Can a Tennessee principal search a student's locker, and do police have to wait for a parent before questioning a kid at school?

Subject

Opinion No. 14-21, Searches and Arrests on School Property, February 24, 2014

Plain-English summary

State Senator Mark Norris asked the Tennessee Attorney General to lay out the ground rules for school searches and police involvement on campus. The AG walked through eleven questions covering locker privacy, who can order a search, what happens when contraband shows up, whether police need permission to question students at school, and how Tennessee regulates armed school security guards.

The headline conclusions: Tennessee students do have a Fourth Amendment expectation of privacy in their lockers, but it is "very low" because the School Security Act of 1981 broadly authorizes locker searches and requires posted notices warning that lockers are subject to search. A principal (or School Resource Officer) needs reasonable suspicion, not probable cause, before ordering a search. The principal's authority to order that search cannot be delegated. If a school employee other than the principal orders the search, anything seized could be challenged on Fourth Amendment grounds in a later prosecution.

The AG also concluded that principals must hand any weapon, drug, or contraband over to law enforcement "immediately" rather than holding it for the school disciplinary file. When police want to question a student at school about a crime committed off-campus and unrelated to school, the principal has discretion to allow or refuse the interrogation, unless an exigency or warrant changes the calculus. Notably, the AG found no Tennessee statute or court rule that requires a principal to call the student's parent before that interrogation happens, even though the principal acts in loco parentis.

On the security-guard side, armed guards employed by a school system are not exempt from the Private Protective Services Licensing and Regulatory Act and must carry the statutory minimum insurance ($300,000 bodily injury, $100,000 property damage). And when a private security officer arrests someone and hands them off, the receiving officer has discretion under Tenn. Code Ann. § 40-7-113(b) to refuse to take that person before a magistrate.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did Tennessee students have any Fourth Amendment rights in their lockers under this opinion?

Yes, but very limited ones. The AG explained that the U.S. Supreme Court in New Jersey v. T.L.O. expressly declined to decide whether students have a legitimate expectation of privacy in lockers. Lower courts split on the question. Tennessee answered it by statute: the School Security Act of 1981 declared the legislature's intent to "extend further, rather than limit, the authority of principals and teachers to secure order," authorized searches of lockers, vehicles, packages, and containers, and required notices posted in the school and parking lots warning that those spaces are subject to search. Given the statute and the posted notice requirement, the AG concluded the student's expectation of privacy in a locker was "very low" but not zero.

What standard applied before a principal could order a search?

Reasonable suspicion. The U.S. Supreme Court held in T.L.O. that school searches turn on reasonableness under all the circumstances, not warrant-and-probable-cause. Tennessee codified the reasonable-suspicion floor in Tenn. Code Ann. § 49-6-4204(b). The Tennessee Supreme Court in R.D.S. v. State, 245 S.W.3d 356 (Tenn. 2008), held that School Resource Officers are also bound by the reasonable-suspicion standard rather than the higher probable-cause standard police would face outside the school context.

Could a principal delegate the decision to search a student?

No. The statute placed that authority with the principal personally. The AG warned that if a teacher or other staff member ordered the search without the principal's authorization, any contraband seized could be challenged on Fourth Amendment grounds in a later prosecution. Some courts apply the exclusionary rule to school searches; the U.S. Supreme Court has not resolved the question.

Did a principal have to notify a parent before police interrogated a student at school?

No. The AG could find no Tennessee statute, rule, or court opinion creating that duty. The principal acts in loco parentis, but that role did not, by itself, generate a notice-the-parents requirement. The AG noted that local education agencies could adopt their own policies, but Tennessee law as of 2014 did not mandate one.

Could a principal refuse to let police question a student at school about an off-campus crime?

Generally yes. The principal had discretion to decide whether the interrogation could happen on school property, unless the officer had a warrant, court order, exigent circumstance, or other legal basis for immediate access. If the crime was "involving" the school and the principal had requested police investigation, the same no-parental-notice answer applied.

Did the principal have to hand over weapons or drugs found in a search?

