Com. v. Carey

• Decision Date: 29 May 1990
• Parties: , 60 Ed. Law Rep. 920 COMMONWEALTH v. Craig A. CAREY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1199

554 N.E.2d 1199

407 Mass. 528, 60 Ed. Law Rep. 920

COMMONWEALTH v. Craig A. CAREY.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued March 7, 1990.

Decided May 29, 1990.

James J. Long, Jr., Woburn, for defendant.

Patricia M. Darrigo, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LYNCH, Justice.

The defendant, Craig A. Carey, was found guilty of unlawful possession of a firearm after a bench trial in the Woburn Division of the District Court. He sought a de novo trial before a jury of six in the Lowell Division of the District Court, and in that proceeding filed a motion to suppress both a sawed-off rifle discovered in a warrantless search of his high school locker, and his statement to a police officer, acknowledging that the gun was his. After a hearing, the judge denied the defendant's motion on March 24, 1988. Carey filed an application for interlocutory appeal of that decision under Mass.R.Crim.P. 15(b), as amended, 397 Mass. 1225 (1986). A single justice of this court allowed the application and reported the case to the Appeals Court. We transferred the case here on our own motion, and now affirm.

At the time of the events in question, the defendant, a seventeen year old young man about six weeks shy of his eighteenth birthday, was a senior at Woburn High School. On Monday morning, March 9, 1987, two students reported to their industrial arts teacher that Carey had just shown them a gun that he had brought to school in response to an altercation that occurred on the previous Friday afternoon. The teacher promptly relayed the information to assistant principal Paul Sweeney. While the teacher did not tell Sweeney the names of the students who had made the report, he assured the assistant principal that he knew them from having them in his class the past six months, and felt they were reliable.

Sweeney immediately told principal James Foley and housemaster Robert DeLuca of the possibility of a gun on school premises, and the three administrators decided on a plan of action. ¹ They determined to seek out Carey and, if they could find no evidence of a gun in his possession, to search the areas where he had been, and, if that course yielded no gun, to search Carey's locker.

While these administrators at Woburn High School had never handled a situation in which a student had brought a gun to school, the judge found that they had followed precisely the same steps on numerous prior occasions when they had a reasonable belief that a student had brought contraband to school. However, because in this instance the object of the search was either an armed student or a gun, Sweeney, DeLuca, and Foley agreed to take an extra precautionary measure--they called the police. The judge found that the police had no input into the school administrators' plan, and were notified for safety reasons. ²

Detective Sergeant Robert Scire of the Woburn police department arrived at the high school within ten to fifteen minutes, and he and the school administrators questioned the defendant in a school office. When a search of the defendant and his most recent whereabouts failed to disclose a gun, DeLuca searched the defendant's locker. He discovered a dungaree jacket in which he found concealed a sawed-off .22 calibre rifle, a gun sight, a black powdery substance, and a bullet. DeLuca brought the jacket and the gun to Detective Scire.

After advising the defendant of his Miranda rights, the officer showed Carey the jacket and the gun and asked him whether they were his. After an initial disclaimer Carey acknowledged that they were. The judge found that the defendant was alert, calm, responsive, and cooperative in his interaction with the police officer throughout this period, and that he understood and voluntarily waived his Miranda rights. He then denied the motion to suppress.

1. Search of student's locker. Any inquiry into the constitutional validity of the school officials' conduct must start with an examination whether this action constituted a search to which the Fourth Amendment to the United States Constitution is applicable. ³ As the Commonwealth concedes, school administrators are governmental actors to whose conduct Fourth Amendment strictures apply. New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720 (1985). But the Fourth Amendment protects a person from governmental intrusions only when a "legitimate expectation of privacy [exists] in the particular circumstances." Commonwealth v. Blinn, 399 Mass. 126, 127, 503 N.E.2d 25, appeal dismissed, 482 U.S. 921, 107 S.Ct. 3202, 96 L.Ed.2d 689 (1987), quoting Commonwealth v. Podgurski, 386 Mass. 385, 387, 436 N.E.2d 150 (1982), cert. denied, 459 U.S. 1222, 103 S.Ct. 1167, 75 L.Ed.2d 464 (1983). See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The test is whether the defendant had a subjective expectation of privacy, and if he did, "whether society is willing to recognize that expectation as reasonable." Commonwealth v. Panetti, 406 Mass. 230, 231, 547 N.E.2d 46 (1989). O'Connor v Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492, 1497, 94 L.Ed.2d 714 (1987).

