School Resource Officer Legal Manual

Stearns County Attorney s Office School Resource Officer Legal Manual Prosecutors Schools Students Parents Law Enforcement Created by: The Stearns County Attorney s Office Janelle P. Kendall, Stearns County Attorney November 1, 2004 Updated: June 1, 2007 January 1, 2009 June 21, 2012

CONDUCTING INTERVIEWS WITH STUDENTS A. Interviews by School Officials School officials have the right to question a student concerning conduct that has taken place on school premises without being subjected to the constraints of Miranda. A Miranda warning is required, however, when a police officer conducts a custodial interrogation of a suspect. 1 If a school official and a law enforcement officer jointly conduct an interview, the interview will be subject to Miranda scrutiny. There is nothing improper about a law enforcement officer participating in school disciplinary affairs, but where the officer questions a student in a manner likely to elicit criminally incriminating responses, the student must be afforded Fifth Amendment protection. 2 B. Interviews by Law Enforcement 1. Voluntary Statements In order for a juvenile s statement to be admissible, it must be voluntary. This voluntariness requirement applies to all statements regardless of when they are made, be it before, during, or after custodial 1 Miranda v. Arizona, 384 U.S. 436, 444 (1966). 2 In the Matter of the Welfare of G.S.P., 610 N.W.2d 651, 659 (Minn.Ct.App. 2000). 1

interrogation, and includes a juvenile s voluntary waiver of rights per Miranda. 3 Voluntary statements are not barred by the Fifth Amendment. 4 Minnesota courts use a totality-of-the-circumstances test to determine whether a juvenile s statement is voluntary. 5 The test examines whether the questioning was initiated by law enforcement officers and whether the questioning was reasonably likely to elicit an incriminating response. 6 In applying the totality-of-the-circumstances test, courts consider numerous factors in determining whether a statement is voluntary. Note that this totality-of-the-circumstances test is essentially the same test used to determine whether a juvenile is in-custody 7 and whether the juvenile voluntarily waived rights per Miranda 8. The factors include the juvenile s age, maturity, intelligence, education, ability to comprehend and whether any special needs or disabilities exist, 9 prior experience with law 3 See section below entitled, Voluntary Miranda Waiver, page 7. 4 Miranda, 384 U.S. at 478. 5 In the Matter of the Welfare of M.D.S., 345 N.W.2d 723 (Minn. 1984). 6 Rhode Island v. Innis, 446 U.S. 291, 301 (1980). 7 Discussed below at pages 5-7. 8 Discussed below at pages 7-11. 9 In the Matter of the Welfare of M.E.P., 523 N.W.2d 913, 920 (Minn.Ct.App. 1994). See also State v. Ouk, 516 N.W.2d 180, 184-85 (Minn. 1994) (a 15-year-old juvenile was found to be of suitable intelligence and maturity to understand rights) and In the Matter of the Welfare of S.W.T., 277 N.W.2d 507, 513 (Minn. 1979) (a 12-year-old juvenile s waiver was found to be involuntary where the juvenile was emotionally disturbed and functioned at an 8-year-old level). 2

enforcement, 10 lack of or adequacy of Miranda warnings, length and legality of detention, nature of the interrogation, whether any physical deprivations existed, 11 whether the interview was tape-recorded 12, and whether the juvenile had access to counsel and friends. Additionally, Minnesota courts consider whether the police officer told the juvenile that he or she was free to leave or free to decline to answer questions 13 and whether the police made promises to the juvenile and the substance of those promises. 14 the court. 15 Whether or not parents are present is also a factor considered by Minnesota courts have held that, While there is no absolute right to have parents present, the presence of parents is a factor that affects 10 M.E.P., 523 N.W.2d at 920; The Matter of the Welfare of D.B.X., 638 N.W.2d 449, 453, 456 (Minn.Ct.App. 2002); The Matter of the Welfare of R.J.E., 630 N.W.2d 457, 459, 461 (Minn.Ct.App. 2001). 11 M.E.P., 523 N.W.2d at 920. See also State v. Scott, 584 N.W.2d 412, 419 (Minn. 1998) (an almost 18-year-old who was familiar with the criminal justice system was held to have waived Miranda rights), State v. Jones, 566 N.W.2d 317, 325 (Minn. 1997) (an 18-year-old who had previously been adjudicated delinquent on ten prior felony offenses was held to have voluntarily waived Miranda rights) and Ouk, 516 N.W.2d at 185 (a 15-yearold who had been given the Miranda advisory on three prior occasions was held to have voluntarily waived Miranda rights). 12 G.S.P., 610 N.W.2d 651, 658 (Minn.Ct.App, 2000) (fact that juvenile was informed that the interview was tape recorded was strongly suggestive of custodial interrogation); see State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994)(requiring that all custodial interrogations be recorded). 13 R.J.E., 630 N.W.2d 457 (Minn.Ct.App. 2001); G.S.P., 610 N.W.2d 651 (Minn.Ct.App. 2000). 14 State v. Anderson, 396 N.W.2d 564, 565 (Minn. 1986). 15 Ouk, 516 N.W.2d at 185. 3

