646 P.2d 252 (Alaska App. 1982), 4905, D. R. C. v. State

Docket Nº:4905.
Citation:646 P.2d 252
Opinion Judge:SINGLETON, Judge.
Party Name:D. R. C., Appellant, v. STATE of Alaska, Appellee.
Attorney:Peter F. Mysing, Asst. Public Defender, Kenai, and Brian Shortell, Public Defender, Anchorage, for appellant. Gayle A. Horetski, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.
Judge Panel:Before BRYNER, C. J., and COATS and SINGLETON, JJ.
Case Date:June 11, 1982
Court:Court of Appeals of Alaska

Page 252

646 P.2d 252 (Alaska App. 1982)

D. R. C., Appellant,

v.

STATE of Alaska, Appellee.

No. 4905.

Alaska Court of Appeals

June 11, 1982

Page 253

Peter F. Mysing, Asst. Public Defender, Kenai, and Brian Shortell, Public Defender, Anchorage, for appellant.

Gayle A. Horetski, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

Before BRYNER, C. J., and COATS and SINGLETON, JJ.

OPINION

SINGLETON, Judge.

D.R.C. appeals from a determination that he is a delinquent minor 1 based upon a jury finding that he had committed petty larceny. 2

On appeal D.R.C. alleges that evidence which was seized in violation of the state 3 and federal constitutions 4 was introduced against him at the delinquency proceeding. The following facts establish the context in which the search and seizure occurred.

Norman Hiler, Walter Krieger and D.R.C. are students at Kenai Central High School. On February 19, 1979, Hiler and Krieger attended second-period gym classes. Hiler was in a class instructed by Coach Robert Boudreaux; Krieger was in a different teacher's class. The lockers in the boys' locker room were reserved for students who rented them or who participated on a school team. Hiler did not have a locker and therefore, after changing for his weightlifting class, hung his clothes on a hook on the wall. His wallet, which was in the back pocket of his trousers, contained approximately fifty-five dollars-consisting of two twenty-dollar bills and at least three five-dollar bills.

Because the Kenai High School had experienced quite a bit of theft in the locker rooms during gym classes, Coach Boudreaux's policy was to remain in the locker room until all the students had gone into the gym and to keep the locker room locked while classes were in progress. On February 19, Boudreaux waited until his entire

Page 254

class, including Hiler, had gone into the gym; then he locked the door to the outside hall. Boudreaux then inspected the entire area, checking for students, and found no one left in the locker room except Krieger. After asking Krieger, whom he knew, to make sure the gym door was locked before leaving for class, Boudreaux left. About this time, D.R.C., whom Krieger did not know, entered the locker room to use the lavatory. D.R.C. agreed to lock the door when he left and Krieger went to class. Krieger testified that he watched the front door during his class but did not see D.R.C. leave the locker room.

After his class, Hiler returned to the locker room, noticed that his money was missing, and notified Boudreaux who in turn confronted Krieger. Krieger mentioned seeing someone he later identified as D.R.C., but whose name he did not know, and he and Hiler were told by Boudreaux to find and bring D.R.C. to him. The two subsequently confronted D.R.C. in the hall and told him that he was wanted by Boudreaux; D.R.C. demurred and a scuffle ensued between D.R.C. and Hiler. The fight was broken up by two teachers who escorted Hiler and D.R.C. to the office of Gregory Daniels, the assistant principal. Daniels calmed the boys down and learned the reason for the fight from Hiler. Daniels then excused Hiler to another room and Boudreaux entered the office. D.R.C. was questioned about the missing money by Daniels and searched by Boudreaux, Daniels and Clark. Daniels and Boudreaux testified that D.R.C. consented to the search, but D.R.C. denied this assertion. Boudreaux patted down D.R.C., frisked his pockets and had him remove his outer coat which was then searched. Finally Boudreaux asked D.R.C. to remove his shoes. An amount of money similar in denominations to that described by Hiler was found in one of D.R.C.'s shoes. After the money was found the police were called.

Boudreaux and Daniels had conducted searches in the past, though never strip searches. According to Boudreaux, there was a school policy of working "very, very closely with the police in (a case of) theft or drugs," and if stolen goods or illegal drugs were found on a student the police were generally brought in. Daniels, before authorizing the search, knew that D.R.C. was "in the area" when the money was stolen, and was the suspected culprit. He discussed the matter with Boudreaux before they searched D.R.C. Furthermore, the school district's policy manual permitted school officials to search the students for "cause," such as weapons, drugs or stolen money.

