State v. Engerud

SCHREIBER, J.,

dissenting.

Rather than tying the hands of school administrators in their formidable struggle to return our schools to places of learning and development, I would permit them to take reasonable steps to enforce valid school regulations. We must not lose sight of the fact that school administrators have an obligation to all children to ensure that they receive a quality education. In fulfilling this obligation to all students, school authorities frequently have a duty to invade an individual public school student’s privacy to determine whether there have been infractions of, and to enforce, school regulations. Nonetheless, administrators do not have an unlimited right to make any intrusion they desire, for the students have a constitutional right “to be secure in their persons, houses, papers and effects against unreasonable searches and seizures .... ” (emphasis supplied).

It is important to recognize what this case is not. The Court is not faced with police seeking to make a search or seizure that may lawfully be consummated only after a warrant has been obtained upon a showing of probable cause. Indeed, it should be noted that the police need not always satisfy the standard of probable cause. “When the nature and extent of the detention are minimally intrusive of the individual’s Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause.” United States v. Place,-U.S.-,-, 103 S.Ct. 2637,2642) 77 L.Ed.2d 110, 118 (1983). See Illinois v. Lafayette,- U.S.-, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983) (probable cause is irrelevant for inventory search made when arrested person is to be incarcerated); United States v. Villamonte-Marquez,- U.S.-, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983) (customs officials boarding vessel for routine inspection of documents held reasonable though no probable cause or suspicion); Michigan v. Summers, 452 U.S. 692,101 *351S.Ct. 2587, 69 L.Ed.2d 340 (1981) (temporary detention of occupants while search of premises pursuant to a warrant is conducted is justifiable if based on articulable suspicion not amounting to probable cause); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (when made in accordance with standard procedure, not unreasonable for police to make inventory search without probable cause of automobile impounded for parking violations); United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607, 617 (1975) (“when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion”); Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968) (stop and frisk permissible if police officer has an articulable suspicion “that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous. .. .”).

The public school environment justifies a standard other than probable cause in" deciding whether a public school administrator’s investigations transgress reasonableness. Many jurisdictions have required that a search or seizure involving a public school student be predicated upon a “reasonable suspicion.” See, e.g., State in the Interest of G.C., 121 N.J.Super. 108, 117 (Cty.Ct.1972); People v. Jackson, 65 Misc.2d 909, 914, 319 N.Y.S. 2d 731, 736 (App.Term 1971), aff’d, 30 N.Y.2d 734, 284 N.E.2d 153, 333 N.Y.S.2d 167 (1972); see also, e.g, Doe v. State, 88 N.M. 347, 352, 540 P.2d 827, 832 (Ct.App.1975) (reasonable suspicion or reasonable cause to believe). This criterion has the advantage of having been applied by the Supreme Court. See United States v. Brignoni-Ponce, 422 U.S. at 882, 95 S.Ct. at 2580, 45 L.Ed.2d at 617. I do not know whether it functionally differs from the majority’s “reasonable grounds to believe.” To the extent that it requires more than a well-grounded suspicion, I would reject it. I reach that conclusion because a more strin*352gent standard is not suitable in the public school educational setting.

Attendance at public school is compulsory. N.J.S.A. 18A:38-25. The State is thereby assembling large numbers of young people in schools and has a duty to protect students from being harmed by others and by themselves. The students have a right to pursue their academic endeavors without exposure to dangers or overwhelming distractions. In other words, school authorities have a duty to maintain “a proper educational environment.” 3 W. LaFave, Search and Seizure § 10.11, at 458 (1978).

School administrators must have broad supervisory and disciplinary powers, particularly because protecting students from dangers posed by anti-social activities is directly related to the educational process.1 This goal has been supported by the Department of Education, which in its Final Report, supra note 1, at 59, states:

In order to achieve the goals of instructional programs, local boards must actively assist students and staff by assuring a safe atmosphere, free from danger and disruption and one which promotes a positive environment conducive to learning. Disruptive behavior constrains the learning process and lowers school morale at all levels. A discipline policy must hold students accountable and consequently apply remedial and preventive steps that will ensure the safety and promote the education of all pupils.

