Opinion
F078771
11-12-2019
In re KEITH G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Appellant, v. KEITH G., Defendant and Respondent.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Respondent. Tim Ward, County District Attorney, Dan Underwood, Chief Deputy District Attorney, Dave Alavezos, Cindy Underwood, and Adam Clare, Deputy District Attorneys, for Plaintiff and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJD070780)
OPINION
THE COURT APPEAL from an order of the Superior Court of Tulare County. Robin L. Wolfe, Judge. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Respondent. Tim Ward, County District Attorney, Dan Underwood, Chief Deputy District Attorney, Dave Alavezos, Cindy Underwood, and Adam Clare, Deputy District Attorneys, for Plaintiff and Appellant.
Before Smith, Acting P.J., Meehan, J. and DeSantos, J.
-ooOoo-
Appellant, the People appeal from the juvenile court's order granting respondent Keith G.'s (the minor) suppression motion. We reverse.
FACTS
Background
On June 1, 2017, the minor was arrested at the continuation school he attended following a search of his person during which a small plastic bag containing three pills of a prescription drug was found in his pants coin pocket.
On August 2, 2017, the Tulare County District Attorney filed a wardship petition (Welf. & Inst. Code, § 602) charging the minor with possession of a controlled substance (Bus. & Prof. Code, § 4060).
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
On October 23, 2017, the court placed the minor on informal probation. (§ 654.2.)
On July 26, 2018, the court terminated informal probation and ordered the matter to proceed formally.
On September 13, 2018, the minor filed a motion to suppress (§ 700.1), arguing that the search was conducted without reasonable suspicion, and that even if the search was reasonable, the plain touch doctrine did not permit the officer to search his pocket.
On September 27, 2018, the People filed a response, arguing that a search of the minor was justified by reasonable suspicion based on the minor triggering the metal detector and walking away and by the minor's consent to the search.
The Suppression Hearing
Richard Torrez was the assistant principle of the school the minor attended. On December 18, 2018, at a hearing on the motion, Torrez testified that every other day or on random days in the morning, he would run a metal detector wand over each student's clothing. Torrez would place a table at the entrance gate to the school and ask each student if he or she had anything they should not have. If the student said he or she did not, he would run the metal detector over the student's clothing. If the metal detector beeped, Torrez would ask the student what was in his or her pocket and if he could see the item. The student would then show the item and put it in a tray on the table. If the student did not show the item, Torrez would take them to his office and ask School Resource Officer John Rocha to assist him in searching the student. School safety was the reason for the policy. The school was basically an expulsion school with 90 percent of the students having been expelled from school and some had previous issues with weapons.
On June 1, 2017, Torrez was checking all the students with the metal detector wand. When he passed it over the minor's clothing, the metal detector beeped. Torrez asked him if he had anything in his pockets. The minor "reached" and said he would be back, without explaining why he was leaving. Torrez told the minor it seemed he had something in his pocket he should not have, and he stated, "Just to let you know[,] when you come back I'm going to search you."
The minor returned 10 to 15 minutes later. Torrez did not run the metal detector over the minor's clothing and immediately escorted him into his office. Rocha was already at the office. Torrez asked Rocha to assist him in searching the minor and told him that he believed the minor had something on him.
Torrez was concerned for safety reasons that the minor might still have the item on him because after the metal detector beeped the minor left without taking the item out of his pocket or letting him see it.
The door to Torrez's office was usually closed, but not locked.
Rocha walked up to the minor and asked if he had anything on him and if he minded if Rocha searched him. The minor replied, "[G]o ahead." Rocha had the minor spread his legs and pat searched him. Rocha felt a small object, about a half-inch in size, in the front coin pocket of the minor's pants that, based on his training and experience, he believed was some type of drug. Rocha asked the minor what the item was, and the minor replied that he did not know. Rocha removed the item and discovered it was a small plastic bag containing three pills. He asked the minor what type of pills they were, and the minor responded he did not know. Rocha determined the pills were Promethazine Hydrochloride, a prescription drug. Rocha asked the minor if he was taking any kind of medication. The minor replied he was supposed to be taking something, but he had not seen a doctor and had not currently been prescribed anything. Rocha arrested the minor.
The People argued that the search of the minor was reasonable because it was conducted pursuant to the school's normal safety procedures, the minor consented, and only reasonable suspicion was required, which was provided by the minor activating the metal detector. Defense counsel argued Rocha did not have reasonable suspicion for the search because Torrez did not check the minor with the metal detector when he returned, and in any event, reasonable suspicion did not justify the continued search after the officer felt a small object in the minor's pocket because the item could have been something he could legally possess.
In granting the motion, the court expressly found only that the search was unreasonable because Torrez did not run the metal detector wand over the minor when he returned.
On January 7, 2019, the court dismissed the petition after the People announced they were unable to proceed.
DISCUSSION
The Search of the Minor was Supported by Reasonable Suspicion
Appellant contends the search of the minor was valid based on consent. Alternatively, appellant contends the search was supported by reasonable suspicion. The minor contends the court implicitly found he did not validly consent to a search and that this finding is supported by substantial evidence. The minor further contends the search was invalid because it was not supported by reasonable suspicion, and even if there was reasonable suspicion for a pat-down search for weapons, it did not justify the officer reaching into his coin pocket and seizing the pills. Because we conclude the search was supported by reasonable suspicion, we do not reach the issue of consent.
"On appeal from the denial of a suppression motion, the court reviews the evidence in a light favorable to the trial court's ruling. [Citation.] We must uphold those express or implied findings of fact by the trial court which are supported by substantial evidence and independently determine whether the facts support the court's legal conclusions. [Citation.]
