Undercover Police Operations in Schools

Undercover Police Operations in the Schools

This article is reprinted with the permission of the National School Boards Association’s Council of School Attorneys. It originally appeared in Legal Guidelines for Curbing School Violence (NSBA, 1995). While the information presented strives to be accurate, it should not be taken as legal advice. Please consult a competent school attorney when specific questions or situations arise.

 

Richard A. Schwartz

Richard Schwartz & Associates

Raleigh, North Carolina

 

Throughout the United States many schools and law enforcement officials have joined forces in efforts to create drug free environments for students. Occasionally, these efforts may take the form of undercover operations. Typically in such operations, police officers or cadets go "undercover," posing as students for the purpose of gathering information about drug-related activities in the schools and to identify users, suppliers, or dealers of illicit drugs. Such undercover probes must be very carefully planned and meticulously executed to ensure the safety of the officers involved, the security of the operation and to avoid a myriad of potential legal challenges that may result from the operation.

The most successful undercover police operations require a close working relationship and a great deal of cooperation between school and law enforcement officials, and, at the conclusion of the operation, with court and juvenile officials. Undercover operations in schools can be initiated at the request of law enforcement officials or by school administrators approaching the police. Who initiates the operation may be significant to eventual legal challenges regarding entrapment or searches and seizures of materials since law enforcement officials generally must adhere to the "probable cause" standard to initiate a search, while school officials may conduct searches and seizures based upon "reasonable suspicion."

 

ADVANCE PLANNING

 

Goals

 

Advance planning of the undercover operation should focus on the needs of the community, the problems being encountered by the school system and the goals of the operation. School officials and the police should determine the focal point(s) of the investigation. The purpose could be, for example, to determine areas in and around school campuses where drug use is most prevalent; the types of drugs involved; areas where drug sales occur; the identity of drug users, suppliers or traffickers; and other such information relating to drug activities in and around the school. The goal of an operation might be simply to gather information that will enable school officials to battle drug use more effectively. Alternatively, the goal of an operation could be to identify and prosecute drug dealers, or, in some instances, to target specific individuals. (Where specific individuals are targeted, legal issues such as entrapment are more likely to arise.)

 

Funding

 

Planning of the operation must, of necessity, include the means to budget for and finance the probe properly. This can become an extremely delicate matter, since the financing of public school operations is subject to public scrutiny, while the nature of an undercover police operation requires secrecy.

 

Procedures

 

Advance planning and careful cooperation between school and police officials should include: 1) agreements on the qualifications and selection of the agents involved; 2) the standards for agent training; 3) agreements on when, how and under what circumstances the operation will be concluded; and 4) plans for cooperation in the prosecution of both juvenile and criminal court proceedings and violations of the school system's code of student conduct.

 

BOARD POLICIES

 

Before beginning an undercover operation, school officials would be well advised to review carefully all board policies that might be used or challenged as a result of the operation. If the operation results in arrests or indictments, defense lawyers will bring legal challenges not only before the criminal and juvenile courts but also in the school system's disciplinary proceedings. Well designed school policies in place before the operation can help to avoid due process challenges by students claiming that the policies are unconstitutionally broad, vague, or otherwise defective. Essential board policies are discussed below.

 

Application

 

Board policies should include a broad statement of application of school discipline rules. The school discipline rules or code of student conduct should specify that violations of board policies, the code of student conduct, or the laws of the State or federal government may result in disciplinary action in accordance with board policies.

 

Prohibited Conduct

 

Board policies should explicitly prohibit the use, transmittal, conspiracy to purchase or possess, possession, or being under the influence of drugs and alcohol. State law should be consulted and referred to define broadly the substances considered to be a "drug," beer, wine, or other alcoholic beverage. Prohibitions against the possession or sale of drug paraphernalia and counterfeit drugs should also be included.

 

Scope

 

The time period covered by the code of student conduct should be broadly worded to include the possibility of disciplining students for out-of-school conduct that has an impact in the school setting. The code of student conduct should apply specifically to:

 

• . . . any student in any school building or on any school premises before, during or after school hours, on any bus or other vehicle on which the student is being transported as part of any school activity, or during any school function, activity or event, or at any time when he is subject to the authority of school personnel, or to any student whose conduct at any time or place has a direct and immediate effect on maintaining order and discipline in the schools.

