Petition for A Writ of Certiorari — Overton v. Rieger

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Ramper v, Neth Cavotina, 394 U.S. 543 (1988) — -&

Canaan », La Valen, 998 US. SOC ........... HU

©, Unived Staten, 365 U.S. GIO(IEL) ......-- g

Comet v. Unined Staten, S67 F. 221 (GUA Gh. IFES) a

inom v. Atsbame State Qeeid of Biecation, 296 F, 22 158

Ratchan \. Central Mimourt State

(ath Cer, 16h) cert demeed TOR

Ginahieng v. New Vouk, 990 U.S.629(000B) .........5.) 1

tn ce Gaut, SBT US. UCNDET) ...-- +s eee errr 6

Jones v. United States, 362 U.S. 257 (1988) jisnnes 6

Kate v, United Staten, SUPUS. STC ......----- ©

v, State of Marviand, 438 F. 24 169

Sante co. 1970 ewes) Td ee au

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Associates, tne. v. FTC, 397 F. 28539

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_ Swen v. New Vouk, 5920.5. COCUUER) ............ 0, 13

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Stoner v. California, 876 U.S. 488q0984) ........... 9

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United States v. Gowan, 396 F. 24°63 (24 Gr, 1968)... re

( wited States». Flanagan. 385 F. Supp. 325

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United States v, Small, 297 F. Supp, 582 (D. Mam. 1969). 6.7

West Vieginia v. Ramet, 399 U.S. GBS(0963) .......... - 8

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2 Whether such consent, if constitutionslly allowable, is

valid when given in reliance upon 2 concededly defective search

3. Whether 2 search, instigated and divected by police of

ficials pocseasing s defective warrant, is rendered lawful by the

a

mere participation of a school offical.

4. Whether delays in court procedures and the ambegustic

of state law the duration of can combune to

the federal courts of over a habeas corpur

|. Refereners ave to the original state Record Giled with this Court in

connection with Overton v. New York, 393 US. 85, 0.7. 1967, No: 212

and filed agsin in this case, :

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The s motives for « in the search

are mot clear. At one point he asserted that “if any report were

given to me by of an article or item of the nature that

students” and therefore the search.was legal (R. 215-16). There-

after. petitioner pleaded v to a youthful offender informa.

teres. :

“An

pe

consent to erarch twas not

& Overton, St Mise. 34 148, 273 N.Y. 28

———e of the First Amend.

Virginia v. tt, 329 US. 626 (1943):

it is also well settled that public school

esititied to the protections of the due process —

US. 1, 9:(9968); Mancusi v. De’ Forte, 392 U.S. 364 (0968).

tras been found to be reasonable with regard

shered with others, Mancus 1. De Forte supra. an

rpustment in which one is 2 guest. Jones v. United States. 362

U.S. 257 (9960), 2 hotel room. Stoner v. California, 376 US.

483 (1964). 2 asbway stativn locker. United States v. Small, 297

F. Supp. S82 (D. Mass. 1969) and. finally. even garbage can

adjacent to one's house. People v. Edwards. Cal. 2d__. 458

P. 24 713 (Calif. Sup. Ct. 1969). Surety 2 high school student's

of the privacy of his schowl locker should recewe

the seme constitutional reaperi as 2 garbage can. a

Moreover. petitioner's expectation of privacy war

able notwithetanding « choul official's posarsmon of the

supe.

ret authorwe the warranties

.. de contents of the locker were aot

expose{d] to the public”... . [t}}he locker stectf

viewed as “an area where. like a home. . and ’

durmg

respondent

consent would

had a reasonable

locker. the school

hed no authority to consent to a police search which invaded

that privacy.

Finally, even if the school authorities did have some au-

thority to authorize a search of the locker, they had no right to

search the petitioner's jacket hanging inside. The power to

consent to a search of an area does not confer the authority to

consent to a search of personal effects within that area. See

Reeves v. Warden , 346 F. 24 915 (4th Cir. 1965).

These principles make it clear that the petitioner's interest»

an his locker were such that the school authorities could not

invade those

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S: 629 (1968). Accardingly.

sdoght

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; Cir. 1969).

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Ginsberg v.

tower federal cosrt>

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398 U.S. 965 (1978). Gey o.

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United States, 417

whech was repeated m

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untres the court extended the

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petitioner's eratence of

mum of three years

Section 943m.

vears.

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Ditsict Cout. Guee agin, 0

_ pout’ offender

twenty-one, oa.uunmne

provisions geobationsry contences of up to Give years would be

ingrabable. Such o crsined and contendixtery sending of cate

law seahes little eevee.

aatutery agumrats were

samen

petitioner was on probation m

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» the of bederal District Court relief. each embagu

ties enuet be seasived in the petitionsr's fever. —

B. Even if potitioncr was act technically “in custody” in

1969. the bread of the Geest Weit sequise

that he be allowed a federal forum to contest his conviction.

