dissenting.
The Court today denies a public school student his right to suppress evidence obtained by the government through an unconstitutional search and seizure. This is a right accorded to all Georgia citizens, and I therefore *500think this right cannot be denied to a student in Georgia’s public school system. I agree with the decision of the Georgia Court of Appeals when it decided this case and said: “Therefore, we hold that when a student is searched by a school official which results in criminal prosecution the student must have been afforded the Fourth Amendment rights accorded to every other citizen.” Young v. State, 132 Ga. App. 790, 791.
I dissent and would affirm the judgment of the Court of Appeals.
The Fourth Amendment stands as a bulwark between the government and a citizen. It means that the government, federal or state or local, which can act only through its agents-employees, cannot invade the person of a citizen by conducting an “unreasonable search and seizure.” The Fourth Amendment, as well as its equivalent in the Georgia Constitution, reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; ...”
In Camara v. Municipal Court, 387 U. S. 523 (1967), the Supreme Court of the United States held that the Fourth Amendment was applicable to a municipal housing inspector. Mr. Justice White, the author of the Court’s opinion in that case, said: "The basic purpose of this Amendment, as recognized in countless decisions of this court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”P. 528. At p. 534 he said: "In summary, we hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment,. . .” And at p. 539 he said that the approach taken by the court in that case "best fulfills the historic purpose behind the constitutional right to be free from unreasonable government invasions of privacy.”
In See v. City of Seattle, 387 U. S. 541 (1967), the Supreme Court of the United States held the prohibition of the Fourth Amendment applicable to a representative of the City of Seattle Fire Department. The See case and the Camara case were decided on the same date, June 5, 1967.
In a case decided somewhat earlier, West Virginia *501Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), the Supreme Court of the United States said (p. 637): "The Fourteenth Amendment, as now applied to the States, protects the citizen against the state itself and all of its creatures — boards of education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”
School administrators are considered government officials for purposes of the First Amendment and procedural due process requirements. See Tinker v. Des Moines &c. School District, 393 U. S. 503 (1969); Goss v. Lopez, 43 USLW 4181 (January 22, 1975). And it is now clearly established that a minor, whether a public school student or not, is a person under our Constitution and entitled to its protections. See Tinker and Goss, supra, and In Re Gault, 387 U. S. 1 (1967).
In Georgia, an assistant school principal is clearly an agent-employee of the state or local government. He is therefore subject to the proscriptions of the Fourth Amendment, and a public school student is a person entitled to the benefits of the Fourth Amendment.
I.
The Constitutional Right To Suppression.
It must be noted in the beginning that though the majority and I discuss the same subject-matter, we use different descriptive terms. The majority calls what we are talking about the "Exclusionary Rule”; I call it the "Constitutional Right to Suppression.” The difference in these two descriptive phrases points up the basic, substantive difference in the viewpoint of the majority and my viewpoint on this subject.
I was a practicing lawyer in 1961 when the Supreme Court of the United States decided the landmark case of Mapp v. Ohio, 367 U. S. 643 (81 SC 1684, 6 LE2d 1081, 84 ALR2d 933). I was convinced then, as I am now, that Mapp held that the Constitution conferred a constitutional *502right of suppression upon the victim of an unconstitutional seizure who was being criminally prosecuted in a state court.
The plurality opinion in Mapp discussed Boyd v. United States, 116 U. S. 616 (1886), Weeks v. United States, 232 U. S. 383 (1914), and quoted from Olmstead v. United States, 277 U. S. 438 (1928). Referring to the Boyd case the Mapp plurality opinion said: "Concluding, the court specifically referred to the use of the evidence there seized as 'unconstitutional.’ ” P. 647. In referring to the Weeks case the Mapp plurality opinion said: "Thus, in the year 1914, in the Weeks case, this court 'for the first time’ held that 'in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure.’ ” P. 648. The Mapp plurality opinion quoted from Olmstead: "The striking outcome of the Weeks case and those which followed it was the sweeping declaration that the Fourth Amendment, although not referring to or limiting the use of evidence in courts, really forbade its introduction if obtained by government officers through a violation of the Amendment.” P. 649.
