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M. M. v. ANKER

February 6, 1979

M. M. et al., Plaintiffs,
Irving ANKER et al., Defendants.

The opinion of the court was delivered by: DOOLING


Defendants Amicone and Heitner have moved to reinstate the jury's verdict of November 3, 1978, as to both defendants or, at least, as to the defendant Heitner, or alternatively for a new trial on the issue of liability as to both defendants.

 Plaintiffs, having now amended the complaint, have renewed their motion for an order certifying the case as a class action insofar as it seeks declaratory and injunctive relief, and plaintiffs have moved as well for partial summary judgment.

 1. The jury verdict included answers to specific interrogatories. The first interrogatory asked whether defendant Amicone had reasonable grounds to suspect that plaintiff had in her possession an object that could lawfully be searched for (a) when Ms. Amicone first commenced the search, and (b) when the search was continued with Ms. Gilbert as a witness. The jury both in the first attempt to render a verdict and in its final verdict answered, "Yes", that Ms. Amicone did have reasonable grounds at both points. The jury also said that defendant Heitner had reasonable ground to suspect that plaintiff had in her possession an object that could lawfully be searched for when he took part in the search to the extent that he did take part in it. The jury answered, "No" to the third interrogatory, Was the search of plaintiff unreasonably intrusive? (In the first attempt to render a verdict the jury had indicated that the answer to this third question was "Yes" rather than "No".) As to its general verdict the jury found for defendant Amicone and for defendant Heitner. Plaintiffs moved for judgment notwithstanding the verdict or alternatively for a new trial, and by order of November 13, made on the basis of an oral opinion rendered November 9, 1978, the verdict was set aside and a verdict in accordance with plaintiffs' motion for a directed verdict was directed against both defendants on the issues (1) of their liability to plaintiff M.M. and (2) of their defense of good faith and reasonable belief that there were reasonable grounds to suspect that plaintiff had in her possession an object that could lawfully be searched for. The issue of damages was set down for trial at a date convenient to the parties. In addition the order setting the verdict aside provided that, if the judgment entered on the directed verdict was later vacated or reversed, the motion of plaintiff for a new trial was granted on the ground that the jury's verdict was against the weight of the evidence.

 Without attempting a complete summary of the oral opinion of November 9, 1978, it is enough to say that the opinion found that the evidence disclosed no issue of fact for submission to the jury arising out of the absence of prompt complaint, or on the theory that plaintiff M.M. might have consented to the search, and it was concluded that the school's interest in maintaining school discipline did not make Dean Amicone's pursuit of the search to the end a reasonable course of conduct toward the plaintiff M.M. The further conclusion of the opinion was that there was not a reasonable search underway at any stage of the case, and that if there had been a reasonable search to start with, it was not reasonable to pursue it to the extreme that it reached. The reasoning of the oral opinion was the following:

 Dean Amicone had no reasonable ground for initiating a search. The matter was not referred to her for search. Nothing was reported to be missing, Dean Amicone did not ask whether any preliminary investigation had been made to determine whether anything was missing, and, rather than having a ground for suspecting that the child had stolen property in her possession, Dean Amicone could do no more than wonder whether or not the child might not have something stolen in her possession. The child's record for being in theft-suspicious situations, the fact that she was found in the classroom during a fire drill and had been seen there with another girl's pocketbook or book bag under her control, that plaintiff had claimed the bag as her own but had surrendered it to another girl when the girl claimed it, and that while in the classroom she had taken down posters to take home to her sister, these facts did not suggest that plaintiff had stolen property in her possession but showed that she had committed quite other offenses for which she might be disciplined. To justify searching a high school child for a possible stolen object, it is indispensable that there be a reliable report that something is missing, and not a report, however reliable, that the suspected student had an opportunity to steal.

 When plaintiff was taken to Dean Amicone's office adequate ground for discipline existed on the basis of the report of what had happened; it was not a search situation but an occasion to set in motion whatever school machinery was required by the referral from Dean Janko and Mrs. Regan based on their observations and inquiries.

