Could Maryland let school principals search a student based on 'reasonable belief' instead of the stricter 'probable cause' standard?

Plain-English summary

Governor Harry Hughes asked the Attorney General to review House Bill 1514, which would amend §7-307(a)(1) of the Education Article to let a principal, assistant principal, or school security guard search a student on school premises based on "reasonable belief" that the student possessed something whose possession was a crime, replacing the existing "probable cause" standard. The opinion approved the bill as constitutional. It noted that while some case law treated "reasonable belief" as essentially synonymous with "probable cause," the bill's legislative history made clear the General Assembly meant to adopt a genuinely lower standard than probable cause for student searches, responding to a Court of Special Appeals decision that had applied the stricter statutory probable-cause standard to exclude evidence found in a student search. The opinion concluded that a lower "reasonable belief" standard was constitutionally permissible because most courts to address student searches had held the Fourth Amendment applies in the school setting but, given school officials' responsibility for student safety and discipline under the in loco parentis doctrine, permits searches based on reasonable cause to believe contraband would be found rather than requiring full probable cause.

Currency note

This opinion was issued in 1982. 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.

This opinion reviewed House Bill 1514 as introduced in the 1982 Maryland General Assembly, which was signed into law on June 1, 1982, as Chapter 724, Laws of Maryland 1982, effective July 1, 1982. Fourth Amendment case law on student searches, including the U.S. Supreme Court's own later rulings in this area, and Maryland's own §7-307, have had decades to develop since 1982. Anyone researching the current constitutional standard for school searches of students should verify current federal and Maryland case law rather than relying on this opinion's 1982 analysis of a since-superseded legal landscape.

Common questions

Did Maryland students lose their Fourth Amendment rights while on school property?
No. The opinion reaffirmed that public school students do not shed their constitutional rights on school property, citing Goss v. Lopez, Tinker v. Des Moines School District, and In re Gault, and recognized that the Fourth Amendment's protection against unreasonable searches applies to students.

So how could the state lower the search standard below probable cause?
The opinion explained that the extent to which the Fourth Amendment applies to student searches was not entirely settled, and that the majority of courts to address the question, applying the in loco parentis doctrine (under which school officials stand in place of parents and are responsible for student safety, health, and discipline), had approved school searches based on "reasonable cause to believe" contraband would be found, a standard more relaxed than the probable cause required for searches by police.

What prompted this bill in the first place?
The opinion pointed to a 1981 Court of Special Appeals decision, In re Dominic W., which had applied the Fourth Amendment's exclusionary rule to suppress evidence from a school search, relying at least in part on the fact that the existing version of §7-307 itself required probable cause. The legislature's amendment was meant to lower that statutory bar going forward.

Did the opinion think the new "reasonable belief" language was perfectly clear?
Not entirely. The opinion noted that some case law had historically treated "reasonable belief" as essentially synonymous with "probable cause," which could have undercut the bill's purpose, and it recommended that §7-307 be clarified in a future legislative session to more precisely spell out what the "reasonable belief" standard required of school officials.

Background and statutory framework

Under the version of §7-307(a)(1) of the Education Article then in effect, a principal, assistant principal, or school security guard could search a student on school premises only if there was "probable cause to believe" the student possessed something whose possession was a state crime. House Bill 1514 would replace that language with a requirement of "a reasonable belief" of the same thing. The opinion recognized that case law, including Riley v. State, had sometimes used "reasonable belief" as effectively equivalent to "probable cause," which might have suggested the amendment changed nothing in substance. But applying the statutory-construction principle that the enactment of an amendment itself signals an intent to change the existing law, the opinion concluded the General Assembly clearly meant the new language to permit searches on a standard lower than probable cause, a conclusion reinforced by the bill's history following the Court of Special Appeals' 1981 decision in In re Dominic W., which had suppressed evidence from a student search because the existing statute itself required probable cause.

Surveying the case law on Fourth Amendment limits on student searches, the opinion found courts had reached varying positions, ranging from treating school searches as private, parental searches outside the Fourth Amendment entirely, to requiring full probable cause, but that the majority position, reflected in decisions like Jones v. Latexo Independent School District, M.M. v. Anker, Bilbrey v. Brown, and State v. Young, held the Fourth Amendment applies but permits a relaxed "reasonable cause to believe" standard rather than full probable cause. The rationale for this middle position, as explained in cases like Bellnier v. Lund and Picha v. Wielgos, was that under the in loco parentis doctrine, school officials bear responsibility for the health, safety, and discipline of students during school hours, which justifies greater flexibility in applying Fourth Amendment reasonableness in the school setting than would apply to an ordinary police search. Based on this weight of authority, the opinion concluded House Bill 1514's "reasonable belief" standard was constitutional, while suggesting the General Assembly revisit and more precisely define that standard at a future session to give clearer guidance to school officials applying it.

Citations

Statutes:

• §7-307(a)(1) of the Education Article
• Chapter 724, Laws of Maryland 1982

Cases:

• Riley v. State, 179 Md. 304 (1941)
• In re Dominic W., 48 Md. App. 236 (1981)
• Goss v. Lopez, 419 U.S. 565 (1975)
• Tinker v. Des Moines School District, 393 U.S. 503 (1969)
• In re Gault, 387 U.S. 1 (1967)
• Bellnier v. Lund, 438 F.Supp. 47, 52 (N.D.N.Y. 1977)
• Jones v. Latexo Independent School District, 499 F.Supp. 223, 236 (E.D. Tex. 1980)
• M.M. v. Anker, 607 F.2d 588, 589 (2d Cir. 1979)
• Bilbrey v. Brown, 481 F.Supp. 26, 28 (D.Or. 1979)
• State v. Young, 216 S.E.2d 586 (Ga. 1975)
• Picha v. Wielgos, 410 F.Supp. 1214 (N.D.Ill. 1976)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Education—Constitutional Law—Criminal Law—Student Searches—Fourth Amendment—Statute May Authorize Searches Based on "Reasonable Belief"

May 18, 1982

The Honorable Harry Hughes
Governor

We have reviewed and approve for constitutionality and legal sufficiency House Bill 1514 (Public Schools—Student Search). In so doing, we recognize and have affirmatively resolved the question of whether it is constitutionally permissible to substitute a lesser standard than probable cause for student searches.

