People v. Ward

• Citation: 62 Mich.App. 46,233 N.W.2d 180
• Decision Date: 10 June 1975
• Docket Number: No. 1,Docket No. 19899,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Christopher WARD, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 180

233 N.W.2d 180

62 Mich.App. 46

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Christopher WARD, Defendant-Appellant.

Docket No. 19899.

Court of Appeals of Michigan, Division No. 1.

June 10, 1975.

Leave to Appeal Denied Oct. 1, 1975.

Released for Publication Oct. 1, 1975.

Ellen C. Wallaert, East Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, App. Chief, Ronald P. Weitzman, Asst. Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and T. M. BURNS and MAHER, JJ.

MAHER, Judge.

Defendant was found guilty by a judge, sitting without a jury, of knowingly or intentionally possessing lysergic acid diethylamide (LSD). M.C.L.A. § 335.341(4)(c); M.S.A. § 18.1070(41)(4)(c). Defendant was placed on 2 years probation and appeals.

Although the record is somewhat inconsistent, it appears that a teacher at Western High School in Detroit informed defendant's guidance counselor that he had seen defendant selling and passing pills in school on a number of occasions. Defendant's counselor, in turn, reported this to the school's principal the following afternoon. The principal attempted to locate defendant but he had already left school for the day. The following morning, defendant was called into the principal's office. Present with defendant were the principal, an assistant principal, defendant's counselor, the coordinator of student activities and a security guard employed by the board of education.

Defendant was asked by the principal whether he bought or sold any drugs in school. Defendant denied ever using drugs or ever bringing drugs to school. Defendant was then asked to empty his pockets and when he hesitated, the principal threatened defendant with a personal search. Defendant then produced a bottle of pills from his pocket. The principal called the police and defendant was arrested.

Prior to trial, defendant moved to suppress the pills on the ground that they were the product of an unlawful search and seizure. This motion was denied. Defendant renewed his motion to suppress at trial but it was again denied.

The threshold question is whether the personal search of a student by a public high school official, without the aid of, or joint action with, state law enforcement officials, is subject to the Fourth Amendment's prohibition against unreasonable searches and seizures? Evidence secured by a search and seizure in violation of the Fourth Amendment of the Federal constitution is, through the operation of the due process clause of the Fourteenth Amendment, inadmissible in a state court. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961). This prohibition against unreasonable searches and seizures, however, applies only to governmental action. Bureau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). Therefore, if the school administrator in this case is considered a private individual, the evidence obtained is admissible into evidence regardless of whether his actions were reasonable or unreasonable. See People v. Harry James Smith, 31 Mich.App. 366, 188 N.W.2d 16 (1971).

The United States Supreme Court, in Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 736, 42 L.Ed.2d 725, 734 (1975), pointed out that:

'* * * (Y)oung people do not 'shed their constitutional rights' at the school-house door. Tinker v. Des Moines Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). '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.' West Virginia v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943).'

In other words, '(p)ublic high school students do have substantive and procedural rights while at school.' Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 1003, 43 L.Ed.2d 214, 227 (1975) (citations omitted), and it would be inconsistent to say that a public high school principal, acting in that capacity on school property during school hours, is not a state official for purposes of the Fourth Amendment. This is not to say, however, that the law of search and seizure, as applied to law enforcement agencies, is incorporated into Michigan's school system.

The Fourth Amendment to the United States Constitution and Article 1, § 11 of the Michigan Constitution prohibit unreasonable searches and seizures and provide that warrants will not issue without probable cause. Generally, a search of private property, unless consented to or authorized by a valid search warrant, is unreasonable. This warrant requirement is excused where there are exigent circumstances. See, E.g., Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (hot pursuit). Moreover, certain conduct, such as border searches, see Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), and 'stop and frisk', see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), has been recongized as not being subject to the warrant procedure. Such action requires less than probable cause but is still tested by the Fourth Amendment's proscription against unreasonable searches and seizures. Reasonableness is determined by 'balancing the need to search against the invasion which the search entails'. Camara v. Municipal Court, 387 U.S. 523, 537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967).

School officials stand in a unique position with respect to their students. They possess many of the powers and responsibilities of parents to enable them to control conduct in their schools. See Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). At times, the powers and responsibilities regarding discipline and the maintenance of an educational atmosphere may conflict with fundamental constitutional safeguards. A student cannot be subjected to unreasonable searches and seizures. On the other hand, the public interest in maintaining an effective system of education and the more immediate interest of a school official in protecting the well-being of the students entrusted to his supervision against the omnipresent dangers of drug abuse must be considered. In striking a balance, we adopt a 'reasonable suspicion' standard. See In re State in Interest of G C, 121 N.J.Super. 108, 296 A.2d 102 (1972); People v. Jackson, 65 Misc.2d 909, 319 N.Y.S.2d 731 (1971), Affirmed 30 N.Y.2d 734, 333 N.Y.S.2d 167, 284 N.E.2d 153 (1972); State v. Baccino, 282 A.2d 869 (Del.Super.1971). Could the principal in this case have reasonably suspected that defendant had drugs on his person when he required defendant to empty his pockets? We think so.

The principal in the present case was told by defendant's counselor that defendant had been seen selling pills by a teacher on a number of occasions. The principal was not able to talk to defendant until the following morning when defendant was asked about his involvement in drug-related activities and required to empty his pockets. We feel that the principal acted in a responsible and diligent manner. He was not acting arbitrarily but with 'reasonable suspicion' that defendant was selling drugs in school. Defendant's right against unreasonable searches and seizures was not violated.

Although not questioned below, see M.C.L.A. § 767.76; M.S.A. § 28.1016, or on appeal, the information in this case charged that defendant 'unlawfully did knowingly or intentionally...