216 S.E.2d 586 (Ga. 1975), 29455, State v. Young

Docket Nº:29455.
Citation:216 S.E.2d 586, 234 Ga. 488
Opinion Judge:HALL, Justice.
Party Name:The STATE v. Russell YOUNG.
Attorney:Hinson McAliffe, Sol. Gen., Thomas R. Moran, Asst. Sol. Gen., Decatur, for appellant., Albert M. Horn, Lawrence L. Schneider, Atlanta, for appellee., Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Asst. Atty. Gen., Atlanta, Thomas Taylor Purdom, Decatur, amicus curiae. [234 Ga. 499] Hinson McAlif...
Judge Panel:GUNTER, Justice (dissenting).
Case Date:May 20, 1975
Court:Supreme Court of Georgia
 
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Page 586

216 S.E.2d 586 (Ga. 1975)

234 Ga. 488

The STATE

v.

Russell YOUNG.

No. 29455.

Supreme Court of Georgia.

May 20, 1975

Rehearing Denied June 2, 1975.

Page 587

[Copyrighted Material Omitted]

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[234 Ga. 499] Hinson McAliffe, Sol. Gen., Thomas R. Moran, Asst. Sol. Gen., Decatur, for appellant.

Albert M. Horn, Lawrence L. Schneider, Atlanta, for appellee.

Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Asst. Atty. Gen., Atlanta, Thomas Taylor Purdom, Decatur, amicus curiae.

Syllabus Opinion by the Court

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 S.E.2d 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 than 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, [234 Ga. 489] 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, 69 S.Ct. 1359, 93 L.Ed. 1782 (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, 34 S.Ct. 341, 58 L.Ed. 652 (1914) and applied only in the federal courts. It was extended to state proceedings in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). However, in the case of Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 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

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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 S.Ct. 613, 38 L.Ed.2d 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.' [234 Ga. 490] United States v. Coles, 302 F.Supp. 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 coextensive. 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 F.2d 496, 500 (2d Cir. 1974); United States v. Rogers, 388 F.Supp. 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, 536-537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 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 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (police need to investigate-stop and frisk); United States v. Edwards, 498 F.2d 496 (2d Cir. 1974) (airline boarding searches); Steigler v. Anderson, 496 F.2d 793 (3d Cir. 1974) (fireman's search for embers); United States v. Nevarez-Alcantar, 495 F.2d 678 (10th Cir. 1974) (border crossing searches); United States v. Rogers, 388 F.Supp. 298 (E.D.Va.1975) (military type search of civilian employee approved through not meeting usual civilian standards); United States v. Coles, 302 F.Supp. 99 (N.D.Me.1969) (search of Job Corps attendee by federal official charged with maintaining discipline); State v. Swift, 232 [234 Ga. 491] Ga. 535, 207 S.E.2d 459 (roadblocks); Ridley v. State, 232 Ga. 646, 208 S.E.2d 466 (inprison 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, supra, 414 U.S. at 349, 94 S.Ct. 613. There is nothing sacrosanct about the exclusionary rule; it is not

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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. at 348, 94 S.Ct. at 620. 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. at 348 n.5, 94 S.Ct. 613.

'The Robinson (414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427), Gustafson (414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456) 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 [234 Ga. 492] 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...

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