Colorable suspicion of drugs == search?

[theprez98]

Re: Colorable suspicion of drugs == search?

So far I have just provided some factual information and additional intepretation of that data.

As for my own opinions:

Drug testing of athletes is no problem. I think the large majority of people would say that a simple urinalysis is unobtrusive giving these tests to athletes in schools is very reasonable.

When you move on to all student activities (which is at the moment constitutional) it becomes a lot more difficult to justify. Is it really reasonable to ensure the safety of the chess club that its members be randomly tested? I'm pretty sure neither Bobby Fischer nor Gary Kasparov were never tested for performance enhancing drugs! The Court was divided on this issue too, which shows how controversial it was.

Random testing of all students is I think too far. The Court does seem to have drawn the line at 'extracurricular activities'.

Keep in mind this comes from someone who has been subject to the random urinalysis for all of the last 7+ years (I lost track of the number of times I've been tested) and has had the unfortunate displeasure of running the program on two different occasions (collection, not testing, thus the unfortunate nature of the job). It is about as unobtrusive as you can get. I know Deviant mentioned the limitations of a urinalysis, but it does actually test for a lot more drugs than you would expect. Currently the Navy tests for (at least) Cocaine, Marijuana, Heroin, Amphetamines, Ecstacy and other similar drugs, LSD, PCP, Oxycodone/Oxymorphone and Codeine/Morphine. Yes, some of these drugs leave the system pretty quickly, but I've seen people busted for most of them.

[^Dash^]

Re: Colorable suspicion of drugs == search?

I just found out today that the Ministry of Education in my country issued a sort of law in wich a pupil is entitled to recommend and send a teacher for psychiatric evaluation.

Things are starting to balance themselves out. Never heard of this thing happen before though... is it common to have your teacher forced to seek help?

[renderman]

Re: Colorable suspicion of drugs == search?

/me thinks that Jur1st and Thorn could hold one helluva breakout panel discussion

/me gets popcorn to watch the rest of this thread

[Thorn]

Re: Colorable suspicion of drugs == search?

In no way was I implying that even a large portion of police officers do not follow the law. I was stating that in many instances where the exclusionary rule is utilized by the courts that by utilizing a little bit more forethought, the issue of exclusion could have been avoided alltogether.

Understood. The trouble is that under extigent circumstances when no time to abtain a warrant is available, judges and lawyers tend to often assume that the police were taking short cuts. Most seasoned officers I know would rather obtain a warrant if time allows, just because the rules do change. A judicial review never hurts.

Indeed the standards of procedure are unclear to most members of the general public. The number of searches which are done with the consent of the suspect proves this beyond a shadow of a doubt.

Consent searches to determine that evidence is lacking, or to quickly clear a potential suspect are fine, but many times are more trouble when they are worth when evidence is actually obtained.

Even standards which are firmly ingrained into our culture and vernacular such as reasonable doubt are misunderstood and poorly applied, even by juries.

True. I would also suggest that a popular culture in the form of television "crime dramas" and mystery books are largely to blame for this. People walk into situations having preconceived notions about the law that are largely incorrect.

As for juries, I gave up wondering about how a jury would decide anything a long time ago. The old joke that a jury is comprised of twelve people too stupid to get out of jury duty is all too often true.

Ultimately, I don't believe that it is too much to ask that those individuals who have the power to deprive citizens of their right to liberty understand and apply the standards governing that power implicitly.

None of the police officers I worked with over the years would disagree with this statement. Most know exactly what the trust is that has been placed on them. The problem that most cops have with the courts is that when they do act in good faith under the law, often times judges will decide that other case law changes the interpertation of the rules after the fact. This ultimately breeds cynicism for the whole judicial process, at least on the part of the police.

[_multithreading]

Re: Colorable suspicion of drugs == search?

Will we continue down the slippery slope and soon require all students be required to submit to drug testing?

If my school did that, I would probably end up getting expelled or suspended from refusing. I have a habbit of doing that.

[theprez98]

Re: Colorable suspicion of drugs == search?

Here is more recent information about drug testing of school students, which is an extension of the Vernonia case above:

The Earls case decided in 2002 found that:

The Student Activities Drug Testing Policy (Policy) adopted by the Tecumseh, Oklahoma, School District (School District) requires all middle and high school students to consent to urinalysis testing for drugs in order to participate in any extracurricular activity...Tecumseh's Policy is a reasonable means of furthering the School District's important interest in preventing and deterring drug use among its schoolchildren and does not violate the Fourth Amendment.

