ORAL ARGUMENT OF MATTHEW W. WRIGHT ON BEHALF OF THE PETITIONERS
We will hear argument first this morning in Case 08-479, Safford Unifed School District v. Redding.
Mr. Chief Justice, may it please the Court: The search of Savana Redding in this case was constitutional because Mr. Wilson had reason to suspect that she possessed contraband which posed a health and safety risk.
Therefore, searching any place where she might be reasonably hiding that contraband was constitutionally permissible.
Any place, even though he had perhaps no reasonable suspicion to suspect that she was hiding the contraband in her underwear?
Your Honor, Mr. Chief Justice, as long as he had reason to suspect, which we believe the evidence does show, he was entitled to search any place where the contraband might be reasonably hidden.
I mean, prison inmates, for example, are subject to much more intrusive searches.
Are you suggesting that would have been justified in this case?
No, Your Honor.
I'm -- I'm suggesting that where it might be reasonably hidden is based on an administrator's experience and certainly is proven out by the reported cases that we've cite in the reply on pages 8 and 9, which are that students often will secrete items in and under their clothing.
That is not an uncommon thing to happen, although these kind of intrusive searches are rare.
But I -- I think you're really caught in -- in a dilemma here.
Your answer suggests that you would not have allowed a cavity search in this case.
That's correct, Your Honor.
But people have been known to secrete contraband in -- in bodily cavities.
What is the -- what is the principle under which you would allow a strip search but disallow a cavity search?
The principle is, Your Honor, is that the common experience with schoolchildren, as -- as school officials have a relation to schoolchildren, is such that they might hide things, and they do hide things, in and under their clothing.
--Was there prior experience in this particular school?
Were there prior occasions on which students had been strip-searched and contraband found?
--Your Honor, I don't know, and that's not in the record, but I can tell that you that that would not be the threshold requirement under this Court's prior rulings to justify the search.
But you -- I thought your answer to Justice Scalia was that in the -- in the school's experience, children do hide contraband in their underwear but not in their body cavities.
Yes, Your Honor.
To be more specific, in the nationwide school experience, based on the reported cases that we see, which are contained in the reply at pages 8 and 9, we find that they hide them in and under clothing, but I don't know of any case of which I'm aware where there would be items secreted in body cavities.
And I -- and I feel, Your Honor, that that is a bright-line area because that -- that is -- that is something that the Court can clearly say is off limits.
Let me ask you about another bright-line rule that I think you're assuming.
You -- you said in the course of describing the justification for this search that one -- one of the points of justification was that there was a health and safety risk.
And I assume from the way you put it that you are grouping every drug, prescription or over the counter, as posing a health and safety risk; is that correct?
--Yes, Your Honor.
Why -- why should we accept that -- that blanket assumption?
I mean, at some point it gets silly.
Having -- having an aspirin tablet does not present a health and safety risk, and yet that's an over-the-counter drug, and presumably you would have gone through the same search for -- for an aspirin that was conducted here.
For the very same reasons this Court noted in T.L.O. 25 years ago, Your Honor, and that is that the school officials have deemed, in their judgment, that this is an important rule with regard to health and safety.
Oh, and I agree with you, and I -- I don't have any question with this kind of a, let's say, a -- a broad swath of judicial hands-off in determining what is a risk and what isn't.
But at some point it becomes sufficiently questionable that I do think we have to raise it.
And if your rule would criminalize -- I shouldn't say "criminalize" -- would put aspirin in the contraband category and justify the kind of search that went on here, I think we've reached the questionable point.
And I -- my question to you now is, why haven't we?
--Well, Your Honor, if -- if an administrator in their judgment, in their reasonable judgment, believes that any -- any drug poses a potential health and safety risk, because they have the custodial and tutelary responsibilities for those kids -- and it's not like a criminal issue where they're trying to prosecute; this is a case where they're trying to protect -- because they have those kinds of obligations to provide for the safety of children, to provide an orderly educational environment, it is best for this Court to defer to their judgment when they believe that certain rules are important and not second-guess those rules.
Had it been--
--Had it been the case that, as I recall, someone had -- well, students were popping ibuprofen, weren't they?
--Yes, Your Honor.
I guess they might pop aspirin as well.
I'm not aware that one gets a high on either one of those.
Somebody in -- in the school had gotten almost fatally ill about a year before this incident; isn't that right?
Precisely, Your Honor.
On over-the-counter drugs.
On a prescription medication that--
A prescription, not over-the-counter.
--that a student brought to school and that a student ingested, another student ingested, and then was airlifted out in an ICU in a near-fatal experience.
But just 7 days--
--What was -- what was the drug involved in that case?
--I don't know, Your Honor, and it's not in the record.
But it certainly was not ibuprofen?
Again, I don't know, Your Honor.
You said it was a prescription drug.
It was a prescription drug.
And -- and 7 days before this event, Your Honor, just 7 days before, the student informant Romero had taken a prescription drug.
Again, I don't know what the type of drug was, but he became violently ill, which caused he and his mother to come talk to the administrator.
So we had those two recent events.
Yes, but he -- he was not the one who identified Redding.
It was her classmate.
Her friend Marissa Glines, yes, Your Honor.
And on that classmate's say-so -- was the classmate ever asked, well, when did you get this pill?
Where did she give it to you?
Where -- the question, where did this pill come from, was asked by the administrator.
I mean, what place.
I mean, the child is caught with the pills.
She blames it on her classmate.
She says: She gave them to me.
Did the school ever bother to ask when in time she gave them, where in location she gave them?
No, but that's clear from the record, Your Honor.
The reason for that is Jordan Romero said to Mr. Wilson that morning: I just received this pill from Marissa Glines.
The plan is that a group of these kids are going to take these pills at noon.
So it's contemporaneous.
But it's contemporaneous with the -- with the student who blamed the other child.
I'm asking if there's any link other than one child caught with the pills blurts out that it was someone else?
The tip from the young man had nothing to do with Redding; it had to do with Glines.
But the tip from the young man goes to Glines, and the young man's tip becomes reliable when Glines produces the fistful of pills that he said she would have, plus other pills.
Maybe it becomes reliable as to her, but it has nothing to do with Redding.
