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JUSTICE WHITE delivered the opinion of the Court.
JUSTICE BLACKMUN, concurring in the judgment.
JUSTICE STEVENS, with whom JUSTICE MARSHALL joins, and with whom JUSTICE BRENNAN joins as to Part I, concurring in part and dissenting in part.
JUSTICE POWELL, with whom JUSTICE O'CONNOR
joins, concurring.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring
in part and dissenting in part.
I fully agree with Part II of the Court's opinion. Teachers, like
all other government officials, must conform their conduct to
the Fourth Amendment's protections of personal privacy and personal
security. As JUSTICE STEVENS points out, post, at 373-374, 385-386,
this principle is of particular importance when applied to schoolteachers,
for children learn as much by example as by exposition. It would
be incongruous and futile to charge teachers with the task of
embuing their students with an understanding of our system of
constitutional democracy, while at the same time immunizing those
same teachers from the need to respect constitutional protections.
See Board of Education v. Pico, 457 U.S. 853, 864-865 (1982) (plurality
opinion); West Virginia State Board of Education v. Barnette,
319 U.S. 624, 637 (1943).
I do not, however, otherwise join the Court's opinion. Today's
decision sanctions school officials to conduct full-scale searches
on a "reasonableness" standard whose only definite content
is that it is not the same test as the "probable cause"
standard found in the text of the Fourth Amendment. In adopting
this unclear, unprecedented, and unnecessary departure from generally
applicable Fourth Amendment standards, the Court carves out a
broad exception to standards that this Court has developed over
years of considering Fourth Amendment problems. Its decision is
supported neither by precedent nor even by a fair application
of the "balancing test" it proclaims in this very opinion.
I
Three basic principles underly this Court's Fourth Amendment jurisprudence.
First, warrantless searches are per se unreasonable, subject only
to a few specifically delineated and well-recognized exceptions.
See, e. g., Katz v. United States, 389 U.S. 347, 357 (1967); accord,
Welsh v. Wisconsin, 466 U.S. 740, 748-749 (1984); United States
v. Place, 462 U.S. 696, 701 (1983); Steagald v. United States,
451 U.S. 204, 211-212 (1981); Mincey v. Arizona, 437 U.S. 385
(1978); Terry v. Ohio, 392 U.S. 1, 20 (1968); Johnson v. United
States, 333 U.S. 10, 13-14 (1948). Second, full-scale searches
-- whether conducted in accordance with the warrant requirement
or pursuant to one of its exceptions -- are "reasonable"
in Fourth Amendment terms only on a showing of probable cause
to believe that a crime has been committed and that evidence of
the crime will be found in the place to be searched. Beck v. Ohio,
379 U.S. 89, 91 (1964); Wong Sun v. United States, 371 U.S. 471,
479 (1963); Brinegar v. United States, 338 U.S. 160, 175-176 (1949).
Third, categories of intrusions that are substantially less intrusive
than full-scale searches or seizures may be justifiable in accordance
with a balancing test even absent a warrant or probable cause,
provided that the balancing test used gives sufficient weight
to the privacy interests that will be infringed. Dunaway v. New
York, 442 U.S. 200, 210 (1979); Terry v. Ohio, supra.
Assistant Vice Principal Choplick's thorough excavation of T.
L. O.'s purse was undoubtedly a serious intrusion on her privacy.
Unlike the searches in Terry v. Ohio, supra, or Adams v. Williams,
407 U.S. 143 (1972), the search at issue here encompassed a detailed
and minute examination of respondent's pocketbook, in which the
contents of private papers and letters were thoroughly scrutinized.
1 Wisely, neither petitioner
nor the Court today attempts to justify the search of T. L. O.'s
pocketbook as a minimally intrusive search in the Terry line.
To be faithful to the Court's settled doctrine, the inquiry therefore
must focus on the warrant and probable-cause requirements.
