Respondents Brief — New Jersey v. T. L. O.

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No. 83-712

Office - Supremes Court, U.S.

FEB 9 1984

L. STEVAS.

Cree

IN THE |

Supreme Court of the United States

OCTOBER TERM, 1983

STATE OF NEW JERSEY,

Petitioner.

T. L. O., a Juvenile,

Re spond ne.

On Writ Of Certiorari To The

Supreme Court Of New Jersey

BRIEF OF RESPONDENT

Josep H. RopRIGUEZ

Public Defender of New Jersey

Lots De JULIO

First Assistant

Deputy Public Defender

Appellate Section

20 Evergreen Place

Last Orange, New Jersey 07018

POL) O48-3280

Attorneys for Re spondent

ANDREW DILLMANS

Assistant Deput, Public Defender

Pina Boy)

Legal Assistant

PRESS OF HY RON Ss JDAMS PRINTING. INC WASHINGTON. Dee

QUESTIONS PRESENTED

1. Was the decision <f the New Jersey Supreme Court to

suppress evidence illegally seized from respondent by her high

school vice-principal based upon independent and adequate

State grounds?

2. Inthe alternative, as a matter of federal law, is applica-

tion of the exclusionary rule constitutionally required when the

prosecution attempts to use the fruits of an illegal search by a

public school official on its case-in-chief in a criminal matter?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED so ioc ic cs cccwnssnvecceudedes’s i

TABLE OF AUTIORITUND 6 oiiok ioc sc ccc cb bbadens esc iv

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 1

DORSET OF THE CARE oink cdc eceiniewed eee iet es 2

SUMMARY OF ARCUuE rr 6

F ↄ²˙ ꝛü ꝛ UT ² eensemckts 8

I. AS THE DECISION BELOW RESTED ON ADEQUATE AND

INDEPENDENT STATE GROUNDS THIS CourT SHOULD

DISMISS THE WRIT OF CERTIORARI AS IMPROVIDENTLY

/ ! ²˙—mnmn. bab ak hace Mek cbies 8

II. THE FouRTH AMENDMENT EXCLUSIONARY RULE Is

CONSTITUTIONALLY MANDATED WHEN THE STATE AT-

TEMPTS To USE ON ITs CasE-IN-CHIEF EVIDENCE

ILLEGALLY SEIZED From A STUDENT By PvuBLICc

SK ũ— ̃ cdc ck caecd ested uc 15

A. Searches Conducted By School Personnel Con-

stitute Governmental er Than Private Ac-

tion And Are Therefore Subject To The Fourth

Amendment .......... enen 16

1. The Doctrine Of In Loco Parentis Does

Not 4 * The Conclusion That A

Search Conducted By School Personnel Is

Private Rather Than Governmental Ac- 2

W/ A AA ehbubs

B. The Exclusio Rule Is Constitutionally

Mandatory When The State Intends To Utilize

III y Seized Evidence On Its Case-In-Chief

In A Criminal Matter 23

C That The “Cost-Benefit”

Test By Petitioner Is riate In

The Instant Case, Application Of The Ex-

clusionary Rule Would Be Mandated Since

The E Deterrence Benefits Would Out-

Weigh Anticipated Detriments ........ 27

iii

Table of Contents Continued

Page

. Application Of The Exclusio Rule To

School Searches

Would Deter Violations

Of The Fourth Amendment Because

School Officials Have A Strong Interest In

Seeing Criminal Actions Against Students

Successfully Litigated ................ 28

Application Of The Exclusionary Rule To

Evidence Seized Illegally By School Em-

8 Would Deter Misconduct On The

Nö 34

3. The Societal Costs Of Implementing The

Exclusionary Rule Are Insubstantial ... 37

D. Failure To Apply The Exclusionary Rule To

Searches B Personnel Would Leave

Students With No Adequate Means Of

Preventing Violations Of Their Fourth Amend-

„„ ˙¹¹àͤͤ 42

1. Civil Suits Against School Employees

Who Conduct Illegal Searches Would

Have Inadequate Deterrent Effect ..... 43

Administrative Sanctions Against The

Offending School Employees Could Not

Be Sufficiently Enforced To Serve As An

Effective Deterrent To Constitutional

VIRIONS Ä —fVnL sandvedess 46

E. In Addition To Deterring Violations Of The

Fourth

Amendment The Exclusionary Rule Is

Constitutionally Required To Protect Judicial

Integrity pas! . 3 47

F. The Exclusionary Rule Serves A Con-

i Educational Function

stitutionally

Most Appropriately Served In The Public

School

CONCLUSION

GGG 64 „„„ „„ „„ 50

TABLE OF AUTHORITIES

CASES: Page

Barker v. Wingo, 407 U.S. 514 (1972/ũ ). 37

Bellnier v. Lund, 438 F.Supp. 47 (N. D. N. X.

—. ·˙ 1A 14, 19, 32, 42, 46

Bilbrey v. Brown, 481 F.Supp. 26 (D. Or. 1979) .... 14-32

Bivens v. Six Unknown Federal Narcotics Agents, 403

, Ä A

Boyd v. United States, 116 U.S. 524 (1886) .......... 18

Burdeau v. McDowell, 256 U.S. 465 (1921) .......... 18

Camara v. Municipal Court, 387 U.S. 523

Delay detbobsehs sect sa ¥tees 6% 10, 11, 19, 30, 31

eee A ũkũ’ꝗ⅛Z4ũ ee eee ee „ „„ „„

Commonwealth v. Dingfelt, 227 Pa. Super. 380, 323 A. 2d

e. 21

Dandridge v. Williams, 397 U.S. 481 (1970) ......... 15

Desist v. United States, 394 U.S. 244 (1969) ......... 49

Doe v. Renfrew, 475 F.Supp. 1012 (N. D. Ind. 1979), mod.

631 F.2d 91 (7th Cir. 1980), reh. den. 635 F.2d 582

(7th Cir. 1980), cert. den. 451 U.S. 1022

. 17, 20, 28, 32, 46, 49

aa Rg eee 19, 22, 24

Fox Film Corporation v. Muller, 296 U.S. 207 (1985) . 9

Franks v. Delaware, 438 U.S. 168 (1978) ............ 47

Goss v. Lopez, 419 U.S. 565 (1970) 16, 23

Gouled v. United States, 255 U.S. 298 (1920) ........ 18

Harris v. McRae, 448 U.S. 297 (1980) ............... 14

Herb v. Pitcairn, 324 U.S. 117 (1978) ........... 8, 9, 10

Table of Authorities Continued

Page

Horton v. Goose Creek 3 * School District, 690

F.2d 470 (5th Cir. 1982), cert. den. U. 8s.

108 S.Ct. 3536 (1983) .......... 17, 19, 20, 21, ; 31, 32

Illinois v. Gates,. U.S. , 103 S.Ct. 2317 (1983) 23

In re C., 26 Cal. App. 3d 320, 102 102 Cal. Rptr. 682 (D. Ct.

Bets MEE Bsc tukocebadtbe cdot tances isccnateet 17, 32

In re Donaldson, 269 Cal. App. 2d 500, 75 Cal. Rptr. 220

ee EN BED disie/s Fv ayds pabad vin édnavcephw is 21

In “a 11 ie App. 3d 1193, 90 Cal. Rptr. 361 (D.Ct.

In re Gault, 387 U.S. 1 (1967) õ 16, 22, 25

In re Martin, 90 N.J. 295, 447 A.2d 1290 (1982) ...... 13

In re Quinlan, 70 N. J. 10, 355 A.2d 647 (1976), cert. den.

sub nom. Garger v. New Jersey, 429 U. 8. 922 (1976) 15

In re W., 8 3d 377, 105 Cal. Rptr. 775 (D. Ct.

App. 1 %% wpe b hae eee ae kiale 17, 32

In re Winship, 397 U.S. 358 (1970) ᷑ ))··! 16, 25

Ingraham v. Wright, 430 U.S. 651 (1977) ............ 23

Interest of L.L., 90 Wis. App. 2d 585, 280 N.W. 2d 343

(Ct. of App. W „ 17, 19, 20, 35

Island Trees Union Free School District No. 26 Board of

Education v. Pico, 457 U.S. 853 (1982) ) 16

Jankovich v. Indiana Toll Road Commission, 379 U.S.

r W A Sedans 11

Jones v. Latero I endent School District, 499

F.Supp. 223 (E. D. Tex. 1980) 17, 23, 32, 33, 42, 46, 49

Jones v. United States, 357 U.S. 498 (1953) 19

M. v. Board of Education Ball-Chatham Communi

‘Tut Schoo District No. 5, 529 F.Supp. 288 (S. D. 1

M. J. v. State, 399 So. 2d 996 (Fla. Dist. Ct. App. 1981) 33

M. M. v. Anker, 607 F. 2d 588 (2nd Cir. 1979) ... 17, 32, 46

Mapp v. Ohio, 367 U. S. 643 (19617) 24, 35, 36, 43

Marshall v. Barlow’s Inc., 436 U.S. 307 (1978) . 18, 19, 26

Table of Authorities Continued

Page

Mercer v. State, 450 S. W. 2d 715 (Tex. Civ. App. 1970) 21

Meyer v. Nebraska, 262 U.S. 390 (1923) ............. 16

EGec had acdbs codes eVicencdnds wegen ues 18, 26

Michigan v. Long, _— U.S., 103 S.Ct. 3469 (1983) 9, 12

Michigan v. Tyler, 436 U.S. 499 (1978) 10, 11, 18, 19, 26, 30

Moore v. Student Affairs Comm. of Troy State Universi-

ty, 284 F.Supp. 725 (M.D. Ala. 1968) ............

Morales v. Grigel, 422 F.Supp. 988 (D.N.H. 1976) ... 45

Olmstead v. United States, 277 U.S. 438 (1928) ..... 45, 49

Payton v. New York, 445 U.S. 573 (1980) ........... 49

People v. Bowers, 72 Misc. 2d 800, 339 N.Y.S. 2d 783

(N.Y.C. Crim. Ct. 1973), aff'd 77 Misc. 2d 697, 356

ö bv cabo décecesedewaee tena 33

People v. Scott D., 34 N.Y. 2d 483, 358 N. V. S. 2d 403 (Ct.

/ ˙²•—0e“ ˙¾r;. ob van <n Ane 17, 19, 33, 42

People v. Jackson, 65 Misc. 2d 909, 319 N. X. S. 2d 73

ae, oe Ist 2 1971), affd 30 N.Y. 2d 734,

V. S. 2d 167 (Ct. App. 1972) )) 17, 20, 33

, 33

People v. Singletary, 37 N.Y. 2d 310, 372 N.Y.S. 2d 68

GCC 17

People v. Stewart, 68 Misc. 2d 601, 313 N. v. S. 2d 253

CUB eri, Ob: SONU iss cs ck Bo dass cceacde cas 21

Peper v. Princeton Univ. Bd. of Trustees, 77 N. J. 55, 389

/ ˙ ˙1wN i issuewsecetesecene

. „ 17, 23, 33

Pierson v. Ray, 386 U.S. 547 (1987 44

Rakas v. Illinois, 439 U.S. 128 (1978) ............... 13

Rescue Army v. Municipal Court, 331 U.S. 549 (1947) 8

vii

Table of Authorities Continued

Right to Choose v. Byrne, 91 N.J. 287, 450 A.2d 925

. nied bake yw atirew odes tae vn 14

Robinson v. Cahill, 62 N. J. 473, 303 A.2d 273 (1973), cert.

wis * nom., Dickey v. Robinson, 414 U.S. 976 ms

San Antonio aa School District v. Rodriguez,

,, ̃ Ü A

Schneckloth v. Busta monte, 412 U.S. 218 (1973) 13

See v. City of Seattle, 387 U.S. 541 (1967) ......... 10, 11

Smith v. Maryland, 442 U.S. 735 (1979) ............. 13

es Lubbers, 398 F.Supp. 777 (W.D. Mich.

hy K 14, 26, 45, 46

So. N N. A. A. C. P. v. Tp. of Mt. Laurel, 67 N. J.

151, A. 2d 713, cert. den. and appeal dismissed,

ee 15

Spano v. New York, 360 U.S. 315 (1959) ............ 37

State in the Interest of J. A., 85 Ill. App. 3d 567, 406 N. W.

2d 958 (App. Ct. . 17, 19, 33

* een 121 N. J. Super. 108, 296

AAA... 11, 24

State in the Interest of T.L.O., 178 N.J. Super. 329, 428

A. 2d 1327 (J. D. R. C. 1980), aff d o. b. .

og. 1 185 N. J. . 279, 448 A. 2d 493 (App.

v. 1982), rev’d, 94 N 331, 463 KA. 2d 934

r 4. 5, 9, 10, 13, 14, 17, 22, 31, 38

State v. Alston, 88 N. J. 211, 440 A.2d 1311 (1981) .... 13

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

PP 17, 19, 20, 23, 32

State v. Bruzzese, 94 N. J. 210, 463 A. 2d 320 (1983) 13

State v. F. W. Z., 360 So. 2d 148 (Fla. D. Ct. App.

o 17, 32

State v. Engerud, 94 N. J. 331, 463 A.2d 934 (1983) ... 25

State v. Gregory, 66 N. J. 510, 383 A.2d 257 (1975) ... 13

State v. Hunt, 91 N. J. 338, 450 A.2d 952 (1982) ..:... 13

viii

Table of Authorities Continued

Page

State v. Johnson, 68 N.J. 349, 346 A.2d 66 (1975) . 13

1 v. McKinnon, 88 Wash. 2d 75, 558 P. 2d 781 Gup.

Rae 17, 31, 33

State v. Mora, 307 So. 2d 317 (La. 1975), vac. 423 U. S. 309

(1975), remand 330 So. 2d 900 (La. 1976) ... 17, 19, 32

State v. Patino, 83 N. J. 1, 414 A.2d 1327 (1980) 13

State v. Saunders, 75 N. J. 200, 381 A. 2d 333 (1977) .. 14

State v. Schmid, 84 N. J. 535, 423 A. 2d 615 (1980) . 14

State v. Walker, 19 Or. App. 420, 528 P. 2d 113

% her tvns cache vsiwe 17, 19

State v. Wi ne 2d 236, 318 N. E. 2d 866 (Ct.

