In re DEM

• Citation: 727 A.2d 570,1999 PA Super 59
• Parties: In re D.E.M., Appellee. Appeal of Commonwealth of Pennsylvania.
• Decision Date: 18 March 1999
• Court: Pennsylvania Superior Court

727 A.2d 570

1999 PA Super 59

In re D.E.M., Appellee.

Appeal of Commonwealth of Pennsylvania.

Superior Court of Pennsylvania.

Argued September 15, 1998.

Filed March 18, 1999.

Iva C. Dougherty, Asst. Dist. Atty., Reading, for Com., Appellant.

David R. Eshelman, Reading, for appellee.

Before KELLY, EAKIN, and OLSZEWSKI, JJ.

KELLY, J.:

¶ 1 In this appeal, the Commonwealth asks us to determine whether school officials act as agents of the police, where school officials conduct an investigation after being informed by police that a student may have a gun on school property. The Commonwealth also asks us to decide whether school officials must possess reasonable suspicion, supported by specific and articulable facts, before school officials can detain and question a student about an anonymous rumor that the student possesses a gun on school premises. Finally, the Commonwealth asks us to decide whether school officials must furnish a student with Miranda¹ warnings before questioning the student about conduct that violates both the law and school rules.

¶ 2 We hold that school officials do not act as agents of the police where they conduct an independent investigation based upon information the officials received from police. We also hold that school officials do not need reasonable suspicion, supported by specific and articulable facts, before merely detaining and questioning a student about a rumor concerning his possession of a gun on school property.² Finally, we hold that school officials need not provide Miranda warnings to a student before questioning the student about conduct that violates the law and/or school rules. Accordingly, we reverse the order of the suppression court, which granted D.E.M.'s omnibus pre-trial motion to suppress physical evidence and remand for trial.

¶ 3 The relevant facts and procedural history of this appeal are as follows. On April 8, 1997, a police officer from the Shillington Borough Police Department ("officer") informed the principal and assistant principal of the Governor Mifflin Middle School of an anonymous tip that one of the students possessed a gun on school property. When the principal asked if the officer knew the name of the student, the officer identified D.E.M. The principal told the officer that he would investigate the rumor and contact him if the investigation turned anything up.³ The officer then left the school's premises. Once the officer departed, D.E.M. was removed from class and brought to the principal's office. At this time, the principal asked D.E.M. if he had anything on his person or in his pockets which was against school rules.⁴ D.E.M. said that he did not. The principal then asked D.E.M. if he would mind disclosing the contents of his book-bag. D.E.M. emptied the bag onto the principal's desk. The exposed contents of the bag did not contain any item in violation of school rules.

¶ 4 Thereafter, the principal requested D.E.M.'s consent to a search of his person. D.E.M became noticeably agitated and scared. After the principal informed D.E.M. that the school was concerned about information it had received, D.E.M. agreed to empty his pockets. One pocket contained a sheathed knife, which the principal confiscated. The principal then asked D.E.M. if he had a gun in school. D.E.M. admitted that he did and stated that it was in the pocket of his jacket, which was located in the locker of another student, P.Q. The principal sent for P.Q., who was escorted to his locker. P.Q. unlocked the locker by using the correct combination on the combination dial of the lock. The principal removed D.E.M.'s jacket, which contained a loaded gun in one of the pockets. In accordance with Governor Mifflin Middle School's behavioral code, school officials contacted the Shillington Borough Police Department and turned both the gun and knife over to the police.⁵

¶ 5 D.E.M. was arrested and charged with possession of a weapon on school property,⁶ carrying a firearm without a license,⁷ possession of a firearm by a minor,⁸ and altering or obliterating marks of identification.⁹ On April 28, 1997, D.E.M. filed an omnibus pre-trial motion to suppress the physical evidence obtained following the school officials' investigation. A suppression hearing was held on May 2, 1997. Subsequently, the suppression court found that the principal and assistant principal acted as "agents" of the police during their investigation because the police supplied information to the school officials with the intent of instigating an investigation. As such, the suppression court held that the school officials lacked the necessary reasonable suspicion to support their investigative detention of D.E.M and granted D.E.M.'s motion. The Commonwealth filed this timely appeal and certified that the suppression order in question substantially handicapped the prosecution of D.E.M.¹⁰ ¶ 6 On appeal, the Commonwealth raises the following issues:

1. WHETHER THE [SUPPRESSION] COURT ERRED IN RULING THAT THE JUVENILE HAD STANDING TO CHALLENGE THE SEARCH OF A LOCKER BELONGING TO A THIRD PARTY?

