Shoemaker v. State

• Decision Date: 26 August 1998
• Docket Number: No. 09-97-185,09-97-185
• Citation: 971 S.W.2d 178
• Parties: 127 Ed. Law Rep. 1117 Dana R. SHOEMAKER, Appellant, v. The STATE of Texas, Appellee. CR.
• Court: Texas Court of Appeals

Page 178

971 S.W.2d 178

127 Ed. Law Rep. 1117

Dana R. SHOEMAKER, Appellant, v. The STATE of Texas, Appellee.

No. 09-97-185 CR.

Court of Appeals of Texas Beaumont.

Submitted Feb. 12, 1998.

Decided July 8, 1998.

Rehearing Overruled Aug. 26, 1998.

Lydia Clay-Jackson, Conroe, for appellant.

Michael McDougal, Dist. Atty., Gail Kikawa McConnell, Judith Anthony, Asst. Dist. Attys., for state.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

STOVER, Justice.

Dana R. Shoemaker was indicted for the state jail felony offense of credit/debit card abuse for stealing credit cards. After a plea of not guilty, a jury found Shoemaker guilty of the offense as charged in the indictment. The trial court assessed a punishment of 180 days confinement in the Texas Department of Criminal Justice, State Jail Facility, and a fine of $250. Thereafter, the trial court suspended Shoemaker's sentence and placed her on community supervision for two years with enrollment in the Offender Employment Assistance Program as one of the conditions of probation. Notice of appeal was timely filed. Bringing two points of error, Shoemaker argues the trial court erred in denying a Motion to Suppress and erred in not granting a directed verdict.

FACTUAL HISTORY

This offense occurred at Montgomery High School in Montgomery County where Shoemaker was a student. On September 7, 1994, Shoemaker had been sent out of class for being disruptive. Before going to "time out" for the rest of the class period, she reported to Mrs. Housel, the assistant principal. Mrs. Housel talked with Shoemaker in her office for approximately five minutes before they were interrupted by another student who was wanting to retrieve a backpack that was in Mrs. Housel's closet. Housel removed the backpack from her closet and stepped out of her office with the other student. The closet door was left open with Housel's purse inside the closet. While outside her office, Housel was not able to view Shoemaker since the door to the office was partially closed. Housel then went back into her office and resumed her conversation with Shoemaker after which Shoemaker was sent to "time-out."

Shortly thereafter, Housel was informed that her wallet had been found. Three charge cards were missing. Cash had also been removed from the wallet. The wallet had been found in a girl's bathroom located in C-Hall. Housel immediately called her husband so that he could notify the credit card companies. She then called Officer John Chancellor of the Montgomery Police Department to file a theft report.

Shoemaker was the only student who had been in Housel's office prior to the theft that morning. Housel was also aware of a prior theft by Shoemaker. For these reasons, Housel suspected Shoemaker was responsible for the theft.

Prior to Officer Chancellor's arrival, Housel went to Shoemaker's locker to search it. Using a master key that opened all school lockers, she opened Shoemaker's locker and searched it. She asked a teacher who was in the hall at that time to witness the search. The locker contained books and notebooks. Housel found all three of her credit cards in a notebook. She left the cards in the notebook, closed the locker, and went back to her office. Officer Chancellor was waiting for her when she got back to her office.

Shoemaker was taken out of class and brought to Housel's office. Housel informed Shoemaker that her cards had been stolen and that they had been found in the girl's restroom in B-Hall. Shoemaker corrected her, stating the cards were actually in C-Hall. Officer Chancellor informed Shoemaker that she was a suspect and read her Miranda warnings.

Shoemaker then consented to a search of her locker. On the way to her locker with Housel and Officer Chancellor, Shoemaker stated, "I found two credit cards on the floor and put them in my locker." ¹ Shoemaker opened her locker, went through the books and notebooks hurriedly, found nothing, and stated, "I guess someone else has taken them." Housel then again asked permission to search, Shoemaker agreed, and the cards were found in the same notebook where Housel had found them in the initial search.

REASONABLENESS OF THE SEARCH

The incident that gave rise to this case involved two separate searches. Although it is the fruits of the second search that are at issue, it is the validity of the initial search Shoemaker focuses upon.

