Petition — Louisiana v. Mora

* } MICHAEL RODAK, JR_CLERK

Supreme Court of the Uni aaa aie

OCTOBER TERM, 1976

No. 76-198

STATE OF LOUISIANA,

Petitioner,

WILLIAM AUGUST MORA, IR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE UNITED STATES

WILLIAM J. GUSTE, JR.

ATTORNEY GENERAL

STATE OF LOUISIANA

BARBARA B. RUTLEDGE

ASSISTANT ATTORNEY GENERAL

KNOWLES M. TUCKER

DISTRICT ATTORNEY

SIXTEENTH JUDICIAL DISTRICT

BERNARD E. BOUDREAUX, JR.

ASSISTANT DISTRICT ATTORNEY

WALTER J. SENETTE, JR.

ASSISTANT DISTRICT ATTORNEY

SCOFIELDS’ QUALITY PRINTERS. P. Oo. BOX 53096, N. O. LA. 70153 - 604/822-1611

— —

3 —— —

TABLE OF CONTENTS

Page

r eee 1

Denne 0..0.0000000005: N 1-2

STATEMENT OF THE CASZEmgn . 3

nn renn 3-5

. 5-19

1 — . 19-23

I 23-26

REASON FOR GRANTING THE WRIT ....... 26-28

EEE, Gn4ncuscntencesdudies<ccteescasesede 29

APPENDIX

Opinion and Judgment, entered and filed

TE TT ee Pree la

Opinion and Judgment, entered and filed

,, ⅛ Avr 21a

TABLE OF AUTHORITIES

Browning v. Crouse, 327 F.2d 529 (10 Cir. 1964) .. 18

Burdeau v. McDowell, 256 U.S. 465 (1921) ........ 21

California v. Krivda, 409 U.S. 33 (1975) ............ 5

Coolidge v. New Hampshire, 403 U.S. 443

SPE ?K«»» . . edeschdse 21

Elkins v. United States, 364 U.S. 206 (1960) ...... 13

Federalist No. 84: Boyd v. United States, 116

n cusex 21

In Re Donaldson, 269 Cal.App. 2d 509, 75

/ eins ceabaeedudnees wenesede 27

ii

TABLE OF AUTHORITIES (Continued)

Page

In Re State In The Interest of G.C., 121 N.J.

nr 27

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6

L.Ed. 2d 1081 (1961) ........... 6,13,14,15,16,17,19,21

' Overton v. Riegen, 311 F.Supp. 1035 .............. 27

People v. Jackson, 319 N.Y.S. 2d 731 ............. 27

People v. Stewart, 63 Misc. 2d 601, 313

,, Ac. oke~s 27

Rea v. United States, 350 U.S. 214 (1956) 13

Shreveport v. Marx, 86 So. 602, 148 La. 31 ........ 10

State v. Aias, 149 So.2d 40o⸗õů )) 13,14

State v. Baccino, 282 A.2d 689 ũ 99999292. 27

State v. Davidson, 177 So.2d 273 (1965) ........ 15,18

State v. Davis, 97 So. 590, 154 La. 405 ............ 11

State v. Eddins, 108 So. 468, 161 La. 240 (1926) 10

State v. Fleckinger, 93 So. 115, 152 La. 337

77 ⁰¹ AA 0 8.10

State v. James, 169 So. 2d 89 (1964) 14.18

State v. Lowry, 95 So. 596, 153 La. 1782. 11

State v. Mims, 95 So. 264, 153 La. 9 ............... 10

State v. Rasheed and Thomas, 248 La. 178

/ nt oO a ee tient nae 16

State v. Stein, 203 Kan. 638, 456 Pac.2d 128 27

State v. Zeblit, 93 So. 912, 152 La. 594 ............ 10

State of Oregon v. Hass, 420 U.S. 714 (1975) 28

iii

TABLE OF AUTHORITIES (Continued)

Page

State Tax Commission of Utah v. Van Cott,

D ͤ ¼œA.r..̃ ˙%w--k ! ’˙·˙·ꝛ?r¾ ' ete becenes 6

Terry v. Ohio, SOB U. s. 1 (10GB) nnnnͥuur 21

Tinker v. Des Moines, 89 S.Ct. 733 (1969) ... 20, 25,27

United States v. Calandra, 414U.S.338(1974) ..... 21

United States v. Milonvich, 303 F.2d 626 (4th

Cir. 1962) cert. denied, 371 U.S. 876, 83 S.Ct.

OG, Dates SU eee 18

Weeks v. United States, 232 U.S. 384 (1914) .... 7,11

Wolf v. Colorado, 338 U.S. 25 (1949) ............. 7,8

Wood v. Strictland, 420 U.S. 308 (1975) ........ 25,27

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No.

STATE OF LOUISIANA,

Petitioner,

versus

WILLIAM AUGUST MORA, JR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE UNITED STATES

OPINIONS BELOW

The majority opinion of the Louisiana Supreme

Court on remand as well as the dissenting opinions,

are contained in the Appendix to this brief.

JURISDICTION

The judgment of the Louisiana Supreme Court in the

instant case setting aside the conviction of William

August Mora, Jr. for possession of marijuana was ren-

dered on January 20, 1975. The application for rehear-

ing on behalf of the State of Louisiana was denied on

/

February 21, 1975, as is shown by the minute entry of

that date which appears in the Appendix to this peti-

tion. The State of Louisiana applied to the United

States Supreme Court for a writ of certiorari. On Octo-

ber 16, 1975, the writ was granted and the judgment of

the Louisiana Supreme Court vacated. The United

States Supreme Court further ordered that the case be

remanded to the Louisiana Supreme Court to consider

the constitutional grounds upon which the state court

decision was based. On March 29. 1976 the Louisiana

Supreme Court handed down its decision. The State of

Louisiana applied for a rehearing which was denied

on May 14, 1976.

QUESTIONS

1. Whether or not the Louisiana Supreme

Court based its judgment upon federal or

state constitutional grounds or both?

2. Whether a public school teacher who

searches property entrusted to him for

safe keeping by a student and seizes

incriminating evidence found therein,

should be treated as a private person and

hence not subject to Fourth Amendment

restrictions?

3. Assuming that the Fourth Amendment ap-

plies to public school teachers as well as

policemen, is a search by a public school

teacher which is based upon less than

probable cause yet more than mere

unfounded suspicion “reasonable” under

the Fourth Amendment?

3

STATEMENT OF THE CASE

The State of Louisiana charged the defendant,

William August Mora, Jr., with possession of mari-

juana in violation of La. R.S. 40:966. Prior to trial the

defendant filed a motion to suppress evidence, which

was denied. The defendant was tried and convicted of

possession of marijuana. He appealed the conviction

to the Louisiana Supreme Court, which held that the

motion to suppress evidence should have been main-

tained and reversed the conviction in a four to three

decision. The State of Louisiana is seeking a writ of

certiorari from this Honorable Court to review the

judgment of the Louisiana Supreme Court which

erroneously interpreted decisions of the United States

Supreme Court, the application of the exclusionary

rule, and the historical basis of the Fourth Amend-

ment.

FACTS

Mr. Coy Scott, a teacher at Franklin High School in

Franklin, Louisiana, was in charge of a physical

education class on March 22, 1973. In this class, each

student was required to change into gym clothes. In

order to protect students from the theft of valuables

while in class, each student was assigned a small can-

vas bag in which to place any valuables in his posses-

sion. This small bag was in turn placed ina larger bag

which was locked in the office of the teacher.

On the day in question, this procedure was followed

by the defendant in the presence of Mr. Scott. Mr. Scott

became suspicious when the defendant turned his

back to him while attempting to place an abnormally

oversized wallet in the small canvas bag. Mr. Scott

also testified that at the time of the incident the defen-

dant appeared highly nervous and that the defendant

was friendly with a number of students who Mr. Scott

knew to be connected with drug use. The defendant

placed this canvas bag containing his wallet into a

larger bag which Mr. Scott in turn locked in his office.

Due to his earlier suspicions, Mr. Scott later exa-

mined the defendant's wallet which was still inside the

canvas bag. In the wallet he found a green vegetable

like substance which he believed to be marijuana. Mr.

Scott testified that he was somewhat familiar with the

nature of marijuana because of drug education lec-

tures which had been given in his school.

Mr. Scott called the principal of the school, who in

turn called a school supervisor who was in charge of

the drug education program for the St. Mary Parish

school system. The supervisor testified that the sub-

stance found in the wallet resembled marijuana which

he had seen in drug education programs. Identifica-

tion which belonged to the defendant was found in the

wallet. The defendant’s father was called to the school,

advised of what had happened and advised to see Cap-

tain Keenze, the juvenile officer of the St. Mary Parish

Sheriff's Department, about the matter. The super-

visor and the principal brought the wallet and the

marijuana to the Sheriff's office and turned the matter

over to Captain Keenze. Captain Keenze found that the

defendant was seventeen years of age and hence an

adult under the criminal law of Louisiana. The defen-

dant was arrested for possession of marijuana and

prosecuted as an adult.

\

The defendant filed a motion to suppress the mari-

juana which was denied. He was tried, convicted, and

he appealed the conviction to the Louisiana Supreme

Court which reversed his conviction and held that the

motion to suppress should have been granted and the

evidence suppressed. The State applied for a rehear-

ing which was denied. The State applied for a writ of

certiorari to the Supreme Court of the United States.

On October 6, 1975 the Supreme Court of the United

States vacated the judgment of the Supreme Court of

Louisiana and remanded the case to the Supreme

Court of Louisiana to:

„ .. consider whether its judgment is based

upon federal or state constitutional grounds

or both. See California v. Krivda, 409 U.S. 33

(1975).”

The case was argued again before the Louisiana

Supreme Court and a decision was rendered on March

29, 1976, holding that the original judgment was based

upon both federal and state constitutional grounds. An

application for a rehearing was denied on May 14,

1976.