Yes, and immediately. Tenn. Code Ann. § 49-6-4210 required any dangerous weapon or drug found during a school search to be turned over to law enforcement. The AG specifically rejected the idea that the principal could retain the contraband pending the school's own disciplinary process; possession of scheduled drugs or certain weapons is itself a criminal offense.

Were armed security guards hired by a school district exempt from state licensing?

No. The AG read the exemption list in Tenn. Code Ann. § 62-35-103 narrowly and concluded that armed school-system security guards remained subject to the Private Protective Services Licensing and Regulatory Act unless they fit a listed exemption. The opinion cited Tennessee AG Op. 03-022 for the parallel proposition that private security officers contracted to a local, state, or federal government did not qualify for exemption. Insurance minimums: $300,000 bodily or personal injury, $100,000 property damage.

When a private security guard arrests someone, must the officer who receives the arrestee take them to a magistrate?

No. Tenn. Code Ann. § 40-7-113(b) says the officer "may" take the arrested person before a magistrate, not "shall." The AG, following Tennessee AG Op. 03-018, treated that as discretionary, meaning the officer could decline if there was reason to believe the arrest itself violated the person's constitutional or statutory rights.

Background and statutory framework

Tennessee's School Security Act of 1981, codified at Tenn. Code Ann. §§ 49-6-4201 to -4218, is the central statute the AG relied on. Section 49-6-4203 sets the legislative intent, declaring that the General Assembly wanted to "extend further, rather than limit, the authority of principals and teachers to secure order and provide protection of students." The legislature made a specific factual finding that removing dangerous items "can only be accomplished by searches of areas of the school buildings or grounds where those materials may be stored."

Section 49-6-4204 authorizes the principal to order searches of vehicles parked on school property, containers, packages, lockers, and other storage enclosures used by students or visitors. It requires reasonable suspicion. Section 49-6-4204(c) and (d) require posted notices in the school building and in parking lots warning that those spaces are subject to search for weapons, drugs, and drug paraphernalia.

Section 49-6-4209 deals with the reporting duty when a principal suspects a student has a weapon on school grounds, cross-referenced with the criminal weapons statutes at Tenn. Code Ann. §§ 39-17-1307 and -1309. Section 49-6-4210 controls disposition of seized contraband.

On the security-officer side, the Private Protective Services Licensing and Regulatory Act, Tenn. Code Ann. §§ 62-35-101 to -142, regulates licensing, training, and insurance for private security officers. Section 62-35-103 lists the exemptions; section 62-35-114 sets the insurance floor. Section 62-35-102(16)(C) authorizes licensed security guards to enforce state and local laws on private property.

The Fourth Amendment baseline comes from New Jersey v. T.L.O., 469 U.S. 325 (1985), which set the reasonableness standard for school searches and left open whether students have a legitimate locker-privacy interest. Tennessee filled that gap by statute (broad authorization plus posted notice) and by R.D.S. v. State, 245 S.W.3d 356 (Tenn. 2008), which extended the reasonable-suspicion standard to SROs.

Citations

• Tenn. Code Ann. § 49-6-4202(6) (definition of school resource officer)
• Tenn. Code Ann. § 49-6-4203(a), (b), (e)(1) (legislative intent and findings, School Security Act)
• Tenn. Code Ann. § 49-6-4204(a), (b), (c), (d) (authority to search, reasonable suspicion, posted notice)
• Tenn. Code Ann. § 49-6-4209(a), (b) (duty to report reasonable suspicion of weapons)
• Tenn. Code Ann. § 49-6-4210 (disposition of weapons and drugs found during search)
• Tenn. Code Ann. § 39-17-1307, -1309 (weapons offenses)
• Tenn. Code Ann. § 39-17-418 (controlled substances)
• Tenn. Code Ann. § 49-2-303(b)(1) (principal's duty to supervise)
• Tenn. Code Ann. § 38-8-101(a)(1) (responsibilities of police officers)
• Tenn. Code Ann. § 40-7-101 (private-citizen arrest)
• Tenn. Code Ann. § 40-7-113(a), (b) (delivery of arrestee to officer; magistrate)
• Tenn. Code Ann. §§ 62-35-101 to -142 (Private Protective Services Licensing and Regulatory Act)
• Tenn. Code Ann. § 62-35-102(16)(C); § 62-35-103; § 62-35-114
• New Jersey v. T.L.O., 469 U.S. 325 (1985) (U.S. Supreme Court)
• R.D.S. v. State, 245 S.W.3d 356 (Tenn. 2008) (Tennessee Supreme Court)
• State v. Daniel, 12 S.W.3d 420 (Tenn. 2000) (Tennessee Supreme Court)
• D.I.R. v. State, 683 N.E.2d 251 (Ind. Ct. App. 1997) (Indiana Court of Appeals)
• Tenn. Att'y Gen. Op. 03-018 (Feb. 19, 2003)
• Tenn. Att'y Gen. Op. 03-022 (Feb. 25, 2003)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-021.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
February 24, 2014
Opinion No. 14-21
Searches and Arrests on School Property

