Student Rights & Responsibilities
Consent
When students consent to a search of their person or belongings, then the
Fourth Amendment is not impacted. A standard consent form is recommended to
be included in the local school district's code of conduct. If school
officials have reasonable suspicion to conduct a search, consent is not
necessary. In contrast, if a student consents to a search, reasonable
suspicion is not at issue. It is important that the consent be knowing and
voluntary. This determination will depend upon the facts and circumstances
surrounding the consent in each case. The court will review "the effect
[that] the totality of the circumstances had upon the will of the [student]
and whether [his] will overborne. State v. Anderson, 2000
S.D. 45, 80, 608 N.W.2d 644, 667. There are many factors that will be
considered in making this ruling. For example, was the consent in writing;
did the student have access to food and water; was there any physical
restraint or physical barriers; what is the level of intelligence and/or
experience and age of the student; what was the length of the detention; and
was the student told he was free to leave? This is not an inclusive list of
factors. It may also be helpful to review factors that have been utilized
to determine the voluntariness of a consent in a venue outside a school
setting. See generally Anderson, supra, and State v. Darby, 1996 S.D. 127, 556 N.W.2d 311. It is also
important to have the student sign the consent form prior to the search.
The student may not be coerced or forced in any way to provide consent or
the consent is invalid. In addition, the denial of consent may not be used
to form reasonable suspicion or to punish the student for violation of
school rules. Reasonable suspicion may develop during a consensual search
that would justify continuing the search even after consent is withdrawn. |
