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Bar Journal - September 1, 1999

School Personnel as Third Party Agents of the Police


We are all aware that school principals have a duty to see that students comply with school rules. We are also aware that principals have a somewhat more limited duty to see that students comply with the laws of the state in which they live. The precise scope and definition of this second, more limited duty are not clearly defined in New Hampshire case law. When a principal suspects that a student has violated a school rule, he or she would have little hesitation in taking corrective measures. But when a student violates a law, a principal would likely be more constrained in his response and would likely consider consulting the police prior to taking corrective action against the student. In determining whether or not a school official is an agent of the police when he or she conducts a search of students for contraband, courts must consider a wide variety of factors and must scrutinize the specific acts and conduct of the school official. A school official is not an agent of the police when he or she investigates a student's violation of a school rule, unless the school rule is designed to prohibit conduct also proscribed by a specific state law. A closer case occurs when a school official investigates a drug offense, such as sale or possession. These types of drug offenses are prohibited by most school rules and state law, but state law not only criminalizes the conduct but provides for more serious punishment and an additional violation if it occurs on school grounds.1 Therefore, a school official who suspects that a student possesses drugs must be especially vigilant of the fact that not only is the student in violation of school policy, but the student is also in violation of specific state laws designed to proscribe that conduct. In this article, I will examine recent decisions in New Hampshire and surrounding states in an attempt to develop a cohesive set of guidelines to determine when a principal is acting as an agent of the police in conducting a search of a student on school grounds or an investigation of a violation of state law.


Consider the facts and circumstances of State v. Tinkham,2 the New Hampshire Supreme Court's most recent pronouncement on the issue. On September 15, 1995, two students approached Deborah Brooks, the principal at Kingswood Regional High School. The students informed her that another student was carrying marijuana in her book bag. Brooks approached the student reported to be in possession of marijuana, and upon searching the student's book bag discovered marijuana. The student informed Brooks that she bought the marijuana from Tinkham, the defendant. Brooks brought the bag of marijuana she had discovered to the Wolfeboro Police Department and informed the police that she intended to question Tinkham. She returned to the high school and in the presence of the assistant principal explained to Tinkham her suspicion that he was carrying an illegal substance. Brooks instructed the defendant to empty his book bag and his pockets and to remove his shoes and socks. Brooks discovered a small wooden container which she took from Tinkham. Tinkham then admitted to both buying and reselling marijuana one day earlier. Brooks suspended Tinkham for five days. She then called the Wolfeboro Police and informed them that she had seized a container with an unusual odor from Tinkham and that he had admitted to both buying and selling marijuana the day before.

Tinkham was charged with selling marijuana on school property, in violation of RSA 318-B:23 Tinkham moved to suppress the wooden container prior to trial, but the motion was denied. Tinkham was subsequently convicted. On appeal, he claimed that the motion to suppress should have been granted, since Brooks' search violated the State and Federal Constitutions4 and thus the wooden container and confession were "fruits of the poisonous tree." Tinkham also claimed that Brooks should have provided Miranda warnings before she questioned him.5

The New Hampshire Supreme Court concluded that the trial court properly found that Brooks' initial search of Tinkham was not in violation of Part I, Article 19 of the New Hampshire Constitution. Although constitutional prohibitions on unreasonable searches apply to public school officials, they are "afforded greater flexibility than law enforcement officials when searching for contraband."6 The court, adopting reasoning set forth in State v. Drake,7 stated that a warrantless search of a student by a principal is constitutional if it is reasonable under all the circumstances. Several conditions determine this reasonableness: (1) the school official must reasonably believe that the search will produce evidence that the student violated either a school rule or the law; (2) the search must be reasonably related in scope to the circumstances giving rise to the search; and (3) the actions taken must be reasonably related to the purpose of the search and not excessively intrusive in light of the student's age, sex and particular infraction. Applying these standards, the New Hampshire Supreme Court found that Brooks' search of Tinkham was justified and reasonable.