On remand the Louisiana Supreme Court decided in

a four to three decision that while its original decision

was based on both state and federal constitutional

grounds,

„. .. the suppression of the seized mari-

juana was mandated under the exclusionary

rule of Mapp v. Ohio, 367 U.S. 643, 81S.Ct. 1684,

6 L.Ed. 2d 1081 (1961).”

The United States Supreme Court has recognized

that where a state court has decided a case based on

both federal and state constitutional grounds the two

grounds may be so interwoven that the judgment can

not be said to rest on an independent interpretation of

state law. (See State Tax Commission of Utah v. Van

Cott, 306 U.S. 511). Although the Louisiana Supreme

Court found that its decision in Mora was based on

both federal and state constitutional grounds the two

grounds are so interwoven that the decision can not be

said to rest on the state ground independently of the

federal. As a result the federal constitutional ground

for the decision is the overwhelming and controlling

one.

The ultimate conclusion of the Court in Mora was to

exclude the evidence seized by rendering it inadmissi-

ble at trial. In reaching this decision the Court cited a

number of federal cases dealing with the implementa-

tion of the Fourth Amendment exclusionary rule. An

historical analysis of the federal exclusionary rule

shows that it developed from an interpretation of the

Fourth Amendment. Historically the legislation and

jurisprudence of Louisiana show that while Loui-

siana adopted the Fourth Amendment almost word for

word in Article I Section 7 of the Constitution of 1921,

there was an express rejection of any rule which

would exclude evidence from a trial because of an

unconstitutional search and seizure. Therefore, there

is no basis for a strictly Louisiana exclusionary rule

in the Louisiana Constitution of 1921 or in Louisiana

jurisprudence. As a result, Louisiana has no exclu-

7

sionary rule independent of the Fourth Amendment

and the federal exclusionary rule. Hence, while the

Court in Mora may have decided that the school of-

ficial violated both federal and state constitutions, it

could only exclude the evidence as a matter of federal

constitutional law which requires a violation of the

Fourth Amendment of the United States Constitution.

As a result the judgment of the Louisiana Supreme

Court in Mora excluding the evidence has no adequate

or independent basis upon which to stand other than

the Fourth Amendment to the Constitution of the

United States.

In support of this argument the State will examine

the origins of the federal exclusionary rule, the

application of the rule to the states, and the reaction of

the State of Louisiana to the rule as reflected in its

legislation and jurisprudence.

The exclusionary rule was applied to evidence

seized by federal law enforcement officers for the first

time in the case of Weeks v. United States, 232 U.S. 384

(1914). In this case this Court interpreted the ex-

clusionary rule to be a rule of evidence which gave the

Fourth Amendment a practical effect and thereby

excluded the use of evidence seized in violation of the

Amendment by federal law enforcement officials.

Next, in Wolf v. Colorado, 338 U.S. 25 (1949) the court

recognized that the Fourth Amendment applied to the

conduct of the state law enforcement officials but re-

fused to extend the exclusionary rule to enforce this

right. Instead, the court held that:

“We cannot brush aside the experience of

8

States which deem the incidence of such con-

duct by the police too slight to call for a

deterrent remedy not by way of disciplinary

measures but by overriding the relevant rules

Federal Constitution. The Court held that the Federal

Constitution had no affect on the seizure. The Court

further held, concerning Article I Section 7 of the Loui-

siana Constitution, that:

of evidence. There are, moreover, reasons for

excluding evidence unreasonably obtained by

the federal police which are less compelling in

the case of police under state or local authori-

ty. The public opinion of a community can far

more effectively be exerted against op-

pressive conduct on the part of police directly

responsible to the community itself than can

local opinion, sporadically aroused, be

brought to bear upon remote authority per-

vasively exerted throughout the country.”

(Wolf v. Colorado, 338 U.S. 25 (1949) ).

In addition, Wolf was based to a large extent on the

factual consideration that the states themselves were

not in complete agreement concerning the adoption of

the exclusionary rule on the state level. Some states

had adopted a similar rule since Weeks. Others had not

and relied on more traditional ways of curbing police

abuse of the Fourth Amendment.

The first mention of an exclusionary rule in Loui-

siana under the Constitution of 1921 is found in the

case of State v. Fleckinger, 93 So. 115, 152 La. 337

(1922). Fleckinger is the first case interpreting Article

I Section 7 of the Louisiana Constitution of 1921. In

Fleckinger the defendant was prosecuted for posses-

sion of lottery paraphernalia which the defendant ar-

gued had been illegally and unconstitutionally seized

without his consent and without a warrant in violation

of Article I Section 7 of the Louisiana Constitution and

“This section provides no penalty for its viola-

tion, nor does it declare that information ob-

tained or property so seized shall not be used

to support a prosecution against one who is

thus found to have violated the law. In fact, the

recent constitutional convention of 1921,

declined to write such a prohibition in the

present Constitution, notwithstanding the

final report of the committee on the Bill of

Rights (wherein this section if found) included

it in the Article recommended as said Bill of

Rights. See Journal of the Convention of 1921,

pages 423 and 454.

The ordinance, as introduced by Judge Reid,

as chairman of the committee on Bill of

Rights, contained, in addition to the language

quoted above, as a part of Section 7, the follow-

ing.

... And no evidence obtained by unlawful

search or seizure may be used against any per-

son accused of crime.” See Journal of the Con-

vention, p. 423.

But on motion of Mr. Snyder, of Madison, it

was stricken out by vote of the convention. See

Journal, p. 454.

10

The Legislature may enact laws, if it sees fit,

to carry this section into effect and to punish

its violations, just as it might any other con-

stitutional provision; but the courts are not

justified in adding to the article language

which the writers of the organic law refused to

adopt.” (Fleckinger p. 341)

The court went on to hold the evidence admissible

even though seized without a warrant in violation of

Article I Section 7 of the Louisiana Constitution.

In State v. Eddins, 108 So. 468, 161 La. 240 (1926) the

Louisiana Supreme Court discussed in detail the

arguments for and against a Louisiana exclusionary

rule. Eddins involved a seizure of illegal whiskey

from the defendant’s residence without a search

warrant. The Court stated that the issue presented in

Eddins concerned whether:

. . . evidence of the commission of a crime is

not admissible against a person accused of the

crime, if the evidence was procured by an un-

lawful search and seizure by an officer of the

law. The question is not new. We have decided

several times that the fact that evidence of the

commission of a crime or misdemeanor was

obtained by an unlawful search and seizure by

an officer of the law does not affect the ques-

tion of admissibility or worth of the evidence

against the person on trial for the crime or

misdemeanor. City of Shreveport v. Marx, 86

So. 602, 148 La. 31; State v. Fleckinger, 93 So.

115, 152 La. 337; State v. Zeblit, 93 So. 912, 152

La. 594; State v. Mims, 95 So. 264, 153 La. 9;

11

State v. Lowry, 95 So. 596, 153 La. 178; State v.

Davis, 97 So. 590, 154 La. 405.” (Eddins p. 242).

The Court noted that counsel for the defendant had

cited Weeks v. United States, 232 U.S. 384 (1914) which

had enforced an exclusionary rule against federal of-

ficers. In Eddins counsel for the defendant requested

that the court reconsider its prior jurisprudence in

light of Weeks. In response the Court noted that

although other state courts had adopted an ex-

clusionary rule since Weeks:

“The Fourth and Fifth Amendments, of

course, are not applicable to prosecutions in

the state courts.” (Eddins, p. 243)

The Court went on to cite the Fourth Amendment and

the corresponding section of the Louisiana Constitu-

tion (Article I Section 7) and recognized the evil in-

herent in police conduct which violates these basic

laws. However, the Court held that it would:

.. . adhere to the opinion which we have ex-

pressed in former decisions that, however

wrong and illegal it may be for an officer of the

law to invade and search a private dwelling

without a warrant, his offense does not affect

the question of admissibility or worth of

evidence discovered in that way. The

provisions of the Constitution and the statute

forbidding a search of a private dwelling

without a warrant do not constitute a rule

regarding the admissibility of evidence. An

unsuccessful attempt was made in the Con-

12

stitutional convention of 1921 to make Section

7 of Article I a rule of evidence. As reported by

the committee on the Bill of Rights, Section 7

contained this provision, which, on motion of

one of the delegates (who was a district at-

torney), and by vote of the convention itself,

was stricken out, viz:

And no evidence obtained by unlawful

search or seizure may be used against any per-

son accused of crime.

See Journal of the Convention, pp. 423 and

454. (Eddins, pp. 244-245)

Although the Court agreed that the unconstitutional

search of a residence by an officer of the state was

wrong it did not:

ee

. agree that the only or proper way to

rebuke or punish the officer in such acase is to

let the victim of his wrongdoing, caught

violating another law, enacted pursuant to

another Amendment of the Constitution, go

free. (Eddins, p. 246)

Instead, the Court reaffirmed the earlier

jurisprudence and held the evidence admissible and

specified other ways to curb police conduct. These ear-

ly Louisiana decisions clearly show that the State of

Louisiana had legislatively and judicially rejected

attempts to adopt an exclusionary rule similar to that

of Weeks.

13

During this period the federal courts expanded the

scope of the federal exclusionary rule. In the case of

Rea v. United States, 350 U.S. 214 (1956) the Court held

that the main thrust of the exclusionary rule is the

control of federal law enforcement officers and that

the rule was based upon the Federal Rules of Criminal

Procedure. In Elkins v. United States, 364 U.S. 206

(1960) the court cut down what had been an exception

to the exclusionary rule, namely that evidence seized

by state police could be given to the federal police on a

“silver platter” for use against the defendant in

federal court and thereby survive constitutional at-

tack. In Elkins the court held it would apply the ex-

clusionary rule to any evidence sought to be in-

troduced in a federal court regardless of whether it

was seized by state or federal law enforcement of-

ficials.

The expansion of the exclusionary rule in Elkins

was followed by the court in Mapp v. Ohio, 367 U.S. 643

(1961). In Mapp the United States Supreme Court

overruled Wolf and held that the exclusionary rule

was binding upon the states as well as the federal

government. In Mapp the court specified police mis-

conduct as the evil to be controlled by the exclusion of

evidence seized in violation of the Fourth Amend-

ment. According to the Court in Mapp the ex-

clusionary rule was not just a rule of evidence but an

“essential part” of the Fourth Amendment and applied

to the States through the Fourteenth Amendment.

