IRION, J., Dissenting. I respectfully dissent because my colleagues have approved an unwarranted expansion of the controlling Supreme Court case law, which permits suspicionless searches in public schools only under limited circumstances. I would conclude that the assistant principal’s search of Sean was unlawful because it was not pursuant to a valid policy of suspicionless searches and was not based on reasonable suspicion.
A. The Requirement of Reasonable Suspicion Was Not Satisfied
As my colleagues acknowledge, unless the assistant principal’s search of Sean was performed as a suspicionless special needs administrative search that meets the applicable constitutional requirements, the search is governed by the normal rules for individual searches of public school students set forth in New Jersey v. T. L. O. (1985) 469 U.S. 325, 333 [83 L.Ed.2d 720, 105 S.Ct. 733] (T.L.O.). Under T.L.O., a search by a public school official is permitted by the Fourth Amendment if “there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” (469 U.S. at p. 342.)
My colleagues do not attempt to argue that the search here met that standard. Indeed, it did not. According to the record, the only information that the assistant principal relied upon when deciding to conduct the search was that Sean had left and returned to campus. That information, in and of itself, does not raise a reasonable suspicion that a search of Sean’s pockets would reveal contraband or any other evidence of misconduct. As our Supreme Court held in In re William G. (1985) 40 Cal.3d 550 [221 Cal.Rptr. 118, 709 [192]P.2d 1287], applying the standard set forth in T.L.O., knowledge that a student “was tardy or truant from class provided no reasonable basis for conducting a search of any kind.” (’William G., at p. 566.)1
B. The High School’s Policy of Suspicionless Searches Is Not Constitutionally Valid
The question, therefore, is whether, as my colleagues contend, the case law approving suspicionless administrative searches under certain circumstances in school settings is applicable here. I conclude that it is not.
1. Supreme Court Authority Approves Suspicionless Searches in Schools Only in the Context of Drug Testing Programs
As the United States Supreme Court has explained, “[t]o be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing. . . . But particularized exceptions to the main rule are sometimes warranted based on ‘special needs, beyond the normal need for law enforcement.’ . . . When such ‘special needs’—concerns other than crime detection—are alleged in justification of a Fourth Amendment intrusion, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties. ... ‘In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.’ ” (Chandler v. Miller (1997) 520 U.S. 305, 313-314 [137 L.Ed.2d 513, 117 S.Ct. 1295], citations omitted (Chandler).)
The Supreme Court has approved suspicionless searches in public schools only in the context of drug testing programs imposed on students who wish to participate in school sports or competitive extracurricular activities, and only to address a demonstrated drug abuse problem among the student body. (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646 [132 L.Ed.2d 564, 115 S.Ct. 2386] (Vernonia)-, Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls (2002) 536 U.S. 822 [153 L.Ed.2d 735, 122 [193]S.Ct. 2559] (Earls). My colleagues rely on Vemonia and Earls to approve a school’s program of suspicionless searches not involving drug testing. However, in a persuasive opinion, the federal Eighth Circuit Court of Appeals in Doe v. Little Rock School Dist. (8th Cir. 2004) 380 F.3d 349, 352 (Doe), rejected a public school’s attempt to expand the holdings in Vemonia and Earls to justify a program of random suspicionless searches with similarities to the program at issue here. Doe concluded that it was not constitutionally permissible for a school to conduct searches of randomly selected classrooms in which students’ pockets, purses and backpacks were searched because of a generalized concern about weapons and drugs. (Doe, at pp. 351, 356.)
In my view, my colleagues undertake a far reaching and unprecedented expansion of Fourth Amendment doctrine by concluding that Vernonia and Earls authorize a high school to adopt a policy subjecting students returning to campus to suspicionless searches. “The touchstone of the Fourth Amendment is reasonableness . . . .” (Samson v. California (2006) 547 U.S. 843, 855, fn. 4 [165 L.Ed.2d 250, 126 S.Ct. 2193].) To determine whether a program of suspicionless searches in schools is reasonable, the Supreme Court has “conducted a fact-specific balancing” of the intrusion on the student’s Fourth Amendment rights against the promotion of legitimate governmental interests. (Earls, supra, 536 U.S. at p. 830.) The factors considered in this balancing process are the scope of the legitimate expectation of privacy at issue, the character of the intrusion that is complained of, the nature and immediacy of the governmental concern at issue, and the efficacy of the means employed for addressing that concern. (Vernonia, supra, 515 U.S. 646, 654-666; Earls, supra, 536 U.S. at pp. 830, 832, 834.) “[T]he proffered special need . . . must be substantial—important enough to override the individual’s acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment’s normal requirement of individualized suspicion.” (Chandler, supra, 520 U.S. at p. 318.)
