On appeal from the Superior Court, Appellate Division, whose opinion is reported at 185 N.J. Super. 279 (1982) (State in the Interest of T.L.O.). On certification to the Superior Court, Law Division, Somerset County (State v. Engerud).
For reversal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock and O'Hern. For affirmance -- Justices Schreiber and Garibaldi. The opinion of the Court was delivered by O'Hern, J. Schreiber, J., dissenting. Justice Garibaldi joins in this opinion.
The issues here are (1) whether the Fourth Amendment exclusionary rule applies to student searches made by public school administrators; and (2) what standard determines the reasonableness of the search if the exclusionary rule does apply.
On March 7, 1980, a teacher at Piscataway High School reported that fourteen year old T.L.O. and another student were smoking in the girls' restroom. School regulations forbade smoking in that area and the teacher took the students to the assistant principal's office. He asked the students whether they had been smoking. T.L.O.'s companion admitted smoking and the assistant principal assigned her to a three-day smoking clinic.
T.L.O. denied smoking in the lavatory or indeed smoking at all. The assistant principal asked T.L.O. to go with him into a private office. He closed the door and asked her to turn over her purse. At this time they were both seated at a desk, he behind and she in front. When he opened the purse on the desk, he saw a pack of Marlboros. He picked up the cigarettes and said "You lied to me." As he reached into the purse for the cigarettes, he saw rolling papers in plain view. That fact, his experience told him, meant that marijuana was probably involved. He therefore looked further into the purse and found a metal pipe of the kind used for smoking marijuana, empty plastic bags and one plastic bag containing a tobacco-like substance. His search also revealed an index card reading "People who owe me money," followed by a list of names and amounts of $1.50 and $1.00, and two letters, one from T.L.O. to another student and a return letter, both containing language clearly
indicating drug dealing by T.L.O. The purse also contained $40, most of it in one-dollar bills.
The assistant principal called T.L.O.'s mother and the police. A police officer asked the mother to bring T.L.O. to police headquarters for questioning. There, T.L.O. admitted selling marijuana to other students. She was charged with delinquency based on possession of marijuana with the intent to distribute. N.J.S.A. 2A:4-44; 24:21-20(a)(4); 24:21-19(a)(1).*fn1
T.L.O. moved to suppress the evidence seized from her purse and her confession, claiming that the search tainted the confession. She also argued that she had not knowingly waived her right to remain silent. The Juvenile and Domestic Relations Court denied the motion to suppress. 178 N.J. Super. 329 (1980).*fn2 It found the Fourth Amendment exclusionary rule applicable to school searches, but found the standard applicable to such a search to be "a reasonable suspicion that a crime has been or is in the process of being committed, or reasonable cause to believe that the search is necessary to maintain school discipline or enforce school policies." 178 N.J. Super. at 341 (emphasis in original). It concluded that the assistant principal had justification for opening the purse, since he had reasonable cause to believe that smoking, a violation of school policy, had occurred. Once he had opened the purse, in the court's opinion, the contents were subject to the "plain view" doctrine. Having
found the marijuana and paraphernalia, the assistant principal justifiably continued his search to determine the extent of that violation. 178 N.J. Super. at 343.
On appeal, the Appellate Division affirmed the denial of the suppression motion on the basis of the Juvenile Court's opinion. 185 N.J. Super. 279 (1982). But it vacated the adjudication of delinquency and remanded for further proceedings to determine whether the juvenile had knowingly waived her constitutional rights before giving the confession. Judge Joelson dissented from that portion of the opinion that approved a standard lower than probable cause for school searches. He characterized this as "riding rough-shod over the rights of a juvenile in school." 185 N.J. Super. at 284 (Joelson, J., dissenting). T.L.O. appealed to us of right on the basis of the dissent below. R. 2:2-1(a)(2).
On January 29, 1980, a vice-principal at Somerville High School met with a Somerville police detective in the high school office. The detective had just received a telephone call from a person claiming to be the father of a student. The caller said that the defendant, an eighteen year old student at the school, was selling drugs in the school and if the police did not stop it, he would take matters into his own hands. Their conversation lasted five minutes and the detective left the building.
The vice-principal then relayed this information to the assistant principal and the principal. The principal had heard a "rumor" a year earlier that the defendant was selling drugs at the school. He and the assistant principal opened the defendant's locker through the use of a pass-key that could open any locker in the building even though the lockers are equipped with combination locks. The two men made a complete search of the locker and its contents. In the defendant's coat pocket they found two plastic bags containing packets of a white substance that turned out to be methamphetamine (speed). Each packet
was marked with its weight in fractions of a gram. They also discovered a package of marijuana rolling paper.
