State ex rel. Juv. Dept. v. M.A.D.

• Decision Date: 18 February 2009
• Docket Number: A132290.,031120J02.
• Citation: 226 Or. App. 21,202 P.3d 249
• Parties: In the Matter of M.A.D., a Youth. STATE ex rel. JUVENILE DEPARTMENT OF CLACKAMAS COUNTY, Respondent, v. M.A. D., Appellant.
• Court: Oregon Court of Appeals

202 P.3d 249

226 Or. App. 21

In the Matter of M.A.D., a Youth STATE ex rel. JUVENILE DEPARTMENT OF CLACKAMAS COUNTY, Respondent, v. M.A. D., Appellant.

031120J02.

A132290.

Court of Appeals of Oregon.

Argued and Submitted June 9, 2008.

Decided February 18, 2009.

Angela Sherbo argued the cause for appellant. On the brief was Maite Uranga.

Kaye Ellen McDonald, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.

EDMONDS, P.J.

The issues in this case concern whether the guarantees against unreasonable searches and seizures in Article I, section 9, of the Oregon Constitution are implicated when school authorities search a student and seize contraband which is then used as evidence in a juvenile delinquency proceeding. Youth appeals a judgment finding him within the jurisdiction of the juvenile court for acts that, if committed by an adult, would constitute felony and misdemeanor crimes of possession and delivery of less than an ounce of marijuana within 1,000 feet of a school. Former ORS 475.999 (2003), renumbered as ORS 475.904 (2005). On appeal, he assigns error to the juvenile court's denial of his motion to suppress evidence obtained when school officials conducted a warrantless search of his person after another student had informed them that youth had marijuana and was trying to sell it at a location near the school campus. We review the facts de novo and the legal issues as a matter of law, ORS 419A.200(6)(b) and (8), and reverse.

We find the following facts: In January 2005, Assistant Principal Brooks at Rex Putnam High School summoned to his office a student with whom he was working on attendance and behavior issues. The student had recently transferred from another school where he had been suspended for drug possession. Previously, the student and Brooks had entered into a written behavioral contract. According to the terms of the contract, a failure to abide by the contract could result in the student's detention, notice to his parents, and even suspension. Brooks was aware this student had lied at times in the past and that his tendency was to deflect scrutiny of his behavior away from himself to others. When the student arrived at his office, Brooks confronted him about skipping class to go off campus to smoke; in response, the student told Brooks that he had seen youth before school in possession of marijuana and that youth was trying to sell it in an area close to the school known as "the pit." Brooks was aware that, before and during school, students convened at the pit to engage in drug use and smoking activities. The North Clackamas School District, which includes Rex Putnam, has a written policy precluding students from using and bringing controlled substances to school, specifically marijuana.¹ Brooks testified that, aside from any illegalities involving marijuana use, drug possession is "in direct opposition to what we're trying to accomplish as educators and trying to help kids learn and how to be productive citizens." He explained that drug possession causes discipline problems and attendance issues. Taking into account his prior contacts with the student, Brooks testified that he took the student's statements about youth "seriously, based on [the] student's past, who he hung around with and some of his own activities and where he said it occurred. I judged that to be accurate."

Brooks was familiar with youth but had not had any previous direct interaction with him after youth had transferred to Rex Putnam in the fall of that school year. Brooks's familiarity arose from individual education plan (IEP) meetings regarding youth. Based on the concerns about school attendance on youth's IEP, Brooks surmised that there was a possibility that drugs and alcohol had played a role in youth's absences from school.

Based on the above information, Brooks summoned youth to his office. When youth arrived, he was accompanied by a staff learning specialist, Pogel. Youth's school counselor was also present when Brooks confronted youth with the allegations made by the other student. Initially, youth did not admit to any drug-selling behavior or to the possession of any drugs. Brooks testified that he then explained to youth that, "based on the way the school district has worked in the past, that I had what was called reasonable cause to search[.]" He then called youth's mother at her work to inform her that they were planning to conduct a search of youth. Brooks recalled in his testimony that "she expressed * * * that she thought [youth] probably was holding something." Pogel also expressed the belief, based on the way youth was acting, "that he probably had something illegal in his possession." At her request, youth spoke to his mother on the phone—while still in Brooks's office and with the three adults present.

