J.P. v. Millard Pub. Sch.

285 Neb. 890

830 N.W.2d 453

J.P., a minor, by and through his father and next friend, A.P., appellee,

v.MILLARD PUBLIC SCHOOLS et al., appellants.

No. S–11–777.

Supreme Court of Nebraska.

May 17, 2013.

Syllabus by the Court

[285 Neb. 890]1. Administrative Law: Schools and School Districts: Appeal and Error. Appeals from the district court under the Student Discipline Act are governed by the Administrative Procedure Act.

2. Administrative Law: Final Orders: Appeal and Error. A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.

3. Administrative Law: Judgments: Appeal and Error. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

4. Constitutional Law: Schools and School Districts: Search and Seizure: Appeal and Error. In reviewing claims of Fourth Amendment violations in connection with searches conducted by school officials, an appellate court applies the same two-part standard of review utilized with respect to such issues in criminal cases. Regarding historical facts, the appellate court reviews the trial court's findings for clear error. But an appellate court independently reviews the trial court's determination of whether those facts violated the Fourth Amendment's protections.

5. Constitutional Law: Warrantless Searches: Search and Seizure: PoliceOfficers and Sheriffs. The Fourth Amendment's prohibition against unreasonable searches and seizures generally requires a law enforcement officer to have probable cause to conduct a warrantless search without consent.

6. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications.

7. Schools and School Districts: Search and Seizure: Proof. There is a two-part test for determining the reasonableness of school searches. First, the search must be justified at its inception. Second, the search must be reasonably related in its scope to the circumstances which justified the interference in the first place.

8. Schools and School Districts: Search and Seizure: Probable Cause. Under ordinary circumstances, a search of a student by a teacher or other school official will be justified at its inception when 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.

9. Schools and School Districts: Search and Seizure: Probable Cause. Reasonable grounds for a search exist when school officials reasonably believe that there is a moderate chance of discovering evidence of wrongdoing.

10. Schools and School Districts: Search and Seizure. A search is permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

11. Schools and School Districts: Statutes: Legislature. A school district is a creature of statute and possesses no powers other than those granted by the Legislature.

12. Schools and School Districts: Search and Seizure: Probable Cause. Implicit within the school-needs exception set forth in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), requiring only reasonable suspicion for the search of students on school grounds, is that school officials had the authority to conduct the search.

13. Schools and School Districts. On school grounds, school officials have authority to regulate and control student conduct.

14. Schools and School Districts: Search and Seizure: Motor Vehicles. Permitting school officials to search a student's vehicle based upon a nexus to the school because a student drove the vehicle to school is overly broad and would lead to confusing inquiries into whether vehicles parked off school grounds were sufficiently connected to the school.

15. Appeal and Error. In order to be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.

Jeff C. Miller, Duncan A. Young, and Keith I. Kosaki, Omaha, of Young & White Law Offices, for appellants.

Richard P. McGowan, of McGowan Law Firm, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

WRIGHT, J.

NATURE OF CASE

This case originated from a school official's search of a student's pickup truck that was parked on a public street across from the school. Without permission and in violation of school policy, the student retrieved a wallet and sweatshirt from his truck. When the student returned to school grounds, the assistant principal searched the student's person, backpack, and wallet. The search disclosed only a cellular telephone and a set of keys. Without the student's consent, the assistant principal then searched the truck. Drug paraphernalia was found, and the student, J.P., was suspended for 19 days.

The school board upheld the suspension. On appeal under the Student Discipline Act, Neb.Rev.Stat. § 79–254 et seq. (Reissue 2008 & Cum.Supp.2012), the district court reversed the school board's decision based on the court's conclusion that the search violated the Fourth Amendment. For the reasons set forth, we affirm.

SCOPE OF REVIEW

Appeals from the district court under the Student Discipline Act are governed by the Administrative Procedure Act. Busch v. Omaha Pub. Sch. Dist., 261 Neb. 484, 623 N.W.2d 672 (2001).

A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Id. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id.

In reviewing claims of Fourth Amendment violations in connection with searches conducted by school officials, an appellate court applies the same two-part standard of review utilized with respect to such issues in criminal cases. Regarding historical facts, we review the trial court's findings for clear error. But we independently review the court's determination of whether those facts violated the Fourth Amendment's protections. See State v. Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012). The Fourth Amendment's prohibition on unreasonable searches and seizures applies to searches conducted by state officers, including public school officials. See, Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995); New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)( T.L.O.). Thus, we conclude that our two-part standard of review is also applicable to claims of Fourth Amendment violations in school search cases.

FACTS

Search

On August 18, 2010, J.P. drove his truck to Millard West High School (Millard West). The majority of students parked on school property, but about 15 percent parked along 176th Avenue, which bordered the east side of the campus. J.P. parked on 176th Avenue in front of a private residence located across the street from Millard West.

J.P. arrived at school around 7:45 a.m. and went to his first class. Afterward, he tried to leave the building. Lori Bishop, a hall monitor, saw J.P. and a classmate approach the front door. Bishop asked where they were going, and the classmate said he had to get a book. Bishop allowed the classmate to leave but told J.P. to remain in the building.

Later, a parking lot security person, Dennis Huey, saw J.P. walk from the school building with a female student. Huey drove up next to the two students and asked them where they were going and why they were outside. They responded that they needed to get some things out of J.P.'s truck. Huey followed them to the truck and observed them until they reentered the building. J.P. testified at the disciplinary hearing that he went directly to his truck from the school building and that Huey watched him walk to the truck, get his wallet and sweatshirt, and immediately return to school.

J.P. and the female student returned through the front doors of the school at 9:46 a.m., and Bishop asked why they had been outside. J.P. took his wallet from his back pocket and said he had to go out and get it. The students said Huey had given them permission to leave the building. However, when Bishop asked Huey whether he gave J.P. permission to leave the building, Huey stated that he had not.

Around 9:50 a.m., Bishop radioed Harry Grimminger, an assistant principal, and reported the incident. Grimminger became suspicious and decided to investigate. A school security guard escorted J.P. to Grimminger's office, and J.P. spoke with Grimminger alone. Even when challenged by Grimminger, J.P. continued to claim he had permission to leave the building.

Grimminger then decided to search J.P.'s person and his truck. He told J.P. to empty his pockets and searched his backpack. J.P. removed his cellular telephone, keys, and wallet and put them on Grimminger's desk. Grimminger did not find any contraband. He returned J.P.'s wallet and cellular telephone, but told J.P. his truck would be searched. When J.P. said his father did not want the truck to be searched, Grimminger responded that J.P.'s father would not make that decision. At Grimminger's request, a school resource officer then joined...