Subsequently, a petition of alleged delinquency was filed against D.R.C. D.R.C.'s counsel filed a motion to suppress the money that was recovered during the search. The motion was denied by the trial court, and a jury trial was held. D.R.C. was found guilty of petty larceny. Following his conviction, the court declared D.R.C. a delinquent but placed him on probation on the conditions that he stay in his father's care and serve a temporary detention at the McLaughlin Youth Center. 5 D.R.C. questions the denial of his motion to suppress the money found in his shoe. The sole issue before us is whether items gathered during such a search are admissible in evidence at a delinquancy proceeding.

No Alaska case discusses the applicability of the state and federal constitutional prohibitions against unreasonable searches and seizures to school searches of minor students by school officials. In Cox v. State, 575 P.2d 297, 303 (Alaska 1978), the court indicated in passing that school officials who seized an adult non-student on school grounds might not be governmental agents for purposes of the state and federal constitutions, and indicated that even though there were cases where the fourth amendment applied, the exclusionary rule usually did not. Id. at 303 n.19.

Page 255

The cases from other jurisdictions that have addressed this issue, while generally consistent in result, are varied in their rationales. Essentially the cases reflect four different views regarding the application of the fourth amendment and the exclusionary rule to searches of school students on school premises by school employees. The views are as follows: (1) The fourth amendment does not apply because the search is performed in a private rather than a governmental capacity because the school official stands in loco parentis, i.e., in the position of a parent. In re Donaldson, 269 Cal.App.2d 509, 75 Cal.Rptr. 220 (1969); Commonwealth v. Dingfelt, 227 Pa.Super. 380, 323 A.2d 145 (1974); Mercer v. State, 450 S.W.2d 715 (Tex.Civ.App.1970). (2) The fourth amendment applies but the exclusionary rule does not. United States v. Coles, 302 F.Supp. 99 (N.D.Me.1969); State v. Young, 234 Ga. 488, 216 S.E.2d 586 (1975); State v. Wingerd, 40 Ohio App.2d 236, 318 N.E.2d 866 (1974) (dictum). (3) The fourth amendment and the exclusionary rule apply, but reasons generally subsumed under the heading in loco parentis lower the standard to be applied in determining the reasonableness of the search from probable cause to reasonable suspicion. In re W., 29 Cal.App.3d 777, 105 Cal.Rptr. 775 (1973); In re C., 26 Cal.App.3d 320, 102 Cal.Rptr. 682 (1972); In re G. C., 121 N.J.Super. 108, 296 A.2d 102 (1972); People v. Singletary, 37 N.Y.2d 310, 372 N.Y.S.2d 68, 333 N.E.2d 369 (1975); People v. D., 34 N.Y.2d 483, 315 N.E.2d 466 (1974); People v. Jackson, 65 Misc.2d 909, 319 N.Y.S.2d 731 (N.Y.App. Term 1971), aff'd, 30 N.Y.2d 734, 333 N.Y.S.2d 167, 284 N.E.2d 153 (N.Y.1972). (4) The fourth amendment and the exclusionary rule apply as does the requirement of probable cause. State v. Mora, 307 So.2d 317 (La.1975), vacated, 423 U.S. 809, 96 S.Ct. 20, 46 L.Ed.2d 29 (1975) (case remanded to consider whether judgment was based upon federal or state constitutional grounds, or both), modified, 330 So.2d 900 (La.1976) (judgment held to have been based on both federal and state constitutional grounds), cert. denied, 429 U.S. 1004, 97 S.Ct. 538, 50 L.Ed.2d 616 (1976). The cases representing each of these views are collected in Shaw, Admissibility, in Criminal Case, of Evidence Obtained by Search Conducted by School Official or Teacher, 49 A.L.R.3d 978 (1973); see also State In Interest Of T.L.O., 428 A.2d 1327, 1332 (N.J.Super.1980).

The trial court adopted the first position's reasoning in holding that Boudreaux and Daniels were acting as private persons when conducting the search. 6

We agree with appellant that the phrase in loco parentis, used by Blackstone to describe the relationship between teachers and students when education was predominately private and teachers could reasonably be viewed as the agent of the students' parents, has little utility in describing contemporary compulsory public education. See Ingraham v. Wright, 430 U.S. 651, 662, 97 S.Ct. 1401, 1407, 51 L.Ed.2d 711, 724 (1977). Under Alaska law, education is a state responsibility, see Alaska Const. art. VII, § 1, and school attendance is compulsory by law. AS 14.30.010-14.30.050. Moreover, it appears that the school officials, in claiming the right to search D.R.C., relied upon their status as public school officials and acted pursuant to policies adopted by the school board and therefore acted under "color of law." Cf. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628, 1637 (1942) (fourteenth amendment applies to school boards). Consequently, there is sufficient "state action" to present a constitutional question under the fourth and fourteenth amendments to the United States Constitution and sufficient governmental action to raise questions under article I, sections 14 and 22 of the state constitution. See J. M. A. v. State, 542 P.2d 170, 173-174 (Alaska 1975).

