E-Newsletter Edition: May 30, 2007
Always note that state law may be more restrictive on police power than the U.S. Constitution.
QUESTION:
Can a sworn Law Enforcement Officer come to a public school in the performance of his/her duty, in the course of a criminal investigation not related to the school, and ask to question or interview a student. What’s the consequences of a School Principal who does not allow such interview?
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ANSWER:
It is first important to note that there is not a lot of case law on this topic. Further, this tends to be a very state specific topic as rules of boards of education, juvenile law and criminal procedure are often left primarily to individual states. However, we will consider two South Carolina Attorney General Opinions, a South Carolina statute, an Arizona Supreme Court case and an Arizona Attorney General Opinion.
Constitutionally, the police can go to a school and ask to interview a student regarding criminal acts not related to the school. There is no particular constitutional problem with this. This is subject to the exceptions discussed below.
However, local boards of education are usually given broad latitude to enact rules, regulations and policies to assist with governing schools and facilitating the educational atmosphere of the school. Further, various attorney general opinions from South Carolina, indicate that schools act “in loco parentis” for students. “In loco parentis stands for the proposition that the parent specifically has delegated his authority to the teacher or school official so that he may restrain and correct deviant behavior in the interest of all the students at a school just as the parent could. Opinion dated January 23, 1979.” 1981 S.C. AG LEXIS 297; 1974 S.C. AG LEXIS 535. This means that schools are given the responsibility, delegated by parents, to care for the welfare of the students in their custody. Therefore, if a school system enacts a rule that restricts an officer’s access to student during school, then the police are probably going to be required to abide by that rule.
On the other hand, if the police have probable cause to take a student into custody for a crime, then the school administrator could probably not interfere with the officers. It is important to also remember that S.C. Code Ann. § 20-7-7205 provides the following:
When a child is taken into custody, the officer taking the child into custody shall notify the parent, guardian, or custodian of the child as soon as possible.
Thus, if an officer took a child into custody at a school, the officer is required to notify a parent as soon as possible.
In 2004, the Arizona Supreme Court addressed the interrogation of a juvenile at school while his mother was outside the room and not allowed in by the police. In re Andre M., Slip op. No. CV-03-0228PR (Arizona Supreme Court). In this case, officers were investigating a fight. When the mother left the school momentarily, the police began interviewing Andre. When she returned to the school, the police refused to allow her into the interview with her son. The Court noted that, in determining the voluntariness of a juvenile confession, the “greatest care must be taken to assure that the admission was voluntary, in the sense not onl y that it was not coerced or suggested, but also that it was not the product of ignorance of rights, or of adolescent fantasy, fright or despair.” The Court then held that when the police do not have good reason for excluding a parent, that they are attempting to establish a coercive atmosphere. In this case, the Arizona court excluded the confession.
In light of this Arizona Supreme Court opinion, the Attorney General of Arizona was asked for an opinion regarding, among other issues, whether a school official must comply with an officers demand to interview a student. The opinion states that if officer are seeking only to interview a student, the officers are subject to the school policy regarding such access to students. However, officer seeking to make an “arrest”, have immediate access to the student at issue. Arizona Attorney General Opinion I04-003.
