Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of the City of St. Louis Honorable
Steven R. Ohmer
S. ODENWALD, Judge
Williams ("Williams") appeals the trial court's
judgment, entered after a bench trial, convicting him on one
count of possessing a controlled substance. Williams, a
student at a public high school, was searched by school
officials and forced to remove items in his pockets after he
arrived 30~minutes late to school. Among the items in
Williams's pocket was a substance with a cocaine base.
Williams contends that the trial court should have suppressed
all evidence relating to his possession of a controlled
substance because the evidence was the fruit of an
unreasonable search under the Fourth Amendment. Recognizing
that we review the constitutionality of school searches under
a more relaxed standard than otherwise is required under the
Fourth Amendment, we nevertheless hold that the search of
Williams violated his right to be free of an unreasonable
search for two reasons. First, the school official conducting
the search lacked any reasonable, individualized suspicion
that Williams possessed contraband on his person. Second, the
school's policy to conduct a hand search of all
late-arriving students was, under all the circumstances,
unreasonable. Because the school official's search of
Williams violated the Fourth Amendment, the trial court
should have suppressed the resulting evidence. We reverse and
remand for a new trial.
and Procedural History
was a student at Vashon High School ("Vashon") when
he was arrested there for possession of a substance with a
cocaine base. The State charged Williams as an adult with one
count of possessing a controlled substance-a class C felony
under Section 195.202. Before trial, Williams moved to suppress
"any and all articles seized and intended to be used
against [Williams], and any testimony regarding such
evidence." Williams waived his right to a jury trial.
The trial court held a bench trial, which adjudicated both
the suppression motion and Williams's guilt.
trial, the State's main witness was DeAndre Duncan
("Duncan"), a school-safety employee at Vashon.
Duncan's duties were to "patrol the school and
protect and check anyone that comes in." Duncan knew
Williams from prior interactions at the school. When asked
about those interactions, Duncan stated, "Just the
normal routine just get to class. Nothing negative."
testified that, on the day of arrest, Williams arrived at
school at least 30-minutes late with a "group of young
men." Duncan instructed the group, as they came through
the front door, to remove their shoes and all items from
their pockets. The students were then required to go through
a metal detector. Williams passed through undetected. After
the metal detector, Duncan "immediately" hand
searched the students. When Duncan attempted to pat down
Williams's back pocket, Williams told him to stop.
Suspecting that Williams had something "that didn't
belong" in school, Duncan brought Williams to the
security office, Duncan demanded that Williams remove
whatever was in his pocket. Williams removed a white
"rocky substance" in a plastic wrapping. According
to Duncan, Williams characterized this substance as
"dope." Duncan handcuffed Williams and called
Vashon's resource officer, DeAndre Davis ("Officer
Davis"). Officer Davis worked for the St. Louis
Metropolitan Police Department as a detective, but he was
assigned to Vashon as the resource officer. Officer Davis
arrived at the security office, seized the drugs,
took Williams into custody. Williams was moved to Officer
Davis's office, which was also at the school. Officer
Davis started the booking process in his office before
conveying Williams to the police station for formal booking.
At some point during this process, Williams was read his
Miranda rights and stated that he understood those
rights. According to Officer Davis's testimony at trial,
Williams said that he "found" the contraband and
"never should have picked [it] up."
central issue at trial was the constitutionality of the hand
search made by Duncan when Williams first entered the school,
and consequently whether evidence concerning Williams's
drug possession should have been suppressed as the fruit of
an unreasonable search under the Fourth Amendment. Duncan
testified that he searched Williams according to school
policy. According to Duncan, all students were required to
pass through a metal detector to enter the school. But for
all students who were late to school by 30 minutes or more,
school policy required an additional "hand check."
