State v. Joseph T.

*608 McGRAW, Justice,

dissenting:

Although our state constitution’s search and seizure provision is nearly identical to the fourth amendment, compare West Virginia Constitution art. Ill, § 6 with United States Constitution amend. IV, students are granted rights under our state constitution that have been rejected by the United States Supreme Court under the federal constitution, compare Pauley v. Kelly, 162 W.Va. 672 , 255 S.E.2d 859 (1979) with San Antonio Independent School District v. Rodriquez, 411 U.S. 1 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973). Furthermore, the student's constitutional right, under West Virginia Constitution art. XII, § 1, to a “thorough and efficient education” is not abstract, but enforceable. See Syl. 3, 4, and 5, Pauley, supra.

In interpreting the meaning of our state constitution’s “thorough and efficient education” clause, this Court noted in Syllabus Point 2 of Pauley, that, "The provisions of the Constitution of the State of West Virginia may, in certain instances, require higher standards of protection than afforded by the Federal Constitution.” This proposition was also recognized in New Jersey v. T.L.O., 469 U.S. 325 , 343 n. 10, 105 S.Ct. 733 , 745 n. 10, 83 L.Ed.2d 720 , 736 n. 10 (1985), where the United States Supreme Court conceded that, “[N]ew Jersey may insist on a more demanding standard under its own Constitution.” The majority in the instant case, however, in increasingly predictable fashion, chooses the path of least resistance, uncritically following the Court’s analysis in T.L.O. under the federal constitution.

Unquestionably, as the United States Supreme Court recognized in T.L. O., 469 U.S. at 338-339 , 105 S.Ct. at 742 , 83 L.Ed.2d at 732-33 , students have legitimate expectations of privacy in the school setting:

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 school may claim no legitimate expectations of privacy.... Students at a minimum must bring to school not only the supplies needed for their studies, but also keys, money, and the necessaries of personal hygiene and grooming. In addition, students may carry on their persons or in purses or wallets such nondisruptive yet highly personal items as photographs, letters, and diaries. Finally, students may have perfectly legitimate reasons to carry with them articles of property needed in connection with extra-curricular or recreational activities. In short, schoolchildren 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.

The school locker is certainly another place in which such nondisruptive and highly personal items are stored. As one commentator has observed, “[Ajpart from the integrity of his own body, his locker is one of his few harbors of privacy within the school. It is the only place where he may be able to store what he needs to preserve as private — letters from a girl friend, applications for a job, poetry he is writing, books that may be ridiculed because they are too simple or too advanced, or dancing shoes he may be embarrassed to own.” Buss, The Fourth Amendment and Searches of Students in Public Schools, 59 Iowa L.Rev. 739, 773 (1974); see also State v. Engerud, 94 N.J. 331, 348 , 463 A.2d 934, 943 (1983) (“For the four years of high school, the school locker is a home away from home. In it the student stores the kind of personal ‘effects’ protected by the Fourth Amendment.”)

Although the maintenance of order and discipline in the school obviously promotes a “thorough and efficient education,” respect for the privacy of students, particularly in their sensitive and formative years, also promotes this fundamental interest. As the United States Supreme Court stated in Board of Education v. Barnette, 319 U.S. 624, 637 , 63 S.Ct. 1178, 1185 , 87 L.Ed. 1628, 1637 (1943):

Boards of Education ... have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill *609 of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.

A totalitarian school environment, although conducive to the maintenance of order and discipline, is certainly not conducive to a “thorough and efficient education.”

In Syllabus Point 1 of State ex rel. D.D.H. v. Dostert, 165 W.Va. 448 , 269 S.E.2d 401 (1980), this Court held that, “Where a child is adjudicated delinquent for having committed an act which would be a crime if committed by an adult upon evidence which would not be admissible in a criminal trial, the delinquency adjudication must be reversed.” Similarly, West Virginia Code § 45 — 5—1(d) (Supp.1985), governing procedures in delinquency proceed-' ings, provides, in relevant part, that, “Except as herein modified, at all adjudicatory hearings, the rules of evidence applicable in criminal cases shall apply....”

Perhaps, at this point in constitutional history, “[t]he voice of one crying in the wilderness,” Matthew 3:3, I would nevertheless reaffirm the fundamental principles firmly established by the framers of our constitution and for which they courageously struggled, and hold that evidence seized from a student’s locker, in the absence of probable cause to believe that dangerous or disruptive contraband or evidence of criminality was present, although admissible in disciplinary proceedings, is inadmissible in criminal or delinquency proceedings under West Virginia Constitution art. Ill, § 6 and art. XII, § 1. This standard would both preserve the school’s legitimate interest in maintaining order and discipline and the student’s legitimate expectation of privacy in his or her locker. Furthermore, it would encourage the immediate involvement of law enforcement officials, who are better equipped to handle evidence of criminality, when there is probable cause to believe that a student has violated the law, as opposed to violations of school rules and regulations, which school personnel are better equipped at handling. This commonsense accommodation of the competing interests involved was adopted by the court in Gordon J. v. Santa Ana Unified School District, 162 Cal.App.3d 530, 542-44 , 208 Cal.Rptr. 657, 665-67 (1984), which held, under the fourth amendment, that although the exclusionary rule is fully available in criminal prosecutions and juvenile proceedings with respect to evidence illegally obtained by school officials, it is inapplicable in school disciplinary proceedings. In this jurisdiction, our “thorough and efficient education” clause provides additional support for this workable rule.

I concur wholeheartedly with the remarks of Justice Stevens in his dissent to the majority’s refusal to apply the probable cause standard in T.L.O., 469 U.S. at 373-374 , 105 S.Ct. at 760-61 , 83 L.Ed.2d at 755 -56:

Schools are places where we inculcate the values essential to the meaningful exercise of rights and responsibilities by a self-governing citizenry. If the Nation’s students can be convicted through the use of arbitrary methods destructive of personal liberty, they cannot help but feel that they have been dealt with unfairly. The application of the exclusionary rule in criminal proceedings arising from illegal school searches makes an important statement to young people that “our society attaches serious consequences to a violation of constitutional rights,” and that this is a principle of “liberty and justice for all.” [Footnotes omitted].

Our schools, ultimately, are not only institutions of learning, but are microcosms of our culture and civilization. In an era of constant attack upon the “rule of law” as embodied in such fundamental constitutional principles as the fourth amendment’s prohibition against unreasonable governmental intrusion into the privacy and security of its citizens, perhaps it is fitting that our children learn at a tender age that the struggle of our ancestors against the arbitrary exercise of the will of the Crown has become our struggle against the arbitrary exercise of the will of those who seek to *610 “balance” away as “mere platitudes” the fundamental constitutional rights for which those ancestors fought and died. In furtherance of such struggle, I must dissent.