2006-406, IN RE JUVENILE 2006-0406

heard about the pipe. Based upon the two reports, the assistant principal The teacher, however, did not divulge the names of the students from whom he had done previously, he reported that information to the assistant principal.

teacher again heard from students that the juvenile had a pot pipe, and, as he assistant principal, was approached by the teacher. The following day, the

immediate action because the juvenile had left for the day by the time he, the about this situation “through other students.” The assistant principal took no in this case – had a “large pot pipe” in his possession. The teacher had heard school informed the assistant principal that a particular student – the juvenile

the following facts. On October 12, 2005, a teacher in the juvenile’s high

Court (

In reliance upon a record that all agree is sparse, the trial court found

Gordon, J.) denying his motion to suppress. We affirm. BRODERICK, C.J. The juvenile appeals an order of the Franklin District

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the to press. Errors may be reported by E-mail at the following address:

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney

editorial errors in order that corrections may be made before the opinion goes No. 2006-406 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Franklin District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Amendment to the United States Constitution. We disagree.

Part I, Article 19 of the New Hampshire Constitution and the Fourth be found. Accordingly, the juvenile argues that the search of his locker violated information identifying the juvenile’s locker as a place where the pot pipe might possession or distribution; and (3) the assistant principal was given no specific

pose the threat of immediate physical harm to other students, or important in dealing with problems such as weapons that may

student informants nor the teacher made any direct allegations of drug

informal to be effective. Swiftness and informality are especially take preventive and disciplinary measures that must be swift and irresponsible classmates. This duty requires administrators to school children from antisocial behavior on the part of based; (2) possession of a pot pipe is not against the law, and neither the public education. Among these responsibilities is a duty to protect thus undermining the reliability of the information upon which the search was necessarily vests certain responsibilities in those administering the identities of the students from whom the teacher heard about the pot pipe, The right to a safe and healthy school environment

Id. As we explained in Drake: flexibility than are law enforcement officials when searching for contraband. v. Tinkham, 143 N.H. 73, 75 (1998). They are, however, afforded greater constitutional prohibitions against unreasonable searches and seizures. State It is well settled that public school officials are not exempt from the

and cite federal opinions for guidance only, id. at 233. claim under the State Constitution, State v. Ball, 124 N.H. 226, 231 (1983), State v. Gubitosi, 152 N.H. 673, 676 (2005). We first address the defendant’s except as to any controlling facts found by the trial court in the first instance. grounds to search his locker because: (1) the assistant principal did not know Our review of the trial court’s ruling on a motion to suppress is de novo,

discovery led to a delinquency petition being filed against the juvenile. marijuana, a lighter and thirty-two dollars in cash. The assistant principal’s The juvenile argues that the assistant principal lacked reasonable

petition. This appeal followed. court disagreed, and denied the motion. A finding of true was entered on the and adopted by this court in State v. Drake, 139 N.H. 662 (1995). The trial under the standard enunciated in New Jersey v. T. L. O., 469 U.S. 325 (1985), from the search of his locker, arguing that the search was unconstitutional In the trial court, the juvenile moved to suppress the evidence secured

which smelled of burnt marijuana, vegetative matter he believed to be searched the juvenile’s locker. In it, he found a backpack containing a pot pipe p. 3 3

the interference in the first place.”

lavatory. Id. at p. 3 328. Because smoking in a lavatory violated school rules, the high school teacher found two students, including T. L. O., smoking in a of this case, it will be useful to describe the facts of T. L. O. In that case, a To demonstrate the application of the rules stated in T. L. O. to the facts conducted was reasonably related in scope to the circumstances which justified inception; second, one must determine whether the search as actually omitted). sex of the student and the nature of the infraction.” inquiry: first, one must consider whether the action was justified at its Id. at 342 (footnote the objectives of the search and not excessively intrusive in light of the age and permissible in its scope when the measures adopted are reasonably related to reasonableness, under all the circumstances, of the search.” 42 (quotation and footnotes omitted). Finally, a search of a student “will be has violated or is violating either the law or the rules of the school.” Id. at 341grounds for suspecting that the search will turn up evidence that the student other school official will be justified at its inception when there are reasonable omitted). “Under ordinary circumstances, a search of a student by a teacher or

at p. 3 341. “Determining the reasonableness of any search involves a twofold contraband. greater flexibility than law enforcement officials when searching for T. L. O., 469 U.S. held that “the legality of a search of a student should depend simply on the special charge of school officials mandates that they be afforded with that set forth in T. L. O. In T. L. O., the United States Supreme Court public school officials under the New Hampshire Constitution is commensurate In Drake, 139 N.H. at 666, we held that the standard for searches by

today have less need for flexibility than they had in 1995. the twelve years since we decided Drake suggests that public school officials Drake, 1 p. 3 39 N.H. at 664-66 (citations omitted). Nothing that has happened in

weapons when they are in the charge of public school officials. importance of protecting children from dangers such as drugs and facilitates learning and promotes responsible citizenship. The fostering a safe and healthy educational environment that school administrators, on the other hand, are charged with criminal matters and maintenance of general public order. Public enforcement officers are responsible for the investigation of Public school officials are not law enforcement officers. Law