Page 256

A determination that the fourteenth amendment applies to the actions of Boudreaux and Daniels while necessary to make the fourth amendment applicable is not sufficient for that purpose. In Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 505-09, 89 S.Ct. 733, 735-38, 21 L.Ed.2d 731,...

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8 practice notes
  • Reasonable Suspicion, Unreasonable Search: Defining Fourth Amendment Protections against Searches of Students' Personal Electronic Devices by Public School Officials
    • United States
    • Capital University Law Review Nbr. 40-1, September 2011
    • September 1, 2011
    ...Amendment protections to public school students via application of the Fourteenth Amendment. 31 21Id. at 554. 22See D.R.C. v. State, 646 P.2d 252, 257–58 (Alaska Ct. App. 1982); In re G., 90 Cal. Rptr. 361, 364 (Cal. Ct. App. 1970); In re Donaldson, 75 Cal. Rptr. 220, 221–22 (Cal. Ct. App. ......
  • 698 P.2d 1130 (Wyo. 1985), 84-159, Hurst v. State
    • United States
    • Wyoming Supreme Court of Wyoming
    • April 9, 1985
    ...considered a law enforcement officer for purposes of federal constitutional limitations on search and seizure. DRC v. State, Alaska App., 646 P.2d 252 (1982). A director of corrections was not a law enforcement officer for purposes of a venue statute. Busbee v. Reserve Insurance Co., supra ......
  • 694 P.2d 1078 (Wash. 1985), 49873-3, Kuehn v. Renton School Dist. No. 403
    • United States
    • Washington Supreme Court of Washington
    • January 11, 1985
    ...Two recent cases, both criminal, demonstrate the point. Mercer v. State, 450 S.W.2d 715 (Tex.Civ.App.1970); D.R.C. v. State, 646 P.2d 252 (Alaska Ct.App.1982). These cases are "empty the pockets" cases in which a school official suspected a student possessed contraband. The ration......
  • 469 U.S. 325 (1985), 83-712, New Jersey v. T.L.O.
    • United States
    • Federal Cases United States Supreme Court
    • January 15, 1985
    ...parties acting in loco parentis and are therefore not subject to the constraints of the Fourth Amendment. See, e.g., D. R. C. v. State, 646 P.2d 252 (Alaska App.1982); In re G., 11 Cal.App.3d 1193, 90 Cal.Rptr. 361 (1970); In re Donaldson, 269 Cal.App.2d 509, 75 Cal.Rptr. 220 (1969); R.C.M.......
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7 cases
  • 698 P.2d 1130 (Wyo. 1985), 84-159, Hurst v. State
    • United States
    • Wyoming Supreme Court of Wyoming
    • April 9, 1985
    ...considered a law enforcement officer for purposes of federal constitutional limitations on search and seizure. DRC v. State, Alaska App., 646 P.2d 252 (1982). A director of corrections was not a law enforcement officer for purposes of a venue statute. Busbee v. Reserve Insurance Co., supra ......
  • 694 P.2d 1078 (Wash. 1985), 49873-3, Kuehn v. Renton School Dist. No. 403
    • United States
    • Washington Supreme Court of Washington
    • January 11, 1985
    ...Two recent cases, both criminal, demonstrate the point. Mercer v. State, 450 S.W.2d 715 (Tex.Civ.App.1970); D.R.C. v. State, 646 P.2d 252 (Alaska Ct.App.1982). These cases are "empty the pockets" cases in which a school official suspected a student possessed contraband. The ration......
  • 469 U.S. 325 (1985), 83-712, New Jersey v. T.L.O.
    • United States
    • Federal Cases United States Supreme Court
    • January 15, 1985
    ...parties acting in loco parentis and are therefore not subject to the constraints of the Fourth Amendment. See, e.g., D. R. C. v. State, 646 P.2d 252 (Alaska App.1982); In re G., 11 Cal.App.3d 1193, 90 Cal.Rptr. 361 (1970); In re Donaldson, 269 Cal.App.2d 509, 75 Cal.Rptr. 220 (1969); R.C.M.......
  • 53 P.3d 1115 (Alaska 2002), S-10280, Willoya v. State, Dept. of Corrections
    • United States
    • Alaska Supreme Court of Alaska
    • August 30, 2002
    ...be free from illegal search and seizure is not implicated in this case as it is a civil case and not a criminal case. See D.R.C. v. State, 646 P.2d 252, 260 (Alaska App.1982) (stating that "the fourth amendment, properly viewed in its historical context, applies to two kinds of situati......
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