Adam, In re

• Decision Date: 30 June 1997
• Docket Number: No. 96-L-138,96-L-138
• Citation: 120 Ohio App.3d 364,697 N.E.2d 1100
• Parties: , 127 Ed. Law Rep. 1029 In re ADAM.
• Court: Ohio Court of Appeals

Page 364

120 Ohio App.3d 364

697 N.E.2d 1100, 127 Ed. Law Rep. 1029

In re ADAM.

No. 96-L-138.

Court of Appeals of Ohio,

Eleventh District, Lake County.

Decided June 30, 1997.

Charles E. Coulson, Lake County Prosecuting Attorney, and Taylir K. Linden, Assistant Prosecuting Attorney, for appellee.

R. Paul LaPlante, Lake County Public Defender, and Joseph P. Szeman, Assistant Public Defender, for appellant.

WILLIAM M. O'NEILL, Judge.

This is an accelerated calendar appeal submitted on the briefs of both parties.

Appellant, an alleged delinquent child, appeals from a judgment of the Juvenile Division of the Lake County Court of Common Pleas adjudicating him delinquent for possessing drug paraphernalia, a misdemeanor of the fourth degree if committed by an adult, in violation of R.C. 2925.14. For the reasons that follow, we affirm the judgment of the trial court.

The facts pertinent to this appeal are as follows. In June 1995, appellant was a student enrolled at Mentor High School. Appellant participated in vocational education classes at the school, which involved course work several miles away at Lakeland Community College. The rules of Mentor High School are applicable to students who attend classes at Lakeland.

The morning of June 1, 1995, Brian Lee Banks, an electronics instructor at Lakeland, was walking up to the second floor of one of the buildings on the Lakeland campus when he saw one of his students heading toward an exit. As the school prohibits a student from leaving a building without permission, Banks followed the student through the second floor exit door. At the landing of the stairwell, Banks observed two students, appellant and another individual, smoking cigarettes. There is no dispute that the smoking of cigarettes on school property is a violation of Mentor High School's rules.

While talking with appellant and the other individual, Banks stated that he smelled something other than cigarette smoke. Based on encounters Banks had had with marijuana smoke, approximately five or six times previously, he thought the smell was of marijuana and asked if either of the two students had been smoking marijuana. Both students admitted they were smoking cigarettes, but denied marijuana use. Banks escorted the students to their classroom and told their teacher what had happened. Later that morning, Banks called his supervisor to explain what had happened and indicated that he would bring the students involved back to Mentor High School. The two students were not searched at the Lakeland campus.

After appellant returned to Mentor High School, he was called into the principal's office. The principal, Robert G. Haag, indicated that appellant was called into the office based upon Banks's report that he had caught appellant smoking cigarettes and that he believed he smelled marijuana. Despite the fact that Banks "didn't write [appellant] up for smoking marijuana," and Haag's admission that appellant would have been suspended from school on the basis Banks's observations of smoking tobacco without the need for further evidence, Haag proceeded to search appellant.

Haag had appellant turn the pockets of his clothing inside out. A search of the contents of appellant's pockets and wallet produced no evidence of any wrongdoing. Additionally, Haag acknowledged that appellant did not have an odor of any substance about his person. After the search of appellant, Haag went to appellant's locker and opened it. Haag proceeded to search all of the contents in the locker including appellant's books, coat, and book bag. In the course of searching the contents of appellant's locker, Haag opened the outside pockets of appellant's book bag and found a pipe. There is no evidence that appellant's book bag was in his possession at the time of the smoking offense or any place other than in his locker at Mentor High school while he was attending classes at Lakeland that morning. The pipe which was found inside the book bag contained a residue that was believed to be marijuana.

The principal justified the search of appellant's locker and its contents on two grounds. His initial authority was based upon the "reasonable suspicion" standard which permits school administrators to search a student or his belongings when they believe such a search will produce evidence of wrongdoing. This standard is found in R.C. 3313.20(B)(1)(a), which permits school officials to do the following:

"Search any pupil's locker and the contents of the locker that is searched if the principal reasonably suspects that the locker or its contents contains evidence of a pupil's violation of a criminal statute or of a school rule." (Emphasis added.)