2. WHETHER THE [SUPPRESSION] COURT ERRED IN CONCLUDING THAT THE SCHOOL OFFICIALS ACTED AS AGENTS OF THE POLICE?

3. WHETHER THE [SUPPRESSION] COURT ERRED IN SUPPRESSING THE EVIDENCE PURSUANT TO COMMONWEALTH V. HAWKINS AND COMMONWEALTH V. KUE WHEN NEITHER OF THOSE CASES PRECLUDE FURTHER INVESTIGATION AFTER AN ANONYMOUS TIP?

4. WHETHER THE [SUPPRESSION] COURT ERRED IN SUPPRESSING THE EVIDENCE WHEN THE SCHOOL OFFICIALS HAD REASONABLE SUSPICION TO CONDUCT THE SEARCH?

5. WHETHER THE [SUPPRESSION] COURT ERRED IN SUPPRESSING THE EVIDENCE WHEN THE SEARCH WAS CONDUCTED IN FULL COMPLIANCE WITH THE RULES WHICH WERE ESTABLISHED BY THE SCHOOL AND WHICH WERE KNOWN TO AND THEREBY AGREED TO BY THE JUVENILE AND HIS PARENTS?

6. WHETHER THE [SUPPRESSION] COURT ERRED IN SUPPRESSING THE EVIDENCE WHEN THE JUVENILE VOLUNTARILY TURNED OVER THE KNIFE AND VOLUNTARILY CONSENTED TO THE SEARCH OF HIS JACKET WHICH PRODUCED THE GUN?

(Commonwealth's Brief at 5).

¶ 7 On appeal from the grant of a defendant's motion to suppress, this Court applies the following standard of review:

When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts....

Commonwealth v. Nester, 551 Pa. 157, 160, 709 A.2d 879, 880-881 (1998) (citations omitted). Accord Commonwealth v. Henderson, 444 Pa.Super. 170, 663 A.2d 728 (1995) (en banc)

.

¶ 8 The Commonwealth asserts that the suppression court erred in concluding that the principal and assistant principal acted as agents of the police when they detained D.E.M. and searched P.Q.'s locker. The suppression court found that the police supplied information to the school officials with the intent to instigate an investigation. The suppression court therefore treated the interrogation and search by school officials as police conduct, and held that the investigative detention of D.E.M. was not supported by reasonable suspicion. Therefore, the suppression court held that the detention and search violated the Fourth Amendment. We disagree.

¶ 9 The resolution of whether school officials act as agents of the police is determined by an examination of the totality of the circumstances. See Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564, 595 (1971)

; see also People in Interest of P.E.A., 754 P.2d 382, 385 (Colo.1988). Our analysis must include a consideration of (1) the purpose of the search; (2) the party who initiated the search; and (3) whether the police acquiesced in the search or ratified it. Commonwealth v. Ellis, 415 Pa.Super. 220, 608 A.2d 1090, 1091 (1992),

appeal denied, 533 Pa. 623, 620 A.2d 489 (1993) (citing Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317, 321 (1985)). The mere fact that school officials cooperate with police, however, does not establish that the police acquiesced in or ratified the search. See Commonwealth v. Corley, 507 Pa. 540, 547, 491 A.2d 829, 832 (1985) (mere use by police and prosecutors of results of search does not serve to ratify those actions as conduct of police). The inquiry must focus on whether the police coerce, dominate or direct the actions of school officials. See United States v. Smythe, 84 F.3d 1240, 1242 (10th Cir.1996) (citing Pleasant v. Lovell, 876 F.2d 787, 796 (10th Cir.1989)).

¶ 10 In the instant case, police relayed an anonymous tip to school officials that a student possessed a gun on school property. The possession of a firearm on school premises poses a serious threat not only to the school's educational environment, but also to the safety and welfare of the students and faculty. To address this kind of threat, Governor Mifflin Middle School had implemented a policy, which requires school officials to investigate all rumors about anything that jeopardizes the safety and welfare of the students and faculty. Hence, the school officials conducted the investigation principally to execute their duty to ensure the safety and welfare of the students for whom they are responsible. See Ellis, supra, 608 A.2d at 1091-1092

(stating where hospital personnel take blood for their own reasons and then freely volunteer the results to police, hospital personnel do not act as agents of the police); People v. Dilworth, 169 Ill.2d 195, 214 Ill.Dec. 456, 661 N.E.2d 310, 317-318 (1996) (holding where school liaison police officer conducts search in furtherance of school's attempt to maintain proper educational environment, liaison officer...