People v. Bowers

• Decision Date: 14 May 1974
• Citation: 77 Misc.2d 697,356 N.Y.S.2d 432
• Parties: PEOPLE, Appellant, v. BOWERS, Respondent.
• Court: New York Supreme Court — Appellate Term

Page 432

356 N.Y.S.2d 432

77 Misc.2d 697

PEOPLE, Appellant, v. BOWERS, Respondent.

Supreme Court, Appellate Term, Second Department, Second and Eleventh Judicial Districts.

May 14, 1974.

Eugene Gold, Dist. Atty. (Raymond J. Scanlan and Harry Brodbar, Brooklyn, of counsel), for appellant.

William E. Hellerstein and Robert Kasanof, New York City (Lawrence H. Sharf, Brooklyn, of counsel), for respondent.

Before GROAT, P.J., and MARGETT and CONE, JJ.

MEMORANDUM.

In this appeal by the People, defendant, a student at a high school, had moved to suppress certain evidence obtained by a school security officer. The officer had been informed by a dean of the school that a watch had been reported stolen from a student. Although no particular person was suspected, the defendant was found wearing a coat that fit the general description of the perpetractor. The defendant was taken to the dean's office where the victim stated that defendant was not the thief. Defendant was never interrogated concerning the stolen watch. However, the officer noticed a slight bulge and a brown manila envelope protruding from defendant's pants pocket. After defendant emptied his pocket pursuant to request, alleged marijuana was discovered within the envelope.

In our opinion, the evidence seized was properly excluded by the trial court.

As held by the Supreme Court of the United States in Tinker v. Des Moines, 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731, students do not shed their constitutional rights 'at the school house gate'. Although the Supreme Court in that case specifically addressed itself to First Amendment rights, the doctrine enunciated therein should be applicable to Fourth Amendment rights as well. This does not mean that such a doctrine is without exception. Indeed, as a general rule, a teacher, to a limited extent at least, stands In loco parentis to pupils under his charge (79 C.J.S. Schools and School Districts § 493). As such, the courts have held that it would not be 'unreasonable or unwarranted that he (a coordinator of discipline) be permitted to search the person of a student where the school official has reasonable suspicion that narcotics may be found on the person of his juvenile charge' (People v. Jackson, 65 Misc.2d 909, 911, 319 N.Y.S.2d 731, 733, aff'd 30 N.Y.2d 734, 333 N.Y.S.2d 167, 284 N.E.2d 153). In People v. Overton, 24 N.Y.2d 522, 301 N.Y.S.2d 479, 249 N.E.2d 366, the Court of Appeals after remand by the United States Supreme Court affirmed its prior decision (20 N.Y.2d 360, 283 N.Y.S.2d 22, 229 N.E.2d 596) which permitted a police officer to search a high school student's locker based upon the consent of a school official. At page 524 of that decision, 301 N.Y.S.2d at page 480, 249 N.E.2d at page 367 the court stated:

'. . . In summarizing the supervisory position retained by the school, Judge Keating observed, 'Not only have the school authorities a right to inspect but This right becomes a duty when suspicion arises that something of an illegal nature may be secreted there. When Dr. Panitz (school vice principal) learned of the detectives' suspicion, He was obligated to inspect the locker. This interest, together with the nonexclusive nature of the locker, empowered him to consent to the search by the officers.' (20 N.Y.2d, p. 363, 283 N.Y.S.2d 22, at 25, 229 N.E.2d 596, at 598; emphasis supplied.)'

In People v. Duka, (N.Y.L.J., March 14, 1974, p. 19, col. 7 (App.Term, 2d Dept.)) the court upheld a search by a school security officer pursuant to the direction of the principal who had reasonable suspicion. The courts have thus far limited the doctrine of Loco parentis, including the right to search a student upon reasonable suspicion, to the professional staff of the school, as in People v. Jackson, Supra. The court, therein, applied the doctrine of Loco parentis to a co-ordinator of discipline. It is important to note, however, that co-ordinators of discipline are faculty members of the schools in which they are employed. In Jackson, the court, 65 Misc.2d at page 910, 319 N.Y.S.2d at page 733, said:

'. . . A school official, standing In loco parentis to the children entrusted to his care, has, Inter alia, the long honored obligation to protect them while in his charge, so far as possible, from harmful and dangerous influences, which certainly encompasses the bringing to school by one of them...