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A student works on a laptop in a classroom in Newlon Elementary School, which is one of 55 Discovery Link sites set up by Denver Public Schools where students are participating in remote learning.

The Court of Appeals has determined Denver Public Schools security officers performed an unconstitutional search of a student's backpack based on a report from the state's confidential tip program, Safe2Tell.

A three-judge panel on Thursday ruled that a warrantless search of a student is justified if there is reasonable suspicion the search will turn up evidence that a student violated the law or the rules of their school. That was not the case, the appellate court concluded, when school security used an old, unverified tip to uncover marijuana in the student's possession. 

The panel also flatly rejected an argument from the Colorado Attorney General's Office that school officials are exempt from the normal rule that suppresses evidence from unlawful searches and seizures.

"While we recognize the importance of Safe2Tell’s role in preventing school violence, investigations based on Safe2Tell tips by DPS security officers and other school officials must occur within the bounds of students’ Fourth Amendment rights," wrote Judge Daniel M. Taubman in the appellate panel's Oct. 21 opinion.

Safe2Tell originated after the Columbine High School mass murder in 1999. Its intent was to break the "code of silence," in which other students typically know about violent incidents in schools before they happen, but are reluctant to report. The program operates through the attorney general's office and received 20,822 confidential tips during the 2019-2020 school year, the bulk of which pertained to suicide threats, drugs or bullying.

A high school student in Denver, identified as C.C-S., reportedly appeared in a Snapchat video shooting a firearm out of a car window in early 2018. A Safe2Tell tip about the video made it to school district security roughly one month later. By then, the self-deleting video was already gone.

The school's dean told a security officer that C.C-S. had previously brought to school "drugs and things like that." Based on that comment, the Safe2Tell tip, and the officer's own policy of searching students after reports of drugs or weapons, two of the school's security personnel took C.C-S. to an office and informed him they would search his backpack.

C.C-S. refused to consent and attempted to leave, but the staff prevented him. Eventually C.C-S. admitted he had drugs in his backpack. The officers found marijuana and drug paraphernalia in the backpack — but no weapon, as the tip originally suggested.

Although C.C-S. claimed the search was unconstitutional, Denver Juvenile Court Judge Donna J. Schmalberger found the officers had sufficient justification for their actions. She adjudicated C.C-S. delinquent on drug offenses, which is the juvenile equivalent of finding a defendant guilty.

The student appealed, arguing his admission to officers about the drugs in his backpack was the result of his unreasonable detention. Further, he claimed that the decision to search his backpack stemmed from an old tip and an irrelevant comment from the dean. 

Although a warrantless search by police must be based on probable cause, the U.S. Supreme Court has clarified that school officials may conduct reasonable searches out of a need to "maintain order." In deciding whether a search is reasonable, the state Court of Appeals weighed the specific nature and timing of the tip, as well as the other evidence the officer knew about.

The appellate panel identified two primary reasons why the search of C.C-S. failed to meet that standard. First, the Safe2Tell tip was a month old, the video of C.C-S. allegedly shooting the firearm was gone, and there was no indication C.C-S. had brought the gun onto campus. Second, the dean's comment about C.C-S. previously bringing drugs to school was not a reasonable basis for suspecting he would have a gun in his backpack.

The security officer's decision to search the backpack "was based at most on a stale Safe2Tell tip founded on a Snapchat video that was no longer accessible and C.C-S.’s alleged prior behavior. Taken together, these factors were insufficient to provide reasonable suspicion," wrote Taubman, a retired judge who sat on the panel at the chief justice's assignment.

Prosecutors alternatively asked the appellate judges to uphold the warrantless search because C.C-S. had admitted to possessing drugs. But because C.C-S.'s detention was not based on reasonable suspicion in the first place, law enforcement could not use statements he made during that period, the panel determined.

Finally, the panel rejected the view of the attorney general's office that unlawfully-obtained evidence should not be suppressed when a school official searches a student. The U.S. Supreme Court, Taubman countered, has applied the requirements of the Fourth Amendment to government generally, not to police specifically.

"Its application here is especially appropriate since school security officers, whether acting in concert with the police or not, are governmental actors," Taubman explained, adding that suppressing evidence from unconstitutional searches and seizures of students would serve to deter misconduct by school officials.

Matthew Cron, a civil rights lawyer at Rathod Mohamedbhai LLC, said the panel's opinion reflected the U.S. Supreme Court's sentiment in a landmark Vietnam War-era free speech case that students do not abandon their constitutional rights at the schoolhouse door.

"While there may be circumstances by which an anonymous Safe2Tell tip by itself could constitute grounds for school officials to search and seize a student, school officials will face an uphill road in proving the reasonableness of a search or seizure when relying only on a Safe2Tell tip," Cron said.

The panel ordered a new trial for C.C-S.

The case is People in the Interest of C.C-S.

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