Amicus Curiae Brief — New Jersey v. T. L. O.

\

No. 83-712 “~~

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

>_>

STATE OF NEW JERSEY,

Petitioner,

—vs.—

T.L.O., a Juvenile,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW JERSEY

BRIEF OF

THE AMERICAN CIVIL LIBERTIES UNION

AND THE AMERICAN CIVIL LIBERTIES UNION

OF NEW JERSEY,

A SPORT OF AFFIRMANCE

Of Counsel: BARRY S. GOODMAN,

Counsel of Record

CHARLES S. SIMS Crummy, Del Deo, Dolan

American Civil Liberties

Union Foundation aa oe - |

132 West 43rd Street 2 ro — orporation

New York, New York 10032 ateway

Newark, New Jersey 07102

(212) 944-9800 (201) 622-2235

DEBORAH H. KARPATKIN

American Civil Liberties

Union of New Jersey

38 Walnut Street

Newark, New Jersey 07102

(201) 642-2084

+4 IP

BEST AVAILABLE COP

TABLE OF CONTENTS

TABLE OF CITATIONS. .

INTEREST OF AMICUS CURIAE ... «+ +

SUMMARY OF ARGUMENT . . «+ «+ «+ «© + «

ARGUMENT

I. JUVENILES DO NOT SHED THEIR

FOURTH AMENDMENT RIGHT TO BE

FREE FROM UNREASONABLE SEARCHES

AND SEIZURES AT THE SCHOOLHOUSE

GATE. . >. . . * . > . * . . . >.

II. JUVENILES DO NOT ABANDON

THEIR EXPECTATION OF PRIVACY BY

ATTENDING SCHOOL. . «+ «+ «+ «+ « «

III. THE NECESSITY FOR THE

EXCLUSIONARY KULE IS NO LESS

VITAL IN THE EDUCATIONAL SYSTEM

THAN IN SIMILAR NON-LAW ENFORCE-

MENT CONTEXTS . .« «© © + © © « *

IV. THE BENEVOLENT CONCEPT OF

IN LOCO PARENTIS CANNOT BE

APPLIED TO DENY JUVENILES THE

ESSENTIAL PROTECTIONS OF THE

FOURTH AMENDMENT. .....+ ss

TABLE OF CONTENTS TABLE OF CITATIONS

PAGE CASES CITED Page

Arkansas v. Sanders, 442 U.S.

V. ALTHOUGH THE NEW JERSEY DT. boo. 5 « 6 fg oe 8 15

SUPREME COURT HELD THAT SCHOOL

OFFICIALS DO NOT HAVE TO SATISFY Board of Educ. v. Pico,

THE PROBABLE CAUSE REQUIREMENT DPT. «© © © 6 6 © © © ee « 7

IN ORDER TO SEARCH A STUDENT,

THE STANDARD ESTABLISHED BY THAT Bilbrey v. Brown, 481 F.Supp.

COURT AT LEAST WOULD CONSTITUTIONALLY ~~~ <<. © «ec ep ec eaeee e 37

PROTECT STUDENTS FROM ARBITRARY

SEARCHES BY SCHOOL OFFICIALS. ..... 36 In re C., 102 Cal. Rptr.

682 (Cal. ct. App. 1972) . . . 7 . . . . . 37

CONC LUS ION. . . . . . . * . > >. >. . > * >

Camara v. Municipal Court,

387 U.S. 523 (1 ) .-_ 2-* @« . . . . . S = 4 -10, 20, 2

City of Los Angeles v. Lyons,

U.S. , 103 S.Ct. 1660 (1983)... 25

Doe v. Renfrow, 451 U.S. 1022

(1981) . . . . . . . . . . . . . . o . - . 15

Doe v. State, 540 P.2d 827

(N.M. ct. App. 1975) _—— a =. &§ &§ & €& 8 37

Donovan v. Dewey, 452 U.S. 594 (1981)... 20

» £4 «

Elkins v. United States, 364 U.S.

206 (1960) _———— -— -— -<«§ £§ &© &€ &€ € &€ C&C SC 22, 23-24

- iii -

TABLE OF CITATIONS

CASES CITED Page

Florida v. Royer, U.S. ’

103 S.Ct. 1319 (1983). « «© © © © © © © © © By 20

In re G.C., 121 N.J. Super.

109, 296 A.2d 102 (J & D.R. Ct.

1972). >. a > . _ > >. >. _ > >. > > > >. >. >. > 31

Gallegos v. Colorado, 370 U.S.

49 (1962) . . . 7 . . . . .

.

.

.

.

N

ie. 2)

In re Gault, 387 U.S. 1 (1967). .

Goss v. Lopez, 419 U.S. 565 (1975) . «. « -« 27

.

.

.

.

OV

Haley v. Ohio, 332 U.S. 596 (1948)

Horton v. Goose Creek Indep.

School Dist., 677 F.2d 471

(Sth Cir. 1982). . « . . . . . * . . . . * 37

Ingraham v. Wright, 430 U.S.

651 (1977) . . . . 7 . . . . . . o . . . + 7

Jones v. Latexo Indep. School Dist.,

499 F. Supp. 223 (B.D. Tex. 1980) .... 26-27

Jones v. United States, 357 U.S.

493 (1958). > . > > >. _ . * > > o >. J >. — 10

Kent v. United States, 383 U.S.

ae aur seetseeseeseseeeve6¢¢s 28

- iv -

7

TABLE OF CITATIONS

CASES CITED

In re L.L., 280 N.W.2d 343

(Wis. ct. App. 1979) >. >. >. >. >. . >. . 7.

