In re Deshawn E.

Filed 7/25/07 In re Deshawn E. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Deshawn E. contends the trial court erred in denying his motion to suppress evidence discovered during a pat down search by a uniformed police officer upon his entry as a spectator to a high school football game. The officer, searching for bottles of alcohol, found marijuana cigarettes in one of the front pockets of defendants pants. Because no evidence justified the pat search of defendants pants for bottles, we hold that the prosecution failed to meet its burden of showing the reasonableness of the search, and we reverse the juvenile court order.

Procedural Background

An October 2005 petition under Welfare and Institutions Code section 602 alleged that defendant, born in May 1990, possessed marijuana on school grounds in violation of Health and Safety Code section 11357, subdivision (e). The juvenile court denied defendants motion to suppress the marijuana evidence underlying the petition. Defendant admitted the Health and Safety Code violation alleged in the petition, and the juvenile court fined him $100 and delayed issuance of his drivers license for one year.

Factual Background

On the evening of September 17, 2005, San Rafael Police Corporal Harry Barbier was working in full uniform at the football field of San Rafael High School, searching arriving spectators to the varsity football game. Stationed inside the gate leading to the field, Barbier saw defendant approaching him. Barbier had seen defendant earlier that day, when defendant had participated in a junior varsity football game.

Barbier asked defendant if he had any bottles, and defendant replied that he did not. Barbier told defendant that he wanted to check, and he performed a pat search. As Barbier searched for bottles he felt what he believed to be cigarettes in the right front pocket of defendants pants. Because defendant was too young to possess cigarettes, Barbier removed the item and discovered four marijuana cigarettes sealed in a plastic bag. Barbier testified that its a possibility that he could have seen a 12-ounce bottle of beer or small container without touching defendant.

Barbier conducted the search pursuant to an unwritten policy which he developed in cooperation with school officials. He explained that the San Rafael High School football field serves as the playing field for about 15 night games each season. The field can accommodate about 4,500 attendees; a typical game might have 2,000 to 2,500 attendees.

In the past, there had been fights, drunkenness, and gang issues at football games, but there have been fewer problems since the implementation of the search policy in 2001. Before the implementation of the policy, four to five police officers were needed to provide security at the games, currently only two officers are used. Pursuant to the search policy, before the varsity game Barbier posted an 8 1/2-inch by 11-inch sign at the gate stating Persons entering subject to search. The sign was not posted during junior varsity games because the search policy only applied to varsity games.

Barbier did not search every person who passed through the gate. Barbier explained that, Normally what we do is we will check people up to about maybe mid‑20s and that is based on my experience of those people who commit alcohol violations are in that age range; however, if I get an adult that comes in and something catches my eye I will check them. And we do check coolers. Females were not pat searched, but their coat pockets and purses were checked.

Defendant testified that he and two friends played in the junior varsity football game and left to put their belongings in a car. He testified that his friends re-entered without being searched and that he did not see the sign alerting him that he could be searched.

Discussion

Defendant contends that the juvenile court erred in denying his motion to suppress because Corporal Barbiers pat down search violated his Fourth Amendment right to be free from unreasonable searches.

The Fourth Amendment protects individuals against unreasonable government intrusions on their privacy. (People v. Jenkins (2000) 22 Cal.4th 900, 971.) As a general rule, warrantless searches are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions. (Katz v. United States (1967) 389 U.S. 347, 357; see also Jenkins, at p. 971.) The People maintain the warrantless search of defendant was a reasonable administrative search. An administrative or regulatory search is one conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of crime. [Citation.] Such searches are permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched. (Estes v. Rowland (1993) 14 Cal.App.4th 508, 522.)

Although an administrative search may be conducted in the absence of a warrant or particularized suspicion (United States v. Bulacan (9th Cir. 1998) 156 F.3d 963, 967), the search still must meet the Fourth Amendments standard of reasonableness. (Estes v. Rowland, supra, 14 Cal.App.4th at pp. 523-524.) In assessing the reasonableness of an administrative search, courts balance the need to search against the invasion the search entails. (Id. at p. 523.) The search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it. (Id. at p. 524, citing Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1329; see also New Jersey v. T.L.O. (1985) 469 U.S. 325, 341.) Because the power to conduct administrative searches carries a vast potential for abuse, courts must take care to ensure that an administrative search is not subverted into a general search for evidence of crime. (Bulacan, at p. 967.) The prosecution bears the burden of establishing the reasonableness of the search. (People v. Jenkins, supra, 22 Cal.4th at p. 972; People v. Williams (1999) 20 Cal.4th 119, 127.) Because the relevant facts are undisputed, we exercise our independent judgment in determining whether, on the facts presented, the search was reasonable under the Fourth Amendment. (People v. Overten (1994) 28 Cal.App.4th 1497, 1504.)

