Filed: April 23, 1993
Barry L. Koerber
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
Martin V. Saffer
Marlington, West Virginia
Attorney for the Appellant
JUSTICE BROTHERTON delivered the Opinion of the Court.
JUSTICE NEELY dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. "Public school students in West Virginia are entitled
under U.S. Const. amend. IV and W.Va. Const. art. III, § 6, to
security against unreasonable searches and seizures conducted in
the schools by school principals, teachers and other school
authorities." Syllabus point 2, State v. Joseph T., 175 W.Va. 598,
336 S.E.2d 728 (1985).
2. "In determining whether a warrantless search
concerning a public school student conducted by school authorities
is reasonable under U.S. Const. amend. IV and W.Va. Const. art.
III, § 6, in the context of delinquency or criminal proceedings
instituted against the student, the search is to be assessed in
view not only of the rights of the public school student but also
in view of the need of this State's educational system to prevent
disruptive or illegal conduct by public school students; in
particular, the search must be reasonable in terms of (1) the
initial justification for the search and (2) the extent of the
search conducted; the initial justification for the search is
determined by the 'reasonable suspicion standard' (a standard less
exacting than 'probable cause') under which a search is justified
where school authorities have reasonable grounds for suspecting
that the search will reveal evidence that the student violated the
rules of the school or the law; the extent of the search conducted
is reasonable when reasonably related to the objective of the
search and not excessively intrusive to the student." Syllabus
point 3, State v. Joseph T., 175 W.Va. 598, 336 S.E.2d 728 (1985).
3. In the absence of exigent circumstances which
necessitate an immediate search in order to ensure the safety of
other students, the warrantless strip search of a student by a
school official is presumed to be "excessively intrusive" and thus
unreasonable in scope.
In this case, we are asked to rule on the
constitutionality of a school principal's strip search of a student
who was suspected of stealing money from a teacher's purse.
The appellant, Mark A.B., was a fourteen-year-old eighth
grade student at Marlinton Middle School in Pocahontas County, West
Virginia. On January 22, 1992, teacher Cathy Galford discovered
that $100 in cash was missing from her purse, which she had placed
under her desk during a period of the school day when her classroom
Galford reported the theft, and the incident was
investigated by school social worker John Snyder. Snyder first
called a male student other than the appellant into his office.
Snyder described him as "one student in particular at Marlinton
Middle School that has had a history of taking things that aren't
his." After talking with this student, Snyder asked that he turn
his pockets and socks inside out, and he also felt his pants legs
and shirt. Snyder states that he "[d]idn't ask him to strip. But
I didn't find any money on him."
Soon thereafter, Snyder learned that the appellant had
been assigned to help the janitor with minor duties such as
emptying trash cans and pencil sharpeners, and that it was likely
he had been in Galford's classroom alone. Snyder next called the
appellant into his office. The appellant admitted that he had been
in the classroom by himself but denied that he took the money.
Snyder also asked the appellant to pull out his pockets and roll
down his socks so that he could see all the areas of the
appellant's outer clothing where money might have been concealed.
Snyder reported to the school principal, Tom Sanders, that he found
nothing, and concluded that "[the money] is not anywhere unless
it's in his underwear."
The principal then took the appellant into the boy's
bathroom and looked in his pockets and socks.See footnote 1 Sanders also asked
the appellant to take off his pants, and the appellant lowered them
to his knees. Sanders then asked him to pull his underwear open in
the front and back. The missing $100 was in the back of the
After the principal seized the evidence, the appellant
admitted that he took the $100 from Galford's purse because he
needed spending money for a trip home the following weekend.
Sanders accompanied the appellant when he returned the money to
Galford and apologized for taking it.
Galford initiated criminal proceedings against the
appellant on February 6, 1992, seeking to have him declared a
delinquent child pursuant to W.Va. Code § 49-1-4(1) (1992). On
April 30, 1992, the lower court denied the appellant's motion to
suppress the evidence which was obtained as a result of the strip
search and accepted his guilty plea to the petit larceny charge.
