Opinion
NO. 01-19-00865-CV
10-20-2020
In the MATTER OF I.O., a Juvenile
Alexander Bunin, Chief Public Defender, Harris County, Texas, Nicholas Mensch, 1201 Franklin St., 13 Floor, Houston, Texas 77002, for Appellant. Kim Ogg, District Attorney, Harris County, Texas, Patricia McLean, 500 Jefferson, Houston, Texas 77002, for Appellee.
Alexander Bunin, Chief Public Defender, Harris County, Texas, Nicholas Mensch, 1201 Franklin St., 13th Floor, Houston, Texas 77002, for Appellant.
Kim Ogg, District Attorney, Harris County, Texas, Patricia McLean, 500 Jefferson, Houston, Texas 77002, for Appellee.
Panel consists of Chief Justice Radack and Justices Hightower and Adams.
Terry Adams, Justice This appeal concerns the constitutionality of an administrative search of appellant, I.O., at the middle school he attended. A controlled substance was found on appellant during the search and he was subsequently charged with delinquent conduct; specifically, possession of a controlled substance on school property. After the trial court denied his motion to suppress evidence, appellant entered into a stipulation of evidence. The trial court found that appellant engaged in delinquent conduct and placed him on probation for one year. In one issue on appeal, appellant contends the trial court erred in denying his motion to suppress.
We affirm the judgment of the trial court.
Background
The State filed a petition alleging that appellant engaged in delinquent conduct by possessing a controlled substance on school property. Appellant filed a motion to suppress evidence, which the trial court denied.
Testimony presented at the suppression hearing indicated that, on September 6, 2018, officials at the middle school appellant attended suspended a female student who was in possession and under the influence of a controlled substance. The student initially refused to reveal the source of the controlled substance. But she returned to the school the next morning with her mother and told T. Perkins, one of the school's three assistant principals, that she had received the controlled substance from appellant. Perkins, who did not testify at the suppression hearing, shared this information with the school principal, B. Bilton.
Based on the female student's tip identifying appellant, Bilton and another assistant principal, C. Perez, decided to search appellant that same day. Bilton stated it was his duty as principal to "make sure that [the school] environment is safe; and that means no drugs...."
Neither Bilton nor Perez spoke directly with the female student who identified appellant as the source of the controlled substance in her possession. And neither Bilton nor Perez could identify her by name at the suppression hearing. Bilton explained that he was "sure" he could obtain the student informant's name, but expressed concern for retaliation if her name was disclosed.
Perez made contact with appellant as appellant arrived late to school with two other students. To Perez, appellant "looked under the influence of some type of ... drug or some type of substance." Perez called appellant and the other students—who also appeared to be "high or intoxicated"—into Bilton's office. After appellant denied that he was in possession of anything prohibited at school, Perez proceeded with the administrative search. Bilton observed. In appellant's backpack, Perez found "three small [green] squares" in a plastic bag along with "three or four ... rectangular pieces of medicine," which Perez recognized as Xanax.
Xanax is alprazolam, which is a controlled substance. See Tex. Health & Safety Code §§ 481.002(5) (defining "controlled substance" to include substances listed in Penalty Group 3), 481.104(a)(2) (listing alprazolam in Penalty Group 3); see also Gibson v. State , 233 S.W.3d 447, 450 (Tex. App.—Waco 2007, no pet.) (Xanax is alprazolam).
According to Perez, appellant violated the school's code of conduct by possessing a controlled substance on campus and by coming to school under the influence. Although Perez noticed the odor of marijuana on appellant's clothing, no marijuana was found on appellant's person or in his backpack. Perez acknowledged the possibility that the marijuana odor may have transferred to appellant's clothing, since one of the other students called into Bilton's office was in possession of marijuana. Bilton did not recall whether appellant had an odor of marijuana or appeared to be under the influence of alcohol or a controlled substance. The school officials did not administer any drug or alcohol test to appellant, and appellant was not examined by the school nurse.
The school contacted the school district's police department, and Officer R. Robinson arrived to search appellant for weapons. As Perez explained to appellant what would happen next, appellant became frustrated and produced two additional bags of Xanax from his waistband. He told Perez, "Here, you missed these." Officer Robinson arrested appellant. He did not note in his report that appellant appeared to be under the influence of alcohol or a controlled substance at the time of his arrest.