QUESTIONS

1. Do public school students have any expectation of privacy in their assigned lockers on school property?

2. Must a principal or duly authorized School Resource Officer (SRO) have reasonable suspicion before ordering a search of a student's locker?

3. May a principal or superintendent delegate the authority to a school employee to order a search of students or students' property on school grounds? If not, what are the legal consequences in the event illegal drugs, weapons, or contraband are discovered pursuant to a search ordered by a school employee other than the principal?

4. Must a principal who has reasonable suspicion that a student is or has violated Tenn. Code Ann. § 39-17-1307 or § 39-17-1309 by possessing or carrying weapons on school grounds, buildings, or structures report his or her reasonable suspicion to the appropriate law-enforcement officer?

5. May a principal or school official retain possession and custody of a weapon, illegal drug, or contraband discovered on school property pending resolution of the school's administrative or disciplinary proceedings?

6. If a law-enforcement officer wishes to interrogate a student at school concerning a crime committed outside school hours and unrelated to school activities, must the principal allow such an interrogation to occur on school property?

7. If a principal agrees to allow a law-enforcement officer to interrogate a student at school about an unrelated crime committed outside school hours, must the principal first notify the child's parent, guardian, or custodian, or may the principal defer to the officer's instruction not to make such notifications?

8. If a principal requests law-enforcement officers to come to the school to investigate and interrogate a student suspected of a crime "involving" the school, must the principal first notify the child's parent, guardian, or custodian?

9. If a school system employs its own armed security guards, are those guards exempt from the provisions of Tennessee's Private Protective Services Licensing and Regulatory Act, Tenn. Code Ann. §§ 62-35-101 to -142?

10. Are armed security guards employed by a school system required to have insurance and, if so, in what amount?

11. When a security guard makes an arrest for a public offense and delivers the arrestee to a law-enforcement officer as required by Tenn. Code Ann. § 40-7-113(a), may the officer decline to take the arrestee before a magistrate if the officer has reason to believe that the arrest violated the individual's constitutional or statutory rights?

OPINIONS

1. Yes. However, students have a very low expectation of privacy in their assigned lockers.

2. Yes.

3. No, the principal's authority may not be delegated. The admissibility of any contraband seized during such a search could be challenged on Fourth Amendment grounds.

4. Yes.

5. No. The principal or school official must immediately turn over such contraband to law-enforcement personnel.

6. No. However, a school principal must permit the interrogation if the officer is acting under exigent circumstances or has probable cause to detain and question the student.

7. and 8. No. A school principal has no legal duty to notify a child's parent, guardian, or custodian before a child is interrogated by a law-enforcement officer.

8. No.

9. Yes. Armed security guards employed by a school system must maintain insurance coverage of $300,000 for bodily or personal injury and $100,000 for property damage.