But, Your Honor, then it ties in with the -- with the contraband -- excuse me -- the planner that was laid open before Mr. Wilson when he subsequently searches Savana Redding, and she admits to him that that was her planner, but she denies any knowledge of the contents.
So did Marissa Glines.
Did the school know what -- what particular pills it was searching for?
Did it know that -- what -- what the threat was was ibuprofen or aspirin or -- or some prescription drug?
--Not comprehensively, Your Honor.
What they knew was there was IBU 400s in an OTC pill that was later identified.
But he also knew there was a variety of pills.
What Mr. Wilson did not know--
How did he know it was an OTC pill?
Just by looking at it?
--called poison control.
And -- and once that was assessed--
What was in it?
Did he say--
--It was Naprosyn 200 milligrams.
And -- and, Your Honor, what -- that's a good point because what Mr. Wilson doesn't know is what other pills might be out there.
He knows there's a variety of pills, but he doesn't know of what type.
He doesn't know what amount.
Have you ever made -- has your side of the case ever made the argument that it needs this sort of blanket classification rule, any drug over the counter or prescription, because when a, a pill is found, they're not pharmacists, they don't know what it is, and therefore they've got to have a blanket rule or they simply cannot act effectively?
I did not see that argument in the briefs.
Has that argument been raised at any point?
Precisely, Your Honor.
We have argued that our administrators are not pharmacologically trained.
Where did you argue it?
I mean, I want to know whether that argument is in the case.
It's in the briefs.
I don't remember it.
Do you remember a page?
Do you have a page reference offhand?
I don't have one offhand, Your Honor.
But you say it's in your brief?
I'm fairly -- fairly certain it's in the brief.
Okay, I'll go back.
In the case, this case, the school nurse -- the pills were given to the school nurse and she identified what they were.
And she called poison control to figure that out, though, Your Honor.
Mr. Mr. Wright, could I ask you this question.
There may be an issue as to what the assistant principal could reasonably infer from the facts that were known by him, whether he could reasonably infer facts that would create a reasonable suspicion that there were drugs hidden in the plaintiff's undergarments.
Is that a question for -- for the finder of fact in a case like this, so that it can't be -- there can't be summary judgment for either side unless no reasonable factfinder could find to the contrary?
The problem with that is, Your Honor, it wouldn't comport with the notion that we need to shield administrators from lawsuits and legal liability.
No, not on the question of qualified immunity.
On the issue of whether there is a Fourth Amendment violation.
Whether or not that would be a factual determination, as to whether he could reasonably suspect that the pills would be there?
I think -- I think it could lend itself to that, Your Honor, but I would prefer that the Court -- we would ask the Court and it's our position that the Court would lay down a bright line rule such that it wouldn't end up in a factual dispute, and that bright line rule is this.
Once you had reason to suspect a student is possessing any contraband that poses a health and safety risk, then searching any place where that contraband may reasonably be found is constitutional, and--
--Any contraband, like the black marker pencil that -- that astounded me.
That was contraband in that school, wasn't it, a black marker pencil?
--Well, for sniffing.
Oh, is that what they do?
It's a permanent marker.
They sniff them?
Well, that's the -- I mean, I'm a school lawyer.
That's what kids do, unfortunately, Your Honor.
--But the point was is that the rule -- the rule, Your Honor, is -- is grounded in the notion that when there's a health and safety risk because these people are charged and tasked with the responsibility to keep these kids safe, they have to have the opportunity to act flexibly, immediately, and effectively when they're dealing with these risks.
But there has to be -- I mean, some -- the stark difference between this case and T.L.O., in addition to the intrusiveness of the search, was there was a teacher said: I caught those girls; they were smoking in the bathroom.
Here we have nothing but this Glines identifying her classmate.
And nothing is done to check her veracity, nothing is done to follow up on it at all.
And the search is quite different from the search of a purse that doesn't touch the child's person.
Your Honor seems to be concerned about the reliability of the tip in this case.
Your Honor, I would submit to you to that student tips are the very thing that officials rely on probably the most.
But an official could follow up to see whether this child -- whether there is a basis for what she said.
But there were no questions asked at all.
There was additional corroborating evidence, Your Honor.
There was -- there was suspicion by direct implication and there was suspicion by circumstantial corroboration.
These two kids could, in Mr. Wilson's mind -- he believed that they were working together to conceal other types of contraband.
Well, the school could keep records on its students, like the police keep records on confidential informants.
So if -- unless this student had a proven record of having accurately ratted out a certain number of classmates in the past, she couldn't be believed.
Except that, Your Honor, there's a different incentive here.
Students can be disciplined if they -- if they tell tales.
And so if she tells a lie she faces the risk of discipline.
In addition to that, there was evidence that these kids were friends, and he had reason to rely on that.
He had reason based on their association at the opening dance.
He had reason to believe that because--
What discipline did the tipster receive?
What discipline was the erroneous tipster given?
--Oh, there was no discipline that I know of in the record, Your Honor.
It's not in the record and I do not know.
Was she subject to a civil suit by the plaintiff in this case?
Was the person Marissa Glines, the person who gave the tip?
No, Your Honor.
Could I come back to your distinguishing a strip search from a cavity search.
What would you require before you would allow a cavity search?
Nothing at all.
A bright line rule.
I would not allow it.
No cavity search in school, no matter what?
We're not even clinically trained to do that, Your Honor.
I would submit that if a child has something stuffed up one of their cavities -- and I assume we mean private parts, the very private parts -- that the first thing to do would be to send them to the hospital.
I mean, we just don't have that clinical training.
Your basis -- your basis for saying that, I guess, is just sort of the practical one, we don't know how to do that type of thing.
So far as the legal principle on the basis of which you justified this search, you could justify that search, too, couldn't you?
On the legal basis I could see that, Your Honor.
I could see that result.
But if -- if we hold in your favor in this case and the next school district says, all right, we're going to have classes in body cavity searches, then there would be no legal basis, if we accept your principle, for saying that's out of bounds as a matter of the Fourth Amendment; isn't that correct?
--I see your concern.
That's to be left up to the local governments, Your Honor.
As you have mentioned, this Court has mentioned, in Ingraham and Wright--
So it would not -- it would not be out of bounds under the Fourth Amendment?
