- by Jack Ryan
Legal & Liability Risk Management Institute

School officials and school resource officers should always incorporate their experience into the articulable reasons for a search.  A Texas case provides a good example of the use of experience.ⁱMichael Russell was among three students observed by a parking lot attendant smoking in a car.  The attendant notified the school principal.  The principal, Sylvia Palacios started toward the lot and encountered the three students as they were returning to school.  She ordered the trio to her office. Ms. Palacios testified that she observed Russell “messing with” one of the pockets of his baggy cargo shorts.  She further testified that she was concerned he may be concealing a weapon. Ms. Palacios noted that this type of clothing had been banned at other schools she worked at because they could conceal a weapon.  When the principal ordered Russell to empty his pockets he refused.  At that point the principal asked a police officer who was assigned to the high school to join her.  The officer was aware of the following facts:

1. A school security officer had observed Russell smoking in the parking lot.
2. Russell was wearing baggy shorts;
3. Russell had refused to empty his pockets for the principal;
4. and “according to Officer Lee’s experience, students who refuse to empty their pockets for a school administrator are concealing something they don’t want to disclose, usually a ‘weapon, marijuana, or cigarettes.’”

At that point Officer Lee conducted a frisk of Russell.  In doing so he felt something in Russell’s pocket that he “immediately knew that it was a bag of marijuana from [his] experience.”  Russell was charged with possession of marijuana.  On appeal Russell challenged the trial court’s refusal to suppress the evidence on the grounds that the officer lacked reasonable suspicion to conduct a pat-down search.

In its review of the case the Court of Appeals of Texas, Tenth District, Waco, concluded that Officer Lee had reasonable suspicion under the standards set out in New Jersey v. T.L.O. to conduct a search of Russell.  In doing so the court analyzed searches involving police officers assigned to schools.  The court set out three categories of searches involving police officers in schools:

1. Those where school officials initiate the search or where police involvement is minimal.
2. Those involving school police or liaison officers acting on their own authority.
3. Those where outside police officers initiate a search.

Adopting the viewpoint of courts outside of Texas the court concluded that where school officials initiate the search or police involvement is minimal, the reasonable suspicion standard applies.  “The same is true in cases involving school police or liaison officers acting on their own authority.” “However, where outside police officers initiate a search, or where school officials act at the behest of law enforcement agencies, the probable cause standard” would apply.  The court noted that a “Terry” stop under this third category need only be supported by reasonable suspicion.

In applying this analysis to this case the court noted that Officer Lee was “assigned” to the high school and thus fit into the second category.  As such, he had “reasonable grounds for suspecting that the search would turn up evidence that Russell had violated or was violating either the law or the rules of the school.   It should be emphasized that because the court was willing to apply the standards set forth in New Jersey v. T.L.O. to a school police officer the search was not limited to a frisk but could involve a more thorough search under T.L.O.