Opinion
E051952
01-31-2012
In re A.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.G., Defendant and Appellant.
Ann Bergen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, Donald W. Ostertag, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
(Super.Ct.No. J233541)
OPINION
APPEAL from the Superior Court of San Bernardino County. William Jefferson Powell IV and Stephanie Thornton-Harris. Affirmed.
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Ann Bergen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, Donald W. Ostertag, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
The juvenile court sustained a petition alleging A.G., a minor, possessed a knife on school grounds (Pen. Code, § 626.20, subd. (a); count 1). The petition also alleged A.G. committed first degree robbery (§ 211; count 2) and first degree residential burglary (§ 459; count 3) on a separate occasion. The court dismissed count 2 (robbery) and A.G. admitted committing count 3 (burglary).
Unless otherwise noted, all statutory references are to the Penal Code.
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A.G. appeals the juvenile court's order adjudicating him a ward of the court under Welfare and Institutions Code section 602, and placing him in the custody of the probation department, pending placement in a foster care facility. A.G. contends the juvenile court committed prejudicial error in denying his motion to suppress evidence recovered when he was searched while attending 29 Palms High School (29 Palms). He claims there was no reasonable suspicion of wrongdoing justifying the search or special need for a suspicionless search. We conclude the search was lawful and affirm the judgment.
II
FACTS
Since this appeal concerns only count 1, possession of a knife on school grounds, we need not summarize the facts relating to the burglary and robbery offenses, which allegedly occurred several months after the knife possession incident. The following facts are derived from testimony provided during a jointly held suppression and jurisdiction hearing.
Deputy Smoot's Testimony
Sheriff's Deputy Smoot (Smoot) testified that on May 4, 2010, 29 Palms staff members and a canine handler searched random classrooms, including A.G.'s. A classroom canine search lasted 15 to 20 minutes. Smoot was a school resource officer at 29 Palms, and was on campus during the canine classroom searches that day. The written policy for canine searches is in the school handbook, which states: "Canine detection units will be utilized by Twenty-nine Palms High School to conduct random searches of students' belongings in the classrooms, lockers, and vehicles."
Normally, when there is a canine search, the principal enters the classroom and tells the teacher there is going to be a canine search. The students leave the classroom and line up along the wall outside the classroom. School staff members conduct the search, not Smoot. Smoot's role was to observe the search. The staff members enter the classrooms with the canine handler and dog. The canine search of the classroom lasts 15 or 20 minutes. When the canine finds contraband, Smoot is notified. His duties included accompanying the principal, vice-principal, the head campus supervisor, who was responsible for campus security, and the canine handler, during the classroom searches.
During the canine searches, the campus is locked down, which means students' movement is restricted. Students cannot go to the restroom unless they are escorted to the main office by a campus supervisor, teacher, or instructor. This is because of the possibility students might discard contraband. After the search, the students reenter their classroom.
On May 4, 2010, numerous randomly selected classrooms were searched, one at a time. Smoot was not present when a student asked to go to the restroom during a classroom search. When Smoot was informed on May 4, 2010, that A.G. was found in possession of a knife, Smoot went to the main office and contacted A.G. There was no interview because Smoot read A.G. his Miranda rights and A.G. invoked them. Deputy Cantu (Cantu), who was on campus during the canine search, gave Smoot A.G.'s knife. Cantu was already in the office detaining another student who had been found in possession of marijuana. A.G.'s knife had a three-and-one-quarter-inch blade. Smoot was not present when A.G. was searched. Smoot issued A.G. a citation for possessing a weapon at school.
Gregory Barber's Testimony
29 Palms administrative assistant, Gregory Barber (Barber), testified that when there is a canine search on campus, he, along with the attendance clerk and receptionist, remain in the front office. If students need to use the restroom during the search, he receives a call from the student's classroom and a campus supervisor or an instructional assistant escorts the student to the front office (main office). The student is escorted to the main office in the event the student tries to discard something on the way. Barber or one of the others in the main office asks the student to empty his or her pockets. The student is not permitted to take anything into the bathroom.
Once a student empties his or her pockets, the student can use the restroom. Afterwards, Barber or one of the other staff members checks the restroom to make sure the student has not discarded anything in the restroom. Barber has consistently followed these policies and procedures during the past three years he has participated in the searches. According to Barber, during school registration, all students are given a policy handbook, which contains a section entitled, "Search, Seizure and Interview Policy."
