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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1985
- **Citation:** 469 U.S. 325

## Text

FILE

No. 83-712

Office - Supremes Court, U.S.

D

FEB 9 1984

L. STEVAS.

Cree

IN THE |
Supreme Court of the United States

OCTOBER TERM, 1983

STATE OF NEW JERSEY,

Petitioner.

v.
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?

ii

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

p
GGG 64 „„„ „„ „„ 50

iv

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

ee

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

Vv

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

vi

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
1

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

ix
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

.

x
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

xi
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
r

Oaks — te Exclusionary Rule in Search and
© Seizure, 37 U. Chi. L. Rev. 665 (1970)

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

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

41
35

44

22

35

- 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

2

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.

3

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)

7

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

5

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

&

6

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-

7

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

8

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.

9

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 .

10

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.

11

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

os
4

12

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).

13

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

14

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).

15

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-

16

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

17

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).

18

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

19

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.

20

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.

*

21

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.

22

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).

23

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

24

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).

25

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).

26

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.

27

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“

28

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.

29

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).

30

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).

31

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,
7
1 4

32

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

33

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).

od

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

35

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

36

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.

37

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

38

(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-

4

39

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

40

#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

41

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

43

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.

a4

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
Misconduct: Limiting © :alified Immunity and the Good
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).

45

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.

47

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

48

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.

49

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,
n.

Despite the growing emphasis upon deterrence, this Court
has not relinquished the older imperative of judicial integrity.

50

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0870%3A05. Public record. Not legal advice.