The particular pat search of the defendants pants pockets went far beyond a search of backpacks or purses in that it was more intrusive and invasive. There was no testimony explaining how the pat search of defendants pants pockets served the asserted interest in preventing spectators from bringing alcohol into the game. Corporal Barbier testified that he selected whom to search based on whether they fit a profile of those likely to commit alcohol violations, that he asked the defendant whether he had any bottles, and that he searched defendant for bottles. Barbier admitted that he did not see any bottles on defendant, and there was no testimony that defendant was wearing baggy pants capable of concealing a bottle or another container, that Barbier observed the shape of a bottle in defendants pants pocket, or even that bottles of alcohol were commonly concealed in pant pockets. Further, Barbier did not attempt to justify the search with reference to any other contraband; there was no testimony that weapons or illegal drugs had caused problems in the past and that such items were another target of the search. (See City of Indianapolis v. Edmond (2000) 531 U.S. 32, 47 [the purpose of an administrative search is relevant in assessing its reasonableness].)

On appeal, the People do not point to any evidence justifying the degree of intrusion. Instead, the People rely on cases stating the proposition that The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative less intrusive means. (Colorado v. Bertine (1987) 479 U.S. 367, 374.) Those cases are distinguishable. They do not suggest that the degree of intrusion need not be justified. Rather, the cases reject arguments that drug testing and police inventory search policies are facially unconstitutional because alternate policies might accomplish the same goals with less intrusion on privacy. For example, in Board of Ed. of Independent School Dist. No. 92 of Pottawatomie City v. Earls (2002) 536 U.S. 822, 837, the Court upheld a policy requiring students participating in extracurricular activities to consent to drug testing. The Court rejected an argument that the policy was unconstitutional because testing based on individualized reasonable suspicion would be less intrusive. The Court pointed out that [t]he logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers. (Ibid.) In contrast, the issue before us is not whether there was a less intrusive means to prevent spectators from consuming alcohol at football games, but whether, accepting that the school district decided to adopt a search policy, the scope of the search was justified. (Estes v. Rowland, supra, 14 Cal.App.4th at pp. 523-524.)

In sum, there is no evidence that the pat-down search of defendants pant pockets was reasonably necessary to discover any bottles or other alcohol containers. In other words, the People failed to show that the search was as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it. (Estes v. Rowland, supra, 14 Cal.App.4th at p. 524.) Even if a search of bags, coolers, or large coat pockets might have been appropriate, nothing in the record justifies the further intrusion of a pat search of defendants pants. A pat search constitutes a severe, though brief, intrusion upon cherished personal security. (Terry v. Ohio (1968) 392 U.S. 1, 24-25; see also New Jersey v. T.L.O., supra, 469 U.S. at pp. 337-338.) Because the prosecution presented no evidence justifying the degree of intrusion, the government failed to meet its burden of showing the reasonableness of the search.[1]

The People contend that the search was consensual. However, even if defendant impliedly consented, the scope of the search would still need to satisfy the Fourth Amendment standard of reasonableness. (Estes v. Rowland, supra, 14 Cal.App.4th at pp. 523-524 & fn. 4.) Because the People failed to show that the search was reasonable, we need not separately address the issue of consent.

The trial court erred in denying the motion to suppress.

Disposition

The juvenile court order is reversed.

GEMELLO, J.

We concur.

SIMONS, Acting P.J.

NEEDHAM, J.

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[1] Because we conclude the search of defendant was unreasonable, we need not decide whether the search policy is unconstitutional on its face. For example, we need not consider whether as a general matter the asserted interest is sufficient to justify appropriately focused searches for bottles or whether Corporal Barbier was given too much discretion in deciding whom to search. (See, e.g., McMorris v. Alioto (1978) 567 F.2d 897, 899-900.)