State v. Drake

• Decision Date: 27 June 1995
• Docket Number: No. 93-604,93-604
• Citation: 139 N.H. 662,662 A.2d 265
• Parties: , 102 Ed. Law Rep. 605 The STATE of New Hampshire v. Jacob DRAKE.
• Court: New Hampshire Supreme Court

Page 265

662 A.2d 265

139 N.H. 662, 102 Ed. Law Rep. 605

The STATE of New Hampshire v. Jacob DRAKE.

No. 93-604.

Supreme Court of New Hampshire.

June 27, 1995.

Jeffrey R. Howard, Atty. Gen. (John A. Curran, Asst. Atty. Gen., on the brief and orally), for the State.

McLaughlin, Hemeon & Lahey, P.A., Laconia (Robert L. Hemeon, on the brief and Janice L. McLaughlin, on the brief and orally), for defendant.

THAYER, Justice.

The defendant, Jacob Drake, appeals his convictions in Superior Court (McHugh, J.) on two counts of possession of a controlled drug with intent to sell, RSA 318-B:26 (1984 & Supp.1993) (amended 1994), and one count of felonious use of a firearm, RSA 650-A:1 (1986). He contends that the superior court erred in denying his motion to suppress. We affirm.

On January 11, 1993, Kirkland Ross, the administrative assistant to the principal of Gilford High School, received an anonymous phone call. The caller said that the defendant, a senior, "would be carrying a substantial amount of drugs including LSD with him in school that day." Teachers had previously expressed concern to Ross that the defendant was likely using, and possibly distributing, drugs. Approximately a year earlier, a teacher had reported her belief that the defendant had been involved in a drug transaction at school. In addition, Ross' mother-in-law had told him that Drake had recently been arrested for drug possession in Massachusetts.

Ross notified the principal of the anonymous phone call, and the principal requested that the defendant, who was arriving late for school, come into his office. The defendant was told to empty his pockets, which contained a wallet, a package of cigarettes, a pipe, and some rolling papers. The principal asked him to open his knapsack after seeing the pipe and what appeared to be a small amount of marijuana on the rolling paper package. The knapsack contained several bags of marijuana. The principal called the Gilford Police Department, and Officer Markland took the defendant into custody. In addition to the marijuana, Markland found an unloaded semi-automatic pistol in the knapsack. A later search revealed two baggies in the defendant's sock containing 121 "hits" of LSD.

The defendant was indicted on two counts of possession of a controlled drug with intent to sell, and one count of felonious use of a firearm. His motion to suppress all evidence seized as a result of the search by school authorities on January 11 was denied by the superior court. The defendant waived his right to a trial and was found guilty on all three counts.

The defendant argues that the trial court erred in denying his motion to suppress under both part I, article 19 of the New Hampshire Constitution and the fourth amendment of the United States Constitution. "We address the defendant's State constitutional claim first, citing federal law only to aid our analysis." State v. Wong, 138 N.H. 56, 60, 635 A.2d 470, 473 (1993) (citation omitted).

Public school officials are not exempt from constitutional prohibitions against unreasonable searches and seizures. Part I, article 19 provides: "Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions." "In the absence of a lawful warrant, all searches are per se unreasonable unless conducted within the narrow confines of a judicially crafted exception." State v. Murray, 135 N.H. 369, 374, 605 A.2d 676, 679 (1992). Because the issue of searches by public school officials is one of first impression under part I, article 19, we find the decisions of other state and federal courts instructive. Wong, 138 N.H. at 61, 635 A.2d at 473.

Certain constitutional rights apply equally in the public school setting as elsewhere. See Duffley v. N.H. Interschol. Ath. Assoc., Inc., 122 N.H. 484, 485-86, 446 A.2d 462, 463 (1982). These include rights under part I, article 19 of the New Hampshire Constitution. Public school students have legitimate privacy interests in a variety of personal items they bring to school. See New Jersey v. T.L.O., 469 U.S. 325, 339, 105 S.Ct. 733, 741, 83 L.Ed.2d 720 (1985). These privacy interests are not waived when the student merely passes through the schoolhouse door. See id.

But while students bring certain rights with them when they enter a public school, additional rights attach upon that entry. In particular, students are entitled to a safe and healthy educational environment. This is worthy of particular notice because school attendance is mandated by law. See RSA 193:1 (Supp.1994).

The right to a safe and healthy school environment necessarily vests certain responsibilities in those administering public education. Among these responsibilities is a duty to protect school children from antisocial behavior on the part of irresponsible classmates. See In re State in Interest of G.C., 121 N.J.Super. 108, 296 A.2d 102, 106 (Juv. & Dom.Rel.Ct.1972). This duty requires administrators to take preventive and disciplinary measures that must be swift and informal to be effective. Swiftness and informality are especially important in dealing with problems such as weapons that may pose the threat of immediate physical harm to other students, see Com. v. Carey, 407 Mass. 528, 554 N.E.2d 1199, 1203 n. 4 (1990), or drugs that could easily be destroyed or otherwise disposed of should a search be delayed, see State v. McKinnon, 88 Wash.2d 75, 558 P.2d 781, 785 (1977). Flexibility is critical because of the importance of protecting children from dangers such as drugs and weapons when they are in the charge of public school officials. Cf. State v. Parker 127 N.H. 525, 530, 503 A.2d 809, 812 (1985) (State has strong interest in the protection of children).

"The public school setting is one in which governmental officials are directly in charge of children and their environs, including where they study, eat and play." In re William G., 40 Cal.3d 550, 221 Cal.Rptr. 118, 126, 709 P.2d 1287, 1295 (1985). They must therefore be allowed flexibility and discretion, especially when dealing with the drug problems that many public schools now face. See T.L.O., 469 U.S. at 339-40, 105 S.Ct. at 741-42. In exercising this discretion, school officials may employ the knowledge, expertise, and experience they have gained through efforts to deal with problems such as student drug use. See State ex rel. Galford v. Mark Anthony B., 189 W.Va. 538, 433 S.E.2d 41, 47 (1993).

The need for swift and informal procedures necessary for educators to assure a safe and healthy educational environment must be balanced against a student's legitimate privacy interest in non-contraband items. Within this context we determine the appropriate standard for permissible searches of students by public school officials under the New Hampshire Constitution. We note that the warrant requirement is particularly unsuited for public school officials in light of the need for swift and informal procedures to maintain discipline and order. See T.L.O., 469 U.S. at 340, 105 S.Ct. at 742. The standard we set forth is therefore applicable to warrantless searches.

Ordinarily, a search must be based on probable cause, even when that search may be validly conducted without a warrant. See, e.g., State v. Murray, 134 N.H. 613, 615, 598 A.2d 206, 208 (1991). We have held in other contexts, however, that a warrantless search can be reasonable under part I, article 19 even when not based on probable cause. See State v. Plante, 134 N.H. 585, 588, 594 A.2d 165, 167, cert. denied, 502 U.S. 984, 112 S.Ct. 590, 116 L.Ed.2d 614 (1991). "Any departure from the probable-cause requirement ... rests on a balancing of the nature and quality of the intrusion on the individual's [privacy] interests against the importance of the governmental interests alleged to justify the intrusion." State v. Pellicci, 133 N.H. 523, 529, 580 A.2d 710, 714 (1990) (quotation and ellipses omitted). The defendant does not argue that either a warrant or probable cause is necessary to justify public school searches. Instead, he urges us to adopt a standard of reasonable...