A
I agree that schoolteachers or principals, when not acting as
agents of law enforcement authorities, generally may conduct a
search of their students' belongings without first obtaining a
warrant. To agree with the Court on this point is to say that
school searches may justifiably be held to that extent to constitute
an exception to the Fourth Amendment's warrant requirement. Such
an exception, however, is not to be justified, as the Court apparently
holds, by assessing net social value through application of an
unguided "balancing test" in which "the individual's
legitimate expectations of privacy and personal security"
are weighed against "the government's need for effective
methods to deal with breaches of public order." Ante, at
337. The Warrant Clause is something more than an exhortation
to this Court to maximize social welfare as we see fit. It requires
that the authorities must obtain a warrant before conducting a
full-scale search. The undifferentiated governmental interest
in law enforcement is insufficient to justify an exception to
the warrant requirement. Rather, some special governmental interest
beyond the need merely to apprehend lawbreakers is necessary to
justify a categorical exception to the warrant requirement. For
the most part, special governmental needs sufficient to override
the warrant requirement flow from "exigency" -- that
is, from the press of time that makes obtaining a warrant either
impossible or hopelessly infeasible. See United States v. Place,
supra, at 701-702; Mincey v. Arizona, supra, at 393-394; Johnson
v. United States, supra, at 15. Only after finding an extraordinary
governmental interest of this kind do we -- or ought we -- engage
in a balancing test to determine if a warrant should nonetheless
be required. 2
To require a showing of some extraordinary governmental interest
before dispensing with the warrant requirement is not to undervalue
society's need to apprehend violators of the criminal law. To
be sure, forcing law enforcement personnel to obtain a warrant
before engaging in a search will predictably deter the police
from conducting some searches that they would otherwise like to
conduct. But this is not an unintended result of the Fourth Amendment's
protection of privacy; rather, it is the very purpose for which
the Amendment was thought necessary. Only where the governmental
interests at stake exceed those implicated in any ordinary law
enforcement context -- that is, only where there is some extraordinary
governmental interest involved -- is it legitimate to engage in
a balancing test to determine whether a warrant is indeed necessary.
In this case, such extraordinary governmental interests do exist
and are sufficient to justify an exception to the warrant requirement.
Students are necessarily confined for most of the schoolday in
close proximity to each other and to the school staff. I agree
with the Court that we can take judicial notice of the serious
problems of drugs and violence that plague our schools. As JUSTICE
BLACKMUN notes, teachers must not merely "maintain an environment
conducive to learning" among children who "are inclined
to test the outer boundaries of acceptable conduct," but
must also "protect the very safety of students and school
personnel." Ante, at 352-353. A teacher or principal could
neither carry out essential teaching functions nor adequately
protect students' safety if required to wait for a warrant before
conducting a necessary search.
B
I emphatically disagree with the Court's decision to cast aside
the constitutional probable-cause standard when assessing the
constitutional validity of a schoolhouse search. The Court's decision
jettisons the probable-cause standard -- the only standard that
finds support in the text of the Fourth Amendment -- on the basis
of its Rohrschach-like "balancing test." Use of such
a "balancing test" to determine the standard for evaluating
the validity of a full-scale search represents a sizable innovation
in Fourth Amendment analysis. This innovation finds support neither
in precedent nor policy and portends a dangerous weakening of
the purpose of the Fourth Amendment to protect the privacy and
security of our citizens. Moreover, even if this Court's historic
understanding of the Fourth Amendment were mistaken and a balancing
test of some kind were appropriate, any such test that gave adequate
weight to the privacy and security interests protected by the
Fourth Amendment would not reach the preordained result the Court's
conclusory analysis reaches today. Therefore, because I believe
that the balancing test used by the Court today is flawed both
in its inception and in its execution, I respectfully dissent.
1
An unbroken line of cases in this Court have held that probable
cause is a prerequisite for a full-scale search. In Carroll v.
United States, 267 U.S. 132, 149 (1925), the Court held that "[on]
reason and authority the true rule is that if the search and seizure
. . . are made upon probable cause . . . the search and seizure
are valid." Under our past decisions probable cause -- which
exists where "the facts and circumstances within [the officials']
knowledge and of which they had reasonably trustworthy information
[are] sufficient in themselves to warrant a man of reasonable
caution in the belief" that a criminal offense had occurred
and the evidence would be found in the suspected place, id., at
162 -- is the constitutional minimum for justifying a full-scale
search, regardless of whether it is conducted pursuant to a warrant
or, as in Carroll, within one of the exceptions to the warrant
requirement. Henry v. United States, 361 U.S. 98, 104 (1959) (Carroll
"merely relaxed the requirements for a warrant on grounds
of practicality," but "did not dispense with the need
for probable cause"); accord, Chambers v. Maroney, 399 U.S.
