Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DL020848, Donna L. Crandall, Judge.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Daniel R. contends the juvenile court erroneously denied his motion to suppress a weapon found on him during a school search. He contends the search violated his Fourth Amendment rights, but we disagree and affirm the judgment.
FACTS
Daniel attended Alton school, whose student body is largely comprised of youths who are in foster care or juvenile hall. Graffiti is a problem at the school, as are guns and drugs. In order to curb graffiti, the school has a policy of asking students to empty their pockets before they enter the bathroom; if students refuse to empty their pockets they are supposed to be accompanied into the bathroom by a staff member. According to Assistant Principal Jerry Higdon, the policy was instituted because of the need for safety and to prevent the destruction of property. And, it has in fact helped reduce the amount of graffiti in the school’s bathrooms. Higdon said the policy is verbally conveyed to the students. While it does not appear in the student handbook, this case is the first instance of noncompliance with the policy they have had.
One day, Alton teacher David Marquez saw Daniel walking toward the bathroom with something bulging out of his pocket. The bulge caught Marquez’s attention because there had been “a lot of graffiti on this particular date.” Marquez was, as he put it, “very aware of what was going on and especially in going to the bathroom.” He asked Daniel what was in his pocket, and Daniel replied “it’s mine,” or something to that effect. Marquez said, “Let me see what’s in your pocket; let me see your pocket.” Daniel paused momentarily and then said “it’s mine” or “it’s nothing.” He then gave Marquez the object, which was a “Roman star,” or shuriken.
Charged with possessing a deadly weapon, Daniel moved to suppress the star. He argued the seizure was not justified by reasonable suspicion of any wrongdoing, but the court denied his motion. Specifically, the court found the school’s bathroom policy and Marquez’s actions were both reasonable under the Fourth Amendment. Thereupon, Daniel admitted the weapon allegation and was declared a ward of the court and placed on juvenile probation.
DISCUSSION
Daniel argues the court erred in denying his motion because the school’s bathroom policy is unconstitutional, and Marquez did not have reasonable suspicion to believe he was engaged in any wrongdoing. We find Marquez was legally justified in seizing the shuriken from Daniel. Therefore, we affirm the trial court’s ruling.
“Our courts have recognized that the special need of schools to maintain a safe and orderly environment for learning requires different rules regarding search and seizure than those employed in the public in general. Thus, minor students may be detained without any particularized suspicion, as long as the detentions are ‘not arbitrary, capricious, or for the purposes of harassment.’ [Citation.] Searches of students on campus do not require probable cause to believe the student violated the law, but rather reasonable suspicion the student is violating or has violated a law, school rule, or regulation.” (In re Jose Y. (2006) 141 Cal.App.4th 748, 752, citing In re William G. (1985) 40 Cal.3d 550, 564; see also New Jersey v. T.L.O. (1985) 469 U.S. 325, 341-342.)
Daniel argues the school’s policy is facially overbroad because it effectively authorizes a search of every student seeking to use the bathroom without any particularized suspicion of wrongdoing. However, under the policy, students actually have a choice when a teacher asks them to empty their pockets: They can either comply with the request or, as the trial court put it, “in the alternative, be accompanied [into the bathroom] by a staff member.” While it may be uncomfortable or awkward for some students to have a teacher follow them into the bathroom, this method of monitoring for graffiti does not constitute a significant invasion of privacy.
Irrespective of the school’s bathroom policy, the seizure of Daniel’s shuriken was legally justified for the simple reason it was based on a reasonable suspicion of wrongdoing. (See New Jersey v. T.L.O., supra, 469 U.S. at p. 342, fn. 8.) In the school context, reasonable suspicion exists when “there are reasonable grounds for suspecting the search will disclose evidence the student has violated or is violating the law or school rules. [Citation.] ‘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 . . . can take place absent the existence of reasonable suspicion. Respect for privacy is the rule — a search is the exception.’ [Citation.]” (In re Lisa G. (2004) 125 Cal.App.4th 801, 806.)
