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
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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