--Technically, but it will be controlled by the community.
It would be controlled by the local board.
The community would never--
Do you know whether or not in the Ninth Circuit in border search cases a body cavity search can be conducted without a warrant?
I thought a warrant was required under the Ninth Circuit rule.
I could ask the government.
--I just know that there has been concern expressed over body cavity searches, even in the prisoner environment and even in the border environment.
I can say to this Court you will not restrict or in any way inhibit the discretion of an administrator by saying you can't go there on a body cavity search, nor would they want to, nor are they clinically trained to.
Can I ask just a follow-up on your answer to Justice Kennedy's earlier question about whether the informant was subject to civil suit.
When you said no, did you mean she hadn't been sued or that she could not be sued?
I'm sorry, Your Honor.
That she had not been sued.
There's one aspect of this considering the reasonableness of the school administrator's behavior.
In addition to not following up with Glines, after Redding was searched and nothing was found, she was put in a chair outside the vice principal's office for over 2 hours and her mother wasn't called.
What was the reason for that humiliating, putting her in that humiliating situation?
Your Honor, that is not a matter of the record, but the inference is that the -- that the investigation was still ongoing because there was a group of kids, and at that time the administrator was making efforts to try to make sure that he had gathered all the drugs that might be on campus.
And in any event that wouldn't--
But how were they investigating her when they did nothing but put her in a chair outside the vice principal's office?
--Well, Your Honor, I can see where it might have been more reasonable in that sense to have let her go back to class, but it certainly is not a standard that would affect the constitutionality.
I assume a school can assign a student to study hall.
That's not considered a government seizure.
Isn't that an obvious part of the parental supervision that a school exercises, sit here and stay there.
That's exactly right, Your Honor.
Schools do that all the time, don't they?
In fact, there was a Ninth Circuit on the docket at the time, the Smith versus McLaughlin case, where the plaintiff argued the very thing, that she was detained for hours.
And the court recognized there -- I believe there was a concurrence by Judge Kozinski -- that that's entirely appropriate, that's where they are.
When was the -- when was she detained there in relation to the lunchtime period, which was when the other student had said that all the kids were going to take these pills?
I believe it went through the lunchtime period, Your Honor, the detainment.
In addition, Your Honor, I would like to point out also that trying to restrict any more the rule that I've laid out, as the United States Government has suggested, respectfully, would cause more problems.
But aren't there things here that are a little extreme?
I mean, if she's to be believed, then she was really naked, and the two administrators deny that, but you have to take her side of the facts.
So taking her side of the facts, why couldn't the school administrators just do what they said they did?
That is, you leave her in her underwear, tell her: Go shake her underwear.
No reason to do any more than that.
Or if she is really embarrassed about that, say: Go put on a swimming suit, you know.
Shake the swimming suit, no problem.
People see you at the beach all the time.
Or call your mother.
I mean, you know, we can think of another -- a number of things that seem a lot less restrictive than her version of what went on here.
May I offer two principles?
First, this Court has recognized that the least intrusive means is not a threshold prerequisite to a constitutional--
I know, but I mean, here she is embarrassed if -- if what she says happened happened.
There seems no reason for that, and it seems so easy.
Put on your gym clothes, okay?
I mean, she does that every day.
It is just such obvious alternatives to having her be really naked.
So that's what I -- I don't see any basis for saying to the school administrator, you know, you can do that.
You can just turn her naked.
I mean, it just embarrasses her.
What's the need for it?
In the record, Your Honor, she did -- she did have her underpants on and her brassiere still on.
I know, but she says in the record that they went further and required her to be partly naked beyond just her underwear.
Well, I suppose you could say that about any strip search, couldn't you: That there is never a need for a strip search?
You could always give the -- you know, the suspected felon, you know: Here, change into this suit.
And -- and we haven't adopted some such rule, have we?
No, Your Honor.
You have specifically said the fact that other reasonable alternatives are available doesn't mean that the alternative that was used or the actual search that was done was unreasonable.
So that was my question.
My question was: Why wasn't it?
I wasn't asking about the law.
I was asking: Why didn't they choose one of these alternatives?
I'm sorry, Your Honor.
I don't -- I can't answer that question for Mr. Wilson, but I'm sure that in the heat of the moment that that issue wasn't thought through.
And, of course, he wasn't involved in the search because he's a male.
Only the females were involved in the search.
May I reserve the balance of my time, Your Honor.
Thank you, Mr. Wright.
ORAL ARGUMENT OF DAVID O'NEIL ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING REVERSAL
Thank you, Mr. Chief Justice, and may it please the Court: Intrusive body searches in the school context implicate fundamentally different expectations of privacy than other -- other kinds of searches.
For that reason, they require greater justification under the Fourth Amendment.
In the government's view, the best way to give effect to that greater showing is to adhere to the basic reasonable suspicion standard of T.L.O., but to elaborate on that standard in two ways.
Before you get started, do we have to reach the underlying merits or can we just decide the qualified immunity issue?
--The government agrees with the parties and all amici in this case that this Court should address the substantive Fourth Amendment issue.
Should -- should, but must?
This Court could decide the case on qualified immunity grounds alone.
Well, one of the defendants doesn't have qualified immunity.
That's exactly right, Justice Scalia.
So don't we have to, for that defendant at least, decide the constitutional question?
Well, this Court could remand on Monell grounds for a hearing on that, which was not addressed in--
What would be, Mr. O'Neil, the basis for the Monell claim?
That would be against the school district?
What would the plaintiff have to show to establish a claim under Monell?
The plaintiff would have to show that this search was conducted pursuant to a -- an official policy or that the vice principal was a person who was acting with that authority.
There are a number of grounds that -- that the plaintiff could establish the Monell claim on the basis of, but in this case the Ninth Circuit did not address that.
And, therefore, we believe that this Court should not review in the first instance, but if the Court were inclined to remand on that ground to allow the Ninth Circuit to address it before this Court reaches that.
You -- you criticized the Ninth Circuit in your brief for having a sliding scale standard, which is a bad thing in your view.
But it seems to me that your standard comes close to that.
You call yours a differential level standard or something like that?
No, Justice Kennedy.
Our standard is one of greater specificity in the information, not a standard that rises and falls depending on the level of intrusiveness.
