In re L.A.W.

131 Nev./ Advance Opinion 24
IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF LAW., A MINOR. No. 63683
L.A.W.,
Appellant,
FILED
vs. MAY 0 7 2015
THE STATE OF NEVADA, TRAC E K. LINDEMAN
Respondent. CLE O. SUPPE ■ ' T
BY E S.)1)-L-'
"iijB
CHIEF DEP ERK
Appeal from a district court order adjudicating the minor
appellant delinquent on one count of possession of a controlled substance
with intent to sell. Eighth Judicial District Court, Family Court Division,
Clark County; William 0 Voy, Judge.
Reversed and remanded.
Philip J. Kohn, Public Defender, and Jennifer A. Fraser, Deputy Public
Defender, Clark County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Jonathan E. VanBoskerck, Chief Deputy District
Attorney, and Daniel Westmeyer, Deputy District Attorney, Clark County,
for Respondent.
BEFORE PARRAGUIRRE, SAITTA and PICKERING, JJ.
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OPINION
By the Court, PICKERING, J.:
This caseS presents the question of whether the State can
condition a prospective minor student's access to public education on that
student's waiver of his right to be free from unreasonable search and
seizure under the Fourth Amendment of the Federal Constitution and
Article 1, § 18 of Nevada's Constitution. The State claims that the student
had educational options open to him that made his consent to random
searches of his person and property in order to attend public high school in
Las Vegas voluntary, but the record does not support this claim. We
therefore reverse and remand to the district court with instructions that
the court suppress any evidence resulting from the search of the minor,
and to conduct any further proceedings accordingly.
I.
Due to previous behavioral problems, the appellant, L.W.,
then a minor, was told he was being given a "last chance" to enroll in
Legacy High School (Legacy) but only on a trial basis and on the condition
that he sign a "Behavior Contract." Among other conditions, the Behavior
Contract stipulated that:
The following information lists the terms and
conditions upon which [L.W.'s] enrollment in
Legacy High School is based[:]
7. I realize that I am subject to random searches
by school administration.
Both L.W. and his father signed the document.
The school's administration decided to conduct a search of all
its trial enrollees. During the search of L.W., a Legacy teacher found $129
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and a large plastic bag, containing two smaller bags with an eight-ball
imprinted on them, each holding a "green, leafy substance." At the
administration's direction, a campus police officer conducted a field test of
the substance in one of the smaller bags, which came back positive for
marijuana. The officer advised L.W. of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), and, after questioning him, placed the boy
under arrest.
The State charged L.W. with possession of a controlled
substance with intent to sell. At a contested hearing on the charges
against him, L.W. objected to the admission of evidence resulting from the
search in question—specifically, testimony by the searching teacher and
the campus police officer describing the fruits of the search, including
statements that L.W. allegedly made explaining how he came to be
holding the cash and baggies—but the Hearing Master declined to
suppress on the grounds that L.W. had consented to the search via the
Behavior Contract. Ultimately, the Hearing Master found that the "green
leafy substance" was marijuana, that L.W. carried it with the intent to
sell, and judged him guilty of the State's charge. The district court
affirmed the Hearing Master's findings of fact, conclusions of law, and
recommendations, and formally adjudicated L.W. a delinquent. L.W.
appeals.
In many ways, public schools act "in loco parentis," and school
administrations are therefore granted certain authority, which "permitls]
a degree of supervision and control that could not be exercised over free
adults." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995). But
this authority is not carte blanche, and "lilt can hardly be argued
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that. . . students. . . shed their constitutional rights . . . at the
schoolhouse gate." Robinson v. Bd. of Regents of E. Ky. Univ., 475 F.2d
707, 709 (6th Cit. 1973) (quoting Tinker v. Des Moines Sch. Dist., 393 U.S.