In this respect the words of Judge Keating of the New York Court of Appeals in People v. Overton, 20 N.Y.2d 360, 362, 229 N.E.2d 596, 597-98, 283 N.Y.S.2d 22, 24-25 (1967), vacated, 393 U.S. 85, 89 S.Ct. 252, 21 L.Ed.2d 218 (1968), adhered to on *353rehearing, 24 N.Y.2d 522, 249 N.E.2d 366, 301 N.Y.S.2d 479 (1969), bear repeating:

The school authorities have an obligation to maintain discipline over the students. It is recognized that, when large numbers of teenagers are gathered together in such an environment, their inexperience and lack of mature judgment can often create hazards to each other. Parents, who surrender their children to this type of environment, in order that they may continue developing both intellectually and socially, have a right to expect certain safeguards.
It is in the high school years particularly that parents are justifiably concerned that their children not become accustomed to antisocial behavior, such as the use of illegal drugs. The susceptibility to suggestion of students of high school age increases the danger. Thus, it is the affirmative obligation of the school authorities to investigate any charge that a student is using or possessing narcotics and to take appropriate steps, if the charge is substantiated.

In light of such policy considerations, the “reasonableness” of the searches in the eases before us must be measured against the nature and extent of the intrusions involved. I part company with the majority’s opinion in its assessment of the reasonableness of the school officials’ conduct in these cases under either a “reasonable grounds to believe” or a “reasonable suspicion” standard. Regardless of the standard employed these minimal invasions of a student’s privacy were a valid exercise of a school administrator’s authority.

After paying lip service to the principle that school officials have the authority to conduct reasonable searches necessary to maintain safety, order and discipline within the schools, ante at 343, the majority evaluates the conduct of the school official as if he were a policeman. If the school authorities acted properly, it is implicitly conceded that use of that evidence in a subsequent juvenile delinquency or criminal proceeding would be lawful. Our conclusion in these two cases centers on the propriety of the actions of the school administrators. No claim is made that the school officials were acting in concert with or on behalf of the police.

T.L.O.

The issue in T.L.O. is whether the assistant principal acted reasonably in opening the student’s purse. A teacher had re-

*354ported that she saw T.L.O., a 14-year-old girl, smoking in the girls’ lavatory. Smoking at that location was forbidden by school regulations. When the assistant principal questioned T.L.O. as to whether she had “been smoking in the bathroom,” T.L.O. replied that she did not smoke. The assistant principal asked for her purse and opened it. There — right on top — was a package of Marlboro cigarettes. The immediate question is, was the opening of the purse “reasonable” under these circumstances.

No one questions the validity of the school regulation. Smoking not only involves fire hazards, but also threatens the health and comfort of others. See N.J.S.A. 26:3D-18 (requiring public schools to display sign “indicating that smoking is prohibited in the building except in designated areas”); N.J.S.A. 26:3D-9 (prohibiting, with exceptions, smoking in all health care facilities); N.J.S.A. 26:3D-3 (prohibiting smoking “in every passenger elevator in every building other than a single family dwelling”). School officials undoubtedly had a right to enforce that regulation and, in doing so, to investigate infractions and identify the wrongdoer. T.L.O.’s response was not simply a denial of having smoked in the lavatory, but a claim that she did not smoke at all. Her credibility was at issue. Was the school teacher’s visual observation correct? Was T.L.O.’s denial predicated on the claim that she did not smoke at all to be believed? By denying that she smoked at all, she made the truth of that assertion at least relevant, and perhaps dispositive, of the accuracy of the teacher’s allegation. Was it reasonable simply to open the purse without searching or rummaging through it? There the cigarettes sat on top, plainly visible. The existence of the cigarettes under these circumstances was directly related to the assistant principal’s investigation. Once the cigarettes were found he was assured that T.L.O. had not been truthful and had probably violated the school regulation. When balancing the intrusiveness of searches such as opening the purse to see the immediately visible contents, with the broad supervisory authority of the school administrator to enforce a policy prohibiting *355smoking, a policy grounded in safety and health, the assistant principal was not only warranted, but also might well have been derelict had he not acted as he did.

Once the cigarettes were removed, the drug paraphernalia were in plain view, as the trial court found. Thereafter the assistant principal was justified in continuing his search to determine the extent of that violation.

ENGERUD

Joseph Abate, vice-principal of Somerville High School, had heard, six months to a year before the incident giving rise to this case, that Jeffrey Engerud, a student at the high school, had been dealing in illegal drugs. Thereafter on one or two other occasions he heard rumors to the same effect. Michael Crisci, principal of the high school, had also heard that Engerud was involved with drugs. On January 29, 1980 the police advised Mr. Abate that they had received a phone call from the father of a student charging Engerud with selling drugs at the high school and threatening to take matters into his own hands if the police did not stop it.

