Police Search High School, Pat Down 900 Students (Audio)

for hours and padding down each of the students. And do police need a search warrant to collect a DNA sample from the door handle of a car that's left in a parking lot. That's coming up on Bloomberg Law, But first check on the markets with Bloomberg's Charlie Pellett. All right, thank you very much, Greg's store. Thank you, June Grosso. We have got the DOW, the SMP and

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Imagine sending your children to high school and learning that police had put the school on lockdown for several hours while they came in with drug dogs and patted down each of the nine students, some aggressively any no illegal substances parents have. Students in Fork County High School in Georgia were furious and some are suing, but the police are defending their actions. Add this fact to the equation.

It's the second time in a month that a search was conducted at the school, although the first time there were no path downs. Joining us our former federal prosecutor George Newhouse, a partner at Denton's, and Laura Donahue, professor at Georgetown Law School, George Sheriff Jeff Hobby, said the invasive searches were necessary after arrest made in a series of local burglaries revealed what he called drug activity at the school, and that as long as a school administrator

was present, the search of the students was legal. What's your response to that? That is not clear at all. I would actually disagree with that assertion. Certainly, they had legitimate need to do this kind of investigation, but as far as I can see, particularly a pat down search. Now, remember a pat down search is not a full blown

Fourth Amendment search. So it's and it's justified under the Constitution, but it requires at least a reasonable suspicion that a particular individual or suspect has contraband or a weapon or some something like this. It appears that this search is way overbroad. It's not done on consent, and frankly, it probably resulted in a Fourth Amendment violation of the various students who were subjected to it. Laura, at risk of

of acting like I'm on the side of the police here. Uh. Isn't it established in the law though, that that students have lesser lower level of constitutional rights than somebody who's just walking out on the street. Uh. So, students do have a lesser constitutional rate, but they do have a constitutional right. The Fourth Amendment protections apply in public school systems.

So this has been long established. So the due process clause incorporates the build rights against the states, and then for Ohio, you know, the Fourth Amendment now applies h to the to the states and students particularly. There's a case called Tinker for Sa Moine Independent Community School District in nine nine that said, you know, no, as students don't shed their constitutional rights at the school house gate. So the standard though, of reasonableness here is different for

school administrator than for the police. So for a school administrator to do a pat down, it has to be reasonable in light of whether it's justified at the inception and reasonable in scope and under those criteria. It might be reasonable in scope to do a pat down, but that's different from the police. For the police to do it, so it matters who's doing the search. For the police to do it, they have to have probable cause in order to do a search, which is which is a

higher standard. George, When you say pat down, I'm wondering, you know, I'm thinking of a pat down like you've seen in a TV show. In this case, they admitted the police that some of the packdowns were especially aggressive, and some reports are that the searches ex tended to the girl's bras and the inside of the boys and girls pants and thighs. Is that a pat down? Well,

it's a great question, June. And remember the pat down search or stop and frisk goes back to a Supreme Court case called Carry versus Ohio, which is at least thirty or forty years old. And in that case, it was a very limited search. It was literally a a officers stopping a suspect he had reasonable suspicion to be concerned for his safety and the intrusion of the search

was extremely limited. So this these aggressive searches, and certainly, as you've described it, I would believe that would be a full blown Fourth Amendment search that would require probable cause or some exception to the warrant requirement that would otherwise definding on the police. And I completely agree the

students have Fourth Amendment rights like anyone else. And there may be in some circumstances administrative search is done by school officials, which are not really done necessarily for law enforceable purposes. Could be said duct to a more lenient standard. But um, the kind of search that you're describing intrusion would clearly trigger Fourth Amend and interest, Laura, I think

this may be factually disputed. But if school administrators were there watching the police, does that help police at all in terms of their their justification? No? No, Actually, the courts have come out instaid just standing there is not sufficient to trigger, for instance, increased Fourth Amendment protection. So similarly, it would not be sufficient for a reduced standard of just reasonable suspicion to apply to the search itself. Um, and as Georgia is saying, the intrusiveness of the search

actually is the key point. So there there having cases where schools have for instance looked inside um, the band you know going around in the pants or in girls bras and this has been ruled to be unconstitutional for them to do that. The other point that's worth bringing up is it's also not sufficient for the reasonableness prong even for school administrators to say that somebody hangs out with somebody else and therefore they've waived any protections against search.

