Joseph G., In re

• Decision Date: 10 March 1995
• Docket Number: No. D020115,D020115
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Ed. Law Rep. 1109 In re JOSEPH G., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. JOSEPH G., a Minor, Defendant and Appellant.

Page 902

38 Cal.Rptr.2d 902

32 Cal.App.4th 1735, 97 Ed. Law Rep. 1109

In re JOSEPH G., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. JOSEPH G., a Minor, Defendant and Appellant.

No. D020115.

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

March 10, 1995.

Review Denied June 14, 1995.

[32 Cal.App.4th 1737] Jan Stiglitz, under appointment by the Court of Appeal, San Diego, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Keith I. Motley and M. Howard Wayne, Deputy Attys. Gen., for plaintiff and respondent.

KREMER, Presiding Justice.

Joseph G. appeals the juvenile court's order declaring him a delinquent minor following true findings he carried a loaded firearm at school, carried a loaded firearm in a public place and carried a concealed weapon (Pen.Code, §§ 626.9, ¹ subd. (a), 12031, subd. (a)(1), 12025, subd. (a)(2)).

On the afternoon of Wednesday, October 20, 1993, the vice-principal at Mt. Miguel High School received a call from a parent of a student. The caller apparently identified herself but asked for confidentiality because she feared for her son's safety. She told the vice-principal her son had seen Joseph with a pistol at a high school football game the previous Friday evening. She explained she was reporting the incident in the interests of safety.

Because all the students had left for the day, the vice-principal waited until the next morning to open Joseph's locker. The vice-principal was accompanied by a campus security guard. Inside Joseph's locker they found only books. They closed the locker and went to a neighboring classroom to prepare it for in-school suspension.

When the vice-principal and security guard left that classroom about five minutes later The court denied Joseph's motion to suppress evidence. (Welf. & Inst.Code, § 700.1.) Joseph contends the court erred in denying the motion, in entering true findings of both carrying a gun in a public place and carrying a gun on school grounds and in failing to stay disposition for carrying a gun in a public place (§ 654).

they saw Joseph putting a backpack into his locker. They waited a few minutes until the next class had begun and then opened the locker. Inside Joseph's backpack they found a loaded handgun.

DISCUSSION

I

Joseph contends the court erred in denying his motion to suppress evidence.

On appeal from the denial of a suppression motion, the court reviews the evidence in a light favorable to the trial court's ruling. (Guidi v. Superior Court (1973) 10 Cal.3d 1, 10, fn. 7, 109 Cal.Rptr. 684, 513 P.2d 908.) We must uphold those express or implied findings of fact by the trial court which are supported by substantial evidence and independently determine whether the facts support the court's legal conclusions. (People v. Leyba (1981) 29 Cal.3d 591, 596-598, 174 Cal.Rptr. 867, 629 P.2d 961.)

" 'The Fourth Amendment proscribes all unreasonable searches and seizures, ...' [Citations.]" (In re Tyrell J. (1994) 8 Cal.4th 68, 76, 32 Cal.Rptr.2d 33, 876 P.2d 519.) "The balancing of competing interests to determine the scope of Fourth Amendment protections in a particular setting is well settled. Whether a particular search is reasonable depends on a balancing of 'the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.' [Citation.]" (In re William G. (1985) 40 Cal.3d 550, 563, 221 Cal.Rptr. 118, 709 P.2d 1287.) " '[I]t is a cardinal principle that "searches conducted outside the judicial process, without prior approval by judge or magistrate are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." ' [Citations.]" (In re Tyrell J., supra, 8 Cal.4th at p. 76, 32 Cal.Rptr.2d 33, 876 P.2d 519.)

In New Jersey v. T.L.O. (1985) 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720, the Supreme Court recognized an exception to the warrant and probable cause requirement for searches conducted by public school officials. The Supreme Court balanced the privacy interests of the students against "the substantial need of teachers and administrators for freedom to maintain order in the schools" and concluded a search of a student would 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 school." (Id. at pp. 341-342, 105 S.Ct. at pp. 741-742, fn. omitted.) The United States Supreme Court further stated: "[s]uch 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." (Id. at p. 342, 105 S.Ct. at p. 743, fn. omitted.)

