# Petition for A Writ of Certiorari — Overton v. Rieger

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for A Writ of Certiorari
- **Published:** January 1, 1971
- **Citation:** 401 U.S. 1003

## Text

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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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petitioner's eratence of
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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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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, |

nap aU GE AY GE

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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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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

273 N.Y.S,

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FANELLI, J., not voting

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0661%3A1. Public record. Not legal advice.