State v. Young

216 S.E.2d 586, 234 Ga. 488, 1975 Ga. LEXIS 1173

• Court: Supreme Court of Georgia
• Decided: May 20, 1975
• Docket: 29455
• Status: Published

Opinions

Hall, Justice.

We granted certiorari in this case to determine the extent to which the Fourth Amendment right against unreasonable searches and seizures and the associated exclusionary rule could be invoked by a minor student of a public high school to secure the suppression in a pending criminal prosecution of marijuana found upon his person by an assistant principal conducting a personal search not without cause but with less than probable cause for a search by a law enforcement officer.

The Court of Appeals ruled that the assistant principal was a government agent, and concluded that his search of the student violated the Fourth Amendment and that the student’s motion to suppress the marijuana should therefore have been granted. Young v. State, 132 Ga. App. 790 (209 SE2d 96). The Court of Appeals wrote that ". . . we cannot, in view of the Fourth Amendment, grant a school official, when acting as a governmental agent, greater rights than an ordinary policeman would have with reference to searching a student in his charge.” Upon consideration of the knotty issue presented by this appeal, we reverse, holding that the exclusionary rule would not apply even if the Fourth Amendment had been violated, but that in any event no Fourth Amendment violation occurred here.

The search in question was made after the assistant principal observed Young, a seventeen-year-old student, on the premises of the public school he attended. Young was with two other students during school hours and as the principal approached "one of the fellows jumped up and put something down, ran his hand in his pants.” The three students were then directed to empty their pockets and Young produced marijuana. Young’s motion to suppress this evidence was denied, and he was convicted in Fulton Criminal Court of a misdemeanor. He argues here that his Fourth Amendment rights were violated, and that he was entitled to suppression of the marijuana.

1. In broad outline, the Fourth Amendment right to be free from unreasonable searches and seizures, though initially applicable only against the federal government, was applied to the states under the due process clause of the Fourteenth Amendment in Wolf v. Colorado, 338 U. S. 25 (1949). The exclusionary rule, allowing suppression of evidence seized in violation of the Fourth Amendment, was first created in Weeks v. United States, 232 U. S. 383 (1914) and applied only in the federal courts. It was extended to state proceedings in Mapp v. Ohio, 367 U. S. 643 (81 SC 1684, 6 LE2d 1081, 84 ALR2d 933) (1961). However, in the case of Burdeau v. McDowell, 256 U. S. 465 (41 SC 574, 65 LE2d 1048) (1921) the Supreme Court ruled that the Fourth Amendment, though textually not so limited, actually afforded protection only against unreasonable searches and seizures made by governmental officers. Therefore, however unreasonable a search by a private person may be, absent participation by governmental agents the Fourth Amendment is totally uninvolved and the evidence, though illegally seized by private individuals, is admissible in a criminal prosecution. Id. In sum, because the Fourteenth Amendment, through which the Fourth Amendment applies to the states, requires state action, absent some state action in a search context there can be no Fourth Amendment violation.

Turning from the Fourth Amendment to the separate consideration of the exclusionary rule, that rule never applies in the absence of a Fourth Amendment violation, and sometimes does not apply when such violation occurs. See United States v. Calandra, 414 U. S. 338 (94 SC 613, 38 LE2d 561) (1974). The application of the exclusionary rule has never been sanctioned by the Supreme Court in any context other than a Fourth Amendment violation by law enforcement officers — not merely "state action,” but a special kind of state (or federal) action. "Nor has any court extended the rule of the Weeks case so far as to hold that the Fourth Amendment requires the exclusion of evidence obtained through a search in which there was no participation or instigation by a federal or state law enforcement officer.” United States v. Coles, 302 FSupp. 99, 103 (N. D. Me. 1969). (Emphasis supplied.)