Standard of Review
We review a trial court's denial of a motion to suppress evidence under a bifurcated standard. See Turrubiate v. State , 399 S.W.3d 147, 150 (Tex. Crim. App. 2013) ; see also In re R.J.H. , 79 S.W.3d 1, 6 (Tex. 2002) (standard of review for rulings on motion to suppress is same in juvenile cases as in adult criminal proceedings). We review the trial court's factual findings under an abuse of discretion standard but conduct a de novo review of the trial court's application of law to those facts. Turrubiate , 399 S.W.3d at 150 ; see also State v. Ross , 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) ; Guzman v. State , 955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997).
When, as here, no findings of fact were requested or filed, we must view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact supported by the record. In re R.J.H. , 79 S.W.3d at 7. We will sustain the trial court's ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. In re M.I.S. , 498 S.W.3d 123, 130 (Tex. App.—Houston [1st Dist.] 2016, no pet.). Stated differently, and as the Texas Court of Criminal Appeals has instructed, "appellate courts, including this Court, should afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's findings are based on an evaluation of credibility and demeanor." Ross , 32 S.W.3d at 856 (quoting Guzman , 955 S.W.2d at 89 ).
Motion to Suppress
In his sole issue, appellant argues that the trial court erred in denying his motion to suppress because, according to appellant, the administrative search was not justified at its inception. See U.S. CONST. amend. IV ; TEX. CONST. art. I, § 9 ; TEX. CODE CRIM. PROC. art. 38.23 ; TEX. FAM. CODE § 54.03(d) ; New Jersey v. T.L.O. , 469 U.S. 325, 337, 341–42, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). We disagree.
The Fourth Amendment applies to administrative searches of students by school authorities. See T.L.O. , 469 U.S. at 337, 105 S.Ct. 733. But the school setting requires "some modification of the level of suspicion of illicit activity needed to justify a search." Id. at 340, 105 S.Ct. 733. Accommodating both the privacy interests of students and the substantial need of school authorities "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 the subject of the search has violated or is violating the law." Id. at 341, 105 S.Ct. 733. Rather, the legality of a search depends on its reasonableness under all of the circumstances. T.L.O. , 469 U.S. at 341–42, 105 S.Ct. 733 ; Coronado v. State , 835 S.W.2d 636, 640 (Tex. Crim. App. 1992).
In determining the reasonableness of an administrative search of a student, we apply a two-pronged test. See T.L.O. , 469 U.S. at 341, 105 S.Ct. 733 ; Coronado , 835 S.W.2d at 640. First, the search must be "justified at its inception." T.L.O. , 469 U.S. at 341, 105 S.Ct. 733 ; Coronado , 835 S.W.2d at 640. A search is justified at its inception when there are reasonable grounds for suspecting that the search will reveal evidence a student has violated, or is violating, the law or rules of the school. T.L.O. , 469 U.S. at 341–42, 105 S.Ct. 733 ; Coronado , 835 S.W.2d at 640.
Second, the search, "as actually conducted," must be "reasonably related in scope to the circumstances which justified the interference in the first place." T.L.O. , 469 U.S. at 341, 105 S.Ct. 733 ; see Coronado , 835 S.W.2d at 640. A search is permissible in scope when the measures used are "reasonably related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction." T.L.O. , 469 U.S. at 342, 105 S.Ct. 733 ; Coronado , 835 S.W.2d at 640. "[S]ufficient probability, not certainty, is the touchstone of reasonableness[.]" T.L.O. , 469 U.S. at 346, 105 S.Ct. 733 (quotation omitted).
Appellant challenges only the first prong of the reasonableness inquiry—whether the administrative search was justified at its inception. Appellant contends the school did not have reasonable grounds for suspecting that the search would reveal evidence of a law or rules violation because the female student's tip, identifying him as the source of a controlled substance on the school campus, allegedly lacked sufficient indicia of reliability. In appellant's view, the tip was nothing more than a "naked tip" from an anonymous tipster because (1) neither Bilton nor Perez identified the female student informant by name at the suppression hearing, (2) neither Bilton nor Perez spoke with the female student informant, and (3) the tip lacked predictive value.
As a result, the second prong of the reasonableness inquiry—whether the search was permissible in scope—is not at issue here. See New Jersey v. T.L.O. , 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985).
In support of his position, appellant cites two decisions from the Austin Court of Appeals holding that an anonymous tip, standing alone, will rarely provide the reasonable suspicion necessary to justify a search. See In re K.C.B. , 141 S.W.3d 303, 307 (Tex. App.—Austin 2004, no pet.) ; In re A.T.H. , 106 S.W.3d 338, 343–44 (Tex. App.—Austin 2003, no pet.).
