S057403, Opinion — State ex rel Juv. Dept. v. M. A. D.

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Argued and submitted February 22, decision of Court of Appeals reversed;
judgment of circuit court affirmed June 10, 2010

In the Matter of M. A. D.,
a Youth.

STATE ex rel JUVENILE DEPARTMENT
OF CLACKAMAS COUNTY,
Petitioner on Review,
U.
M. A. D.,
Respondent on Review.
(CC 031120J02; CA A132290; SC S057403)
233 P3d 437

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CJS, Schools and School Districts § 792.

# En Banc

On review from the Court of Appeals .*

Paul L. Smith, Assistant Attorney General, Salem, argued
the cause and filed the brief for petitioner on review. With
him on the brief were John R. Kroger, Attorney
General, and Jerome Lidz, Solicitor General.

Angela Sherbo, Juvenile Rights Project, Portland, argued
the cause and filed the brief for respondent on review.

Morgan Smith, Salem, filed a brief for amicus curiae
Oregon School Boards Association.

Nancy J. Hungerford, The Hungerford Law Firm, Oregon
City, filed a brief for amici curiae Centennial School District,
Eagle Point School District, Hermiston School District, and
Neah-Kah-Nie School District.

\* Appeal from Clackamas County Circuit Court, Douglas V. Van Dyk, Judge.
226 Or App 21, 202 P3d 249 (2009).

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Professor Carrie Leonetti, pro hac vice, University of
Oregon School of Law, Eugene, and Rankin Johnson IV,
Portland, filed a brief for amicus curiae Oregon Criminal
Defense Lawyers Association.

BALMER, J.

The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is affirmed.

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BALMER, J.

This juvenile delinquency case requires us to decide
when a public school official's search of a high school student
for illegal drugs is permissible under Article I, section 9, of
the Oregon Constitution. We conclude that, when school offi-
cials at a public high school have a reasonable suspicion,
based on specific and articulable facts, that an individual stu-
dent possesses illegal drugs on school grounds, they may
respond to the immediate risk of harm created by the stu-
dent's possession of the drugs by searching the student with-
out first obtaining a warrant.

After school officials received a tip from a named stu-
dent that the youth who is the subject of this proceeding
(youth) had been attempting to sell drugs earlier that morn-
ing near school property, one of the school officials reached
into youth's pocket and discovered marijuana and other con-
traband. The state filed a delinquency petition, alleging that
youth had committed an act that, if committed by an adult,
would constitute delivery of a controlled substance. In the
delinquency proceeding, youth moved to suppress the mari-
juana that school officials had found on his person, arguing
that the school officials had violated his rights under Article
I, section 9, of the Oregon Constitution. The juvenile court
denied youth's motion. Youth appealed, and the Court
of Appeals reversed, holding that the search of youth
was invalid because the school officials lacked probable
cause to believe that youth possessed illegal drugs. State ex
rel Juv. Dept. v. M. A. D., 226 Or App 21, 202 P3d 249 (2009).
The state petitioned for review, arguing that the Court of
Appeals had erred in concluding that the school officials'
search of youth violated Article I, section 9, and we allowed
review.

Before this court, the state concedes that the school
officials did not have probable cause to search youth. The
state asserts, however, that the appropriate standard for
determining the validity of a search by a school official under
Article I, section 9, is the "reasonable suspicion" standard,
rather than the probable cause standard that the Court of
Appeals applied. Under that standard, the state argues, the

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search was permissible.1 Youth maintains that the Court of
Appeals was correct in applying the probable cause standard
and in concluding that the evidence should be suppressed
because the facts here did not establish probable cause. For
the reasons that follow, we reverse the decision of the Court
of Appeals.