Lee v. Florida, 392 U.S. 378 (1968) ..

Marshall v. Barlow's, Inc., 436

Michigan v. Clifford, U.S. ;

04 > t. 641 (1984) >. >. . . > >. .* > >

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

People v. Cohen, 57 Misc. 2d 366,

N. . . 06 (1968) . . . . . . .

People v. D., 315 N.E.2d 466

(N.Y. 1974). . . . . . . . . . . . .

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

731 (App. Div. 1971), aff'd, 284

e*® © 2 3 SS. |. eee ae ee eee

People v. Singletary, 333 N.E.2d 369

N.Y. 1075) . . . . 7 . . a . al . . . .

People v. Ward, 233 N.W.2d 180

cn. Ste App. 1975) . . . . . + . .

Piazzola v. Watkins, 442 F.2d 284

t5th Cir. 1971) > >. . >. >. a >. . > >. >.

Picha v. wesedes: 410 F. Supp. 1214

- VYeo=

9, 10,

15, 19

9, 15,

35-36

37

37

37

37

36

27, 35

11, 1

19

TABLE OF CITATIONS

CASES CITED

Schneckloth v. Bustamonte, 412 U.S.

218 (1973) o . >. >. > . . > . > * . .

Smith v. Maryland, 442 U.S. 735

Lubbers, 398 F. Supp.

Mich. 1975) . . . . . . .

Smyth v.

(W.D.

282 A.2d 869

1971) . . . . . . .

State v. Baccino,

(Del. Super. Ct.

State v. F.W.E., 360 So.2d 148

(Fla. Dist. Ct. App. 1978) . — . .

State v. McKinnon, 558 P.2d 781

(Wash. 1977) >. >. > > * >. > . >. . _ >.

State v. Mora, 307 So.2d 317

(La.), vacated and remanded,

423 U.S. 809 (1975), On remand,

330 So.2d 900 (La. 1976) ...-s-s-s

State v. Walker, 528 P.2d 113

(Or. ct. App. 1974) >. >. >. > >. >. . .

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

State in Interest of T.L.O.,

me Weds BEY CUBEEh sc ec ec ee eo ee

Tinker v. Des Moines Indep. Communit

School Dist.,393 U.S. 503 (1969) ..

-vi-

Page

14

36

37

37

36, 37

35

35

24

8, 25, 36

6-7, 8, 32

TABLE OF CITATIONS

CASES CITED

United States v. Knotts,

U.S. , 103 S.Ct. 1081 (1983)

In re W., 29 Cal. App. 3d 777

(Ct. App. 1973) . . . a . . . .

Washington v. Chrisman, 455 U.S. 1

(1982) a. 2 2 2S 2 2 2 2 62 86 € os

West Virginia Bd. of Educ. v.

Barnette, 319 U.S. 624 (1943) .

In re Winship, 397 U.S. 358 (1970)

Wood v. Strickland, 420 U.S. 308. (1975)

STATUTES CITED

29 U.S.C. §651-678 (1983) Se @& @

30 U.S.C. $001 (1977) . « © «© «

Ala. Code §16-1-24 (Supp. 1983)

Cal. Educ.

(West Supp.

Code §48902

1963) we we eo ee @

Conn. Gen.

(West Supp.

Stat. Ann. §10-2339g

1983) . « . . . eS =

Ill. Ann. Stat. Ch. 122,

(Smith-Hurd Supp. 1982) . . a

- vii -

§10-21.

7

14-15

22

22

22

Page

N.J. Stat. Ann. §2A:4-60 & 28 Ff @& Fs @-.2 -@ 8

Neu. Stat. Ann. §2A:4A-40

(West Supp. 1983) *_7e©. + © © &© @© @& © * 8

N.J. Stat. Ann. §18A:6-1 (West 1968) . . 32

(West Supp. 1983) -_— sz - a a a oe 11

Tenn. Code Ann. §§49-6-4209,

4301 (1983) . J . > i > > > > > > > >. > 22

OTHER SOURCES CITED

American Bar Association,

Standards Relating to Schools and

Education (1982) . . . . . . . . . + . . 1 3

1 W. Blackstone, Commentaries .... - 31

Buss, “The Fourth Amendment and

Searches of Students in Public

Schools," 59 Iowa L. Rev. 739 (1974) . . 17, 33, 35

Cotton and Haage, “Students and the

Fourth Amendment: ‘The Torturable

Class,'" 16 U. Calif. D. L. Rev.

769 (31963) ce cecceceveseeneveeeees 35

Reder, “School Officials’ Authority

to Search Students is Augmented by

the In Loco Parentis Doctrine,” 5

Fla. St. L. Rev. 526 (1977) .....-s 35

Schiff, “The Emergence of Student

Rights to Privacy Under the Fourth

Amendment," 34 Baylor L. Rev.

209 (1962) - ~-ceceeeecveve ev eee 35

- viii -

Trosch, Williams, and DeVore,

"Public School Searches and the

Fourth Amendment,” 11 J.L. & Educ.

41 (1982) . . . . . . .

- ix -

Page

35

rcaaamey

INTEREST OF AMICI CURIAE

The American Civil Liberties’ Union is a

nationwide, non-partisan organization of over

250,000 members, dedicated to preserving and

protecting the liberties guaranteed in the

Constitution. The American Civil Liberties

Union of New Jersey is one of its state

affiliates, which previously filed a brief

amicus curiae in this case with the New

Jersey Supreme Court.

