In re SEAN A







Filed 12/22/10





CERTIFIED FOR PUBLICATION


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re SEAN A., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. SEAN A., Defendant and Appellant.	D056026 (Super. Ct. No. J222955)

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

Appellate Defenders, Inc., San Diego, and Jason L. Nienberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court declared Sean A. a ward of the court (Welf. & Inst. Code, § 602) and placed him on probation after Sean admitted to possessing a controlled substance for sale in violation of Health and Safety Code section 11378.
Sean appeals, contending that the juvenile court erred by denying his motion to suppress evidence obtained as a result of a search of his person by a public high school official premised on the fact that he left and returned to campus during the school day. Sean also challenges one of the conditions of his probation.
We conclude that the search was lawful, and that Sean has waived any objection to his probation conditions by failing to object in the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
Sean, who was a student at a public high school, was observed by an attendance clerk as he was returning to campus in the middle of the school day. The assistant principal reviewed Sean's attendance record for the day and noticed that Sean had been absent from his period 1 and 2 classes, present for his period 3 class, and then absent from his period 4 class.
The high school conducts searches of students who leave campus and then return during the school day. Specifically, the school's written policy, set forth in the behavior code section of the school's student handbook, states that "students who return to campus after being 'out-of-bounds' are subject to a search of their person, their possessions, and vehicle when appropriate."^[1] The assistant principal testified, "I search every student who leaves campus and comes back." He stated that the purpose of the rule is to "keep students that are on campus safe" and to ensure that "nobody's bringing anything on campus they shouldn't."
Having determined from Sean's attendance record that he had left and returned to campus, the assistant principal called Sean to his office. Sean told the assistant principal that he went home to retrieve a notebook.
The assistant principal asked Sean to empty out the contents of his pockets. One of Sean's pockets held a plastic bag containing 44 pills of methylenedioxy-methamphetamine (commonly known as MDMA or ecstasy). After being arrested, Sean apparently told police that he left campus to pick up the pills and had sold some of them on the way back to campus.^[2]
A petition was filed against Sean in juvenile court under Welfare and Institutions Code section 602, alleging (1) unlawful possession of a controlled substance for the purpose of sale; and (2) unlawful possession of a controlled substance.
Sean brought a motion to suppress the evidence obtained as a result of the assistant principal's search of him, contending that the search was unlawful. After hearing the testimony of the assistant principal and receiving exhibits, including a handbook setting forth the high school's policies, the juvenile court denied the motion to suppress, stating that it believed the high school's policy of searching students who left and returned to campus was "in line with the Constitution" and did not "effectively deny students on campus . . . the right to be free from search or seizure."
Sean subsequently admitted to possessing a controlled substance for sale in violation of Health and Safety Code section 11378. The district attorney dismissed the simple possession count, and the juvenile court placed Sean on probation.
DISCUSSION
I
THE SEARCH OF THE MINOR WAS PROPER
A. Standard of Review
On appeal from a ruling denying a motion to suppress evidence, we "exercise our independent judgment to determine whether, on the facts found by the court, the search was reasonable under the Fourth Amendment [of the United States Constitution (the Fourth Amendment)]." (In re Lisa G. (2004) 125 Cal.App.4th 801, 805 (Lisa G.).) If any findings of fact are challenged, we apply a substantial evidence standard of review. (Ibid.)
The Fourth Amendment protects students on a public school campus against unreasonable searches and seizures. (In re Randy G. (2001) 26 Cal.4th 556, 567; In re William G. (1985) 40 Cal.3d 550, 561.) However, strict application of the principles of the Fourth Amendment as used in criminal law enforcement matters does not appropriately fit the circumstances of the operation of the public schools. The need to maintain discipline, provide a safe environment for learning and prevent the harmful impact on the students and staff of drugs and weapons cannot be denied.
Our Supreme Court in In re Randy G., described the societal interest in safe schools in compelling terms. The court stated: "The governmental interest at stake is of the highest order. '[E]ducation is perhaps the most important function of state and local governments.' (Brown v. Board of Education (1954) 347 U.S. 483, 493.) 'Some modicum of discipline and order is essential if the educational function is to be performed.' (Goss v. Lopez [(1975) 419 U.S. 565, 580].) School personnel, to maintain or promote order, may need to send students into and out of classrooms, define or alter schedules, summon students to the office, or question them in the hall. Yet, as the high court has observed, school officials 'are not in the business of investigating violations of the criminal laws . . . and otherwise have little occasion to become familiar with the intricacies of this Court's Fourth Amendment jurisprudence.' (Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602, 623 [(Skinner)].) Those officials must be permitted to exercise their broad supervisory and disciplinary powers, without worrying that every encounter with a student will be converted into an opportunity for constitutional review. To allow minor students to challenge each of these decisions, through a motion to suppress or in a civil rights action under 42 United States Code section 1983, as lacking articulable facts supporting reasonable suspicion would make a mockery of school discipline and order." (In re Randy G., supra, 26 Cal.4th at p. 566.)