## I. FACTS AND PROCEEDINGS BELOW

We take the facts from the juvenile court record. On
January 7, 2005, Brooks, the assistant principal at Rex
Putnam High School, called a student into his office to dis-
cuss concerns about the student's attendance and perform-
ance in school. When Brooks confronted the student about
skipping school to smoke, the student responded by telling
Brooks that he had seen youth attempting to sell marijuana
that morning in an area near the school commonly referred to
as "the pit." Brooks took the student's report seriously, based
on the student's prior history with drugs, on "who [the stu-
dent] hung around with," and on Brooks's knowledge that
students often used drugs in the area known as the pit.
Although the student informant had previously promised to
go to class or finish his homework and not followed through,
he had never falsely accused another student of wrongdoing.
According to Brooks, the student "was quick to give up other
people if he thought it would take the heat away from him";
however, Brooks believed that in making the allegations
regarding youth, the student was not only attempting to take
attention away from himself, but also was providing Brooks
with accurate information about youth possessing marijuana
on school grounds. Brooks had not had any interactions with
youth, and, until that day, Brooks had not had any particular
concerns about youth and drug use. However, Brooks knew
that youth's records from schools that he had previously
attended noted "target behaviors * * * about attendance and
possible indication of drug and alcohol issues."

1 Because the state now relies only on its argument that the "reasonable sus-
picion" rather than the "probable cause" standard applies to school searches, we do
not address or decide whether the state is correct in conceding that the school offi-
cials did not have probable cause to search youth, as the trial court and the Court
of Appeals determined.

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Based on the foregoing information, Brooks was con-
cerned that youth might have sold or attempted to sell drugs
to other students and might have drugs in his possession. As
a result, he called youth to his office, where Brooks and
youth's counselor were waiting for him. Youth arrived at the
office with a staff learning specialist, Pogel. Brooks informed
youth that a witness had indicated that youth might be in
possession of drugs and asked youth if there was "anything
he needed to tell me or that he wanted to show me." At that
point, youth did not admit to possessing or attempting to sell
drugs; he simply responded by saying, "This is stupid" or
"This is a dumb thing." Brooks told youth that he had
"reasonable cause to search [him]" and then called youth's
mother "as a courtesy" to inform her that they were planning
to search youth. During Brooks's conversation with youth's
mother, she "expressed * * * that she thought [youth] proba-
bly was holding something."

Brooks allowed youth to speak to his mother, and,
afterward, youth indicated that he was willing to turn his
pockets inside out. Youth then emptied his pants pockets and
the outside pockets of his jacket. Brooks noticed a bulge in
the inner breast pocket of youth's jacket and asked youth to
empty that pocket. Youth refused, stating that he did not
trust Brooks. Pogel asked if youth trusted him; youth
responded that he did. Pogel then asked if he could look
inside youth's pocket, and youth responded by unzipping his
jacket. Pogel reached into the inner pocket of youth's jacket,
pulled out a cloth bag, and dumped the contents of the bag on
the counter, revealing a plastic bag with marijuana in it,
about half a dozen empty plastic bags, and a small pipe used
for smoking marijuana. Youth admitted that the marijuana
was his and that he had attempted to sell it. Brooks then
called the police to report what they had discovered.

The state filed a delinquency petition with the juve-
nile court, alleging, among other things, that youth had com-
mitted an act that, if committed by an adult, would constitute
delivery of a controlled substance. Youth moved to suppress
both the evidence found in his jacket and his confession,
arguing that the school officials had violated his rights under

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Article I, section 9, of the Oregon Constitution.2 The juvenile
court concluded that reaching into youth's pocket constituted
a search and that the school officials did not have probable
cause to believe that youth had drugs in his possession. The
court nevertheless upheld the validity of the search, conclud-
ing that it was "reasonable to apply a more flexible standard
than probable cause" in the context of a school search. In the
absence of Oregon appellate cases addressing the application
of Article I, section 9, to a search of a public school student by
school officials, the juvenile court used the standard applied
by the United States Supreme Court in Fourth Amendment
cases. Specifically, the juvenile court relied upon the Court's
holding in New Jersey v. T. L. O., 469 US 325, 105 S Ct 733,
83 L Ed 2d 720 (1985), that such a search does not require
"probable cause," but is valid if the official has "reasonable
grounds for suspecting" that the search will reveal evidence
of a violation of law or school rules. The court concluded that,
here, the school officials had reasonable grounds for suspect-
ing that youth had drugs in his possession and that the
search was reasonable in scope; it therefore denied youth's
motion and subsequently found youth to be within the juris-
diction of the juvenile court.