the voluntariness of a juvenile s Miranda waiver and confession. 16 The Minnesota Court of Appeals held that it would be a better practice for police to routinely have parents present before interrogating a juvenile. 17 This factor is examined along with all the other factors to determine if, under the totality of the circumstances, the statement was voluntary or involuntary. a. Presence of Parents A Local Perspective: As noted above, while there is no absolute right to have parents present prior to making a statement (or prior to waiving Miranda), the Minnesota Court of Appeals has held that this is the better practice. 18 In several recent cases, the Stearns County Juvenile Court has relied upon this language and found that a juvenile s statement and Miranda waiver was not voluntarily made where a juvenile s parents were not invited to the interview (in one local case, the juvenile was offered to call a parent and declined to do so). This factor has become increasingly significant in cases where the juvenile is very young (age 13-14), has special needs and/or learning disabilities, or has little experience with law enforcement. 16 D.B.X., 638 N.W.2d at 454. 17 Id. 18 Id. 4

2. Custodial Interrogation Custodial interrogation requires a Miranda warning. 19 Juveniles as well as adults are entitled to be apprised of their constitutional rights per Miranda. 20 Custodial interrogation is defined as questioning initiated by law enforcement after a person has been taken into custody or deprived of their freedom in any significant way. 21 To determine whether a person is incustody, courts apply a totality-of-the-circumstances test and ask whether a reasonable person in the suspect s situation would feel they were not free to terminate the questioning and leave. 22 As such, in juvenile interrogations, this test is applied by considering whether a reasonable juvenile in the same situation would feel that they were free to terminate the questioning and leave. The factors a court will consider include a child's age, intelligence, education, experience with the law, and the presence or absence of the child's parents, et al. 23 If a juvenile is placed under arrest at the conclusion of questioning, the juvenile will be considered to have been in-custody at the time of questioning regardless of whether prior to questioning the officer 19 In the Matter of the Welfare of G.S.P., 610 N.W.2d 651, 656 (Minn.Ct.App. 2000). 20 Id., citing State v. Loyd, 297 Minn. 442, 445, 212 N.W.2d 671, 674 (1973) (citing In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)). 21 Id. 22 Id. at 657. 23 In re Welfare of M.A.K., 667 N.W.2d 467, 472 (Minn.App.2003). 5

told the juvenile he or she was not under arrest or was free to leave. 24 Courts will examine all the circumstances leading up to the interrogation including whether the juvenile was taken from class, whether the juvenile was given a note or hall pass to return to class prior to questioning, whether the juvenile was told they were free to leave and could decline to answer questions, whether the juvenile was told (or could readily observe) that the interview was being recorded, whether the police officer was uniformed or was carrying a weapon, whether the interview room door was closed and/or locked and the position of the parties in the room at the time of questioning, and whether the juvenile was told he or she was under arrest. 25 The court will also examine the officer s and the juvenile s behavior throughout the questioning to determine if the juvenile was in custody. 26 For example, a court will consider whether there was a coercive influence during the interrogation that conveyed to the juvenile a message that he has no choice but to submit to the officers' will and to confess. 27 Court s have 24 M.E.P., 523 N.W.2d 913, 919 (Minn.Ct.App. 1994). 25 See In re M.A.K., 667 N.W.2d 467, (Minn.App. 2003); State v. Miller, 573 N.W.2d 661, 670 (Minn. 1998), cf. G.S.P. 610 N.W.2d at 658 (G.S.P. in custody where officer did not tell him that he was not under arrest or that he was free to leave) and R.J.E., 642 N.W.2d at 709-10; State v. Tibiatowski, 590 N.W.2d 305, 310 (Minn. 1999). 26 G.S.P., 610 N.W.2d 651, 657 (Minn.Ct.App. 2000). 27 Id. at 658, citing Tibiatowski, 590 N.W.2d at 308 (quoting Minnesota v. Murphy, 465 U.S. 420, 433, 104 S.Ct. 1136, 1145, 79 L.Ed.2d 409 (1984)). 6

