Amended September 13, 2016 State of Iowa v. Mar'yo D. Lindsey Jr. ( 2016 )

IN THE SUPREME COURT OF IOWA
No. 14–0773
Filed June 24, 2016
Amended September 13, 2016
STATE OF IOWA,
Appellee,
vs.
MAR’YO D. LINDSEY JR.,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County,
Kellyann M. Lekar (motion to suppress), David F. Staudt (trial and
sentencing), Judges.
A high school student seeks further review of a court of appeals
decision affirming the denial of his motion to suppress evidence obtained
from a search by a public school official. DECISION OF COURT OF
APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.
Mark C. Smith, State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant
Attorney General, Thomas J. Ferguson, County Attorney, and Peter
Blink, Assistant County Attorney, for appellee.
2
APPEL, Justice.
In this case, we consider whether a search of a high school
student’s football equipment bag by a school official violated the
constitutional limitations on searches and seizures under the Fourth
Amendment of the United States Constitution and article I, section 8 of
the Iowa Constitution. The district court found that the school official
had reasonable grounds to search the bag. The court of appeals
affirmed. We granted further review. For the reasons expressed below,
we affirm.
I. Background Facts and Procedure.
On August 30, 2013, Mar’yo Lindsey Jr. was playing football for
Dunkerton High School, Dunkerton, Iowa. The game was held in
Riceville, Iowa. Lindsey brought his school-issued equipment bag with
him to Riceville. Football players use their equipment bags to transport
their gear to sporting events. Lindsey placed the equipment bag, which
had his name marked on it, in the team’s locker room upon arrival at
Riceville.
Unfortunately, Lindsey was badly injured during the game. The
Dunkerton school superintendent, James Stanton, called an ambulance
to take Lindsey to the hospital. While paramedics were getting Lindsey
ready for transport, Lindsey told Stanton to give his bag to a friend and
to not let anybody else other than his friend have the bag or “mess with
it.” Lindsey repeated this admonition several times.
Stanton asked head football coach Jonathan Steffen to take the
bag back to Dunkerton. Steffen placed the bag on a table in the
commons area of the Dunkerton lunchroom for the superintendent.
Stanton then moved the bag, placing it on the floor, and heard a metallic
sound. Stanton believed the sound was that of a firearm hitting the
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surface of the floor. At this point, he unzipped the bag, found a blue
backpack inside it, opened that bag, and discovered a long-barreled
handgun along with a bag which appeared to contain marijuana, rolling
papers, and other drug paraphernalia. The superintendent secured the
bag and called law enforcement.
Lindsey was subsequently charged with possession of a firearm as
a felon, carrying a weapon on school grounds, carrying a weapon, and
possession of a controlled substance. Lindsey pled not guilty. Lindsey
filed a motion to suppress the evidence found in the equipment bag. He
claimed the search of his equipment bag violated his right to be free from
unreasonable searches and seizures under the Iowa and United States
Constitutions.
A hearing was held on the motion to suppress. At the hearing,
Stanton testified about the evening of August 30. He stated that at the
time of the injury, a number of people assembled on the field—the
athletic directors from both Riceville and Dunkerton, the ambulance
personnel from Riceville, and one of the game officials. Lindsey was put
in a cervical collar and placed on a backboard to prevent further injury.
At that time, Lindsey said, “[P]lease make sure that Keota gets my bag.
Don’t let anybody but Keota have my bag.” Keota was a fellow student
on the football team. Stanton further testified that the school had a
policy in place and posted on the two main entry doors of the school
building that all bags are subject to search. Stanton testified that he
became suspicious when Lindsey stated that he did not want anyone else
to take his bag.
Stanton instructed Steffen to make sure that Stanton got the bag
when they got back to Dunkerton. According to Stanton, when he
arrived at Dunkerton, the bag was sitting on the table in the commons.
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Stanton testified that he picked up the bag and set it on the floor. When
he did so, there was a “very discernable loud clunk.” Stanton testified
that he had a lot of experience with firearms as a hunter and collector,
and he owned one pistol. When the bag hit the ground and made the
sound, Stanton testified he was “one hundred percent sure” when the
bag hit the floor “[t]hat it was a gun.” Stanton testified he was aware
that prior to that date Lindsey had been suspended from school for
possession of drug paraphernalia and that he had some weapons
charges from activities not related to school.
After Stanton heard the loud clunk, he opened the equipment bag.
Inside the bag was a backpack. Inside that bag was some drug
paraphernalia and the gun. Stanton inspected the gun. The gun was
loaded.
Coach Steffen also testified at the suppression hearing. Steffen
testified that when football players go to away games, each player has a
big red equipment bag that is used to hold their shoulder pads, helmets,
cleats, and other equipment. Steffen stated that when he attended to
Lindsey on the field, “it seemed that it was going to be a pretty serious
injury” and that Lindsey’s statement that he wanted “a certain kid” to get
the bag and that “nobody would mess with it . . . kind of raised a red
flag.”
Steffen testified that after Lindsey was placed in the ambulance,
Stanton told him to get the bag and not let one of the kids grab it before
they left. As a result, Steffen stated he grabbed the bag after the game,
took it onto the school bus, and placed it on a seat next to his wife. On
the bus ride home, the coach received a telephone call from Lindsey, who
again inquired about his bag and directed that the bag be given only to a
specific friend. Upon arrival at Dunkerton, Steffen placed the bag in the
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commons area in the lunch room. When Stanton arrived, he told Steffen
he planned to search the bag. Steffen later saw the results of the search.
Steffen stated he was aware that Lindsey was involved with possession of
firearms and that he had been “in juvenile detention or something” for a
while as a result.
The district court denied the motion to suppress. After canvassing
the facts, the district court noted that the parties agreed that State v.
Benjegerdes was the applicable Iowa appellate court decision to the issue
presented in this case. 1 No. 09–1230, 2011 WL 3925411 (Iowa Ct. App.
Sept. 8, 2011). The district court noted that the analysis in Benjegerdes
relied primarily on the United States Supreme Court case of New Jersey
v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985).
Benjegerdes, 2011 WL 3925411, at *3.
The district court concluded that under T.L.O. the court should
consider whether the search was justified at its inception and then
whether the scope of the search was reasonable. According to the court,
both prongs were met. The court reasoned that the search was
reasonable from the inception because of Lindsey’s unusual insistence
that his bag be given to no one other than a specific friend as he lay
injured on the field and in the phone call to the coach afterwards.
Further, the court cited the distinctive metal sound Stanton heard when
the bag hit the ground as supporting the search. The district court
concluded there was particularized suspicion under the totality of
circumstances.
1Under Iowa Rule of Appellate Procedure 6.904(2)(c), unpublished decisions of
the court of appeals do not constitute binding authority on appeal. The parties’
agreement that the applicable Iowa appellate decision was Benjegerdes, however, helps
define the issues actually before the district court and properly before us on appeal.
6
The court next turned to examine the scope of the search. The
court reasoned that the scope of the search was justified given the
reasons that gave rise to the search in the first place. In particular, the
examination of the backpack inside the equipment bag was reasonable
as the likely place to find the suspected firearm. While the court
recognized Lindsey had a limited expectation of privacy in his equipment
bag, such an interest was outweighed by the need to prevent the
introduction of weapons into the school.
Lindsey appealed. We transferred the case to the court of appeals,
which affirmed. We granted further review. We now affirm.
II. Standard of Review.
We review alleged violations of the right to be free from
unreasonable searches and seizures de novo. State v. Tague, 676
N.W.2d 197, 201 (Iowa 2004). In conducting our de novo review, we
independently evaluate the totality of the circumstances as shown by the
entire record. State v. Kurth, 813 N.W.2d 270, 272 (Iowa 2012).
III. Discussion.
A. Introduction. The primary issue in this case is whether
reasonable suspicion existed at the inception of the search. Although
Lindsey concedes that the district court discussed the appropriate legal
concepts, he maintains the court misapplied them. According to
Lindsey, the inception of the search occurred in Riceville when the
superintendent “requested that the head coach collect the defendant’s
bag for search at a later time.” Lindsey asserts that the school officials
did not have reasonable suspicion to seize his bag at Riceville. According
to Lindsey, all he did was ask that a specific student be given his bag
and that no one mess with it. That, according to Lindsey, is simply
insufficient to rise to the level of reasonable suspicion.
