In Re Interest of Thomas B.D.

HOWELL, Chief Judge.

Thomas D., a juvenile, was charged with simple possession of marijuana. The family court found Thomas D. to be delinquent and sentenced him to probation with special conditions. Thomas D. appeals, arguing the family court erred in denying his motion to suppress the marijuana because he was illegally searched. We affirm.

I.

At the hearing on Thomas’s motion to suppress, Lt. Nelson Brown of the Georgetown Police Department testified that he received a telephone call from the mother of Thomas D., indicating her son, who was sixteen, had not come home and was staying at the apartment of an older female.¹ Thomas’s mother asked Lt. Brown if he could go to the apartment and try to get her son to leave. Lt. Brown and two other officers proceeded to the apartment to try to locate Thomas. They knocked on the door, but no one responded. The officers waited out of sight and eventually observed Thomas leave the apartment. At that point, they stopped him. Although Lt. Brown stated that Thomas was not under arrest, the officers did perform a weapons pat-down search before placing Thomas in the police car. The officers took Thomas to his mother’s place of business, where she asked them to take him to school. While en route to Georgetown High School, Thomas asked the officers if he could smoke. Lt. Brown stated he could see a cigarette pack in Thomas’s T-shirt pocket. When they arrived at the school, Lt. Brown took the cigarette pack out of Thomas’s pocket.² At that time, he observed a “marijuana roach” inside the clear cellophane wrapper of the cigarette pack. Thomas was then placed under arrest for possession of marijuana. A further search revealed a packet of marijuana in Thomas’s wallet.

Thomas, however, testified that the officers did not pat him down when they placed him in the car. He denied that he asked to smoke, although he admitted the officers saw him smoking when they stopped him outside the apartment. According to Thomas, the officers informed him they would have to search him when they arrived at the school. Thomas also testified that the cigarette pack was in his pants pocket rather than his shirt pocket.

II.

Thomas argued below and argues again on appeal that the officers’ search of him when they took the cigarettes violated the Fourth Amendment. According to Thomas, the evidence of the marijuana should be excluded because he was not under arrest at the time the cigarette package was seized, he did not consent to the search, and the officers had no legal basis to search him. The family court judge denied the motion to suppress. From this decision Thomas D. assigns error. We disagree.

The Fourth Amendment to the United States Constitution provides that the right of the people to be free from “unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend IV. The State concedes that Lt. Brown conducted a search of Thomas D. when the officer took the pack of cigarettes from the minor’s T-shirt pocket and subsequently discovered the marijuana. However, the State contends the search was valid under the “reasonable suspicion” test articulated in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), a case involving the legality of searches of students conducted on school property by school officials. We disagree.

In T.L.O., a teacher discovered two students smoking in the lavatory in violation of a school rule. The students were taken to the principal’s office, where one student denied she had been smoking. At that point, the assistant principal demanded to see the student’s purse and found a pack of cigarettes in it. The principal also noticed a package of cigarette rolling papers in the purse. 469 U.S. at 328, 105 S.Ct. at 735-36. Suspecting that a closer examination might lead to evidence of drug use, the principal thoroughly searched the purse and discovered» a small amount of marijuana and other material which implicated the student in marijuana dealing. Id. When delinquency charges were brought against the student, she moved to suppress the evidence found in her purse on the ground the principal’s search of the purse violated the Fourth Amendment. Id. at 329, 105 S.Ct. at 736.

The Supreme Court concluded that the Fourth Amendment applies to searches conducted by school authorities. 469 U.S. at 333, 105 S.Ct. at 738. Nonetheless, the Court concluded that 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. at 340, 105 S.Ct. at 742. Thus, the Court held that school officials need not obtain a warrant before searching a student so long as the school official has reasonable grounds to suspect that the search will yield evidence of a violation of the law or school rules. 469 U.S. at 340-43, 105 S.Ct. at 742-44. However, the Court was careful to point out that this exception only applied to searches conducted by “school authorities acting alone and on their own authority. This case does not present the question of the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies, and we express no opinion on that question.” T.L.O., 469 U.S. at 341, n. 7, 105 S.Ct. at 743, n. 7.

Clearly, the search of Thomas D. was not carried out by school officials. The police were not acting on behalf of or as agents for the school when they searched Thomas D. Instead, the search was conducted by police in furtherance of a law enforcement objective — that is, the removal of Thomas D. from a surrounding detrimental to his welfare and his relocation to the parentally-approved and societally-mandated school environment. While Thomas D. was a student and the search apparently took place on school property, the search was not conducted by a school official.

The State argues the cigarettes were “contraband” and that Thomas D. was prohibited by school policy from possessing cigarettes on school property. If Thomas D. had been searched by a school official on school property based upon a reasonable suspicion of a violation of school rules, the situation might be different. However, the fact remains the warrant-less search of Thomas D. was conducted by law enforcement officers who were not connected with the school. Because the police were acting on their own authority and cannot be considered agents of the school, the reasonable suspicion standard set forth in T.L.O. is simply inapplicable to the case at bar. Thus, the question becomes whether the warrantless search of Thomas D. violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. We conclude it did not.