Mapp then held: "Today we once again examine Wolfs documentation of the right to privacy free from unreasonable state intrusion, and, after its dozen years on our books, are led by it to close the only courtroom door remaining open to evidence secured by official lawlessness and flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.” Pp. 654, 655.
Then at p. 660 the Mapp plurality opinion said: "Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the states, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police *503officer who, in the name of law enforcement itself, chooses to suspend its enjoyment.”
Four Justices joined the Mapp plurality opinion, but a fifth Justice, Mr. Justice Black, plainly held in his concurrence that the Constitution required the rejection of the unconstitutionally seized evidence. Mr. Justice Black said that the evidence must be rejected on the basis of the Fourth and Fifth Amendments, the Boyd doctrine. Concluding his concurring opinion, he said: "The court’s opinion, in my judgment, dissipates the doubt and uncertainty in this field of constitutional law and I am persuaded, for this and other reasons stated, to depart from my prior views, to accept the Boyd doctrine as controlling in this state case and to join the court’s judgment and opinion which are in accordance with that constitutional doctrine.” P. 666.
Mr. Justice Stewart concurred in the judgment of reversal effected by the plurality opinion and the concurring opinion of Mr. Justice Black, but he said: "I express no view as to the merits of the constitutional issue which the court today decides.” P. 672. His vote for reversal of the state court judgment was predicated on substantive due process required by the Fourteenth Amendment.
Mr. Justice Harlan dissented, joined by Mr. Justice Frankfurter and Mr. Justice Whitaker. But in his dissenting opinion, Mr. Justice Harlan acknowledged that the reversal of the state court judgment by the plurality of four and Mr. Justice Black "derives not from the 'supervisory power’ of this court over the federal judicial system, but from constitutional requirement. This is so because no one, I suppose, would suggest that this Court possesses any general supervisory power over the state courts.” P. 678.
Therefore, it seems to me that all nine members of the court acknowledged that the Mapp decision was dictated "by Constitutional requirement.” And if the Constitution requires the rejection of illegally seized evidence in a state criminal prosecution, the prosecuted party, if he was the victim of the unconstitutional seizure, has a right to invoke the Mapp "constitutional requirement.”
I realize that the opponents of the "constitutional *504right to suppression” declared by Mapp have, ever since the rendition of that declaration, attempted to belittle the constitutional right by calling it an evidentiary rule of exclusion enforced by the courts for deterrent purposes, or a suppression doctrine, or a rule that is judicially implied and applied. These efforts totally ignore the fact that in Mapp five Justices held that the Constitution required suppression. And it is my view that to abolish the Mapp "constitutional requirement,” Mapp must be overruled.
Chief Justice Burger in his dissenting opinion in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), said: "The exclusionary rule has also been justified on the theory that the relationship between the Self-Incrimination Clause of the Fifth Amendment and the Fourth Amendment requires the suppression of evidence seized in violation of the latter. [Cits.] Even ignoring, however, the decisions of this court that have held that the Fifth Amendment applies only to 'testimoniar disclosures, United States v. Wade, 388 U. S. 218, 221-223 (1967); Schmerber v. California, 384 U. S. 757, 764 and n. 8 (1966), it seems clear that the Self-Incrimination Clause does not protect a person from the seizure of evidence that is incriminating.” P. 414. This argument completely ignores the fact that Mr. Justice Black, the tipper of the constitutional scale in Mapp, dissented in both Wade and Schmerber, his position being that the evidence procured in those two cases was both "testimonial” and "communicative” evidence. Wade at p. 245 (opinion of Black, J.). This argument also ignores the fact that Mr. Justice Black’s position was: "The Fifth Amendment in and of itself directly and explicitly commands its own exclusionary rule — a defendant cannot be compelled to give evidence against himself.” Cooledge v. New Hampshire, 403 U. S. 443, 498 (opinion of Black, J.).
Also, the Chief Justice in his Bivens dissent indicated that in order to abandon what he calls the "suppression doctrine” it would be necessary for the court to overrule Weeks and Mapp. And it is clear that he, at that time, did not propose to do so. He said: "To overrule Weeks and Mapp, even assuming the court was now prepared to take that step, could raise yet new problems.” *505Bivens, pp. 420, 421 (Burger, C. J., dissenting).