held that law enforcement saying that telling the truth will make you feel better is not coercive. 28 The police are allowed to encourage suspects to talk if the suspect has not clearly refused. 29 The police may not encourage a juvenile to confess through the use of direct or implied promises, stresscreating techniques, or threats. 30 Police invite suppression by making express or implied promises to juveniles during custodial interrogations. 31 In order for police questioning to rise to the level of interrogation, the questioning, whether express or implied, must be reasonably likely to elicit an incriminating response. 32 Again, the courts will look to the totality-ofthe-circumstances and the nature of the interrogation itself to determine if the questioning was reasonably likely to elicit an incriminating response. 33 3. Voluntary Miranda Waiver In order to be valid, a Miranda waiver must be knowing, voluntary, and intelligently made. 34 In adult interrogations, if police give a proper Miranda warning to an accused and the accused acknowledges his or her rights but makes an incriminating statement, the state has met its burden of 28 Id. at 922. 29 State v. Merrill, 274 N.W.2d 99, 107-08 (Minn. 1978). 30 State v. Cash, 391 N.W.2d 875, 881 (Minn.Ct. App. 1986). 31 In the Matter of the Welfare of D.S.N., 611 N.W.2d 811, 814 (Minn.Ct.App. 2000). 32 Tibiatowski, 590 N.W.2d at 309 (citation omitted). 33 G.S.P., 610 N.W.2d at 657. 7

proof to show that the waiver was knowing and intelligent. 35 In juvenile cases, however, the court must consider the totality-of-circumstances in determining whether the accused has voluntarily waived his or her right to remain silent. 36 The same factors discussed above are considered here, such as the juvenile's age, maturity, intelligence, education and prior criminal experience, as well as any physical deprivations during the interrogation, the presence or absence of parents, the length and legality of the detention, the lack of or adequacy of warnings, and the nature of the interrogation, et al. 37 Courts also will consider the functioning level of the juvenile and whether the juvenile suffers from any disabilities or special needs. 38 Regarding the form of the Miranda warning itself, under Minnesota law there is "no requirement that Miranda warnings 'take a rigid form so long as they are correct in substance.' 39 In juvenile cases, Minnesota courts have upheld the staggered reading in which an officer reads the warning in segments and asks whether rights are understood after each section. 40 In a 34 Miranda v. Arizona, 384 U.S. 436, 444 (1966). 35 State v. Scott, 584 N.W.2d 412, 417 (Minn. 1998). 36 In re Welfare of D.B.X., 638 N.W.2d 449, *453 (Minn.App. 2002) 37 Id at 453. 38 In re S.W.T., 277 N.W.2d 507, 513 (Minn.1979). 39 Id. at 454 (quoting State v. Ouk, 516 N.W.2d 180, 185 (Minn.1994) (citing California v. Prysock, 453 U.S. 355, 359-61, 101 S.Ct. 2806, 2809-10, 69 L.Ed.2d 696 (1981))). 40 Scott, 584 N.W.2d at 415. 8

