In re Freddy A.

Filed 4/18/07 In re Freddy A. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County,

Charles R. Scarlett, Judge. (Retired judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

Freddy A. appeals from an order declaring him a ward of the juvenile court for unlawfully possessing a knife on school grounds. He contends the evidence against him should have been suppressed because it was discovered through an unlawful search. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

During a search of students randomly selected from classrooms at John C. Fremont High School, Foster Allen, the dean of students, removed a four-inch locking-blade knife from Freddy A. The district attorney filed a petition pursuant to Welfare and Institutions Code section 602 alleging Freddy A., then 14 years old, had unlawfully possessed a weapon on school grounds in violation of Penal Code section 626.10, subdivision (a). Following the denial of his motion to suppress evidence under Welfare and Institutions Code section 700.1, Freddy A. admitted the allegations in the petition. The juvenile court sustained the petition, found Freddy A. a person described by section 602 by reason of the commission of the offense, determined the offense a felony and, without declaring Freddy A. a ward of the court, placed him on probation for six months pursuant to Welfare and Institutions Code section 725, subdivision (a). Freddy A. filed a timely notice of appeal. (See In re Do Kyung K. (2001) 88 Cal.App.4th 583, 590 [juvenile may appeal order placing him on probation without wardship pursuant to Welf. & Inst. Code, 725, subd. (a)].)

CONTENTION

Freddy A. contends the search that uncovered the knife violated his rights under the Fourth Amendment to the United States Constitution^[1]because it was conducted without individualized suspicion he possessed a weapon, had engaged in other criminal activity or had broken a school rule.

DISCUSSION

1. Administrative and Regulatory Searches

Ordinarily a search or seizure in the absence of individualized suspicion of criminal activity is unreasonable and violates the Fourth Amendment. (City of Indianapolis v.Edmond(2000) 531 U.S. 32, 37 [121 S.Ct. 447, 148 L.Ed.2d 333] (Edmond); In reRandy G. (2001) 26 Cal.4th 556, 565 (Randy G.).) Nonetheless, individualized suspicion is not an irreducible component of the Fourth Amendments requirement of reasonableness. (Edmond, at p. 37; People v. Banks (1993) 6 Cal.4th 926, 934 (Banks).) [A] showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable. [Citation.] In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. (Skinner v. Railway Labor Executives Assn. (1989) 489 U.S. 602, 624 [109 S.Ct. 1402, 103 L.Ed.2d 639].)

Both the United States and California Supreme Courts have permitted appropriately limited searches without particularized suspicion of misconduct when conducted pursuant to a program designed to serve important governmental purposes other than general law enforcement or the investigation or interdiction of criminal conduct. In Skinner v. Railway Labor Executives Assn., supra, 489 U.S. at pages 620-621, the United States Supreme Court upheld drug and alcohol testing of railway employees who were involved in train accidents or who had violated particular safety rules, emphasizing that the Federal Railroad Administration had adopted regulations that prescribed toxicological tests, not to assist in the prosecution of employees, but rather to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.

In the same term the Supreme Court upheld as reasonable under the Fourth Amendment the suspicionless drug testing of Customs Service employees who sought transfer or promotion to new positions that required carrying a firearm or directly involved efforts to prevent importation of illegal drugs: [W]here a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individuals privacy expectations against the Governments interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context. [Citation.] (Treasury Employees v. Von Raab (1989) 489 U.S. 656, 665-666 [109 S.Ct. 1384, 103 L.Ed.2d 685]; see Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1338 [reasonableness of a special needs or administrative search or seizure requires balancing the gravity of the governmental interest or public concern served and the degree to which the regulatory plan advances that concern against the intrusiveness of the interference with the individuals liberty and privacy interests]; Banks, supra, 6 Cal.4th at p. 936 [[t]he federal test for determining whether a detention or seizure is justified balances the public interest served by the seizure, the degree to which the seizure advances the public interest and the severity of the interference with individual liberty. [Citation.] In addition, federal constitutional principles require a showing of either the officers reasonable suspicion that a crime has occurred or is occurring or, as an alternative, that the seizure is carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. [Citations.]].)

Utilizing this balancing approach to suspicionless searches, the United States Supreme Court has upheld warrantless inspections of the physical premises of closely regulated businesses (New York v. Burger (1987) 482 U.S. 691, 702-704 [107 S.Ct. 2636, 96 L.Ed.2d 601]; administrative inspections of fire-damaged property to determine the cause of the fire (Michigan v. Tyler (1978) 436 U.S. 499, 507-509, 511-512 [98 S.Ct. 1942, 56 L.Ed.2d 486]); inspections to ensure compliance with municipal housing codes (Camara v. Municipal Court (1967) 387 U.S. 523, 534-539 [87 S.Ct. 1727, 18 L.Ed.2d 930]), as well as sobriety checkpoints designed to remove drunk drivers from the road (Michigan Dept. of State Police v. Sitz (1990) 496 U.S. 444 [110 S.Ct. 2481, 110 L.Ed.2d 412]), and fixed Border Patrol checkpoints intended to intercept individuals attempting to enter the United States unlawfully (United States v. Martinez-Fuerte (1976) 428 U.S. 543 [96 S.Ct. 3074, 49 L.Ed.2d 1116]). The California Supreme Court has likewise upheld the operation of highway sobriety checkpoints (Banks, supra, 6 Cal.4th at p. 936; Ingersoll v. Palmer, supra, 43 Cal.3d at pp. 1325-1327), and airport security screening searches (People v. Hyde (1974) 12 Cal.3d 158, 165-166).