SEE Fu ͤ A rn 17, 24

State ee oe 488, 216 S. E. 2d 586 (1975), cert

den. 423 U.S. 1039 (1975) ............. 17, 24, 31, 32

Stone v. Powell, 428 U.S. 465 (1976) .......... 24, 25, 49

Taxpa Assn. of W. Tp. v. Weymouth T. 80

NY. 6, 364 A. 2d 1616 (1976) n tis

Terry v. Ohio, 392 U.S. 1 (1968))))) 30, 31, 48

ae a Carbon Black Export, Inc., 359 U.S. 180

Tinker v. Des Moines soe fines Community School

969)

District, 393 U.S. 503 (1969) ........... 6, 22, 23, 28

United States v. Calandra, 414 U.S. 338 (1974) . 24, 25, 49

United States v. Chadwick, 433 U.S. 1 (1977) ........ 18

eg’ woul Coles, 302 F.Supp. 99 (N.D. Me. 1

United States v. Havens, 446 U.S. 620 (1980) 2⁵

United States v. Janis, 428 U.S. 433 (19760) 25, 49

United States v. Johnson, 457 U.S. 587, 102 S.Ct. 2579

(1982) 26

United States v. Martinez-Fuerte, 428 U.S. 543

// ß 19, 26, 30

United States v. Payner, 447 U.S. 727 (1980) 49

Table of Authorities Continued

2 Page

% of California Regents v. Bakke, 438 U. S. 265

Walder v. United States, 347 U.S. 62 (1954) ......... 25

Waters v. United States, 311 A.2d 385 (D. C. App. 1973) 33

Watts v. Indiana, 388 U.S. 49 (1949))9)9))))))9)ĩ 37

Weeks v. United States, 232 U.S. 383 (1914) ... 18, 24, 48

West Virginia Board of Education v. Barnette, 319 U.S.

624 (1943)

eee Sehr VeeDesedenee 11, 16, 23, 49

Wolf v. Colorado, 338 U.S. 25 (1949) ....... 43, 47, 48, 49

Wood v. Strickland, 420 U.S. 308 (19750))0)) 45

Worden v. Mercer County Bd. of Elections, 61 N.J. 325,

Zacchini v. Scripps · Howard Broadcasting Co., 433 U.S.

r ⁰⁰ 10

STATUTES CITED:

/ ̃ĩ Ill. n cates Uh acex 44

Ala. Code § 16-1-24 (Supp. 1983ͥ õ -;“ nm. 20

Alaska Stat. § 14. 30.045 (1982) ))rꝛ: : eee eeeeee 29

Ariz. Rev. Stat. Ann. § 15-201 (1975) ............... 20

Ark. Stat. Ann. § 80-1629.2 (1980) )ʒ/ ) 20

Cal. Educ. Code § 48909 (West 1978)))) :: 20

Conn. Gen. Stat. Ann. § 10-233g(b) (West Supp. 1983) 20

Pin. Beet: Ans. SRR ST BRE) inn sn sdcccscvcvstccss 20

Hawaii Rev. Stat. § 296-71 (Supp. 1982) ............. 20

Ill. Ann. Stat. ch. 122 § 10-21.7 (Smith-Hurd Supp. 1982) 20

Ind. Code § 20-8.1-5-2 (Burns Supp. 1983) ........... 20

Kan. Stat. Ann. § 72-8901 (1980)))ʒ 29

Ky. Rev. Stat. Ann. § 161.180 (1980) ................ 20

La. Rev. Stat. Ann. § 17:416 (West Supp. 1983) .... 20, 29

Me. Rev. Stat. Ann. Tit. 20-A § 1001 (Supp. 1983) ... 30

Mich. Comp. Laws Ann. § 380.1311 (West Supp. 1981) 29

Table of Authorities Continued

Page

Miss. Code § 97-37-17 (1978) )) e 20

Mont. Code Ann. § 20-4-302 (1983ᷣ·ũ Z 20

N.C. Gen. Stat. § 115C-307 (Supp. 1981) ............ 20

En 1, 10

PES. Beas Rams SAG i sii eee l

N. J. Stat. Ann. § 18A:6-1 (West 1968))Jů : 1. 12

I A A 1, 25

N. J. Stat. Ann. § 18A:25-2 (West Supp. 1983) 1, 12

N.J. Stat. Ann. § 18A: 35-4a (West Supp. 1983) ...... 12

Wes Bhat. Ane. GABA inci eee eee 12

r ̃ K eer 12

NJ. S. ee eee eee 1, 12

N. J. Stat. Ann. § 18A: 37-2. 1 (West Supp. 1983) 12

N. J. Stat. Ann. § 18A:37-4 (West Supp. 1983) 12

N. J. Stat. Ann. 5 18A: 40-4. 1 (West Supp. 1983) 12

N. M. Stat. Ann. § 22-10-5 (1978 )))) /;: se eeeeees 20

Neb. Rev. Stat. § 79-4, 180 (Supp. 1983) ............ 30

Nev. Rev. Stat. § 115-391 (Supp. 1981) .............. 29

Nev. Rev. Stat. § 391.270 (1979) õů-7õũ ñ .U 20

R. I. Gen. Laws 11-21-2 (198l77777 .

S.C. Code Ann. § 59-63-210 (Law Co-op. 1976) 30

Tenn. Code Ann. § 499-4100000 20

Wash. Rev. Code Ann. § 28A.27.010 (1982) .......... 20

CONSTITUTIONS CITED:

New Jersey Constitution of 1947, Article I, paragraph 7 1, 13

New Jersey Constitution of 1947, Article VIII, section 4,

paragraph 7

OTHER AUTHORITIES CITED:

Amsterdam, Prospectives on the Fourth Amendment, 58

Minn. L. Rev. 349 (197

Table of Authorities Continued

Blackstone, 1 Commentaries 45888. 22

Buss, The Fourth Amendment and Searches of Students

in Public Schools, 59 Iowa L. Rev. 739 (1974) .. 22, 23

California State Department of Education, Prelimina

Report on Crime and Violence in the Public Schoo

(1981), ERIC ED - 208-56¶ꝰye: 41

Canon, Ideology and Reality in Debate Over the Ex-

clusionary Rule: A Conservative Argument for Its

Retention, 23 S. Tex. L. Rev. 559 (1982) .......... 39

Canon, Js the Exclusionary Rule In Failing Health:

Some New Data and a Plea Against A Precipitous

Conclusion, 62 Ky. L.J. 681 (1974) ............. 36

Canon, The Exclusionary Rule: Have Critics Proven

That It Doesn't Deter Police? 62 Judicature 398

1 37

Clark, Violence in Public Schools: The Problem and Its

Solutions, 8 (1978), ERIC #ED-151-990 000 42

Comment, Accountability for Government Misconduct:

Limiting ified Immunity and the Good Faith

Defense, 49 Temp. L. Q. 951 (1976) .............. 44

Comment, Presumed Damages for Fourth Amendment

Violations, 129 U. Pa. L. Rev. 192 (1980) ......... 44

Comment, Students and the Fourth Amendment: Myth

or Reality? 46 U. M. K. C. L. Rev. 282 (1977) ...... 22

Comment, Students and the Fourth Amendment: The

Torturable Class,” 16 U.C.D.L. Rev. 709

/ ˙ c e. 19, 42

Comptroller General Report GGD-79-45, Impact of the

xclusionary Rule on Federal Prosecutors, 11

%%/%iʃ̃⁰ Ä: [„. 38

Eee inn

xclusiona 5

Research and United States v. Calandra, 698

Re ee 36, 45

Davies, Do Criminal Due Process Principles Make a

Difference? 1982 Am. B. Found. Research J. 247. 39

xii

Table of Authorities Continued

Page

Dellinger, ger, OF ge and Remedies: The Constitution as a

Sword arv. L. Rev. 1532 (1972) ........... 37, 47

Edwards, Criminal Liability for the Unreasonable

Search and Seizure, 41 Va. L.Rev. 621 (1955) .. 46, 47

ERIC Clearinghouse on Educational Menagement/

National School Boards Association, Research Ac-

tion Brief, 2 (1982), ERIC #ED-208-453 . . . 39, 40, 41

Gilligan, The Federal Tort Claims Act—An Alternative to

the Bzelusionary Rule? 66 J. Crim. L. and P.S. 1 *

Governor’s (Mich.) Task Force, School Violence and Van-

dalism Report (1979), ERIC #ED-191-946 ....... 41

Koff, age Mgt gn gree neg 63 Nat’l Assoc. of

Principals Bull. 8 (Feb. 1979) .......... 51

L.E. 12 A. a. Institute of Law Enforcement and

—— Crime: The Problems and

— —— lutions, 3 (1980), ERIC #ED-

r d Comes 39

3 LaFave, Search and Seizure, 10.11 at 458 (1978) paw: ae

a bit soning a 75 Good Faith 3 —

xclusionary Ru ey ER olice

Derailing the Law, 70 Geo 369 (19817 47

Nardilli, The Societal Cost of the Exclusionary Rule: An

Empirical Assessment, 1983 Am. B. Found. Re-

National Institute on Drug Abuse, Survey, N.Y. Times,

Feb. 7, 1984 at C9, col. 2 (city ed.) n 40

National Institute of Education (D. H. E. W.), Violent

1 e — fae . 4 ne Study Re-

MED 176 112 Nen 39, 40, 41, 42

National Institute of Justice, The Effects of the Ex-

clusionary Rule: A Study in California, 1 (1982) . 38

New Jerse * of Education, Final Report on

the Statewide A Assessment of Incidents of Violence,

Vandalism and Drug Abuse in the Public Schools, 57

CIGD: 0 nccdacccieucst subuepipwte vacates 39, 40, 41

Table of Authorities Continued

. Page

New Jersey School Boards Association, School Violence

Oaks — te Exclusionary Rule in Search and

Project, Suing the Police in Federal Court, 88 Yale L. I.

Reder, School Officials’ Authority to Search is Au-

6 by the In Loco Parentis Doctrine, 5 Fla. St.

, ůũ ml. AA

Spiotto, Search and Seizure: An Empirical Study of the

Sai aan * and Its Alternatives, 2 J. of Leg.

Theis, Good Faith as a Defense to Suits for Police

3 of Individual Rights, 59 Minn. L. Rev.

reien

Trosch, Williams and DeVore, Public School Searches

aes * Fourth Amendment, 5 J. L. & Educ. 41

- 25

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

New Jersey Constitution of 1947, Article I, paragraph 7.

The right of yt ye to be secure in their persons,

houses, papers, effects, against unreasonable sear-

seizures, shall not be violated; and no warrant

shall issue except upon probable cause . ope by oath

or affirmation, and particularly describing e place to be

searched and the papers and things to be seized.

New Jersey Constitution of 1947, Article VIII, section 4,

paragraph 1.

wet The ure shall provide for the maintenance and

~~ gupport of a thorough and efficient — — of free public

ools for the instruction of all the children in the State

between the ages of five and eighteen years.

N.J. Stat. Ann. § 2A:4-60.

All defenses available to an adult charged with a crime

offense or violation a toa Jane rich —

with committing an elinquency . . . the right to

secure from unreasonable es and seizures. . . shall

be applicable in cases arising under this act as in cases of

persons charged with crime.

N.J. Stat. Ann. § 18A:25-2.

A teacher or other person in authority over such pupi

shall hold every pupil accountable for — —

in school and recess and on the 1

school and on the way to and from .

N. J. Stat. Ann. § 18A: 37-1.

K. cha on public schools shall comply with the rules

in pursuance of law for the government of such

schools, pursue the prescribed course of study and submit

to the authority of the teachers and others in authority

over them.

N. J. Stat. Ann. § 18A:6-1.

No loyed or engaged in a school or educational

public or private, shall inflict or cause

to be inflicted corporal punishment upon a pupil attending

such school or institution; but any such person may, within

the scope of his employment, use and apply such amounts

of force as is reasonable and necessary: (1) to quell a

i , threatening physical injury to others; (2) to

obtain possession of weapons or other objects

upon the person or within the control of a pupil; (3) for the

purpose of self-defense; and (4) for the protection of per-

sons or property; and such acts, or any of them, shall not

be construed to constitute corporal punishment within the

meaning and intendment of this section. . .

N. J. Stat. Ann. § 18A:37-2(j)

Conduct which shall constitute good cause for suspen-

sion a expulsion of a pupil guilty of such conduct shall

incl

j.. Knowing possession or knowing consumption without

load authority of alcoholic beverages or controlled dan-

gerous substances on school premises, or being under the

5 of i 1

8 liquor or controlled

substances while on school premises.

STATEMENT OF THE CASE

On March 7, 1980, a search was made by Mr. Choplik, vice

principal of Piscataway High School, of a purse belonging to

T. L. O., a student at the school. Ms. Chen, a teacher, had made

a routine check of the girls’ restroom. She observed T. L. O. and

another girl smoking tobacco cigarettes. (TS 20-7 to 25) Al-

though smoking by students was permitted in designated

areas, it was not allowed in the restrooms. (TS 33-20 to TS34-6)

Ms. Chen accompanied both girls to Mr. Choplik’s office,

where she advised him of the infraction. (TS 21-1 to TS 22-23)

Upon being questioned, T. L. O. denied that she smoked. (TS

27-1 to 21) Mr. Choplik asked T. L. O. to give him her handbag

because he wanted to see whether she had any cigarettes,

which he believed would constitute proof that she had been

smoking. (TS 31-1 to 13) When T.L.O. complied, Mr. Choplik

! “TS” designates the transcript of the hearing on the Motion to

Suppress held on September 26, 1980. “T” refers to the transcript of

the trial, conducted on March 23, 1981.

opened the purse and observed, “a package of Marlboros sitt-

ing right on the top there.” (TS 28-3 to 11) As he removed the

Marlboros, Mr. Choplik also observed cigarette rolling papers.

He removed them, too. (TS 28-21 to TS 29-5) Mr. Choplik

explained that “from then on I went to see what else was in

there because from my experiencesthat seems to be a sign that

someone is smoking marijuana.” (TS 29-7 to 9)

Looking further into the handbag, he found a metal pipe, and

one plastic bag containing tobacco or some similar substance.’

(TS 29-10 to 16) He also found a wallét containing “a lot of

singles and change,” and inside a separate compartment of the

purse, two letters and an index card. (TS 36-7 to 10; TS 38-6 to

12; TS 40-20 to 22; TS 39-4 to TS 49-11) Mr. Choplik then

phoned T.L.O.’s mother, and the police. (TS 41-8 to 10)

Mr. Choplik admitted that T.L.O.’s purse was closed when

she gave it to him and that he could not see inside until after he

opened it. (TS 47-14 to 25) He also agreed that at the time Ms.

Chen initially accused T.L.O: of smoking, he had a sufficient

basis to impose a sanction without need for further evidence.

(TS 47-9 to 13)

The local police transported T.L.O. and her mother to head-

quarters. Upon arrival, Officer O’Gurkins advised the juvenile

of her Miranda rights. (T 20-7 to T 21-3) When Mrs. O. in-

dicated that she wanted to have an attorney present during

questioning, she was permitted to telephone the office of her

lawyer. (T 34-10 to 24) He was not available, so the officer

proceeded with the interrogation. According to Mrs. O., at no

time did her daughter state that she had sold marijuana. (T

35-15 to 22)

Officer O’Gurkins admitted that although it was standard

practice in juvenile matters to reduce incriminating state-

? At trial it was stipulated that the bag contained 5.40 grams of

marijuana. (T 12-17 to 25)

ments to writing, he did not follow this procedure with T.L.O.

(T 24-12 to 18) He nevertheless maintained that T.L.O. had

confessed that she had been selling marijuana in school for a

week. (T 22-2 to 17) He conceded that T.L.O. explained to him

that the $40.98, which was found in her purse, constituted the

proceeds from her paper route, which she had collected the

night before.