So basically we've gone from no students, to student athletes, to any students who participate in any extra-curricular activities. I think it most schools this would be a very large percentage of the students.

Will we continue down the slippery slope and soon require all students be required to submit to drug testing?

[theprez98]

Re: Colorable suspicion of drugs == search?

Ahem... excuse me? What professional experience? I never heard of any teachers taking intensive drug detection courses; i think K9 would become obsolete, if they did.

So what would happen if you were to refuse being searched?

If the teacher watched the latest episode of Law & Order or CSI, they will be considered professionally qualified.

[^Dash^]

Re: Colorable suspicion of drugs == search?

search by a full-time teacher or school official, acting on any colorable suspicion based on professional experience and judgment

Ahem... excuse me? What professional experience? I never heard of any teachers taking intensive drug detection courses; i think K9 would become obsolete, if they did.

So what would happen if you were to refuse being searched?

[Deviant Ollam]

Re: Colorable suspicion of drugs == search?

if anyone here is really interested in the nuts and bolts of criminal procedure, i actually have the audio book of Professor Joshua Dressler speaking through all his Crim Pro lessons. was a rip from a set of five cassette tapes... on a drive to mississippi and back it was a kickass way to pass the miles. think of it as a deconstruction of shows like "law and order" ... after learning the ins and outs of crim pro, you'll know after each episode of a show like that how much was realistic and how much could have resulted in an acquittal or dismissal.

if folks are keen on nabbing it from me, shoot a PM. 10 files, ~200 MB total. we'll work out some way of making the transfer fast and painless.

[800XL]

Re: Colorable suspicion of drugs == search?

How about a bill that will let students check their teachers for drug possession? =)

Check this out:
http://www.signonsandiego.com/news/m...9deanbust.html

[theprez98]

Re: Colorable suspicion of drugs == search?

<lawyer mode on> (not I'm not actually a lawyer, but I did stay at a Holiday Inn Express last night.)

Here are a few of my thoughts on the 4th Amendment. First, the text:

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.

The word that sticks out to me the most is "unreasonable." That means necessarily that some searches ARE reasonable without warrants. Thus, the definition of reasonable is left to the courts. Understandably, this has created a lot of 4th amendment jurisprudence (the opposite of this is also true: an "unreasonable" search CAN be conducted with a warrant that was obtained with probable cause).

As has been stated, the TLO case set the standard for searches in schools:

Schoolchildren have legitimate expectations of privacy. They may find it necessary to carry with them a variety of legitimate, non-contraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items by bringing them onto school grounds. But 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. Thus, school officials need not obtain a warrant before searching a student who is under their authority. Moreover, school officials need not be held subject to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a determination of whether the search was justified at its inception and whether, as conducted, it was reasonably related in scope to the circumstances that justified the interference in the first place. Under ordinary circumstances the search of a student by a school official will be justified at its inception where there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. And such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the student's age and sex and the nature of the infraction.

So let's recap that: warrants are not required. Probable cause is not required. The Court says "the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search." As we have seen with the 4th amendment, the amendment itself defers to the Court's interpretation of reasonableness. But the Supreme Court is smart; they aren't determining reasonableness, they're letting it up to the lower courts to decide. So in all actuality who is determining reasonableness? School boards, administrators and parents are the ones coming up with these drug testing programs. Once these programs go in front of the court (if they do at all), the front-line judges have a big muddled mess of decisions to look at. Its no wonder this proposed bill is in existence. Basically I see this bill as a legislative method to codify 'reasonableness'. I don't necessarily agree or disagree with it, but it is what it is.

As for drug testing in schools, the case of record is Vernonia School District v. Acton. At issue was random urinalysis testing of student athletes. The court found the policy to be constitutional:

(a) State-compelled collection and testing of urine constitutes a "search" under the Fourth Amendment. Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 617 . Where there was no clear practice, either approving or disapproving the type of search at issue, at the time the constitutional provision was enacted, the "reasonableness" of a search is judged by balancing the intrusion on the individual's Fourth Amendment interests against the promotion of legitimate governmental interests. Pp. 5-7.

