Opinion
No. 58388-3-I.
October 1, 2007.
Appeal from a judgment of the Superior Court for Whatcom County, No. 05-8-00200-8, Martha V. Gross, J. Pro Tem., entered June 20, 2006.
Affirmed in part and remanded by unpublished per curiam opinion.
C.Z.-J. appeals his juvenile adjudication and disposition for possession with intent to deliver and possession of drug paraphernalia, contending that his constitutional rights were violated when school officials brought him to the school office to be searched after observing suspicious conversation and behavior. Because school officials had reasonable grounds to believe that a search would reveal evidence that C.Z.-J. was violating the law or school rules, we affirm.
FACTS
Timber Ridge Center is a private alternative school consisting of eight buildings in a secluded wooded area of rural Whatcom County. Because the student population includes children with serious behavior problems, the school has a higher supervision level than a typical school and the staff is specially trained to keep students in sight at all times and to listen for any conversations concerning potentially illegal behavior.
On April 21, 2005, school administrator Jason Tetlow observed C.Z.-J. with another student and overheard one of them say, "[L]et's take a walk." Tetlow noticed that C.Z.-J. appeared surprised when he realized that Tetlow had heard the comment. Tetlow asked instructional assistant Martin Harvey to continue observing C.Z.-J. and the other student. Harvey then heard one of them say, "[T]here's too many people around here."
Tetlow reported these incidents to Principal Robert Hascall. In light of the fact that C.Z.-J. had been found in possession of marijuana at school three weeks earlier, Hascall agreed with Tetlow's concern that the students' comments and C.Z.-J.'s reaction seemed very suspicious. Also, two to four days earlier, another student told Hascall that he had seen C.Z.-J. in possession of a bag of marijuana. Because the student was with his grandmother when he made his report, Hascall had taken it as "potentially correct information."
Tetlow brought C.Z.-J. and the other student to the office to be searched. Although he initially refused to cooperate, C.Z.-J. eventually removed from his pockets two bags of marijuana, three pipes, three lighters and some rolling papers attached to a dispenser.
The State charged C.Z.-J. with one count of possession of drug paraphernalia, one count of possession of marijuana, and one count of possession of marijuana with intent to deliver. C.Z.-J. moved to suppress the evidence, alleging that the search violated his constitutional rights. A commissioner denied the motion and at a later adjudication and disposition hearing found C.Z.-J. guilty of possession of drug paraphernalia and possession of marijuana with intent to deliver.
C.Z.-J. moved for revision, arguing that the school officials did not have reasonable grounds to conduct a search. The superior court disagreed, stating:
[T]he standard for school searches has to do with reasonable suspicion, and my understanding of the circumstances in this case is that the . . . school official, the principal, had known to him the following things at the time that he undertook the search: That at approximately two weeks prior to this incident, this young man had been found in possession of marijuana at the school; that sometime between that incident and the time of this incident, a report had been generated to the principal that this young man had been in possession of marijuana, and that came through another student who is someone with reasonable inference would have had contact with [C.Z.-J.] at school, and through that person's grandmother, which I think adds a little bit of credibility to it in the sense that a child willing to come in with another authority figure and give that information to a second authority figure tends to make it a little more likely, I think, than it would if it was coming secondhand through the child's grandmother without the child being present, and children are often reluctant to give such information in the presence of a parent or somebody else, because it makes them look like they know about something that they shouldn't have been doing. They have that report and another report of possession, and they have the circumstances with this young man being present with another young man on school property, who says, "Let's go for a walk," which in and of itself is pretty innocent, I think, under the circumstances. However, one has to, I think, understand that in school circumstances, teachers work with children all the time, and they're attuned to cues that they see, I believe, and this teacher said, "The way he said it, and the way that he looked at me and realized that I had understood what he said made me very suspicious," and that's something that I think that a teacher could be expected to understand, "Whoops, I didn't expect that guy to be there to hear that," and that followed up by the statement, "There's too many people here," indicates some level of secrecy on the part of this young man of wanting to get away from where the authorities were and not wanting to have somebody else around also would add to that, I think.
Those things combined, I believe, when you look at the totality of the circumstances is not that much unlike Slattery and Brooks, where in those cases there were reports of this person being with drugs, reports of a person being involved with drugs and some interactions with the teacher and the student, but in this case, we actually have him there with the marijuana earlier in school, and we also have another report subsequent to that, between that time and the time of the incident. All of this combined, I think, does give the school officials the reasonable suspicion that they need to ask him to come and be searched.
So I will find that the search, itself, was appropriate under the standard of school searches, and that the facts and the information supporting the decision made by the school officials was sufficient.
C.Z.-J. appeals the superior court's ruling concluding that the search was reasonable and denying revision of the commissioner's order.
ANALYSIS
A school official may lawfully search a student if, under all the circumstances, the search was reasonable. A reasonable search is justified at its inception and reasonably related in scope to the circumstances justifying it. In determining reasonableness, Washington courts consider the student's age, history, and school record, the prevalence and seriousness of the problem in the school, and the probative value and reliability of the information justifying the search as well as the exigency requiring an immediate search.
