Georgia Criminal Trial and Appellate Law Blog

Shift in the Law on School Searches

In Safford v. Redding, which can be found here, the United States Supreme Court found that the strip search of a thirteen-year-old girl by a principal in a public school violated her Fourth Amendment rights.  The opinion increases the level of scrutiny for school officials when the level of the intrusion of the search increases.  Under T.L.O., the level of scrutiny required was reasonable suspicion that the student has contraband on her person.  In this case, a fellow student was caught with over the counter and mild prescription pain pills.  She claimed that Redding gave her the pills.  Redding's bookbag and outer clothing was searched, and nothing was found.  She was then forced to strip to her underwear and bra and required to shake out her undergarments and remove the elastic strap of her bra. 

The 8-1 majority (Justice Thomas reasoned that students check their Fourth Amendment rights at the school door) held that, because the suspected contraband posed no or minimal danger to other students, and the principal's level of suspicion that the student was hiding advil and its equivalent in her undergarments was not sufficient to requre such an intrusive and humiliating search, his actions violated the student's rights under the Fourth Amendment. The student who claimed that Redding gave her pills did not say when Redding gave her the pills or whether she gave the pills to her at school.

Since no pills were actually found, the Court did not speak on how its opinion would relate to the exclusionary rule (whether, had contraband been found, it could have been used against the student in court).  The Court stopped short of saying that the principal could be sued for a civil rights violation -- though the dissent would have extended a private cause of action Redding.

This case will require a significant shift in Georgia law, which is laughable in this area.  School officials have, for too long, been given a blank check when it comes to the Fourth Amendment rights of students.  In Georgia v. K.L.M, 278 Ga. App. 219 (2006), the Georgia Court of Appeals held that the exclusionary rule dos not apply to searches by school officials and that their conduct is not improper unless the student is "whimsically stripped of personal privacy and subjected to petty tyranny."  Perhaps the United States Supreme Court is now taking that blank check away.

Consider what it has taken for a school search by a school official to be considered violative of the Fourth Amendment before now:

The administrator must be:

1.    Whimsical;

2.    engaged in stripping the student of personal privacy;

3.    petty; and

4.    tyrannical

Even then, the exclusionary rule has not applied in Georgia.  It is hard to imagine a search that would not have passed muster under Georgia law before this recent United States Supreme Court opinion.

Another interesting part of this case is that Justice Ginsburg seems to believe the fourth amendment implications of strip-searching a girl are more significant than strip-searching a boy due to body image and similar issues. 

The Supreme Court Overturns Significant Purpose of Georgia's RICO Statute

I was proud to be a part of this effort as the author of the amicus brief filed by the Georgia Association of Criminal Defense Lawyers (GACDL.) 

If there were ever a statute that deserved to be struck, it was this one.  In the case, police seized the appellant's home, his business, his bank accounts, the money in his wallet, the watch from his wrist, and appointed a "receiver" to administer his property.  The receiver hit his property to the tune of about half a million dollars.

He was never arrested or charged with a crime, but he was compelled to give up his fifth amendment rights or have his silence be construed as an admission for purposes of salvaging all that he owned.

The Supreme Court of Georgia extended to him and to those similarly situation all the rights afforded to the accused in a criminal matter and found that the in personam provisions of Georgia's RICO statute are unconstitutional.

Check out some of the coverage here.  The opinion is here.

Lawyering Up

That old adage about "he who represents himself has a fool for a client," is true.  A month ago, I got a speeding ticket and had to be in court a couple of weeks ago.  The citation sat on my desk.  I called the solicitor and worked it out.  The citation sat on my desk and sat some more.  I have never missed a court date on a client matter, but I never calendared my court date because, after all, it was my court date.

So, I woke up one morning, put on some jeans, and was running errands when my secretary called me to let me know that the judge's office called, and that I had missed court on my own matter.  It all worked out, but it was a frantic couple of hours until it did.

I had a fool for a client.

Now, let me imagine that the matter were more serious and I were under investigation for a felony of some sort.  How would I respond if the police wanted to talk to "clear some things up"?  Might I, with all I know about how it all works, come down for an interrogation?

The one thing a lawyer brings to the table that is as valuable as skill and knowledge is distance.  It is as distinct  being a chess player versus being one of the chess pieces.

What should you do, then, if the police want to talk to you?  If you refuse to talk, do you seem more suspicious? Does a matter that would have worked itself out become more serious because now you appear guiltier than before?  If you talk, do you appear guiltier because you look like you are not telling the truth completely or with 100% accurately?  You could escape criminal liability on the underlying offense and get in trouble for the accuracy of what you say in the interview.  Ask Martha Stewart if you don't believe me.

First and foremost, ask for a lawyer.  Really ask for a lawyer.  Don't say, "maybe I should get a lawyer."  Don't ask the investigator if he thinks you should.  Say, "I want a lawyer."  Say, "I want to speak to a lawyer, and I can't talk to you until I speak to a lawyer."

Even if you are very smart, even if you are a lawyer, you should ask for a lawyer, because what you say is etched in stone, and you are not objective or distant enough from what is going on around you to do othwise.

When you get that lawyer, tell him the complete truth, and make sure that nobody but you and the lawyer are there when you have that conversation -- even if the person you want to be there with you is paying the fee.

Sometimes, I would think rarely, your lawyer may want you to talk to the police.  Often, he may want to provide information to them himself.  Most often, he will say nothing and advise you to say nothing. His decision will come from a clearer mind than yours would.

So, if that day comes for you, be nice.  Be polite.  But say that you want a lawyer.  No matter what they say in response to that, be a broken record.  Say it over and over.

You are not objective enough in that situation to say anything else.