NEW JERSEY v. T.L.O.

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ORAL ARGUMENT OF ALLAN J. NODES, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: We will hear arguments next in New Jersey against T.L.O.--

Mr. Nodes, I think you may proceed whenever you are ready.

Allan J. Nodes: Mr. Chief Justice, and may it please the Court, this Court granted certiorari to the New Jersey Supreme Court in this case on the issue of the applicability of the Fourth Amendment exclusionary rule, the school searches conducted by school teachers and school officials.

In this case, the respondent was observed smoking a cigarette in a school restroom by a teacher.

The teacher took the student to the vice principal's office, and reported the incident to the vice principal.

After the vice principal left, the student not only denied having smoked in the restroom, but also stated that it couldn't have been her because she didn't even smoke.

After... following this statement, the vice principal asked for the student's purse, and opened the student's purse, finding a pack of cigarettes lying on the top.

He picked up the cigarettes and said something to the effect of,

"You lied to me about smoking cigarettes. "

looked back in the purse, and saw rolling papers for cigarettes.

He believed these were indicative of the presence of drug paraphernalia in the purse, and continued to look through the purse.

He found marijuana and other indications that the marijuana was in the purse for purposes of distribution.

Unidentified Justice: Mr. Nodes, under New Jersey law, can a minor consent to a search?

Allan J. Nodes: I don't think there would be any distinction under New Jersey law between a minor consenting to a search and an adult consenting.

New Jersey has a slightly stricter standard than the federal standard concerning consent, and it would have been absolutely necessary that the juvenile be aware of her rights prior to the search taking place in order for it to be a consent search.

Because of this, the state has always conceded that it was not a consent search.

The trial court and the appellate division in New Jersey--

Unidentified Justice: You left out one item in the pocketbook, the $40.

Allan J. Nodes: --I beg your pardon?

Unidentified Justice: You left out one item in the pocketbook--

Allan J. Nodes: Yes.

Unidentified Justice: --which was $40 in $1 bills, which signified that she was selling it.

Allan J. Nodes: Yes, Your Honor.

Unidentified Justice: You left that out.

Allan J. Nodes: There were also pieces of paper indicating that various other people, Johnny, people like that, owed her $1, $1.25, things like that, and all these items were entered into evidence at the juvenile delinquency proceeding against T.L.O., and they were all evidence of an intention to distribute the marijuana which was found in the purse.

T.L.O. was adjudicated a delinquent as a result of the evidence which was found, and the trial court and the New Jersey Appellate Division found that the search was totally proper.

However, the New Jersey Supreme Court found that the search exceeded reasonable grounds, and therefore found that it was required to exclude the evidence which had been found in the search.

Now, in reaching this decision, the New Jersey Supreme Court found that due to the amount of state action involved, that the Fourth Amendment to the United States Constitution would apply to this situation, and we have not protested this ruling.

In addition, the New Jersey Supreme Court found that in order for a search to be reasonable under the United States Constitution in the school search context the person conducting the search must have reasonable grounds to believe that the search will uncover evidence of a crime or evidence of a violation of school discipline or school regulations.

Unidentified Justice: Mr. Nodes, in your question presented for certiorari, you say whether the Fourth Amendment exclusionary rule applies to searches made by public school officials and teachers in school.

Now, the unwary might think that you were talking perhaps about an administrative proceeding where someone has been kicked out of school, wondering whether the exclusionary rule would apply in that, but here the exclusionary rule is applied by the Supreme Court of New Jersey in connection with a criminal prosecution of this person, was it not?

Allan J. Nodes: Yes, it was applied in connection with a juvenile delinquency prosecution.

The rules in New Jersey would be the same whether it was a juvenile delinquency prosecution or a criminal prosecution.

Unidentified Justice: So what we are really talking about here is the standard supporting a search, aren't we, in a school, rather than whether the exclusionary rule applies in this proceeding?

Allan J. Nodes: Well, the primary motion that was made by the defendant was for exclusion of the evidence, and the first question that had to be reached by the New Jersey court was whether or not under any circumstances there could be exclusion of evidence illegally taken in the school situation.

If the answer to that question was no, under no circumstances would this type of evidence be excluded, then setting a standard wouldn't be absolutely necessary.

That would no longer really be in controversy.

In the case, the New Jersey Supreme Court did do both.

It did set the standard and it also ruled that exclusion was warranted.

Unidentified Justice: And so your argument I take it is primarily addressed to the standard?

Allan J. Nodes: No, our argument here is primarily addressed to the exclusionary rule issue.

We basically agree--

Unidentified Justice: Well, do you think it is open to us to deal with the reasonableness of the search?

Allan J. Nodes: --I believe that could be considered a question subsumed within the--

Unidentified Justice: But it wasn't your intention to raise it?

Allan J. Nodes: --It wasn't our intention to raise it because we agree with the standard that was set forth by the New Jersey Supreme Court.

We feel that that is a workable standard.

Unidentified Justice: Courts around the country have differed somewhat on that standard, have they not?

Allan J. Nodes: Yes, they have.

In this whole area there has been a great deal of difference.

There have been courts which have held that the Fourth Amendment... they have gone all the way from saying the Fourth Amendment doesn't even apply to saying that the Fourth Amendment always applies and exclusion is always needed.

The reason we didn't specifically address the issue, though, of the standard, we believe both counsel have addressed that issue in their briefs, in footnotes, and we have set forth arguments, and the arguments were made before the New Jersey Supreme Court, is, the reason we didn't address it is because we think the New Jersey Supreme Court set forth a good standard and a workable standard.

Unidentified Justice: What exactly is your quarrel with the Supreme Court of New Jersey?

Allan J. Nodes: Our quarrel with the Supreme Court of New Jersey is that we do not feel that the exclusionary rule works as a deterrent in the school search situation, and because of that we don't feel that exclusion of evidence from a later criminal proceeding should ever occur when the search was instituted by school teachers and school officials.

Unidentified Justice: So teachers and school administrators should not be treated the same way as policemen and law enforcement--

Allan J. Nodes: That is our primary contention.

Yes, Your Honor.

Unidentified Justice: --Has the exclusionary rule been applied in other administrative search contexts?

Allan J. Nodes: Yes, it has been applied in other... in exclusionary... in other administrative search contexts, such as OSHA searches--

Unidentified Justice: Or fire protection people, and so forth?

Allan J. Nodes: --Well, yes.

I am not certain that those are actually administrative searches.

The people involved in them were searching for evidence of arson, which is definitely a crime, and it often wasn't a firefighter per se.

Unidentified Justice: In the other context, do you think it was based on a deterrence rationale?

Allan J. Nodes: I believe that certainly with the firefighters--

Unidentified Justice: In administrative contexts?

Allan J. Nodes: --Yes, I believe it was.

The persons who--

Unidentified Justice: But you somehow think that school officials can't be deterred?

Allan J. Nodes: --I think it is much less likely that a school official will be deterred.

The firefighter, and I believe in both Clifford and Tyler, the real persons who were doing most of the searching were either fire inspectors or police who were called in by fire inspectors, and they were very definitely searching for evidence of a very serious crime.

It wasn't an administrative search, and the other searches that are closer to pure administrative searches, such as Cameron and Barlows, cases like that, the persons who were doing the searches on a regular basis conducted searches for violations of civil regulations and administrative regulations.

That was their primary duty, and the purpose of the search was to find violations and it was clear that that evidence would be presented in the trial.

That was their primary function.

I think--

Unidentified Justice: Well, is it your view that school officials, regardless of the exclusionary rule's application, would continue to do what they always have done?

Allan J. Nodes: --It is our contention that the exclusionary rule has very little effect on a school teacher.

We feel that there are other means of teaching school teachers compliance with the Constitution and ensuring that there is compliance with the Constitution.

Unidentified Justice: Well, if that is so, then how can you square that with your argument that the application of the rule will create havoc in the schools?

It just seems inconsistent.

Allan J. Nodes: Well, I think that what it is is that if the exclusionary rule is to be applied, and if it is to have any effect, it can work only under very limited circumstances.

I think that one of the journals pointed out in the respondent's brief, the Journal of Law and Education set forth the way the exclusionary rule could work, and basically the journal suggested that in the school situation administrators and teachers could identify people in schools who were likely to cause trouble.

They could watch where these students went, and make notes of where they went.

They could watch who these students associated with and make notes of that.

They could make notes of whether the people... the students seemed to sometimes be intoxicated, seemed to be acting belligerent seemed to be cutting classes, seemed to be late a great deal of time.

And basically, what it sounds like is that in order for the rule to work, school teachers are going to have to turn into policemen, and they have to turn into policemen who will develop a dossier on a student before conducting a search.

Unidentified Justice: Mr. Attorney General, in this particular case, if the girl involved had a locked briefcase, would it have been all right to break it open?

Allan J. Nodes: I think this case presents a difficult question, and it was a question obviously in the New Jersey Supreme Court, in the New Jersey courts, and that is why there was a split.

A locked briefcase would show an added indication that the person had an expectation of privacy.

Under the standard set up by the New Jersey Supreme Court--

Unidentified Justice: But a closed pocketbook wouldn't be?

Allan J. Nodes: --Well, I think that the--

Unidentified Justice: Have you ever seen a woman that didn't take her pocketbook without a purse?

Allan J. Nodes: --Possibly not, Your Honor, but I think that it was a standard set up by the New Jersey Supreme Court.

The court indicated that the greater the intrusion, the more significant the intrusion the higher the standard would have to be in any event.

So I think before we went into something that was locked--

Unidentified Justice: That could be classified as free-wheeling.

Allan J. Nodes: --I think it would better be classified as a common sense approach which school teachers can actually use.

Unidentified Justice: But sometimes... anyway.

General Nodes, let me just ask you this question, if I may, following up on what Justice O'Connor was asking you, on the effect of what you are asking for.

You are not challenging the standard or the application of the standard in this case.

You are taking a broad position, as I understand you, that the exclusionary rule simply doesn't apply in the criminal context when the search is made by a school official.

Allan J. Nodes: Absolutely.

Unidentified Justice: But as I understand the New Jersey court, it would permit these searches to go ahead and let the results of the search be used for school disciplinary purposes and management of the school without any deterrent whatsoever.

Allan J. Nodes: Okay.

The New Jersey Supreme Court has not specifically addressed that issue, and has not said that.

Unidentified Justice: But this case doesn't preclude that.

Allan J. Nodes: No.

Unidentified Justice: All this case deals with is whether after the material is obtained it can be used for criminal purposes.

Allan J. Nodes: That is correct.

I would note that a chancery judge in New Jersey did rule in this case that evidence would be excluded from the disciplinary proceeding.

Unidentified Justice: But that is not before us.

Allan J. Nodes: That is not before us, and that is a single opinion that wasn't contested.

Our only contention is really that the exclusionary rule shouldn't apply in a criminal trial when the search was conducted by school officials.

Unidentified Justice: And that is no matter how flagrant the violation might be.

Allan J. Nodes: Yes, we think that regardless of how flagrant it would be, the standard would be the same, the application of the exclusionary rule would have very little effect, and that is the problem.

We just don't believe the effect is there.

This Court has often noted that there is a balancing test that must be used in determining whether or not the exclusionary rule would be applied in any context.

For instance in United States v. Havens, the Court allowed excludable evidence to be used for purposes of impeachment.

In United States v. Colandra, possibly excludable evidence was allowed to be presented before a grand jury.

In U.S. v. Janis, the Court allowed evidence which had actually been suppressed, quashed a state criminal proceeding to be introduced in a federal civil proceeding.

In Stone v. Powell, this Court found that the additional benefits of allowing search and seizure points to be raised in the federal habeas corpus context would be slight relation to the costs.

I think that all these cases have centered very square on the idea that a balancing test must be used, that the exclusionary rule has as its purpose the deterrent effect, and that we must be sure that that deterrent effect outweighs any detriments of the exclusionary rule before we will automatically apply the rule.

I believe that the benefits of applying the exclusionary rule to the school search situation are really very limited and very questionable.

The rule in effect punishes law enforcement officers for transgressions which are committed by law enforcement officers and transgressions themselves and other law enforcement officers.

Chief Justice Warren E. Burger: We will resume there at 1:00 o'clock, counsel.

Allan J. Nodes: Thank you.

Chief Justice Warren E. Burger: You may continue, Mr. Nodes.