Duncan described this procedure vaguely:
A hand check entails removing all items from your pocket and
even maybe shoes or-and to pull your pockets out and for me
to check the front area of the body down the sleeves to pat
the pockets and to-and even to the ankles, all the way down
to the ankles.
purpose for this policy, according to Duncan, was to protect
the students, teachers, and staff. Duncan further stated that
the reason for this hand-check policy addressed
"[s]uspicion on late arrival." When asked what was
suspicious about late arrival, Duncan replied, "Because
of the neighborhood we have a lot of drug activities and
violence down in that neighborhood, so the school [Vashon]
and the St. Louis Public Schools asked us to have a more
detailed check on later arrival for students at the
time." Duncan stressed that his hand search of Williams
when he entered the school merely followed the school's
hearing the testimony,  the trial court overruled the
suppression motion. The trial court found that the
school's policy of suspicionless searches for all
late-arriving students was justified because it was uniformly
applied and done for safety purposes. The trial court also
found that the search's scope was reasonable because it
was limited to the emptying of pockets and a pat-down-no
strip search occurred. The trial court found the search to be
trial court then found Williams guilty. The trial court
suspended imposition of the sentence, placing Williams on
probation. Williams's probation was later revoked and he
was sentenced to three years in prison. Williams now appeals.
raises three points on appeal. Point One argues that the
trial court erred in overruling his motion to suppress
evidence of the drugs found on his person because the hand
search of Williams violated his Fourth Amendment rights.
Point Two contends that the trial court erred by admitting,
as evidence, Williams's statements in the security office
acknowledging the presence of "dope." Point Three
assigns error to the admission of Williams's statements
that he "found" the drugs and should not have
picked them up.
reviewing the trial court's overruling of a motion to
suppress, this Court considers the evidence presented at both
the suppression hearing and at trial to determine whether
sufficient evidence exists in the record to support the trial
court's ruling, " State v. Pike, 162 S.W.3d
464, 472 (Mo. banc 2005). We will reverse only if the ruling
was clearly erroneous. State v. Loggins, 445 S.W.3d
105, 109 (Mo. App. E.D. 2014). We defer to the trial
court's factual findings and credibility determinations.
Id. But, an alleged Fourth Amendment violation is a
question of law. State v. Selvy, 462 S.W.3d 756, 764
(Mo. App. E.D. 2015). As such, the reasonableness of a
public-school search under the Fourth Amendment is reviewed
de novo. Doe ex rel. Doe v. Little Rock Sch. Dist.,
380 F.3d 349, 352 (8th Cir. 2004).
begin our discussion with an overview of the Fourth
Amendment's application to searches of students by
public-school officials. After analyzing Duncan's search
of Williams under two frameworks, we conclude that the search
was unconstitutional. Finally, we determine that the evidence
deriving from the unconstitutional search should have been
suppressed as the fruit of a poisonous tree.
The Fourth Amendment in Public Schools
Fourth Amendment to the United States Constitution provides
that "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated ...." U.S.
Const, amend. IV. The Fourth Amendment, by virtue of the
Fourteenth Amendment, applies to searches by public-school
officials, as they are considered state actors. New
Jersey v. T.L.O., 469 U.S. 325, 334 (1985) (citing
Elkins v. United States, 364 U.S. 206, 213 (1960)).
touchstone of the constitutionality of a governmental
search" is "reasonableness." Bd. of Educ.
of Indep. Sch. Dist. No. 92 of Pottawatomie Cntv, v.
Earls, 536 U.S. 822, 828 (2002). Fourth Amendment rights
in public schools are different from those rights possessed
elsewhere, as the "reasonableness" inquiry cannot
disregard the school's tutelary responsibility for
children. Vernonia Sch. Dist. 47J v. Acton. 515 U.S.
646. 656 (1995) ("Vernonia"). Further,
securing order in a public-school environment sometimes
requires greater controls over students than those over
adults. Earls, 536 U.S. at 831. As such, the United
States Supreme Court has dispensed with the need for
public-school officials to obtain a warrant based on probable
cause before a search at school, because the warrant
requirement would "unduly interfere with the maintenance
of the swift and informal disciplinary procedures [that are]
needed." Id. at 828-29.
end, whether a public-school official's search of a
student is unconstitutional depends on the reasonableness of
the search under all circumstances. T.L.O., 469 U.S.
at 341; Vernonia. 515 U.S. at 652; Earls.
