Colorable suspicion of drugs == search?

[_multithreading]

I was going about my routine today when I checked my email, I got an email from the Drug Policy Alliance.

Basically, it talked about a new bill that would give teachers/staff/ect the right to search students lockers/backpacks (maybe even strip search) based on unsubstantiated evidence that a student may have drugs. They even used a new term for it, now instead of them needing 'reasonable suspicion' they only need 'colorable suspicion'.

http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.5295.IH:

Basically what it sounds like, is to protect students' safety, they can be searched on a hunch.

But, if they think so, it must be true. And to protect my safety, let me be the first to pull down my pants in readiness for a strip search.

[jur1st]

Re: Colorable suspicion of drugs == search?

Ah yes...TLO is one of my favorite cases from Constitutional Law because it got so many people extremely fired up on a day when they didn't expect to be. Essentially as a student in the public school system, you have no rights and no expectation of privacy.

Is this a load of crap? You're darn right it is. Can you find a single individual who cannot agree with the stated purpose of the bill? (to ensure that classrooms, school buildings, and school property remain free of all weapons, dangerous materials, or illegal narcotics) Of course not.

Why don't students have the same rights inside school walls as they do when they are off on their own? It's the idea that the teachers/administrators are acting in locus parenti (in the shoes of the parents for all you non-latin speakers) and therefore with such great responsibilty comes great power to protect you from yourself.

School districts can even make you pee in a cup if you want to join the Science Olympiad team if you want to. It's rediculous, I know. Eventually you will be free of the hell that is high school and you'll enjoy all of the deminishing rights to privacy that the rest of us in America have.

Oh, on a related note...there are always facts in cases that make me laugh hysterically. The fun fact pattern cited in this bill is that a group of students standing in a circle with money out does not justify a search. All I picture in this scenario is a bunch of people throwing dice in the corner during study hall.

[Voltage Spike]

Re: Colorable suspicion of drugs == search?

\School districts can even make you pee in a cup if you want to join the Science Olympiad team if you want to.

Why do schools only possess this power if you want to do something besides learn? Why haven't they attempted to extend this power to all students?

All I picture in this scenario is a bunch of people throwing dice in the corner during study hall.

Sounds like somebody needs to go back to Vegas.

[jur1st]

Re: Colorable suspicion of drugs == search?

Why do schools only possess this power if you want to do something besides learn? Why haven't they attempted to extend this power to all students?

Don't think they haven't thought of that...it just hasn't worked at this point. The justification started (case names escape me) with a district that wanted to do drug testing of athletes for safety. I'll buy this because the last thing we need is some redneck middle-linebacker blowing some of his uncle's crystal up his nose then dropping dead underneath the Friday night lights.

It was then extended to all extracurricular activities under the same justification (student safety) and distinguished from complete drug testing because the activities are elective. Essentially the court said that it was better for kids who smoke grass to have nothing better to do than get high than it was to encourage them to have more diverse hobbies in addition to getting roasted on the weekend.

Of course this completely ignores the fact that in 7 out of 10 instances, Johnny Quarterback is drinking a 12 pack after the football game and well on his way to dropping out of community college so he can sit around the local bar at 35 wearing his letter jacket and talking about the good old days.

[sarcasm]Drugs are the real threat to our children.[/sarcasm] *edit*fixed that for D.O.

[Deviant Ollam]

Re: Colorable suspicion of drugs == search?

Essentially the court said that it was better for kids who smoke grass to have nothing better to do than get high than it was to encourage them to have more diverse hobbies in addition to getting roasted on the weekend.

that's something that irritates the hell out of me. study after study has shown that drug testing all kids in "elective" activities only accomplishes two things (sometimes simultaneously)...

1. discouraging pot-smokers from doing anything productive and instead just sitting around, not joining any clubs or student organizations
2. encouraging (indirectly) students to not smoke pot but instead party with the whole littany of drugs that leave one's system after 24 hours.

Johnny Quarterback is drinking a 12 pack after the football game

see above point... remember, of all the illicit drugs that kids in high school have access to, only two kinds really show up on your typical piss test...

