Gregory M., Matter of

• Decision Date: 20 December 1993
• Citation: 627 N.E.2d 500,606 N.Y.S.2d 579,82 N.Y.2d 588
• Parties: , 627 N.E.2d 500, 88 Ed. Law Rep. 1127, 31 A.L.R.5th 829 In the Matter of GREGORY M., a Person Alleged to be a Juvenile Delinquent, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 579

606 N.Y.S.2d 579

82 N.Y.2d 588, 627 N.E.2d 500, 88 Ed.

Law Rep. 1127,

31 A.L.R.5th 829

In the Matter of GREGORY M., a Person Alleged to be a Juvenile Delinquent, Appellant.

Court of Appeals of New York.

Dec. 20, 1993.

[82 N.Y.2d 589] Marcia Egger and Lenore Gittis, New York City, for appellant.

[82 N.Y.2d 590] O. Peter Sherwood, Corp. Counsel, New York City (Linda H. Young and Pamela Seider Dolgow, of counsel), for respondent.

OPINION OF THE COURT

LEVINE, Judge.

There is no dispute over the facts giving rise to appellant's adjudication of juvenile delinquency upon his admission to an act that, if committed by an adult, would constitute criminal possession of a weapon in the fourth degree. On November 29, 1990 appellant, then 15 years old, arrived at the high school he attended in The Bronx without a proper student identification card. He was directed by a school security officer to report to the office of the Dean to obtain a new card. In accordance with school policy, he was required to leave his cloth book bag with the security officer until he had obtained the proper identification. When appellant tossed the book bag on a metal shelf before proceeding beyond the school lobby to the Dean's office, the security officer heard a metallic "thud" which he characterized as "unusual". He ran his fingers over the outer surface of the bottom of the bag and felt the outline of a gun. The security officer then summoned the Dean who also discerned the shape of a gun upon feeling the outside of appellant's book bag. The bag was brought to the Dean's office and opened by the head of school security, revealing a small hand gun later identified as a .38 Titan Tiger Special.

A juvenile delinquency petition was filed in Family Court accusing appellant of acts constituting criminal possession of a weapon in the second, third and fourth degrees, defacement of a weapon and unlawful possession of a weapon by a person under age 16. Family Court denied appellant's motion to suppress the gun. Following a fact-finding hearing, Family Court dismissed the count of the petition accusing appellant of an act that, if committed by an adult, would constitute the crime of criminal possession of a weapon in the second degree, and found that he had committed all the acts alleged in the remaining counts of the petition. At the dispositional hearing, Family Court placed appellant with the Division for Youth.

On appeal, the Appellate Division upheld Family Court's denial of appellant's motion to suppress (184 A.D.2d 252, 585 N.Y.S.2d 193). It held that the unusual metal thud heard by the security officer when appellant deposited his book bag was sufficient to support a reasonable suspicion that the bag contained a weapon, thereby justifying a "frisk" of the outside of the bag. The Court further ruled that when the frisk touching revealed the presence in the bag of an object that felt like a gun, the school authorities were justified in searching the inside of the bag. The Court, however, reversed the adjudication of juvenile delinquency and remanded for a new fact-finding hearing because of an error in the introduction into evidence of a ballistics report regarding the gun found in appellant's satchel. Upon remand to Family Court, the proceeding against appellant was disposed of by his admission to an act that, if committed by an adult, would constitute the crime of criminal possession of a weapon in the fourth degree. This Court granted permission to appeal in order to review the propriety of the Appellate Division's ruling upholding Family Court's denial of appellant's motion to suppress.

We affirm. Although minimally intrusive, the purposeful investigative touching of the outside of appellant's book bag by the school security officer (i.e., to acquire knowledge about the bag's contents) falls marginally within a search for constitutional purposes (see, Arizona v. Hicks, 480 U.S. 321, 325, 107 S.Ct. 1149, 1152, 94 L.Ed.2d 347; see also, United States v. Most, 876 F.2d 191, 193-194). Also, appellant is quite correct in contending that the metallic thud heard by the security officer when appellant put the book bag down was by itself insufficient to furnish a reasonable suspicion that the bag contained a weapon. We conclude, however, that a less rigorous premonition concerning the contents of the bag was sufficient to justify the investigative touching of the outside of the bag. When that touching disclosed the presence of a gun-like object in the bag, there was reasonable suspicion to justify the search of the inside of the bag.