The court then ruled on whether or not Brooks should have administered Miranda warnings to Tinkham. The court considered the reasoning of courts in other jurisdictions and concluded that since Brooks is not a law enforcement officer she need not have administered Miranda warnings. The court then considered whether or not Brooks was an agent of the police. The court acknowledged that if the public school official was acting as an agent of the police, that official might be required to administer Miranda warnings. Citing State v. Gosselin, the court noted that the existence of an agency relationship under the New Hampshire Constitution requires an affirmative act by the police that induces a third party to conduct an interrogation.8 However, the court concluded that since the Wolfeboro Police did nothing to encourage Brooks to interrogate Tinkham, Brooks was not acting as an agent of the police.


In Commonwealth v. Snyder, the Massachusetts Supreme Court addressed similar issues.9 Snyder was a high school student at Monument Mountain Regional High School in Great Barrington, Massachusetts. An unnamed student reported to an unnamed teacher that Snyder had approached her and asked if she wanted to buy some marijuana for twenty-five dollars. The teacher reported the conversation to the school principal, who in turn had the teacher tell the story again in the presence of the assistant principal. The teacher said that the student reported that Snyder had removed a videocassette case from his book bag, opened it, and displayed three bags of marijuana. Day, the principal, and Canning, the assistant principal, located Snyder eating lunch in the school cafeteria. Not wanting to arouse suspicion, the school official waited until Snyder went to class. Canning and Day then opened Snyder's locker using a combination obtained from school records. They discovered the book bag, the videocassette case and the three bags of marijuana.

With both Canning and Day present, Day informed Snyder that she had information that Snyder had offered to sell marijuana in the school. Day asked Snyder to confirm the truth of the allegation, and Snyder did so. Snyder indicated that a friend had given him the marijuana to sell, that he had mixed feelings and was indeed quite uncomfortable with the plan, and that on account of his reluctance to comply with the plan he had called his friend and instructed him to return to the school that same day to retrieve the marijuana that Snyder had not sold. Snyder acknowledged that he was the owner of the items that Day and Canning had seized from his locker earlier in the day. Snyder also admitted that he acquired four bags of marijuana from his friend and had already sold one of them.

Shortly thereafter, Canning called the Great Barrington Police Department. Officer Beckwith came to Monument Mountain High School. There, Day told Officer Beckwith what Snyder had said. Officer Beckwith gave Snyder Miranda warnings, and Snyder then confirmed that Day's recollection of their conversation was accurate. Officer Beckwith then took Snyder to the police station and again advised Snyder of his Miranda warnings. Snyder signed a form waiving his rights and then provided a written statement to officer Beckwith.

Prior to trial, Snyder moved to suppress the evidence discovered in the search of his locker as well as the admissions he made to the public school officials and Officer Beckwith. The motion judge denied Snyder's suppression motions, finding that Snyder had no reasonable expectation of privacy in his locker and thus his constitutional rights were not violated. Snyder was convicted of (1) illegal possession of a controlled substance; (2) possession of a controlled substance with intent to distribute; and (3) possession of a controlled substance with intent to distribute it in a school.

The Massachusetts Supreme Court first ruled that Snyder did, in fact, have a reasonable expectation of privacy in his locker. The court surveyed recent decisions in other courts and found that students had an expectation of privacy in their lockers unless there was an express understanding to the contrary.10 In fact, Monument Mountain High School had stated such an understanding in its students' rights and responsibility code.

The court next found that the warrantless search conducted by the principal and assistant principal did not violate Snyder's Fourth Amendment rights. The court held that the applicable Fourth Amendment test of a warrantless search of a locker by school officials is whether the search of the locker was reasonable in all of the circumstances.11 Canning and Day's search of Snyder's locker was therefore reasonable. The court acknowledged that a warrant and probable cause are the typical prerequisites to conduct a legal search, but also indicated that a lesser standard applied to searches by public school officials within the school setting. Furthermore, warrants are rarely required in a school setting and only appropriate where a public school employee is explicitly acting on behalf of law enforcement officials.12

Even in the absence of a police investigation, the Massachusetts Supreme Court found that the school officials in State v. Snyder had probable cause to search Snyder's locker. The court noted that a student witnessed a crime in the course of its commission, related the information to a teacher whose credibility had been well established by a past record of providing the administration accurate information regarding students, and that the assistant principal and principal were justified in relying on the teacher's retelling of the events that had transpired.

