People in Interest of P.E.A.

• Decision Date: 25 April 1988
• Docket Number: No. 87SA214,87SA214
• Citation: 754 P.2d 382
• Parties: 46 Ed. Law Rep. 1027 The PEOPLE of the State of Colorado, Petitioner-Appellant, In the Interest of P.E.A., A Child, Appellee, and Concerning: M.A., Respondent-Appellee.
• Court: Colorado Supreme Court

Page 382

754 P.2d 382

46 Ed. Law Rep. 1027

The PEOPLE of the State of Colorado, Petitioner-Appellant In the Interest of P.E.A., A Child, Appellee, and Concerning: M.A., Respondent-Appellee.

No. 87SA214.

Supreme Court of Colorado En Banc.

April 25, 1988.

James F. Smith, Dist. Atty., Michael J. Milne, Deputy Dist. Atty., Brighton, for petitioner-appellant.

Joseph G. Sandoval, Denver, for appellee P.E.A.

Juan R. Garcia, Denver, for amicus curiae American Civil Liberties Union of Colorado.

ERICKSON, Justice.

This is an interlocutory appeal pursuant to C.A.R. 4.1. The district attorney has appealed from an order in a delinquency proceeding suppressing statements of P.E.A., a minor child, and the marijuana seized by school officials in the search of P.E.A.'s automobile. The trial court concluded that the evidence was obtained in violation of the standards of reasonableness established by New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (plurality opinion), and was therefore inadmissible under the fourth amendment. On appeal, the prosecution asserts that the trial court erred because: (1) P.E.A. consented to the search; (2) school officials did not act as agents of the police; (3) the search was reasonable under New Jersey v. T.L.O.; and (4) the exclusionary rule does not apply to unlawful searches by school officials. ¹ We reverse the suppression order and remand the case for further proceedings consistent with this opinion.

I.

On September 19, 1986, Officer Eric Knopinski went to a junior high school to investigate the theft of a bicycle. He was told by a minor whom he questioned about the bicycle theft that two other minors, M.M. and F.M., had stolen a quantity of marijuana from a backyard; had dried, cured, and packaged it; and had taken it to Westminster High School that morning to sell to other students. It is conceded by the prosecution that the minor's statement did not provide Officer Knopinski with probable cause to arrest M.M. or F.M. Because of the exigencies tied to the distribution and sale of marijuana, he immediately went to Westminster High School and advised the assistant principal (principal) of the reported proposal to sell marijuana at the school. The principal asked Knopinski to remain at the school while he investigated the report.

The school's security officer was summoned by the principal and both F.M. and M.M. were removed from class and individually interrogated in separate rooms. They were required to empty their pockets, remove their shoes for examination, and submit to pat-down searches. Their lockers at the school were also searched. After the searches produced no evidence of drugs or other contraband, both F.M. and M.M. were asked how they got to school that day, and M.M. replied that F.M. was driven to school by P.E.A.

P.E.A. was then removed from class and taken to the principal's office. He was searched in the same manner as M.M. and F.M. When the searches failed to produce evidence of drugs, he was asked how he got to school that day. Initially, he told the principal that he had ridden the school bus. However, after further questioning, he admitted that he had driven his car to school. He stated that the principal then seized him by the arm and told him that his car had to be searched. The security officer took the keys that were found when P.E.A.'s pockets were emptied and led him to the parking lot. P.E.A. objected to the search of the car but was informed by the school officials that the car would be searched.

On the way to the car, the security officer asked P.E.A. if the vehicle contained anything illegal. He answered affirmatively but stated that the illegal substance belonged to F.M. Using P.E.A.'s keys to open the right front door of the car, the security officer found in the console drug paraphernalia and a substance that later proved to be marijuana. In the trunk, he discovered a duffel bag containing a large quantity of marijuana. P.E.A., F.M., and another minor were arrested and the car was impounded. Officer Knopinski was not present during the questioning of the students or during the searches of the students, their lockers, or P.E.A.'s car.

The principal and the security officer both testified that it was school practice when a report relating to illegal drugs was made to call the student to the principal's office, conduct a pat-down search, and search the student's pockets and his locker. In addition, the student's car would be searched if it was parked in the school lot. If a student objected, the school practice or policy was to contact the parents and ask them to come to the school. In its order, the trial court found that "the staff at Westminster High School conducts searches of persons, locker, and cars based upon reports from any source concerning drug possession.... [I]t is clear that [school officials] treat all reports, anonymous or otherwise, the same and conduct searches."

