State v. Joseph T.

336 S.E.2d 728 of West

STATE T., Under a Child

JOSEPH Age of 18 Years.

No. 16088. Appeals

Supreme Court of Virginia.

of West

July 1985.

Dissenting Opinion 1985. Oct.

Concurring Opinion Nov. at the Associates, way he had beer to school consumed Frank T. Watson & William Chernenko, Cuomo, B. Wells- appellant's & Marc home. Jr. appellant. burg, for “may appellant Suspecting Gen., Brown, Atty. Frye Janet Charlie beverage type of alcoholic brought some Gen., Charleston, Steele, for Atty. Asst. school,” Martray into directed Charles the appellee. Starcher, at Joseph teachers the Baker and school, appellant’s locker. to search the McHUGH, Justice. at Fol- The indicates that students record the upon this Court This action before assigned separate lockers were lansbee T., Joseph infant under the an petition School authorities with combination locks. the years, appeal an from age of 18 for key. a master open could those lockers with Court of Brooke order the Circuit final opened appel- the Baker and Starcher County, Virginia. West W.Va.R.Crim.P. court, Martray talked with the during delinquency lant’s locker while The circuit 37. concerning appellant, the appellant principal’s in the office. Al- proceedings possessed mari- appellant the found beverages were locat- though no alcoholic W.Va.Code, in 60A-4- huana violation ed, and Starcher found various items Baker appellant upon the [1983], placed including in a in the two or jacket locker W.Va.Code, 60A-4-407 probation. [1971]. “wrapper pipes, three a number of wooden appeal, appellant challenges the In this making a papers” cigarettes and small search of his school locker warrantless plastic plastic The contained sev- box. box That search resulted school authorities. cigarettes eral handmade which were finding of circuit court that packed appeared what to be marihua- possessed marihuana. appellant placed na.1 and Starcher then Baker 13, 1984, By on March this order entered jacket items and locked the back granted appellant’s motion Court waiting jacket in the locker. With Starcher move to This has reverse. leave principal’s Baker at went to the petition appeal, it the the motion before appellant, office and returned with the reverse, all other matters of record and (Principal at Martray and Robert Guio Fol- the briefs counsel. lansbee). appellant’s again The locker was opened its contents examined. I Thereafter, petition signed by a the Prin- eighth appellant The was a student cipal filed in the Circuit at Follansbee was grade at Middle School Follansbee petition County. Brooke The al- Court of County. morning of March Brooke On leged appellant possessed marihua- 11,1982, Joseph Martray, prin- an assistant 11, 1982, na on March was thus a Follansbee, noticed the smell of cipal at meaning M., delinquent child within the a student. War- alcohol Warren W.Va.Code, appellant Martray 49-1-4 ren M. admitted to that on [1978].2 (1) commits act which would a record in action contains the "State’s Who an 1. The Discovery.” municipal Motion for Answer Defendant’s under state law or a ordi- crime to that is the March re- adult, Attached answer punishable nance if committed an toxicologist indicating plastic port a imprisonment; jail in a or confinement appellant’s jacket in the locker box found (2) designated commits a Who an act crime (7) partially hand- contained “seven smoked municipal a ordinance or state law not under cigarettes.” made [marihuana] punishable by jail impris- or confinement in onment; under Marihuana a "controlled substance" Who, cause, (3) just habitually without Uniform Controlled Sub- continually respond refuses to the lawful W.Va.Code, [1983], et Act. 60A-1-101 stances guardian parents, supervision such child’s seq. is a crime under Possession of marihuana custodian; W.Va.Code, 60A-4-401 or [1983]. W.Va.Code, habitually cause; from [1978], Who is absent provides: 49-1-4 good 'Delinquent means a without child’ child: Rights.” Bill of 319 U.S. suppress the evidence found the limits of the moved to court, however, at 87 L.Ed.2d at 1637. The circuit de- his locker. Subsequently, the circuit that motion. nied Jersey In New 469 U.S. appellant pos- had court found that L.Ed.2d 720 a New and, by order entered in sessed marihuana student, T.L.O, high alleg- Jersey 1983, placed appellant upon pro- March edly cigarette smoked in a school lav- bation. regulations. atory, in violation of school

