In re I.G.

Filed 6/28/06 In re I.G. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Ronald L. Johnson, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed.

On March 28, 2005, the San Diego County District Attorney filed a wardship petition under Welfare and Institutions Code section 602 alleging I. G., a minor, unlawfully possessed a controlled substance, cocaine (Health & Saf. Code, § 11350, subd. (a)). I. denied the allegation.

On June 14, 2005, the court denied I.'s motion to suppress evidence. He then admitted the allegation. The court declared I. a ward of the court and placed him on probation.

I. appeals the denial of his motion to suppress evidence under Welfare and Institutions Code section 700.1. He contends: (1) the search was not justified at its inception because there was no reasonable suspicion of wrongdoing, and (2) the scope of the search was impermissible. We reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND^[1]

San Diego County Sheriff's Officer Matt Blumenthal is a school resource officer at a high school in San Marcos. On February 2, 2005, around 3:00 pm, Officer Blumenthal received a call from a campus supervisor reporting a fight taking place at a bus stop 25 yards from campus. By the time Blumenthal arrived on the scene, everyone was gone. The campus supervisor told Blumenthal she recognized several students involved in the fight and would give him a statement the following day.

Later that afternoon, Blumenthal received a telephone call from the principal of the high school, who stated a victim of the fight was in his office. The principal asked him to return to campus, but Blumenthal advised the principal to seek medical attention for the student's injuries.

On the morning of February 3, 2005, Blumenthal received a statement from the campus supervisor identifying students she recognized at the fight. Blumenthal then interviewed Saul Vega, one of the victims of the fight, and other witnesses identified in the statement. The officer searched each witness before interviewing him although he obtained consent to search from witnesses interviewed off-campus.

Blumenthal learned the fight began with an argument in the student parking lot shortly after school ended and involved individuals associated with rival gangs. No weapons were brandished or used during the fight, which Blumenthal characterized as a "fist fight." The only person in possession of a weapon during the fight was the victim. I. was present at the fight, but did not participate; he only "stood around doing nothing." Blumenthal stated I. "stood by as backup" for others. He testified that, in his experience, gang members or individuals associated with gangs often bring weapons to campus the day after a fight.

Blumenthal previously observed I. eating lunch on campus with a group of students who refer to themselves as "S.D." Earlier in the school year, he spoke to I. about gang taggings found on a paper in I.'s possession. He was not aware if I. was a documented member of the gang.

Around 2:00 pm on February 3, 2005, Blumenthal asked I. to be escorted to his office. When I. arrived, Blumenthal searched his backpack for "officer safety reasons." Inside the backpack, he found pictures of I. with the letters "S" and "D" shaved into the back of his head and pictures of I. holding a real or replica firearm. He also found stink bombs, sharpie markers, and a page of gang graffiti. Blumenthal then searched I.'s person and found a small bindle of cocaine in his front left pocket. Apparently he intended to search I.'s person regardless of the content of the backpack. The record does not reflect whether Blumenthal conducted a pat-down search of I. or simply reached into his pockets. No weapons were found in either the backpack or on I.'s person.

I. moved to suppress evidence of the cocaine. The court denied the motion, finding the search to be reasonable because the officer had a reasonable belief he needed to search I. for his own safety.

DISCUSSION

I. contends the court erred by denying his Welfare and Institutions Code section 700.1 motion to suppress evidence of cocaine found in his pocket. Evidence should be excluded from criminal proceedings when: (1) it was seized in violation of the Fourth Amendment, and (2) the exclusionary rule is the appropriate remedy for the violation. (In re William G. (1985) 40 Cal.3d 550, 567, fn. 17.)

When reviewing a ruling on a motion to suppress evidence, we defer to the trial court's factual findings when supported by substantial evidence. (People v. Camacho (2000) 23 Cal.4th 824, 830.) We then exercise our independent judgment to determine whether, on the facts found by the court, the search was reasonable. (Ibid.)

I

I. contends Blumenthal's search was unconstitutional under the Fourth Amendment. "Public school officials are government agents within the purview of the Fourth Amendment." (In re Lisa G. (2004) 125 Cal.App.4th 801, 805.) Police officers on assignment to schools as school resource officers are school officials for purposes of Fourth Amendment analysis. (In re William V. (2003) 111 Cal.App.4th 1464, 1470-1471.) Therefore, their conduct is subject to the constitutional right of students to be free from unreasonable searches and seizures. (In re Lisa G., at p. 805.)