Generally, a warrantless search is unreasonable per se and such a search violates the Fourth Amendment prohibition against unreasonable searches and seizures. State v. Bultron, 318 S.C. 323, 457 S.E.2d 616 (Ct.App.1995), cert. denied (December 8, 1995). However, a warrantless search will withstand constitutional scrutiny where the search falls within one of several well recognized exceptions to the warrant requirement.³ The burden of establishing probable cause and the existence of circumstances constituting an exception to the general prohibition against warrantless searches is upon the prosecution. Id. at 332-33, 457 S.E.2d at 621. With respect to probable cause, the standard for probable cause to conduct a warrantless search is the same as that for a search with a warrant. Id. at 333, 457 S.E.2d at 621.

The State argues that the cigarette pack was in “plain view” in Thomas D.’s T-shirt pocket when it was seized and that the marijuana was then immediately apparent. Thus, the State contends that the search was proper under the plain view exception to the warrant requirement. We agree.

In order for evidence to be seized under the plain view exception to the search warrant requirement three things must be shown: (1) the initial intrusion which afforded the authorities the plain view was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent to the seizing authorities. State v. Culbreath, 300 S.C. 232, 237, 387 S.E.2d 255, 257 (1990).⁴ While the first two prongs of test are easily met in this case, the satisfaction of the third prong is not as readily apparent.

Thomas D. was being transported by the police at the request of his mother. This law enforcement function was under the authority of S.C.Code Ann. § 20-7-600(A) (1976),⁵ which provides that a child may be taken into custody when his “surroundings are such as to endanger his welfare.”⁶ Under section 20-7-600, the police are charged with the responsibility of protecting the children they take into custody. While section 20-7-600 states that this custodial arrangement “shall not be termed an arrest,” it is, for many purposes, the practical equivalent of an arrest.

Although it is against the law for someone to provide cigarettes to a minor, it is not against the law for a minor to possess cigarettes.⁷ Contrary to the State’s argument, the mere fact that a minor possesses cigarettes does not necessarily mean the possession by a minor resulted from the criminal act of another or himself. However, when Thomas D. was delivered to the school grounds by the officers in fulfillment of their statutory obligation, the character of the relatively innocent cigarettes changed and became an immediate threat to his continued presence on the school grounds. While the cigarettes may not have been contraband in the traditional legal sense, they nevertheless became a major obstacle to the fulfillment of the officers’ responsibilities, given that the cigarettes were prohibited by school policy. Had the officers not seized the cigarettes, their fulfillment of their obligations under section 20-7-600 would have been illusory at best, given that Thomas D. would have been suspended as soon as he entered the school with cigarettes. Thus, the illegality of Thomas D.’s possession of the cigarettes resulted from the interplay between the school policy prohibiting cigarettes and the officers’ statutory obligations under S.C.Code Ann. § 20-7-600. It would be an absurd conclusion indeed to hold otherwise and encourage an artificial compliance by the officers with their statutorily required responsibilities.

Thus, the three prongs of the “plain view” exception to the warrant requirement were met, and, under the circumstances, the officers clearly had probable cause to search Thomas D. The family court, therefore, properly denied Thomas D.’s motion to suppress.

Accordingly, for the foregoing reasons, the decision of the family court is hereby

AFFIRMED.

GOOLSBY, J., concurs in result in a separate opinion. ANDERSON, J., dissents in a separate opinion.

1 . Lt. Brown was the lieutenant in charge of the criminal investigation division in the youth services section of the Georgetown Police Department.

2 . Lt. Brown stated that his department had a program which assigned school resource officers to schools and that the department received a handbook from the school outlining school disciplinaiy policies. Through this information he was aware that school policy prohibited possession of cigarettes on school grounds. He also testified that it was illegal for someone to transfer cigarettes to a minor and that the department seizes cigarettes from minors to use as evidence in the event it prosecutes someone for transferring the cigarettes to the minor. See S.C.Code Ann. § 16-17-500 (Supp.1996) ("It shall be unlawful for any person to sell, furnish, give, or provide any minor under the age of eighteen with cigarettes.”).

3 . The recognized exceptions to the warrant requirement include (1) search incident to a lawful arrest, (2) "hot pursuit,” (3) stop and frisk, (4) automobile exceptions, (5) the "plain view” doctrine, (6) consent, and (7) abandonment. State v. Dupree, 319 S.C. 454, 462 S.E.2d 279 (1995), cert. denied, - U.S. -, 116 S.Ct. 951, 133 L.Ed.2d 875 (1996).

4 . The United States Supreme Court, however, has concluded that the plain view exception to the Fourth Amendment's warrant requirement applies even if the discovery of the evidence was not inadvertent, if the other requirements of the exception are satisfied. Horton v. California, 496 U.S. 128, 130, 110 S.Ct. 2301, 2304, 110 L.Ed.2d 112 (1990).

5 . Section 20-7-600 was repealed by 1996 Act No. 383, § 2, as of July 1, 1996. Thus, section 20-7-600 was in effect at the time of the incident and adjudicatory proceeding.

6 .Clearly, the welfare of a sixteen-year old boy is endangered when the child skips school to spend the night with an older woman.

7 . However, it is a violation of state law for a minor to possess beer, wine, or alcoholic beverages. See S.C.Code Ann. §§ 20-7-8920 & 8925 (Supp.1996).