Com. v. Considine

• Decision Date: 31 January 2007
• Citation: 448 Mass. 295,860 N.E.2d 673
• Parties: COMMONWEALTH v. Keith J. CONSIDINE (and two companion cases<SMALL><SUP>1</SUP></SMALL>).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

860 N.E.2d 673

448 Mass. 295

COMMONWEALTH v. Keith J. CONSIDINE (and two companion cases¹).

Supreme Judicial Court of Massachusetts, Berkshire.

Argued December 4, 2006.

Decided January 31, 2007.

Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.

Judith C. Knight for Keith Considine & another.

Mark G. Miliotis, Boston, for Caleb Tripp.

Tim R. Hwang, pro se, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

COWIN, J.

We consider in this case whether private school officials are agents of the State and thus bound by the constitutional prohibition against unreasonable searches and seizures. The question arises in the context of motions to suppress. The three defendants — Keith Considine, Caleb Tripp, and Jeffrey Rogers — were charged in the Northern Berkshire Division of the District Court Department with one count each of possession of a class B substance, possession of a class D substance, and being a minor in possession of alcohol. Each filed a motion to suppress evidence found in the hotel room in which they were staying during a high school ski trip. Defendant Tripp also filed a motion to suppress statements he made to police and school employees at that time. A judge in the District Court allowed the motions. The Commonwealth's application for interlocutory appeal was allowed, and the case proceeded to the Appeals Court. We subsequently transferred the case here on our own motion. We reverse the order² allowing the motions to suppress.³

Facts. The following summary is taken from the judge's findings of fact. At the relevant time, the three defendants were all students at Bishop Stang High School (school), which is operated by the Roman Catholic Diocese of Fall River. On March 7, 2003, they were among a group of approximately thirty students and nine staff members on a school-sponsored ski trip to Jiminy Peak Resort (hotel) in the town of Hancock. Four students stayed in each room; their parents paid for the rooms. The students were aware that they were subject to certain rules, such as surrendering their keys to a chaperone each morning and not being in their room during the day without a chaperone. The school handbook granted school personnel the right to inspect "any locker at any time if the administration believes that the content of any locker is not in the best interests of the school." The handbook further provided: "Any tobacco, drugs, alcohol, or other illegal substances will be confiscated and dealt with appropriately." In addition, the handbook stated that "[a]ll school rules apply on all field trips."

On March 8, one of the chaperones on the trip learned that some students had been to their room unsupervised, and decided to check on them. She and another chaperone retrieved the room key and proceeded to the room.⁴ The three defendants and the younger brother of Tripp were in the room at various points and were reluctant to leave. Once the boys finally agreed to "go out skiing," everyone left the room.

The chaperones decided to "check" the boys' room and used the key to open the door. They and the school principal searched the room thoroughly, opened containers and bags, and found "numerous items of contraband," including alcohol and lighters. Two clay pipes were found in a search of trash that had been removed from the room. The boys were summoned,⁵ and when they were ordered to empty their pockets, Tripp "handed over" marijuana and a clay pipe, and Rogers "handed over" a small container of marijuana. Hotel security was notified and the head of security (who was also a part-time police officer for the nearby town of Cheshire) responded and ordered the boys to put their belongings in a pile. Each made admissions, with Tripp admitting possession of the cocaine. The hotel security officer called the State police.⁶

Trooper Stephen Jones arrived, advised Tripp of his rights,⁷ and had just begun a conversation with Tripp when attorney Considine, defendant Keith Considine's father, called and instructed "them" not to talk. All questioning then ceased.⁸

Discussion. The defendants argue that the search of their room by school officials is prohibited by the Fourth Amendment to the United States Constitution⁹ and art. 14 of the Massachusetts Declaration of Rights,¹⁰ and that, therefore, reasonable suspicion is required to support the search. The judge agreed. The reasoning for this approach is based on the United States Supreme Court's decision in New Jersey v. T.L.O., 469 U.S. 325, 336-337, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), which held that public school officials searching students' persons and effects act in a public capacity, as agents of the State, and are therefore subject to the Fourth Amendment's exclusionary rule. But, because of their unique position of responsibility to their students and to the public, these officials need act only reasonably in the circumstances — that is, they must have reasonable suspicion, rather than probable cause, to support a search. Id. at 341-342, 105 S.Ct. 733. See Commonwealth v. Damian D., 434 Mass. 725, 728, 752 N.E.2d 679 (2001) (applying reasonable suspicion standard to search by public school officials). See also Commonwealth v. Buccella, 434 Mass. 473, 485-487, 751 N.E.2d 373 (2001), cert. denied, 534 U.S. 1079, 122 S.Ct. 810, 151 L.Ed.2d 695 (2002).