The court considered whether the school officials should have more extensively evaluated the location of Snyder's book bag before assuming that it was in his locker. The court noted that Day and Canning had indeed located Snyder in the cafeteria, but had consciously decided not to question him there since they reasonably concluded that other students might be involved in the marijuana selling. Day and Canning had reasonable belief, based on the information provided by the student who bought the drugs, that Snyder was keeping the marijuana in his book bag and that the bag would most likely be found on Snyder's person or in his locker. Canning and Day decided to search the locker first. Thus, Canning and Day conducted a less intrusive search prior to searching Snyder personally.

Next, the court considered whether Snyder was entitled to receive Miranda warnings prior to questioning by Principal Canning and Assistant Principal Day. Snyder contended that the absence of Miranda warnings made the questioning improper, thus tainting his subsequent admission to Officer Beckwith. The court concluded that "there is no authority requiring a school administrator who is not acting on behalf of law enforcement officials to furnish Miranda warnings."13

Upon examination of all the facts and circumstances surrounding the school's investigation of Snyder, the court held that Principal Day and Assistant Principal Canning were not law enforcement officials or agents of law enforcement officials. The mere fact that Canning and Day intended to give the marijuana to the police did not make them "agents or instrumentalities of the police in questioning Snyder."14

The facts and circumstances in Snyder can be analogized to an investigation of drug related offenses by law enforcement officials such as a police department. Although the public school officials in Snyder undertook a procedurally simple investigation furthered by the lesser standards required of their conduct, they were essentially performing a function that a police officer would have conducted in investigating a drug sale outside of a school. The principal and assistant principal would naturally have contacted the police and cooperated with them, since they had a vested interest in seeing that the criminal laws were enforced equally in the public schools. However, the police did not direct or encourage their conduct. In accordance with the lack of facts establishing an agency relationship, the Massachusetts Supreme Court held that the principal and assistant principal were not agents of the police.


In analyzing whether a public school official is an agent of the police when he or she conducts a search of a student or a student's locker, it is useful to examine other situations wherein a third party could have been implicated in activity only possible had the third party been acting as an agent of the police. Since agency law does not vary according to the circumstances of the actor, generally speaking, analysis of cases unrelated to school searches may shed some light on the factors a court looks to in order to determine whether or not a third party acts as an agent of law enforcement officials.

In State v. Gosselin,15 the defendant was convicted of second degree murder for the brutal beating of a two-year- old boy, Brandon Bieniek. Gosselin lived with the victim and his mother in Manchester at the time Gosselin murdered Brandon. He moved out soon after the incident and six months later, began dating Heidi McGillen. After Gosselin assaulted McGillen on September 12, 1986, she reported Gosselin to the Hooksett Police Department. The police asked McGillen if she knew anything about Brandon's death. McGillen related that Gosselin had in fact admitted to her that he had killed Brandon. Later that day McGillen also filed a report with the Manchester Police Department.

McGillen told the Manchester Police Department that Gosselin had written her letters admitting his guilt, so the police accompanied her to a former residence to retrieve them. Since no one was home and the door was unlocked, McGillen and the Manchester officers went in and retrieved the letters. The defendant moved to suppress the letters based on the fact that their seizure violated the fourth and fourteenth amendments to the U.S. Constitution and the part I, article 19 of the New Hampshire Constitution. The trial court granted the motion, finding that McGillen was an agent of the state when she acted in concert with the police to retrieve the letters.16 This, however, was not the end of the agency issue.

During the months preceding Gosselin's prosecution, McGillen cooperated, in a sense, with the Attorney General's office in developing the case. Although the Attorney General's Office advised McGillen to refrain from contact with Gosselin, she visited him repeatedly in prison. On one visit, McGillen told Gosselin that she no longer knew what to say to the police and both the defense and prosecuting attorneys. In response, Gosselin dictated a tape recording that directed McGillen to recant her original statements that implicated Gosselin in the murder of Brandon Bieniek. Gosselin moved to suppress the tape recording, alleging that McGillen was an agent of the State of New Hampshire ever since her first contact with the Hooksett Police Department on September 12, 1986. Gosselin further alleged that McGillen's conduct was part of the plan intended to elicit incriminating statements from him and that her conduct was attributable to the State as an attempt to surreptitiously interrogate him in violation of his constitutional rights to counsel.17 The New Hampshire Supreme Court affirmed the trial court's finding that McGillen was not acting as an agent of the State with respect to Gosselin's tape recording.