42, 51 (1970) ("In enforcing the Fourth Amendment's prohibition
against unreasonable searches and seizures, the Court has insisted
upon probable cause as a minimum requirement for a reasonable
search permitted by the Constitution"). 3
Our holdings that probable cause is a prerequisite to a full-scale
search are based on the relationship between the two Clauses of
the Fourth Amendment. The first Clause ("The right of the
people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures, shall not be violated
. . .") states the purpose of the Amendment and its coverage.
The second Clause (". . . and no Warrants shall issue but
upon probable cause . . .") gives content to the word "unreasonable"
in the first Clause. "For all but . . . narrowly defined
intrusions, the requisite 'balancing' has been performed in centuries
of precedent and is embodied in the principle that seizures are
'reasonable' only if supported by probable cause." Dunaway
v. New York, 442 U.S., at 214.
I therefore fully agree with the Court that "the underlying
command of the Fourth Amendment is always that searches and seizures
be reasonable." Ante, at 337. But this "underlying command"
is not directly interpreted in each category of cases by some
amorphous "balancing test." Rather, the provisions of
the Warrant Clause -- a warrant and probable cause -- provide
the yardstick against which official searches and seizures are
to be measured. The Fourth Amendment neither requires nor authorizes
the conceptual free-for-all that ensues when an unguided balancing
test is used to assess specific categories of searches. If the
search in question is more than a minimally intrusive Terry stop,
the constitutional probable-cause standard determines its validity.
To be sure, the Court recognizes that probable cause "ordinarily"
is required to justify a full-scale search and that the existence
of probable cause "bears on" the validity of the search.
Ante, at 340-341. Yet the Court fails to cite any case in which
a full-scale intrusion upon privacy interests has been justified
on less than probable cause. The line of cases begun by Terry
v. Ohio, 392 U.S. 1 (1968), provides no support, for they applied
a balancing test only in the context of minimally intrusive searches
that served crucial law enforcement interests. The search in Terry
itself, for instance, was a "limited search of the outer
clothing." Id., at 30. The type of border stop at issue in
United States v. Brignoni-Ponce, 422 U.S. 873, 880 (1975), usually
"[consumed] no more than a minute"; the Court explicitly
noted that "any further detention . . . must be based on
consent or probable cause." Id., at 882. See also United
States v. Hensley, ante, at 224 (momentary stop); United States
v. Place, 462 U.S., at 706-707 (brief detention of luggage for
canine "sniff"); Pennsylvania v. Mimms, 434 U.S. 106
(1977) (per curiam) (brief frisk after stop for traffic violation);
United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976) (characterizing
intrusion as "minimal"); Adams v. Williams, 407 U.S.
143 (1972) (stop and frisk). In short, all of these cases involved
"'seizures' so substantially less intrusive than arrests
that the general rule requiring probable cause to make Fourth
Amendment 'seizures' reasonable could be replaced by a balancing
test." Dunaway, supra, at 210.
Nor do the "administrative search" cases provide any
comfort for the Court. In Camara v. Municipal Court, 387 U.S.
523 (1967), the Court held that the probable-cause standard governed
even administrative searches. Although the Camara Court recognized
that probable-cause standards themselves may have to be somewhat
modified to take into account the special nature of administrative
searches, the Court did so only after noting that "because
[housing code] inspections are neither personal in nature nor
aimed at the discovery of evidence of crime, they involve a relatively
limited invasion of the urban citizen's privacy." Id., at
537. Subsequent administrative search cases have similarly recognized
that such searches intrude upon areas whose owners harbor a significantly
decreased expectation of privacy, see, e. g., Donovan v. Dewey,
452 U.S. 594, 598-599 (1981), thus circumscribing the injury to
Fourth Amendment interests caused by the search.