Later, office, principal’s the student smoking, denied she had been and the as- II principal began sistant vice to search her The Constitution of the United States purse. purse, In the the assistant vice Virginia pro- and the Constitution of West principal package cigarettes found a and against protection cigarette rolling vide the “un- package papers. experience, reasonable searches and seizures.” The the assistant Based his appellant principal possession by contends that the warrantless vice associated the rolling papers search of his school locker violated those a student of with the use of that, purse marihuana. He then principles constitutional and conse- searched “marihuana, thoroughly more and found quently, the evidence seized from the lock- pipe, empty plastic bags, a suppressed.4 a number of er should have been The cir- court, however, quantity money in one-dollar substantial cuit found that the search bills, appeared that an index card to be a appellee, was reasonable. The the State of money, list owed of students who T.L.O. Virginia, contends that the circuit implicated and two letters that T.L.O. in finding be affirmed. court’s should dealing.” marihuana 105 S.Ct. at 737. outset, At we note that West Vir Subsequently, adjudged the student was ginia Education v. Bar State Board of upon pro- delinquent placed be a child and nette, 319 U.S. 87 L.Ed. bation. Supreme in which the Court of Upon appeal, Supreme of New require the United States struck down a T.L.O., Jersey, held the search of the ment in West that school children purse student’s to be unreasonable. The pledge allegiance salute and to the Ameri States, Supreme the United how- Court of flag, the court indicated that the Con can ever, upheld the search. “protects the stitution of the United States Stating prohibition that the constitutional against citizen the State itself and all of its except against Education not unreasonable searches and seizures creatures —Boards of course, have, applies by public conducted important, These del searches ed. functions, authorities, icate, Supreme Court of highly discretionary States, T.L.O., recognized they may perform none that within the United but cause, except upon probable supported willfully Who violates a condition of a affirmation, particularly describing any probation contempt oath or order or a order of searched, person place or to be or the court. thing to be seized. Const, provides: IV 3. U.S. amend. appeal, appellant petition as- In his for 4. people right secure in their The of the to be serts: houses, effects, against persons, papers, and seizures, Martray principal] assistant decided to shall not [the unreasonable searches issue, violated, [appellant’s] locked but conduct a search of be and no Warrants shall cause, [appellant] upon probable affirmation, supported or school locker at a time when the Oath questioned regarding describing particularly himself had not been incident, searched, any subject persons been the place had not and the or regarding having complaints reports things or his to be seized. Const, Ill, alleged consumption any provides: Similarly, shown effects W.Va. art. time when there had not been of beer and at a The of the citizens to be secure effects, houses, allegation any report that either persons, papers [Warren their seizures, brought any beverage onto he had such searches and orM.] unreasonable premises. issue shall not be violated. No warrant shall light age and sex of the student requires some eas- setting that “the nature of the infraction. and the restrictions to which ing of the ordinarily subject.” public authorities 105 S.Ct. at 743-44.5 Thus, held that the court 105 S.Ct. at States, The Court of United not obtain a warrant officials need “school of the student’s held the search is under searching a student who before Recognizing that purse to be reasonable. Fur- authority.” 105 S.Ct. at 743. their searches, involved two “with the case thermore, stated: the court cigarettes providing first —the search — gave rise to the second— that join majority of courts that We marihuana,” 105 S.Ct. at the search for concluding examined this issue found, upon the record be- the court privacy the accommodation it, principal’s the assistant vice fore with the of schoolchildren sub- interests cigarettes was rea- search of the and administra- stantial need of teachers then stated: sonable. court for freedom to maintain order tors Choplick’s that Mr. Our conclusion [the require adherence schools does not strict principal’s] open decision to assistant vice requirement that searches be to the brings purse was reasonable us T.L.O.’s probable on cause to believe based question of the further search to the subject of the search has violated or pack cigarettes once the of marihuana Rather, violating legality is the law. suspicion upon which was located. The depend of a search of a student should marihuana was founded the search for reasonableness, simply under all on Chopliek provided when Mr. ob- was circumstances, the search. Deter- of package rolling papers in the served a of any search mining the reasonableness of pack ciga- of as he removed first, inquiry: one involves a twofold dispute Although T.L.O. does not rettes. action must consider ‘whether the ... Choplick’s Mr. of be- reasonableness inception,’ Terry justified at its was rolling papers lief that the indicated the Ohio, [392 marihuana, presence of she does contend ...; second, L.Ed.2d one ] scope Chopliek of the search Mr. that the the search as must determine whether permissible conducted exceeded bounds actually reasonably relat- conducted ‘was he read certain letters when seized and scope ed in to the circumstances which implicated drug dealing. in T.L.O. in first justified the interference too, argument, unpersuasive. This is ordinary circum- place,’ ibid. Under discovery rolling papers of the con- stances, by a teach- a search of a student gave suspi- cededly rise to a reasonable ‘justi- will er or other school official be carrying cion that T.L.O. was marihuana inception’ there are rea- fied at its when purse. in cigarettes as as her This well grounds suspecting sonable justified exploration of further up search will turn evidence that purse, up T.L.O.’s which turned more violating either student has violated is drug-related evidence of activities: the law or the rules of the school. Such bags pipe, plastic a number of of the permissible scope marihuana, in a search will be its type commonly used to store adopted marihuana, quantity the measures are reason- and a when a small of money. ably objectives fairly related to the of substantial amount of Un- circumstances, in der these it was not un- excessively intrusive search and short, may privacy find it neces- respect expectations of schoolchildren 5. With to the of carry variety legit- schoolchildren, sary with them a the court in T.L.O. stated: imate, [keys, money, noncontraband items Although may take notice of the this Court hygiene grooming, personal items for difficulty maintaining discipline pub- in etc.], and there is no reason to conclude today, dire lic schools the situation is not so they necessarily pri- waived all may no that students in the schools claim merely by bringing vacy them in such items legitimate expectations privacy. grounds. onto 105 S.Ct. at 742. key, having told other stu- sep- to a master been to extend the search reasonable compartment purse; of the marihuana. zippered arate dents that the locker contained compartment a search of that and when in principal The assistant found the locker containing a list revealed an index card Later, marijuana.” a “sack of the student money’ me as well as ‘people who owe question brought in was to the letters, T.L.O. was two the inference that (still contain- opened the student the locker trafficking involved marihuana marihuana) presence ing the enough justify Mr. Cho- substantial principal principal and assistant to deter- plick examining the letters ultimately placed school. The student was they any further mine whether contained upon probation. short, evidence. In we cannot conclude search, Holding the conducted without a that the search for marihuana was un- court, warrant, reasonable, the to be any respect. reasonable W., in In re stated: 105 S.Ct. at 746-47. appropriate test We believe that, T.L.O., noted It should be by high school officials is searches of the United States did not two-pronged. requirement The first question address the scope that the search within the be authorities of student lockers. 105 S.Ct. requirement The second school’s duties. 741, n. 5. Nor did the court address the taken, search, is that the action question of searches school authorities under the facts and circum- reasonable conjunction “in with or at the behest of law Although stances of the case. in loco agencies_” enforcement 105 S.Ct. at n parentis applicable, the Fourth court, Finally, did n. 7. power Amendment limits that to acts whether, question of had not address the requirements. that meet above unreasonable, found to be the search been 782, Cal.Rptr. 105 at 778. Cal.App.3d 29 at against could have the evidence T.L.O. Donaldson, 269 from in subse- also In re Cal. been excluded consideration See 509, (1969), proceedings against Cal.Rptr. her. 220 quent App.2d criminal 75 holding Independent The court stated: “In that Creek Horton Goose District, 470, of did not violate the reh’g search T.L.O.’s F.2d 690 de School Amendment, implicitly Cir.1982), Fourth we do not nied, 524, (5th F.2d 525 cert. 693 exclusionary ap- rule determine that 1207, 3536, denied, 77 463 U.S. 103 S.Ct. plies to the fruits of unlawful searches (1983). Donaldson, In L.Ed.2d 1387 In re by 105 conducted school authorities.” upheld by search a the court warrantless 739, n. 3. 5.Ct. at principal of a student’s high school vice marihuana) (which contained which locker by question The of searches school au being in the student ad search resulted addressed, thorities of student lockers was The judged juvenile a “ward of the court.” 777, however, W., Cal.App.3d in re 29 In Donaldson, principal, in re had vice In W., (1973). Cal.Rptr. 775 In In re 105 information that conducted the appeal court of had before it a California selling “speed or the student had been principal of a case in which the assistant Horton, the United pills.”6 methedrine In high opened a student locker with a school 542, Cal.App.3d Cal.Rptr. at 208 at J. v. Santa cials...." 162 6. It should be noted that in Gordon 530, However, District, Cal.App.3d 162 the court further held Ana School 665. Unified (1984), high Cal.Rptr. exclusionary "inapplicable a California court of was in 208 657 rule appeal and In disciplinary proceedings_’’ criticized the decisions in In re W. 162 Cal. school providing 544, more extensive Cal.Rptr. re Donaldson for not App.3d at 666. at 208 488, protection respect with to Young, Fourth Amendment Compare State v. 234 Ga. by 1039, 586, denied, school searches conducted in the schools cert. 423 U.S. S.E.2d 540, Cal.App.3d 576, (1975), at 208 Cal. involving authorities. a search 46 L.Ed.2d 413 Rptr. 17-year at 663. by old authorities of a school Gordon, (suspected possessing of mari school student huana) the court held that "the exclusion- In exclusionary apply rule would not ary fully prosecu- "the in criminal rule is available had been violat respect if the Fourth Amendment juvenile proceedings even tions and S.E.2d at 588. illegally by high Ga. at school offi- ed....” 234 evidence obtained vio- disciplinary rules or a of school reviewing a tion Appeals, in of States Court lation of law. pro- drug detection canine “school district’s dog’s reac- that if a trained gram,” stated n.2.7 car of a student’s justify is to a search tion have been in the schools Not all searches give “must rise the reaction or Washing upheld. Supreme The Court suspicion that reasonable the search will District in Kuehn v. Renton School ton, F.2d at 482 something_” produce No. 694 P.2d 103 Wash.2d added). (emphasis protection afforded constitutional and seizures unreasonable searches stated As the challenged supra: high school student who to a plan school that students policy of his courts that have ad- majority The tour participate in a band concert ning to Amend- the issue of the Fourth dressed luggage predeparture to a must submit schools have ... ment that] [held by conducted The search was search. applies Fourth Amendment decision parent chaperones. The school’s authorities, by searches conducted school by incident two inspired an to search special needs of the school envi- but the possession involved the years earlier which legali- require ronment assessment by in a hotel room. liquor two students against a standard ty of such searches probable exacting than that less no evidence Indicating that there was have, large, by and “generalized probability” cause. These courts other than a question had contraband upheld warrantless searches the students Kuehn, court, sup- held provided they luggage, their authorities policy to be unreasonable. by a reasonable the search ported stated; evidence of an infrac- court search will uncover Nevertheless, exclusionary applica- rule is this Court view is that the ble, in the action before search, whether, any seized in such a question any evidence we do not reach the unreasonable, context, cannot be if the search was exclusionary “applies to the rule in a criminal trial. used of unlawful searches conducted fruits 49 A.L.R.3d at 981. T.L.O., supra. See authorities.” a discussion of Included in that annotation is relating to searches school officials cases annot., (1973), entitled 49 A.L.IUd 978 lockers. Further informa- teachers of student Case, "Admissibility, Evidence in Criminal concerning officials or tion By By Offi- Search Conducted School Obtained may student lockers be found in E. teachers of author, Teacher,” categorizing vari- cial or Bolmeier, Legal Authority Over the Limits searches, concerning school ous case decisions Fisher, (Michie 1970); Pupil 4.5. E. Search § part: states in 25, Gee, (1970); E. Edu- § and n.129 Seizure position A number of courts have taken the Compen- the Public Schools: A cation Law and officials, alone, private acting are that school (1978); (editor), C. Hooker The dium s-30 exclusionary persons purposes for of the rule. (1978); H. Hud- Courts and Education 171-74 generally courts reason that the Fourth These Jr., gins, Contemporary and Education: Law prohibition against unreasonable Amendment (Michie 1979); and Decisions 10.4 § Issues requires and seizures the exclusion LaFave, (West W. and 10.11 § 3 Search Seizure of evidence where the unreasonable 1978); Rapp, J. Education Law 3 officer; by is made a law enforcement search 9.04[7][c](1984); Ringel, & Sei- 1 W. Searches § thus, if no law enforcement official was and zures, (2nd ed. § Arrests and 17.2 Confessions by particular in a search conducted involved Varón, Searches, 1985); J. and Immuni- Seizures 1974). officials, exclusionary inap- rule is IX, ch, (2nd ties 9 ed. plicable. Phay, generally and See Searches Students held, however, a school It has been Amendment, 5 J.L. & Educ. 57 the Fourth (1976); conducting acting a Stewart, official alone in Principal And in Her Purse the governmental agent purposes 1985); ex- Marihuana, (Feb. of the a 71 A.B.A.J. 50 Found Trosch, clusionary support conclu- rule. this School Searches and the Fourth Public sion, Amendment, (1982); pointed public it was out Educ. 41 Com- 11 J.L. & ment, employees, are whose work is officials state Public School Searches and the Fourth Amendment, (1984); governmental body. Dayton under the direction of a U. L.Rev. 521 9 Comment, does not act alone and Is the School Where the school official Search Seizure: search, but, Baylor conducting challenged Parent? 22 L.Rev. as is a Policeman or Official 554 Note, case, (1970); conjunction with law Search often the acts in Seizure Schools, (1976). officers, generally accepted 1067 36 La.L.Rev. Public enforcement 605 validity opposed of searches of school chil- drug possession, example), search, age the extent of judged by and the dren school officials is involved, students Court cannot belief standard. The reasonable reason- good say conscience that the search under- requires able belief standard that there taken was F.Supp. reasonable.” 438 at 54.8 part be a belief on the reasonable searching school official that the individ- hand, 17-year On the other a old student possesses ual prohib- student searched a criminally prosecuted was State ited item. When school officials search 488, Young, 586, 234 Ga. 216 S.E.2d cert. large groups solely of students for the denied, 576, purpose deterring disruptive conduct L.Ed.2d 413 where the student was any suspicion and without of each indi- directed empty school authorities to searched, pockets pants, vidual of his the search does not and marihuana was Holding found. meet the school authorities reasonable belief standard. Be- were “state officers whose action is state cause the search at issue here was con- bringing action the Fourth Amendment ducted without individualized ...,” play into atGa. 216 S.E.2d at rights student’s under the Fourth Georgia, Court of Amendment were violated. Young, nevertheless held the search to be —, 103 Wash.2d at 694 P.2d at 1079. reasonable. The court stated: Similarly, Lund, in Bellnier v. urged involuntary pres- It is that [the] (N.D.N.Y.1977), F.Supp. 47 the United ence at school a school stu- [of States District Court afforded constitution- argues according stu- dent] [the protection against al unreasonable searches higher level of Fourth Amend- dent] grade seizures to a class of fifth stu- protection. agree. ment We cannot It is who, part dents as of a search for $3.00 merely unruly ... student who is allegedly student, taken were ordered involuntarily in school. All the other stu- go school authorities to to the student’s also, involuntarily dents there respective male and female restrooms and are forced to associate with the im- ... ” “strip undergarments.... down to their mature and few-closely daily. unwise Later, F.Supp. at 50. alleg- an action The state owes those students a safe and ing violations of the student’s civil secure environment. Searches of stu- brought against authorities, the school dents directed to that end are reasonable and the court determined the search to be under the Fourth Amendment on consid- unreasonable, being “there no reasonable erably probable less than cause. suspicion to believe that each student atGa. 216 S.E.2d at 592. possessed searched contraband or evidence Ill F.Supp. of a crime.” 438 at 54. The court stated, action, Bellnier “in view of the relative- In this we do not have before us ly slight danger (as question of the conduct the by involved of searches school authori- this, Discussing applicability the of the Fourth as there must be demonstrated the exist- context, public Amendment in the the together ence some of articulable facts which court in Bellnier observed: provided grounds reasonable to search the finding students, In that the Amendment does Fourth and that the search must have been case, apply in this this Court does not mean to legitimate purpose in furtherance of a with imply showing probable that a of cause is respect empow- to which school officials are necessary uphold in order to the as ered to act.... analyzing reasonable. mine In the search to deter- reasonableness, weigh the Court must making analysis, In such an some factors conduct, danger the of the evidence of which 1) which warrant consideration are: the sought, against right privacy is the student’s 2) age; history child’s the child’s and record protect and the need to them from the humili- school; 3) prevalence the seriousness and psychological ation and harms associated problem of the to which the search is direct- with such a search. ed; 4) exigency requiring and the an immedi- ate warrantless search. that, This Court holds while there need not F.Supp. at 53. showing probable be a cause in a case such conducted; the of the search or at extent conjunction

