IN THE SUPREME COURT by gioAqGh

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									                   IN THE SUPERIOR COURT
           OF THE COMMONWEALTH OF PENNSYLVANIA


MATTHEW SMITH                   :
APPELLANT                       :
                                :
                                :      CASE NO. 05-001
VS.                             :
                                :
                                :
COMMONWEALTH OF                 :
PENNSYLVANIA,                   :
RESPONDENT




                        MAIN BRIEF OF APPELLANT
                            MATTHEW SMITH




                                                         STUDENT ONE
                                                         STUDENT TWO

                                              CO-COUNSEL FOR APPELLANT




DATED: MARCH 19, 2005
                   TABLE OF CONTENTS

                                       Page No.

Facts                                   3

Issues                                  4

Analysis                                4

         Issue 1                        4

         Issue 2                        5

         Issue 3                        6

Conclusion                              7




                                             2
                                            FACTS
        Matt Smith is a student a Ben Franklin High School, concentrating in electrical
vocational education in addition to general high school curriculum. Matt is an honor student
and has been on the honor roll every marking period since his freshman year. For the past
six months, Matt has been working for an electrical contractor and supplier. His duties
include keeping the shop stocked, tending to customers, and working on job sites. His
employer, impressed with his performance, gave Matt an electrician’s knife similar to the one
he uses. The knife is a tool composed of several blades and specialty tools commonly used
by electricians.
        Proud of his accomplishment at work, Matt decided to make the tool part of his
vocational school toolbox. At school, he demonstrated the knife/tool to a few of his
classmates, who possess the same kind of instrument with written permission of their
instructor. Matt’s display of his alleged knife/tool did not come to the attention of any
school officials or his instructors.
        Later the same day, the shop instructor announced that there had been several
alleged incidents of drug sales in the vocational wing of the school. As a result of this, all of
the students in the vocational wing were taken to the auditorium for a presentation by a state
police officer. Meanwhile two other officers searched all the lockers in the vocational wing
without being accompanied by anyone.
        During the search, state troopers while searching Matt’s locker found no drugs but
discovered Matt’s alleged knife/tool with no corresponding written authorization (a note
from the instructor allowing him to possess such as object). Criminal charges were filed
against Matt for violating 18 Pa C.S.A. 912, Possession of a Weapon on School Property and
he was found guilty. He was also expelled by the Scenic Valley School Board pursuant to 24
PS. 13-1317.2, Possession of Weapons Prohibited.




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               STATEMENT OF THE QUESTIONS INVOLVED

1. Does “several incidents of alleged drug sales” constitute a reasonable suspicion to warrant
the searches of all student lockers?
        Suggested Answer: No
2. Does the manner in which the search was conducted, i.e. of the entire vocational wing,
with students not being present during the search of their lockers, reasonably related in
scope to the circumstances that justified the interference in the first place?
        Suggested Answer: No
3. Does a school’s search of a student’s locker for drugs assuming there existed a
“reasonable suspicion”, which reveals no drugs but other illegal items, i.e. a weapon, violate
the student’s Fourth Amendment protection against unreasonable search and seizure?
        Suggested Answer: Yes


                                          ANALYSIS

1. Does “several incidents of alleged drug sales” constitute a reasonable suspicion to
warrant the searches of all student lockers?
        The United States Supreme Court in the case of New Jersey v. T.L.O. 105 S. Ct. 733
(1985), established a two-part test to assess the reasonableness of any school search, within
the confines of the Fourth Amendment protection against unreasonable search and seizure,
guaranteed in the U.S. Constitution. The first step of the test is to determine whether the
action was justified in its inception.
        The application of this principle was tested in Commonwealth v. Cass, 666 A.2d 313
(1995) when the Court held that school officials did not have the “necessary reasonable
suspicion” to conduct the search of a students locker. The Court held that the search was
not justified at its inception because the school officials only heard vague reports that
students were using and dealing drugs. The record did not contain any evidence of
particular incidents. The Court held that vague, unsubstantiated reports do not amount to
the reasonable suspicion that was needed to conduct the search. The Court also noted that
“simply because students carry beepers, make frequent phone calls and carry money, does
not indicate that the student is involved in drug dealing.”



                                                                                                 4
        Another example is the case of In re Dumas 515 A.2d 984 (1986), in which the
Court held that fact that a person possesses cigarettes does not mean a person is likely to
possess marijuana when the Assistant Principal was unable to articulate any reasons for that
suspicion. The Court held that the further search that produced the marijuana violated the
Fourth Amendment of the Constitution.
        In the case at hand, there were only vague allegations of drug sales, with no specific
incidents being relied upon to establish the “necessary and reasonable suspicion”. Under
those facts and without specific incidents, the search fails the first step of the test and thus is
not “reasonable”, thereby violating the Fourth Amendment.