On September 26, 1980, a motion was brought before the

Honorable George J. Nicola, J.J.D.R.C., to suppress the evi-

dence seized as a result of Mr. Choplik’s search. The search was

found by the Juvenile Court to be legal, and the motion was

denied. State in the Interest of T.L.O., 178 N.J. Super. 329,

342-45, 428 A.2d 1327 (J.D.R.C. 1980). After a trial held on

March 23, 1981, T.L.O. was found guilty of possession of mari-

juana with intent to distribute. On January 8, 1982, a

probationary term of one year was imposed. _ ie

An appeal as taken and decided on June 30, 1982. State in the

Interest of T. L. O., 185 N. J. Super. 279, 448 A.2d 493 (App.

Div. 1982). Two judges affirmed the denial of the motion to

suppress the evidence secured by the search of the juvenile’s

purse, adopting the reasons set forth in the opinion of the trial

court. However, they found that the record was inadequate to

determine the sufficiency of the Miranda waiver which was

allegedly made by the juvenile after her mother’s unsuccessful

attempt to summon counsel. Id., 448 A.2d at 493. They there-

fore vacated the adjudication of delinquency and ordered a

remand for further proceedings in light of the principles

enunciated in Edwards v. Arizona, 451 U.S. 477, (1981) and

State v. Fussell, 174 N. J. Super. 14 (App. Div. 1980). Jd. One

judge dissented, indicating that he would suppress the evi-

dence found in T.L.O.’s purse because the search had been

unreasonable. Id. at 495.

An appeal was taken to the New Jersey Supreme Court. On

August 8, 1983, judgment was rendered ordering that the

evidence seized from T. L. O. be suppressed. The court ruled

that students are persons protected by both the United States

and the New Jersey Constitutions, and that the juvenile jus-

tice system must reflect the same fundamental fairness

guaranteed to adult offenders. State in the Interest of T.L.O.,

supra, 463 A.2d at 938. The argument that school officials be

viewed as private persons acting in loco parentis was rejected;

relying upon both federal and state case law, the court held

that public school authorities are government officers. Jd. at

939. It was further determined, citing to both decisions of the

United States Supreme Court in administrative search cases,

and to N. J. S.A. 2A:4-60 (which accords juveniles the right to

be secure from unreasonable searches and seizures) that if an

official search violates constitutional rights, the resulting evi-

dence is not admissible in criminal proceedings. Id.

With regard to the standards governing such searches, it

was decided that a warrant need not be secured. Id. at 940.

__ After reviewing various New Jersey statutes regulating edu-

cation, the court found that school officials have the power to

conduct reasonable searches necessary to maintain safety,

order and discipline within the schools. Id. at 940. Analogizing

to the decision of “Our Court” with regard to administrative

searches, it was held that school searches come within the

“carefully defined” class of searches which can be conducted

without a warrant. Jd. at 939.

Recognizing that school officials do not act pursuant to the

same responsibilities and motivations as police officers, the

Court rejected the juvenile’s contention that school searches

could only be carried out on the basis of probable cause. Adopt-

ing the approach taken by a number of state and lower federal

courts, the Court ruled that “when a school official has reason-

able grounds to believe that a student possesses evidence of

illegal activity or activity that would interefere with school

discipline and order, the school official has the right to conduct

a reasonable search for such evidence.” Jd. at 942.

Applying these principles to the facts surrounding the

search of T. L. O., the New Jersey Supreme Court found that

the principal did not have reasonable grounds to open her

purse. Since school policy allowed smoking in specially desig-

nated areas, and possession of cigarettes was not, therefore, a

violation of school rules, Mr. Choplik had no reasonable

grounds to believe that the student was concealing illegal

substances in her purse. Id. at 942. The court further held that

even if the initial opening of the purse had been reasonable, the

subsequent “wholesale rummaging” of the student’s letters

and papers exceeded the proper scope of the search. Id. at 943.

Two judges dissented from the above decision finding that

the assistant principal’s search of T.L.O. was reasonable in

light of all of the circumstances. Jd. at 946.

SUMMARY OF ARGUMENT

Initially, respondent maintains that the judgment of the

New Jersey Supreme Court was based upon independent and

adequate state grounds, and that certiorari should be dis-

missed. Although the New Jersey court referred to federal

law, the decision was also founded upon two provisions of the

New Jersey Constitution (which guarantee the rights to be

secure from unreasonable searches and seizures, and to re-

ceive a thorough and efficient education), and upon a New

Jersey statute (which specifically grants to juveniles the right

to be free of unreasonable searches). Because the decision is

sufficiently and indevendently supported by state law, the

outcome would remain the same even if the federal principles

referred to therein should be modified. Certiorari must, there-

fore, be dismissed as this Court has no jurisdiction to issue

advisory opinions.

Assuming arguendo, that the decision of the New Jersey

Supreme Court does present a federal question for adjudica-

tion, petitioner’s contention that the exclusionary rule need

not be applied to the fruits of the illegal search at issue in this

matter is clearly erroneous. The Fourth Amendment protects

against unreasonable searches | by any governmen-

tal agency. Because public school persofinel are employed by

the state, act with state authority, and are responsible for

carrying out state laws and regulations, their conduct con-

stitutes governmental, rather than private, action. Thus the

search of T. L. O. by the vice-principal comes within the ambit

of the Fourth Amendment.

While petitioner is correct in asserting that this Court has

not found the exclusionary rule to be constitutionally required

in the case of every Fourth Amendment violation, those in-

stances where it has not been applied have involved limited,

peripheral uses of the evidence so obtained. This Court has not

permitted the fruits of an illegal search to be introduced into

evidence on the prosecution’s case - in- chief in a criminal

proceeding, as the State seeks to do in the present matter. In

such circumstances, application of the rule is mandatory. 4

Even if petitioner is correct in maintaining that a balancing

test—weighing the benefits of deterrence against the societal

costs resulting from implementation of the rule—is con-

—

rmissible to determine if the exclusionary rule

should be applied in the present circumstances, it is clear that ‘

the expected benefits would outweigh the anticipated detri-

ments. First, educators do have an in in the successful

prosecution of juvenile delinquency p and would be

eterred from conducting unreasonable searches by the knowl-

ge that the resulting evidence would be excluded. Second, if

evidence illegally secured by educators was not admissible at

trial, the police would be deterred from instigating teachers to

conduct illegal searches in order to provide otherwise un-

obtainable evidence on “a silver platter.” With regard to

societal costs, statistical studies have shown that relatively

few prosecutions are dismissed because of Fourth Amendment

problems. School surveys do not support the conclusion that

the crime rate in schools is rising or that an increase in searches

by school personnel would be a significant factor in reducing

the present rate.

Petitioner has demonstrated no alternatives to the ex-

clusionary rule which would effectively deter violations of the

Fourth Amendment rights of students. In addition, the ex-

clusionary rule serves constitutionally recognized purposes

other than deterrence; it protects the imperative of judicial

integrity, and teaches respect for constitutional rights.

LEGAL ARGUMENT

POINT I

AS THE DECISION BELOW RESTED ON ADEQUATE AND

INDEPENDENT STATE GROUNDS THIS COURT SHOULD

DISMISS THE WRIT OF CERTIORARI AS

IMPROVIDENTLY GRANTED.

Petitioner sought certiorari in this matter pursuant to 28

U.S.C. § 1257 which grants this Court jurisdiction when a

“right privilege or immunity is . . . claimed under the Con-

stititon” of the United States. The granting of a writ of cer-

tioruri does not, however, constitute a final disposition of the

question of whether jurisdiction, in fact, exists for the case to

de heard.

[TJhe initial decision to grant a petition for certiorari must

necessarily be based on a limited 1 of the issues

in a case. The Court does not, and ind t and

should not try to, give the initial q for; gran or

denying a petition the kind of attention is d ed

oy a decision on the merits. — uson v. Moore -

cCormack Lines, 352 U. S. 524, 527 (1957) (Frankfurter,

J., dissenting).

As a threshold question, therefore, this Court must now deter-

mine if its jurisdiction has been properly invoked in this mat-

ter. See University of California Regents v. Bakke, 438 U.S.

265 (1978).

Article III of the Federal Constitution, the source of this

Court’s power, requires a live controversy between the parties

to an action; the issuing of advisory opinions is not permitted.

Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945); The Monrosa v.

Carbon Black, Inc., 359 U.S. 180 (1959); Rescue Army v.

Municipal Court, 331 U.S. 549, 568 (1947). With regard to the

decisions of state courts, this court has observed that:

Our only power over state judgments is to correct them to

the extent that they incorrectly adjudge federal rights.

And our power is to correct wrong judgments, not to

revise opinions. We are not permitted to render an adviso-

ry opinion, and if the same judgment would be rendered

by the state court after we corrected its views of federal

laws, our review could amount to nothing more than an

advisory opinion.

Herb v. Pitcairn, supra.

Thus where the decision of a state court rests upon both state

and federal grounds, the jurisdiction of this Court fails if the

state ground is independent of the federal and is adequate to

support the judgment. Id., Fox Film Corp v. Muller, 296 U.S.

207 (1935). If the state court would have reached the same

result, regardless of federal law, considerations of federalism,

and of the “case or controversy” requirement of Article III

require that the state court’s decision not be reexamined.

Enterprise Irrigation District v. Canal Co., 243 U.S. 157, 164

(1917).

The majority opinion in Michigan v. Long. U. S.,

103 S.Ct. 3469 91983), decided last term, reaffirmed these

principles even as it established more exacting criteria under

which this Court would treat a state court decision as one based

on state law. Jurisdiction would be found “in the absence of a

plain statement that the decision below rested on an adequate

and independent state ground.” Jd. at 3478. The sufficiency

and independence of the state ground must be apparent from

the “four corners of the opinion.” Jd. at 3475.

In the instant matter, a review of the opinion below leads

inescapably to the conclusion that the outcome rests upon

independent state grounds, and would be unaffected by any

modification of the federal constitutional considerations

alluded to in the opinion. At the very outset, the New Jersey

Supreme Court noted that, “young people and students are

persons protected by the United States and New Jersey Con-

stitutions.” (emphasis supplied) State in the Interest of T. L. O.,

supra, 463 A.2d at 938. Thus the court clearly signalled that

the decision would have its roots in both state and federal

constitutional principles. The adequacy and sufficiency of the .

state ground was plainly evidenced by further statements in

the decision.

First, the court rested its conclusion that the State cannot

use evidence illegally seized from a student against her in a

juvenile proceeding upon a provision of the New Jersey Code

of Juvenile Justice [N. J. Stat. Ann. § 2A:4-60] which guaran-

tees to juveniles the right to be secure from unreasonable

searches. State in the Interest of T. L. O., supra at 989, n. 5. In

concluding that suppression was required by this provision of

state law, the New Jersey court also expressed its belief that

the impropriety of so using evidence illegally obtained by pub-

lic officials was settled, as a mater of federal constitutional law,

by this Court’s decision in See v. City of Seattle, 387 U.S. 541

(1967); Camara v. Municipal Court, 387 U.S. 523 (1967); and

Michigan v. Tyler, 436 U.S. 499 (1978). However, reference to

parallel federal decisions does not, of itself, compel a

determination that a decision is based entirely upon federal

law; only if it appears that the “state court felt ‘compelled by -

what it understood to be federal constititonal considerations to

construe. . its own law in the manner it did. [Michigan v.

Long, supra 3478, quoting Zacchini v. Scripps-Howard

Broadcasting Co., 433 U.S. 562, 568 (1977)] is the asserted

sufficiency of the alternate state ground undermined. Id.

Here, the New Jersey court did not hold that because federal

law demanded the suppression of evidence resulting from ille-

gal searches of students by teachers, N.J. Stat. Ann. § 2A:4-60

must be construed to require this result; on the contrary, it

said, “Our Code of Juvenile Justice buttresses this conclusion.”

Thus the existence of N.J. Stat. Ann. § 2A:4-60 provided sup-

port independent of federal law for the that the evi-

dence must be suppressed. Given this of New Jersey

law as construed by the highest judicial tribunal of the state, it

is clear that “the same judgment would be rendered by the

state court,” [Michigan v. Long, supra, at 3476 (quoting Herb

v. Pitcairn, supra at 126)], even if this defendant were pro-

tected only by the provisions of the New Jersey Juvenile

Justice Code, thus rendering an interpretation of the Federal

Constitution “nothing more than an advisory opinion.” Id.

The New Jersey Supreme Court, based upon its understand

ing of this Court’s decision in See v. Seattle, supra, Camara v.

Municipal Court, supra, and Michigan v. Tyler, supra, found

the United States and State Constitutions to be equally protec-

tive of the rights of student to be free from unreasonable

searches by school teachers. “In such circumstances, even

though a state court’s opinion relies on similar provisions in

both the State and Federal Constitutions, the state con-

stitutional provision has been held to provide an independent

and adequate state ground of decision depriving this court of

jurisdiction to review the state judgment.” Jankovich v. In-

diana Toll Road Commission, 379 U.S. 487, 491-92 (1965).

Furthermore in determining that educators are not private

citizens, but governmental officials against whom the prohibi-

tion against unreasonable searches applies, the New Jersey

Supreme Court cited both West Virginia Board of Education

v. Barnette, 319 U.S. 624, 637 (1943), and to State in the

Interest of G.C., 121 N.J. Super. 108, 114, 296 A.2d 102

(J.D.R.C. 1972), a prior New Jersey decision involving a

search of a student by a teacher. State in the Interest of G. C.,

supra, in turn based its conclusion that teachers are govern-

ment functionaries exclusively upon New Jersey civil case law.

Consequently, even if this Court were to modify the federal

constitutional principles underpinning West Virginia Bd. of

Ed. v. Barnette, supra, the outcome in the instant matter

would remain the same. Such a decision by this Court would,

then, be purely advisory; the New Jersey courts would still be

required by state law to hold that searches by school personnel

amount to governmental action.

Furthermore, the New Jersey Supreme Court made explicit

that its decision rested equally on state constitutional protec-

tions which have no federal analogue. The F. L. O. court con-

cluded that “our approach represents the best way to vindicate

each student’s right to be free from unreasonable searches and

to receive a thorough and efficient education.” (emphasis sup-

plied) Jd. at 942. The right to a “thorough and efficient educa-

tion” is guaranteed to all New Jersey children between the

ages of five and eighteen by Article VII, Section 4, paragraph 1

of the New Jersey Constitution (1947). The United States

Constititon, as construed by this Court, has no such require-

ment. San Antonio Independent School District v. Rodriguez,

411 U.S. 1 (1973). Moreover, the New Jersey Supreme Court

does not merely pay lip service to state constitutional provi-

sions as was the case in the state court decision in Michigan v.

Long, supra at 3477. The court reviewed no less than seven

statutory provisions’ which involve New Jersey educators in

the regulation of student conduct that interfaces with the

criminal justice process. Based on this analysis, the court

concluded that “(w]e are satisfied that the Legislative scheme

for public education in New Jersey contemplates a narrow

band of administrative searches to achieve educational pur-

poses.” Jd. at 940.