The appellant was ruled delinquent and directed to undergo
evaluation at the Industrial Home for Youth in Salem, West
Virginia, in order to aid in determining an appropriate sentence.
Because of earlier theft-related convictions, the
appellant was denied probation. On June 1, 1992, he was sentenced
to one year in the West Virginia Department of Corrections. The
court subsequently suspended the sentence, placed the appellant on
probation for eighteen months, and ordered him to remain in the
custody of the West Virginia Department of Human Services.
The appellant now argues that the lower court erred in
denying his motion to suppress in its April 30, 1992, order. On
appeal, the appellant maintains that the strip search conducted by
the school principal was "excessively intrusive" and violated
constitutional rights guaranteed to him by the Fourth Amendment of
the United States Constitution and Article III, Section 6 of the
West Virginia Constitution.See footnote 2
In West Virginia, the leading case on the issue of school searches addresses a student's expectation of privacy as it relates to the student's locker and possessions contained therein. In State v. Joseph T., 175 W.Va. 598, 336 S.E.2d 728 (1985), we held that because an assistant principal had reasonable grounds for suspecting that a student's locker contained an alcoholic beverage in violation of school rules, a warrantless search of the locker which uncovered marijuana cigarettes did not constitute a violation of the student's constitutional right to security against unreasonable searches and seizures.
This Court's ruling in Joseph T. followed the reasoning
set forth by the United States Supreme Court in its landmark but
controversial decision effecting the Fourth Amendment rights of
students, New Jersey v. T.L.O., 469 U.S. 325, 340, 83 L.Ed.2d 720,
734, 105 S.Ct. 733, 742 (1985), wherein the Court stated that
"school officials need not obtain a warrant before searching a
student who is under their authority."
In T.L.O., a fourteen-year-old student was suspected of
smoking cigarettes, a minor infraction of school rules. An
assistant vice-principal initially searched the student's purse for
cigarettes. However, he found cigarette rolling papers, which
caused him to then extend his search to a zippered compartment in
the purse, where he found marijuana, drug paraphernalia, and
evidence linking the student to drug dealing. The Court upheld
this as a valid search, finding that under the circumstances, it
was not unreasonable in scope.
The Court recognized the need to maintain security and
order in the schools and addressed how to "strike the balance
between the schoolchild's legitimate expectations of privacy and
the school's equally legitimate need to maintain an environment in
which learning can take place." Id. at 340. First, the Court said
it was evident that "the school setting requires some easing of the
restrictions to which searches by public authorities are usually
subject. The warrant requirement, in particular, is unsuited to
the school environment." Id. The Court determined that "requiring
a teacher to obtain a warrant before searching a child suspected of
an infraction of school rules (or of the criminal law) would unduly
interfere with the maintenance of the swift and informal
disciplinary procedures needed in the schools." Id.
Dispensing with the notion that a reasonable search is a
search conducted upon probable cause to believe that a law has been
broken, the T.L.O. Court also decided that "[t]he school setting
also requires some modification of the level of suspicion of
illicit activity needed to justify a search." 469 U.S. at 340.
The Court explained that "[w]here a careful balancing of
governmental and private interests suggests that the public
interest is best served by a Fourth Amendment standard of
reasonableness that stops short of probable cause, we have not
hesitated to adopt such a standard." T.L.O., Id.
We join the majority of courts that have examined this issue in concluding that the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.
Thus, in T.L.O. the United States Supreme Court developed
the following analysis for determining the reasonableness of
warrantless student searches conducted by school officials:See footnote 3
(1) the search must be "justified in its inception," meaning that
teachers and administrators can search a student only if "there are
reasonable grounds 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;" and (2) once properly initiated,
the scope of the search would be defined by the reasonableness of
the methods used in the context of the objectives of the search,
the age and sex of the student, and the nature of the suspected
infraction. Id. at 341-42.
