Opinion
B193433
5-10-2007
In re ALVARO J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ALVARO J., Defendant and Appellant.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
The District Attorney of Los Angeles County filed a petition alleging that Alvaro J. (Alvaro) came within the provisions of Welfare and Institutions Code section 602 because he committed the crime of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a), a felony. The petition was amended to allege a misdemeanor violation of Health and Safety Code section 11377, subdivision (a) and Alvaro admitted the allegation. The juvenile court declared Alvaro to be a ward of the court and placed him on home probation with a one-year maximum period of physical confinement.
On appeal, Alvaro contends that the juvenile court erred in denying his motion to suppress evidence and that the juvenile court could not set a maximum period of physical confinement because he was placed on home probation. We hold that the juvenile court properly denied Alvaros suppression motion and that the juvenile court erred in setting a maximum period of physical confinement. Accordingly, we affirm the juvenile courts order declaring Alvaro to be a ward of the court and strike that part of the order setting a one-year maximum period of physical confinement.
BACKGROUND
At the hearing on Alvaros motion to suppress evidence, Victorio Gutierrez, assistant principal in charge of discipline at Roosevelt High School, testified about the events leading to the discovery of methamphetamine on Alvaro. Gutierrez testified that classes begin at Roosevelt at 7:25 a.m. At about 7:35 or 7:40 a.m. on February 27, 2006, Gutierrez saw Alvaro arrive at school. Gutierrez saw Alvaro again at about 7:50 a.m. walking around the art building. Alvaro was with another male student who had a history of problems. Neither student was supposed to be in the art building.
Gutierrez asked Alvaro and the other student what they were doing. They responded that they were walking around, that everything was okay, and that they were going to class. All of a sudden, Alvaro and the other student "started getting nervous." Gutierrez sent the other student to class. Gutierrez had had problems with that student in the past and would wait for police assistance to deal with him. Alvaro tended to be polite to Gutierrez; thus, Gutierrez asked him to come to his office. Gutierrez brought Alvaro to his office because Alvaro was "walking around;" he was "almost always truant;" he had a record of getting into trouble, having been suspended 17 times; and Gutierrez had seen Alvaro in the company of known gang members during nutrition and lunch and was with the problem student that morning.
On direct examination, Gutierrez testified that Elizabeth "B. J." Biyornan joined him and Alvaro in his office. Gutierrez asked Alvaro if Alvaro had anything that would get Alvaro in trouble. Alvaro responded that he did not think so. Alvaro then began taking everything out of his pockets and "got real nervous." Gutierrez said to Alvaro, "Youre (sic) 5th pocket." In Alvaros fifth pocket Gutierrez found a little baggie that appeared to contain "crystal."
On cross-examination, Gutierrez testified that he, Biyornan and Alvaro were "just talking about education and everything else" when Alvaro started getting nervous and asked, "Whats going on?" That is when Gutierrez became suspicious. Gutierrez told Alvaro to empty his pockets because he had "tagged" around the school before. Gutierrez expected to find a "marker or something else." He "never imagined" that Alvaro possessed drugs. Defense counsel asked Gutierrez if he conducted an administrative search because he thought Alvaro was acting nervous. Gutierrez responded, "Nervous and because he hangs around with known taggers." Gutierrez was not satisfied when Alvaro had emptied his pockets because he had not emptied his fifth pocket.
The juvenile court denied Alvaros suppression motion. The juvenile court based its ruling on, among other things, the fact that Alvaros "acting nervous, his being tardy, his being in a building hes not supposed to be in, with people that are known gang members, together with the minors past history known to the assistant vice principal and the fact that he voluntarily empties his four pockets but did not empty the 5th —"
DISCUSSION
I. The Suppression Motion Was Properly Denied
Alvaro contends that there were no facts from which Gutierrez could have formed a reasonable suspicion that he was engaged in wrongdoing. The record shows reasonable suspicion, supported by articulable facts, that Alvaro had or was engaged in a proscribed activity.
"[P]ublic school students do not shed their constitutional rights upon reaching the schoolhouse door." (Tinker v. Des Moines School Dist. (1969) 393 U.S. 503, 506.) For purposes of the Fourth Amendment to the United States Constitution and article I, section 13 of Californias Constitution, public school officials are governmental agents who must respect the constitutional rights of their students against unreasonable searches and seizures. (In re William G. (1985) 40 Cal.3d 550, 558, 561.)
A public school officials search of a student is constitutionally permissible when the search is "based on a 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). There must be articulable facts supporting that reasonable suspicion. 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 re William G., supra, 40 Cal.3d at p. 564.)
"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. [Citations.] 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.]" (In re William G., supra, 40 Cal.3d at p. 564.) "Whether a Fourth Amendment violation has occurred `turns on an objective assessment of the officers actions in light of the facts and circumstances confronting him at the time, [citation], and not on the officers actual state of mind at the time the challenged action was taken. [Citation.]" (Maryland v. Macon (1985) 472 U.S. 463, 470, see also Graham v. Connor (1989) 490 U.S. 386, 397 ["the question is whether the officers actions are `objectively reasonable in light of the facts and circumstances confronting them"].)
A school officials suspicion that a student was tardy or truant from class does not provide a reasonable basis for conducting a search of any kind. (In re William G., supra, 40 Cal.3d at p. 566.) Membership in a criminal street gang, without additional facts from which criminal activity may be inferred, does not permit a detention. (People v. Rodriguez (1993) 21 Cal.App.4th 232, 239.) "[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion." (Illinois v. Wardlow (2000) 528 U.S. 119, 124.)
"We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.) The trial courts findings are supported by substantial evidence. They are basically undisputed.
At the time Gutierrez made the decision to search Alvaro, the facts presented to him were as follows: Alvaro had a history of getting into trouble and had been suspended 17 times. Alvaro had "tagged" around the school before. Alvaro arrived at school late that morning and was not in class but in the art building, where he was not supposed to be, when Gutierrez saw him at about 7:50 a.m. Alvaro was with another male student who had a history of problems. Gutierrez had seen Alvaro in the company of known gang members in the past. When Gutierrez confronted Alvaro at the art building and asked what he was doing, he responded that everything was fine and that he was going to class, but then "started getting nervous." When Gutierrez spoke with Alvaro in his office, Alvaro "got real nervous." Gutierrez testified that he had Alvaro empty his pockets because Alvaro had "tagged" around the school before, Alvaro was nervous, and Alvaro "hangs around with known taggers." Gutierrez expected to find a "marker or something else" in his search.
The facts confronting Gutierrez objectively support a reasonable suspicion that Alvaro had engaged, or was engaging in a violation of a school rule or regulation, or a criminal statute. (In re William G., supra, 40 Cal.3d at p. 564; Maryland v. Macon, supra, 472 U.S. at p. 470; Graham v. Connor, supra, 490 U.S. at p. 397.) Accordingly, the juvenile court properly denied Alvaros motion to suppress.
II. The One-Year Maximum Period of Physical Confinement Is Stricken
Citing In re Ali A. (2006) 139 Cal.App.4th 569, 573-574 (holding that a maximum period of confinement in a dispositional order was of no legal effect because the ward was not removed from his parents custody), Alvaro contends that the juvenile court erred in setting a one-year maximum period of physical confinement because such a period may not be set when a juvenile is placed on home probation. Respondent agrees, as do we. (Ibid.)
DISPOSITION
The juvenile courts order declaring Alvaro to be a ward of the court is affirmed; that part of the order setting a one-year maximum period of physical confinement is stricken.
We concur:
TURNER, P. J.
ARMSTRONG, J.