In re Kavon P.

• Decision Date: 27 May 2016
• Docket Number: No. 2499,2499
• Parties: IN RE: KAVON P.
• Court: Court of Special Appeals of Maryland

IN RE: KAVON P.

No. 2499

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

May 27, 2016

UNREPORTED

Friedman, Raker, Irma S. (Retired, Specially Assigned), ^*Zarnoch, Robert A. (Retired, Specially Assigned), JJ.

Opinion by Raker, J.

^*Zarnoch, Robert A., J., participated in the conference of this case while an active member of this Court; he participated in the adoption of this opinion as a retired, specially assigned member of this Court.

**This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellant Kavon P. appeals from the adjudication by the Circuit Court for Wicomico County, sitting as the juvenile court, that he was involved in carrying and possessing a knife on public school property. At the adjudicatory hearing, appellant moved to suppress the knife as fruit of an unlawful search performed by a public school official. The court denied the motion. He raises the following question for our consideration:

"Did the trial judge err in denying the motion to suppress evidence recovered in the unlawful search of Kavon P.'s person and property?"

We answer this question in the affirmative, and we shall reverse.

I.

On September 30, 2014, a teacher at James M. Bennett High School observed a bottle of prescription medication on appellant's desk. By school policy, all medication must be dispensed through the nurse's office, thus the teacher reported the incident to Assistant Principal Courtney Lewis. Ms. Lewis went to the classroom and escorted appellant to her office. In response to Ms. Lewis's question, appellant admitted that he had the prescription medication and he gave the bottle to Ms. Lewis. Ms. Lewis saw that the medication had been prescribed to Kavon P. and she ascertained that the medicine was an antihistamine. Ms. Lewis asked appellant if he had any other medication with him, and appellant said no. She asked appellant to empty his pockets, remove his shoes and socks, and then she searched appellant's bookbag. She found a pocket knife with a three- to four-inch blade.

On November 19, 2014, the State filed in the juvenile court a petition charging appellant with one count of carrying and possessing a knife on public school property, in violation of Section 4-102 of the Criminal Law Article. See Md. Code (2002, 2012 Repl. Vol.), § 4-102 of the Criminal Law Article. At the adjudication hearing, appellant moved to suppress the knife as fruit of an unlawful search. The parties agreed that the defense motion to suppress the evidence would be reviewed by the trial court on the basis of the testimony presented for adjudication of the delinquency charge.

The State called Ms. Lewis to testify during the suppression portion of the adjudicatory hearing. The following colloquy between Ms. Lewis and the prosecutor took place:

"[PROSECUTOR]: So you came back in the office, where were the initial pills that you saw?

LEWIS: I think [appellant] had them in his pocket. I don't remember. In the class the teacher had said that [appellant] had had them out, like, on his desk, and the teacher had reported that to me.

So when I went to go and pick him up from class, I think he had them in his, like, pocket of his sweatshirt.

[PROSECUTOR]: Okay. And what's the school protocol about whether students can have even prescription pills in their possession?

LEWIS: Students aren't allowed to have any kind of medication, over-the-counter, prescription, none. It all has to be dispensed through the nurse's office.

[PROSECUTOR]: Okay. So you come back to the office, you first discover that he has these prescription pills?

LEWIS: Yes.

[PROSECUTOR]: Do you recall what they were or what . . .

LEWIS: I think it was like an antihistamine or something like that.

[PROSECUTOR]: Okay. And what is—

LEWIS: It was prescribed to him. I mean, his name was on the bottle. But, nonetheless, he is still not allowed to have it.

[PROSECUTOR]: What, if any, personal possessions did he have with him when he came back to the office?

LEWIS: In his bookbag?

[PROSECUTOR]: Well, I mean, a bookbag, he had a bookbag?

LEWIS: Right, he had a bookbag, yeah, with I think there was some notebooks, paper, pencils.

[PROSECUTOR]: Okay. So at that point what did you feel your obligation under school protocol to determine his possession of items was?

LEWIS: Because of our protocol that we have, if he is in possession of something we search them to see, to make sure that there's nothing else that they have that they're not supposed to.

[PROSECUTOR]: And how did you conduct that search?

LEWIS: I just had him in my office and asked him to open his, you know, pull out his pockets.

