Monthly Archives: June 2009

Strip Search of Child by School Unreasonable – Safford v. Redding

certiorari to the united states court of appeals for the ninth circuit

No. 08–479.Argued April 21, 2009—Decided June 25, 2009

After escorting 13-year-old Savana Redding from her middle school classroom to his office, Assistant Principal Wilson showed her a day planner containing knives and other contraband. She admitted owning the planner, but said that she had lent it to her friend Marissa and that the contraband was not hers. He then produced four prescription-strength, and one over-the-counter, pain relief pills, all of which are banned under school rules without advance permission. She denied knowledge of them, but Wilson said that he had a report that she was giving pills to fellow students. She denied it and agreed to let him search her belongings. He and Helen Romero, an administrative assistant, searched Savana’s backpack, finding nothing. Wilson then had Romero take Savana to the school nurse’s office to search her clothes for pills. After Romero and the nurse, Peggy Schwallier, had Savana remove her outer clothing, they told her to pull her bra out and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found. Savana’s mother filed suit against petitioner school district (Safford), Wilson, Romero, and Schwallier, alleging that the strip search violated Savana’s Fourth Amendment rights. Claiming qualified immunity, the individuals (hereinafter petitioners) moved for summary judgment. The District Court granted the motion, finding that there was no Fourth Amendment violation, and the en banc Ninth Circuit reversed. Following the protocol for evaluating qualified immunity claims, see Saucier v. Katz, 533 U. S. 194 , the court held that the strip search was unjustified under the Fourth Amendment test for searches of children by school officials set out in New Jersey v. T. L. O., 469 U. S. 325 . It then applied the test for qualified immunity. Finding that Savana’s right was clearly established at the time of the search, it reversed the summary judgment as to Wilson, but affirmed as to Schwallier and Romero because they were not independent decisionmakers.
1. The search of Savana’s underwear violated the Fourth Amendment . Pp. 3–11.
(a) For school searches, “the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause.” T. L. O., 469 U. S., at 341. Under the resulting reasonable suspicion standard, a school search “will be permissible … 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.” Id., at 342. The required knowledge component of reasonable suspicion for a school administrator’s evidence search is that it raise a moderate chance of finding evidence of wrongdoing. Pp. 3–5.
(b) Wilson had sufficient suspicion to justify searching Savana’s backpack and outer clothing. A week earlier, a student, Jordan, had told the principal and Wilson that students were bringing drugs and weapons to school and that he had gotten sick from some pills. On the day of the search, Jordan gave Wilson a pill that he said came from Marissa. Learning that the pill was prescription strength, Wilson called Marissa out of class and was handed the day planner. Once in his office, Wilson, with Romero present, had Marissa turn out her pockets and open her wallet, producing, inter alia, an over-the-counter pill that Marissa claimed was Savana’s. She also denied knowing about the day planner’s contents. Wilson did not ask her when she received the pills from Savana or where Savana might be hiding them. After a search of Marissa’s underwear by Romero and Schwallier revealed no additional pills, Wilson called Savana into his office. He showed her the day planner and confirmed her relationship with Marissa. He knew that the girls had been identified as part of an unusually rowdy group at a school dance, during which alcohol and cigarettes were found in the girls’ bathroom. He had other reasons to connect them with this contraband, for Jordan had told the principal that before the dance, he had attended a party at Savana’s house where alcohol was served. Thus, Marissa’s statement that the pills came from Savana was sufficiently plausible to warrant suspicion that Savana was involved in pill distribution. A student who is reasonably suspected of giving out contraband pills is reasonably suspected of carrying them on her person and in her backpack. Looking into Savana’s bag, in her presence and in the relative privacy of Wilson’s office, was not excessively intrusive, any more than Romero’s subsequent search of her outer clothing. Pp. 5–8.
(c) Because the suspected facts pointing to Savana did not indicate that the drugs presented a danger to students or were concealed in her underwear, Wilson did not have sufficient suspicion to warrant extending the search to the point of making Savana pull out her underwear. Romero and Schwallier said that they did not see anything when Savana pulled out her underwear, but a strip search and its Fourth Amendment consequences are not defined by who was looking and how much was seen. Savana’s actions in their presence necessarily exposed her breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings. Savana’s subjective expectation of privacy is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation is indicated by the common reaction of other young people similarly searched, whose adolescent vulnerability intensifies the exposure’s patent intrusiveness. Its indignity does not outlaw the search, but it does implicate the rule that “the search [be] ‘reasonably related in scope to the circumstances which justified the interference in the first place.’ ” T. L. O., supra, at 341. Here, the content of the suspicion failed to match the degree of intrusion. Because Wilson knew that the pills were common pain relievers, he must have known of their nature and limited threat and had no reason to suspect that large amounts were being passed around or that individual students had great quantities. Nor could he have suspected that Savana was hiding common painkillers in her underwear. When suspected facts must support the categorically extreme intrusiveness of a search down to an adolescent’s body, petitioners’ general belief that students hide contraband in their clothing falls short; a reasonable search that extensive calls for suspicion that it will succeed. Nondangerous school contraband does not conjure up the specter of stashes in intimate places, and there is no evidence of such behavior at the school; neither Jordan nor Marissa suggested that Savana was doing that, and the search of Marissa yielded nothing. Wilson also never determined when Marissa had received the pills from Savana; had it been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear. Pp. 8–11.
2. Although the strip search violated Savana’s Fourth Amendment rights, petitioners Wilson, Romero, and Schwallier are protected from liability by qualified immunity because “clearly established law [did] not show that the search violated the Fourth Amendment ,” Pearson v. Callahan, 555 U. S. ___, ___. The intrusiveness of the strip search here cannot, under T. L. O., be seen as justifiably related to the circumstances, but lower court cases viewing school strip searches differently are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt about the clarity with which the right was previously stated. Pp. 11–13.
3. The issue of petitioner Safford’s liability under Monell v. New York City Dept. of Social Servs., 436 U. S. 658 , should be addressed on remand. P. 13.
531 F. 3d 1071, affirmed in part, reversed in part, and remanded.
Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Breyer, and Alito, JJ., joined, and in which Stevens and Ginsburg, JJ., joined as to Parts I–III. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined. Ginsburg, J., filed an opinion concurring in part and dissenting in part. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part.

