Opinion
G036460
12-11-2006
In re JOSE G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOSE G., Defendant and Appellant.
Shawn R. Perez, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
Minor Jose G. admitted two counts of vandalism under $400 based on tagging at his school. He appeals from a judgment declaring him a ward of the juvenile court, claiming the court should have granted his motion to suppress evidence of tagging found in his school locker and his subsequent admission of the incident to the police, because there was no reasonable suspicion justifying the search of his locker. We disagree and affirm.
FACTS
A Beckman High School employee received an anonymous telephone call from some students that three other students, including the minor, had tagged several buildings on campus with the word "Kidd." She informed the assistant principal, Dean Crow, who instructed a custodian to search the lockers of the three students and bring him the contents. Inside the minors locker the custodian found a paper containing graffiti matching that on the school buildings. At the time Crow received the tip, he had already seen the graffiti himself. Crow interviewed the minor, who admitted tagging two of the three locations. Crow then contacted the police.
The police officer who served as the security search officer for the school interviewed the minor, first reading him his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].) The minor again admitted he wrote graffiti in two locations.
The minor was charged with two misdemeanor counts of vandalism under $400 (Pen. Code, § 594, subds. (a), (b)(2)(A)). He moved to suppress the contents of the locker on the ground that the anonymous tip was insufficient to justify search of the locker. In denying the motion the court stated: "Had the tip that was received in the attendance office simply said that these three individuals are tagging on school grounds, period, I would agree with [the minor]. [¶] But when the tip is very specific as to the location and whats being tagged and the name, and the assistant principal had seen the graffiti before the tip came in, I think thats different from an anonymous tip that just says that the guy in the checkered suit standing on the corner has a gun, and the officer has no idea that there is a gun anywhere in the vicinity until he searches the guy in the checkered suit and finds the gun. That clearly is an unreasonable search. [¶] But when the graffiti is there, its where they say it is, its what they say it is . . . . [¶] But the reality is that in [the minors] locker there was a book [containing] . . . practice graffiti. . . . [¶] I do not find this to be an unreasonable search."
Thereafter, the minor admitted the allegations of the petition.
DISCUSSION
1. Legality of the Search
Although the Fourth Amendment applies to students at schools, searches need not be based on probable cause to believe there has been a violation of the law. (New Jersey v. T.L.O. (1985) 469 U.S. 325, 341, [105 S.Ct. 733, 83 L.Ed.2d 720].) "Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search." (Ibid.) Two factors must be satisfied: the search must have been "`justified at its inception" and the search as conducted must have been "`reasonably related in scope to the circumstances which justified the interference in the first place." (Ibid.) The minor contends the search of his locker violated his Fourth Amendment rights because it was not reasonable under all the circumstances and neither prong of the test was satisfied. We are not persuaded.
a. Search Justified at Its Inception
A search is justified in its inception where "there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." (New Jersey v. T.L.O., supra, 469 U.S. at pp. 341-342, fn. omitted.) The minor asserts that the anonymous tip about him tagging was insufficient to justify the search. He contends the tip was uncorroborated, that the principal had the search done without investigation or other information, and that the tip does not support reasonableness.
The minor misstates the record. The tip was corroborated. The principal himself saw the graffiti specified in the tip before the tip was received. This distinguishes it from Florida v. J.L. (2000) 529 U.S. 266 [120 S.Ct. 1375, 146 L.Ed.2d 254] where the court held an anonymous tip that a person possessed a gun was not sufficient to justify a stop and frisk by an officer. (Id. at p. 268.) In that case an unidentified person told the police that a young Black man wearing a plaid shirt and standing at a specified bus stop had a gun. The officer did not observe any illegal or suspicious conduct, but, based on the tip, searched the man and found a gun. In ruling the gun inadmissible, the court stated: "[T]he officers suspicion that J.L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, [citation], `an anonymous tip alone seldom demonstrates the informants basis of knowledge or veracity, [citation]." (Id. at p. 270.)
The court went on to state, however, that "there are situations in which an anonymous tip, suitably corroborated, exhibits `sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop. [Citation.]" (Florida v. J.L., supra, 529 U.S. at p. 270.) Here the tip was corroborated by Crows personal knowledge of the graffiti; the location where he had seen it was one of the same locations identified by the caller. In addition, the word "Kidd" seen by Crow was the same as that described by the tipster. Moreover, the evidence reasonably suggested another student had provided the tip. Crow testified that "[a]pparently [the minor and other students named in the tip] had bragged about [the tagging] to other students on campus." This personal knowledge of the informant is another indication of reliability.
Thus the tip was sufficiently corroborated. Given this, that no one saw the minor engage in the tagging, as he asserts, is of no moment. Further, nothing in Florida v. J.L. suggests that the corroborative information must tie the minor to the suspected activity. The other pieces of information were indicia of reliability giving the principal a reasonable suspicion.
We reject the minors reliance on In re William G. (1985) 40 Cal.3d 550. In that case, the court determined that a student may not be searched by a school official unless there is a reasonable suspicion that the student has "engaged, or [is] engaging, in a proscribed activity (that is, a violation of a school rule or regulation, or a criminal statute)." (Id. at p. 564.) To satisfy this standard, there must be "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 . . . statute. [Citations.]" (Ibid.) Here, as discussed above, there were such articulable facts and rational inferences leading to an objectively reasonable suspicion. Contrary to the minors argument, the search was not based on "mere curiosity, rumor, or hunch. [Citation.]" (Ibid.)
b. Scope of the Search Reasonable
The minor also argues the scope of search was not reasonably related to the events leading to the search because there were no claims he possessed weapons or other contraband. Thus, he concludes, "the less intrusive means would have been to ask the minor" if he had participated in the tagging instead of searching his locker. This argument is flawed.
First, the minor was asked if he had written the graffiti and he admitted it. The record contains no evidence that when he was questioned, there was any reference to what was found in his locker. Therefore, even had the scope of the search been overly broad, the minors admission renders it harmless.
Moreover, the scope of the search fell within reasonable bounds. The parties do not cite and we did not find any case dealing with the scope of the search of a students locker. (See In re Cody S. (2004) 121 Cal.App.4th 86, 92-93, fn. 5.) New Jersey v. T.L.O., supra, 469 U.S. 325 specifically did not decide whether a student has an expectation of privacy in his locker (id. at pp. 337-338, fn. 5.), although In re William G., supra, 40 Cal.3d 550, while not dealing with a search of a locker, did state that a student "always has the highest privacy interests in his . . . locker[]" (id. at p. 563). This statement must be viewed, however, in the context of the "considerably restricted" "zones of privacy" as compared to those of citizens not in a school setting. (Ibid.)
In general, a search of a student is "permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." (New Jersey v. T.L.O., supra, 469 U.S. at p. 342, fn. omitted.)
Search of a locker is reasonably related to a tip about graffiti. It makes sense for a school official to believe paint or other graffiti tools would be in a locker. And the search was confined to the minors locker. Finally, the age and sex of the minor are not relevant to our analysis. Thus, under all the circumstances, the scope of the search was acceptable.
2. No Exclusion of the Minors Admission
The minor asserts that because the search was inadmissible, his admission of the tagging should have been suppressed as tainted by the illegal search. (People v. Mayfield (1997) 14 Cal.4th 668, 760.) However, because the search was proper, this argument must fail.
DISPOSITION
The judgment is affirmed.
We Concur:
SILLS, P. J.
FYBEL, J.