State v. D.T.W.

• Decision Date: 03 February 1983
• Docket Number: No. AD-3,AD-3
• Parties: 9 Ed. Law Rep. 457 STATE of Florida, Appellant, v. D.T.W., a child, Appellee.
• Court: Florida District Court of Appeals

Page 1383

425 So.2d 1383

9 Ed. Law Rep. 457

STATE of Florida, Appellant, v. D.T.W., a child, Appellee.

No. AD-3.

District Court of Appeal of Florida,

First District.

Feb. 3, 1983.

Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellant.

Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellee.

LARRY G. SMITH, Judge.

In this opinion we apply the reasonable suspicion standard for searches conducted on a public primary or secondary school campus. In so doing we reverse the lower court's order granting a motion to suppress marijuana and drug paraphernalia.

D.T.W., the appellee, a student at a Jacksonville area high school, parked his car in the school parking lot. During a school lunch hour, a high school teacher's aide to the Dean started patrolling the parking lot. An employee of the school board, he had been hired to patrol the hallways and parking lots to make sure the school code was not being violated. He routinely checked the parking lots and sometimes looked into cars.

On the day in question the aide happened to look into appellee's car and spied a partially covered object that he was able to identify as a "bong." ¹ The Dean of boys and the appellee were summoned. The Dean advised appellee that the school had the right to search his car. According to the Dean and the security guard, appellee was asked if they could search his car. Appellee contended that the Dean threatened to call the police if he didn't hand over the keys and permit a search of the car. Regardless of the version of the facts one accepts, it is uncontested that appellee turned over his car keys.

The "bong" was removed from the car, and in the process a package of Marlboro cigarettes was found in plain view lying on the console inside the car. The package was seized, since possession of cigarettes is prohibited by school regulations. The package, when opened, was found to contain marijuana cigarettes. The appellee was subsequently charged with the possession of both a controlled substance and drug paraphernalia.

Appellee filed a motion to suppress the evidence based upon an unreasonable search and seizure. The lower court granted the motion, finding: 1) that school officials need have only a "reasonable suspicion" to search a child or his property while at school; 2) that the initial broad search of the parking lot could not be justified based on either the probable cause or reasonable suspicion standard; and 3) that the evidence was not sufficiently clear and convincing to show that the appellee voluntarily consented to the search. We affirm the trial judge's application of the "reasonable suspicion" standard, but we disagree with his ruling on the second point, and find that the third point, consent to the search, is moot.

Initially, we note that in Nelson v. State, 319 So.2d 154 (Fla. 2nd DCA 1975), our sister court adopted the reasonable suspicion standard for a search and seizure on a public school campus. This court found the Nelson court's reasoning quite persuasive and utilized the reasonable suspicion standard in reaching a determination in State v. F.W.E., 360 So.2d 148, 150 (Fla. 1st DCA 1978). Other decisions of this court have alluded to applicability of the reasonable suspicion standard. W.J.S. v. State, 409 So.2d 1209 (Fla. 1st DCA 1982); M.J. v. State, 399 So.2d 996 (Fla. 1st DCA 1981).

So that there is no doubt as to this issue, we affirm the trial court's determination to apply the reasonable suspicion standard to searches and seizures at public primary and secondary schools when the search is executed by school officials. ² This view is in line with the perceptions of the Nelson court, and with the emerging national trend of the law in other jurisdictions. ³ We note also that the 1982 Florida Legislature has expressly incorporated the "reasonable suspicion" standard into the statutory law of the state in Section 232.256, Florida Statutes (1982), authorizing a school principal or school employee designated by the principal to search a student's locker or other storage area if there is "reasonable suspicion that a prohibited or illegally possessed substance or object" is contained within the locker or storage area. Section 232.256, subsections (1), (2).