The Louisiana Supreme Court implemented the

federal exclusionary rule in a number of decisions

following Mapp. In State v. Aias, 149 So. 2d 400, the

Court stated that:

14

“In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6

L.Ed.2d 1081 (decided June 19, 1961) the United

States Supreme Court held that the “Ex-

clusionary Rule” of the Weeks case, supra, is

an essential part of both the Fourth and

Fourteenth Amendments to the United States

Constitution. It held that the Fourth

Amendment’s right of privacy was en-

forceable against the States through the “Due

Process Clause” of the Fourteenth Amend-

ment, stating that it was enforceable against

the States by the same sanction of exclusion as

is used against the Federal Government.”

(Aias, p. 406)

In the case of State v. James, 169 So.2d 89 (1964) then

Justice Sanders, now Chief Justice, concisely sum-

marized in a dissent to the refusal to grant a rehearing

the effect of Mapp on the search and seizure law of

Louisiana in the following language:

The Mapp decision did not reduce the search

authority of state law enforcement officers.

Such searches as the one in the present case

were violative of constitutional rights before

Mapp. The decision did add a sanction: It made

the evidence from unconstitutional searches

inadmissible in state criminal proceedings.

At the time of the decision, over half the states

had already adopted the exclusionary rule.

While this Court had rejected the exclusionary

rule, it at one time had been divided on the

question.” (James, p. 119)

15

It is clear from the above cited cases that Louisiana

had no exclusionary rule prior to Mapp and the

Louisiana courts only began excluding evidence with

the advent of Mapp. Since Mapp no Louisiana case has

specifically held that Louisiana in response to Mapp

adopted its own exclusionary rule independent of

Mapp.

It can be argued that although the Louisiana

Supreme Court did not specifically adopt an ex-

clusionary rule independent of Mapp that the enaci-

ment by the Louisiana legislature of Article 703 of the

Louisiana Criminal Code of Procedure resulted in the

establishment of a separate exclusionary rule in

Louisiana. However, an examination of the history of

the procedural implementation of Mapp shows that

Article 703 was strictly a legislative reaction to Mapp

and merely provided a procedural vehicle whereby the

requirements of Mapp could be followed in a

procedurally proper and orderly manner. It therefore

does not represent the enactment of a substantive

Louisiana exclusionary rule by the legislature.

In State v. Davidson, 177 So.2d 273 (1965) the

Louisiana Supreme Court expressly looked to the

Federal Rules of Criminal Procedure for the proper

procedural vehicle to raise the question of an un-

constitutional search and seizure and stated that:

“Since an objection to evidence on the ground

that property had been unlawfully seized was

unavailing under our jurisprudence, no provi-

sion was made in our Code of Criminal

Procedure in 1928 for the necessity of a motion

to suppress evidence or to quash a search

16 17

i i directs the attention of the Court to the

warrant in cases involving alleged illegality The State also

as a result of an unreasonable search and acknowledged source of Article 703 as cited in the Of-

seizure ficial Revision Comment to that article found in the

' Louisiana Code of Criminal Procedure which states:

However, the ruling in Mapp v. Ohio, supra,

that the rights secured by the Fourth Amend-

ment to the Federal Constitution are en-

forceable against the states through the due

process clause of the Fourteenth Amendment,

has constrained the State courts to exclude

evidence in criminal cases which has been ob-

tained by an unlawful search and seizure and,

therefore, the question remains as to the

procedural vehicle to be employed by the ac-

cused in assailing the legality of the seizure in

a State like this where there is no statute or

prior jurisprudence defining the proper

method by which the issue is to be presented.

In any event, we believe that, since the ex-

clusionary rule must be applied in all state

crimina! cases in accordance with the edict in

Mapp v. Ohio, the procedural rights of the ac-

cused should also conform with the standard

provided by the Federal Courts and that he

should not be accorded by the trial courts in or

of this State any less onerous procedure than

he would have had if he had been tried before a

Federal Court. See State v. Rasheed and

Thomas, 248 La. . 178 So.2d 261, this day

handed down. In other words, coexistent with

the implementation of the exclusionary rule,

it is our policy to adopt and enforce the

procedural rule of the court from which the ex-

clusionary rule has emanated.” (Davidson, pp.

274-275) '

“(a) This article is a modification of the source

material insofar as suppression of the use of

property as evidence is concerned. Federal

Rule 41(e) provides that the motion may be

filed in a court having jurisdiction over the

place where the seizure took place or in the

trial court. Although this may be necessary

where the federal government is involved, itis

not necessary on the state level. For example,

if there has been a seizure in Baton Rouge and

the trial is in New Orleans, it is not necessary

to permit a motion to suppress in a Baton

Rouge court.

(b) In lieu of enumerating the situations to

which the motion applies, as does Federal

Rule 41(e), Paragraph A of this article applies

generally to evidence obtained as a result of an

unconstitutional search or seizure. This con-

forms with the standard set in Mapp v. Ohio,

367 U.S. 643, 81 S.Ct. (1684), 6 L.Ed.2d 1081

(1961), which applied Fourteenth Amendment

“due process” concepts to state searches and

seizures. The term “unconstitutional,” rather

than the term “illegal” is employed on the

theory that a search or seziure can be “illegal”

if some minor aspect of search or seizure, or of

the search warrant or arrest involved, was

technically contrary to law even if not

violative of Fourteenth Amendment due

18

process” concepts as expressed by the Mapp

case. Use of the more limited term “un-

constitutional,” also conforms with the

Louisiana Supreme Court’s interpretation of

the Mapp requirements in State v. James, 246

La. 1033, 169 So. 2d 89 (1964). State v. James

was reversed on other grounds by the United

States Supreme Court, 382 U.S. 36, 86 S. Ct. 151.

15 L.Ed. 2d 30 (1965).

(c) The provision in the federal rule to the

effect that the judge can hear all evidence

necessary to decide the motion is omitted from

this article because it is unnecessary.

(d) Paragraph A of this article, similar to

Federal Rule 41(e), limits the time for filing

the motion to suppress authorized by that

paragraph. As interpreted by the federal

courts, if the motion is not timely filed, the

taint of unlawfulness is waived and the attack

may not be made later during the trial by an

objection to admissibility. United States v.

Milonvich, 303 F.2d 626 (4th Cir. 1962), cert.

denied, 371 U.S. 876, 83 S.Ct. 145, 9 L.Ed. 2d 115

(1962); Browning v. Crouse, 327 F.2d 529 (10th

Cir. 1964). Accord: State v. Davidson, 248 La.

161, 177 So.2d 273 (1965).”

In summary, the logic of the State’s argument on

this point may be outlined in the following manner.

FIRST: The Louisiana Supreme Court decided that

the school official violated both the Fourth Amend-

19

ment and Article I Section 7 of the Louisiana Constitu-

tion and excluded or suppressed the evidence which

was unconstitutionally seized.

SECOND: An analysis of the adoption of Article I

Section 7 of the Louisiana Constitution of 1921, the

jurisprudence of Louisiana dealing with an ex-

clusionary rule prior to Mapp, the nature of the federal

exclusionary rule as set out in Mapp, and the

legislative and judicial reaction to Mapp shows that

under Article I Section 7 of the Constitution of 1921

Louisiana has no exclusionary rule independent of

Mapp. ’

THIRD: Since Louisiana has no state exclusionary

rule, the constitutional grounds for the exclusion of

the evidence was the federal exclusionary rule which

according to Mapp is an essential part of the Fourth

Amendment and therefore has constitutional status.

FOURTH: Although the decision of the Louisiana

Supreme Court recites that it was based in part on

state constitutional grounds it does not have an ade-

quate independent basis in state law because without

the federal grounds the Court could not have excluded

the evidence.

ISSUE II

At the heart of both decisions of the Louisiana

Supreme Court is the reasoning that under the Fourth

Amendment a public school teacher must be held to

the same strict rules as is a policeman. As a result,

when evidence is seized by a public school teacher and

the state seeks to introduce that evidence against the

student in a criminal proceeding the search and

seizure must conform to the warrant requirements of

the Fourth Amendment or fall within one of its excep-

tions.

The State of Louisiana concedes that in light of the

case of Tinker v. Des Moines, 89 S.Ct. 733 (1969) public

school students are protected by the Fourth Amend-

ment in as well as out of school. However, the State of

Louisiana is of the belief that the Louisiana Supreme

Court committed error when it held that a public

school teacher is a “government agent” similar in

function to a policeman and hence subject to the strict

requirements of the Fourth Amendment. In reaching

this result the Louisiana Supreme Court reasoned that

in the same manner that the policeman has the respon-

sibility and duty to enforce the laws of the state, the

public school teacher has the responsibility and duty

to enforce the regulations of a school system. In addi-

tion, the regulations of a school system, like the laws

of society are both designed to protect the many from

the irrational acts of the few and that therefore the

function of the policeman and the teacher are similar.

At first blush, it would seem that for Fourth Amend-

ment purposes the public school teacher should be

held to the same test of “reasonableness” as the police

officer, that of “probable cause.” The logic of this

argument, however, is blunted by an analysis of the

relationship which exists between a police officer and

citizens as compared with a public school teacher and

students.

The main function of the policeman in society is that

of law enforcement. He represents the state’s power to

21

control the lives of its citizens. The public school

teacher on the other hand, functions within society

and the school as a teacher. This is his main function.

Only secondarily does he enforce the regulations and

rules of the school. The school official is not trained in

the complex issues of constitutional and criminal law

as is the police officer. The objective of the school of-

ficial is to instruct and educate, not to arrest and

amass evidence of crime.

It is this line of reasoning which forms the heart and

core of the exclusionary rule and the corresponding

distinction between police conduct and the conduct of

private citizens. Historically the Fourth Amendment

originated as a control on the power of the state.