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According to Lindsey, the district court erred in its reasonable-
suspicion analysis when it considered the clang of metal that occurred
after the equipment bag was seized and transported to Lindsey’s home
school. What happened after the seizure—specifically the metallic clang
heard by Stanton—is irrelevant to the question of whether the seizure of
the equipment bag in Riceville was lawful in the first place. Lindsey
claims that supporting the search based on him asserting “a number of
times that he did not want anyone to ‘mess’ with his stuff” is tantamount
to permitting searches whenever anyone refuses to consent to a search.
The State presents a layered counter-argument. First, the State
argues that the transportation of the bag from Riceville to Dunkerton was
not a seizure. According to the State, the equipment bag was moved as
part of routine student activity and that the doctrine of in loco parentis
authorized the school to move a student’s belongings back from an away
football game. Second, the State argues the transport of the equipment
bag did not violate Lindsey’s reasonable expectation of privacy or
materially interfere with a possessory interest.
B. Applicable United States Supreme Court Framework. Iowa
is no stranger to questions regarding constitutional rights in public
school settings. In State v. Bartels, we upheld the conviction of a teacher
who taught German in school in violation of a statute prohibiting the
teaching of any language except English to students below eighth grade.
191 Iowa 1060, 1074, 181 N.W. 508, 515 (1921). The Supreme Court,
relying upon Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed.
1042 (1923), reversed. Bartels v. Iowa, 262 U.S. 404, 409, 411, 43 S. Ct.
628, 629–30, 67 L. Ed. 1047, 1050–51 (1923). In Meyer, the Supreme
Court struck down a similar Nebraska statute as violating the liberty
interests of teachers and parents under the Due Process Clause of the
8
Fourteenth Amendment. Meyer, 262 U.S. at 403, 43 S. Ct. at 628, 67
L. Ed. at 1047; see also Bartels, 262 U.S. at 409, 43 S. Ct. at 629, 67
L. Ed. at 1050 (addressing statutes from Iowa, Nebraska, and Ohio).
Almost fifty years later, the Supreme Court considered another
case involving the constitutional rights of students from Iowa. In Tinker
v. Des Moines Independent Community School District, the United States
Supreme Court reversed a district court opinion dismissing a complaint
brought by students challenging a school’s prohibition of wearing black
armbands on its property to protest the Vietnam War. 393 U.S. 503,
514, 89 S. Ct. 733, 740, 21 L. Ed. 2d 731, 742 (1969). In memorable
language, the Supreme Court declared that “[i]t can hardly be argued
that either students or teachers shed their constitutional rights . . . at
the schoolhouse gate.” Id. at 506, 89 S. Ct. at 736, 21 L. Ed. 2d at 737.
While Tinker is a seminal case, it dealt solely with the First Amendment
rights of students. Id. at 505–06, 89 S. Ct. at 736, 21 L. Ed. 2d at 737.
The question of whether students were protected from unlawful
searches and seizures under the Fourth Amendment remained an open
one for many years. The United States Supreme Court addressed this
important issue in T.L.O., 469 U.S. at 333, 105 S. Ct. at 738, 83
L. Ed. 2d at 729. In T.L.O., a teacher discovered a student and a
classmate smoking cigarettes in a school lavatory in violation of a school
rule. Id. at 328, 105 S. Ct. at 735, 83 L. Ed. 2d at 726. They were taken
to the principal’s office, where an assistant vice principal demanded to
see the student’s purse. Id. at 328, 105 S. Ct. at 735–36, 83 L. Ed. 2d at
726. Upon opening the purse, the assistant vice principal found a
package of cigarettes and rolling papers associated with smoking
marijuana. Id. at 328, 105 S. Ct. at 736, 83 L. Ed. 2d at 726. The
assistant vice principal searched the purse more thoroughly and found
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some marijuana, a pipe, plastic bags, a substantial amount of money, an
index card with a list of students who owed the student money, and two
letters implicating her in marijuana dealing. Id. As a result of the
discovered contraband and a subsequent confession, the state brought
delinquency charges against T.L.O. in juvenile court. Id. at 329, 105
S. Ct. at 736, 83 L. Ed. 2d at 726. T.L.O. sought to suppress the
evidence found in her purse as well as the later confession as fruits of an
unlawful search. Id. The New Jersey Supreme Court suppressed the
search, and the state appealed to the United States Supreme Court. Id.
at 330–31, 105 S. Ct. at 736–37, 83 L. Ed. 2d at 727–28.
The Supreme Court first determined that the strictures of the
Fourth Amendment apply to activities of civil authorities, including
school officials. Id. at 336–37, 105 S. Ct. at 740, 83 L. Ed. 2d at 731. It
rejected the notion that public schools merely exercise delegated parental
authority conferred upon them by individual parents, but instead
emphasized that school officials “act in furtherance of publicly mandated
educational and disciplinary policies.” Id. at 336, 105 S. Ct. at 740, 83
L. Ed. 2d at 731.
The Supreme Court next turned to consider what searches by
school officials might be reasonable under the Fourth Amendment. Id. at
337, 105 S. Ct. at 740, 83 L. Ed. 2d at 731. The Supreme Court
declared that a determination of reasonableness requires “balancing the
need to search against the invasion which the search entails.” Id.
(quoting Camara v. Mun. Ct., 387 U.S. 523, 537, 87 S. Ct. 1727, 1735, 18
L. Ed. 2d 930, 940 (1967)).
With respect to the student’s interest in privacy, the T.L.O. Court
noted that “searches of closed items of personal luggage are intrusions
on protected privacy interests.” Id. at 337, 105 S. Ct. at 740, 83
10
L. Ed. 2d at 732. The Supreme Court stated, however, that “an
expectation of privacy must be one that society is ‘prepared to recognize
as legitimate.’ ” Id. at 338, 105 S. Ct. at 741, 83 L. Ed. 2d at 732
(quoting Hudson v. Palmer, 468 U.S. 517, 526, 104 S. Ct. 3194, 3200, 82
L. Ed. 2d 393, 402 (1984)). The Court recognized that students in
schools have legitimate interests in privacy. Id. at 339, 105 S. Ct. at
741, 83 L. Ed. 2d at 733. The Court observed students might lawfully
bring to school “highly personal items [such] as photographs, letters, and
diaries,” but also may carry with them “articles of property needed in
connection with extracurricular or recreational activities.” Id.
Balanced against the student’s interest in privacy, however, the
Supreme Court recognized “the substantial interest of teachers and
administrators in maintaining discipline in the classroom and on school
grounds.” Id. The Court emphasized that “maintaining security and
order in the schools requires a certain degree of flexibility in school
disciplinary procedures,” including “preserving the informality of the
student–teacher relationship.” Id. at 339–40, 105 S. Ct. at 742, 83
L. Ed. 2d at 733.
Having recognized the student’s interest in privacy and the school’s
interest in maintaining discipline, the Supreme Court proceeded to
balance the interests. Id. at 340, 105 S. Ct. at 742, 83 L. Ed. 2d at 733.
The Court declared that searches in the school setting require some
modification of the level of suspicion required. Id. While the Court noted
that “probable cause and the requirement of a warrant bear on the
reasonableness of a search . . . in certain limited circumstances neither
is required.” Id. at 340–41, 105 S. Ct. at 742, 83 L. Ed. 2d at 733–34
(quoting Almeida-Sanchez v. United States, 413 U.S. 266, 277, 93 S. Ct.
2535, 2541, 37 L. Ed. 2d 596, 605 (1973) (Powell, J., concurring)). The
11
Supreme Court determined that in the school setting probable cause is
not required for a search, but instead, a school search requires
“reasonableness, under all the circumstances.” Id. at 341, 105 S. Ct. at
742, 83 L. Ed. 2d at 734. In order for a search to meet this requirement,
the search must be (1) justified at the time of its inception and (2)
reasonable in terms of the scope of the search. Id. at 341, 105 S. Ct. at
742–43, 83 L. Ed. 2d at 734.
Having established this framework to analyze school searches, the
Supreme Court recognized that the reasonable grounds standard applied
by the New Jersey Supreme Court in suppressing the evidence in the
case was “not substantially different.” Id. at 343, 105 S. Ct. at 743–44,
83 L. Ed. 2d at 736. Nonetheless, the Supreme Court held that the state
court’s application of the standard “reflect[ed] a somewhat crabbed
notion of reasonableness.” Id. at 343, 105 S. Ct. at 744, 83 L. Ed. 2d at
736.