   

School Property

 

Additional board policies should make clear that school lockers are the property of the school system, that students use the lockers by permission of the school system, and that the lockers are subject to inspection at any time. When students are assigned lockers or locker combinations, it may be helpful to have students sign a statement setting forth their understanding of these terms.

Similarly, students could be required to sign an acknowledgement concerning the use of student parking lots. Such a policy or acknowledgment should explain that students are permitted to park on school premises as a matter of privilege, not of right, and that the school system retains authority to conduct patrols of student parking lots and inspections of the exteriors of student automobiles parked on school property. The policy also could require students to agree to provide access to the interior of vehicles parked on school property, upon request by a school official; the policy could note that refusal would subject the student to school disciplinary action.

 

Penalties

 

In addition to clearly spelling out prohibited activities, the board policy should impose specific sanctions which should be consistently enforced for all violations of the code of student conduct.

 

Due Process

 

The board's due process and appeal procedures also should be clearly defined and should allow for waivers of time limits for appeals in extreme circumstances. Particularly, if a large number of students is likely to be suspended all on the same day as a result of the undercover operation, it will be critical to have separate administrative authority to schedule appeal hearings within workable time limits.

 

Student Records

 

Prior to an undercover operation the board's policy regarding student records, their confidential maintenance, and provisions for the release of such records should be reviewed. The court and juvenile systems may request the student records or some other evidence of the scholastic and disciplinary background of a student when his case arrives in court. This is more likely to happen in connection with pre-sentencing investigations, deferred prosecution agreements, juvenile proceedings, etc.

School officials should be careful not to violate their student records policy or the Family Educational Rights and Privacy Act in releasing information about students who have been arrested or suspended as the result of an undercover operation. While law enforcement officials may not be subject to constraints regarding release of information about the arrest or indictments of particular students, school officials must be careful not to violate these rules by releasing similar information directly from the schools.

 

Police Investigations and Arrests

 

Finally, some boards have found it helpful to adopt careful guidelines regarding investigations and arrests by police officials in the school setting. Such a policy could cover the subjects of investigation, interrogation, custodial interrogation, Miranda warnings, contact with parents, circumstances under which principals or the school officials will or will not be present during police interviews, and other such matters.

 

SAFETY CONCERNS

 

Limiting Who Knows

 

The success or failure of an operation depends upon limiting the individuals who know of its existence and ensuring, at all possible levels, that confidentiality will be maintained. School board members may not want or need to be aware of the operation's existence. They may simply grant the superintendent broad discretion (if the superintendent already does not have such discretion) to cooperate fully with law enforcement officials to combat drugs in the school. Most police officials will not even begin to plan an operation in concert with school officials unless the secrecy of the operation can be ensured in order to protect the safety of the undercover agents involved. Because the undercover agent in the school may be dealing with significant drug suppliers or dangerous or violent people, the agent would be at grave risk if his identity were revealed during the operation.

The need for secrecy in undercover operations has been judicially recognized on several occasions. In People v. Serafin, following an undercover investigation in the public high schools of Montgomery County, New York, defendants were charged with the criminal sale of dangerous drug. Defendants challenged their convictions on due process grounds, arguing that the three-and-a-half month lapse between their offenses and arrests rendered it impossible for them to receive a fair trial. The court denied the defendants' motion to dismiss, holding that any prejudice they might have suffered from the delay in the prosecution was outweighed by the need to protect the public welfare by preserving the secrecy of the undercover operation.