. . . .

should a search be delayed. Flexibility is critical because of the drugs that could easily be destroyed or otherwise disposed of p. 4 4

turn. the search of his locker was not justified at its inception. We address each in The juvenile advances three arguments supporting his contention that

was constitutionally permissible. Federal Constitution or Part I, Article 19 of the State Constitution. the search, which focused upon a place where a large pot pipe might be stored, locker did not violate his rights under either the Fourth Amendment to the marijuana in association with a large pot pipe), we conclude that the scope of intrusiveness of the search and its primary objective (the detection of given the age of the student (fifteen years old), and the moderate degree of possession. T. L. O., p. 4 469 U.S. at 342; Tinkham, 143 N.H. at 76. Moreover, violated or was violating RSA 318-B:2, I (2004), which prohibits marijuana up marijuana which, necessarily, would be evidence that the juvenile had that a search of places where a large pot pipe might be located would also turn pipe provided the assistant principal with reasonable grounds for suspecting rolling papers in T. L. O., the report of the juvenile’s possession of a large pot 139 N.H. at 666. The search was justified at its inception because, like the

purposes.” this case, we have little difficulty concluding that the search of the juvenile’s Based upon the similarities between the facts of T. L. O. and the facts of

indicated the presence of marihuana.” Id. “not dispute the reasonableness of Mr. Choplick’s belief that the rolling papers as he removed the pack of cigarettes.” Id. at 3 p. 4 47. Interestingly, T. L. O. did provided when Mr. Choplick observed a package of rolling papers in the purse “[t]he suspicion upon which the search for marihuana was founded was the search for marihuana.” Id. at 343-44. The Court further explained that the search for cigarettes – providing the suspicion that gave rise to the second – gave rise to this case actually involved two separate searches, with the first –

Id. at 3 p. 4 43. In so holding, the Court noted that “[t]he incident that

conclude that the search was in no sense unreasonable for Fourth Amendment The Court’s “review of the facts surrounding the search [led it] to

purse thoroughly.” Id. might yield further evidence of drug use, Mr. Choplick proceeded to search the with the use of marihuana. Suspecting that a closer examination of the purse possession of rolling papers by high school students was closely associated cigarettes, he also noticed a package of rolling papers. Id. “In his experience, opened the purse and found a pack of cigarettes. Id. When he reached for the Id. In response, Mr. Choplick demanded to see T. L. O.’ s purse. Id. He smoking in the lavatory; T. L. O. did not, and claimed she did not smoke at all. assistant vice principal, Mr. Choplick. Id. One girl admitted she had been teacher took the two students to the principal’s office, where they met with the invalidate the search.

p. 5 principal did not know the identities of the student informants does not

have expressed those concerns. Accordingly, the fact that the assistant the sources of his information or the manner in which he collected it, he would information he was passing along, and that if the teacher had concerns about principal to assume that the teacher vouched for the reliability of the

such as “reasonable suspicion” or “probable cause,” it was reasonable for the about it, would be desirable or even necessary under a different legal standard heard about the pot pipe, or the circumstances in which the students learned

While more detailed information about the circumstances in which the teacher

available to the assistant principals in principal in this case was virtually identical to the quality of the information the search of the juvenile’s locker did not describe unlawful activity. We their report. Finally, the quality of the information available to the assistant Second, it is of no moment that the student information that prompted

teacher knew the circumstances under which he obtained that information. sale.” obviously did know the teacher who reported the information to him, and the student [informant] or provide any other details about the alleged attempted students who provided information about the juvenile and his pot pipe, he the student had tried to sell another student marijuana “did not identify the constitutional, even though the coach who told two assistant principals that Mexico Court of Appeals held that the search of a student’s locker was (N.M. Ct. App.), cert. denied, 747 P.2d 922 (N.M. 1987), in which the New

reported activity – possession of the pot pipe – that was ongoing at the time of previous day,” id. (emphasis added), while in this case, the student informants school officials “that she had purchased drugs from the defendant during the attenuated than the report here. In Tinkham, the student informant told does this case,” the report in Tinkham was, in at least one way, more involved “more direct and more corroborated allegations of drug activity than rules. However, while the assistant p. 5 principal did not know the identities of the Moreover, notwithstanding the juvenile’s contention that Tinkham

at 76.