Looking at the facts of the case, the Court found two searches—
one that yielded the cigarettes and a second that produced the marijuana
and other evidence of involvement with drugs. Id. at 343–44, 105 S. Ct.
at 744, 83 L. Ed. 2d at 736. With respect to the first search, the Court
noted that T.L.O. was accused of smoking, which she denied. Id. at 345,
105 S. Ct. at 744, 83 L. Ed. 2d at 737. Her purse was an obvious place
to look for cigarettes. Id. at 345–46, 105 S. Ct. at 745, 83 L. Ed. 2d at
737. The Court noted that the assistant vice principal’s conclusion that
cigarettes might be in her purse was not an “inchoate and
unparticularized suspicion or ‘hunch’ ” but was “the sort of ‘common-
sense conclusio[n] about human behavior’ upon which ‘practical
people’—including government officials—are entitled to rely.” Id. at 346,
105 S. Ct. at 745, 83 L. Ed. 2d at 737 (first quoting Terry v. Ohio, 392
12
U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968); and then
quoting United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695,
66 L. Ed. 2d 621, 629 (1981)).
The search for cigarettes yielded not only cigarettes but also rolling
papers associated with marijuana use which gave rise to the reasonable
belief that T.L.O. was carrying marijuana as well as cigarettes in her
purse. Id. at 347, 105 S. Ct. at 745–46, 83 L. Ed. 2d at 738. This
suspicion justified further examination of her purse. Id. at 347, 105
S. Ct. at 746, 83 L. Ed. 2d at 738.
Justices Brennan, Marshall, and Stevens dissented in part.
Justice Brennan, joined by Justice Marshall, asserted that the only
content to the reasonableness standard of the majority was that it was
different from the probable cause standard established by the Fourth
Amendment. Id. at 354, 105 S. Ct. at 749, 83 L. Ed. 2d at 743 (Brennan,
J., concurring in part and dissenting in part). Justice Brennan conceded
that school authorities could conduct the search of student belongings
without a warrant. Id. at 355–56, 105 S. Ct. at 750, 83 L. Ed. 2d at 744.
He strongly objected, however, to casting aside the probable cause
requirement. Id. at 357, 105 S. Ct. at 751, 83 L. Ed. 2d at 745.
Justice Stevens, joined by Justice Marshall and in part by Justice
Brennan, filed a dissent in part that took issue with the sweep of the
majority opinion. Id. at 371, 105 S. Ct. at 758, 83 L. Ed. 2d at 754
(Stevens, J., concurring in part and dissenting in part). Justices Stevens
and Marshall thought the standard enunciated by the majority would
allow, for example, searches for curlers or sunglasses to enforce a dress
code. Id. at 377, 105 S. Ct. at 762, 83 L. Ed. 2d at 758. Further, the
New Jersey Supreme Court appeared to have applied the very same
standard of the majority, and Justice Stevens argued that the state
13
court’s application was the correct approach. Id. at 382–85, 105 S. Ct. at
764–66, 83 L. Ed. 2d at 761–63.
Since T.L.O., the Supreme Court has decided only a few search and
seizure cases involving students and school authorities. In Vernonia
School District 47J v. Acton, the Supreme Court upheld a high school
policy authorizing random drug testing of all student athletes. 515 U.S.
646, 648, 664–65, 115 S. Ct. 2386, 2388, 2396, 132 L. Ed. 2d 564, 571,
582 (1995). The Court concluded that student athletes have a lesser
expectation of privacy with respect to medical examinations and
compliance with rules of conduct established for a given sport. Id. at
657, 115 S. Ct. at 2392–93, 132 L. Ed. 2d at 577. The Court found that
legitimate privacy expectations are less for student athletes who routinely
lack privacy in locker rooms and there is “an element of ‘communal
undress’ inherent in athletic participation.” Id. at 657, 115 S. Ct. at
2392–93, 132 L. Ed. 2d at 577 (quoting Schaill v. Tippecanoe Cty. Sch.
Corp., 864 F.2d 1309, 1318 (7th Cir. 1988)).
The decision in Vernonia emphasized a combination of factors,
including the lesser expectation of privacy of student athletes and the
unobtrusiveness of the particular method of drug testing at issue. Id. at
657–58, 115 S. Ct. at 2392–93, 132 L. Ed. 2d at 577–78. Finally, the
Court noted that the trial court found that at the high school in question,
“ ‘a large segment of the student body . . . was in a state of rebellion,’
that ‘[d]isciplinary actions had reached “epidemic proportions,” ’ and that
‘the rebellion was being fueled by alcohol and drug abuse as well as by
the student’s misperceptions about the drug culture.’ ” Id. at 662–63,
115 S. Ct. at 2395, 132 L. Ed. 2d at 580 (quoting Acton v. Vernonia Sch.
Dist. 47J, 796 F. Supp. 1354, 1357 (D. Or. 1992)).
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Justice O’Connor, joined by Justices Stevens and Souter,
dissented. Id. at 666, 115 S. Ct. at 2397, 132 L. Ed. 2d at 583
(O’Connor, J., dissenting). They objected to the policy as a general
search and therefore contrary to precedent and the philosophy of the
Framers. Id. at 667, 669–70, 115 S. Ct. at 2397–99, 132 L. Ed. 2d at
583–85. Justice O’Connor also criticized the choice of the school to focus
its suspicionless drug testing on athletes. Id. at 685, 115 S. Ct. at 2406,
132 L. Ed. 2d at 595. She found it unreasonable to target student
athletes, who were selected apparently for purposes of legal strategy,
without factual support in the record for that distinction. Id.
A mandatory drug test of all students participating in
extracurricular activities was upheld in Board of Education of
Independent School District No. 92 v. Earls, 536 U.S. 822, 838, 122 S. Ct.
2559, 2569, 153 L. Ed. 2d 735, 749–50 (2002). The Earls Court stated
that although students participating in extracurricular activities were not
all subject to the same privacy intrusions as athletes, extracurricular
activities were nonetheless subject to substantial regulation. Id. at 831–
32, 122 S. Ct. at 2565–66, 153 L. Ed. 2d at 745–46. Because of the
substantial regulation, students affected by the extracurricular drug
testing policy had a diminished expectation of privacy. Id. at 832, 122
S. Ct. at 2566, 153 L. Ed. 2d at 745–46. As in Vernonia, the Court
emphasized the limited nature of the intrusion and the findings of fact of
the trial court that the school in question had a drug problem. Id. at
834–35, 122 S. Ct. at 2567, 153 L. Ed. 2d at 747.
Justice Ginsburg, along with Justices Stevens, O’Connor, and
Souter, dissented. Id. at 842, 122 S. Ct. at 2571, 153 L. Ed. 2d at 752
(Ginsburg, J., dissenting). Justice Ginsburg noted that although
students participating in competitive extracurricular activities were
15
targeted, the underlying rationale applied to all school children. Id. at
844, 122 S. Ct. at 2572, 153 L. Ed. 2d at 753–54. She further found
extracurricular activities, though voluntary, were in fact part of the
schools educational program. Id. at 845, 122 S. Ct. at 2573, 153
L. Ed. 2d at 754. Justice Ginsburg then distinguished the random
provision of urine samples in Vernonia, noting that athletes have a
reduced expectation of privacy and a special susceptibility to injury
caused by use of illegal drugs, none of which were involved in Earls. Id.
at 853–54, 122 S. Ct. at 2577, 153 L. Ed. 2d at 759.
Finally, in Safford Unified School District No. 1 v. Redding, the
Supreme Court considered the validity of a search of the person and
property of a thirteen-year-old female student suspected of possessing
contraband including prescription-strength drugs. 557 U.S. 364, 368–
69, 129 S. Ct. 2633, 2637–38, 174 L. Ed. 2d 354, 360 (2009). School
officials discovered a day planner belonging to Redding that contained
knives and a cigarette. Id. at 368, 129 S. Ct. at 2638, 174 L. Ed. 2d at
360. Redding admitted the day planner was hers, but said she had
loaned the day planner to a friend and that none of the items inside it
were hers. Id. The assistant principal then confronted her with several
over-the-counter pain relievers and stated he had received a report that
Redding was supplying pills to students in violation of school policy. Id.
