State v. Joseph T.

MILLER, Chief Justice,

concurring in part, and dissenting in part:

Although I have no quarrel with the “reasonable suspicion standard” adopted by the majority, as I believe this comports with the majority view elsewhere, I believe the evidence did not rise to this standard.

At best, the evidence in this case indicated that a friend of the defendant disclosed that prior to coming to school, he had consumed some beer at the defendant’s home. There were no facts given to the school official that would indicate that the defendant kept beer or other alcoholic beverages in his school locker. From the record before us, the defendant had not been involved in any previous alcohol problem or for that matter any disciplinary problems on the school premises.

Thus, the only fact before the school authorities was an isolated admission by a friend of the defendant that he had stopped by the defendant’s home on the way to school and had consumed a beer. To elevate these facts into a “reasonable suspicion” that the defendant had beer in his school locker is impossible in my view.

The United States Supreme Court in New Jersey v. T.L.O., 469 U.S. 325 , 105 S.Ct. 733 , 83 L.Ed.2d 720 (1985), which framed the general standards adopted by the majority, made it clear that the reasonable suspicion standard must be based on the belief “that the student has violated or is violating either the law or the rules of the school.” 469 U.S. at 343-344 , 105 S.Ct. at 744 , 83 L.Ed.2d at 735 . It is difficult for me to see how the facts of this case could indicate a violation of the law on the part of the defendant and certainly no school regulation was involved because the incident occurred at home. The result would be different if the fellow student had obtained a beer from the defendant on the school premises.

The facts in T.L.O. illustrate the reasonable suspicion standard. There a student was smoking a cigarette in a school lavatory against school regulations. A teacher who observed the incident took her to the principal’s office. When confronted by a school administrator with this fact, the student denied smoking and claimed that she did not smoke at all. The administrator demanded to see her purse and in going through it discovered a pack of cigarettes and upon removing the cigarette pack discovered marijuana. Clearly, the grounds for reasonable suspicion existed with the infraction of the school regulation against smoking which warranted the initial search.

A number of courts that have accepted school searches under the reasonable suspicion standard have required that there be shown some objective and articulable facts that give rise to the reasonable suspicion to justify a search. In State v. D.T.W., 425 So.2d 1383, 1386 (Fla.Dist.Ct.App.1983), the court said school officials have “power to make an immediate, limited search, for contraband ... when a reasonable subjective suspicion supported by objective, articula-ble facts would lead a reasonably prudent person to suspect that these items are present.” See also Bellnier v. Lund, 438 F.Supp. 47, 53 (N.D.N.Y.1977) (requiring “articulable facts which together provided reasonable grounds to search”); T.A.O’B v. State, 459 So.2d 1106 (Fla.Dist.Ct.App. 1984); Rone v. Daviess County Bd. of Educ., 655 S.W.2d 28 (Ky.App.1983); Doe v. State, 88 N.M. 347, 352 , 540 P.2d 827, 832 (App.Ct.), cert. denied, 88 N.M. 318 , 540 P.2d 248 (1975); State v. McKinnon, 88 Wash.2d 75, 81 , 558 P.2d 781, 784 (1977) (for reasonable suspicion, school authorities should consider “the probative value and reliability of the information used as a justification for the search”); In re L.L., 90 Wis.2d 585, 601 , 280 N.W.2d 343, 351 (Ct.App.1979).

In the present case, there were no articu-lable facts which would lead a reasonably prudent person to suspect the defendant had alcoholic beverages in his locker. The only evidence was that his friend had consumed a beer at the defendant’s home before school. This information gave no indication that the defendant had alcoholic beverages in his locker.

*611 Moreover, despite the majority’s acknowledgment that “the search must be reasonable in terms of (1) the initial justification for the search and (2) the extent of the search conducted,” Syllabus Point 3, in part, I have difficulty in finding the extent of the search reasonable. The only objective of the search would have been to discover the existence of alcoholic beverages in the defendant’s locker. Yet, rather than pat down the defendant’s jacket, the school administrator made a detailed examination into its pockets.

In T.L.O., the United States Supreme Court was careful to analyze the scope of the search and concluded that the initial search for cigarettes in the purse was reasonable. It was during the course of this search that the marijuana was encountered.

A rather analogous situation existed in T.A.O’B v. State, supra, where the court found the search of the student’s pockets for cigarettes permissible but not the search of his wallet. See also M.M. v. Anker, 607 F.2d 588 (2d Cir.1979); Bellnier v. Lund, supra; In re W., 29 Cal.App.3d 777 , 105 Cal.Rptr. 775 (1973).

For the foregoing reasons, I respectfully dissent.