PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES DESROCHES, II, a minor, by
his father and next friend, James
DesRoches,
Plaintiff-Appellee,

v.                                                                  No. 97-2173

MICHAEL CAPRIO; ROY D. NICHOLS,
JR.; SCHOOL BOARD OF THE CITY OF
NORFOLK,
Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CA-97-460-2)

Argued: May 6, 1998

Decided: September 23, 1998

Before MURNAGHAN and HAMILTON, Circuit Judges, and
MICHAEL, Senior United States District Judge
for the Western District of Virginia,
sitting by designation.

_________________________________________________________________

Reversed by published opinion. Judge Murnaghan wrote the opinion,
in which Judge Hamilton and Senior Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Harold Phillip Juren, Senior Deputy City Attorney, Nor-
folk, Virginia, for Appellants. Mary Catherine Bauer, ACLU OF
VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Jacob P.
Stroman, IV, Deputy City Attorney, Norfolk, Virginia, for Appellants.
Frank Morris Feibelman, FEIBELMAN & ERDMANN, Richmond,
Virginia; Brett Loney, SEGALL & MOODY, Newport News, Vir-
ginia, for Appellee.

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

Appellants, Principal Michael Caprio, Superintendent Roy Nichols,
Jr., and the City of Norfolk School Board, appeal the judgment of the
district court finding a violation of the Fourth Amendment arising
from the suspension of Appellee, James DesRoches, Jr. (DesRoches),
following his refusal to consent to a search of his backpack by school
officials investigating a missing pair of tennis shoes. Because we
believe the proposed search was reasonable under the circumstances,
we reverse.

I.

On May 2, 1997, James DesRoches was a ninth-grade student at
Granby High School, a public high school in Norfolk, Virginia. On
that day, he attended his fourth period art class, which met for half
an hour before and after lunch. During the first half of class, one of
the nineteen students in the class, Shamra Hursey (Hursey), placed
her girls' tennis shoes on top of her desk. While the students went to
lunch, Hursey left her shoes unattended in the classroom.

During lunch, the art classroom was unlocked, and the teacher
remained in the classroom. For a "very short" portion of the time,
however, the teacher was in a closet in the classroom cutting paper.
(J.A. 69). The teacher could not see out of the closet into the class-
room, but she stated that while she was in the classroom she never
saw any students whom she did not know. One student in the class-
room during the lunch period, however, testified that a student who
was not enrolled in the fourth period art class was in the classroom
during lunch. A few other students who were enrolled in the class
returned to the classroom for a few minutes during lunch.

                    2
Upon Hursey's return from class, she noticed her shoes were miss-
ing. DesRoches and others assisted Hursey in looking for the shoes.
When the shoes were not found, Hursey reported the shoes as stolen
to the school's Dean of Students, James Lee, whose responsibilities
include attending to matters of school security. Lee was aware that a
ring had been reported missing in the same class the day before.

Upon arriving at the classroom, Lee spoke in the hallway with the
class's teacher, Ms. Ratliffe, who informed him that, to her knowl-
edge, only three students had remained in the classroom during lunch.
When interviewed, those students informed Lee that Hursey had
placed the shoes on her desk before the lunch period and that they
were unaware of what might have happened to the shoes during
lunch.

From his talks with these people, it was Lee's understanding that
there had been students in the art classroom at all times during lunch,
that the teacher knew all these students, that none of the students had
been left alone in the classroom, and that the teacher was in the class-
room at all times. It is also clear from the record that, although a stu-
dent testified at trial to (1) seeing DesRoches in the cafeteria or
courtyard during the lunch break; (2) seeing DesRoches with his
backpack during lunch; and (3) whether DesRoches returned to the
classroom after Shamra, no one told Lee anything about this at or
before the time of the search.

