Consider three preliminary questions:
- First, did the student consent to the search? If so, then the search is legal so long as the consent was not given while under duress, and also provided that the search was conducted reasonably (not over-intrusive).
- Second, was the cigarette found while the student was on campus? If so, see New Jersey v. T. L. O., 469 U.S. 325 (1985). This is an interesting case where the United States Supreme Court discussed factual circumstances where it can be reasonable for school officials to search a minor’s person and purse for cigarettes, in order to ensure order and safety on school grounds. But school administrators must be careful to weigh the full circumstances because the Court held, “A search of a child's person or of a closed purse or other bag carried on her person, no less than a similar search carried out on an adult, is undoubtedly a severe violation of subjective expectations of privacy." But if the cigarette was not found while the student was on campus, see the discussion below entitled Off Campus.
- Third, are there any exigent circumstances, such as: the cigarette that smelled like marijuana, or someone tried to run/hide, or there was a concealed object on the student’s person/body that looked like a weapon, or the student was reasonably suspected of selling cigarettes to other minors? If something like that occurred, then the school administrator probably has reasonable suspicion to search the student’s person and purse (it’s called a “Terry” search, from the Supreme Court case Terry v. Ohio).
Regarding off-campus searches, consider these legal authorities:
According to California Penal Code section 308(b), a minor smoking cigarettes carries no threat of jail time, so it is a civil infraction. This is important because cases that have analyzed the reasonableness of searches have focused on whether the cigarette was “contraband.” As far as my research shows, California does not label a cigarette “contraband” when in the possession of a minor. Compare Alabama, for example, which does.
In the Maryland case of In Re Calvin S., the court found that a police officer who merely observed a minor smoke a cigarette was not justified in searching the minor for more cigarettes. http://www.courts.state.md.us/opinions/cosa/2007/607s05.pdf
But in the Maine case of State v. Michael M., the court concluded that police officers’ pat-down search of Michael M., a juvenile whom the officers had observed smoking a cigarette, did not violate the Fourth Amendment. 772 A.2d at 1180. The officers frisked Michael M. with the purpose of searching for more cigarettes, but also recovered a butterfly knife, the possession of which is a crime in Maine. Id. Michael M. was charged with trafficking in dangerous knives, and he move d to suppress evidence of the knife. Id. at 1181. This Supreme Court reasoned that, although possession of tobacco products by minors is a civil offense under Maine law, cigarettes in the hands of a minor are contraband. Id. at 1182-83. The court also concluded that exigent circumstances supported the officers’ warrantless search of Michael M.’s person, noting that, “exigent circumstances exist when an officer discovers contraband in a person’s possession and the evidence might be removed, concealed, or destroyed before a warrant could issue.” Id. at 1183 (citations omitted).
Now let’s recall our third question above regarding “exigent circumstances.” Similar to the Michael M. case, in West Virginia, it’s a misdemeanor for minors to have cigarettes, so in the West Virginia case of State v. Matthew David S., 205 W.V a. 392, 397 (1999), it was found that police officers may validly search a minor if the officer witnesses the minor in possession of tobacco products. Note though that in Matthew David S., the officer stated that he conducted a pat-down search “for my safety, as well as ... the other people’s offices of the surrounding area.” Id. at 394-95.
Hopefully this legal guide provides a helpful review for students and school administrators alike.
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