In People v. Scott D., 34 N.Y.2d 483, 358 N.Y.S.2d 403, 315 N.E.2d 466, this Court held that students attending public schools are protected by the constitutional ban against unreasonable searches and seizures. Scott D. involved a school search of a student for illegal drugs. We further held in Scott D. that inherent in determining whether a school search was reasonable is a "balancing of basic personal rights against urgent social necessities" (id., at 488, 358 N.Y.S.2d 403, 315 N.E.2d 466) and that, "[g]iven the special responsibility of school teachers in the control of the school precincts and the grave threat, even lethal threat, of drug abuse among school children, the basis for finding sufficient cause for a school search will be less than that required outside the school precincts" (id., at 488, 358 N.Y.S.2d 403, 315 N.E.2d 466 [emphasis supplied].

Employing an analysis similar to that of People v. Scott D. (supra), the United States Supreme Court in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720, also concluded that the Fourth Amendment of the United States Constitution applies to searches of students by school authorities, but held that less cause is required to justify such a search than is required of law enforcement authorities searching persons or their effects outside school premises. Thus, the Supreme Court held that a determination of the appropriate standard of reasonableness to govern a certain class of searches requires a balancing: "On one side of the balance are arrayed the individual's legitimate expectations of privacy and personal security; on the other, the government's need for effective methods to deal with breaches of public order" (id., at 337, 105 S.Ct. at 740). The Court in New Jersey v. T.L.O. held that, ordinarily, searches by school authorities of the persons or belongings of students may be made upon "reasonable grounds for suspecting 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, 105 S.Ct. at 743). The Court applied the reasonable suspicion standard in validating a teacher's full search of the inside of a student's purse for cigarettes, during which evidence of her involvement in drug dealing was revealed.

We agree that for searches by school authorities of the persons and belongings of students, such as that conducted in New Jersey v. T.L.O. (supra), the reasonable suspicion standard adopted in that case for Fourth Amendment purposes is also appropriate under our State Constitution (NY Const, art I, § 12). In the instant case, however, the investigative touching of the outer surface of appellant's book bag falls within a class of searches far less intrusive than those which, under New Jersey v. T.L.O., require application of the reasonable suspicion standard. Applying the balancing process required under People v. Scott D. (supra) and New Jersey v. T.L.O. (supra), it is undeniable that appellant had only a minimal expectation of privacy regarding the outer touching of his school bag by school security personnel, even for purposes of learning something regarding its contents, when he left the bag with the security officer pursuant to the school policy requiring this until he obtained a valid identification card. On the other hand, it seems equally undeniable that, in the balancing process, prevention of the introduction of hand guns and other lethal weapons into New York City schools such as this high school is a governmental interest of the highest urgency. The extreme exigency of barring the introduction of weapons into the schools by students is no longer a matter of debate.

Thus, the balancing process ordained by People v. Scott D. (supra) and New Jersey v. T.L.O. (supra) leads to the conclusion that a less strict justification applies to the limited search here than the reasonable suspicion standard applicable for more intrusive school searches. In this regard, we find it noteworthy that the Supreme Court in New Jersey v. T.L.O. (supra) specifically disclaimed that its decision made some quantum of individualized suspicion an essential element of every school search (see, id., at 342, n. 8, 105 S.Ct. at 743, n. 8). The Supreme Court has elsewhere made it clear that, at least outside the context of criminal investigations by law enforcement officers, individualized suspicion is not a constitutional floor below which any search must be deemed unreasonable. There may be circumstances in which, because the privacy interests involved in the case are minimal and are overborne by the governmental interests in jeopardy if a higher standard were enforced, a search may be reasonable despite the absence of such suspicion (see, Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 624, 109 S.Ct. 1402, 1417, 103 L.Ed.2d 639; see also, United States v. Martinez-Fuerte, 428 U.S. 543, 561-562, 96 S.Ct. 3074, 3084-85, 49 L.Ed.2d 1116). We need not apply these precedents, however, to sustain the actions of the school authorities in the instant case.

Because appellant's diminished expectation of privacy was so clearly outweighed by the governmental interest in interdicting the infusion of weapons in the schools, we think the "unusual" metallic thud heard when the book bag was flung down--quite evidently suggesting to the school security officer the...