Barber further testified that on May 4, 2010, while the school was on lockdown during the canine searches, an instructional assistant called and told him a student needed to use the restroom. She then escorted A.G. to the office.
Defense counsel objected on hearsay grounds to Barber's testimony that the instructional assistant told Barber a student needed to use the restroom. The court agreed the testimony was hearsay and stated the testimony would not be considered for the truth of the matter asserted other than for the purpose of establishing that A.G. was brought to Barber's attention and Barber contacted A.G. when A.G. was brought to Barber's attention.
After A.G. arrived at Barber's office, Barber asked A.G. to empty his pockets and take off his shoes. A.G. put his hand in his pocket and then pulled out his hand empty. Barber noticed an obvious lump at the bottom of A.G.'s pocket. Barber asked A.G. what was in his pocket. A.G. pulled out wads of paper. Barber said, "What's this," and tapped the bulge in A.G.'s pants pocket with the back of his hand. A.G. sighed, reached back in his pocket, and said, "Well, it looks like I am going to get suspended again." He then pulled out a folded knife.
Barber then searched A.G.'s shoes and asked him if he needed to use the bathroom. A.G. said no. A.G. appeared frustrated. Barber turned A.G. over to the deputy in the adjacent room and gave A.G.'s knife to the deputy. The deputy did not oversee Barber's search of A.G. The deputy was stationed in the office to watch students who were caught with contraband. After finding the knife, Barber contacted the principal and told her what he had found. Barber then escorted additional students to the bathroom.
When the prosecutor asked Barber if A.G. indicated he needed to use the restroom, Barber testified A.G. did not but that was what Barber's telephone conversation with the instructional assistant was about. Defense counsel objected on hearsay grounds. The trial court sustained the objection and struck the last part of Barber's statement.
Barber testified that during canine searches, students who needed to use the restroom were sent to him. Students were not sent to his office for any other reason. Barber stated, "The ones that come up to the office always come up because they tell somebody in that room that they have to use the restroom. Sometimes it's a teacher, sometimes it's an [instructional assistant] but they are always escorted up by an adult."
Barber stated that the purpose of requiring students to empty their pockets is to see if they have any contraband. If they refuse, they are not forced to empty their pockets. They are told to sit down. The students are not physically searched. The only time Barber touched A.G. was when Barber tapped the bulge in A.G.'s pants pocket with the back of his hand, after A.G. failed to remove his knife from his pocket.
III
MOTION TO SUPPRESS
A.G. contends that the search, uncovering the knife, violated his Fourth Amendment rights because the search was conducted without a reasonable suspicion and did not qualify as a justified special needs administrative search.
A. Standard of Review
When reviewing the trial court's denial of a suppression motion, "we defer to the trial court's express or implied factual findings if supported by substantial evidence, but exercise our independent judgment to determine whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment. [Citations.]" (In re H.M. (2008) 167 Cal.App.4th 136, 142; see also In re Randy G. (2001) 26 Cal.4th 556, 561-562 (Randy G.).) A juvenile court's ruling on a motion to suppress is subject to the same standard of review as a trial court's ruling on a motion to suppress.
B. School Searches
With respect to the Fourth Amendment rights of students on a school campus, public school officials are considered government agents within the purview of the Fourth Amendment, making their conduct subject to the constitutional rights of their students against arbitrary and capricious detentions and unreasonable searches and seizures. (In re Randy G., supra, 26 Cal.4th at p. 567; In re William G. (1985) 40 Cal.3d 550, 561; In re Lisa G. (2004) 125 Cal.App.4th 801, 805.)
There is a recognized need for greater flexibility when examining the Fourth Amendment rights of students because the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds must be balanced against the child's interest in privacy. (N.J. v. T.L.O. (1985) 469 U.S. 325, 339 (T.L.D.).)"[T]he accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. [¶] . . . Under ordinary circumstances, a search of a student by a teacher or other school official will be 'justified at its inception' when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." (Id. at pp. 341-342, fns. omitted.)
"[T]his standard requires articulable facts, together with rational inferences from those facts, warranting an objectively reasonable suspicion that the student or students to be searched are violating or have violated a rule, regulation, or statute. [Citations.]" (In re William G., supra, 40 Cal.3d at p. 564.) "The lesser standard for school searches could as readily be described as a moderate chance of finding evidence of wrongdoing." (Safford Unified Sch. Dist. #1 v. Redding (2009) ___ U.S. ___, ___ [129 S.Ct. 2633, 2639].) This assumes the on-campus search is not conducted by law enforcement agencies. (In re. K.S. (2010) 183 Cal.App.4th 72, 75.)