Youth appealed, and the Court of Appeals reversed in
a divided opinion. The majority first observed that juveniles
are entitled to the protections of Article I, section 9.
M. A. D., 226 Or App at 25. Because the school officials had
conducted a warrantless search of youth, the majority pro-
ceeded to determine whether the search came within any
exception to the warrant requirement. It found that the state
had not proved that youth had consented to the search or that
the school officials had probable cause to believe that youth
possessed illegal drugs. Id. at 25-29.3 The majority then

2 Article I, section 9, provides:

"No law shall violate the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search, or seizure; and no
warrant shall issue but upon probable cause, supported by oath, or affirmation,
and particularly describing the place to be searched, and the person or thing to
be seized."

3 Consent to a search is one exception to the warrant requirement. State v.
Paulson, 313 Or 346, 351, 833 P2d 1278 (1992). Similarly, a warrantless search can
be justified by a showing of probable cause and exigent circumstances. State v.

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turned to the state's alternative argument that the court
should adopt an exception to the warrant requirement, simi-
lar to that discussed in T. L. O., that would permit school
authorities to conduct searches if they reasonably suspected
that a student possessed illegal drugs, even if they could not
establish probable cause. The majority rejected that argu-
ment as inconsistent with the protection of privacy interests
afforded by Article I, section 9. Id. at 31-32. It therefore con-
cluded that the juvenile court had erred in denying youth's
motion to suppress.

The dissent agreed that the state had not proved
that the school officials acted with probable cause; however,
in the dissent's view, the search was nonetheless "reason-
able" under Article I, section 9, because the school officials
had "reasonable suspicion that a violation of laws or school
rules on possession or distribution of drugs had occurred." Id.
at 35 (Sercombe, J., dissenting). As noted, the state sought
review, which we allowed to address the appropriate stan-
dard for determining whether the search for drugs in this
case was constitutional.

## II. ARTICLE I, SECTION 9, ANALYSIS

The threshold inquiry in any Article I, section 9,
analysis is whether the government action at issue consti-
tutes a "search" for constitutional purposes. State v. Wacker,
317 Or 419, 426, 856 P2d 1029 (1993). This court has repeat-
edly emphasized that Article I, section 9, protects individu-
als' "privacy" interests and that, as a result, when govern-
ment conduct invades those privacy interests, a search has
occurred for purposes of the state constitution. See, e.g., State
v. Howard / Dawson, 342 Or 635, 640, 157 P3d 1189 (2007)
(stating principle). Although a Fourth Amendment search
occurs when government conduct infringes an individual's
reasonable expectation of privacy, " 'the privacy protected by
Article I, section 9, is not the privacy that one reasonably
expects but the privacy to which one has a right.' " Id. at 643

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(quoting State v. Campbell, 306 Or 157, 164, 759 P2d 1040
(1988)) (emphases in Campbell).

The privacy rights protected by Article I, section 9,
include the right of "the people" to be free from unreasonable
searches or seizures of their "persons, houses, papers, and
effects." Here, at Brooks's request, youth emptied several of
his pockets. However, when Brooks asked him to empty a
specific pocket in his jacket in which Brooks had observed a
bulge, youth refused. After youth unzipped the jacket, Pogel
opened the jacket so that he could see inside the inner pocket,
reached into that pocket, and removed what he suspected
was-and what proved to be-contraband. Those facts pres-
ent a classic example of a warrantless "search" for purposes
of Article I, section 9. See State v. Hall, 339 Or 7, 11, 20, 115
P3d 908 (2005) (applying Article I, section 9, to evidence offi-
cer obtained by reaching into defendant's pocket).

