State v. McKinnon

• Decision Date: 07 January 1977
• Docket Number: 44377,Nos. 44376,s. 44376
• Parties: STATE of Washington, Respondent, v. Walter Gregory McKINNON, Appellant. STATE of Washington, Respondent, v. Larry Raymond YATES, Appellant.
• Court: Washington Supreme Court

Page 75

88 Wn.2d 75

558 P.2d 781

STATE of Washington, Respondent, v. Walter Gregory McKINNON, Appellant.

STATE of Washington, Respondent, v. Larry Raymond YATES, Appellant.

Nos. 44376, 44377.

Supreme Court of Washington, En Banc.

Jan. 7, 1977.

Graham, Cohen & Wampold, R. Joseph Wesley, Seattle, King, King & Davidson, Kenneth H. Davidson, Kirkland, for appellants.

Christopher T. Bayley, King County Pros. Atty., Charles S. Hamilton III, Deputy Pros. Atty., Bruce M. Ries, Seattle, for respondent.

HAMILTON, Associate Justice.

In separate trials, defendant (appellant) Yates was convicted of possession of a controlled substance with intent to deliver, and defendant (appellant) McKinnon was convicted of two counts of possession of a controlled substance. The cases were consolidated for appeal. Both cases involve the contention that evidence seized by the defendant's high school principal was improperly admitted against them.

On November 4, 1974, the chief of police for Snoqualmie, Washington, received a call from a confidential informant that the defendants, who were high school students, were selling 'speed.' The informant described the clothes which the defendants were wearing that day, and pinpointed in which pockets the 'speed' was located. The police chief immediately contacted the principal of the defendants' high school and related the above information. The principal responded that he would talk to the defendants and get back to the chief of police.

The principal then contacted defendant Yates and brought him to the principal's office. At the same time the vice-principal contacted defendant McKinnon and took him to the vice-principal's office. The principal asked defendant Yates to empty his pockets. Defendant Yates them emptied all of his pockets, except the one in which the informant had said the 'speed' would be located. The principal then reached into that pocket and found two packages of white pills. Meanwhile, the vice-principal was having defendant McKinnon empty his pockets. The principal then entered the vice-principal's office and reached into defendant McKinnon's pocket--the pocket in which the informant had said the 'speed' was located--and found several packets of white pills. Laboratory analyses later confirmed that the pills found on both defendants' persons were amphetamines.

The principal then telephoned the chief of police who went to the school and placed both students under arrest. While the police chief was driving the defendants to the police station, he saw defendant McKinnon take a bag out of his pocket and place it under the car seat. When they arrived at the police station, the chief of police told defendant McKinnon to go back out to the car and retrieve the bag he had secreted. Defendant McKinnon did so, and then voluntarily surrendered another bag. Laboratory analysis confirmed that these two bags contained marijuana. Later that same day, both defendants signed written statements regarding the drugs.

Defendants contend that the searches of their persons by the high school principal violated their right to be free from unreasonable searches as guaranteed to them by the fourth amendment to the United States Constitution, ¹ and therefore the fruits of these searches should have been excluded under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), because the principal is a state official. Although there is a split of authority whether school officials are governmental agents within the meaning of the Fourth Amendment, Compare In re Donaldson, 269 Cal.App.2d 509, 75 Cal.Rptr. 220 (1969); Mercer v. State, 450 S.W.2d 715 (Tex.Civ.App.1970), With State v. Baccino, 282 A.2d 869, 49 A.L.R.3d 973 (Del.Super.Ct.1971); State v. Mora, 307 So.2d 317 (La.1975); and Doe v. State, 88 N.M. 347, 540 P.2d 827 (1975), we need not decide this question for we believe the search conducted by the principal did not violate defendants' Fourth Amendment rights.

The Fourth Amendment does not prohibit all searches, but only unreasonable searches. The question of reasonableness always involves balancing the governmental interests with the individual's right to be free from intrusions. See Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). When law enforcement officers are conducting a search, they are generally required to secure a search warrant issued upon a showing of probable cause, except for a few 'jealously and carefully drawn' exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). However, in some situations, the search and seizure is allowed upon less than the traditional standard of probable cause because the governmental interests outweigh the intrusion. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (stop and frisk); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (stopping of vehicles by roving border patrol); United States v. Martinez-Fuerte, ---U.S. ---, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (stopping vehicles at a routine border checkpoint).

It is well established that students do not lose their constitutional rights when they enter the school grounds. Tinker v. Des Moines School Dist.,393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The Washington State Board of Education has recognized the student's right to be secure against unreasonable searches and seizures. See WAC 180--40--095(3). In Tinker, certain students wore black armbands to express their objections to the hostilities in Vietnam. The students were suspended until they would return to the school minus their armbands. The Supreme Court found that the wearing of armbands was closely akin to 'pure speech' and did not interfere with school operations or with the right of other students to be secure and to be left alone. It held that the wearing of these armbands was speech protected by the first amendment to the United States Constitution and that students could not be suspended for expressing their non-disruptive objections to the armed conflict in Vietnam:

The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially interfer(ing) with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others. Burnside v. Byars, (363 F.2d 744, 749 (5th Cir. 1966)). But conduct by the student, in class or out of it, which for any reason--whether it stems from time, place, or type of behavior--materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.

(Footnote omitted. Italics ours.) Tinker v. Des Moines School Dist., supra at 512--13, 89 S.Ct. at 739--740. The protection of schoolroom decorum was also affirmatively recognized in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).

Although Tinker and Goss did not deal with students' Fourth Amendment rights, we believe this same recognition of schoolroom decorum is appropriate when dealing with Fourth Amendment rights. In Washington, students must attend school through the age of 14 and in most cases through the age of 17. RCW 28A.27.010. Certificated school personnel are given the authority and indeed have the duty to maintain good order and discipline in the schools. RCW 28A.67.100; WAC 180--44--020(1). This duty to maintain order and discipline is not founded upon arbitrary grounds. The school's function is to educate children, both intellectually and socially, to prepare them to properly function in our evermore complex adult world. Because of the number of students brought together during a school day, the educational function can only be accomplished by maintaining order and discipline in the school. Further, certificated school personnel must maintain schoolroom decorum in order to protect other students' rights to be secure and to be left alone.

The high school principal is not a law enforcement officer. His job does not concern the discovery and prevention of crime. His duty as the chief administrator of the high school includes a primary duty of maintaining order and discipline in the school. In carrying out this duty, he should not be held to the same probable cause standard as law enforcement officers. Although a student's right to be free from intrusion is not be lightly disregarded, for us to hold school officials to the standard of probable cause required of law enforcement officials would create an unreasonable burden upon these school officials. Maintaining discipline in schools oftentimes requires immediate action and cannot await the procurement of a search warrant based on probable cause. We hold that the search of a student's person is reasonable and does not violate his Fourth Amendment rights, if the school official has reasonable grounds to believe the search is necessary in the aid of maintaining school discipline and order. See State v. Baccino, supra; State v. Young,234 Ga. 488, 216 S.E.2d 586 (1975); In re State in Interest of G.C., 121 N.J.Super. 108, 296 A.2d 102 (1972); Doe v. State, supra; People v. D., 34 N.Y.2d 483, 358 N.Y.S.2d 403, 315 N.E.2d 466 (1974); People v. Jackson, 65 Misc.2d 909, 319 N.Y.S.2d 731 (1971), Aff'd, 30 N.Y.2d 734, 333 N.Y.S.2d 167, 284 N.E.2d 153 (1972). Contra, State v. Mora, supra....