Search of public school student's locker upon unconfirmed report of weapons or drugs in the school.

Opinion by Wilner, J.

The District Court of Maryland, sitting as the juvenile court in Montgomery County, found petitioner to be a delinquent child by reason of his having had a deadly weapon and a pager in his possession while on public school property. He admitted possession of the two items and complains only that they were unlawfully obtained by the State and, for that reason, should have been suppressed. The trial court rejected his contention that the seizure of the items violated his Fourth Amendment rights, and the Court of Special Appeals affirmed. In Re Patrick Y., 124 Md. App. 604, 723 A.2d 523 (1999). We agree and shall affirm the judgment of the appellate court.

BACKGROUND

Petitioner was an eighth grade student at the Mark Twain School in Montgomery County. The school is a public middle and senior high school that, at its Rockville campus, serves approximately 245 children with significant social, emotional, learning, and behavioral difficulties. The school publishes a set of "Policies Regarding Student Behavior," a copy of which was given to petitioner and his parent and was signed by them. The document states that the school is "committed to maintain a safe environment for students and staff," and advises:

"Mark Twain subscribes to Montgomery County Public Schools' Search and Seizure policy, which provides that the principal or the administration's designee may conduct a search of a student or of the student's locker if there is probable cause to believe that the student has in his/her possession an item, the possession of which constitutes a criminal offense under the laws of the State of Maryland. These items include weapons, drugs or drug paraphernalia, alcohol, beepers and electronic signalling devices."

At approximately 10:40 on the morning of May 23, 1997, the school security officer, Patrick Rooney, received information from a source he could not recall that "there were drugs and or weapons in the middle school area of the school." Mr. Rooney alerted the principal, who authorized a search of all lockers in the middle school area. The record indicates that the search was conducted by Mr. Rooney and one other person but does not reveal how the search was conducted. We do not know how many lockers were searched, other than that the search did not extend beyond the middle school area, or how the search was conducted. No evidence was produced of whether the lockers were even locked or, if locked, whether the school had a master key or a list of the combinations that would open combination locks, although a fair inference can be drawn from the apparent ease with which the search was conducted that the school had ready access to the lockers. As petitioner was not informed in advance of the intent to search his locker and was not present when his locker was opened, it is clear that the locker was opened without his assistance or permission.

Inside petitioner's locker, Mr. Rooney found a bookbag, which he also searched. Inside the bookbag were the two contraband items — a folding knife with a 2 + inch blade and a pager — both of which, as noted, are expressly forbidden on school property. Petitioner, it appears, was in some other, unrelated difficulty at the time of the search. He had threatened to leave the school building without permission and was being restrained on that account when he was confronted with the knife and the pager, which he admitted were his. The issue raised by petitioner is whether the Fourth Amendment was violated "by a search of Petitioner's locker, based solely upon a vague and unsubstantiated rumor, 'that there were drugs and or weapons in the middle school area.'"

Petitioner asserts that (1) he had a legitimate expectation of privacy in his locker, (2) whatever may be the Constitutional standard for conducting locker searches, the published school policy required probable cause, which was lacking, (3) the school officials did not have even a "reasonable suspicion," that there was any contraband in his locker, and (4) by opening his bookbag, the search exceeded any permissible scope that might have justified opening the locker. Relying principally on Vernonia School District v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), the State contends that general reasonableness, not probable cause, is the appropriate standard to apply and that, under that standard, the search of petitioner's locker and bookbag was justified. It urges that petitioner had, at best, only a limited privacy interest in his school locker, that the search of the locker was a minimal intrusion, that school safety constitutes a compelling governmental interest, that the locker search was an "efficacious" means of satisfying that interest, and that, on balance, the minimal intrusion of the locker search was outweighed by the compelling interest in school safety.

As noted, the issue raised in the petition for certiorari was limited to whether the search of petitioner's locker violated the Fourth Amendment. That statement of the issue does not include any complaint about the search of the bookbag or, indeed, whether petitioner was entitled to relief solely because the locker search violated the published Montgomery County School Policy. Because it was not raised in the petition, we shall not consider the search of the bookbag. The published school policy needs to be addressed, not as an independent basis for suppression, but in the Fourth Amendment context of its effect on petitioner's reasonable expectation of privacy in the locker.