Federalist No. 84: Boyd v. U.S., 116 U.S. 616 (1886);

Burdeau v. McDowell, 256 U.S. 465 (1921) and Coolidge

v. New Hampshire, 403 U.S. 443 (1971) and the

jurisprudence of this Honorable Court shows an

attempt to deter police misconduct through the ex-

clusionary rule by keeping evidence seized in viola-

tion of the Fourth Amendment out of court and thereby

deterring law enforcement authorities from violating

the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643

(1961); Terry v. Ohio, 392 U.S. 1 (1968); Coolidge v. New

Hampshire, 403 U.S. 443, (1971). In United States v.

Calandra, 414 U.S. 338 (1974) the Court considered the

use of illegally seized evidence in a grand jury

proceeding. The United States Supreme Court held

that the exclusionary rule was only a “remedial

device,” (Calandra, at p. 348) and hence not applicable

to a grand jury proceeding. The court went further to

specifically hold that:

“The rule is a judicially created remedy

designed to safeguard Fourth Amendment

rights generally through its deterrent effect

rather than a personal constitutional right of

the party aggrieved.” (Calandra, at p. 348)

This case specifically discarded the personal right

theory and the judicial integrity theory and held that

the sole basis for the exclusionary rule is its deterrent

effect on police misconduct.

Knowledge is essential to deterrence. In order to be

deterred from doing an act a person must have

knowledge of the adverse consequences of his act. A

large part of the knowledge a person possesses is

directly related to his basic function in society. A

policeman’s basic function is to enforce the law.

Hence, part of his knowledge consists of the Fourth

Amendment and the exclusionary rule. With this

knowledge (that any evidence he seizes in violation of

the Fourth Amendment will be excluded from court)

he is deterred from violating this rule.

In Mapp the court held that when the police violate

the Fourth Amendment while seizing evidence, that

evidence is not admissible to convict the defendant.

Under Calandra the basis for the exclusionary rule is

police deterrence. Although a teacher is an employee

of the state, he is not a policeman. While he has some

functions similar to that of a policeman, such as en-

forcement of school regulations, his main function is

instruction, not law enforcement. Therefore, the

rational basis for the existence and application of the

exclusionary rule to the actions of the police is absent

23

when the rule is applied to the actions of a teacher.

Evidence seized in violation of the Fourth Amendment

by a policeman, if admissible in court, would promote

the functions of the policeman to legally control

crime. Evidence seized in violation of the Fourth

Amendment by a teacher, if admissible in court, would

not promote the function of a teacher to educate and in-

struct. Hence, the deterrence effect of the exclusionary

rule will have no force or effect on the teacher.

Applying the foregoing analysis to the facts of this

case, the following conclusions may be drawn.

Although technically an employee of the state, the

teacher who found the evidence was not employedina

law enforcement capacity. He had no law enforcement

duties to carry out. The Fourth Amendment as en-

forced by the exclusionary rule applies only to state

action by a state official acting in a law enforcement

function. Since the teacher acted as a private citizen in

seizing the marijuana in this case, he had no

knowledge of the exclusionary rule or the Fourth

Amendment, and the application of these complex

rules of constitutional law to his conduct would not

prevent or deter his future action. There was no

evidence of any prior cooperation between the teacher

and the police which would thereby make his actions

subject to the Fourth Amendment.

ISSUE III

Assuming that this Honorable Court agrees with the

Louisiana Supreme Court that a public school teacher

should be treated as a law enforcement official for pur-

poses of the Fourth Amendment, certiorari should be

24

granted to determine the important and related issue

of whether the search of the defendant in this case on

less than probable cause but more than mere un-

founded suspicion was reasonable“ under the Fourth

Amendment. The State submits that a search by a

teacher requires less than probable cause for its

justification.

The essence of this argument is that due to the in-

herently different functions of a police officer and a

public school teacher a lesser degree of reasonable“

should be required of a public school teacher for his

actions to qualify under the Fourth Amendment as

reasonable than that which is required of the police of-

ficer.

The logic of this argument is not new. In the area of

stop and frisk, it is the great probability of physical

danger to the police officer which allows him to search

a person for weapons even though he does not have

a search warrant or fall within one of the exceptions to

a search warrant. Hence, in the case of a school official

it is his lack of knowledge of constitutional and

criminal law which allows him to justify his search on

less than probable cause. This argument does not

allow indiscriminate searching of students by school

officials but requires that the school official point to

specific facts which justify his reasonable suspicion.

The school official is not required to follow complex

criminal procedure of which he has no knowledge, but

the student’s Fourth Amendment rights are given suf-

ficient protection.

If the court decides to treat school officials as

policemen for the purposes of the Fourth Amendment,

25

it should adopt the reasoning of Tinker v. Des Moines,

89 S.Ct. 733 (1969) and Wood v. Strictland, 420 U.S. 308

(1975) and formulate a less strict test than that used for

policemen in deciding whether or not a search by a

school official is reasonable. In both Tinker and

Strictland the United States Supreme Court held that

while students are protected by the constitutional

rights of free speech and due process in as well as out

of school, a different standard for evaluating the ex-

tent of these rights would be used when they are exe!

cised on the school ground. Therefore, even if this

Court decides that students are to be protected by the

Fourth Amendment from “unreasonable” searches

and seizures by teachers then, this Court should grant

writs of certiorari to decide the important question of

whether the test for what is “reasonable” should be

different than that applied to police officers.

Applying these considerations to the facts of this

case, the search by the teacher of the property of the

defendant was reasonable under the Fourth Amend-

ment for the following reasons:

1. The defendant acted in such a manner so as

to arouse the reasonable suspicion of the

teacher. The teacher testified that he saw

the defendant turn his back to him and stuff

something into his wallet. This action

caused the wallet to become excessively

large and bulky.

2. The teacher had knowledge of the defen-

dant’s association with persons he knew or

suspected to be drug users.

3. The teacher testified that the defendant

appeared excessively nervous and excited

when he put the wallet inside the canvas

bag.

4. The teacher had some basic knowledge of

drugs and drug use due to drug orientation

lectures given by the school board.

While the above mentioned facts would not amount

to probable cause under the Fourth Amendment if the

teacher were a police officer, they do add up to what

can be called reasonable suspicion upon which a

school teacher not trained in constitutional law could

justify a search.

REASONS FOR GRANTING THE WRIT

The State of Louisiana is of the respectful belief that

this case confronts the court with an important fun-

damental issue concerning the nature of the

relationship between students and public school

teachers and its result will ultimately affect the quali-

ty of public education throughout the State of

Louisiana and the nation.

This decision by the Supreme Court of Louisiana is

based entirely upon the erroneous interpretation by a

state court of federal constitutional standards as

reflected by the prior decisions of the United States

Supreme Court.

The Supreme Court of Louisiana certified on re-

mand that the evidence was excluded as a result of the

27

federal exclusionary rule of Mapp which has con-

stitutional statute.

This decision of the Louisiana Supreme Court

places a heavy burden on public school teachers

throughout the State of Louisiana who are already

burdened with increasing discipline problems.

This decision of the Louisiana Supreme court is ovt

of line with the vast majority of both federal and state

decisions on this issue. (See 49 ALR 3d 978 at 985; In Re

Donaldson, 269 Cal. App.2d 509, 75 Cal. Rep. 220; Peo-

ple v. Stewart, 63 Misc. 2d 601, 313 N. V. S. 2d 253; State

v. Stein, 203 Kan. 638, 456 Pac. 2d 128; Overton v.

Riegen, 311 Supp. 1035; People v. Jackson, 319

N. V. S. 2d 731, affirmed 30 N. V. 2d 734, 33 N.Y.S.2d 168;

284 N.E. 2d 152; In Re State In The Interest of G.C., 121

N.J. Super. 108, 296 A. 2d 102; State v. Baccino, 282

A. 2d 689; 49 ALR 3d 973; 79 C.J.S. Schools and School

Districts, 1 493)

This decision of the Louisiana Supreme Court is in

direct conflict with the logic of two major recent Unit-

ed States Supreme Court decisions (Tinker v. Des

Moines, 89 S.Ct. 733 (1969); Wood v. Strictland, 420

U.S. 308 (1975) dealing with the public schools of the

nation which hold that although students do not shed

their constitutional rights at the school yard gate, the

test to be used to determining the extent to which these

constitutional rights are to be exercised in school is of

necessity and reason different from the test used out-

side the school.

This decision of the Louisiana Supreme Court

automatically incorporated the entire law of search

and seizure previously only applicable outside the

school system into the school system without proper

consideration of the possible adverse effects such a

decision will have within the school system as to the

ability to maintain discipline and a good educational

environment.

This decision of the Louisiana State Supreme Court

was decided on Fourth Amendment grounds and

therefore under the recent United States Supreme

Court decision of State of Oregon v. Hass, 420 U.S. 714

(1975), this case presents a substantial federal ques-

tion for review.

This decision of the Louisiana Supreme Court

presents a substantial federal question which has not

yet been considered by the United States Supreme

Court. This Court has rendered decisions concerning

the extent to which the first amendment free speech

standard applies to the public school system (See

Tinker v. Des Moines, 89 S.Ct. 733, 1969) as well as the

due process standard of the Fourteenth Amendment.

(See Wood v. Strictland, 420 U.S. 308 (1975) In addition

the Louisiana Supreme Court has decided this case on

a rationale contrary to that accepted by the United

States Supreme Court in the cases mentioned above.

— ree oe —

29

CONCLUSION

The State of Louisiana respectfully prays that a writ

of certiorari issue herein directed to the Supreme

Court of Louisiana, and further prays that the judg-

ment of the Louisiana Supreme Court erroneously in-

terpreting the applicability of the Fourth Amendment

and the federal exclusionary rule to the actions of a

public school teacher be reversed.

RESPECTFULLY SUBMITTED,

WILLIAM J. GUSTE, JR.

Attorney General

State of Louisiana

BARBARA A. RUTLEDGE

Assistant Attorney General

KNOWLES M. TUCKER

District Attorney

Sixteenth Judicial District

BERNARD E. BOUDREAUX, JR.

