Robert B., In re

• Citation: 218 Cal.Rptr. 337,172 Cal.App.3d 763
• Court: California Court of Appeals
• Decision Date: 04 September 1985
• Parties: , 27 Ed. Law Rep. 898 In re ROBERT B., a Person Coming Under the Juvenile Court Law. The PEOPLE, Petitioner and Respondent, v. ROBERT B., Defendant and Appellant. B005751.

Page 337

218 Cal.Rptr. 337

172 Cal.App.3d 763, 27 Ed. Law Rep. 898

In re ROBERT B., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Petitioner and Respondent, v. ROBERT B., Defendant and Appellant.

B005751.

Court of Appeal, Second District, Division 7, California.

Sept. 4, 1985.

[172 Cal.App.3d 767] Robert D. Coppola, Jr., Woodland Hills, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Mark Alan Hart, Supervising Deputy Atty. Gen., Ernest Martinez, Deputy Atty. Gen., for petitioner and respondent.

LILLIE, Presiding Justice.

The Juvenile Court sustained a supplemental petition against Robert B., a minor, alleging that a previous disposition by the court had not been effective in his rehabilitation (Welf. & Inst.Code, § 777, subd. (a)) in that he was found in possession of marijuana on school grounds, thereby violating conditions of his probation. Robert appeals, asserting his initial detention and subsequent search by the school security officer were illegal; he was denied a fair hearing by denial of his motion for disclosure of informant; and there was insufficient foundation for identification of the contraband at the adjudication hearing.

I FACTS

Oscar Cairo, a campus security officer at California High School, observed a group of five students, including Robert, near the science building on a school morning. He saw money being exchanged between two other students in the group. Because of past confrontations with Robert and others in that group involving possession of marijuana and being under the influence of marijuana, the officer decided to detain these students. He asked them to follow him to the office. As they proceeded through the hallway, he observed Robert pull a pack of cigarettes out of his right pocket and place it inside the sleeve of his jacket. Once inside the vice principal's office, the students were asked to empty their pockets. A Marlboro cigarette box was recovered from Robert; the security officer opened the box and found 13 handrolled cigarettes inside. Subsequent testing established that the leafy substance inside the cigarettes was marijuana.

Robert had previously been declared a ward of the court (Welf. & Inst.Code, § 602) in 1981, and was ordered continued as such in 1983. As a result of the above incident, two petitions were filed with juvenile court: a petition under Welfare and Institutions Code section 602, alleging a violation of section 11357, subdivision (b), Health and Safety Code, and a petition under Welfare and Institutions Code section 777, subdivision (a) alleging that the previous disposition had not been effective. Robert denied the allegations. He moved for disclosure of informant and for suppression of evidence; the motions were heard and denied. At the conclusion of the adjudication hearing, the 602 petition was dismissed in the interests of justice, and the supplemental petition under section 777

was sustained. The court found the welfare of the minor required that custody be taken from his parents. The court further ordered that the Ricardo M., 52 Cal.App.3d 744, 125 Cal.Rptr. 291 time stayed from a 1983 proceeding be placed in full force and effect; that Robert remain a ward of the court; and that he be placed in the Camp Community Placement Program.

II DISCLOSURE OF INFORMANT

Minor contends he was denied a fair hearing because the court denied his motion for disclosure of informant. The motion was based on the grounds that the informant was a material witness, and that he provided information relative to reasonable cause to arrest or search and was not a reliable informant. Declaration of minor's attorney alleged her belief that the informant gave to Mr. Cairo, the security guard, information that the minor was selling or offering to sell marijuana on the school campus; that Cairo knew this informant to have been involved in narcotics possession or arrests himself; and that the informant provided information that was used as the basis for reasonable cause to detain, search and arrest the minor. She incorporated by reference the police reports prepared in this matter.

