Appeal from the Order of the Court of Common Pleas, Juvenile Division, of Erie County, No. 313 of 1985.
D. Sherwood Jones, Assistant District Attorney, Erie, for Commonwealth, appellant.
Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellee.
Tamilia, Kelly and Montgomery, JJ. Tamilia and Kelly, JJ., join in opinion. Kelly, J., files a concurring opinion in which Tamilia, J., joins.
[ 357 Pa. Super. Page 296]
This is an appeal by the Commonwealth from an order suppressing evidence seized from the school locker used by Guy Dumas. We affirm.
The facts, as found by the court below, reveal that Guy Dumas, a student at Academy High School, was observed getting a pack of cigarettes from his school locker and giving one of the cigarettes to another student. The teacher who observed this immediately notified the assistant principal, Mr. Grode. Mr. Grode approached the students, took the cigarette from the other student and took a pack of cigarettes from the person of Guy Dumas. Mr. Grode then searched the locker. Inside a jacket he found another pack of cigarettes which contained some marijuana. Although Mr. Grode testified that he suspected Guy of being involved with drugs, he was unable to state any basis for this suspicion. Mr. Grode further stated that it was because of this suspicion that he decided to search the locker.
A delinquency petition charging Guy with possession of a controlled substance was filed in juvenile court. The Master recommended that Guy's motion to suppress the marijuana be denied. Exceptions were filed and the Honorable Fred P. Anthony granted the motion. The Commonwealth appealed.
The issue is whether evidence seized from a school locker during a search by a school official is admissible in a delinquency proceeding. This precise issue has not been decided by a Pennsylvania appellate court.
The United States Supreme Court has determined that the Fourth Amendment's prohibition against unreasonable searches and seizures does apply to searches conducted by public school officials. New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985).*fn1 T.L.O. involved the search of a student's purse, which uncovered marijuana, a
[ 357 Pa. Super. Page 297]
pipe, and a variety of other materials which implicated the juvenile in marijuana dealing. To determine whether the search was reasonable, the Supreme Court balanced the student's legitimate expectations of privacy against the school's need to maintain order. The Court specifically declined to express any opinion on whether a student has a legitimate expectation of privacy in a school locker. Id. at 337, n. 5, 105 S.Ct. at 741, n. 5, 83 L.Ed.2d at 732, n. 5.
Much of the Court's discussion of the privacy factor, however, would apply equally to one's ...