Citing State v. Bruneau18 the court held that the existence of an agency relationship under the New Hampshire Constitution requires proof of "some affirmative action by a police officer or other governmental official that preceded the interrogation and can reasonably be seen to have induced the third party to conduct the interrogation."19 The factors that clearly establish the existence of an agency relationship between a witness and the State, the court held, are either a prior agreement between the agent and the State or the agent's compliance with a prior governmental request. In this case, the only agreements between McGillen and the State were agreements involving McGillen's retrieval of Gosselin's inculpatory letters. Those agreements did not involve McGillen's procurement of the inculpatory tape recording. In fact, McGillen expressly defied the State's rather specific instructions to have no contact with McGillen, for she repeatedly visited him in jail. In addition, it was McGillen and Gosselin who had entered into an agency relationship with respect to the tape.

The Gosselin court went on to examine under federal law whether McGillen's conduct constituted an agency relationship with the State. That test requires indicia of a "substantial relationship in the nature of an agreement" between the alleged agent and the police before an agency relationship can be established.20 The court therefore also found that no agency relationship existed between McGillen and the State under federal law.

In State v. Bruneau,21 decided only three days prior to State v. Gosselin,22 the New Hampshire Supreme Court extensively discussed the nature of the agency relationship in respect to a murder case. Bruneau alleged that statements he voluntarily made to one Baranski, an associate of his, were actually elicited by the associate acting as an agent of the police. Baranski had informed the Concord Police that Bruneau had called him collect from Florida, where he had been arrested on a warrant and was in jail, and would probably do so again. Baranski asked the Concord Police what he should do if and when Brueau were to call again. The Concord Police advised Baranski that he would bear the expense of the collect calls and he should accept or deny the calls as he saw fit.

In analyzing whether Baranski was an agent of the police, the court scrutinized his interaction with the police:

A conclusion that the government has engaged in the process through an agent, and has not merely received evidence already obtained, must therefore require proof of some affirmative action by a police officer or other governmental official that preceded the interrogation and can reasonably be seen to have induced the third party to conduct the interrogation that took place.23


Two types of government conduct can create an agency relationship with a third party. First, the government can make a prior agreement that induces the third party to obtain evidence from a defendant. The agreement can either authorize or sanction the third party's conduct, or the agreement may resemble a private contract. This agreement can be acknowledged formally or more simply by body language, such as a nod or a gesture. The agreement, in essence, is evidence of "an understanding that the third party will be acting on the government's behalf or for the government's benefit."24 Second, a "prior governmental request for help may have the same effect [as an agreement] even though the third party who acts upon it may make no reply back to the government at the time."25

The discussion of the agency relationship in Bruneau is the New Hampshire Supreme Court's clearest explanation of how and when a third party and the police enter into an agency relationship. But in Bruneau, the court attempted to limit application of its explanation, noting that since "[t]he definition of the agency relationship is a subject of first impression under the State Constitution, ...we approach it with emphasis on the specific context in which it is to be employed." Based on the context of the court's limitation, one can infer that its discussion of the agency relationship in Bruneau should only be generalized to other cases involving interrogation or questioning of a defendant by a third party. Nonetheless, the agency test outlined in Bruneau appears relevant to school cases where a public school official, such as a principal or assistant principal, interrogates a student suspected of violating a school rule or criminal law. Even if the school official involves the police or makes the police aware of the conduct the official proposes, no agency relationship is formed unless there is some greater evidence as of an agreement or understanding between the parties that the school official will be acting on the government's behalf or that the government has made some type of request for assistance.

Thus, in applying Bruneau and reexamining both State v. Tinkham26 and Commonwealth v. Snyder,27 we all see that, in regard to the school officials questioning the students, the conduct of the school officials and the police does not rise to the level of the agency relationship. Whether the searches give rise to an agency relationship is a closer question, given the limitation that preceded the agency discussion in Bruneau. Nonetheless, it is difficult to imagine that a reviewing court would separate the conduct of school officials into narrow and discrete portions. In analyzing a relationship between the police and school officials after school officials have undertaken to search or question a student or a locker, courts should consider the conduct of the school officials and the police in its entirety when applying the agency law outlined in Bruneau.



