PEOPLE
v.
WARD
Docket No. 19899.
Michigan Court of Appeals.
Decided June 10, 1975.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Ronald P. Weitzman, Assistant Prosecuting Attorney, for the people.
Ellen C. Wallaert, for defendant.
Before: R.B. BURNS, P.J., and T.M. BURNS and R.M. MAHER, JJ.
Leave to appeal denied; 395 Mich. 767.
R.M. MAHER, J.
Defendant was found guilty by *48 a judge, sitting without a jury, of knowingly or intentionally possessing lysergic acid diethylamide (LSD). MCLA 335.341(4)(c); MSA 18.1070(41)(4)(c). Defendant was placed on 2 years probation and appeals.
Although the record is somewhat inconsistent, it appears that a teacher at Western High School in Detroit informed defendant's guidance counselor that he had seen defendant selling and passing pills in school on a number of occasions. Defendant's counselor, in turn, reported this to the school's principal the following afternoon. The principal attempted to locate defendant but he had already left school for the day. The following morning, defendant was called into the principal's office. Present with defendant were the principal, an assistant principal, defendant's counselor, the coordinator of student activities and a security guard employed by the board of education.
Defendant was asked by the principal whether he bought or sold any drugs in school. Defendant denied ever using drugs or ever bringing drugs to school. Defendant was then asked to empty his pockets and when he hesitated, the principal threatened defendant with a personal search. Defendant then produced a bottle of pills from his pocket. The principal called the police and defendant was arrested.
Prior to trial, defendant moved to suppress the pills on the ground that they were the product of an unlawful search and seizure. This motion was denied. Defendant renewed his motion to suppress at trial but it was again denied.
The threshold question is whether the personal search of a student by a public high school official, without the aid of, or joint action with, state law enforcement officials, is subject to the Fourth *49 Amendment's prohibition against unreasonable searches and seizures? Evidence secured by a search and seizure in violation of the Fourth Amendment of the Federal constitution is, through the operation of the due process clause of the Fourteenth Amendment, inadmissible in a state court. Mapp v Ohio, 367 U.S. 643; 81 S. Ct. 1684; 6 L. Ed. 2d 1081; 84 ALR2d 933 (1961). This prohibition against unreasonable searches and seizures, however, applies only to governmental action. Burdeau v McDowell, 256 U.S. 465; 41 S. Ct. 574; 65 L. Ed. 1048 (1921). Therefore, if the school administrator in this case is considered a private individual, the evidence obtained is admissible into evidence regardless of whether his actions were reasonable or unreasonable. See People v Harry James Smith, 31 Mich. App. 366; 188 NW2d 16 (1971).
The United States Supreme Court, in Goss v Lopez, 419 U.S. 565, 574; 95 S. Ct. 729, 736; 42 L. Ed. 2d 725, 734 (1975), pointed out that:
"young people do not `shed their constitutional rights at the schoolhouse door. Tinker v Des Moines Community School District, 393 U.S. 503, 506; 89 S. Ct. 733, 736; 21 L. Ed. 2d 731 (1969). `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.' West Virginia v Barnette, 319 U.S. 624, 637; 63 S. Ct. 1178, 1185; 87 L. Ed. 1628 (1943)."
In other words, "Public high school students do have substantive and procedural rights while at school." Wood v Strickland, 420 U.S. 308, 326; 95 S. Ct. 992, 1003; 43 L. Ed. 2d 214, 227 (1975) (citations omitted), and it would be inconsistent to say that a public high school principal, acting in that capacity on school property during school hours, is not a *50 state official for purposes of the Fourth Amendment. This is not to say, however, that the law of search and seizure, as applied to law enforcement agencies, is incorporated into Michigan's school system.
The Fourth Amendment to the United States Constitution and Article 1, § 11 of the Michigan Constitution prohibit unreasonable searches and seizures and provide that warrants will not issue without probable cause. Generally, a search of private property, unless consented to or authorized by a valid search warrant, is unreasonable. This warrant requirement is excused where there are exigent circumstances. See, e.g., Warden v Hayden, 387 U.S. 294; 87 S. Ct. 1642; 18 L. Ed. 2d 782 (1967) (hot pursuit). Moreover, certain conduct, such as border searches, see Almeida-Sanchez v United States, 413 U.S. 266; 93 S. Ct. 2535; 37 L. Ed. 2d 596 (1973), and "stop and frisk", see Terry v Ohio, 392 U.S. 1; 88 S. Ct. 1868; 20 L. Ed. 2d 889 (1968), has been recognized as not being subject to the warrant procedure. Such action requires less than probable cause but is still tested by the Fourth Amendment's proscription against unreasonable searches and seizures. Reasonableness is determined by "balancing the need to search against the invasion which the search entails". Camara v Municipal Court, 387 U.S. 523, 537; 87 S. Ct. 1727; 18 L. Ed. 2d 930 (1967).