Consistent with the statute, Haag stated that his search was based upon his "reasonable belief" that a locker search would reveal evidence of drug use. Were the search to have been authorized on those limited grounds, this matter would represent a straightforward review of that limited authority, based upon reasonable suspicion, which is authorized by the statute. In the instant matter, a student had been found smoking cigarettes on school property, and the teacher had a reasonable belief that he also smelled marijuana. Both acts of prohibited conduct, smoking cigarettes or marijuana, standing alone, would provide justification for the search which followed.

Both the school and the juvenile court, however, clearly indicated that the search was justified alternatively either on the "reasonable suspicion" standard found in R.C. 3313.20(B)(1)(a) or on the basis of the no-reason-at-all standard found in R.C. 3313.20(B)(1)(b), which grants school officials the broad authority to do the following:

"Search any pupil's locker and the contents of any pupil's locker at any time if the board of education posts in a conspicuous place in each school building that has lockers available for use by pupils a notice that the lockers are the property of the board of education and that the lockers and the contents of all the lockers are subject to random search at any time without regard to whether there is a reasonable suspicion that any locker or its contents contains evidence of a violation of a criminal statute or a school rule." (Emphasis added.)

With regard to this second source of authority to justify the search, the principal indicated that he was following a new policy adopted by the board of education, effective January 1995, which in his opinion allowed school officials to search any student's locker and the contents therein at any time for "any reason or no reason." The new policy, posted on all locker bays within the junior high and high school, states as follows:

"The lockers supplied by the Board of Education and used by the students are the property of the Board of Education. Therefore, the student lockers and the contents of all the student lockers are subject to random search at any time without regard to whether there is a reasonable suspicion that any locker or its contents contains evidence of a violation of a criminal statute or a school rule.

"Random searches of lockers may include a search with the assistance of dogs trained to detect the presence of drugs." (Emphasis added.)

Appellant admitted that the pipe found during Haag's search belonged to him, and appellant was suspended from school. Subsequently, a complaint was filed in the Lake County Juvenile Court alleging that appellant was a delinquent child for the offense of possession of drug paraphernalia.

On October 26, 1995, appellant filed a motion to suppress evidence obtained in violation of his rights against unreasonable searches and seizures. The matter came before a magistrate of the court on January 9, 1996, who found the motion not well taken.

Objections to the magistrate's decision were heard by a judge of the juvenile court on March 29, 1996, at which time he took the matter under advisement. On May 31, 1996, the juvenile court issued its decision upholding the legality of the search. In open court the judge found the subject search to be "reasonable" based upon the circumstances of the case and the Supreme Court's pronouncements in New Jersey v. T.L.O. (1985), 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720. In its judgment entry, however, the court clearly demonstrated that the search was justified by the school's "no reason" policy, and then went on to question the validity of both the statute and the school policy which implements the mandates of the statute.

In its judgment entry, the court stated, "It seems to the court that if the schools can go this far, then as counsel suggested, they could search the car, and even eventually, under some theory, possibly leave the school premises for events or activities, etc., and then there would be no telling where this would end." Although the juvenile court questioned the extensive search conducted by school officials in this case, the court ruled that the school had the authority for its search pursuant to the broad authority granted school officials by the legislature in R.C. 3313.20. Indeed, in ruling that both R.C. 3313.20(B)(1)(a) and (b) were controlling in the resolution of this case, the trial court explicitly rejected the standard pronounced by the United States Supreme Court in New Jersey v. T.L.O., discussed above, for evaluating the propriety of school searches. Thus, the juvenile court overruled appellant's objections and denied appellant's motion to suppress. He subsequently entered a plea of no contest. Appellant was found to be a delinquent child and was fined $25.

From this judgment, appellant filed a timely notice of appeal and now argues, in his sole assignment of error, that the juvenile court erred by not granting his motion to suppress. Specifically, appellant argues that, pursuant to R.C. 3313.20(B)(1)(a), the search of his locker was not reasonable under the facts and circumstances of this case. Appellant further argues that R.C. 3313.20(B)(1)(b),...