The legality of a search of a student depends on the reasonableness of the search, under all the circumstances. (New Jersey v. T.L.O. (1985) 469 U.S. 325, 341.) In evaluating the reasonableness of a search in a school setting, the school officials' need to maintain order is balanced against students' legitimate expectations of privacy. (Id. at pp. 341-342.) The reasonableness of a search is determined by a two-fold inquiry: (1) whether the search was justified at its inception, and (2) whether the scope of the search was reasonably related to the circumstances justifying the initial search. (Id. at p. 341.)

Initial Justification for Search

I. contends Blumenthal's search was not justified at its inception. A search is justified at its inception when there are reasonable grounds for suspecting the search will produce evidence the student is engaged in wrongdoing. (New Jersey v. T.L.O., supra, 469 U.S. at pp. 341-342.) Reasonable suspicion for a search must be supported by articulable facts. (In re William G., supra, 40 Cal.3d at p. 564.) "Respect for privacy is the rule - a search is the exception." (Ibid.)

Here, no articulable facts gave rise to a reasonable suspicion justifying a search. The People contend Blumenthal had prior knowledge of I.'s involvement in the fight on February 2. However, the officer's prior knowledge did not include information suggesting I. had engaged in any proscribed activity. (See In re Lisa G., supra, 125 Cal.App.4th at p. 807.) I. was a witness to the fight, not a participant. No weapons were brandished at the fight, and no evidence suggested I. was armed the next day at school. Blumenthal had never previously found I. in possession of a weapon, and no allegations suggested he might have been armed at the time of the search. The record reflects Blumenthal's complete lack of prior knowledge or information relating I. to the possession or use of a weapon. (See In re William G., supra, 40 Cal.3d at p. 566.) Thus, I. never engaged in any wrongful behavior correlated with the intended findings of the search. (See In re Lisa G., at p. 807 ["[a]correlation between the wrongful behavior of the student and the intended findings of the search is essential for a valid search of the student under the Fourth Amendment."].)

The People also contend Blumenthal's search was justified in its inception because of legitimate concerns for officer safety. Although "[o]fficer safety is a legitimate and important governmental interest to consider in Fourth Amendment analysis," (People v. Hart (1999) 74 Cal.App.4th 479, 490), the officer articulated no reason to suspect his safety was endangered. Concern for officer safety is only reasonable when based on specific and articulable facts, not an " 'inchoate or unparticularized suspicion or "hunch" that he is dealing with an armed and dangerous individual.' " (People v. Celis (2004) 33 Cal.4th 667, 677.) Here, Blumenthal had no specific or articulable facts to support a reasonable concern for his safety. Thus, we conclude the search was unreasonable at its inception.

Scope of the Search

I. also contends the scope of Blumenthal's search was unreasonable. A search is permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in the context of the age and sex of the student. (In re William G., supra, 40 Cal.3d at p. 564.) Here, even had the initial search of I.'s backpack been justified, Blumenthal's search of I.'s pockets was impermissible because it was not reasonably related to the objective of the search, the discovery of weapons.

An officer may conduct a pat-down search when a reasonably prudent person in the circumstances would believe his or her safety was in danger. (Terry v. Ohio (1968) 392 U.S. 1, 27.) However, the search "must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." (Id. at p. 26.) Blumenthal did not limit his search to that which was necessary to discover weapons and ensure his safety. If, as alleged, the officer immediately searched I.'s pockets without performing a pat-down search, his actions exceeded the measures necessary to ensure his safety.

Even if Blumenthal initially performed a pat-down search, the search became impermissible when he reached into I.'s pocket. (See People v. Dickey (1994) 21 Cal.App.4th 952, 957.) Feeling a soft object in a suspect's pocket during a pat-down does not warrant reaching into the pocket absent unusual circumstances. (People v. Collins (1970) 1 Cal.3d 658, 662.) A small bindle of cocaine could not have been mistaken for a weapon. Thus, once Blumenthal conducted a pat-down search and established the absence of a weapon, further search of I.'s pockets unlawfully exceeded the officer safety objective of the search.

II

The second question in determining whether evidence should be excluded from a criminal proceeding is whether the exclusionary rule is the appropriate remedy for the unlawful seizure of evidence. (In re Lisa G., supra, 125 Cal.App.4th at p. 808.) The exclusionary rule is an appropriate remedy in violations of the Fourth Amendment where evidence is sought to be admitted in juvenile or criminal proceedings. (In re William G., supra, 40 Cal.3d at p. 567, fn. 17.) The bindle of cocaine was seized in violation of I.'s Fourth Amendment rights, and the trial court erred in denying his motion to suppress the evidence. There is no other evidence to support I.'s conviction of unlawful possession of a controlled substance.

DISPOSITION

The judgment is reversed.

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

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^[1] Facts are taken from the hearing on the motion to suppress evidence.