The first step in any analysis is to recognize the separation between the Fourth Amendment and the associated exclusionary rule: They are not co-extensive. The Fourth Amendment requires only state action; the latter requires state law enforcement action. Moreover, with respect to both the scope of the Fourth Amendment protections and the sweep of the exclusionary rule, the proper test is a balancing test. In the Fourth Amendment area, in determining the reasonableness of a search, the social utility of the search must be balanced against the individual’s reasonable expectation of privacy. United States v. Edwards, 498 F2d 496, 500 (2d Cir. 1974); United States v. Rogers, 388 FSupp. 298 (E. D. Va. 1975). "Unfortunately, there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.” Camara v. Municipal Court, 387 U. S. 523, 536 (87 SC 1727, 18 LE2d 930) (1967). This balance sometimes is struck in favor of allowing searches which could not be justified under more typical circumstances. Such searches are approved as reasonable, and therefore as comporting with the Fourth Amendment, because the necessity for the kind of search made is weighed heavily in the balance against the expectation of privacy. Such searches were approved, for example, in Camara v. Municipal Court, supra (governmental safety and health inspections of private premises without probable cause to believe a violation has occurred in the premises to be searched); Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968) (police need to investigate — stop and frisk); United States v. Edwards, 498 F2d 496 (2d Cir. 1974) (airline boarding searches); Steigler v. Anderson, 496 F2d 793 (3d Cir. 1974) (fireman’s search for embers); United States v. Nevarez-Alcantar, 495 F2d 678 (10th Cir. 1974) (border crossing searches); United States v. Rogers, 388 FSupp. 298, supra (military type search of civilian employee approved though not meeting usual civilian standards); United States v. Coles, 302 FSupp. 99 (N. D. Me. 1969) (search of Job Corps attendee by federal official charged with maintaining discipline); State v. Swift, 232 (roadblocks); Ridley v. State, 232 Ga. 646 (in-prison searches). This list, though long, does not by any means detail all of the special situations recognized by the Fourth Amendment.

After application of the foregoing standards to determine whether a Fourth Amendment violation has occurred, if such a violation is found, the expected benefits and the expected detriments of applying the exclusionary rule must be weighed to determine whether that rule may be invoked to suppress the fruits of the search. United States v. Calandra, 414 U. S., supra, p. 349. There is nothing sacrosanct about the exclusionary rule; it is not embedded in the constitution and it is not a personal constitutional right: "In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” Id., 414 U. S. 348. The Supreme Court has as much as suggested that the rule might be abandoned altogether if statistics should bear out the suspicion that in its primary, and perhaps sole, purpose of deterring future police misconduct, it is ineffective. See id., 414 U. S. 348 n. 5.

"The Robinson [94 SC 467], Gustafson [94 SC 488] and Calandra cases indicate a distinct shift in the attitude of the majority of the Supreme Court in evaluating whether the exclusionary rule should be extended to additional contexts involving illegal searches and seizures. The majority’s failure to extend the rule in these cases, as well as the implication discussed previously of making the deterrent effect of the rule the sole justification for its application, suggest that the majority agree with the findings of the rule’s critics. Furthermore, the court’s actions imply that presented with the proper case and statistical backing to prove the rule’s ineffectiveness, it might analyze the deterrent benefit of the rule in criminal trials and find that the costs of the rule outweigh its benefits.” Note, Death Knell of the Exclusionary Rule? 1 Hastings Const. L. Q. 179, 212 (1974). See also Dallin H. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chicago L. Rev. 665 (1970); Charles Alan Wright, Must the Criminal Go Free if the Constable Blunders? 50 Tex. L. Rev. 736 (1972); Senate Bill 2657, 92d Cong., 1st Sess., as amended, entitled A Bill "To amend Title 18 of the United States Code to define and limit the exclusionary rule in Federal Criminal proceedings.” The Seventh Circuit has recently refused to extend the application of the exclusionary rule in federal courts to situations in which there was a mere failure to comply with all aspects of Rule 41 Fed. R. Crim. P. concerning searches. United States v. Harrington, 504 F2d 130 (7th Cir. 1974). That circuit, noting that Calandra had pointed the way, has also refused to apply the rule to bar introduction in civil cases of evidence illegally seized by state officers. Honeycutt v. Aetna Ins. Co., 510 F2d 340 (7th Cir. 1975).

