There are definitely some concerns with school officials or a School Resource Officer from the Denver Police Department questioning your child (assuming he is under 18) without your knowledge and without your consent. Possession of less than 2 oz of marijuana is typically a Class 2 petty offense carrying only a fine, a drug surcharge, and court costs. It does not carry the possibility of jail. The mere fact that marijuana was found in his possession on school grounds should not aggravate or increase the penalties. If he was "dealing" drugs within a certain distance of school grounds, that would be a HUGE problem and a big aggravator. You might want to consult with the local public defender (they are extremely good in Denver) or with private counsel about this case if you have concerns about the questioning of your son. Locker searches at high school are typical and have been found over and over to be constitutional by both the Colorado Supreme Court and the US Supreme Court, so that is not an argument to make. The fact that your son has no priors and this is a petty offense causes me to believe that he will receive a relatively favorable result in this case - if the prosecution or the school district even decides to press charges.
Possession of no more than 1 ounce marijuana is a class 2 petty offense with a fine of no more than $100 (18-18-406(1)). The fines and penalties increase based on the amount.
Possession of a Controlled Substance Outside of Original Container is a class 1 petty offense. The presumption is that you're carrying the pill(s) in that manner so that you can distribute them. Hard to predict if they would file charges.
School officials and teachers don't need a search warrant if they have a special need to conduct a search in school to ensure their students’ safety. Searches can be done in schools based on “reasonable suspicion". All the school administrator or Dean needs is reasonable suspicion 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. Reasonable suspicion can be based on information supplied by students, school employees, and the police. If a school administrator suspects that a student is involved in a violation of a law or school policy, he may be searched. Personal possessions, such as a backpack, locker and car on school property, may be searched. School personnel are not part of law enforcement and do not need a search warrant. The school retains control and access to all lockers on its premises and many have a written policy that allows officials to search any locker when they have a general concern that they might find evidence of a crime or a violation of a school rule.
A parent does not have a right to be present during the interrogation or consent to questioning of her child by the principal or school administrator. In a sense, though employed by the government, school personnel aren't "government actors" as regards to Constitutional rights, since they're primarily responsible for education and discipline, not law enforcement.
If police or school resource officer, SRO, questioned him in custody, as juvenile (under 18 yrs old) he's not deemed to have voluntarily waived the privilege against self-incrimination unless he had the opportunity to consult with, and have present at interrogation, an adult interested in his welfare.
Under Miranda v. Arizona, incriminating statements made during custodial interrogations are inadmissible unless the individual is first advised that he has the right to remain silent, right to consult with counsel and to have counsel present during the interrogation, and right to have an attorney provided if he cannot afford one.
You'll need to contact a criminal defense attorney if charges are filed against your son.
Mary E. McCluskey
The MCCLUSKEY LAW OFFICE 303-698-1603 is dedicated to helping individuals accused of crimes. However, the only method of establishing an attorney client relationship with the MCCLUSKEY LAW OFFICE is by signing a fee agreement. A response to your inquiry from the MCCLUSKEY LAW OFFICE does not create an attorney client relationship nor does it bind the MCCLUSKEY LAW OFFICE to represent any person or entity. The MCCLUSKEY LAW OFFICE urges those with inquiries to consult with an attorney in person.
Generally, being at school will not aggravate the charge unless your son was selling the marijuana on school grounds. Whether the police have any evidence to support a distribution charge will typically come down to what the children said who were interrogated by the police, what he said to the police, and whether anything was caught on video. Your son will need an attorney so you should start looking into representation now. If the police unlawfully interrogated other children, you will not be able to challenge their statements under Constitutional grounds (you can only challenge the unlawful interrogation of your son). Likewise, the search will be found to be constitutional.
Also keep in mind, and this is really important, that a plea to a drug charge may result in your son being ineligible for college student financial aid.