The ACLU and its affiliates have devoted

particular attention in recent years to the

rights of groups who, because of their

exclusion from the political process for

various reasc 1s, are in particular need of the

anti-majoritarian protections of the Bill of

Rights. Our experience working with students

has convinced us that their Fourth Amendment

rights are especially important, in order to

protect them from harms of unreasonable,

arbitrary, or intrusive searches, and, as the

New Jersey Supreme Court observed in the words

of Justice Jackson, to “educat[{e] the young

for citizenship...[and to ensure that our

young are not taught) to discount important

principles of our government as platitudes."

We therefore file this brief amici curiae,

1

with the consent of the parties, to demon-

strate that the understandable and valid

concerns for school safety and the preserva-

tion of an effective learning envircnment

that petitioner and its amici raise do not

come close to justifying the wholesale removal

of effective Fourth Amendment rights at the

schoolhouse gate.

1. Letters of consent are being filed with the

Clerk of this Court.

-2-«-

SUMMARY OF ARGUMENT

1. This Court has consistently held that

juveniles, as well as adults, are “persons”

whose rights are to be protected from govern-

mental intrusion under the United States

Constitution. A juvenile does not shed these

constitutional rights, including the right to

be free from unreasonable searches under the

Fourth Amendment by governmental agents,

such as school officials, at the schoolhouse

gate.

2. Where a juvenile manifests an expecta-

tion of privacy in an item such as her pocket-

book, the juvenile does not abandon her right

to privacy upon entering school. Since

for every search of a student that uncovers

evidence of wrongdoing, a plethora of innocent

impressionable juveniles will have had their

expectation of privacy shattered and their

right to be secure from unreasonable searches

violated, it is essential that juveniles’

Fourth Amendment rights be protected in and

out of school.

3. The exclusionary rule is no less vital

where the search is conducted in school

than where it is conducted in similar non-law

enforcement administrative contexts. Applying

the exclusionary rule would inhibit collusion

between school officials and the police, deter

arbitrary and unchecked searches of students

by school officials, and prcvide a meaningful

mechanism for discouraging unwarranted

invasions of the right of juveniles to be

secure from unreasonable searches and seizure.

4. The doctrine of in loco parentis,

which was created as a benevolent means to

protect juveniles, cannot be applied to deny

juveniles essential constitutional rights.

In addition, since school officials more

closely represent the interests of the State

than the parents (or juveniles), they should

be held to a probable cause standard before

they are allowed to search the juveniles.

5. The decision by the New Jersey Supreme

Court, although not requiring school officials

to satisfy the probable cause requirement

before searching a stucent, at least attempts

to balance the need of school officials to

conduct reasonable searches of students in

school with the right of students to be free

from unreasonable searches and seizures. The

New Jersey Supreme Court's “reasonable grounds"

Standard at least would prevent arbitrary and

capricious searches by school officials

and provide some protection for students to be

free from unreasonable searches and seizures.

ARGUMENT

I. JUVENILES DO NOT SHED THEIR FOURTH

AMENDMENT RIGHT TC BE FREE FROM

UNREASONABLE SEARCHES AND SEIZURES AT

THE SCHOOLHOUSE GATE.

Although it has not been and could not

be seriously argued that juveniles, as well

as adults, are not “persons” who are pro-

tected from unreasonable searches by govern-

mental officials outside of the school

setting, the Petitioner in this matter

essentially is arguing that juveniles lose

this constitutional protection upon entering

school. However, this Court consistently has

held that students do not shed their con-

stitutional rights at the schoolhouse gate.

See, e.g., Goss v. Lopez, 419 U.S. 565 (1975)

(Pourteenth Amendment due process clause

applicable to student suspensions because a

suspension constitutes a deprivation of the

student's property rights); Tinker v. Des

Moines Indep. Community School Dist., 393

U.S. 503 (1969)(First Amendment rights are

applicable to students because students are

persons under the Constitution); West Vir-

ginia Bd. of Educ. v. Barnette, 319 U.S. 624

(1943) (since the Constitution protects all

citizens, adults ana children alike, students

cannot be compelled to pledge allegience to

the flag) .*

The Fourth Amendment protects "persons,"

including adults and juveniles who are in

school or out of school, from unreasonable

searches by governmental officials. See

Washington v. Chrisman, 455 U.S. 1 (1982)

2. Underlying these decisions is the holding

that the conduct of school officials, as

"governmental agents," involves state action

and the students therefore must be afforded

the protections of the United States Constitu-

tion. See also Board of Educ. v. Pico,

457 U.S. 853 (1982); Ingraham v. Wright, 430

U.S. 651 (1977); Wood v. Strickland, 420 U.S.

308 (1975).

(university student protected by the Fourth

Amendment where his property was searched by

a school official who was employed as a

security guard).° As this Court emphat-

ically declared in the landmark decision of

Tinker v. Des Moines Indep. Community School

Dist., 393 U.S. at 511:

Students in school as well as out

of school are “persons” under our

Constitution. They are posssessed

of fundamental rights which the

State must respect.

3. See also N.J. Stat. Ann. 2A:4A-40 (West

Supp. 1983), in which the New Jersey Legis-

lature specifically mandated that this

protection be applied fully to juveniles.

This Statute, which provides in pertinent

part that “(a)ll defenses available to an

adult charged with a crime, offense, or

violation shall be available to a juvenile

charged with commiting an act of delin-

quency," superseded N.J. Stat. Ann. 2A:4-60,

which contained identical language and was

cited in State in Interest of T.L.O.,

94 N.J. 331, 342n-5 (1983). Based upon this

Statute and for the reasons advanced by the

Respondent, it is respectfully submitted that

this Court improvidently granted certiorari

and is precluded from deciding in this case

whether juveniles have less Fourth Amendment

rights in the school setting than adults.