Redding denied the allegations and agreed to allow school officials to
search her backpack. Id. No contraband was found. Id. The assistant
principal then had a female school official search Redding’s clothing and
perform a strip search. Id. at 369, 129 S. Ct. at 2638, 174 L. Ed. 2d at
360. No pills were found. Id.
The Supreme Court applied the reasonableness standard of T.L.O.
to determine the validity of the search. Id. at 375, 129 S. Ct. at 2642,
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174 L. Ed. 2d at 364. The Court indicated that reliable information to
support a search in the context of school authorities was information
that raises “a moderate chance of finding evidence of wrongdoing,” a
lesser standard than the “fair probability” required for a Terry2-type
search by law enforcement. Id. at 371, 129 S. Ct. at 2639, 174 L. Ed. 2d
at 362 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317,
2332, 76 L. Ed. 2d 527, 548 (1983)).
The Court found there was sufficient reliable information to justify
the search of Redding’s backpack and outer clothing, but not for the
strip search which exposed Redding’s breasts and pelvic area. Id. at
373–77, 129 S. Ct. at 2641–43, 174 L. Ed. 2d at 363–65. The Supreme
Court recognized that “distinct elements of justification on the part of
school authorities for going beyond a search of outer clothing and
belongings” were required due to the high level of both “subjective and
reasonable societal expectations of personal privacy” implicated by a
strip search. Id. at 374, 129 S. Ct. at 2641, 174 L. Ed. 2d at 364.
C. Court Cases Applying the Federal Framework.
1. Expectation of privacy when participating in athletics. T.L.O.
generally established that the Fourth Amendment of the United States
Constitution provides school students with a limited expectation of
privacy in the school setting and that searches based upon individualized
suspicion must be reasonable. 469 U.S. at 341, 105 S. Ct. at 742, 83
L. Ed. 2d at 734. Vernonia then clarified that in the context of random
drug searches “[l]egitimate privacy expectations [of students] are even
less with regard to student athletes.” 515 U.S. at 657, 115 S. Ct. at
2Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (holding stop
and frisk searches reasonable).
17
2392, 132 L. Ed. 2d at 577 3 (majority opinion); see Joye v. Hunterdon
Cent. Reg’l High Sch. Bd. of Educ., 826 A.2d 624, 642 (N.J. 2003). Yet,
Vernonia did not involve a search based on individualized suspicion, but
instead a random search which was minimally intrusive in light of the
communal nature of group athletic activity. 515 U.S. at 657, 115 S. Ct.
at 2392–93, 132 L. Ed. 2d at 577. Thus, under the Supreme Court’s
approach to the Fourth Amendment student athletes still retain some
expectation of privacy, but in at least some contexts—such as random
drug testing—that expectation may be diminished under all the facts and
circumstances. See Gruenke v. Seip, 225 F.3d 290, 301 (3d Cir. 2000)
(holding student athletes have very limited expectation of privacy).
2. History of prior infractions. In this case, it was undisputed that
school authorities had knowledge that the student had a prior history of
drug infractions and a weapons charge. To what extent is a prior history
of discipline relevant in determining the reasonableness of a search of a
student bag for drugs or contraband?
There is some authority for the proposition that a history of prior
infractions is not, in and of itself, sufficient to support a search of a
student without other factors. See M.M. v. Anker, 477 F. Supp. 837,
841–42 (E.D.N.Y.), aff’d, 607 F.2d 588, 589 (2d Cir. 1979). In Anker, the
court indicated that mere past involvement in theft was not sufficient
3Two state supreme courts have declined to follow Vernonia under state
constitutional search and seizure provisions. See Theodore v. Del. Valley Sch. Dist., 836
A.2d 76, 90, 96 (Pa. 2003) (invalidating school district drug and alcohol testing policy
for extracurricular activities under article I, section 8 of the Pennsylvania Constitution);
York v. Wahkiakum Sch. Dist. No. 200, 178 P.3d 995, 1006 (Wash. 2008) (en banc)
(invalidating suspicionless drug testing under article I, section 7 of the Washington
Constitution).
18
cause, in and of itself, for a strip search of the student to recover missing
property. Id. at 842.
Additionally, when prior infractions are used to justify a search
there must be a linkage between the past violations and the wrongdoing
sought to be discovered. For instance, in Commonwealth v. Damien D.,
the student’s history of truancy did not provide reasonable suspicion for
a search for contraband because there was no relationship between
absence from the classroom and drug infractions. 752 N.E.2d 679, 683
(Mass. 2001).
In most cases, however, the history of prior disciplinary problems
is combined with other factors to provide a reasonable basis for the
search. For example, in Cornfield v. Consolidated High School District No.
230, the United States Court of Appeals for the Seventh Circuit upheld a
search of a student with a past history of illicit activities when, among
other things, a bus driver had smelled marijuana from the direction
where the student was seated on the bus, the student had told a teacher
he was constantly thinking about drugs, the student had reportedly said
he was dealing drugs and would test positive for marijuana, and he had
a bulge in his pants when he had previously declared that he had
“crotched” drugs during a police raid of his mother’s house. 991 F.2d
1316, 1322–23 (7th Cir. 1993).
Similarly, in State ex. rel. Galford v. Mark Anthony B., the court
found reasonable suspicion sufficient to initially justify a search when a
student with a prior history of burglary was found to have had access as
a janitor’s assistant to an empty classroom where $100 had been stolen
from a teacher’s purse. 433 S.E.2d 41, 42, 45 (W. Va. 1993). The scope
of the search, however—which included pulling down the student’s
19
underwear in a bathroom for inspection—was unreasonable in light of
the relatively modest danger arising from a mere theft. Id. at 48–49.
Another illustrative case is Coffman v. State, 782 S.W.2d 249 (Tex.
Ct. App. 1989). In that case, the court upheld the search of a student—
who had a history of three or four disciplinary events—who was in the
hallway when he should have been in class and told the school officials
that he was returning from a parking lot where there had been recent
thefts. Id. at 250. When the student was confronted, he placed a book
bag behind himself, and when the school officials obtained possession of
the bag, he lunged after it. Id. at 250–51. Further, in State ex rel.
Juvenile Department of Washington County v. DuBois, the court
considered the search of a student known to have brought weapons to
the school on other occasions. 821 P.2d 1124, 1125 (Or. Ct. App. 1991).
Two other students reported that they had seen the student with a gun
the day before and had heard the student was bringing the gun to school
on the day in question. Id. Recognizing that probable cause might be
required under article I, section 9 of the Oregon Constitution, the court
found it unnecessary to reach the question because under the
circumstances even the higher standard was met. Id. at 1127.
3. Furtive movements or other suspicious indicia. In this case, the
school authorities believed the student’s comments gave rise to a
reasonable suspicion that his equipment bag might contain something
he did not want school officials to find. The question arises whether
such behavior qualifies as furtive acts supporting reasonable suspicion,
or whether the comments were mere assertions of the right to privacy.
An illustrative case is T.S. v. State, 100 So. 3d 1289 (Fla. Dist. Ct.
App. 2012). In that case, a student carried her book bag in the halls
during the school day, contrary to school rules. Id. at 1290. She was
20
allowed to leave the bag in the school counselor’s office, which she did.
Id. Several times during the day the student sought and was denied
access to the bag. Id. The school counselor wondered why she wanted
access to the bag and decided to conduct a search. Id.
The Florida court held the search was invalid. Id. at 1292. It
noted the student involved had no history of illegal activity, the search
was based on a mere hunch, and there were many innocent explanations
for the student’s behavior. Id. Several other Florida cases have reached
similar conclusions under varied fact patterns. See R.S.M. v. State, 911
So. 2d 283, 284–85 (Fla. Dist. Ct. App. 2005) (noting lack of reasonable
suspicion when student reached “towards his pockets and then jerk[ed]
his hands back”); S.V.J. v. State, 891 So. 2d 1221, 1222–24 (Fla. Dist. Ct.
App. 2005) (holding when a student looked startled and put her purse
under her arm, and there was no prior complaint about drug use or
other infractions involving student, the state did not have articulable
facts sufficient to support search); A.H. v. State, 846 So. 2d 1215, 1216
(Fla. Dist. Ct. App. 2003) (holding an untrained teacher’s belief that
something was not right with the student was insufficient to justify a
search).
In In re William G., the California Supreme Court considered
whether there was sufficient particularized suspicion to search a student
who appeared to attempt to hide a calculator case when approached by
school authorities. 709 P.2d 1287, 1289 (Cal. 1985) (en banc). The
California court declared that the student’s
“furtive gestures” in attempting to hide his calculator case
from [a school official’s] view cannot, standing alone, furnish
sufficient cause to search. Similarly, [the student]’s demand
for a warrant did not create a reasonable suspicion upon
which to base the search.