 

Proper Selection and Training of Agents

 

Undercover agents who will operate in schools must be properly selected and carefully trained for their task. School officials should be involved in the selection of the agents and should review the backgrounds of the agents to ensure that their involvement with minors and other students will not pose an unacceptable risk. Once selected, the agents must be carefully trained in police undercover work, with particular training from police attorneys in such legal issues as the laws of entrapment, guidance on acceptable interaction or involvement with minor students (e.g., dating, driving, partying, etc.), simulating the use and ingestion of drugs, etc. Agents should be fully informed about the school environment and sensitized to the fact that they will be interacting with minors who will consider them peers. Behavior standards must be established to avoid any difficulties with or charges against the agents. Their responsibilities should be clearly defined with the specific scope, goal and standards of the operation understood in advance and strictly adhered to. The agents should know whether they are expected to gather information, purchase drugs or identify suppliers and the standards to make these determinations. (For example, the operation might define suppliers of drugs as those from whom an agent is able to make direct purchases on more than one occasion.)

 

Agent Enrollment in School

 

Undercover agents must be enrolled in the schools with false identities and school records that will survive the scrutiny of school secretaries, teachers, counselors and administrators. The agents enrolling in school must look young enough to pass for secondary school students. Because many drug-using students will be suspicious of a new student in their midst, undercover operations are best initiated at the beginning of a school year, with agents being enrolled as new students.

 

PREPARING FOR ENFORCEMENT

 

As the end of the operation nears, communication between undercover agents and school officials, possibly including school principals, should increase. Extra care should be exercised to ensure that students have been properly and positively identified through the use of yearbooks, class rosters, nicknames, license plates, locker assignments, student identification badges, or any other appropriate source. This will be particularly important in the underground drug trade, where distributors and sellers often are known only by their nicknames.

Near the end of the operation, the agent should provide information and reports to appropriate school officials regarding students whose actions have violated the code of student conduct, so that school disciplinary charges can be prepared prior to the operation's conclusion. Preparation of school disciplinary charges should be done with the consultation, advice, and approval of the school attorney. If the school disciplinary charges are to be based solely or primarily upon the undercover agent's reports and identification, the school attorney should meet directly with the agent prior to the conclusion of the operation to verify the agent's information and its reliability and before any school disciplinary hearings to prepare the agent for the proceeding.

Where more than one agent, school or principal are involved in the operation, it is important to charge students with consistent violations for the same or similar misconduct. If two students who allegedly engaged in the same misconduct receive different charges under the student disciplinary code, this may cause problems at the hearing stage. Again, consultation with the school system's attorney can help to avoid these problems.

 

THE BUST

 

Planning the Arrests

 

Occasionally, school undercover probes will be terminated without arrests or disciplinary action. It may be that no substantial drug activity was observed, or that the purpose of the operation was to gather information quietly to be used for preventive purposes by school officials. More often, however, an undercover operation will culminate in a "bust," where student suspects are arrested by the police. The bust should be planned jointly by school and police officials so that school officials will not be caught off-guard. Advance preparation is particularly important if multiple arrests are contemplated. School and police officials should determine whether the arrests will take place on or off school grounds and whether they will occur during or after school hours. Police officials generally will prefer to arrest the subjects during school hours, thereby ensuring easier access to students and a high level of visibility that most law enforcement and school officials believe has a strong deterrent effect. School officials, however, may be concerned about the bust leaving a perception of "storm trooper" tactics, disrupting the school setting or leading to violence as a result of the mass arrests at school.

 

Separate Treatment of School Disciplinary and Criminal Charges

 

It is important that school disciplinary charges and criminal charges be treated separately at all times. Ideally, the school disciplinary code should be enforced by notification of suspension prior to the arrest and outside the presence of arresting officers, so no question can be raised regarding whether students were "in custody" at the time they received notice of their charges and an opportunity to respond to the school system's disciplinary charges. The arrest or questioning of students by law enforcement officials on campus can raise future legal problems. For example, questioning by police in the principal's office may be considered a "custodial interrogation," that might lead to a valid court challenge to exclude any statements or admissions made by the student. Some state juvenile codes require that police advise juveniles, before any questioning, that they have the right to have their parent, attorney, or some other adult present. A list of parents' telephone numbers, including work numbers, should be prepared in advance of the bust, so parents can be notified by the school officials as soon as possible after arrests have been made.