Since the educational guarantees of Article VIII, section 4,

paragraph 1, have no corollary in the Federal Constitution, the

New Jersey Court’s reliance upon this ground is surely inde-

pendent of any federal constitutional considerations. More-

over, in construing the constitutional mandate of a “thorough

and efficient” education and its statutory implements, the New

Jersey Court has a wholly sufficient basis to rule that school

N. J. Stat. Ann. § 18A:25-2 (West Supp. 1983) (disorderly con-

duct); N. J. Stat. Ann. § 18A:37-1 (West 1968) (submission of pupils to

authority); N.J. Stat. Ann. § 18A:37-2(j) (West Supp. 1983) (school

officials have power to suspend pupils for illegal possession or con-

sumption of drugs and alcohol); N. J. Stat. Ann. § 18A:37-2.1 (West

Supp. 1983) (assaulting teachers); N. J. Stat. Ann. § 18A:37-2 and

N.J. Stat. Ann. § 18A:37-4 (West Supp. 1983) (suspension of stu-

dents for good cause); N.J. Stat. Ann. § 18A:40-4.1 (West Supp.

1983) (role of principal when student abused drugs or alcohol); N.J.

Stat. Ann. § 18A:35-4a (West Supp. 1983) (board of education shall

establish policies and procedures for evaluating and treating alcohol

N. Stat. Ann. § 18A:6-1 (west 1968) (empowering

teachers to seize weapons and quell disturbances).

children cannot be harassed by official searches except under

certain narrowly limited circumstances.

Additionally, the T. L. O. decision is also rooted in Article I,

paragraph 7 of the New Jersey Constitution (1947), which

protects against unreasonable searches and seizures. For ex-

ample, in deciding that a school official need not apply for a

warrant, the New Jersey court cited two New Jersey cases in

support of this proposition: State v. Patino, 83 N. J. 1, 414 A. 2d

1327 (1980), and State v. Bruzzese, 94 N.J. 210, 463 A. 2d 320

(1983). State in the Interest of T.L.O., supra at 939. Both of

these cases specifically rely upon Article I, paragraph 7 of the

State Constitution. Similarly, with regard to the standard by

which the legality of school searches must be evaluated, the

New Jersey court referred to several federal cases, but also

relied upon In re Martin, 90 N. J. 295, 447 A.2d 1290 (1982), a

case involving the reasonableness of administrative inspec-

tions of gambling casinos, decided pursuant to both the State

and Federal Constititons. State in the Interest of T.L.O., supra

at 941.

Although Article I, paragraph 7 of the New Jersey Constitu-

tion (1947), uses the same language as the Fourth Amendment,

the New Jersey Supreme Court has frequently construed the

state provision as guaranteeing more expansive protections.

See e. g., State v. Alston, 88 N.J. 211, 440 A.2d 1311, 1319

(1981) (finding that under the State Constitution a person’s

ownership of or possessory interest in property confers stand-

ing for search and seizure purposes, despite Rakas v. Illinois,

439 U.S. 128 (1978)); State v. Johnson, 68 N.J. 349, 346 A.2d

66, 67-68 (1975) (holding that under the State Constitution, if

the prosecution wants to assert that a search was made pur-

suant to consent, the state has the burden of showing that

defendant knew he could refuse; contra Schneckloth v. Busta-

monte, 412 U.S. 218 (1973)); State v. Hunt, 91 N. J. 338, 450

A.2d 952 (1972) (requiring that under the State Constitution a

warrant must be obtained to secure an individual's billing

records from the telephone company, despite the decision in

Smith v. Maryland, 442 U.S. 735 (1979) that a telephone user

has no Fourth Amendment expectation of privacy in phone

company records.) Indeed had this case been decided in the

New Jersey courts solely on federal constitutional grounds it is

doubtful that the court would have even reached the issue of

reasonableness in evaluating the search conducted in T. L. O.

For, the facts of T. L. O. suggest that a “consent” cognizable

under federal, but not New Jersey, law had been granted by

the student whose purse was searched.‘ State in the Interest of

T.L.O., supra at 940.

Furthermore, New Jersey has not been reticent in finding

that provisions of its State Constitution and statutes extend

greater protection than do equivalent provisions of the United

States Constitution. “[S]tate constitutions exist as a cognate

source of individual freedoms and. state constitutional

guarantees of these rights may indeed surpass the guarantees

of the federal constitution.” State v. Schmid, 84 N.J. 535, 553,

423 A.2d 615 (1980). See e.g., Right to Choose v. Byrne, 91 N.J.

287, 450 A.2d 925 (1982) (enhanced equal protection accorded

individual right to health and privacy; contra Harris v.

McRae, 448 U.S. 297 (1980)) State v. Schmid, 84 N. J. 535, 553,

423 A. 2d 615 (1980) (right of free speech on private university

campus); Peper v. Princeton Univ. Bd. of Trustees, 77 N. J. 55,

79 389 A. 2d 465 (1978) (sex based presumptions may not be

used to deny women employment rights equal to those ac-

corded men); State v. Saunders, 75 N. J. 200, 216, 217, 381 A. 2d

333 (1977) (right of sexual privacy; but cf. Doe v. Common-

wealth’s Attorney for the City of Richmond, 403 F. Supp. 1199

(D.C. Cir.), aff'd 425 U.S. 901, reh. den. 425 U.S. 985 (1976));

Taxpayers Assn. of Weymouth Tp. v. Weymouth Tp., 80 N.J.

Ses also State in the Interest of T. L. O., 178 N.J. Super. 329, 428

A.2d 1827 J. D. R. C. 1980). T.L.O. had handed her purse to the

vice-principal upon his request. The New Jersey courts relying on

State v. Johnson, 68 N.J. 349, 346 A.2d 66 (1975) held that any

consent by the juvenile was ineffective because she had not been told

of her right to withhold consent. But cf. Schneckloth v. Bustamonte,

412 U.S. 218 (1978).

6, 43, 364 A.2d 1016 (1976) (equal protection standard requires

real and substantial relationship between the classification an

the governmental purpose which is purportedly served, but cf.

Dandridge v. Williams, 397 U.S. 481, 485 (1970)); In re Quin-

lan, 70N.J. 10, 19, 40-41, 51 355 A.2d 647 (1976), cert. den. sub.

nom. Garger v. New Jersey, 429 U.S. 922 (1976) (right of choice

to terminate life support systems as aspect of right of privacy);

So. Burl. Cty. N. A. A. C. P. v. Tp. of Mt. Laurel, 67 N. J. 151,

175, 336 A. 2d 713, cert. den. and appeal dismissed, 423 U.S.

808 (1975) (zoning obligation of municipalities to provide hous-

ing opportunities for lower income groups); State v. Gregory,

66 N.J. 510, 513-514, 333 A.2d 257 (1975) (expansion of the

double jeopardy protection to requre joinder of known offenses

based on same conduct or arising from same criminal episode);

Robinson v. Cahill, 62 M. J. 473, 482, 509, 303 A.2d 273 (1973)

cert. den sub. nom., Dickey v. Robinson, 414 U.S. 976 (1973)

(equal protection accorded right to an education); Worden v.

Mercer County Bd. of Elections, 61 N.J. 325, 345346, 294 A.2d

233 (1972) (college students entitled to vote in their college

communities and may not be subjected to additional question-

ing). Thus, even a cursory review of New Jersey case law

reveals an extensive and bona fide pattern of reliance upon the

State Constitution for greater protections than mandated.

Respondent therefore maintains that since the decision be-

low rests on independent and adequate state grounds and the

outcome of this case would remain the same regardless of any

changes in federal law, certiorari must be dismissed.

POINT II

THE FOURTH AMENDMENT EXCLUSIONARY RULE IS

CONSTITUTIONALLY MANDATED WHEN THE STATE

ATTEMPTS TO USE ON ITS CASE-IN-CHIEF EVIDENCE

ILLEGALLY SEIZED FROM A STUDENT BY PUBLIC

SCHOOL PERSONNEL.

This case arises from the prosecution’s attempt to use evi-

dence illegally seized from T. L. O., a high school student, to

directly prove her guilt of a criminal charge in a court proceed-

ing. Petitioner makes no attempt to demonstrate that the

search was legal, but argues instead that when, as here, an

illegal search is conducted by a school employee rather than a

police officer, the Fourth Amendment exclusionary rule need

not be applied. This contention is without legal or factual

support. Since school employees are government agents, their

actions are subject to the Fourth Amendment. Moreover,

when evidence illegally obtained by government action is

sought to be introduced on the prosecution’s case-in-chief,

application of the exclusionary rule is constitutionally man-

dated.

A. Searches Conducted By School Personnel Constitute

Governmental Rather Than Private Action And Are

Therefore Subject To The Fourth Amendment

The safeguards provided by the Constitution are not limited

to adult citizens. Jn re Winship, 397 U.S. 358 (1979); In Re

Gault, 387 U.S. 1 (1967). As was stated in Tinker v. Des

Moines Independent Community School District, 393 U.S.

508, 511 (1969):

School officials do not possess absolute authority over

their students. Students in school as well as out of school

are “persons” under our Constitution. They are possessed

of fundamental rights which the State must respect, just

— 11 themselves must respect their obligations to the

On numerous occasions, albeit in other contexts, it has been

decided by this Court that students do not “shed their con-

stitutional rights.. at the schoolhouse gate” IId. at 506], and

that conduct by school officials in derogation of these rights

amounts to government action. Id., at 506-07; Island Trees

Union F ree School District No. 26 Board of Education v. Pico,

457 U.S. 853 (1982); Goss v. Lopez, 419 U.S. 565 (1975); West

Virginia State Board of Education v. Barnette, 319 U.S. 624

(1943); Meyer v. Nebraska, 262 U.S. 390 (1923).

Admittedly, with regard to the question of whether school

personnel are government agents in the specific context of the

Fourth Amendment, this Court has thus far made no ruling.

However, the great majority of lower federal, and state courts

which have considered this question have concluded, as did the

Supreme Court of New Jewsey below, that searches of stu-

dents by school employees constitute governmental action and

come within the ambit of the Fourth Amendment.“

Horton v. Goose Creek Independent School District, 690 F. 2d 470

(5th Cir. 1982), cert. den. U.S. , 103 S.Ct. 3536 (1983);

M. M. v. Anker, 607 F.2d 588 (2nd Cir. 1979); Jones v. Latexo

Independent School District, 499 F.Supp. 223 (E. D. Tex. 1980);

Bilbrey v. Brown, 481 F.Supp. 26 (D. Or. 1979); Doe v. Renfrew, 475

F.Supp. 1012(N.D. Ind. 1979), mod. 631 F. 2d 91 (7th Cir. 1980), reh.

den. 635 F.2d 582 (7th Cir. 1980), cert. den. 451 U.S. 1022 (1980);

Bellnier v. Lund, 438 F.Supp. 47 (N.D.N.Y. 1977); M. v. Board of

Education Ball-Chatham Community Unit School District No. 5,

529 F.Supp. 288 (S. D. Ill. 1977); Picha v. Wielgos, 410 F.Supp. 1214

(W. D. Ill. 1976); Smyth v. Lubbers, 398 F.Supp. 777, 7876 (W. D.

Mich. 1975); United States v. Coles, 302 F.Supp. 99 (N. D. Me. 1969);

In re W., 29 Cal. App. 3d 377, 105 Cal. Rptr. 775 (D. Ct. App. 1973);

In re C., 26 Cal. App. 3d 320, 102 Cal. Rptr. 682 (D. Ct. App. 1976);

State v. Baccino, 282 A.2d 869 (Del. Super. 1971); State v. F. W. E.,

360 So. 2d 148 (Fla. D.Ct. App. 1978); State v. Young, 234 Ga. 488,

216 S.E. 2d 586 (1975), cert. den. 423 U.S. 1039 (1975); State in the

Interest of J. A., 85 Ill. App. 3d 567, 406 N. W. 2d 958 (App. Ct. 1980);

State v. Mora, 307 So. 2d 317 (La. 1975), vac. 423 U.S. 309 (1975),

remand 330 So.2d 900 (La. 1976); People v. Ward, 62 Mich. App. 46,

233 N. W. 2d 180 (App. Ct. 1975); State in the Interest of T. L. O.,

supra, 463 A. 2d at 939; Doe v. State, 88 N.M. 347, 540 P.2d 827 (Sup.

Ct. 1975); People v. Singletary, 37 N. v. 2d 310, 372 N. V. S. 2d 68 (Ct.

App. 1975); People v. Scott D., 34 N. V. 2d 483, 358 N. V. S. 2d 408 (Ct.

App. 1974); People v. Jackson, 65 Misc. 2d 909, 319 N. V. S. 2d 731

(App. Term. Ist Dept. 1971), aff'd 30 N. V. 2d 734, 383 N. V. S. 2d 167

(Ct. App. 1972); State v. Wingerd, 40 Ohio App. 2d 236, 318 N. E. 2d

866 (Ct. App. 1974); State v. Walker, 19 Or. App. 420, 528 P.2d 113,

115 (1974); State v. McKinnon, 88 Wash. 2d 75, 558 P.2d 781 (Sup.

Ct. 1977); Interest of L. L., 90 Wis. App. 2d 585, 280 N. W. 2d 343 (Ct.

of App. 1979).

This conclusion is constitutionally required. It has long been

recognized that while the Fourth Amendment has no applica-

tion to conduct by private persons, it protects against invasion

of privacy by any governmental agency. Michigan v. Clifford,

U.S. , 104 S.Ct. 641, 646 (1984); Michigan v. Tyler,

436 U.S. 499, 504-05 (1978); Burdeau v. McDowell, 256 U.S.

465, 475 (1921); Gouled v. United States, 255 U.S. 298, 305

(1920); Weeks v. United States, 232 U.S. 383, 391-91 (1914);

Boyd v. United States, 116 U.S. 524, 532 (1886). The definition

of “governmental agent” has not been limited to the police:*

The decisions of this Court firmly establish that the

Fourth Amendment extends beyond the paradigmatic en-

try into a private dwelling by a law enforcement officer in

search of the fruits or instrumentalities of crime. As this

Court stated in Camara v. Municipal Court, 387 U.S.

523, 7 2 18 L. Ed. =, Bose pur-

pose of thi endment . . is to e privacy

and security of indiviuals against arbi — by

governmental officials.” The officials may be health, fire

or building inspectors. Their purpose may be to locate and

abate a suspected public nuisance, or simply to perform a

routine periodic inspection. The privacy that is invaded

may be sheltered by the walls of a warehouse or other

commercial establi nt not Koy to the public. See v.

City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed. 2d

943, Marshall v. Barlow’s, Inc., 436 U.S. 307, 311-313, 98

S.Ct. 1816, 1819-1821, 56 L.Ed. 2d 305. These deviations

* In point of historical fact, the Fourth Amendment developed in

large part as a response to the Colonists’ experiences not with the

police, but with the regulatory agents designated to implement vari-

ous revenue measures. Marshall v. Barlow's Inc.,

supra at 312. We do not know what the Framers’ attitude would have

been toward searches conducted by public school teachers, but as

Chief Justice Burger has observed, “the Framers were men who

focused on the wrongs of that day but who intended the Fourth

Amendment to safeguard fundamental values which would far out-

last the abuses which gave it birth.” United States v. Chad-

wick, 483 U. S. 1, 8-9 (1977).