21
Id. at 1297 (citations omitted). Further, the court noted,
Such conduct merely constitutes [the student]’s legitimate
assertion of his constitutional right to privacy and to be free
from unreasonable searches and seizures. . . . If a student’s
limited right of privacy is to have any meaning, his attempt to
exercise that right—by shielding a private possession from a
school official’s view—cannot itself trigger a “reasonable
suspicion.”
Id. at 1297–98 (emphasis added).
An effort to disown property, however, might give rise to reasonable
suspicion. In In re Murray, school authorities received a tip that a
student might have something in his book bag that should not be there.
525 S.E.2d 496, 497 (N.C. Ct. App. 2000). When asked about his book
bag, the student falsely stated the bag was not his. Id. at 498.
According to the court, the false denial when coupled with the tip was
sufficient to support a search of the book bag. Id. at 499. The court
stated the search was based upon “the sort of ‘common-sense
conclusio[n] about human behavior’ upon which ‘practical people’—
including government officials—are entitled to rely.” Id. (quoting T.L.O.,
469 U.S. at 346, 105 S. Ct. at 745, 83 L. Ed. 2d at 737 (majority
opinion)).
There are some cases, however, where furtive gestures, if
sufficiently suggestive, may provide reasonable suspicion for a search of
a student. In the pre-T.L.O. case of State v. Young, a student appeared to
jump up and put something down and then “ran his hand in his pants.”
216 S.E.2d 586, 588 (Ga. 1975). The court found this curious behavior
and an “obvious consciousness of guilt” sufficient to support a search.
Id. at 593. A dissent noted, however, that the furtive gestures would be
insufficient to support a search based on probable cause. Id. at 601
(Gunter, J., dissenting).
22
D. Iowa Caselaw. The parties have not directed our attention to
Iowa caselaw applying the individualized reasonable suspicion approach
of T.L.O. in a school setting. We have, however, considered the validity of
a random locker search in State v. Jones, 666 N.W.2d 142, 143 (Iowa
2003). In Jones, the school had an annual winter break locker cleanout
designed to prevent accumulation of trash and school supplies and to
prevent violations of laws related to weapons and drugs. Id. at 144.
Students were provided with notice that lockers would be checked with
the student present. Id. Jones, however, did not follow the protocol and
failed to show up for the cleanout. Id. School officials opened and
searched Jones’s locker and found marijuana in the outside pocket of a
coat in the locker. Id. We held that while Jones had a legitimate
expectation of privacy in his school locker, the search was not invalid
under the circumstances presented. Id. at 148, 150.
In sustaining the search in Jones, we determined that the
approach in Earls presented the proper framework for analysis and not
the individualized approach of T.L.O. Id. at 146. Under Earls, a court
considers (1) “the nature of the privacy interest” at stake, (2) “the
character of the intrusion,” and (3) “the nature and immediacy of the
[school]’s concerns and the efficacy of the [search p]olicy in meeting
them.” Earls, 536 U.S. at 830, 832, 834, 122 S. Ct. at 2565–67, 153
L. Ed. 2d at 744, 746–47 (majority opinion); Jones, 666 N.W.2d at 146.
After analyzing these factors, we upheld the random search conducted
pursuant to the established school district policy. Jones, 666 N.W.2d at
150.
E. Discussion.
1. Introduction. We begin by analyzing the case under the T.L.O.
framework, which the parties agreed in the district court provides the
23
proper framework for analysis. In evaluating this search under the
applicable framework provided by T.L.O., we must engage in a two-step
process. The first question is whether at the inception of the search
“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.” T.L.O., 469 U.S. at 341–42, 105 S. Ct. at 743, 83
L. Ed. 2d at 734–35. The second question is whether the scope of the
search was “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, 105 S. Ct. at 743, 83 L. Ed. 2d at
735.
2. Reasonableness of the search or seizure at its inception. In this
case, there is a substantial issue regarding when the search or seizure of
the equipment bag occurred. The State suggests that the mere loading of
the bag onto the bus and transporting it back to the home high school
was not a seizure because this is exactly what would have happened to
the bag after Lindsey’s injury if school authorities had no suspicion of
illicit activity.
The State also suggests that because Lindsey was engaged in an
athletic event, he had a reduced—perhaps even nonexistent—legitimate
expectation of privacy in his school-issued equipment bag. It raises,
among other things, the doctrine of in loco parentis, which, according to
the State, suggests that a student athlete at an away game has no
expectation of privacy in a bag used to carry athletic equipment. 4
4The Supreme Court in T.L.O. rejected the in loco parentis doctrine—which
literally means “in place of a parent”—the theory that the Fourth Amendment does not
apply to a school official’s search of a student through parental delegation, just as it
does not apply to a parent’s search of their child. T.L.O., 469 U.S. at 336, 105 S. Ct. at
740, 83 L. Ed. 2d at 731; see generally 5 Wayne R. LaFave, Search & Seizure,
24
Yet, we conclude there is no need to address the issue of precisely
when the search or seizure began or whether Lindsey had a reduced
expectation of privacy in connection with a search of an equipment bag
based on individualized suspicion because he was participating in an
athletic event. 5 We conclude that even if the seizure occurred when
Lindsey’s equipment bag was placed on the bus by school officials, and
even assuming Lindsey had a legitimate expectation of privacy in his
equipment bag under T.L.O. standards, school officials had a reasonable
basis for the seizure and subsequent search under the Fourth
Amendment as construed by the United States Supreme Court.
In considering the proper result in this case, we recognize that
application of the T.L.O. amorphous standards “require[] great care to
avoid abuse.” 6 Gerald S. Reamey, New Jersey v. T.L.O.: The Supreme
_____________________
§ 10.11(a), at 593–97 (5th ed. 2012), [hereinafter LaFave]. According to LaFave, the
doctrine “is frequently used only as a slogan” and has become “a substitute for
analysis.” LaFave, § 10.11(a), at 597. Yet, in Vernonia and in Earls the Supreme Court,
while not reestablishing the applicability of in loco parentis to school searches,
nonetheless emphasized the role of educational institutions as guardians and providers
of tutelage. See Earls, 536 U.S. at 830–31, 122 S. Ct. at 2565, 153 L. Ed. 2d at 745;
Vernonia, 515 U.S. at 665, 115 S. Ct. at 2396, 132 L. Ed. 2d at 582.
5While this lessened expectation of privacy has been applied by the Supreme
Court in the context of random drug testing of student athletes, the search of the blue
backpack within Lindsey’s equipment bag is arguably distinguishable as it does not
implicate exposures of the body so central in the Vernonia analysis and, additionally,
involves a particularized individual search under T.L.O. and not a generalized search.
6See Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 827 (11th Cir. 1997)
(“[N]ot only does the language used by the [T.L.O.] Court to announce a legal standard
regarding the permissible scope of a reasonable school search lack specificity but, it
appears, purposefully so.” (Footnote omitted.)); Williams v. Ellington, 936 F.2d 881, 886
(6th Cir. 1991) (noting that the reasonableness standard of T.L.O. has left courts “either
reluctant or unable to define what type of official conduct” is prohibited). The
amorphous and open-ended nature of the T.L.O. analysis has been frequently noted in
the academic literature. See Neal I. Aizenstein, Casenote, Fourth Amendment—Searches
by Public School Officials Valid on ‘Reasonable Grounds’, 76 J. Crim. L. & Criminology
898, 923 (1985) (noting the reasonable grounds standard lacks authority and promotes
inconsistency in caselaw); David C. Blickenstaff, Strip Searches of Public School
Students: Can New Jersey v. T.L.O. Solve the Problem?, 99 Dick. L. Rev. 1, 44–45 (1994)
25
Court’s Lesson on School Searches, 16 St. Mary’s L.J. 933, 948–49
(1985). We recognize the importance of ensuring that the T.L.O. test is
not applied in a fashion to give school authorities a carte blanche in all
settings and circumstances. Yet, we also recognize that under T.L.O., the
Supreme Court has moved away from a rule-based search and seizure
jurisprudence toward a case-by-case method that will often turn on a
careful and meticulous analysis of the facts of the case. See Konop
ex rel. Konop v. Nw. Sch. Dist., 26 F. Supp. 2d 1189, 1196 (D.S.D. 1998)
(noting that the T.L.O. holding is “difficult in its application” because of
its fact intensive nature).