On the basis of what he had learned during his investigation, Lee
determined that it was necessary to conduct a search of the personal
belongings of all nineteen students in the class. He announced his
intention to search, asking whether anyone objected. At that point,
DesRoches and another student raised their hands. When Lee
reminded them that school policy authorized a ten-day suspension for
a student's refusal to consent, the other student provided his consent
but DesRoches continued to refuse. Lee told DesRoches "that he
could just sit there and [they] would talk about it later," and then pro-
ceeded to search the bags and backpacks of the consenting students.
Because those searches were unfruitful, Lee escorted DesRoches to
the principal's office where the school's principal, Michael Caprio,
renewed Lee's request to search DesRoches's backpack. When Des-
Roches refused, Caprio allowed him to call his parents in the unreal-

                     3
ized hope that they would convince him to change his mind. Des-
Roches was then suspended for ten days, commencing immediately.

On May 8, 1997, DesRoches filed this action by his father and next
friend, pursuant to 42 U.S.C. § 1983, seeking injunctive relief, mone-
tary damages, and attorneys fees, on the grounds that the school offi-
cials had violated his rights under the First, Fourth, and Fourteenth
Amendments to the United States Constitution. On May 12, 1997, the
district court heard testimony on the matter in response to Des-
Roches's request for a preliminary injunction. Before the court ren-
dered a decision in that matter, the parties reached a compromise in
which DesRoches was to be readmitted to school pending a final
hearing and decision by the district court.

The case proceeded to trial on May 28, 1997. The court dismissed
DesRoches's claim for money damages on the grounds that defendant
Caprio was entitled to qualified immunity and that the defendant
school board and superintendent were immune from money damages
under the 11th Amendment. The court then dismissed DesRoches's
First and Fourteenth Amendment claims but concluded that the
school's actions constituted an unreasonable search in violation of the
Fourth Amendment. The court granted injunctive relief requiring the
school board to reinstate DesRoches and to expunge the suspension
from his record. This appeal followed.1

II.

The sole issue presented on appeal is whether the district court
erred in concluding that the proposed search of DesRoches was unrea-
sonable under the Fourth Amendment. Appellants answer that ques-
tion in the affirmative, arguing that Lee's demand to search Des-
Roches was reasonable under the circumstances.

The Fourth Amendment provides that "[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unrea-
sonable searches and seizures, shall not be violated. . . ." U.S. Const.
_________________________________________________________________
1 On appeal, DesRoches does not challenge the grant of qualified
immunity to Caprio or the dismissal of his claims under the First and
Fourteenth Amendments.

                    4
amend. IV. Although it was once open to debate whether that protec-
tion extends to school children, the Supreme Court held for the first
time in New Jersey v. T.L.O., 469 U.S. 325 (1985), that searches and
seizures conducted on school premises by school officials are gov-
erned by the limits of the Fourth Amendment, see id. at 336-37. In
reaching that conclusion, the Court rejected the notion that school
officials act purely in loco parentis over school children. See id. ("In
carrying out searches and other disciplinary functions . . ., school offi-
cials act as representatives of the State, . . . and they cannot claim the
parents' immunity from the strictures of the Fourth Amendment.").

Searches and seizures carried out by school officials are governed
by the same Fourth Amendment principles that apply in other con-
texts. See id. at 337. As a starting point, the Court has repeatedly
emphasized that "[t]o be reasonable under the Fourth Amendment, a
search ordinarily must be based on individualized suspicion of wrong-
doing." Chandler v. Miller, 117 S. Ct. 1295, 1301 (1997); see also
Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 624
(1989). Exceptions to that requirement have been upheld only in "cer-
tain limited circumstances," Chandler, 117 S. Ct. at 1298 (citation
omitted), where the search is justified by "special needs, beyond the
normal need for law enforcement," id. at 1301 (citation omitted).
Where the government asserts "special needs"-- defined as "con-
cerns other than crime detection" -- as justification for a suspicion-
less search, "courts must undertake a context-specific inquiry,
examining closely the competing private and public interests
advanced by the parties." Id. at 1301 (citation omitted). The search
will be upheld only where the government's interests in conducting
the search are "substantial -- important enough to override the indi-
vidual's acknowledged privacy interest, sufficiently vital to suppress
the Four Amendment's normal requirement of individualized suspi-
cion." Id. at 1303; see, e.g., Camara v. Municipal Court, 387 U.S. 523
(1967) (upholding suspicionless, random code-enforcement inspec-
tions where justified by health and safety concerns and where require-
ment of individualized suspicion would render search regime
ineffectual); Skinner, 489 U.S. at 630-31 (upholding suspicionless uri-
nalysis of railroad employees following train accidents where compel-
ling interest in preventing accidents from occurring would not be
served by requirement of individualized suspicion).

