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

- Supreme Court. US

FILED

r 81 .

S1 S

CLERK

In the Supreme Court of the Unite

OCTOBER TERM, 1984

STATE OF NEW JERSEY, PETITIONER

*.

T. L. O.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW JERSEY

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING REVERSAL

Rex E. Lee

Solicitor General

ANDREW L. FREY

Deputy Solicitor General

KATHRYN A. OBERLY

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

The ted States will address the question put to the

parties in the Court’s order of July 5, 1984:

Whether the assistant vice principal violated the

Fourth Amendment in opening respondent’s purse in the

facts and circumstances of this case.

(1)

TABLE OF CONTENTS

Page

Interest of the United States 1

ä ceitacaenneeegevpnemnesumrenrnasoecssoseeeness 2

r EL 4

Argument:

The assistant vice principal’s search of respond-

ent’s purse did not violate the Fourth Amendment.. 9

I. The level of suspicion required for particular

categories of searches depends upon the con-

text in which the search is undertaken .............. 9

II. A school official having reasonable suspicion

that a student has violated a schvo’ ule may

conduct a warrantless search of « student’s

D . 15

III. The assistant vice principal's search of respond-

ent's purse in this case was justified by reason-

e ernscunenpnoconens 26

r èê —O— 333 29

TABLE OF AUTHORITIES

Cases:

Abel v. United States, 362 U.S. 2177 14

Almeida-Sanchez v. United States, 413 U.S. 266.. 11

— 9, 10

Boyd v. United States, 116 U.S. 61 18

CE EE 13

Cady v. Dombrowski, 413 U.S. 433 9, 12, 13, 21, 22

Camara V. Municipal Court, 387 U.S. 523..9, 10, 11, 12, 14

Carroll v. United States, 267 U.S. 132 9,18

Chambers v. Maroney, 399 U.S. 42 14

Chimel v. California, 395 U.S. 752 14

Colonnade Catering Corp. v. United — 397

e ⅛è⅛1eũi ee 12

IV

Cases—Continued : Page

Cooper v. California, 386 U.S. 588 9, 10

Delaware v. Prouse, 440 U.S. 648 _........................ 9,13

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

1 ˙ —————— 19, 20

Donovan v. Dewey, 452 U.S. 5994ͤ»õ 44 9, 12, 21

Dunaway v. New York, 442 U.S. 200 ................... 13

Ginsberg v. New York, 390 U.S. 629 99 15

Goss v. Lopez, 419 U.S. 56 6, 16, 22, 24, 27

Harris v. United States, 390 U.S. 234 _.................. 12, 14

Hudson v. Palmer, No. 82-1630 (July 3, 1984) 21

Illinois v. Lafayette, No. 81-1859 (June 20,

— iii randipataniitsinbilnsiameaatinn 12

Ingraham v. Wright, 430 U.S. 651 ....... 6, 8, 13, 16, 19, 25

Johnson v. United States, 333 U.S. 10 15

Katz v. United States, 389 U.S. 37 21

Latta v. Fitzharris, 521 F.2d 246, cert. denied,

,,... een 24, 25

Marshall v. Barlow’s, Inc., 486 U.S. 307 12

Mercer v. State, 450 S.W.2d 715 .............................. 20

Michigan v. Clifford, No. 82-357 (Jan. 11, 1984)... 12, 13

Michigan v. Long, No. 82-256 (July 6, 1983) 10

Michigan v. Summers, 452 U.S. 692 9, 10-11, 13

Michigan v. Tyler, 436 U.S. 4g9 9999s 12

Morrissey v. Brewer, 408 U.S. 47111 24

Pennsylvania v. Mimms, 434 U.S. 10h 9,10

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

731, aff'd, 30 N.Y.2d 734, 284 N.E.2d 153, 333

RC . a 20

Prince v. Massachusetts, 321 U.S. 158 15

Schall v. Martin, No. 82-1248 (June 4, 1984) 16, 20

See v. City of Seattle, 387 U.S. 54444 11

South Dakota v. Opperman, 428 U.S. 364. 5, 10, 12, 13,

14, 19, 21

State v. Smith, 113 N.J. Super. 120, 273 A.2d 68.. 29

Rn ly I i ee 5,10

Tinker v. Des Moines Independent Community

e 5, 15

United States v. Biswell, 406 U.S. 311 6, 12, 17

United States v. Bradley, 571 F.2d 7877 24

United States v. Brignoni-Ponce, 422 U.S. 873. 8, 11, 13,

26

Cases—Continued : Page

United States v. Holland, 510 F.2d 453, cert. de-

, ea leeeliaes 28

United States v. Martinez-Fuerte, 428 U.S. 543..10, 11, 13

United States v. Place, No. 81-1617 (June 20,

1983)

United States v. Ramsey, 431 U.S. 606..6, 10, 11, 17, 18, 21

United States v. Ross, 456 U.S. 7989 9, 14, 29

United States v. Scott, 678 F.2d 32mſ2m—mꝙ˖ mmm 24, 25

United States v. Thomas, 729 F.2d 120 24, 25

United States v. United States District Court,

RIESE SS ak Se 10

Vale v. Louisiana, 399 U.S. 30 0 14

United States v. Villamonte-Marquez, No. 81-1350

I 5, 6, 9, 10, 12, 17, 18

W., In re, 29 Cal. App. 3d 777, 105 Cal. Rptr. 775.. 20

Whalen v. Roe, 429 U.S. 589 _.............00000000- wo. 13

Warden v. Hayden, 387 U.S. 2944 8, 28

Wyman v. James, 400 U.S. 309 5, 9, 10, 12, 19, 24

Constitution and statutes:

U.S. Const. :

I ia ee ee passim

D ! 6, 16

Dep’t of Education Organization Act, 20 U.S.C.

hae I RR es, SCE atl 1

Education Amendments of 1978, 20 U.S.C. 2701

r IER A ce 1

N.J. Stat. Ann. § 24:21-19(a)(1) (West Supp.