2. Does the manner in which the search was conducted, i.e. of the entire vocational
wing, with students not being present during the search of their lockers, reasonably
related in scope to the circumstances that justified the interference in the first place?
We submit that it is not appropriate.

        The second step of the test used to test the “unreasonableness” of a search as set
forth in New Jersey v. T.L.O. 105 S. Ct. 733 (1985) is that “it must be determined whether
the search as conducted was reasonably related in scope to the circumstances that justified
the interference in the first place.” Whether a particular search meets the “reasonableness
standard” is judged by balancing its intrusion on the individual’s Fourth Amendment
interests against its promotion of legitimate governmental interests” Veronia School District
v. Acton, 115 S. Ct. 2386 (1995). The question becomes whether a search of all student
lockers without witnesses other than law enforcement officials present, represents an
unreasonable intrusion not justified under the circumstance.
        As illustrated in the case of Commonwealth v. Cass, 666 A2d 313 (1995), it was held
that Mr. Cass had a reasonable expectation of privacy in his locker, and that the Code of
Student Conduct specifically stated that a school official must have reasonable suspicion to
believe that contraband will be found in a locker before a locker can be searched. This
demonstrates that the school district recognized that a student has at least a minimal
expectation of privacy in his or her locker. This conclusion is further reinforced by the fact
that the Code of Student Conduct also allowed the student to be present for the search.
        In the case at hand, no one was present during the search other than the two state
troopers. There was no threat of immediate danger to the lives of other students, being that


                                                                                                  5
the search was for drugs. Therefore, someone, a school official or Matt Smith should have
been present for the search. If unwitnessed searches are permitted, where does the extent of
the search stop, if no one is present to make sure the business of the search at hand is
completed properly.
        Do a few alleged incidents of drug sales justify a school wide locker search? The
answer is no. Such a broad approach is “unreasonable” and thus prohibited by the Fourth
Amendment.


3. Does a school’s search of a student’s locker for drugs, assuming that there existed
a “reasonable suspicion”, which reveals other illegal items, i.e. a weapon, violate the
student’s Fourth Amendment protection against unreasonable search and seizure?
        In the case of New Jersey vs. T.L.O. 105 S. Ct. 733 (1985), T.L.O. was caught
smoking cigarettes in the school lavatory and was confronted by a teacher. When asked by a
school official if she was smoking, she denied that she was. The school official demanded to
see her purse. Upon opening the purse, he found a pack of cigarettes. He then noticed a
package of cigarette rolling papers commonly associated with the use of marijuana. He
continued to search the purse and found marijuana, a pipe, plastic bags, a fairly substantial
sum of money, and a list of people who owed T.L.O. money, and two letters implicating her
in drug dealing.
        To resolve this issue, the Court observed, that actually two searches were involved.
The first search for cigarettes was founded on reasonable suspicion, which provided “fuel”
(suspicion) in the form of the rolling papers to continue with the search, which ultimately led
to marijuana and other incriminating evidence.
        Although the second search produced incriminating evidence, the propriety of the
first search was crucial since it was the linchpin to the seizure of the marijuana.
        Another illustration of this analysis is in the appeal of In re S.K. 607 A.2d 793
(1986), where one pocket was patted and produced a pack of cigarettes which justified
further searching of the other pockets, which produced drugs.
        In this case, the searching for drugs was justified, assuming the proper reasonable
suspicion existed. But once the search did not produce drugs, which in this case it did not, it
should have ended. The discovery of the tool/weapon was not related to the search for




                                                                                                6
drugs. Under these circumstances the search was “unreasonable”, based on the expectation
of privacy provided by the Fourth Amendment.



                                     CONCLUSION

       In this case the police found it necessary to search student lockers based on vague
unsubstantiated reports of drug sales. As the locker was being searched, no witnesses other
than the two law enforcement officials were present, and the circumstances of the search did
not justify the interference with the student’s expectation of privacy in his locker. Once
drugs were not found in his locker, a second search, which was unreasonable, produced the
tool/knife.
       The Fourth Amendment has been violated and the evidence obtained is inadmissible,
thus the conviction for the possession of a weapon charge should be overturned and he
should be allowed to return to school.




                                            Respectfully submitted,


                                            __________________________
                                            STUDENT ONE


                                            __________________________
                                            STUDENT TWO

                                            CO-COUNSEL FOR APPELLANT




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