ORAL ARGUMENT OF ALLAN J. NODES, ESQ., ON BEHALF OF THE PETITIONERS -- RESUMED

Allan J. Nodes: Mr. Chief Justice, and may it please the Court, at the recess I was trying to explain that our position is that the benefits of applying the exclusionary rule to the school search situation would be very questionable.

The idea of the rule is to punish law enforcement offers for offenses committed by themselves or constitutional transgressions committed by themselves and by other law enforcement officers.

It is thought that those who are in charge of formulating policies for law enforcement will be the persons most greatly affected, since they will be the prosecutors who will lose cases if there is not compliance with the Constitution.

Because of this, the rule is thought to have the effect of causing education of the police officers and detectives and investigators who actually conduct searches, and by this means the entire law enforcement community will be given an incentive to comply with the Constitution.

This simply will not work with school teachers, because they are not a part of this law enforcement community, and their interests are different than law enforcement officers.

They do obviously have an interest in ensuring that there is discipline in the schools.

This interest, however, is secondary to the primary interest, which is to educate the students.

The primary function of a police officer is law enforcement.

A policeman becomes a policeman because of an interest in enforcing laws.

A school teacher becomes a school teacher because of an interest in education.

Because the interest in law enforcement is so secondary, the benefits of the exclusionary rule in the school search situation would be even less than they are in the general criminal law situation.

This Court has noted often that there is clearly very little empirical data of the effectiveness of the exclusionary rule, and there is some question as to how well it works for law enforcement.

When we remove the person who is doing the search one step further from the law enforcement and one step further from the trial at which exclusion will occur, there is much more question about the effectiveness of the exclusionary rule, and much more question as to whether or not it will actually be a deterrent.

As far as the real detriments of the exclusionary rule, the major detriment has, of course, been noted on many occasions by this Court, that the guilty may go free because of the rule.

This is tolerated because the rule is felt to foster respect for criminal laws and respect for our system of criminal justice in general.

But as Justice Powell writing for the Court in Stone v. Powell noted, the indiscriminate use of the exclusionary rule could actually have the opposite of the intended effect.

It could actually nurture disrespect for our criminal laws, and could actually nurture disrespect for our system of criminal justice.

This is obviously a detriment any time the exclusionary rule is possibly extended.

This detriment may be even greater in the school search situation because disrespect of our criminal laws and disrespect of the system of justice is not a lesson which we should teach our students.

Therefore, before the exclusionary rule is applied to school searches by school teachers and officials, it should be very clear that the benefits of the rule outweigh the detriments, and that there are no other means of exacting compliance with the Constitution.

We believe that the detriments have been set forth very clearly and that the benefits are very limited, and the only way that we could really get a beneficial effect from the exclusionary rule in a school search situation so that it would foster compliance with the Constitution is to have teachers act as policemen, to have teachers follow the same rules as policemen, for teachers to actually investigate as policemen.

I suggest that this would totally change the educational system in this country.

Unidentified Justice: May I ask one question on this?

As Justice O'Connor pointed out before lunch, there is apparently some diversity among the states as to what the right standard is, but we don't reach that question.

I was wondering, have any of the states that have addressed this question, has any court held that the exclusionary rule does not apply?

Allan J. Nodes: The District Court... the Supreme Court of Alaska found that the Fourth Amendment in a DRC case didn't apply.

Unidentified Justice: But any court that has held the Fourth Amendment has been violated but you don't apply the exclusionary rule to school teachers?

Allan J. Nodes: I don't remember the name of the case offhand, but I know there have been District Courts that have held that.

I could supply the Court with the name of the case.

Unidentified Justice: Federal District Courts?

Allan J. Nodes: Yes, sir.

But in addition to this detriment that would occur by either... by changing the school system, by using the exclusionary rule and by forcing school teachers to act as policemen, we believe that the exclusionary rule is unnecessary because there are other deterrents in the school situation which will really work.

As this Court noted in Ingram v. Wright, the school situation is different than many other situations.

In the school situation, there is a great deal of community interest and a great deal of parental interest.

Now, in that case, of course, this Court found that if corporal punishment in a public school went too far, the community pressures in addition to possible criminal proceedings and possible civil proceedings would have the effect of stopping further transgressions.

We suggest that this would be at least as true in a school search situation, and we suggest that the more egregious a search, the more chances the deterrence would occur.

If a student goes home and complains to his parent that he has just been the subject of an unreasonable search, there is a high likelihood that the parent will complain to the principal or to the board of education, and there is a great likelihood that the principal or the board of education will take action on the basis of that complaint.

In New Jersey, as in many other states, there are systems for bringing community complaints to boards of education.

If a complaint were filed against a school teacher or an administrator, the local board of education would consider the complaint, and if there was merit, they would report the complaint to the state board of education.

That board has the power to remove tenure from the school teacher, cause the school teacher to be fired, or to revoke the license of a school teacher.

We believe that this is the type of a real deterrent against unlawful actions which will actually work and which will actually have an effect on school teachers and on school administrators, and I think that the final analysis is, we will find that if unreasonable searches continue, the community pressure will stop them.

So there is an automatic safeguard in place to unreasonable searches in the school situation.

In addition, there is the possibility criminal action being brought against a student or teacher who conducts an unreasonable search, and this would be particularly true in the situation of a possible strip search or a search of that type.

There are obvious criminal possibilities, and the teacher who is involved in a search like that or the official would have to consider those possibilities.

Unidentified Justice: But that is not this case.

Allan J. Nodes: I beg your pardon?

Unidentified Justice: What criminal action would there be in this case?

Allan J. Nodes: I think there would be--

Unidentified Justice: Visual, charged with looking?

Allan J. Nodes: --Admittedly, there would be very little chance of criminal action in a case like this.

We believe that this is a less intrusive search than many others that have been referred to in the defendant's brief, and I believe that this is a much closer call than in many of the other situations which defendant has referred to.

And because it is such a close call, there would be less of a chance of deterrence obviously.

The Supreme Court of New Jersey, while finding that the search in this case was not within Constitutional bounds, did not say that the general actions of the school vice principal were totally unreasonable, but just that they were unreasonable under the Constitution.

In that situation, it is obviously much harder to deter.

I think, though, that this case, at least in New Jersey, has taught educators what the framework is within which they must work.

I think because of this case they have learned something, regardless of whether there is actually exclusion or not.

There is also the chance of bringing a tort action or a 1983 action either in the state court or in the federal court against a teacher or a school official who unreasonably searches a student.

These types of things have been known not to be effective deterrents in the law enforcement situation where law enforcement officers are dealing primarily with criminals and people who on the most part are found to have contraband.

However, in the situation of an unreasonable search of a school student, I suggest that there would be a much greater chance that a 1983 action could be successful because the school student is simply going to provide a much more sympathetic figure to put before a jury when requesting damages.

And even if damages aren't actually returned in each case, the school teachers and school officials' awareness of the possibility of damages can have a detrimental... a deterrent effect.

Defendant or respondent has pointed out that in Wood v. Strickland this Court limited the liability of school officials from 1983 actions, and said that they would not be liable for good faith violations, and the respondent points out that this would limit the detrimental... the deterrent effect which these type of actions can have.

We believe that these cases teach another lesson.

The Court has determined that because of the realities of a school situation, because of the necessities for making sure that there is discipline in schools, that schools shall be treated somewhat differently, that school teachers and administrators shall not be treated precisely as law enforcement officers.

Now, having limited the first party deterrent effect that a 1983 action may have, we believe that it would not be appropriate to try to enforce compliance with the Constitution by means of a third party deterrent, and in the school search situation, that is what the exclusionary rule would really amount to, because the school teacher is clearly one step removed from the police officer to whom they turn over the evidence, and that person is one step removed from the prosecutor from who the evidence will be suppressed.

We believe that in an ideal situation a means would clearly be developed to ensure that the Constitution was complied with while enforcement of criminal laws went on.

This Court has noted that in the criminal situation this wasn't possible and therefore a choice must be made and a compromise must be reached, and the exclusionary rule was set up as a choice, as compromise between ensuring full criminal prosecution and ensuring the constitutional rights are highly regarded by law enforcement officers and other state officials.

We now are facing a situation where we don't have to make a choice, where we don't have to accept a compromise.

We have a situation where the benefits of the rule would be slight, but we do have other deterrents.

We can teach the school children that they must comply with the criminal laws while also teaching them that there are deterrents in place which will ensure that their constitutional rights won't be violated.

We suggest this is the rule we should be teaching these students.

I would reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Ms. DeJulio?

ORAL ARGUMENT OF LOIS DE JULIO, ESQ., ON BEHALF OF THE RESPONDENTS

Lois Dejulio: Mr. Chief Justice, and may it please the Court.

This case arises in the factual setting of the public school system, but I would urge the Court not to let the context obscure the fact that the issues presented here are not ones of educational policy, but are rather ones of criminal law.

The question is not whether or under what circumstances schools may regulate the conduct of their students.

It is not whether this school may use certain types of evidence in its own internal disciplinary proceedings to form the basis for imposing school sanctions.

Rather, the question is whether a court of law may permit an individual to be convicted of a crime based upon evidence illegally seized from him by a government official.

Unidentified Justice: Suppose, Ms. DeJulio, that all of these events that took place here took place not in the principal's office, but after the young lady got home, and it was her mother, not the school teacher.

Lois Dejulio: Well, Your Honor--

Unidentified Justice: And lay aside for a minute how the police get the evidence, but do you think the Fourth Amendment enters that setting?

Lois Dejulio: --Your Honor, the Fourth Amendment has never been applied to actions by purely private citizens, and certainly a parent would be acting in a purely private capacity.

However, courts have distinguished between the teacher acting as a state official and the parent acting in a parental role.

At one time, courts held that the teacher acted in loco parentis, that is to say, instead of the parent, and that doctrine may well have accorded with facts of the educational system as it stood 200 years ago, when the parent would hire a tutor or select a private school that would carry out the parents' own educational philosophy and disciplinary standards.

But in today's modern compulsory system of education, the teacher serves a very different role.

Unidentified Justice: Let me follow that now.

The mother is called to the school by the principal, and the whole episode occurs just as it did here, except that the mother orders the girl to open her purse.

The same answer?

Lois Dejulio: I would submit, yes, that that might very well be perfectly proper under the Constitution, and if the parent gave the evidence to the police, that may well also be proper.

Unidentified Justice: Well, I just said that the parent didn't give it to the police here.

The principal of the school then takes the evidence after the mother directs the daughter to disclose it.

Lois Dejulio: That may very well be a perfectly proper course of events.

In this case, it did not occur in that way, and the issue of whether the juvenile herself consented to the search by the principal under New Jersey law was decided against the state because it was not shown that she was aware she had a right to refuse, which would be the test under New Jersey state law for a consent search.

Unidentified Justice: May I ask another hypothetical question?

Let's assume you have a patient in a state hospital, and the hospital has a patient who has been forbidden to smoke, and the nurse has reason to believe that the particular patient is smoking, and searched his or her purse.

You would have the same situation?

Would you or would you not?

Lois Dejulio: I think that conduct would most likely be permissible.

Unidentified Justice: Why?

Lois Dejulio: Well, the test the New Jersey Supreme Court set forth did not prevent teachers or educators from conducting searches.

It merely required that they have some reasonable basis to do so.

Unidentified Justice: Yes.

Well, I am thinking about the application of the exclusionary rule.

Lois Dejulio: With regard to the application of the exclusionary rule, we would submit that if an improper search were conducted by a governmental employee, and I would--

Unidentified Justice: Well, let's assume that the nurse had probable cause to believe that there were cigarettes there and when the purse was opened found marijuana.

Lois Dejulio: --Well, if that were found to be correct, if there were probable cause, then that would be a constitutionally permissible search.

However, if not, it might be that the exclusionary rule would apply in that circumstance, depending on whether the actions of the nurse were considered--

Unidentified Justice: If the court found the search was not reasonable, the exclusionary rule would apply?

Lois Dejulio: --If the court found as a matter of fact, and I don't know, because I am not aware of the circumstances in state hospitals, whether the actions of a state hospital employee would constitute governmental action for Fourth Amendment purposes.

Unidentified Justice: A state hospital would be similar in that respect, wouldn't it, to a public school?

Lois Dejulio: I could certainly see some very definite similarities, and I would, without knowing more, conclude that that may be the case.

Unidentified Justice: So the hospital would be in the same situation generally that the school is?

