Busca e apreensão em escolas públicas: Jurisprudência dos EUA

1. Casos emblemáticos
- New Jersey v. T.L.O. , 469 U.S. 325 (1985)
- Vernonia School District 47J v. Acton (1995)

2. Casos gerais
- Gruenke v. Seip, 225 F.3d 290 (3d Cir. 2000)
A member of a swim team who was asked by her coach to take a pregnancy test, claimed violations of state law and damages under §1983. The 3rd Circuit Court of appeals overturned a lower court decision by ruling that the coach’s request did violate the student’s 4th amendment rights and that he was not entitled to qualified immunity relative to disclosure of student’s personal and medical records.

- Bridgman v. New Trier H.S. District 203, 128 F.3d 1146 (7th Cir. 1997)
A male high school student exhibited what appeared to be signs of drug use (alleged unruly behavior, dilated pupils, bloodshot eyes, giggling). As a result, he was subjected to a “medical assessment” by the school’s Health Service Coordinator and was searched by the school’s Student Assistance Program Coordinator who had initially noticed his behavior. A federal circuit court maintained that the search and the ordering of a medical assessment were legal and that the school’s policy requiring written reports about student searches was constitutional.

3. Buscas com exigências de nudez

- Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821 (11th Cir. 1997)
Two second grade girls were strip searched after being accused of taking a missing $7. The court did not rule on the reasonableness of the search but did state that §1983 damages would not be awarded because school officials would not necessarily have known that the search was unreasonable because there was no precedent in either Alabama or in the 11th Circuit.

- Cornfield v. Consolidated High School District 230, 991 F.2d 1316 (7th Cir. 1993).
A male high school student was suspected of “crotching” drugs. He was ordered to remove all his clothes and school authorities visually inspected his naked body. No drugs were found, but the search was upheld as reasonable.

4. Testes de drogas coletivos ou aleatórios

- Bd. of Education of Independent School District No. 92 of Pottawatomie County v. Earls, Bd., 536 U.S. 822 (2002).
The U.S. Supreme Court ruled that random drug testing of students involved in extracurricular activities is legal.
- Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)
A seventh grade student was not permitted to participate in interscholastic athletics because he refused to submit to the school’s drug testing program. The Court ruled that the program was constitutional. There were drug problems in the school and student athletes have a reduced expectation of privacy.

5. Detetores de metais e buscas pessoais

State v. J.A. , 679 So. 2d 316 (Fla. App. 1996)
An independent security firm was hired by the school board to conduct searches of district schools with a hand held metal detector. A team arrived at a Florida secondary school class and noticed a jacket being passed to the back of the room. The team retrieved the jacket, scanned it, and found a gun. J.A. was identified as the jacket’s owner. The court identified this search as a random, suspicionless, administrative search to further the purpose of keeping schools safe. The nature of search was considered a minimal intrusion and the interest of protecting schools from weapons and violence was immediate. Hence, the search was reasonable and not in violation of the Fourth Amendment.

- People v. Dukes , 580 N.Y.S.2d 850 (N.Y. City Crim. Ct. 1992)
A New York court ruled that a student’s rights were not violated when she was subjected to a metal detector search without individualized suspicion. The metal detector search resulted in a search of the student’s book bag whereupon a knife was found.

6. Buscas em armários
- Commonwealth v. Cass , 709 A.2d 350 (Pa. 1998).
After observing numerous occurrences of what appeared to be suspicious student behavior (frequent phone calls, use of beepers, and carrying large sums of money), administrators at Harborcreek High School in Erie County, requested the state police to conduct canine sniffing of student lockers. Drugs were found in only one of the 2,000 lockers searched. Drug paraphernalia and a small amount of marijuana was seized. The student was called to the principal’s office and read his rights. Overturning a state superior court decision, Pa.’s Supreme Court maintained that this search was reasonable under the federal constitution and Article 1, §8 of the Pa. Constitution. The court pointed out the danger of drugs and students’ limited privacy in schools as a basis for its decision.

7. Buscas em acampamentos ou excursões

- Webb v. McCullough , 828 F.2d 1151 (6th Cir. 1987).

On a trip to Hawaii of 140 students, a principal’s search of student rooms for alcohol and without individualized suspicion was unreasonable

- Kuehn v. Renton School Dist. No. 403 , 694 P.2d 1078 (Wash. 1985).

Mass searches of students’ luggage prior to a field trip were unreasonable because they lacked individualized suspicion.