So that's actually an insufficient reason to say it's a certainly thing that they go to the same school is even one step removed from that. So I would really question the constitutionality of these actions. And I just want to add that the school administrator in this case said he did not give any consent to the police to do any pat downs. Coming up on Bloomberg law, what kind of a search by police constitutes a trespass and

a Fourth Amendment search? How about swabbing the exterior door handle of a car parked at a mall to collect DNA? But now the latest world of national news from Nathan Hagar in the Bloomberg News Room in Washington, d C. Nathan June. Thanks. President Trump has just arrived in Atlanta, where he will become the first sitting president since Ronald Reagan to address the National Rifle Association's annual convention. President will also attend a private fundraiser for a Republican Karen Handle.

She's headed into a runoff special election for the congressional seat that was left empty by Health and Human Services Secretary Tom Price. Now before he arrived in Atlanta, the President signed another executive order. This one aimed at expanding oil and gas drilling in the Arctic and other federal waters were unleashing American energy and clearing the way for thousands and thousands of high paying American energy jobs. This order reverses an effort by then President Obama to make

most federal waters off limits to drilling indefinitely. California Attorney General Javier Bassara released a statement saying his state will vigorously oppose offshore drilling shut down averted. First, the House, now the Senate have passed a one week spending bill to keep the government open. Never too late to do the right thing, if my mom used to say, and the right thing to do today is to pass this rule. Pass this bill, give our friends, the appropriators the time

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The radio blows Mobile Lab and on your radio's a Bloomberg Business Lack. Bloom Bloomberg World Handquaters. I'm Charlie Pellock Nezdak trading close to a record. The downin SMP lower little change right now. Treasuries are dropping, oil closing in on fifty dollars of barrel even after the US economy report of its slowest pace of expansion in three years. The tenure yield two point three percent, Gold up two dollars, the ounce to twelve sixty seven up two tenths of

one percent. West Texas Intermedia crewed up thirty cents of arrel seven on w t I up six tenths of one percent. The SMP five hundred index down four four down two tenths of one percent down. Industrials down forty also a drop of two tenths of one percent. Nastack, Laura Little changed down now by half a point. I'm Charlie Pelotan That gregg store in June Grosso is a Bloomberg business flash. Thank you so much, Charlie. When does

police action count as a Fourth Amendment search? The Supreme Court has said the government commits a search when it trespasses on a person's houses, papers, and effects, among other things. But here's the problem. What's the test for a trespass? In a new decision of Louisiana, federal judge found that the police swabbing the exterior door of a murder suspects car parked in a mall for DNA was a Fourth

Amendment search because it trespassed on the car. We've been talking to former federal prosecutor George Newhouse, a partner at Denton's, and Laura Donahue, a professor at Georgetown Law School. George, this investigation is the subject of the Discovery Channel TV show Killing Fields. Tell us what happened? Well, the individual Schmidt, was suspected of having committed a murder and the police decided that they needed his d N a UH to

obviously compare against samples collected in the evidence. So they went to his car and on the external side of the car, the door handle, they swabbed UH and obtained

his DNA. So they didn't actually go inside the car, UH, they simply swabbed the X the handle and obtained DNA, and he then brought a lawsuit inter this wasn't necessarily at this point the result of the criminal prosecution that Schmidt sues the police and says, you've violated the Fourth Amendment by conducting a search on the external part of my car and my DNA is private and you didn't have probable cause, which they didn't or warrant to obtain it.

So that's where the issue was fronted, and the judge basically actually ironically dismissed the lawsuit, but after finding that there had been in fact of search. So it's an interesting issue of continuing march of technology because you know, twenty five years ago this would never have even been an issue. Laura, I think it is the case that, in correct me if I'm wrong, that if somebody you know, took a sip out of a plastic cup and threw it in the trash, there'd be no problem with with

police getting the DNA from that cup. How did the judge here describe why a car in a parking lot might be different from that cup in a trash can. Yeah. So the case that you're referring to is a case called Cerralo where somebody had put garbage out on the curb site and the court, in a in a fairly closely uh closely divided court decided that that was not a search. But in this case, there was another case that's interviewing in. There's a case called United States First Jones.

And in that case, there was a suspected drug dealer in Washington, d c. And the police went to get a warrant to put a bug on the perspected drug dealer's wife's car, for they had a ten day period to put that device on the car. And outside of that ten day period, they put the device on the car, and then they followed that car around for twenty eight days.