2. The People Have Not Met Their Burden to Establish a Specific Concern Justifying the High School’s Policy of Suspicionless Searches
The Supreme Court has not hesitated to reject a program of suspicionless searches when the government has not provided evidence that the program is based on a well founded governmental concern. In Chandler, supra, 520 U.S. 305, the Supreme Court found unconstitutional a suspicionless testing program that required drug testing of candidates for designated state offices in Georgia. (Id. at pp. 308-309.) The state did not meet its burden of showing “a concrete danger demanding departure from the Fourth Amendment’s main rule” because there was no “demonstrated problem of drug abuse” among elected officials to “shore up an assertion of special need for a suspicionless [194]general search program.” (Id. at p. 319, italics added.) Further, the state did not demonstrate that the policy was “well designed to identify candidates who violate antidrug laws” or that it was “a credible means to deter illicit drug users from seeking election to state office.” (Ibid.)
The People here have not met their burden to establish that Sean’s high school has a special need to conduct suspicionless searches. The only evidence in the record regarding the purpose or need for the policy appears in a brief remark by the assistant principal. He testified that the goal of the policy is to “keep students that are on campus safe” and to ensure that “nobody’s bringing anything on campus they shouldn’t.” He provided no information about what type of contraband was being targeted or whether the high school had a demonstrated problem with students leaving campus and bringing back contraband.
My colleagues assume that “[p]lainly the purpose of the policy is to prevent students who have left and returned in violation of the school rules from bringing in harmful objects such as weapons or drugs,” and that the policy targets “a form of rule violation that can easily lend itself to the introduction of drugs or weapons into the school environment.” (Maj. opn., ante, at pp. 189, 190.) However, the record contains no evidence that Sean’s high school has a problem with weapons and drugs. Even if the court were to take judicial notice that schools generally face problems with drugs and weapons, the record contains no indication that the high school here has a specific problem with students who return to campus during the day possessing those items. (See Vernonia, supra, 515 U.S. 646, 649, 662-663 [student athletes targeted for drug testing because of the documented problem with drug use in that group and their role model status].) Thus, the record does not support a finding that the high school’s program of suspicionless searches addresses “a concrete danger demanding departure from the Fourth Amendment’s main rule.” (Chandler, supra, 520 U.S. at p. 319.)
Doe rejected a similar attempt, unsupported by the record, to invoke “weapons and drugs” as a justification for suspicionless searches. (Doe, supra, 380 F.3d at p. 356.) “While [the school district] has expressed some generalized concerns about the existence of weapons and drugs ....... there is nothing in the record regarding the magnitude of any problems with weapons or drugs that it has actually experienced. All schools surely have an interest in minimizing the harm that the existence of weapons and controlled substances might visit upon a student population, but public schools have never been entitled to conduct random, full-scale searches of students’ [195]personal belongings because of a mere apprehension.” (Ibid.)2 The federal Ninth Circuit Court of Appeals made the same point in B.C. v. Plumas Unified School Dist. (9th Cir. 1999) 192 F.3d 1260, in which it ruled that a random and suspicionless dog sniff search in a high school was unconstitutional. The dog sniffs were ostensibly directed at finding drugs, but the court noted that the record did “not disclose that there was any drug crisis or even a drug problem” at the high school, and thus “the random and suspicionless dog sniff search . . . was unreasonable in the circumstances.” {Id. at p. 1268.)
Stressing that proof of an actual need for a program of suspicionless search is required, the Supreme Court has stated that “where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as ‘reasonable,’ ” but “where . . . public safety is not genuinely in jeopardy, the Fourth Amendment precludes the suspicionless search.” 0Chandler, supra, 520 U.S. at p. 323.) The People here have not shown that the safety of the student body would genuinely be in jeopardy in the absence of a policy subjecting students to search when they return from off campus.