536 U.S. at 828. The United States Supreme Court has employed
two different frameworks in analyzing the reasonableness of
searches conducted by public-school officials.
first framework applies when the search is based on some
level of individualized suspicion that a student has violated
the law or school rules. See T.L.O., 469 U.S. at
345-46 (search of a student's purse after a teacher
caught the student smoking in violation of school rules);
Safford Unified Sch. Dist. No. 1 v. Redding, 557
U.S. 364, 373-74 (2009) (strip search of student based on
suspicion that she was distributing contraband). Under this
first framework, the reasonableness of a search
"involves a twofold inquiry": (1) whether the
action was "justified at its inception, " and (2)
whether the search as actually conducted was "reasonably
related in scope to the circumstances which justified the
interference in the first place." T.L.O., 469
U.S. at 341. The Supreme Court has required only reasonable
suspicion-rather than probable cause-to justify a search, or
a "moderate chance" of finding evidence of the
wrongdoing suspected.Redding, 557 U.S. at 371.
second framework recognizes that individualized suspicion is
not an irreducible requirement of the Fourth Amendment's
reasonableness inquiry. Vernonia, 515 U.S. at 653.
Thus, even absent individualized suspicion, a search might
pass constitutional muster under a broad balancing test. The
United States Supreme Court has applied the second framework
twice, both in the context of suspicionless drug
testing-under a specific school policy-of public-school
students participating in extracurricular activities. See
Vernonia, 515 U.S. at 654-664; Earls, 536
U.S. at 830-838. Under the Vernonia/Earls framework,
a court must weigh the intrusion on the student's Fourth
Amendment rights against the promotion of legitimate
governmental interests. Earls, 536 U.S. at 830.
Three factors guide this analysis: (1) "the nature of
the privacy interest allegedly compromised, " (2)
"the character of the intrusion imposed, " and (3)
"the nature and immediacy of the government's
concerns and the efficacy of the [p]olicy in meeting
them." Earls, 536 U.S. at 830-838; see also
Vernonia. 515 U.S. at 654-664. While we are aware of no
Missouri case applying the Vemonia/Eatis framework,
the Eighth Circuit has applied it to suspicionless searches
conducted according to a school policy. See Doe, 380
F.3d at 354-57 (searching the students' belongings,
without individualized suspicion, in randomly selected
classrooms under school policy); see also Hough v.
Shakopee Pub. Sch.. 608 F.Supp.2d 1087, 1109 (D. Minn.
2009) (school policy of daily, suspicionless searches of
parties here do not agree on the proper framework to apply.
Williams argues that individualized suspicion is required
under T.L.O. and that Duncan did not have reasonable
suspicion to force Williams to empty his pockets and to pat
him down. Conversely, the State emphasizes the language of
Vemonja and Earls in asserting that no
individualized suspicion was necessary because Duncan
conducted the search according to the school's policy.
Even assuming arguendo that reasonable suspicion was
required, the State asserts that Williams's tardiness
provided the reasonable suspicion to justify the search. The
parties raise plausible arguments under each of the
frameworks developed by the Supreme Court in T.L.O.
and Vernonia/Earls. Accordingly, we see legitimate
reasons for analyzing this case under both frameworks, and we
will do so in turn.
Application of T.L.O.-Suspicion-Based Searches
the two-pronged T.L.O. framework, the search of
Williams was reasonable if it was (1) "justified at its
inception" and, if so, (2) whether the search conducted
was reasonably related in scope to the circumstances that
justified the interference in the first place. 469 U.S. at
341. Ordinarily, a search is justified at inception when
"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."
Id. at 341-42. This test amounts to reasonable
suspicion, allowing a search if "a moderate chance of
finding evidence of wrongdoing" exists.
Redding, 557 U.S. at 371. A search is permissible in
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." T.L.O., 469 U.S. at 342. There
must exist some nexus between the item searched for and the
suspected violation. Id. at 345.
State argues that Williams's tardiness alone provides the
requisite suspicion to justify the pat-down search. The
State's conclusory argument stems from Justice
Breyer's concurrence in Earls, which noted that lower
courts have used tardiness as a court-approved factor in
justifying suspicion-based searches. Earls, 536 U.S. at 842
(Breyer, J., concurring). However, Justice Breyer's statement
does not suggest that tardiness functions as a litmus test or
per se rule establishing reasonable suspicion. Tardiness, at
best, is merely a factor in the reasonable-suspicion
analysis. We found no Missouri case applying
T.L.O.'s reasonable-suspicion test to a student
search, let alone considering a student's tardiness in
that context. Other jurisdictions support our skepticism that
a student's tardiness or truancy at school, alone,
establishes reasonable suspicion to justify this search.
example, an Indiana appellate court considered the search of
D.M., a student at an alternative school who entered his
class nearly one hour late. P.M. v. State, 902
N.E.2d 276, 277 (Ind. Ct App. 2009). D.M.'s teacher
overheard him tell another student that he had been shopping
that morning and that he "had a stack."