In adopting this reasonableness standard, the Court
expressed the hope that "[b]y focusing attention on the question of
reasonableness, the standard will spare teachers and school
administrators the necessity of schooling themselves in the
niceties of probable cause and permit them to regulate their
conduct according to the dictates of reason and common sense."
T.L.O., 469 U.S. at 343. However, the Court cautioned that "[a]t
the same time, the reasonableness standard should ensure that the
interests of students will be invaded no more than is necessary to
achieve the legitimate end of preserving order in the schools."
In the case now before us, the school officials clearly
had reasonable grounds for focusing their suspicions upon the
appellant. His access to the empty classroom and the fact that he
was serving a two-year probation term for attempted burglary
combined to create a reasonable and individualized suspicion that
the appellant had taken the missing money. Thus, we find that the
first prong of the T.L.O. analysis was satisfied, as there was an
initial justification for a search.
However, we are troubled by the scope of this particular
search, and question whether it could ever be described as
reasonable under the circumstances. In syllabus point 2 of Joseph
T., we emphasized that "[p]ublic school students in West Virginia
are entitled under U.S. Const. amend. IV and W.Va. Const. art. III,
§ 6, to security against unreasonable searches and seizures
conducted in the schools by school principals, teachers and other
school authorities." In addition, in syllabus point 3, we
expounded upon the "reasonableness" standard delineated by the
United States Supreme Court in T.L.O.:
In determining whether a warrantless search concerning a public school student conducted by school authorities is reasonable under U.S. Const. amend. IV and W.Va. Const. art. III, § 6, in the context of delinquency or criminal proceedings instituted against the student, the search is to be assessed in view not only of the rights of the public school student but also in view of the need of this State's educational system to prevent disruptive or illegal conduct by public school students; in particular, the search must be reasonable in terms of (1) the initial justification for the search and (2) the extent of the search conducted; the initial justification for the search is determined by the 'reasonable suspicion standard' (a standard less exacting than 'probable cause') under which a search is justified where school authorities have reasonable grounds for suspecting that the search will reveal evidence that the student violated the rules of the school or the law; the extent of the search conducted is reasonable when reasonably related to the objective of the search and not excessively intrusive to the student.
In this case, then, we must next determine whether the
principal's strip search of the appellant was an "excessively
intrusive" search of a student in the school setting. We are
necessarily guided to some degree by the United States Supreme
Court's analysis in T.L.O. regarding a student's expectations of
privacy. However, we point out that the United States Supreme
Court has never decided a case which involved a strip search of
students, nor did the T.L.O. Court indicate whether its
reasonableness standard would apply to strip searches of students.See footnote 4
A strip search involves a visual inspection of an
individual's body, including areas of the body which are usually
hidden by undergarments.See footnote 5 In this case, the appellant argues that
he was subjected to an "excessively intrusive strip search."
However, the State maintains that the search was not arbitrary or
malicious, and was "performed in the furtherance of Sanders' duty
to maintain an educational environment as free from crime as
possible. Under the circumstances, Sanders' search was not
excessively intrusive." The State urges this Court to adopt a
standard which would permit strip searches of students in limited
circumstances, such as when it is likely that a student has
concealed a weapon, drug paraphernalia, or evidence of a theft upon
In support of this argument, the State cites two cases in
which courts upheld student strip searches by school personnel.
First, in Rone By and Through Payne v. Daviess County Board of
Education, 655 S.W.2d 28 (Ky.App. 1983), a fifteen-year-old male
student was searched by the school principal in the presence of two
other male school officials. On the day before the search, the
student had distributed marijuana to two female students on the
school bus. The student was suspected of possessing marijuana
after he admitted growing marijuana, smoking it frequently, and
passing it to another student. The school officials asked the
student to lower his pants and underwear to his thighs, and the
In a recitation of the material facts which were not
disputed by the parties, the court pointed out that "[a]lthough the
appellant was requested during the search to lower both his
trousers and undershorts, those articles of his clothing were never
removed. Additionally, the appellant was never offensively touched
during any part of the search. The only clothing completely
removed from the appellant was his jacket and shoes." Id. at 30.