Recognizing the difficulties, we nonetheless reach the conclusion
that the seizure and search in this case met T.L.O. standards. We reach
this conclusion because the seizure of Lindsey’s bag was not based
merely on his history of involvement with drugs and guns or merely upon
somewhat suspicious or ambiguous furtive gestures. While there is
substantial caselaw, for instance, that furtive gestures alone may not be
enough to justify a search or seizure of a student bag, most of the cases
with a combination of history and suspicious actions on the part of the
student sustain such government action. It may be under some
_____________________
(noting differences among courts in applying T.L.O. standards to strip searches); Martin
R. Gardner, Student Privacy in the Wake of T.L.O.: An Appeal for an Individualized
Suspicion Requirement for Valid Searches and Seizures in the Schools, 22 Ga. L. Rev.
897, 920 (1988) [hereinafter Gardner] (noting the abandonment of rule-based search
and seizure jurisprudence for a case-by-case analysis of reasonableness); Sunil H.
Mansukhani, School Searches After New Jersey v. T.L.O.: Are There Any Limits?, 34 U.
Louisville J. Fam. L. 345, 360–61 (1996) (noting T.L.O.’s reasonableness standard fails
to provide clear test); Stephen F. Shatz et al., The Strip Search of Children and the
Fourth Amendment, 26 U.S.F. L. Rev. 1, 9 (1991) (noting vague reasoning and a lack of
stated standards in T.L.O.). Given the nature of the test, we recognize the words of
caution of Judge Posner that “[t]here is almost no legal outcome that a really skillful
legal analyst cannot cover with a professional varnish.” Richard A. Posner, Foreward: A
Political Court, 119 Harv. L. Rev. 31, 52 (2005).
26
circumstances that mere history or questionable behavior or conduct is
not enough to support a search. But here, both history and suspicious
conduct are present. See R.B. v. State, 975 So. 2d 546, 548 (Fla. Dist.
Ct. App. 2008) (holding a history of drug use and a furtive gesture
provided sufficient suspicion to justify a search).
Further, the suspicious statement here was not in any way caused
by school officials but was volunteered by Lindsey. This is not a case
where a student, in response to an action by school officials, seeks to
prevent a threatened invasion of privacy as occurred in In re William G.,
709 P.2d at 1289; see also State v. Zelinske, 779 P.2d 971, 975 (N.M. Ct.
App. 1989) (stating refusal to consent cannot authorize a warrantless
search), overruled on other grounds by State v. Bedolla, 806 P.2d 588,
595 (N.M. Ct. App. 1991); State v. Gilmour, 901 P.2d 894, 896 (Or. Ct.
App. 1995) (noting that “if both consent and refusal to consent provided
bases for officers to conduct searches, there would be no circumstances
under which officers could not search”). According to Stanton, Lindsey—
when on his back at the football field—volunteered the words to the effect
of “please make sure that Keota gets my bag.” Stanton further reported
that Lindsey said, “Don’t let anybody but Keota have my bag.” Coach
Steffen largely confirmed Stanton’s account, noting that Lindsey “was
pretty concerned about his bag and making sure that . . . a certain kid
would get the bag for him and that nobody would mess with it.” As
noted by Steffen, Lindsey’s unprompted concern about his bag “raised a
red flag.”
Unlike in In re William G. or the consent cases, here the student
affirmatively and without any prompting by school officials made his
request that responsibility for his bag be given to a specific student. His
comments were not designed to prevent officials from taking action, but
27
were instead an affirmative request that officials hand over his bag to a
specific student. Under the circumstances, Lindsey’s statements sought
to control who gained possession of his bag, but did not assert privacy
rights against an imminent threat of government intrusion as in In re
William G. See 709 P.2d at 1289.
Additionally, the request was not a mildly suspicious comment
with lots of alternative innocuous explanations like when a student asks
to retrieve a temporarily impounded bag at the administration office. See
T.S., 100 So. 3d at 1290; see also S.V.J., 891 So. 2d at 1222. Given
Lindsey’s potentially serious injury on the football field, it was truly odd
for him to be worried about who grabbed his equipment bag to return it
to school. Lindsey’s volunteered request raised eyebrows considering his
history of drug abuse and firearm violations.
Under T.L.O., the standard generally applicable to support a
particularized search or seizure of a student bag is not probable cause.
469 U.S. at 341, 105 S. Ct. at 742, 83 L. Ed. 2d at 734. Instead, a
search or seizure must be reasonable under the circumstances. Id. As
the Court later stressed in Redding, there must be at least “a moderate
chance of finding evidence of wrongdoing.” 557 U.S. at 371, 129 S. Ct. at
2639, 174 L. Ed. 2d at 362 (majority opinion).
Although drawing the line between a hunch and reasonable
suspicion as required is often difficult, we conclude that in this case
school officials were operating on a “ ‘common-sense conclusio[n] about
human behavior’ upon which ‘practical people’—including government
officials—are entitled to rely.” T.L.O., 469 U.S. at 346, 105 S. Ct. at 745,
83 L. Ed. 2d at 737 (quoting Cortez, 449 U.S. at 418, 101 S. Ct. at 695,
66 L. Ed. 2d at 629). When Lindsey, a person who had been suspended
from school for drug activity and had firearm charges in the past,
28
expressed unprompted and unusual concern about his equipment bag
when lying on the football field with a potentially serious injury, school
authorities reasonably saw at least a yellow flag, if not a red flag,
indicating there was a fair chance that this troubled youth had drugs or
guns in the equipment bag.
3. Scope of search. We now turn to the question of the
reasonableness of the scope of the search. Under applicable federal law,
a search is permissible in scope “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, 105 S. Ct. at 743, 83 L. Ed. 2d at 735. As
indicated above, school authorities had sufficient reason to believe the
equipment bag might contain drugs or a gun based on Lindsey’s history
of involvement in drugs and guns and his curious concern about the
equipment bag when immobilized on the football field with a potentially
serious injury. When the school officials opened the bag and found
another bag within, it was reasonable for school officials to look in the
second bag since drugs or guns could reasonably be stored in it.
Further, the fact the superintendent heard a loud thud when the bag hit
the floor while the superintendent was preparing to conduct the search
provided an additional reason to search in the second bag. The search
was not excessively intrusive in light of the objectives of the search.
It is, of course, true that the search and seizure led to the
discovery of a gun in the blue backpack. Lindsey claims that the loud
clunk when the equipment bag hit the floor was hardly cause for
thinking a gun was within the bag and that any such conclusion would
be a wildly speculative hunch, not reasonable suspicion. The State’s
alternative stand-alone argument is that even if there was not reasonable
29
suspicion to search the equipment bag based on the statements by
Lindsey, the loud clunk—when combined with knowledge of Lindsey’s
past involvement with guns—gave school authorities sufficient
particularized suspicion at that time to search the equipment bag. The
school superintendent, who owned a handgun, claimed that after he
heard the noise he was “one hundred percent certain it was a gun.”
The parties have cited no authority with similar facts. We have
uncovered one case that is somewhat instructive. In In re Gregory M., a
school security officer heard a metallic thud when a student put a bag
down on a shelf. 627 N.E.2d 500, 501 (N.Y. 1993). The security guard
proceeded to feel the outside of the bag, which revealed a gun-like object
in the bag. Id. A school official then opened the bag and found the gun.
Id. The New York court concluded that based solely on the metallic thud,
the security officer did not have reasonable suspicion under T.L.O. to
search the bag but that a feel of the outside of the bag was a minimal
intrusion that was reasonable even with the lack of particularized
reasonable suspicion and was supportable under T.L.O. Id. Once the
security officer felt the contours of the gun-like object, the security officer
then at that point had sufficient particularized suspicion to support the
further search of the bag. Id.
In light of our resolution of this case, however, we need not reach
the issue of whether the loud thud was an insufficient basis for the
search or was fruit of an unlawful seizure. Instead, we conclude that
reasonable suspicion under T.L.O. existed prior to the loud thud and that
the loud thud merely provided additional reason to press the search into
the blue backpack contained within the equipment bag.