After the phone conversation ended, Brooks asked youth to turn his pockets inside out. Youth complied by turning out his pants pockets and the outside pockets of his leather jacket. Youth's actions revealed a bulge in the inner breast-pocket of the zipped-up jacket. Brooks asked if he could see what was in the pocket, but youth refused, stating that he did not trust Brooks. Pogel then asked if youth trusted him. Youth replied that he did and unzipped the jacket, revealing the pocket. Pogel reached into the pocket, removed a bag, and dumped its contents onto the counter, including less than an ounce of marijuana, some plastic bags, and a pipe for smoking marijuana. Youth thereafter confirmed that the marijuana was his and that he was trying to sell it.

The school officials did not raise their voices at any time during the meeting, nor did they coerce or threaten youth. None of the school officials testified that, during the time period when youth was not cooperative, he was acting in an agitated or belligerent manner, or that he made any furtive movements. In addition, youth was never physically restrained nor told that he could not leave, although he would have had to pass by at least one adult in order leave the room.

Subsequently, the state filed a delinquency petition with the juvenile court. Youth moved to suppress the evidence from the jacket, as well as his statements made thereafter, under Article I, section 9, of the Oregon Constitution.² The juvenile court denied his motion, leading to this appeal. The threshold issue on appeal is whether youth consented to the search. Juveniles are entitled to the protections found in Article I, section 9, of the Oregon Constitution. Roberts v. Mills, 290 Or. 441, 444, 622 P.2d 1094 (1981); State ex rel Juv. Dept. v. DuBois, 110 Or.App. 314, 318, 821 P.2d 1124 (1991). However, consent to a search is a recognized exception to the warrant requirement. State v. Paulson, 313 Or. 346, 351, 833 P.2d 1278 (1992). To uphold a search based on consent, the state must prove by a preponderance of the evidence that the consent was voluntary. State v. Stevens, 311 Or. 119, 136-37, 806 P.2d 92 (1991).

With regard to the issue of consent, the juvenile court reasoned that, once Brooks told youth that he would be searched, "[Youth] was not faced with a decision whether to consent to the search; he was faced only with the decision whether to cooperate with a search. After speaking with his Mother, he chose to cooperate * * * but such cooperation is not `consent to search.'" (Emphasis in original.) We agree with the court's reasoning, because the state did not carry its burden of persuasion that youth voluntarily allowed Pogel to remove the contents of his jacket pocket. As we said in State v. Guzman, 164 Or.App. 90, 99, 990 P.2d 370 (1999), rev. den., 331 Or. 191, 18 P.3d 1098 (2000), the mere acquiescence to the exercise of governmental authority without a reasonable opportunity to make a choice to consent does not constitute a consent to search for purposes of Article I, section 9. Here, Brooks informed youth that he had "reasonable cause to search" and asked him to turn his pockets inside out. Youth complied but refused to permit any further search. At that point, Pogel intervened, apparently relying on his personal relationship with youth, which led to youth unzipping the jacket and Pogel's retrieval of its contents. No intervening event occurred between Brooks's declaration that he had reasonable cause to search and youth's acquiescence to Pogel's intervention that persuades us that the state has carried its burden.

The state next argues that the school officials had probable cause to search youth, and thus, the search comported with the requirements of Article I, section 9. The juvenile court ruled, "When Mr. Brooks decided to search, he certainly had grounds to suspect [Youth] had sold drugs that morning, and that he might still possess drugs, but the evidence does not rise to the level of `probability' that marijuana would be found on [Youth's] person." (Emphasis in original.) On appeal, the state argues that there was probable cause to search youth because of the information given to Brooks by the informant student, Brooks's knowledge that the "pit" was a location used by students for drug activities, Brooks's perception "that [youth] appeared to be hiding something" when he came into Brooks's office, and the appearance of the bulge inside youth's jacket.

We do not question Brooks's and Pogel's authority as school officials to confront youth based on the information that they had acquired, to search him, and to seize contraband in his possession that could pose a risk to the safety of other students or that could interfere with the school's educational mission. However, in order for the state to use the evidence derived from those actions in a delinquency proceeding under the juvenile code, the requirements of Article I, section 9, must be satisfied. Article...