In Interest of Isiah B.

500 N.W.2d 637, 176 Wis. 2d 639, 1993 Wisc. LEXIS 519

• Court: Wisconsin Supreme Court
• Decided: June 7, 1993
• Docket: 91-1939
• Status: Published

Opinions

STEINMETZ, J.

Isiah B. appeals contending that the random search of his school locker was unconstitutional under the Fourth Amendment to the United States Constitution and Article I, sec. 11 of the Wisconsin Constitution. At the time of the search, there was a significant risk of imminent, serious personal harm to students and staff. We conclude that under the circumstances present at Madison High School, Milwaukee, Wisconsin, on November 19, 1990, the random search of the locker was permissible under the United States and Wisconsin Constitutions. Accordingly, we affirm the judgment of the circuit court.

The problems at Madison High School began in the fall of 1990 when the school administration was confronted with a series of gun-involved complaints and/or incidents in and around the school. In total, between October 23,1990, and November 17,1990, the Madison High School administration investigated five or six incidents where guns were said to have been used or were present on the school's premises. As a result of its investigations, the administration substantially verified the presence of guns (or in one instance a starter pistol) in two of those incidents. In addition, due to two incidents involving threats to the same student, the administration, at the urging of the student's parents, agreed to allow the student to transfer because of fear for his safety. As to these five or six incidents, the circuit court concluded that" [w]hile they were all cause for serious concern,. . . incidents appeared to be escalating in terms of the immediate threat of harm to students and staff at Madison High School."

On the weekend of November 16,1990, the weekend before the search at issue, two incidents occurred which involved gunfire on school premises. First, on Friday night students reported that they were fired at as they left the school following a basketball game. Second, on Saturday night following a school dance a near riot occurred on school grounds when the departing students and security personnel for the school heard multiple gunshots. Large numbers of students were on the school grounds at the time. The presence of guns was confirmed, not only by the sounds of gunfire and the reaction of the crowd, but also by the recovery of spent casings on school grounds.

The circuit court found that on the following Monday morning, November 19, 1990, "an atmosphere of tension and fear dominated" Madison High School. The school staff and security personnel received reports of guns present in the school, gun sightings on school buses, and rumors that a shootout at the school on that date was, in effect, inevitable. As to these reports, the circuit court noted that "[t]he identities of those reporting such rumors/sightings were either genuinely unknown to witnesses or they feigned ignorance out of apparent concern for the safety of those students." Despite announcements by Principal Willie Lee Jude regarding the administration's ongoing investigation into the incidents and the administration's efforts to address the situation, some staff members and students requested to leave the school out of fear for their safety. The efforts to resolve the atmosphere of fear in the school included staff meetings to gather the facts and identify students who might have information as to the perpetrators of the incident on Saturday and/or those who might have weapons in school on that morning. The circuit court found that the administration's efforts were met with little success.

Due to the heightened fear and tension and the significant risk of imminent, serious personal harm to students and staff, Principal Jude ordered school security personnel to begin a "random" search of student lockers as a preventative measure while he continued investigatory interviews. As to the randomness of the search, the circuit court noted that "[Principal Jude] did indicate that the search was not entirely random, however the testimony in that regard was extremely vague, warranting the conclusion that it was random." The circuit court also indicated that evidence was introduced, including a Milwaukee Public School Handbook, to indicate that "it is announced school policy that lockers are the property of the school system and subject to inspection as determined necessary or appropriate."¹ Students and parents are apprised of this policy. In addition, the school administration has pass keys for the lockers, and students are prohibited from putting private locks on their lockers.

Nathan Shoate, a Madison High School security aide, conducted the individual locker searches at the direction of Principal Jude. Using the school's pass key, Shoate opened the lockers and visually inspected the locker interiors, moving articles to facilitate the observation. Shoate acknowledged that he also patted down coats or inspected personal articles during the course of the locker searches. Shoate conducted between 75-100 locker searches before he opened the locker that was later identified as Isiah B.'s. The school officials had no particularized or individualized suspicion that Isiah B.'s locker would contain evidence of law or school rule violations. Isiah B. did not have a history of prior weapon violations nor did the school officials suspect his involvement in the recent gun incidents.