Tata

from the typical police search are thus clearly within the

ee of the Fourth Ashendment.

ichigan v. Tyler, supru at 504-05.

Thus, the Fourth Amendment has been held to apply to ad-

ministrative“ searches by such non- police governmental em-

ployees as building inspectors [Camara v. Municipal Court,

supra); firemen [Michigan v. Tyler, supra]; occupational

health and safety inspectors [Marshall v. Barlows, Inc., 436

U.S. 307 (1978)]}; alcohol tax collectors [Jones v. United States,

357 U.S. 498 (1958)]; and border patrol officers [United States

v. Martinez-Fuerte, 428 U.S. 543 (1976)]. None of these agents

is primarily concerned with law enforcement; however, all are

governmental employees, act with governmental authority,

and are charged with the implementation of laws and regula-

tions.

Similarly, it has been held that school personnel are govern-

ment agents for Fourth Amendment purposes because they

are state employees who rely on state authority for their

actions. See e.g., Interest of L. L., supra, 280 N. W. 2d at 347;

People v. Scott D., supra, 358 N. V. S. 2d at 405; In the Interest

of J.A., supra, 406 N. E. 2d at 960; State v. Walker, supra, 528

P.2d at 115-16; State v. Baccino, supra, 282 A.2d at 871;

Comment, Students and The Fourth Amendment: “The Tor-

turable Class,” 16 U.C.D.L. Rev. 709, 713-14 (1983) (hereinaf-

ter The Torturable Class). State regulation of teachers is

pervasive, and boards of education are statutorily obligated to

indemnify teachers in civil actions arising from their employ-

ment. Bellnier v. Lund, supra at 51.

State action has also been found because school authorities

are responsible for enforcing numerous laws and regulations

related to education. State v. Mora, supra, 307 So. 2d at 319.

For example, some courts have noted that school attendance is

compulsory, and school authorities are responsible for enfore-

ing compliance with this legal mandate. See e. g., Bellnier v.

Lund, supra at 51; D.R.C. v. State, 646 P. 2d 252, 255 (Alas.

Ct. App. 1982); Horton v. Goose Creek Ind. School Dist.,

supra at 480.

Others have focused on the fact that educators have sub-

stantial regulatory duties with regard to the maintenance of a

safe and orderly educational environment. See e.g., Horton v.

Goose Creek Ind. School Dist., supra; Doe v. Renfrew, supra,

475 F. Supp. at 1020; Interest of L. L., supra; State v. Baccino,

supra at 871; People v. Jackson, supra, 319 N.Y.S. 2d at 733.

Certainly a review of state statutes would support this con-

clusion. In some states, educators have a statutorily imposed

duty to maintain good order and discipline in the school.’

Others, including New Jersey, require teachers to enforce

order in school and to hold students strictly accountable for any

disorderly conduct."

In many states, the prescribed duties of school employees

are more specifically oriented toward law enforcement. A

number require teachers and administrators to report evi-

dence or incidents of crime to the police.’ In Alabama, a school

employee who fails to make such a report is himself/herself

guilty of a Class C misdemeanor. Ala. Code § 16-1-24 (Supp.

1983). Similarly, teachers in Mississippi and Rhode Island

commit misdemeanors if they allow students to possess weap-

ons on school grounds [Miss. Code Ann. § 973717 (1973)], or

permit any act which injures, or frightens, any person attend-

See e. g., Fla. Sta. Ann. § 232.27 (1981); Ind. Code § 0-8.1-5-2

(Burns. Supp. 1983); N.C. Gen. Stat. § 115C-307 (Supp. 1981); N. M.

Stat. Ann. § 22-10-5 (1978); Wash. Rev. Code Ann. § 28A.27.010

(1982).

See e. g., Ariz. Rev. Stat. Ann. § 15-201 (1975); Ark. Stat. Ann.

§ 80-1629.2 (1980); Ky. Rev. Stat. Ann. § 161.180 (1980); La. Rev.

Stat. Ann. § 17:416 (West Supp. 1983); Mont. Code Ann. § 20-4-302

(1983); Nev. Rev. Stat. § 391.270 (1979); N.J. Stat. Ann. § 18A:25-2

(West Supp. 1983).

See e. g., Cal. Educ. Code § 48909 (West 1978); Conn. Gen. Stat.

Ann. § 10-233g(b) (West Supp. 1983); Hawaii Rev. Stat. § 296-71

(Supp. 1982); III. Ann. Stat. ch. 122 § 10-21.7 (Smith-Hurd Supp.

1982); Tenn. Code Ann. § 49-9-410.

ing the institution, respectively. R. I. Gen. Laws 11-21-2

(1981).

The fact that school personnel are state employees, and act

with state authority to implement state laws and regulations

governing education, compels the conclusion that they are

governmental agents rather than private citizens for Fourth

Amendment purposes.

1. The Doctrine Of In Loco Parentis Does Not Support The

Conclusion That A Search Conducted By School Per-

sonnel Is Private Rather Than Governmental Action

As petitioner correctly notes [Brief of Petitioner at 8, n. 3], a

few state courts have held that school authorities stand in loco

parentis to students, and as would be the case with parents,

their conduct constitutes private rather than governmental

action for Fourth Amendment purposes. See Jn re G., 11 Cal.

App. 3d 1193, 90 Cal. Rptr. 361 (D. Ct. App. 1970); In re

Donaldson, 269 Cal. App. 2d 509, 75 Cal. Rptr. 220 (D. Ct.

App. 1969); People v. Stewart, 63 Misc. 2d 601, 313 N. V. S. 2d

253 (N.Y. Crim. Ct. 1970); Commonwealth v. Dingfelt, 227 Pa.

Super. 380, 323 A. 2d 145 (Super. Ct. 1974); Mercer v. State,

450 S. W. 2d 715 (Tex. Civ. App. 1970). This holding has not

been adopted by the great majority of lower courts which have

considered this question [See Point IIA, Note 5, supra], and is,

in the context of our contemporary system of public education,

completely unfounded.

The advent of modern compulsory education laws has eroded

the factual support which once existed for finding that educa-

tors stand in loco parentis to their students. See e. ., Horton v.

In light of subsequent decisions finding school employees to be

government agents for Fourth Amendment purposes, the continued

validity of the California and New York cases referred to by petition-

er is questionable. Compare In re G., supra and In re Donaldson,

supra, with In re W., supra and In re C., supra. Compare People v.

Stewart, supra with People v. Scott D., supra and People v. Jackson,

supra.

Goose Creek Ind. School Dist., supra at 229-30; D.R.C. v.

State, supra at 255. At common law, the in loco parentis power

was based on two premises: The parent specifically delegated

his authority to the teacher, and the authority so delegated

was limited only to such restraint and correction as was neces-

sary to carry out the educational purposes for which the teach-

er was employed. Blackstone, 1 Commentaries 453, as cited by

Reder at 530. D.R.C. v. State, supra at 255. Under our present

educational system, these conditions no longer exist.

It can hardly be said that parents have voluntarily delegated

their authority to the school system. Id. Certainly teachers no

longer act as agents of the parents, bound by the same parental

concerns. Id. As the Supreme Court of New Jersey noted with

regard to this aspect of the in loco parentis doctrine, “(j]udges

and commentators have not failed to detect the irony of this

analogy. They suggest that parents infrequently search their

children and turn the evidence over to the police for prosecu-

tion.” State in the Interest of T.L.O., supra 463 A.2d at 938, n.

4. Cf. In re Gault, supra at 18. Moreover, modern teachers

cannot exercise their disciplinary powers solely for the benefit

of the individual child. Reder, supra; D.R.C. v. State, supra.

Educators now have responsibility for safeguarding the entire

student body, and the needs of the individual student may have

to be sacrificed for the good of all Jd.; Buss at 768.

This Court has, in other contexts, recognized that educators

do not function as parent substitutes. Tinker v. Des Moines

The in loco parentis approach to the evaluation of school searches

has also been severely criticized by commentators. See e. g., The

Torturable Class, supra at 714; Buss, The Fourth Amendment and

Searches of Students in Public Schools, 59 Iowa L. Rev. 739, 768

(1974) (hereinafter Buss); Trosch, Williams and DeVore, Public

School Searches and the Fourth Amendment, 5 J. L. & Educ. 41, 53

(1982); Reder, Schoo! Officials’ Authority to Search is Augmented by

the In Loco Parentis Doctrine, 5 Fla. St. U.L. Rev. 526, 531 (1977)

(hereinafter Reder); Comment, Students and the Fourth Amend-

ment: Myth or Reality? 45 U.M.K.C. L.Rev. 282, 296-97 (1977).

Ind. School Dist., supra at 507; Ingraham v. Wright, 430 U.S.

651 (1977); West Virginia Bd. of Ed. v. Barnette, supra at 637.

It has been held that the authority possessed by the school, to

prescribe and enforce standards of conduct is, unlike that of the

parents, limited and “must be exercised consistently with

other constitutional rights.” Goss v. Lopez, supra at 574; Tink-

er v. Des Moines Ind. Comm. Sch. Dist., supra; Ingrham v.

Wright, supra.

The realities of contemporary public education compel the

same conclusion in the instant matter. “What so many of the

courts persist in talking about as a parental relationship be-

tween school and student is really a law enforcement rela-

tionship in which the general student society is protected from

the harms of anti-social conduct. As such it should be subjected

to law enforcement rules.” Buss at 768. See also, Picha v.

Wielgos, supra at 1218; Jones v. Latexo Ind. School Dist.,

supra; State v. Baccino, supra. As most lower courts have

found, educators act as agents of the government, not of the

parents of their students, and as such their conduct is subject

to the Fourth Amendment. See note 5, supra.

B. The Exclusionary Rule Is Constitutionally Mandatory

When The State Intends To Utilize Illegally Seized Evi-

dence On Its Case-In-Chief In A Criminal Matter

Petitioner maintains that even if school personnel are gov-

ernmental agents bound by Fourth Amendment principles, the

exclusionary rule need not be applied when these principles are

violated."* Of the many lower federal and state courts, previ-

u Amicus New Jersey School Boards Associaion urges this Court

to adopt a “good faith” exception to the exclusionary rule in the

context of searches by school officials, an argument that was “not

pressed or passed upon” in any court below. (Amicus Brief at 21-29).

In Illinois v. Gates. U. S., 108 S.Ct. 2317 (1983), this Court

refused to decide this precise issue, noting that because it had not

been raised below, the factual record was likely to be inadequate. Id.

at 2323. In addition, “due regard for the appropriate relationship of

ously cited, which have considered the school search issue,

very few have adopted this approach. See United Staes v.

Coles, supra; Keene v. Rodgers, supra; D.R.C. v. State,

supra; State v. Young, supra; State v. Wingerd, supra. Never-

theless, petitioner argues that this minority view is consonant

with the Fourth Amendment, and urges this Court to so hold.

The nature and purpose of the exclusionary rule have recent-

ly been the subject of some debate. Early decisions treated the

rule as a constitutionally-mandated remedy for all Fourth

Amendment violations. Weeks v. United States, 232 U.S. 383

(1941); Mapp v. Ohio, 367 U.S. 643 (1961). As petitioner

correctly notes, beginning with United States v. Calandra,

414 U.S. 338, 349 (1974), this Court has taken a somewhat

different view, focusing primarily on the deterrent effect of the

exclusionary rule, and applying it in “those areas where its

remedial objectives are thought most efficaciously served.”

See also Stone v. Powell, 428 U.S. 465, 486-87 (1976). Based

upon this change of emphasis, petitioner asserts that the ex-

clusionary rule need only be applied when the benefits of

deterrence are equal to, or outweighed by the costs to society

inherent in excluding relevant evidence of criminal conduct.

(Brief of Petitioner at 14).

However, those cases, cited by petitioner in support of this

contention, where implementation of the rule has been re-

stricted involve only limited peripheral uses of the illegally

this Court to the state courts” required that the latter be given the

first opportunity to rule on the question. /d. As the instant record is

devoid of any facts pertaining to the good faith of the searching

official, and as the New Jersey courts have been denied the opportun-

ity to first rule on the question, the issue cannot be properly con-

sidered here. Moreover, since the standard governing school sear-

ches was well established in New Jersey at the time of the present

incident, it is unlikely that objective good faith could be established.

See State in the Interest of G.C., 121 N.J. Super. 108, 296 A.2d 102

(J.D.R.C. 1972).

obtained evidence.” In these unusual circumstances, it was

determined that suppression of the evidence would have so

little deterrent effect that the costs of enforcing the exclusiona-

ry rule would outweigh the benefits. None entailed, as is true

in the instant matter, the introduction of the illegally obtained

evidence on the State’s case-in-chief at a criminal proceeding."

This Court has never undermined this core deterrent func-

tion of the rule; “the need for deterrence and hence the

rationale for excluding the evidence are strongest where the

Government’s unlawful conduct would result in imposition of a

criminal sanction on the victim of the search.” United States v.

Calandra, supra at 349. Indeed, in United States v. Calandra,

See e.g., United States v. Calandra, supra (use of illegally

obtained evidence permitted at a grand jury proceeding); Walder v.

United States, 347 U.S. 62 (1954), and United States v. Havens, 446

U.S. 620 (1980) (prosecution allowed to use illegally obtained evi-

dence to impeach credibility when defendant testified falsely at trial);

United States v. Janis, 428 U.S. 433 (1976) (evidence secured illegal-

ly by state police admissible in civil suit brought by federal author-

ities to collect unreported taxes); Stone v. Powell, supra (refusal to

consider on federal habeas corpus proceeding the failure of a state

court on direct appeal to suppress evidence illegally obtained).

“ Petitioner argues that juvenile delinquency proceedings are

rehabilitative rather than criminal in nature, and that implementa-

tion of the exclusionary rule would frustrate this “ameliorative pur-

pose.” (Petitioner’s Brief at 15, n. 9) However, this Court long ago

rejected the contention that benevolent motivations could justify

depriving juveniles of constitutional rights. Jn re Gault, supra at

18-19. “{C}ivil labels and good intentions do not themselves obviate

the need for criminal due process safeguards in juvenile courts”; a

proceeding in which a juvenile could lose his liberty for years is the

functional equivalent of a felony prosecution. Jn re Winship, supra at

367. Furthermore, many secondary school students are prosecuted

criminally, either because they are legally adults or are subject to one

of the various state statutes which allow prosecutors to try older

juveniles as adults. See e. g., State v. Engerud, 94 N. J. 331, 463 A.2d

984, 938 (1983).

Justice Powell, writing for the Court, reaffirmed the basic

principle that evidence secured illegally “cannot be used in a

criminal | proceeding against the victim of the illegal search and

seizure.” Id. at 347. Similarly, in Stone v. Powell, supra at

493-94, while. declining to enforce the exclusionary rule on

collateral review, Justice Powell once again emphasized the

view that it must continue to be implemented at trial and on

direct appeal. Cf. United States v. Johnson, 457 U.S. 537, 102

S.Ct. 2579 (1982). |

In determining whether the exclusionary rule was applica-

ble in a school disciplinary proceeding, the District Court of the

Western District of Michigan noted that the decision in Calan-

dra “was premised upon the availability of an exclusionary rule

applicable to the authorities’ case in chief. Smyth v. Lub-

bers, supra at 794.