Assistant District Attorney

WALTER J. SENETTE, JR.

Assistant District Attorney

CERTIFICATE

I certify that a copy ofthis Petition for Certiorari has

been mailed to:

Guy J. D’Antonio

Reed, Reed and D’Antonio

Ground Floor-Executive Towers

3500 N. Causeway Blvd.

Metairie, La. 70002

Attorney for William Mora

WALTER J. SENETTE, JR.

Assistant District Attorney

Parish of St. Mary

la

No. 54,884

SUPREME COURT

OF THE STATE OF LOUISIANA

STATE OF LOUISIANA

VS.

WILLIAM AUGUST MORA, JR.

OPINION AND JUDGMENT

BARHAM, J.

Entered and Filed Jan. 20, 1975

/s/ HAROLD A. MOISE, JR.

Clerk.

REHEARING REFUSED

Feb. 21, 1975

SUPREME COURT OF LOUISIANA

A TRUE COPY

JULY 28, 1976

/s/ ANDREW J. FALCON

Deputy Clerk

(SEAL)

2a

SUPREME COURT OF LOUISIANA

NO. 54,884

STATE OF LOUISIANA

VERSUS

WILLIAM AUGUST MORA, JR.

ON WRIT OF CERTIORARI TO THE SIXTEENTH

JUDICIAL DISTRICT COURT, PARISH OF ST.

MARY, HONORABLE ROBERT M. FLEMING,

JUDGE.

BARHAM, Justice.

Relator was convicted of possession of marijuana, a

violation of La. R.S. 40:966C, and was sentenced to six

months’ imprisonment in the parish jail. We granted

certiorari upon relator’s application to review the

trial court’s denial of a motion to suppress the mari-

juana which formed the basis of the prosecution and a

motion to suppress a confession. We find merit in

relator’s arguments alleging error in the trial court's

ruling on his motion to suppress the marijuana and we

therefore pretermit consideration of relator’s other

complaint.

At the time that the marijuana was seized, relator

was a seventeen-year-old high school senior who was

participating in a physical education class at the

school he attended. Each participant changed from

street clothes to gym clothes before joining in the

class activities and, in accordance with a customary

3a

practice, placed his wallet and other valuables in an

individual small canvas bag provided for that pur-

pose. Once the small valuables bags were filled, they

were all placed in a large duffel bag which was locked

for safekeeping in the instructor’s office for the dura-

tion of the class.

On the day of the search and seizure, relator ob-

tained his small valuables bag from the instructor.

The instructor testified at the hearing on the motion to

suppress that the relator turned his back while filling

the canvas bag, that his actions were furtive, and that

he experienced some difficulty in placing his wallet,

which appeared to be bulky, into the small canvas bag.

Once the small valuables bag had been placed in the

duffel bag, the instructor locked the duffel bag in his

office. The instructor further testified that after reflec-

ting on relator’s furtive actions and considering them

in light of his knowledge that some of relator’s com-

panions were narcotics users and that there was talk

of the use of drugs by different student groups, he

decided to inspect the contents of relator’s wallet.

When he opened the wallet, he found a plastic bag

which contained a leafy green substance. Believing

the substance to be marijuana, he summoned the

school principal. The principal concurred in the in-

structor’s belief and notified the juvenile authorities,

to whom the marijuana was ultimately released.

Relator’s prosecution ensued and *' e motion to sup-

press the marijuana was heard and denied.

The Fourth Amendment to the United States Con-

stitution and Article I, §7 of the Louisiana Constitution

of 1921 (in effect at the time of the search in question)

safeguard persons from unreasonable searches con-

4a

ducted without a warrant. However, the applicability

of these constitutional prohibitions against unrea-

sonable searches and the exclusionary rule of Mapp v.

Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) is

limited to cases where the seizure is effected by

governmental agencies. Concomitantly, the fruits of

searches and seizures conducted by private persons

are not subject to exclusion. See e.g., Barnes v. United

States, 373 F.2d 517 (5th Cir. 1967). See also Burdeau v.

McDowell, 256 U.S. 465, 41 S:Ct. 574, 65 L.Ed. 1048

(1921). Therefore, before we can decide the constitu-

tionality of the search itself, we must initially deter-

mine whether the instructor and the school principal

who effected the search and seizure were functioning

as private persons, exempt from the stricture of the

constitutional provisions, or as governmental agents,

subject to those provisions.

Principals and instructors, like others employed by

the State through its school boards, are responsible

for public education in this State and are charged with

the responsibility of implementing the policies of the

State in this respect. By state law a teacher is authoriz-

ed to hold each pupil strictly accountable for disorder-

ly conduct at school. A principal may suspend from

school any pupil who is guilty of willful disobedience

or who uses tobacco or alcoholic beverages in any

form in school buildings or on school grounds or who

commits any other serious offense. La. R.S. 17:416.

Because of the function of these school officials and

their strict accountability to the State, we must con-

clude that these school officials, insofar as they are

discharging their duties by enforcing State policies

and regulations, are within the purview of the Fourth

Amendment's prohibition; therefore, their students

must be accorded their constitutional right to be free

from warrantless searches and seizures.

We must now consider whether the search and

seizure effected by these State officials violated the

constitutional stricture against unreasonable

searches and seizures and whether suppression of the

seized marijuana was consequently mandated under

Mapp.

The general rule is that a search conducted without a

warrant is per se unconstitutional. Schneckloth v.

Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854

(1973) * * *” State v. Tant. 287 So. 2d 458, 459 (La. 1973).

However, it is possible for a search without a warrant

to be constitutional, if and only if it falls within one of

those categories recognized as “specifically estab-

lished and well-delineated exceptions” to the warrant

requirement. See Coolidge v. New Hampshire, 403

U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), citing Katz

v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d

576 (1967). Two examples of such exceptions are

searches incident to a lawful arrest and certain

automobile searches.

We hold that a search on school grounds of a stu-

dent’s personal effects by a school official who

suspects the presence or possession of some unlawful

substance is not a “specifically established and well-

delineated” exception to the warrant requirement and

that the fruits of such a search may not be used by the

State prosecutorial agency as the basis for criminal

proceedings.

For the reasons assigned, the relator’s motion to

suppress is maintained and his conviction and

sentence are reversed.

SANDERS, C. J., dissents for the reasons assigned by

Mr. Justice Summers.

SUMMERS, J., dissents and will assign reasons.

MARCUS, J. dissents for reasons assigned by Mr.

Justice Summers.

SUPREME COURT OF LOUISIANA

NO. 54,884

STATE OF LOUISIANA

VS.

WILLIAM AUGUST MORA, JR.

Filed Jan. 21, 1975

SUMMERS, Justice (dissenting).

I cannot agree with the majority. I would decide this

case as follows:

7a

Certiorari was granted to review the trial judge’s

ruling denying a motion to suppress marijuana on the

ground that it had been obtained as a result of an un-

lawful search and seizure and to review his ruling

denying a motion to suppress a confession on the

ground that it was not made freely and voluntarily.

Defendant was charged by bill of information with

possession of marijuana. La. R.S. 40:966C. Prior to

trial, defense counsel filed motions to suppress mari-

juana confiscated by the State on the ground that it had

been obtained by an unlawful search and seizure. He

also filed a motion to suppress defcadant’s confession,

alleging that it was not free and voluntary. Hearings

were held and both motions were denied. After trial by

the court without a jury, defendant was found guilty on

December 12, 1973 and sentenced to serve six months

in the parish jail. On defendant’s application, writs

were granted to review the ruling denying the motions

to suppress the marijuana and the confession.

*

The Search and Seizure

Defendant was a high school student on March 22.

1973 when this offense occurred. At the time he was

seventeen years old. Coy Scott, the physical education

instructor, a member of the high school faculty, was

conducting an early morning class in physical educa-

tion in which defendant was enrolled. In accordance

with a practice customarily followed, before each

class, as they were “dressing out”, students wishing to

do so placed their wallets, watches and other small,

valuable personal effects in small individual canvas

“valuables or P.E. bags” furnished by the school. The

8a

bags were then turned over to the instructor in charge

of the class who, in turn, placed them in a large duffle

bag. This bag was then locked in the instructor's office

for safekeeping while the class was in progress. Ex-

perience had taught that this practice reduced pilfer-

ing.

On the day in question, defendant obtained his can-

vas valuables bag from Scott’s desk and furtively

turned his back while inserting his wallet. Scott ob-

served defendant's furtive actions and the fact that his

wallet was bulky, causing defendant to experience

some difficulty in his nervous effort to put the over-

stuffed wallet into the bag. When defendant turned his

valuables bag in, Scott placed it in the larger duffle

bag and locked it in his office. Later, while the class

was in session, Scott reflected upon this incident and

the fact that “during this time, there had been several

of the kids speaking of the different groups using

drugs”, and further, because, he said, “During this

time, we had had several cases of drugs being used;

and, of course, we had completed a drug seminar, and

we had been cautioned many times to keep our eyes

open for anything that may be suspicious going on at

school. . . In addition, he had been informed that

some of defendant’s friends, or students he ran with,

were narcotic users.

Persuaded by these circumstances and his concern

over the presence of dangerous drugs on the school

premises, Scott returned to his office to inspect defen-

dant’s valuables bag. When he opened the wallet, he

found a plastic bag containing a leafy green sub-

stance. Believing that it was marijuana, he put the

wallet back and reported his discovery to Dan Brum-

9a

field, the school principal. Donovan Pontiff, the super-

visor of instruction, was called into the case by the

principal and together, in the coach’s office, the three

examined the wallet which was found to contain defen-

dant’s driver’s license and the green substance. Pon-

tiff, also the school’s drug coordinator, recognized the

green substance in the wallet as marijuana.

Defendant’s father was summoned to school. When

he arrived it was recommended that he take his son to

the juvenile officer attached to the sheriff's office. The

principal then delivered the plastic bag containing

one-half lid of marijuana and one cigarette to the

juvenile officer. Meanwhile defendant and his father

drove in the father’s car to the sheriff's office in com-

pliance with the advice of the school principal.