The People also have not established the efficacy of the policy for keeping drugs and weapons off campus. (See Vemonia, supra, 515 U.S. at p. 660 [inquiry includes “the efficacy” of the means selected by the government to address the identified need]; Chandler, supra, 520 U.S. at p. 319 [inquiring whether the policy was “well designed” and “a credible means” to meet its stated goal].) Without question, students who do not leave campus during the day can also bring contraband onto campus, either in the morning or after being truant for the beginning of day (thus qualifying as truants, but not students “retum[ing]” to campus). Therefore, the high school’s policy does not appear to be well designed to prevent the introduction of weapons and drugs on campus.3
[1963]. The High School’s Policy of Suspicionless Searches Significantly Intrudes on Students’ Legitimate Expectation of Privacy
The intrusiveness of the search and high school students’ legitimate expectations of privacy also lend support to a conclusion that the high school’s policy of suspicionless searches is not reasonable. (Vernonia, supra, 515 U.S. at p. 658 [examining “the scope of the legitimate expectation of privacy at issue” and “the character of the intrusion that is complained of’].)
Admittedly, “[s]tudents in public schools do indeed have lesser expectations of privacy than people generally have in public situations, due in large part to the government’s responsibilities ‘as guardian and tutor of children entrusted to its care.’ [Citation.] Public school students’ privacy interests, however, are not nonexistent.” (Doe, supra, 380 F.3d at p. 353.) “A search of a child’s person . . . , no less than a similar search carried out on an adult, is undoubtedly a severe violation of subjective expectations of privacy.” (T.L.O., supra, 469 U.S. at pp. 337-338, fn. omitted.) The Supreme Court has “take[n] notice of the difficulty of maintaining discipline in the public schools today” but has stated that “the situation is not so dire that students in the schools may claim no legitimate expectations of privacy.” (Id. at p. 338.)
My colleagues conclude that the intrusion on a student’s legitimate expectations of privacy in this case is minimal because the assistant principal’s search of Sean involved nothing more than an emptying of Sean’s pockets during which no touching occurred. I disagree, as my colleagues overlook three important points.
First, as demonstrated by what happened to Sean, the high school’s policy allows the results of the search to be shared with law enforcement and used as the basis for school discipline, making the search quite intrusive, although it may not be extremely physically invasive. Vernonia and Earls considered it highly significant when assessing the intrusiveness of the drug tests that the test results were not shared with law enforcement or used for school discipline. (Vernonia, supra, 515 U.S. at p. 658; Earls, supra, 536 U.S. at p. 833; see also Doe, supra, 380 F.3d at p. 355 [“Because [the school district’s] searches can lead directly to the imposition of punitive criminal sanctions, the character of the intrusions is qualitatively more severe than that in Vernonia and Earls.”].)
[197]Second, because my colleagues seek to justify the high school’s search of Sean on the ground that it was conducted pursuant to a constitutionally permissible policy of suspicionless searches, the inquiry is whether the policy sufficiently limits the intrusiveness of the searches. I would conclude that it does not. Although in Sean’s case the assistant principal chose to limit the search to an emptying of pockets, the policy itself contains no such limitation. Indeed, it broadly permits searches of a student’s “person, . . . possessions and vehicle,” and thus authorizes searches much more extensive than what happened to Sean.
Third, in assessing whether students in this case should have a legitimate expectation of privacy that would make the high school’s policy unreasonable, my colleagues appear to find it significant that “[t]he policy was written and made known to both students and parents,” and “[t]he students and their parents receive notice of the policy as part of the school’s behavior code.” (Maj. opn., ante, at p. 188.) However, this fact should have no legal impact on a student’s legitimate expectations of privacy. “The students are required by state law to attend school, and have not entered into a contract that incorporates the handbook or voluntarily assented to be bound by its terms. The lack of mutual consent to the student handbook makes it fundamentally different from an employee handbook, which may create an enforceable contract between an employer and employee under traditional contract principles. The [school] may not deprive its students of privacy expectations protected by the fourth amendment simply by announcing that the expectations will no longer be honored.” {Doe, supra, 380 F.3d at p. 354.)