ties “in the behest justification for the search is deter- initial agencies_” su- law enforcement by suspicion stan- that, mined the “reasonable Moreover, as pra. inasmuch we hold (a exacting “prob- than dard” standard less below, the search for discussed the reasons cause”) justi- a search under which is able reasonable, locker appellant’s fied school authorities reason- where whether, in question we do not reach the grounds suspecting that the search able exclusionary any context, “applies rule the student will reveal evidence that violat- to of unlawful searches conduct- the fruits law; or the ed the rules of the school T.L.O., supra. ed authorities.” by school extent of search conducted reason- n.6, cited supra. As the cases See also objec- reasonably able when related however, demonstrate, and a search above excessively tive of and not intru- the search action, in this and the seizure occurred sive the student. prop- and seizure is validity of that search recognize the erly holding, In so we entitle- this Court review. before security ment of children to public school syllabus point of State unreasonable searches seizures Moore, 165 W.Va. S.E.2d 804 conducted school authorities. We also held: we however, recognize, many problems judicial conducted outside the Searches a daily must face on ba- authorities approval process, prior by judge without school environment con- keeping sis magistrate, per are se unreasonable learning. ducive and Arti- under the Fourth Amendment action, appellant’s In this locker was III, Virginia 6 of the cle Section request princi- searched of assistant subject spe- to a few Constitution — Starcher, pal Martray by Baker and teach- cifically and well-delineated established Although ers at Middle School. Follansbee exceptions. exceptions jealously are looking Baker and Starcher were for alco- drawn, carefully and there must be a beverages, they holic found various items showing by exemption those who seek jacket including in a in the wooden exigencies that the situation made pipes, cigarette “wrapper papers” imperative. that course plastic ap- contained small box which what opinion is of the They This Court peared to marihuana. left Subsequently, school students West items the locker. Const, presence under amend. IV and of various school authorities and entitled U.S. Const, Ill, appellant, again opened the locker was security art. W.Va. § its contents examined. against unreasonable searches and seizures princi in the schools conducted action The record indicates pals, and other school authorities. teachers Martray principal that assistant had rea Furthermore, upon a review of authori suspecting grounds sonable that a law, ties in we hold that this area appellant’s search of locker would re determining a warrantless search whether beverage an alcoholic presence veal concerning public school student conduct brought appellant to school in viola ed school authorities reasonable un suspi tion of the rules of the school. That Const, der IV amend. and W.Va. cion was information based Const, Ill, 6, in the of delin art. context M., appellant’s companion, Warren had con quency proceedings or criminal instituted appellant’s sumed beer at the home that student, against the is the search to be morning of and that the smell such drink only rights of assessed in view not the of ing present upon was Warren M. at the public the student but in view school also Martray’s suspicion, Although school. that sys of the need of this State’s educational appellant may brought the alcoholic disruptive prevent illegal school, tem to or conduct beverages may to the not have students; particular, by public cause,” the “probable school reached the level of we (1) opinion Martray reasonable in of search must be terms the that instituted appellant’s the the locker justification the initial for the search and search of under

