"[T]he child’s age, history, and school record, the prevalence and seriousness of the problem in the school to which the search was directed, the exigency to make the search without delay, and the probative value and reliability of the information used as a justification for the search." State v. Brooks, 43 Wash. App. 560, 567-68, 718 P.2d 837 (1986) (quoting McKinnon, 88 Wash.2d at 81, 558 P.2d 781 ). Although all of the foregoing factors need not be found, their total absence will render the search unconstitutional.
B.A.S., 103 Wn. App. at 553. State v. McKinnon, 88 Wn.2d 75, 81, 558 P.2d 781 (1977); State v. Brooks, 43 Wn. App. 560, 567-68, 718 P.2d 837 (1986). C.Z.-J. contends that the search was not reasonable because the incident of possession three weeks earlier was too stale to support a reasonable suspicion of current possession. He cites cases involving investigative detentions by police under Terry v. Ohio, as instructive.
FACTS B.A.S. does not assign error to any of the commissioner's findings of fact and they are therefore verities on appeal. State v. Brooks, 43 Wn. App. 560, 564, 718 P.2d 837 (1986). B.A.S. attends Auburn Riverside High School, which has a closed campus policy.
"[T]he child's age, history, and school record, the prevalence and seriousness of the problem in the school to which the search was directed, the exigency to make the search without delay, and the probative value and reliability of the information used as a justification for the search." State v. Brooks, 43 Wn.App. 560, 567-68, 718 P.2d 837 (1986) (quoting McKinnon, 88 Wn.2d at 81). Although "all the factors need not be found, their total absence will render the search unconstitutional."
One exception to the warrant requirement, under both the federal and state constitutions, is a search conducted in a school setting by school authorities. New Jersey v. T.L.O., 469 U.S. 325, 341-42, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985); State v. Brooks, 43 Wn. App. 560, 563-64, 718 P.2d 837 (1986). ¶7 Under the "school search" exception, school officials may search a student's belongings without a warrant if, under all the circumstances, the search is reasonable.
Division One of our court, for example, (1) has noted that both our State Supreme Court and the United States Supreme Court employ the same "reasonable grounds," not "probable cause," standard in the context of school searches; and (2) concluded that article 1, section 7 affords students no greater protections from searches by school officials than is guaranteed by the Fourth Amendment. State v. Brooks, 43 Wn. App. 560, 567-68, 718 P.2d 837 (1986). In addition, the Washington Legislature has expressly authorized a principal's search of a student's possessions on "reasonable grounds to suspect that the search will yield evidence of the student's violation of the law or school rules."
"the child's age, history, and school record, the prevalence and seriousness of the problem in the school to which the search was directed, the exigency to make the search without delay, and the probative value and reliability of the information used as a justification for the search."State v. Brooks, 43 Wn. App. 560, 567-68, 718 P.2d 837 (1986) (quoting State v. McKinnon, 88 Wn.2d 75, 81, 558 P.2d 781 (1977)). ¶17 Mr. Brown and Mr. Duke first argue that there was no emergency sufficient to justify the school officials' warrantless search.
T.L.O., 469 U.S. at 333 n. 2. Nevertheless, in State v. Brooks, 43 Wn. App. 560, 568, 718 P.2d 837 (1986), the Court of Appeals analyzed McKinnon and Kuehn and said, "Accordingly, since the holding in T.L.O. is consistent with our Supreme Court's holding in McKinnon, we conclude that article 1, section 7 affords students no greater protections from searches by school officials than is guaranteed by the Fourth Amendment." The school district points to this one sentence to say we should adopt whole cloth the federal analysis with regards to both student searches and student drug testing.
We disagree. McKinnon was decided in 1977, eight years prior to the United States Supreme Court's decision in T.L.O. Notwithstanding that the Washington Court of Appeals upheld the McKinnon test as consistent with T.L.O., see State v. Brooks, 718 P.2d 837, 841 (Wash.Ct.App. 1986), the prosecution fails to provide any compelling reasons for engrafting the McKinnon test onto Hawai`i's search and seizure jurisprudence. Regardless, even applying, for the sake of argument, the McKinnon factors to the instant case, we are still not persuaded that school officials had reasonable suspicion to search Minor.
See e.g., Wynn v. Board of Education of Vestavia Hills, 508 So.2d 1170 (Ala. 1987); Shamberg v. State, 762 P.2d 488 (Alaska Ct.App. 1988); In the Matter of the Appeal in Pima County Juvenile Action No. 80484-1, 152 Ariz. 431, 733 P.2d 316 (App. 1987); In re William G., 40 Cal.3d 550, 709 P.2d 1287, 221 Cal.Rptr. 118 (1985); People in Interest of P.E.A., 754 P.2d 382 (Colo. 1988); R.D.L. v. State, 499 So.2d 31 (Fla.Dist.Ct.App. 1986); In re Devon T., 85 Md. App. 674, 584 A.2d 1287 (1991); Commonwealth v. Carey, 407 Mass. 528, 554 N.E.2d 1199 (1990); State v. Michael G., 106 N.M. 644, 748 P.2d 17 (1987); Matter of Gregory M., 82 N.Y.2d 588, 627 N.E.2d 500, 606 N.Y.S.2d 579 (1993); In re S.F., 414 Pa. Super. 529, 607 A.2d 793 (1992); Irby v. State, 751 S.W.2d 670 (Tex.Ct.App. 1988); State v. Brooks, 43 Wn. App. 560, 718 P.2d 837 (1986); State v. Joseph T., 175 W. Va. 598, 336 S.E.2d 728 (1985). Turning to the facts at bar, because the principal was not obligated to first obtain a warrant to search minor's purse, the first and foremost query is whether there were reasonable grounds for suspecting that the search of Minor's purse would turn up evidence of marijuana use; stated differently, the query is whether the search was "justified at its inception."