The Fourth Amendment to the United States Con-

stitution, Article I, Section 7, of the Louisiana Con-

stitution and the exclusionary rule of Mapp v. Ohio,

367 U.S. 643 (1961) have long been viewed “as a

restraint upon the activities of sovereign authority

and ... not ... a limitation upon other than

governmental agencies.” Burdeau v. McDowell, 256

U.S. 465 (1921). In short, these are limitations upon the

exercise of State authority and they are inapplicable

to private persons.

The rationale for the rule which allows unlawfully

seized evidence by private individuals to be admitted,

aside from the fact that it is not unconstitutional, is the

notion that private individuals would not be deterred

by an exclusionary rule. Ann. 36 ALR 2d 553, 559. Thus

the exclusionary rule only applies to this search by

the coach and school principal if their actions be con-

10a

sidered the actions of state officials. State v. Kemp, 251

La. 592, 205 So. 2d 411 (1968); State v. Evans, 249 La.

861, 192 So. 2d 103 (1966).

It is axiomatic that the protection of the Fourth

Amendment is not restricted to dwellings. Go-Bart

Importing Co. v. United States, 282 U.S. 344 (1930). A

depository such as a locker or even a desk is safe-

guarded from unreasonable searches for evidence of a

crime. United States v. Blok, 88 U.S. App. D.C. 326, 188

F. 2d 1019(1951). Under this rule defendant's valuables

bag is protected from unreasonable search and

seizure.

Equally well recognized is the principle that Stu-

dents in schools as well as out of school are ‘persons’

under our Constitution. They are possessed of fun-

damental rights which the State must respect, just as

they themselves must respect their obligations to the

State.” Tinker v. Des Moines Community School Dist.,

399 U.S. 503 (1969). This principle denies that a stu-

dent sheds the cloak of constitutional protection at the

schoolhouse door. To the contrary, “The vigilant

protection of constitutional freedoms is nowhere more

vital than in the community of American schools.”

Shelton v. Tucker, 364 U.S. 479 (1960). It is essential

that the youth of this nation learn that the

magnificence of our Constitution is founded upon

genuine rights and not mere platitudes. The Bill of

Rights applies to juveniles. In re Gault, 387 U.S. 1

(1967).

Decisions of this Court are not rendered in a

vacuum. I believe it to be widely accepted that school

authorities are impressed with the obligation to main-

lla

tain discipline over the students committed to their

charge. Common experience requires a recognition

that when large numbers of teenagers are gathered

together in such an environment, their inexperience

and lack of mature judgment will often create hazards

to those in the group. Parents who surrender their

children to schools in order that they may continue to

develop intellectually and socially have a right to ex-

pect certain safeguards. The school environment

presents “special characteristics” which must deter-

mine the light in which constitutional principles are

applied. Tinker v. Des Moines, 393 U.S. 503 (1969).

It is particularly during the high school years of

their children when parents are justifiably concerned

that they not be unduly subjected to antisocial

behavior, especially the illegal use of dangerous

drugs. The inquisitive nature, daring, and suscep-

tibility to suggestion of high school students in-

creases the danger in this sensitive area. These con-

ditions require that school authorities investigate any

charge or reasonable suspicion that a student is using

or possessing narcotics. Appropriate steps must be

taken if the evidence substantiates the charge or

suspicion. Unattended by vigilant school authorities

imposing proper discipline and restraint, the use of

drugs could proliferate like wildfire. People v. Over-

ton, 20 N.Y. 2d 360, 229 N. E. 2d 596 (1967); reargued and

affirmed 24 N.Y. 2d 522, 249 N.E. 2d 366 (1969).

It is necessary to first decide whether the school

coach who made the search and the principal who

made the seizure are officials whose actions are gov-

erned by the Fourth Amendment of the United States

Constitution and Article I, Section 7, of the Louisiana

12a

Constitution. The Fourth Amendment, as made

obligatory on the States by the Fourteenth Amend-

ment, protects the citizen against the State itself and

all of its creatures — school boards and school of-

ficials not excepted. West Virginia v. Barnett, 319 U.S.

624 (1943).

The State and the school boards, its creatures,

govern and conduct public schools. Principals,

coaches and teachers are charged with carrying out

the policies of the State in this respect. Every parent,

tutor or other person residing within the State of Loui-

siana having control or charge of any child between

the ages of seven and fifteen is compelled by State law

to send the child to school and assure his attendance

under penalty of fine or imprisonment, or both. La.

R.S. 17:221. By State law every teacher is authorized to

hold every pupil to a strict accountability for dis-

orderly conduct at school. School principals may sus-

pend from school any pupil who, among other things,

is guilty of willful disobedience or who uses tobacco or

alcoholic beverages in any form in school buildings or

school grounds; or who commits any other serious

offense. La. R.S. 17:416. And the state board of educa-

tion is required to prescribe a course of study on the

evils and injurious effect on the human system of the

use of alcohol and narcotics. La. R.S. 17:262-265. It is

necessary to conclude, therefore, that school

authorities, principals, teachers and coaches, while

enforcing State policy and regulations come within

the contemplation of Fourth Amendment guarantees,

and that they must respect the rights of students

against unreasonable searches and seizure. The iden-

tical standard is established by Article I, Section 7, of

the Louisiana Constitution. In re the Interest of G. C.,

121 N. J. Super. 108, 296 A 2d 102 (1972).

13a

This does not mean, however, that the entire law of

search and seizure as it applies in criminal law is

automatically incorporated into the school system of

this State. The Fourth Amendment’s proscription that

the citizen not be subjected to unreasonable searches

and seizures, does not require that a reasonable search

be invalidated.

It is apparent from the language of the Fourth

Amendment that a valid search warrant may only be

issued upon an affidavit or complaint which sets forth

facts establishing probable cause. There are in-

stances, however, in which the police are permitted to

make arrests and searches without first obtaining a

warrant. In such instances it is the Fourth Amend-

ment protection against ‘unreasonable searches and

seizures” which is directly applicable. But, because a

“principal incentive” for the procurement of warrants

would be destroyed if police needed less evidence

when acting without a warrant, the requirements in

such instances “surely cannot be less stringent” than

when a warrant is obtained. Won Sun v. United States,

371 U.S. 471 (1963). It is correct to say, therefore, that

probable cause is also required for warrantless ar-

rests and searches, and the standard of reasonable-

ness or probable cause for a search and seizure is the

same for an arrest.

At the same time certain kinds of searches and

seizures, because they involve a lesser degree of intru-

sion or interference, are permitted upon less than the

traditional amount of probable cause. Camara v.

Municipal Court, 387 U.S. 523 (1967) building inspec-

tions by city housing inspectors; Terry v. Ohio, 392

U.S. 1 (1968) stop and frisk; Davis v. Mississippi, 394

14a

U.S. 721 (1969) detention for fingerprinting; Hender-

son v. United States, 390 F. 2d 805 (9th Cir. 1967) bor-

der search — even mere suspicion not required to

search bags and vehicles; Kamisar, et aux, Modern

Criminal Procedure p. 228 West Pub. Co. (1974).

Against this background stands the doctrine of in

loco parentis recognized by Article 220 of the Civil

Code:

“Fathers and Mothers may, during their life,

delegate a part of their authority to teachers,

schoolmasters and others to whom they en-

trust their children for their education, such as

the power of restraint and correction, so far as

may be necessary to answer the purposes for

which they employ them.

“They have also the right to bind their chil-

dren as apprentices.”

In all schools of Louisiana it is accepted custom that

the mere act of the parent in sending his child to school

is implied authority to the teacher to correct the child

so far as may be necessary to answer the purposes for

which the teacher was employed. Op. Atty. Gen. 1934-

36, p. 221.

Not only in Louisiana but generally throughout the

Nation, a school teacher stands in the place of a parent

to his students. He may exercise such authority and

control, restraint and correction as may be reason-

ably necessary to enable him to perform his duties as

teacher and accomplish the purposes of education.

And his power and duty extend beyond the teaching

15a

and preservation of order and discipline to matters

affecting the morals, health and safety of the stu-

dents. See authorities cited in 79 C.J.S., Schools and

School Districts, 1 493.

Government interest both national and state in re-

quiring that the traditional tests of reasonableness be

applied to searches and seizures is to be balanced

against the compelling interest of the state in preser-

ving the doctrine of in loco parentis in the school com-

munities of the land; the public necessity and the fun-

damental social concept the doctrine represents ante-

dating the Fourth Amendment demand its preserva-

tion. To reconcile these divergent interests and

preserve the essential merits of each, in the narrowly

defined area of the school community, a standard of

reasonable suspicion rather than the traditional prob-

able cause to justify a search is warranted by the

“distinct relationship” between the high school of-

ficial and the student. Other jurisdictions have ap-

proved such a rule. People v. Jackson, 65 Misc. 2d 909,

319 NYS 2d 731 (1971) and State of Delaware v. Bac-

cino, 282 A. 2d 869, 49 ALR 3d 953 (1971). Cf. Mercer v.

State, 450 S. W. 2d 715 (Tex. Civ. App. 1970) holding that

since the principal was acting in loco parentis, he was

not an arm of the government. See also 49 ALR 3d 980.

In applying these principles to the facts of this case,

I am satisfied that the coach who made the initial in-

trusion into defendant’s privacy by opening his

valuables bag hac a reasonable suspicion to believe

that the valuables bag contained prohibited

dangerous drugs.

16a

Defendant's furtive gesture while nervously insert-

ing his wallet in the valuables bag considered in con-

nection with the coach’s knowledge that defendant

associated with drug users; the fact that “several

cases of drugs being used” at the school were known to

the coach; and the knowledge he undoubtedly ac-

quired at the drug seminars invested the furtive

gesture with such guilty significance that a rational

suspicion existed. Thus the standard of probable

cause for the search applicable to this case was satis-

fied. The furtive gesture has in other cases served to

provide reasonable grounds for a search. People v.

Orr, 26 Cal. App. 3d 849, 103 Cal. Rptr. 266 (1972); Gallik

v. Superior Court of Santa Clara County, 97 Cal. Rptr.

