- by Jack Ryan
Legal & Liability Risk Management Institute

While we regularly caution that a strip search in a school is highly discouraged, the courts continue to fully analyze those searches in accordance with school search principles rather than outlawing these searches as unconstitutional.  A recent case from the United States Court of Appeals for the 9th Circuit provides an example of how the courts will look at these searches.ⁱ

In Redding v. Safford Unified School District,ⁱⁱ the court examined a case involving the search of a student, Savana Redding who was a middle school student.  The search was the result of several pieces of information that came to the attention of middle school officials at the start of the school year.  The court summarized the facts as follows: “On August 22, 2003, Safford Middle School held a dance to commemorate the beginning of a new school year. During the dance, several staff members from the school noticed ‘unusually rowdy behavior’ from a small group of students, including Redding, who was then thirteen years old and entering eighth grade, and her friend Marissa. The staff members also detected the smell of alcohol coming from that group. Later that evening, staff members found a bottle of alcohol and a package of cigarettes in the girls' restroom. No official action was taken against any of the students at that time.

On October 1, 2003, Jordan, another student at Safford Middle School, along with his mother, requested a meeting with Principal Robert Beeman and Vice Principal Kerry Wilson. During the meeting, Jordan's mother explained that a few nights before, Jordan had become violent with her and was sick to his stomach. Jordan claimed that the incident occurred after he had taken some pills a classmate had given him. Jordan went on to inform Beeman and Wilson that certain students were bringing drugs and weapons to school. He then gave the administrators detailed accounts regarding the actions of several students, including Redding. Specifically, Jordan informed Beeman and Wilson that Redding had served alcohol to her classmates at a party she hosted at her home prior to the dance in August.”

“On the morning of October 8, 2003, Jordan again asked to meet with Vice Principal Wilson. During the meeting, Jordan handed Wilson a white pill and said that Marissa had given it to him and that a group of students were planning to take pills at lunch. Upon learning this information, Wilson took the pill to Peggy Schwallier, the school nurse, and asked her to identify it. Schwallier identified it as "Ibuprofen 400 mg," a pill available only by prescription.

Based on this information, Wilson went to Marissa's classroom and asked Marissa to collect her belongings and accompany him to his office. As Marissa got up to comply, Wilson noticed a black planner lying on the desk next to hers. Wilson asked Marissa whether the planner belonged to her and Marissa said no. Wilson nevertheless picked up the planner and handed it to a teacher, who promised that he would attempt to find the owner. Soon thereafter, the teacher discovered that the planner contained knives, lighters, a cigarette, and a permanent marker. He promptly communicated this information to Wilson.

Wilson escorted Marissa back to his office and invited Helen Romero, an administrative assistant, to come in to observe. In Romero's presence, Wilson asked Marissa to turn out her pockets and open her wallet. Marissa did so, producing one blue pill, several white pills, and a razor blade. The blue pill was later identified as ‘Naprosyn 200 mg,’ an over-the-counter drug used to treat pain and inflammation. Wilson asked Marissa where the blue pill had come from, and Marissa replied: ‘I guess it slipped in when she gave me the IBU 400s.’ When Wilson asked ‘who is she?,’ Marissa responded, ‘Savana Redding.’ Wilson then questioned Marissa about the black planner. Marissa denied ownership of the planner and claimed she had no knowledge of its contents.

At this point, Wilson asked Romero to take Marissa into the nurse's office and conduct a search of Marissa's person and clothing for pills. Romero complied. She took Marissa into the nurse's office and closed the door, which locked automatically. She then invited school nurse Schwallier to observe. In Schwallier's presence, Romero asked Marissa to: (1) remove her shoes and socks, (2) lift up her shirt and pull out her bra band, and (3) take off her pants and pull out the elastic of her underwear. Marissa complied with each request. The search of Marissa's person and clothing did not yield any more pills, and as soon as the search was over, Romero returned Marissa's clothes and permitted her to get dressed.

While Romero and Schwallier searched Marissa, Wilson retrieved Redding from her classroom and asked her to accompany him to his office. When they arrived, Wilson first admonished Redding about the importance of telling the truth. After Redding assured Wilson that she would be truthful, Wilson showed Redding the black planner he had found near Marissa's desk. Redding acknowledged that the planner belonged to her but claimed that she had lent it to Marissa several days earlier to help Marissa hide some things from her parents. Redding denied having any knowledge of the planner's  contents.

Wilson then showed Redding the pills he had seized from Marissa and asked her what she could tell him about them. After Redding denied having knowledge of the pills, Wilson told Redding that he had received a report that she had been passing the pills out to her classmates and asked Redding if she would object to being searched. Redding denied bringing pills to school, denied distributing pills to her classmates, and told Wilson that she did not mind being searched. Wilson then invited Romero into his office, and together, they conducted a search of Redding's backpack. After the search proved fruitless, Wilson asked Romero to take Redding into the nurse's office and conduct a search of her person. Romero complied.

