In re J. D. ( 2014 )

Filed 5/14/2014 Unmodified opinion attached
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re J.D., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent, A138584
v. (Contra Costa County
J.D., Super. Ct. No. J1101036)
Defendant and Appellant. ORDER MODIFYING
OPINION AND DENYING
REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the published opinion filed herein on April 15, 2014, be modified
as follows:
1A. On page 1, the fourth sentence in the first paragraph of the opinion is deleted
and replaced with the following sentence:
He now appeals the court’s ruling on the suppression motion and challenges
various conditions of his probation.
1B. On page 1, after the sixth and last sentence in the first paragraph, the
following text is added:
We also modify appellant’s probation conditions. As modified, the judgment is
affirmed.
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2. On page 12, after the last paragraph of the “DISCUSSION” section, which
states “The motion to suppress was properly denied,” and before the heading
“DISPOSITION,” the following text is added:
Appellant also challenges the validity of his probation conditions. After placing
appellant on probation in his uncle’s home, the court stated: “You’re not to change your
residence without prior approval of the probation officer and must notify change [sic] of
address or phone number within five days.” The trial court has wide discretion in
imposing reasonable conditions of juvenile probation (Welf. & Inst. Code, § 730, subd.
(b)), including conditions which enable the court to determine the ward’s place of
residence to ensure he or she is residing in a stable environment that promotes
rehabilitation. However, we agree with appellant this condition is not narrowly tailored
to avoid the possible impingement on his right to travel. (Cf. In re Sheena K. (2007) 40
Cal. 4th 875 [probation condition prohibiting minor from associating with disapproved
persons unconstitutionally vague].) We therefore modify the condition to provide that if
defendant changes residence, he is to notify the probation officer of his change of address
and phone number within five days.
The court also forbade appellant to use or possess drugs, alcohol, weapons, or
ammunition. Appellant argues these conditions do not give him fair warning or adequate
notice of what is prohibited because “weapon” is not defined and there is no express
scienter requirement. (In re Sheena K., supra, 40 Cal.4th at pp. 890-892.) We agree. A
person may be involuntarily drugged or intoxicated, or unknowingly in constructive
possession of weapons or ammunition. Furthermore, the term “weapon” may include
ordinary objects if used to inflict injury. In order to avoid any ambiguity, we modify the
court’s prohibition to make clear that appellant is not to knowingly use or possess drugs,
alcohol, dangerous or deadly weapons, or ammunition.
3. On page 12, after the heading “DISPOSITION,” the following sentence is
deleted: “The judgment is affirmed.” The following text is added:
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The trial court’s order imposing conditions of probation is modified as follows:
(1) if appellant changes residence, he is to notify the probation officer of his change of
address and phone number within five days; and (2) appellant is not to knowingly use or
possess drugs, alcohol, dangerous or deadly weapons, or ammunition. As modified, the
judgment is affirmed.
This modification is not to be published, except for the modified text on page 1 of
the opinion (see paragraph nos. 1A and 1B, above) and the text added to page 12 of the
opinion after “DISPOSITION” (see paragraph no. 3, above).
This modification does not change the judgment.
The petition for rehearing is denied.
___________________________
Dondero, J.
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Filed 4/15/14 Unmodified opinion
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re J.D., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
A138584
v.
J.D., (Contra Costa County
Super. Ct. No. J1101036)
Defendant and Appellant.
In this appeal, we are asked to review the denial of a motion to suppress in a
delinquency proceeding. Appellant’s locker was searched by high school security and a
sawed-off shotgun was found in his backpack. The trial court upheld the search.
Following a jurisdictional hearing, the court sustained count one of the wardship petition
alleging the minor possessed a firearm in a school zone, a felony (Pen. Code, § 626.9,
subd. (b)), and dismissed two other counts on the People’s motion. He now appeals the
court’s ruling on the suppression motion. His appeal is authorized by Welfare and
Institutions Code section 800. We conclude the conduct undertaken by school security
was reasonable and sustain the trial court’s decision.
STATEMENT OF FACTS
Charles Johnson was a campus security officer (CSO) for the West Contra Costa
Unified School District (WCCUSD). At the time of the offense, he was assigned to
Richmond High School, a part of the WCCUSD. On February 10, 2011, while on duty at
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the school, Johnson was approached by a female student who seemed concerned and
wished to speak with Rose Sanders, another CSO at Richmond High School. Johnson
accompanied her to see Sanders. A short while later, Johnson was called to Sanders’s
office to hear what the student had to say. The student related that on the day before,
while the student was on an AC Transit bus, a Richmond High School student, T.H.,
pulled out a gun and shot someone. The student witness had been on the bus and
indicated another student told her what T.H. had done with the weapon.
T.H. was currently enrolled at Richmond High School. Sanders wanted to know if
T.H. was on campus and if he had a weapon on the premises. Johnson met with school
administrators and was directed to detain T.H. and determine if he had any weapon.
Johnson proceeded to the security office on campus to call Richmond police for
help. When he arrived, Sergeant Russell of the Richmond Police Department was present
for a visit. Russell told Johnson to locate T.H. but not confront him. Russell also advised
Johnson to determine where T.H.’s locker is located.