And when that came to the Supreme Court, Justice Scalia offered the opinion of the court which said that it was a trespass because attaching a deeper to the outside of the car was a trespass on the car itself. And he got a majority. So five justices went with him on that case that that actually this was a trustpass.

So what's interesting if there's there's another case, kind of a companion case that that didn't come up in this contexts that Maryland versus King, where you have somebody who had had been a suspected of assault and he was arrested, and when he was arrested, they did a slab of his cheek and got his DNA and when they ran at DNA, they found that it matched the evidence in a rape case and they used that evidence to convict him.

So when the question came to the court, can you take DNA evidence and use it for this other crime? You know, is as a search again? Hight Court five four. Justice Kennedy authored the opinion. He said, well, there's a legitimate state interest. H It's not invasive enough when you take DNA from inside somebody's mouth. It was collected during

the booking and arrest. Therefore it could be used. But Justice Scalia authored the defense there and he said, no, the Fourth Amendment protects the search of a person for evidence of a crime without probable cause, and that this was operating as a general warrant. So the question here is between this US versus Jones case, where touching the outside of a car as a trespass and this DNA case, where it was actually the desfense that said this is

a search to actually take somebody's DNA. So, George, it seems as if there's room to disagree with the way the judge decided this case. I mean, do you think that there's room to disagree? Not only is there room, but I do disagree with the Federal District judge's opinion, and I do not believe that's the Supreme Court will follow this this line of thinking. Um. As Laura correctly

points out. The real problem, however, is this current standard of determining whether there's a legitimate fourth amend interest by coming up with this property that's trust task to chattels, which is just an archaic term of course for property. UM.

And that was in fact the rationale and Jones. But in this case, I think the the answer is going to be if you leave something in the public, whether it's trash put at the side of the curb or the external the exterior of your car, I don't think the Court's going to say that we have a continuing Fourth Amendment right of privacy, and I think that legitimate police investigations where they are sampling or getting evidence from

something that you consciously put in the public. Now you may not realize that your DNA is out there as well, but it is out there. It would be available for anyone to, you know, come by and swab the exterior handle of your of your of your car door. So I think at the end of the day, the Supreme Court will probably not follow this this logic. Laura, do you agree with that, and if so, how do you distinguish it from the Jones case? I mean both of their cases where there wasn't any damage to the car.

In Jones it was just a device put on the car. Um If that was the Fourth Amendment action there, why wouldn't this be Oh, I do disagree, respectfully, George. I disagree with that because in this case, so you have somebody stopping the outside of a car and getting very personal information. And the Fourth Amendment grants the right uh for people to be secure in their persons, houses, papers, and effects, and part of that right to be secure

in your person has control over your DNA. So just as the Justice Scalia in the descent in Maryland versus King pointed out this was a search to find out more about somebody's DNA and to identify people using DNA. And you combine that with the trust pass that goes on when you attach something to a car, which is the court's decision in this case. In addition, the idea of public verse private, this is one of many ways fourth Moment doctrine is really unsuited to a digital age.

There's this idea that when you're in your home your private, but when you leave your home, it's not a search because you're in public. Yet, a shadow majority and Jones recognized that following a car for twenty eight days, even though that car was on public streets, that there is a privacy interest in that. Now the Court has not fully moved in that direction. People point at this as a shadow majority in Jones, even though it's decided on

trustpass grounds. But I think the court, if you look at that case, in the Florida versus Riley case, which is has to do with a search of an individual's cell phone, the court is beginning to understand it in a digital age, not everything that's done in public can be collected twenty four seven, and there's no privacy interest entailed. You can learn a tremendous amount about an individual from what happens in public there's that kind of constant monitoring

is problematic. So I actually think the court might go a different direction and finally recognize that we can have a privacy interest in what we do in public space, and in this instance it has to do with the sanctity of the person their DNA. It's hard to think of anything more fundamental to personal privacy than your genetic material. I want to thank you both. It's good to have a difference of opinionency both sides. That's Laura Donna Hugh,

a professor Georgetown Law School, and former federal prosecutor. George Newhouse, a partner at Denton's. That's it for this edition of Bloomberg Law. We'll be back Monday at one pm Wall Street Time. In about fifteen seconds, Corey Johnson coming up with Bloomberg Markets. What's happening, Corey. Maybe Corey is is not right there, but I will tell you that a lot is going to be happening there in San Francisco. Corey Johnson and Carol Masser coming up on Bloomberg markets. This is Bloomberg