Considerations of the deepest significance for the freedom of
our citizens counsel strict adherence to the principle that no
search may be conducted where the official is not in possession
of probable cause -- that is, where the official does not know
of "facts and circumstances [that] warrant a prudent man
in believing that the offense has been committed." Henry
v. United States, 361 U.S., at 102; see also id., at 100-101 (discussing
history of probable-cause standard). The Fourth Amendment was
designed not merely to protect against official intrusions whose
social utility was less as measured by some "balancing test"
than its intrusion on individual privacy; it was designed in addition
to grant the individual a zone of privacy whose protections could
be breached only where the "reasonable" requirements
of the probable-cause standard were met. Moved by whatever momentary
evil has aroused their fears, officials -- perhaps even supported
by a majority of citizens -- may be tempted to conduct searches
that sacrifice the liberty of each citizen to assuage the perceived
evil. 4 But the Fourth Amendment
rests on the principle that a true balance between the individual
and society depends on the recognition of "the right to be
let alone -- the most comprehensive of rights and the right most
valued by civilized men." Olmstead v. United States, 277
U.S. 438, 478 (1928) (Brandeis, J., dissenting). That right protects
the privacy and security of the individual unless the authorities
can cross a specific threshold of need, designated by the term
"probable cause." I cannot agree with the Court's assertions
today that a "balancing test" can replace the constitutional
threshold with one that is more convenient for those enforcing
the laws but less protective of the citizens' liberty; the Fourth
Amendment's protections should not be defaced by "a balancing
process that overwhelms the individual's protection against unwarranted
official intrusion by a governmental interest said to justify
the search and seizure." United States v. Martinez-Fuerte,
supra, at 570 (BRENNAN, J., dissenting).
2
I thus do not accept the majority's premise that "[to] hold
that the Fourth Amendment applies to searches conducted by school
authorities is only to begin the inquiry into the standards governing
such searches." Ante, at 337. For me, the finding that the
Fourth Amendment applies, coupled with the observation that what
is at issue is a full-scale search, is the end of the inquiry.
But even if I believed that a "balancing test" appropriately
replaces the judgment of the Framers of the Fourth Amendment,
I would nonetheless object to the cursory and shortsighted "test"
that the Court employs to justify its predictable weakening of
Fourth Amendment protections. In particular, the test employed
by the Court vastly overstates the social costs that a probable-cause
standard entails and, though it plausibly articulates the serious
privacy interests at stake, inexplicably fails to accord them
adequate weight in striking the balance.
The Court begins to articulate its "balancing test"
by observing that "the government's need for effective methods
to deal with breaches of public order" is to be weighed on
one side of the balance. Ibid. Of course, this is not correct.
It is not the government's need for effective enforcement methods
that should weigh in the balance, for ordinary Fourth Amendment
standards -- including probable cause -- may well permit methods
for maintaining the public order that are perfectly effective.
If that were the case, the governmental interest in having effective
standards would carry no weight at all as a justification for
departing from the probable-cause standard. Rather, it is the
costs of applying probable cause as opposed to applying some lesser
standard that should be weighed on the government's side. 5
In order to tote up the costs of applying the probable-cause standard,
it is thus necessary first to take into account the nature and
content of that standard, and the likelihood that it would hamper
achievement of the goal -- vital not just to "teachers and
administrators," see ante, at 339 -- of maintaining an effective
educational setting in the public schools. The seminal statement
concerning the nature of the probable-cause standard is found
in Carroll v. United States, 267 U.S. 132 (1925). Carroll held
that law enforcement authorities have probable cause to search
where "the facts and circumstances within their knowledge
and of which they had reasonably trustworthy information [are]
sufficient in themselves to warrant a man of reasonable caution
in the belief" that a criminal offense had occurred. Id.,
at 162. In Brinegar v. United States, 338 U.S. 160 (1949), the
Court amplified this requirement, holding that probable cause
depends upon "the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal technicians,
act." Id., at 175.
Two Terms ago, in Illinois v. Gates, 462 U.S. 213 (1983), this
Court expounded at some length its view of the probable-cause
standard. Among the adjectives used to describe the standard were
"practical," "fluid," "flexible,"
"easily applied," and "nontechnical." See
id., at 232, 236, 239. The probable-cause standard was to be seen
as a "common-sense" test whose application depended
on an evaluation of the "totality of the circumstances."
Id., at 238.