Lois Dejulio: In that circumstance, it may very well.

Again, the circumstances that I am not aware of might lead a court to conclude that it would not be state action, but with regard to schools and educational officials, the vast majority of state courts and lower federal courts which have considered the question have found that school authorities, at least in our modern system of compulsory education--

Unidentified Justice: Could you help me?

What do you think the predicate is for a legal search by a school officer of a young lady's purse?

Under New Jersey law, I take it it is probable cause.

Lois Dejulio: --No, Your Honor.

With the--

Unidentified Justice: What do you think the Fourth Amendment would be satisfied with?

Lois Dejulio: --Well, the standard that the New Jersey court set forth was a reasonable ground standard, which, by reading the context of the decision they viewed to be a significantly less stringent standard than probable cause.

Unidentified Justice: So you think the Fourth Amendment doesn't apply in full force in the school context?

Lois Dejulio: Well, certainly the New Jersey Supreme Court did not think so.

Unidentified Justice: I am asking you what you think.

Lois Dejulio: We argued below that the standard of probable cause should be applied.

Unidentified Justice: And you still are submitting that?

Lois Dejulio: Well, Your Honor, that issue was not before the Court because the--

Unidentified Justice: I am asking you what you think the standard is.

Lois Dejulio: --Well, certainly when the search at issue is a personal search, and by that I mean a search of a--

Unidentified Justice: Well, a search of what is involved here, search of a purse.

Lois Dejulio: --Of a purse, of a pocket.

I would submit, and the New Jersey Supreme Court did indicate that its own standard, as the search became more intrusive, the level of reasonableness would closely approach probable cause, that certainly that--

Unidentified Justice: Why would you dispense with the warrant requirement?

Lois Dejulio: --Well, the requirement of a warrant presents certain difficulties for the school authorities.

Unidentified Justice: So the Fourth Amendment rules really don't apply in their full force in the school context?

Lois Dejulio: That has been the prevailing decisions by most courts which have considered it.

Unidentified Justice: And you are comfortable with that?

Lois Dejulio: I would certainly be comfortable with a probable cause standard even in the absence of a warrant.

Unidentified Justice: Without a warrant.

Search without a warrant.

Lois Dejulio: But I think that the circumstances may well devolve into the exigent circumstances exception in most cases because of the nature of the school environment.

The ability of the administrator--

Unidentified Justice: Well, if there are exigent circumstances, there is no violation of the Fourth Amendment.

Lois Dejulio: --That is correct, Your Honor.

Unidentified Justice: And no ground for excluding the evidence.

Lois Dejulio: And I think that is why the New Jersey court and many other state courts found that the warrant requirement would be particularly difficult for schools to comply with because, as my adversary noted, schools are not primarily involved in investigating criminal conduct.

Unidentified Justice: Well, they could hardly get a warrant anyway, could they?

Lois Dejulio: It would be difficult.

They would have to go--

Unidentified Justice: Difficult?

I don't know how they could even get a warrant.

They aren't law enforcement officials, are they?

Lois Dejulio: --It might present very difficult procedural problems.

Unidentified Justice: Ms. DeJulio, are you suggesting that the presence of exigent circumstances dispenses with the need for probable cause as well as the need for a warrant?

Lois Dejulio: No, Your Honor.

In our position before the New Jersey State Supreme Court, we argued that probable cause should be the required test when a full search was being conducted.

We obviously distinguish between the less intrusive search, such as the frisk for a weapon, which might arise in the school setting because obviously the police would only have to meet a reasonable suspicion test in that circumstance, and we conceded that if a school authority had reasonable suspicion to believe that a student was armed and dangerous, that the lesser standard would be justified in that circumstance as well.

Unidentified Justice: Do you think a Terry standard would be enough then?

Lois Dejulio: Well, certainly in a weapons situation if we hold the police to that standard I think it would be difficult to argue that we should not allow educators to act in that circumstance on the basis of reasonable suspicion or reasonable grounds, but again, the New Jersey Supreme Court determined that the reasonable grounds was the standard that they would adopt for all school searches, regardless of the purpose or the nature of the substance being searched for, with the caveat that as the search became more intrusive, the reasonable grounds would more closely approach probable cause.

Unidentified Justice: Do you agree that issue isn't before us?

Lois Dejulio: Your Honor, it is not before this Court as I understand it because the New Jersey Supreme Court found the search of the juvenile to be unreasonable.

Therefore we were not in a position to petition, and the state did not take issue, as I understand it, with the nature of the standard which the New Jersey Supreme Court adopted.

Unidentified Justice: So you think as it comes to us we must accept the notion that there was no... not even reasonable suspicion or reasonable grounds.

Lois Dejulio: I think the facts of the case do support the conclusion that there was no reasonable basis for the search at the outset.

Moreover, the New Jersey Supreme Court made the further finding that even if the initial opening of the purse had been reasonable, the scope of the search enlarged far beyond the reasonableness that would have justified the opening of the purse.

The principal testified that he opened the purse looking for tobacco cigarettes, and that he saw a package of Marlboro cigarettes sitting right on top.

At that point, he had done all that one could argue would be reasonable by any stretch of the imagination, but he then proceeded to remove the cigarettes, observe the rolling papers, which he then felt gave him a basis to go further, to open up zippered compartments, to read personal papers which the student had.

Unidentified Justice: Well, when he found the Marlboro cigarettes, he had more evidence towards probable cause than he did before he found them, because she had said, I don't smoke, and that shows that she lied as to saying that she didn't smoke, and therefore supports an inference that she lied in her other denials.

Lois Dejulio: Well, Your Honor, I think it is a close case, but I think that we have to keep in mind that in this school, unlike many others, smoking was not per se forbidden.

The school permitted students to smoke in certain designated areas, so that many students would be lawfully carrying cigarettes in their purses or pockets.

So that the search for cigarettes really was not proof positive either that the juvenile had been smoking in the girls' room, which was not a specially designated area.

Unidentified Justice: No, but it was proof positive that she had lied, or a very strong inference that she had lied when she said she didn't smoke.

Lois Dejulio: Your Honor, I think it may have been some evidence, but I don't think it was conclusive in that the fact that she was carrying cigarettes did not prove that she herself smoked.

Unidentified Justice: No, but I mean, you don't need a whole lot more than that, I don't think.

Lois Dejulio: Well, as I would be happy to concede, I think that it is a close case, and that the facts would support, however, the conclusion that the New Jersey Supreme Court made.

Unidentified Justice: Well, the only... as you have suggested yourself, there is only one question here, the application of the exclusionary rule.

Lois Dejulio: Of the exclusionary rule.

Unidentified Justice: Which I suppose assumes that there has been a violation.

Lois Dejulio: Yes, Your Honor, and certainly the state--

Unidentified Justice: And that even so, the evidence should not be excluded.

Lois Dejulio: --And we would submit that that... the past decisions of this Court, without exception, when the state is attempting to utilize the fruits of its illegal conduct on its direct case in chief in a criminal matter, that the exclusionary rule must be applied.

While, as my adversary notes, the more recent decisions of this Court have indicated that the exclusionary rule is not constitutionally mandated in every circumstance where Fourth Amendment violation occurs, those cases have not in any way affected the core deterrent function of the rule, which is to prevent the government from profiting from the fruits of its own illegal conduct, to impose a criminal sanction upon the victim of the search.

This case arises from a criminal prosecution in which the state was attempting to use the evidence to prove guilt the result of which would be the imposition of the criminal sanction upon the victim of the search.

Unidentified Justice: When you use the term "criminal, unlawful conduct", you are speaking of the teacher's conduct in opening the purse, are you?

Lois Dejulio: Yes, Your Honor.

I would suggest that is the government's action in opening the purse, and that in that capacity the teacher acted as the government.

Unidentified Justice: But you said that that is perfectly valid for the teacher to do that in terms of dealing with school discipline.

Lois Dejulio: It would be perfectly valid if the school teacher had some reasonable grounds to believe that the student was violating a school regulation or--

Unidentified Justice: Well, I thought you had conceded that before.

Lois Dejulio: --No, Your Honor, we did not concede that in the facts of this case.

The student had violated a school rule.

There is no question about that.

She was observed by a teacher smoking in a restricted area, an area where it was not permissible to be smoking, but that fact would be, I think, analogous to a situation where a teacher may have found two students fighting in a hallway.

Certainly that is a breach of school rules as well as a criminal violation.

Unidentified Justice: So you don't say at all or concede at all that a school official may search a purse just as a routine matter without reasonable grounds and use that as a matter of school discipline?

Lois Dejulio: Whether the evidence that was found--

Unidentified Justice: Without ever... and with no intention of ever presenting it in a criminal prosecution.

Lois Dejulio: --I don't believe that the intention of the searcher should govern the outcome.

The Fourth Amendment protects against intrusions into personal privacy.

The intrusion is equally invasive regardless of the intent of the individual searching, whether it be for some innocuous substance such as bubble gum in a school context or whether it be for a dangerous object, such as a weapon.

We permit the intrusion--

Unidentified Justice: Well, I would think then on the facts of this case if you are right that there was no reasonable grounds to search the purse that you would object to the use of the fruits of that search to impose any kind of discipline on this person.

Lois Dejulio: --Your Honor, that argument could be made, and in fact--

Unidentified Justice: Well, how about... what is your position on that?

Lois Dejulio: --This case came out of a criminal proceeding.

Unidentified Justice: I know it did.

I know it did.

Lois Dejulio: The decision would be with regard to a school disciplinary proceeding.

The law is unclear.

There is no law--

Unidentified Justice: Well, why wouldn't the answer be the same?

If the school officer has violated the constitutional rights of the student, why would the evidence be usable against him?

Lois Dejulio: --The more recent decisions of this Court have distinguished between the types of proceedings in which the exclusionary rule would be applied.

I could certainly make very substantial argument that a school disciplinary proceeding might well be the type of proceeding to which we would want to apply the exclusionary rule.

However, I think that we recognize that while people may suffer substantial detriments in civil cases in other settings, we have certain very strict rules that we apply to criminal prosecutions because we recognize that the consequences there are even more serious than might be the case in a comparable civil law setting.

Certainly if this matter had come up on the appeal from the ruling of the chancery court in this matter that the evidence could not have been utilized to impose a disciplinary sanction, it would be a very different case, and I think the arguments that would be made on both sides would be very different.

That was not the case here, and I did not nor can I at this point definitively make the arguments that should be made on both sides of that question.

I do feel that perhaps the briefs filed by the amicus curiae in this case, the school boards associations, really address arguments that ought to be made at some point in an appropriate appeal where the issue was whether the illegally seized evidence could be utilized in a school disciplinary proceeding, but I would state without exception that when we are dealing with a criminal law proceeding, the exclusionary rule must be applied when a state seeks to introduce fruits of an illegal search into its direct case in chief.

Unidentified Justice: Ms. DeJulio, may I ask you a somewhat different type question?

I am sure you know that many states conduct rather intensive educational programs for police officers to make sure that they know their duty and the basic legal principles applicable to the performance of those duties.

Had New Jersey instituted any such programs for the education of its teachers?

Lois Dejulio: Your Honor, I was called by the New Jersey Department of Education subsequent to the decision in the state court, and they indicated to me that they were interested in making that kind of training available, but then the petition for certiorari was filed, and I believe the matter has been held in abeyance pending the outcome of the matter in this Court.

Unidentified Justice: How many public school teachers are there in New Jersey?

Lois Dejulio: I would not have any estimate.

I couldn't begin to tell you.

Unidentified Justice: Do you have any idea how much instruction New Jersey gives its police officers?

Lois Dejulio: Your Honor, I don't know.

I would suggest, however, that the test which was involved in this case is a very simple one.

Reasonable ground is a very flexible, very easy concept to understand, and I think that in dealing with teachers and school authorities, we are by definition dealing with a very educated, highly motivated group of people.

Unidentified Justice: But we have exclusionary rule cases at every term of this Court, and I am told by law enforcement officers that every time we hand down a new decision, that requires a new briefing of the police.

Lois Dejulio: Well, certainly, Your Honor--

Unidentified Justice: Is it your idea that should be done in the public school system?

Lois Dejulio: --I think that public school teachers are already on a continuing basis being made aware of a variety of legal concepts that do impact upon education.

We live in a modern society, with many, many laws, and certainly schools are the subject of much litigation and many statutes and many regulations.

