State ex rel. Juvenile Dept. of Lincoln County v. Finch

• Decision Date: 09 October 1996
• Citation: 925 P.2d 913,144 Or.App. 42
• Parties: , 113 Ed. Law Rep. 1315 In the Matter of Jonathan Dee Finch, a Child. STATE ex rel. JUVENILE DEPARTMENT OF LINCOLN COUNTY, Respondent, v. Jonathan Dee FINCH, Appellant. 945665; CA A88004.
• Court: Oregon Court of Appeals

Page 913

925 P.2d 913

144 Or.App. 42, 113 Ed. Law Rep. 1315

In the Matter of Jonathan Dee Finch, a Child.

STATE ex rel. JUVENILE DEPARTMENT OF LINCOLN COUNTY, Respondent, v. Jonathan Dee FINCH, Appellant.

945665; CA A88004.

Court of Appeals of Oregon.

Argued and Submitted March 15, 1996.

Decided Oct. 9, 1996.

Jeffrey C. Hollen, Newport argued the cause for appellant. With him on the brief was Richardson, Ouderkirk & Hollen.

Kaye E. Sunderland, Assistant Attorney General, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

HASELTON, Judge.

Child appeals an order finding him within the jurisdiction of the juvenile court for acts which, if committed by an adult, would constitute possession of a controlled substance. ORS 475.992(4)(a). ¹ He assigns error to the trial court's denial of his motion to suppress. We review de novo, ORS 419A.200(5), and reverse.

The material facts are uncontroverted. ² Child, a 16-year-old, was a student at Newport High School. On October 4, 1994, child and another student were involved in a fist fight on non-school property across the street from the high school campus. Assistant Principal David Malcolm and another teacher rushed to break up the fight and, when the teacher intervened, child immediately "back[ed] off" and stopped. Malcolm then ordered child and the other student to accompany him to the principal's office. As he did so, Malcolm noticed a jacket and a camera lying on the ground a short distance from where the boys had been fighting. When Malcolm learned that the jacket and camera belonged to child, he asked another student to carry those items back to the school grounds. At no time during the fight had child made any effort to reach for his jacket.

When they reached the principal's office, Malcolm told the student who had been carrying child's camera and jacket to take the camera back to class and to give Malcolm the jacket. When Malcolm took the jacket, "it seemed heavier than--than what--* * * a jacket should have been, I felt, to that point." Because of the weight and the fact that child had been in a fight, Malcolm became suspicious that child's jacket might contain a weapon, in violation of school rules. ³ Child had never been stopped for possession of a weapon at school.

Malcolm then reached into the pocket of child's jacket. There is no evidence that, before doing so, Malcolm either saw the outline, or felt the shape, of any item in the jacket. In the first pocket he searched, Malcolm found a homemade brass "bong" pipe about two-and-a-half inches long and one-half inch wide, with a residue that seemed to smell of marijuana. Malcolm then searched the second pocket and found a small plastic bag containing 20 grams of psilocybin mushrooms, a Schedule I drug. See ORS 475.005(6).

The juvenile department subsequently filed a petition alleging that child had engaged in conduct, i.e., possession of the psilocybin mushrooms, which, if committed by an adult, would violate ORS 475.992(4)(a). Child moved to suppress all items Malcolm had seized from his jacket. In so moving, child made two alternative arguments. First, notwithstanding the United States Supreme Court's determination that, for purposes of the Fourth Amendment, school searches must be tested against a contextual "reasonableness" standard, New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), ⁴ Article I, section 9, of the Oregon Constitution ⁵ requires that searches of students or their effects by school administrators be supported by probable cause. Child asserted that Malcolm lacked probable cause to search his jacket. Second, even if T.L.O.'s "reasonableness" standard could somehow be imported and applied under Article I, section 9, that standard was not satisfied here.

The state's arguments were, essentially, the inverse: Under Article I, section 9, the validity of school searches should be tested against a T.L.O.-like "reasonableness" standard, and Malcolm's search comported with that standard. In the alternative, if probable cause were required, Malcolm had probable cause to believe that child had violated the school's policy against possession of weapons on campus.

The trial court concluded that Malcolm's search was lawful, regardless of which standard applied:

"The court finds that David Malcolm was acting as a governmental agent for purposes of constitutional law, and not as a private citizen. Searches of students by school authorities are subject to scrutiny under Article I, Section 9 of the Oregon Constitution and [the] Fourth Amendment to the United States Constitution[.] Whether it is the probable cause standard required in police cases, or the more flexible 'reasonableness' standard of New Jersey v. T.L.O., the evidence in this case should not be suppressed.

