Q: A 16-year-old high school student is called to a principal's office in the presence of a police officer.
A 16 year is called (A) to the office in the presence of a police officer and questioned but the student says he does not want to discuss the matter until his parent is called; the police want to search the student for a vape-based on a rumor from another student (B) and (A), who has no prior history of tobacco use or discipline declines to be searched until his parent is called. The police intimidate and threaten to arrest (A). Question is 1- does a juvenile student have a legal right to request a parent be present, 2) was the search unlawful.
A: Great question, but the answer is a bit complex. The complexity comes in the form of an overriding issue of safety of the other students. Now, considering the accusation is only of a vaping product, they are standing on thin ice with the argument of public safety. Asking for the parent to be present does not provide as much protection as one might think. The key around the parent not being present is that the minor child cannot give consent, therefore the search arguably should be unconstitutional. Now, more complexity. The possession fo a vape is not a felony. It is a misdemeanor at best. This means that the officer must have observed the device personally in order for their to be an arrest. An informant's tip is not enough to give probable cause for an arrest. In the future, if an officer is there, always stay silent and ask for an attorney. It shuts the door on the interview. If this is in the greater Tulsa area, give us a call 918-884-7791...Boeheim Freeman Law.
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