Delinquency charges were filed against P.E.A. in the District Court for Adams County and P.E.A. moved to suppress his statements and the physical evidence taken from his car. The principal, the security officer, the police officer, and P.E.A. testified at the suppression hearing. The trial court granted the motion and ordered that the evidence be suppressed. The court held that P.E.A. did not voluntarily consent to the automobile search and that the search was unlawful because it did not comply with the standards set forth in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (plurality opinion). As an additional ground for suppressing the evidence, the court found that the school officials acted as agents of the police and conducted the search without probable cause.

II.

The prosecution asserts that the trial court erred in finding that the principal and security officer acted as agents of the police when they detained P.E.A. and searched his car. The trial court found that Officer Knopinski supplied information to the principal with the intent to instigate an investigation by school officials. The court treated the interrogation and search by school officials as police conduct and found that the warrantless search of P.E.A.'s automobile was not supported by probable cause and violated the fourth amendment. ² To determine whether the principal and security officer acted as agents of the police, we apply agency principles governing searches and seizures by those who are not law enforcement officers. ³

A warrantless search or seizure is presumptively illegal and the prosecution has the burden of establishing that it falls within a recognized exception to the warrant requirement. People v. Amato, 193 Colo. 57, 562 P.2d 422 (1977); People v. Alexander, 193 Colo. 27, 561 P.2d 1263 (1977). The acquisition of evidence by an individual acting as an agent of the police must be reviewed by the same fourth amendment standards that govern law enforcement officials. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); People v. Chastain, 733 P.2d 1206 (Colo.1987). The resolution of whether an individual becomes an agent of the police is determined by the totality of the circumstances. Coolidge, 403 U.S. at 487, 91 S.Ct. at 2048. The agency rule prevents police from circumventing the fourth amendment by having a private individual conduct a search or make a seizure that would be unlawful if performed by the police themselves. Chastain, 733 P.2d at 1214; see United States v. West, 453 F.2d 1351 (3d Cir.1972). The defendant has the burden of establishing that an individual has acted as a police agent. United States v. Snowadzki, 723 F.2d 1427 (9th Cir.), cert. denied, 469 U.S. 839, 105 S.Ct. 140, 83 L.Ed.2d 80 (1984).

In this case, the record does not support a finding that the principal and security officer acted as agents of the police. Officer Knopinski did not request or in any way participate in the searches or interrogations of the students. He testified that, though he remained on school grounds, he had no knowledge of the school's investigation. Knopinski's supplying information to the principal with the intent of initiating the search and his presence on school premises during the investigation do not establish that the principal and security officer acted as police agents. ⁴ See Cason v. Cook, 810 F.2d 188 (8th Cir.) (vice-principal not acting at the behest of police where policewoman was present during vice-principal's investigation of thefts at school, conducted pat-down search of student, and briefly interviewed suspected students), cert. denied, 482 U.S. 930, 107 S.Ct. 3217, 96 L.Ed.2d 704 (1987); United States v. Jennings, 653 F.2d 107 (4th Cir.1981) (no governmental search even though federal drug agents relayed anonymous tip to airline security that certain woman would be sending illegal drugs from Chicago to Washington, D.C. and were present when drugs were discovered); People v. Henderson, 38 Colo.App. 308, 559 P.2d 1108 (1976) (mere presence of police officer, absent some form of participation in the search or seizure, does not establish agency relationship); see also Smith v. State, 267 Ark. 1138, 594 S.W.2d 255 (1980); State v. Blackshear, 14 Or.App. 247, 511 P.2d 1272 (1973); see generally W. LaFave, Search and Seizure § 1.8(c) (2d ed. 1987) (discussing factors required for agency relationship in searches or seizures by private persons). Accordingly, we reverse the trial court's finding that the principal and security officer acted as agents of the police.

III.

The defendant claims that the trial court properly found that the school's investigation of P.E.A. violated the reasonableness standard set out in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (plurality opinion). The trial court found no reasonable grounds to search P.E.A. because no marijuana was found as a result of the searches of M.M. and F.M. and their lockers. In the suppression order, the...