You -- you have to, under your standard, have reason -- a reasonable suspicion specifically that -- that the student is hiding the contraband in the student's underwear?
That's correct, Justice Scalia.
Now, if -- if you have a reasonable suspicion that the student has drugs and you search every other place, you search in the student's pack, you search the student's outer garments, and you have a reasonable suspicion that the student has drugs, don't you have, after conducting all these other searches, a reasonable suspicion that she has drugs in her underpants?
No, Justice Scalia, we believe that you don't--
--without -- without--
Your logic fails me.
You -- you reasonably suspect the student has drugs.
You've searched everywhere else.
By God, the drugs must be in her underpants.
--Well, Justice Scalia, you posited that the teacher began the search with reasonable suspicion.
And in that case, if you searched the obvious places like a wallet, a pocket, a desk, a locker, and you didn't find it in those places, the logical conclusion would not be that it must be in the student's underwear, but perhaps that the information that you had--
That sounds like you--
--putting things in their underwear.
--That sounds to me like the sliding scale that you reject from the Ninth Circuit.
--No, because we believe that where you have reasonable suspicion that there is contraband in the underwear, then you could go directly to that location, and you wouldn't have to work from the outside in.
But, Justice Scalia, it takes--
Oh, surely not.
You are saying if you have reasonable suspicion that it's in the underwear, you shouldn't even bother searching the pack or the pockets.
You should go straight to the underwear.
That can't be right.
--Well, to take T.L.O. as an example, Justice Scalia, in that case the Court believed that there was reasonable suspicion that the student had cigarettes in her purse because that was the obvious place to find them.
Now, if the -- if the school principal in that case had searched the purse, searched the student's pocket, searched the locker, searched the desk, I don't think this Court would have said that there was reasonable suspicion to believe that the cigarettes were in--
Now, what specifically do you think is missing here?
They need -- the school needed to have a direct statement from Marissa Glines that -- that Redding had the -- had the pills in her undergarments; is that correct?
--The particularized suspicion could come from information from students that reliably adverted to the location of the contraband.
But you have to have direct evidence that the -- the -- it can't be based on inferences?
Is that the distinction you are drawing?
The location has to be supported by direct evidence.
Somebody has to say that that's where it is.
--No, Justice Alito.
We believe that if teachers were aware of the general practice and it was common knowledge that students did hide contraband in this way and -- that would be relevant to the totality of the circumstances in determining whether this student was following that practice.
But we don't believe that the examples that were provided in Petitioners' reply brief establish anything like that practice.
Petitioners cite 8 cases over the course of approximately 30 years in which contraband was found in those locations.
But you are -- you are saying basically there is -- there is no general understanding that people carry ibuprofen in -- in their undergarments.
That is -- that is true.
There was no experience at this school.
There was no reasonable -- no reason to suspect that based on experience in the world.
And, in fact, by the time the officials had conducted their -- this search, they had searched Marissa, who was Respondent's friend.
And they had conducted a search of her pockets and her wallet and they had found pills in her pockets and her wallet.
But they had not found pills in her underwear.
So even if that had been a suspicion that one might have had even before beginning the search, they certainly wouldn't have had that suspicion by the time--
But if your -- accepting your argument that there may be no reasonable suspicion based on Marissa saying this is the person who gave me the drugs, does the fact that she said kids are going to -- the kids are going to take these drugs at lunchtime, a specific time, does that present a difference in the level of concern that the school should have?
--We believe that the schools may take seriously any information they receive and must take seriously any information they receive about the presence of prescription pills on campus.
And the fact that the teacher believed that these pills were going to be consumed at lunch as part of an event that obviously wasn't simply intended to get rid of the students' headaches, we believe that that would give rise to reasonable suspicion to initiate some search.
But we believe that without some particularized suspicion or some specific indication that this, the location, was a likely one to contain the drugs, that this search was excessively intrusive.
And this is not a new standard.
This is essentially the same standard this Court adopted in the Montoya De Hernandez case for intrusive body searches in other contexts.
It has proved workable in that context and we believe that it would prove workable here.
We believe that it is also better than the alternatives of a higher level of suspicion, which does not bear any necessary logical correlation to the likelihood that the--
If Marissa Glines had said specifically that Savana Redding has pills someplace on her person and she's going to distribute them at lunch in the cafeteria, would this be a different case?
--It may well, Justice Alito.
In that circumstance it would likely be the reasonable thing for the teacher--
What is the difference between that situation and this situation?
The differences are slight.
Wouldn't that at least be a question that has to be decided by the trier of fact?
--That may present a triable issue.
That wouldn't -- that wouldn't satisfy the test you've just given us.
I thought you said there had to be specific indication that she was carrying it in her undergarments.
And what Justice Alito posed was not that, just specific indication that she had it on her person.
Is that enough?
Do you want to revise your test so it's not just specific indication that it's in her undergarments, but specific indication that it's on her person?
--No, Justice Scalia.
We believe that there must be information beyond that.
And I may have misspoke, and I think the answer to that question is that in that circumstance, a teacher would almost certainly ask, well, where on her person is it?
And if the student doesn't know, then, yes, Justice Scalia, that would not satisfy the standard that we would urge this Court to adopt.
I mean, the student says, she has -- she has crack someplace on her person, and she's going to distribute it to kids during the lunch hour, and so they search her -- her garments, and they don't find it.
And you're saying that they cannot then go ahead and search her undergarments--
The nature of the contraband--
--The nature of the contraband could be relevant in the totality of the circumstances to the suspicion that the student has -- is hiding it in some illicit place as -- Justice Souter, as you noted, certainly there is no practice anywhere, that I'm aware of, of hiding ibuprofen in underwear.
So there is a sliding scale for the dangerousness of what you're looking for?
It simply means that it's relevant to whether in the totality of the circumstances that school official could have reasonably suspected that the student was hiding it.
How is a school administrator supposed to know?
Marissa says: She gave me these pills.
What are they?
I don't know.
And so how is the -- if it depends whether it's a dangerous drug like crack or a relatively -- not harmless, but a different one like ibuprofen, the search depends on that, how is the school administrator supposed to know?