Under the Fourth Amendment, any warrant-

less search of a person or his/her property

is prima facie invalid and gains validity

only if it comes within one of the specific

exceptions that have been created by this

Court. See Schneckloth v. Bustamonte, 412

U.S. 218 (1973). The only such exception to

the Fourth Amendment that deals, as here,

with a search by a non-police governmental

official, involves administrative searches by

officials who are not concerned with law

enforcement per se, but rather are concerned

with virtually the same type of administrative

Supervision and inspection as public school

officials. See, e.g., Marshall v. Barlow's,

Inc., 436 U.S. 307 (1978) (inspectors from

the Occupational Safety and Health Administra-

tion); Michigan v. Tyler, 436 U.S. 499

(1978) (firefighters); Camara v. Municipal

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

tors); Jones v. United States, 357 U.S. 493

(1958)(federal alcohol agents).

As Justice White explained for the

majority in Marshall v. Barlow's, Inc., 436

U.S. at 312-313,

the Fourth Amendment prohibition against

unreasonable searches protects against

warrantless intrusions during civil as

well as criminal investigations. Ibid.

The reason is found in the “basic purpose

of this Amendment. .. [which] is to

safeguard the privacy and security of

individuals against arbitrary invasions by

governmental officials." Camara, supra, at

528, 18 L Ed 2d 930, 87 S Ct 1727. If the

government intrudes on a person's property,

the privacy interest suffers whether the

government's motivation is to investigate

violations of criminal laws or breaches of

other statutory or regulatory sfandards.

Since "(t)he authority to make warrantless

searches devolves almost unbridled discretion

upon executive and administrative officers,

particularly those in the field, as to when

= 10 -

to search end whom to search," id. at 323,

this Court reguired probable cause for the

search either by a showing of specific

evidence of an existing violation or a

showing that reasonable legislative or

administrative standérds have been satisfied

with regard to the particular property. Id.

at 320.

As with the inspectors in Marshall v.

Barlow's, Inc., as well as the other adminis-

trative search cases, public school officials

are charged with the responsibility for

maintaining the safety of property and

people, in this case schools and the students

who attend them. Indeed, at least in New

Jersey, school officials are required by

Statute to maintain order in the schools, see

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

much the same way as the inspectors in

-ll-

Marshall were required by the Occupational

Safety and Health Act (OSHA), 29 U.S.C.

§651-678 (1983), to maintain safety and

health in the workplace.

In addition, the repercussions that may

be suffered by a juvenile are no less severe

than those that may be suffered by an employ-

er whose business is inspected under OSHA.

Even putting aside the plethora of innocent

impressionable students who would be trauma--

tized by being searched,“ a student who is

searched faces the loss of significant

property and liberty rights, such as expul-

sion or suspension from school, decreased

opportunities for acceptance into an institu-

tion of higher learning, and increased

difficulty in obtaining many jobs. The

4. The potentially lifelong trauma that can

result from such searches of juveniles is

discussed at length in Point II, infra.

@ 12 «

student also faces, as here, criminal sanc-

tions as a result of such a search.”

5. As explained by the American Bar Associa-

tion's Institute of Judicial Administration

in ABA Standards Relating to Schools and

Education T (1982):

The school is also an important part of the

system of juvenile justice. The law in the

United States compels children to attend

school. A. Steinhilber and C. Sokolowski,

State Laws on Compulsory Attendance (1966).

In school the shila fs Subjected to an

extensive body of rules, the violation

of which results in various forms of

punishment (or “discipline"). Not infre-

quently a sanction entails exclusion from

school--a sentencing to the life of the

streets. From there, a child may pursue a

course of conduct that will bring him or

her within the jurisdiction of the juvenile

court. There is a close correlation

between children in trouble in school and

children in trouble with the law.

The ABA therefore recommended that if “the

sanction that might result from the suspected

misconduct includes expulsion,long-term

suspension, or transfer to a school used or

designated as a school for problem students

of any kind, the search should be subject to

all of the requirements of a police search."

Id. at p. 31, §8.7B. In addition, “(a)ny

evidence obtained directly or indirectly as a

result of a search in violation of these

standards should be inadmissible (without the

student's express consent) in any proceeding

that might result in either criminal or

disciplinary sanctions against the student.”

Id., §8.8.

» $3 «

There is simply no basis in the law or

logic to deny a juvenile these Fourth Amend-

ment safeguards while at the same time

subjecting the juvenile to the loss of these

property rights and criminal punishment.

Thus, as in the administrative search cases,

school officials should be required to have

probable cause before searching a student.

II. JUVENILES DO NOT ABANDON

THEIR EXPECTATION OF PRIVACY

BY ATTENDING SCHOOL.

Where, as here, a juvenile (or an adult)

manifests an expectation of privacy in an

item such as her pocketbook, which society

generally recognizes as a reasonable expecta-

tion, the juvenile’'s right to maintain this

privacy should not be affected by being in or

out of school. See Smith v. Maryland, 442

U.S. 735, 740-741 (1979); United States v.

Renfrow, 451 U.S. 1022 (1981)(Brennan, J.,

Knotts, U.S._ ci , 103 S.Ct.

