L. L., In Interest of

• Decision Date: 30 May 1979
• Docket Number: No. 78-927,78-927
• Citation: 90 Wis.2d 585,280 N.W.2d 343
• Parties: In the Interest of L.L. Alleged Delinquent, L.L., Appellant, v. CIRCUIT COURT OF WASHINGTON COUNTY, Respondent.
• Court: Wisconsin Court of Appeals

Page 343

280 N.W.2d 343

90 Wis.2d 585

In the Interest of L.L. Alleged Delinquent, L.L., Appellant, v. CIRCUIT COURT OF WASHINGTON COUNTY, Respondent.

No. 78-927.

Court of Appeals of Wisconsin.

Argued April 19, 1979.

Opinion Released May 30, 1979.

Opinion Filed May 30, 1979.

S. Charles O'Meara, of O'Meara, O'Meara & Eckert, West Bend, for appellant.

Bronson C. LaFollette, Atty. Gen., and Kirbie Knutson (argued), Asst.Atty. Gen., on brief for respondent.

Before VOSS, P. J., and BROWN and BODE, JJ.

VOSS, Presiding Judge.

This is an appeal from a judgment of the Juvenile Court of Washington County dated October 24, 1978, in which the juvenile L.L. was found delinquent. Disposition in the matter was adjourned on a day-to-day basis pending a decision on this appeal.

L.L. was found delinquent based on an alleged violation of the criminal law of Wisconsin, specifically, possession of marijuana contrary to sec. 161.41(3), Stats. (1975). The alleged violation was established by an admission of L.L. at a hearing on October 24, 1978.

The case was commenced by a petition filed on October 13, 1977, alleging L.L. to be delinquent because of a violation of sec. 161.41(3), Stats. (1975), possession of a controlled substance. At L.L.'s initial appearance with counsel on November 29, 1977, L.L. denied the offense alleged in the petition. A motion to suppress physical evidence was filed with the court the next day. The motion was heard on December 9, 1977, and at that time, the motion to suppress was denied.

Since it was not clear to the parties that sec. 971.31(10), Stats. (1975), applied to juvenile proceedings, the juvenile appealed directly from the order denying the motion to suppress physical evidence. The appeal was made to the Circuit Court of Washington County, the Honorable J. Tom Merriam, presiding. The appeal was argued on May 26, 1978. On October 19, 1978, the circuit court dismissed the appeal because sec. 48.47, Stats. (1975), only provided for appeals from an adjudication of delinquency. The matter was remanded to the juvenile court for further proceedings. On remand, L.L. admitted possessing the marijuana, and a judgment of delinquency was entered on October 24, 1978. The appeal from the judgment was taken to this court. L.L.'s motion for a three-judge panel was granted on February 7, 1979.

The facts in the case are that on September 28, 1977, L.L., the alleged juvenile delinquent, was enrolled as a student at West Bend East High School. West Bend East High School is a public high school owned and operated by the West Bend Joint School District, a municipal corporation organized and existing under the laws of Wisconsin. On September 28, 1977, Patrick Zukowski was a high school teacher under contract with the West Bend Joint School District and was assigned by the school district to teach the class which L.L. was to attend at approximately 10 a. m.

Shortly before that class, L.L. was present in a room adjoining his assigned classroom along with two or three other students assigned to the class for that time. When Zukowski entered the room for the purpose of beginning class, L.L.' § behavior appeared suspicious to him. L.L. made several clutching motions over his chest shirt pocket, although testimony conflicts as to whether the clutching was done without provocation by Zukowski or whether the clutching was done in response to Zukowski's attempt to reach inside L.L.'s shirt pocket. Zukowski suspected that L.L. had a knife or razor blade in his pocket.

The testimony is clear that L.L. clutched his pocket in order to keep Zukowski from discovering the contents of the shirt pocket. When L.L. repeatedly refused to honor Zukowski's demand, Zukowski made some statement to the effect that no official action would be taken if L.L. revealed the contents of his pocket. The trial court was unable to find that Zukowski had promised no action would be taken, but the court did find that L.L. reasonably believed no official action would be taken. In reliance upon that belief, L.L. produced a hand-rolled cigarette from the pocket. Zukowski reported the incident to the high school officials, who referred the matter to the West Bend Police Department for further proceedings.

At the commencement of the hearing, the Assistant District Attorney for Washington County stipulated that the search was not authorized by any search warrant. The court found the demand by Zukowski to produce the contents of the shirt pocket was coercive as to L.L. by virtue of Zukowski's position and that the surrender of the contents to Zukowski was involuntary. Therefore, the incident was a nonconsensual search, and L.L.'s reliance on a supposed promise to take no official action is irrelevant.

The issues presented on this appeal are: (1) whether the exclusionary rule applies to juvenile proceedings, (2) whether Zukowski was a state agent for purposes of the fourteenth amendment, and (3) whether the search of L.L.'s pocket was "unreasonable."

EXCLUSIONARY RULE IN JUVENILE PROCEEDINGS

Section 1 of the Fourteenth Amendment to the United States Constitution provides:

Section 1. Citizens of the United States.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of (the) citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction equal protection of the laws.

The fourth amendment provides:

Amendment 4. Unreasonable searches and seizures.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The due process language of the fourteenth amendment prohibits a state from using evidence obtained through searches and seizures which violate the standards established by the fourth amendment. Mapp v. Ohio, 367 U.S. 643, 654, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). This prohibition or "exclusionary rule" has been the principal method of ensuring that the constitutional guarantee against unreasonable searches and seizures does not become an expression without substance. Terry v. Ohio, 392 U.S. 1, 12, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The protections provided by the fourteenth amendment and the Bill of Rights are not limited to adult citizens. In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The court in Gault recognized that juvenile delinquency proceedings are not subject to all of the formal requirements of an adult criminal prosecution but only need to provide the basic elements of due process. The rule excluding the use of illegally obtained evidence is one of the basic elements of due process. A juvenile delinquency proceeding is a court proceeding brought by the state which can result in the deprivation of the minor's liberty. Due process does not allow such deprivations to be obtained on the basis of illegally obtained evidence. ¹ Thus, it is clear that the exclusionary rule applies. The remaining issues address whether the marijuana taken from L.L. was obtained illegally.

STATE AGENT

It is a long established rule that the constitutional guarantee against unlawful searches and seizures applies only to actions of government agents and not individuals. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). The State argues that Zukowski should not be regarded as a government agent because his primary responsibility is the education of the children assigned to his class. A necessary adjunct to this responsibility, however, is the maintenance of order and discipline in the school. The state legislature has given the local school board the authority to "(m)ake rules for the . . . government of the schools of the school district, including rules pertaining to conduct and dress of pupils in order to maintain good decorum and favorable academic atmosphere . . . ." Sec. 120.13(1), Stats. Teachers are hired by the school board to carry out all of those responsibilities. When a teacher conducts a search to maintain school discipline, he acts on behalf of the school board.

The United States Supreme Court has stated:

The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943).

In Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 511, 89 S.Ct. 733, 739, 21 L.Ed.2d 731 (1969), the court added In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.

The fourteenth amendment has been consistently applied to school regulations in many different contexts. See, e. g., Ferrell v. Dallas Independent School District, 392 F.2d 697 (5th Cir. 1968) (male hair length regulations); Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966) (wearing of "freedom buttons").

More specifically, courts in other jurisdictions have held that searches of students by school officials constitute state action for purposes of the fourteenth amendment. E. g., ...