Moreover, the fact that the search at issue was conducted by

other than a police officer has not produced a different result.

Petitioner’s assertions to the contrary not withstanding, this

Court has never confined the exclusionary rule to searches

conducted by law enforcement officers. “If the government

intrudes on a person’s property, the privacy interest suffers

whether the government’s motivation is to investigate viola-

tions of criminal law or breaches of other statutory or regulato-

ry standards.” Marshall v. Barlow’s Inc., supra at 313. The

exclusionary rule has been specifically applied to such non-

police governmental officials as firemen [Michigan v. Clifford,

supra}; alcohol tax agents [Colonnade Catering Corp. v.

United States, 397 U.S. 72 (1970)}; border patrol officers

[United States v. Martinez-Fuerte, supra).

The above governmental officers are not primarily con-

cerned with the enforcement of criminal law. They are re-

sponsible for carrying out various statutory and regulatory

schemes to promote health, safety, etc. Occasionally, as a

result of the performance of their duties, non-criminal sanc-

tions are imposed upon a violator; even more infrequently they

discover evidence which results in a criminal prosecution.

Nevertheless, the exclusionary rule has been applied when

their conduct in pursuit of their official responsibilities has

been adjudged unreasonable by Fourth Amendment stand-

ards.

Similarly, school employees are charged with the responsi-

bility of carrying out the legislative and administrative

schemes formulated to promote public education. The enforce-

ment of these regulations can result in the imposition of such

quasi-criminal sanctions as suspension and expulsion upon

student-violators; it can also result in the discovery of evidence

upon which criminal charges are founded. As is the case with

other governmental agents, the exclusionary rule is applicable

when they exceed their authority.

Thus when, as in the instant case, the state attempts to

utilize the fruits of an illegal search on its case-in-chief, the

“cost-benefit” analysis proposed by appellant has no applica-

tion. The exclusionary rule is constitutionally mandated even

when the illegal search was conducted by government agents

other than police officers.

C. Assuming Arguendo That The “Cost-Benefit” Test Pro-

posed By Petitioner Is Appropriate In The Instant Case,

Application Of The Exclusionary Rule Would Still Be

Mandated Since The Expected Deterrence Benefits

Would Outweigh Any Anticipated Detriments

Even assuming for the purposes of argument, that the “cost-

benefit” approach were appropriate in this case, it is clear that

the balance would weigh heavily in favor of the application of

the exclusionary rule. The expected benefits with regard to the

deterrence of conduct in violation of the Fourth Amendment

would outweight any anticipated detriments.

7“

1. Application Of The Exclusionary Rule To School Sear-

ches Would Deter Violations Of The Fourth Amend-

ment Because School Officials Have A Strong Interest

In Seeing Criminal Actions Against Students

Successfully Litigated

Application of the exclusionary rule to searches of students

would substantially deter conduct in violation of the Fourth

Amendment because school administrators do, contrary to

petitioner’s contentions, have a strong interest in seeing juve-

nile delinquency proceedings successfully litigated.“ Certain-

ly, the primary concern of school administrators and teachers

is education, not law enforcement. However, it has also been

universally recognized that educators have an obligation to

maintain a safe and orderly environment for the benefit of all

students. Tinker v. Des Moines Ind. Comm. Sch. Dist., supra

at 507; Doe v. Renfrew, supra, 475 F. Supp. at 1020; Moore v.

Student Affairs Comm. of Troy State University, 284 F. Supp.

725, 729(M.D. Ala. 1968); 3 LaFave, Search and Seizure, 10.11

at 458 (1978).

As previously noted, in most states, educators have

statutorily imposed duties to maintain orderly conditions in the

school, or to hold students strictly accountable for disorderly

Petitioner also makes the surprising assertion that because

school authorities infrequently conduct searches, they cannot be

expected to learn the basic rules governing search and seizure, or to

moderate their conduct accordingly. (Petitioner’s Brief at 16). Initial-

ly, it is difficult to understand why, if school searches occur so

infrequently, petitioner insists that they are indispensable to the

maintenance of a safe and orderly educational environment.

In any event, there is no legal support for the position that in-

dividuals can be held accountable only for those laws with which they

for teaching constitutional principles to their own students through

history and civics courses.

conduct; in some, educators are even obliged to seek out and

report to the police evidence of criminal conduct. See Notes 7,

8, and 9, supra. These obligations would, at a minimum, con-

cern teachers with the enforcement of school regulations that

further these ends and with the elimination of anti-social con-

duct which in addition to violating school regulations also con-

travenes criminal law.

In light of these responsibilities, it is manifest that teachers

and other school officials have, in addition to their educational

functions, substantial regulatory and law enforcement duties.

Educators who fail to successfully carry out these duties would

be evaluated accordingly by their superiors, and might person-

ally suffer such detriments as loss of job or of promotions.

To comply with these mandates, it would be necessary that

anti-social or disruptive conduct be prevented or immediately

abated. While these ends may on occasion be achieved through

internal disciplinary procedures, the more drastic measure of

arrest, trial and conviction in the juvenile justice system would

often “solve” the discipline problem with a minimum of effort

on the part of the school system. For example, a successful

juvenile prosecution could result, by mean of a reformatory or

other custodial disposition, in the removal of the disruptive

student from the school environment entirely. Or the student

and his family could be compelled, as a condition of probation,

to submit to psychiatric or other remedial counselling which

they might not otherwise have been willing to seek.

In many states, the fact of a juvenile delinquency adjudica-

tion is per se grounds for suspension or expulsion.“ In other

states, ground for expulsion or suspension include engaging in

See e.g., Alaska Stat. § 14.30.045 (1982); Kan. Stat. Ann. § 72-

8901 (1980); La. Rev. Stat. Ann. § 17:416 (West 1983); Mich. Comp.

Laws. Ann. § 380.1311 (West Supp. 1981); Nev. Rev. Stat. § 115-391

(Supp. 1981).

activity forbidden by the penal code. While such statutes may

still necessitate the holding of some minimal due process hear-

ing, certainly the fact of a juvenile delinquency adjudication

would reduce the school’s burden of proof to the production of a

court document. The school system could thereby impose its

own sanctions with a minimum of effort on its part.

Thus, school officials have a very direct interest in seeing

juvenile prosecutions successfully concluded, and would there-

fore be deterred by the knowledge that illegally conducted

searches will result in suppression of the evidence found.

Certainly their interest is as strong as that of other regulatory,

as opposed to law enforcement, agents to whom the exclusiona-

ry rule has already been applied.

Admittedly, building inspectors, revenue agents, firemen,

like teachers, are not police officers, and do not primarily carry

out searches with criminal law enforcement goals in mind. This

difference has always been recognized by this Court and im-

plemented not by elimination of the exclusionary sanction, but

by adapting the conditions under which these species of search

can be conducted. In so doing, the governmental interest

which justifies the search has been balanced against the con-

stitutionally protected interests of the citizen, and the nature

and extent of the intrusion was appropriately limited. Camara

v. Municipal Court, supra at 534-35. Thus, certain classes of

administrative search have been authorized on the basis of

standards less than probable cause. Michigan v. Tyler, supra

at 507, n. 5. In some circumstances, the requirement of a

warrant has been eliminated. See e.g., United States v.

Martinez-Fuerte, supra at 566-67. See also Terry v. Ohio, 392

U.S. 1 (1968).

This was the identical approach taken by the Supreme Court

of New Jersey in the opinion below.“ State in the Interest of

T.L.O., supra at 941-42. After considering such governmental

concerns as the duty of educators to maintain order, safety,

and discipline in the schools, the necessity of creating a proper

8 Since the New Jersey Supreme Court found the search in this

case to be invalid even under the reasonable grounds test and peti-

tioner has not challenged the propriety of this finding, the question of

the proper standard to be applied is not strictly at issue here. Re-

spondent argued below and still maintains that the diluted “reason-

able grounds” standard is not constitutionally permissible in this

case. While the administrative search analogy may have some valid-

ity when applied to inanimate objects such as lockers, it breaks down

completely when, as here, the person of a child is the subject of a

significant intrusion on privacy and dignity. Horton v. Goose Creek

Ind. School Dist., supra at 477. In creating the few, narrowly defined

exceptions to the warrant-probable cause requirement, this Court

has balanced the governmental interests at issue against the nature

of the intrusion. Terry v. Ohio, supra at 20-31 (1968); Camara v.

Municipal Court, supra at 536-37. Thus, the lesser standard was

authorized for administrative searches because these inspections are

not aimed at the discovery of crime, are not personal in nature, and

entail a rather limited invasion of a citizen’s privacy. Camara v.

Municipal Court, supra at 535-37. Similarly, the frisk exception is

allowed because the intrusion is limited to a “pat-down” for the

discovery of weapons, when an officer reasonably believes that his

safety is threatened. Terry v. Ohio, supra at 28-29.

However in the school setting, the lesser standard has been ap-

plied not only to searches related to school rule violations, but also for

evidence of crime. Clearly, the probable cause standard cannot be

diluted in these circumstances. See /d. at 20-21; Camara v. Municip-

al Court, supra at 535; State v. McKinnon, supra at 787 (dissent of

Rosellini, A. J.). State v. Young, supra, 216 S. E. 2d at 599 (Gunter J.,

dissenting).

Moreover if a school rule infraction is to be validly analogized to a

regulatory code violation, the scope of the search permitted should be

similarly limited. Nevertheless, in the school context full body sear-

ches have been authorized not merely “a limited intrustion of the kind

Pe,

1 4

educational atmosphere, the fact that educators are not

primarily concerned with law enforcement, and the necessity

for immediate action when threats to the educational environ-

ment arise, the New Jersey Supreme Court ruled that a war-

rant need not be procured, and that a search can validly be

conducted if the teacher has reasonable grounds to believe that

the student possesses evidence of illegal activity or of activity

that would interfere with school discipline and order. Jd. at

941-42.

The majority of lower federal and state courts, which have

considered this issue have taken the same apprvach, dispens-

ing with the warrant requirement and permitting searches

upon a lesser standard akin to that formulated by the New

Jersey Supreme Court.“ By contrast, where the search of the

associated with the relaxed standards of reasonableness in Camara

and Terry.” State v. Young, supra at 600. Furthermore, school

attendance is compulsory. Unlike the citizen who has entered a

highly regulated business, who has purchased an airline ticket, or

who intends to cross an international border, it cannot be said that a

student has surrendered his reasonable expectation of privacy by

voluntarily placing himself in a situation where an administrative

inspection is inevitable. See Jones v. Latexo Ind. School Dist., supra

at 234. Thus the administrative search analogy is not viable.

Admittedly, few courts have adopted the traditional

cause standard when a search has been conducted by school person-

nel. State v. Mora, supra. See also M. M. v. Anker, supra at 589;

State v. Young, supra, at 594 (Gunter, J., dissenting); State v.

McKinnon, supra, 558 P.2d at 785 (Rosellini, A.J., dissenting).

Respondent nevertheless submits that the dilution of the probable

cause-warrant standard in the school context is in violation of the

Constitution.

See e. g., Horton v. Goose Creek Ind. School Dist., supra; M. M.

v. Anker, supra; Jones v. Latexo Ind. School Dist., supra; Bilbrey v.

Brown, supra; Bellnier v. Lund, supra; Doe v. Renfrew, supra; M.

v. Board of Education Ball-Chatham, etc. Dist. No. 5, supra; In re

W. supra; In re C., supra; State v. Baccino, supra; State v. F. W. F.,

9 a

student was conducted by the police rather than school em-

ployees, courts have consistently imposed the probable cause

test.”

In concluding that this approach was adequate to protect

both the legitimate interests of the state and the privacy rights

of the students, these courts considered many of the same

factors as were noted by the court in State in the Interest of

T. L. O., supra, as well as others which arise in the school

search context. See e. g., In the Interest of J. A., supra at 962

(the health and welfare of the students in the school’s charge);

Jones v. Latexo Ind. School Dist., supra at 236 (“the unique

role of education in our society”); State v. Baccino, supra at

871, and People v. Jackson, supra, 319 N.Y.S. 2d at 734-35

(the in loco parentis relationship between teacher and

student); Doe v. State, supra, 540 P.2d at 830 (the “epidemic”

of crime in the schools); People v. Scott D., supra at 406-08 (the

“lethal” threat of drug abuse on the increase in schools; the

immaturity of students). Thus the difference in the nature of

the search has already been balanced and accommodated by

the use of a standard less than probable cause; further

amelioration by dispensing with the exclusionary rule would

reduce the Fourth Amendment protection to an empty shell.

supra; People v. Ward, supra; Doe v. State, supra; State in the

Interest of T.L.O., supra; People v. Singletary, supra; People v. D.,

supra; People v. Jackson, supra; State v. McKinnon, supra; In re

L. L. supra.

0 See e.g., Piazzola v. Watkins, 442 F. 2d 284 (5th Cir. 1971); Picha

v. Wielgos, 410 F.Supp. 1214 (N.D. Ill. 1975); Waters v. United

States, 311 A.2d 385 (D.C. App. 1973); M. J. v. State, 399 So.2d 996

aaa 1981); People v. Bowers, 72 Misc. 2d 800, 339

N. V. S. 2d 783 (N. V. C. Crim. Ct. 1973), affd 77 Mise. 2d 697, 356

N. V. S. 2d 432 (1974).

2. Application Of The Exclusionary Rule To Evidence

Seized Illegally By School Employees Would Deter

Misconduct On The Part Of The Police

In addition to deterring Fourth Amendment violations by

school personnel, application of the exclusionary rule to the

school setting will also prevent misconduct on the part of the

police. If evidence improperly obtained through a school

search could nevertheless be admitted into evidence in juvenile

delinquency or adult criminal proceedings, there would be a

natural temptation for the police to instigate teachers to make

searches which would be illegal for both police and school

personnel. Moreover, this type of covert cooperation would be

difficult to detect and impossible to prove.

That such would be the inevitable result of an inconsistent

use of the exclusionary rule was recognized by this Court in an

analogous setting in Elkins v. United States, 364 U.S. 206

(1960). In abolishing the “silver platter” doctrine, under which

evidenee illegally seized by state law enforcement authorities

was still admissible in federal prosecutions, Justice Stewart

wrote:

Free and open cooperation between state and federal law

enforcement officers is to be commended and enco a

yet that kind of cooperation is hardly promoted by a rule

that implicitly invites federal officers to withdraw from

such association and at least tacitly to encourage state

officers in the disregard of constitutionally protected free-

dom. If, on the other hand, it is understood that the fruit of

an unlawful search by state agents will be inadmissible in a

federal trial, there can be no inducement to subterfuge

and evasion with respect to federal-state cooperation in

criminal investigation. Jd. at 221-222.

Similarly by applying the exclusionary rule uniformly to

evidence illegally obtained from students, whether seized by

the police or by teachers, one strong incentive to conduct

illegal searches would be eliminated. In deciding that the ex-

clusionary rule must be extended to circumstances where evi-

dence seized by a teacher is turned over to the police, the

Wisconsin Court of Appeals in Interest of L. L., supra at 347, n.