At Isiah B.'s locker, Shoate opened the locker, removed a coat and immediately believed it to be unusually heavy. He then patted the exterior of the coat and felt a hard object, which he believed to be a gun, in an interior pocket. Shoate immediately notified the principal. Before the principal arrived, Shoate observed the handle of a gun in the coat by pulling open the pocket. The circuit court concluded that the coat was then brought to the principal's office where Isiah B. was confronted with it, whereupon he admitted that cocaine was also in the coat. Testimony in the trial transcript indicates that the cocaine was discovered prior to the time Isiah B. came to the office. Shoate testified that cocaine was discovered "[a]fter looking into the coat a little further in the principal's office." He indicated that cocaine was located underneath the gun in the pocket. Principal Jude testified that he knew that the cocaine was in the pocket before questioning Isiah stating: "I could see it. I could see it in the same pocket [as the gun]."

Subsequently, a delinquency petition was filed against Isiah B. alleging possession of a dangerous weapon on school property and possession of cocaine with intent to deliver. Isiah B. moved the circuit court for an order suppressing the gun and cocaine as products of an illegal search. The circuit court denied Isiah B.'s motion to suppress the evidence gathered in the search and adjudicated Isiah B. a delinquent child upon findings that he possessed a dangerous weapon on school premises, contrary to sec. 948.61(2), Stats., and that he possessed a controlled substance with intent to deliver, contrary to secs. 161.16(2)(b)l and 161.41(lm)(c)l. We accepted the certification of this case from the court of appeals.

The Fourth Amendment to the United States Constitution and Article I, sec. 11 of the Wisconsin Constitution proscribe unreasonable searches and seizures.² In reviewing a circuit court's denial of a motion to suppress and its conclusion that a search was reasonable, this court will uphold the circuit court's findings of historical or evidentiary fact unless they are against the great weight and clear preponderance of the evidence. State v. Whitrock, 161 Wis. 2d 960, 973, 468 N.W.2d 696 (1991); see also State v. Turner, 136 Wis. 2d 333, 343, 401 N.W.2d 827 (1987). "Therefore, disputes as to the factual circumstances surrounding the admission must be resolved in favor of the trial court." State v. Clappes, 136 Wis. 2d 222, 235, 401 N.W.2d 759 (1987). However, whether these facts satisfy the constitutional requirement of reasonableness is a question of constitutional fact which is independently reviewed by this court as a question of law. Whitrock, 161 Wis. 2d at 973. This court exercises independent appellate review of constitutional facts because" '[t]he scope of constitutional protections, representing the basic value commitments of our society, cannot vary from trial court to trial court, or from jury to jury.'" State v. Woods, 117 Wis. 2d 701, 715, 345 N.W.2d 457 (1984) (quoting State v. Hoyt, 21 Wis. 2d 284, 305-06, 128 N.W.2d 645 (1964) (Wilkie, J. concurring)).

In addition, "[t]his court has consistently and routinely conformed the law of search and seizure under the state constitution to that developed by the United States Supreme Court under the fourth amendment." State v. Fry, 131 Wis. 2d 153, 172, 388 N.W.2d 565 (1986). We choose to do so in this case.

Unlike many cases involving the constitutionality of a search, the search at issue in this case was not conducted by law enforcement officials. Rather, Madison High School officials conducted the search of Isiah B.'s locker. The law concerning the legality of searches conducted by public school officials was quite unsettled until 1985. In 1985, the United States Supreme Court decided New Jersey v. T.L.O., 469 U.S. 325 (1985), a case addressing the proper standard for assessing the legality of searches conducted by public school officials. Although the opinion in T.L.O left some unanswered questions, it provides a framework of analysis for resolving this case.

At issue in T.L.O. was the constitutionality of a search of a student's purse. The search was conducted by a school principal after a teacher reported catching the student smoking in a school lavatory, and the student denied the allegation. The Court in T.L.O. began its analysis of the Fourth Amendment issue by addressing whether the Fourth Amendment's provisions apply to searches conducted by public school officials. The lower courts had been divided on this issue, with many concluding that school officials are exempt from the dictates of the Fourth Amendment by virtue of the special nature of their authority over children. T.L.O., 469 U.S. at 336 (citing e.g., R.C.M. v. State, 660 S.W.2d 552 (Tex. App. 1983)). The Supreme Court rejected this argument concluding that:

[s]uch reasoning is in tension with contemporary reality and the teachings of this Court.... In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents' immunity from the strictures of the Fourth Amendment.

Id., at 336-37.