DISCUSSION

Two Supreme Court cases have come to dominate the current debate over locker searches in the public schools — Acton, supra, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564, and New Jersey v. T.L.O, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) although neither of them dealt with a locker search. T.L.O., the earlier of the two cases, involved the search of a student's purse. A teacher found T.L.O. and another student smoking in a school lavatory, which constituted a violation of school rules, and took the students to the vice-principal's office. When T.L.O. not only denied smoking in the lavatory but of even being a smoker, the vice-principal opened her purse, found and removed a pack of cigarettes, noticed cigarette rolling papers, and, knowing the connection of such papers to the use of marijuana, searched the purse further. The extended search revealed a small amount of marijuana, certain paraphernalia, and other evidence implicating T.L.O. in drug dealing. The evidence was turned over to the police. After questioning, the student admitted that she had been selling marijuana at the school, and, based on that confession, she was charged with delinquency. The trial court denied her motion to suppress the evidence taken from her purse, a decision set aside by the New Jersey Supreme Court.

The U.S. Supreme Court initially granted certiorari to determine whether the exclusionary rule enunciated in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 1081 (1961) should apply in juvenile court proceedings, but it ordered reargument to consider the broader question "of what limits, if any, the Fourth Amendment places on the activities of school authorities." T.L.O., supra, 469 U.S. at 332, 105 S.Ct. at 737, 83 L.Ed.2d at 728. The ultimate resolution in that case was that the search did not violate T.L.O.'s rights under that Amendment, but the Court warned that its disposition of the case on that basis was not to be taken as an implicit determination "that the exclusionary rule applies to the fruits of unlawful searches conducted by school authorities." Id., 469 U.S. at 333 n. 3, 105 S.Ct. at 738, 83 L.Ed.2d at 729. The Court also made clear that its focus was on the right to search the person or personal items carried by the student, which was the circumstance before it, and that it was not addressing the question now before us of "whether a schoolchild has a legitimate expectation of privacy in lockers, desks, or other school property provided for the storage of school supplies." Id., 469 U.S. at 337 n. 5, 105 S.Ct. at 740, 83 L.Ed.2d at 732. In that regard, it noted the conflict between Zamora v. Pomeroy, 639 F.2d 662 (10th Cir. 1981) and People v. Overton, 249 N.E.2d 366 (N.Y. 1969), holding that school administrators had the right to search or consent to the search of student lockers, and State v. Engerud, 463 A.2d 934 (N.J. 1983), holding that students have an expectation of privacy in their lockers.

On the merits, the Court first determined, as a threshold matter, that the Fourth Amendment does apply to searches conducted by public school officials. Largely because of the compulsory school attendance laws, public school officials, unlike their counterparts in private school, do not stand in loco parentis in their dealings with students and therefore do not have the exemption from Fourth Amendment requirements enjoyed by the parents. They do not merely exercise authority delegated to them by the students' parents, but act in furtherance of mandated educational and disciplinary policies.

Proceeding from that premise, the Court then recognized that students were entitled to bring to school "a variety of legitimate, noncontraband items," that there was "no reason to conclude that they have necessarily waived all rights to privacy in such items merely by bringing them onto school grounds," and that, as a result, the search of a child's person or of a closed purse or bag carried on the person was "a severe violation of subjective expectations of privacy." Id., 469 U.S. at 337-39, 105 S.Ct. at 732-33, 83 L.Ed.2d at 740-41. Against that right of privacy, however, the "substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds" had to be balanced. Id. at 339, 105 S.Ct. at 733, 83 L.Ed.2d at 740. In that regard, the Court took note that, in recent years, the maintenance of order in the schools, which had never been easy, had "often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems." Id. It acknowledged that, even in schools spared the most serious problems, "the preservation of order and a proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult." Id. That imperative requires "a certain degree of flexibility in school disciplinary procedures." Id. at 340, 105 S.Ct. at 733, 83 L.Ed.2d at 742.

