. Young, 234 Ga. 488, 496(2), 216 S.E.2d 586 (1975) (Search of high school student by assistant principal who observed furtive gestures on part of student and companions did not violate Fourth Amendment….).

⁶¹ Id. at 221.

⁶² 469 U.S., at 379. See Brief for United States as Amicus Curiae 23.

⁶³ See Josh Kagan, “Reappraising T.L.O.’s ‘Special Needs’ Doctrine in an Era of School-Law Enforcement Engagement,” Journal of Law and Education 33 (July 2004).

⁶⁴ Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S. Ct. 733, 736, 21 L. Ed. 2d 731 (1969) (It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.) See Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923); Bartels v. Iowa, 262 U.S. 404, 43 S. Ct. 628, 67 L. Ed. 1047 (1923). West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 637, 63 S. Ct. 1178, 1185, 87 L. Ed. 1628 (1943) (“Equally indisputable is the proposition that the Fourteenth Amendment protects the rights of students against encroachment by public officials: The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures—Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”).

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

The Bulletin Notes

Law enforcement officers are challenged daily in the performance of their duties; they face each challenge freely and unselfishly while answering the call to duty. In certain instances, their actions warrant special attention from their respective departments. The Bulletin also wants to recognize those situations that transcend the normal rigors of the law enforcement profession.

Early one morning, Officer Christopher Hunsberger of the Telford Borough, Pennsylvania, Police Department and Officer Kurt Scherzberg of the Souderton Borough, Pennsylvania, Police Department responded to a house fire. Upon arrival, the residence’s second floor was fully engulfed in flames and filled with smoke. Several family members were trapped inside, including an elderly man confined to an oxygen tank. While Officer Scherzberg gathered residents and escorted them outside, Officer Hunsberger went to the second floor, retrieved the elderly man, and helped him to safety. The officers then tended to the family until further assistance arrived. The quick response and heroic actions of Officers Hunsberger and Scherzberg saved the lives of these individuals.

While on his way home early one morning from an off-duty job, Sergeant Jeff Peters of the Bryan, Texas, Police Department noticed flames coming from a partially flipped vehicle that had gone off the roadway and struck a tree. Immediately, he investigated and found the driver critically injured. The partially ejected man was pinned by both the vehicle and a tree, and his upper torso was exposed to flames. Sergeant Peters entered the burning vehicle from the rear, pried the driver free, carried the victim a safe distance from the scene, and waited for medical authorities. The man survived for several days but, unfortunately, succumbed to his injuries. Sergeant Peters displayed courage and dedication and gave this individual a chance for survival.

Nominations for the Bulletin Notes should be based on either the rescue of one or more citizens or arrest(s) made at unusual risk to an officer’s safety. Submissions should include a short write-up (maximum of 250 words), a separate photograph of each nominee, and a letter from the department’s ranking officer endorsing the nomination. Submissions should be sent to the Editor, FBI Law Enforcement Bulletin, FBI Academy, Madison Building, Room 201, Quantico, VA 22135.

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Patch Call

 

The patch of the DeWitt, Iowa, Police Department features a crossroads symbol on the city’s water tower, representing DeWitt’s location at the crossroads of the first two transcontinental highways in the United States (U.S. 30 and U.S. 61), as well as a park setting to show the community spirit of DeWitt.

The patch of the Vestavia Hills, Alabama, Police Department features, along with a dogwood tree, the Temple of Vesta, located in Rome, Italy. A former mayor of the city of Birmingham was so impressed by the temple that he had his house fashioned after it and named “Vestavia.” Vesta refers to the Roman goddess of the hearth, and via means “by the roadway.” The area around the home later developed into the city of Vestavia Hills.

 

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