Noting there was no evidence it was against school rules to possess music players, Daniel claims Marquez lacked reasonable suspicion to search him because the teacher believed he was carrying a compact disc player, not graffiti markers. The claim fails for two reasons.
First, while Marquez testified he thought the object in Daniel’s pocket was a compact disc player, the court sustained the prosecutor’s objection to this testimony because it was not offered in response to any particular question. In any event, Marquez’s testimony was equivocal as to when he formed his belief about what was in Daniel’s pocket. All he said with respect to this point was, “And the next thing I know, I thought I was looking at a C.D. player. I thought, ‘Oh, this is just a C.D. player.’ I’m thinking that it’s a C.D. player, because he pulled out an object that was . . . .”
As the trial court aptly put it, Marquez’s testimony in this regard “was not clear as to whether he thought [the object] was a C.D. [player] before it was taken out of the pocket or when it was taken out of the pocket.” So even if Marquez’s testimony on this point had not been stricken, we would not be inclined to accept it as a basis for impugning his actions.
The second and more fundamental reason Daniel’s claim fails is that it really doesn’t matter what Marquez was thinking at the time of the encounter. Whether the facts support a reasonable suspicion of wrongdoing “is measured by an objective standard, not by the particular officer’s subjective state of mind at the time of the stop or detention.” (People v. Conway (1994) 25 Cal.App.4th 385, 388.) “As [the United States Supreme Court has] repeatedly explained, ‘“the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s actions does not invalidate the action as long as the circumstances, viewed objectively, justify that action.”’ [Citation.] ‘[T]he Fourth Amendment’s concern with “reasonableness” allows certain actions to be taken in certain circumstances, whatever the subjective intent.’ [Citation.]” (Devenpeck v. Alford (2004) 543 U.S. 146, 153.)
Moreover, “[t]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.” (In re Tony C. (1978) 21 Cal.3d 888, 894.) The question of reasonable suspicion turns not on “‘whether particular conduct is “innocent” or “guilty,” but the degree of suspicion that attaches to particular types of noncriminal acts.’” (United States v. Sokolow (1989) 490 U.S. 1, 10, quoting Illinois v. Gates (1983) 462 U.S. 213, 243-244, fn. 13.) The “totality of the circumstances — the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (United States v. Cortez (1981) 449 U.S. 411, 417-418.)
Here, Daniel was seen walking to the bathroom with an unidentified object bulging out of his pocket. That alone does not amount to reasonable suspicion, but we must remember that Daniel’s school had an ongoing problem with graffiti in its bathrooms. In fact, Marquez testified he was on heightened alert when he stopped Daniel because there had been a lot of graffiti occurring that day. That is a relevant factor in the reasonable suspicion equation. (See United States v. Mendenhall (1980) 446 U.S. 544, 563 [“Among the circumstances that can give rise to reasonable suspicion are the agent’s knowledge of the methods used in recent criminal activity”]; United States v. Brignoni-Ponce (1975) 422 U.S. 873, 885 [same].)
We must also consider the fact graffiti can be created with a wide variety of implements. (See generally Pen. Code, § 549.2.) From an objective perspective, there was nothing about the bulge in Daniel’s pocket that signaled it was outside this broad class of items. Indeed, the bulge could have been a set of markers or a can of paint consistent with the tools a person may use to create graffiti.
Subdivision (a) of this section provides that “[e]very person who possesses a masonry or glass drill bit, a carbide drill bit, a glass cutter, a grinding stone, an awl, a chisel, a carbide scribe, an aerosol paint container, a felt tip marker, or any other marking substance with the intent to commit vandalism or graffiti, is guilty of a misdemeanor.”
Taking these factors into consideration, we conclude there was an objectively reasonable basis to suspect Daniel was in violation of school rules. Marquez was justified in ordering him to empty his pockets and seizing the shuriken from him. No Fourth Amendment violation has been shown.
The judgment is affirmed.
WE CONCUR: O’LEARY, J., ARONSON, J.