                     5
The Supreme Court laid the ground rules for suspicion-based
school searches in T.L.O. There, the Court held that the constitutional-
ity of school searches based on individualized suspicion would be
evaluated by the two-pronged reasonableness standard first
announced in Terry v. Ohio, 392 U.S. 1, 20 (1968). See T.L.O., 469
U.S. at 341. Pursuant to that standard, the reasonableness of a search
is determined by considering first "whether the .. . action was justi-
fied at its inception," id. (quoting Terry, 392 U.S. at 20), and second,
"whether the search as actually conducted was reasonably related in
scope to the circumstances which justified the interference in the first
place,'" id. (quoting Terry, 392 U.S. at 20).

T.L.O. did not hold that individualized suspicion is an essential ele-
ment of reasonableness for all school searches. See id. at 342 n.8. The
Court found it unnecessary to address that issue since any requirement
of individualized suspicion was easily satisfied by the facts presented
in that case. See id. Nevertheless, the Court cautioned that, as in other
contexts, a search conducted in the absence of individualized suspi-
cion would be reasonable only in a narrow class of cases, "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.'" Id. (quoting Delaware v. Prouse, 440 U.S. 648, 654-55
(1979)).

Recently, in Vernonia School Dist. 47J v. Acton , 515 U.S. 646
(1995), the Supreme Court was called upon for the first time to assess
the validity of a suspicionless school search. The case arose from a
school district's decision to implement a random drug-testing pro-
gram for student athletes in an effort to curb a documented increase
in the use of drugs among students. See id. at 648-50. Because the dis-
trict's program was not based on individualized suspicion, T.L.O. was
inapplicable. Instead, the Court analyzed the reasonableness of the
program by balancing the students' legitimate privacy interests
against the government's interests in conducting the search. See id. at
661. As the Court explained, the fundamental inquiry in such cases
is whether the government's interest is "important enough to justify
the particular search at hand, in light of other factors that show the
search to be relatively intrusive upon a genuine expectation of pri-
vacy." Id. (emphasis omitted). Applying that standard, the Court con-

                    6
cluded that the government's demonstrated interest in fighting drug
abuse among student athletes -- who, more than others, are at risk of
physical and psychological harm resulting from the use of illicit drugs
-- was sufficiently weighty to justify the modestly intrusive drug test-
ing of student athletes who, by virtue of their voluntary participation
in what is essentially a "highly regulated industry," enjoy a lessened
expectation of privacy when compared to students in general. See id.
at 661-62, 664-65.

The Court's decision in Vernonia may be contrasted with its hold-
ing in Chandler v. Miller, 117 S. Ct. 1295 (1997), in which the Court
struck down a Georgia statute requiring suspicionless urinalysis of all
candidates for public office, see id. at 1302-05. In reaching that con-
clusion, the Court emphasized that although the statute was intended
to deter drug use by candidates and to assure the public of the integ-
rity and clear-mindedness of its elected officials, the state had failed
to provide "any indication of a concrete danger demanding departure
from the Fourth Amendment's main rule." Chandler, 117 S. Ct. 1303.
Not only did Georgia fail to demonstrate that the state had a current
problem of drug abuse among public officials, see id., elected offi-
cials "typically do not perform high-risk, safety sensitive tasks, and
the required [urinalysis] immediately aids no[drug] interdiction
effort," see id. at 1305. Thus, in closing, the Court emphasized that
"blanket, suspicionless searches calibrated to[a certain] risk" are
acceptable "where the risk to public safety is substantial and real" --
for example, routine searches at the entrances to airports and court-
houses. Id. at 1305. "But where, as in this case, public safety is not
genuinely in jeopardy, the Fourth Amendment precludes the suspi-
cionless search, no matter how conveniently arranged." Id.