"Here, we have a school authority who finds a student in the act of fighting. He is concerned about school safety and weapons on campus so he searches the 'heavy jacket' before he returns it. If this were a case involving a police officer witnessing a street fight, had he turned a 'heavy' jacket over to one of the combatants without searching it first, most would say he was unprofessional and careless for not first checking it for weapons. If nothing else, a police officer would be entitled to do it for the purposes of officer safety. In this era of violence and youth in possession of deadly weapons, Malcolm's action was not only reasonable, he had probable cause to believe there were weapons."

Thereafter, child was adjudicated following a stipulated facts trial.

On appeal, the parties reiterate the arguments they made to the trial court with respect to suppression. ⁶ The question of whether Article I, section 9, permits school searches on a showing of less than probable cause is important and provocative. Nevertheless, we do not--indeed, cannot--reach that constitutional question because we decide this appeal on other grounds. Zockert v. Fanning, 310 Or. 514, 520, 800 P.2d 773 (1990). In particular, we conclude that, even assuming that a T.L.O.-like "reasonableness" standard could be imported into Article I, section 9, under the totality of the circumstances, Malcolm did not have reasonable grounds to suspect that a search of child's jacket would yield evidence of a violation of school rules. Accord State ex rel. Juv. Dept. v. DuBois, 110 Or.App. 314, 318, 821 P.2d 1124 (1991) (declining to reach the question of whether, under Article I, section 9, school searches may be justified "on less than probable cause"; concluding that, even if probable cause were required, school administrator's search of the child was supported by probable cause). ⁷

The state equates T.L.O.'s "reasonableness" inquiry with the test for "reasonable suspicion" that applies to "stops" and "frisks" pursuant to ORS 131.605 to ORS 131.625. Under ORS 131.615, an officer who "reasonably suspects that a person has committed a crime" may stop that person and make a reasonable inquiry that is "limited to the immediate circumstances that aroused the officer's suspicion"; under ORS 131.625(1), an officer may frisk a stopped person for dangerous weapons if the officer "reasonably suspects that the person is armed and presently dangerous to the officer or other person present." ORS 131.605(4) provides that "reasonably suspects" for purposes of ORS 131.615 and ORS 131.625

"means that a peace officer holds a belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts as authorized in ORS 131.605 to 131.625."

In State v. Ehly, 317 Or. 66, 854 P.2d 421 (1993), the court amplified the standard of "reasonable suspicion" for an investigatory stop pursuant to ORS 131.615: The officer must be "able to point to specific and articulable facts that give rise to a reasonable inference that a person has committed a crime[.]" Id. at 80, 854 P.2d 421. That standard

"requires an objective test of observable facts. Whether the suspicion is reasonable often will depend on the inferences drawn from the particular circumstances confronting the officer, viewed in the light of the officer's experience." Id. (citations omitted). ⁸

The state argues that Malcolm's search of child's jacket was based, at least, on reasonable suspicion that the jacket contained a weapon, in violation of school rules. Malcolm testified that he decided to search the jacket for a weapon because child had been in a fight and because the jacket "seemed heavier than * * * what a jacket should have been." He identified no other facts motivating or supporting his decision to search. He did not, for example, state that he had information that child possessed a weapon, or that child had ever possessed a weapon on campus--indeed, he acknowledged the contrary. Compare DuBois, 110 Or.App. at 316, 821 P.2d 1124 (the child had a history of possessing weapons at school, and two reliable student informants told school administrators that there was "a rumor that there was a gun on campus" and "that they had seen child on campus with a gun the day before"). There is no evidence that, before searching the jacket, Malcolm felt or saw the shape of a weapon or a container that he believed contained a weapon. Compare id. at 316, 821 P.2d 1124 (while holding fanny pack, and before opening pack, administrator "could tell immediately that there was a gun in it"). Nor did Malcolm testify, based on his experience as a school administrator, that students who engage in fist fights are likely to possess weapons at school. Compare id. at 318, 821 P.2d 1124 (administrator who conducted search testified, based on her experience as a teacher, that "if a student carries a gun one day, or a knife or something of that nature, often times they'll bring it back to school"). Finally, Malcolm acknowledged that, at...