NH. REV.STAT.ANN§ 193-B:2. Drug-Free School Zones (1991). Except as otherwise provided by law, it shall be unlawful for any person to manufacture, sell, prescribe, administer, dispense, or possess with intent to sell, dispense or compound any controlled drug or its analog, within a drug-free school zone at any time of the year.


State v. Tinkham, 143 N.H. 73, 719 A.2d 580 (1998).


N.H. REV. STAT. ANN § 318-B:2 Acts Prohibited (1969). It shall be unlawful for any person to manufacture, possess, have under his control, sell, purchase, prescribe, administer, or transport or possess with intent to sell, dispense, or compound any controlled drug, or controlled drug analog, or any preparation containing a controlled drug, except as authorized in this chapter.


N.H. CONST. Pt. I, art. 19; U.S. CONST. Amend. IV.


Miranda v. Arizona, 384 U.S. 436, 444-45 (1966)


Tinkham, 143N.H. at 75, 719 A.2d at 582 (citing State v. Drake, 139 N.H. 662, 664, 662 A. 2d, 265, 266 (1995).


State v. Drake, 139 N.H. 662,666,662 A.2d 265, 267-68 (1995).


State v. Gosselin, 131 N.H. 243, 428, 552 A.2d 974, 976 (1988).


Commonwealth v. Snyder, 413 Mass. 521, 597 N.E.2d 1363 (1992).


Id. at 525, 597 N.E. 2d at 1366 (citing State v. Engerud, 94 N.J. 331, 348, 463 A.2d 934, 937 (1983); State v. Michael G., 106 N.M. 644, 646 748 P.2d 17, 21 (Ct. App. 1987); In re Dumas, 357 Pa.Super. 294, 297, 515 A.2d 984,987 (1986);State v. Joseph T., 175 W. Va. 598 606, 336 S.E.2d 728, 736 (1985).


Id. at 527, 597 N.E.2d at 1366 (citing New Jersey v. T.L.O. 469 U.S. 325, 341, 105 S.Ct. 733, 742 (1985); Commonwealth v. Carey, 407 Mass. 528, 533, 554 N.E.2d 1199, 1203 (1990).


Id. (citing New Jersey v. T.L.O., 469 U.S. at 340, 105 S.Ct. At 742) (noting that the warrant requirements is unsuited to the school environment because it would unduly hamper swift and informal discipline of violations of school or criminal law).


Id. at 532, 597 N.E.2d at 1369.




State v. Gosselin, 131 N.H. 243, 552 A.2d 974 (1988).


In her subsequent and extensive interaction with the New Hampshire Attorney General's Office, McGillen indicated that Gosselin had written her other inculpatory letters. These letters were located at the home of Gosselin's sister. McGillen offered to retrieve them and did so. The trial court also suppressed these letters for the same reason it suppressed the first group of letters.


State v. Gosselin, 131 N.H. at 246, 552, A.2d at 975 (citing N.H. CONST. Pt. I, art. 15; U.S. CONST. Amend. VI).


State v. Bruneau, 131 N.H. 104, 108, 552 A.2d 585, 588 (1988).


Gosselin at 243, 552 A.2d at 976-77.


Id. at 243, 552 A.2d at 977-78 (citing United States v. Lynch, 800 F.2d 765, 769 (8th cir. 1986)); Lightbourne v. Dugger, 829 F.2d 1012, 1020 (11th Cir. 1987).


State v. Bruneau,131 N.H. 104, 552 A.2d 585 (1988) (decided December 12, 1988).


State v. Gosselin, 131 N.H. 243, 552 A.2d 974 (1988) (decided December 9, 1998).


Bruneau, 131 N.H. at 109, 552 A.2d at 588.






State v. Tinkham, 143 N.H. 73, 719 A.2d 580 (1998).


Commonwealth v. Snyder, 413 Mass. 521, 597 N.E.2d 1363 (1992).

The Author

Andrew Schuman, Class of 2000, Franklin Pierce Law Center, Concord, New Hampshire.


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