State in Interest of C., In re

• Decision Date: 06 October 1972
• Citation: 296 A.2d 102,121 N.J.Super. 108
• Parties: Page 108 121 N.J.Super. 108 296 A.2d 102 In re STATE In the Interest of G.C. Juvenile and Domestic Relations Court, Union County, New Jersey
• Court: New Jersey Superior Court

Page 108

121 N.J.Super. 108

296 A.2d 102

In re STATE In the Interest of G.C.

Juvenile and Domestic Relations Court Union County, New Jersey.

Oct. 6, 1972.

Victor J. Freda, Roselle Park, for respondent (Sheldon & Freda, Roselle Park, attorneys).

Charles Daly, Asst. Prosecutor, for the State of N.J. (Michael H. Kessler, Asst. Prosecutor, on the brief; Karl Asch, Union County Prosecutor, attorney).

KENTZ, P.J.J. & D.R.

A complaint was filed in this court pursuant to R. 5:8-1 alleging that a 16-year-old juvenile possessed and sold amphetamine tablets in violation of N.J.S.A. 2A:4-14. The juvenile, sometimes otherwise herein referred to as G.C., was accused of having illegally approximately 90 pills in a plastic container which she offered for sale to eighth grade students at a price of three pills for one dollar.

On the motion of the prosecutor and with the consent of the complainant, the complaint was amended to eliminate the charge of sale of a dangerous drug so that only the allegation of possession remained.

The complaint was listed on the formal calendar as provided by R. 5:9-1(c) and the juvenile was represented by retained counsel. The county prosecutor was requested to appear and prosecute the complaint in accordance with R. 5:3-3(c).

The juvenile denied the complaint as amended and moved to suppress certain evidence on the ground that it was the product of an unlawful search and seizure in violation of the Fourth Amendment to the Constitution of the United States. R. 5:8-9 permits an aggrieved juvenile to make a motion to suppress evidence in the Juvenile and Domestic Relations Court. See State in the interest of L.B., 99 N.J.Super. 589, 240 A.2d 709 (J. & D.R.Ct.1968); and State v. Lowry, 95 N.J.Super. 307, 230 A.2d 907 (Law Div.1967).

The pertinent facts are as follows: On February 7, 1972 the principal of the public high school that G.C. attended received a telephone call from an unidentified person. The caller reported that G.C. had been selling pills that morning in the girls room. The following morning, a student approached one of the teachers at the school and informed her that the juvenile had a partially filled plastic container of white pills and was trying to sell them to other students. The teacher reported this to the principal who then had G.C. brought into his office. Upon her arrival she was informed of the charges made against her, and the principal stated that it was his duty to investigate the reports in order to protect the student body and her reputation. G.C. denied the allegations and agreed to cooperate in a search of her person.

A female teacher was then summoned to the office in order to carry out the search. The juvenile emptied her pockets and, upon the principal's request, she permitted the female teacher to feel her pockets to make certain that they were empty. G.C. was next asked to empty her purse. She agreed and dumped the contents of the purse onto the principal's desk. He asked if she would consent to his looking into the purse. Without further comment, she unzipped a compartment in her purse and tossed a partially filled container of white pills onto the desk. The juvenile was then asked if she would reveal the names of any students that she had sold pills to, or at least the names of those students who might take an overdose. G.C. responded with the name of one student.

The principal then sent for a police officer to ascertain the nature of the pills discovered. An officer arrived and after conducting a field examination stated that the pills appeared to be amphetamines. A subsequent laboratory analysis confirmed this.

The juvenile's parents were summoned to the school. When they arrived the principal informed them of G.C.'s conduct and that she would be suspended for ten school days.

The admissibility of evidence secured by a school administrator from a student seems to be a question of first impression in our State. At issue are the conflicting interests of a student's right to privacy and a school official's 'affirmative obligation of the school authorities to investigate any charge that a student is using or possessing narcotics * * *.' People v. Overton, 20 N.Y.2d 360, 362-363, 283 N.Y.S.2d 22, 24-25, 229 N.E.2d 596, 597-598 (Ct.App.1967); Moore v. Student Affairs Committee, 284 F.Supp. 725, 729-730. (M.D.Ala.1968).