The Commonwealth asserts that any expectation of privacy a high school student might have in a locker vis-a-vis school administrators is unreasonable, and thus the Fourth Amendment does not apply. In New Jersey v. T.L.O., supra, the Supreme Court recognized, but did not decide, the issue of a student's expectation of privacy in such circumstance. Id. 469 U.S. at 337 n. 5, 105 S.Ct. at 740 n. 5. Most courts that addressed the issue prior to T.L.O. concluded that no such expectation of privacy exists because the lockers are school property, made available to students for the limited purpose of storing items legitimately on school premises. People v. Overton, 24 N.Y.2d 522, 525, 301 N.Y.S.2d 479, 249 N.E.2d 366 (1969). Unlike the lessor of a rental locker in an airport or train station, these courts stress, the student shares joint custody of the locker with school administrators, who retain either combinations or master keys, and thus a right of access when there is reason to believe the locker is being used for illegitimate purposes. Zamora v. Pomeroy, 639 F.2d 662, 670 (10th Cir.1981). State v. Stein, 203 Kan. 638, 640, 456 P.2d 1 (1969), cert. denied, 397 U.S. 947, 90 S.Ct. 966, 25 L.Ed.2d 128 (1970). See Commonwealth v. Cadoret, 388 Mass. 148, 150, 445 N.E.2d 1050 (1983) (extent to which area is freely accessible to persons other than defendant and whether defendant controlled access to area relevant to expectation of privacy issue); Commonwealth v. Royce, 20 Mass.App.Ct. 221, 225, 479 N.E.2d 198 (1985) (while defendant may have used, and had key to, locker in basement of his grandparents' house, he had no right to exclude others from access to it, and therefore had no legitimate expectation of privacy in it). In the case at bar the judge found the defendant's homeroom teacher kept a list of locker assignments and corresponding combinations.

On the other hand, several courts have expressly held Fourth Amendment standards apply to the search of school lockers. State v. Engerud, 94 N.J. 331, 349, 463 A.2d 934 (1983). State v. Michael G., 106 N.M. 644, 748 P.2d 17 (Ct.App.1987). In Interest of Dumas, 357 Pa.Super. 294, 297, 515 A.2d 984 (1986). State v. Joseph T., 336 S.E.2d 728, 736 (W.Va.1985).

Most courts agree, however, that it is important to consider the effect of a school policy making the lockers subject to search by administrators. Some courts that have held there to be no reasonable expectation of privacy in a school locker have stressed the factor that such a policy exists. Zamora v. Pomeroy, supra at 671. People v. Overton, supra, 24 N.Y.2d at 524, 301 N.Y.S.2d 479, 249 N.E.2d 366. See also O'Connor v. Ortega, supra, 480 U.S. at 717, 107 S.Ct. at 1498 (while public employees have reasonable expectation of privacy in their offices, desks, and file cabinets, these expectations "may be reduced by virtue of actual office practices and procedures, or by legitimate regulation"); 4 W.R. LaFave, Search and Seizure § 10.11(b), at 177 (2d ed. 1987) ("If the school authorities have made it clear that possession of the locker is 'nonexclusive against the school and its officials,' ... the advance notice provides the student with an opportunity to limit the effect of the intrusion by not keeping highly personal materials in the locker provided by the school" [footnotes omitted] ).

Although the judge found that the Woburn High School administrators had on several prior occasions searched students' lockers, as part of an over-all policy when they suspected a student had contraband at school, he made no specific finding whether there had been advance notice of this policy to students.

In the absence of such a specific finding below, we pass over the expectation of privacy issue because we conclude that the warrantless search of the locker was in any event justified under the Fourth Amendment.

In New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), the United States Supreme Court held that school officials need not obtain a warrant, nor meet the standard of probable cause, in order to search a student under their authority. Id. at 340-341, 105 S.Ct. at 742. Rather, the Court held such a search would pass Fourth Amendment muster if it were reasonable in all the circumstances. Id. at 341, 105 S.Ct. at 742.

Concerns about school officials' vital responsibility to preserve a proper educational environment prompted the Court to adopt a reduced constitutional standard to validate student searches. "The special need for an immediate response to behavior that threatens either the safety of schoolchildren and teachers or the educational process itself justifies the Court in excepting school searches from the warrant and probable cause requirement." Coffman v. State, 782 S.W.2d...