Guillermo M., In re

• Citation: 181 Cal.Rptr. 856,130 Cal.App.3d 642
• Decision Date: 13 April 1982
• Docket Number: Cr. 40440
• Court: California Court of Appeals
• Parties: , 3 Ed. Law Rep. 694 In re GUILLERMO M., A Person Coming Under the Juvenile Court Law. The PEOPLE, Petitioner and Respondent, v. GUILLERMO M., Appellant.

Page 856

181 Cal.Rptr. 856

130 Cal.App.3d 642, 3 Ed. Law Rep. 694

In re GUILLERMO M., A Person Coming Under the Juvenile Court Law.

The PEOPLE, Petitioner and Respondent, v. GUILLERMO M., Appellant.

Cr. 40440.

Court of Appeal, Second District, Division 5, California.

April 13, 1982.

Rehearing Denied June 9, 1982.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Jonathan B. Steiner, Chief Asst. State Public Defender, for appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Gary R. Hahn and Richard B. Cullather, Deputy Attys. Gen., for petitioner and respondent.

STEPHENS, Acting Presiding Justice.

A petition before the juvenile court against appellant, a minor, for possessing a knife with a 4-inch blade on public school grounds in violation of Penal Code section 626.10, a misdemeanor, was sustained. Appellant was made a ward of the court pursuant to Welfare and Institutions Code section 602 and placed on probation at home in his mother's custody with a number of conditions.

On appeal, appellant contends that he was illegally detained by the school's security agent and that consequently the knife seized by the agent and appellant's later statement admitting ownership of the knife should have been suppressed.

The relevant facts are that appellant was coming onto campus on December 16, 1980, when a security agent for the school district noticed unusually large bulges in the front pockets of appellant's pants. The agent questioned appellant as he walked by about the bulges, believing them to be knives by their size and outline. The agent knew that appellant had been in trouble before and associated with a gang. The agent was familiar with the type of knives in question.

Appellant responded that the bulges were pencils and kept walking. The agent then asked to see the pencils but appellant continued to walk, feigning not to hear the agent. Appellant was stopped by the agent and patted down. The agent felt a knife in each pocket and removed them. Later that day, after being advised of and waiving his rights, appellant stated to a police officer that he owned the knives.

Appellant asserts that under Dyas v. Superior Court (1974) 11 Cal.3d 628, 114 Cal.Rptr. 114, 522 P.2d 674, the Fourth Amendment should apply to school security agents, as they act under color of state law and are state officials. If they are not held to be state officials, then appellant maintains that the Fourth Amendment should still apply under People v. Zelinski (1979) 24 Cal.3d 357, 366, 155 Cal.Rptr. 575, 594 P.2d 1000 as the agents perform "quasi-law enforcement" duties and bring "violators of the law to public justice."

We hold here that the security agent for the school was properly acting within the scope of his employment. Dyas and Zelinski are inapplicable to the instant case.

Under Education Code section 39670 ¹, school agents are responsible for insuring "the security of school district personnel and pupils and the security of the real and personal property of the school district." Education Code section 39671 and Penal Code section 830.4, subdivision (g) confer "peace officer" status on the agents in carrying out their duties, giving them the authority to prevent violations of the law and to arrest where probable cause exists. (Pen.Code, § 836; In re Ruth H. (1972) 26 Cal.App.3d 77, 81, 102 Cal.Rptr. 534.) However, both Education Code sections 39670 and 39671 make clear that the agents are not to have general police powers and that these powers are supplementary to local law enforcement. (See 58 Ops.Cal.Atty.Gen. 363 (1975).)

Turning to the facts here, appellant was coming onto school grounds with bulges in both pockets. Experience and observation indicated to the agent that knives were probably in appellant's pockets. Appellant's response that the bulges resulted from pencils and appellant's continued movement away from the agent entitled him to stop appellant and to pat him down. With his suspicions confirmed by feeling the knives in appellant's pockets, he could retrieve them. The agent properly exercised his responsibility in maintaining the security of the school's personnel and pupils. The knives and appellant's later statement of ownership were admissible.

Dyas concerned the issue of whether a Housing Authority patrolman was acting as a peace officer or private citizen in conducting a search in question. The defendant sought to have the patrolman classified as a peace officer so he could bring the search within the safeguards of the Fourth Amendment. (Dyas v. Superior Court, supra, 11 Cal.3d at pp. 631-632, 114 Cal.Rptr. 114, 522 P.2d 674.)

The court found that the patrolman "was armed with a revolver, carried handcuffs, and had a two-way radio in his patrol car. Nor did he hesitate to use these indicia of authority in the manner in which they were intended. As we have seen, he radioed for a 'back-up unit,' ordered defendant to stand spreadeagled against a wall, conducted a pat-down search of defendant's clothing, drew his gun when defendant resisted, arrested and handcuffed defendant on finding contraband, and held him in custody in the patrol car until assistance arrived. Clearly these are the acts of a law enforcement officer." (Dyas, supra, at pp. 633-634, 114 Cal.Rptr. 114, 522 P.2d 674.)

The court held that the patrolman was not acting as a private citizen but was exercising a public function and came under the constraints of the Fourth Amendment and article I, section 13, of the California Constitution. (Dyas, supra, at p. 636, 114 Cal.Rptr. 114, 522 P.2d 674.)

In determining whether the patrolman's conduct fell within the purview of the Fourth Amendment, "The controlling question, therefore, is not the 'mission' of the governmental agency. ["Primary mission" to enforce the law was determinative in People v. Wright (1967) 249 Cal.App.2d 692, 694-695, 57 Cal.Rptr. 781.] Whether the exclusionary rule should be invoked depends instead on whether to do so would deter the particular governmental employee, and others similarly situated, from engaging in illegal searches of private citizens. And that question, in turn, depends on such considerations as the training or experience, responsibilities or duties of the employee in question." (Dyas, supra, at p. 635, 114 Cal.Rptr. 114, 522 P.2d 674.)

Dyas' concern was the protection of private citizens from illegal searches and seizures. Here the concern is with security agents maintaining the...