503, 506 (1969)) (third alteration in original). Thus, a warrant- and
suspicion-less search of a student, of the sort that the Legacy
administration conducted upon L.W., is presumptively unreasonable,
absent that student's consent (or other applicable exception, of which the
State's briefing concedes there are none). See New Jersey v. T.L.O., 469
U.S. 325, 341-42 (1985) (holding that a school's search of a student is
reasonable if, at its inception, 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"); State v. Ruscetta, 123
Nev. 299, 302, 163 P.3d 451, 453-54 (2007) (holding warrantless searches
presumptively unreasonable absent valid consent). To qualify,
constitutionally speaking, such consent must be both intelligently and
voluntarily given. Ruscetta, 123 Nev. at 302, 163 P.3d at 454.
Courts of other jurisdictions have held that the State cannot
condition access to public education on a prospective student's
renunciation of his right to be free from otherwise unconstitutional
searches and seizures—even in the context of higher education—because,
in light of the draconian result of a student's failure to give consent, such
clauses amount to contracts of "adhesion" and therefore lack the requisite
earmarks of intelligence and voluntariness. Smyth v. Lubbers, 398 F.
Supp. 777, 788 (W.D. Mich. 1975); see Robinson, 475 F.2d at 709 ("[T]he
state, in operating a public system of higher education, cannot condition
attendance at one of its schools on the student's renunciation of his
constitutional rights."); Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 156
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(5th Cir. 1961) (holding that a tax-supported college "cannot condition the
granting of even a privilege upon the renunciation of the constitutional
right to procedural due process"); Morale v. Grigel, 422 F. Supp, 988, 999
(D.N.H. 1976) (stating that a school could not condition a student's
attendance upon a waiver of constitutional rights); Moore v. Student
Affairs Comm. of Troy State Univ., 284 F. Supp. 725, 729 (M.D. Ala. 1968)
(recognizing that a college may not condition admission on a waiver of
constitutional rights); Devers ix S. Univ., 712 So. 2d 199, 206 (La. Ct. App.
1998) (noting the unconstitutionality of conditioning college dormitory
occupancy on waiver of constitutional rights); cf. Tinker, 393 U.S. at 506
(noting that students retain First Amendment rights while attending
school). But this reasoning does not pertain where a student seeks to
pursue special activities beyond education because "Daly choosing to 'go out
for the team,' or to engage in other voluntary, nonathletic activities, such
students also "voluntarily subject themselves to a degree of
regulation. . . higher than that imposed on students generally." Vernonia,
515 U.S. at 657. And so there is a line of cases wherein the United States
Supreme Court has upheld random and suspicion-less searches of certain
minor students as a condition of their participation in said
extracurriculars. Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie
Cnty. v. Earls, 536 U.S. 822, 831 n.3, 834 (2002) (upholding drug testing of
students who wished to participate in extracurricular activities); Vernonia,
515 U.S. at 664-65 (upholding random urinalysis requirement for
participation in interscholastic athletics in schools).
The State argues that L.W.'s concession in his Behavior
Contract—"I realize that I am subject to random searches by school
administration"—amounted to his free and intelligent consent to
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otherwise unconstitutional searches. According to the State, though
"[L.W.] may have faced a difficult choice about whether to enroll in school,
he had other options and was not forced into signing a behavior contract."
And the existence of these "other options," the State argues, takes the
circumstances of L.W.'s consent outside the rubric of Robinson and its
progeny, and into the narrower class of cases exemplified by Vernonia and
Earls.
Both Vernonia and Earls ultimately rest on the "special needs"
exception to the Fourth Amendment's warrant requirement, Earls, 536
U.S. at 829, 836-37; Vernonia, 515 U.S. at 653, an exception that the
State, in its briefing, confessed has no applicability here—
"[A] dministrators were not relying on a special need exception to search
[L.W.] in the instant case; they were relying on [his] consent." But even
setting aside the State's waiver of the special needs exception, and
Vernonia and Earls' poor fit to its remaining argument, see Edwards v.