The dynomic asture of the semedy of habeas cospus hes -

been noted ‘wy this Court on aumerous occasions. Ser.eg.. Fey

v. can S8S OR: Ghd elie the aetnonmenelyae

petitioner is entitled to invoke th. writ'’s bror 4 mandate.

First, this is the final eg: ode of, in effect, 2 angle organic

lawsuit which commenced sx years ago when thr vire-princapal

placed his hand im petitioner's jacket

ment. has dihgentty

the state and federal courts. including a successful.

been long—parthy because of the inevitable drisys m our court

processes and partly becawer of the requerement that he exhaust

state cemedies. He drould not be thwarted now. . . .~ Carafes v.

le Ring SOR the Guin Sone Sa

to have 2 federal court poss upon his Amendment

clases.

4. New York pen acne me eer oneet elliot agate

probation may net on the case of a child extend bry ond he me”

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UNITED STATES COURT OF APPEALS

Second Cizcust

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Clerk

HON, HENRY J, PRIENDLY

Cireuit Judges

A. DANIEL FUSARO

HON, JOHN A, DANAHER

HON, PAUL R, HAYS

BEFORE:

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RAYMOND C. RIEGER, Director of the Department of

Probation of the County of Westchester,

Respondent. Appellee.

A petition for # rehearing having been filed herein by

counsel for the appellant. |

Upon consideration thereof, it is Ordered that mand

petition be and it hereby is denied,

JOUN A, DANAHER

HENRY J. FRIENDLY

PACT R. HAYS

RAYMOND C. RIEGER, Director of the Department of

Probation of the County of Westchester,

IRVING BEN COOPER, DJ.

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| The handuricon notation by Judge John P. Grifth reads:

5/31/66, Appellate Term reversed and information dismised on

5/20/66, Def. discharged.” :

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School and it was his duty Beh cgpPagen ys

tions which were in existence, As we earlier observed, "this

right becomes a duty when suspicion arises,” Dr, Panity

of

expressed his awareness of the duties of his position when he

tentifiod that: a for the order, assignment,

und maintenance of ysical facilities, if any report were

given to me by anyone of an article or item of the nature

that does not belong there, or of an illegal nature, | would

inspect the locker,” Av the designated representative of the

people of Mount Vernon, Dr, Panits opened the locker, which

war certainly not the private property of the defendant, in

fulfillment of the trust and responsibility given him by the

vity resident» through the Board of Education, Coercion is

wbonent inv thin — having been displaced by the perform:

ance of a delegated duty, While we did state in our prior

opinion that Dr, Panite was empowered to consent to the

warch, in retrospect, it should be noted that this consent was

equated to a nondelegable duty, which had to be performed

to suntainn the je trust, Contrasting the facts in this case

with those in Bumper, it does not require extensive analysis

to conclude that the “situation instinet with coercion” whieh

characterized the plight of Bumper's 66-year-old grandmother

cannot be discerned where we find « public official perform:

ing » delegated duty by permitting an inspection of public

ee. In mom, the factual dinparities render the decision in

mper inapplicable,

Aveordingly, upon reargument, we should adhere to this

court's original decision of July 7, 1967 reversing the order of

Appellate Terms, |

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bed search warrant which played » part in the resulting

Even, on our own independent evaluation of Bumper,

we might think it quite distinguishable from the present

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SCILEPPI, KEATING and JASEN, JJ., coneur with

BURKE, J. °

BERGAN, J., dissents and votes to affirm in @ separate

opinion in which FULD, C.J., concurs,

BREITEL, J., dissents and votes to» affirm solely on

constraint of Bumper v. North Carolina (391 U.S, 543)...

Overton v. New York, 393 U.S, 65 (1968)

PER CURIAM,

The petition for a writ of certiorari is granted, The

of the Term of the Supreme Court of

w York is v , and the case is remanded for further

consideration in the light of Bumper v, North Caroline, 391

U.S, 543 (1968),

MR, JUSTICE BLACK diments and would affirm the

judgment of vonvietion here.

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t does not belong there, |

t the locker,” (Italics

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8 The power of Dr, Panits to give his consent to this

weurch aries out of the distinct relationship between school

wutheritien und wtudente,

The shoot authorities have an obligation to maintain

dine over the students, It is recognized that when large

» of teenagers are gathered together in such an envi:

: often ereate to each other, Parents, who surrender

their children to this type of environment, in order that they

may continue developing both iy tually and socially, have

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BERGAN, J., dissents and votes to affi¢m in

in which FULD, C.J., concurs,

Li

2d 143 (1966)

v, Overton, 51 Mise, 2d 140,

People

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FANELLI, J., not voting

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