In striking the balance, the Court concluded that the warrant requirement of the Fourth Amendment was unsuited to the school environment and that the generally applicable probable cause standard was unnecessary. Rather, it held, "the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search." Id. at 341, 105 S.Ct. at 734, 83 L.Ed.2d at 742. That, in turn, required a two-part inquiry: whether the action was justified at its inception, and whether the search, as conducted, was reasonably related in scope to the circumstances that justified the interference in the first place. As to that, the Court concluded:

"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."

Id. at 341-42, 105 S.Ct. at 734-35, 83 L.Ed.2d at 743.

The New Jersey Supreme Court had applied essentially the same principles in finding the search unlawful, and the disagreement between the two courts was in their application to the particular facts. The U.S. Supreme Court concluded that the school officials had a reasonable basis for believing that T.L.O. had been smoking in the lavatory and that her purse might contain evidence of that conduct, in the form of cigarettes. It was not unreasonable, therefore, for the vice- principal to search the purse for cigarettes. His discovery of the rolling papers while looking for the cigarettes gave rise to a reasonable suspicion that the purse also might contain marijuana, thereby justifying the extended search. Because the search was reasonable in both inception and scope, the evidence was not subject to suppression.

Acton, which was decided 10 years after T.L.O., involved a different kind of search — random urinalysis for students involved in inter-scholastic athletics. The Vernonia school district, legitimately concerned over an increasing incidence of drug abuse on the part of students, which had led to a significant escalation in discipline problems, especially among student athletes, adopted a policy of requiring all students intending to engage in inter-scholastic athletics, and the parents of those students, to sign a written consent to the random drug testing of the students through urinalysis. Special efforts were made to assure both reasonable privacy in obtaining the specimens and confidentiality and reliability of the test results. Acton and his parents refused to consent to the procedure and when, as a result, Acton was not permitted to play football for his school team, he and his parents sued for declaratory and injunctive relief, claiming that the policy violated his rights under the Fourth and Fourteenth Amendments.

The Court began by observing that the ultimate measure of the Constitutionality of a governmental search is reasonableness balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Although a search conducted by law enforcement persons normally requires a warrant, issuable only upon a demonstration of probable cause, neither a warrant nor the probable cause standard are required where special needs make them impracticable. In T.L.O., the Court concluded that the warrant requirement and the probable cause standard were not required in the student search setting — that adherence to a probable cause standard would undercut the need of school officials for freedom to maintain order. The Acton Court held that, although the search in T.L.O. was based on individualized suspicion of wrongdoing, that too was not an "irreducible requirement" of the Fourth Amendment. Acton, supra, 515 U.S. at 653, 115 S.Ct. at 2391, 132 L.Ed.2d at 574. Suspicionless searches to conduct drug testing had been upheld for railroad personnel involved in train accidents and Federal customs officials, and random automobile checkpoints had been approved to search for drunk drivers, illegal immigrants, and contraband.

Turning then to the first aspect of the question — the degree of intrusion on a legitimate expectation of privacy — the Court confirmed earlier holdings that students in a public school setting, while not shedding their Constitutional rights at the schoolhouse gate, nonetheless have a lesser expectation of privacy than do adults. Simply as unemancipated minors, they lack "some of the most fundamental rights of self-determination." Id. at 654, 115 S.Ct. at 2391, 132 L.Ed.2d at 575. Although public school officials do not stand entirely in loco parentis with respect to the students, they do exercise a "custodial and tutelary" authority that permits "a degree of supervision and control that could not be exercised over free adults" and that cannot be ignored in conducting a "reasonableness" inquiry. Id. at 655-65, 115 S.Ct. at 576, 132 L.Ed.2d at 2392. Reflecting on the target group at issue, the Court held that legitimate privacy interests were even less with regard to student athletes, who are required to dress and undress in locker rooms not noted for their privacy, and who, in other ways as well, have a reduced expectation of privacy. The degree of intrusion manifested by the drug testing program on that reduced expectation, the Court held, was not significant in light of the procedures used in its implementation.