 

Handling the Media

 

School officials should be prepared for widespread media coverage, that might in turn generate tremendous parental and public concern. Alert media will quickly find out, via police scanner or otherwise, that a drug bust is occurring. School and police officials should be prepared to hold a press conference, announcing the conclusion of the operation and the drug bust, and providing the press and the public with accurate information. The initial public perception of the operation and the professionalism with which it has been carried out by law enforcement and school officials will depend largely upon the first impression received through the media. Accordingly, a well organized press conference with accurate, detailed statements and statistics to be released, together with the leading school and law enforcement officials involved in the operation available to respond to questions and concerns, will reduce the risk of incomplete or inaccurate information being disseminated.

As noted above, any information released by school officials must comply with confidentiality regulations. The board's policy should specify what is classified as "directory information" under the Family Educational Rights and Privacy Act. Beyond such directory information, school officials generally may not release information about specifically identified students and their records.

 

AFTER THE BUST

 

Following the day of arrests, school officials must take immediate steps to move school disciplinary appeals along the process. Particularly if large numbers of students have been suspended, many hearings will need to be scheduled within various time lines in accordance with state law and board policy. School officials should be aware that the court proceedings and school disciplinary actions may be occurring simultaneously. Students who are minors usually face proceedings in the juvenile court system, while students of adult age will go through the normal criminal court processes. At this time, the coordination of appearances of school officials in juvenile and criminal court proceedings and the presence of law enforcement agents at school disciplinary proceedings will be extremely valuable.

Students entitled to hearings as a result of school disciplinary actions usually are represented by counsel who also will be defending them against the criminal or juvenile charges. Most defense attorneys will make concerted efforts to get their clients back into school, on the assumption that that will place them in better standing before the courts.

The school disciplinary proceedings will likely occur prior to any trials in criminal court.

Particularly where the school system's disciplinary proceedings allow for subpoena power, defense attorneys frequently ask for complete hearings in the student disciplinary proceedings in order to give them an early opportunity to hear from and to cross examine the agent whose testimony will be key against their client in later judicial proceedings. Given the defense benefits of this strategy, school officials should prepare for the likelihood of a large number of hearings that will have to be held in a very short period of time. Again, the importance of advance planning for such hearings cannot be overemphasized.

Special care must be exercised with regard to students with special needs who qualify under state or federal laws as students with disabilities. For those students, there must be an examination of the relationship between the disciplinary violation with which they are charged and their particular disability or handicapping condition. A multi-disciplinary team will be required to review the student's situation to determine whether such a connection exists and whether the student may be disciplined under normal school rules. Usually, an alternative school placement constitutes a change of placement which cannot be made except by revising the child's IEP, following notice to parents and all of the appropriate procedures. For special education students, the school system may arrange for alternative sanctions or punishments in lieu of a change in placement. Special education students and their parents must be advised of the full range of appeal and hearing rights to which they are entitled.

 

 

LEGAL CHALLENGES TO SCHOOL DISCIPLINARY PROCEEDINGS

 

School officials should prepare for a wide variety of potential legal challenges, particularly if the undercover operation results in a large number of students being arrested and/or disciplined. As previously mentioned, defense attorneys will aggressively pursue hearings and raise creative challenges to the school system's legal process out of a desire to return their clients to school and to use school disciplinary proceedings and other legal challenges to discover the strength and sufficiency of the evidence they will confront in criminal court.

 

Due Process

 

Substantive due process claims often focus on the sufficiency of board policies. Constitutional challenges may raise "overbreadth" or "vagueness" claims. Procedural due process challenges likely will assert violations of Goss v. Lopez, for failing to give students adequate notice of the charges against them or an opportunity to be heard before their suspensions. Advance preparation of written charges against the students to be suspended will help prevent these types of claims. Even so, defense attorneys may still claim that the preparation of the charges in advance precluded the opportunity for a meaningful hearing. Such challenges are usually not successful.

Another procedural due process challenge may arise from the failure of school officials to give Miranda-type warnings to students at the time of their suspensions. The case law fairly clearly and consistently holds that school officials are not required to give Miranda-type warnings in the execution of school disciplinary policies. If the student is not "in custody" and the purpose of the hearing upon suspension is to apprise the student of violations of the code of student conduct, rather than to act as an agent of the police, courts generally uphold suspensions based on interrogations of or admissions by students.

