In re Sean A.

• Decision Date: 22 December 2010
• Docket Number: No. D056026.,D056026.
• Citation: 263 Ed. Law Rep. 824,10 Cal. Daily Op. Serv. 15, 907,191 Cal.App.4th 182,120 Cal.Rptr.3d 72
• Court: California Court of Appeals Court of Appeals
• Parties: In re SEAN A., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Sean A., Defendant and Appellant.

191 Cal.App.4th 182

120 Cal.Rptr.3d 72

263 Ed. Law Rep. 824

10 Cal. Daily Op. Serv. 15,907

2010 Daily Journal D.A.R. 19,159

In re SEAN A., a Person Coming Under the Juvenile Court Law.The People, Plaintiff and Respondent,

v.Sean A., Defendant and Appellant.

No. D056026.

Court of Appeal, Fourth District, Division 1, California.

Dec. 22, 2010.

**73 Appellate Defenders, Inc., San Diego, and Jason L. Nienberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, Acting P.J.

*184 The juvenile court declared Sean A. a ward of the court (Welf. & Inst.Code, § 602) and placed him on probation after Sean admitted to possessing a controlled substance for sale in violation of Health and Safety Code section 11378.

*185 Sean appeals, contending that the juvenile court erred by denying his motion to suppress evidence obtained as a result of a search of his person by a public high school official premised on the fact that he left and returned to campus during the school day. Sean also challenges one of the conditions of his probation.

We conclude that the search was lawful, and that Sean has waived any objection to his probation conditions by failing to object in the juvenile court.

FACTUAL AND PROCEDURAL BACKGROUND

Sean, who was a student at a public high school, was observed by an attendance clerk as he was returning to campus in the middle of the school day. The assistant principal reviewed Sean's attendance record for the day and noticed that Sean had been absent from his period 1 and 2 classes, present for his period 3 class, and then absent from his period 4 class.

The high school conducts searches of students who leave campus and then return**74 during the school day. Specifically, the school's written policy, set forth in the behavior code section of the school's student handbook, states that "students who return to campus after being 'out-of-bounds' are subject to a search of their person, their possessions, and vehicle when appropriate." ¹ The assistant principal testified, "I search every student who leaves campus and comes back." He stated that the purpose of the rule is to "keep students that are on campus safe" and to ensure that "nobody's bringing anything on campus they shouldn't."

Having determined from Sean's attendance record that he had left and returned to campus, the assistant principal called Sean to his office. Sean told the assistant principal that he went home to retrieve a notebook.

The assistant principal asked Sean to empty out the contents of his pockets. One of Sean's pockets held a plastic bag containing 44 pills of methylenedioxy-methamphetamine (commonly known as MDMA or ecstasy). After being arrested, Sean apparently told police that he left campus to pick up the pills and had sold some of them on the way back to campus.²

*186 A petition was filed against Sean in juvenile court under Welfare and Institutions Code section 602, alleging (1) unlawful possession of a controlled substance for the purpose of sale; and (2) unlawful possession of a controlled substance.

Sean brought a motion to suppress the evidence obtained as a result of the assistant principal's search of him, contending that the search was unlawful. After hearing the testimony of the assistant principal and receiving exhibits, including a handbook setting forth the high school's policies, the juvenile court denied the motion to suppress, stating that it believed the high school's policy of searching students who left and returned to campus was "in line with the Constitution" and did not "effectively deny students on campus ... the right to be free from search or seizure."

Sean subsequently admitted to possessing a controlled substance for sale in violation of Health and Safety Code section 11378. The district attorney dismissed the simple possession count, and the juvenile court placed Sean on probation.

DISCUSSION

ITHE SEARCH OF THE MINOR WAS PROPER

A. Standard of Review

On appeal from a ruling denying a motion to suppress evidence, we "exercise our independent judgment to determine whether, on the facts found by the court, the search was reasonable under the Fourth Amendment [of the United States Constitution (the Fourth Amendment) ]." ( In re Lisa G. (2004) 125 Cal.App.4th 801, 805, 23 Cal.Rptr.3d 163 ( Lisa G.).) If any findings of fact are challenged, we apply a substantial evidence standard of review. ( Ibid.)

**75 The Fourth Amendment protects students on a public school campus against unreasonable searches and seizures. ( In re Randy G. (2001) 26 Cal.4th 556, 567, 110 Cal.Rptr.2d 516, 28 P.3d 239; In re William G. (1985) 40 Cal.3d 550, 561, 221 Cal.Rptr. 118, 709 P.2d 1287.) However, strict application of the principles of the Fourth Amendment as used in criminal law enforcement matters does not appropriately fit the circumstances of the operation of the public schools. The need to maintain discipline, provide a safe environment for learning and prevent the harmful impact on the students and staff of drugs and weapons cannot be denied.

