742 F.2d 977 (6th Cir. 1984), 83-3174, Tarter v. Raybuck

Docket Nº:83-3174.
Citation:742 F.2d 977
Party Name:David TARTER, et al., Plaintiffs-Appellants, v. William RAYBUCK, et al., Defendants-Appellees.
Case Date:August 31, 1984
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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742 F.2d 977 (6th Cir. 1984)

David TARTER, et al., Plaintiffs-Appellants,

v.

William RAYBUCK, et al., Defendants-Appellees.

No. 83-3174.

United States Court of Appeals, Sixth Circuit

August 31, 1984

        Argued March 6, 1984.

Page 978

        George B. Vasko (argued), Akron, Ohio, for plaintiffs-appellants.

        Dennis M. Whalen (argued), Cuyahoga Falls, Ohio, for defendants-appellees.

        Before MERRITT and KRUPANSKY, Circuit Judges and PHILLIPS, Senior Circuit Judge.

        PHILLIPS, Senior Circuit Judge.

        This action was brought under 42 U.S.C. Sec. 1983 by David Tarter, and his parents, Judy and Dennis Tarter. The defendants were five administrators of the Cuyahoga Falls City School District, William Raybuck, David E. Rump, William Spargur, Marianne Rovnyak, and Dr. Harold E. Wilson,

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and the Cuyahoga Falls Board of Education. The complaint alleged that David, while a student at Cuyahoga Falls High School, had been subjected to an unlawful search by the defendant school administrators, and that David, Judy and Dennis Tarter had been falsely imprisoned by the school administrators. The complaint also sought an order compelling the defendant school board to reinstate David as a student at the Cuyahoga Falls High School. Defendants counterclaimed seeking costs and attorneys fees.

        This suit was tried in the district court on January 3, 1983. At the close of plaintiffs' case, the district court granted a directed verdict in favor of defendants Rovnyak, Wilson and the Board of Education, and the trial continued. The district court issued its findings of fact and conclusions of law reported in Tarter v. Raybuck, 556 F.Supp. 625 (N.D.Ohio 1983), and rendered judgment in favor of defendants. In addition, the court found that plaintiff's cause of action was frivolous, unreasonable or without foundation, and awarded defendants attorneys fees pursuant to 42 U.S.C. Sec. 1988. 1 On appeal, plaintiffs make two contentions: (1) that the district court erred in holding that the search of David Tarter was not unconstitutional; and (2) that the district court erred in awarding attorneys fees against the plaintiffs.

       I.

        On March 3, 1981 David Tarter was a junior at Cuyahoga Falls High School. Upon his arrival at school that morning he went to a designated smoking area in a parking lot adjacent to the high school building. That day three defendants, David Rump, the Administrative Principal, and unit principals William Raybuck and William Spargur had undertaken surveillance of the smoking area, as a result of reports previously received regarding alleged drug use and vandalism by students while in the smoking area.

        The administrators observed students smoking cigarettes or marijuana, and the exchange of money and plastic bags which they believed contained marijuana, including an exchange between David Tarter and Michael Cosner. Thus, the school officials converged upon the smoking area and directed a number of students, including David Tarter, to the faculty lounge. Some students were released immediately; however, the school officials undertook questioning those students they suspected involved in illegal activity. In the meantime the local police were called to the scene. In addition, a number of students, including Tarter, were given forms to sign indicating notice of intent to suspend.

        The school officials requested several students, including Tarter, to empty their coat pockets; all did so. No incriminating evidence was found on Tarter. However, Raybuck testified he detected an odor of marijuana on Tarter's breath. Thereafter, Unit Principal Raybuck informed Tarter and three others that they were going to be suspended. He then left to attempt to call the parents or guardian of each student.