The starting point for analyzing a juvenile's assertion of constitutional rights is found in the case of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), wherein it was held that 'neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.' Children are also entitled to the constitutional rights and safeguards of due process of law. Building upon the Gault foundation, the United States Supreme Court emphasized, in Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), that a juvenile does not leave his constitutional protection at the school house door. The Tinker case involved a nondisruptive wearing of black armbands in silent protest against the Vietnam war. Thus at stake were the 'preferred' First Amendment liberties of freedom of expression and speech, rights that traditionally have enjoyed superior status in court interpretations of the United States Constitution. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949). It would seem extremely unlikely that sudent rights under the United States Constitution extend to the point that actual disruption would be permitted in the classroom.

The precise applicability of the Fourth Amendment to disciplinary proceedings in an institutional environment is unresolved. It certainly goes without saying that the suppression rule, as enunciated in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), is not present in the principal-student confrontation. Chief Justice Weintraub suggests, in State v. Bisaccia, 58 N.J. 586, 591, 279 A.2d 675, 677 (1971), that 'It is puzzling that the suppression rule was not anchored to the reason for its creation. The evil sought to be ended was insolence in office.'

It is well established that the Fourth Amendment protects the people against an unreasonable search and seizure. State v. Campbell, 53 N.J. 230, 250 A.2d 1 (1969); State v. Fioravanti, 46 N.J. 109, 122, 215 A.2d 16 (1965). Whether a high school administrator is acting 'insolently' in investigating allegations that one of the students is selling dangerous drugs is a fact question that goes to the overall reasonableness of the search. 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 * * *.' See Bisaccia, supra, at 590, 279 A.2d at 677.

I have indicated that juveniles are entitled to due process of law under Gault, supra, and that their constitutional rights accompany them into the classroom, Tinker, supra. The question remains whether or not the student has all the protections of the Fourth Amendment when under interrogation by his public high school principal or some other school official. The Fourth Amendment only restrains the actions of a so-called 'governmental official.' State v. Frank, 112 N.J.Super. 592, 272 A.2d 309 (App.Div.1971); Del Presto v. Del Presto, 97 N.J.Super. 446, 235 A.2d 240 (App.Div.1967). It has no applicability if the school official is acting as a private citizen. Cf. State v. Kelly, 61 N.J. 283, 294 A.2d 41 (1972).

In Frank, supra, the court said:

* * * The security provided by the Fourth Amendment against unreasonable searches and seizures extends only to governmental action. Evidence of criminal activity discovered by a civilian, not acting as a government agent or in concert with government agents, may be reported or surrendered to the police without violating Fourth Amendment rights * * *. (112 N.J.Super. at 594, 272 A.2d at 310)

The status of a school administrator as either a government official or private citizen has been debated recently in the courts. Some jurisdictions have held that a public school officer is not a government official subject to the restraints of the Fourth Amendment. See People v. Stewart, 63 Misc.2d 601, 313 N.Y.S.2d 253 (Crim.Ct.N.Y.C.1970); Moore v. Student Affairs Committee of Troy State University, 284 F.Supp. 725 (M.D.Ala.1968); Cf. Piazzola v. Watkins, 316 F.Supp. 624 (M.D.Ala.1970).

Several other jurisdictions have accepted the opposite proposition that a public school administrator is a government official. State v. Baccino, 282 A.2d 869 (Del.Super.1971); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Tinker v. Des Moines, Supra; Burnside v. Byars, 363 F.2d 744 (5 Cir. 1966); Ferrell v. Dallas Independent School District, 392 F.2d 697 (5 Cir. 1968); People v. Jackson, 65 Misc.2d 909, 319 N.Y.S.2d 731, (App.Div.1971).

New Jersey has adopted the latter position and considered public school authorities to be government officers. Durgin v. Brown, 37 N.J. 189, 180 A.2d 136 (1962); Kaveny v. Board of Commissioners, Montclair, 69 N.J.Super. 94, 173 A.2d 536 (Law Div.1961), aff'd 71 N.J.Super. 244, 176 A.2d 802 (App.Div.1962).

Generally the actions of a government official who is performing his assigned duties should be subject to the restraints of the Bill of Rights and especially to the inhibitions of the Fourth Amendment. The right of privacy that the Mapp rule enforces must be preserved against the unmitigated zeal and 'insolence' of government officers at all levels. See State v. Bisaccia, Supra.

The question that remains involves the circumstances, if any, that will permit public school administrators to nevertheless encroach on student rights. Phrased differently, the issue may be stated thusly: Is the danger of illegal drug possession and sale by a student sufficient to...