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In Re J.a.





APPEAL from the Circuit Court of St. Clair County; the Hon. MILTON S. WHARTON, Judge, presiding.


This appeal by the State from an order suppressing evidence in a juvenile delinquency proceeding raises issues as to the relation between a public school student's fourth amendment rights and the duty of school officials to discipline and protect the students for whom they stand in loco parentis.

Most of the salient facts in this case are undisputed. The assistant principal of Mascoutah High School received a telephone tip from Sergeant Ingelman, a security officer at nearby Scott Air Force Base, that J.A., a student, had a substance believed to be marijuana in his possession, which he intended to sell at the high school. The school officials had previously received and relied on information from the same Base security department, but not from that particular individual. The information was relayed to Clyde Brasher, the dean of students, who then reported it to Dr. Dean, principal of the school. Acting at Dr. Dean's direction, Brasher removed the boy from his first-period class to the principal's office, where he was presented with the information possessed by the school authorities. The minor was requested to empty his pockets; he complied, but nothing was found. Brasher then picked up the minor's coat and, feeling something in a zippered compartment in the hood, conducted a search. Two packages containing what appeared to be cannabis were found.

The Mascoutah chief of police was called to field test the substance, and the student's mother was called. When the police chief arrived, he did not have sufficient liquid to conduct the test, so Brasher accompanied him to Scott Air Force Base to obtain a test of the substance. Brasher subsequently signed the petition initiating these juvenile proceedings, seeking an adjudication that the student was delinquent in that he had committed the offense of unlawful possession of more than 10 but less than 30 grams of cannabis. See Ill. Rev. Stat. 1977, ch. 56 1/2, par. 704(c).

At the hearing on the minor's motion to suppress the introduction of the substance into evidence, Brasher testified that as dean of students he was paid by the school district and was in charge of discipline and attendance as directed by the principals, assistant principals, and the city school board. In addition to his administrative duties at the school, he served as a part-time juvenile officer for the Mascoutah police department, and described this role as follows:

"My duties as juvenile officer are as assigned by the chief of police. I don't have any arrest powers. I am not a police officer such that I carry a gun. I'm not authorized to carry a gun unless I am directed to do so by the chief of police. I am only paid on an hourly basis when directed to assist in a matter involving a juvenile."

Brasher further testified that he was directed only by the principal, not the police, in his capacity as dean of students, and that he was acting in his capacity as dean in taking the marijuana to Scott Air Force Base for testing at the direction of the principal. He had no direction from the chief of police to act as juvenile officer in this case.

Although the minor emptied his pockets when directed to do so by the school officials, he denied to them that he had any marijuana in his possession. He testified that he did not consent to the search of his coat. Brasher testified that he inadvertently discovered the lump in the lining of the hood as he was placing the coat on a chair, but he could not recall whether he had asked for permission to open the zippered compartment. The minor had not been observed doing anything suspicious or illegal prior to the search, was not under arrest, and no warrant had been issued.

The trial court found that Brasher had acted as a police officer and that he had not had probable cause to conduct the search, stating:

"The Court feels that whereas it may have been debatable in the actions leading up to the search as to whether he was acting as a Dean of Students or a police officer that he did cross the line. That is, unquestionably he was acting as a police officer at the time of the discovery of the evidence in question, in that he took the evidence to Scott Air Force Base for analysis and the Court further notes that he is the complaining witness in this delinquency charge, which is before the Court."

The evidence was therefore suppressed as the fruit of an unlawful search and seizure, in violation of the minor's constitutional rights.

On appeal to this court, the State argues that the finding that Brasher was acting in the capacity of a police officer at the time of the search is manifestly erroneous; that probable cause is not required before a school administrator may lawfully search a student; and that, even if the search were illegal, the exclusionary rule should not be applied in this context.

• 1 A minor who is the subject of a proceeding under the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 701-1 et seq.) is assured of all the procedural rights enjoyed by adults except where such rights are specifically precluded by laws which enhance the protection of the minor. (Ill. Rev. Stat. 1977, ch. 37, par. 701-2(3)(a).) When the State seeks to prove that a minor is delinquent, the ordinary criminal standards of proof and rules of evidence apply. (Ill. Rev. Stat. 1977, ch. 37, par. 704-6.) It is settled in this State that all constitutional protections against unlawful searches and seizures are applicable to juveniles in delinquency proceedings, and that the exclusionary rule is also applicable. In re Marsh (1968), 40 Ill.2d 53, 237 N.E.2d 529; People v. Kincaid (1977), 51 Ill. App.3d 975, 367 N.E.2d 456; People v. Hughes (1970), 123 Ill. App.2d 115, 260 N.E.2d 34.

• 2 It is equally well settled that searches by private individuals are not within the ambit of the fourth amendment's protection against unreasonable searches and seizures (Burdeau v. McDowell (1921), 256 U.S. 465, 65 L.Ed. 1048, 41 S.Ct. 574; People v. Heflin (1978), 71 Ill.2d 525, 376 N.E.2d 1367, cert. denied (1979), 439 U.S. 1074, 59 L.Ed.2d 41, 99 S.Ct. 848), unless the individual conducting the search can be regarded as acting as an agent of the State in light of all the circumstances of the case. (Coolidge v. New Hampshire (1971), 403 U.S. 443, 487, 29 L.Ed.2d 564, 595, 91 S.Ct. 2022, 2049.) In an apparent case of first impression in Illinois, the Appellate Court for the Fourth District recently held that whether an individual is to be considered an agent of the State for fourth amendment purposes depends on the capacity in which he was acting at the time of the challenged search, regardless of his primary occupation. (People v. Luetkemeyer (1979), 74 Ill. App.3d 708, 393 N.E.2d 117.) In that case the court held that an individual who found cannabis on defendant's property while there to make house repairs — ...

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