Addressing then the "nature and immediacy of the governmental concern," the Court noted the "compelling" need to deter drug use by schoolchildren. Indeed, it recognized that the effects of a drug-infested school extend beyond those using the drugs and impact as well on the entire student body and faculty by disrupting the educational process. That general concern was heightened in the particular case both by the special vulnerability of student athletes to harm when either on drugs themselves or in contact with other athletes on drugs and by the significant increase in disciplinary problems actually experienced in the Vernonia schools that was attributed to drug use. Rejecting Acton's suggestion that a less intrusive alternative was possible — testing only on suspicion of drug use — the Court observed that it had "repeatedly refused to declare that only the 'least intrusive' search practicable can be reasonable under the Fourth Amendment." Id. at 663, 115 S.Ct. at 2396, 132 L.Ed.2d at 581. The net holding was that "when the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake," and in Acton, the answer was in the affirmative. Id. at 665, 115 S.Ct. at 2396-97, 132 L.Ed.2d at 582.

Petitioner regards T.L.O. as the more relevant case, requiring some individualized suspicion as a necessary predicate for a locker search. He seems to view Acton as limited to student athletes and their lesser expectation of privacy, noting the Court's reference to their "communal undress," the fact that inter-scholastic athletics was a voluntary endeavor, and the further fact that, in Acton, most of the parents approved the drug-testing policy. We do not regard Acton as being so limited.

Expectation Of Privacy

Both T.L.O. and Acton instruct us as to the analytical process that should be followed. First, we must determine whether, and to what extent, petitioner had a legitimate expectation of privacy in his locker. Although that is ultimately a legal issue, it depends on the facts. In In Interest of Isiah B., 500 N.W.2d 637 (Wis. 1993), the school system adopted a written policy, communicated to the students, that school lockers were the property of the school, that the school retained exclusive control over them, and that periodic general inspections may be conducted by school authorities for any reason, at any time, without notice, and without a warrant. The school administration had pass keys to all of the lockers, and students were forbidden to put private locks on them. In light of that overall policy, the court concluded that students had no reasonable expectation of privacy in the lockers made available for their use. See also Shoemaker v. State, 971 S.W.2d 178 (Tex.App. 1998) (school had written policy, discussed with the students, that lockers remained under the jurisdiction of the school and were subject to search at any time upon reasonable cause, and school officials had pass key that opened all lockers); and cf. People v. Overton, 229 N.E.2d 596 (N.Y. 1967); S.A. v. State, 654 N.E.2d 791, 795 (Ind. App. 1995).

In the absence of such a clear policy, and especially when there is a contrary policy purporting to limit the ability of the school authorities to conduct a search, courts have concluded that students do have some legitimate privacy interest, even if a limited one. In Com. v. Snyder, 597 N.E.2d 1363 (Mass. 1992), where the school published a written policy that students had the right not to have their lockers subjected to unreasonable search, the court concluded that a student had a reasonable expectation of privacy, notwithstanding that the school officials had the combinations to the locks. In Com. v. Cass, 709 A.2d 350, 353 (Pa. 1998), where the written policy, communicated to the students, was that lockers were subject to search without warning when school officials "have a reasonable suspicion that the locker contains materials which pose a threat to the health, welfare and safety of students in the school" and school officials were able to open lockers by use of a master key and by having required access to any combinations on private locks used by the students, the court found a "minimal" privacy expectation. In State v. Joseph T., 336 S.E.2d 728 (W.Va. 1985), the court found a right of students to security against unreasonable searches and seizures by public school officials. Although school officials had a master key that would open all lockers, the student handbook noted that the Fourth Amendment protected "all citizens" from unreasonable searches and seizures and declared that students "do have rights to privacy and may reasonably expect that their lockers will not be searched unless appropriate school officials consider a search absolutely necessary to maintain the integrity of the school environment and to protect other students." Id. at 737 n. 10. See also State v. Michael G., 748 P.2d 17 (N.M. Ct. App. 1987); In Interest of Dumas, 515 A.2d 984 (Pa. Super. 1986); and S.C. v. State, 583 So.2d 188 (Miss. 1991), finding a privacy interest in student lockers without discussion of published school policy or general access to lockers by school officials.