        During the course of these events, the police arrived, conducted a search of several students, and took several away. Mr. Raybuck then took David Tarter to the office, and after a conversation with William Spargur, advised Tarter of what he had seen, and indicated the belief that Tarter had sold marijuana to Michael Cosner. Mr. Raybuck informed David Tarter that he wished to conduct a further search. He then took Tarter to the "clinic", a small room near the office, to conduct the search. Defendant Spargur was also present while Ms. Rovnyak stood outside the door of the "clinic". Pursuant to defendant's request, David Tarter emptied his pockets, removed his jacket, boots and shirt. No incriminating evidence was found. Raybuck and Spargur then asked Tarter to remove his

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pants; Tarter refused, the search ceased, and the police were summoned. 2

        A few minutes later, David's parents arrived and entered the clinic. Defendants Ms. Rovnyak and Mr. Rump also entered the clinic at this time. During discussions concerning the morning's events, the Tarter parents were advised that the police had been summoned. Mr. Tarter advised his son to put on his clothes, and stated that they were going home. The school officials requested they wait until the police arrived; the Tarters refused. According to the district court's findings, the plaintiffs "left the premises without interference from any of the defendants." 556 F.Supp. at 628.

        On March 3, 1981, the day of the incident in question, David Tarter was suspended from school for a period of ten days for possession and/or use of marijuana based upon the observations of defendants Raybuck, Spargur and Rump.

        David Tarter was subsequently expelled for the balance of the semester by the Superintendent of Schools. The Cuyahoga Falls School Board conducted a hearing on David Tarter's appeal of the expulsion, and affirmed the decision of the Superintendent. The Tarters were represented by counsel at the hearing.

       II.

        Plaintiffs challenge the constitutionality of the school officials' search of David Tarter. Thus, we are presented with the question of the role of the fourth amendment in the context of the public school system. More precisely, we consider whether defendants Raybuck and Spargur violated David Tarter's constitutional rights when they searched his person on the premises of Cuyahoga Falls High School on March 3, 1981.

        The district court concluded David Tarter "consented to the search conducted by and at the request of defendants Raybuck and Spargur ... [and] the ensuing search did not violate a constitutionally protected right of the plaintiff David Tarter." 556 F.Supp. at 628. Alternatively, it addressed the question of the reasonableness of the search in the context of the fourth amendment constraints "assuming arguendo that the plaintiff David Tarter was intimidated by the presence of his high school principals to consent involuntarily to the search...." Id. at 629. The court concluded the search was reasonable under the circumstances, and even assuming the absence of consent David Tarter's fourth amendment rights were not violated. Id. at 630.

        We are not as convinced as the district court that David Tarter knowingly and intelligently waived his constitutional rights when he "consented" to be searched, and we are not inclined to resolve this case on the basis of consent. The burden would be upon defendants to demonstrate such a voluntary relinquishment of constitutional rights by plaintiff. There is a presumption against the waiver of constitutional rights. That he may have acquiesced in the initial search does not necessarily demonstrate the relinquishment of his rights to challenge his initial search. In fact, David

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Tarter's testimony indicates he only submitted to the search because he was afraid. Furthermore, there is no indication he even was aware that he might have had a constitutional right to object to a search. His eventual refusal to be strip-searched fully is not necessarily an indication of a waiver of his rights, rather it is equally likely that personal modesty or embarrassment resulted in his ultimate refusal to permit the search to continue.

        It is beyond peradventure that school children do not shed their constitutional rights at the school house gate. Tinker v. Des Moines Independent Comm. School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). It is well recognized that school officials are subject to constitutional restraints as state officials. See, e.g., Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (due process hearing rights for school suspensions); Tinker, supra. (First Amendment rights available to students subject to application in light of special circumstances of the school environment). School officials, employed and paid by the state and supervising children, are agents of the government and are constrained by the Fourth Amendment. Horton v. Goose Creek Indep. School District, 690 F.2d 470 (5th Cir.1982) cert. denied, --- U.S. ----, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983) (per curiam) (challenge to the use of canine contraband detection program); State in Interest of T.L.O., 94 N.J. 331, 463 A.2d 934, 943 (1983) cert. granted; sub nom. State of New Jersey v. T.L.O., --- U.S. ----, 104 S.Ct. 480, 78 L.Ed.2d 678 (1983) scheduled for reargument (1984). 3 Accord. Bellnier v. Lund, 438 F.Supp. 47 (N.D.N.Y.1977); State v. Young, 234 Ga. 488, 216 S.E.2d 586, cert. denied, 423 U.S. 1039, 96 S.Ct. 576, 46 L.Ed.2d 413 (1975); People v. Scott, 34 N.Y.2d 483, 358 N.Y.S.2d 403, 315 N.E.2d 466 (1974). 4

        The fourth amendment 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...." "The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard...

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