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EXCEPTIONS TO THE WARRANT REQUIREMENT: EXCEPTIONS TO THE WARRANT REQUIREMENT:

EXCEPTIONS TO THE WARRANT REQUIREMENT: - PowerPoint Presentation

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EXCEPTIONS TO THE WARRANT REQUIREMENT: - PPT Presentation

SEARCHES AND INSPECTIONS IN BUSINESSES AND SCHOOLS Bennett Bryan Senior Assistant County Attorney DeKalb County Law Department Brandon Moulard Associate Attorney Nelson Mullins Riley amp Scarborough LLP ID: 712900

contexts special student searches special contexts searches student schools inspections administrative cir 11th commercial property city search reasonable warrant

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Slide1

EXCEPTIONS TO THE WARRANT REQUIREMENT:

SEARCHES AND INSPECTIONS IN BUSINESSES AND SCHOOLS

Bennett BryanSenior Assistant County AttorneyDeKalb County Law Department

Brandon

Moulard

Associate Attorney

Nelson Mullins Riley & Scarborough LLPSlide2

Introduction: fourth amendment

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 Warrants 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.

U.S. Const. Amend. IVSlide3

Introduction: fourth amendment

Warrantless searches are “presumptively unreasonable” but there are exceptions (

Brigham City v. Stuart, 547 U.S. 398 (2006))Balance privacy interests with state interestsWell-established exceptions:Consent (U.S. v. Plasencia, 886 F.3d 1336 (11th Cir. 2018

))

Exigent Circumstances (

Montanex

v.

Carvajal

, 889 F.3d

1202

(11th Cir. 2018

))

Plain view (

Fortson v. City of Elberton

, 592

Fed.Appx

.

819

(11th Cir. 2014

))Slide4

Special contexts:

administrative inspections of commercial property

The law governing administrative searches continues to develop and the bench and bar must be on the lookout.

Rivera-

Corraliza

v. Morales

, 794 F.3d 208, 223 (1st Cir. 2015)Slide5

Special contexts:

administrative inspections of commercial property

What is an administrative inspection?Regulatory compliance, not criminal investigation (City of Indianapolis v. Edmonds, 531 U.S. 32 (2000))

Are warrants required?

Generally, yes (

Camara

v. Municipal Court of City and County of San Francisco

, 387 U.S.

523

(1967

))

Are there exceptions to the warrant requirement?

Traditional exceptions

New York v. Burger

’s closely regulated business exception

City of Los Angeles v. Patel

’s

precompliance

review “exception” Slide6

Special contexts:

administrative inspections of commercial property

New York v. Burger’s closely regulated business exceptionWhat is a closely regulated industry? Factors include:

Pervasiveness of regulations

Duration and history of regulatory scheme

Consistency of pervasive regulations among jurisdictions

Examples:

Liquor (

Colonnade Catering Corp. v. U.S.

, 397 U.S. 72 (1970))

Firearms (

United States v.

Biswell

, 406 U.S. 311 (1972))

Mining (

Donovan v. Dewey

, 452 U.S. 594 (1981))

Auto salvage yards (

New York v. Burger

, 482 U.S. 691 (1987))Slide7

Special contexts:administrative inspections of commercial property

Burger

’s three-part testThe government must have a substantial interest in regulating the particular

business

The

inspection program is necessary to further the regulatory

scheme

The

inspection program provides a constitutionally adequate substitute for a warrant in terms of certainty and regularity of

application

***If these conditions are met, no warrant is required***Slide8

Special contexts:administrative inspections of commercial property

City of Los Angeles v. Patel

’s precompliance review “exception”Precompliance review before neutral magistrateNot really an exception (more work than a warrant)Makes facial challenges under the Fourth Amendment easierSlide9

Special contexts:administrative inspections of commercial property

Warrantless inspections must be reasonable

No pretext (Swint v. Wadley, 51 F.3d 988 (11th Cir. 1995))Limited in scope (

Bruce v.

Beary

, 498 F.3d 1232 (11th Cir. 2007

))

Reasonable in execution (

Crosby v.

Paulk

, 187 F.3d 1339 (11th Cir. 1999

))Slide10

Special contexts:administrative inspections of commercial property

PRACTICE TIPSSlide11

Special contexts:STUDENT SEARCHES in schools

Students’ Expectation of Privacy v. School Security and Control

Students do not forfeit their constitutional rights at school. (Tinker v. Des Moines Indep. Cmty. Sch. Dist.

, 393 U.S.

503(1969)).

Administrators must prescribe and control student conduct. (

Id.

at 307).

Warrants are unsuited to the “special needs” of schools. (

New

Jersey v. T.L.O.

, 469 U.S.

325 (1985)).Slide12

Special contexts:STUDENT SEARCHES in schools

Student Searches Must Be Reasonable

Two-Part Test: (1) Was the search justified at its inception?(2) Was the search reasonably related in scope? (T.L.O.

, 469 U.S. at 341

).Slide13

Special contexts:STUDENT SEARCHES in schools

Justified at Inception

No warrant required.Reasonable suspicion standard. (T.L.O., 469 U.S. at 342).At least a

“moderate chance of finding evidence of

wrongdoing.” (

Safford

Unified Sch. Dist. No. 1 v. Redding

, 557 U.S. 364,

371(2009)).Slide14

Special contexts:STUDENT SEARCHES in schools

Reasonably Related in Scope

Search is permissible if:Reasonably related to the objectives of the search, andNot excessively intrusive

Factors: (1) age, (2) sex and gender, and (3) nature of the suspected infraction.

(

T.L.O

.

, 469 U.S. at

341-42).Slide15

Special contexts:STUDENT SEARCHES in schools

Clothing, Personal Effects, and Lockers

Reasonable suspicion typically based on:Student tipsAdmissions or threats of misconductSuspicious behaviorDrug dogsSlide16

Special contexts:STUDENT SEARCHES in schools

Drug Testing of Students

Collection of tissue or bodily fluids is considered a “search.” (Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995

)).

Drug testing for interscholastic sports: held constitutional. (

Vernonia

,

515 U.S.

at 665).

Drug

testing

for all extracurricular activities: held constitutional. (

Board of Education of

Indep

. Sch. Dist.

No. 92 of Pottawatomie Cty. v. Earls

, 536 U.S.

822

(2002)).Slide17

Special contexts:STUDENT SEARCHES in schools

Strip Searches

“Categorically distinct” type of search. Safford, 557 U.S. at 374. Greater justification typically necessary:Individualized suspicion

Reasonable belief student has concealed contraband in underwear

Dangerous v. non-dangerous items.Slide18

Special contexts:STUDENT SEARCHES in schools

Off-Campus Events

School boundaries, alone, do not dictate 4th Amendment standard.Consider “[t]he nature of administrators' and teachers' responsibilities for the students entrusted to their

care

.” (

Ziegler

v. Martin Cty. Sch. Dist.

, 831 F.3d 1309, 1320 (11th Cir. 2016

)).Slide19

Special contexts:STUDENT SEARCHES in schools

PRACTICE TIPS