607 “reasonably consistent with the “reason- er was related” to the search circumstances above, standard,” beverages.10 for alcoholic suspicion discussed able We hold that where an assistant Furthermore, we conclude that principal public of a school had reasonable the extent of the search conducted Bak grounds suspecting that the locker of a permissible lim er and Starcher was within public school student contained an alcoholic Upon entering the locker a mas its. beverage in violation of the rules of the which, indicates, key the the ter record school, and a warrantless search of the kept opening any as a means of locker a mari student’s revealed number of locker,9 jacket was student the observed. search, cigarettes, huana in the context case, the circumstances of this Bak Under delinquency proceedings or criminal in er and Starcher were unwarranted student, against stituted did not consti “excessively reaching into the intrusive” right tute a violation of the student’s under supra, pockets jacket. of the a Const, amend. U.S. W.Va. Const. IV and general search of a was extended to Ill, 6, security art. unreason “zippered compartment” purse, a of the able and seizures.11 upheld. and the search was We are of the in denying The circuit court was correct opinion discovery in this case of appellant’s suppress motion to the evi- pipes cigarette “wrapper the wooden Accordingly, dence found in his locker. papers” in jacket gave rise to a reason final order the Circuit Court of Brooke jacket able found in the County hereby is affirmed. locker also contained marihuana. The dis covery suspected marihuana the lock- Affirmed.