Ignoring what Gates took such great pains to emphasize, the Court
today holds that a new "reasonableness" standard is
appropriate because it "will spare teachers and school administrators
the necessity of schooling themselves in the niceties of probable
cause and permit them to regulate their conduct according to the
dictates of reason and common sense." Ante, at 343. I had
never thought that our pre-Gates understanding of probable cause
defied either reason or common sense. But after Gates, I would
have thought that there could be no doubt that this "nontechnical,"
"practical," and "easily applied" concept
was eminently serviceable in a context like a school, where teachers
require the flexibility to respond quickly and decisively to emergencies.
A consideration of the likely operation of the probable-cause
standard reinforces this conclusion. Discussing the issue of school
searches, Professor LaFave has noted that the cases that have
reached the appellate courts "strongly suggest that in most
instances the evidence of wrongdoing prompting teachers or principals
to conduct searches is sufficiently detailed and specific to meet
the traditional probable cause test." 3 W. LaFave, Search
and Seizure § 10.11, pp. 459-460 (1978). 6
The problems that have caused this Court difficulty in interpreting
the probable-cause standard have largely involved informants,
see, e. g., Illinois v. Gates, supra; Spinelli v. United States,
393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964); Draper
v. United States, 358 U.S. 307 (1959). However, three factors
make it likely that problems involving informants will not make
it difficult for teachers and school administrators to make probable-cause
decisions. This Court's decision in Gates applying a "totality
of the circumstances" test to determine whether an informant's
tip can constitute probable cause renders the test easy for teachers
to apply. The fact that students and teachers interact daily in
the school building makes it more likely that teachers will get
to know students who supply information; the problem of informants
who remain anonymous even to the teachers -- and who are therefore
unavailable for verification or further questioning -- is unlikely
to arise. Finally, teachers can observe the behavior of students
under suspicion to corroborate any doubtful tips they do receive.
As compared with the relative ease with which teachers can apply
the probable-cause standard, the amorphous "reasonableness
under all the circumstances" standard freshly coined by the
Court today will likely spawn increased litigation and greater
uncertainty among teachers and administrators. Of course, as this
Court should know, an essential purpose of developing and articulating
legal norms is to enable individuals to conform their conduct
to those norms. A school system conscientiously attempting to
obey the Fourth Amendment's dictates under a probable-cause standard
could, for example, consult decisions and other legal materials
and prepare a booklet expounding the rough outlines of the concept.
Such a booklet could be distributed to teachers to provide them
with guidance as to when a search may be lawfully conducted. I
cannot but believe that the same school system faced with interpreting
what is permitted under the Court's new "reasonableness"
standard would be hopelessly adrift as to when a search may be
permissible. The sad result of this uncertainty may well be that
some teachers will be reluctant to conduct searches that are fully
permissible and even necessary under the constitutional probable-cause
standard, while others may intrude arbitrarily and unjustifiably
on the privacy of students. 7
One further point should be taken into account when considering
the desirability of replacing the constitutional probable-cause
standard. The question facing the Court is not whether the probable-cause
standard should be replaced by a test of "reasonableness
under all the circumstances." Rather, it is whether traditional
Fourth Amendment standards should recede before the Court's new
standard. Thus, although the Court today paints with a broad brush
and holds its undefined "reasonableness" standard applicable
to all school searches, I would approach the question with considerably
more reserve. I would not think it necessary to develop a single
standard to govern all school searches, any more than traditional
Fourth Amendment law applies even the probable-cause standard
to all searches and seizures. For instance, just as police officers
may conduct a brief stop and frisk on something less than probable
cause, so too should teachers be permitted the same flexibility.
A teacher or administrator who had reasonable suspicion that a
student was carrying a gun would no doubt have authority under
ordinary Fourth Amendment doctrine to conduct a limited search
of the student to determine whether the threat was genuine. The
"costs" of applying the traditional probable-cause standard
must therefore be discounted by the fact that, where additional
flexibility is necessary and where the intrusion is minor, traditional
Fourth Amendment jurisprudence itself displaces probable cause
when it determines the validity of a search.