recent opinion in Stearns County Juvenile Court, the Court held that the State would do well to advise its officers that, for future interrogations, suspects should not only be asked if they understand their rights but also if they are willing to answer questions. In the absence of an express waiver (that the juvenile is willing to answer questions), the State will run the risk of failing to establish the existence of an implied waiver. As a result of this ruling, it is now recommended that officers take the additional step of seeking an express waiver that the juvenile is willing to answer questions. When a suspect indicates by an equivocal or ambiguous statement that they may be requesting counsel, all further questioning must stop except that the officer may ask specific and narrow questions designed to clarify whether the accused is truly requesting counsel. 41 This is referred to as the stop and clarify approach. It is important to note that not every reference to lawyer will necessarily be deemed a request for counsel, provided that the statement, viewed in the context in which it is made, does not even arguably suggest that the accused is asserting that he or she does not wish to 41 State v. Robinson, 427 N.W.2d 217, 223 (Minn. 1988). 9

continue the custodial interrogation without the aid of counsel, then continuation of the interrogation is proper." 42 Both the United States Supreme Court and the Minnesota Supreme Court have deplored the use of question first interview techniques where an officer interviews a suspect who is in-custody without reading Miranda, obtains a confession, and then re-interviews with a Miranda warning. In such cases, not only is the first statement inadmissible, but the second will be inadmissible as well. 43 Where a juvenile is interrogated in connection with a serious crime that may be prosecuted in adult court, there is heightened concern that the juvenile understands that any inculpatory statements made can be used against the juvenile in adult court. 44 The Minnesota Supreme Court has held that it is the best course to specifically warn a minor that his statement can be used in adult court. 45 42 State v. Risk, 598 N.W.2d 642, 649 (Minn.1999). 43 See Missouri v. Seibert, 124 S.Ct. 2601 (2003); State v. Bailey, 677 N.W.2d 380 (Minn. 2004). 44 State v. Burrell, 697 N.W.2d 579, 591-592 (Minn. 2005) citing State v. Loyd, 297 Minn. 442, 445, 212 N.W.2d 671, 674 (1973). 45 Id. See also, State v. Fardan, 773 N.W. 2d 303 (Minn. 2009). 10

C. Interviews on School Property 1. Investigating a Report of Maltreatment (Sexual Abuse, Physical Abuse, Neglect, Endangerment) Under the Reporting of Maltreatment of Minors Act, 46 certain individuals are designated as mandatory reporters of suspected physical or sexual abuse or child neglect. Mandated reporters include a professional or professional s delegate engaged in the practice of the healing arts, social services, hospital administration, psychological or psychiatric treatment, child care, education, or law enforcement, and persons employed as a member of the clergy. The local welfare agency is required to investigate a report that alleges neglect, physical abuse, or sexual abuse by a parent, guardian, or individual functioning within the family unit as a person responsible for the child s care. 47 If a report alleges the violation of a criminal statute involving sexual abuse, physical abuse, or neglect or endangerment, the local law enforcement agency and the local welfare agency are required to coordinate the planning and execution of their respective investigations. 48 The responsible investigating agency has the authority to interview, without parental consent, the alleged victim and any other minors who 46 Minn.Stat. 626.556 (2002). 47 Minn.Stat. 626.556, subd. 10(a). 11

currently reside with or who have resided with the alleged offender. 49 The investigating agency decides whether the interview will take place at school or at any facility or other place where the alleged victim or other minors might be found or the child may be transported to. 50 Before conducting an interview at school, the agency must give school officials written notification of its intent to interview the child on school property, and the notification must include the child s name, the purpose of the interview, and a reference to Minn.Stat. 626.556, subd. 10(c), the statutory authority that allows the investigating agency to conduct the interview on school property. 51 School officials may not disclose the contents of this notification to the parent, legal custodian, or guardian until the investigating agency notifies them in writing that the investigation is completed. 52 The investigating agency determines where to conduct the interview based on the appropriateness of a location for the interview of a child, the child s location, or the proximity of the interview place to the child and the feasibility of transporting the child to the interview place. In addition, the interview may take place outside the presence of the alleged offender or 48 Id. 49 Minn.Stat. 626.556, subd. 10(c). 50 Id. 51 Minn.Stat. 626.556, subd. 10(d). 52 Id. 12

