A Student’s Expectation of Privacy Versus Need to Search

With a population of less than 21,000 people, Worth County, Georgia is hardly a speck on the nation’s map. But, thanks to Worth County Sheriff Jeff Hobby, the county finds itself at the center of a major legal controversy after Sheriff Hobby and 40 of his deputies showed up at Worth County High School on April 14, 2017 as part of a drug investigation. Sheriff Hobby had a list with the names of thirteen students on it when he showed up at the principal’s office. They were the targets of his investigation.

High School Treated Like Prison

School officials announced to all students first thing on the morning of April 14 that the school had been placed on lockdown. That’s the same thing a warden does in a prison when his “tact unit” is going to conduct a prison-wide drug sweep/search. Sheriff Hobby, and all of his deputies, acted like—and, in fact, conducted themselves like—a prison tact unit manhandling inmates. They body searched all 900 students at the school in a horrible roughshod manner.

This was no ordinary search. The deputies groped, felt, and even massaged the genitalia of the students, including sticking their hands into the underwear of both male and female students. To say the least, it was a traumatic experience for the students who were not accustomed to being treated and manhandled as though they were hardened prison inmates.

Dragnet Failed to Net Any Drugs

Sheriff Hobby’s search did not produce a single drug, not even a marijuana roach, but it did produce a massive federal civil rights lawsuit against him and county officials brought by the Atlanta-based Southern Center on Human Rights on behalf of the students.

This warrantless law enforcement search created a continuing debate about the students’ expectation of privacy and legitimate need of the police to conduct criminal investigations.

Debate Over Fourth Amendment and Student Rights

The debate centers on the Fourth Amendment of the United States Constitution which protects all Americans, including students, against unreasonable searches and seizures. Kathryn Gardner, J.D., is a nationally recognized expert on the issue of students’ Fourth Amendment protections. She is the editor of Law Wise, a legal publication, published by the Kansas State Bar Association.

In a 2010 Law Wise article titled “The Fourth Amendment Rights of Students,” Ms. Gardner instructed that while students do not leave their “constitutional rights at the schoolhouse gate,” their expectation of privacy guaranteed by the Fourth Amendment is not as expansive as it is for people in other social settings.

Warrantless Searches in Schools

There are two kinds of legal law enforcement searches: one conducted with a warrant issued by a judge or a magistrate based on a probable cause and the other conducted without a warrant based on a “reasonable suspicion” that the search will produce evidence of criminal wrongdoing.

In most non-school searches, such as one conducted at an individual residence, the police must demonstrate to the satisfaction of a judge or magistrate that there is a “fair probability” or a “substantial chance” the search will result in the discovery of evidence of criminal wrongdoing.

As pointed out by Ms. Gardner, in a school setting, school officials do not need a warrant to conduct a search. All they must have is a “moderate” belief that criminal activity is afoot in order to conduct a warrantless search. It takes nothing more than an “anonymous tip” from someone who school officials think is “sufficiently reliable” to trigger a warrantless search of a student or students.

Principal is Warden of the School

As the State bestows upon a warden the authority to control the prison environment, the State authorizes the school principal to be “schoolmaster” over the school environment. The institutional need to control both environments exceeds individual constitutional rights.

School Searches Must Be Reasonably Related to Objectives

However, as Ms. Gardner pointed out, “a search at school as actually conducted must be ‘reasonably related to the circumstances which justified the interference in the first place.’ A school 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 age and sex of the student and the nature of the infraction.’”

Massive Search Exceeded Constitutional Bounds

Clearly, the facts alleged in the federal civil rights lawsuit taken as true (and this is the standard under which the court must review the lawsuit in determining whether it merits a trial) reveal that Sheriff Hobby and his army of ham-handed deputies were way out of constitutional bounds when they conducted the highly invasive body searches of all the male and female students at Worth High School. Sheriff Hobby did not have even the remotest “reasonable suspicion” that all 900 students at the school had illicit drugs on their person. Even if the sheriff had a limited suspicion of wrongdoing, that did not bestow upon him or school officials the authority to conduct an en masse body search of all the students.

Prison inmates do not enjoy a Fourth Amendment expectation of privacy of their body or prison cells, but high school students do—and as Ms. Gardner noted, the younger the student, the greater the expectation. The Worth County High School lawsuit will be tried by reasonable jurors, some of whom are parents, and they are not going to be law enforcement-friendly to the police manhandling law-abiding students to ensnare one student who is not.

Sheriff Hobby may have to find a real hobby because his law enforcement career may be drawing to premature end.

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