A legitimate balancing test whose function was something more
substantial than reaching a predetermined conclusion acceptable
to this Court's impressions of what authority teachers need would
therefore reach rather a different result than that reached by
the Court today. On one side of the balance would be the costs
of applying traditional Fourth Amendment standards -- the "practical"
and "flexible" probable-cause standard where a full-scale
intrusion is sought, a lesser standard in situations where the
intrusion is much less severe and the need for greater authority
compelling. Whatever costs were toted up on this side would have
to be discounted by the costs of applying an unprecedented and
ill-defined "reasonableness under all the circumstances"
test that will leave teachers and administrators uncertain as
to their authority and will encourage excessive fact-based litigation.
On the other side of the balance would be the serious privacy
interests of the student, interests that the Court admirably articulates
in its opinion, ante, at 337-339, but which the Court's new ambiguous
standard places in serious jeopardy. I have no doubt that a fair
assessment of the two sides of the balance would necessarily reach
the same conclusion that, as I have argued above, the Fourth Amendment's
language compels -- that school searches like that conducted in
this case are valid only if supported by probable cause.
II
Applying the constitutional probable-cause standard to the facts
of this case, I would find that Mr. Choplick's search violated
T. L. O.'s Fourth Amendment rights. After escorting T. L. O. into
his private office, Mr. Choplick demanded to see her purse. He
then opened the purse to find evidence of whether she had been
smoking in the bathroom. When he opened the purse, he discovered
the pack of cigarettes. At this point, his search for evidence
of the smoking violation was complete.
Mr. Choplick then noticed, below the cigarettes, a pack of cigarette
rolling papers. Believing that such papers were "associated,"
see ante, at 328, with the use of marihuana, he proceeded to conduct
a detailed examination of the contents of her purse, in which
he found some marihuana, a pipe, some money, an index card, and
some private letters indicating that T. L. O. had sold marihuana
to other students. The State sought to introduce this latter material
in evidence at a criminal proceeding, and the issue before the
Court is whether it should have been suppressed.
On my view of the case, we need not decide whether the initial
search conducted by Mr. Choplick -- the search for evidence of
the smoking violation that was completed when Mr. Choplick found
the pack of cigarettes -- was valid. For Mr. Choplick at that
point did not have probable cause to continue to rummage through
T. L. O.'s purse. Mr. Choplick's suspicion of marihuana possession
at this time was based solely on the presence of the package of
cigarette papers. The mere presence without more of such a staple
item of commerce is insufficient to warrant a person of reasonable
caution in inferring both that T. L. O. had violated the law by
possessing marihuana and that evidence of that violation would
be found in her purse. Just as a police officer could not obtain
a warrant to search a home based solely on his claim that he had
seen a package of cigarette papers in that home, Mr. Choplick
was not entitled to search possibly the most private possessions
of T. L. O. based on the mere presence of a package of cigarette
papers. Therefore, the fruits of this illegal search must be excluded
and the judgment of the New Jersey Supreme Court affirmed.
III
In the past several Terms, this Court has produced a succession
of Fourth Amendment opinions in which "balancing tests"
have been applied to resolve various questions concerning the
proper scope of official searches. The Court has begun to apply
a "balancing test" to determine whether a particular
category of searches intrudes upon expectations of privacy that
merit Fourth Amendment protection. See Hudson v. Palmer, 468 U.S.
517, 527 (1984) ("Determining whether an expectation of privacy
is 'legitimate' or 'reasonable' necessarily entails a balancing
of interests"). It applies a "balancing test" to
determine whether a warrant is necessary to conduct a search.
See ante, at 340; United States v. Martinez-Fuerte, 428 U.S.,
at 564-566. In today's opinion, it employs a "balancing test"
to determine what standard should govern the constitutionality
of a given category of searches. See ante, at 340-341. Should
a search turn out to be unreasonable after application of all
of these "balancing tests," the Court then applies an
additional "balancing test" to decide whether the evidence
resulting from the search must be excluded. See United States
v. Leon, 468 U.S. 897 (1984).
All of these "balancing tests" amount to brief nods
by the Court in the direction of a neutral utilitarian calculus
while the Court in fact engages in an unanalyzed exercise of judicial
will. Perhaps this doctrinally destructive nihilism is merely
a convenient umbrella under which a majority that cannot agree
on a genuine rationale can conceal its differences. Compare ante,
p. 327 (WHITE, J., delivering the opinion of the Court), with
ante, p. 348 (POWELL, J., joined by O'CONNOR, J., concurring),
and ante, p. 351 (BLACKMUN, J., concurring in judgment). And it
may be that the real force underlying today's decision is the
belief that the Court purports to reject -- the belief that the
unique role served by the schools justifies an exception to the
Fourth Amendment on their behalf. If so, the methodology of today's
decision may turn out to have as little influence in future cases
as will its result, and the Court's departure from traditional
Fourth Amendment doctrine will be confined to the schools.