Having determined that the school officials con-
ducted a search of youth, the next question is whether that
search was valid under Article I, section 9. Ordinarily, a war-
rantless search is per se unreasonable, and therefore invalid,
unless it comes within one of the exceptions to the warrant
requirement that this court has recognized. State v. Meharry,
342 Or 173, 177, 149 P3d 1155 (2006). Although the state
concedes that the school officials had no warrant to search
youth, it does not rely on any of the exceptions that this court
has identified in past cases. In particular, it does not contend
that the search was conducted pursuant to an appropriate
statutorily authorized administrative program, which, as we
have held, may justify a search without a warrant and with-
out any individualized suspicion at all. See State v. Atkinson,
298 Or 1, 8-10, 688 P2d 832 (1984) (so holding). Nor does the
state argue that youth voluntarily consented to the search or
that the telephone call that the school officials made to
youth's mother constituted a request that she consent to a
search of youth. See State v. Paulson, 313 Or 346, 351-52, 833
P2d 1278 (1992) (describing consent exception to warrant
requirement). As noted, the state also concedes that probable
cause was lacking here, thus making unavailable to the state
another well-recognized exception to the warrant require-
ment-a search based on a combination of probable cause

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and exigent circumstances. See State v. Machuca, 347 Or
644, 652-57, 227 P3d 729 (2010) (warrantless search permis-
sible if officer has probable cause to believe that crime was
committed and exigent circumstances exist).

Instead of relying on a previously established excep-
tion to the warrant requirement, the state urges us to hold
that searches of public school students that are conducted by
school officials, on school grounds, and during school hours,
are constitutionally permissible if school officials have
"reasonable suspicion" that the search will reveal evidence of
a crime or a violation of school rules. In other words, the state
argues that the ordinary level of certainty necessary for a
search-probable cause-should not apply in the school set-
ting and that this court should adopt the approach that the
United States Supreme Court took in interpreting the Fourth
Amendment in T. L. O.

The state bases its argument for a "reasonable sus-
picion" test for school searches on the "unique mission and
circumstances of public schools." Specifically, the state points
to the schools' mission to educate children and argues that
"school officials must take reasonable steps to foster that
learning environment." According to the state, the school con-
text-including the responsibility of protecting students from
harm, maintaining order, and fulfilling the schools' educa-
tional mission-makes it inappropriate to hold school offi-
cials to the "probable cause" standard applicable to searches
by law enforcement officials. Instead, the state argues, this
court should adopt the less exacting "reasonable suspicion"
test that the Court used in T. L. O. We agree-in part-with
the state's argument.

The state is correct that the unique context of the
school setting distinguishes school searches from searches
conducted by law enforcement officers in other settings.4

4 The state also argues that we should adopt the "reasonable suspicion" stan-
dard because school officials are not trained in the "fine legal distinctions between
probable cause and reasonable suspicion" and therefore should be required to
understand only the lesser "reasonable suspicion" standard. We reject that argu-
ment as a basis for our decision. First, we do not decide constitutional require-
ments based on what is "easier" to understand. Second, the probable cause stan-
dard is not any more complicated than the reasonable suspicion standard. Like
many constitutional standards, it may present close questions in some cases, but

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Oregon statutes require children to attend school, unless
they come within a specific exemption. ORS 339.010. For that
reason, large numbers of children are required to gather each
day in an institutional setting where government employees
are responsible for their safety and education and where the
necessity for "swift and informal disciplinary procedures,"
T. L. O., 469 US at 340, is apparent. Further, various statutes
emphasize the responsibility of school districts to provide a
safe school environment for students, teaching faculty, and
classified workers, see, e.g., ORS 339.315 (requiring reporting
to officials of any persons believed to possess unlawful fire-
arms in a school); ORS 339.250(3) (authorizing suspension or
expulsion of student who assaults or menaces a school
employee or other student), and our cases recognize the "spe-
cial duty arising from the relationship between educators
and children entrusted to their care." Fazzolari v. Portland
School Dist. No. IJ, 303 Or 1, 19-20, 734 P2d 1326 (1987).
From the classroom to the cafeteria to the sports field, we
require students to follow the directions of teachers and other
school officials in order to preserve the safety of all students
and further the schools' educational objectives.