1, agreed that

Once the evidence comes into the possession of law

enforcement officers and is used in court proceedin

against the liberty interests of the person searched, the

exclusionary rule must be available to deter prosecutions

based on unlawful searches. Without such exclusions

school personnel and other government employees would

become the same sort of bypass around the amendment’s

protections that the Court meant to close by extending the

exclusionary rule to state court proceedings in Mapp v.

Ohio, supra.

Petitioner suggests that should school authorities conduct

illegal searches at the behest of the police, the courts will

recognize that fact and can then apply the exclusionary rule to

suppress any fruits of that search. (Brief of Petitioner at 16-17)

This optimistic proposal ignores reality. It was the fact that

such subterfuge was virtually impossible to detect that

prompted the decision in Elkins v. United States, supra. Only

the enforcement of a uniform standard pursuant to which both

the police and the school authorities would be sanctioned by

exclusion of evidence illegally obtained would a resurrection of

the “silver platter” doctrine be avoided.

Significantly, petitioner does not challenge the efficacy of

the exclusionary rule with regard to the police. However, as

amicus curiae, the Washington Legal Foundation suggests,

based upon the research embodied in Oaks, Studying the

Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev.

665 (1970) (hereinafter Oaks), and Spiotto, Search and Sei-

zure: An Empirical Study of the Exclusionary Rule and Its

Alternatives, 2J. of Leg. Stud. 243 (1973) (hereinafter Spiotto)

that the exclusionary rule does not deter police misconduct.

(See Amicus Brief at 9, n. 3). This assertion is wholly unwar-

ranted for several reasons, not the least of which is Prof. Oaks’

own belief that his findings proved to be inconclusive. Oaks at

755.

Oaks studied arrests for narcotics, weapons, gambling and

stolen property in Cincinnati, reasoning that if the exclusiona-

mai

ry rule was deterring unlawful conduct, the number of arrests

for these crimes (which generally required evidence to be

seized) would decline subsequent to the Mapp decision. Spiotto

likewise confined his study to a single city, Chicago, but fo-

cused upon the number and success of motions to suppress filed

in felony cases in the trial courts. These before and after

evaluations are beset with inherent weaknesses.

First, the studies centered upon a single city. As the police

response in Chicago and Cincinnati can hardly be characterized

as typical, these studies failed to examine an adequate or

representative sample. Canon, Is the Exclusionary Rule in

Failing Health? Some New Data and a Plea Against A Pre-

cipitous Conclusion, 62 Kty. L. J. 681, 698, 702, 704, 720-22

(1974) (Hereinafter Canon). The whole notion of analyzing

statistics on supression motions as an indicator of police com-

pliance is of questionable validity. Such a study cannot account

for (1) the numerous cases that are discretionally screened out

of the system by police and prosecuters who are mindful of the

inevitable success of a suppression motion, (2) the fact that

illegal searches which do not uncover incriminating evidence

never come before judical scrutiny, and (3) the effect of popula-

tion growth and social changes (increasing drug use) upon the

crime rate. Critique, On the Limitations of Empirical Evalua-

tions of the Exclusionary Rule: A Critique of the Spiotto

Research and United States v. Calandra, 69 N.W. L. Rev.

740, 744 (1974) (hereinafter Critique); Canon at 718.

Additionally, as the decision in Mapp only forbade the in-

troduction of illegally obtained evidence, but left the definition

of such to be determined over a decade later in piecemeal

pronouncements, the Mapp decision cannot be considered a

singular concrete event such that findings as to police miscon-

duct beforehand would be relevant to those afterward. Canon

at 700-01. Furthermore, the Spiotto study is subject to individ-

ual criticisms, the most glaring of which is the researcher’s

mistaken belief that Mapp imposed the exclusionary rule in

Illinois, when in fact the state had adopted it pursuant to state

law in 1924. Critique at 754.

Indeed a more credible empirical study on the exclusionary

rule indicates that it does in fact deter police misconduct.

Based upon information from 19 cities, Prof. Canon observed a

dramatic decrease in the number of arrests for “search and

seizure sensitive” crimes after Mapp in approximately half of

those cities; a substantial increase in the number of search

warrants obtained; and the wide-spread adoption by police

departments of policies designed to implement the Mapp deci-

sion. He concluded that “the exclusionary rule can and does

have avery real, although hardly universal, deterrent effect on

the police.” Canon, The Exclusionary Rule: Have Critics

Proven that It Doesn’t Deter Police? , 62 Judicature 398, 400

(1979).

The application of the exclusionary rule to illegal school

searches would, then, serve a second deterrent purpose by

preventing misconduct on the part of the police.

3. The Societal Costs Of Implementing The Exclusionary

Rule Are Insubstantial

Petitioner argues that enforcing the exclusionary rule would

impose “a stiff societal cost” in that the prosecution would lose

the use of evidence that would otherwise be probative and

reliable. (Petitioner's Brief at 19) At the outset, it must be

emphasized that the enforcement of a host of constitutional

rights entails the same cost. The remedy for a denial of the

Sixth Amendment’s right to a speedy trial is the dismissal of

the indictment, despite the fact that the prosecution may have

overwhelming evidence, untainted by the constitutional viola-

tion, of the defendant’s guilt. See Barker v. Wingo, 407 U.S.

514 (1972). Confessions taken in violation of the Fifth Amend-

ment are excluded, even when circumstances demonstrate

that the statement is trustworthy. See Watts v. Indiana, 338

U.S. 49, 50, n. 2 (1949); Spano v. New York, 360 U.S. 315,

820-21 (1969). Nullification is the most frequently imposed

sanction for constititional violations. Dellinger, Of rights and

Remedies: The Constitution as a Sword, 85 Harv. L. Rev. 1532

(1972). As the New Jersey Supreme Court noted below, “law

enforcement would be easier without the Constitution, but

that is not the way the Framers chose.” State in the Interest of

T. L. O., supra at 942.

In the Fourth Amendment context, the cost is for the

prosecution to do without evidence it would never have had if

constitutional principles had been respected. The State is still

free to continue the case based upon any other evidence it may

have, independent of the illegal search. This is a far less strin-

gent sanction than is required for a speedy trial violation where

the entire prosecution is terminated.

Furthermore, empirical evidence shows that enforcement of

the rule results in the dismissal of only a small minority of

prosecutions. Studies have demonstrated that a low percen-

tage of all complaints are rejected by prosecutors because of

search and seizure problems. According to the independent

‘Government General Accounting Office study of 2,804 cases

handled by thirty-eight United States Attorney’s Offices in

1978, search problems accounted for only 0.4% of the arrests

declined for prosecution. Evidence was suppressed in only

1.3% of the cases actually filed, half of which still terminated in

convictions, Comp. Gen. Rep. No. GGD-79-45, Impact of the

Exclusionary Rule on Federal Prosecutors, 11, 13, 14 (1979).

Data developed in a recent study by the Department of

Justice is consistent with the Government Accounting Office

report. The study considered the effect of the exclusionary rule

in state criminal prosecutions in California over a three year

period. Presented by police with 520,993 felony cases, prosecu-

tors rejected 86, 083 (16.5%), only 4,130 of which (0.8% of the

total arrests) were rejected for search problems. National

Institute of Justice, The Effects of the Exclusionary Rule: A

Study in California 1 (1982). A study of 7,500 felony prosecu-

tions in Pennsylvania, Michigan, and Illinois found that sup-

pression motions were filed in only 5% of the cases, and granted

in only 0.7%. Nardilli, The Societal Cost of the Exclusionary

Rule: An Empirical Assessment, 1983 Am. B. Found. Re-

search J. 3. See also Canon, Ideology and Reality in Debate

Over the Exclusionary Rule: A Conservative Argument for Its

Retention, 23 S. Tex. L. Rev. 559, 573-76 (1982); Davies, Do

Criminal Due Process Principles Make A Difference? 1982

Am. B. Found. Research J. 247, 265.

In light of these findings, it can hardly be said that the cost to

society in terms of “lost” convictions is substantial. Petitioner

asserts that implementation of the exclusionary rule in the

school context would exact an additional cost by deterring

school authorities from taking effective action to provide a

crime-free environment for learning. (Petitioner’s Brief at 19)

The National Schv1 Boards Association maintains that schools

are being confronted with a “rising tide” of crime and that

searches are a “vital tool” to combat this problem. (Brief of

Amicus Curiae at 5). These contentions are without support.

At the outset, it appears necessary to emphasize that the

holding of the New Jersey Supreme Court does not preclude

school authorities from conducting searches. It merely re-

quires that there be some reasonable grounds for doing so.

Moreover, surveys done at both the national and local levels

have concluded that the incidence of crimes committed in

schools by students has been on the decline since the mid-

1970’s. National Institute of Education (D.H.E.W.), Violent

Schools—Safe Schools; The Safe School Study Report to the

Congress, 2 (1978), ERIC #ED-175-112 (hereinafter The Safe

School Report); L.E.A.A. National Institute of Law Enforce-

ment and Criminal Justice, School Crime: The Problem and

Some Attempted Solutions, 3-4 (1980), ERIC #ED-180-103

(hereinafter, School Crime); New Jersey Department of Edu-

cation, Final Report on the Statewide Assessment of Incidents

of Violence, Vandalism and Drug Abuse in the Public Schools,

57 (1982) (hereinafter, New Jersey Final Report); ERIC

Clearinghouse on Educational Management/National School

Boards Association, Research Action Brief, 2-8 (1982), ERIC

#ED-208-453 (hereinafter, Research Action Brief).“ With re-

gard to drug abuse, a recent study prepared for the National

Institute on Drug Abuse by the University of Michigan’s In-

stitute for Social Research concluded that “the 1980’s repre-

sent a period of leveling and decline in drug use” among high

school students. N.Y. Times, Feb. 7, 1984 at C9, col. 2 (city

ed.).

The Safe School Study concluded that only 8% of the nation’s

school were experiencing a serious crime problem. The Safe

School Report at 2. Some researchers feel that 4% is more

accurate estimate. Research Action Brief at 3. While these

studies conclude that problems with school exist and must be

addressed, the findings suggest that schools are “not the

hotbed of crime and violence” that petitioner asserts. Research

Action Brief at 3., School Crime at 3.

In addition, there does not appear to be any reason to believe

that the rate of crime is related to the ability of school person-

dents attending; junior high school age level; large school popu-

lation; lack of firmness in enforcing school rules; large class

size; lack of relevance of academic courses to students; stu-

dents’ feelings that they have little control over what happens

is not normally associated. For example, the New Jersey Final

Report indicates that between July of 1979 and June of 1981, the

state’s school districts 15,086 incidents of vandalism, 3,975

incidents of violence, and 2,212 incidents of drug abuse. /d. at 4. It

would appear obvious that the most serious problem faced by the

New Jersey schools over this period was vandalism, by an

overwhelming margin. The utility of student searches to cope with

to them. The Safe School Report at 8. As to property crimes,

the study isolated these factors: High crime rate in the attend-

ance area; high residental concentration near school premises;

presence of non-student youth around school premises; unsta-

ble family conditions; large school size; lax rule enforcement;

lack of coordination between faculty and administration; hos-

tile and authoritarian attitudes on the part of teachers toward

students; low student identification with teachers as role mod-

els; manipulation of grades as a disciplinary measure; intense

competition for grades; intense competition for student lead-

ership positions. Jd. Many of these same problem areas have

been identified by other studies. See e.g. Governor’s (Mich.)

Task Force, School Violence and Vandalism Report (1979),

ERIC #ED-191-946 (hereinafter Michigan Report); New

Jersey Final Report at 57; California State Department of

Education, Preliminary Report on Crime and Violence in the

Public Schools (1981), ERIC #ED-208-567; New Jersey

School Boards Association, School Violcuce Survey (1977),

cited in Research Action Brief at 3.

None of these studies found the infrequency of student sear-

ches to be a significant factor in schools with a serious crime

problem. Moreover, of the many remedial measures proposed

by these studies to reduce the existing crime rate, none in-

volved increasing the intensity of student searches. On the

contrary, the findings would seem to suggest that several of

the conditions which are associated with a high crime rate

could actually be exacerbated by an increase in the number of

searches conducted, and by the failure to stringently penalize

school personnel who conduct unreasonable searches.

The Safe School Study concluded that the incidence of crime

is high in schools where “students feel they have little control

over what happens to them,” and where there are “authorita-

rian attitudes on the part of teachers toward students.” The

Safe School Report at 8. See also The Michigan Report at 10. It

was found that “fairness in the administration of discipline and

respect for students is a key element in the effective govern-

ance of schools,” and that “close personal ties bet ween teachers

, 42

and students” lower the risks of criminal conduct. The Safe

School Report at 9. See also Clark, Violence in Public Schools:

The Problem and Its Solutions, 8 (1978), ERIC #ED-151-990.

Frequent searches of students, particularly where no reason-

able basis exists justify the search, will not engender respect

between educators and students, and will only increase the

students’ perception that they have no control over what hap-

pens to them. Failure to stringently sanction teachers who

conduct illegal searches will only persuade students that

enforcement of rules is inconsistent and unfair, and that adults

are privileged to flout the rules with impugnity.

It has been recognized that children have a greater need for

protection against invasions of privacy than adults, and are

more likely d suffer psychological damage when subjected to

involuntary searches. People v. Scott, D., supra, 34 N.Y. 2d at

490; Jones v. Latexo Ind. School Dist., supra at 233-34; Bell-

nier v. Lund, supra at 53. As one commentator noted;

This possibility of 12 is even more ominious since the

innocent as well as oe ey suffer from unreasonable

searches. One example of this is the case in which an entire

fifth grade class was strip searched after one student told

sho Sinai throes delicant eats weblog Senlaames poo

[See ar yg v. A — L. The indignity and trauma

ereated by th as fruitless; no money was found.

The Torturabie Clos Class at 731.

In light of these circumstances, the societal costs of applying

the exclusionary rule in the school context will not outweigh ~

the deterrence benefits.

D. Failure To Apply The Exclusionary Rule To Searches By

School Personnel Would Leave Students With No Ade-

quate Means Of Preventing Violations Of Their Fourth

Amendment Rights

The Fourth Amendment merely defines the right of the

people to be free of unreasonable searches and seizures. It is

not self-executing. Some means must be devised by the courts

to effectuate its guarantees, since it is manifest that a right

without a remedy has no substance. Mapp v. Ohio, supra at

655. In the years between 1949 when Wolf v. Colorado, supra,

applied the Fourth Amendment, but not the exclusionary rule

to the states, and 1962, when Mapp made the exclusionary rule

mandatory, the states were free to develop and implement any

alternative remedies that would adequately protect the

Fourth Amendment rights of its citizens. It was the failure of

the states to do so that led to the decision to require application

of the rule. Mapp v. Ohio, supra at 651-52. The inability or

unwillingness of the states to devise an alternative suggests

that no adequate substitute could be formulated, and that the

exclusionary rule, with whatever its attendant problems, was

found to be the most effective means available.