© 14 «

dissenting from the denial of a petition for a

writ of certiorari). Cf. Arkansas v. Sanders,

44° U.S. 753 (1979). In the similar situation

involving a non-police governmental official,

a firefighter whose purpose was to search a

building for evidence of arson, this Court in

Michigan v. Tyler, 436 U.S. 499, 506 (1978),

explained that

there is no diminution in a person's

reasonable expectation of privacy nor in

the protection of the Fourth Amendment

simply because the official conducting

the search wears the uniform of a

firefighter rather than a policeman, or

because his purpose is to ascertain the

cause of a fire rather than to look for

evidence of a crime, or because the fire

might have been started deliberately.

Searches for administrative purposes,

like searches for evidence of crime, are

encompassed by the Fourta Amendment.

Accord Michigan v. Clifford, _ U.S.

, 104 S. Ct. 641 (19864).

@ 1§ «

A student's reasonable expectation of

privacy is no less diminished because the

official who is conducting the search is

wearing the “uniform” of an educator and is

investigating a suspected problem in the

school. This expectation of privacy,

especially in a repository for personal

items, such as the student's own pocketbook in

the present case, is not left outside when the

student enters school .®

The right of juveniles in and out of

school to such an expectation of privacy from

governmental intrusion must remain paramount

when dealing with impressionable youths who

are formulating a sense of their own being,

6. Curiously, it is unclear what, if anything,

the school official who searched T.L.O.

suspected was in her pocketbook. Even if he

suspected that she had cigarettes, possession

of cigarettes on school grounds was not a

violation of school rules. In fact, the

school had designated areas for the students

to smoke cigarettes.

° 16 «

as well as respect for societal values.

Por every search of a student thet uncovers

evidence of wrongdoing, countless innocent

students will have had their expectation of

privacy shattered and their right to be

secure from such searches violated. As

William Buss succinctly wrote in “The Fourth

Amendment and Searches of Students in Public

Schools,” 59 Iowa L. Rev. 739, 792 (1974):

There is a very good chance that an

erosion of privacy and the destruction of

human values that go with privacy is a

greater long-range danger than the

behavior that would be detected and

deterred by student searches. It would be

highly desirable if the citizens cf the

United States who are now in school

learn to value privacy, learn by the

school's example that the society respects

it, and learn that the courts will protect

it from invasion by governmental searches

that violate fourth amendment principles.

Thus, the constitutional right of juveniles

to be free from unreasonable searches and

seizures when they enter school should be

-17-

jealously protected by this Court. Juveniles’

rights cannot be violated due to the fear of

the use of drugs either outside or inside

school or simply as an expediency to maintain

school discipline.’ Constitutional rights

cannot be shed so easily. Indeed, there can

be no question that the Constitution “protects

the citizen against the State itself and all

of its creatures -- Boards of Education not

excepted." West Virginia Bd. of Educ. v.

Barnette, 319 U.S. 624, 637 (1943).

III. THE NECESSITY FOR THE EXCLUSIONARY

RULE IS NO LESS VITAL IN THE EDUCA-

TIONAL SYSTEM THAN IN SIMILAR NON-LAW

ENFORCEMENT CONTEXTS.

The State appropriately acknowledges

7. AS Justice Brennan aptly pointed out in

Florida v. Royer, U.S. ° » 103

S.ct. T3719, EE T1383) (concurring Opinion),

"(a)lthough I recognize that the traffic in

illicit drugs is a matter of pressing national

concern, that cannot excuse this Court from

exercising its unflagging duty to strike down

official activity that exceeds the confines

of the Constitution."

« 16 -

that public school officials are governmental

agents and that the Fourth Amendment applies

to the search of students but argues that the

exclusionary rule should not be applied to

the school setting. The exclusionary rule is

no less vital for the enforcement of the

Fourth Amendment rights of juveniles in

school (and out of school) than for adults

who are searched by similar non-law enforce-

ment officials to whom this Court has applied

the exclusionary rule. See, e.g., Michigan

v. Clifford, U.S. » 104 S.Ct. 641

(1984)(fire department investigators); Michigan

v. Tyler, 436 U.S. 499 (1978) (firefighting

officials); Marshall v. Barlow's, Inc., 436

U.S. 307 (1978) (inspectors for the Occupa-

8

tional Safety and Health Administration).

See also Donovan v. Dewey, 452 U.S. 594, 604

(1981)(the requirements of the Fourth Amend-

ment are satisfied regarding the search of a

mine where “rather than leaving the frequency

and purpose of inspections to the unchecked

discretion of Government officers, the Act

[the Mine Safety and Health Act, 30 U.S.C.

§801-962 (West Supp. 1983)] establishes a

predictable and guided federal regulatory

presence."). As Justice White explained for

the majority in Camara v. Municipal Court, 387

U.S. 523, 528 (1967), “(t)he basic purpose of

this Amendment, as recognized in countless

B. The exclusionary rule also recently has

been applied where, as in the case of a

student who is called into the office of a

school administrator, a suspect who was

detained did not believe he was free to leave

the room in which the search was conducted.

Florida v. Royer, U.S. » 03 S.Ct.

T3TS (1983).

= 20 -

decisions of this Court, is to safeguard the

privacy and security of individuals against

arbitrary invasions by governmental officials,"

not only the police.

In addition, the exclusionary rule has

no less a deterrent effect regarding such

arbitrary invasions in the school setting

than it does in other administrative settings.

Por example, since evidence seized during

searches by school and other administrative

officials often is turned over to the police

for use in criminal proceedings, applying the

exclusionary rule also would unquestionably

inhibit collusion between school officials

and the police.”

9. As explained in Camara v. Municipal Court,

tions for maintaining order are enforceable

by criminal sanctions, the Fourth Amendment's

protections are critical:

(Footnote 9 continued on next page)...