*187 Our Supreme Court in In re Randy G., described the societal interest in safe schools in compelling terms. The court stated: "The governmental interest at stake is of the highest order. '[E]ducation is perhaps the most important function of state and local governments.' ( Brown v. Board of Education (1954) 347 U.S. 483, 493 [74 S.Ct. 686, 98 L.Ed. 873].) 'Some modicum of discipline and order is essential if the educational function is to be performed.' ( Goss v. Lopez [ (1975) 419 U.S. 565, 580, 95 S.Ct. 729, 42 L.Ed.2d 725].) School personnel, to maintain or promote order, may need to send students into and out of classrooms, define or alter schedules, summon students to the office, or question them in the hall. Yet, as the high court has observed, school officials 'are not in the business of investigating violations of the criminal laws ... and otherwise have little occasion to become familiar with the intricacies of this Court's Fourth Amendment jurisprudence.' ( Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602, 623 [109 S.Ct. 1402, 103 L.Ed.2d 639] [ ( Skinner ) ].) Those officials must be permitted to exercise their broad supervisory and disciplinary powers, without worrying that every encounter with a student will be converted into an opportunity for constitutional review. To allow minor students to challenge each of these decisions, through a motion to suppress or in a civil rights action under 42 United States Code section 1983, as lacking articulable facts supporting reasonable suspicion would make a mockery of school discipline and order." ( In re Randy G., supra, 26 Cal.4th at p. 566, 110 Cal.Rptr.2d 516, 28 P.3d 239.)

In New Jersey v. T.L.O. (1985) 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 ( T.L.O.), the court recognized the legitimate needs of schools to maintain a safe environment. The court there, dealing with an individualized search of a student who had been seen smoking in the restroom, found that the requirement for probable cause as applied to law enforcement would be inappropriate for the school environment. The court declared that reasonable suspicion on the part of administrators was sufficient to meet the demands of the Fourth Amendment. The court recognized the applicability of the "special needs" exception to the general principles of the Fourth Amendment jurisprudence applied to the public school environment. ( Id. at p. 333, 105 S.Ct. 733.)

The Court of Appeal in In re Latasha W. (1998) 60 Cal.App.4th 1524, 1527, 70 Cal.Rptr.2d 886 ( Latasha W.), aptly summarized the school cases. "The school cases just cited are part of a larger body of law holding 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. ( Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646 [115 S.Ct. 2386, 132 L.Ed.2d 564] [ ( Vernonia ) ] [upholding random drug testing of student athletes]; **76 Michigan Dept. of State Police v. Sitz (1990) 496 U.S. 444 [110 S.Ct. 2481, 110 L.Ed.2d 412] [upholding random sobriety checkpoints designated to locate drunk drivers]; *188 Skinner [ , supra,] 489 U.S. 602 [109 S.Ct. 1402, 103 L.Ed.2d 639] [upholding postaccident drug testing of railroad employees]; Treasury Employees v. Von Raab (1989) 489 U.S. 656 [109 S.Ct. 1384, 103 L.Ed.2d 685] [upholding suspicionless drug testing of customs officials]; United States v. Martinez-Fuerte (1976) 428 U.S. 543 [96 S.Ct. 3074, 49 L.Ed.2d 1116] [upholding vehicle stops at fixed checkpoints to search for illegal aliens]; Camara v. Municipal Court (1967) 387 U.S. 523 [87 S.Ct. 1727, 18 L.Ed.2d 930] [upholding searches of residences by housing code inspectors].)" ( Latasha W., supra, at p. 1527, 70 Cal.Rptr.2d 886.)

The court in Latasha W. dealt with a search process different than that employed in T.L.O., supra, 469 U.S. 325, 105 S.Ct. 733. The minor in Latasha W., supra, 60 Cal.App.4th 1524, 70 Cal.Rptr.2d 886, was searched as part of a suspicionless search for weapons. The school district in that case developed a policy of random weapons screening with a handheld metal detector. The policy was written and made known to both students and parents.

On the particular day that the minor in Latasha W. was searched the principal had determined that those students who entered the attendance office without hall passes and those who were late within a half hour after 8:09 a.m. would be searched. The minor in Latasha W. was one of eight to ten students who met these criteria and were searched. After the metal detector beeped she was asked to open her pockets revealing a knife. ( Latasha W., supra,...