10. Yes.

ANALYSIS

1. In New Jersey v. T.L.O., 469 U.S. 325 (1985), the United States Supreme Court declined to address whether public school students have a legitimate expectation of privacy in their lockers. 469 U.S. at 336 n.5 ("We do not address the question, not presented by this case, whether a schoolchild has a legitimate expectation of privacy in lockers, desks, or other school property provided for the storage of school supplies."). There is no consensus among lower federal courts and state courts regarding this issue. See Jason P. Nance, Random, Suspicionless Searches of Students' Belongings: A Legal, Empirical, and Normative Analysis, 84 U. Colo. L. Rev. 367, 411 n.255 (2013) (discussing cases). Nevertheless, Tennessee's General Assembly has adopted the "School Security Act of 1981" ("Act") "to secure a safe environment" for students and has declared its intent to "extend further, rather than limit, the authority of principals and teachers to secure order and provide protection of students within each school." Tenn. Code Ann. § 49-6-4203(a), (b). The General Assembly specifically found that "removal [of dangerous weapons, drug paraphernalia, and drugs] can only be accomplished by searches of areas of the school buildings or grounds where those materials may be stored." Tenn. Code Ann. § 49-6-4203(e)(1). The Act requires that notices be posted in the school building and parking lots advising that lockers, storage areas, containers, packages, and vehicles are subject to search for weapons, drugs, or drug paraphernalia. Tenn. Code Ann. § 49-6-4204(c), (d). Given the Act's broad authorization to search lockers "[w]hen individual circumstances dictate" and the Act's requirement that notices be posted in the school that lockers are subject to search, it is reasonable to conclude that students have a very low expectation of privacy in their assigned school lockers.

2. Under the Act, a search of "vehicles parked on school property by students or visitors, containers, packages, lockers or other enclosures used for storage by students or visitors, and other areas accessible to students or visitors" may be ordered by the school principal, and the search may be carried out in the presence of the principal or other members of the principal's staff. Tenn. Code Ann. § 49-6-4204(a). The United States Supreme Court held in T.L.O. that teachers and school officials do not need a warrant or probable cause before conducting such searches, but "the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search." 469 U.S. at 341. The Act also holds the principal to a standard of "reasonable suspicion" before conducting or authorizing a search. Tenn. Code Ann. § 49-6-4204(b). The Tennessee Supreme Court has held that searches conducted by a School Resource Officer must be based on reasonable suspicion. See R.D.S. v. State, 245 S.W.3d 356, 369 (Tenn. 2008). Therefore, a principal or SRO must have at least reasonable suspicion before ordering a search of a student's locker.

A "school resource officer" (SRO) is a law-enforcement officer who has been assigned to a school in accordance with a memorandum of understanding between the chief of the appropriate law-enforcement agency and the local education agency. Tenn. Code Ann. § 49-6-4202(6). The SRO program "places law enforcement officers in schools to perform traditional law enforcement duties in addition to teaching law enforcement-related classes and counseling students 'based on the expertise of a law enforcement officer.'" R.D.S., 245 S.W.3d at 367 (quoting J.W. ex rel. Watts v. Maury County, No. M2001-02768-COA-R3-CV, 2003 WL 1018138, at *2 (Tenn. Ct. App. Mar. 11, 2003)).

3. While a search of students or students' property may be conducted by other school staff or officials, the search must be authorized by the principal, and that authority may not be delegated to a school employee. Tenn. Code Ann. § 49-6-4204(a); see R.D.S., 245 S.W.3d at 369 n.6. The Act does not provide for the suppression of items seized during an unauthorized search. However, the admissibility of any contraband seized during such a search could be challenged on Fourth Amendment grounds in any subsequent prosecution against the student. Although the Supreme Court left open the question whether the exclusionary rule applies to school searches, T.L.O., 469 U.S. at 333 n.3, some courts have applied the rule to school searches. See, e.g., D.I.R. v. State, 683 N.E.2d 251, 253 (Ind. Ct. App. 1997) (reversing defendant's delinquency adjudication because the evidence was seized during unreasonable search in school).

4. The Act requires that a principal who has reasonable suspicion that a student is in possession of or is carrying a dangerous weapon on school grounds or within any school building must report that reasonable suspicion to "the appropriate law enforcement officer." Tenn. Code Ann. § 49-6-4209(a). Other school personnel have a duty to report such reasonable suspicion to the principal or, in the absence of the principal, to the principal's designee. Tenn. Code Ann. § 49-6-4209(b).