EE 3

N. J. Stat. Ann. § 24:21-20 (a) (4) (West Supp.

FF 3

Miscellaneous:

Amsterdam, Perspectives on the Fourth Amend-

ment, 58 Minn. L. Rev. 349 (1974)... 10

Buss, The Fourth Amendment and Searches of

1 W. Blackstone, Commentaries (1765) 7, 18, 20

Students in Public Schools, 59 Lowa L. Rev.

r ii 10, 19

J. Coleman, T. Hoffer, & S. Kilgore, High School

Achievement—Public, Catholic, and Private

Schools Compared (1982) . = . 23

Miscellaneous—Continued : Page

Comment, Students and the Fourth Amendment:

“The Torturable Class,” 16 U.C. Davis L. Rev.

A eee 19

Emerson, Toward a General Theory of the First

Amendment, 72 Yale L.J. 877 (19633 15

2 Encyclopedia of Educational Research (5th ed.

1982) .......... — — 24

H. Falk, Corporal Punishment (19411) 18

1 F. Harper & F. James, Law of Torts (1956)... 6, 16

M. Katz, Education in American History (1973) 18

Ladd, “Regulating Student Behavior Without

Ending Up In Court,” reprinted in National

Education Association, Discipline and Learn-

ing: An Inquiry into Student-Teacher Relation-

III K 2 18, 19

LaFave, Administrative Searches and the Fourth

Amendment: The Camara and See Cases, 1967

KS ee 10

2 W. LaFave, Search and Seizure (1978 & Supp.

„ ˙˙ ee Ser rT es 14

3 W. LaFave, Search and Seizure (1978 & Supp.

T 10, 14

National Comm’n on Excellence in Education, A

Nation At Risk: The Imperative For Educa-

. . 23

NIE, U.S. Dep't of Education, Violent Schools

Safe Schools: The Safe School Study Report to

gg xx 22, 23

Note, Warrantless Searches and Seizures of Auto-

mobiles, 87 Harv. L. Rev. 835 (19749) 13

Proehl, Tort Liability of Teachers, 12 Vand. L.

SENSE TI 18, 20

J. Pulliam, History of Education in America

EEC 18

1 W. Ringel, Searches & Seizures, Arrests and

Confessions (2d ed. 198)))))))))))j 18, 20

In the Supreme Court of the United States

OCTOBER TERM, 1984

No. 83-712

STATE OF NEW JERSEY, PETITIONER

v.

T. L. O.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW JERSEY

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING REVERSAL

INTEREST OF THE UNITED STATES

This case raises important questions concerning the

measures public school officials may take to maintain

the order and discipline essential to their educative mis-

sion. While education is primarily the responsibility of

state and local governments, the federal government pro-

vides substantia] amounts of money to support programs

in public schools. See, e.g., Education Amendments of

1978, 20 U.S.C. 2701 et seg.; Dep't of Education Organ-

ization Act, 20 U.S.C. 3401 et seg. Those expenditures

will be more fruitful to the extent that the recipient

schools are able to maintain an effective educational en-

vironment. Accordingly, as part of its overall program

to improve the quality of education, the federal govern-

ment has devoted considerable attention to the problem

of school discipline. Among other things, the Depart-

ments of Education and Justice have established the Na-

tional School Safety Center, the primary mission of

which is the collection and dissemination of data on

school safety and crime prevention techniques and legal

(1)

2

information regarding school discipline. The Depart-

ment of Education also is working to combat school crime

by evaluating activities currently underway in local

school districts and identifying measures that can be

employed by local jurisdictions to reduce school crime

and disorder.

The growing lack of discipline and disorder in the pub-

lic schools is a national problem, the solution to which

entails 2 commitment from the United States to help

parents and state and local education officials. The dis-

position of this case undoubtedly will have a substantial

impact on the federal government’s initiatives in this

area.

STATEMENT

1. On the morning of March 7, 1980, a mathematics

teacher at Piscataway High School entered the girls’ rest-

room and found respondent and another girl, Miss John-

son, holding what the teacher thought to be lighted

cigarettes (Pet. App. 2a; 9/26/80 Tr. 20). School regu-

lations prohibited smoking in the restrooms, and the

teacher accordingly took the two girls to the principal’s

office (Pet. App. 2a). There, the girls met with Theo

dore Choplick, the assistant vice principal (9/26/80 Tr.

22, 27).

Mr. Choplick asked the girls whether they had in fact

been smoking. Miss Johnson admitted that she had been

smoking, and Mr. Choplick disciplined her by assigning

her to a three-day smoking clinic. Pet. App. 2a. Re-

spondent not only denied smoking in the restroom, but in

addition claimed that she did not smoke at all (ibid.)

To resolve the credibility dispute, Mr. Choplick asked re-

spondent to accompany him to a private office (ibid.).

Inside the office, Mr. Choplick asked to see respondent’s

purse, and she gave it to him. When Mr. Choplick opened

the purse, a package of Marlboro cigarettes was immedi-

ately visible. Mr. Choplick held up the Marlboros and

said to respondent, “[y]ou lied to me.” Pet. App. 2a.

As he reached into respondent’s purse for the ciga-

rettes, Mr. Choplick saw in plain view a package of roll-

ing papers (Pet. App. 2a); respondent denied that the

rolling papers belonged to her (9/26/80 Tr. 28-29).

Based on his experience, Mr. Choplick believed that the

presence of rolling papers indicated some connection to

marijuana smoking. Accordingly, Mr. Choplick looked

further into respondent’s purse and found marijuana,

additional drug paraphernalia, written documentation of

respondent’s sele of marijuana to other students, and a

significant amount of cash ($40) for a 14-year-old to be

carrying. Mr. Choplick then called respondent’s mother

and notified the police. Pet. App. 2a.

Respondent’s mother agreed to a police request to

bring her daughter to police headquarters for question-

ing. At the station house, respondent was advised of her

Miranda rights in her mother’s presence and signed a

waiver of those rights. An officer then questioned re

spondent in her mother’s presence. Respondent admitted

that the objects found in her purse belonged to her, and

she further admitted that she had been selling marijuana

at school, receiving $1.00 per “joint.” She stated that

she had sold between 18 and 20 joints at school that

morning before the smoking incident. Pet. App. 2a, 28a.