4. Applicability of analysis under the Iowa Constitution. In this
case, Lindsey cites both the Fourth Amendment and article I, section 8 of
30
the Iowa Constitution in support of his claim. A conclusory reference to
the Iowa Constitution was raised below. On appeal, however, Lindsey
agrees that the standard established by T.L.O. and its progeny provide
the relevant framework for analysis under the Iowa Constitution.7
Because Lindsey has not suggested an independent standard under the
Iowa Constitution, we apply the federal framework for the purpose of this
case but reserve the right to apply that framework in a fashion different
from federal caselaw. State v. Lyle, 854 N.W.2d 378, 383–84 (Iowa 2014);
State v. Pals, 805 N.W.2d 767, 771–72 (Iowa 2011); State v. Bruegger,
773 N.W.2d 862, 883 (Iowa 2009).
Obviously, the standard of reasonability is not a verbal formula
that lends itself “to easy quantification, clear classification, or easily
administered criteria.” Barry C. Feld, T.L.O. and Redding’s Unanswered
(Misanswered) Fourth Amendment Questions: Few Rights and Fewer
Remedies, 80 Miss. L.J. 847, 896 (2011). 8 Indeed, in T.L.O. itself, the
New Jersey Supreme Court—where the case originated—used a standard
very similar to that ultimately approved in T.L.O. 469 U.S. at 343, 105
S. Ct. at 743–44, 83 L. Ed. 2d at 736; see State in re T.L.O., 463 A.2d
934, 942 (N.J. 1983), rev’d, T.L.O., 469 U.S. at 348, 105 S. Ct. at 746, 83
L. Ed. 2d at 738. The United States Supreme Court, however, viewed the
New Jersey court’s application as manifesting a “crabbed notion of
7Lindsey does not cite, for instance, the dissents in T.L.O., courts of other states
relying upon independent analysis of search and seizure requirements under state
constitutions, or academic criticism of T.L.O. and its progeny.
8Forcriticism of reasonability and balancing tests in search and seizure, see
Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349,
393–95 (1974) (critiquing reasonableness and balancing), and Gardner, 22 Ga. L. Rev.
at 919–25. See also State v. Short, 851 N.W.2d 474, 485–86 (Iowa 2014).
31
reasonableness.” T.L.O., 469 U.S. at 343, 105 S. Ct. at 744, 83 L. Ed. 2d
at 736.
In this case, the parties have litigated within the framework of
federal caselaw. We find the search falls within the general parameters
of reasonableness as outlined in T.L.O. Under our cases, when a party
does not present an independent standard under Iowa law, we may still
apply the federal standard more stringently than the federal caselaw.
But the standard for whether the search of Lindsey’s equipment bag and
the backpack within it was constitutionally permissible is whether the
search has a moderate chance of uncovering wrongdoing. We think that
standard was met. In this case we thus do not find an independent
violation of article I, section 8 of the Iowa Constitution. 9
IV. Conclusion.
For all the above reasons, the judgment of the district court is
affirmed.
DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.
All justices concur except Mansfield and Waterman, JJ., who
concur specially, and Wiggins, J., who dissents.
9Other states have found independent violations of the right to be free from
unreasonable searches and seizures under their state constitutions. For instance, the
Oregon Supreme Court has emphasized that under article I, section 9 of the Oregon
Constitution, the privacy protected “is not privacy that one reasonably expects but the
privacy to which one has a right.” See State ex rel. Juvenile Dep’t of Clackamas Cty. v.
M.A.D., 233 P.3d 437, 441 (Or. 2010) (en banc) (quoting State v. Howard, 157 P.3d
1189, 1193 (Or. 2007)).
32
#14–0773, State v. Lindsey
MANSFIELD, Justice (concurring specially).
I join the court in affirming Lindsey’s conviction and sentence and
the denial of his motion to suppress. I also join the court’s opinion
subject only to the following exception.
I do not agree that an argument under article I, section 8 of the
Iowa Constitution has been preserved. It is true that Lindsey’s motion to
suppress did mention “the Iowa Constitution” once (although not article
I, section 8). However, the district court’s ruling cited only the Fourth
Amendment, and Lindsey did not seek to expand that ruling. Moreover,
on appeal Lindsey mentioned article I, section 8 only twice in passing in
his brief and did nothing to develop a state constitutional argument.
Further, at oral argument before the court of appeals, Lindsey’s counsel
conceded that Lindsey’s appeal could be resolved “by examining the
Fourth Amendment exclusively.” Consequently, the court of appeals did
not consider article I, section 8. And in oral argument before our court,
nobody talked about the Iowa Constitution. This can be verified by
listening to the publicly available recording. Accordingly, I concur in the
judgment and in the court’s opinion except as noted here.
Waterman, J., joins this special concurrence.
33
#14–0773, State v. Lindsey
WIGGINS, Justice (dissenting).
As the majority acknowledges, the federal standard that
determines whether the search of the equipment bag violated the Fourth
Amendment is the one set forth in New Jersey v. T.L.O., 469 U.S. 325,
105 S. Ct. 733, 83 L. Ed. 2d 720 (1985) and Safford Unified School
District No. 1 v. Redding, 557 U.S. 364, 129 S. Ct. 2633, 174 L. Ed. 2d
354 (2009). For evidence obtained by public school officials to be
admissible under the Fourth Amendment, the search or seizure by which
it was obtained must have been “justified at its inception” because the
officials had “reasonable grounds” to suspect it would produce evidence
of violations of the law or school rules. T.L.O., 469 U.S. at 341–42, 105
S. Ct. at 742–43, 83 L. Ed. 2d at 734–35 (quoting Terry v. Ohio, 392 U.S.
1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889, 905 (1968)). More
specifically, before initiating the search or seizure, officials must have
had sufficient reliable knowledge to support a reasonable belief they had
a “moderate chance” of discovering evidence of wrongdoing. Redding,
557 U.S. at 370–71, 129 S. Ct. at 2639, 174 L. Ed. 2d at 361–62. When
school officials claim a search or seizure was justified based on
individualized suspicion of a particular student, the court must assess
whether they had sufficient reliable information to support such a belief
concerning the particular student before the search or seizure occurred.
Id. at 373–74, 129 S. Ct. at 2641, 174 L. Ed. 2d at 363.
In holding the search and seizure of Lindsey’s equipment bag was
justified at its inception, the majority concludes school officials were
justified in believing they had a moderate chance of discovering evidence
of wrongdoing inside it based on just two facts. First, the superintendent
knew Lindsey had a history of drug and gun infractions. Second, after
34
being badly injured during a football game, Lindsey repeatedly requested
that the superintendent give his equipment bag to one of his friends on
the team and not to let anyone else mess with it as he was being prepped
for transport via ambulance. 10
In my view, the majority fixates on Lindsey’s past to incorrectly
conclude this reasonably innocuous conduct was actually suspicious
conduct. Consequently, the majority concludes reasonably innocuous
conduct created the reasonable suspicion necessary to justify the search
and seizure of the bag under T.L.O. and Redding. In contrast, for the
following reasons, I believe school officials had inadequate reasonably
reliable information to believe they had a moderate chance of finding
evidence of wrongdoing inside the equipment bag at the moment they
seized it.
First, the majority asserts the request Lindsey made to the
superintendent was “truly odd” in light of his serious injury and not
merely “a mildly suspicious comment with lots of alternative innocuous
explanations.” I disagree with this assessment. Nothing about the
request Lindsey made or the manner in which he made it amounted to
“suspicious conduct” under the circumstances.
As the Supreme Court has recognized, “schoolchildren may find it
necessary to carry with them a variety of legitimate, noncontraband
items . . . onto school grounds.” T.L.O., 469 U.S. at 339, 105 S. Ct. at
741, 83 L. Ed. 2d at 733. This legitimate need is in no way diminished
when students participate in school activities on school grounds. In that
10Despite the quotes used in the majority and concurring opinions, the
superintendent testified that he did not remember the statements Lindsey made well
enough to quote them. When asked what the gist of the statements Lindsey made was,
he replied: “It was just like I said, please make sure that Keota gets my bag. Please
make sure that nobody else gets my bag.”
35
context, students may need to transport “not only the supplies needed
for their studies, . . . keys, money, and the necessaries of personal
hygiene and grooming,” but also “articles of property needed in
connection with extracurricular or recreational activities.” See id. Along
with such necessary items, students may have perfectly legitimate
reasons to carry with them “nondisruptive yet highly personal items as
photographs, letters, and diaries.” Id.
In today’s world, I would add cellphones, tablets, and laptops to
the list of items students may legitimately carry on school grounds.
Among high schoolers today, cell phones are particularly ubiquitous. Cf.
