By Gretchen Schuldt
Police did not need a warrant or probable cause to search a vehicle parked in an Appleton East High School parking lot that resulted in the discovery of two guns in the car, the state Court of Appeals ruled this week.
"The duty of school officials to keep students safe applies equally to threats posed by students or non-students," appellate Judge Mark A. Seidl wrote for the three-judge District III Court of Appeals panel. "We therefore conclude that standard applies equally to searches on school grounds of both students and non-students of the school where the search occurs."
Seidl was joined in his decision by appellate Judges Lisa K. Stark and Thomas M. Hruz.
The decision affirmed the conviction in Outagamie Circuit Court of Blong Vang, who was convicted of one count of conspiracy to commit child abuse – intentionally committing bodily harm.
The incident started when two men were spotted in the commons area of the school by Jack Taschner, a school resource officer employed by the school and not by the police, according to the decision, Seidl said.
"The two individuals were wearing hats, which was in violation of the school dress code," Seidl wrote. "Taschner also thought their clothing indicated a gang affiliation."
The two – eventually identified as Travis and Daniel – told Taschner that they were not students at the school.
"When Taschner contacted dispatch to check for warrants on the individuals, no information was returned on one of them, which led Taschner to believe one of them gave Taschner a false birthdate," Seidl wrote.
The two said they were driven to the school by their uncle to pick up a student named Lucy, "who was known by school officials to have a history of truancy, verbal altercations with other students, and physical fights," Seidl said.
The school's athletic director, Timothy Zachow, who by that time had joined the questioning, testified that one of the men told him they were there to beat up another student.
When the two school employees learned that there was another person involved, Zachow approached car the person was in. The driver, later identified as Vang, got out and walked toward the school. Lucy spoke briefly to him, which prompted him to turn and start walking away from the front of the school.
Zachow asked him to come to the office, where Vang gave an incorrect birthdate.
Taschner requested that additional officers come to the school and patted Vang down, finding nothing illegal. Another officer arrived, and a drug dog sniffed Vang's car, but did not signal evidence of drugs.
Principal Matthew Mineau arrived and said he wanted Vang's car searched. The search by Taschner and a city police officer turned up a gun in the back seat and another in the trunk.
Circuit Judge Vincent Biskupic denied Vang's motion to suppress the search, ruling that "school officials had reasonable suspicion that Vang posed a threat to school safety and that the search was therefore lawful," Seidl wrote.
Vang eventually pled guilty to the conspiracy charge and was sentenced to three years in prison and three years of extended supervision.
"Travis and Daniel’s association with Lucy, a known disrupter in the school, would naturally raise concerns to school officials about school safety." – Appeals Judge Mark A. Seidl
In denying Vang's motion, Biskupic relied on a 1985 U.S. Supreme Court case, New Jersey v. T.L.O., that allows school officials to search students' belongings without probably cause or a warrant if the search is reasonable under the circumstances.
Vang, though, on appeal argued that the tougher probable cause standard should have been used because Vang "was not a student of the high school, the search was conducted by law enforcement, and the investigation leading to the search was instigated by a school resource officer," Seidl wrote.
The appeals panel disagreed.
The presence of Travis and Daniel raised safety concerns, as did Vang's behavior, Seidl said. Vang took evasive actions and gave false information to Taschner.
"Travis and Daniel’s association with Lucy, a known disrupter in the school, would naturally raise concerns to school officials about school safety," the judge said.
The reasonableness standard "exists in large part to assist school officials in maintaining student safety," Seidl wrote. "This standard applies when the subject of a search poses a threat to school safety, regardless of their status as a student of the school or a non-student.... It was reasonable to apply the less strict T.L.O. standard, rather than requiring probable cause to search Vang’s vehicle."
In addition, because the school's principal and not law enforcement made the decision to conduct the search, the lesser standard is appropriate, he said.
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