693, 489 P. 2d 573 (1971); People v. One Chevrolet Im-

pala, 33 Cal. Rptr. 64 (1963).

Not only is the search justified by this rational and

reasonable suspicion, but the circumstances imposed

upon the coach the duty to proceed as he did under his

obligation in loco parentis, not only to correct the

breach of discipline but to protect the student body asa

whole from the unwholesome drug traffic threatening

the school.

There is, moreover, an element of consent to this

search which arises from the in loco parentis status

and authority the parent delegates to teachers when he

sends his children to school. No one would say the

parent could not make such a search, and, logically,

the parent consents that this authority is transferred

to and vested in the teacher. For the teacher to fail to

carry out the corresponding responsibility would

itself amount to malfeasance. Also to be considered in

justification of this search is the fact that defendant

17a

surrendered possession of his wallet containing the

marijuana to Scott the coach and with it the implied

consent to inspect.

The search and seizure satisfied constitutional re-

quirements.

II

The Confession

When defendant and his father arrived at the

sheriff's office, they reported to Officer Keenze, the

juvenile officer. Officer Keenze immediately advised

defendant, in his father’s presence, of his rights, read-

ing to him the Miranda warnings. Questioning of

defendant then commenced. He was giving a state-

ment, when Officer Keenze heard Detective Graffeo

enter the office next door. Realizing that defendant

was seventeen years old and was to be accorded the

same treatment adults receive in criminal matters, Of-

ficer Keenze requested that Detective Graffeo conduct

the interrogation. Despite the fact that he was not to

have the benefit of the law applicable to juveniles,

defendant's father was permitted to remain with him

during the interrogation that followed.

Detective Graffeo again advised defendant of his

rights, and within ten or fifteen minutes he made a

complete statement confessing to the possession and

use of the marijuana and the source from which it was

obtained. Thereafter the confession was reduced to

writing by defendant in his own hand. The paper

provided for the confession contained a printed

acknowledgement that defendant had been advised of

18a

his rights under the Fifth Amendment to the Constitu-

tion as to compulsory self-incrimination, his right to

counsel and his right of trial, and that what he said

could be used against him in acourt of law, and that the

statement was voluntarily made. The statement was

witnessed by the two officers and defendant's father. I

quote the pertinent content of the document for the

bearing it has upon the free and voluntary character of

the admission.

“IT have been using marijuana for one year. I

started out with Keith Clements and I smoked

several cigarettes with him and bought a few

from him two weeks latter (sic) bought a cup-

ple (sic) more from him and smoxed them and I

was caught with a ledd (sic) in willet (sic) at

school in P.E. bag.

“I gave Keith Clements $10.00 for two match

boxes last week at school which had marijuna

(sic) in it. 3/19/73.

“The marijuna (sic) I was caught with was

marijuna I bought from Keith Clements.“

According to the police, the entire interrogation

consumed 35-40 minutes. We learn from their

testimony that defendant and his father are full-

blooded Chitamacha Indians who live on a reservation

near Charenton, Louisiana. The father has the

equivalent of a fourth grade education. This back-

ground, it is asserted, makes defendant and his father

easily susceptible to intimidation. Another factor im-

properly inducing the confession is said to result from

the fact that the police assured them that if defendant

19a

confessed, they would go easy on him, he would be

brought before a lenient judge, his sentence would not

exceed thirty days and they would see to it that defen-

dant served his time as a trustee working in the prison

kitchen. Furthermore, it is contended, defendant was

intimidated by the father’s threat to punish him if he

didn’t tell the police what they wanted to know.

On the other hand, Officers Keenze and Graffeo

testified positively that they made no promises to

defendant and the facts support their version of what

occurred. Defendant and his father went to the sheriff's

office on instructions from the principal; they did so

freely and voluntarily, without having been arrested

or taken into custody. After arrival at the sheriff's of-

fice, defendant promptly confessed, wrote out his con-

fession, and signed a waiver of rights after the Miran-

da warnings were twice repeated by the officers. The

confession and waiver document was signed by defen-

dant and witnessed by both officers and defendant’s

father. At no time did the father or son protest the

treatment they received nor did they demonstrate any

attitude except one of cooperation with the officials.

On this issue, I am satisfied that the question this

record presents is one of credibility of the witnesses.

The version of the two state witnesses is supported by

the physical evidence and the undisputed surrounding

circumstances. Moreover, the trial judge who heard

and saw the witnesses accepted the testimony of the

police officers. Defendant’s and his father’s testimony

differ only insofar as the promises they claim were

made by the officers, otherwise the essential facts are

not disputed.

The State has discharged its burden of affirma-

tively establishing the free and voluntary nature of

the confession; it was, therefore, admissible in

evidence. La. Const. art. I, 1 11; La. R. S. 15:451-52; Lego

v. Twomey, 92S. Ct. 619 (1972); State v. Cripps, 259 La.

403, 250 So. 2d 382 (1971); State v. Collins, 253 La. 149,

219 So. 2d 182 (1968); State v. Carter, 248 La. 730, 181

So. 2d 763 (1966); State v. Simpson, 247 La. 883, 175

So. 2d 255 (1965).

Society will not long tolerate the stringent and un-

realistic rule of law imposed by the majority; a rule

which will prohibit the control of drug traffic on the

school grounds of the State.

I respectfully dissent.

21

No. 54.884

SUPREME COURT

OF THE STATE OF LOUISIANA

STATE OF LOUISIANA

VS.

WILLIAM AUGUST MORA, JR.

(ON REMAND FROM SUPREME COURT

OF THE UNITED STATES)

OPINION AND JUDGMENT

DENNIS, J.

Entered and Filed Mar. 29, 1976

/s/ HAROLD A. MOISE, JR.

Clerk.

REHEARING REFUSED

May 14, 1976

SUPREME COURT OF LOUISIANA

A TRUE COPY

JUL. 28, 1976

/s/ ANDREW J. FALCON

Deputy Clerk

(SEAL)

22a

SUPREME COURT OF LOUISIANA

NO. 54,884

STATE OF LOUISIANA

VERSUS

WILLIAM AUGUST MORA, JR.

On Remand from the Supreme Court of the United

States

DENNIS, Justice.

William August Mora, Jr. was charged by bill of in-

formation with possession of marijuana in violation

of La. R.S. 40:966(C). He was found guilty as charged

and subsequently sentenced to six months’ imprison-

ment. We granted defendant’s application for cer-

tiorari, 295 So.2d 808 (La. 1974), and reversed the con-

viction and sentence, finding merit in defendant's con-

tention that the trial judge committed error in denying

his motion to suppress the marijuana. 307 So.2d 317

(La. 1975). The Supreme Court of the United States

granted the petition of the state for certiorari and

thereupon vacated our judgment and remanded the

case to this Court, issuing the following mandate:

ON CONSIDERATION WHEREOF, it was

ordered and adjudged on October 6, 1975, by

this Court that the judgment of the Supreme

Court of Louisiana in this cause be vacated,

and that this cause be remanded to the

Supreme Court of the State of Louisiana to

23a

consider whether its judgment is based upon

federal or state constitutional grounds, or

both. See California v. Krivda, 409 U.S. 33

1972).

NOW, THEREFORE, THE CAUSE IS

REMANDED to you in order that such pro-

ceedings may be had in the said cause, in con-

formity with the judgment of this Court above

stated, as accord with right and justice, and the

Constitution and laws of the United States, the

said writ notwithstanding.

Pursuant to the mandate set forth above, we have

considered whether our opinion in this cause was

based on federal or state constitutional grounds, or

both, and certify as follows:

Our opinion reflects that we followed three steps in

concluding that the trial court erred in failing to sup-

press the marijuana seized from the defendant. First,

we determined that the instructor and the school prin-

cipal who effected the search and seizure were func-

tioning as governmental agents. This decision was

reached solely by an analysis of Louisiana law. La.

R.S. 17:416. Next we decided that the warrantless

search of defendant’s duffel bag was unreasonable and

in violation of both federal and state constitutional

prohibitions against unreasonable searches and

seizures. Fourth Amendment of the United States Con-

stitution; Article I, §7 of the Louisiana Constitution of

1921. Consequently, we concluded that suppression of

the seized marijuana was mandated under the ex-

clusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct.

1684, 6 L.Ed.2d 1081 (1961).

24a

Thus, we acted on both federal and state con-

stitutional grounds, as well as state statutory law, in

reaching our decision in this case.

SANDERS, C. J., dissents with written reasons.

SUMMERS, J., dissents for the reasons assigned.

DIXON, J. concurs, but would note that the ex-

clusionary rule, at the time of the search, was em-

bodied in C. Cr. P. 703, and is now contained in Art.

1, §5, La. Const. 1974.

MARCUS, J., dissents and assigns reasons.

SUPREME COURT OF LOUISIANA

NO. 54,884

STATE OF LOUISIANA

V.

WILLIAM AUGUST MORA, JR.

SANDERS, Chief Justice (dissenting).

On January 20, 1975, a divided Court reversed defen-

dant’s conviction of possession of marijuana, holding

that public school principals and instructors are

bound by the search warrant requirements of the

Fourth Amendment to the United States Constitution.

La., 307 So.2d 317 (1975). The majority stated:

25a

„. . . Because of the function of these school

officials and their strict accountability to the

State, we must conclude that these school offi-

cials, insofar as they are discharging their

duties by enforcing State policies and regula-

tions, are within the purview of the Fourth

Amendment’s prohibition; therefore, their

students must be accorded their constitu-

tional right to be free from warrantless

searches and seizures.”

The United States Supreme Court vacated the judg-

ment and remanded the case to this Court for us tocon-

sider whether the judgment is based upon federal or

state grounds or both.

The majority has concluded that we acted on both

federal and state constitutional grounds, as well as

state statutory law.” In so announcing, the majority

has placed an unwarranted barrier in the path of

appellate review by the United States Supreme Court.

The constitutional question is whether school

teachers must secure warrants to search for weapons,

narcotics, and other prohibited items in gym lockers,

desks, or in a student’s possession in school build-

ings.