Mr. Justice Harlan, also an opponent of the "constitutional requirement” declaration of Mapp, indicated in his concurring opinion in Cooledge v. New Hampshire, 403 U. S. 443 (1971), that to overhaul the law of search and seizure it would be necessary to overrule Mapp. He said: "I would begin this process of reevaluation by overruling Mapp v. Ohio, 367 U. S. 643 (1961), and Ker v. California, 374 U. S. 23 (1963).” P. 490.
United States v. Calandra, 414 U. S. 338 (1974), was a grand jury case, not a criminal prosecution against the. victim of an unconstitutional seizure. Calandra did not overrule Mapp. Mr. Justice Powell, the author of Calandra seems to me to have said that what he calls the "exclusionary rule” would not be extended to a grand jury investigation, but that it would be maintained and enforced in a federal or state criminal prosecution against the victim of the unconstitutional seizure. I must confess that I am at a loss to understand how the Supreme Court of the United States can promulgate and enforce a rule of evidence in the judicial systems of the fifty states. I do not understand that the Supreme Court has "supervisory power” over the state judicial systems that it does over the lower federal courts. And neither do I understand how a quasi-constitutional rule of deterrence can be promulgated by the Supreme Court and enforced in the courts of the fifty states. If the Supreme Court of the United States has that power, our federal system, as we have heretofore known it, has been drastically altered, and we now have a unitary system in which the United States Supreme Court can utter and enforce evidentiary rules or deterrent policies of admission or exclusion.
In Ker v. California, 374 U. S. 23, 31, the Supreme Court of the United States said: "Mapp, however, established no assumption by this court of supervisory authority over state courts.” If Mapp did not establish an evidentiary rule of exclusion, what did it do? My answer is that Mapp enforced a right of suppression accorded to a seizure-victim by the Constitution.
Mapp has not yet been overruled. I think it held that the Constitution conferred a right of suppression upon the victim of an unconstitutional seizure being criminally *506prosecuted in a state court. My position on this subject is approved, affirmed, buttressed, and improved upon by one of the finest efforts of legal scholarship that I have ever encountered. See Schrock and Welsh, "Up from Calandra: The Exclusionary Rule as a Constitutional Requirement,” 59 Minn. L. Rev. 251 (December, 1974).
I would hold that this high school student, the respondent here, had a constitutional right to suppress the evidence seized from him in an unconstitutional manner by the school official.
II.
Georgia’s Statutory Right to Suppression.
I further maintain that Georgia has accorded all of its citizens a statutory right to the suppression of unconstitutionally seized evidence if the seizure-victim is being criminally prosecuted by the State. In 1966 the Georgia Legislature enacted a statute entitled "Criminal Procedure — Searches and Seizures.” The caption of this Act stated: "An Act to provide procedures for searches and seizures and for suppression of evidence illegally seized; to provide the procedure connected therewith; to repeal Chapter 27-3 of the Code of Georgia relating to search warrants; to repeal conflicting laws; and for other purposes.” Ga. L. 1966, p. 567.
Sec. 13 of that Act provided that a defendant aggrieved by an unlawful search and seizure could make a motion to suppress the items that he contended to have been illegally seized. It provided that the trial judge should hear evidence to determine the motion; it provided that the burden of proving that the search and seizure were lawful is on the State; and it further provided that if the trial judge granted the motion, the seized items would "not be admissible in evidence against the movant in any trial.”
This statute accorded a seizure-victim a right of judicial review and a right of suppression. It acknowledged that the right to a "fair prosecution” by the State is an integral part of a "fair trial” conducted by the State. It further recognized that the retention by the State and the prosecutorial use by the State of items that had been originally seized in an unconstitutional manner were a continuing violation of the original constitutional *507infraction.
The majority says that this statute has no application in this case because it applies only to "searches and seizures made by peace officers.” I say that this statute establishes the criminal procedure to be used in the Georgia criminal courts, and that it is applicable to all agents of the State, whether they be peace officers, school officials, or municipal fire or public health inspectors.
