At this point Officer Hentig, a Cook County Sheriff's deputy,
came into Baukus' office and spoke to Martin. Hentig was at the
school on another matter. There is no indication that he supplied
any evidence implicating Martens or directed school officials to
detain Martens for questioning. He told Martens that based on his
experience it would be better to cooperate with school officials.
Hentig then asked Martens to empty his pockets and Martens
complied. A pipe in Martens possession was later found to have
contained marijuana residue.
Martens was suspended from school on May 10, 1982, pending a
hearing before the Board of Education on May 18, 1982. At that
hearing Martens was represented by counsel, presented witnesses
and cross examined adverse witnesses. The transcript of the
hearing covers 23 single-spaced pages. At the conclusion of the
hearing the Board decided to expel Martens for the remainder of
the school year. This order was not entered on Martens' permanent
record and was not revealed to colleges or prospective employers.
Martens faced no criminal charges as a result of the search. At
the time of the expulsion Martens was at the end of his junior
year. Martens claims, tardily, that the expulsion kept him from
graduating a semester early, as he had planned.
Martens' complaint for a temporary restraining order has long
since become an action for damages. Martens claims, first, that
the search violated his Fourth Amendment rights and, second, that
the illegally seized evidence was improperly admitted at the
expulsion hearing before the school board. This court delayed
ruling on defendant's motion for summary judgment until after the
Supreme Court handed down its decision in New Jersey v. T.L.O.,
___ U.S. ___, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985).
Young people are not stripped of their constitutional rights
upon entering the schoolhouse. The Supreme Court has recognized
that students are protected by the proscriptions of the First,
Eighth and Fourteenth Amendments. See Tinker v. Des Moines
Independent Community School District, 393 U.S. 503, 89 S.Ct.
733, 21 L.Ed.2d 731 (1969) (First Amendment), Ingraham v. Wright,
430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (Eighth
Amendment), Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d
725 (1975) (Fourteenth Amendment). In T.L.O. the Supreme Court
rejected the argument that school administrators act in loco
parentis and are not subject to the dictates of the Fourth
Amendment. The Court held that the Fourth Amendment does apply to
searches by school officials. 105 S.Ct. at 740-41.
While honoring the notion that students have Fourth Amendment
rights, the T.L.O. Court limited those rights in order to
accommodate the school's need to preserve order and a proper
educational environment. First, the Court held that school
officials need not obtain a warrant before searching a student.
105 S.Ct. at 743. According to the Court, the warrant requirement
is unsuited to the school environment because it "would unduly
interfere with the maintenance of the swift and informal
disciplinary procedures needed in the schools." Id.
As a second concession to school officialdom, the T.L.O. Court
rejected "probable cause" as the touchstone for determining the
legality of school searches. It held that "the legality of a
search of a student should depend simply on the reasonableness,
under all the circumstances, of the search." 105 S.Ct. at 743-44.
In determining the reasonableness of a search, a court must
consider, first, whether the search was justified at its
inception and, second, whether the scope of the search was
reasonably related to the circumstances that prompted the search.
Id. at 744. The difference in the quantum of information required
under the probable cause and reasonableness standards is quite
unclear, although the Court seems to indicate that the courts
should look to the reasonableness standards of Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868,
20 L.Ed.2d 889 (1968), and its progeny for guidance.
This case differs from T.L.O. in one important respect. T.L.O.
involved the search of a student on school grounds by a school
official. In this case the disgorgement was in the presence of
and at the urging of a police officer. Apparently happening into
Baukus' office, Officer Hentig told Martens that cooperation was
indicated. At this point Martens broke a 45-minute stalemate and
emptied his pockets. Yet, the record also indicates that Hentig
had nothing to do with developing the facts that prompted Baukus
to detain Martens in her office. Nor did Hentig direct school
officials to detain and search Martens. In short, Hentig's urging
was the immediate cause of Marten's emptying his pockets, but
there is no indication that a criminal investigation was
contemplated, that this was a cooperative effort with law
enforcement, or that but for his intervention Martens would not
have been searched eventually. See T.L.O., 105 S.Ct. at 744 n. 7.
The interest that prompted the T.L.O. Court to waive the warrant
requirement and to adopt a reasonableness standard — preserving
swift and informal disciplinary procedures — would not be served
by imposing warrant and probable cause requirements here in light
of Hentig's relatively limited role. There is, here, no basis for
thinking that school official action was a subterfuge to avoid
warrant and probable cause requirements.
The school officials certainly had reasonable suspicions and,
indeed, probably probable cause to search Martens. Under the
totality-of-circumstances test of Illinois v. Gates,
462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the anonymous tip was
adequate to satisfy even the higher standard. First, the high
school was facing a substantial drug problem that had resulted in
the expulsion of many students before Martens. A tip that a
Reavis student had drug paraphernalia was thus not inherently
implausible. Second, coming from a member of the public rather
than the typical police informer from the criminal milieu, the
tip was presumptively somewhat more credible. Third, there was
substantial evidence indicating the tip was accurate. Baukus
believed that the Martens tip came from the same caller who had
accurately indicated that another student possessed marijuana.
There is some other evidence suggesting that the tipster was
indeed the same person. Both were female, lived in the same area,
had discovered their daughter in possession of marijuana, and
refused to disclose their identity or phone number. Finally, the
Martens tip was not a blanket allegation but rather outlined
Martens' role as a drug distributor, described where he kept his
drug paraphernalia and indicated that Martens had the
paraphernalia in his possession that day. The detailed nature of
the tip weighs in favor of its accuracy. Finally, even if there
were not probable cause, the reasonable suspicion led to measures
reasonably related to the objectives of the search and not
excessively intrusive. A high school junior was asked, in a
school office during school hours and in light of specific
information relating to marijuana, to empty his pockets, and he
Defendant's motion for summary judgment is granted.
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