- 21-

In this regard, this situation is

virtually indistinguishable from the “silver

platter doctrine," which this Court emphatic-

ally rejected in Elkins v. United States, 364

U.S. 206 (1960) (evidence obtained by State

...(Pootnote 9 continued from preceding

page)

It is surely anomalous to say that the

individual and his private property are

fully protected by the Fourth Amendment

only when the individual is suspected of

criminal behavior.... Like most regulatory

laws, fire, health and housing codes are

enforced by criminal processes. In some

cities, discovery of a violation by the

inspector leads to a criminal complaint.

If the Fourth Amendment is to be anything

other than a hollow unenforceable right for

juveniles, the exclusionary rule also must be

applied to safeguard juveniles who otherwise

would wrongfully be subjected to criminal

sanctions as a result of searches by school

officials. This is especially true in

States that require school officials to

report evidence of criminal activity to the

police. See, e.g., Ala. Code §16-1-24 (Supp.

1983); Cal. Educ. Code §48902 (West Supp.

1983); Conn. Gen. Stat. Ann. § 10-233g (West

Supp. 1983); Ill. Ann. Stat. ch. 122 §10-21.7

(Smith-Hurd Supp. 1982); Tenn. Code Ann. §§

49-6-4209, 4301 (1983).

- 22 «-

officials during an illegal search cannot be

used by federal officials). As this Court

held in Elkins, although cooperation between

various governmental entities is to be

encouraged, where one of those entities is

not entitled to conduct a search in order to

obtain evidence, it can neither directly or

indirectly encourage another entity to

obtain such evidence nor accept such evidence

from the other governmental entity:

Free and open cooperation be

and federal law enforcement odtiasne io.

- commended and encouraged. 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 of-

ficers in the disregard of constitu-

tionally protected freedom. If, on the

other hand, it is understood that the fruit

of an unlawful search by state agents will

- 23 -

be inadmissible in a federal trial, there

can be no inducement to subterfuge and

evasion with respect to federal-state

cooperation in criminal investigation.

Instead, forthright cooperation under

constitutional standards will be promoted

and fostered.

Id. at 221-222.'°

10. Not only would the exclusionary rule

deter any such collusion between school

officials and the police, but judicial

integrity also would be enhanced because the

courts would not be placed in the position of

admitting evidence in a criminal proceeding

that, if seized by the police rather than the

school official, would have been inadmissible.

See Stone v. Powell, 428 U.S. 465, 485-486

(1976); Lee v. Florida, 392 U.S. 378, 385-386

(1968). Indeed, research has revealed no

case decided by this Court in which evidence

that was improperly seized by a non-police

governmental official was permitted to be

used in a criminal proceeding by the prosecu-

tion.

@ 24 -

Similarly, school officials must be

deterred from arbitrarily searching students

and then turning over any evidence of wrong-

doing that they are lucky enough to find to

the police on a “Silver platter." Students’

constitutional rights cannot be forfeited

simply because of the whim of or a rash act

by a school official, especially where the

school official is under a duty imposed by a

statute, |! board of education directive, or

otherwise, to turn evidence over to the

police. Since it is clear that no other

mechanism for enforcing Fourth Amendment

rights in the school context is available, '?

11. See Statutes cited in footnote 9, supra.

12. Damage awards generally have been barred

by the good faith defense as the New Jersey

Supreme Court observed, State in Interest of

T.L.O., 94 N.J. 331, 349 (1983), and, in any

event, are hardly preferrable to suppression

from the school officials’ point of view. In

addition, injunctive actions effectively have

been barred by cate of Los Angee v. Lyons,

U.S. , 1 . . 9

= 28 «

only by applying the exclusionary rule to

such non-police administrative searches

can these juveniles be protected from such

unwarranted invasions of their basic Fourth

Amendment right to be free from unreasonable

searches and seizures.

IV. THE BENEVOLENT CONCEPT OF IN LOCO

PARENTIS CANNOT BE APPLIED TO

VENILES THE ESSENTIAL PRO-

TECTIONS OF THE FOURTH AMENDMENT.

A few early lower court decisions

improperly excluded students from the protec-

tion of the Fourth Amendment based upon

the erroneous assumption that the doctrine of

in loco parentis justified this exclusion.

However, “(w)hile the doctrine of in loco

parentis places the school teacher or employee

in the role of a parent for some purposes,

that doctrine cannot transcend constitutional

rights." Jones v. Latexo Indep. School

= 26 <-

Dist., 499 F. Supp. 223, 229 (E.D. Tex.

1980). Accord Picha v. Wielgos, 410 F. Supp.

1214 (N.D. Ill. 1976).

As this Court noted in In re Gault, 387

U.S. 1, 16 (1967) (due process rights cannot

be denied on the basis of in loco parentis),

in the past, in loco parentis and the phrase

parens patriae “proved to be a great help to

those who sought to rationalize the exclusion

of juveniles from the constitutional scheme;

but its meaning is murky and its historic

credentials are of dubious relevance.*!?

13. In In re Gault, this Court held that

because a juvenile delinquency proceeding may

lead to incarceration of the juvenile (as a

search and seizure may lead to the juvenile

proceeding), a juvenile has the constitutional

right to due process of law and the privilege

against self-incrimination. With regard

to a juvenile's Fifth Amendment rights, this

Court explained: “It would indeed be surpris-

ing if the privilege against self-incrimina-

tion were available to hardened criminals,

(Footnote 13 continued on next page)...