Download a copy of the opinion.

Category: Muni-Mail Archive

Lab Reports Are Testimonial Evidence- Melendez-Diaz v. Mass

[6/25/09 – 12:49 pm] In a 5-4 decision released this morning, the United States Supreme Court ruled that laboratory reports related to the testing of controlled dangerous substances at a police laboratory are to be considered as testimonial evidence within the meaning of the Sixth Amendment. As a result, a criminal defendant has the right at trial to personally confront the maker of the laboratory report on confrontation clause grounds.

The Court’s holding, written by Justice Scalia, is a continuation of Sixth Amendment jurisprudence that began five years ago with the publication of Crawford v. Washington, 541 U.S. 36 (2004). The decision is entirely consistent with current New Jersey law which also considers such evidence testimonial in nature in a wide variety of contexts. (See generally, State v. Berezansky, 386 N.J. Super. 84 (App. Div. 2006) (Lab results of a DWI Blood test); State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (Requiring testimony of person who drew blood sample from intoxicated defendant) and State v. Kent, 391 N.J. Super. 352 (App. Div. 2007) (Requiring the defendant to put the state on notice that the lab tech will be required to appear to testify in court)

Download a copy of Melendez-Diaz v. Massachusetts.

Category: Muni-Mail Archive

Fourth Degree Touching Did Not Touch Office – State v. Hupka

The June 15, 2009 Appellate Division holding in State v. Hupka provides an in-depth analysis of the law of forfeiture of public office. The Court held that a correction officer who committed a 4th degree sexual contact was not subject to lifetime forfeiture because the offense did not touch on his office.

Download a copy of State v. Hupka.

Category: Muni-Mail Archive

Illegally Obtained Statement May Be Used for Impeachment – Kansas v. Ventris

In the June 15, 2009 United States Supreme Court decision, the Justices held that a statement made by the defendant to a jailhouse informant in violation of the defendant’s Miranda rights may still be used in his trial for impeachment purposes.