We have them take off their shoes, take off their socks, I went through his bookbag, all of the pockets of his bookbag."

During cross-examination, defense counsel questioned Ms. Lewis as follows:

"[DEFENSE COUNSEL]: Ms. Lewis, you were initially called to a classroom, correct, because of a disturbance in the classroom?

LEWIS: No, it wasn't a disturbance. It was that, it was reported that he had medication.

[DEFENSE COUNSEL]: Okay. So you were initially called to the classroom because you heard that my client had medication?

LEWIS: The teacher had reported that, yes.

[DEFENSE COUNSEL]: So you take my client back to your office, correct?

LEWIS: Correct.

[DEFENSE COUNSEL]: And at some point following that he disclosed to you that he did, in fact, have prescription medication on his person, correct?

LEWIS: Yes.

[DEFENSE COUNSEL]: And he gave you that prescription medication?

LEWIS: Yes.

[DEFENSE COUNSEL]: Did you ask him if he had anything else on his person, any other medication?

LEWIS: I believe I did, but he didn't have anything else.

[DEFENSE COUNSEL]: And did he tell you that he didn't have anything else?

LEWIS: I think when I asked him do you have any other pills or medicine, he said no.

* * *

[DEFENSE COUNSEL]: . . . And these pills, to the best of your knowledge, were antihistamines?

LEWIS: I believe so. It was a prescription bottle with his name on it. They were prescribed to him.

[DEFENSE COUNSEL]: But it didn't immediately jump out to you as a drug of abuse, did it?

LEWIS: Oh, well, I looked at the pill bottle to see what it said, and then I go online to the pill finder website to see exactly what it is. And I think it was an antihistamine.

[DEFENSE COUNSEL]: And it was prescribed to [appellant], correct?

LEWIS: Correct."

The court denied the motion. Following further testimony, the court found appellant involved and released appellant to his mother on GPS monitoring until the disposition hearing. At the disposition hearing, the court committed appellant to the Department of Juvenile Services for a non-community-based residential placement.

This timely appeal followed.

II.

Before this Court appellant argues that the trial judge erred in denying his motion to suppress evidence recovered during the search of his person and bookbag. He argues that the assistant principal's search of his bag violated his rights under the Fourth Amendment to the United States Constitution and Article 26 of the Maryland Declaration of Rights. Appellant contends that the search conducted by the assistant principal was illegal because it was not valid at its inception, as it was not based on a sufficiently reasonable basis to justify the search. He points to the following facts that suggest the search was not reasonable: appellant did not deny that he possessed the medication or make any attempt to conceal it, but instead turned it over to Lewis upon request; the prescription on the bottle was in his name, was "a relatively innocuous allergy medicine," and there was no indication that appellant was attempting to distribute the medication; and, appellant had no history of past disciplinary infractions. Appellant notes that there was no evidence presented that Ms. Lewis did not believe appellant's contention that he had no additional medication on him, and thus there was nothing other than the violation of the school policy offered as a basis for the search. Appellant suggests that in light of these facts, the only purpose of the search was to investigate possible infractions on "an inchoate and unparticularized suspicion," which is not permitted under the Fourth Amendment.

The State argues that the court properly denied appellant's motion to suppress evidence recovered during a search of his bookbag. The State argues that the assistant principal had an objectively reasonable suspicion that a search of appellant's bookbag would reveal other medications beyond those that he had given her initially . The State suggests that appellant's possession of the medication creates the reasonable suspicion to believe that he may have been in possession of additional medications, which is in violation of school rules. The State contends that the school policy is reasonable, because prescription medication that is safe for one person may be unsafe for others, and the presence of medication on appellant's desk could create a disruption for other students.

III.

In the case sub judice, we apply the standard of review as set out by this Court in Brewer v. State, 220 Md. App. 89, 99 (2014):

"In reviewing a trial court's denial of a motion to suppress evidence, we base our decision solely upon the 'facts and information contained in the record of the suppression hearing.' We then extend great deference to the suppression judge with respect to the determination and weighing of first-level findings of facts, which we will not disturb unless clearly erroneous, and we view all facts in the light most favorable to the State as the prevailing party. We also apply a de novo standard of review, making our 'own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.'"

(internal citations omitted). Here, the parties agreed that the suppression motion would be...