Three years after then 17-year-old Londonderry High School student Joseph Heirtzler was charged with drug possession and distribution after being questioned and searched by school officials, the New Hampshire Supreme Court gave Heirtzler and legions of New Hampshire students to come a constitutional Christmas present. On December 24, the court ruled that his interrogation and search was unconstitutional because school officials were acting as agents of the police, but failed to afford Heirtzler the constitutional protections (e.g. a Miranda warning) police must grant criminal suspects.

The opinion, written by Chief Justice David Brock, with Justices Joseph Nadeau and Linda Dalianis concurring, upheld a lower court ruling that suppressed the evidence against Heirtzler. Rockingham Superior Court Judge Patricia Coffey threw out the evidence because school officials failed to read Heirtzler his Miranda rights. The state appealed.

Heirtzler's encounter with authority began when a teacher saw him pass a piece of folded tinfoil to another student, who removed something from it, placed the unknown object in a piece of cellophane, then passed the tinfoil back to Heirtzler, according to the Supreme Court opinion. The teacher notified Londonderry police officer Michael Bennett, who was assigned to the school, who in turn passed the information on to Assistant Principal James O'Neill.

"O'Neill and another assistant principal, Robert Shaps, called the defendant to the office, questioned him and asked if they could search him," the court wrote. "The defendant complied with the search request, and a piece of paper wrapped in tinfoil was found in his cigarette pack. After further questioning, the defendant stated that the piece of paper might be LSD."

Re-enter the police. Based on evidence developed by O'Neill and Shaps working in concert with police officer Bennett, Heirtzler was charged with drug possession and distribution. And therein was the constitutional problem.

"Because O'Neill and Shaps were acting as agents of the police and failed to comply with the procedural safeguards required when the state interrogates and searches a defendant, the trial court granted the defendant's motion to suppress," the Court wrote.

Rockingham County Attorney Jim Reams told the Manchester Union Leader he disagreed with the ruling. "I don't agree with it, but it's the law, so I'll live with it," he said. "We don't think that the school was acting on the government's behalf or for the government's benefit."

But in its opinion, the court cited unchallenged testimony from the original trial court, writing: "The record supports the trial court's conclusion that a prior agreement existed between the department and school officials for purposes of establishing that an agency relationship existed. Bennett testified that he delegated the responsibility of investigating less serious, potential criminal matters -- drug cases -- to school officials, and O'Neill confirmed that this was a 'fair' characterization of the arrangement between the school and the department... Bennett also conceded that a 'silent understanding' existed between him and school officials that passing information to the school when he could not act was a technique used to gather evidence otherwise inaccessible to him due to constitutional restraints. The school, by "a mere wink or nod" or something more concrete, agreed to investigate certain potential criminal matters on the State's behalf or for its benefit."

The New Hampshire Supreme Court thus put the kibosh on one more effort to circumvent the constitution in the name of a greater good, this time by enlisting school administrators as deputies in the war on drugs.

The case against Heirtzler has not gone to trial yet, but without the evidence derived from the illegal search and seizure, there doesn't appear to be much to try him on. County Attorney Reams conceded as much: "We'll have to review the remaining evidence to see if we have enough to go forward and make our charging decision based on what evidence we have left," Reams told the Union Leader.

-- END --
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Issue #218, 1/4/02 Editorial: Worse Than Nothing | Mississippi Policeman Killed in Late December Drug Raid, Law Enforcement Dissidents Call for Better Way | Draconian New Ecstasy Law Now in Effect in Illinois | Interview: Kenneth Curtis, the South Carolina Urine Felon | Afghan Opium Production Set to Boom Again with Taliban Gone | Shining Path Reemerges in Peru, Maoist Guerrillas Profit from Prohibition in the Andes | London Police Extend Cannabis Decriminalization Experiment | New Hampshire Supreme Court: If Schools Want to Act as Police, They Must Follow Constitutional Standards | Media and Resources: New CSDP Drug Warrior Distortions Guide, Jefferson Fish in Newsday, Reason Magazine | Job Opening: Santa Monica | Internships at DRCNet | Alerts: Bolivia, HEA Drug Provision, DEA Hemp Ban, Ecstasy Bill, Mandatory Minimums, Medical Marijuana | The Reformer's Calendar
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