On my view, the presence of the word "unreasonable" in the text of the Fourth Amendment does not grant a shifting majority of this Court the authority to answer all Fourth Amendment questions by consulting its momentary vision of the social good. Full-scale searches unaccompanied by probable cause violate the Fourth Amendment. I do not pretend that our traditional Fourth Amendment doctrine automatically answers all of the difficult legal questions that occasionally arise. I do contend, however, that this Court has an obligation to provide some coherent framework to resolve such questions on the basis of more than a conclusory recitation of the results of a "balancing test." The Fourth Amendment itself supplies that framework and, because the Court today fails to heed its message, I must respectfully dissent.
---- Begin EndNotes ----
1 A purse typically contains
items of highly personal nature. Especially for shy or sensitive
adolescents, it could prove extremely embarrassing for a teacher
or principal to rummage through its contents, which could include
notes from friends, fragments of love poems, caricatures of school
authorities, and items of personal hygiene.
2 Administrative search cases
involving inspection schemes have recognized that "if inspection
is to be effective and serve as a credible deterrent, unannounced,
even frequent, inspections are essential. In this context, the
prerequisite of a warrant could easily frustrate inspection. .
. ." United States v. Biswell, 406 U.S. 311, 316 (1972);
accord, Donovan v. Dewey, 452 U.S. 594, 603 (1981). Cf. Marshall
v. Barlow's, Inc., 436 U.S. 307 (1978) (holding that a warrant
is nonetheless necessary in some administrative search contexts).
3 In fact, despite the somewhat
diminished expectation of privacy that this Court has recognized
in the automobile context, see South Dakota v. Opperman, 428 U.S.
364, 367-368 (1976), we have required probable cause even to justify
a warrantless automobile search, see United States v. Ortiz, 422
U.S. 891, 896 (1975) ("A search, even of an automobile, is
a substantial invasion of privacy. To protect that privacy from
official arbitrariness, the Court always has regarded probable
cause as the minimum requirement for a lawful search") (footnote
omitted); Chambers v. Maroney, 399 U.S., at 51.
4 As Justice Stewart said in
Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971): "In
times of unrest, whether caused by crime or racial conflict or
fear of internal subversion, this basic law and the values that
it represents may appear unrealistic or 'extravagant' to some.
But the values were those of the authors of our fundamental constitutional
concepts."
5 I speak of the "government's
side" only because it is the terminology used by the Court.
In my view, this terminology itself is seriously misleading. The
government is charged with protecting the privacy and security
of the citizen, just as it is charged with apprehending those
who violate the criminal law. Consequently, the government has
no legitimate interest in conducting a search that unduly intrudes
on the privacy and security of the citizen. The balance is not
between the rights of the government and the rights of the citizen,
but between opposing conceptions of the constitutionally legitimate
means of carrying out the government's varied responsibilities.
6 It should be noted that Professor
LaFave reached this conclusion in 1978, before this Court's decision
in Gates made clear the "flexibility" of the probable-cause
concept.
7 A comparison of the language
of the standard ("reasonableness under all the circumstances")
with the traditional language of probable cause ("facts sufficient
to warrant a person of reasonable caution in believing that a
crime had been committed and the evidence would be found in the
designated place") suggests that the Court's new standard
may turn out to be probable cause under a new guise. If so, the
additional uncertainty caused by this Court's innovation is surely
unjustifiable; it would be naive to expect that the addition of
this extra dose of uncertainty would do anything other than "burden
the efforts of school authorities to maintain order in their schools,"
ante, at 342. If, on the other hand, the new standard permits
searches of students in instances when probable cause is absent
-- instances, according to this Court's consistent formulations,
when a person of reasonable caution would not think it likely
that a violation existed or that evidence of that violation would
be found -- the new standard is genuinely objectionable and impossible
to square with the premise that our citizens have the right to
be free from arbitrary intrusions on their privacy.
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