Fourth Amendment rights are different in public schools than elsewhere because public schools enjoy a unique place in California law. (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 656 (Vernonia).)All public school students and staff have a constitutional right to a safe school: "All students and staff of public primary, elementary, junior high and senior high schools have the inalienable right to attend campuses which are safe, secure and peaceful." (Cal. Const., art. I, § 28, subd. (c).) Consistent with this right, the Legislature has required each school board to establish rules and regulations to govern student conduct and discipline (Ed. Code, § 35291) and has permitted each local district to establish a security department to enforce those rules (Ed. Code, § 38000). (See Randy G., supra, 26 Cal.4th at pp. 562-563.)
In furtherance of protecting students and staff from escalating violence and increasing drug use among students, the courts have upheld warrantless searches and detentions of students under general principles applicable to searches by school authorities, provided appropriate safeguards are available "'to assure that the individual's reasonable expectation of privacy is not "subject to the discretion of the official in the field."'" (T.L.O., supra, 469 U.S. at p. 342, fn. 8; Vernonia, supra, 515 U.S. at p. 653.) "The governmental interest at stake is of the highest order. '[E]ducation is perhaps the most important function of state and local governments.' [Citation.] 'Some modicum of discipline and order is essential if the educational function is to be performed.' [Citation.]" (Randy G., supra, 26 Cal.4th at p. 566 [detention of students on school grounds by campus security guards or other school staff without reasonable suspicion of criminal activity or violation of a school rule is constitutional provided officials do not act in "an arbitrary, capricious, or harassing manner"]; see also In re Latasha W. (1998) 60 Cal.App.4th 1524, 1527 (Latasha W.)[random metal-detector searches of sample of high school students are constitutional].)
The United States Supreme Court in Vernonia, supra, 515 U.S. at page 653, explained that a search unsupported by probable cause may be constitutional "'when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.' [Citation.]" Such "'special needs' . . . exist in the public school context. There, the warrant requirement 'would unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed,' and 'strict adherence to the requirement that searches be based upon probable cause' would undercut 'the substantial need of teachers and administrators for freedom to maintain order in the schools.' [Citation.] The school search we approved in T.L.O., while not based on probable cause, was based on individualized suspicion of wrongdoing. As we explicitly acknowledged, however, '"the Fourth Amendment imposes no irreducible requirement of such suspicion,"' [citations]." (Vernonia, supra, 515 U.S. at p. 653.)
C. Analysis
Here, the canine search of A.G.'s classroom was a lawful "special needs" administrative search. It was lawfully conducted without individualized suspicion. There was no Fourth Amendment violation because the search was in furtherance of an important government interest, that of ensuring the school campus was safe and drug-free. In addition, the intrusion on students was minimal. (Latasha W., supra, 60 Cal.App.4th at p. 1527.) The students were removed from the classroom during the search while a canine search of the students' belongings was conducted. Students attending 29 Palms and their parents were notified in advance that canine searches would be randomly conducted. Each student received a handbook during school registration at the beginning of the year. The handbook stated that "Canine detection units will be utilized by Twenty-nine Palms High School to conduct random searches of students' belongings in the classrooms, lockers, and vehicles."
Courts have consistently upheld special needs searches at schools. (Latasha W., supra, 60 Cal.App.4th at pp. 1526-1527.) For instance, in In re Sean A. (2010) 191 Cal.App.4th 182 (Sean A.), the court upheld a lower court ruling denying a high school student's motion to suppress evidence of drugs found on the student during a search. (Id. at p. 185.) In Sean, Sean was searched after he left and returned to campus during the school day. The school had a written policy that students leaving the campus, unexcused, and returning during the school day were to be searched. (Ibid.)The purpose of the search was to prevent students from bringing onto the campus drugs or weapons, and to keep students safe. (Ibid.) When Sean was told to empty his pockets, he removed a bag containing 44 ecstasy pills. (Ibid.)