The California Supreme Court in In re William G., supra, 40 Cal.3d at p. 564, 221 Cal.Rptr. 118, 709 P.2d 1287, elaborated the standard necessary to support a search by school officials of a student:

"There must be articulable facts supporting that reasonable suspicion [that the student or students to be searched have engaged, or are engaging, in a proscribed activity (that is, a violation of a school rule or regulation, or a criminal statute) ]. Neither indiscriminate searches of lockers nor more discreet individual searches of a locker, a purse or a person, here a student, can take place absent the existence of reasonable suspicion. Respect for privacy is the rule--a search is the exception.

"In sum, this 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. [Citation.] The corollary to this rule is that a search of a student by a public school official is unlawful if predicated on mere curiosity, rumor, or hunch. [Citation.]"

Joseph contends the vice-principal searched his locker without a reasonable belief it contained the gun. He claims the search was unreasonable because the information he had a gun came from an anonymous source and the information was remote in time and place. He further asserts that even if the first search were lawful, there was no cause to search the locker the second time.

Initially, we observe, it does not appear the parent was actually anonymous. During the cross-examination of the vice-principal, after defense counsel confirmed the caller was a woman, counsel asked, "Who was that person?" The vice-principal responded, "Well, she asked for confidentiality. Shall I give her name?" At this point, a discussion ensued between court and counsel as to whether the court should require the name be revealed. The court declined to order disclosure of the caller, having concluded the need to protect the safety of children at school outweighed the benefit of disclosing the caller's name. Thus, it appears from the vice-principal's response about whether he should reveal the caller's name and the subsequent discussion between court and counsel that the caller identified herself.

Further, the fact a school official does not know or remember the name of an individual reporting a violation of the law, particularly involving handguns, is but one factor for a court to assess in determining whether a search was reasonable. The court in In re Alexander B. (1990) 220 Cal.App.3d 1572, 270 Cal.Rptr. 342 addressed this issue.

In Alexander B., school officials separated two groups of boys who appeared about to engage in a fight. As the boys were being taken to the school office, an unnamed boy said, "[d]on't pick on us, one of those guys has a gun" and gestured to another group of boys who had been on the sidelines but yelling and making gang signs. A school official asked a nearby police officer to check the third group of boys because "[o]ne of them is supposed to have a weapon." (Id. at p. 1576, 270 Cal.Rptr. 342.) The officer ordered the group of boys to sit. When the defendant refused to stop talking, stood up and started to walk away, the officer wrestled him to the ground and eventually discovered he was carrying a machete knife and scabbard. The defendant challenged the search. The Alexander B. court, in addressing the fact the information about the supposed weapon came from an unidentified student and was directed at a group of students, stated:

"The fact that the student's name was either not obtained by school authorities, or obtained and later forgotten was only one of many factors bearing on the reasonableness of the search. Of greater importance is the fact that the gravity of the danger posed by possession of a firearm or other weapon on campus was great compared to the relatively minor intrusion involved in investigating the veracity of the unidentified student's accusation against a handful of high school age boys." (Id. at p. 1577, 270 Cal.Rptr. 342.)

Here, the school official had information from an adult who identified herself. Not only was she identified, but she was also calling out of concern for the safety of her son and other children. Her motive for calling is a factor tending to show she was more reliable than the student in Alexander B. who was complaining about being "picked on." Further, unlike the situation in Alexander B., the caller here did not merely point to a group of students as possibly being armed, but named a particular individual. Moreover, the mother here was a "citizen-informant," i.e., a person whom the law presumes reliably reports crime and whose report should prompt an investigation. (See People v. Smith (1976) 17 Cal.3d 845, 852, 132 Cal.Rptr. 397, 553 P.2d 557; People v. DeCosse (1986) 183 Cal.App.3d 404, 410, 228 Cal.Rptr. 114.) The fact the mother...