Mr. Abate, Mr. Crisci and Mr. Carpenter, an assistant principal, discussed the matter. Mr. Crisci decided that it was “reasonable” under these circumstances to search Engerud’s locker to see if anything might be there. That belief being well-founded, the search should be sustained. In upholding a search of a student’s locker in People v. Overton, the court commented:

Indeed, it is doubtful if a school would be properly discharging its duty of supervision over the students, if it failed to retain control over the lockers. Not only have the school authorities a right to inspect but this right becomes a duty when suspicion arises that something of an illegal nature may be secreted there. [20 N.Y.2d at 363, 229 N.E.2d at 598, 283 N.Y.S.2d at 25]

Furthermore, Mr. Crisci had a passkey that could open any locker, a fact of which the students were aware. The student’s expectation of privacy in the locker must assuredly have been diminished. A student had the right to exclude other students, but not school authorities who might reasonably be expected to *356inspect the locker upon reasonable belief or suspicion that contraband was hidden there.2

Various rumors that came to the attention of the authorities at different times, coupled with the telephone call of an irate parent, certainly justified the school authorities in taking action.3 No matter what standard is applied — reasonable grounds to believe or a reasonable suspicion that Engerud was dealing in goods — the opening by the school principal of the locker, to which he had a key, cannot be said to have been an undue intrusion of Engerud’s right of privacy in the locker.

As a matter of policy I would encourage school administrators to investigate violations of rules and regulations designed for the welfare of the student body. A similar position was expressed by the Sixth Essex County Grand Jury, investigating drug abuse among school age children in Essex County, which concluded:

We must face up to the fact that, because of its very nature, the school is the natural focal point for bad as well as good. Administrators must recognize that drugs are being used in their schools. Society must understand that the first *357step in eradicating the problem is to recognize its existence. School officials who recognize the problem of drag abuse and implement steps to cure the problem must be applauded. Their efforts must be met with understanding and sympathy by the community they are serving. [Presentment of Sixth Essex County Grand Jury for the 1978 Term 21 (1979) (emphasis added) ]

Today this Court has substituted its judgment as to what constitutes reasonableness for the judgments of those who are charged with the responsibility for school discipline and supervision, as well as for those of the two trial judges. I would prefer to support public school administrators rather than frustrate their efforts to overcome what has become an overwhelming problem.

I would uphold both searches and affirm the judgments.

Justice GARIBALDI joins in this opinion.

For reversal — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK and O’HERN — 5.

For affirmance — Justices SCHREIBER and GARIBALDI — 2.

The extent and nature of the problems in our schools are well documented. In July 1982, the Division of Research, Planning and Evaluation of the Department of Education published its Final Report required by N.J.S.A. 18A:4-29.1, repealed and supplemented by N.J.S.A. 18A:17-46. Between July 1, 1979 and June 30, 1981, school districts reported 21,721 incidents of violence, vandalism, drug abuse or any combination of these three. Final Report on the Statewide Assessment of Incidents of Violence, Vandalism and Drug Abuse in the Public Schools 2,4, 5 (July 1982) [hereinafter cited as Final Report ]. This staggering total may well understate the actual figures due to under-reporting. Id. at 2.

The majority emphasizes a student’s expectation of privacy in a locker by characterizing it as a “home away from home.” Ante at 348. Needless to say, the record in this case does not support that assertion. It would be well for school authorities to dispel any such notion of privacy by notifying students that their lockers are subject to inspections by the school principal or vice-principal when he has a reasonable suspicion that a search is justifiable to insure compliance with school regulations. 3 W. LaFave, Search and Seizure § 10.11, at 463 & n. 54 (1978).

The fact that the caller did not give his name does not negate a reasonable belief or suspicion in view of the several rumors that had come to the attention of the authorities. Cf. Illinois v. Gates,- U.S. -,-, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527, 543-44 (1983) (information from an anonymous informant is to be viewed in totality of circumstances to determine existence of probable cause). The majority’s reliance upon Aquiiar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and other cases relating to probable cause is misplaced. The majority by its own terms would require “reasonable grounds to believe,” not probable cause, in public school searches. Evidential prerequisites for a reasonable belief or suspicion in a non-criminal matter differ from those necessary to infer probable cause in police enforcement.