9. The Court of Kansas in State v. ate school a officials consider search absolute- Stein, 638, (1969), ly necessary integrity 203 Kan. 456 P.2d 1 cert. to maintain the denied, 947, 966, protect 397 U.S. 90 S.Ct. 25 L.Ed.2d school environment and to other stu- (1970), proper 128 stated that “it a dents. [is] function principal inspect The of school authorities to un should see that the student lockers present prevent involved and another witness are der their control and to their use ... 640, illegal purposes." when a locker search is conducted. Kan. at 456 P.2d Determining that school authorities acted protects you The Fourth Amendment from properly opening high lock student’s (or random) arbitrary searches not from request police searching at the er officers 2, police court, but also from school authorities as property, syllabus point stolen well. custody high principal having held: "A Although appellant present was not at the having and control of school lockers and thereto, access locker when initial was conducted possessing a master all lock list of Starcher, brought appellant Baker and was key open every combinations and a which will thereafter, shortly to the locker and the locker empowered open is and search the opened presence of various school request same for contraband of offi appellant. Although the ab- authorities cers.” appellant at the initial search of the sence indicates that the school authorities locker 10. It should be noted that a student handbook handbook, strictly failed to follow the student was admitted into evidence the circuit court. handbook, conclude, such a violation of the we handbook, approved by Virginia The the West appellee, does not invalidate the search. 11, 1975, July Board of Education on is entitled Virginia, indicates in its brief that State of "Rights Responsibilities of Students in West Virginia in 1981 the West Board of Education Handbook for Students in the Pub- —A requirement deleted from the handbook the lic Schools.” Section VIII the handbook question "present the student in when a lock- provides: entitled "Search and Seizure” and er search conducted.” The Fourth Amendment to United States 5, Bruner, 755, protects syl. pt. State v. 143 W.Va. Constitution all citizens from unrea- 11.Cf. denied, 937, S.E.2d 140 cert. 358 U.S. sonable searches and seizures. 328, 309, denied, reh’g 3 L.Ed.2d (1959) Although generally L.Ed.2d allows school the law lockers, Weigand, [questioned in State v. 169 W.Va. officials to search courts have warned "The search of ]: that school authorities should be careful not 289 S.E.2d right. is not an unlawful abuse this Students do have locker at a bus station prohibited by any may reasonably expect con privacy their or unreasonable search and appropri- provision.” lockers will not be searched unless stitutional 608 personal of Justice, money, and necessaries