 

IDEA

 

Additional legal challenges might come from alleged violations of the IDEA or § 504 of the Rehabilitation Act of 1974, as described above.

 

Temporary Restraining Orders

 

As part of their legal challenges to school disciplinary proceedings, defense attorneys may seek temporary restraining orders against the school proceeding with its due process hearings while criminal matters are pending. Attempts to obtain temporary restraining orders are more likely if a significant event in the lives of students is about to occur. For example, a temporary restraining order might be sought to allow a student to attend graduation or the senior prom, to play in an upcoming basketball game, or for other such significant events. There is no requirement and often no need for school officials to defer prosecution under school disciplinary proceedings because criminal or juvenile proceedings are pending. It is unlikely that most judges will enjoin a school system from enforcing disciplinary proceedings simply because they arose from undercover police operations.

 

State Law Challenges

 

School systems also may face challenges under various state constitutional provisions or statutes governing public education. A survey of such potential claims is beyond the scope of this article. The local school attorney will be able to provide advice on such matters.

 

Out-of-School Conduct

 

Challenges also may arise for school discipline imposed for out of school conduct. If the school district can establish some relationship between the out of school conduct and the school setting, such a nexus will be a clear basis for proceeding with school disciplinary action.

 

Entrapment

 

Additional challenges might be based upon allegations of entrapment on the part of undercover police officers. For example, in People v. Superior Court, in an appeal from prosecution resulting from an undercover drug operation at the San Mateo High School, the California Court of Appeals held that neither public policy nor state statutes prohibiting persons from inducing minors to use marijuana precluded the police from using minors as decoys in undercover purchases of marijuana.

 

ALTERNATIVE EDUCATION PROGRAMS

 

When the undercover operation is concluded, the school system will face the dilemma of determining what to do with the students who have been arrested. Besides individual suspension proceedings, the school board will be faced with the policy decision of whether to provide alternative education programs to these students, or to simply suspend them and put them "on the streets." This will be a particularly difficult decision if large numbers of students are involved.

Alternative education programs provide a sound alternative to simply suspending students for extended periods of time. They require, however, advance planning and budgeting if they are to be effective. Arguments in favor of providing an alternative education program include that the program would: keep students in school; keep drug dealers off the streets; provide the opportunity for intensified education and counseling for a segregated population in need of it; likely cut down on legal challenges and appeals; be strongly favored by the courts and juvenile authorities; and reinforce the educational purpose and intent of school authorities.

Arguments against the provision of alternative education programs include: the high costs of operating such programs; providing the program may lessen the punishment to the offenders; it would divert significant school resources to educate students whom the school system has identified as drug dealers; they are difficult to staff; and providing transportation may be extremely costly.

If alternative education programs are to be provided, the school administration should determine standards for admission in advance. The alternative school program's objectives should be carefully specified and special regulations developed to deal with the unique population that will be attending the school. In some cases, court supervision may be desirable for individual students assigned to the school.

Working in concert with the judicial system, school officials may find that many individuals caught in an undercover police operation will be diverted to first offender or other such programs designed to afford quick rehabilitation and a second chance for youthful offenders. Court officials may seek some measure of consistency in the manner in which all students caught in the operation are processed from prosecution to sentencing. Various court-related or court-mandated programs could include drug counseling, diversion to juvenile counselors, and required community service. Probation requirements often will include fines, possible partial reimbursement of school authorities for the cost of the undercover drug operation, schooling requirements and specific grade, attendance and conduct requirements.

Juvenile and court officials likely will seek recommendations from school counselors and others regarding the student's background, record, and potential for the future. Because large numbers of students may be processed in court, this is another area where coordination between school and court officials will be significant.

In many states, the expunction of all criminal records relating to the arrest and conviction of a student might be possible following the successful conclusion of diversionary or first offender programs. In other states, expunction is possible based on the age of the defendant and the nature of the offense. School officials may take advantage of these possibilities to help ensure the cooperation of individual students who might be assigned to alternative school education programs.

 

WHAT CAN BE GAINED?

 

In the aftermath of an undercover drug operation and the judicial proceedings that will follow, school officials should take advantage of every opportunity to promote community awareness of the extent and nature of the drug problem and the need for community support to deal with it. Positive interaction with the media will allow the school system to make its points and get its story across.

