School resource officer claims student recording of search violates privacy

A school resource officer was arrested and charged with official misconduct for planting evidence. 

At trial, the officer argued that a recording made without his knowledge could not be introduced because it violated his right to privacy. The prosecution responded that a law enforcement officer performing official duties does not have a reasonable expectation of privacy, especially due to the public interest in preventing police misconduct. The trial court held that the recording could not be introduced as evidence and the prosecution appealed this decision to the court of appeals.

The evidence supporting the request to suppress the recording showed that the school resource officer was on duty at a middle school when he and the assistant principal ordered students out of a classroom to search for a vape pen in the students' belongings. 

A student left her cellphone with the recording function turned on, capturing audio of the school resource officer and assistant principal's conversation during the search. The recording indicated that they located the vape pen in a cabinet and discussed placing it in a particular student's backpack without evidence of whom it belonged to. The student turned the recording over to law enforcement, which prompted an investigation into the school resource officer's conduct.

The court of appeals examined the applicable law and determined that, in order to determine if the student's cellphone recording should have been suppressed, it must determine if the school resource officer had a subjective expectation of privacy when he made the comments that were recorded and whether that expectation was objectively reasonable. 

In doing so, it noted that the school resource officer made the comments in a public classroom while on duty. Texas courts have held that teaching in a public classroom does not invoke an expectation of privacy. 

The courts have also held that officers searching public areas as part of their job duties are performing a public service and should not be able to claim that they have a personal expectation of privacy. The fact that the school resource officer did not want his statements about planting the vape pen in a student's backpack to be heard did not make the use of the classroom private. 

Finally, the court determined that the school resource officer had a diminished expectation of privacy when acting as a law enforcement officer because he occupied a position of public trust.

The court of appeals held that the recording could be introduced as evidence in the trial.