To follow up on identifying T.H.’s locker, Johnson met with CSO Driscoll, the
campus security officer who “deals with [student] lockers.” Each year, Driscoll re-keys
the lockers and changes the combinations. While he does not assign lockers to individual
students, Driscoll had information about who was assigned to particular lockers. Driscoll
also is responsible for supervising the cleaning out of school lockers during the year and
handling repair of jammed lockers. When Driscoll noticed the assigned locker of T.H.,
he told Johnson that was not the locker he “hangs around.” Driscoll related he had seen
T.H. several times in the area of locker number 2499. On the day of the reported
shooting, Driscoll had observed T.H. with his girlfriend in front of locker 2499. The
couple was facing the set of lockers but Driscoll was not able to determine which one, if
any, they might be using. This behavior seemed suspicious to Driscoll. The incident
occurred when students were required to be either in class or at lunch but not in the hall
area where T.H. was seen.
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During their conversation, Driscoll advised Johnson that Richmond High students
often shared their assigned locker with other students who were not assigned to that
locker for the purpose of concealing contraband such as drugs and other items not
permitted on campus. The CSO’s were familiar with this behavior at the school.
Driscoll and Johnson along with Russell went to the area of locker 2499 to see if
weapons were present. When opened, locker 2499 contained a couple of books, but
nothing else. Russell then told Driscoll to check the adjacent lockers because the student
had frequented the “area” of 2499. Shortly, Driscoll opened 2501, which was next to
2499. A backpack was found in it and, when removed from the location, the security
officers noticed the butt of a sawed-off shotgun.
As these men were inspecting this group of lockers, other personnel had located
T.H. on campus. He was discovered and surveilled as Driscoll, Johnson and Russell
began inspecting the lockers in the area of 2499.
At the approximate time of this search, Sergeant Robert Gray of the Richmond
Police Department was on campus based on the shooting report. Gray and another
officer found T.H. on the campus and confronted him. While T.H. personally had no
weapon, he was asked by the officers about a weapon. T.H. stated he had a handgun in
his backpack, which was near him. This was verified by the officers checking the
backpack.
Regarding the backpack found in locker 2501, in addition to the sawed-off
shotgun, the school investigators found miscellaneous papers in the backpack belonging
to minor J.D. These papers containing the minor’s name included school assignment
papers. Eventually, Gray met with the minor. He was Mirandized by the officer. The
minor acknowledged a waiver of his rights. He admitted the shotgun belonged to him.
The minor stated he had been bothered by other students at Richmond High School and
possessed the weapon for his safety at the school.
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DISCUSSION
Recent events have demonstrated the increased concern school officials must have
in the daily operation of public schools. Sites such as Columbine, Sandy Hook
Elementary, and Virginia Tech have been discussed in our national media not because of
their educational achievements, but because of the acute degree of violence visited on
these and other campuses— hostility often predicated on killings with firearms. During
the 2009-2010 school year, 33 students, staff, and others died in a school-associated
violent event.1 In 2009, 8 percent of students in grades nine through twelve reported
being threatened or injured with a weapon on school property at least one time.2
According to the National Center for Injury Prevention and Control, a division of the
Center for Disease Control (CDC), in 2010, there were 828,000 nonfatal victimizations at
school among students 12 through 18 years of age. In 2011, 5.9 percent of the students in
grades nine through 12 did not attend school within 30 days of the CDC survey because
they felt the school, or their way to or from school, was unsafe. Also, 7.4 percent of the
same group reported being threatened or injured with a weapon on school property one or
more times in the past 12 months before the survey.3 We must be cognizant of this
alarming reality as we approach our role in assessing appropriate responses by school
administrators to campus safety issues.
Education “is perhaps the most important function” of government. (Brown v.
Board of Education (1954) 347 U.S. 483, 493.) As such, “government has a heightened
obligation to safeguard students whom it compels to attend school. The special need for
1
National Center for Education Statistics, U.S. Department of Education, Bureau of
Justice Statistics, U.S. Department of Justice, Indicators of School Crime and Safety
(2011) Key Findings: Violent Deaths, p. iii.
2
National Center for Education Statistics, U.S. Department of Education, Bureau of
Justice Statistics, U.S. Department of Justice, Indicators of School Crime and Safety
(2011) Indicator 4: Threats and Injuries With Weapons on School Property, p. 18.
3
National Center for Injury Prevention and Control, Center for Disease Control.
Understanding School Violence: Fact Sheet (2012) p. 1.