On appeal, Sean argued the search was illegal and moved to suppress the evidence. The court in Sean affirmed the trial court ruling denying Sean's motion to suppress the evidence, concluding the search "was consistent with the type of action on the part of a school administrator that falls well within the definition of 'special needs' of a governmental agency as we have outlined in the case law above. Given the general application of the policy to all students engaged in a form of rule violation that can easily lend itself to the introduction of drugs or weapons into the school environment, we conclude that further individualized suspicion was not required. Accordingly, we find the trial court correctly denied the motion to suppress evidence." (Sean A., supra, 191 Cal.App.4th at pp. 189-190.)
Likewise, in Latasha W., supra, 60 Cal.App.4th 1524, Latasha, a high school student, was searched at school during a random daily weapons search. The assistant principal searched Latasha using a hand-held metal detector. (Id. at p. 1526.) The school had a written policy of conducting random daily weapons searches in order to protect students and staff. (Ibid.) The day Latasha was searched, the assistant principal determined that all students arriving more than 30 minutes late or who entered the attendance office without hall passes would be searched. Latasha met these criteria and was searched. She was found possessing a knife. (Ibid.)Latasha moved to suppress the evidence and the trial court denied her motion.
On appeal, the court affirmed, noting that "'special needs' administrative searches, conducted without individualized suspicion, do not violate the Fourth Amendment where the government need is great, the intrusion on the individual is limited, and a more rigorous standard of suspicion is unworkable." (Latasha W., supra, 60 Cal.App.4th at p. 1527.) The Latasha court concluded the search of Latasha met this constitutionality standard. (Ibid.) The Latasha court further explained: "The need of schools to keep weapons off campuses is substantial. Guns and knives pose a threat of death or serious injury to students and staff. The California Constitution, article I, section 28, subdivision (c), provides that students and staff of public schools have 'the inalienable right to attend campuses which are safe, secure and peaceful.'" (Ibid.)
The court in Latasha further concluded that the search was minimally intrusive because only a random sample of students was tested and the students were not touched during the search. They were required to open pockets or jackets only if they triggered the metal detector. (Latasha W., supra, 60 Cal.App.4th at p. 1527.) The Latasha court added, "no system of more suspicion-intense searches would be workable. Schools have no practical way to monitor students as they dress and prepare for school in the morning, and hence no feasible way to learn that individual students have concealed guns or knives on their persons, save for those students who brandish or display the weapons. And, by the time weapons are displayed, it may well be too late to prevent their use." (Ibid.)
A.G. argues that, even if the classroom canine search was a lawful, noticed, special needs search of students' belongings, Barber's search of A.G. in the office was not lawful because there was no notice to students or their parents that students would be searched if they requested to use the restroom during the canine search. The handbook search notice only provided notice there would be classroom canine searches of students' belongings, lockers, and vehicles.
Even though there was no written notice of searching students who used the restroom during the classroom searches, there was sufficient evidence that 29 Palms implemented reasonable policies and procedures allowing students to use the restroom during the canine searches. But advance publicity is not an essential element of a constitutionally permissible program of warrantless administrative search. (People v. Banks (1993) 6 Cal.4th 926, 948-949.) Advance notice of a search is a factor, but not a prerequisite, in assessing the constitutionality of a school search. (See id. at p. 948.)
In evaluating the reasonableness of a school search, we normally balance the compelling nature of the governmental interest in student safety against the extent of the imposition of the targeted students privacy and personal security. (T.L.O., supra, 469 U.S. at p. 342 [court examines whether search of student was "reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction"]; see Latasha W., supra, 60 Cal.App.4th at p. 1527 ["[t]he searches in the present case were minimally intrusive. Only a random sample of students was tested. Students were not touched during the search, and were required to open pockets or jackets only if they triggered the metal detector"].)
Here, the student searches were minimally intrusive and were for the purpose of thwarting students' surreptitious attempts to discard contraband during a canine search. Although, as A.G. argues, the noticed canine searches solely involved searching students' belongings, it is reasonable to assume students in possession of contraband might attempt to discard such items out of fear they might be searched in connection with the canine search. Such searches were minimally intrusive in that only students requesting to use the restroom while their classroom was being searched were subject to a brief search before using the restroom. During the search, students were normally not touched. A school administrator merely instructed the student to empty his or her pockets before using the restroom in the main office.
A.G. complains that Barber touched him during the search. But the only touching consisted of Barber tapping the bulge in A.G.'s pants pocket with the back of his hand, after A.G. failed to remove the item from his pocket, when Barber told him to empty his pockets. The touching was minor and unintrusive.