The court also noted that underwear is a "prime hiding
place" for controlled substances and found it significant that the
search "involved a single student for a single specific reason."
Id. Satisfied that the search, which was "conducted by school
officials with no law enforcement officials present, met the test
of 'reasonable suspicion' established by courts in other
jurisdictions," the Court of Appeals of Kentucky upheld it as
Here, there is no evidence of either arbitrariness or maliciousness on the part of the school officials in searching the appellant. On the contrary, the school officials had a number of "articulable facts" which, when taken together, provided reasonable grounds for the search.
Id. at 30-31.
Among the particularly relevant "articulable facts"
referred to by the Court were "the appellant's age; his history and
record within the school system -- namely passing prescription
drugs to other students and passing marijuana to two students the
day before the search; and the appellant's own admission that he
had possessed, passed, and smoked marijuana." Id. at 31. Given
these circumstances, the Court stated that "we cannot say that the
officials lacked the requisite 'reasonable suspicion.'" Id.
"Taken as a whole, their actions were responsible and sensible as
they sought to safeguard the welfare of all the children within the
school system and they are to be commended in their attempt to
prevent the appellant from entering the criminal justice system."
A second case relied upon by the State is Williams by
Williams v. Ellington, 936 F.2d 881 (6th Cir. 1991), in which the
strip search of a female public high school student by female
school officials was declared valid. Based upon a conversation
with a concerned parent and talks with various students, school
officials had reason to believe that the plaintiff, Angela
Williams, and another student named Michelle possessed a clear
glass vial containing a "white powdery substance." An
investigation continued for several days, and eventually the two
students were taken to the principal's office. While there,
Michelle produced a small brown vial containing "rush," a volatile
substance that can be purchased over the counter.See footnote 6
Because this brown vial did not match the one described,
school officials conducted locker searches, as well as searches of
the girls' books and purses, all of which produced no evidence of
drugs. Finally, Maxine Easley, a female assistant principal, was
asked to take Williams, the girl upon whom the most suspicion was
focused, and search her person while in the presence of a female
As the search began, Williams was asked to empty her
pockets, and she did so. Then she was asked to remove her t-shirt.
Although she apparently hesitated and appeared nervous, Williams
complied after the request was repeated. Next, she lowered her
jeans to her knees. Williams also testified that Easley pulled the
elastic of her underpants to see if anything would fall out.
Easley disputed this contention by Williams.See footnote 7 Williams also
removed her shoes and socks. No evidence of drugs was found as a
result of this search.
Williams' father filed a complaint with the school board
after the incident. The board found that a reasonable suspicion
existed under the school's search and seizure policy to justify the
actions taken by school officials. Next, Williams and her father
filed suit against the school district, principal, assistant
principals, superintendent, and individual board members pursuant
to 42 U.S.C. § 1983, seeking damages, as well as injunctive and
The district court found in favor of the defendants,
determining that Williams had not established that the search was
unconstitutional as a matter of law. The district court granted
the defendants' motion for summary judgment and held that the
defendants were entitled to qualified immunity from the suit,
dismissing all of Williams' claims. On appeal, Williams'
challenged only the district court's ruling on the defendants'
motion for summary judgment.
Upon review, the Sixth Circuit Court of Appeals engaged
in a lengthy discussion of T.L.O.'s reasonableness standard and
concluded that the search itself was not unreasonable at its
inception. The court found that "[d]efendants were not
unreasonable, in light of the item sought (a small vial containing
suspected narcotics), in conducting a search so personally
intrusive in nature." 936 F.2d at 887. Further, the court
explained why it felt that the scope of the search was not
Nor was the scope of the search unreasonable, taking into account the size of the clear, glass vial that was sought and the suspected nature of the white powdery substance contained in the vial. After Williams' locker and purse were searched, it was reasonable for Ellington to suspect the girl may be concealing the contraband on her person. Further justification for the search is the close parallel between the particular facts of the present case and the facts surrounding New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). In T.L.O., when the Vice Principal searched the student's purse for cigarettes, discovery of rolling papers created reasonable suspicion that the purse contained marijuana and therefore warranted an extended search. Like T.L.O., after Ellington's initial suspicions were raised, new evidence appeared to justify the extended level of intrusion. In questioning the girls, Ellington already possessed reasonable suspicion to believe the students were concealing evidence of illegal activity; yet Michelle's production of the vial containing "rush," a substance of which inhalation is prohibited by law, warranted further investigation.
