In re Jose C.

Filed 9/28/06 In re Jose C. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Rudolph A. Diaz, Judge. Reversed.

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

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

________________________

SUMMARY

Appellant challenges the decision of the juvenile court sustaining a Welfare and Institutions Code section 602 petition against him on the ground his motion to suppress was improperly denied. We agree. The juvenile court struck the only evidence that established a reasonable suspicion appellant violated a school rule or the law, leaving the search without justification.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged with possessing a weapon on school grounds. He moved to suppress the knife found in his backpack by an assistant principal. The juvenile court denied the motion.

The juvenile court sustained the petition, declared appellant a ward of the court, and ordered him placed home on probation.

DISCUSSION

Appellant contends the trial court erred by denying his motion to suppress the knife and statements because the assistant principal did not have a reasonable suspicion appellant had violated or was violating a school rule or law.

A warrantless search is presumed to be illegal. (Mincey v. Arizona (1978) 437 U.S. 385, 390.) The prosecution always bears the burden of justifying the search by proving the search fell within a recognized exception to the warrant requirement. (People v. James (1977) 19 Cal.3d 99, 106.) Public school officials may search a student’s person or personal effects on school grounds only if they have a reasonable suspicion that the search will disclose evidence that the student has violated or is violating the law or a school rule. (New Jersey v. T.L.O. (1985) 469 U.S. 325, 341-342.) The search conducted by school officials must be reasonably related to the objective of the search and not excessively intrusive in light of the age and gender of the student and the nature of the infraction. (Id. at p. 342.)

In ruling upon a motion to suppress, the juvenile court judges the credibility of the witnesses, resolves any conflicts in the testimony, weighs the evidence, and draws factual inferences. We will uphold the court’s express and/or implied findings on those matters if they are supported by substantial evidence, but we independently review the application of the relevant law to the facts. (People v. Alvarez (1996) 14 Cal.4th 155, 182.)

In this case, Carlos Gutierrez, the campus supervisor at Luther Burbank Middle School, testified that a student approached him and told him appellant, who also attended the school, had a weapon in his possession. Gutierrez knew the name of the reporting student, but that student wanted to remain anonymous. Gutierrez passed the information on to Officer Escada, “the school officer.” During Gutierrez’s testimony, defense counsel objected on Harvey-Madden^[1] grounds when the prosecutor asked Gutierrez what the anonymous student told him. The court overruled the objection, saying, “Overruled. He could still, can say what he heard.”

Danny Lo, the assistant principal at the school, testified he encountered Gutierrez and Officer Escada. Escada provided him with some information regarding a student “possibly in possession of a weapon.” Lo did not know the source of that information. Gutierrez also provided him with some information, but did not say who gave it to him. Lo and the principal located appellant in P.E. class. Lo took appellant out of class and instructed him to retrieve his backpack from the locker room. Appellant did as instructed. Lo asked appellant to empty his backpack, and appellant complied. Among the contents of the backpack, Lo found a knife.

During the prosecutor’s direct examination of Lo, defense counsel objected, saying the “answer was based on testimony already stricken.” The court replied, “He says he acted on information that he received. It may not be true. He had information that he acted on. He can testify to that.”

During Lo’s cross-examination, defense counsel asked whether Gutierrez said he had seen appellant with a knife. The following exchange ensued:

Court: “I thought I sustained the -- your objection and struck his testimony.”

Defense counsel: “You allowed testimony concerning what he told Escada. The prosecutor asked questions concerning the information given to him by the officer.”

Court: “The officer is not Gutierrez. Escada.”

Defense counsel: “The one who testified first was Gutierrez.”

Court: “We struck his testimony on your motion.”

Defense counsel: “I understand that.”

Court: “Why are you cross-examining his testimony if it’s stricken?”

Defense counsel: “The person --”

Court: “He spoke to Escada.”

Defense counsel: “I apologize. I would like to strike the portions referring to Mr. Gutierrez.”

The minute order does not indicate that Gutierrez’s testimony was stricken, although the reporter’s transcript index does.

The juvenile court took the motion to suppress under submission and ruled upon it the next day. At that time, the court said, “I may have erred when I struck the testimony of Mr. Gutierrez. I will go ahead and allow the record to remain as such.” Later, the court stated, “In this instance, I likened the information the principal relied on to be an anonymous tip. I’m not going to consider it. I struck that testimony.”

Although the record contains contradictory statements and indications regarding Gutierrez’s testimony, two points remain clear: the juvenile court believed it had stricken his testimony and did not consider his testimony in reaching its decision on the motion. In addition, the Attorney General does not argue that striking the testimony was error. Accordingly, we necessarily conclude the court struck the testimony and did not reverse that ruling.

Absent Gutierrez’s testimony, Lo did not have a reasonable suspicion that appellant possessed a weapon because neither Escada nor Gutierrez was shown to have a reasonable suspicion. Apart from Gutierrez’s stricken testimony, the record only established that Escada and Gutierrez said some unknown thing to Lo, and Lo then compelled appellant to empty his backpack, where he found a knife. This does not establish any factual basis for Lo to reasonably suspect appellant had violated or was violating a law or school rule. Gutierrez’s testimony was essential both to provide the factual basis and to satisfy the Harvey-Madden rule, which requires the prosecutor to prove that the information justifying the search of appellant’s backpack was actually given to the officer, or to the school official who furnished it to the school official who conducted the search. (People v. Gomez (2004) 117 Cal.App.4th 531, 540; People v. Armstrong (1991) 232 Cal.App.3d 228, 245-246.) Absent Gutierrez’s testimony, there was no proof whatsoever that there was a reasonable suspicion to justify the search, which therefore violated appellant’s Fourth Amendment rights.

Respondent argues appellant had no reasonable expectation of privacy in the contents of his backpack. Because the school did not provide the students with lockers, respondent reasons that appellant’s backpack was equivalent to a locker. This argument is unpersuasive. Students have a reasonable expectation of privacy in the personal effects they bring to school. (New Jersey v. T.L.O., supra, 469 U.S. at p. 339.) Lockers are physically attached to walls or floors of a school and owned by the school. Backpacks are personal bags owned by students and carried with them from one class to another, to lunch, and back home. The ordinary construction of a backpack does not leave its contents significantly exposed to public view, even when the pockets are not fully zipped close. The school cannot justify an invasion of appellant’s reasonable expectation of privacy in his backpack by citing the burden it has imposed upon students by its refusal to provide lockers for storage of books, supplies, and personal effects.

Because no evidence indicates appellant’s possession of a knife, apart from the product of the unconstitutional search, the juvenile court’s findings against appellant must be reversed.

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

RUBIN, J.

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^[1] People v. Harvey (1958) 156 Cal.App.2d 516; People v. Madden (1970) 2 Cal.3d 1017.