The judge concluded that there is no logical reason for the rights of public school students to differ from those of private school students, stating that "both attend the school of their choosing under the same [S]tate mandates that require that they go to school until age [sixteen]." Accordingly, he determined that the "reasonable suspicion" standard of New Jersey v. T.L.O., supra, applies both to public and to private school searches and that that standard had not been met here. The judge also determined that the statements made to the hotel security official and to the State trooper were "uninterrupted fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Accordingly, he suppressed the physical evidence and the statements.

"The Fourth Amendment applies to searches by school officials in public schools," Commonwealth v. Buccella, supra at 485, 751 N.E.2d 373, because public school officials are agents of the State. New Jersey v. T.L.O., supra at 336, 105 S.Ct. 733. Fourth Amendment protection does not apply to searches conducted by persons who are not State agents. See Commonwealth v. Robinson, 399 Mass. 209, 215, 503 N.E.2d 654 (1987), quoting Commonwealth v. Leone, 386 Mass. 329, 333, 435 N.E.2d 1036 (1982) ("Evidence discovered and seized by private parties is admissible without regard to the methods used unless State officials have instigated or participated in the search.") See also Commonwealth v. Richmond, 379 Mass. 557, 561-562, 399 N.E.2d 1069 (1980) (no State action where mother of child gave police letter addressed to her daughter by defendant, who was "prime suspect" in murder investigation).

The question thus is whether the present search of the students' hotel room is a search conducted by agents of the State. The judge never actually characterized what occurred as State action. He referred to the actions of public school officials as constituting State action, which, of course, they are. He then stopped his analysis, and concluded merely that consistency requires that private school students be treated the same as public school students. He believed that private and public school students are similarly situated for this purpose, and what constitutes an unlawful search of the premises of a public school student should constitute an unlawful search of the premises of a private school student as well. We disagree for the reasons expressed in Rendell-Baker v. Kohn, 457 U.S. 830, 837-843, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). We conclude also that the search in the present case was not unlawful under art. 14 of the Declaration of Rights.

In the Rendell-Baker case, the United States Supreme Court considered a challenge under 42 U.S.C. § 1983 (1976 & Supp. III 1979), lodged by certain discharged employees of a private secondary school specializing in the education of "students who have experienced difficulty completing public high schools," including "many [who] have drug, alcohol, or behavioral problems, or other special needs." Id. at 832, 102 S.Ct. 2764. Students were referred to the school by public agencies and the school received nearly all of its funding from public sources. Id. It was subject to considerable public regulation. Id. at 833, 102 S.Ct. 2764.

Because the school was a private school, the court determined that the employees had not stated a claim under § 1983. Id. at 840-841, 843, 102 S.Ct. 2764. "[T]he Fourteenth Amendment, which prohibits the [S]tates from denying [F]ederal constitutional rights and which guarantees due process, applies to acts of the [S]tates, not to acts of private persons or entities." Id. at 837, 102 S.Ct. 2764. Absent State action, the Fourteenth Amendment, as well as the implementing provisions of § 1983, are inapplicable. The private character of the school was not altered by its engagement in public contracts, its fiscal relationship with the State, the extensive regulation to which it was subject, or the performance of a public function. Id. at 840-843, 102 S.Ct. 2764.

This analysis controls the present dispute. Because, as a private entity, the school's activities cannot be "fairly attributable to the State," Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), there is no State action to serve as a predicate for application of either the Fourth Amendment or art. 14. For purposes of State action analysis, there is no distinction between the private school that discharges an employee and the private school that searches a student's hotel room. In each...