As noted, the only factual evidence in this record bearing on whether petitioner may have had a legitimate expectation of privacy was the school policy statement that he and his parent signed which, in sharp distinction to the kinds of statements evident in the above-cited cases, purports to limit the right of school officials to search lockers to situations in which the official has "probable cause" to believe that the student has in his/her possession an item that is contraband under the criminal law of the State. On its face, and without regard to the broader legal context, that document, published by the local school authorities, could serve as a basis for an expectation that lockers will not otherwise be searched. That local policy cannot be considered in a vacuum, however. There is a statute enacted by the General Assembly, supplemented by a by-law adopted by the State Board of Education, that defines and controls the authority of school officials to search public school lockers, and it is that State policy that determines whether, and to what extent, petitioner had any reasonable expectation of privacy in the locker assigned to him.

Maryland Code, § 7-308 of the Education Article states:

"(a) Authority to search student. — (1) A principal, assistant principal, or school security guard of a public school may make a reasonable search of a student on the school premises or on a school-sponsored trip if he has a reasonable belief that the student has in his possession an item, the possession of which is a criminal offense under the laws of this State or a violation of any other State law or a rule or regulation of the county board.

(2) The search shall be made in the presence of a third party.

(b) Authority to search school. — (1) A principal, assistant principal, or school security guard of a public school may make a search of the physical plant of the school and its appurtenances including the lockers of students.

(2) The right of the school official to search the locker shall be announced or published previously in the school.

(C) Rules and regulations. — The [State] Department [of Education] shall adopt rules and regulations relating to searches permitted under this section."

(Emphasis in text added).

The State Board of Education has adopted a by-law, which constitutes an agency regulation, consistent with the legislative direction. The by-law, found in COMAR 13A.08.01.14E and F., mirrors the statute.

The plain words of the statute and by-law establish a State policy distinguishing between the search of students and the search of lockers. In conformance with the requirements of T.L.O., the search of a student requires a reasonable belief on the part of the school official that the student has contraband in his or her possession. School lockers, on the other hand, are not regarded as the personal property of the student. They are classified as school property, part of the "plant of the school and its appurtenances," and, no doubt because of that, school officials are permitted to search the lockers as they could any other school property. No probable cause is required; nor is any reasonable suspicion required.

This policy is deliberate and has a long history. At least as early as 1970, before there was a statute on the subject, the State Board of Education had in effect a by-law, having the force of law, dealing with searches on public school property by both police officers and by school officials. Police officers were permitted to conduct searches, including searches of lockers, only upon a warrant. By-law 740 provided, in relevant part, that police officers, "upon the authority of a search warrant," may search that part of the school premises described in the warrant, and that "investigative searches" would be permitted only upon the authority of a search warrant "or in any case where the search is essential to prevent imminent danger to the safety or welfare of the pupil or other persons or school property." Such a search, the by-law continued, "shall not include a pupil's assigned locker unless specified in the search warrant." A more liberal policy was applied to searches by school officials, who, unless the search was "in connection with a police investigation," were permitted, at any time, to "conduct such searches as are essential to the security, discipline and sound administration of the particular school." No probable cause, or even individualized reasonable suspicion, was required when the search was conducted by school officials for their own purposes.

The first statute dealing with school searches was enacted in 1973. See 1973 Md. Laws, ch. 759, enacting a new § 96A to former Article 77 of the Code. Like the current law, the statute drew a sharp distinction between searches of students and searches of lockers. Under § 96A(a), principals, assistant principals, and authorized public school security officers were permitted to conduct a reasonable search of a student on school premises if the official "has probable cause to believe that the student has in his possession an item, the possession of which constitutes a criminal offense under the laws of this State." Section 96A(b), however, permitted those officials, without any determination of probable cause or reasonable suspicion, to conduct a search of "the physical plant of the school and every appurtenance thereof including students' lockers." The only complement to that authority was the direction that the right of the official to search the locker must be previously announced or published within the school. Subsection (c) required the State Department of Education to adopt regulations "relating to searches permitted under this section."