It is true that in Georgia the exclusionary rule enjoys a somewhat firmer status, being embedded in our statutory law. Code Ann. § 27-313. However, this Code section applies only to searches and seizures made by peace officers, and therefore has no application to the facts before us. The presence of the statute does mean, however, that in the event the Supreme Court should abolish the rule, it would take a further Act of the Georgia legislature to remove it from the body of our state law. But in all consideration of the exclusionary rule and its impact, "It is well to remember that when incriminating evidence is found on a suspect and that evidence is then suppressed, 'the pain of suppression is felt, not by the inanimate State or by some penitent policeman, but by the offender’s next victims.’ ” In re State in the Interest of G. C., 121 N. J. Super. 108 (296 A2d 102) (1972).

2. Against this background we turn to a consideration of the issues of student searches now before us. From jurisdictions all over the country have come cases delineating the rights of public school students against their school officials in a search context. See also William G. Buss, The Fourth Amendment and Searches of Students in Public Schools, 59 Iowa L. Rev. 739 (1974). Almost all these cases have decided that evidence seized by such officials is admissible; however, the theories have varied. Many courts have concluded that public school officials are not "government agents” within the meaning of the Fourth Amendment, thus avoiding entirely any possibility of a constitutional violation and any possibility of the exclusion of evidence. E.g., In re W., 29 Cal. App. 3d 777 (105 Cal. Rptr. 775) (1973); Mercer v. State, 450 SW2d 715 (Tex. Civ. App. 1970); Ranniger v. State, 460 SW2d 181 (Tex. 1970); People v. Stewart, 63 Misc. 2d 601 (313 NYS2d 253) (1970); In re Donaldson, 269 Cal. App. 2d 509 (75 Cal. Rptr. 220) (1969). Several

other courts have concluded that school officials are government agents, but that their actions were reasonable in the light of the lowered standard, sometimes called the "reasonable suspicion” standard, which the amendment required of them; and thus the standard was not violated and the exclusionary rule was not applicable. E.g., In re State in the interest of G. C., 121 N. J. Super. 108 (296 A2d 102) (1972); In re C., 26 Cal. App. 3d 320 (102 Cal. Rptr. 682) (1972); State v. Baccino, 282 A2d 869 (Del. Super. 1971). Still others have admitted the evidence upon an unclear theory. Louisiana has applied full Fourth Amendment and exclusionary rule protections in the public school search situation. Louisiana v. Mora, La. Sup. Ct. 54884, decided January 21, 1975.

We find that these cases in the main have failed to separate the issues with sufficient sensitivity to delineate comprehensively the rights we are considering. They have tended to divide those making searches, for purposes of the Fourth Amendment, into two groups: private persons, and government agents. We conclude that there are really three groups: private persons; governmental agents whose conduct is state action invoking the Fourth Amendment; and governmental law enforcement agents for whose violations of the Fourth Amendment the exclusionary rule will be applied.

With reference to searches by private persons, there is no Fourth Amendment prohibition and therefore no occasion for applying the exclusionary rule. Burdeau v. McDowell, supra. The third group, law enforcement officers, of course, are bound by the full panoply of Fourth Amendment rights and are subject to the application of the exclusionary rule. But the intermediate group, including public school officials, plainly are state officers whose action is state action bringing the Fourth Amendment into play; but they are not state law enforcement officials, with respect to whom the exclusionary rule is applied.