Unidentified Justice: And this also would have to be done in the hospitals?

Lois Dejulio: Well, Your Honor, as I indicated, I think that might be the case if it were found that the action of a state hospital or a state institution rose to the level of government action for Fourth Amendment purposes.

Also, I think that it is fair to say that when you are dealing with a complicated educational system, the continuing education of teachers in all aspects is something that is rather routine.

This could be very easily incorporated into that kind of ongoing training that teachers are getting in their academic fields and other related areas.

Perhaps ironically, many teachers themselves are responsible for teaching their students constitutional principles.

As a history teacher, I was required to teach constitutional law to my students.

So I think we are dealing with a core of people and a core of expertise that is more than adequate to deal with whatever demands the legal standard may require.

Unidentified Justice: Ms. DeJulio, when the principal saw the pocketbook and knew the facts around it, what then could he do legally in your mind?

How much?

Lois Dejulio: I believe that when he... he should not have opened the pocketbook.

I believe that the search of the pocketbook was independent of--

Unidentified Justice: What could he have done?

Lois Dejulio: --I think he could have imposed a sanction upon the student based upon the testimony of the teacher who observed her smoking a cigarette in a non-permitted area.

Unidentified Justice: And that is it?

Lois Dejulio: And that would have been the extent of it.

I think we are not dealing with a possessory offense, and the search of her purse would have been a fishing expedition.

Unidentified Justice: Ms. DeJulio, you have private secondary schools in New Jersey, don't you?

Lois Dejulio: Yes, Your Honor.

Unidentified Justice: Suppose the same facts here took place in a private school, and instead of being a public school principal it was a headmaster or headmistress.

Different case?

Lois Dejulio: That may very well present a different case, because the Fourth Amendment has been held not to apply to private citizens such as cases involving employers searching employees' desk drawers and it may be that a private school teacher, since private schools are different, and are perhaps not subject to the same regulations and standards, and are not an arm of the government--

Unidentified Justice: So if a youngster wants to get into drugs, he had better stay in the public school side?

0 [Generallaughter.]

Lois Dejulio: --Well, Your Honor, I think that that is very much oversimplifying, and I think it is ignoring the fact that the rule imposed by the New Jersey Supreme Court would not prevent a teacher from conducting a search if he had reasonable grounds to believe that a student had drugs in a purse or a pocket, and I think that the cases are... the reported cases are legion where searches were conducted under a reasonable grounds or reasonable suspicion test in various states, and the teachers were upheld because they did have some reason to believe that the student either possessed drugs or some other substance which was dangerous to them--

The test that the New Jersey Supreme Court developed was one which took into consideration the special problems of educators while at the same time recognizing that we do have to protect the rights of students and their rights to personal privacy.

The state counts many costs of applying the exclusionary rule to this type of circumstance, but it does not consider the costs that society will suffer if we fail to deter unreasonable searches of students.

For every search of a student that uncovers evidence of wrongdoing, countless other students, innocent students, will have had their privacy violated, and some of those intrusions may not be minimal, but as some of the reported cases show, may extend to such extremes as strip searches.

The emotional trauma which this type of indignity will inflict upon impressionable adolescents is a cost which society would have to pay and which should not be ignored in any cost benefit analysis.

Unidentified Justice: What about the costs to the children of other parents to whom this young lady is selling drugs?

Lois Dejulio: Your Honor, the--

Unidentified Justice: That is a social cost of some importance, isn't it?

Lois Dejulio: --It certainly is, and certainly the question of dealing with drugs and other criminal conduct in the schools has been the subject of many studies which have suggested many remedial measures that could be implemented to attack the problem.

I think that the use of searches is at best a bandaid approach to a problem which I don't think any educator would view as a remedial measure of first choice.

Certainly the drug problem has to be dealt with and should be dealt with.

The question is whether we have to throw out students' Fourth Amendment rights in order to do it.

The drug problem in society at large is certainly a serious one, but we have not permitted the police to throw away the Fourth Amendment.

We have not completely neutralized the Fourth Amendment protections through the exclusionary rule in order to attack the problem of drugs or weapons in our society.

The standard which was imposed below was a compromise that recognized that when you are dealing with children you perhaps have more responsibility than when you are dealing with adults, and that may justify the lesser standard that was imposed.

Also, the court specifically stated that there were many factors which could be taken into consideration, such as the age of the child, the child's prior involvement in criminal activity or disruptive behavior, the nature of the school's own problems, all of which would be considered by a court in determining whether a reasonable grounds existed for the search to be conducted.

It is also important to recognize particularly in the school context that the exclusionary rule does deter conduct on the part of teachers, that while teachers are not, like the police, directly involved in the criminal justice process, they do have some interest, substantial interest in seeing criminal prosecutions against their students brought to a successful conclusion, because they are responsible for maintaining order in the school.

And the fact of a juvenile or criminal conviction would certainly assist the school in dealing with a dangerous or disruptive student.

It might remove the student entirely from the school by means of a custodial disposition, or through some lesser sanction might persuade the student to conform his conduct to school norms.

So, I think that teachers would be deterred, and do have some incentive to follow Fourth Amendment guidelines that would ensure that no evidence would be suppressed in a later court proceeding.

I think it is also important to recognize in the school context that the exclusionary rule serves an educative as well as a deterrent function.

Suppression of evidence is a demonstration to society as a whole and to those who govern us that we value highly our constitutional rights, and we attach serious consequences to those who violate them.

If we expect schools to teach students to respect--

Unidentified Justice: You said serious consequences on those who violate them.

The teacher, in your view, violated the rights.

Now, what is the serious consequence on the teacher?

Lois Dejulio: --Your Honor, the serious consequence will be the fact that the subsequent court proceeding stemming from the illegal evidence that was discovered will be dismissed.

Unidentified Justice: Well, in the abstract, the teacher perhaps couldn't care less.

Lois Dejulio: Your Honor, I think in many ways the teacher has more reason, because it is not in the abstract.

The teacher... the student will be back in the classroom.

Unidentified Justice: But the teacher, unlike the policeman, is not involved in a criminal justice project or law enforcement.

Lois Dejulio: But the teacher does have the responsibility of maintaining order and discipline in the school, and if a destructive student or a dangerous student is not dealt with in the criminal justice process, then the school may have to deal with him under much more difficult circumstances.

I think that it is important that we show students that the constitutional system of government is more than a collection of empty promises, and that by applying the exclusionary rule in these circumstances, we protect the students' Fourth Amendment rights and give an effective deterrent for their violation.

Unidentified Justice: Do you think that the teacher having suffered this penalty that you describe is thereafter not going to be concerned about whether students are using marijuana or other drugs?

Lois Dejulio: I think that the teacher--

Unidentified Justice: What is going to be the impact on the teacher?

Lois Dejulio: --I think that the impact will be that the teacher or school authority will learn to conform their behavior to the reasonable grounds standard which was adopted and which was the basis for determining whether conduct is proper or improper under the unreasonable search and seizure guarantees.

Unidentified Justice: Then as Justice Powell, I think, suggested, teachers had better take a course on the Fourth Amendment.

Lois Dejulio: I think that teachers will have to learn something about the Fourth Amendment.

I think that they already have to learn a great deal about law and how law impacts upon them and their role as educators.

I think this will be a relatively easy lesson to teach, and certainly we are dealing with professionals in the area of teaching and learning.

In conclusion, I would merely remind the Court that we opposed the granting of certiorari and continue to oppose it on the grounds that the decision below was based upon independent and adequate state grounds.

The New Jersey Supreme Court we would argue based its decision upon independent grounds which would not be affected by any modification of the federal law which was cited in the--

Unidentified Justice: May I ask in that connection whether apart from the federal cases, does New Jersey have its own exclusionary rule?

Lois Dejulio: --Your Honor, we have a provision in our state constitution which, though worded very similarly to the federal provision, has been construed by the New Jersey Supreme Court on many occasions to provide broader protections.

Unidentified Justice: That is not my question.

My question is whether New Jersey has an exclusionary rule.

I know you have argued they have a broader protection of Fourth Amendment.

Do they have an independent exclusionary rule?

Lois Dejulio: I do not believe that they do, but I do believe that in this case they determined that the exclusionary rule should be applied based on their state law proceedings and on provisions of the state constitution.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Nodes?

ORAL ARGUMENT BY ALLAN J. NODES, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Allan J. Nodes: Yes, Mr. Chief Justice.

Very briefly, in regards to the question that was asked by Justice Powell concerning police training, I believe that the general rule in New Jersey is that an attempt is made to train police officers at least twice a year, and they are given updated training each time a major new constitutional decision comes down which impacts on the Fourth or Fifth Amendment.

Unidentified Justice: How long has that been going on, if you know, this kind of police training?

Allan J. Nodes: I am aware of it for about the last five or six years.

I am just not aware of it earlier than that, Your Honor.

Unidentified Justice: Is that for municipal as well as state police?

Allan J. Nodes: Yes, there is a program.

I do not... cannot speak to the frequency for each municipality, but the municipal police are included in that program.

After this decision in State in the Interest of T.L.O. came down from the New Jersey Supreme Court, there were inquiries from school boards concerning what they were allowed to do, and these inquiries have continued.

I don't believe that many of these inquiries have related to what can we do in order to ensure that you, the Attorney General's office, can get prosecutions.

They simply want to know that they are legally entitled to do.

Questions have always been asked in those terms.

Legally, what can we do to keep the schools safe?

I believe the interest is much more, what can we do to actually follow the law and to ensure that we won't be subject to civil liability later on.

Unidentified Justice: Do you think if there were no exclusionary rule they would lose interest in knowing what the law was?

Allan J. Nodes: I don't believe so, no.

Unidentified Justice: So they wouldn't have this problem of trying to find out what the Fourth Amendment means anyway, I guess.

Allan J. Nodes: Well, I think it would come up in other contexts.

I think it would come up in the context such the Wood v. Strickland context.

It would later have to be determined in a case like that.

Unidentified Justice: So the outcome of this case really won't affect the teachers' need for or desire for education about the Fourth Amendment.

Allan J. Nodes: That's correct.

We don't believe the exclusionary rule will do that.

Unidentified Justice: If you wanted... if you only raised the single question about the exclusionary rule, and if you wanted to argue about the Fourth Amendment, you should have come up here with another question.

You seem to... You come here on the assumption that there has been a violation of the Fourth Amendment.

Allan J. Nodes: We didn't contest the constitutional violation.

That is correct.

We didn't contest it because we believe that the Court never needed to reach that, because the exclusionary rule did not automatically have to be applied in any event.

Unidentified Justice: Well, part of your argument is that the teachers would like to know what the Fourth Amendment means, because you would expect that they would obey it then.

Allan J. Nodes: Yes, Your Honor.

Unidentified Justice: And there wouldn't be the same temptation to disobey it that there is in law enforcement?

Allan J. Nodes: I don't know if I understand the question, Your Honor.

Unidentified Justice: Well, the exclusionary rule rests on, at least a lot of people think so, not everybody, on its deterrent effect, and you must exclude the evidence to deter police conduct that is violative of the... it isn't enough for them to know what the Fourth Amendment means.

You must also exclude the evidence.

Allan J. Nodes: Yes, or provide another deterrent, so you have to teach people... yes, people have to know what the Fourth Amendment says, and then there has to be a deterrent to their violating and doing what they know is wrong.

Unidentified Justice: Well, actually, in New Jersey is it not just the Fourth Amendment, since the protections of the counterpart of the Fourth Amendment in the state constitution apparently broader than we have said they were under the Fourth Amendment.

Allan J. Nodes: In many cases--

Unidentified Justice: I guess your teachers have to know what the state constitution guarantees are, don't they?

Allan J. Nodes: --I believe under this case that... although in some cases the New Jersey Supreme Court has given broader protections--

Unidentified Justice: In the consent area.

Allan J. Nodes: --I beg your pardon?

Unidentified Justice: In the consent area.

Allan J. Nodes: Yes, in the consent area.

In general, the opinions of the United States Supreme Court are followed in New Jersey.

Chief Justice Warren E. Burger: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

ORAL ARGUMENT OF ALLAN J. NODES, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: We will hear arguments first this morning in New Jersey against T.L.O.--

Mr. Nodes, you may proceed whenever you are ready.

Allan J. Nodes: Mr. Chief Justice, and may it please the Court, last term the State of New Jersey argued before this Court that the Fourth Amendment exclusionary rule should be held inapplicable to school searches conducted by school teachers and school administrators.