" ' "The Fourth Amendment proscribes all unreasonable searches and seizures, ...." [Citations.]' [Citation.] 'The balancing of competing interests to determine the scope of Fourth Amendment protections in a particular setting is well settled. Whether a particular search is reasonable depends on a balancing of "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." [Citation.]' [Citation.] ' "[I]t is a cardinal principle that 'searches conducted outside the judicial process, without prior approval by judge or magistrate are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions.' " [Citations.]' [Citation.]
"In New Jersey v. T.L.O. (1985) 469 U.S. 325, the Supreme Court recognized an exception to the warrant and probable cause requirement for searches conducted by public school officials. The Supreme Court balanced the privacy interests of the students against 'the substantial need of teachers and administrators for freedom to maintain order in the schools' and concluded a search of a student would be justified at its inception 'when 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 school.' [Citation.] The United States Supreme Court further stated: '[s]uch a search will be 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.' [Citation.]
"The California Supreme Court in In re William G.[] [1985] 40 Cal.3d at page 564, elaborated the standard necessary to support a search by school officials of a student:
" 'There must be articulable facts supporting that 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)]. 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 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. [Citation.] 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.' " (In re Joseph G. (1995) 32 Cal.App.4th 1735, 1738-1740.)
Ninety percent of the students who attended the minor's school had been expelled from other campuses and some of them had prior issues with weapons. For safety purposes the school had a policy of searching students with a metal detector wand on random days by running the metal detector on the exterior of their clothing. Pursuant to that policy, the metal detector wand was run over the minor's clothing and something on his person activated the metal detector. When Torrez asked him if he had anything in his pocket, the minor refused to disclose what triggered the metal detector. Instead, he said he would be back, and he left for 10 to 15 minutes.
Flight alone is insufficient to support a finding of reasonable suspicion of wrongdoing. (People v. Souza (1994) 9 Cal.4th 224, 239 (Souza).) However, in addition to fleeing, the minor was carrying something that triggered the metal detector, he refused to disclose what that item was, and his purpose in fleeing was to avoid a search the school was entitled to conduct pursuant to the school's policy of conducting random searches for weapons. (In re Latasha W. (1998) 60 Cal.App.4th 1524, 1527.) Further, since minutes earlier the minor had apparently attempted to smuggle contraband, drugs or a weapon, for example, into the school, Torrez could reasonably believe he might attempt a second time. These circumstances supported a reasonable suspicion that the minor was carrying on his person some type of contraband that was illegal or violated school rules that caused him to leave rather than submit to a search that would uncover the contraband.
Moreover, since the minor was gone for only 10 to 15 minutes and during that time he could have perfected his attempt to smuggle contraband into the school by ridding himself of the item that triggered the metal detector, the circumstances supporting a reasonable suspicion to search the minor did not become stale. Thus, the search of the minor was reasonable notwithstanding the failure to run the metal detector over his clothing when he returned. (Cf. In re Joseph G., supra, 32 Cal.App.4th at p. 1742 [search of student locker and subsequent search of backpack reasonable even though based on information of citizen informant provided five days before searches].)
The Officer Lawfully Seized the Pills in the Minor's Coin Pocket
The minor contends that even if reasonable suspicion justified a pat-down search for weapons, Rocha did not have reasonable suspicion that justified him reaching inside his coin pocket for an object that he speculated was drugs. We disagree.
"Under [the plain view] doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant." (Minnesota v. Dickerson (1993) 508 U.S. 366, 375.) "If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context." (Id. at pp. 375-376.)
The minor's conduct supported a reasonable suspicion that he was attempting to smuggle some sort of contraband, not necessarily weapons, into the school. Thus, the scope of the search was not limited to weapons as the minor suggests. However, even assuming it initially was, the seizure of the pills was lawful. Rocha testified that during the pat-down he felt a small object in the minor's coin pocket that through his training and experience he recognized as drugs. When he asked the minor what the item was, the minor unconvincingly replied that he did not know. These additional circumstances permitted Rocha to expand the search to include the minor's coin pocket, even assuming that the search of the coin pocket was not justified by the other circumstances discussed above.
The minor, however, contends even if Rocha recognized the item as a small plastic bag containing pills he could not lawfully seize them because he did not know whether they were over-the-counter medication that he could lawfully possess. The minor is wrong.
"[W]hen circumstances are ' "consistent with criminal activity," they permit—even demand—an investigation ....' [Citation.] A different result is not warranted merely because circumstances known to an officer may also be ' "consistent with lawful activity." ' [Citation.] As we said: 'The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal ....' " (Souza, supra, 9 Cal.4th at p. 233, italics added.)
It is clear from Souza, that the possibility the pills were over-the-counter, nonprescription medication the minor could possess did not dissipate the reasonable suspicion that justified Rocha reaching into his coin pocket to seize them. To the contrary, as noted above, Rocha's discovery of the pills and the minor's patently false assertion that he did not know what they were further strengthened the reasonable suspicion that justified the search. Accordingly, we conclude that the court erred when it granted the minor's motion to suppress.
DISPOSITION
The juvenile court's order granting the motion to suppress is reversed.
On June 7, 2019, respondent filed a motion to strike a portion of appellant's reply brief in which appellant allegedly relied on evidence outside the appellate record that consisted of rules on the school's website that relate to medications and prescription drugs. Our decision to reverse the trial court's ruling on respondent's suppression motion did not consider these rules. (Kendall v. Barker (1988) 197 Cal.App.3d 619, 625 [Statements of alleged fact in the briefs on appeal which are not contained in the record and were never called to the attention of the trial court will be disregarded by appellate court.].) Appellant's motion to strike is denied. --------