Shoemaker filed a motion to suppress the evidence seized as a result of the second search. At the suppression hearing, defense counsel argued the evidence should be deemed inadmissible because the search was conducted by a person with a personal stake in the outcome. The trial court denied the motion, and in her first point of error, Shoemaker contends this was error.

A major premise of Shoemaker's argument is that Mrs. Housel was acting not under color of school authority, but as a plain citizen, the result being a violation of Shoemaker's constitutional rights under U.S. CONST. amend. IV. and TEX. CONST. art. I, § 9. We initially recognize that if Housel was not acting under color of school authority, but as a "plain citizen," constitutional restraints against unwarranted governmental searches and seizures would not be implicated. Under federal law, for a search to be illegal, the search must be the result of state action by and through state agents acting under governmental authority or under the color of authority. The Fourth Amendment of the United States Constitution does not require the exclusion of incriminating evidence illegally obtained through a search by private citizens. State v. Johnson, 939 S.W.2d 586, 588 (Tex.Crim.App.1996). However, under Texas law, as provided by TEX.CODE CRIM PROC. ANN. art. 38.23 (Vernon Supp. Pamph.1998), if evidence is obtained by a private citizen in violation of any provision of the Constitutions or laws of Texas or the United States, such a violation will warrant exclusion of the evidence. ² Johnson, 939 S.W.2d at 588. Therefore, we will review the record under federal and state constitutions and laws to determine if the search was proper.

Prior to the United States Supreme Court case of New Jersey v. T.L.O., 469 U.S. 325, 334-35, 105 S.Ct. 733, 83 L.Ed.2d 720, 731 (1985), Texas courts held that school officials conducting in-school searches of students were private parties acting in loco parentis ³ and were, therefore, not subject to the constraints of the Fourth Amendment. See, e.g., R.C.M. v. State, 660 S.W.2d 552 (Tex.App.--San Antonio 1983, writ ref'd n.r.e.); Ranniger v. State, 460 S.W.2d 181 (Tex.Civ.App.--Beaumont 1970, no writ); Mercer v. State, 450 S.W.2d 715 (Tex.Civ.App.--Austin 1970, writ dism'd w.o.j.). In T.L.O., however, the Supreme Court held that while conducting searches on school property, school officials act as representatives of the State and the constraints of the Fourth Amendment apply to their actions. T.L.O., 469 U.S. at 336-37, 83 L.Ed.2d at 731; Coronado v. State, 835 S.W.2d 636, 639 (Tex.Crim.App.1992). In T.L.O., the U.S. Supreme Court noted the delicate balance of the privacy interests of students to be weighed against the need of school officials to maintain order in a school environment:

[T]he accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.

T.L.O., 469 U.S. at 341, 83 L.Ed.2d at 734 (emphasis added). The Court further provided that school officials need not obtain a warrant before searching a student who is under their authority. Id., 469 U.S. at 340, 83 L.Ed.2d at 733.

To determine the reasonableness of a search, a two pronged test is employed. First, it must be determined if the action was "justified at its inception." Id., 469 U.S. at 341, 83 L.Ed.2d at 734. A search of a student by a teacher or school official will 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 the school." Id., 469 U.S. at 341-42, 83 L.Ed.2d at 734-35. Second, it must be determined whether the search was reasonably related in scope to the circumstances justifying the interference in the first place. Id., 469 U.S. at 341, 83 L.Ed.2d at 734.

We find the initial search was justified at its inception. Mrs. Housel had reasonable grounds to suspect that Shoemaker was the person who stole the credit cards. Shoemaker was the only student who had been left unattended in Housel's office prior to the theft, and Housel was aware of other occasions of theft where Shoemaker had been nearby or implicated in the theft.

The initial search was also reasonably related in scope to the circumstances justifying the search in the first place. It was reasonable for Housel to suspect that the stolen credit cards might have been placed in Shoemaker's locker. And, additionally, we conclude that Shoemaker did not have a legitimate expectation of privacy in her school locker. A student's locker is school property which remains under the control of school authorities. At Montgomery High School, the lockers have built-in combination locks and the assistant principal has a key that opens all of the lockers. Students at the school are given student handbooks detailing locker policy. The handbook states the following:

LOCKERS

Lockers remain under the jurisdiction of the school even when assigned to an individual student.... Searches of lockers may be conducted at any time there is reasonable cause to do so, regardless of whether the students are present.

....

SEARCHES OF SCHOOL PROPERTY

Lockers, desks and any...