2. Special Needs Searches at Public Schools

The Fourth Amendment applies to searches of students attending public schools. (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 656 [115 S.Ct. 2386, 132 L.Ed.2d 564] (Vernonia); Board of Ed. of Independent School Dist. No. 92 ofPottawatomie Cty. v. Earls (2002) 536 U.S. 822, 829-830 [122 S.Ct. 2559, 153 L.Ed.2d 735] (Earls); Randy G., supra, 26 Cal.4th at p. 561.) The United States Supreme Court, however, has repeatedly held that special needs inhere in the public school context. (Earls, at p. 829.) [T]he accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators 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 that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all circumstances, of the search. (New Jersey v. T.L.O. (1985) 469 U.S. 325, 341 [105 S.Ct. 733, 83 L.Ed.2d 720] (T. L.O.).) Fourth Amendment rights . . . are different in public schools than elsewhere; the reasonableness inquiry cannot disregard the schools custodial and tutelary responsibilities for children. (Vernonia, at p. 656 [upholding random drug testing of student athletes]; accord, Earls, at pp. 830-831 [upholding random drug testing of all students participating in extracurricular activities; securing order in the school environment sometimes requires that students be subjected to greater controls than those appropriate for adults].)

Public schools enjoy a unique place in California law. All public school students and staff have a constitutional right to a safe school: All students and staff of public primary, elementary, junior high and senior high schools have the inalienable right to attend campuses which are safe, secure and peaceful. (Cal. Const, art. I, 28, subd. (c).) Consistent with this right the Legislature has required each school board to establish rules and regulations to govern student conduct and discipline (Ed. Code, 35291) and has permitted each local district to establish a security department to enforce those rules (Ed. Code, 38000). (See Randy G., supra, 26 Cal.4th at pp. 562-563.)

Against this backdrop, in order to protect school grounds from expanding violence or to prevent an increase in drug use among students, warrantless searches or detentions of students have been upheld under the general principles applicable to administrative or regulatory searches, provided appropriate safeguards are available to assure that the individuals reasonable expectation of privacy is not subject to the discretion of the official in the field. (T.L.O., supra, 469 U.S. at p. 342, fn. 8; Vernonia, supra, 515 U.S. at p. 653.) The governmental interest at stake is of the highest order. [E]ducation is perhaps the most important function of state and local governments. [Citation.] Some modicum of discipline and order is essential if the educational function is to be performed. [Citation.] (Randy G., supra, 26 Cal.4th at p. 566 [detention of students on school grounds by campus security guards or other school staff without reasonable suspicion of criminal activity or violation of a school rule is constitutional provided officials do not act in an arbitrary, capricious, or harassing manner]; see also In reLatasha W. (1998) 60 Cal.App.4th 1524, 1527 (Latasha W.) [random metal- detector searches of sample of high school students are constitutional].)

3. The Juvenile Court Properly Denied the Motion to Suppress

Allen, the dean of students who discovered the four-inch folding-blade knife on Freddy A.s person, was the only witness at the suppression hearing. Allen testified the search on March 23, 2006, as well as prior random searches of Fremont High students, were conducted at the direction of the Los Angeles Unified School District office and the district superintendent as part of the official response to a student riot on campus two days earlier.^[2]Allen also testified the school had received a tip that someone may have had a knife on campus, although he acknowledged such reports were not uncommon.

To conductthe searches,five two-member teams of school officials were each randomly assigned ten classrooms by the administrator in charge of student discipline. The teams visited each classroom and randomly selected ten students to be searched from among those whose last names began with the letters A through J. Freddy A. was one of the students randomly chosen to be searched.

Neither Fremont High Schools post-riot program of random searches nor the specific search of Freddy A. pursuant to that program was unlawful because the searches were conducted without individualized suspicion the specific students involved had engaged in criminal conduct or broken school rules.^[3] The purpose of the search was undoubtedly to ensure student and staff safety in the wake of the recent student riot, which heightened the seriousness of the otherwise routine tip that a student might possess a knife on campus. The governments interest in school safety and a violence-free learning environment is of the highest order: [M]inor students are required to be in school. [Citation.] While they are there, the primary duty of school officials and teachers . . . is the education and training of young people. A State has a compelling interest in assuring that the schools meet this responsibility. Without first establishing discipline and maintaining order, teachers cannot begin to educate their students. And apart from education, the school has the obligation to protect pupils from mistreatment by other children, and also to protect teachers themselves from violence by the few students whose conduct in recent years has prompted national concern. [Citations.] (Randy G., supra, 26 Cal.4th at pp. 562-563, 566.) As we held in Latasha W., supra, 60 Cal.App.4th at page 1527, The need of schools to keep weapons off campus is substantial. Guns and knives pose a threat of death or serious injury to students and staff. (See also Earls, supra, 536 U.S. at pp. 830-831 [a students privacy interest is limited in a public school environment where the State is responsible for maintaining discipline, health and safety].)^[4]