Respondent was suspended from school for three days

for smoking cigarettes and for seven days for possession

of marijuana. She challenged the suspension in court,

alleging that the search of her purse had violated the

Fourth Amendment. The court upheld the three-day

suspension for smoking cigarettes but vacated the seven-

day suspension for possession of marijuana on the

ground that the search that revealed the marijuana had

been conducted in violation of the Fourth Amendment.

Pet. App. 2a-3a nn.1 & 2; 27a.

The state charged respondent with delinquency, based

on possession of marijuana with the intent to distribute

it, in violation of N.J. Stat. Ann. §§ 24:21-19(a) (1)

and 24:21-20(a)(4) (West. Supp. 1984). Respondent

moved to suppress the evidence seized from her purse,

1 Respondent’s challenge to her suspension from school is not at

issue in this case.

as well as her confession, contending that the allegedly

illegal search tainted the confession. Pet. App. 2a.

2. On September 26, 1980, the state trial court denied

and drug therapy program.

Respondent appealed to the Superior Court of New

Jersey, Appellate Division. That court affirmed the

denial of her motion to suppress, but it remanded the

I. Although we submit that it misapplied the law to

the facts of this case, we agree with the Supreme Court

of New Jersey (Pet. App. Qa-lla) that the Fourth

5

embodied in the Fourth Amendment” is one of “ ‘reason-

ableness. United States v. Villamonte-Marquez, No.

81-1350 (June 17, 1983), slip op. 9. Moreover, “reason-

ableness” depends on the context in which a particular

search or seizure occurs. See Wyman v. James, 400 U.S.

309, 318 (1971); Terry v. Ohio, 392 U.S. 1, 9 (1968).

Probable cause and a warrant, though frequently re-

quired, are not absolutes. The Court has held that the

warrant requirement is inapplicable in certain circum-

stances, and “reasonable suspicion,” in lieu of probable

cause, is all that is required in many instances.

Focusing on context, the Court has developed special

rules for border searches, civil or administrative

searches, and searches conducted in furtherance of “com-

munity caretaking” functions. These cases establish that

a search or seizure may be “reasonable” within the

meaning of the Fourth Amendment even if probable

cause is lacking. In addition, the cases establish that the

probable cause standard “is peculiarly related to criminal

investigations” (South Dakota v. Opperman, 428 U.S.

364, 370 n.5 (1976)). Moreover, the mere fact that a

search held reasonable on less than probable cause pro-

duces evidence that is subsequently used in criminal pro-

ceedings does not alter the requisite level of suspicion

(id. at 370-375). Finally, the pertinent cases demon-

strate that the reasonableness of particular classes of

searches or seizures generally is determined on a cate

gorical basis rather than a case-by-case approach. Here,

a number of unique factors call for the placement of

school searches in a special category, with the result that

school officials seeking to enforce school rules and regu-

lations need not demonstrate probable cause in order to

satisfy the Fourth Amendment’s standard of reasonable-

ness.

Il. A. While “students [do not] shed their constitu-

tutional rights at the schoolhouse gate” (Tinker

v. Des Moines Independent Community School Dist., 393

U.S. 503, 506 (1969)), the Court nevertheless has often

recognized the unique nature of children and the school

setting and has declined to “constitutionalize” the entire

educational process. For example, in Ingraham v.

Wright, 430 U.S. 651 (1977), the Court, in rejecting

the applicability of the Eighth Amendment to corporal

punishment administered as a method of disciplining

public school students, endorsed the common law notion

that “the State * may impose such corporal punish-

tion of the child and for the maintenance of group dis-

cipline.’” Id. at 662 (quoting 1 F. Harper & F. James,

Law of Torts § 3.20, at 292 (1956)). So too, in Goss v.

Lopez, 419 U.S. 565 (1975), the Court’s holding that due

process requires notice and a hearing before a child may

be suspended from school was tempered by the recogni-

tion that the “hearing” could be quite “rudimentary,”

amounting to no more than “the disciplinarian * * °

informally discuss ling] the alleged misconduct with the

student minutes after it has occurred” (id. at 581-582).

The Court concluded that more formal requirements

would be counterproductive and could destroy the effec-

tiveness of suspensions “as part of the teaching process”

(id. at 583). As in Ingraham and Goss, both history

and common sense argue persuasively against imposing

rigid requirements derived from criminal proceedings on

public school administrators charged with maintaining

order in the schools and an atmosphere conducive to

learning.

B. 1. The Court has on several occasions relied on

“longstanding, historically recognized” practices to up-

hold particular types of searches on less than probable

cause. United States v. Ramsey, 431 U.S. 606, 621

(1977). See also, e. g., Villamonte-Marquez, slip op. 6-8;

United States v. Biswell, 406 U.S. 311, 314 (1972).

The authority of school officials to supervise their stu-

dents free of the full panoply of legal constraints im-

posed upon the actions of other state officials was estab-

lished in colonial times, and it has been exercised vir-

tually unquestioned for over 200 years. This historical

practice has its origins in the common law doctrine that

2. Although the pure, Blackstonian version of the

in loco parentis doctrine may not be fully applicable to

a system of compulsory education, the doctrine serves

well as the backdrop for analysis in this case. Even in

the absence of formal delegation from parents, teachers

have been given responsibilities like those of parents,

and they must be afforded concomitant leeway to exer-

cise those responsibilities in a manner that best effec-

tuates their educative mission.

While teachers are far more than “caretakers,” their

responsibility for student welfare makes searches on the

basis of less than probable cause reasonable; school offi-

cials are responsible not only for teaching students but

for preserving order and discipline in the interests of

the entire student body. Sadly, disorder and crime in the

public schools have reached epidemic proportions. See

pages 22-23, infra. Many schools today are in such a

state of disorder that the very safety of students and

teachers is imperiled. School searches—conducted in a

prompt and informal way—are a vital means of protect-

ing students and teachers from weapons and drugs and

enforcing school disciplinary rules.