My final concern with the intrusiveness of the high school’s policy is the significant discretion that it gives to school officials charged with administering it. Not only is the scope of the search unconstrained, the high school’s written policy does not state that all students who leave and return to campus will be searched. Instead it states that such students are “subject to” a search. The policy therefore leaves open the possibility that school officials will decide to conduct searches only of those students returning to campus whom they suspect might possess contraband or evidence of misconduct. That sort of discretion is constitutionally impermissible. There is a risk that an official could use the policy to target a specific individual for a search even though the official does not have reasonable suspicion as required by T.L.O., supra, 469 U.S. 325. As explained by the Supreme Court, “[ejxceptions to the requirement of individualized suspicion are generally appropriate only where the privacy interests implicated by a search are minimal and where ‘other safeguards’ are available ‘to assure that the individual’s reasonable expectation of privacy is not “subject to the discretion of the official in the field.” ’ ” (T.L.O., at p. 342, fn. 8, italics added.)
[198]Conducting the careful balancing required by the Supreme Court, I would conclude that the high school’s policy is not reasonable, and thus not permissible under the Fourth Amendment.4 I would therefore require a showing of individual suspicion as set forth in T.L.O., supra, 469 U.S. at pages 341-342. Because the record reveals that no reasonable suspicion was present here, I would conclude that the evidence obtained as a result of the search must be suppressed.
Appellant’s petition for review by the Supreme Court was denied March 30, 2011, S190301.
Case law from other jurisdictions also concludes that a student’s absence from campus, during the school day, without more, does not provide reasonable suspicion to justify a search under the Fourth Amendment. (Commonwealth v. Damian D. (2001) 434 Mass. 725, 730 [752 N.E.2d 679, 683] [“It was pure speculation to conclude that, because Damian was out of class for a period of time during the day, he was likely to have contraband.”]; State v. B.A.S. (2000) 103 Wn.App. 549, 553 [13 P.3d 244, 246] [“suspicion that B.A.S. had violated the closed campus rule did not provide reasonable grounds for concluding that a search would reveal evidence of that or additional violations of law or school rules”].)
In contrast, the Supreme Court in Earls and Vemonia found the drug testing policies to be constitutionally valid in light of the particularized evidence showing a need for'the drug testing policy. “In Vernonia, the record demonstrated that ‘a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion,’ ‘disciplinary actions had reached “epidemic proportions,” ’ and ‘the rebellion was being fueled by alcohol and drug abuse.’ [(Vernonia, supra, 515 U.S. at pp. 662-663.)] The Court emphasized, moreover, that the school district had particularly compelling safety concerns because its ‘athletes were the leaders of the drug culture’ and ‘drug use increases the risk of sports-related injury.’ [(Id. at p. 649.)] Similarly, in Earls, the school district had ‘presented specific evidence of drug use’ at its schools, leading to the district court’s finding that the school district was ‘faced with a “drug problem” when it adopted the policy.’ [(Earls, supra, 536 U.S. at pp. 834—835)].” (Doe, supra, 380 F.3d at p. 356, italics added.)
In my view, the wording of the school’s policy itself raises genuine questions about whether the purpose of the policy is to keep drugs and weapons out of the school. Thus, I cannot agree with my colleagues that “[p]lainly” the purpose for the policy is to keep weapons and drugs out of the school. (Maj. opn., ante, at p. 189.) The school’s search policy is set forth in a two-sentence paragraph in the student handbook. The first sentence describes the policy. [196]The second sentence states: “Any food or beverage which is obtained while a student is out of bounds/off campus will be confiscated and returned to the student at the end of their school day.” In light of this language, and absent any evidence to the contrary, the policy may in fact have been motivated by a desire to keep students from leaving campus during the day to buy food.
My colleagues rely heavily on In re Latasha W. (1998) 60 Cal.App.4th 1524 [70 Cal.Rptr.2d 886], which, citing Vemonia, supra, 515 U.S. 646, concluded that a policy of suspicionless metal detector search of students was constitutionally valid. I take no position on whether Latasha W. was correctly decided, as the holding in Latasha W. was based on the specific situation presented there. The constitutionality of any program of suspicionless searches depends on a balancing process with facts unique to that specific case, based on the factors set forth by the Supreme Court in the applicable case law.