In the case at bar, the district court properly analyzed the reason-
ableness of the school's actions in light of the above principles. The
district court recognized that, in some situations, a group of students
may be so small that the entire group may be searched without violat-
ing the individualized suspicion requirement (citing T.L.O., 469 U.S.
at 346) ("sufficient probability, not certainty, is the touchstone of rea-
sonableness under the Fourth Amendment"). Then the court searched
for individualized suspicion. After concluding that the proposed
search was not based on individualized suspicion, the court analyzed
the case according to the "special needs" inquiry laid out in Vernonia,

                     7
Chandler, and other cases in which the government has offered a
compelling government interest as justification for a suspicionless
search. The court concluded that the circumstances facing school offi-
cials at the time of the search -- theft of personal property not posing
a risk of imminent harm to students or school personnel -- were
insufficient to justify the substantial invasion of privacy that would
occasion the proposed search. We review de novo the district court's
legal conclusions with respect to the reasonableness of the school's
actions. See United States v. Carter, 139 F.3d 424, 426 (4th Cir.
1998). The district court's factual findings are reviewed for clear
error. See United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).

The Supreme Court has held that the existence of Fourth Amend-
ment protections depends on whether the individual has a legitimate
expectation of privacy in the thing or place to be searched. See Rakas
v. Illinois, 439 U.S. 128, 143 (1978). Like members of the public gen-
erally, schoolchildren enjoy a legitimate expectation of privacy in
their persons and effects. See T.L.O., 469 U.S. at 338 ("Although this
Court may take notice of the difficulty of maintaining discipline in the
public schools today, the situation is not so dire that students in the
schools may claim no legitimate expectations of privacy."). In T.L.O.,
the Court emphasized that, in the adult world, "even a limited search
of the person . . . [or] of closed items of personal luggage" is a "sub-
stantial invasion of privacy." Id. at 337 (citations omitted). The same
is equally true, the Court held, with similar searches conducted on
school children, since "[a] search of a child's person or of a closed
purse or other bag carried on her person, no less than a similar search
carried out on an adult, is undoubtedly a severe violation of subjective
expectations of privacy," id. at 337-38, which expectations society
recognizes as "legitimate," id. at 339 ("[S]choolchildren may find it
necessary to carry with them a variety of legitimate, noncontraband
items, and there is no reason to conclude that they have necessarily
waived all rights to privacy in such items merely by bringing them
onto school grounds.").2 Therefore, in the present case, there is no
_________________________________________________________________
2 Ensuring that students enjoy such privacy is not only constitutionally
mandated, it is critical to the proper development of young minds. See
T.L.O., 469 U.S. at 334 ("That [school officials] are educating the young
for citizenship is reason for scrupulous protection of Constitutional free-
doms of the individual, if we are not to strangle the free mind at its
source and teach youth to discount important principles of our govern-
ment as mere platitudes.") (quoting West Virginia State Bd. of Ed. v.
Barnette, 319 U.S. 624, 637 (1943)).

                    8
question but that DesRoches enjoyed a legitimate expectation of pri-
vacy in his backpack so as to trigger the protections of the Fourth
Amendment.

The next question, then, is whether the proposed search of the
backpack was reasonable under the circumstances. Consistent with
our discussion above, we begin by determining whether the search
was supported by individualized suspicion. Our analysis of that ques-
tion is guided by T.L.O. There, the Court explained that the first step
in the reasonableness inquiry is to determine whether the search was
"justified at its inception," which requires us to determine whether
there were "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 341-42.

In the present case, where consent to search was requested and the
individual was later punished for refusing consent, we are faced with
the threshold issue of what constitutes the "inception" of the search.
Not surprisingly, the parties offer competing views of the matter. Des-
Roches argues that the inception of the search occurred when school
officials first announced their intention to search the class. He main-
tains, therefore, that the reasonableness of the school's actions must
be judged by the circumstances known to school officials prior to
their search of the first student. Appellants, on the other hand, argue
that the inception of the search occurred not at the moment Des-
Roches was threatened with suspension, but at the moment he was
actually suspended for refusing to consent. Therefore, while Appel-
lants concede that individualized suspicion was lacking with respect
to DesRoches when the search was first announced to the class, they
maintain that such suspicion had arisen by the time DesRoches was
punished for refusing to consent to the search.