In explanation of our conclusion that these three categories exist separately, we think it too plain to be controverted that public school officials are state officers acting under color of law, whose action is therefore state action which must comport with the Fourth Amendment standards applicable to the given situation. "If an individual is possessed by state authority, and purports to act under that authority, his action is state action.” Griffin v. Maryland, 378 U. S. 130, 135 (84 SC 1770, 12 LE2d 754) (1964). However, the mere fact that action is taken by state officials is not adequate to invoke the exclusionary rule even if that action violates the Fourth Amendment. As we noted above, the exclusionary rule does not reach so far as does the Fourth Amendment and the rule has not been applied save to action taken by law enforcement personnel. The tide is turning, we think properly, away from the exclusionary rule; and we decline to extend it to apply to searches by non-law enforcement persons. There can be no serious contention that public school officials are law enforcement personnel. Therefore, it follows that although school officials are governmental officers subject to some Fourth Amendment limitations in searching their students, should they violate those limitations the exclusionary rule would not be available to the students to exclude from evidence items illegally seized. Instead, for the violation of their constitutional rights the students would be relegated to such other remedies as the law affords them, whether by actions based upon a claimed violation of their civil rights by state officers, or by some tort claim seeking damages.

Though what we have written is sufficient to decide that the marijuana found on Young was not subject to suppression at his trial regardless of whether the search violated his constitutional rights, this case raises additionally a sensitive issue concerning the allowable scope under the Fourth Amendment of a schoolhouse search of a student conducted by a public primary or secondary school official, entirely without the participation of law enforcement officers. We rule that on the facts before us no Fourth Amendment violation occurred in the search by the assistant principal.

As we have seen, the allowable scope of a search is not absolute, but varies with varying circumstances as we balance fundamentally competing interests. In determining the reasonableness of a search, we must "first . . . focus upon the governmental interest which allegedly justified official intrúsion upon the constitutionally protected interest of the private citizen.” Camara v. Municipal Court, 387 U. S., supra, p. 534. There are governmental interests of discipline, security, and enablement of the education function, to be served by allowing searches of students by the officials charged with their education and control. Primarily, these searches are not undertaken in any law enforcement capacity but are designed to allow enforcement of multiple rules, regulations and prohibitions which are imposed to maintain an atmosphere of security and calm necessary to allow education to take place. This may and does involve controlling students’ behavior, and it may and does involve controlling the deleterious items they are allowed to possess on the premises. Such a deleterious item may be as relatively innocuous as a secreted noise-maker; it may be as dangerous as heroin or a handgun. In both examples the administrators are functioning within their legitimate area of concern in seeking to root out such disturbances and evils; and they must be allowed the latitude to make effective searches to that end.

The law recognizes that students through the secondary school grades do not have the maturity of the adult citizen. To the end that they may be formed and educated, they are subject to the control of others in various circumstances. The citizen on the street is subject only to the restraints of the criminal law; but the student in school is subject additionally to all reasonable school rules and regulations. The administrators to whom we accord the right to make such rules and regulations must be allowed to enforce them. See generally, Note, Balancing In Loco Parentis and the Constitution, 26 U. Fla. L. Rev. 271 (1974).

Though we consider here only the rights of younger persons, the student’s subjection to proper authority accompanies him to college. "[I]f the regulation — or, in the absence of a regulation, the action of the college authorities — is necessary in aid of the basic responsibility of the institution regarding discipline and the maintenance of an 'educational atmosphere’ then it will be presumed facially reasonable despite the fact that it may infringe to some extent on the outer bounds of the Fourth Amendment rights of students.” Moore v. Student Affairs Comm, of Troy State U., 284 FSupp. 725, 729 (M. D. Ala. 1968).

It is true that unlike the citizen crossing the border, boarding the airplane or attending the Job Corps center — all situations allowing unusually great latitude in searches — the student is not voluntarily at school. In Georgia, he must attend between the ages of 7 and 16. Ga. L. 1945, p. 343 as amended (Code Ann. § 32-2104). It is urged that this involuntary presence at school argues for according to him a higher level of Fourth Amendment protection. We cannot agree. It is not merely the unruly or criminal student who is involuntarily in school. All the other students are there involuntarily also, and are forced to associate with the criminal few — or perhaps merely the immature and unwise few — closely and daily. The state owes those students a safe and secure environment. Searches of students directed to that end 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. The search we consider here met this minimal standard.