In addition to arguing Allen lacked reasonable grounds to search him, for the first time on appeal Freddy A. challenges the search on the ground the intrusion into his constitutionally protected privacy interest was more than minimal. Freddy A. is correct that in evaluating the reasonableness of a school search we normally balance the compelling nature of the governmental interest in student safety against the extent of the imposition on the targeted students privacy and personal security. (T.L.O., supra, 469 U.S. at p. 342 [court examines whether search of student was 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]; see Latasha W., supra, 60 Cal.App.4th at p. 1527 [the searches in the present case were minimally intrusive. Only a random sample of students was tested. Students were not touched during the search, and were required to open pockets or jackets only if they triggered the metal detector].) However, by failing to raise this point in the trial court, Freddy A. has forfeited the issue for appeal: [W]hen defendants move to suppress evidence under [Penal Code] section 1538.5, they must inform the prosecution and the court of the specific basis for their motion. (People v. Williams (1999) 20 Cal.4th 119, 129; see id. at pp. 130 [once the prosecution has offered a justification for a warrantless search or seizure, defendants must present any arguments as to why that justification is inadequate], 135 [defendants must specify the precise grounds for a motion to suppress, including pointing out any inadequacies in the prosecutions justifications for a warrantless search or seizure].)

Because Freddy A. did not contest the manner in which the search was conducted, as opposed to the basis upon which he was selected to be searched,^[5]neither the People nor Freddy A. introduced any evidence at the suppression hearing concerning the conduct of the search, including where or how the knife was actually found.^[6] The determinative inquiry in all cases is whether the party opposing the motion had fair notice of the moving partys argument and fair opportunity to present responsive evidence. (People v. Williams, supra, 20 Cal.4th at p. 135.) Because Freddy A. failed to assert the nature of the intrusion into his constitutionally protected privacy interest as a ground for suppressing the knife in the trial court, he is precluded from raising it on appeal. (Id.at pp. 129-131, 135-136.)

Freddy A. also suggests the search was not a proper administrative search because, unlike the searches in Latasha W., supra, 60 Cal.App.4th 1524, there was no notice to parents and students that random administrative searches would be conducted at Fremont High School. Advance publicity is not an essential element of a constitutionally permissible program of warrantless administrative searches. (E.g., Banks, supra, 6 Cal.4th at pp. 948-949.) Moreover, although the record fails to contain detailed information concerning the extent to which students and parents were given advance notice of the instant searches or of the schools search policy, if any, the fact the disputed searches were ordered by school district administrators in response to the student riot two days earlier makes it highly likely Fremont High School students were fully aware they would be subject to such searches.

In sum, the juvenile court properly denied Freddy A.s suppression motion. DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J.

ZELON, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

^[1] Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art. I, 28; In re Randy G. (2001) 26 Cal.4th 556, 561-562; In re Lance W. (1985) 37 Cal.3d 873, 885-890; see People v. Brendlin (2006) 38 Cal.4th 1107, 1113.)

^[2] A number of students, not including Freddy A., had been detained in connection with the riot.

^[3]When reviewing the juvenile courts ruling on a motion to suppress, as in adult criminal cases, we defer to the courts factual findings, express or implied, if they are supported by substantial evidence. (People v. Brendlin, supra, 38 Cal.4th at p. 1113.) We exercise independent judgment to determine whether, on the facts found by the court, the search or seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362; see In re Brian A. (1985) 173 Cal.App.3d 1168, 1173.)

^[4] Freddy A. did not submit any evidence contradicting Allens testimony that the rooms and students to be searched were selected at random. That random selection eliminates any concern the search of Freddy A. was improperly predicated on mere curiosity, rumor, or hunch. (In re William G. (1985) 40 Cal.3d 550, 564.)

^[5] In arguing the motion defense counsel repeatedly stated the search was unlawful in the absence of reasonable suspicion. Specifically, she urged, Your honor, in order for school officials to conduct a search there must be a reasonable suspicion that a student is engaging or has engage din some sore to illegal activity. In this case, Mr. Allen testified that he received no complaints or tips regarding this minor in particular; that he was not involved at all in the incident ‑‑ in the riot in the quad area that lead to this search, so it is our position that this is an illegal search and that the knife obtained should be suppressed. Submitted.

^[6] In his written suppression motion Freddy A. indicated he was searched in the classroom by Allen, who recovered a weapon from his right pants pocket. At the hearing Allen testified he conducted a search on Freddy A. and recovered from him a four-inch locking blade knife. Even assuming Freddy A. carried the knife inside his pocket, the record fails to disclose whether he volunteered he had the knife, whether it was discovered after he was asked to empty his pockets or whether Allen actually reached inside Freddy A.s pants in conducting the search.