STATE OF NEW JERSEY IN THE INTEREST OF J.P.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2247-04T42247-04T4

STATE OF NEW JERSEY IN THE

INTEREST OF J.P.

_________________________________

 

Submitted December 12, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey,

Chancery Division, Union County, Docket No.

FJ-20-2607-04.

Yvonne Smith Segars, Public Defender, attorney for appellant, J.P. (Abby Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent, State of New Jersey

(Steven J. Kaflowitz, Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

Following denial of his motion to suppress, and a bench trial, juvenile J.P. was adjudicated delinquent of an act that, if committed by an adult, would constitute the offense of receiving stolen property, N.J.S.A. 2C:20-7(1)(a). As a result, J.P. was placed on probation for one year, to run concurrently with a probationary sentence he was then serving in another county. This appeal exclusively concerns the propriety of the court's denial of J.P.'s suppression motion.

The facts adduced at the suppression hearing are as follows. J.P. was a student at the Beadleston High School in Westfield, an alternative school. Laurie Cihanowyz was a teacher's aide at the school. On June 24, 2004, after her eighth period class, which J.P. and seven other students had attended, Cihanowyz reported her cell phone missing. She had last used the cell phone at lunchtime and thereafter placed it in her unlocked desk drawer on top of her pocketbook.

Cihanowyz inquired of her students, and J.P. specifically denied taking the cell phone. A search of the classroom as well as other areas inside and outside the school building proved unsuccessful. At the direction of the principal, Marianne Distefano, security officer Curry approached the boys who attended Cihanowyz's last class and asked them to empty their pockets. According to J.P., Curry checked him with a portable magnetometer and then hand-checked his jacket, which he had taken off. Nothing was found.

Consequently, immediately after ninth period when the students were in their homeroom classes waiting for dismissal, they were called out one-by-one over the P.A. system, rather than the usual procedure, by the bus they take. As the students left their classrooms, they were required to exit via a metal detector located three to four feet from the school's outside doors. The metal detector is used every morning as the students come into the school building, but it had only been used once prior when the students were leaving school. Cihanowyz was standing next to the metal detector and when she saw J.P. approach, she noticed that he appeared scared and nervous. J.P. then stopped, turned around, and returned to his homeroom where Cihanowyz observed him walk up to his desk, take off his jacket and then immediately walk back out. As he walked up to the metal detector, he handed his jacket to the security guard who ran a "wand" over it. The wand beeped, indicated the presence of metal, and the phone was discovered.

J.P. gave a somewhat different account. According to J.P., he was first checked by Curry with a portable magnetometer, and after that, Curry had J.P. take off his shirt, do some jumping jacks, roll down his pants' legs, take off his shoes and socks and turn them inside out. Curry had J.P. take off his jacket, and Curry checked the jacket by hand. Nothing was found. Later, when J.P.'s name was called to leave school, he was told to take off his jacket and hand it to the security guard. However, before he took it off, J.P. asked the guard if he could first go back to his homeroom because he had forgotten some homework. Granted permission, J.P. returned to the classroom, but was unable to find his work, and because it was hot in the room, he took his jacket off. When he approached the metal detector, J.P. handed his jacket to the guard, who hand-checked it and found a cell phone inside a pocket of the jacket. J.P. denied placing the phone in his jacket or knowing who put it there.

In denying the motion to suppress, the judge discredited J.P.'s version, found a reasonable basis to conclude that a crime had occurred, and concluded that the ensuing search was reasonably related to its objective and "not excessively intrusive." The judge explained:

I found that there were reasonable grounds for suspecting that the search will turn up evidence that a student had violated the law and to locate the contraband; in this case, the stolen item . . . . I also find that there is . . . a limited invasion of -- or intrusiveness into the privacy of the students.

On appeal, J.P. argues that the search was unreasonable based on the holding of New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985). We disagree.

In T.L.O., the Supreme Court determined that the Fourth Amendment of the United States Constitution applies to a school official's search of students inside a school. 469 U.S. at 333, 105 S. Ct. at 738, 83 L. Ed. 2d at 729. However, because of special considerations inherent in the school setting and "the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds[,]" T.L.O., supra, 469 U.S. at 340, 105 S. Ct. at 742, 83 L. Ed. 2d at 733, the Court also determined that the warrant requirement does not apply in such an environment. Ibid. Instead, the Court "adopted a standard of reasonable suspicion, recognizing that the public interest is best served by a standard of reasonableness that stops short of probable cause." State v. Biancomano, 284 N.J. Super. 654, 659 (App. Div. 1995) (citing T.L.O., supra, 469 U.S. at 341, 105 S. Ct. at 742, 83 L. Ed. 2d at 734).

Thus, "the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search." T.L.O., supra, 469 U.S. at 341, 105 S. Ct. at 742, 83 L. Ed. 2d at 734. The determination of reasonableness, in turn, involves a two-fold inquiry:

[F]irst, one must consider "whether the action . . . was justified at its inception," second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place". Under ordinary circumstances, a search of a student by a teacher or other school official will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

[T.L.O., supra, 469 U.S. at 341-42, 105 S. Ct. at 742-43, 83 L. Ed. 2d at 734-35 (quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889, 905 (1968) (footnotes omitted).]

Applying this standard to the facts before us, the search of J.P. was entirely reasonable in light of the totality of the circumstances and the context within which it took place. School officials had reason to believe that Cihanowyz's cell phone was stolen by a student in her eighth period class, and when a preliminary search of those seven or eight students proved negative, had further reason to believe the cell phone was still inside the school, either transferred to another student during ninth period or hidden somewhere on the premises. When a search of the building and exterior areas failed to uncover the phone, reasonable grounds existed for suspecting that a search of all students would not only prevent the loss of the phone, but also would, in fact, turn up evidence of the crime. It would also send "'the message that stealing is [not] acceptable behavior.'" Watkins v. Millennium Sch., 290 F. Supp. 2d 890, 900 (D. Ohio 2003) (quoting Thomas ex rel. Thomas v. Roberts, 261 F.3d 1160, 1169 (11th Cir. 2001), reh'g and reh'g en banc denied, 73 F. App'x 389 (11th Cir. 2003)).

Having found reasonable suspicion, we also conclude the search was limited in scope and the means adopted both reasonably related to the objectives of the search and not excessively intrusive. In the first place, all students went through the metal detector every morning upon arrival at the school, and on at least one occasion involving a suspected theft, upon departure. Under these circumstances, there was no violation of any reasonable expectation of privacy on the part of the students who routinely and daily submitted to this procedure.

Secondly, use of the magnetometer was the least intrusive means available to school officials and represented the optimal accommodation of the dual interests involved. Use of the magnetometer obviated the need to physically touch students or otherwise remove articles of their clothing. It also dispensed with the need to manually open and search all personal effects such as purses, handbags, or book bags.

Thus, balancing on the one hand the school's "legitimate need to maintain an environment in which learning can take place," T.L.O., supra, 469 U.S. at 340, 105 S. Ct. at 742, 83 L. Ed. 2d at 733, against, on the other hand, the students' equally legitimate but substantially reduced expectation of privacy, we conclude the minimally intrusive search in this case was entirely reasonable. We are satisfied that the school officials here "regulate[d] their conduct according to the dictates of reason and common sense." T.L.O. supra, 469 U.S. at 343, 105 S. Ct. at 743, 83 L. Ed. 2d at 735.

 
Accordingly, the order denying J.P.'s motion to suppress is affirmed.

(continued)

(continued)

8

A-2247-04T4

RECORD IMPOUNDED

December 30, 2005