My point was simply with a drug like crack there is a more common understanding that a drug like that can be hidden in a student's -- in underwear.
So what is the school administrator supposed to know when he sees a white pill and doesn't know if it's something terribly harmful, even deadly, or if it's prescription strength ibuprofen?
You say in the former case he can search undergarments, in the latter case he can't.
So how is the administrator supposed to know what he's dealing with?
Well, we believe that, as I said, school administrators have to take seriously all medication like this on campus.
My point was simply that where a particular type of contraband is known to be carried in a certain way, that can be relevant to the totality--
I'm sorry, your answer to me was they have to take it seriously.
My question to you is, what is the administrator supposed to do?
He sees a white pill; nobody can tell him what it is.
Is he allowed at that point to search the undergarments or not?
He is not.
Even if it turns out to be -- you know, I don't know, some very deadly drug?
Mr. Chief Justice, we do not believe that this Court should get in the business of deciding that searches are okay for, for example, heroin, but not okay for cocaine.
That's what you just told us we should do, in answer to Justice Alito's question.
No, I simply -- the point was simply that if there is some common understanding that a type of contraband is generally secreted in a certain way, and the example is crack, and there is a known understanding that crack can be hidden in that way, that that would be relevant to the totality of the circumstances.
And I don't see why your answer might not be different if, under the Chief Justice's question, he didn't know it was ibuprofen.
All he knew was that it was a white pill.
He's not a pharmacologist, he doesn't know what's in it.
Wouldn't the reasonableness of the -- wouldn't the scope of reasonable search at least potentially be greater for the undifferentiated white pill than for the known ibuprofen?
It may, Justice Souter, but I think that the question would be whether the school official has some reason to believe, based on a practice, that -- that pills, for example, are hidden in a student's -- can be hidden in a student's underwear.
Again, the example was crack, and that is a situation where there is an understanding that that is -- can be a place in which suspects will hide that type of item.
But, again, there was no indication in this case whatsoever and no basis for the school official to suspect that that was a likely location.
Thank you, counsel.
Thank you, Mr. Chief Justice.
ORAL ARGUMENT OF ADAM B. WOLF ON BEHALF OF THE RESPONDENT
Mr. Chief Justice, and may it please the Court: We agree with the Federal Government that before conducting an intrusive strip search a school needs to have location-specific information.
And while this case can begin and end with that well-accepted proposition, it's also important to recognize that a school needs greater -- a greater degree of suspicion to conduct a strip search than to conduct an ordinary backpack search.
I don't think the case can begin and end with that because we have the separate issue of qualified immunity.
Can we take that off the table?
I mean, we have got six to five in the Ninth Circuit, disagreement throughout in this case, and yet you say the rule is so clearly established that you can make these school officials personally liable.
Your Honor, I don't think a head count of the judges is the standard by which this Court measures qualified immunity.
That's what this Court, you know, held, for instance, in Groh v. Ramirez.
But I do understand that it sort of gives one pause.
It says: Well, what did they miss here?
And what they missed here is that this search violated the clearly established point that in order to conduct an intrusive search of one's body, the searching official needs to at least reasonably believe that the object is located underneath the undergarments.
The Fourth Amendment does not account -- it does not countenance the rummaging on or around a 13-year-old girl's naked body--
--without any suspicion.
--What if what Marissa has is heroin?
The school administrator recognizes heroin.
She says: This is what the student gave me?
Search the undergarments or not?
The nature of the infraction -- no.
The nature of the infraction, as T.L.O. would put it, is a nonstarter in this case, because we don't even have the suspicion to get underneath Savana's undergarments, even if you had -- regardless of the substance.
Now, in T.L.O., the question was whether there were drugs to be found.
There was marijuana in that case.
And this Court set a relatively low standard, that you need more than a hunch, and you need particularized suspicion.
Now, that's where the Court set the balance for ordinary searches for drugs.
I'm not quite sure where we are in your answer to the question of the Chief Justice's question.
He asked you a hypothetical case.
And you said that's a nonstarter because in this case.
And the hypothetical is that there is a very dangerous drug, meth, that's going to be distributed and consumed that afternoon.
Does that make a difference in the permissibility of the search and the reasonableness of the search and the scope of the search?
No, it does not.
It does not in this case, because without a suspicion that you're going to find the object--
So you don't mind our judging this case as if they were searching for meth?
That's the way -- we should -- we should judge this case as though they were searching -- the fact that it was -- is it ibuprofen, have I got that?
The fact that it was ibuprofen is irrelevant; we can consider this case as if it were meth?
--I think we all understand that this -- that this case, you know, involves ibuprofen.
But our argument--
I don't think I understand that based on your answer.
I'm -- I'm asking you -- you said that the nature of the drug makes no difference, It's a nonstarter.
--Not in in this case, correct.
Insofar as the rule that we -- that's because in this case you don't think there's a reasonable suspicion to begin with.
But that doesn't answer the hypothetical.
We're trying to announce a rule.
And your rule, your submission, as I understand you and as I understood the government, is that the nature of the substance they're searching for is irrelevant.
I think it's irrelevant when you're making distinctions between drugs.
If -- if the question is whether you can strip search a child for gum, for instance, because that might prohibit school policy, I would--
So that goes back to my earlier proposition that you don't mind our deciding the case as if this were a search for meth that was going to be consumed at noon?
--That's correct, Your Honor.
Because in this case there was no suspicion -- and I think Justice Alito was perhaps getting to this -- there was no suspicion that these objects were going to be found inside Savana's undergarments.
And without that suspicion you cannot conduct such an intrusive search.
Well, to play the devil's advocate on that, why couldn't the assistant principal reason as follows: that he has information from -- from Ms. Glines that Ms. Redding has drugs.
He has information from another student that drugs are going to be consumed during the lunch hour.
Putting those two together, he reaches the -- he suspects that the person who has the drugs has the drugs on his or her person so that they can be distributed at lunch.
And then having searched every other part of -- having searched Ms. Redding's outer garments, what's left are her undergarments.
So therefore there's a reasonable suspicion that the drugs are -- are located there.
What's wrong with that?
--Justice Alito, I don't think that accurately describes the record.
Even if it did, it wouldn't satisfy this Court's standard.