In short, I think that the majority has watered down a statutory, procedural and substantive right to suppression accorded to all seizure-victims prosecuted criminally by the State.
III.
The Standard of Reasonableness to be Applied in the Public School System.
The majority concedes that "probable cause,” the standard applicable in searches of citizens by law enforcement officers, did not exist for the search of the student in this case. The analysis of the majority also suggests that the search of a student in a public school by a law enforcement officer without "probable cause” would result in suppression of the evidence even under an evidentiary rule of exclusion. The "probable cause” standard is applicable to the police search but not to the search by the school official.
The majority asserts that searches of students in public schools by school officials "are reasonable under the Fourth Amendment on considerably less than probable cause. We conclude that in the good faith exercise of their public trust teachers and administrators must be allowed to search without hindrance or delay subject only to the most minimal restraints necessary to insure that students are not whimsically stripped of personal privacy and subjected to petty tyranny.”
My view, of course, is that there must be "probable cause” for the search of a student in a public school by a school official, and such a search without "probable cause” violates the Fourth Amendment rights of a student as a citizen. A student, in my view, cannot be stripped of his Fourth Amendment rights at the entrance to the public school. Nor do I think that the Fourth Amendment rights *508of a high school student are a diluted version of the Fourth Amendment rights of an adult.
There can be no doubt that the need for order and discipline in a public school is a valid concern; but it must be conceded that the maintenance of order and discipline in a public school is one thing, and the acknowledgement and enforcement of constitutional rights in a criminal prosecution is an entirely different thing. This case has nothing to do with the maintenance of school discipline; the State is prosecuting a student for having committed an alleged crime; the student is entitled to a "fair prosecution” which is an integral part of a "fair trial”; if an adult had been searched by a government official in the manner that this student was searched, the adult would have, as the majority concedes, a right to suppress any item seized; the adult is entitled to a fair prosecution as an integral part of a fair trial, but a student is not; and all of this adds up to making a public school student a second-class citizen not entitled to a fair prosecution by the State in a fair trial conducted by the State.
In the context of criminal prosecutions where Fourth Amendment rights must be acknowledged and enforced, I would hold that the standard of reasonableness for the search of a public school student is the same standard that must be applied to searches of adults, "probable cause.”
I do not think that students have mere "minimal Fourth Amendment rights.” And I certainly do not subscribe to the "adequate reason for the searches” enunciated by the majority in this case. As quoted from the majority opinion, the acts of the students in this case involved at most "a furtive gesture and an obvious consciousness of guilt by these students at the approach of the assistant principal.” In fact, the record shows only that one of three students jumped up and put his hand down his pants. All three were searched. The record does not show whether the student in the present case was the one who jumped up. The majority’s standard, subjectively applied by a school official, will justify the search of the person of any student in a public school. Such a standard is really no standard at all.
The majority has arrived at its standard by a general balancing test. The majority has placed upon the scales *509the age of the student, the status of the student, the status of the administrator, the fact that the search occurred in the schoolhouse, and the "governmental interests of discipline, security, and enablement of the education function.” But why each of these considerations is relevant for purposes of the Fourth Amendment and what weight each brings to the scales remain unclear.
For example, the majority stresses the age of the student, citing Ginsburg v. New York for the general proposition that children have lesser constitutional rights than adults. It may be that in some First Amendment contexts the age of a person is relevant to the constitutional balance. Yet nobody has suggested that a high school student standing on the street has less freedom from governmental intrusions upon his privacy than an adult standing beside him. The relevance of age to Fourth Amendment problems is hard to perceive. Similarly, the fact that the search occurred in the schoolhouse cannot bring much weight to the scales if police in the schoolhouse are held to full warrant and probable cause requirements; and the courts addressing this issue here have so held. Piazzola v. Watkins, 442 F2d 284 (5th Cir. 1971); Waters v. United States, 311 A2d 835 (DC App. 1973); People v. Bowers, 72 Misc. 2d 800 (339 NYS2d 783) (NYC Crim Ct. 1973) affd. 77 Misc. 2d 697 (356 NYS2d 432) (App. Div. 1974).