Under the particular circumstances in this case, we conclude Barber's search of A.G. was lawful. The school's restroom search procedures were well-established, reasonable school procedures, implemented in connection with carrying out a lawful special needs, canine search. Searching students before allowing them to use the restroom were minimally intrusive, and normally school authorities did not physically search students. In addition, the searches were in furtherance of an important government interest, that of maintaining a safe, secure and peaceful school campus free from the proliferation of drugs and weapons. The searches of students requesting to use the restroom during classroom searches were integral to conducting canine searches and were a deterrent to students bringing contraband onto the campus and surreptitiously discarding or concealing it in the restroom during classroom searches.
A.G. argues there was no admissible evidence he requested to use the restroom and therefore no basis for searching him. We disagree. There was sufficient admissible evidence supporting a reasonable inference that A.G. requested to use the restroom and therefore was escorted to the main office and appropriately searched for contraband. Deputy Smoot testified that during canine searches, the campus is locked down, which means students' movement is restricted. Students cannot go to the restroom unless they are escorted by school staff to the main office and searched before using the restroom.
Barber testified that if a student needs to use the restroom during a canine search, Barber receives a call from the student's classroom and a campus supervisor or instructional assistant escorts the student to the main office. The student is escorted to the office in the event the student tries to discard contraband on the way. Normally Barber or one of the office workers asks the student to empty his or her pockets before using the restroom. Barber claimed he consistently followed these policies and procedures.
Barber stated that on May 4, 2010, while the school was on lockdown during the canine searches, an instructional assistant called and told him a student needed to use the restroom. The instructional assistant then escorted A.G. to the office. The trial court sustained defense counsel's hearsay objection to Barber's testimony that he was told a student needed to used the restroom. The court stated that the testimony could not be considered for the truth of the matter asserted, other than for the purpose of establishing that A.G. was brought to Barber's attention and Barber contacted him. After A.G. arrived at the main office, Barber told A.G. to empty his pockets and A.G. reluctantly pulled out a folded knife. Based on this evidence, it can be reasonably inferred that A.G. was brought to the office and searched because he had requested to go to the restroom.
In addition, Barber testified that, during canine searches, students who needed to use the restroom were sent to him. Students were not sent to his office for any other reason. Barber stated: "The ones that come up to the office always come up because they tell somebody in that room that they have to use the restroom. Sometimes it's a teacher, sometimes it's an I.A. but they are always escorted up by an adult."
The fact that, after A.G. was searched, A.G. told Barber he did not need to use the restroom does not negate the inference that A.G. was escorted to the office because he had requested to use the restroom. It can be reasonably inferred that, once A.G. was caught in possession of the knife, he no longer had any incentive or need to use the restroom. The evidence was more than sufficient to establish that A.G. requested to use the restroom while his classroom was being searched. This is why he was escorted to the office and searched.
Furthermore, Barber's search of A.G. was not unlawful because Barber had an individualized, reasonable suspicion A.G. possessed contraband by virtue of A.G. requesting to use the restroom during the brief classroom search and then by failing to remove everything from his pockets when instructed to do so. When Barber touched A.G.'s pocket, the search did not constitute a violation of A.G.'s Fourth Amendment right to be free from unreasonable searches and seizures because the minor touching was in response to A.G. intentionally failing to remove everything from his pockets.
A student search is reasonable when the action is "'justified at its inception' and the search, as actually conducted, [is] '"reasonably related in scope to the circumstances which justified the interference in the first place."' [Citation.] 'Under ordinary circumstances, a search of a student by a teacher or other school official will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.' [Citation.]" (In re William V. (2003) 111 Cal.App.4th 1464, 1469.)
Here, Barber's search of A.G. was permissible in scope. It was reasonable for Barber to suspect that A.G. was concealing contraband in his pocket when A.G. initially failed to removed an apparent item remaining in his pocket. When Barber tapped A.G.'s pocket with his hand, Barber had an individualized reasonable suspicion that A.G. possessed contraband. The measures adopted were reasonably related to the objectives of the search and not excessively intrusive. (In re William V., supra, 111 Cal.App.4th at p. 1469.) When A.G. was searched, 29 Palms administrators followed established school procedures for conducting canine searches and related searches of students requesting to use the bathroom during the canine searches. In the process of Barber and other school staff following these procedures, Barber had reasonable grounds to suspect that A.G. possessed contraband. Based on this reasonable suspicion, Barber conducted a lawful, minimally intrusive, constitutional search of A.G.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur: Hollenhorst
Acting P.J.
King
J.