Download a copy of Kansas v. Ventris.

Category: Muni-Mail Archive

Third Parties Have No Standing to Raise Miranda Defenses – State v. Baum

[6/15/09 – 11:55 am] In this morning’s Supreme Court decision in State v. Baum, the Justices held that third party defendants may not litigate a violation of a co-defendant’s right to remain silent, even when the purported violation results in the discovery of incriminating evidence against the third party. In Baum, the police effected a motor vehicle stop and closely questioned the operator of the motor vehicle at the scene over a prolonged period of time. During the course of the questioning, the driver made admissions that resulted in the recovery of illegal drugs inside the vehicle. A co defendant, a passenger in the vehicle, filed a motion to suppress and argued that the police obtained the information related to the drugs illegally by violating the driver’s Miranda rights. However, the Supreme Court rejected this argument and ruled that both federally and in New Jersey, the Fifth Amendment privilege is purely personal with the defendant that makes the incriminating statement and does not extend to protect third parties. Simply put, such third party defendants do not have standing to raise and litigate the Miranda violation.

Download a copy of State v. Baum.

Category: Muni-Mail Archive

No Problem that Trooper Read Wrong Para 36 Warning in DWI – State v. Wilkins

[6/8/09 – 2:30 pm] Last week, the Appellate Division released its decision in the drunk driving case of State v. Wilkins. Among the many defenses raised by the defendant in Wilkins, the Court concluded that the arresting trooper had read the wrong version of paragraph 36, the special advisement that must be read to all suspects who are required to submit to breath testing following a DWI arrest. The Court held that the misstatements in the incorrect paragraph 36 were not of sufficient significance to have prejudiced the defendant in any way. Note as well in the case the Court’s treatment of the so-called 20-minute issue in the context of a breathalyzer case, relying upon the procedure established by the Supreme Court in State v. Chun, 194 N.J. 54 (2008).

State v. Wilkins has not been approved for publication and should be utilized in strict conformity with Rule 1:36.

Download a copy of State v. Wilkins.

Category: Muni-Mail Archive

Certain Judges Disqualified from Hearing DV & DWI Cases – Directive 04-09

[6/3/09 – 5:46 pm] The New Jersey Supreme Court has promulgated new procedures related to the authority of judges who have been charged with drunk driving or acts of domestic violence to hear these types of cases in the future. The Court’s revised Directive 04-09 implements the follow new procedures:

Drunk Driving – A judge who has been charged with drunk driving must immediately stop hearing all such cases. The prohibition on hearing DWI cases will continue indefinitely and will expire either one year following the imposition of sentence following a plea or finding of guilty or after all aspects of sentence have been completed, whichever is longer. Any pending, reserved decisions related to a DWI case before the offending judge will be decided by another judge on the papers or re-litigated before another judge at the request of the defendant.

Domestic Violence – A judge who is a party to a domestic violence matter may not hear any domestic violence cases while his DV matter is pending and for one year following the trial court’s disposition of the case. If a final restraining order is entered against the offending judge, he may not hear any domestic violence cases while the order is in effect or for one year from the date of the order, whichever is longer.

Practical Impact – The practical effect of the Directive will be to disqualify all judges charged with drunk driving from hearing such cases for a period that will always exceed one year. This is because the prohibition commences upon the filing of the complaint by the police and will continue for one year following the imposition of sentence. No “credit for time-served” is authorized under the Directive for the time between the filing of the complaint and the ultimate imposition of sentence. Typically, a first offense, non-school-zone DWI sentence can be completed within one year, so the longer one-year prohibition will almost invariably be the normal waiting period.

In domestic violence cases, a judge who is subject to a final restraining order will be permanently disqualified from hearing domestic violence cases and would only be able to hear such cases in the future by leave of the Supreme Court if the FRO is somehow vacated after the passage of one year from the date of the order. In addition even a judge who was wrongfully accused of an act of domestic violence would be subject to the one-year prohibition following the entry of an order dismissing the DV complaint and would have to seek relief from the Supreme Court to rescind the prohibition.

Download a copy of Directive 04-09.

Category: Muni-Mail Archive