Romero took Redding into the nurse's office and again invited Schwallier to observe. At the time of the search, Redding was wearing ‘stretch pants without pockets and a T-shirt without pockets.’ In Schwallier's presence, Romero asked Redding to: (1) remove her jacket, shoes, and socks, (2) remove her pants and shirt, (3) pull her bra out and to the side and shake it, exposing her breasts, and (4) pull her underwear out at the crotch and shake it, exposing her pelvic area. The search did not produce any pills. Immediately after it had concluded, Defendants returned Redding's clothes and allowed her to get dressed. At no point during the search did either Schwallier or Romero touch Redding. Prior to the search, no attempt was made to contact Redding's mother.”  Redding files a federal lawsuit against the school officials based upon a claim of an unreasonable search under the 4th Amendment.

In its review of the case, the court noted that the search was conducted on school premises and during school hours, thus, the search must be viewed in accordance with the lower standards for school officials announced in New Jersey v. T.L.O.ⁱⁱⁱ 

The court turned to what information the school officials had prior to conducting the search of Redding.  First, they had the information provided by Jordan and his mother.  The court noted that students who provide information in school are informants and must be examined as such.  Some considerations on informants such as whether they have a motivation to lie must be taken into account.  The court did note that when the informant is known, this adds a degree to credibility because they know that a false report may come back to them.  The court cautioned about reacting simply based on information from an informant and advised that school officials should attempt to corroborate the information received before taking action.

The court asserted: “Upon receiving Jordan's tip, which was given face-to-face, Wilson took reasonable steps to investigate Marissa, whom Jordan had implicated. [A face-to-face informant must, as a general matter, be thought more reliable than an anonymous . . . tipster, for the former runs the greater risk that he may be held accountable if his information proves false.] He interviewed Marissa, asked her a number of in-depth questions regarding the pills, and conducted a search of her person and belongings. After Wilson discovered pills, Marissa immediately attributed them to Redding. Even then, Wilson still refrained from immediately conducting a search of Redding's person. To the contrary, he questioned Redding about her knowledge of the pills and her ownership of the black planner. It was only after Redding had acknowledged ownership of the planner, acknowledged her friendship with Marissa, and conceded that she had, in fact, lent her planner to Marissa with the express purpose of helping Marissa hide contraband from her parents, that Wilson proceeded to order the challenged search…Finally, we note that there was at least some independent evidence, separate and apart from Jordan's and Marissa's respective tips, that supported Defendants' suspicion that Redding was involved with the pills. Jordan had previously informed Wilson that Redding distributed alcohol to her classmates at her home prior to a school dance in August. As previously discussed, we accept Redding's version of the disputed fact as true and assume, for purposes of this appeal, that Redding did not, in fact, serve alcohol at that party. But the fact that Jordan so informed the school officials was not disputed, and Redding has failed to show that this allegation, ‘even if untrue, w[as] not made or that [Defendants] could not reasonably believe [it] to be true.’ While this allegation, in itself, would not have been enough to justify Defendants' subsequent search of Redding, it was a relevant factor which the school officials were entitled to take into account.”

After concluding that the school officials had reasonable suspicion to conduct a search, the court turned to the two additional questions that must be answered.  First the balancing of the student’s interest against the governmental interest involved in the search, and second, the manner in which the search is carried out.  In examining the governmental interest, the court noted:  “We begin by assessing the importance of the governmental interest at stake: barring the unauthorized use of prescription drugs on school premises. While the inherent risks posed by prescription drugs, particularly ibuprofen, may not be as grave as the risks posed by the illegal substances at issue in some of the other cases, see, e.g., Cornfield, 991 F.2d at 1322, it cannot be denied that prescription drugs have the potential to do great harm if misused. Wilson was specifically informed by Schwallier, the school nurse, that the pill in question was available only by prescription and thus had reason to take its potential distribution to other students seriously. Put more broadly, Defendants had a strong interest both in safeguarding students entrusted to their care from the harm posed by the misuse of prescription drugs and in enforcing the school's official policy, which prohibited the use, possession, and distribution of such drugs without permission. In addition, because Defendants had experienced at least one prior incident involving the misuse of prescription drugs, had recently been told that Jordan had become violent and sick to his stomach after taking pills given to him by a classmate, and were told that other students were planning to take pills together, they had good reason to be extra vigilant in monitoring the drugs' unauthorized use. The first factor, therefore, favors Defendants.”  In continuing the court noted that school officials were searching for very small items, pills, which could be hidden anywhere, the court concluded that this factor also favored the school officials.”
The court concluded: “that Defendants administered the search in a reasonable manner. The search of Redding's person was conducted by two employees who were of the same gender as Redding, and the search took place in the privacy of the school nurse's office with the door securely locked.. Redding was not physically touched in any way during the search, and she was not asked to remove her bra or underwear. Furthermore, Defendants returned Redding's clothing and permitted her to get dressed as soon as the search was over. Under those facts, we cannot say that Defendants' search of Redding's person exceeded the permissible scope prescribed by the Supreme Court in T.L.O.
In a related vein, Redding argues that Defendants' search of her person exceeded its permissible scope because Defendants failed to utilize the least restrictive means possible. Specifically, Redding argues that Defendants did not contact Redding's mother prior to conducting the search or have Redding remove her clothing behind a screen. The Supreme Court has repeatedly held, however, that "reasonableness" under the Fourth Amendment does not require adherence to the least restrictive means.”   The court ultimately held that the search was constitutional and therefore dismissed the lawsuit against the school officials.

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