1. marijuana
2. steroids

everything else (cocaine, heroin, alcohol, mushrooms, pcp, speed, etc) leaves your system pretty rapidly and is likely to go undetected under most school circumstances.

Drugs are the real threat to our children.

hehe... no, in my opinion needle-dick school and government officials are a far greater threat as we're raising an entire generation who has a skewed view of privacy rights and civil liberties. the more they are disregarded now, the less the youth of today will fight for them in the future, i fear.

drugs are only a threat if they're being abused... whether by kids or adults.

[INIT_6]

Re: Colorable suspicion of drugs == search?

drugs are only a threat if they're being abused... whether by kids or adults.

Abusing drugs. Kids/adults can abuse anything. From ADHD meds to heron. How does one know if they are abusing the drug or if they are with-in safe margins.

They wont know unless they do there own research even then ones body is different then anothers. and will react different.

YES, schools and governments should give information about reasons not to do drugs. Also give them un-bias information about all drugs. That it can take as little as 1gram of coke to kill someone with a low body wight/damaged heart. However a good body wight and good heart can take up to 7grams a day with out putting the much stess on the body. I think they should give information or have information for kids/adults to learn this. Like on erowid and new scientist.

The government always tells us that MDMA is so bad for us. That it will eat wholes in our brians. If you look into that report they used. It has been withdrawn. They scientist was using HIGH does of meth not MDMA. not sure if this is the right one

Any time I do a drug, I always make sure I am in a safe place. Have a baby sitter if I might think I need one. Also I make sure I am not breaking any laws in that area. If that means I have to leave USA I do. I have been caught before. I will not take that risk again. I lost to much.

[Deviant Ollam]

Re: Colorable suspicion of drugs == search?

Abusing drugs. Kids/adults can abuse anything. From ADHD meds to heron. How does one know if they are abusing the drug or if they are with-in safe margins. They wont know unless they do [their] own research even then ones body is different then anothers. and will react different.

while everyone's body is different, the standard of "use vs. abuse" is the same across all scenarios, from a purely medical and psychological standpoint. "use" crosses into "abuse" when an activity begins to have significant negative impacts on one's life and routines. when habits, job or school performance, and social lives are markedly impacted (particularly if they are impacted in a negative way) that is the definition of "abuse." person A can smoke an ounce of weed every week and not have a severe detrimental effect on their job or family life. person B can just burn a joint with friends on the weekends and screw up their entire educational prospects. now in these hypotheticals, person A is likely a classic rock radio DJ with no kids to look after while person B might be a high school senior trying to get into Harvard... but the fact remains that person A is merely using drugs while person B is abusing them.

schools and governments should give information about reasons not to do drugs. Also give them un-bias information about all drugs. ... Like on erowid and new scientist.

two terrific sites you mention there. i added a link to the vaults of erowid in the quote there so people can check it out, even... it's the ideal, in my opinion, of what drug education should be about. totally non-moralistic and simply scientific. educate people on the effects, risks, etc. of all substances (paying particular attention to the fact that if people choose to experiment before their brains are fully-developed they could run into significant problems) and then, once people are adults, let them do with their life what they will... hopefully they will make responsible decisions that do not cause harm to others.

Any time I do a drug, I always make sure I am in a safe place. Have a baby sitter if I might think I need one. Also I make sure I am not breaking any laws in that area. If that means I have to leave USA I do. I have been caught before. I will not take that risk again. I lost to much.

that's a very perfect model of responsibility. while not everyone leaves specific jurisdictions (a step that's a bit extreme in some cases) i applaud those who have the good sense to situate themselves away from others and keep a responsible friend on hand when they choose to party.

[theprez98]

Re: Colorable suspicion of drugs == search?

I will say what I have said in prior instances of such legislation being introduced: given the number of sponsors (a whole 3), the time it was introducted (last May), time now (election beginning to go full steam so time on the floor is limited), end of the term (all legislation not passed by the end of the term is dead), this bill was probably referred to committee and will die there.

That of course does not dilute the discussion in the above thread, but simply points out that the potential for this bill to become law is very, very low given the circumstances.

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

[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.

[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?

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.

[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.

[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>

[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

[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.