Commonwealth v. DAMIAN D., A JUVENILE

• Decision Date: 07 May 2001
• Citation: 434 Mass. 725,752 NE 2d 679
• Parties: COMMONWEALTH v. DAMIAN D., a juvenile.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

434 Mass. 725

752 NE 2d 679

COMMONWEALTH v. DAMIAN D., a juvenile.

Supreme Judicial Court of Massachusetts, Suffolk.

May 7, 2001.

August 10, 2001.

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

Kenneth J. King for the juvenile.

Joseph M. Ditkoff, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

Peter M. Onek, Committee for Public Counsel Services, for Committee for Public Counsel Services.

Brigid Kennedy-Pfister for The Children's Law Center of Massachusetts, Inc.

Thomas F. Reilly, Attorney General, Barbara F. Berenson, & Pamela L. Hunt, Assistant Attorneys General, for the Attorney General.

CORDY, J.

This case presents the question whether, consistent with the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, a public school administrator may search a student premised solely on that student's violation of a school rule unrelated to the possession of contraband or the threat of violence. We hold that, in the circumstances of this case, the search of the student was unreasonable and therefore barred by the Fourth Amendment.

1. Facts. In reviewing the denial of a motion to suppress, we accept the judge's findings of fact absent clear error. Commonwealth v. Alvarado, 420 Mass. 542, 544 (1995). We summarize the facts as found by the judge, Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), supplemented by uncontroverted facts adduced at the hearing. Commonwealth v. Watson, 430 Mass. 725, 726 n.5 (2000).

During the afternoon school hours of Friday, October 22, 1999, the housemaster for the freshmen class at English High School in Boston observed a student (whom we will call Damian D., a pseudonym) and two other classmates walking across the school parking lot returning to the school building. Damian was supposed to have been in class. The housemaster confronted the students and instructed each of them to bring their parents to school on the following Monday morning.

Damian failed to bring his mother to school that Monday. As a result, the housemaster issued Damian a written suspension hearing letter, citing his missing class and leaving the school building without permission. The housemaster also called Damian's mother and requested that she come to the hearing which he scheduled for Tuesday, the next day.

Damian's mother appeared at the hearing but Damian did not. Efforts to locate him in his scheduled class proved futile. The hearing proceeded without him and he was suspended for three days in absentia. Shortly after the hearing concluded (around 9:30 A.M.), Damian showed up at the housemaster's office, apparently of his own volition. The housemaster called the assistant headmaster for the school and informed her of the events of Friday, Monday, and the missed hearing that morning. The assistant headmaster came to the housemaster's office where a Boston school police officer joined them. After the assembled group moved to a nearby empty classroom, the assistant headmaster conducted what she described as an "administrative search" of Damian. The search began with her verbally inquiring whether Damian had any contraband in his possession. When he replied in the negative, the assistant headmaster advised him that she intended to search him, and instructed him to empty his pockets. The contents of his pockets included a lighter and a small cigar, neither of which were contraband. The assistant headmaster then proceeded to pat the legs of Damian's pants, and, not finding anything, she instructed him to remove his shoes. Inside one of his shoes was a pair of folded socks, acting almost like a shoe liner. The assistant headmaster removed and unfolded the socks and found a small bag of marijuana concealed within them. At this point, the Boston school police officer took over the search and arrested Damian.

A complaint alleging delinquency by reason of possession of a controlled substance was brought against Damian in the juvenile session of the West Roxbury Division of the District Court Department. He filed a motion to suppress the evidence, contending that he was searched in violation of his Fourth Amendment and art. 14 rights. The motion was denied. A jury-waived trial followed in the Boston Juvenile Court, after which Damian was found delinquent. He appealed, and we transferred the case to this court on our own motion.¹

2. Discussion. It is well settled that the Fourth Amendment's prohibition on unreasonable searches and seizures applies to searches conducted by public school officials, New Jersey v. T.L.O., 469 U.S. 325, 333 (1985); Commonwealth v. Carey, 407 Mass. 528, 531 (1990), and notwithstanding the legitimate goal of school administrators to maintain a safe learning environment, students continue to have a legitimate expectation of privacy in their persons and in the items they bring to school. New Jersey v. T.L.O., supra at 338-339. See Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969). However, in recognition that, in the school environment, there is a "special need for an immediate response to behavior that threatens either the safety of school-children and teachers or the educational process itself," the United States Supreme Court has excepted school searches from the Fourth Amendment's warrant and probable cause requirements. New Jersey v. T.L.O., supra at 353 (Blackmun, J., concurring). In place of these protections, the Court has held that the Fourth Amendment requires searches of students by school administrators to be reasonable under all the circumstances. Id. at 341.²

In assessing the reasonableness of a student search, we need to consider whether the search was justified at its inception and whether it was limited in its execution to the circumstances which justified the intrusion in the first place. New Jersey v. T.L.O., supra at 341. In ordinary circumstances, a search will be justified at its inception "when there are reasonable grounds [reasonable suspicion] that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." Id. at 342. The requirement of reasonable suspicion, while not a requirement of absolute certainty, is one of "sufficient probability ... the touchstone of reasonableness under the Fourth Amendment." Id. at 346, quoting Hill v. California, 401 U.S. 797, 804 (1971). A reasonable suspicion is not a "hunch" or an "inchoate and unparticularized suspicion"; it is "`a common-sense conclusio[n] about human behavior' upon which `practical people' — including government officials — are entitled to rely." New Jersey v. T.L.O., supra,

quoting Terry v. Ohio, 392 U.S. 1, 27 (1968), and United States v. Cortez, 449 U.S. 411, 418 (1981). Commonwealth v. Carey, supra at 534. If a search is justified by reasonable suspicion at its inception, it must also be limited in scope to those measures "reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." New Jersey v. T.L.O., supra at 342.

Turning to the facts of this case, it is undisputed that the only basis for the search was Damian's truant behavior (i.e., being out of the school building and missing a class on Friday, and not being in his proper class on Tuesday when he failed to attend his disciplinary hearing) and his failure to bring his mother to school on Monday to meet with the housemaster about his truant conduct. School officials had no evidence that suggested Damian was in possession of contraband when they searched him on Tuesday, October 26, or that he had violated any law or any school rule other than truancy. There was no testimony at the motion hearing that Damian's physical appearance or conduct suggested his use or possession of contraband, or that school officials had received information from any source that Damian was in possession of or had ever been in possession of contraband in school.³

The assistant headmaster contended the "administrative search" was appropriate because the student had violated school rules, and a violation of school rules is an adequate basis, under the Boston public school policy on the subject of student searches, to justify a search. This contention is based on a misunderstanding of the T.L.O. decision and a misreading of...