We conclude that the school context is sufficiently dif-
ferent from the setting in which ordinary police-citizen inter-
actions occur to justify an exception to the warrant require-
ment in certain circumstances, and we turn to the scope and
application of the state's proposed exception. First, we
describe what we view as the closest analogy to that excep-
tion, the long-standing and well-defined "officer-safety excep-
tion" to the warrant requirement of Article I, section 9. Under
the officer-safety exception, a police officer may take "reason-
able steps"-including a limited search-to protect the officer
or others if, "during the course of a lawful encounter with a
citizen, the officer develops a reasonable suspicion, based
upon specific and articulable facts, that the citizen might
pose an immediate threat of serious physical injury to the
officer or to others then present." State v. Foster, 347 Or 1, 8,

the concept itself is straightforward: Would the facts on which the government
actor relied lead a reasonable person to believe that the objects seized will probably
be found in the location to be searched? State v. Henderson, 341 Or 219, 225, 142
P3d 58 (2006). We reject the probable cause standard for school searches for the
reasons discussed in the text, not because the standard is too difficult in applica-
tion or because school officials have not mastered it in their training.

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217 P3d 168 (2009) (quoting State v. Bates, 304 Or 519, 524,
747 P2d 991 (1987)) (internal quotation marks omitted). The
officer-safety exception is necessary because of the unique
circumstances to which it applies:

" 'A police officer in the field frequently must make life-or-
death decisions in a matter of seconds. There may be little
or no time in which to weigh the magnitude of a potential
safety risk against the intrusiveness of protective meas-
ures. An officer must be allowed considerable latitude to
take safety precautions in such situations. Our inquiry
therefore is limited to whether the precautions taken were
reasonable under the circumstances as they reasonably
appeared at the time that the decision was made.'"

Id. (quoting Bates, 304 Or at 524-25). As noted, the officer-
safety exception requires reasonable suspicion of an imme-
diate threat of serious physical injury to the officer or others,
based on specific, articulable facts. In assessing whether an
officer's actions are permitted based on those facts, the court
"asks only whether safety precautions chosen by the officer
were reasonable under the perceived circumstances." Id. at
11. Because such "reasonable steps," which may include at
least a limited search, do not violate Article I, section 9, evi-
dence of wrongdoing obtained as a result of the search will
not be suppressed.5

In our view, the concerns underlying the officer-
safety exception also apply to some searches conducted by
school officials. As described above, the school context-
characterized by compulsory attendance and large numbers
of students and educators present each day in a relatively
confined area-raises heightened safety concerns. As persons
responsible for maintaining a safe learning environment,
when school officials perceive there to be an immediate
threat to student or staff safety at a school, they must be able
to take prompt, reasonable steps to remove that threat. As
with an officer-safety search, when a school official develops a

5 Our officer-safety cases make it clear that the permissible scope of a search
depends on the nature of the safety threat. See State v. Morgan, 348 Or 283, 290,
230 P3d 928 (2010) (officer may take "reasonable steps" to protect officer's safety).
If the safety threat is based, for example, on reasonable suspicion that the person
searched is carrying a rifle, that suspicion would not ordinarily be sufficient to jus-
tify a strip search of the person or a search of the person's wallet.