Id. The teacher searched D.M.'s jacket, finding
stolen credit cards and a set of keys for a stolen car.
Id. The State defended the search's
reasonableness because of D.M.'s limited expectation of
privacy as a student at school, his late arrival to class,
his comments to the other student about the "stack,
" and the fact that other students (not the defendant)
had recently possessed weapons and drugs at school.
Id. at 279. The court held that this evidence lacked
justification for the search at its inception because no
reasonable grounds existed for suspecting that D.M. possessed
contraband. Id. (applying T.L.O.). While
the court was "reluctant to interfere with a
school's disciplinary policies, the standard enunciated
in T.L.O. commands that students' legitimate
privacy rights must, nonetheless, be balanced against the
need of school officials to deal effectively with the threat
of drugs and violence." Id.; see also
D.I.R. v. State, 683 N.E.2d 251, 253 (Ind.Ct.App. 1997)
(holding no justification existed for a search at its
inception when an official reached into the student's
pocket "merely because she arrived late for
Supreme Court of California also rejected tardiness or
truancy as a sole factor justifying a search of a
public-school student. In re William G., 709 P.2d
1287, 1297 (Cal. 1985). In William G., an assistant
principal encountered three students who were late to class.
Id. at 1289. Upon questioning, William made furtive
gestures in attempting to hide his calculator case, which had
an odd-looking bulge. Id. The assistant principal
found contraband upon a search of the calculator case.
Id. In applying T.L.O., the court held that
the assistant principal "articulated no facts to support
a reasonable suspicion that William was engaged in a
proscribed activity justifying a search." Id.
at 1297. In so holding, the court stressed that the record
reflected a "complete lack of any prior
knowledge or information" relating to William's
possession, use, or sale of contraband. Id. The
student's tardiness and truancy provided no reasonable
basis for conducting a search of any kind. Id.
T.L.O. and William G., a New Mexico court
arrived at a similar conclusion on similar facts. See
State v. Pablo R., 137 P.3d 1198, 1202 (N.M. Ct.
App. 2006). A school official encountered a high-school
student out of class without permission. Id. The
school official testified about a few similar encounters in
the past with Child. Id. at 1200. On those
occasions, the school official simply told Child to return to
class. Id. This time, however, Child acted "a
little nervous" and fidgety, so the school official
suspected that he might have a weapon or marijuana on him.
Id. In holding that a subsequent search of the
Child's person was not justified at its inception, the
court stressed that the school official did not suspect Child
of engaging in criminal activity, did not smell marijuana,
had no other history of wrongdoing with Child, and had no
knowledge or information concerning any wrongdoing on this
occasion, other than his being out of class. Id. at
1202. The court found "no logical connection between the
search of Child for contraband and the suspected violation of
being out of class without a pass." Id. Because
the school officials had "no idea what Child might have
had in his possession upon searching him, or why the search
might have revealed evidence of a violation of the law or
school rules, " the court found no "reasonable
suspicion to justify the search of Child at its
inception." Id. at 1203.
Supreme Judicial Court of Massachusetts also agrees. See
Com, v. Damian P., 752 N.E.2d 679, 683 (Mass. 2001).
A school official ordered Damian to empty his pockets, remove
his shoes, and submit to a pat-down search. Id. at
681. The only basis for the search was Damian's truant
behavior-missing class on one day, and then missing his
subsequent disciplinary hearing. Id. at 682. The
court stressed that Damian was not searched for evidence of
his truancy; instead, he was searched for contraband.
Id. at 683. "It was pure speculation to
conclude that, because Damian was out of class for a period
of time during the day, he was likely to have
contraband." Id. Possibility and speculation,
like hunches and ...