In addition to maintaining order for safety’s sake,

teachers must be able to teach. Many educators attribute

the decline in educational achievement in this country to

the lack of effective discipline. See pages 23-24, infra.

In the secondary school setting, however, “discipline”

meted out according to the formal procedures of the

criminal justice system would likely be destructive of the

special relationship between students and teachers so

necessary for successful teaching. Teachers and school

administrators need the freedom to deal with incidents

of student misbehavior in prompt and informal ways

that teach the moral value and necessity of adherence to

society’s rules without elevating every misdeed to the

level of an adversarial confrontation.

The political process provides significant protection

against abuses by school officials of their authority.

A large and highly motivated segment of the public—

parents with school-age children—is immediately aware

of abuses and, acting through locally-elected school

boards, can hold teachers and administrators accountable.

See Ingraham v. Wright, 430 U.S. at 670. The availabil-

ity of this effective political supervision counsels strongly

against judicial imposition of rigid requirements on

school officials attempting to perform the mission with

which society has entrusted them.

III. The assistant vice principal in this case was, be-

yond question, aware of “specific articulable facts, to-

gether with rational inferences from those facts, that

reasonably warrant(ed] suspicion” that respondent had

violated a school rule. United States v. Brignoni-Ponce,

422 U.S. 873, 884 (1975). Mr. Choplick had received an

eyewitness report from an unquestionably credible

source that respondent had violated a school regulation

by smoking in the restroom. Respondent’s denial, and her

claim that she was a nonsmoker, were hardly sufficient,

without more, to overcome the reasonable suspicion gen-

erated by the teacher’s report. Opening respondent’s

purse to determine whether its contents might reveal the

truth of the matter was surely reasonable under the cir-

cumstances. In holding that the mere possession of ciga-

rettes was irrelevant to the alleged infraction (Pet. App.

12a), the Supreme Court of New Jersey appears to have

revived the “mere evidence” rule rejected by this Court

in Warden v. Hayden, 387 U.S. 294, 300-310 (1967).

Under Hayden, the controlling question is whether th

possession of cigarettes would aid in establishing a viola-

tion of the prohibition against smoking in the restrooms.

Id. at 307. The answer to that question is clearly

affirmative.

The New Jersey court also erred in its suggestion

(Pet. App. 12a) that even if it was reasonable for Mr.

THE ASSISTANT VICE PRINCIPAL’S SEARCH OF

RESPONDENT'S PURSE DID NOT VIOLATE THE

FOURTH AMENDMENT

I. The Level Of Suspicion Required For Particular Cate-

gories Of Searches Depends Upon The Context In

Which The Search Is Undertaken

A. The Supreme Court of New Jersey held (Pet. A

Ya-lla) that the Fourth Amendment does not ie

school officials to have probable cause and a warrant to

Fourth Amendment” is one of “ ‘reasonableness.’ ”

United States v. Villamonte-Marquez, No. 81-1350 (June

17, 1983), slip op. 9. The Fourth Amendment “does not

denounce all searches or seizures, but only such as are

unreasonable.” Carroll v. United States, 267 U.S. 132,

147 (1925).* Because “(t]he test of reasonableness un-

See also United States v. Place, No. 81-1617

slip op. 6, 10; Michigan v. Summers, 452 U.S. 1 —

Donovan v. Dewey, 452 U.S. 594, 599 (1981); Bell v. Wolfish, 441

U.S. 520, 558 (1979); Delaware v. Prowse, 440 U.S. 648, 654

(1979); Pennsylvania v. Mimms, 434 U.S. 106, 108-109 (1977) ;

Cady v. Dombrowski, 413 U.S. 433, 439, 448 (1973): Wyman v.

James, 400 U.S. 309, 318 (1971); Camere v. Municipal Court, 387

U.S. 523, 539 (1967) ; Cooper v. California, 386 U.S. 58, 62 (1967).

10

der the Fourth Amendment is not capable of

definition or mechanical application,” Bell v.

441 U.S. 520, 559 (1979), “ ‘the specific

cidents of thle] right [to be free from

searches and seizures} must be shaped by

which it is asserted. Wyman v. James,

318 (1971) (quoting Terry v. Ohi,

(1968)).*

i

i

if

fi

“if ils

ple, the Court generally has required both probable

and a warrant. See, e.g., United States v. United

District Court, 407 U.S. 297, 317 (1972). In

texts, however, the Court has lowered the

suspicion required for a lawful search or

probable cause to “reasonable suspicion.” The

known example, of course, is the “stop and

dure approved in Terry v. Ohio, supra. See

sylvania V. Mimms, 434 U.S. 106 (1977). But Terry

not been limited to its facts; the Court has

searches and seizures on the basis of reasonable suspicion

in other circumstances as well. See, ¢.g., Michigan v.

7

nee

i

See also Villamonte-Marquez, slip op. 9, 13-14; Bell v. Wolfish,

441 U.S. at 559; United States v. Ramsey. 4381 US. 606, 616

(1977); United States v. Martines-Fwerte, 428 U.S. 543,

556, 561 (1976); Sewth Dekota v. Opperman, US.

(1976); Terry Vv. Ohio, 392 U.S. at 9, 27; Camere v. M

Court, 387 U.S. 523, 534-5640 (1967) ; Cooper v. California,

58, 59 (1967); 3 W. LaFave, Search and Seizure

Supp. 1984); Amsterdam, Perspectives on the Fourth

58 Minn. L. Rev. 349, 395 (1974); Buss, The Fourth

and Searches of Students in Public Schools, 59 lowa Rev

753-754 (1974): LaFave, Adreinistrative Searches and the

Amendment: The Camera and See Cases, 1967 Sup. Ct. Rev. 1,

l

11

gan v. Summers, 452 U.S. 692 (1981) (seizure of in-

dividual outside premises while executing warrant).