 It may well be that the search standard in a school situation is not so strict as in criminal police investigation, and that the good faith defense to civil liability raises different issues from those that arise on a motion to suppress the use of the product of an illicit search in a criminal case, where the good faith of the policeman is immaterial. Dean Amicone here relied on her knowledge of the child's record with reference to things found in her possession or with her possessions which were not hers or were contraband, coupled with Dean Amicone's knowledge of Dean Janko's report of what happened in the classroom during the fire drill: that does not suffice to show that Dean Amicone in good faith and reasonably believed that she had reasonable ground to suspect that the child had in her possession an object for which it was lawful to search her. Dean Amicone proceeded without malice or ill will, and in the good faith belief that it was reasonable for her to proceed as she was proceeding. However, the standard of reasonableness of belief that Dean Amicone's conduct had to meet was not satisfied. The law can not tolerate as reasonable a belief on the part of the teacher that if she has reasonable grounds to suspect that a child might have in her possession property that might have been stolen, but which there was no ground to believe had in fact been stolen, so far as the teacher had been informed, that belief constituted a sufficient basis for search.

 So far as concerns defendant Heitner, the evidence is that he knew that the object of the search was a small white pipe-like object, probably a reefer holder, and that he participated in the decision to prosecute such a search as had to be carried out in his absence and in the presence of a female security guard. Such a search, a body search, was so inordinate in terms of the object sought by the search, that it can not be defended on any ground. The search was so intrusive and, so far as Dean Amicone and Dean Heitner knew, so wholly unprecedented in the case of a female high school student that there is no possibility of suggesting a good faith defense.

 On the motion to reinstate the jury's verdict defendants argue first that the verdict was fully supported by Dean Amicone's possessing evidence (from Dean Janko) that a student with a record for possessing other students' property was found during a fire drill in an unoccupied classroom near another student's purse which she claimed as her own, and evidence from Dean Janko that the student, Inter alia, refused to identify herself, ran away, and demonstrated nervousness and concern about her book bag when stopped. Those are, however, not all the facts, and the contention fails to take account of Dean Amicone's own testimony.

 Dean Amicone testified that Dean Janko had told her about seeing the corridor door of Mrs. Regan's classroom open, of going to close it, of seeing plaintiff in a crouch behind the door, of plaintiff's having declined to give her identity, of plaintiff's having admitted taking down the posters to decorate her sister's room, of plaintiff's having pleaded with Dean Janko not to tell her mother, of Dean Janko's seeing a book bag or purse beside where plaintiff was crouched behind the door, of his picking it up to look in it to identify plaintiff, of plaintiff's having said the bag was hers, of her leaving him holding the purse or book bag, of another girl's coming in and claiming the book bag, and of plaintiff's being identified by Mrs. Regan as the girl Dean Janko had found and questioned. Dean Amicone already knew plaintiff and her unfortunate school record, including the fact that she had been found on earlier occasions in possession of other people's property and on this occasion had claimed as hers a bag that was not hers; Dean Amicone knew specifically that plaintiff had been accused of theft by another student. When Dean Amicone took plaintiff to the Assistant Principal's room she was, she testified, concerned by what plaintiff could have done while she was alone in the room. She testified that she told plaintiff what Dean Janko had said about plaintiff's taking the posters for her sister's room and asked her whether that was right, saying that if she really wanted the posters she could have got them by asking the teacher for them. She said that she told plaintiff that taking the posters was stealing and also pointed out to plaintiff that she had been in the room alone with other students' bags and had another's bag under her control. Dean Amicone testified that she said to plaintiff that to protect herself and others she should tell Dean Amicone whether she had anything. Dean Amicone testified that she meant by this that students might later make claims of theft and so for Dean Amicone to conduct a search of plaintiff then would give plaintiff a clean bill of health. Dean Amicone testified that Dean Janko had not reported any theft and that no one else had reported any theft, or, so far as she knew, made any inquiry about theft: the students in the class were not all in the same section and some might already have left for the day. Dean Amicone said that she commenced the search because plaintiff might be accused and a search could clear her, and that, if plaintiff had taken something, as the circumstances of staying there in the room, having another's purse, taking down the posters, etc. indicated, plaintiff's sense of it might have been one of "taking" rather than "stealing" and unaccompanied by any sense of right or wrong. Dean Amicone testified that she asked plaintiff whether she had anything that didn't belong to her and plaintiff answered, "No"; that she then either asked plaintiff whether she could look through her bag, or said something like, "Show me the contents of your book bag"; and that then plaintiff dumped out the contents of her book bag on the table. Dean Amicone testified that she reached for the bus pass holder; that plaintiff snatched it from her; that plaintiff gave her the mutilated bus pass from the holder; that Dean Amicone then saw a white object which she felt able to identify as a pipe or holder used for smoking marijuana cigarettes; that she asked for the bus pass holder, and plaintiff refused to surrender it at first, but then threw the bus pass holder down on the table and it skidded to the floor behind the table; plaintiff then retrieved the bus pass holder, making, meanwhile, a tucking motion at the waistband of her blue jeans; that plaintiff then handed the bus pass holder, empty, to Dean Amicone, but with her fist clenched so that Dean Amicone inferred that she might be holding the white object in her fist; that the hand in fact was found to be empty; and that the body search followed. Dean Amicone testified that, after Dean Heitner came and she had reported the events to him and described what she was looking for, and joined him in the futile search of the room for the pipe and vainly asked plaintiff where the pipe was, she finally said "There will have to be a body search", and female security guards were sent for and the search conducted.