The vice-principal called the police and defendant's parents and took the defendant out of class. The principal asked the defendant to empty his pockets. This disclosed a small quantity of marijuana and $45 in cash.
Engerud was charged with unlawful possession of a controlled dangerous substance and unlawful possession of a controlled dangerous substance with intent to distribute. N.J.S.A. 24:21-20(a)(1); 24:21-19(a)(1). On June 18, 1981, the Law Division judge denied a motion to suppress the evidence obtained from the locker and pocket searches. In his view the search was "responsible and diligent under all of the circumstances."
On July 9, 1981, defendant pleaded guilty to the second count of the indictment and was sentenced to an indeterminate term at Yardville, not to exceed five years. His sentence was stayed pending appeal. We certified Engerud's appeal directly. R. 2:12-1. 93 N.J. 308 (1983).
"It can hardly be argued that . . . students . . . shed their constitutional rights . . . at the schoolhouse gate." Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 736, 21 L. Ed. 2d 731, 737 (1969). In Tinker, the Supreme Court recognized that wearing an armband in school for the purpose of expressing certain views is a type of symbolic act that is protected by the free speech clause of the First Amendment. Id. at 505, 89 S. Ct. at 735, 21 L. Ed. 2d at 737. It found that wearing the armband in the circumstances of the case involved no actually or potentially disruptive conduct, id., and that students' constitutional rights are protected unless their conduct "materially disrupts classwork or involves substantial disorder or invasion of the rights of others," id. at 513, 89 S. Ct. at 740, 21 L. Ed. 2d at 741. Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975), establishes that whenever
students face loss of an important substantive right, they share with every person protected by the Constitution the right to procedural due process.
This long-standing*fn3 recognition of students' legitimate entitlement to the minimum protections of the Constitution parallels the developing concern of the Court that the juvenile justice system reflect the fundamental fairness that our Constitution guarantees adult offenders. See In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). Young people and students are persons protected by the United States and New Jersey Constitutions. E.g., Island Trees Union Free School Dist. No. 26 Bd. of Educ. v. Pico, 457 U.S. 853, , 102 S. Ct. 2799, 2807, 73 L. Ed. 2d 435, 445-46 (1982); Tinker, 393 U.S. at 511, 89 S. Ct. at 739, 21 L. Ed. 2d at 740; Gault, 387 U.S. at 13, 87 S. Ct. at 1436, 18 L. Ed. 2d at 538. But compare Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977) (Eighth Amendment does not bar moderate corporal punishment of students) with N.J.S.A. 18A:6-1 (banning corporal punishment in New Jersey schools).
Some contend, however, that the exclusionary rule should not apply since the fundamental purpose of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), is to deter law enforcement officials from violating constitutional rights. They suggest that the school official be viewed as a private person, indeed as one in loco parentis,*fn4 whose relationship to the student
does not invoke the same protections as a search by a law enforcement official. But "[t]he Fourteenth Amendment [here incorporating the Fourth 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 Bd. of Educ. v. Barnette, 319 U.S. 624, 637, 63 S. Ct. 1178, 1185, 87 L. Ed. 1628, 1637 (1943) (school may not compel flag salute over religious objection); State in Interest of G.C., 121 N.J. Super. 108, 114 (J.D.R.C.1972). The "basic purpose of [the Fourth Amendment] is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." In re Martin, 90 N.J. 295, 312 (1982) (Pashman, J.) (quoting Marshall v. Barlow's, Inc., 436 U.S. 307, 312, 98 S. Ct. 1816, 1820, 56 L. Ed. 2d 305, 311 (1978); Camara v. Municipal Court, 387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 18 L. Ed. 2d 930, 935 (1967)).
It is of little comfort to one charged in a law enforcement proceeding whether the public official who illegally obtained the evidence was a municipal inspector, See v. Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967); Camara, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930; a firefighter, Michigan v. Tyler, 436 U.S. 499, 506, 98 S. Ct. 1942, 1948, 56 L. Ed. 2d 486, 496 (1978); or school administrator or law enforcement official. We believe that the issue is settled by the decisions of the Supreme Court and we accept the proposition that if an official search violates
constitutional rights, the evidence is not admissible in criminal proceedings.*fn5
A more difficult question is whether a school official may effect a search without a warrant. We ...