Two things about the record: one, I think the hypothetical supposed that she had drugs, and in fact what the record reveals is that it was allegedly Savana provided these drugs at some point.
It's not that she currently had them on her.
Second, that they searched every other part, and it's an important -- it's an important point in this case.
Where did Marissa have her planner?
It was in the desk.
Did they search the desk here?
We know that.
It's not in the record, as Mr. Wright said, but they have lockers in the school.
Did they search any locker?
Can students keep drugs anywhere else on school grounds?
Perhaps, probably so.
Did they search everywhere?
They absolutely did not.
But I want to get back to the legal answer, too, which is that this Court said in T.L.O., and it's on page 342 of T.L.O., that a search is reasonable only when there are reasonable grounds for believing that it will turn up evidence.
There were no reasonable grounds for believing that this search would turn up evidence, none at all.
You're saying the whole search, not just the search of the undergarments.
You're saying they couldn't even have searched her backpack, right?
I think they could have searched her backpack.
--What that speaks to is the low degree of the suspicion and the nonspecific suspicion that's needed to conduct an ordinary search.
So you want a sliding scale?
It's not a sliding scale, Your Honor.
This is a two-step framework, and that is it.
We have ordinary searches, backpacks, pencil cases, book bags, that kind of thing; and then you have a search where you require a 13-year-old girl to take off her -- take off her pants, take off her shirt, move around her bra so she reveals her breasts, and the same thing with her underpants to reveal her pelvic area.
I mean, I think there's a dispute in the record about that.
So -- so we have, I mean you would have the right to prove your version, obviously.
But suppose you fail to prove that and that the jury or judge, or whoever is deciding this fact, concludes the school board's right on that; all they did was ask her to strip to her underwear, period.
Nobody saw anything else.
Now, what's your view of that one?
I mean, let's also imagine that this is sufficient to prove -- to -- what happened was Marissa opens a planner, and in the planner there's some small knives, a cigarette lighter, and a cigarette.
And who gave you the planner?
Well, Savana gave it to me.
And they find some pills.
Let's imagine those pills are cocaine or something like meth or something.
And she says well, where did you get those?
Savana gave them to me.
That seems to be possibly reasonable suspicion to think Savana has some of these pills.
And they're going to distribute them at lunchtime.
At that point they go look, whatever they did here.
But then they bring Savana in to the nurse and the nurse and the female official say: All right, Savana, strip to your underclothes and shake your underclothes.
That's what happens, period.
Now, is that latter part a violation of the Fourth Amendment?
It is, Your Honor.
It is because that is an intrusive, traumatic search.
But it would be okay to say, change into a swimming suit or your gym clothes?
Hey, your gym clothes are in the locker, they're about the same size, shape; go do that.
It -- it might be different if they asked Savana to go into the other room and to change where you're not revealing your body to any government official.
No, they didn't -- she didn't reveal her body beyond her underclothes.
She -- that's the hypothetical that I'm trying to work out here, because I'm not certain.
I'm trying to work out why is this a major thing to say strip down to your underclothes, which children do when they change for gym, they do fairly frequently, not to -- you know, and there are only two women there.
Is -- how bad is this, underclothes?
That's what I'm trying to get at.
I'm asking because I don't know.
Mr. Wolf, one thing should be clarified.
I don't think there's any dispute what was done in the case of both of these girls.
It wasn't just that they were stripped to their underwear.
They were asked to shake their bra out, to -- to shake, stretch the top of their pants and shake that out.
There's no dispute, factual dispute about that, is there?
There is none at all.
Well, I thought there was, because I thought on page 135 of the record the official said they didn't see her naked, and so I thought that there was--
There was no dispute that they asked her to shake her pants and her bra.
Nobody said that they touched -- the school officials didn't touch her, that's a given.
But they did ask her to shake out her underwear.
That's right, Justice Ginsburg.
--My question -- my question has to do with accepting--
--What they said on page 135 of the record, and this is a genuine problem I'm having.
I'm trying to figure out, if that's so, and to repeat it -- you heard what I said, there's no reason to repeat it.
I want to know why that search, if that's what happened, would violate the Fourth Amendment, assuming reasonable suspicion to think she possessed meth or cocaine at that time.
And it still would violate the Fourth Amendment, and the question is why.
Because even that slightly less invasive search still implicates legitimate and serious implications of privacy.
The National Association of Social Workers, for instance, filed an amicus brief in this case, and what they showed is that -- or they cited studies showing that when a child undergoes a strip search -- and Justice Breyer, your -- your hypothetical involves a strip search -- that that produces long-lasting and traumatic consequences for a 13-year-old child.
Now, why does that matter?
Because the Fourth Amendment requires a balancing.
On one side you have legitimate expectations of privacy, and on the other side you have the governmental need to conduct that search.
Maybe the psychologists -- "strip search" has a lot of meanings.
And do the psychologists focus on the situation with the child involved, you know, this is an -- my hypothetical, is that what they're talking about?
--I believe it is, Your -- Justice Breyer.
And I believe that we cite such a study in -- in our brief, the red brief, where we say that it doesn't require a student to take off his or her undergarments so long as the shirt and the pants are taken off, that that produces trauma.
Let me -- let me just, not so much change the facts, but -- but emphasize a couple of different aspects of the facts.
Assuming Justice Breyer's hypothetical of a moment ago and assuming the following thought process on the part of the principal -- I -- strike that.
I will vary the facts in one way.
Let's assume, following your categorical rule that the -- the principal doesn't know whether it's ibuprofen or not.
He just knows that there's a pill and one of the other kids said this person has got pills on -- on her person.
The principal says, I know as a matter of reliable fact that one student got sick, violently sick, within the past week or so on some pill; we don't know exactly what it was.
We also know within a reasonable period of time from where we are now that there have been kids who died from ingesting dangerous drugs.
I've got suspicion that some drug is on this kid's person.
My thought process is I would rather have the kid embarrassed by a strip search, if we can't find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry.
Is that the basis?
Is that thought process, that reasoning, the basis for a -- a reasonable strip search?
And to make sure I understand, it's that there's reasonable belief -- there's a reasonable belief that a student has drugs on his or her person?
And by his or her person, presumably it could be the pockets or it could be in the backpack that he or she is holding?