The public interest in varying the degree of probable cause from traditional criminal standards, in the public primary or secondary school setting, has been carefully scrutinized by courts in other jurisdictions. See, e.g., State In the Interest of T.L.O., supra, footnote 3, at 428 A.2d 1333 and People v. D., supra, footnote 3, at 358 N.Y.S.2d 405-06, 315 N.E.2d 468-469. ⁴ As expressed by the Wisconsin Court of Appeals, the public interest is in education, upon which society places a high value. It "requires an orderly atmosphere which is free from danger and disruption. The introduction of dangerous or illegal items or substances into the school presents a hazard for teachers and students." In the Interest of L.L., supra, footnote 3, at 280 N.W.2d 350. Because students are compelled by law to attend school, ⁵ the state has a legitimate and compelling interest--if not a duty--in assuring both parents and students that the large number of law abiding students will not be victimized by the criminal few. Accord: People v. D., supra; Ward, supra, footnote 3, at 233 N.W.2d 183.

This significant public interest, operating in conjunction with the doctrine of in loco parentis provides, in our opinion, ample justification for a lowered expectation of privacy on the part of students. Teachers and other school personnel act in loco parentis or in place of parents to a certain degree. Nelson, supra, at 156. This is so because school officials are charged by law with the control and discipline of students. Sections 230.23(6)(c); 232.25-232.28, Florida Statutes; 29 Fla.Jur. Schools §§ 110-112 (1967). Consequently, while the Constitution limits the power of school officials and provides the student with a reasonable expectation of privacy, the doctrine of in loco parentis expands the power of school officials and lowers the student's expectation of privacy. In Re W., supra, footnote 3, at 105 Cal.Rptr. 777. ⁶

From the above, it seems clear that the realities of the school setting require that teachers and other school personnel have the power to make an immediate, limited search, for contraband, weapons, or other prohibited objects or substances, when a reasonable subjective suspicion supported by objective, articulable facts would lead a reasonably prudent person to suspect that these items are present, or that school regulations are being violated. ⁷

Maintenance of discipline often requires immediate action; it cannot await the procurement of a search warrant based on probable cause. McKinnon, supra, footnote 3, at 558 P.2d 784. So long as the school employee or official has a reasonable suspicion and is pursuing the public's legitimate interest in maintaining order, discipline, safety, and education, the Fourth Amendment does not require that a warrant be obtained before conducting a search. Bilbrey, supra, footnote 3, at 28.

To assist in determining whether a reasonable suspicion to search exists, several factors have been suggested, including consideration of the child's age, history and record in school; the prevalence and seriousness of the problem in the school to which the search was directed; the exigencies in making a search without delay and further investigation; the probative value and reliability of the information used as a justification for the search; and the particular teacher or school official's experience with the student. See, State In the Interest of T.L.O., supra, at 428 A.2d 1334; In the Interest of L.L., supra, at 280 N.W.2d 351; and People v. D., supra, at 315 N.E.2d 470. These factors are neither mandatory considerations nor an exhaustive and complete list of all the considerations possible in determining if a reasonable suspicion to search exists. But they are a starting point.

In this case, the lower court determined that the initial patrol through the parking area, in which the teacher's aide to the Dean looked through the appellee's car window and saw the bong, was without probable cause or reasonable suspicion, because the teacher's aide did not have reason to believe that any vehicle contained contraband or weapons. However, upon viewing the facts of this case in the light of the foregoing principles, it appears to us that the action of the teacher's aide was fully justified and reasonable, and not a "search" within the prohibition of the Fourth Amendment.

The teacher's aide testified that he was looking for "suspicious things" and that he routinely patrolled the parking lot as part of his duties. Thus, his duties would clearly encompass looking for contraband, checking to make sure no one was trying to break into a student's car, and patrolling to supervise students in the lot during their lunch hour. We observe that the parking lot was a public place, open to all students and school officials, where the expectation of privacy would be only minimal.

The teacher's aide further stated that there had been problems with weapons in students' cars and that he had encountered these problems. The evidence thus points to the existence of particular problems of legitimate concern to school officials, and the particular school official's experience in dealing with those problems. Considering that our public schools have a generally recognized duty to control and supervise students on campus, ⁸ failure to fulfill this obligation by school personnel could subject school authorities to liability for injuries to a student resulting from such failure. See, Bryant v. School Board of Duval County, 399 So.2d 417, 420 (Fla. 1st DCA 1981), modified 417 So.2d 658 (Fla.1982).

Under the circumstances presented, we hold that neither probable cause nor reasonable...