Riley v. California, 573 U.S. ___, ___, 134 S. Ct. 2473, 2490, 189
L. Ed. 2d 430, 447 (2014). As the Supreme Court has noted, cell phones
ordinarily contain “vast quantities of personal information.” Id. at ___,
134 S. Ct. at 2485, 189 L. Ed. 2d at 442. Thus, many high schoolers
ordinarily keep on their person or among their belongings on school
grounds “a digital record of nearly every aspect of their lives—from the
mundane to the intimate.” Id. at ___, 134 S. Ct. at 2490, 189 L. Ed. 2d
at 447.
I think the majority is incorrect to assert that Lindsey asking the
superintendent to give his equipment bag to his friend and make sure
nothing happened to it amounted to “suspicious conduct.” This is
particularly true in light of the fact that Lindsey had placed his backpack
in his equipment bag at least for the duration of the football game. Quite
simply, it appears that everything Lindsey had with him—his backpack,
schoolbooks, homework, clothes, shoes, wallet, cash, keys, cellphone,
etc.—was in his equipment bag when he was injured. Accordingly, in my
view it would have been odd if Lindsey had not been concerned about
what would happen to his equipment bag upon learning he had been
36
potentially severely injured and was being transported to the hospital.
Whatever the equipment bag contained, it would have been perfectly
natural for any high school student in his situation to want to ensure it
was shielded from theft or intrusion and safely returned. Even setting
aside the potentially vast quantity of personal information the equipment
bag may have contained, its contents were also likely worth a great deal
of money, particularly in the eyes of a high schooler.
Additionally, upon assessing the injury Lindsey suffered during the
football game, the ambulance attendants placed Lindsey into a cervical
collar and onto a backboard to prevent his further injury. Thus, it was
hardly “suspicious conduct” suggestive of wrongdoing for Lindsey to
repeat his request that his equipment bag be given to his friend or fail to
appreciate the potential seriousness of his injury. Given the nature of
his probable injury and the context in which it occurred, 11 school
officials reasonably should have understood it was unlikely Lindsey was
thinking clearly before he was transported to the hospital.
In short, Lindsey making the statements he made under the
circumstances in which he made them did not amount to “suspicious
conduct.” Therefore, I conclude school officials lacked any reliable basis
upon which to form a reasonable suspicion that Lindsey was engaged in
wrongdoing before he was loaded into the ambulance.
Because the statements Lindsey made before he was loaded onto
the ambulance could not reasonably have been perceived to be
suspicious under the circumstances, the only basis school officials had
for suspecting he might have been engaged in wrongdoing while he was
11Football is a contact sport widely acknowledged to be associated with
concussions and head injuries.
37
being cared for on the field was his past conduct. Standing alone, this
was insufficient to justify a reasonable belief that officials had a
“moderate chance” of discovering evidence of wrongdoing inside his
equipment bag. And at bottom, Lindsey’s history is really all the majority
relies upon to find reasonable suspicion existed in this case. The
majority opinion all but admits that, were it not for his past suspension
for drug activity and past firearm charges, school officials would not have
reasonably seen a yellow flag or a red flag when Lindsey sought to ensure
his equipment bag was delivered to his friend. In the majority’s view,
merely because he had been in trouble before, Lindsey’s being concerned
about what happened to his belongings somehow indicated there was a
“fair chance that this troubled youth had drugs or guns in the equipment
bag.”
Second, the majority supplies no adequate basis for its conclusion
the affirmative requests Lindsey made were not an assertion of his
constitutional right to be free from unreasonable searches and seizures
without a warrant. There can be no denying Lindsey had an absolute
right to assert his constitutional right to be free from an unreasonable
search or seizure of his equipment bag without a warrant until school
officials actually had reasonable suspicion to search or seize it. Lindsey
had the ability to affirmatively assert that right at least until reasonably
reliable information indicated school officials had a moderate chance of
discovering evidence he was engaged in wrongdoing, even if he ultimately
perceived a threat to his privacy at the hands of school officials only after
being injured on the football field. Yet the majority suggests the validity
of any assertion of that right Lindsey might have attempted to make
turns on whether school officials “caused” him to make it by affirmatively
threatening to invade his privacy. I believe the majority is incorrect to
38
distinguish the requests Lindsey made from an assertion of a
constitutional right on the ground that he “volunteered” them.
Instead of engaging with the content of the statements Lindsey
made, the majority places too great an emphasis on the context in which
he made them. On the content front, the majority analysis is thin. The
majority asserts what Lindsey said did not amount to an assertion of a
constitutional right in part because his statements “were not designed to
prevent officials from taking action, but were instead an affirmative
request that officials hand over his bag to a specific student.” But if the
statements Lindsey made were not designed to prevent officials from
searching his equipment bag, why were they so suspicious? And when
Lindsey instructed school officials as to what he wanted done with his
equipment bag, by implication did he not also instruct them as to what
he did not want done with it? The majority simply fails to explain what
distinguishes the “affirmative request” Lindsey repeatedly made from an
effective assertion of his constitutional right not to have school officials
search or seize his equipment bag without a warrant.
Two potentially troubling implications follow from the majority
analysis. First, the majority opinion suggests a student may invoke the
right to be free from unreasonable warrantless searches and seizures
only after school officials explicitly threaten to invade his or her privacy.
Second, the majority opinion suggests that for a student to effectively
assert the right to be free from unreasonable warrantless searches and
seizures against school officials, only an explicit assertion expressed in
precise terms will do.
The majority implicitly acknowledges that, if the statements
Lindsey made amounted to an assertion of a constitutional right, the
search was unconstitutional. As the majority opinion recognizes,
39
There are many reasons why a student might assert these
rights, other than an attempt to prevent disclosure of
evidence that one has violated a proscribed activity. A
student cannot be penalized for demanding respect for his or
her constitutional rights.
In re William G., 709 P.2d 1287, 1297–98 (Cal. 1985) (en banc).
Nonetheless, the majority declines to provide any meaningful guidance as
to just how explicit an assertion of the right to be free from unreasonable
searches and seizures must be in order to be effective in this context. In
contrast, in In re Warren G., the California Supreme Court concluded
that right to be adequately invoked whenever a student attempts to
shield a private possession from school officials:
If a student’s limited right of privacy is to have any meaning,
his attempt to exercise that right—by shielding a private
possession from a school official’s view—cannot in itself
trigger a “reasonable suspicion.” A contrary conclusion
would lead to the anomalous result that a student would
retain a right of privacy only in those matters that he
willingly reveals to school officials.
Id. Thus, if Lindsey instructed school officials to give the equipment bag
to his friend because he desired to shield it from them, he arguably
asserted his constitutional right to be free from unreasonable searches
and seizures without a warrant.
Because I part ways with the majority on the question of whether
the statements Lindsey made could have created reasonable suspicion in
the minds of school officials who knew about his past conduct, I need not
delve further into the question of whether his statements amounted to an
assertion of his right to be free from unreasonable searches or seizures
without a warrant. That is because school officials seized the equipment
bag when they declined to heed Lindsey’s requests that it be given to his
trusted friend and teammate.
40
When the head coach carried the equipment bag onto the bus back
to Dunkerton and placed it onto the seat next to his wife, knowingly
disregarding the requests Lindsey made, the bag was unquestionably
seized within the meaning of the Fourth Amendment. “A seizure occurs
even when an unintended person or thing is the object of the detention
or taking, but the detention or taking itself must be willful.” Brower v.
County of Inyo, 489 U.S. 593, 596, 109 S. Ct. 1378, 1381, 103 L. Ed. 2d
628, 635 (1989) (emphasis added) (citations omitted). In this case, the
facts clearly indicate the coach willfully grabbed the equipment bag and
withheld it from the person Lindsey intended it to be entrusted to
because the superintendent asked him to. Indeed, there is no question
the coach knew Lindsey did not want him to transport the equipment
bag back to Dunkerton himself, as he personally heard Lindsey ask that
it be given to his friend instead.
As a result, by the time the superintendent heard the metallic
sound coming from within the equipment bag in the lunchroom back in
Dunkerton, the bag had already been seized within the meaning of the
Fourth Amendment. It therefore makes no difference whether the
superintendent reasonably believed the sound he heard was created by a
firearm coming into contact with the floor through the fabric of the bag
or not. Because the seizure of the equipment bag was not adequately
justified at the moment of its inception, the ensuing search of the bag
was unreasonable within the meaning of the Fourth Amendment, and
the fruits of that search should have been suppressed. I would therefore
reverse the judgment of conviction and remand for a new trial.