the reliability of the teacher’s reports before taking action to detect or prevent assistant principal did not take the time to conduct a further investigation into anonymous tip). We reach the same conclusion regarding the fact that the motion to suppress even though search was based upon a completely

notes that there was no other information linking him to any violation of school of the student informants or the basis of their alleged knowledge, and he also The juvenile points out that the assistant p. 5 principal did not know the identities

principal was not sufficiently reliable to justify a search of the juvenile’s locker. First, we do not agree that the information available to the assistant p. 6 6

which was a plausible location for storing a large pot pipe. reasonable for him to begin his search by examining the juvenile’s locker, marijuana, both of which are unlawful to sell. was violating the law against possessing marijuana, RSA 318-B:2, II, it was the availability for sale of either marijuana or paraphernalia for the ingestion of might want others to know that he or she has a pot pipe could be to advertise and may have even wanted people to know he had it. One reason why a person

App. 2000); Michael G., 748 P.2d at 19-20; Interest of L.L., 280 N.W.2d 343, various sets of factors. See, e.g., State v. B.A.S., 13 P.3d 244, 24 p. 6 6 (Wash. Ct. search for the pipe would turn up evidence that the juvenile had violated or N.H. at 76; Drake, 139 N.H. at 666. Courts around the country have adopted required by both T. L. O., 469 U.S. at 341, and our cases, see Tinkham, 143 determine whether a search of a student is justified at its inception, as inference that he was less than circumspect about being seen with the pipe factors that both school administrators and trial courts should consider to case demonstrates to us the need to provide further guidance regarding the O. standard we adopted in Drake, the development of the factual record in this Finally, while we are satisfied that the search at issue here met the T. L.

Because the assistant principal had reasonable grounds for suspecting that a The initial report referred to the juvenile’s possession of “a large pot pipe.” specifically identifying the locker as a place where the pot pipe might be found. successive days that the juvenile had a pot pipe supports a reasonable that the assistant principal searched the juvenile’s locker without information possession of a pot pipe on two separate occasions. That the teacher heard on Third, the constitutionality of the search is not compromised by the fact of this case include the fact that the juvenile’s fellow students mentioned his upon a report that the juvenile was in possession of a pot pipe. school grounds, make it unreasonable for the assistant principal to base a search for marijuana the fact that mere possession of drug paraphernalia is not unlawful did not

reasonableness of the assistant principal’s search. Finally, the circumstances

see Drake, 139 N.H. at p. 6 664-65, further underscores the

official’s undeniably legitimate interest in preventing the use of a pot pipe on possession of marijuana, which is illegal, id. at 34 p. 7 7. Moreover, a school the possession of rolling papers, which are legal to possess, suggested the that did violate school rules, T. L. O., 4 p. 6 69 U.S. at 344, and further held that rules, was evidence that the student had been smoking in the lavatory, an act student’s possession of cigarettes, which was neither illegal nor against school would also turn up marijuana. In T. L. O., the Supreme Court held that the unreasonable for the assistant principal to believe that a search for the pipe that the purpose of a pot pipe is to facilitate the use of marijuana, it was not drug paraphernalia, only possession with intent to deliver), but to the extent case is not unlawful, see RSA 318-B:2, II (2004) (criminalizing, with respect to recognize that mere possession of drug paraphernalia such as the pipe in this 7

in this case was justified at its inception, based upon the

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

particular teacher or school official’s experience with the student. Affirmed. information used as a justification for the search; and the suppress. further investigation; the probative value and reliability of the circumstances, we affirm the trial court’s order denying the juvenile’s motion to directed; the exigencies in making a search without delay and Because the search in this case was reasonable under all the

applied with the appropriate degree of flexibility.

the reliability of the information he was passing along. Accordingly, the search principal to believe that the teacher would have reported any concerns about acted was provided by a teacher, and it was reasonable for the assistant U.S. at 339-40. Moreover, the information upon which the assistant principal and addressed expeditiously. See Drake, 139 N.H. at 664-65; T. L. O., 469 controlled drug in any school is a serious problem that needs to be identified S.V.J. factors, there can be no gainsaying that unlawful possession of any Here, notwithstanding the lack of factual findings directed to some of the seriousness of the problem in the school to which the search was

exhaustive list of all possible considerations.” Id. (quotation omitted). recognize “that these factors are simply a starting point and not a complete and omitted). Like the courts in Florida, where this set of factors originated, we S.V.J. v. State, 891 So. 2d 1221, 1223 (Fla. Dist. Ct. App. 2005) (quotation

the child’s age, history and record in school; the prevalence and

in New Hampshire, as a starting point for analysis, the following set of factors: 351 (Wis. Ct. App. 19 p. 7 79). We are most persuaded by, and hereby adopt for use