In New Jersey v. T.L.O. (1985) 469 U.S. 325 (T.L.O.), the court recognized the legitimate needs of schools to maintain a safe environment. The court there, dealing with an individualized search of a student who had been seen smoking in the restroom, found that the requirement for probable cause as applied to law enforcement would be inappropriate for the school environment. The court declared that reasonable suspicion on the part of administrators was sufficient to meet the demands of the Fourth Amendment. The court recognized the applicability of the "special needs" exception to the general principles of the Fourth Amendment jurisprudence applied to the public school environment. (Id. at p. 333.)
The Court of Appeal in In re Latasha W. (1998) 60 Cal.App.4th 1524, 1527 (Latasha W.), aptly summarized the school cases. "The school cases just cited are part of a larger body of law holding that 'special needs' administrative searches, conducted without individualized suspicion, do not violate the Fourth Amendment where the government need is great, the intrusion on the individual is limited, and a more rigorous standard of suspicion is unworkable. (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646 [(Vernonia)] [upholding random drug testing of student athletes]; Michigan Dept. of State Police v. Sitz (1990) 496 U.S. 444 [upholding random sobriety checkpoints designated to locate drunk drivers]; Skinner[, supra,] 489 U.S. 602 [upholding postaccident drug testing of railroad employees]; Treasury Employees v. Von Raab (1989) 489 U.S. 656 [upholding suspicionless drug testing of customs officials]; United States v. Martinez-Fuerte (1976) 428 U.S. 543 [upholding vehicle stops at fixed checkpoints to search for illegal aliens]; Camara v. Municipal Court (1967) 387 U.S. 523 [upholding searches of residences by housing code inspectors].)" (Latasha W., supra, at p. 1527.)
The court in Latasha W. dealt with a search process different than that employed in T.L.O., supra, 469 U.S. 325. The minor in Latasha W., supra, 60 Cal.App.4th 1524, was searched as part of a suspicionless search for weapons. The school district in that case developed a policy of random weapons screening with a handheld metal detector. The policy was written and made known to both students and parents.
On the particular day that the minor in Latasha W. was searched the principal had determined that those students who entered the attendance office without hall passes and those who were late within a half hour after 8:09 a.m. would be searched. The minor in Latasha W. was one of eight to ten students who met these criteria and were searched. After the metal detector beeped she was asked to open her pockets revealing a knife. (Latasha W., supra, 60 Cal.App.4th at p. 1526.)
The Court of Appeal in Latasha W. found the search to be reasonable stating: "The need of schools to keep weapons off campuses is substantial. Guns and knives pose a threat of death or serious injury to students and staff. The California Constitution, article I, section 28, subdivision (c) provides that students and staff of public schools have 'the inalienable right to attend campuses which are safe, secure, and peaceful.' " (Latasha W., supra, 60 Cal.App.4th 1524 at p. 1527.) The court there found the search minimally intrusive subject to a system designed to prevent the influx of weapons into the school environment.
B. The Search was Legal
The search in this case was conducted pursuant to an established policy. Every student who leaves the campus and then returns is subject to search upon return. The students and their parents receive notice of the policy as part of the school's behavior code. The search in this case was carried out without touching the student, who was required only to empty his pockets. The vice principal testified the purpose of the search policy is to keep the school environment safe.
While the record in this case is limited as compared to those in the civil rights cases of Vernonia, supra, 515 U.S. 646 and Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls (2002) 536 U.S. 822 (Pottawatomie), there is sufficient here to permit an informed analysis of the policy and its purposes. Plainly the purpose of the policy is to prevent students who have left and returned in violation of the school rules from bringing in harmful objects such as weapons or drugs like those discovered in the current case.
As observed by both the United States Supreme Court and the California Supreme Court, school administrators have a responsibility to provide a safe learning environment for the students as well as a safe workplace for the staff.
In our view the policy at issue in this case is similar to that approved by the court in Latasha W., supra, 60 Cal.App.4th 1524. It also serves the same purpose as the drug testing requirements approved by the United States Supreme Court in both Vernonia, supra, 515 U.S. 646 and Pottawatomie, supra, 536 U.S. 822.
The minor and our dissenting colleague take a different approach to the analysis of the search in this case. The minor argues this case involves an individualized search and therefore the search must be supported by reasonable suspicion as defined by the court in T.L.O., supra, 469 U.S. 325. We disagree.
T.L.O., supra, 469 U.S. 325, involved a student who was reported for smoking in the restroom, a fact the student adamantly denied. The individualized search that followed was for the purpose of resolving the specific factual issues unique to T.L.O. on that particular date. In the present case, however, it is clear that the policy underlying the search is applied to all students who leave and then return to school in violation of the school's attendance rules. The purpose of the search is to prevent the introduction of harmful items into the school environment. Much like the drug testing, a far more intimate intrusion, approved in Vernonia, supra, 515 U.S. 646 and Pottawatomie, supra, 536 U.S. 822, this is not a process that requires individualized suspicion.
We are also influenced in our analysis by the limited nature of the search that took place. The search was restricted to requiring the student to empty his pockets or open his backpack. The student was not subjected to physical touching of his person nor was he exposed to the intimate process required for a urine sample necessary for drug testing. In sum, the search in this case was consistent with the type of action on the part of a school administrator that falls well within the definition of "special needs" of a governmental agency as we have outlined in the case law above. Given the general application of the policy to all students engaged in a form of rule violation that can easily lend itself to the introduction of drugs or weapons into the school environment, we conclude that further individualized suspicion was not required. Accordingly, we find the trial court correctly denied the motion to suppress evidence.
II
THE MINOR HAS FORFEITED ANY CHALLENGE
TO THE CONDITIONS OF PROBATION