Petitioner nevertheless suggests, as alternatives, the bring-

ing of civil suits against the offending school employee, and/or

the use of internal disciplinary sanctions by the school system

itself. (Petitioner’s Brief at 17-18). These procedures have

been found to be wholly inadequate with regard to the police,

and petitioner has demonstrated no basis to conclude that they

would be more successful in the school context.

1. Civil Suits Against School Employees Who Conduct Ille-

gal Searches Would Have Inadequate Deterrent Effect

The alternative of a civil suit against the offending officer has

long been recognized as an inadequate substitute for the ex-

clusionary rule with regard to deterring police misconduct.

Elkins v. United States, supra at 220. In his dissent to Wolf v.

Colorado, 338 U.S. 25, 42-43 (1949), Justice Murphy recog-

nized that the traditional tort action presented so many diffi-

culties in the search and seizure context that it would rarely be

successful, and would therefore have little deterrent effect. In

some jurisdictions, no such cause of action would exist unless

Prior to the Mapp decision, 26 states had voluntarily adopted the

exclusionary rule as the required method of deterring Fourth

Amendment violations. See Elkins v. United States, supra, Appen-

dix Table I.

physical harm could be demonstrated, and in any event the

measure of damages would be the extent of the injury.” Jd. To

obtain punitive damages, malice must be proved, and the re-

sulting award may be only nominal. Id. In the event of victory,

the plaintiff may have difficulty in collecting damages from

frequently “judgment-proof” officers. Jd. at 44.

The possible federal remedies present a substantial barrier

in the form of a qualified immunity available to government

officials as defenses when they have acted in “good faith.” See

e.g., Pierson v. Ray, 386 U.S. 547, 557 (1967); Bivens v. Six

Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); 42

U.S.C. § 1983. Moreover, it has been found that in this type of

action, juries tend to focus upon the officer’s belief in the

legality of his conduct, and ignore the question of whether his

belief was reasonable. Theis, Good Faith as a Defense to Suits

for Police Deprivation of Individual Rights, 59 Minn. L. Rev.

991, 1009-12 (1975); Comment, Accountability for Government

Faith Defense, 49 Temp. L.Q. 938, 951-953 (1976).

A number of other factors have also been recognized as

rendering the civil alternative ineffective. Fear of reprisals

from the police and prosecutorial agencies discourages both

plaintiffs and their attorneys from bringing such suits. Am-

sterdam, Prospectives on the Fourth Amendment, 58 Minn.

L. Rev. 349, 430 (1974). Plaintiffs also face the likelihood of jury

prejudice in favor of the law enforcement officer, particularly if

the plaintiff is himself a member of a minority group. Project,

Suing the Police in Federal Court, 88 Yale L.J. 781, 783, 800

(1979).

*The absence of physical harm in suits alleging Fourth Amend-

ment violations has resulted in low damage awards. Project, Suing

the Police in Federal Court, 88 Yale L.J. 781, 789-90 (1979); Com-

ment, Presumed Damages for Fourth Amendment Violations, 129

U.Pa. L.Rev. 192 (1980).

The cost of litigating such suits is prohibitive, and because of

the dim prospects of success, the availability of contingent fee

representation is unlikely. Gilligan, The Federal Tort Claims

Act—An Alternative to the Exclusionary Rule? , 66J.Crim. L.

and P.S. 1, 7(1975). Moreover, many victims of unconstitution-

al searches are unaware that the officer’s conduct was illegal

and actionable. Critique, On the Limitations of Empirical

Evaluations of the Exclusionary Rule: A Critique of the Spiot-

to Research and United States v. Calandra, 69 N. W. U. L.

Rev. 790, 793 (1974).

All of these practical problems, identified in the context of

civil suits against the police would have equal application to

suits against school officials. Families would be hesitant to

bring such suits while their children were still students under

the jurisdiction of the defendants. The fear, and the likelihood,

of reprisals would be as great if not greater in the „

context than with the police.

Juries could be expected to have the same sympathies for

educators as they have historically held for law enforcement

personnel. The children, and as a practical matter, their par-

ents, would still have to have substantial financial resources to

conduct the civil litigations. Smyth v. Lubbers, supra at 794.

The probability of collecting money damages from judgment-

proof school employees would be no better than from police

officers. Moreover, children are even less likely than adults to

understand when their rights have been violated and to realize

that they can seek redress.

Furthermore, teachers and school administrators also have

a qualified immunity from damages for claims of constitutional

violation stemming from their “good faith” actions. See Wood

v. Strickland, 420 U.S. 308 (1975); Morales v. Grigel, 422

F.Supp. 988, 1001 (D.N.H. 1976). Thus, in all but the most

flagrant violations of a student’s personal privacy, a teacher

could successfully defend on the grounds that though the

search was illegal, he or she had acted in good faith.“

These difficulties would, then, render the civil action an

inadequate substitute for the exclusionary rule in the educa-

tional context. Certainly, the appellant has demonstrated no

reason to assume that it would be any more effective a deter-

rent to illegal searches by teachers than it has been found to be

to police officers. Indeed, after considering the difficulties

inherent in bringing a civil suit in these circumstances, it has

been recognized that without the exclusionary rule, school

authorities “would be free to trench upon constitutional rights

of the students in their charge without meaningful restraint or

fear of adverse consequences.” Jones v. Latexo Ind. School

Dist., supra, at 239; Smyth v. Lubbers, supra at 794.

2. Administrative Sanctions Against The Offending

School Employee Could Not Be Sufficiently Enforced

To Serve As An Effective Deterrent To Constitutional

Violations

The use of sanctions against the individual who conducted

the illegal search has also been proved to be an unsuccessful

deterrent in the law enforcement context. The record of Amer-

ican search and seizure litigation strongly suggests that most

breaches of the Fourth Amendment occurred if not at the

explicit command, at least with the tacit approval, of the super-

visors of the individuals carrying out the search. Edwards,

Criminal Liability for Unreasonable Search and Seizure, 41

Va. L. Rev. 621, 628 (1955) (hereinafter Edwards) Under these

Even with regard to such an extreme invasion of personal priva-

cy as a strip search, the good faith immunity has been

asserted by a teacher in defense to a 42 U.S.C. 1983 action. In

Bellnier v. Lund, supra, the District Court ruled that the law in the

area of school searches was sufficiently unsettied that the defendant

was immune from damages from her unlawful strip search of an

entire class of fifth graders. Compare Doe v. Renfrew, supra, 631

F. ad at 91; M. M. v. Anker, supra, 477 F.Supp. at 837.

circumstances, those in authority would be more likely to

protect an overzealous subordinate than to recommend crimi-

nal or administrative sanctions. Id., Franks v. Delaware, 438

U.S. 168, 169 (1978); Wolf v. Colorado, supra at 42. Reported

decisions reflecting that such penalties have been imposed are

almost non-existent. Edwards at 629.

Such results could be expected in the educational context as

well. If internal disciplinary procedures are never utilized,

they can hardly serve any deterrent function. Moreover, as

one commentator has suggested with regard to the police, if

the alternative of personal sanctions could somehow be made

to work effectively, the end result would likely be too much

deterrence:

Critics of the exclusionary rule who would replace it with

sanctions aimed directly at the offending officer often miss

the point that if such sanctions were viable, they would

deal a more crippling blow to law enforcement than does

the mere exclusion of illegally-seized evidence... Under

threat of sanctions im y on the individual offic-

er, . . . officers may forbear from acting, even when they

think they have the right, for fear that those who review

their actions will disagree. This additional deterrence at

the margin is an unnecessary social cost.

Mertens and Wasserstrom, The Good Faith Exception to

the Exclusionary Rule: D ing the Police and

Derailing the Law, 70 Geo. L.J. 365, (1981).

See also Edwards at 695; Dellinger at 1555.

In view of the small likelihood that personal sanctions would

be imposed, and the problems that could be engendered even if

such an approach could be effectively implemented, this pro-

posed alternative is an inadequate substitute for the ex-

clusionary rule.

E. In Addition To Deterring Violations Of The Fourth

Amendment The Exclusionary Rule Is Constitutionally

Required To Protect Judicial Integrity

Petitioner’s argument that the exclusionary rule should not

be applied to illegally conducted school searches is based upon

the contention that the sole purpose of this remedy is deterr-

ence of future misconduct. Such was not, however, the historic

basis upon which this rule was founded. In Weeks v. United

States, supra, when this Court ruled that evidence seized in

violation of the Fourth Amendment would be inadmissible in

federal trials, the deterrence rationale was not mentioned.”

Instead the unanimous Court held that:

The tendency of those who execute the criminal laws of the

country to obtain conviction by means of unlawful seizures

. . should find no sanction in the judgments of the courts

which are e at all times with the support of the

Constitution and to which people of all conditions have a

right to — for the maintenance of such fundamental

rights. Jd. at 392.

See also Olmstead v. United States, 277 U.S. 438 (1928).

This justifiation, which has been labeled the “judicial in-

tegrity” [Elkins v. United States, supra at 222] rationale, was

described thusly in Terry v. Ohio, 392 U.S. 1, 13:

Courts which sit under our Constitution cannot and will

not be made party to lawless invasions of the con-

stitutional Hs pa of citizens by permitting unhindered

governmental use of the fruits of such invasions. Thus in

our system evidentiary rulings provide the context in

which the judicial process of inclusion and exclusion ap-

proves some conduct as ne with constitutional

u and disapproves actions by state agents.

ruling admitting evidence in a eriminal trial, we recog-

nize, has the necessary effect of i the conduct

which produced the evidence, while an application of the

clusionary rule withholds the constitutional ur

. . . When [unconstitutional] conduct is iden , it must

* Petitioner erroneously asserts that the exclusionary sanctions

imposed in Weeks, supra, were intended for deterrent purposes.

(See Petitioner’s Brief at 9). Deterrence was not mentioned as a basis

for the exclusionary rule until Wolf v. Colorado, supra.

be condemned by the judiciary and its fruits must be

excluded from evide ce in criminal trials.

Thus it is not merely the illegal seizure of evidence which the

Fourth Amendment condemns, but its use as part of an

evidentiary transaction commencing with the search and con-

tinuing through the prosecutor to the Court itself.

Since deterrence was first mentioned in Wolf v. Colorado,

supra, as a supporting basis of the exclusionary rule, its

theoretical importance has, admittedly, increased. See e.g.

United States v. Calandra, supra; United States v. Janis, 428

U.S. 433, 458-59, n. 35 (1976). Neverless, it cannot be said that

this Court has abandoned the imperative of judicial integrity.

In United States v. Johnson, supra, this Court rejected the

contention that deterrence forms the sole criteria for the appli-

cability of the exclusionary rule. Retroactive effect was given

to the decision in Payton v. New York, 445 U.S. 573 (1980)

requiring police officers to obtian a warrant in order to arrest a

suspect in his home, a point upon which the law had previously

been unsettled. The decision to apply the Payton rule

retroactively could hardly have been compelled by the need to

deter future police misconduct. Reliance was instead placed

upon the judicial integrity rationale as formulated by Justice

Harlan in his dissent to Desist v. United States, 394 U.S. 244

(1969):

We so not release a criminal from jail because we like to

do so or because we think it is wise to do so, but only

because the Government has offended constitutional prin-

ciple in the conduct of this case. United States v. Johnson,

supra, 102 S.Ct. at 2594, quoting Desist v. United States,

supra at 258.

Similarly, during the course of this Court’s opinion in United

States v. Payner, 447 U.S. 727 (1980), Justice Powell reaf-

firmed that the exclusionary rule serves the twofold prupose of

ee en eer at 734,

Despite the growing emphasis upon deterrence, this Court

has not relinquished the older imperative of judicial integrity.

Indeed as previously set forth in Point IIB, supra, the concern

with the deterrent effect of the exclusionary rule has pre-

dominated only in proceedings ancillary or collateral to a crimi-

nal trial. Thus far, this Court has not allowed illegally seized

evidence to be introduced on the prosecution’s case-in-chief

against the victim of the search. Such is the position the peti-

tioner presently urges upon this Cgurt. To do so would strike at

the heart of the principle of judicial integrity, and render the

courts “accomplices in the willful disobedience of a Constitu-

tion they are sworn to uphold.” See Elkins v. United States,

supra at 222-23.

F. The Exclusionary Rule Serves A Constitutionally Pre-

scribed Educational Function Most Appropriately Served

In The Public School Context

. The exclusionary rule has been recognized, in the context of

the police, to serve an educative function:

More importantly, over the long term, this demonstration

[the suppression of evidence secured by illegal searches]

that our society attaches serious consequences to violation

of constitutional rights is thought to encourage those who

formulate law-enforcement policies, and the officers who

implement them, to incorporate Fourth Amendment

ideals into their value system. Stone v. Powell, 428 U.S.

465, 493 (1976).

As was long ago observed by Justice Brandeis, “Our govern-

ment is the potent, the omnipresent teacher. For good or forill,

it teaches the whole people by its example. . If the Govern-

ment becomes a lawbreaker, it breeds contempt for the law

.. Olmstead v. United States, supra at 484-85 (1928) (dis-

sent).

more appropriately served in the school setting than in any

other aspect of society. Jones v. Latexo Ind. School Dist.,

supra at 239. Students look to teachers, school administrators

and others in positions of authority as models for their own

behavior and development into responsible adults.” Jd. It

would be ironic in the extreme if in our schools, the institution

upon which we rely to teach our children the rights and respon-

sibilties of our constitutional form of government, violations of

those rights are countenanced rather than met with the most

stringent remedies available. “[H]ow can teachers serve as

models for behavior if they disobey the law?” Koff, Coping with

Disruptive Students, 63 Nat'l Assoc. of Sec. Sch. Principals

Bull. 8, 14 (Feb. 1979).

The special educational significance of the Fourth Amend-

tit in the school setting was eloquently expressed by Justice

brennan in his dissent from the denial of certiorari in Doe v.

Renfrew, supra, 451 U.S. at 1022, a case in which the entire

student body of a secondary school was subjected to searches

by specially trained dogs:

We do not know —4 class petitioner was attending when

police ogs burst in, but the lesson the school

authorities 2 her that day will undoubtedly — * a

greater impressi pression this the one her teacher had he

— I ome saat certiorari to teach petitio

Fourth Amendment protects “the

Fit ofthe ppl o be secure in ther pervnn, howe

4 searches and

eee

lie school students, must obtain a warrant based on

sufficient evidence to establish

If, as a result of the decision in the instant matter, students

are accorded Forth Amendment rights, but are denied any

our government as mere platitudes.” See West Virginia State

Bd. of Education v. Barnette, supra at 637

CONCLUSION

For the foregoing reasons, respondent respectfully requests

that certiorari be dismissed, or in the alternative, that the

decision of the Supreme Court of New Jersey be affirmed.

Respectfully submitted,

JosePH H. RobRIdUEZ

Publie Defender of New Jersey

Attorney for Respondent

/s/ By: Lois De Julio

Lois De JULIO

First Assistant

Deputy Public Defender

20 Evergreen

East Orange, Jersey 07018

ANDREW DILLMANN

Assistant Deputy Public Defender

TINA BOYER

Legal Assistant

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