Following argument, this Court requested additional briefing and argument on the issue of whether under the facts and circumstances of this particular case the vice principal's search of the student's purse violated the Fourth Amendment at all.

We suggest that there was no constitutional violation in this case.

We argue firstly that the Fourth Amendment should be held inapplicable to school searches.

That amendment was intended as a deterrent to law enforcement officers and police officers, and was not intended to be used against private citizens or against those who act in loco parentis.

We believe that school teachers do act in loco parentis.

I will address the in loco parentis functions of school teachers later in my argument, and I would refer to my brief for the remainder of the argument concerning the applicability of the Fourth Amendment.

We would also urge that--

Unidentified Justice: You mean of the exclusionary rule, don't you?

Allan J. Nodes: --I beg your pardon?

Unidentified Justice: You mean of the exclusionary rule?

Allan J. Nodes: Of the exclusionary rule or the Fourth Amendment.

We would rely on the briefs for the exclusionary rule and for the application of the Fourth Amendment.

I would like to argue the standard to be applied assuming that the Fourth Amendment is held to be applicable to school searches.

And we believe that the standard which should be applied to school searches should be lower than probable cause, and in fact should be a standard of reasonable suspicion.

Unidentified Justice: Mr. Nodes, assuming the applicability of the Fourth Amendment, do you think that on this record there was probable cause for the search?

Allan J. Nodes: Yes, I do, Your Honor.

I believe that what we had in this case was an instance where a person who was very, very reputable witnessed an action which was a violation of a school regulation.

He reported this violation to another person, who is also reputable.

Now, what he said was, he saw a cigarette in a person's hand, and I believe that it is pure common sense to believe that when one sees a cigarette in a person's hand, that that person will also be carrying cigarettes in a pack somewhere on their person.

So, I--

Unidentified Justice: Or, that the person is holding it in the hand because they intend to smoke it or are smoking it?

Because they are going to smoke it?

Allan J. Nodes: --Yes.

The fact that they have the cigarette indicates firstly that they are smoking it, secondly, that they have cigarettes, and I believe that that is all the vice principal actually needed in this case.

Unidentified Justice: Well, Mr. Node, assuming again the applicability of the Fourth Amendment, if you are right that there was probable cause shown here, why should we address the question whether something less would satisfy?

Allan J. Nodes: Well, I believe for two reasons.

Firstly, I don't believe that it is settled that probable cause should be the standard to which school teachers should be held.

In this case, of course, the New Jersey Supreme Court found that there wasn't probable cause and there wasn't even reasonable suspicion, even though we argued all along that probable cause was present.

The mere fact that we have met the highest possible standard, or that we argue that we have met the highest possible standard which could be enunciated doe not mean that this Court could not set forth the appropriate standard for lower courts to follow in future cases.

I believe that--

Unidentified Justice: Or that this Court could disagree with you that there was probable cause in this particular case.

Allan J. Nodes: --Very clearly this Court could disagree with that, and then it would be necessary to determine what lower standard would apply and whether or not we had met that lower standard.

Unidentified Justice: What was the rule of the school?

It was no smoking, right?

Allan J. Nodes: There were school rules that there was no smoking in certain areas.

T.L.O.--

Unidentified Justice: And she was smoking in that area?

Allan J. Nodes: --Yes, that is correct.

Unidentified Justice: Isn't that the end of the case?

Why do you have to go and search?

Allan J. Nodes: Well, I think that, Your Honor, the reason why we did go and search, and it may very well be that we did not have to go and search, but the reason that we did go and search was that the principal was trying to be fair to the student.

Rather than merely accepting the word of the teacher who said, I saw two students smoking, he had a--

Unidentified Justice: Well, suppose that the teacher reported that the child had cursed.

Would that be enough?

You wouldn't have to get additional proof for it, would you?

Allan J. Nodes: --No, I don't believe that it would be necessary to get additional proof.

Unidentified Justice: Why do you need extra proof here?

Allan J. Nodes: I don't believe that we had--

Unidentified Justice: Well, didn't she deny it?

Allan J. Nodes: --I do not believe we had to have additional proof here.

That does not mean that it is wrong for us to obtain additional proof.

Unidentified Justice: Well, I am just raising the question.

Is it necessary to violate somebody's rights in order to add on to the necessary ingredients for conviction?

Allan J. Nodes: No, we would not advocate violating somebody's rights in order to add additional evidence.

Unidentified Justice: I can understand... you didn't need to search to get the... I don't mean conviction, the action of the school board.

You didn't need the search.

Allan J. Nodes: We could have... the vice principal could have disciplined T.L.O. without the search.

I do not agree that we had to violate somebody's rights in order to get additional evidence.

I believe that the vice principal was able to get the additional evidence with absolutely no violation of the person's rights.

What the vice principal ended up doing was listening to what the student had to say.

The student presented a defense.

The vice principal talked to the student, and asked the student what the student had to say for herself.

Under Goss v. Lopez, this was the proper standard.

I believe that it is appropriate, not mandatory, but appropriate then--

Unidentified Justice: What is the defense to... because she wasn't smoking?

Allan J. Nodes: --The defense was a total denial of smoking, and the additional element--

Unidentified Justice: Did she say that?

Allan J. Nodes: --that she couldn't have been smoking then because she never smoked at all.

And I believe that by demonstrating whether or not this person smoked, the vice principal had a much better idea of whether or not she was smoking on that particular occasion.

Yes, the vice principal could have said to T.L. O, T.L.O., I am going to believe the teacher, who is totally credible, and I am going to assume without checking anything that you are lying to me.

I think the vice principal tried to act more reasonably than that.

I think the vice principal tried to ensure that the school regulations were followed, but at the same time was also trying to ensure that a possibly innocent person wasn't punished.

And I think that an action of that type should be condoned rather than criticized.

Unidentified Justice: All I can say is, schools are different from when... when I went to school, if a teacher said something, the vice principal believed the teacher and not the student.

0 [Generallaughter.]

That was when I went to school.

Allan J. Nodes: That could very well be the case.

0 [Generallaughter.]

Your Honor, I would suggest also when I went to school searches were allowed much mere easily.

Unidentified Justice: I never got one hearing the whole time I was in school.

Allan J. Nodes: But this Court has now decreed that in certain circumstances there will be at least limited hearings, and I think that this is what the vice principal followed.

He did give a limited hearing before imposing discipline, and he didn't just give a pro forma hearing and at the end of the hearing say, okay, now I am going to ignore what you said.

He checked what the juvenile had said, and he checked what the juvenile said, in an extremely reasonable manner, because we believe that at the very least he had a reasonable suspicion that an infraction had occurred, and that evidence of the infraction--

Unidentified Justice: May I ask you, in the prior argument you seemed to accept the standard that the New Jersey Supreme Court laid down.

I am not sure whether you still do or not.

Allan J. Nodes: --The standard reasonable suspicion, the name reasonable suspicion is--

Unidentified Justice: That is not my question.

Allan J. Nodes: --Yes, we--

Unidentified Justice: My question can be answered yes or no.

Allan J. Nodes: --Do I accept the standard--

Unidentified Justice: That they laid down.

Allan J. Nodes: --No, I do not.

Unidentified Justice: I didn't think... you have changed your position, haven't you?

Allan J. Nodes: I think that that is a proper interpretation.

I believe that the name reasonable interpretation is an appropriate name for a standard.

Unidentified Justice: But the question, I suppose, is reasonable suspicion of what, and in your view I gather it is a suspicion of any violation of any school regulation would justify a search, whereas they say it has to be suspicion of a crime or of something, a major disorder.

Is that right?

Allan J. Nodes: No.

I believe that they said crime or violation of school disciplinary regulations.

Unidentified Justice: Would seriously interfere with school discipline or order.

Allan J. Nodes: Yes, I don't think that first of all it would have to be a serious infringement, and I don't think--

Unidentified Justice: So you disagree with that part.

Allan J. Nodes: --So I disagree with that part, but more than that, I disagree with their application of the announced standard to this case.

Unidentified Justice: I understand, but you also do disagree with their standard.

You would take the view, I take it, that if there was reasonable suspicion that the purse contained, say, a note or a diary or something that would disclose a violation of any rule, the rule requiring students to be on time for athletic games or something like that, they could still search?

Allan J. Nodes: I think that you have to evaluate the need for the evidence and whether or not--

Unidentified Justice: Well, the purpose is exactly the same, to find out if there is evidence of infraction of a school regulation that does not involve harm, physical harm or anything like that, just the child may have been late to school.

Could they search to determine that?

Allan J. Nodes: --Yes, I believe that they could, provided that student is carrying that diary and that information with them.

I believe that that would be constitutionally permissible.

Unidentified Justice: Mr. Nodes, would you believe that if a reasonable suspicion standard is applied, that it would have justified a strip search of the pupil in this case?

Allan J. Nodes: I believe that when we are dealing with what we are classifying generally as school searches, we are talking about searches which would normally be made for violations of school regulations and school disciplines rather than law enforcement searches.

Unidentified Justice: What standard do we apply to determine the validity of the search, assuming one is authorized?

How far can you go in the search?

Allan J. Nodes: I believe that a search of, for instance, lockers, items which a person carries into school, or searches of clothing or pockets would be within the normal area which a teacher under the normal functions of a teacher could search.

I believe--

Unidentified Justice: Do you think then that a male teacher could conduct a pat-down search of a young woman student at age 16 to find the cigarettes?

Allan J. Nodes: --I believe that that would be constitutionally permissible.

I would note that as in the area with airplane searches and with most police searches, if it can be avoided, that simply is not done.

I don't expect that that is something which would occur.

Now, if that does occur, if there is a pat-down of a female by a male teacher or administrator, or if there is a strip search, and that search is for anything except a constitutionally permissible purpose, if there is any evidence of harassment or anything of that type, of course, other actions can be brought, the same as they could against--

Unidentified Justice: Well, do you concede that there would be a further requirement in any event that the extent of the search itself would have to be reasonable under the circumstances considering the age and sex of the child and the circumstances?

Allan J. Nodes: --Yes, I would agree with that.

I would agree that we are not advocating strip searches of students to find out whether or not they have been stocking cigarettes, and I don't think that that is what is normally held to be a school search, and in fact I believe that there are the laws, the regulations, and possibly other parts of the Constitution--

Unidentified Justice: Well, I am more concerned with your view of what the Constitution requires rather than your view of what is normally done in the school scene.

Allan J. Nodes: --I believe that the extent of the search could become part of the standard, and while it might be reasonable to search a person's pockets, search a person's jacket, the person's locker, or person's purse for a certain item, it would not in many instances, possibly the same circumstances, be permissible to strip search the student.

I think it would almost never be permissible.

Unidentified Justice: If the school official suspected the commission of a crime and called a policeman to the scene, would the policeman conducting a search at the school have a higher standard in any event, in your view?

Allan J. Nodes: I believe when it becomes a police search--

Unidentified Justice: Probable cause?

Allan J. Nodes: --yes, a higher standard, possibly probable cause, depending on the circumstances, would apply.

Unidentified Justice: Is there any regulation against the possession of cigarettes?

Allan J. Nodes: In this particular case, there was no regulation in this school against the possession of cigarettes.

It was permissible for the student to possess cigarettes.

The search which--

Unidentified Justice: Are you going to get to the question of whether there is a difference between people on the street and students in the school?

Allan J. Nodes: --I am not sure I fully understand Your Honor's question.

Unidentified Justice: The difference between a man or a woman walking on the street, downtown Washington, and a student, a minor, in a school.

Allan J. Nodes: Well, I believe that there are many differences between a person on the street... I believe that first of all there may be a difference between a minor on a street carrying a purse--

Unidentified Justice: Well, we don't have to worry about a minor on the street.

We are worrying about a minor in the school here, and the comparison I am surprised you haven't made in your analysis is that there is a difference between a student who has been sent to school by the parents and is required by law to go to school in the school quarters and a person walking on the street, an adult.

Allan J. Nodes: --Well, I believe that when a student is sent to school, of course, the school and the state takes on a responsibility for ensuring not only that that student is educated, but also that that student is safe and secure while in school, and that discipline is maintained while in school.

Unidentified Justice: Well, Mr. Nodes, you think there is such a difference that the Fourth Amendment shouldn't apply at all?

Allan J. Nodes: I believe--

Unidentified Justice: That was your first submission.