Id. The court also noted that in T.L.O., the United States Supreme Court:
. . . was careful to protect a school official's right to make discretionary decisions in light of the knowledge and experience of the educator and the information presented to him or her at the time such decision was made. Like police officers, school officials need discretionary authority to function with great efficiency and speed in certain situations, so long as these decisions are consistent with certain constitutional safeguards. To question an official's every decision with the benefit of hindsight would undermine the authority necessary to ensure the safety and order of our schools.
Id. at 886.
In advancing its argument in the case now before us, the
State attempts to distinguish both Rone and Williams from Bellnier
v. Lund, 438 F.Supp. 47 (N.D.N.Y. 1977), a strip search case in
which the searches were deemed unconstitutional because they were
conducted arbitrarily and were unreasonable in scope.
In Bellnier, a fifth-grade student discovered that three
dollars was missing from his coat pocket. Other garments in the
coatroom were searched, and students were asked to empty their
pockets and take off their shoes. The money was not found, and
class members were then taken to their respective restrooms by
various school teachers and officials. The students were told to
strip down to their undergarments, and their clothes were
searched.See footnote 8 When these strip searches failed to uncover the money,
the students returned to the classroom, where their desks, books,
and coats were searched once again. The missing three dollars was
Analyzing the reasonableness of the search, the Bellnier
court concluded that:
It is entirely possible that there was reasonable suspicion, and even probable cause, based upon the facts, to believe that someone in the classroom has possession of the stolen money. There were no facts, however, which allowed the officials to particularize with respect to which students might possess the money, something which has time and again, with exceptions not relevant to this case, been found to be necessary to a reasonable search under the Fourth Amendment. See, e.g., Terry v. Ohio, supra. For this reason, the search must be held to have been invalid under the Fourth Amendment.
438 F.Supp. at 54. Thus, the court invalidated the search,
concluding that there was "no reasonable suspicion to believe that
each student search possessed contraband or evidence of a crime."
Significantly, the court then noted that:
The Court is not unmindful of the dilemma which confronts schools officials in a situation such as this. However, in view of the relatively slight danger of the conduct involved (as opposed to drug possession, for example), the extent of the search, and the age of the students involved, this Court cannot in good conscience say that the search undertaken was reasonable.
The strip searches at issue in Rone, Williams, and
Bellnier are somewhat instructive because all three contain
elements that are present in the case now before us. For example,
in the drug cases, Rone and Williams, individualized suspicion had
been cast upon the student who was searched, as it was on the
appellant herein. Thus, in both those cases, the school officials
had reasonable grounds for conducting a search of the students.
However, the existence of reasonable grounds for
conducting a search of the student was not the only element the
courts weighed when evaluating the reasonableness of the searches
in Rone and Williams. In both instances, the courts considered the
possible danger to other students that could result from the
suspected students' conduct and ultimately determined that the
scope of the search was not too intrusive in light of the need to
safeguard students from drugs.