School officials stand in a unique position with respect to their students. They possess many of the powers and responsibilities of parents to enable them to control conduct in their schools. See Ginsberg v New York, 390 U.S. 629, 639; 88 S. Ct. 1274; 20 L. Ed. 2d 195 (1968). At times, the powers and responsibilities regarding discipline and the maintenance of an educational atmosphere may conflict *51 with fundamental constitutional safeguards. A student cannot be subjected to unreasonable searches and seizures. On the other hand, the public interest in maintaining an effective system of education and the more immediate interest of a school official in protecting the well-being of the students entrusted to his supervision against the omnipresent dangers of drug abuse must be considered. In striking a balance, we adopt a "reasonable suspicion" standard. See In re State in Interest of G C, 121 NJ Super 108; 296 A2d 102 (1972), People v Jackson, 65 Misc. 2d 909; 319 NYS2d 731 (1971), affirmed 30 NY2d 734; 333 NYS2d 167; 284 NE2d 153 (1972), State v Baccino, 282 A2d 869 (Del Super, 1971). Could the principal in this case have reasonably suspected that defendant had drugs on his person when he required defendant to empty his pockets? We think so.
The principal in the present case was told by defendant's counselor that defendant had been seen selling pills by a teacher on a number of occasions. The principal was not able to talk to defendant until the following morning when defendant was asked about his involvement in drug-related activities and required to empty his pockets. We feel that the principal acted in a responsible and diligent manner. He was not acting arbitrarily but with "reasonable suspicion" that defendant was selling drugs in school. Defendant's right against unreasonable searches and seizures was not violated.
Although not questioned below, see MCLA 767.76; MSA 28.1016, or on appeal, the information in this case charged that defendant "unlawfully did knowingly or intentionally possess a controlled substance, to wit: twenty-eight (28) tablets containing lysergic acid diethylamide (LSD), contrary *52 to the provisions of MCLA 335.341(4)(b)". (Emphasis supplied.) That section reads:
"(4) It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this act. Any person who violates this subsection with respect to:
* * *
"(b) A controlled substance classified in schedules 1, 2, 3 or 4 except a controlled substance classified in schedule 1 for which a penalty is prescribed in subdivisions (a), (c) or (d), is guilty of a felony punishable by imprisonment for not more than 2 years or by a fine of not more than $2,000.00, or both."
Subdivision (c), referred to in the above subdivision (b), reads:
"(c) Lysergic acid diethylamide, peyote, mescaline, dimethyltryptamine, psilocyn, psilocybin or a controlled substance classified in schedule 5, is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or by a fine of not more than $1,000.00, or both."
The distinction is obvious. Violation of subdivision (b) constitutes a felony; whereas violation of subdivision (c) is a misdemeanor. The subdivision applicable to the present case is (c).
Defendant was found guilty of knowingly or intentionally possessing LSD and sentenced, on February 6, 1974, to 2 years probation. Defendant was adequately apprised of the crime with which he was charged. MCLA 767.45(1); MSA 28.985(1). The information is explicit in its allegations and the concluding reference to the section of the statute under which the charge is based is mere surplusage. People v Murn, 220 Mich. 555; 190 NW *53 666 (1922), People v Lane, 124 Mich. 271; 82 N.W. 896 (1900). Any failure to recognize that this crime was a misdemeanor and not a felony did not interfere with the fact finding process or the defense. Defendant did not contest his guilt, only the manner in which the evidence was obtained.
Furthermore, we are aware that the sentence imposed did not exceed the statutory maximum period of probation for an offense not a felony. See MCLA 771.2; MSA 28.1132. However, in order to be certain that defendant was sentenced without any confusion as to the seriousness of the crime for which he has been convicted, we remand this case to the trial court. If the trial court finds that it sentenced defendant while under the impression that defendant had committed a felony, the trial court may wish to reduce defendant's sentence. On the other hand, if the trial court knew full well that defendant had been convicted of a misdemeanor, it may wish to maintain the sentence previously imposed.
Affirmed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.