Except for style changes, § (b), treating student lockers as school property and permitting designated school officials to search them as they could search other school property, without satisfying any minimum standard, has remained intact since 1973. In 1982, § (a) was amended as a result of In Re Dominic W., 48 Md. App. 236, 426 A.2d 432 (1981), in which the Court of Special Appeals concluded that the search of a student suspected of breaking into another student's locker and stealing money and a watch was invalid because there was no probable cause to justify the search. The court noted, apart from any Fourth Amendment concern, that the Legislature, by statute, required probable cause for such a search. In the next session, the General Assembly, at the urging of a county school board, amended § (a) — by then recodified as § 7-307(a) of the Education Article — to permit the search of a student upon a "reasonable belief" that the student is in possession of an item, the possession of which is a criminal offense.

The initial State Board of Education by-law, adopted prior to 1970, remained intact, and thus inconsistent with the 1982 amendment, until 1990, when it was amended to provide that the designated school official could make a reasonable search of a student on the school premises if the official had a reasonable belief that the student was in possession of an item, the possession of which was a criminal offense. See COMAR 13A.08.01.14E (Supp. 10). The by-law dropped any reference to the search of school property or lockers. In 1997, the by-law was amended in two respects. First, it was broadened to permit the search of a student on either school property or on a school-sponsored trip, if the school official has a reasonable belief that the student is in possession of an item, the possession of which constitutes a violation of any State law or a rule or regulation of the local school board. Second, and more significant for our purposes, a new section was added to track the statutory provision dealing with searches of school property, authorizing the designated school officials to search lockers as part of the physical plant and appurtenances.

Although educational matters affecting the counties are under the control of the county board of education ( see § 4-101(a) of the Education Article), the authority of the county school boards is always subject to statutes enacted by the General Assembly and to the supervening authority of the State Board of Education. A county board cannot adopt and enforce a policy affecting the operation of the public schools or the rights, privileges, or obligations of public school students that is inconsistent with public general law or with by-laws of the State Board of Education, which have the force of law. See Wilson v. Board of Education, 234 Md. 561, 200 A.2d 67 (1965); Bd. of Education of Prince George's County v. Waeldner, 298 Md. 354, 470 A.2d 332 (1984). By both statute and State Board of Education by-law, school lockers are treated as school property and are subject to search by designated school officials in the same manner as other school property. It is not within the power of a local school board or superintendent, or any subordinate official, to establish and enforce a policy that provides otherwise.

The Montgomery County policy statement upon which petitioner relies is obviously inconsistent with the governing State law. It imposes probable cause to believe that the student is in possession of an item, the possession of which constitutes a criminal offense as the standard necessary to justify a search of both students and lockers, which, under State law, is not the test for either. Accordingly, that local policy is invalid and nugatory and cannot serve as a basis for a student to have a reasonable expectation of privacy in the locker provided by the school. To rule otherwise — to give effect to the county policy statement as creating an expectation of privacy sufficient to create a Fourth Amendment threshold for school officials to meet would give that policy a precedence over the statute and State Board of Education by-law, which it clearly cannot have.

In light of the supervening State policy, this case is more akin to the situation in In Interest of Isiah B., supra, 500 N.W.2d 637, in which the Wisconsin court found no reasonable expectation of privacy, than to those cases in which a valid published policy precluding "unreasonable" searches or requiring "reasonable suspicion" to conduct a search led to a finding of some minimal expectation of privacy. As petitioner could have no reasonable expectation of privacy in the school locker, the search of it by the school security officer, upon direction of the principal, did not violate any Fourth Amendment right of petitioner.

Because we conclude that, in light of § 7-308 and the State Board of Education by-law, petitioner had no reasonable expectation of privacy in the locker temporarily assigned to him, we need not consider, if he had such an expectation, what the nature of it would be and whether the governmental interest in conducting the search and the limited nature and extent of the intrusion manifested by the search would nonetheless suffice to justify the search.

JUDGMENT AFFIRMED, WITH COSTS.