No individualized suspicion was present in Bellnier, and
the strip search of the fifth grade class was invalidated for that
reason. However, the object of the search was the same in Bellnier
as it is in this case -- missing money -- although the missing
amount was more significant in this case. Nonetheless, the
Bellnier court referred to the "relatively slight danger of the
conduct involved" in relation to the extent of the search when
concluding that the search was unreasonable. Id. at 54. We find
this element to be a significant point of divergence in cases
At some point, a line must be drawn which imposes limits
upon how intrusive a student search can be. We certainly cannot
imagine ever condoning a search that is any more physically
intrusive than the one now before us. Looking inside of a
student's underwear is an invasion of personal privacy that should
not be equated with searching a student's locker or other personal
The T.L.O. Court obviously intended for there to be
constraints on how far a search could ultimately extend, even when
there are "reasonable grounds" and/or an individualized suspicion
to justify the initial search. Otherwise, the Court would not have
included the scope of the search as a second element of their
overall "reasonableness" analysis. Addressing the search of a
student's personal property in T.L.O., the Court indicated that the
scope of such a search would be defined by the reasonableness of
the methods used in the context of the objectives of the search,
the age and sex of the student, and the nature of the suspected
Applying this criteria to the inherently more intrusive
search herein, we cannot uphold the strip search of the appellant
as reasonable. The appellant was suspected of stealing money.
Such activity should never be condoned or encouraged in our
schools. However, evaluating the nature of the suspected
infraction strictly in terms of the danger it presents to other
students, it does not begin to approach the threat posed by the
possession of weapons or drugs. Quite simply, the appellant's
suspected conduct did not pose the type of immediate danger to
others that might conceivably necessitate and justify a warrantless
strip search. The scope of this particular search exceeded what
could be defined as reasonable under the circumstances. As we
noted above, the T.L.O. Court indicated that "the reasonableness
standard should ensure that the interests of students will be
invaded no more than is necessary to achieve the legitimate end of
preserving order in the schools." 469 U.S. at 343. "Although this
Court may take notice of the difficulty of maintaining discipline
in the public schools today, the situation is not so dire that
students in the schools may claim no legitimate expectations of
privacy." Id. at 338.
We conclude that in the absence of exigent circumstances
which necessitate an immediate search in order to ensure the safety
of other students, a warrantless strip search of a student
conducted by a school official is presumed to be "excessively
intrusive" and thus unreasonable in scope.
Because we find that the strip search of the appellant was excessively intrusive and unreasonable in violation of his constitutional rights, we reverse the judgment of the Circuit Court of Pocahontas County.
Footnote: 1The school principal would have been better advised to have at least one other male witness present when the search occurred.
Footnote: 2The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their
persons . . . against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause . . . ." The same protections are provided by Article III, Section 6 of the Constitution of West Virginia.
Footnote: 3The T.L.O. Court did not discuss the standard to be used in cases in which law enforcement officers participate in school searches. "The Supreme Court expressly indicated that T.L.O.'s 'reasonable grounds' criterion was limited to searches carried out by 'school authorities acting alone and on their own authority.'" 469 U.S. at 341 n.7. See J. M. Sanchez, Expelling the Fourth Amendment from American Schools: Students' Rights Six Years After T.L.O., 21 J. L. & Educ. 381, 399 (1992).
Footnote: 4For a discussion of the limits of the T.L.O. decision, see Stuart C. Berman, Note, Student Fourth Amendment Rights: Defining the Scope of the T.L.O. School-Search Exception, 66 N.Y.U.L.Rev. 1077, 1095-1099 (1991). The author states that "the Court's schoolhouse-based focus, its deliberate omissions, and its interest-dependent knowledge, support the conclusion that T.L.O. is best read narrowly . . . ." Id. at 1097.
Footnote: 5See Steven F. Shatz, Molly Donovan, and Jeanne Hong, The Strip Search of Children and the Fourth Amendment, 26 Univ.S.F.L.Rev. 1 (1991).
Footnote: 6Possession of "rush" is legal, but inhalation of it is illegal under Kentucky law. Ky.Rev.Stat. 217.900.
Footnote: 7The district court found this discrepancy immaterial for summary judgment purposes. The Sixth Circuit stated that "as troubling as that conclusion may be, the veritable inconsistency need not be addressed in light of the rationale set forth below." 936 F.2d at 883.
Footnote: 8Whether or not the students were "patted down" remained in dispute.