The assertion that the information provided by the informant was relied upon by Mr. Cairo for reasonable cause to detain, search and arrest the minor was quickly dispelled at the hearing on the motion. Mr. Cairo testified that a day or two before this incident he had received information from an anonymous person about Robert and other students, and that he reported the information to the vice principal, who told him to "keep an eye on the kids." However, Cairo stated he did not rely on any information received from anyone else for the purpose of detaining Robert. That information was not in his mind at all when he approached Robert that morning because he saw suspicious activities going on by the science building. His decision to detain Robert was based on his own personal observations and his prior dealings with Robert. We find the trial court's factual determination that Mr. Cairo did not rely on the informer's information in deciding to detain Robert is supported by substantial evidence; that is the limit of our review of the circumstances known or apparent to Mr. Cairo at the time of the detention. (People v. Leyba (1981) 29 Cal.3d 591, 597-598, 174 Cal.Rptr. 867, 629 P.2d 961; People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.) In light of the court's finding, the reliability of the informant could have no bearing on whether Mr. Cairo had reasonable cause to detain Robert.

As to the claim that the informer would be a material witness, "a defendant seeking to discover the identity of an informant bears the burden of demonstrating that, 'in view of the evidence, the informer would be a material witness on the issue of guilt and nondisclosure of his identity would deprive the defendant of a fair trial.' [Citations.] That burden is discharged, however, when defendant demonstrates a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendant's exoneration." (People v. Garcia (1967) 67 Cal.2d 830, 839-840, 64 Cal.Rptr. 110, 434 P.2d 366, fn. omitted.) "The courts have indicated that the measure of the 'reasonable possibility' standard to be utilized in individual cases is predicated upon the relative proximity of the informant to the offense charged.... If the informer is not a percipient witness to the events which are the basis of the arrest, it is highly unlikely that he can provide information relevant to the guilt or innocence of a charge or information which rises from the arrest." (People v. Hardeman (1982) 137 Cal.App.3d 823, 828-829, 187 Cal.Rptr. 296.) "[W]hen the informer is shown to have been neither a participant in nor a nonparticipant eyewitness to the charged offense, the possibility that he could give evidence which might exonerate the defendant is even more speculative and, hence, may become an unreasonable possibility."

(Williams v. Superior Court (1974) 38 Cal.App.3d 412, 420, 112 Cal.Rptr. 485.)

Here the information was one or two days old, and the security guard didn't even remember what that information was. Although defense counsel argued that the informer might have seen Robert hand the cigarette box to someone else that morning, and that someone else might have put the marijuana in the box, or the informer could have had knowledge of who else had possession of the box and what was in the box, there was absolutely no showing that the informer had any contact with Robert that day, or that the informer was either a witness to or participant in the suspicious incident by the science building. A defendant's showing must encompass more than speculation. (People v. Green (1981) 117 Cal.App.3d 199, 208, 172 Cal.Rptr. 582.) Robert presented only the bare, unsupported speculation that the informer may have been able to offer exonerating testimony, but failed to provide any evidentiary basis for raising this mere speculation to the "reasonable possibility" which would entitle him to disclosure. The trial court properly denied his motion for disclosure of informant.

III DETENTION BY SCHOOL SECURITY GUARD

Appellant contends the school security guard acted without reasonable cause to detain him. As a school security agent, Mr. Cairo had the authority to prevent violations of the law (Ed.Code, § 39671; Pen.Code, § 830.4, subd. (g)), and to ensure the safety of school district personnel and pupils. (Ed.Code, § 39670; see In re Guillermo M. (1982) 130 Cal.App.3d 642, 645, 181 Cal.Rptr. 856.) Action taken by such an agent because he suspects the presence of a controlled substance on campus falls within the scope of this authority. (In re Fred C. (1972) 26 Cal.App.3d 320, 324, 102 Cal.Rptr. 682; see also Ed.Code, § 48900, subd. (c).)

The concern of security agents in maintaining the security of school personnel and pupils permits more stringent regulation and authority over school children than would be allowed over adults. (In re Guillermo M., supra, 130 Cal.App.3d 642, 647, 181 Cal.Rptr. 856; In re Thomas G. (1970) 11 Cal.App.3d 1193, 1197-1198, 90 Cal.Rptr. 361.) However, a school security agent does not have general police powers, and acts with power only supplementary to local law enforcement. (Ed.Code, §§ 39670, 39671.) "[I]n order to justify an investigative stop or detention the...