parent, legal custodian, guardian, or school official, provided that the investigating agency notifies the parent, legal custodian, or guardian that the interview took place no later than the conclusion of the investigation. 53 The school cannot prohibit an interview on school property, however the statute does allow the school some control over the scheduling of the interview: Except where the alleged offender is believed to be a school official or employee, the time and place, and manner of the interview on school premises shall be within the discretion of school officials, but the local welfare or law enforcement agency shall have the exclusive authority to determine who may attend the interview. The conditions as to time, place, and manner of the interview set by the school officials shall be reasonable and the interview shall be conducted not more than 24 hours after the receipt of the notification unless another time is considered necessary by agreement between the school officials and the local welfare or law enforcement agency. 54 In summary, the police may conduct an interview of a child victim or any other minor who lives with or lived with an alleged perpetrator after receiving a report of sexual abuse, physical abuse, neglect or endangerment. The police may choose to interview the child on school property, subject to the scheduling considerations previously noted. The police decide who can be present at the interview. The school cannot deny a request to interview a child on school property pursuant to a report of child maltreatment, provided the previously mentioned procedures are followed. 53 Minn.Stat. 626.556, subd. 10(c). 13

2. Investigating a Crime Not Under the Reporting of Maltreatment of Minors Act There are no specific directives under the law as to whether school officials can prohibit police officers from conducting interviews of students on school property in situations not specifically addressed under the Reporting of Maltreatment to Minors Act. This is where reasonableness and common sense come into play. Presumably, if the school requests assistance from the police, school officials should be willing to cooperate with the investigation. However, the police should be mindful that the school is an educational institution and school officials have no responsibility under the law to assist in an investigation of a crime that occurred elsewhere and is independent of any request for assistance on their part. That being said, if a school official denies a police request to conduct an interview on school property and the police are not actively involved in an ongoing criminal situation, the police should yield to the school official s decision. The issue of parental presence during a police interview of a child was covered in Part B. 1 under this section. Suffice it to say that it is highly recommended that the officer ask the student whether he or she would like to contact a parent or have a parent present at the interview. The presence of a parent is not mandatory, but again, it is a factor the court will consider when 54 Minn.Stat. 626.556, subd. 10(d). 14

the student alleges the interview was not voluntary. The school cannot make an officer call a parent before conducting an interview since parental presence is not a mandatory requirement under the law. Common sense dictates that school officials may not want to jeopardize their relationship with law enforcement by imposing restrictions on officers investigating crimes at their request. If the police are requesting to interview a student on a matter that did not occur in the school and the school did not request police assistance, again the prudent action is to defer to the school s decision. The school has no lawful obligation to assist in an investigation that does not involve the school. Finally, if the police remove a student from school property to conduct an interview, the police should consider the interview a custodial interrogation. See Part B. 2 of this section. 15

SCHOOL SEARCHES A. Initiated by School Officials A school has a legitimate need to maintain order and a proper educational environment. Therefore, public school officials may search students or their personal possessions without a warrant or probable cause provided they have a reasonable suspicion that the search will turn up evidence that the student violated, or is violating, either the law or school rules. 55 Under Minnesota statute, lockers remain the property of the school district and may be searched by school authorities for any reason at any time, without notice, without student consent, and without a search warrant. 56 Licensed peace officers are not school authorities. They are law enforcement officers and they are subject to stricter scrutiny under the Fourth Amendment. School officials who enlist the aid of law enforcement to conduct a search become agents acting on behalf of the police and are therefore subject to the same stricter scrutiny under the Fourth Amendment as the police. In other words, if there is police action on the day of the search or police suspicion directed at the thing that is searched, there is sufficient governmental involvement to elevate a search by school officials to the level 55 New Jersey v. T.L.O., 469 U.S. 325, 342 n.8 (1985). 16

requiring a warrant or probable cause before the search is conducted. The analysis to determine if there is sufficient governmental involvement involves the following two part test: (1) whether the government knew of and acquiesced in the search and (2) whether the search was conducted to assist law enforcement efforts or to further the private party s own ends. 57 For example, if school officials request the assistance of police dogs to search lockers or the personal property of a student, the school officials will become agents acting on behalf of the police and will need either a warrant or probable cause before searching the locker or personal property. The only time school officials can conduct a search without a warrant or probable cause is when there is no police involvement and they have a reasonable suspicion that they will find evidence of a violation of the law or school rules in the item they intend to search. This is because with police involvement, the scope shifts from the school s legitimate need to maintain a safe educational environment to the Fourth Amendment s purpose of safeguarding the privacy and security of individuals against arbitrary invasions by governmental officials. The motivation of the search changes from maintaining school discipline or enforcing school policies to 56 Minn.Stat. 121A.72, subd. 1 (1998). 57 State v. Buswell, 460 N.W.2d 614, 618 (Minn. 1990) (citing United States v. Walther, 652 F.2d 788, 792 (9 th Cir. 1981)). 17