In A.T.H. , a law enforcement officer working at a school received a tip from an anonymous caller that a group of high-school-aged teens were smoking marijuana behind a nearby business. 106 S.W.3d at 341. The caller stated: "[T]he only person I could really identify for you is a black male wearing a Dion Sanders football jersey." Id. The officer then intercepted A.T.H.—a black male wearing a jersey matching the caller's description—in the school parking lot, performed a pat-down search of A.T.H., and found marijuana. Id. at 341–42.
The Austin court concluded the search was not justified at its inception because the anonymous tip was not corroborated by any independent observations giving rise to reasonable suspicion that criminal activity was afoot. Id. at 348. The court noted that the officer did not testify that he "saw any other young people with A.T.H. or in the area. The A.T.H. court also noted that the officer did not testify that A.T.H. had glassy eyes, smelled of marihuana, was uncooperative, acted nervous, or made any furtive or suspicious gestures." Id. In fact, the officer testified that "he only conducted the pat-down as a routine check for weapons"—he was not seeking evidence that A.T.H. had been using a controlled substance. Id.
In K.C.B. , a hall monitor received a tip from a student that K.C.B. was in possession of marijuana. 141 S.W.3d at 305. Based on the tip, which the parties stipulated was anonymous, the hall monitor escorted K.C.B. to the assistant principal's office. Id. at 304–05. An administrative search led to the discovery of a bag of marijuana in K.C.B.'s waistband. Id. In concluding the search was not justified at its inception, the court stated it was "bound by the facts as stipulated by both parties, and so [was] unable to determine whether the tip was truly anonymous, allowing for no indicia of reliability, or rather made to [the hall monitor] by a known student who asked the hall monitor that his name not be revealed." Id. at 307. The court further noted that, under the latter circumstance, "there might be an added indicia of reliability" allowing school officials to reasonably rely on the tip. Id.
Both cases are distinguishable from the facts here. The tip in A.T.H. was received over the telephone from a caller who refused to provide his name. 106 S.W.3d at 341. And in K.C.B. , the holding was predicated on a joint stipulation that the tip was anonymous. 141 S.W.3d at 304–05, 307. On the other hand, the record in this case establishes that the tip in question was from a female student who was unidentified at the suppression hearing but who was known to school officials.
Both Perez and Bilton testified that the female student reported in-person to Perkins, another school official, that appellant was the source of a controlled substance on the school campus. That is, in a face-to-face meeting with Perkins, the female student specifically identified appellant as having engaged in a specific criminal activity. Although neither Bilton nor Perez explicitly identified the female student in court, the trial court could have reasonably inferred that she was known to Perkins because she met in-person with Perkins when she identified appellant as the source of the controlled substance that she possessed on the school campus.
The trial court could also have reasonably inferred that Bilton or Perez or both knew the female student's identity given their knowledge that she was the same student who had been suspended from school the day before for being in possession and under the influence of a controlled substance. See In re B.R.P. , No. 03-07-00106-CV, 2007 WL 2403226, at *3 (Tex. App.—Austin Aug. 23, 2007, no pet.) (mem. op.) (court could reasonably infer that assistant principal knew reporting student's identity where student, though not explicitly identified in court, was in assistant principal's office on another infraction and spoke to him in person); see also In re J.A.M. , No. 04-19-00415-CV, 2020 WL 1159045, at *2 (Tex. App.—San Antonio Mar. 11, 2020, no pet.) (mem. op.) (citing B.R.P. and holding that tip was not anonymous because school secretary and principal both knew student informant); Irby v. State , 751 S.W.2d 670, 671 (Tex. App.—Eastland 1988, no writ) (upholding search where teacher informed associate principal that unidentified student was in possession of marijuana, unidentified student confirmed to assistant principal that he possessed marijuana, and unidentified student told associate principal that he got marijuana from appellant).
Texas courts have distinguished between anonymous telephone informants and informants who personally approach officers. See, e.g., State v. Garcia , 25 S.W.3d 908, 913 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ; State v. Sailo , 910 S.W.2d 184, 188 (Tex. App.—Fort Worth 1995, pet. ref'd). "Unlike a person who makes an anonymous telephone call, an individual presenting himself to the officer in person ... puts himself in a position to be held accountable for his intervention; thus, the reliability of the information he provides is increased." Garcia , 25 S.W.3d at 913.