After he admitted the violation alleged in the petition, the court placed Sean on probation. One of the conditions of the grant of probation was condition 11 which states:
"Minor shall attend school unless officially excused from school attendance; obey the rules and conditions of the school, maintain passing grades and satisfactory citizenship. Minor shall show proof of attendance or other school records whenever requested by the Probation Officer."
Sean did not object to any of the conditions of probation, but instead agreed to abide by the conditions. He now contends for the first time on appeal that this court should strike condition 11 because the record shows Sean had completed high school by the time he was granted probation. We consider the issue forfeited on appeal because Sean never presented his objections to the trial court.
While an appellate court may invalidate a legally defective probation condition, even without a timely objection, ordinarily objections to inapplicable or unreasonable conditions must be timely made in the trial court. (People v. Lent (1975) 15 Cal.3d 481; In re Sheena K. (2007) 40 Cal.4th 875, 888-889; People v. Welch (1993) 5 Cal.4th 228, 237.) Here there is no legal defect in the probation condition. Rather, the claim is the condition was moot when imposed and thus we should strike it. In our view this is the classic matter that should have been resolved in the trial court.
A review of the probation conditions in the record clearly indicate that condition 11 was part of a standard list of conditions for juveniles who have committed offenses such as that committed by Sean. If Sean had an objection to the condition based on it being moot he could have raised it in the trial court. Further, by its own language, the condition accommodates Sean's circumstances.
As Sean points out, the record shows he has graduated from high school. The challenged condition can reasonably be read to excuse him from further compliance with the condition. It provides that he must attend school unless "officially excused from school attendance." Since Sean has graduated from high school, he has certainly been "officially excused" from any further attendance at that school. We know of no other circumstance, based on this record, which might require Sean to attend any school other than high school. Ultimately, if Sean disagrees with the continued applicability of the condition, he can certainly return to the juvenile court and seek a modification of the terms of his probation. As to this court, however, Sean has forfeited any right to complain about the challenged condition.

DISPOSITION
The judgment is affirmed.

HUFFMAN, Acting P. J.

I CONCUR:



NARES, J.

IRION, J.

I respectfully dissent because my colleagues have approved an unwarranted expansion of the controlling Supreme Court case law, which permits suspicionless searches in public schools only under limited circumstances. I would conclude that the assistant principal's search of Sean was unlawful because it was not pursuant to a valid policy of suspicionless searches and was not based on reasonable suspicion.
A. The Requirement of Reasonable Suspicion Was Not Satisfied
As my colleagues acknowledge, unless the assistant principal's search of Sean was performed as a suspicionless special needs administrative search that meets the applicable constitutional requirements, the search is governed by the normal rules for individual searches of public school students set forth in New Jersey v. T.L.O. (1985) 469 U.S. 325, 333 (T.L.O.). Under T.L.O., a search by a public school official is permitted by the Fourth Amendment if "there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." (Id. at p. 342.)
My colleagues do not attempt to argue that the search here met that standard. Indeed, it did not. According to the record, the only information that the assistant principal relied upon when deciding to conduct the search was that Sean had left and returned to campus. That information, in and of itself, does not raise a reasonable suspicion that a search of Sean's pockets would reveal contraband or any other evidence of misconduct. As our Supreme Court held in In re William G. (1985) 40 Cal.3d 550, applying the standard set forth in T.L.O., knowledge that a student "was tardy or truant from class provided no reasonable basis for conducting a search of any kind." (William G., at p. 566.)^[3]

TO BE CONTINUED AS PART II….

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