T.A. O'B., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1984-11-07
No. 84-1098
RYDER, C.J., and LEHAN, J., concur.
459 So. 2d 1106 Florida District Court of Appeal, Second District (1984) Caution
Cited by 4 cases

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Synopsis

A minor appealed from a delinquency adjudication based on a nolo contendere plea to cannabis possession, challenging the search that discovered the drug as unconstitutional. The court reversed, holding that school officials lacked reasonable suspicion to search the student's person and wallet under the Fourth Amendment standard established for searches of students.


Holding

The court held that the search was unconstitutional because school officials lacked reasonable suspicion. The teacher never articulated what reasonable suspicion motivated the search, and the facts—the student's location in an off-limits area and possibly holding an unlit regular cigarette—were insufficient to establish reasonable suspicion under Nelson v. State and State v. D.T.W. standards.


Headnotes

[1] A search of a student's person or effects by school officials requires reasonable suspicion.

[2] A school teacher's assumption that a student knows an area is "off limits" does not establish reasonable suspicion for a search.

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Key Quotes

“the teacher who stopped and searched appellant was never asked, nor did he testify, as to what his reasonable suspicion was concerning appellant”

Establishes the critical deficiency that no reasonable suspicion was articulated or demonstrated to justify the search

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Facts & Procedural History

On January 12, 1984, school officials observed appellant and another student in an area behind the cafeteria allegedly designated as off-limits, thoug…

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Opinion of the Court
CAMPBELL, Judge.

CAMPBELL, Judge.

In this case, appellant, a child, appeals from an adjudication of delinquency based on a nolo contendere plea to a charge of possession of cannabis. Appellant had filed a motion to suppress the evidence of the cannabis, arguing that the discovery of the cannabis resulted from an unlawful search. After the trial court denied the motion and the right to appeal the denial was reserved, the plea of no contest was entered. We reverse the order of the trial court and direct that the evidence of the cannabis be suppressed and appellant discharged.

The essential facts show that at approximately 11:00 a.m. on January 12, 1984, appellant and another student were observed heading behind the cafeteria at Riv-erdale High School in Lee County, Although the area was allegedly “off limits,” there was no sign posted as such. Appellant’s knowledge of this policy was demonstrated only by the assumption of the teacher who performed the search. According to the teacher who observed appellant, though there were no signs posted, it was “general knowledge” among students that this area was off limits.

The teacher testified that the two students exhibited “suspicious” behavior, that there seemed to be an “exchange” going, and that they were startled and jumped when he arrived. The “exchange” is not further described by the teacher. One of the students had an unlit regular cigarette in his hand. The teacher could not identify which student. Students are not permitted to smoke. The teacher did not smell the odor of marijuana.

The students were asked to follow the teacher to the Dean’s office. The teacher testified if students were found in the “off limits” area, his instructions were to “check their whereabouts and if it warrants a search, bring them in.” (Emphasis supplied.) Appellant was subjected to a pat-down search which revealed nothing. Had they refused to be searched, the sheriffs department would have been notified. The students were directed to place their possessions on a table. Appellant’s wallet was picked up off the table, opened and a marijuana cigarette was found.

Appellant argues that the search conducted by the school officials was not based upon the reasonable suspicion standard which is required to sustain a search of a student’s person or affects. Nelson v. State, 319 So. 2d 154 (Fla. 2d DCA 1975); State v. D.T.W., 425 So. 2d 1383 (Fla. 1st DCA 1983); State v. F.W.E., 360 So. 2d 148 (Fla. 1st DCA 1978); § 232.256, Fla.Stat. (1983). We agree. In fact, the teacher who stopped and searched appellant was never asked, nor did he testify, as to what his reasonable suspicion was concerning appellant. Appellant was not identified as the student who had the unlit regular cigarette. The teacher also testified that while smoking regular cigarettes was prohibited on school grounds, the possession of regular cigarettes is not pursued. In response to whether such possession is permitted in school, his response was, “Not actually. But we don’t press it if they’re hid. If they’re concealed in a purse or a pocket. And, you know, if they’re brought out in the open, they’re confiscated.” Thus, by his own standard, he had not observed either student do anything that should have caused him to do more than confiscate the exposed regular cigarette from whichever student possessed it. To go further, under these circumstances, when no reasonable suspicion was articulated, subjecting the students to a pat-down search and searching the wallet was not reasonable.

This is analogous to the holding of this court in A.B. v. State, 440 So. 2d 500, 501 (Fla. 2d DCA 1983), in that the record contains virtually no information bearing on the standard, and factors to be considered in regard to the standard, as established in Nelson v. State and State v. D.T.W. Appellant’s motion to suppress should have been granted and appellant discharged.

Reversed and remanded for proceedings consistent herewith.

RYDER, C.J., and LEHAN, J., concur.


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Citator

Cited By

  • A.S. v. State, 693 So. 2d 1095 (Fla. 2d DCA 1997)
    …nd of any type or any exchange occurring while she watched the boys. Thus, the search was not justified in its inception, failing to meet the first prong of the T.L.O. test. T.L.O., 469 U.S. at 341-42,105 S.Ct. at 742-43. See also T.A O’B. v. State, 459 So. 2d 1106 (Fla. 2d DCA 1984)(holding that a teacher who testified that two students exhibited “suspicious” behavior and saw what seemed to be some type of “exchange,” was not enough to establish reasonable suspicion); A.B. v. State, 440 So. 2d 500 (Fla. 2d DC…
  • M.S. v. State, 808 So. 2d 1263 (Fla. 4th DCA 2002)
    …ses something he should not have. Id. Though school officials may have had a reasonable suspicion that the other student was “Smokin’ in the Boys’ Room,” 1 their suspicion as to the other boy could not be transferred to M.S. See T.A. O’B. v. State, 459 So. 2d 1106 (Fla. 2d DCA 1984). There was no basis for any suspicion that M.S. possessed contraband. REVERSED. WARNER and KLEIN, JJ., concur. . As originally recorded by Brownsville Station.…

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