Border searches are a special area in which the Court,

under the touchstone of the reasonableness standard, has

looked to context to determine the requirements of a law-

ful search or seizure and concluded that the traditional

standard of probable cause and a warrant is generally

inappropriate. In United States v. Brignoni-Ponce, 422

U.S. 873 (1975), the Court, while prohibiting stops based

cf. Almeida-Sanchez v. United States, 413 U.S. 266

(1973) (full search of automobile requires probable

cause and a warrant). In United States v. Ramsey,

431 U.S. 606 (1977), the reasonable suspicion standard

for border searches was held to encompass the inspection

of packages mailed from abroad. And in United States

v. Martinez-Fuerte, 428 U.S. 543 (1976), the Court held

that the Border Patrol may stop an automobile and

question its occupants at a permanent checkpoint

near the border even in the absence of individualized

suspicion that the vehicle contains illegal aliens.

The 's treatment of searches and seizures of a

civil or administrative nature is especially pertinent to

the search in this case, since such searches generally are

conducted in order to maintain discipline or to enforce

observance of rules and regulations. In Camara v.

Municipal Court, 387 U.S. 523 (1967), and See v. City

of Seattle, 387 U.S. 541 (1967), the Court held that

Subsequent administrative search cases have brought

additional developments. Entry to inspect the premises

12

with neither a warrant nor any particularized suspicion

is permitted pursuant to a legislative scheme for per-

vasively regulated industries. See Donovan v. Dewey,

452 U.S. 594 (1981) (inspection of mines); United

States v. Biswell, 406 U.S. 311 (1972) (gun dealers) ;

Colonnade Catering Corp. v. United States, 397 U.S. 72

(1970) (alcohol dealers). But ef. Marshall v. Barlow’s,

Inc., 430 U.S. 307 (1978) (warrant required when ob-

taining one is not detrimental to enforcement of the

regulatory scheme). Similarly, neither a warrant nor

any individualized suspicion is required for the Coast

Guard or Customs Service to board a vessel and examine

its owner’s documents, United States v. Villamonte-

Marquez, supra; for police officers to inventory the con-

tents of objects they have impounded. Illinois v. Lafay-

ette, No. 81-1859 (June 20, 1983); South Dakota v.

Opperman, 428 U.S. 364 (1976); for law enforcement

officers to perform various “community caretaking” func-

tions that include searches or seizures, Cady v. Dom-

browski, 413 U.S. 433 (1973) (policemen searched car

for service revolver of off-duty officer) ; Harris v. United

States, 390 U.S. 234 (1968) (police officer discovered

evidence while locking car); or for a caseworker to enter

the home of a welfare recipient to ensure compliance with

welfare regulations, Wyman v. James, 400 U.S. 309

(1971).

The “community caretaking” rationale also has been

applied, at least in part, to the activities of firefighters.

In Michigan v. Tyler, 486 U.S. 499 (1978), the Court

held that a burning building creates an exigency that

justifies a warrantless entry to fight the blaze, and that

once in the building, officials need no warrant to remain

for “a reasonable time to investigate the cause of a

blaze after it has been extinguished.” Jd. at 510. En-

tries at a later time with the primary object of investi-

gating the cause and origin of the fire may be made

pursuant to the procedures established in Camara for

administrative searches. Tyler, 436 U.S. at 511; Michi-

gan V. Clifford, No. 82-357 (Jan. 11, 1984), slip op. 6.

If, however, the primary object of a subsequent search

13

is to gather evidence of criminal activity such as arson,

a criminal search warrant must be obtained. Clifford,

slip op. 4, 6.

B. These decisions point the way to several impor-

tant conclusions about the Fourth Amendment. First,

many searches and seizures are “reasonable” within the

meaning of the Fourth Amendment even if probable

cause is lacking. No single standard represents “reason-

ableness” as that term is used in the Fourth Amend-

ment; “the Fourth Amendment imposes no irreducible

requirement of such suspicion.” Martinez-Fuerte, 428

U.S. at 561.“ Rather, as the Court has long recognized,

“(t]hese cases together establish that in appropriate

circumstances the Fourth Amendment allows a properly

limited ‘search’ or ‘seizure’ on facts that do not con-

stitute probable cause * * *.” Brignoni-Ponce, 422 U.S.

at 881.

Second, tj he standard of probable cause is peculiarly

related to criminal investigations, not routine, non-

criminal procedures.” Opperman, 428 U.S. at 370 n.5;

see also Ingraham v. Wright, 430 U.S. 651, 673 n.42

(1977) (principal concern of Fourth Amendment is in-

trusions on privacy in course of criminal investigations) ;

Whalen v. Roe, 429 U.S. 589, 604 n.32 (1977) (same) ;

Note, Warrantless Searches and Seizures of Automobiles,

87 Harv. L. Rev. 835, 850-851 (1974). Consequently, the

Court has not hesitated to uphold searches upon less an

probable cause when the context requires alteration of

the accommodation between individual and governmental

interests reached in the criminal cases establishing the

probable cause standard. Moreover, the mere fact that

a search held reasonable on less than probable cause

produces evidence that is subsequently used in criminal

proceedings does not alter the requisite level of suspicion.

See Opperman, 428 U.S. at 370-375; Cady v. Dombrow-

* See also Michigan v. Summers, 452 U.S. at 699-700 & nn.11-12;

Brown v. Texas, 443 U.S. 47, 51 (1979); Dunaway v. New York,

442 U.S. 200, 210 (1979); Delaware v. Prowse, 440 U.S. 648, 654

(1979).

14

ski, supra; Harris v. United States, supra; Abel V.

United States, 362 U.S. 217, 228-230 (1960).

Third, the balancing of individual and governmental

interests to determine the reasonableness of 2 search or

seizure under the Fourth Amendment is performed not

as “a matter for case-by-case application, but rather as

a technique for establishing the quantum of evidence

needed for certain distinct kinds of official action.”

3 W. LaFave, Search and Seizure § 9.1, at 14 (1978).

The Court isolates the unique features of particular

categories of searches, such as car searches, see United

States v. Ross, 456 U.S. 798 (1982); Chambers v.