What then are the relevant considerations? As the majority states, it is necessary first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interest of the private citizen. Most searches are made in vindication of the State’s interest in enforcing the criminal law, which includes, of course, an interest in protecting law abiding citizens from lawless ones. Ordinarily, a lower standard than probable cause is justified only when some additional interest is involved. Even then, the nature and extent of the governmental intrusion must be considered as well as the necessity for the particular form of intrusion. If the governmental interests can be served by a limited intrusion, then the Fourth Amendment permits only the limited intrusion. Terry v. Ohio, 392 U. S. 1 (1968); Camara v. Municipal Court, supra; United States v. *510Skipwith, 482 F2d 1272 (5th Cir. 1973).
The reasoning of the majority places no limits on the nature and extent of the search a school official may make, as long as the search is justified in the first instance under the majority’s "minimal standard.” Furthermore, the facts of the case do not show a limited intrusion of the kind associated with the relaxed standards of reasonableness in Camara and Terry. The search here was personal in nature and aimed at the discovery of evidence of specific misconduct. See Camara, 387 U. S. p. 537. Compare Sibron v. New York, 392 U. S. 40 (1968), where emptying a suspect’s pocket was not justified by the same considerations which justified a pat-down search in Terry.
The governmental considerations said to be in issue are not very convincing in the context of this case. The facts give not the slightest hint of any threat to "the enablement of the education function” in the conduct of the students before the search. If we are to restrict a student’s privacy in his own person in the name of education, let us do so on a record which provides evidence of potential disruption or disorder. There is none here. Compare Tinker v. Des Moines School District, supra, 393 U. S., p. 511. Furthermore, in the context of the present case, the government’s interest in discipline and security is indistinguishable from the general law enforcement interest. See Buss, "The Fourth Amendment and Searches of Students in Public Schools,” 59 Iowa L. Rev. 739 (1974).
What of the special status of the school official? Most courts ruling on schoolhouse searches have stressed this factor, noting that at common law school officials are said to stand in loco parentis. The majority here correctly avoids reliance on common law maxims, although much of the reasoning has the same familiar ring. It cannot be doubted that a school official occupies a status different from a police officer for many purposes. But the school official also has essentially law enforcement responsibilities. When he acts upon a suspicion of specific misconduct and conducts an investigation he is performing a law enforcement function. "What so many of the courts persist in talking about as a parental *511relationship between school and the student is really a law enforcement 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. Besides presenting a false picture of a person acting in a parental fashion, casting the school administrator in the parental role diverts attention from the relevant considerations that might argue for or against permitting the search.” Buss, supra, at p. 768.
The schoolhouse search presents a unique situation. The question is whether its unique aspects reduce high school students to second-class citizens under the Fourth Amendment. I have examined what the case law establishes as the primary considerations under the F ourth Amendment and have tried to examine the facts of this particular case in the light of those considerations. I conclude that a school official performing a law enforcement function, conducted a search of the person. I find no basis on this record for relieving the official of the probable cause requirement. Furthermore, I conclude that a search of three students after one of them jumps up and puts his hand down his pants is unreasonable.
Underlying the position of the majority in this case is a concern about the potential civil liability of school officials for violations of Fourth Amendment rights. The answer to that problem is not to apply a watered-down Fourth Amendment standard in criminal prosecutions but to recognize a qualified immunity for school officials in civil actions. The Supreme Court has recently done just that. Wood v. Strickland, — U. S. — (95 SC —, 43 LE2d 214). (1975). The effect of the present decision is to combine that qualified immunity with a "minimal standard” of reasonableness and an abandonment of the right to suppress evidence. The result is that there is no effective judicial sanction for violations of a high school student’s Fourth Amendment rights by a school official.
Conclusion.
The public school student in this case was, in my opinion, the victim of an unconstitutional search and seizure. I think that he had a constitutional right to suppress any item seized, and I further think that he had a statutory right, conferred by the Georgia Legislature, to *512suppress any item seized.
The Georgia Court of Appeals ruled in favor of his right to suppression, and I would affirm the judgment.
I respectfully dissent.