New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985); State v. B.A.S., 103 Wn. App. 549, 553, 13 P.3d 244 (2000).
B.A.S., 103 Wn. App. at 553.
State v. McKinnon, 88 Wn.2d 75, 81, 558 P.2d 781 (1977); State v. Brooks, 43 Wn. App. 560, 567-68, 718 P.2d 837 (1986).
C.Z.-J. contends that the search was not reasonable because the incident of possession three weeks earlier was too stale to support a reasonable suspicion of current possession. He cites cases involving investigative detentions by police under Terry v. Ohio, as instructive. But a student's history is a specific factor that may establish reasonable grounds to support a school official's search of a student.
392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
McKinnon, 88 Wn.2d at 81; Brooks, 43 Wn. App. at 567-68 (vice-principal's three prior confrontations with student regarding drug use contributed to reasonable grounds for search based on tip from another student).
C.Z.-J. next argues that the student's report two days prior to the incident did not contain sufficient detail about the time frame of his observation or the amount of marijuana involved to provide reasonable grounds for the search. But nothing in the record indicates that Hascall took any action based solely on the other student's report two to four days earlier. Instead, Hascall's knowledge of the "potentially correct" report contributed to his evaluation of C.Z.-J.'s behavior around Tetlow as very suspicious.
Relying on State v. B.A.S., C.Z.-J. also contends that the comments overheard and behavior observed by Tetlow and Harvey were too innocuous to support a reasonable suspicion that he was involved in criminal activity. In B.A.S., a school official ordered a student to empty his pockets because he believed he had violated the school's closed campus rule. Because there was no nexus between the item sought in the search and the infraction under investigation, and nothing about the student's age, history or school record justified the search, this court held that the search was not reasonable. But here, given their knowledge of C.Z.-J.'s prior marijuana possession on school grounds, school officials reasonably suspected that C.Z.-J.'s behavior on April 21 indicated a new incident of drug possession and believed that a search would turn up evidence he again possessed drugs at school.
103 Wn. App. 549, 13 P.3d 244 (2000).
B.A.S., 103 Wn. App at 551.
B.A.S., 103 Wn. App. at 554-56.
C.Z.-J. next contends that the superior court erred by relying on State v. Brooks, and State v. Slattery. In Brooks, school officials received a tip from a student that Brooks was selling marijuana out of a blue metal box in a locker. In light of prior teachers' reports and her own observations of Brooks's apparent drug use and activities at a suspected drug trafficking site, school officials reasonably believed that a search would turn up evidence that Brooks had violated or was violating the law or school rules. In Slatterly, a student told a school official that Slatterly was selling marijuana in the parking lot. Because the school official believed the informant to be reliable based on past experience and had received other reports Slattery was involved with drugs, and because drug use was a serious problem at the school, the search of Slattery's person, locker, car, and locked briefcase was reasonable.
43 Wn. App. 560, 718 P.2d 837 (1986).
56 Wn. App. 820, 787 P.2d 932 (1990).
Brooks, 43 Wn. App. at 564.
Brooks, 43 Wn. App. at 565.
Slatterly, 56 Wn. App. at 821-22.
Slatterly, 56 Wn. App. at 825-26.
C.Z.-J. contends that Brooks and Slatterly are distinguishable because 1) no reliable informant reported present criminal activity; 2) no evidence indicated Hascall considered the reporting student was reliable based on past experience; 3) no evidence indicated that drug use was a serious problem at Timber Ridge; and 4) no evidence indicated that C.Z.-J. was under the influence of drugs at school or frequented drug-trafficking sites. But these factual distinctions do not require a different result. As the superior court concluded, under all the circumstances here, including C.Z.-J's prior possession, the principal's knowledge of the student report two to four days earlier, and the school officials' observations of C.Z.-J's conversation and behavior, the school officials had reasonable grounds for suspecting that a search of C.Z-J. would turn up evidence that he was violating the law or school rules.
Finally, C.Z.-J asks this court to reverse and dismiss his conviction based on the lack of written findings of fact and conclusions of law to support the various decisions in this case by the commissioner and the superior court as required by CrR 3.6 and JuCR 7.11. "Lack of written findings of fact on a material issue in which the State bears the burden simply cannot be harmless unless the oral opinion is so clear and comprehensive that written findings would be a mere formality." Other than stating generally that oral rulings are not binding and reciting the purpose of written findings and conclusions, C.Z.-J. does not claim that the oral opinion here is insufficient. And he fails to argue or demonstrate that he has suffered any prejudice from the absence of findings and conclusions.
State v. Smith, 68 Wn. App. 201, 208, 842 P.2d 494 (1992) (footnotes omitted).
See State v. Head, 136 Wn.2d 619, 624-25, 964 P.2d 1187 (1998); State v. Royal, 122 Wn.2d 413, 423, 858 P.2d 259 (1993).
Because the rules so require, we remand for entry of findings and conclusions. Affirmed and remanded for entry of findings and conclusions.