- 27 «

In Kent v. United States, 383 U.S. 541

(1966), this Court held that juveniles could

not be denie@ their constitutional rights in

our juvenile courts under the concept of

parens patriae, regardless of how benevolent

the purpose may be. The role of these

juvenile courts is virtually identical to

(Footnote 13 continued from

preceding page)

t to children." 387 U.S. at 47. It

ae ak aa similarly surprising if a onenene S

or out of school could refuse to —s 04

nate herself verbally but could not re © Bhne

reveal physically incriminating evi —

where probable cause to search does

exist.

is Court has recognized that juveniles

=: entitled to other ee ans

rights. See, e.g-, In re Winship, oth

U.S. 358 (1970) (a juvenile cannot be gion

ed in a criminal prosecution, except =

proof beyond a SO eT ene cranny Gee

i States, 383 U.S&.

oe juvenile must meet the “oe

of due process and Sake tt eeesa) Cocnteanten

ado 370 U.S.

yee. a juvenile violated “1 —

process rights); Haley v. Ohio, 332 U. ME

(1948) (confession obtained from ated

violated the juvenile's Fourteenth Amen

rights).

- 29 -

A

the role of our educatic.ial System insofar as

both are responsible for molding the attitudes

of and protecting our children. In addition,

as in our schools today, although the juvenile

courts then did not have the resources to

cope with all the demands that were placed

upon them, it was explained that the rights

of the juveniles could not be compromised:

While there can be no doubt of the Original

laudable purpose of juvenile courts,

Studies and critiques in recent years raise

serious questions as to whether actual

performance measures well enough against

theoretical purpose to make tolerable the

immunity of the process from the reach of

constitutional guaranties applicable to

adults. There is much evidence that some

juvenile courts. . . lack the personnel,

facilities and techniques to pertorm

adequately as representatives of the State

in a parens patriae Capacity, at least with

respect to children charged with law

violation. There is evidence, in fact,

that there may be grounds for concern that

the child receives the worst of both

worlds: that he gets neither the protec-

tions accorded to adults nor the solicitous

care and regenerative treatment pos-

tulated for children.

Id. at 555-556 (footnotes omitted).

- 29 -

In addition, the application of the in

loco parentis @octrine to our present educa-~

tional system ignores reality for two reasons.

First, under this doctrine, public school

officials do not acquire the same rights as

parents have vis-a-vis their children.

Second, public school officials act in

concert with police officials by reporting

findings of suspected criminal wrongdoing by

juveniles in schocl and, as such, represent

the interests of the police and State more

than the parents or juveniles.

First, there can be no Gispute that

school officials do not have the same rights

as parents with regard to juveniles.

Unaer the concept of in loco parentis, a

parent “may. . . delegate part of his paren-

tal authority during his life to the tutor or

schoolmaster of his child; who is then in

loco parentis and has such a portion of the

- 30 -

power of the parent committed to his charge."

1 W. Blackstone, Commentaries 453 (emphasis

addea)./4 It cannot seriously be argued

-that parents have chosen to delegate to

school officials all of their parental

powers. In any event, the parents who would

delegate the power to search their child and

turn over the evidence to the police would

certainly be the exception, not the rule,

It also is well settled that where a

juvenile's constitutional rights are involved,

a school official, as a governmental officer,

does not have the same right to discipline

the juvenile or otherwise impinge upon the

juvenile's rights ss the juvenile's parents.

Thus, for example, parents may discipline

atie’ ;

heir child for a peaceful, nondisruptive

expression of the child's political beliefs

’

14. Quoted in In re G.C., 121 N.J Super

108, 116, 296

1972). , A.2d 102, 106 (J. & D.R. Ct.

- 31 ©

and may dictate whether or not the child

prays or salutes the flag, whereas a public

school official cannot. See, e.g., Tinker v.

Des Moines Indep. Community School bist., 393

U.S. 503 (1969); West Virginia Bd. of Fduc.

v. Barnette, 319 U.S. 624 (1943). Similarly,

in New Jersey, although parents may physi-

cally punish their child, a public school

official is prohibited from inflicting

corporal punishment on a student. See N.J.

Second, there can be no guestion that as

in the present case public school officials

routinely turn over to law enforcement

authorities not only evidence of suspected

wrongdoing by students, but also the students

who are suspected of having committed the

wrongful act. Indeed, several States require

school officials to report evidence of

-32-

criminal activity to the police. !? Parents,

however, do not have any such responsibility

to and generally do not report wrongdoing ty

their children, even where the parents

discover marijuana in their child's posses-

Sion. Thus, although a cooperative effort by

school officials and the police may be

perceived as necessary to maintain discipline

in the schools, it nevertheless firmly

negates the fiction of in loco parentis

and solidifies the role of public school

officials as arms of the State. |®

15. See Statutes cited in footnote 9, Supra.

16. The fallacy of applying in loco parentis

to the search of a juvenile by a public

school official has been summarized in Buss,

"The Fourth Amendment and Searches of Students

in Public Schools," 59 Iowa L. Rev. 739, 768

(1974), as follows:

Insofar as in loco parentis sums up the

peculiar school-student relationship

and the school's related interest in

searching students, it focuses almost

entirely on protection of the other

Students and on coercive power over

(Footnote 16 continued on next page)...

- 33-

Accordingly, in the context of searches

and seizures, there is no reason to treat

public school officials any different than

other non-police governmental officials who

have been entrusted with the safety and

well-being of our society. School officials

..-(Footnote 16 continued from

preceding page)

the searched student. One of the things

that makes in loco parentis such an

erroneous phrase in this context is

precisely the absence of a genuinely

parental protective concern for the

student who is threatened with the

school's power. It is presumably a

characteristic of the use of parental

force against a child that the force is

tempered by understanding and love based

on a close, intimate, and permanent

child-parent relationship. What so many

of the courts persist in talking about as

a parental relationship between school

and student is really a law enforce-

ment relationship 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.