FONTES

Darwin, Darden C. Search and seziure, due process, and public schools. The Center for Public Education, 2006,

Kritsonis, William A. Search and Seizure in Public Schools, 2008

Fruit of the poisonous tree: decisão recente da Suprema Corte dos EUA

U.S. v. BRUMFIELD
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.ISLA MACHELLE BRUMFIELD, Defendant-Appellant.
No. 09-11484. Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
November 10, 2009.
Before BARKETT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Isla Machelle Brumfield, through counsel, appeals her convictions for bank fraud, in violation of 18 U.S.C. § 1344, and fraud with identification documents, in violation of 18 U.S.C. § 1028A. On appeal, Brumfield argues that the district court erred by denying her motion to suppress a credit card seized following a warrantless search of her person, and that an "alleged confession" she made shortly thereafter should have been excluded as "fruit of the poisonous tree." After thorough review, we affirm.
A ruling on a motion to suppress presents "a mixed question of law and fact." United States v. Steed, 548 F.3d 961, 966 (11th Cir. 2008). We accept the district court's factual findings unless they are clearly erroneous, construing all facts in the light most favorable to the prevailing party below. Id. A factual finding is clearly erroneous if, after reviewing all of the evidence, we are "left with a definite and firm conviction that a mistake has been committed." United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004) (quotations omitted). The district court's application of the law to the facts is reviewed de novo. Steed, 548 F.3d at 966.
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. "[A] basic principle of Fourth Amendment law [is] that searches and seizures inside a home without a warrant are presumptively unreasonable." United States v. McGough, 412 F.3d 1232, 1237 (11th Cir. 2005) (quotation omitted).
Nevertheless, law enforcement officers may search an individual's property without a warrant, as long as the individual voluntarily consents to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 219-22 (1973). "Whether consent is voluntary is a fact question determined according to the totality of the circumstances." Johnston v. Tampa Sports Authority, 530 F.3d 1320, 1326 (11th Cir. 2008), cert. denied, 129 S.Ct. 1013 (2009).
Relevant factors include "whether the person is in custody, the existence of coercion, the person's awareness of [her] right to refuse consent, the person's education and intelligence, and whether the person believes incriminating evidence will be found." Id. The former Fifth Circuit has held that "[t]he mere fact that [the] appellant could see no benefit to [herself] in resisting does not make the act involuntary." United States v. Williams, 647 F.2d 588, 591 (5th Cir. Unit B June 1981).[ 1 ] Even so, the government bears the burden of proving an exception to the warrant requirement, United States v. Holloway, 290 F.3d 1331, 1337 (11th Cir. 2002), and must show that the consent was not "a mere submission to a claim of lawful authority." Florida v. Royer, 460 U.S. 491, 497 (1983).
Generally, any evidence obtained by unconstitutional searches and seizures is inadmissible in court and must be suppressed as "fruit of the poisonous tree" for the purpose of deterring police misconduct. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963); United States v. Terzado-Madruga, 897 F.2d 1099, 1112 (11th Cir. 1990). An exception to this exclusionary rule is for evidence obtained "by means sufficiently distinguishable [from the illegal conduct] to be purged of the primary taint." Wong Sun, 371 U.S. at 488 (quotation omitted).
Here, a totality of the circumstances supports the district court's finding that Brumfield voluntarily consented to the search and subsequent seizure of an incriminating credit card from her pants pocket. Viewing the evidence in the light most favorable to the government, Brumfield (1) possessed at least a high school education, (2) was aware of her Miranda[ 2 ] rights and her right to refuse consent to a search, (3) had access to her cell phone and could have called someone for legal advice, (4) handed the card to an inspector who either asked or demanded to see it, but who never made a show of force to get her to comply, and (5) yielded the card despite its incriminating nature because she knew the inspector saw it sticking out of her back pocket. See Steed, 548 F.3d at 966. The mere fact that Brumfield knew that the credit card was incriminating does not make it "inconceivable" that she voluntarily produced it, especially in light of the inspector's testimony that he saw the CitiBank logo on the card and that Brumfield handed it over without protest with a "deflated" look because she knew she had been caught. See Johnston, 530 F.3d at 1326-30; Williams, 647 F.2d at 591. Moreover, Brumfield does not challenge the district court's finding that the inspector made no show of force in an effort to obtain her compliance. Thus, even interpreting the inspector's "request" as an "order," any such coercion arguably was minimal under the totality of the circumstances. Accordingly, the district court did not clearly err by refusing to suppress the credit card and by finding that it was unnecessary to address whether her subsequent inculpatory statements were "fruits of the poisonous tree." We affirm Brumfield's convictions.
AFFIRMED.

Notes
1. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all former Fifth Circuit decisions issued before October 1, 1981.
2. See Miranda v. Arizona, 384 U.S. 436 (1966).