Somewhere between the surface of the clothes and -- and the body.
And in that instance it still would not be appropriate.
There needs to be suspicion that the object is located underneath the clothing.
And if that isn't there, then you can't search there.
Now that should be--
You -- you say that the -- the point of my question, this is what I'd like you to focus on -- you're entirely right, I would accept that argument and I think that argument is entirely right, if the stakes are lower.
If the risk of a mistake is going to be less traumatic.
In the hypo that I gave, the risk of the mistake may well be violent sickness or death.
And the thought process in the principal's mind is, the reasonableness analysis in the principal's mind is better embarrassment than violent sickness or death.
What's wrong with that reasoning under the Fourth Amendment?
--Well, I mean, to start, that's not what T.L.O. said.
T.L.O. said that there needs to be a reasonable--
I'm -- I'm saying it.
We -- We've got a new case.
And I'm saying to you, why isn't that a -- a reasonable thought process within the concept of Fourth Amendment reasonableness?
--Because in order to conduct that intrusive search, it seems like it that case you would have to be doing guesswork, if you will, about where those pills are located.
You've got reasonable suspicion that they are somewhere on the person.
And presumably, if they're -- if it doesn't show up in a pocket search, then you can do a strip search; and if you don't find it in the strip search, you could do a body cavity search; and if it's not in the body cavity search--
And with those stakes in mind, why isn't it reasonable?
In other words, there -- there is a sliding scale of risk which is inherent in my hypo, and why isn't that a sound basis for a -- a Fourth Amendment analysis?
--Because -- it all comes back to the balancing of the Fourth Amendment.
And here, where you're conducting a traumatic search without a belief that you're going to find it underneath the undergarments, it--
I don't have a belief; I simply have a reasonable suspicion.
That's what I've got all along the way.
And it seems to me, when -- when you take the position that you -- you were taking, you are saying, better to have the risk of violent sickness or death than the risk of embarrassment.
Isn't that what you're saying?
--No, it's not what I'm saying, Your Honor.
There are many things that -- that this principal could -- or the assistant principal could have done here that would have mitigated any risk, and at the same time not caused the trauma of -- the trauma associated with a strip search.
Sit the child down--
Some search is -- is reasonable, I take it?
--But -- absolutely.
Now the -- we get to the point as in prior hypos, in which it does -- they find nothing in the pockets.
They find nothing in the pocket book or other garments.
The only thing that's left is a strip search, and that's where you draw the line.
Why do you draw the line there, on the risk analysis?
Well, the hypothetical supposes they have searched everywhere.
And I suppose if you have -- if you are certain that somebody possesses a drug and you have searched everywhere, perhaps you have generated location-specific information.
I would readily agree to that.
But in this case, they certainly did not search everywhere.
Do you agree with Mr. O'Neil when he said if the drug had been cocaine, and it's well known that cocaine is carried in underwear, that then this would not run afoul of the Fourth Amendment?
He gave an example of a drug where there was a custom of carrying it in a certain way.
I think if it were readily known that this student had previously been suspected of -- to use the term that's used in the court of appeal cases -- "crotching" that drug, well, then, perhaps that would have been appropriate.
It has to be that student.
It can't be that it's customary among students?
And it may be that if this becomes so customary, that that somehow differently calibrates the equation here, but it -- it's sort of strange credulity to think that you would have loose pills concealed against a student's genitalia.
That's what you'd have to think was the custom here.
As -- as I understand your -- your presentation, you qualify as a strip search any search that requires the outer garments to be taken off.
So it didn't really matter whether they required her to shake out her bra or stretch the elastic of her underwear?
It certainly added to the trauma -- trauma, Justice Scalia.
But is a strip search and -- impermissible along the lines you say, to require the student to even take off the outer garments?
That's -- that's right.
That's what the studies say, and that seems like a reasonable calibration to me.
You know, anything--
Just to combine it with -- with your answers to Justice Kennedy, you are saying it's unreasonable to take off the outer garments even if your suspicion, reasonable suspicion for justifying the preliminary search is that the student has heroin?
--Without any location-specific information, that's correct, and anything else would send a shudder down the spines of little boys and girls around this country.
Well, let me ask you this about spine shuddering.
Let's go back to Justice Souter's question.
We assume that there's meth, something very dangerous, going to be smoked at noon, there's very strong suspicion of this student.
The assistant principal says I'm going to give you a choice: we're going to engage in an intrusive search, same sex people, like what went on here; or we're going to call the local police department, we'll have probable cause to book you and they will search you at the jail house.
Which do you choose?
Would the school administrators be violating their duty if they did that?
If -- if they called in the police officers?
They give the student the choice.
They say we'll do it here with a nurse right here, where you know everybody, and there's nothing wrong' or we'll call the police, and they'll do it down at the police station.
I don't think that would violate the Fourth Amendment, Justice Kennedy.
Which -- which would be the less traumatic of the two choices for the student?
Well I'm not sure that there's a lesser or more traumatic.
Both -- both are fairly traumatic.
--But wouldn't the police--
You think it's less traumatic, or it might be less traumatic to have uniformed police officers take the person to the police station and conduct the search there?
You want us to decide the case on the fact that that's probably less traumatic for the student?
--I'm saying both are remarkably traumatic.
The police would require--
I'm not putting them one above the other.
--The police would require probable cause, wouldn't they, not just suspicion?
They would require probable cause.
In the hypothetical wasn't there a probable cause?
Well if there's probable cause and they want to call the police officers in, then they can do that.
But that's not what happened here.
What this school official did was act on nothing more than a hunch, if that, that Savana was currently concealing Ibuprofen pills underneath her underpants for other's oral consumption.
I mean there's a certain ick factor to this.
Well, you've made that point several times.
In fact the issue here covers the brassier as well, which doesn't seem as outlandish as the underpants, right?
Did you say the prisoner?
Mr. Chief Justice?
Well, yes, in the prison context, the rules are different.
They are different, because this Court has--
Maybe I'm -- maybe I'm not articulating this.
You keep focusing on the fact that it's unlikely that the pills would be concealed in her underpants.
That doesn't go to the brassiere at all.
--Well it -- the brassiere I think as well.