Maroney, 399 U.S. 42 (1970); or searches by health

inspectors, see Camara v. Municipal Court, supra, and

prescribes the test of reasonableness for searches in that

context. As we demonstrate below, a number of unique

factors call for the placement of school searches in a

special category, with the result that school officials

seeking to enforce school rules and regulations need not

demonstrate probable cause to satisfy the Fourth Amend-

ment’s standard of reasonableness.“

5 Because we argue that probable cause is not necessary to

justify a search by a school administrator such a» the one in this

case, we shall not separately address the issue whether a warrant

should be required. The language of the Fourth Amendment is

quite clear that no Warrants shall issue, but upon probable cause

„„.“ U.S. Const. Amend. IV. Thus, if a search is permitted on

the basis of suspicion short of probable cause, no warrant can be

required. See Opperman, 428 U.S. at 370 n.5. And even if the

Court were to hold that probable cause is necessary for a school

official to conduct a search in connection with school discipline, it

still would not follow that a warrant should be required. The

Court has created numerous exceptions to the warrant requirement.

See, e.g., United States v. Ross, supra (automobile searches); Vale

v. Louisiana, 399 U.S. 30 (1970) (exigent circumstances; Chimel

v. California, 395 U.S. 752 (1969) (search incident to arrest). In

general, these exceptions follow the principle that probable cause is

sufficient protection when obtaining a warrant would be unduly

complicated or difficult. See Chambers v. Maroney, 399 U.S. at 51;

2 W. LaFave, Search and Seizure g 4.1 (1978 & Supp. 1984). In

addition, the warrant requirement may be waived when there is

less necessity for a “neutral and detached magistrate” because the

15

II. A School Official Having Reasonable Suspicion That A

Student Has Violated A School Rule May Conduct A

Warrantless Search Of The Student's Effects“

A. It is beyond dispute that “students [do not] shed

their constitutional rights at the schovlhouse

gate.” Tinker v. Des Moines Independent Community

School Dist., 393 U.S. 503, 506 (1969). At the same

time, however, this Court has recognized the unique na-

ture of children and the school setting and has declined

to “constitutionalize” the entire educational process.’ For

officials conducting the search are not “engaged in the often com-

petitive enterprise of ferreting out crime.” Johnson v. United

States, 333 U.S. 10, 14 (1948) (footnote omitted). Even respond-

ent concedes that the warrant requirement should be waived in the

school context because it “would be particularly difficult for schools

to comply with because * * schools are not primarily involved in

investigating criminal conduct.” Tr. of Oral Arg. 32 (Mar. 28,

1984).

® We deal here with school searches of the type conducted in this

case. Since it is clear, as we demonstrate in Part III of this brief,

that the search of respondent’s purse was supported by reasonable

suspicion, it is unnecessary to consider the circumstances in which

a lesser degree of suspicion might be constitutionally permissible.

Such circumstances are easily imaginable, however, as, for example,

in the case of a rumor that a student possessed a knife and in-

tended to harm a teacher or another student.

The Court has recognized the self-evident proposition that chil-

dren are different from adults outside of the school setting as well.

In Ginsberg v. New York, 390 U.S. 629 (1968), the Court upheld a

New York statute making it unlawful to sell obscene material to

minors. As the Court observed (id. at 638 (quoting Prince v.

Massachusetts, 321 U.S. 158, 170 (1944)), “even where there is an

invasion of protected freedoms, ‘the power of the state to control

the conduct of children reaches beyond the scope of its authority

over adults“ The Court endorsed the view that ‘regulations of

communication addressed to [children] need not conform to the

requirements of the first amendment in the same way as those

applicable to adults“ (Ginsberg, 390 U.S. at 638 n.6 (quoting

Emerson, Toward a General Theory of the First Amendment, 72

Yale L.J. 877, 939 (1963)

Similarly, in rejecting a due process challenge to a New York

statute authorizing pretrial detention of juveniles, the Court re-

cently stressed the fundamental differences between children and

16

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

the Court held that the Eighth Amendment's proscrip-

tion against cruel and unusual punishments does not

extend to the imposition of corporal punishment as a

method of disciplining public school students. Instead, the

Court accepted the common law notion that “the State

* * * may impose such corporal punishment as is rea-

sonably necessary ‘for the proper education of the child

and for the maintenance of group discipline“ Id. at

662 (quoting 1 F. Harper & F. James, Law of Torts

§ 3.20, at 292 (1956)).

So too, in Goss v. Lopez, 419 U.S. 565 (1975), the

Court’s holding that due process requires notice and a

hearing before a child may be suspended from school was

tempered by the recognition that the “hearing” could be

quite “rudimentary” and could follow immediately the

giving of “notice” (id. at 581-582). Indeed, the Court

held that due process would be satisfied “[i]n the great

majority of cases” simply by having “the disciplinar-

ian * * * informally discuss the alleged misconduct

with the student minutes after it has occurred” (id. at

582); the Court’s only concern was that the accused

student be “given an opportunity to explain his version

of the facts” after first being apprised of the basis of

adults. The Court explained (Schall v. Martin, No. 82-1248 (June

4, 1984), slip op. 9 (citations omitted) ) :

We have held that certain basic constitutional protections en-

joyed by adults accused of crimes also apply to juveniles. * * *

But the Constitution does not mandate elimination of all

differences in the treatment of juveniles. * * * The State has

“a parens patriae interest in preserving and promoting the

welfare of the child,” Santosky v. Kramer, 455 U.S. 745, 766

(1982), which makes a juvenile proceeding fundamentally

different from an adult criminal trial. We have tried, there-

fore, to strike a balance—to respect the “informality” and

“flexibility” that characterize juvenile proceedings, In re

Winship, [897 U.S. 358, 366 (19700 J. and yet to ensure that

such proceedings comport with the “fundamental fairness” de-

manded by the Due Process Clause.

should not be transplanted wholesale to children.

— below, beth Mutery and examen anes

oe ion in the context of school searches.

L. several occasions, “longstandi , historically

recognized” practices have led the Court to uphold pan

ticular types of searches on less than probable cause.

United States v. Ramsey, 431 U.S. at 621 (border

searches See also, e.g., Villamonte-Marquez slip op.

