Defendant-appellant was adjudicated a youthful offender upon his plea of guilty to attempted criminal possession of a dangerous drug in the sixth degree (Penal Law, §§ 110.00, 220.05). He was sentenced to 90 days’ imprisonment.
Defendant, a 17-year-old high school student, contends that drugs taken by a teаcher from his wallet when he was searched in the principal’s office were obtained illegally. The teacher was also the school co-ordinator of security.
The adjudication should be vacated and the complaint dismissed. High school students are protected from unreasonable searches and seizures, even in the school, by employees of the State whether they be police officers or school teachers. Moreover, the previous equivocal conduct of defendant and the imprecise nature of the information allegedly provided by a “ confidential source ” were insufficient to warrant the search and seizure.
Defendant was observed by a teacher, twice during the same morning within one hour, entering a toilet room in the school with a fellow student and both exiting within 5 to 10 seconds. One of the fellоw students re-entered the toilet room and remained there for some time. These occurrences were reported by one teacher as ‘ ‘ unusual behavior ’ ’ to another teacher serving as co-ordinator of school security. Defendant had been under observation for six months for “ possible dealing with drugs, based on information received from confidential sources ”. During this period he had been once observed having lunch with another student also under suspicion. The security co-ordinator informed the principal of the reported “ unusual behavior ” аnd
Defendant’s motion to suppress the evidence obtained in the search was denied and he thereafter pleaded guilty and was adjudicated a youthful offender. The Appellate Term affirmed the denial of the motion to suppress and the adjudication of defendant as a youthful offender.
Public school authorities have special responsibilities, and therefore correspondingly broad powers, to control the school precincts in order to protect the students in their charge (see, e.g., Education Law, § 912-a, subd. 1; § 3214, subd. 3, par. a). The obligation to maintain discipline and provide security derives from State law and is delegated by local boards of education (see, e.g., Education Law, § 1604, subd. 9; § 1709, subd. 2; § 2590-e, subd. 8; § 3214, subd. 3, par. b). In exercising their authority and performing their duties, public school teachers act not as private individuals but perforce as agents of the State (see People v. Overton, 24 N Y 2d 522, 525-526; cf. Education Law, §§ 3028, 3028-a; see, generally, Ann., Searches By School Officials—Validity,
To the extent that public school teachers are responsible for the education, discipline and sеcurity of their charges, they are, to a degree like parents. It is not true, however, that school teachers possess all the parental prerogatives. For example, public school teachers, unlike parents, are limited, if not precluded entirely, by the First Amendment аnd the State Constitution in the type of “ religious ” or “ political ” activity in which students may be required to participate (Engel v. Vitale,
On the other hand, particular conditions change the basis for. probable cause and therefore the standard of reasonableness of searches and sеizures under constitutional limitations. A school is a special kind of place in which serious and dangerous wrongdoing is intolerable. Youngsters in a school, for their own sake, as well as that of their age peers in the school, may not be treated
That the primary purpose of school searches may be to protect the school environment, and not to secure a criminal con? viction supports the analysis just made but does not permit rаndom causeless searches. Thus, the ban against unreasonable searches and seizures is applicable in situations involving “ administrative ” action as well as criminal proceedings (Camara v. Municipal Ct.,
People v. Overton (24 N Y 2d 522, supra) is not to the contrary. The Overton decision upheld a search of a high school student’s locker predicated upon the consent of the school’s principal. The facts there indicated that the student had no reasonable expectation of privacy in a locker over which the school authorities had retained extensive control. This reаsoning has no application and is unpersuasive with respect to a student’s person.
The ultimate issue is one often faced in the law: the balancing of basic personal rights against urgent social necessities, a balancing always fraught with difficulty, strain, and niceness of distinctions. Given the special responsibility of school teachers in the control of the school precincts and the grave threat, even lethal threat, of drug abusе among school children, the basis for finding sufficient cause for a school search will be less than that required outside the school precincts (cf. Terry v. Ohio,
Such courts as have had occasion to pass upon the degree of cause required to justify a school search have all agreed that constitutional limitations are involved, except for those eases which have held that school teachers are рrivate persons not subject to constitutional limitations or to the exclusionary rule. They
Among the factors to be considered in determining the sufficiency of cause to search а student are the child’s age, history and record in the school, the prevalence and seriousness of the problem in the school to which the search was directed, and, of course, the exigency to make the search without delay.
Quite material would be the observation оf the student to be searched, over a sufficient period, whether hours, days or longer, which suggests, at least, more than an equivocal suspicion, that he is engaged in dangerous activities. The two brief excursions into the toilet room in this case were equivocal and could be more likely explained by all sorts of innocent activities, especially where youngesters are involved (compare People v. Jackson,
Indicative of the slender basis upon which the search was sustained by the suppression court is the ambivalent finding: “ Suspicion may become by the conduct of the defendant probable cause, but the circumstances in this case were such as to invite an inquiring mind to stipulate on the unusual conduct of the defendant. The [teachers’] interest in what the defendant may have been doing was a manifestation of performing their duties as [teachers]. Any information received by them was sufficient to give rise to probable cause.” Analytically, the
Much more useful, although not essential and perhaps not еnough to support a search outside the school precincts, would have been observations of defendant making contact with outside suspect sources. The added observation of defendant having lunch with another student “ also suspected ” of dealing with drugs is all but meaningless, beсause contact among students in the school would be so likely and so susceptible of innocent explanation (cf. Spinelli v. United States,
If there were sufficient basis for a school search, and the' glassine envelopes were found in defendant’s wallet, the further indignity of a strip search was warranted, to make sure that defendant did not possess a still larger supply of drugs and to establish the role he played in carrying the drugs. That the sеarch was conducted in the presence of witnesses, although adding to the indignity, was likewise warranted both to provide corroboration of the findings and to prevent or counteract false claims of the contraband having been planted on the person searched.
The issue may not be left without emphasizing that although the necessities for a public school search may be greater than for one outside the school, the psychological damage that would be risked on sensitive children by random search insufficiently, justified by the necessities is not tolеrable. And it must also be emphasized that the scope of permissible search and, for that matter, the scope of undue risk of psychological harm, will vary significantly with the age and mental development of the child.
Finally, the conduct of the school teachers was, of cоurse, commendable in their assiduousness to uproot a grave problem in their school. They were proven ‘ ‘ right ’ ’ by what they found on the defendant following the search. More is required, however, if arbitrary power is to be avoided, and. that is to require basis for the search at léast to the minimаl degree suggested
Accоrdingly, the order of the Appellate Term should be reversed, the adjudication vacáted, and the complaint dismissed.
Judges Jasen, Gabrielli, Jones, Wachtler, Rabin and Stevens concur.
Order reversed, etc.
Notes
The statute is interesting both as an indication of the problem and as a recognition of the possible limitаtion on the broad scope of a teacher’s responsibility. It reads: “Any teacher, school administrator, school guidance counselor, school psychologist, school drug counselor, school nurse, supervisor of attendance, attendance teacher оr attendance officer having reasonable cause to suspect that a secondary or elementary student under twenty-one years of age is addicted to a narcotic drug or under the influence of a dangerous drug, who reports such information to the appropriate secondary or elementary school officials pursuant to the school’s drug policy or if the school has no drug policy to the school’s principal or the parents of such student under twenty-one years of age shall have immunity from any civil liability that might otherwise be incurred or imposed as a result of the making of such a report.”