I mean there -- there was nothing in this record that even the principal or assistant principal said I suspect that it was there.
It's not like you have any studies on this.
But I mean, I hate to tell you, but it seems to me like a logical thing when an adolescent child has some pills or something, they know people are looking for them, they will stick them in their underwear.
I'm not saying everyone would, but I mean, somebody who thinks that that's a fairly normal idea for some adolescent with some illegal drugs to think of, I don't think he's totally out to lunch, is he?
Do you have any studies on this?
I doubt it.
--No, but neither -- neither do they.
So what am I supposed to do?
In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay?
And in my experience, too, people did sometimes stick things in my underwear ----
Or not my underwear.
I was the one who did it?
I don't know.
I mean, I don't think it's beyond human experience, not beyond human experience.
Yes, but the "not beyond human experience"--
Well, what are they supposed to do?
--But the "not beyond human experience" standard is not the standard that governs whether the Fourth Amendment is violated.
No, no, but it's supposed to be what's reasonable.
And a teacher is there thinking what's reasonable?
And I've already got the thing sort of away from -- I see your point.
I'm not quite talking about that.
I'm worried about what to write in this as a general standard.
And so am I supposed to say, look, school -- school officials who think that children could hide things in their underwear when they know they're not supposed to have them, is that school official really unreasonable except in a special case?
That's what's bothering me.
Well, it -- it is unreasonable, and at the end of the day, it has to be unreasonable.
To think that -- for school officials to think that this student was hiding -- this honor student was hiding pills underneath her undergarments based on nothing in the record that supports that, not a single thing.
What does the school official know?
That there was an accusation that Savana had provided pills at an unknown time and at an unknown location, that Savana's backpack search yielded nothing, not only pills, but no suspicion that she possessed pills underneath her undergarments.
Is that a question of law or is that a question that goes to the trier of fact, whether you could infer reasonable suspicion about the presence of the pills in those locations?
That seems like a factual question to me, Justice Alito.
I mean, there's nothing in the record to -- to indicate otherwise.
And we haven't moved for summary judgment here, but all inferences are resolved in our favor when Petitioners have moved for summary judgment.
Is probable cause a jury question too?
Whether something rises to the level of probable cause?
Yes, probable cause in the ordinary criminal investigation cases.
Is that a jury question?
It strikes me as a factual question, Your Honor, that may or may not -- I -- I don't know the answer to that--
In a 1983 action, wouldn't it be a jury question?
--I think in this case it certainly is a jury question, without anything else in the record that that -- that that is a reasonable inference, and without it being self-evident -- and I would actually argue that it was self-evident that those pills were not located there and that that's not a reasonable inference.
But if there is some doubt about that -- and I was hearing some doubt from Justice Breyer and perhaps other members of this Court -- well, that strikes me as a factual question.
And if that's a factual question to be resolved by a jury, there must be a principle behind that, which is that if it is not a reasonable inference that those objects were located there, then it would be an unreasonable search.
And if that's true, then qualified immunity, at least at this stage, was properly denied.
I don't think it's a jury question.
You can -- even -- even in a 1983 action, I don't think the courts allow a jury to decide whether there was probable cause for an officer's search or seizure.
That's new to me.
Well, whether something was a reasonable inference or not, it might strike one as a reasonable inference--
--Did the Ninth Circuit--
--and another as not a reasonable inference.
--Did the Ninth Circuit treat this as a jury question?
I'm looking at page 38a.
They were quite definite that that was a Fourth Amendment violation.
Right, because for the Ninth Circuit, this -- it was self-evident to the Ninth Circuit that the -- that there was not a reasonable inference.
And without that reasonable inference, there was no reason to treat it as a jury question, but if there were a reasonable inference, then it strikes me as something that might be -- that might be better suited for determination by the jury.
Thank you, Mr. Wolf.
Mr. Wright, you have 3 minutes remaining.
REBUTTAL ARGUMENT OF MATTHEW W. WRIGHT ON BEHALF OF THE PETITIONERS
Thank you, Your Honor.
The reality is that we've gotten past the reasonable at its inception prong, and we're now on the scope.
And I think everyone concedes that.
And, as to the scope, I can tell you that if they found uncut heroin or small-caliber bullets in this case, they would have to reach the same results.
And that is unacceptable in the school setting.
There's too much at risk here when you're talking about the custodial and tutelary responsibilities this Court has time and again recognized as the most important elements in upholding the three search cases, student search cases, that this Court has upheld.
The other thing about the government's proposal is -- is really troubling.
It's because they do not justify why they would pass a rule that would so much stunt the administrator's discretion to respond, even in the most serious situations that confront the health and safety of kids.
These -- these principles are principles that have been restated by this Court.
You need the flexibility to act immediately and effectively to keep kids safe.
Unless the people feel differently.
Some school districts have rules against--
--simply forbidding strip searches on any -- right?
There is an amicus brief that cites 189 school districts which have substantially limited strip searches, which proves the Ingraham v. Wright theory, which is that it will be taken care of at the local level.
But administrators, for now, need a bright-line rule.
And as to the scope, that bright-line rule is if you have reason to suspect that a student is processing contraband that poses a health and safety risk, then searching any place where that contraband may be reasonably hidden is constitutionally permissible.
And in any event, Mr. Wilson in this case certainly could have believed that the Constitution permitted it, Mr. Chief Justice, and so immunity is a foregone conclusion in my opinion.
But I would ask the Court to rule on the constitutional question in the affirmative because it would further the interests of judicial economy.
There would not be any more Federal action in this case.
Yes, there would.
There's a Monell claim against the school district because there is no qualified immunity.
That's correct, Your Honor, but if you ruled in the affirmative on the constitutional question--
--the case is over.
The additional issue, Justice Alito, on the factual question is I understand you're not talking about immunity, but the reality is we've got to be able to make decisions, and if we get sued on factual questions because somebody questions whether or not it's reasonable for us to search where contraband may be reasonably located, then we're going to end up in court anyway on those factual questions, which is going to -- you know, deter officials from acting immediately and effectively in those situations.
So, I do not think it is a factual question.
And the District Court and the first three-panel-judge court did hold as a matter of law that this search was constitutional.
Thank you, Your Honors.
Thank you, counsel.
The case is submitted.