I had the definite opinion when the decision was

handed down that the majority held that such asearch

did not fall within the “specifically established and

well-delineated exceptions” to the warrant require-

ment of the Fourth Amendment. My opinion in this

regard is fortified by the citation of Coolidge v. New

Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564

(1971) as authority for the holding.

26a

The only Louisiana case cited at any point in the

decision is State v. Tant, La., 287 So.2d 458 (1973). That

decision, however, dealt solely with the Fourth

Amendment to the United States Constitution.

The analysis of our state school statute, LSA-R.S.

17:416, was directed to the general status of teachers.

The statute, itself, does not deal with search and

seizure. Hence, the statutory analysis is collateral and

cannot serve as an adequate stage ground for resolu-

tion of the overriding constitutional issue.

Hence, I conclude that the Court acted under what

was conceived to be the compulsion of the Fourth

Amendment to the United States Constitution as inter-

preted by the Supreme Court of the United States. See

Department of Mental Hygiene of California v.

Kirchner, 380 U.S. 194, 85 S.Ct. 871, 13 L.Ed.2d 753

(1965). This conclusion, of course, makes the decision

reviewable by the United States Supreme Court.

If there is any doubt about the interpretation of the

decision, however, it should be resolved in favor of

reviewability. Here, the majority has fastened upon

the school officials of our state an onerous search

warrant requirement at a time when violence and

lawlessness in some of our schools are acute.

The great weight of authority is contrary to the deci-

sion. See State v. Baccino, Del., 282 A.2d 869 (1971); In

Re Donaldson, 269 Cal. App. 2d 509, 75 Cal. Rptr. 220

(1969); Mercer v. State, 450 S.W.2d 715 (1970); People v.

Overton, 20 N.Y.2d 360, 229 N.E.2d 596 (1967); State v.

Stein, 203 Kan. 638, 456 P.2d 1, cert. denied 397 U.S. 947

27a

(1969); People v. Jackson, 65 Misc.2d 909, 319 N. v. S. 2d

731 (1971); In Re State in the Interest of G.C., 121 N.J.

Super. 108, 296 A.2d 102 (1972); In Re C., 26 Cal. App. 3d

320, 102 Cal. Rptr. 682 (1972).

The Louisiana Teachers’ Association, in my opin-

ion, correctly maintains:

. . . [I]t is indeed unfortunate that Louisiana,

by this Honorable Court’s decision, has not

only aligned itself with a minority of states in

this area, but has established far more

stringent requirements for school officials in

discharging their obligations to protect the in-

terest of all of the students than any other

State.”

For the reasons assigned, I respectfully dissent.

SUPREME COURT OF LOUISIANA

NO. 54,884

STATE OF LOUISIANA

VS.

WILLIAM AUGUST MORA, JR.

SUMMERS, Justice (dissenting).

28a

In my view this Court’s opinion (307 So. 2d 317) is

based upon the all-pervading influence of decisions of

the United States Supreme Court interpreting the

Fourth Amendment of the United States Constitution,

as made obligatory on the States by the Fourteenth

Amendment. These citations relied upon in the ma-

jority opinion make this fact evident: Schneckloth v.

Bustamonte, 412 U.S. 218 (1973); Coolidge v. New

Hampshire, 403 U.S. 443 (1971); Katz v. United States,

389 U.S. 347 (1967); Mapp v. Ohio, 367 U.S. 643 (1961);

Burdeau v. McDowell, 256 U.S. 465 (1921).

The sole Louisiana case referred to in the majority

opinion, State v. Tant, 287 So. 2d 458 (La. 1974), is one

based almost entirely upon the authority of decisions

of the United States Supreme Court. This can hardly be

considered sufficient to classify this decision as one

based upon a state constitutional ground.

Until Mapp v. Ohio, Louisiana’s Constitution had

never been interpreted to require the exclusion of

evidence obtained as a result of a violation of the

search and seizure standards of Article I, Section 7, of

that constitution.' State v. Martinez, 220 La. 899, 57

So.2d 888 (1952), cert. denied, 344 U.S. 843 (1952); State

v. Long, 161 La. 250, 108 So. 471 (1926), error dismissed,

273 U.S. 653 (1927); State v. Eddins, 161 La. 240, 108 So.

468 (1926); State v. Fleckinger, 152 La. 337, 93 So. 115

1 La. Const. art. I. §7 (1921) provides:

“The right of the people to be secure in their persons,

houses, papers and effects against unreasonable searches

and seizures, shall not be violated, and no such search or

seizure shall be made except upon warrant therefor is-

sued upon probable cause, supported by oath or affirma-

tion, and particularly describing the place to be searched

and the persons or things to be seized.”

(1922). So far as I can ascertain, all of our decisions in-

voking the exclusionary rule has been based upon the

compulsion of Mapp v. Ohio.

The determination that the school instructor and

school principal were functioning as state agents was

a necessary element of any decision applying stand-

ards established by decisions of the United States

Supreme Court which require that state officials or

agents be involved before the Fourth Amendment's

proscriptions can be made obligatory upon the states

by the Fourteenth Amendment. The opinion resolu-

tion of this fact, therefore, does not, standing alone,

demonstrate that the decision is grounded to any ex-

tent upon the state constitution. To the contrary, this

approach to the problem more properly indicates the

ma jority's effort to establish state participation in or-

der that the federal constitutional standards could be

made applicable.

On the facts of this case no decision was intellectual-

ly feasible in total disregard of the principles of the

Fourth, Fifth and Fourteenth Amendments and the

decision in Mapp v. Ohio, 367 U.S. 643 (1961). This

Court could not find that the Fourth Amendment was

not violated but that Article I, Section 7, of the Loui-

siana Constitution was violated and then invoke an

exclusionary rule without overruling the long line of

Louisiana decisions holding that the evidence ob-

tained as a result of a violation of Article I, Section 7,

was nevertheless admissible. By invoking the ex-

clusionary rule of Mapp v. Ohio the majority neces-

sarily grounded its decision upon a violation of the

Fourth Amendment, for there was no state constitu-

tional or decisional authority which standing alone

would support the exclusion of the evidence.

30a

Aside from State v. Baccino, 282 A. 2d 869 (Del.

Super. 1971), the defense brief relied entirely upon

decisions of the United States Supreme Court inter-

preting the Fourth, Fifth and Fourteenth

Amendments, implying that the same interpretation

should be placed upon like state constitutional

provisions because of their similarity. See Tinker v.

Des Moines Independent Community School District,

393 U.S. 503 (1969); Bumper v. North Carolina, 391 U.S.

543 (1968); West Virginia State Board of Education v.

Barnette, 319 U.S. 624 (1943). It is pertinent to observe

also that State v. Baccino, supra, was decided by the

Superior Court of Delaware upon the authority of the

Fourth Amendment as interpreted by the United

States Supreme Court and other courts applying those

interpretations.

While purporting to decide this case upon stand-

ards established by the United States Supreme Court,

the majority has misunderstood and misapplied those

standards. The decision fails to recognize the all-

important doctrine that school environment presents

“special characteristics” which must determine the

light in which constitutional principles are applied.

Tinker v. Des Moines Independent Community School

District, supra.

By declaring now that the decision is based in part

upon state grounds, the majority seeks to shield this

decision from the review to which it should rightfully

be subjected by the Highest Court. Founded, as the

decision purports to be, upon pronouncements of the

United States Supreme Court interpreting federal con-

stitutional principles obligatory on the states, its im-

pact will be far-reaching, not only upon the schools of

3ia

Louisiana, but upon all the schools of America, if

review is denied by our Nation’s Highest Court.

It should be noted, moreover, that the author of the

original opinion in this matter no longer sits on the

Court, and the author of this remand opinion did not

participate in the application for writs, the hearing,

the rendition of the opinion, the application for rehear-

ing or the decision denying a rehearing in this case.

When the views of the author of this remand opinion

are not considered, this Court is evenly divided on the

case.

I am of the opinion that the original majority opin-

ion was based upon federal constitutional grounds.

I respectfully dissent.

SUPREME COURT OF LOUISIANA

NO. 54,884

STATE OF LOUISIANA

V.

WILLIAM AUGUST MORA. JR.

MARCUS, Justice (dissenting)

Although the previous opinion of this court! con-

tains a reference to art. 1, §7 of the 1921 Constitution of

ious

1 The author of this dissent also dissented from the prev

judgment of this court. 307 So. 2d 317 (La. 1975).

32a

the State of Louisiana,? the language of which is

similar to the fourth amendment to the United States

Constitution, Iam unable to conclude, after analyzing

the opinion in its entirety, that the judgment rested on

an adequate, independent, nonfederal ground. In hold-

ing that the search of defendant's wallet by the school

official was unlawful, this court relied, in my view, on

the decisions of the United States Supreme Court

interpreting the fourth amendment to the United

States Constitution. These decisions declare that a

search conducted without a warrant is per se uncon-

stitutional unless it falls within one of the specifical-

ly established and well-delineated exceptions” to the

warrant requirement of the fourth amendment.

Coolidge v. New Hampshire, 403 U.S. 443 (1971) (cited

and quoted in our previous opinion). This court found

that the warrantless search in this case did not come

within one of these exceptions, and stated:

We hold that a search on school grounds ofa

student’s personal effects by a school official

wuo suspects the presence or possession of

some unlawful substance is not a‘specifically

established and well-delineated’ exception to

the warrant requirement and that the fruits of

such a search may not be used by the State

prosecutorial agency as the basis for crim-

inal proceedings.

Therefore, in my opinion, this court acted either

solely on federal, constitutional grounds; or, in con-

2 The 1921 constitution was in effect at the time of the trial of this

case.

struing our state constitution, acted under what this

court conceived to be the compulsion of the fourth

amendment to the United States Constitution, as inter-

preted by its ultimate arbiter, the Supreme Court of the

United States. Department of Mental Hygiene of Cali-

fornia v. Kirchner, 380 U.S. 194 (1965). Accordingly, I

respectfully dissent.