investigating a crime. The school official must have some specific reason to suspect that contraband will be found in the place that is searched, general talk about contraband is not sufficient. 58 The United States Supreme Court addressed a search of a student by school officials that involved the student being told to remove all of her outer clothing and then to pull her underwear away from her body and shake the underwear. The Court found that the actions by the school officials violated the child s Fourth Amendment rights because the officials had no information that the contraband they were looking for would be in the underwear or that the contraband was dangerous. 59 Police Searches The general rule is that a warrantless search is unreasonable unless an exception to the search warrant requirement applies. 60 A law enforcement officer always needs probable cause and either a search warrant or an exception to the search warrant requirement before the search is conducted. Probable cause is a belief that certain items will be found in a given location and those items are sufficiently connected to criminal activity to make them 58 In the Matter of the Welfare of B.M., 2012 WL 426600 (Minn.App. 2012). 59 Safford Unified School District #1, et al. v. April Redding, 557 U.S. 364 (2009). 60 Katz v. United States, 389 U.S. 347, 357 (1967). 18

seizable. This means items that are contraband, evidence of crime, instrumentalities of crime, or the fruits of crime. 1. Locker and Personal Property Searches The plain view doctrine is an exception to the warrant requirement. Before police officers can seize items that are in plain view without a warrant, they must have probable cause to believe the item is contraband, stolen property, or evidence of a crime. 61 The following three conditions must be met: (1) the police must observe the item from a place where the police have a legal right to be; (2) the item s incriminating character must be immediately apparent; and (3) the police must have a lawful right of access to that item. 62 If the item is in a container, the mere fact that the container itself is in plain view provides no basis for a warrantless seizure and search of it, even assuming probable cause as to the contents. 63 A valid consent to search is a well-established exception to the warrant requirement under the United States and Minnesota constitutions. 64 There must be some manifestation of consent, either verbally, in writing, or by welcoming actions. 65 The determination of whether voluntary consent 61 State v. Zanter, 535 N.W.2d 624, 632 (Minn. 1995). 62 In the Matter of the Welfare of G.M., 560 N.W.2d 687, 693 (Minn. 1997). 63 Id. at 694. 64 State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998). 65 State v. Othoudt, 482 N.W.2d 218, 223 (Minn. 1992). 19

was given is based on a totality of the circumstances. 66 The factors that are considered include the intelligence or education of the person giving consent, 67 lack of coercion on the part of law enforcement, 68 and intoxication. 69 2. Vehicle Searches A law enforcement officer may search a movable vehicle in a public place under the automobile exception if the officer has probable cause to believe the search will produce evidence of a crime. 70 The Minnesota Court of Appeals found that the automobile exception to the Fourth Amendment s warrant requirement does not have a separate exigency requirement. 71 However, it is not clear whether probable cause alone is sufficient for a warrantless search of a vehicle in a school parking lot. There is no case law that specifically defines whether a school parking lot is a public place or a 66 Id. 67 Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973). 68 Id. at 227. 69 State v. Kotka, 152 N.W.2d 445 (1967). 70 Carroll v. United States, 267 U.S. 132 (1952). See also State v. Bauman, 586 N.W.2d 416, 422 (Minn.Ct.App. 1998), rev. denied Jan 27, 1999 (citing California v. Acevedo, 500 U.S. 565, 580-81 (1991) and State v. Search, 472 N.W.2d 850, 852 (Minn. 1991)). 71 State v. Pederson-Maxwell, 619 N.W.2d 777 (Minn.Ct.App. 2000). See also State v. Nace, 404 N.W.2d 356, 361 (MinnCt.App. 1987) rev. denied (Minn. Jun 25, 1987) (under the automobile exception to the warrant requirement, only probable cause to believe that a car contains contraband is required because of a lower expectation of privacy in a motor vehicle). 20