McGRAW, dissenting: addition, grooming. In stu- hygiene and Although our state constitution’s persons or in may carry on their dents identical nearly provision is and seizure nondisruptive yet purses or wallets such amendment, compare West Vir- the fourth photographs, highly personal items as Ill, United ginia art. 6 with Constitution § letters, Finally, and students diaries. IV, students amend. Constitution States perfectly legitimate reasons to may have constitu- rights under our state granted property of carry with them articles rejected by the United have been tion that with extra-curricu- needed connection under the federal Supreme Court States short, In or activities. lar recreational constitution, Kelly, v. 162 compare Pauley necessary may find it schoolchildren 672, (1979) S.E.2d with San 255 859 W.Va. variety legitimate, of carry with them a Independent District v. School Antonio items, rea- and there no noncontraband 1278, 1, 36 411 U.S. Rodriquez, they have son to conclude that necessar- (1973). Furthermore, the stu- 16 L.Ed.2d privacy in such ily waived all right, under West Vir- constitutional dent's merely bringing them items onto XII, 1, art. to a “thor- ginia Constitution grounds. ab- efficient is not ough and education” certainly place another The school locker is 3, 4, stract, Syl. enforceable. but See nondisruptive highly per- in which such 5, Pauley, supra. one items are stored. As commenta- sonal interpreting meaning of our state observed, integri- from the “[Ajpart tor has efficient edu- “thorough and constitution’s one ty body, of his own his locker is of his clause, Syllabus noted in cation” Court of privacy few harbors within school. that, provisions of Pauley, 2 of "The Point only may place he be able to It is where Virgi- of of West the Constitution the State preserve pri- what he needs to as store instances, require high- may, nia in certain friend, girl applica- vate—letters from a protection er of than afforded standards writing, job, poetry for a he is tions books proposi- This the Federal Constitution.” they may are too be ridiculed because recognized Jersey also in New tion was advanced, dancing simple or too shoes 325, 10, 105 469 U.S. 343 n. S.Ct. Buss, may to own.” he be embarrassed 10, 720, 733, 736 n. 745 n. 83 L.Ed.2d 10 The Fourth Amendment and Searches of Supreme where United States Schools, 59 in Public Iowa Students that, Jersey may Court conceded “[N]ew (1974); L.Rev. see also State v. demanding more standard under insist on a 331, 348, Engerud, 94 N.J. 463 A.2d majority its own Constitution.” (“For years high the four of case, however, increasingly pre- instant school, away locker is a home fashion, path of least dictable chooses home. In it the student from stores resistance, uncritically following the personal protected by of ‘effects’ kind analysis Court’s under federal T.L.O. Amendment.”) Fourth constitution. Although the of maintenance order Unquestionably, as States Su- the United discipline obviously promotes in the school O., preme recognized in T.L. 469 U.S. Court education,” “thorough and efficient re- 338-339, L.Ed.2d 105 S.Ct. at at students, particu- spect privacy for the of 732-33, expecta- legitimate students have larly years, in their and formative sensitive setting: privacy tions promotes also this fundamental interest. the United States As stated Although may this Court take notice of Barnette, in Board Education v. difficulty discipline maintaining 624, 637, 1178, 1185, L.Ed. situation today, schools (1943): may dire that in school not so students priva- have, course, legitimate expectations claim no Boards Education ... delicate, cy.... highly minimum important, Students at a must discretion- functions, supplies ary they may bring to school not but none studies, keys, perform limits of the Bill for their also within the needed but Rights. they educating personnel That equipped handling. are better at young citizenship is reason for scru- This commonsense accommodation of the pulous protection of competing Constitutional free- adopted interests involved was individual, doms of the if are not by we to in the court Gordon J. v. Santa Ana strangle the free mind at its District, source and Cal.App.3d School Unified youth important princi- 530, 542-44, teach to discount Cal.Rptr. 665-67 ples government (1984), of our plati- held, as mere which under the fourth amend- ment, tudes. although exclusionary rule fully prosecutions available criminal environment, A although totalitarian school juvenile proceedings respect conducive to the maintenance of order and illegally evidence obtained school offi- discipline, certainly not conducive to a cials, inapplicable it is disciplinary “thorough and efficient education.” proceedings. jurisdiction, In this our Syllabus Point of State ex rel. “thorough and efficient education” clause Dostert, D.D.H. v. 165 W.Va. provides support additional for this worka- that, S.E.2d 401 this Court held rule. ble adjudicated “Where a child is delinquent I concur wholeheartedly with the re having committed an act which would marks of Justice Stevens in his dissent be a crime if upon committed an adult majority’s apply probable refusal to evidence which would not be admissible cause trial, standard in a criminal U.S. at 373- delinquency adjudica- 760-61, 105 S.Ct. at tion must L.Ed.2d at 755- Similarly, be reversed.” 56: 5—1(d) Virginia (Supp.1985),gov- Code § 45—