6-8 (authority to board ships and inspect owners’ docu-

mentation; United States v. Biswell, 406 U.S. at 314

(inspection of liquor dealer approved on the basis of

“the historically broad authority of the Government to

regulate the liquor industry”). The authority of school

officials to supervise their students free of the full pano-

ply of legal constraints imposed upon the actions of other

state officials constitutes such a historically

recognized practice. That authority was established in

colonial times, and it has been exercised virtually un-

questioned for over 200 years.* See Ladd, “Regulating

Student Behavior Without Ending Up In Court,” re-

printed in National Education Association, Discipline

and Learning: An Inquiry into Student-Teacher Rela-

tionships 24, 25-28, 30 (1977) ; H. Falk, Corporal Punish-

ment (1941); Proehl, Tort Liability of Teachers, 12

Katz, Education in American History (1973): J. pul-

17.2 (2d ed. 1984). Blackstone explained the meaning

of the theory in 1769 (1 W. Blackstone, Commentaries

4537:

left relatively free from rigid legal constraints to dis-

cipline students and enforce order in the schools.

States, 116 U.S. 616, 622 (1886)). It is extremely unlikely that

the Framers of the Fourth Amendment ever intended the Amend

1¢

With specific regard to the issue of searches, it was

not until 1969 that anyone appears to have raised the

claim that the Fourth Amendment |'mited school officials

in their actions at all' Commenting on the recent spate

Amendment: “The Torturable Class,” 16 U.C. Davis L.

Rev. 709, 709-710 & n.4 (1983) (citing cases). The

n.42; Opperman, 428 U.S. at 370 n.5. A school

search is the paradigm of the noncriminal investigation.

School officials charged with enforcement of the

education, does so as a surrogate for the t's par-

ents. Saddling searches by school officials with all the

In re Donaldson, 269 Cal. App. 24 509, 75 Cal. Rptr. 220 (1969),

appears to be the earliest case on the issue.

trappings of criminal proceedings would seriously weaken

the officials’ ability to fulfill the important and sensitive

mission with which society has entrusted them.

We have previously noted the importance of the

trine that teachers act in loco parentis as the h

foundation for relations between students and teachers.

See pages 17-18, supra. In its pure, traditional version,

authority to act in loco parentis is authority actually

delegated to the teacher by the parent. See 1 W. Black-

stone, Commentaries 453. Applied in this manner,

courts have held that the Fourth Amendment no more

restricts the teacher than it does the parent. See, ¢.g.,

Mercer v. State, 450 S.W.2d 715, 717 (Tex. Civ. App.

1970) ; In re Donaldson, 269 Cal. App. 2d 509, 510-513,

75 Cal. Rptr. 220, 221-223 (1969); 1 W. Ringel, supra,

17.2, at 17-3.

Interpreted as an actual delegation of authority, the

doctrine of in loco parentis does not fit easily within

a compulsory system of education. See 1 W. Ringel,

supra, § 17.2, at 17-5; Proehl, supra, 12 Vand. L. Rev. at

726-727. As numerous state courts have held, however,

the doctrine is subject to a different interpretation that

makes it a weighty factor in judging the reasonableness

of actions of school officials. See, e. ., In re N., 29 Cal.

App. 3d 777, 782, 105 Cal. Rptr. 775, 778 (1973); Peo-

ple v. Jackson, 65 Mise. 2d 909, 910, 914, 319 N.Y.S.2d

731, 733, 736 (Sup. Ct. 1971), aff'd, 30 N.Y.2d 734, 284

N.E.2d 153, 333 N. Y. S. 2d 167 (1972); 1 W. Ringel,

supra, § 17.2, at 17-6 n.17 (citing cases). The public

if

ner that might not be permitted of other state officials.”

responsibility associated with

a reasonable course of action. See Cady v. Dombrowski,

413 U.S. at 442-443. This lowered threshold is reasonable

in light of the nonadversarial nature of the relationship

:

.

!

ple, not places.” Katz v. United States, 389 U.S. 347, 351 (1967).

But it is equally true that a person’s reasonable expectations of

privacy vary greatly depending upon his location. See, e.g., Hudson

i 1 sit

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ant

noted in Ingraham v. Wright, 430 U.S. at 670, “[t]he

blie school and its supervision by the

than may be the case with adults suspected of criminal

activity. In the case of adults, the public at large is un-

likely to be informed or especially concerned about pos-

sible abuses, and those individuals who are informed may

not be in a position to exert pressure on the responsible

authorities. In the case of school children, by contrast,

a large and highly motivated segment of the public—

parents with school-age children—is immediately aware

of abuses, can effectively protest practices it regards as

unreasonable, and—acting through local school boards—

can hold teachers and administrators accountable. Given

the availability of these effective political safeguards,

there is no need for the judiciary to impose rigid con-

straints on school officials in their day-to-day work.

For all these reasons, therefore, the school context is

A parolee’s diminished Fourth Amendment protection re

garding searches by a parole officer arises from the necessity

for effective parole supervision and the unique relationship of

the parole officer and the parolee. * * * A parolee is in the

legal custody of a parole officer who monitors the parolee’s

adherence to the conditions of his or her parole.

See also Scott, 678 F.2d at 34 (“As the official primarily charged

* * * with guiding the parolee during his reorientation,” greater

latitude in searching is permitted to the parole officer); Latta, 521

F.2d at 249 (“The purposes of the parole system give the parole

authorities a special and unique interest in invading the privacy

of parolees under their supervision.“

26

rule is being violated should be necessary to support a

search by a school official acting in that capacity.

III. The Assistant Vice Principal’s Search Of Respondent’s

Purse In This Case Was Justified By Reasonable

Suspicion

School officials possess the requisite “reasonable sus-

picion” to search a student’s effects when “they are

aware of specific articulable facts, together with rational

inferences from those facts, that reasonably warrant

suspicion” that the student has violated a school rule.