- 34 <

wi a Sane ae

should be held to the same stancards as these

other governmental officials and juveniles

should be free from searches by any of these

officials unless there is probable cause for

the search, whether the search is conducted

17

in school or out of school. Picha v.

Wielgos, 410 F. Supp. 1214 (N.D. Ill. 1976);

State v. Mora, 307 So. 2d 317 (La.), vacated

and remanded, 423 U.S. 809 (1975), on remand,

330 So. 2d 900 (La. 1976). See State v.

Walker, 528 P.2d 113 (Or. Ct. App. 1974);

People v. Cohen, 57 Misc. 2d 365, 292

17. The use of a standard lower than probable

cause for the search of a juvenile in school

has been severely criticized by commenta-

tors. See, e.g., Buss, "The -Fourth Amendment

and Searches of Students in Public Schools,”

59 Iowa L. Revi 735 (i1574);-Curiton and Haage,

"Students and the Fourth Amendment: ‘The

Torturable Class,'" 16 U. Calif. D.L. Rev.

709 (1983); Reder, “School Officials’ Autho-

rity to Search Students is Augmented by the

In Loco Parentis Doctrine," 5 Fla. St. L.

Rev. 526 (1977); Schiff, "The Emergence of

Student Rights to Privacy Under the Fourth

Amendment," 34 Baylor L. Rev. 209 (1982);

Trosch, Williams and DeVore, "Public School

Searches and the Fourth Amendment,” 11

J.L. & Educ. 41 (1982).

= 35 «-

N.Y.S.2d 706 (Dist. Ct. 1968); State v.

McKinnon, 558 P.2d 781 (Wash. 1977)(Rosellini,

J., dissenting). See also Smyth v. Luvbers,

398 F. Supp. 777 (W.D. Mich 1975); Piazzola

v. Watkins, 442 F.2d 284 (5th Cir. 1971).

V. ALTHOUGH THE NEW JERSEY SUPREME COURT

HELD THAT SCHOOL OFFICIALS DO NOT

HAVE TO SATISFY THE PROBABLE CAUSE

REQUIREMENT IN ORDER TO SEARCH A

STUDENT, THRE STANDARD ESTABLISHED BY

THAT COURT AT LEAST WOULD CONSTITU-

TIONALLY PROTECT STUDENTS FROM

ARBITRARY SEARCHES BY SCHOOL OFFICIALS

The New Jersey Supreme Court held that

a school official, as a governmental agent,

has the right to conduct a reasonable

search for evidence when the school official

"has reasonable grounds to believe that a

student possesses evidence of illegal

activity or activity that would interfere

with school discipline and order." State in

Interest of T.L.O., 94 N.J. 331, 346 (1983).

-36-

This decision is supported by a significant

number of other lower court cases, which

have applied the same or a similar standard. '8

The standard set out in the New Jersey

Supreme Court's opinion, which is a lower

Standard than this Court's decisions indicate

is required, attempts to balance the need of

School officials to conduct reasonable

searches of students in school with the right

of students to be free from unreasonable

18. See, €.g-, Horton v. Goose Creek Indep.

School Dist., 677 F.2d 471 (5th Cir. 1982);

Bilbrey v. Brown, 481 F. Supp. 26 (CD. Or.

1979); In re W., 29 Cal. App. 3d 777 (Ct

App. 1973); In re C., 102 Cal. Rptr. 682 (Ct.

App. 1972); State v. Baccino, 282 A.2d 869

gags a gh Ct. 1971); State v. F.W.E., 360

oO. (Fla. Dist. Ct. App. 1978); People

Vv. Ward, 233 N.W.2d 180 (Mich. Ct. App.

1975); Doe v. State, 540 P.2a 827 (N.M. Ct.

App- 1975); People v. Singletary, 333 N.E.2d

369 (N.Y. 1975); People v. D., 315 N.E.2d 466

(N.Y. 1974); People v. Jackson, 319 N.Y.S.2d

731 (App. Div. 1971), aff'd, 284 N.E.24 153

(N.Y. 1972); State v. McKinnon, 558 P.2d 781

(Wash. 1977); In re L.L., 280 N.W.2d 343

(Wis. Ct. App. 1979).

- 37 -

~ searches and seizures. The application of

this standard also at least would prevent

arbitrary and capricious searches by school

officials and provide school officials with a

common sense guideline for searching a

student.

Certainly, school officials do not

need, and undoubtedly would not want, the

unbridled discretion to search students in

any manner, at any time, and for any reason.

Not only would it be the rare school adminis-

trator who would want to search a student

without “reasonable grounds" to believe that

the student possesses evidence of wrongdoing,

but the United States Constitution mandates

that. at least such minimal protection be

afforded to juveniles.

-38-

CONCLUSION

For the foregoing reasons, it is respect-

fully requested that this Court apply the

probable cause standard to the search and

seizure of a juvenile by a school official or,

in the alternative, affirm the decision of the

New Jersey Supreme Court.

Respectfully submitted,

BARRY S. GOODMAN

CRUMMY, DEL DEO, DOLAN & PURCELL

A Professional Corporation

Attorneys for Amici Curiae

Gateway I

Newark, New Jersey 07102

Dated: February 16, 1984

Of Counsel:

Charles S. Sims, Esq.

Deborah Karpatkin, Esq.

e 9% «