Based on this case law, the in-person tip in this case does not raise the same reliability concerns as the anonymous tips in A.T.H. and K.C.B. Bilton testified that he was certain he could obtain the female student's name and, thus, she could have been held responsible if the tip she provided to Perkins was inaccurate. See In re B.R.P. , 2007 WL 2403226, at *3 ; In re J.A.M. , 2020 WL 1159045, at *2. And again, the tip in this case contained precise information specifically identifying appellant, a particular exchange of a controlled substance on the school campus, on a particular day, and to which the female student was an actual party. See In re K.C.B. , 141 S.W.3d at 307 (predictive information must move beyond "easily observable facts, such as location or attire" and predict certain events involving specific individuals).
We disagree with appellant that the search was not justified at its inception because Perkins, not Perez or Bilton, received the tip and did not testify at the suppression hearing. In assessing the reasonableness of a search, we consider the information known collectively to the cooperating school officials, not just the individual who personally conducted the search. See In re J.A.M. , 2020 WL 1159045, at *2 (rejecting argument that search was based on anonymous tip because, even though officer who actually conducted search did not know tipster's identity, identity was known collectively by school officials); see also Derichsweiler v. State , 348 S.W.3d 906, 915 (Tex. Crim. App. 2011) (noting "the cumulative information known to the cooperating officers at time of stop is to be considered in determining whether reasonable suspicion exists," and holding information known collectively to 911 dispatcher and police officer who conducted warrantless detention provided reasonable suspicion).
Unlike the anonymous tips in A.T.H. and K.C.B. , the tip in this case was not the only basis for the search. Although we note the testimony from Perez and Bilton that the decision to search appellant was based on the female student's tip, we must evaluate the reasonableness of the search under all of the surrounding circumstances. See T.L.O. , 469 U.S. at 341, 105 S.Ct. 733 ("[T]he legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search."); see also In re A.T.H. , 106 S.W.3d at 347 (noting that officer's testimony that he conducted pat-down only for routine safety concerns did not automatically invalidate search, and evaluating whether reasonably prudent officer would believe he or others might be at risk under totality of circumstances).
In that regard, Perez testified that when appellant arrived late to school, appellant appeared to be under the influence of something and had an odor of marijuana on his clothing. The other two students with appellant also appeared to be under the influence. See In re A.H.A. , No. 03-07-00296-CV, 2008 WL 5423258, at *1 (Tex. App.—Austin Dec. 30, 2008, no pet.) (mem. op.) (assistant principal smelled smoke as respondent and another student approached him and detected odor of marijuana on their hands).
Appellant elicited testimony that contradicted Perez's testimony—namely, Perez's testimony acknowledging that the odor of marijuana may have transferred to appellant's clothing from another student, Bilton's testimony that he could not recall on odor of marijuana on appellant, and the arresting officer's testimony that he did not note any signs of intoxication in his report. But certainty is not the standard for reasonableness. See T.L.O. , 469 U.S. at 346, 105 S.Ct. 733. As the "sole and exclusive trier of fact and judge of the witnesses' credibility" at the suppression hearing, the trial court could choose to believe Perez's testimony that appellant appeared to be under the influence and had an odor of marijuana and disregard the contradictory testimony. See Valderama v. State , No. 01-15-00508-CR, 2016 WL 4440941, at *5 (Tex. App.—Houston [1st Dist.] Aug. 23, 2016, no pet.) (mem. op., not designated for publication).
In summary, school officials had the following information before the search of appellant: (1) a tip from an unidentified but known student that appellant had provided her with a controlled substance the day before; (2) appellant appeared to be under the influence when he arrived late to school on the morning of the search; (3) appellant arrived to school with two other students who also appeared to be under the influence; and (4) appellant's clothing had an odor of marijuana. Considering these circumstances in their totality, the trial court could have reasonably concluded that reasonable grounds existed to suspect that the search would reveal evidence that appellant was breaking the law or school rules by possessing a controlled substance. See T.L.O. , 469 U.S. at 341, 105 S.Ct. 733.
Based on the "almost total deference" standard of review, which requires that we view this evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact supported by the record, we hold the trial court did not err in denying appellant's motion to suppress evidence because the search was justified at its inception.
State v. Ross , 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) ; see also In re R.J.H. , 79 S.W.3d 1, 7 (Tex. 2002).
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.