Emperor's Garden Rest., 122 Nev. 317, 330, 130 P.3d 1280, 1288 (2006)
(finding waiver of an argument where a party "neglected [its]
responsibility to cogently argue" the issue), in terms of the availability of
the "other options" the State claims were available to L.W., the record
simply does not support their existence—the State did not proffer any
such evidence before the juvenile Hearing Master or juvenile court, nor did
the State make any argument on such grounds below; the juvenile
Hearing Master likewise made no mention of the availability of
alternative schooling to L.W. in its discussion of the supposed
voluntariness of the consent to search. Indeed, the only mention in the
appellate record of the availability of such "other options" to which the
State can point is a statement by the juvenile court that, because of L.W.'s
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age, "[hie could have [gone] over to Adult Ed alternative school as an
alternative at St. Louis."
This statement by the juvenile court appears to have been
based upon its own understanding of Nevada's educational system and not
upon any evidence presented by the State, as the full exchange
demonstrates:
THE COURT: He's seventeen. He could have
[gone] over to Adult Ed alternative school as an
alternative. . . .
[L.W.'s counsel]: Yeah I'm not—I'm not sure about
that. So—
THE COURT: I am Now, if he was sixteen your
argument would be. . . stronger. But seventeen
there are other options than going back to regular
school.
And, the juvenile court judge's anecdotal assurance does not qualify as
supporting evidence of the supposed educational options available to L.W.
because it was neither "[g]enerally known within the territorial
jurisdiction of the trial court," as L.W.'s counsel's uncertainty
demonstrates, nor can we say it is "Eclapable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned," because the district court made no mention of the sources he
relied upon for such information. See NRS 47.130; see also NRS 47.150.
There being no meaningful evidence that L.W. had alternative
public education available to him, the circumstances of his appeal differ
from those of the students in either Vernonia and Earls—he asked for
nothing more than mere access to a public education. Thus, and despite
the State's arguments to the contrary, nothing sets L.W. apart from the
public school student body as a whole; put differently, if the State may
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condition L.W.'s access to public education upon his waiver of his
constitutional right to be free from unreasonable search and seizure, it
could seemingly do the same for any prospective public school student.
This is an outcome that Vernonia and Earls, even assuming their
pertinence in the context of consent searches, plainly do not sanction. See
Earls, 536 U.S. at 830 (noting that the Court's opinions "did not simply
authorize all school drug testing, but rather conducted a fact-specific
balancing"); Vernonia, 515 U.S. at 665 (cautioning "against the
assumption that suspicionless drug testing will readily pass constitutional
muster in other contexts"). The facts of L.W.'s appeal thus fall squarely
under the Robinson line of cases, wherein a state conditioned attendance
at one of its schools on the student's renunciation of his or her
constitutional rights.
Even admitting so, the State urges this court to ignore
Robinson, et al., and instead follow an Oregon appellate court case, State
a rel. Juvenile Dep't v. Stephens, 27 P.3d 170 (Or. Ct. App. 2001), which
holds inappositely. The circumstances of Stephens are undeniably similar
to those at hand—a youth with behavioral problems signed a
"Family/School Agreement," which included a clause whereby the youth
agreed to "[s]ubmit to random searches of possessions, lockers, [and]
person," as a condition of his enrollment in a "last chance" school. Id. at
172 (emphasis omitted). The Oregon Court of Appeals determined that
the youth's acquiescence to that clause amounted to his constitutionally
valid consent because he could have opted not to complete his education
and was therefore not "obligated to attend [the school]." See id. at 174
(citing ORS 339.030, which provides exemptions from compulsory school
attendance, as evidence of the lack of the youth's obligation). Thus,
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according to the Oregon appellate court, the youth's circumstances in
choosing to complete his public education were analogous to those "where,
in exchange for a desired benefit, a citizen must agree to a search of his or
her person or belongings." Id. (citing to State v. Brownlie, 941 P.2d 1069
(Or. Ct. App. 1997), wherein the same court held that a defendant's
consent to x-ray screening of her purse could be inferred from her conduct
in placing it on a conveyor belt at a courthouse, and State v. Kelsey, 679
P.2d 335 (Or. Ct. App. 1984), where it held that defendant impliedly
consented to a pre-boarding search at terminal gate by attempting to
board an airplane).