(b) The first factor to be considered in determining reasonableness is the nature of the privacy interest on which the search intrudes. Here, the subjects of the Policy are children who have been committed to the temporary custody of the State as schoolmaster; in Page II that capacity, the State may exercise a degree of supervision and control greater than it could exercise over free adults. The requirements that public school children submit to physical examinations and be vaccinated indicate that they have a lesser privacy expectation with regard to medical examinations and procedures than the general population. Student athletes have even less of a legitimate privacy expectation, for an element of communal undress is inherent in athletic participation, and athletes are subject to preseason physical exams and rules regulating their conduct. Pp. 7-11.

(c) The privacy interests compromised by the process of obtaining urine samples under the Policy are negligible, since the conditions of collection are nearly identical to those typically encountered in public restrooms. In addition, the tests look only for standard drugs, not medical conditions, and the results are released to a limited group. Pp. 11-14.

(d) The nature and immediacy of the governmental concern at issue, and the efficacy of this means for meeting it, also favor a finding of reasonableness. The importance of deterring drug use by all this Nation's schoolchildren cannot be doubted. Moreover, the Policy is directed more narrowly to drug use by athletes, where the risk of physical harm to the user and other players is high. The District Court's conclusion that the District's concerns were immediate is not clearly erroneous, and it is self-evident that a drug problem largely caused by athletes, and of particular danger to athletes, is effectively addressed by ensuring that athletes do not use drugs. The Fourth Amendment does not require that the "least intrusive" search be conducted, so respondents' argument that the drug testing could be based on suspicion of drug use, if true, would not be fatal; and that alternative entails its own substantial difficulties.

Everything bolded above EXCEPT the last could be clearly expanded to any students, whether athletes, chess club or they do nothing at all. They key is the last bolded statement about the narrowly tailored policy. If you could convince a judge that a school-wide policy was not narrowly tailored, you might have a chance. Might. Still, I don't think the odds are very good.

The Court has led considerable weight to the stare decisis on this issue and it won't be easy to put on the brakes and reverse course.

Finally, as for the exclusionary rule, you can see that it is not mentioned at all in this amendment, and is wholly a contstruction of the courts as method of enforcing the amendment. This is an entirely separate issue and is worth a new thread by itself.

</lawyer mode off>

[theprez98]

Re: Colorable suspicion of drugs == search?

I should have clarified my statement, I was not suggesting that this thread had become "too political" or even "political" at all. On the other hand, many issues near and dear to our hearts, such as privacy, have political dimensions that cannot be ignored.

[jur1st]

Re: Colorable suspicion of drugs == search?

Most cops play by the rules

In no way was I implying that even a large portion of police officers do not follow the law. I was stating that in many instances where the exclusionary rule is utilized by the courts that by utilizing a little bit more forethought, the issue of exclusion could have been avoided alltogether.

The standards are less than clear at many times.

Indeed the standards of procedure are unclear to most members of the general public. The number of searches which are done with the consent of the suspect proves this beyond a shadow of a doubt. Even standards which are firmly ingrained into our culture and vernacular such as reasonable doubt are misunderstood and poorly applied, even by juries.

Ultimately, I don't believe that it is too much to ask that those individuals who have the power to deprive citizens of their right to liberty understand and apply the standards governing that power implicitly.

[Thorn]

Re: Colorable suspicion of drugs == search?

In my experience, discussions relating to the 4th Amendment seem to be some of the more reasonable compared to discussions about other Constitutional interpretations. Things get rather nasty when people focus instead on the idea that someone is benefited by the exclusionary rule and therefore isn't prosecuted for an offense. The standards are clear, however they are not applied by law enforcement strictly enough. Often law enforcement doesn't think before they act.

Bull. That is the typical lawyer's view.

The standards are less than clear at many times. Most cops play by the rules only to find the rules changed after the fact by judges.

[jur1st]

Re: Colorable suspicion of drugs == search?

I'd love to get into a detailed discussion of 4th amendment jurisprudence but keeping it apolitical (for anyone) is very tough.

In my experience, discussions relating to the 4th Amendment seem to be some of the more reasonable compared to discussions about other Constitutional interpretations. Things get rather nasty when people focus instead on the idea that someone is benefited by the exclusionary rule and therefore isn't prosecuted for an offense. The standards are clear, however they are not applied by law enforcement strictly enough. Often law enforcement doesn't think before they act.