I
The Proposed Amendment

House Bill 1514 would amend §7-307(a)(1) of the Education Article as follows:

"A principal, assistant principal, or school security guard of a public school may make a reasonable search of a student on the school premises if he: [has] HAS [probable cause to believe] A REASONABLE BELIEF that the student has in his possession an item, the possession of which is a criminal offense under the laws of this State."1

Case law suggests that the term "reasonable belief" often is considered to be synonymous with "probable cause". See Riley v. State, 179 Md. 304 (1941). Arguably, therefore, the amended statute would continue, in effect, to require that probable cause be present before a school official may conduct a student search.

1 Brackets indicate matter deleted from existing law. Capitals indicate matter added to existing law. Underlining indicates amendments to bill.

The colon following the word "he" should have been deleted when the bill was amended.

Nevertheless, the history of the bill, indeed, its very enactment, makes it clear that the legislative intent was to permit student searches where less than probable cause exists. See, e.g., 1A Sutherland, Statutory Construction, §22.30 (C. Sands 4th ed. 1972) ("mere fact that the legislature enacts an amendment indicates that it thereby intended to change the original act by enacting a new right or withdrawing an existing one").

Therefore, we must address the question of whether it is constitutionally permissible to substitute a standard less than probable cause for student searches.

II
Discussion

The case of In re Dominic W., 48 Md. App. 236 (1981), is the only reported decision in Maryland concerning §7-307. In that case, the Court of Special Appeals held that the Fourth Amendment exclusionary rule applied to evidence impermissibly seized by a school official.

In its decision, the Court of Special Appeals found that there had been no probable cause for the search in question; therefore, the search and seizure was impermissible. It is not altogether clear from the opinion whether the Court believed that the probable cause standard was constitutionally required by the Fourth Amendment or was merely a statutory requirement imposed by then §7-307. The Court's opinion, however, suggests the latter to have been the case: in applying the Fourth Amendment exclusionary rule, the Court based its decision, at least in part, on the fact that "the legislature itself required probable cause to exist before the search could be made". 48 Md. App at 239. Therefore, the question remains whether the General Assembly may in effect overrule the decision by providing for a lower standard for student searches.

It is well settled that public school students do not shed their constitutional rights when they are on school property. See Goss v. Lopez, 419 U.S. 565 (1975); Tinker v. Des Moines School District, 393 U.S. 503 (1969); In re Gault, 387 U.S. 1 (1967). Among those rights are the Fourth Amendment's guarantee of freedom from unreasonable searches and seizures.

Nevertheless, the extent to which the Fourth Amendment applies to student searches is not entirely settled. As discussed in Bellnier v. Lund, 438 F.Supp. 47, 52 (N.D.N.Y. 1977):

"The cases which have dealt with the issue have reached diverse results, relying upon various theories, which can be generally placed into the following categories: 1) the Fourth Amendment does not apply, as the school official acted in loco parentis (private search); ... 2) the Fourth Amendment applies, but the Exclusionary Rule does not; ... 3) the Fourth Amendment applies, but the doctrine of in loco parentis lowers the standard to be applied in determining reasonableness of the search; ... 4) the Fourth Amendment applies in full, requiring a finding of probable cause in order for a search to be reasonable." (Citations omitted.)

The majority position appears to be that the Fourth Amendment applies, but that a lesser standard than probable cause is permissible: "The courts have generally approved searches conducted in schools on the basis of 'reasonable cause to believe' that contraband would be found, rather than requiring that the stricter standard of probable cause be met." Jones v. Latexo Independent School District, 499 F.Supp. 223, 236 (E.D. Tex. 1980). Accord M.M. v. Anker, 607 F.2d 588, 589 (2d Cir. 1979); Bilbrey v. Brown, 481 F.Supp. 26, 28 (D.Or. 1979); State v. Young, 216 S.E.2d 586 (Ga. 1975).

The rationale for this position is that, under the in loco parentis doctrine, school teachers and administrators are responsible for the health, safety, and conduct of students during school hours, which gives them authority to impose discipline and maintain order. See Picha v. Wielgos, 410 F.Supp. 1214 (N.D.Ill. 1976). These interests justify greater flexibility in applying the Fourth Amendment in a school setting. See, e.g. Bellnier v. Lund, 438 F.Supp. at 53.

III
Conclusion

For these reasons, therefore, we conclude that the "reasonable belief" standard adopted by House Bill 1514 is constitutional.2

Stephen H. Sachs, Attorney General
Linda H. Lamone, Assistant Attorney General
Avery Aisenstark
Principal Counsel,
Opinions and Advice

Editor's Note: On June 1, 1982, House Bill 1514 was signed into law as Chapter 724, Laws of Maryland 1982, effective July 1, 1982. The preceding Opinion was originally written as a bill review letter; because of the importance of the issues addressed, however, it is published here in a slightly revised format.

2 In order to give guidance to school officials, however, we suggest that §7-307 be clarified at the next legislative session to more precisely indicate what is required by the "reasonable belief" standard.