Allan J. Nodes: --Yes, I believe that there is such a significant difference in the function performed by the school teacher during the school day that the Fourth Amendment shouldn't apply.

However, the same arguments would also be applicable concerning a reduced standard.

Unidentified Justice: Right.

Allan J. Nodes: The teacher does act in an in loco parentis manner during the school day.

Now, it is possible that since the advent of mandatory compulsory education up until a certain age, that the traditional Blackstonian views and reasons for imposing the in loco parentis doctrine would no longer apply.

However, when we lock at what is happening in fact, it is clear that as far as the supervision of juveniles, the teacher acts in loco parentis.

Firstly, the student spends as much as a third of his or her day attending a public school.

During that period, the teachers and administrators provide the only supervision which that juvenile, that student has, and in many ways they take the place of and perform the functions of parents.

Unidentified Justice: That's correct.

And does that mean that their authority then to make searches, if the Fourth Amendment is completely inapplicable, extends to any kind of search, strip search or otherwise?

Allan J. Nodes: I believe that if the Fourth Amendment is inapplicable, of course, the Fourth Amendment would not itself forbid strip searches.

However, I think that strip searches are such an egregious example, and the courts, the Circuit Courts have continuously held this, that there could quite possibly be another constitutional violation.

Unidentified Justice: What one?

Allan J. Nodes: It is possible that under Roshen, for instance, this would be considered such an invasion of the person's privacy, and such an unwarranted invasion that it would be constitutionally impermissible.

However, I think that even that, it would not be necessary to use that.

I believe that strip searches can be stopped very easily without the Constitution, and I might note that in many of the strip search cases there has been either a finding of no constitutional violation or there has been no punishment of the violators.

I believe primarily the cases say no punishment of the violators because of the circumstances.

But for two reasons, those searches will be stopped.

First of all, I believe that in all states people are becoming more sensitive to strip searches whether they are conducted by law enforcement authorities or by other persons, and there are laws now which limit even the authority of a police officer to conduct a strip search.

However, maybe even more importantly, the factors which were noted in Ingraham v. Wright by this Court--

Unidentified Justice: Well, if I understand your argument, though, Mr. Nodes, it is that because the Fourth Amendment is inapplicable, nothing in the Fourth Amendment can restrain a strip search of a student by a teacher?

Allan J. Nodes: --I believe that that would be correct, yes.

Unidentified Justice: What is the basis for that argument?

You are saying they are not unreasonable searches?

Is that what it is?

In terms of the text of the Fourth Amendment.

Allan J. Nodes: As far as the text of the Fourth Amendment, I believe that the Fourth Amendment was directed at the state acting as the state.

Now, in certain circumstances I believe that the state can take on a role which is traditionally held by private persons.

Unidentified Justice: So what you are saying is, it is not unreasonable.

Allan J. Nodes: It is not unreasonable--

Unidentified Justice: Even a strip search is not unreasonable.

Allan J. Nodes: --Yes.

That is not unreasonable.

It would not be unreasonable for a private person, and in this instant it is not unreasonable for the state.

Unidentified Justice: Are you saying that the school and the teachers and the authorities stand in the shoes of the parent?

Allan J. Nodes: Yes, at least as far as the supervision and welfare of the student is concerned.

The school teachers and administrators ensure that the students arrive at school properly.

They ensure that they behave while they are in school.

They maintain discipline.

If there is an injury or sickness, the school teacher or school administrator is the first person responsible for taking care of that.

In many instances, a parent can't be contacted.

The school makes the decision as to whether or not a doctor or a hospital will be called in.

Unidentified Justice: Well, Mr. Nodes, we are dealing here with a public school, are we not?

Allan J. Nodes: Yes, we are.

Unidentified Justice: And there are laws requiring children to attend that school, whether they want to or whether their parents want them to or not.

Isn't that so?

Allan J. Nodes: That's correct.

Unidentified Justice: And you contend that this isn't state action then, when the state acting in the school setting conducts a search?

Is that your position?

Allan J. Nodes: No, I would not say that there is no state action involved in this case.

What I would say--

Unidentified Justice: Now, we found state action, I suppose, for occupational and health safety inspections, and for welfare workers, and in other administrative agency searches, have we not?

Allan J. Nodes: --Yes, the Court has.

Unidentified Justice: But you think somehow schools are different, even though the law requires the student to be there?

Allan J. Nodes: Yes, I do, and maybe it isn't even though the law requires the student to be there, quite possibly.

I believe it is because the law requires the student to be there.

The state has intentionally taken on a function which the parent normally exercises.

The state does have, obviously, the ultimate parens patriae function, to ensure the welfare of all students.

However, that function is normally taken over by the parent.

When the state takes that function back and says for a period of time, and for as much as a third of the student's day, we will take custody of the student, and we will ensure that during this period the student's well being is maintained, in addition to educating the student, then I believe it becomes reasonable for the person who has not only these functions but also these responsibilities to act under different standards than the state would normally act under.

Unidentified Justice: Would that go to a reform school?

Allan J. Nodes: I believe that a reform school--

Unidentified Justice: Are you saying that the Fourth Amendment doesn't apply in the reform school?

Allan J. Nodes: --I believe that either my argument that the Fourth Amendment doesn't apply or that a lower standard is required would apply to a reform school, yes.

Unidentified Justice: Why don't you take the position it is not involved in this case?

Allan J. Nodes: I beg your pardon?

Unidentified Justice: Why don't you take the position that the question is not involved in this case?

Isn't it that you want the broadest rule you can get?

Allan J. Nodes: No, I am not--

Unidentified Justice: Isn't that what you are up to?

Allan J. Nodes: --No, no, I am not asking for the broadest rule I can get.

I was attempting to answer... only answer Your Honor's question.

I don't believe that that is necessary for this case.

However, I do believe that it is an example of the function which the state takes over.

Your Honor used the term reform school.

Very often the state takes custody of a juvenile even though the juvenile has done nothing wrong.

In New Jersey we have shelters for juveniles who are in need of supervision, and juveniles placed in these facilities can be there simply because their parents haven't taken care of them, and I believe that that would be similar to the school situation, where the state has taken over part of the function of the parent.

Unidentified Justice: You are arguing the Fourth Amendment issue because the Court directed you to argue it.

Is that not so?

Allan J. Nodes: That's correct.

We do believe, again, that if the Fourth Amendment does apply, that a standard lower than probable cause is warranted, and I think that although the in lecc parentis arguments would also have application here, and although I think it is apparent that students have a lesser expectation of privacy while attending a public school than they would have on the street, I believe that very simply the educational system cannot properly operate if teachers are required to abide by a probable cause standard.

We must have discipline in the schools, and this discipline cannot be maintained by teachers who are encumbered by the same rules and regulations as police officers are.

Unidentified Justice: Mr. Nodes, assume for a moment that the Nero Jersey court is correct in saying that the Fourth Amendment applied, that a reasonable suspicion standard was the appropriate standard for review.

Do you think that that means individualized suspicion under the New Jersey rule, or would that mean, for example, that if the school authorities suspected there were drugs being used in the restrooms, they could install two way mirrors or listening devices based on a generalized suspicion?

Allan J. Nodes: Your Honor, I think that that probably would be determined by the type of investigation which they were attempting to conduct.

I am not sure exactly how far they could go with minor school violations.

Unidentified Justice: Well, I was curious to know what you thought the New Jersey rule was, whether it required individualized suspicion or something else.

Allan J. Nodes: I believe that the New Jersey court was, because of the contours of this case, talking about individualized suspicion, and they simply weren't faced with a standard where a school had to take care of a situation, for instance, where knives were being brought to school every day, and they might have to search students coming into the school to make sure there were no knives being brought in.

That could raise a whole new set of problems, but the New Jersey court didn't have to deal with those questions in this case.

Unidentified Justice: Mr. Nodes, you are not adopting the New Jersey court standard, and I would be interested to know your answer to Justice O'Connor's question.

Supposing the school had reasonable suspicion that the restroom was being used to smoke in, as was the case here.

Could they put in two-way mirrors?

That you can answer yes or no.

Allan J. Nodes: I believe that they could put in two-way mirrors.

I believe other things--

Unidentified Justice: Under your standard, they clearly could.

Allan J. Nodes: --Yes, they could.

I believe even if the Fourth Amendment applied under the reasonable suspicion standard they could, or they could search students on their way into the restroom.

Unidentified Justice: Why would you need reasonable suspicion of anything under the Fourth Amendment to put two-way mirrors in a restroom?

That is... you know, why is that a violation of the Fourth Amendment at all, to do that?

Allan J. Nodes: I am not sure that it would be.

Unidentified Justice: No, I am not either.

You don't think there is any expectation of privacy in a restroom?

0 [Generallaughter.]

Allan J. Nodes: There are many--

Unidentified Justice: That is a serious question.

Allan J. Nodes: --I understand.

Unidentified Justice: Apparently you don't.

Allan J. Nodes: I understand that, but I would assume that the two-way mirrors would replace the mirrors which would already be up in the mens' room, and I assume that that would be the mirrors in front of which you normally stand to comb your hair or make sure that your clothing is appropriate, and things like that.

I don't believe that the more private areas of a men's room are going to have mirrors, two-way or otherwise.

So that was the assumption that I was making in my question... I mean, in my answer.

In this case, we believe that the problem with the standard as enunciated by the New Jersey Supreme Court, again, assuring the Fourth Amendment applies, is that the court acted as if it were actually operating under a probable cause standard, and as if it were actually evaluating the actions of a police officer.

The Court first drew a line between a good hunch and a reasonable suspicion.

They admitted that there was probably a good hunch, but said that there wasn't a reasonable suspicion.

I believe it is very hard to draw a line of this type, and as I said before, I believe that at the very least there was a reasonable suspicion in this case.

However, I think more importantly what the Court should be looking to is a common sense approach to the problems that school teachers face each day while trying to maintain order and discipline in schools.

And I don't believe that if the courts are going to evaluate situations like this with the strictness that they evaluate police officer searches, that it is going to be possible for teachers, first of all, to know what they can and cannot do, and secondly, for them to be able to maintain any order and discipline.

I think that a much more common sense approach is needed in judicial review of the standard, assuming that a reasonable suspicion standard is adopted.

I believe that the vice principal in this case did take a very reasonable and did take a very common sense approach to ensuring that both school regulations were followed and that a student wasn't punished unnecessarily, and that the New Jersey Supreme Court rather should have condoned this action, and viewed in this light the actions of the school vice principal were totally appropriate and should have been affirmed by the New Jersey Supreme Court.

I would reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Ms. DeJulio?

ORAL ARGUMENT OF ICIS DE JULIO, ESQ., ON BEHALF OF THE RESPONDENT

Lois De Julio: Mr. Chief Justice, and may it please the Court, throughout the course of this litigation, the juvenile respondent has maintained that the search of her purse by the vice principal of her high school violated her Fourth Amendment rights, and that as a result the evidence which was seized from her could not be admitted against her in a criminal proceeding.

The State of New Jersey suggests that no constitutional violation occurred because the Fourth Amendment does not apply to searches conducted by school personnel.

The great majority of state and lower federal courts that have considered this question have agreed with the Supreme Court of New Jersey that searches conducted by school personnel do come within the ambit of the Fourth Amendment, and we would submit that this conclusion is constitutionally required.

As a matter of historical fact, it is true that the framers of the Constitution adopted the Fourth Amendment in response to the repression that they had experienced at the hands of the King's colonial revenue agents.

The compulsory government-sponsored system of education which we now have simply did not exist at the time, so it is unlikely that the framers considered either including or excluding school personnel from the ambit of the Amendment.

Unidentified Justice: What would be your view, Ms. DeJulio, about the same factual situation in a private school, not a public school?

Lois De Julio: Your Honor, I would submit that that would be outside the scope of the Fourth Amendment, since the Fourth Amendment has never been applied to purely private action.

Unidentified Justice: In other words, there is no state action then?

Lois De Julio: No, Your Honor.

Unidentified Justice: Then you are going to have two different rules on searches.

Lois De Julio: Yes, Your Honor, you would.

You would have--

Unidentified Justice: All parochial and private schools will have one rule, and the public schools another.

Lois De Julio: --That would be correct, Your Honor.