erning procedures in delinquency proceed-' places Schools are where we inculcate ings, that, provides, part, in relevant “Ex- the values meaningful essential to the cept modified, as herein adjudicatory all responsibilities exercise of hearings, applicable the rules of evidence self-governing citizenry. If the Na- criminal apply....” cases shall tion’s through students can be convicted arbitrary use of methods destructive Perhaps, point at this in constitutional personal liberty, they help cannot but history, crying voice of one in the “[t]he they feel that have been dealt with un- wilderness,” 3:3, Matthew I would never- fairly. application of the exclusion- theless reaffirm the principles fundamental ary proceedings arising rule criminal firmly established the framers our illegal from makes an constitution they and for which cou- important young people statement rageously struggled, and hold that evi- society that “our attaches serious conse- dence seized from a student’s quences to a violation of constitutional probable absence of cause believe that rights,” and that this principle is a dangerous disruptive contraband or evi- “liberty justice for all.” [Footnotes criminality present, dence of although omitted]. disciplinary admissible in proceedings, is schools, ultimately, Our are not insti- delinquency inadmissible criminal or pro- learning, tutions of but are microcosms of ceedings under West Constitution our culture and In an Ill, civilization. era of XII, art. 6 and art. 1. This stan- § constant attack the “rule of law” as preserve dard legit- would both the school’s in such embodied fundamental constitution- maintaining imate interest in order and dis- principles al as the fourth amendment’s cipline legitimate expec- and the student’s prohibition against govern- unreasonable privacy tation of in his or her locker. Fur- thermore, privacy mental intrusion into the and secur- encourage it would the immedi- citizens, ity perhaps fitting of its it is ate involvement of law enforcement offi- cials, age our children learn at a tender equipped who are better to handle struggle criminality, prob- evidence of of our ancestors the arbi- when there is trary able cause to believe exercise of the will of the that a student has Crown has law, opposed struggle against violated the arbitrary as to violations of become our regulations, school rules and which school exercise of the will of those seek to who 610 atory regulations. A teach- against school platitudes” “mere away as