 On cross-examination Dean Amicone testified that she initiated the search because of plaintiff's background and the possibility of theft, that she was searching for something that might be missing but had not been reported missing: she knew Janko had not said that anything was missing, and had said that someone else had claimed the bag or purse that plaintiff had said was hers. Dean Amicone testified that it would be hard to say that when plaintiff and she went to Ms. Laird's office she meant to search plaintiff: she may have had a search in mind, but she wanted, first, to talk to plaintiff. Beyond what she had been told, Dean Amicone testified, there was in addition plaintiff's excited state, her attitude, and her failure to respond to a general question about what had happened. Dean Amicone said that when asked about the posters, plaintiff related the incident. Dean Amicone agreed that if anything had been stolen, since it had not been reported, she would not have been able to identify it if plaintiff claimed that everything in her possession was her own; but Dean Amicone pointed out, if there were a later complaint of theft, and an accurate description, she could then link that up with what she had seen in the search.

 Dean Amicone's testimony makes it clear that she did not have a suspicion that plaintiff had stolen property in her possession; on the contrary, Dean Amicone had information only to the effect that plaintiff had been in a position in which she might have taken something in addition to the things which she admitted taking and which, whether or not she admitted taking them, had been returned to the true owner.

 Since there was no occasion to initiate any search, the provocative conduct of plaintiff, resulting in the pressing of the search for the white pipe which Dean Amicone testified that she saw, did not justify it. But even if Dean Amicone had seen the white object in other circumstances and had asked plaintiff to turn it over to her, a persistent denial of possession and refusal to cooperate in a search of the bus pass holder, could not justify the length to which the search was pushed. When the pipe was not in the bus pass holder that plaintiff finally surrendered, nor anywhere in the room, nor in plaintiff's hand when she unclenched it, the inference that it might be concealed somewhere on her person out of sight competed against the possibility of a mistaken perception in the first place. The dubious import of the surely ambiguous pipe, even taking into account Dean Amicone's wish to produce evidence of the plaintiff's supposed marijuana smoking to her mother and to vindicate the school's right to insist on obedience to reasonable commands, related to discipline, involved no such legally cognizable interest as could justify so serious an invasion of the interest of privacy of a fifteen year old female high school student. In this as in every other special situation case in which there is neither a warrant nor a probable cause requirement, the determinants of legality are "the nature and extent of the governmental interests involved" and "the nature and quality of the intrusion on individual rights which must be accepted" if the search is to be legitimatized. Cf. Terry v. Ohio, 1968, 392 U.S. 1, 22, 24, 88 S. Ct. 1868, 1880, 1881, 20 L. Ed. 2d 889. It has been said that "the scope of a warrantless search must be commensurate with the rationale that excepts the search from the warrant requirement". See Cupp v. Murphy, 1973, 412 U.S. 291, 295, 93 S. Ct. 2000, 2003, 36 L. Ed. 2d 900; Terry v. Ohio, supra, 392 U.S. at 22, 88 S. Ct. at 1880 (disapproving searches "based on nothing more substantial than inarticulate hunches"; noting that it had been earlier said that " "good faith on the part of the arresting officer is not enough' . . . If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate . . . .") Border searches, which require neither warrants nor probable cause, and, so ...

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