The Fourth Amendment has never been applied to purely private action, even though in certain cases, for example, the case of a search by an employer of an employee, there might certainly be significant--

Unidentified Justice: I suppose it isn't relevant to this case, but is it possible that that might lead parents who want their children to be in schools where cigarettes aren't floating around and drugs aren't being used to take their children out of public schools and put them in private schools?

Lois De Julio: --Your Honor, I think that that is somewhat oversimplifying the situation for two reasons.

One is that the standard promulgated by the court below does not prevent public school officials from conducting searches when they are reasonably necessary for the pursuit of their educational responsibilities, and when there are some reasonable grounds to believe that the student is either engaging in criminal conduct or has violated some school rule that would disturb or disrupt safety and order in the school.

We would submit that that is a very workable, flexible standard, and is--

Unidentified Justice: Ms. DeJulio, do you think there is any school rule not related to safety that would justify a search of a child's pockets or purse or lunch bag or whatever?

Lois De Julio: --I would have to concede that there might be.

It is difficult to know the many circumstances which might arise.

I would certainly submit that the offense of smoking in the restroom would not be the type of infraction which would in itself justify the search of a student.

The threat to safety and school order is simply not at the level that would warrant such an extreme intrusion into the area of personal privacy.

Unidentified Justice: What about smoking marijuana in a restroom?

Lois De Julio: Certainly smoking marijuana or use of drugs, because of the dangers to the student, might very well justify a search under proper circumstances.

Unidentified Justice: You would distinguish marijuana from tobacco then on the basis that marijuana is more harmful, or on the basis that probably smoking marijuana might be a crime?

Lois De Julio: I would suggest that both factors would be taken into consideration.

Obviously, many dangerous activities also violate the law.

So there are times when both of those considerations would converge.

Unidentified Justice: Well, suppose there was the same report as occurred in this case, except the report was that the student was smoking marijuana in the restroom, and that that is contrary to not only school rules but to the law.

Now, would that furnish whatever cause might be required to search the purse?

Lois De Julio: Well, Your Honor, it would certainly be the type of infraction that might justify a search.

The question--

Unidentified Justice: Of the purse.

Lois De Julio: --Well, that would be a second question.

Unidentified Justice: The inference would be, if you are smoking marijuana, maybe your have got it in your purse.

Is that it?

Lois De Julio: Well, I think the information would have to be evaluated, as we do with the police.

Unidentified Justice: Well, let's evaluate it on the facts of this case.

They call a student in.

She denies that she was smoking marijuana at all.

She never smokes marijuana.

And the official says, well, I would like to... the teacher says you were smoking.

Now, I want to look in your purse.

And she says, no.

And so he searches it anyway.

Now, would that be reasonable suspicion?

If the reasonable suspicion standard is the proper one, would it be satisfied in that situation?

Lois De Julio: I think not, simply because the information did not implicate that the marijuana was being possessed by her either in her clothing, her purse, or anywhere else.

Even with regard to the police, the police may observe a criminal violation taking place.

That does not necessarily lead immediately to the conclusion that a search can be conducted.

Unidentified Justice: Ms. DeJulio, at most we are talking about probable cause, not mathematical certainty.

What about Mr. Nodes' argument that if you see someone puffing on a cigarette, it is a reasonable inference that he has got more on his person where that came from, whether it is marijuana or tobacco?

Lois De Julio: Well, Your Honor, I think in the facts of this case that isn't necessarily the proper inference to be drawn.

There were a number of students in the girls' restroom, one of whom did candidly acknowledge that she was smoking.

I think that the inference that all of the possessed tobacco cigarettes, or in the alternative hypothetical that they all possessed marijuana in their purse would not be reasonable.

It may well have been, and may have been the case, that perhaps they were all passing one cigarette around, and no one possessed anything.

Unidentified Justice: Don't you recognize the difference that marijuana is contraband and cigarettes are not?

Lois De Julio: Certainly that is a very important difference in this case, and the problem with the search conducted here is that even if the information had been that the student was seen tucking a package of cigarettes into her purse, there was no reason for the principal to locate and seize that package.

Unidentified Justice: Well, is it customary in New Jersey schools for students to pass one tobacco cigarette around to several different people?

Lois De Julio: Your Honor, I believe that occurs with a fair amount of frequency, or so I am told.

But I think that the problem here is simply that the search was for something which was not against school rules to possess, was not illegal or contraband per se, and also had--

Unidentified Justice: Well, it was a violation of the rule to smoke in the location of the restroom, was it not?

Lois De Julio: --Yes, certainly it was.

Unidentified Justice: What if the school official just said, hand over any cigarettes that you have, and the student handed them over, and the school official confiscated them?

Is that a violation of the Fourth Amendment?

Lois De Julio: Well, I guess it would be there the question of whether the student's consent to relinquish the materials was a knowing and voluntary one.

Assuming that it were, then I suppose it would be--

Unidentified Justice: Well, suppose it is not.

Is that a violation then of the Fourth Amendment?

Lois De Julio: --I believe that it would be, since the--

Unidentified Justice: And if a third grader is chewing gum in school, in violation of the teacher's established rule of preventing that, would it be a violation of the Fourth Amendment if the teacher confiscated the child's gum?

Lois De Julio: --Well, I think in that circumstance the rule may be that the student is not permitted to possess bubble gum in school.

The problem here in this particular school, and I certainly think--

Unidentified Justice: Well, let's assume that's the rule.

May the teacher then search the child's pocket, or confiscate the gum?

Lois De Julio: --Well, again, I would certainly break down a bubble gum situation in that it may not be a serious enough threat to school order to warrant a search, but if it were a situation where the item was for example, the case involving firecrackers.

The item was certainly one that could jeopardize safety and order in the school.

Unidentified Justice: What about a crib sheet, evidence of cheating on a test?

Lois De Julio: That might under proper circumstances, yes, support a reasonable search.

Again, the contours of the search under the New Jersey court standard, the search has to be reasonable in light of the purpose.

Unidentified Justice: Incidentally, Ms. DeJulio, I gather you don't agree with your colleague that even a probable cause standard would be satisfied here, assuming the applicability of the Fourth Amendment.

Lois De Julio: No, we do not believe that the information which the principal had satisfies even the lesser standard of reasonable grounds, and certainly the extent of the search went far beyond any scope that would be constitutionally permitted, even if he had arguably had reasonable grounds to open the purse.

Unidentified Justice: Incidentally, am I correct that as a matter of state law consent is no justification unless those consenting have been told they didn't have to?

Lois De Julio: There is a component in the New Jersey standard for consent search that the individual be aware that he has a right to refuse.

With regard to a student, I am--

Unidentified Justice: That is a matter of state law, is it?

Lois De Julio: --Yes, Your Honor.

The student in New Jersey is required by state law to submit to the authority of teachers, so it would be doubtful that a student could realize that he could refuse, because under a state statute, I am not sure that he could, and that fact, the fact that students are by law required to submit to the authority of a teacher we submit is one of the most important reasons why school officials must be considered governmental action for Fourth Amendment purposes.

I private citizen could stop a child on the street, ask to see what he had in his pockets, and the child could say no, and walk away.

But in the school context, the lawful authority, the teacher, the school administrator, can compel the student to submit to the intrusion of a search, and the student has no recourse but to submit.

This is exactly the type of governmental harassment which we submit the framers of the Fourth Amendment designed the Amendment to protect against.

Unidentified Justice: May we come back to the standard for just a moment?

You used the term reasonable grounds.

Do you distinguish that from reasonable suspicion?

Lois De Julio: Your Honor, I don't believe that the New Jersey Supreme Court intended to distinguish from reasonable suspicion or reasonable cause.

The school case literature, of which there is now a large number of reported decisions, about equally use the term reasonable cause, reasonable grounds, or reasonable suspicion.

All of those terms have been used and have a body of case law.

Unidentified Justice: You would accept reasonable suspicion, would you?

Lois De Julio: I don't believe that there is any meaningful difference, or that there was intended to be any meaningful difference.

The New Jersey Supreme Court, I believe, adopted reasonable grounds because that standard had been used by several prominent cases in the area, and was one that was recognized and understood by persons involved with the school search issue.

Unidentified Justice: Would you ever require probable cause?

Lois De Julio: Yes, Your Honor.

I think that the New Jersey Supreme Court very clearly stated that as the intensity of the intrusion increases, the standard of reasonable grounds may very well approach or become that of probable cause.

Certainly in the area of strip searches, I would submit that the search cannot be reasonable unless there is probable cause at a minimum, and even then, of course, there may be problems with the proper scope of the search.

But I think the New Jersey Supreme Court recognized that the term school search could encompass a broad spectrum of intrusions, some, as is with the case with the police, are rather minimal, stopping a student in the hallway and asking a question, but at the opposite end, of course, there could be much more intrusive searches into purse, pockets, clothing, and of course perhaps the ultimate indignity of a strip search.

So, we would submit that as formulated, the reasonable grounds test covers a certain portion of the intrusions, but that as the intrusion becomes more severe, we are talking about probable cause at the ultimate end.

Unidentified Justice: Having in mind the facts of this case, what more would have been required in your view to satisfy the requirement to make the search of the purse?

Lois De Julio: In this case, I don't believe that a search could be properly made, since it had no relationship to the offense.

Unidentified Justice: Well, suppose three teachers observed the girl smoking, actually smoking, and brought her into the principal's office and said, as soon as we called her attention to her smoking in violation of the rules, she put the cigarette out and put it in her purse.

What then?

Would they be permitted to search the purse?

Lois De Julio: Well, Your Honor, certainly the information would implicate the purse, but again, I think that we are talking about a situation where the fact of a search may just have been completely inappropriate under the circumstances.

Unidentified Justice: Well, would it be appropriate in these circumstances?

Or are you telling us that they must go down and get a policeman and go to a magistrate and get a warrant?

Lois De Julio: No, Your Honor.

Certainly I am not saying that.

In this particular case, we are talking about an infraction which was complete in itself.

To borrow Justice Marshall's example, if the student had been cursing in the hallway, the infraction is complete in itself.

There would be no basis to conduct a search because there is nothing that a search could contribute to the--

Unidentified Justice: But here the girl denied that she had cigarettes.

Lois De Julio: --She denied that she smoked.

And certainly the question of whether she smoked or not would not have been determined by the discovery or the failure to discover cigarettes in her purse.

To take the opposite approach, if the principal had opened her purse and had not found a package of cigarettes, if he had found nothing in her purse, that would not have acquitted her of the infraction.

Unidentified Justice: That may be so, but what if he had found them, like he did?

Do you mean that doesn't support the inference that she was smoking?

Lois De Julio: No, Your Honor, simply because under school rules it was proper to smoke in certain areas of the school, and--

Unidentified Justice: Well, I know.

I am not suggesting that possession would infringe a school rule, but if the young lady denies that she was smoking, and that she never smoked, and then it turns out she has got cigarettes in her purse, you don't think that supports the inference that she had been smoking?

Lois De Julio: --It may support it somewhat, but I don't believe that it is determinative, simply because she could have been carrying someone else's cigarettes, and I think we are talking about a chain of inferences.

Certainly there are any number of things which might in some way contribute to proof, but when we are talking about a chain of inferences, we have already gone three steps away from the infraction at hand.

It is not permitted for the police to go searching or to obtain a warrant when they have some amorphous idea that there might be something that would be evidential.

They cannot go into the house of a suspect and take away everything in the house on the theory that some of it might at some point prove evidential.

Unidentified Justice: May I ask this question?

We are talking about standards a good deal.

Ordinarily police officers or otherwise trained state personnel make the judgments as to whether there are reasonable grounds, reasonable suspicion, probable cause.

Is it your view that teachers should be held to the same standard of good judgment as police officers?

Lois De Julio: I think so, Your Honor.

Unidentified Justice: Whatever the standard?

Lois De Julio: Whatever the standard, because I think first of all that the educators operate in a much more... an easier environment than the police do.

The police are frequently on the street dealing with strangers and circumstances that are changing from minute to minute.

The educator deals with a group of students whom he probably knows very well, whom he will continue to see on a daily basis, and in many instances has a far better basis to make an informed judgment.

Also in many instances if he suspects, has a hunch that something is going on that he feels might be a violation of the law or school rules, the student will be back in the classroom on a regular basis.

The teacher can simply continue to make observations and see if that hunch--

Unidentified Justice: Does knowing the student well enable one to make a judgment as to what is reasonable cause or what is probable cause, reasonable suspicion, do you think?