Brignoni-Ponce, 422 U.S. at 884. That standard clearly

was met in this case. The assistant vice principal re-

ceived an eyewitness report from an unquestionably

credible source (a teacher) that respondent had violated

a school regulation by smoking in the restroom. Re-

spendent’s denial, and her claim that she was a non-

smoker, were hardly sufficient, without more, to overcome

the reasonable suspicion generated by the teacher’s re-

port. Opening respondent’s purse to determine whether

its contents might reveal the truth of the mattter in dis-

pute was surely reasonable under the circumstances.”

12 Moreover, the record reveals that Mr. Choplick acted out of

concern for fairness to respondent (9/26/80 Tr. 30-31) :

Q. * What was your sole intention when you opened that

pocketbook ?

A. The intent that I’ve always tried to do is that whenever

I'm going to discipline anyone I try to give them a hearing,

which I thought was part of my responsibility. I just don’t

normally hand out punishment.

* * * * *

A. When she said to me she wasn't smoking, all right, that

was to me to see if there was any proof that she was. I didn't

have a teacher there, and so my intent was to see if there was

cigarettes inside, which would be a sign to me that she was

smoking.

. Had you not found the cigarettes what would you have

done?

A. I probably would have called back [the teacher] and a_ked

her had she definitely saw her smoking.

It thus appears that Mr. Choplick was engaged in much the sort

of “informal give-and-take between student and disciplinarian”

27

The New Jersey court erroneously characterized the

assistant vice principal’s reasonable suspicion as “at

best, a good hunch” (Pet. App. 12a). But the teacher’s

eyewitness report that respondent had been smoking,

coupled with the rational inference that a person who

has recently been smoking is likely to possess additional

cigarettes, amounted to far more than “a good hunch.” “

The Supreme Court of New Jersey thus plainly erred

when it stated that “(t]he contents of the handbag had

no direct bearing on the infraction” (ibid.). The court

apparently based its holding on the gruund that Imjere

possession of cigarettes did not violate school rule or

policy” (ibid.), thus suggesting that the validity of the

mandated by this Court in Goss v. Lopez, 419 U.S. at 584. Clearly,

he was acting as “a fair-minded school principal” (id. at 583) in

order to avoid the unwarranted imposition of disciplinary sanc-

tions. Respondent contends that Mr. Choplick should have disci-

plined respondent without opening her purse (see Tr. of Oral

Arg. 43-44 (Mar. 28, 1984)), but we question the educative value

of a lesson that teaches that students are always to be disbelieved.

1 In the trial court, respondent’s counsel conceded that it was

reasonable for the assistant vice principal to open respondent’s

purse (9/26/80 Tr. 55-56 (emphasis added) ) :

What were the reasonabl[e] actionſs] that Mr. Choplick

should have taken? Here's the way I see it, your Honor, in

this regard: T. went into Mrs., Miss Wrighley’s office, she was

asked to turn over her pocketbook. As soon as the pocketbook

was unzippered lo and behold, sitting up on top was a pack of

Marlboro cigarettes. That was enough. He should never have

removed those cigarettes. No reason to delve around in that

pocketbook beyond that point and everything that happened

thereafter was improper, beyond the scope of the search. The

suspicion was smoking. There was a denial of smoking. The

purpose of the search was to see if there was some kind of

smoking apparatus * * * and that was enough.

They (the cigarettes | should never have been removed.

In our submission, it borders on the absurd to contend that,

while it was reasonable to open respondent’s purse, Mr. Choplick

violated the Constitution when he lifted the Mariboros out to

confront her with them. And, as we discuss in text, once the

Marlboros had been removed, Mr. Choplick acquired probable cause

(not merely reasonable suspicion) for a complete search of re-

spondent’s purse.

28

search depended on whether its object was the discovery

of contraband. It thus appears that the state court has

revived some version of the “mere evidence” rule rejected

by this Court in Warden v. Hayden, 387 U.S. 294, 300-

310 (1967). That the possession of cigarettes did not

violate any school rule is, however, irrelevant; the con-

trolling question is whether respondent’s possession of

cigarettes would aid in establishing a violation of the

prohibition against smoking in the restrooms. /d. at 307.

The answer to that question is clearly affirmative. More-

over, it was not necessary that the assistant vice prin-

cipal search only for evidence that would have estab-

lished a violation conclusively.” Quite clearly, the con-

tents of respondent’s purse could reasonably have been

believed by the assistant vice principal to have a bearing

on the credibility of respondent’s assertion that she did

not smoke and, hence, on the credibility of her denial of

having committed the infraction.

The New Jersey court also erred in its suggestion

(Pet. App. 12a) that even if it was reasonable for the

assistant vice principal to have opened respondent's

purse, the balance of the search was unreasonable. While

acknowledging that the sight of rolling papers in plain

view could justify looking for drugs, the court went on

to state that observation of the rolling papers could not

4 Of course, even when the “mere evidence” rule held sway, it

was permissible to search not only for contraband but for fruits

and instrumentalities of an offense. See Warden v. Hayden, 387

U.S. at 300-301. It seems likely that the cigarettes in respondent’s

purse would be classified as instrumentalities of the smoking

infraction.

15 See, e. ., United States v. Holland, 510 F.2d 453, 455 (9th

Cir.), cert. denied, 422 U.S. 1010 (1975) (footnote omitted), in

which the court stated:

Clearly, the officers were not required to rule out all possibil-

ity of innocent behavior before initiating a brief stop and re-

quest for identification. The test is founded suspicion * * *.

Even if it was equally probable that the vehicle or its occupants

were innocent of any wrongdoing, police officers must be per-

mitted to act before their reasonable belief is verified by escape

or fruition of the harm it was their duty to prevent.

justify ‘wholesale rummaging or browsing through a

person’s papers in the unparticularized hope of uncover-

ing evidence of a crime.’” Ibid. (quoting State v. Smith,

113 N.J. Super. 120, 135, 273 A.2d 68, 76-77 (1971)

But the search of respondent’s purse cannot be com-

partmentalized any more than the search of an auto-

mobile. See, e. g., United States v. Ross, 456 U.S. at

820-821. Once the assistant vice principal saw the roll-

CONCLUSION

The judgment of the Supreme Court of New Jersey

should be reversed.

Respectfully submitted.

JULY 1984

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