What we have written is entirely in line with the construction which the Supreme Court has put upon constitutional rights of non-adults. "[E]ven where there is an invasion of protected freedoms 'the power of the state to control the conduct of children reaches beyond the scope of its authority over adults’... The well-being of its children is of course a subject within the state’s constitutional power to regulate. . . [P]arents and others, teachers for example, who have this primary responsibility for children’s well-being are entitled to the support of laws designed to aid discharge of that responsibility.” Ginsberg v. New York, 390 U. S. 629, 638-640 (88 SC 1274, 20 LE2d 195). For example, without violating the First Amendment, governments may control the materials to which children have access, though such control as to adults would be unconstitutional. Id., p. 643.

The Supreme Court has, of course, written that neither teachers nor studénts "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Comm. School Dist., 393 U. S. 503, 506 (89 SC 733, 21 LE2d 731) (1969). However, the rights of students recognized by that case were a dilute version of those accorded adults. In Tinker, the court carefully limited the First Amendment freedom it was prepared to recognize in students: "But conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” Id., p. 513. We know of no comparable limitation on the First Amendment freedoms of adults. Similarly, in Goss v. Lopez, 43 USLW 4181 (January 22, 1975), a student’s Fifth Amendment right to procedural due process before suspension was recognized; but the opinion requires only a fairly casual, on the spot, and not necessarily lengthy, conversation between the student and the accusing official. Again, this is a dilute version of the procedural due process required in other areas. Cases such as In re Gault, 387 U. S. 1 (87 SC 1428, 18 LE2d 527) (1967), which deals with juveniles but does not concern a school setting, are inapplicable to the issues considered here.

Very recently, a three-judge federal court ruled that the need for teachers to accomplish the essential purpose of maintaining discipline was sufficiently strong to authorize the use of reasonable corporal punishment of students even over the objections of the student’s parents. This decision, though it required minimal procedural due process in the Goss vein, recognized the power the state must be permitted to exercise over the person of the student in order to accomplish its valid state ends. Baker v. Owen, 43 USLW 2451 (M. D. N. C., April 23, 1975).

In short, we see no conflict between the Supreme Court’s rulings and our decision today that the restraints placed by the Fourth Amendment on schoolhouse searches by school officials are minimal. It is not necessary to decide what good faith conduct by a searching teacher or official would fail to meet that standard, because the students’ acts in the case before us, involving a furtive gesture and an obvious consciousness of guilt by these students at the approach of the assistant principal, clearly gave him adequate reason for the searches he made. The search of Young was entirely proper under the Fourth Amendment. Young has suffered no abridgment of his Fourth Amendment right to be free from unreasonable searches and seizures. The search made here was reasonable under the standard we announce today.

We do not anticipate that our ruling will encourage school officials to make of themselves largely unfettered searching agents of law enforcement officers. We emphasize that the standards announced here for action by school officials will pass constitutional muster only if those officials are acting in their proper capacity and the search is free of involvement by law enforcement personnel. Cf. Corngold v. United States, 367 F2d 1 (9th Cir. 1966).

In conclusion, to reiterate our ruling today, granting that public primary and secondary school students have minimal Fourth Amendment rights to be free from searches and seizures by school officials, nonetheless the exclusionary rule is not applicable to enforce those rights, and students aggrieved by the action of their officials must fall back upon such other legal remedies as applicable law may allow them.

The trial court properly denied Young’s motion to suppress the marijuana, and the Court of Appeals erred in reversing that court’s judgment.

The judgment of the Court of Appeals is reversed.

All the Justices concur, except Jordan, J., who concurs specially, Ingram, J., who concurs in Division 2 and the judgment and Gunter, J., who dissents. Argued January 17, 1975 Decided May 20, 1975 Rehearing denied June 2, 1975. Hinson McAuliffe, Solicitor General, Thomas R. Moran, Assistant Solicitor General, for appellant. Al Horn, Lawrence L. Schneider, for appellee. Arthur K. Bolton, Attorney General, Lois F. Oakley, Deputy Assistant Attorney General. Thomas Taylor Purdom, amicus curiae.