Lois De Julio: --One of the factors which the New Jersey court pointed to in assessing whether reasonable grounds exist is the age, school record, and past history of the student, and I think that those are tools which sometimes the police are able to utilize in their determinations of probable cause, but I think it would be, of course, appropriate to evaluate those criteria in determining whether reasonable grounds existed.

Unidentified Justice: Does New Jersey provide any special training for teachers with respect to making these judgments?

Lois De Julio: Well, I believe that New Jersey provides a great deal of ongoing training for teachers in a myriad of fields, both academic and professional.

Unidentified Justice: Of course.

Lois De Julio: This would perhaps become part of it.

But I would like to call Your Honor's attention to a recent recommendation of the National School Board Association.

They recommended that law-related education as a program be adopted by schools because they have found that it is very effective in preventing delinquency and contributing to a safer school environment.

Unidentified Justice: How many teachers are there in New Jersey, roughly?

Lois De Julio: I don't know, Your Honor.

Quite a large number.

Unidentified Justice: But in this case it was the vice principal.

It wasn't a teacher.

Lois De Julio: It was a vice principal.

Yes.

Unidentified Justice: Suppose the teacher reports to the vice principal that a particular young man, student, a male student has been threatening other students with a knife, and perhaps brings that student into the office.

Would you say the same thing, they could not ask him to produce the knife or conduct a pat-down search, not a strip search, a pat-down search?

Lois De Julio: I think that under those circumstances a pat-down search might be appropriate, yes.

Certainly when weapons are involved, the immediate threat... we recognize that with regard to the police, and permit frisks when the circumstances suggest that there is a weapon and that there is a danger of harm.

But again, I think we have to make a distinction--

Unidentified Justice: Well, what makes the... the fact that somebody saw the person threatening someone with a knife, how does that support the inference that it might be in his pocket?

Lois De Julio: --Well, again, the nature of the information would have to be... would have to suggest that conclusion.

Unidentified Justice: I know, but does it or doesn't it?

Lois De Julio: I think if the information were fresh that, you know, this was seen right away, the inference--

Unidentified Justice: What was wrong with the inference about the cigarettes?

Lois De Julio: --Well, again--

Unidentified Justice: The information was very fresh.

Lois De Julio: --The fact of the students being in, first of all, being together in the restroom, that the cigarettes were not being seen being taken out or removed, they were being consumed, and also the fact that possession of cigarettes, again, was not prohibited by school rules.

There was no reason to seize them.

Whereas a knife I would assume would be prohibited by rules in every school, and a teacher would be well within his or her rights to seize a knife, even if it was seen just being displayed, and not being used in a threatening manner toward another student.

Unidentified Justice: Getting back to this case, is there anything in the record where the principal said, if we don't find cigarettes in your purse, we will drop the charges?

Lois De Julio: Absolutely not, Your Honor, and I would submit that in the face of the eye witness testimony of the teacher, the principal could not have ignored the infraction based upon the failure to find cigarettes in the purse.

I would also suggest that the principal, if he cared to investigate further, could have very simply questioned the other girls in the restroom.

One of those girls was present in his office, and had candidly admitted that she was smoking.

Unidentified Justice: Of course, Ms. DeJulio, a lot of Fourth Amendment law is based on second guessing of what people right on the spot did.

This would have been more reasonable.

This would have been a little better.

But really the test is whether this particular reaction was reasonable.

It was not whether it was the best, or whether something could have been proved or not.

Lois De Julio: That is certainly true, and I am only suggesting that in response to the concern that what else could the principal have done to be fair.

Certainly it is quite correct that hindsight is better than foresight, but once again I think that we have to recognize that we are not dealing here with an exigent situation.

Smoking in the restroom is certainly an infraction of school rules, and is certainly a problem that the school had to deal with, but it just simply does not rise to the level of a student possessing a weapon and threatening other students, or selling drugs in the restroom.

There was no immediate harm.

It was not a situation, as the police frequently have to contend with, where a split second decision had to be made.

Unidentified Justice: Well, I suppose you do agree in general, though, that a school needs to respond quickly and informally to violations of its rules by the students, do you not?

Lois De Julio: Certainly, but I--

Unidentified Justice: How do you think it would impact then on that interest of the school to require the assistant principal to drop everything and go down to the police station and get somebody to authorize a search?

Lois De Julio: --I am not suggesting that that should be a requirement.

We have not at any point during this appeal here argued that a teacher should be required to get a warrant.

In this particular circumstance, I think what I am trying to... the distinction that I am trying to draw is between infractions of school rules which have to be dealt with in some way but which do not implicate a search, and which simply are not serious enough.

In day to day life there are many adults who smoke cigarettes in places where it is not legal to do so, but it would be difficult for a police officer to justify seizing an adult that he sees coming out of an elevator smoking a cigarette illegally and conducting a search.

The level of the infraction, the level of harm, the level of jeopardy is just simply not such that we would authorize that type of conduct.

Certainly if the... another New Jersey case, State in the Interest of G.C., where the principal was told by a student that another student was selling drugs in the restroom, the court found that the principal acted perfectly reasonably in apprehending that student and searching her and seizing those drugs.

That is the kind of threat where a search may be immediately required, and where a school administrator would be found to have acted perfectly reasonably.

Unidentified Justice: Suppose the vice principal had been apprehensive about the Fourth Amendment problem and said to the girl, sit down, picked up the phone, called the mother, said, come over to the school, the mother said, I can't get there for 15 minutes.

The girl was required to sit there.

Is she under arrest?

Lois De Julio: No, Your Honor, I don't believe that she is under arrest.

Unidentified Justice: Can they require her to stay there?

Lois De Julio: Yes, I believe under New Jersey law certainly he can.

Unidentified Justice: If when the mother got there she took the purse and opened it, would the mother be violating the Fourth Amendment?

Lois De Julio: No.

Unidentified Justice: What is the difference between the mother and the teacher in your view?

Lois De Julio: Well, the difference is, I think, the difference between private action and governmental action.

There have been cases which have recognized that private citizens--

Unidentified Justice: Only the state action factor is different.

Is that it, in your view?

Lois De Julio: --Yes, Your Honor, I think... with regard to the Fourth Amendment.

Unidentified Justice: In other words, the parent has an inherent right to open the purse of the girl, but there is no inherent right on the part of the teacher.

Lois De Julio: Certainly the Fourth Amendment would not be violated by the parent conducting a search herself or himself.

Unidentified Justice: Haven't you got a little bit of state action mixed in with the mother's action when the mother is there at the command or request of the state, and the mother is responding to the state's inquiry?

Lois De Julio: Well, certainly, if it were found that there had been any coercion or attempt to mislead or in some way implicate the parent as a tool of law enforcement, there might be, and the New Jersey Supreme Court recognized that in certain school searches if police instigation were found, or some attempt to circumvent the Fourth Amendment, that might be dealt with as a Fourth Amendment problem.

But in a purely parental situation, where a parent, acting as a parent, searches a student, searches their child that evidence would not be proscribed by the Fourth Amendment, even if it had been seized under circumstances that we would not perhaps find to be proper, such as the employer breaking into the desk of an employee.

That might violate certain criminal statutes, but it would not prevent the state from utilizing that evidence in some--

Unidentified Justice: Would you have any problem with metal detectors such as those we have outside the Court being at the schoolhouse door?

Lois De Julio: --Well, certainly that is well outside the facts of this case, but assuming that hypothetically the cases allowing the use of a metal detector on a general basis, such as the airport, or that line of cases, are based upon the idea that the individual is voluntarily seeking the service that makes it necessary for him to go through the gate.

Here, with students, they are compelled to attend school, so by forcing them to walk through a metal detector, which is a more minimal intrusion into privacy, certainly, but the element of choice is simply not there.

An adult can choose to take a plane or not, knowing, that a metal detector is one of those things he will have to submit to, but a child is required to go to school, and cannot refrain.

Unidentified Justice: Even if you had an epidemic of use of knives in a particular school, no metal detector?

Lois De Julio: Well, certainly there would have to be some showing that this particular tool was necessary, but apart from that, again, I think that the distinguishing factor, the factor which makes that type of search possible and constitutionally permissible in an airport and not in a school is the element of voluntariness.

Unidentified Justice: What about searching purses, as takes place in this building?

Lois De Julio: Well, once again, the individuals who enter this building do so--

Unidentified Justice: Is that the only difference, that they enter the building voluntarily?

Lois De Julio: --I think that that is certainly a significant difference.

Unidentified Justice: What about a prison?

Would you say you can't have metal detectors at a prison because the people going to prison aren't going there voluntarily?

Lois De Julio: Well, Your Honor, certainly the difference between a prison and a school is a critical factor in the analysis.

This Court last term found that inmates have no expectation of privacy in their cells based upon the nature, goals, and operations of a penal institution.

I don't believe that any of the factors which were utilized in the Court's analysis of a prison have application in a school.

First of all, we are not talking about confining people who have committed crimes and are shown that they are dangerous.

Unidentified Justice: But it at least suggests that your voluntariness analysis is rot good for all cases.

Lois De Julio: Well, I think it is a factor that has to be taken into consideration.

Prison--

Unidentified Justice: You are a respondent here.

How voluntarily have you come?

Lois De Julio: --I personally have come voluntarily, although certainly someone would have had to appear on behalf of the respondent.

That I think is a voluntary assumption on my part.

But I think that the prison analogy fails also because the lack of rights is part of the punitive feature of prison, whereas certainly in an educational context respecting the constitutional rights of students is considered part of the educational purpose of schools.

Thank you.

Chief Justice Warren E. Burger: Very well.

ORAL ARGUMENT OF ALLAN J. NODES, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Allan J. Nodes: Mr. Chief Justice, and may it please the Court, I believe that the analysis which was just given concerning the distinction between a student in a public school and a student in a private school has some importance in evaluating the differences between a juvenile and an adult.

Last term in Shaw v. Martin this Court noted that juveniles are continuously under some form of custody or another, and this does not mean custody with total liberty, and it doesn't mean custody except when a student attends a public school.

What it really means is that they are under that form of custody and the amount of custody which will ensure their safety and their well-being and that is why society insists on adult supervision of juveniles, and that is why society insists that the juveniles do be under continual custody.

Unidentified Justice: Mr. Nodes, may I ask you a question on that?

Supposing a juvenile, a young lady in this case, was riding in an elevator with a law enforcement officer, and she smoked in his presence.

Would he be free to search her purse in the elevator?

Allan J. Nodes: I don't know if a search of the purse would be at all... I don't know if there is any kind of a violation that has occurred under your hypothetical.

Unidentified Justice: There is a no smoking sign in the elevator.

There is a city ordinance against smoking.

I should have made that clear.

Allan J. Nodes: I think the violation would be smoking a cigarette, and in that case there would be really no relevance at all to whether or not she had additional cigarettes.

Unidentified Justice: What if she denied she smoked?

Just like this girl did.

Allan J. Nodes: It would be very difficult.

If he was the same person who observed her, there is no question of his credibility.

He doesn't have to do this to check his own credibility.

Unidentified Justice: Then in this case the vice principal could search the purse but not the teacher who saw her in the restroom.

Is that what you are saying?

Allan J. Nodes: I think that the vice principal could search the purse.

I think there would probably be less need for the teacher to search the purse, or if the vice principal had directly seen it, there would be less reason for him to do it.

And I think that is something that--

Unidentified Justice: What if the officer in my example took her to the station, and then the person at the station says, I would like to search your purse.

Could he have done it?

Allan J. Nodes: --I believe the further you become removed from individual direct observation, the more need for proof of credibility there is, and the more need for credibility proof you have, the more necessary the search.

Unidentified Justice: Is there anything in this record to show that the vice principal didn't trust the teacher's veracity?

Allan J. Nodes: No, there isn't anything to show that he didn't trust the teacher's veracity.

What there is is, there is evidence to show that he was willing to give the student the benefit of every doubt, and we feel that that is something which is appropriate, and which he should not be criticized for, at the very least.

But whether the Fourth Amendment is held inapplicable or whether a lower standard is applied, we feel that what is necessary is that teachers be given an immediate and effective means of conducting searches and performing other disciplinary factors, and we believe that either by ruling the Fourth Amendment inapplicable or by holding a much lower standard than probable cause to be appropriate, that this can be accomplished.

Thank you.

Chief Justice Warren E. Burger: Thank you, counsel.

The case is submitted.