private place. Thus, the lower expectation of privacy present in a moving vehicle may not be present in a vehicle parked in a school parking lot. 72 The plain view doctrine and valid consent to search also apply to vehicle searches. However, [w]hen a vehicle search is based only on consent, an officer has an obligation to ascertain the ownership of items not owned by or within the control of the consenter when the circumstances do not clearly indicate that the consenter is the owner or controls the item to be searched. 73 3. Canine Searches Under the Minnesota Constitution, the use of police canines to sniff for narcotics is a search and a police officer must have reasonable, articulable suspicion of drug-related criminal activity prior to conducting the search if the search occurs at a location where a person has a reasonable expectation of privacy. 74 The Minnesota appellate courts have held that such suspicion is required prior to using a police canine to sniff around the 72 Note: there is case law that defines as public the parking lot of a shopping mall and property that is leased for the purpose of providing parking for paying customers. However, there is no case law that addresses whether or not the parking lot of a private business or a school is deemed a public or private parking lot. 73 State v. Frank, 650 N.W.2d 213 (Minn.Ct.App. 2002). 74 State v. Carter, 697 N.W.2d 199, 211 (Minn. 2005). 21

outside of a motor vehicle, 75 outside of a storage unit from a common hallway, 76 or outside the front door of an apartment from a common hallway. 77 As such, given the trend of the case law, reasonable, articulable suspicion of drug-related criminal activity should also exist prior to utilizing the services of a police canine to search for drugs in a school locker, a vehicle parked in a school parking lot, or any other location where a student may have an expectation of privacy. A positive alert by the dog will establish probable cause. 78 4. Searches of Students A law enforcement officer may search a student under two circumstances: (1) incident to arrest; and (2) a pat-down frisk for weapons. To search a student incident to arrest, the officer must have probable cause to arrest the student before searching the student. The test of probable cause to arrest is whether the objective facts are such that under the circumstances, a person of ordinary care and prudence [would] entertain an honest and strong suspicion that a crime has been committed. 79 Police who have probable cause to arrest a student can then conduct a search 75 State v. Wiegand, 645 N.W.2d 125, 130 (Minn. 2002). 76 Carter, 697 N.W.2d at 211. 77 State v. Davis, 732 N.W.2d 173 (Minn. 2007). 78 U.S. v. Sokolow, 490 U.S. 1(1989). 22

incident to arrest even if the search occurs before the arrest. 80 They may conduct a search of the student s pockets, wallet, and any other containers immediately associated with the person of the student without having to articulate any need for the search. 81 The only limitation is that the evidence discovered in the search cannot later be used to justify the finding of probable cause. 82 A police officer may conduct a pat-down frisk of a student s outer clothing for weapons if the officer has an articulable suspicion that the student is presently armed and dangerous. 83 The test for whether an officer s suspicion justifies a pat-down frisk is whether a reasonably prudent [officer] in the circumstances would be warranted in the belief that [the officer s] safety or that of others was in danger. 84 A Terry frisk must be a carefully limited search of the outer clothing and must be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or 79 State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982) (quoting State v. Carlson, 267 N.W.2d 170, 173 (Minn. 1978)). 80 G.M., 560 N.W.2d at 695. 81 State v. Rodewald, 376 N.W.2d 416, 417 (Minn. 1985). See also United States v. Robinson, 414 U.S. 218, 236 (1973) (a search incident to arrest can extend to small containers on the person and can be followed by a warrantless seizure of discovered contraband). 82 Smith v. Ohio, 494 U.S. 541, 543 (1990). 83 Terry v. Ohio, 392 U.S. 1, 24 (1968). 84 State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). 23

other hidden instruments. 85 An officer may remove an object felt during a pat-down frisk in two situations: (1) where the officer is unsure of the identity of an object and believes it could be a weapon; and (2) where the plain feel of an object makes its incriminating character immediately apparent. 86 85 Terry, 392 U.S. at 29-30. 86 State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992); 508 U.S. 366, 374-74 (1993). 24