But, even assuming that a minor's access to public education
is simply an amenity that can be likened to adults' access to courthouses
and airplanes, it is not clear that the State may always condition its grant
of some "desired benefit" upon an individual's waiver of a constitutional
right. See Cafeteria & Rest. Workers Union, Local 473, AFL-CIO v.
McElroy, 367 U.S. 886, 894 (1961) ("One may not have a constitutional
right to go to Bagdad, but the Government may not prohibit one from
going there unless by means consonant with due process of law." (internal
quotations omitted)); Dixon, 294 F.2d at 156 (acknowledging that the fact
that a right is not constitutionally protected does not necessarily excuse a
failure of due process in the State's infringement thereupon). And, in fact,
a minor's access to publicly funded education is not as easily analogized to
those privileges as the Oregon appellate court suggests—while the
Supreme Court has stopped short of naming the right to attend public
school as one fundamental to citizenship, it has indicated that it views
public education to be the foundation of meaningful democratic
participation. See Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 493
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(1954) supplemented sub nom. Brown v. Bd. of Educ. of Topeka, 349 U.S.
294 (1955). And this is because, according to the Court, public education
is "a principal instrument in awakening the child to cultural values, in
preparing him for later professional training, and in helping him to adjust
normally to his environment," so much so, in fact, that "it is doubtful that
any child may reasonably be expected to succeed in life if he is denied the
opportunity of an education." Id. Thus, "the gift of a final chance in the
public school system," to borrow the State's phrase, is in fact less luxury
than necessity, and the improbability of a minor's future positive prospects
absent any access to state sponsored education, indeed, the reality that he
or she may never become a "good citizen" without it, see id., draws into
question whether a waiver of the constitutional right to be free from
unreasonable search and seizure upon which such access is conditioned
can ever be given "freely," as our precedent requires. See Ruscetta, 123
Nev. at 302, 163 P.3d at 453-54.
We are moreover mindful that a school administration's
responsibility for "educating the young for citizenship is reason for
scrupulous protection of Constitutional freedoms of the individual, if we
are not to strangle the free mind at its source and teach youth to discount
important principles of our government as mere platitudes." W. Va. State
Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943). This seems especially
true in the "last chance" context, where the young minds being given a
"last chance" at a public high school education may also be those on the
brink of entering into lifestyles antithetical to ordered society, for whom
school administrators and campus police may be the most salient point of
contact with the State. It is critical that such youth learn, through their
interaction with these authority figures, that the State is fair, just, and
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trustworthy. See Ross L. Matsueda & Kevin Drakulich, Perceptions of
Criminal Injustice, Symbolic Racism, and Racial Politics, 623 Annals Am.
Acad. Pol. & Soc. Sci. 163, 164 (2009) ("If citizens view the system of
justice [as untrustworthy], the social and political system is likely to be
volatile and unstable ") A school administration's coercion of a child's
"consent" to unconstitutional searches by holding the threat of closed
educational doors over his or her head does not facilitate the desired
perception of justice.
In light of these hefty considerations, we conclude that the
State has failed to demonstrate that L.W.'s consent to search was
voluntary—there was no record evidence that public education options
beyond Legacy were available to him, and the State could not
constitutionally condition L.W.'s access to a public education on his waiver
of his right to be free from unreasonable search and seizure. The district
court therefore should have suppressed the fruits of the administration's
search of L.W., including, specifically, the testimony of the searching
teacher and campus police officer. See Torres v. State, 131 Nev., Adv. Op.
2, 341 P.3d 652, 657 (2015) (noting that "[c]ourts must also exclude
evidence obtained after the constitutional violation as 'indirect fruits of an
illegal search or arrest' (quoting New York v. Harris, 495 U.S. 14, 19
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(1990))). Accordingly, we reverse and remand to the district court for
proceedings consistent with this opinion
J.
We concur:
J.
—94)teir
Parraguirre
J.
Saitta
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