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"reasonable suspicion," based on "specific and articulable
facts," that a particular individual on school property either
personally poses or is in the possession of some item that
poses an "immediate threat" to the safety of the student, the
official, or others at the school, the school official "must be
allowed considerable latitude to take safety precautions." See
Foster, 347 Or at 8 (quoting Bates, 304 Or at 524) (internal
quotation marks omitted). Moreover, as this court has noted
with respect to an officer's judgment in that context, it is not
our function to "uncharitably second-guess" the considered
protective actions taken by school officials. See id. (quoting
Bates, 304 Or at 524) (internal quotation marks omitted).

For the same reasons that we have applied the less
exacting "reasonable suspicion" standard, rather than the
probable cause standard, to determine whether a limited
officer-safety search is permissible under Article I, section 9,
we conclude that the reasonable suspicion standard should
apply to a search, like the one here, for illegal drugs that is
conducted on school property by school officials acting in
their official capacity. We do not mean to suggest that the
officer-safety doctrine and a school official's search of a stu-
dent for drugs are identical in all respects. However, we
agree with the state that the public school setting and the
obligation of school officials to provide a safe learning envi-
ronment requires that they be able to respond quickly to
credible information, based on specific and articulable facts,
about immediate threats of serious harm to students and
staff, such as the presence of illegal drugs on school grounds.

There are important limits on the kinds of searches
that may be permitted under this approach. Consistently
with the standards that we have developed in the officer-
safety cases, a school official may not rely on generalizations
about suspected drug use or on information that is not spe-
cific or current. Moreover, we specifically reject the state's
request that we adopt, in this case, a general rule that all
school searches should be subject to a "reasonable suspicion"
standard. The state's argument that we should follow T. L. O.
and sanction warrantless searches whenever a school official
has reasonable suspicion that a student possesses evidence of
a violation of a school rule or policy goes further than neces-
sary to decide this case. This case involves a present threat to

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student safety and a search by a school official acting in his
official capacity and in furtherance of his responsibility to
protect students and staff; our holding is based on those cir-
cumstances. The permissibility of other kinds of searches by
school officials is not before us.

As we have stated above, high school students, like
other citizens, have privacy rights that are protected by
Article I, section 9, against unreasonable intrusions by state
officials. Those rights, however, like the rights of a person
searched pursuant to a valid officer-safety search, must yield
if the state officials can point to specific and articulable facts
that reasonably create a risk of immediate and serious harm
to the officials or others. See Foster, 347 Or at 8 (stating test).
If the protective actions taken by the school officials are
based on those facts, and are reasonable, their conduct does
not violate Article I, section 9. See id. at 9-11 (applying test).

Applying that test here, we conclude that the school
officials reasonably suspected that youth possessed illegal
drugs at the time of the search and had sought to distribute
those drugs to other students earlier that morning. Another
student told Brooks that he had seen youth that morning at
the pit attempting to sell marijuana. Brooks knew of the
informant's background with drugs and that students often
used drugs at the pit. He also knew from youth's records from
schools that he had previously attended that youth had pos-
sible drug issues. When Brooks called youth's mother, she
expressed her opinion that youth "probably was holding
something." The record in this case demonstrates that
Brooks was aware of specific, articulable facts that would
lead a reasonable person to suspect that youth was then in
possession of illegal drugs. Moreover, Brooks reasonably
could have concluded that youth's possession and alleged
attempt to sell those drugs earlier that morning created an
immediate risk of harm to youth and to other students at the
school. Those facts justified the actions of Brooks and Pogel,
including Pogel's conduct in reaching into youth's jacket
pocket and removing the bag that contained drugs and drug
paraphernalia. Pogel's search was reasonable in scope in
light of the information that he had, the immediate safety
risk presented, and the bulge that Brooks had observed in
youth's pocket. The steps that Brooks and Pogel took were

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reasonable precautions in the circumstances and were not
unreasonably intrusive. Their actions thus did not violate
Article I, section 9.

Because the actions of the school officials did not vio-
late youth's Article I, section 9, rights, the evidence that they
recovered should not have been suppressed. The juvenile
court correctly denied youth's motion to suppress.

The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.