Prior to the Supreme Court's pronouncement in T.L.O., the court of appeals of this state similarly rejected this argument. See Interest of L.L. v. Washington County Cir. Ct., 90 Wis. 2d 585, 597, 280 N.W.2d 343 (Ct. App. 1979). We are bound by the Supreme Court's conclusion that public school officials are state agents for purposes of Fourth Amendment search and seizure analysis and as such must conform their conduct to the strictures of that amendment. Thus, applying the dictates of the Fourth Amendment, the question in this case is whether the search of Isiah B.'s locker was one done subject to the Fourth Amendment.

As to determining the reasonableness of a search, the Supreme Court in T.L.O. stated:

[w]hat is reasonable depends on the context within which a search takes place. The determination of the standard of reasonableness governing any specific class of searches requires 'balancing the need to search against the invasion which the search entails.' On one side of the balance are arrayed the individual's legitimate expectations of privacy and personal security; on the other, the government's need for effective methods to deal with breaches of public order.

Id., at 337 (citations omitted).

Recognizing that before a balancing of interests can take place a court must first conclude that a reasonable expectation of privacy exists on the student's side of the balance, the Supreme Court concluded that a student has a legitimate reasonable expectation of privacy in a purse. Id. at 337-38. However, the court specifically declined to express any opinion on whether a student has a legitimate reasonable expectation of privacy in a school locker. See Id. at 337 n.5. The state of Wisconsin urges this court to conclude that Isiah B. had no reasonable expectation of privacy in his locker and thus no search for Fourth Amendment purposes took place.

We agree with the state and hold that when the Milwaukee Public School System (M.P.S.), as here, has a written policy retaining ownership and possessory control of school lockers (hereinafter referred to as a locker policy), and notice of the locker policy is given to students, then students have no reasonable expectation of privacy in those lockers. Consequently, the circuit court properly denied his motion to suppress.

If school authorities do not have a locker policy like the one in this case, students might have a lowered reasonable expectation of privacy in their lockers. With respect to a public school student's reasonable expectation of privacy, the Supreme Court stated the following in T.L.O.:

To receive the protection of the Fourth Amendment, an expectation of privacy must be one that society is 'prepared to recognize as legitimate.' Hudson v. Palmer, supra, at 526,....

Although this Court may take notice of the difficulty of maintaining discipline in the public schools today, the situation is not so dire that students in the schools may claim no legitimate expectations of privacy.

Id. at 338.

[S]choolchildren may find it necessary to carry with them a variety of legitimate, noncontraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items merely by bringing them onto school grounds.

Id. at 339. School administrations may adopt a locker policy retaining ownership and possessory control of school lockers and give notice of that policy to students.

Because Isiah B. had no reasonable expectation privacy in his locker, there was no Fourth Amendment violation, and the circuit court properly denied Isiah B.'s motion to suppress. We affirm the judgment of the circuit court.³

" 'We must never forget, that it is a constitution we are expounding,' 'a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.'" Hirabayashi v. United States, 320 U.S. 81, 100-01, (1943) (citing McCulloch v. Maryland, 4 Wheat. 316, 407, 415, (1819)); see also Euclid v. Ambler Co., 272 U.S. 365, 386-87 (1926); Missouri v. Holland, 252 U.S. 416, 433 (1920); Weems v. United States, 217 U.S. 349, 373 (1910). Our holding is an example of adaptation of constitutional principles to a modern crisis. As noted by the Supreme Court in T.L.O., the presence of dangerous weapons in schools is a recent and extremely serious problem. On February 12, 1993, a Milwaukee Sentinel article indicated that 37% of male, Wisconsin high school students carry weapons. The article also indicated that "35% of the weapons . . . carried were guns, 49% knives or razors, [and] 16% clubs, bats[,] ... pipes or other weapons."

By the Court. — The judgment of the Milwaukee county circuit court is affirmed.

1 The policy stated as follows:

School lockers are the property of Milwaukee Public Schools. At no time does the Milwaukee school district relinquish its exclusive control of lockers provided for the convenience of students. Periodic general inspections of lockers may be conducted by school authorities for any reason at any time, without notice, without student consent, and without a search warrant.

2 The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

Article I, sec. 11 of the Wisconsin Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

3 Isiah B. argues that a valid Fourth Amendment search of a student's locker by public school officials requires said officials to promulgate and conform to written guidelines governing locker searches. Isiah B. also argues that public school officials must possess an individualized suspicion that a student's locker contains evidence of a crime or school rule violation before said locker can be searched in accord with the Fourth Amendment. Because we conclude that Isiah B. did not have a reasonable expectation of privacy in his locker, we do not reach these issues.