5. Any dangerous weapon or drug found in the course of any search by a principal or other school official must be turned over to the appropriate law-enforcement officer. Tenn. Code Ann. § 49-6-4210. Since possession of scheduled drugs and certain dangerous weapons by anyone is a criminal offense, such items should be turned over immediately upon discovery. See Tenn. Code Ann. § 39-17-418 (prohibiting possession of controlled substances); Tenn. Code Ann. § 39-17-1309 (prohibiting carrying weapons on school property). Principals and other school officials have no authority to retain contraband items pending resolution of the school's administrative or disciplinary proceedings.

6. The primary responsibilities of police officers are "the prevention and detection of crime, and the apprehension of offenders." Tenn. Code Ann. § 38-8-101(a)(1). In carrying out these duties, officers may question citizens, including school students, who are suspects, witnesses, or victims. Citizens questioned by the police have no obligation to respond to such inquiries. See State v. Daniel, 12 S.W.3d 420, 425 (Tenn. 2000).

A school principal's duties include "[s]upervis[ing] the operation and management of the personnel and facilities of the school." Tenn. Code Ann. § 49-2-303(b)(1). The principal also acts in loco parentis for the students and is responsible for securing order within the school and protecting students from harm while in his or her custody. Tenn. Code Ann. § 49-6-4203(b).

Within this framework, local education agencies may develop policies for responding to requests from law-enforcement agencies to interrogate students about crimes committed outside school hours and unrelated to school activities. In the exercise of the duty to supervise the operation of the school, a principal has discretion in deciding whether to allow the interrogation on school property, unless immediate police access to the student is required by law, court order, warrant, or an exigent circumstance justifying dispensation with the requirement to obtain a warrant.

7. and 8. Although a school principal acts in loco parentis for the students, no statute, rule, or court opinion imposes a duty on the principal to contact the parent, guardian, or custodian of a student who is interrogated by law-enforcement officers on school property.

8. The Private Protective Services Licensing and Regulatory Act, Tenn. Code Ann. §§ 62-35-101 to -142, governs the regulation and licensing of private security officers or guards. Section 62-35-103 provides the only exemptions from the application of the act. Unless the security officer or guard employed by the school meets any of these exemptions, he or she is subject to the provisions of the act. This Office has opined that private security officers assigned by a contract security company to provide services for a local, state, or federal government are not exempt from the licensing requirements of Title 62, Chapter 35. See Tenn. Att'y Gen. Op. 03-022 (Feb. 25, 2003).

9. Tenn. Code Ann. § 62-35-114 mandates that "[a]ll licensees and employers of private security guards/officers shall retain a certificate of insurance evidencing general liability coverage." The minimum amount of the insurance coverage is $300,000 for bodily or personal injury and $100,000 for property damage. Id.

10. Licensed security officers may make an arrest as private citizens as authorized under Tennessee law. Tenn. Code Ann. § 40-7-101. Furthermore, the licensing act specifically authorizes security guards to, inter alia, enforce state and local laws on private property. Tenn. Code Ann. § 62-35-102(16)(C). Under Tenn. Code Ann. § 40-7-113(a), a "private person who has arrested another for a public offense shall, without unnecessary delay, take the arrested person before a magistrate or deliver the arrested person to an officer."

Tenn. Code Ann. § 40-7-113(b) provides:

An officer may take before a magistrate, without a warrant, any person who, being engaged in the commission of a public offense, is arrested by a bystander and delivered to the officer, and anyone arrested by a private person as provided in §§ 40-7-109 – 40-7-112, and delivered to the officer.

This Office has opined that this statute permits a law-enforcement officer to refuse to take a person arrested by a private person or security officer before a magistrate:

A law enforcement official has the option to refuse to take a person arrested by a private person/security officer before a magistrate. . . . Because the statute [Tenn. Code Ann. § 40-7-113(b)] reads that an officer "may take before a magistrate," rather than "shall take before a magistrate," it renders the decision to take the arrested person before a magistrate discretionary on the part of the officer.

Tenn. Att'y Gen. Op. 03-018, at 6 (Feb. 19, 2003).

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

RACHEL E. WILLIS
Senior Counsel

Requested by:
The Honorable Mark S. Norris
State Senator
9A Legislative Plaza
Nashville, Tennessee 37243