The district court agreed with DesRoches. In the court's opinion,
"allowing [DesRoches] to be searched after the fruitless search of the
consenting students compromises the principle that a search's reason-
ableness must be judged at its inception." As the court saw it, "[a]
bifurcated search (first of the consenters, then of the non-consenters)
guarantees that the search of the non-consenting students would be
judged . . . after the inception of the search of all the other students."
Such an arrangement, the district court believed, would allow "[o]ne's

                     9
constitutional rights . . . [to] wax and wane according to whether oth-
ers stand upon their . . . rights."

We respectfully disagree. Underlying the district court's reasoning
is the premise that school officials conducted but one search of nine-
teen students, such that the reasonableness of the school's actions
must be judged in the aggregate. We believe that premise is flawed,
since school officials conducted not one but nineteen individual
searches, each of which must be independently assessed for its rea-
sonableness. Therefore, whether any given search was justified at its
inception must be adjudged according to the circumstances existing
at the moment that particular search began, rather than, as the district
court believed, the circumstances existing when the first student in the
class was searched.

DesRoches argues that the inception of the search, as directed
against him, occurred when school officials threatened him with sus-
pension after he refused their request to search his backpack, because
at that point he was required to choose between the proposed search
and the possibility of suspension. We believe that argument misses
the mark. For DesRoches to maintain a Fourth Amendment claim,
there must have been an infringement on a protected Fourth Amend-
ment interest. While we agree, of course, that actual suspension for
refusal to consent constitutes such an infringement when the proposed
search is unreasonable, we cannot agree that the Fourth Amendment
is implicated merely by a demand to search coupled with threats of
punishment, where the threats are unsuccessful in bringing about the
individual's consent.

DesRoches contends that his punishment became final when he
refused, for the second time, to consent to the requested search, after
being warned that his refusal to do so would result in a ten-day sus-
pension. He argues, in essence, that his punishment was automatically
imposed when he refused to provide his consent. Yet, the facts do not
support such a contention. Far from automatically punishing Des-
Roches for refusing to consent, school officials told DesRoches "that
he could just sit there, and [they] would talk about it later." In fact,
following the threat of suspension, DesRoches was provided with at
least two more opportunities to consent to the search before his sus-
pension was actually imposed.

                    10
In light of the discussion thus far, it is apparent that the inception
of the school's actions with respect to DesRoches occurred not when
the search was first announced to the class, nor when DesRoches was
threatened the first or second time with suspension, but when Des-
Roches was actually punished for refusing to provide his consent. So
viewing the inception of the search, we agree with Appellants that,
while school officials initially lacked individualized suspicion with
respect to DesRoches, they developed such suspicion by virtue of
their unsuccessful search of the classroom and the other eighteen stu-
dents. As the facts demonstrate, those who remained in the classroom
during lunch informed school officials that, to the best of their knowl-
edge, only one student from outside the art class had entered the
classroom during lunch. Therefore, once the classroom and the other
eighteen students had been searched, school officials had certainly
developed individualized suspicion with respect to DesRoches and the
unnamed non-classmember, not by way of any particular information
suggesting that one of those two was the thief, but simply by the pro-
cess of elimination. We therefore cannot fault school officials for
renewing their request to search once individualized suspicion had
arisen, or for suspending DesRoches when he refused to consent to
the search.3

III.

In summary, we hold that the proposed search of DesRoches's
backpack was reasonable under the Fourth Amendment. The judg-
ment of the district court is, therefore,

REVERSED.
_________________________________________________________________
3 In light of our conclusion that school officials had individualized sus-
picion to search DesRoches at the time he was ultimately suspended, we
need not consider whether the search would also have been justified, in
the absence of individualized suspicion, by "special needs" facing school
officials at the time of the proposed search.




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