School officials also should use the "intelligence" gathered during the undercover operation to educate the faculty regarding particular problem areas in the school, behaviors to be aware of, and other indicators of drug use. Drug counseling and education efforts to raise student awareness can also be improved through the use of information gathered during the operation. The deterrent effect resulting from such an operation is difficult to measure, but certainly will be present. Students will be more suspicious and less cavalier about drug use on school grounds. In some instances, school officials may announce that they will or may be proceeding with additional undercover operations in the future to try to increase the length or extent of the deterrent effect.

Police undercover operations in the school that are carefully planned and coordinated with school officials are difficult to implement and to complete successfully. They can, however, produce bold and valuable results that benefit the school, the community, the students who are not involved with drugs and even those students who have been caught selling drugs, through the use of alternative education and rehabilitation programs. Effective coordination among law enforcement, school, juvenile, and court officials can make a meaningful difference in the lives of young drug dealers who can be apprehended, segregated in a special school setting, intensely counseled and in some cases rehabilitated at an early age. Given these tangible results for the community, the school, and its students, undercover operations may be quite an effective weapon in the war on drugs.

 

ENDNOTES

 

1. Alcohol and Drugs in the Public Schools: Implications for School Leaders (National School Boards Association, April 1988).

    

    

2. New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733 (1985).

    

    

3. See Appendix D.

    

    

4. See Appendix C.

    

    

5. U.S.C. § 1232g.

    

    

6. See Appendix F.

    

    

7. People v. Serafin, 67 Misc.2d 193, 324 N.Y.S.2d 235 (1971).

    

    

8. Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729 (1975).

    

    

9. In re Killitz, 59 Or. App. 720, 651 P.2d 1381 (1982). A junior high school student was called to the office by the principal where he was met by a uniformed police officer. In the presence of the principal, the police officer questioned the student about his suspected involvement in an out-of-school burglary. Neither the police officer nor the principal told the student that he was free to leave the principal's office. In this meeting and another the following day, the student made incriminating statements about the burglary. The student sought to suppress the introduction of his statements in a juvenile court proceeding against him. The Court of Appeals of Oregon reversed the juvenile court's denial of this motion, finding that the police interrogation was "custodial" within the meaning of Miranda because the student was not free to leave during the interrogation, the student was a suspect in the burglary at the time of his questioning and the student could not be said to have gone voluntarily to the principal's office for questioning. See also Crisis Management in Schools: The Legal Implications, F5-8 (National School Boards Association, 1992) (survey of case law regarding interrogation, Miranda warnings and detention in the school setting).

    

    

10. See, e.g., N.C. Gen. Stat. § 7A-595 (1979).

     

     

11. See "Discipline After Honig v. Doe: Expelling the Disabled Student," at 23-32.

     

     

12. Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729 (1975).

     

     

13. Boynton v. Casey, 543 F. Supp. 995 (D. Maine 1982).

     

     

14. In re Gage, 49 Or. App. 599, 624 P.2d 1076 (1980). A student was questioned by the principal about the disappearance of one thousand school lunch tickets. The principal chose to speak to the appellant based upon his conversations with other students. The student apparently admitted to stealing the tickets and appealed the court order making him a ward of the state on the grounds that his statements to the principal were inadmissible under Miranda. The Oregon court assumed arguendo that in-custody interrogations by a public school principal must be preceded by Miranda warnings, but concluded the principal's questioning of the student did not amount to a criminal interrogation because "the matter was still in the investigative stage."

     

     

15. Johnson v. Board of Education of City of New York, 62 Misc.2d 929, 310 N.Y.S.2d 429 (1970).

     

     

16. Majestic, "Off-Campus Student Conduct," School Law In Review - 1991 (National School Boards Association, 1991).

     

     

17. People v. Superior Court, 65 Cal. App.3d 842, 134 Cal. Rptr. 361 (1977).

     

     

18. See Alcohol and Drugs in the Public Schools: Implications for School Leaders, 13, 26-33 (National School Boards Association 1988) (discussion of alternative student and community programs).