“balance” took her to incident rights for which er who observed the fundamental constitutional confronted principal’s fur- office. When fought died. In and those ancestors fact, with this I a school administrator struggle, must dissent. of such therance smoking claimed that and student denied Justice, in MILLER, concurring Chief all. The administra- she not smoke at did dissenting part: in part, and going to her and tor demanded see quarrel with the Although I have no cigarettes pack through a it discovered adopted suspicion standard” “reasonable pack dis- removing cigarette and comports I majority, as believe grounds marijuana. Clearly, the covered elsewhere, I believe majority view with the with the suspicion for existed reasonable to this standard. did rise the evidence regulation of the school infraction best, in this indi- evidence case At initial smoking which warranted dis- a friend of the defendant cated that search. school, coming to to he prior that closed accepted A number courts that at the defendant’s consumed some beer had suspi the reasonable school searches under given to the There were no facts home. required that there be cion standard have would indicate that the school official that objective some and articulable facts shown alcoholic bev- kept defendant beer or other suspicion give to that rise the reasonable locker. From the erages his school D.T.W., 425 In v. justify a search. State us, the defendant had not record before 1383, 1386(Fla.Dist.Ct.App.1983),the So.2d any previous prob- alcohol been involved “power officials have court said school any disciplinary matter lem or search, immediate, make for con an limited problems premises. on the school subjective traband ... when a reasonable Thus, school fact before the supported by articula- suspicion objective, an isolated admission authorities was reasonably prudent ble would lead a facts stopped he had friend defendant suspect person to these items way on the the defendant’s home Lund, present.” v. 438 See also Bellnier ele- consumed a beer. To school had 47, (N.D.N.Y.1977) F.Supp. (requiring 53 suspi- into these facts a “reasonable vate provided together “articulable facts which had cion” that the defendant beer his search”); grounds to v. reasonable T.A.O’B impossible my view. school locker is State, (Fla.Dist.Ct.App. So.2d 1106 459 1984); Court in County The United States New Rone v. Daviess Bd. of 325, Educ., 469 Jersey (Ky.App.1983); v. U.S. 655 S.W.2d 28 Doe 733, 347, 827, 720 State, 352, 83 L.Ed.2d which framed 540 P.2d 88 N.M. ma- general adopted by 318, denied, standards (App.Ct.), 832 88 N.M. cert. jority, (1975); McKinnon, made it clear that the reasonable 248 540 P.2d State v. 75, 781, suspicion 81, (1977) standard must be based on the 558 P.2d 88 Wash.2d (for “that the student has violated suspicion, belief school authorities reasonable violating probative or the rules of the either law should consider “the value 343-344, jus at used reliability school.” information as a search”); L.L., re at 735. It difficult tification for the L.Ed.2d (Ct. me the facts of this case could Wis.2d 280 N.W.2d to see how App.1979). part law on the indicate a violation certainly no defendant case, no present In the there were articu- inci- regulation because the was involved reasonably which lead a lable facts would The result would dent occurred at home. person suspect prudent defendant student had ob- be different if the fellow beverages in had alcoholic his locker. on the tained a beer from the defendant friend con- only evidence was that his had premises. sumed a beer at the defendant’s home be- gave information no indi- reason- fore school. This The facts in T.L.O. illustrate the had alcoholic bev- There cation that defendant able standard. a student erages in his locker. cigarette in a lav- smoking Moreover, despite majority’s ac-

knowledgment that “the search must be (1) justifi-

reasonable terms the initial

cation the search the extent of conducted,” Syllabus

the search Point

part, finding I have difficulty the extent objec-

of the search reasonable. The

tive the search dis- would been to beverages

cover the existence of alcoholic Yet,

in the defendant’s locker. than rather

pat jacket, down the defendant’s the school

administrator made a detailed examination pockets.

into its

In the United States Supreme analyze was

Court careful to scope search and concluded that initial cigarettes rea- during

sonable. It was the course marijuana

search that was encoun-

tered.

A rather analogous situation existed State, supra, v.

T.A.O’B where court

found the search pockets student’s cigarettes permissible but not

search of his wallet. See also M.M. v.

Anker, (2d Cir.1979); 607 F.2d 588 Bellni Lund, W., supra;

er re Cal.App.3d v. (1973). Cal.Rptr. reasons,

For the foregoing I respectfully

dissent.

336 S.E.2d

STATE of West

Sam Blackburn ACORD.

No. 16560. Appeals Virginia. 7, 1985.

Nov.

Case Details

Case Name: State v. Joseph T.

Court Name: West Virginia Supreme Court

Date Published: Nov 8, 1985

Citation: 336 S.E.2d 728

Docket Number: 16088

Court Abbreviation: W. Va.