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an immediate response to behavior that threatens either the safety of schoolchildren and
teachers or the education process itself justified the Court in excepting school searches
from the warrant and probable-cause requirement, and in applying a standard determined
by balancing the relevant interests.” (New Jersey v. T.L.O. (1985) 469 U.S. 325, 353
(conc. opn. of Blackmun, J.) (T.L.O.).) Of course, it is a given that students do not “shed
their constitutional rights . . . at the schoolhouse gate.” (Tinker v. Des Moines
Independent Community School District (1969) 393 U.S. 503, 506.) Yet “the ‘primary
duty of school officials. . . 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.’ ” (In re Randy G. (2001) 26 Cal. 4th 556, 562 (Randy G.).) After all, all minor
students are required to be in school. (Ed. Code, § 48200.) And “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. 1, § 28, subd. (f)(1); italics added.) Among the ways school districts achieve this is by
having security departments in the school to enforce the rules of the State and school
district. (Ed. Code, § 38000; Randy G., supra, 26 Cal.4th at pp. 562-563.)
To properly employ the balance between the privacy interests of public school
children with the important need to maintain order and discipline in schools today, the
accommodation does not require rigid adherence to the requirement that searches be
based on probable cause to believe the subject of the search has violated or is violating
the law. Instead, the validity of a search on school property should depend on the
reasonableness of the official conduct to deal with the particular school problem. (T.L.O.,
supra, 469 U.S. at p. 341.) “Events calling for discipline are frequent occurrences and
sometimes require immediate, effective action.” (Goss v. Lopez (1975) 419 U.S. 565,
580.) Therefore, school administrators and security personnel need to have “a certain
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degree of flexibility in school disciplinary procedures . . . .” (T.L.O., supra, 469 U.S. at
pp. 582-583.)
In normal situations, any search or seizure requires an individualized suspicion of
criminal activity. (Brinegar v. United States (1949) 338 U.S. 160, 175.) Without such,
the search is not reasonable and violates the Fourth Amendment. (Randy G., supra,
26 Cal.4th at p. 565.) However, the Fourth Amendment protections are rooted always in
reasonableness—individualized suspicion triggers reasonable inquiry by the police in the
usual case. Yet over time, the reasonableness of any search must be reflective of a
balance between the particular intrusion on a person’s Fourth Amendment interests
against its promotion of legitimate governmental interests. (Vernonia School District 47J
v. Acton (1995) 515 U.S. 646, 652-653 (Acton).) Neither a warrant nor probable cause is
inevitably required “when ‘special needs [exist] beyond the normal need for law
enforcement to make the warrant and probable-cause requirement impracticable.’ ”
(Griffin v. Wisconsin (1987) 483 U.S. 868, 873, italics added.) This “special needs”
rationale has allowed the Supreme Court to require drug testing of customs officials at the
border (National Treasury Employees Union v. Von Raab (1989) 489 U.S. 656, 665-666
(Von Raab)) and railway workers (Skinner v. Railway Labor Executives’ Assn. (1989)
489 U.S. 602, 619-620 (Skinner).)
The reasonableness assessment based on special needs has been deemed
appropriate in public schools by the Supreme Court. “We have found such ‘special
needs’ to exist in the public school context. There, the warrant requirement ‘would
unduly interfere with the maintenance of the swift and informal disciplinary procedures
[that are] needed,’ and ‘strict adherence to the requirement that searches be based upon
probable cause’ would ‘undercut the substantial need of teachers and administrators for
freedom to maintain order in the schools.’ ” (Acton, supra, 515 U.S. at p. 655, citing
T.L.O., supra, 469 U.S. at p. 341.)
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Of course, there is the need to recognize and consider individual student rights in
this review. Against the strong governmental interest or special need in the public school
arena, the courts have developed the need to focus not on individualized suspicion, but on
the circumstances triggering administrative action and whether the execution is arbitrary,
capricious, or for the purpose of harassment. (Randy G., supra, 26 Cal.4th at p. 567.)
While Randy G. involved only the detention of a student in a public school, its reasoning
has been adopted in campus search cases as well. (In re Sean A. (2010) 191 Cal. App. 4th
182, 188-189; In re K.S. (2010) 183 Cal. App. 4th 72, 79; see also, In re Latasha W.
(1998) 60 Cal. App. 4th 1524, 1527.)
In our case, the administration and its security staff at Richmond High School
faced a report from an identified student who overheard that, the previous day, one of the
school’s students, T.H., shot another person on a bus after school. The student reportee
demonstrated concern over the incident and was interviewed by CSO Sanders and also
CSO Johnson. This information triggered two responsible initiatives by the school
security officers. The first was to determine if T.H. was on the school property with a
weapon. The second was to inspect lockers that could be used by T.H. to conceal such an
item. Neither step by the school would be considered inappropriate or unreasonable.
Each was narrow and focused, and based on the identity of T.H. and an area of the school
he was known to frequent.
The belief that T.H. may have stored contraband in another person’s locker, in the
context of the special needs doctrine, does not serve to preclude the action of school
security. Even if another student validly had the assigned use of a particular locker at the
school, that fact did not make the official behavior here suspecting an alleged shooter
also had access to the same lockers unreasonable. Privacy concerns needed to be
balanced against the official need to address school safety. The principles developed in
T.L.O., Acton, and Board of Education of Independent School District No. 92 of
Pottawatomie County v. Earls (2002) 536 U.S. 822 (Earls), as well as Skinner and Von
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Raab, are authoritative precedent here because they also involve a proactive policy based
on government obligations aimed at protecting students, travelers, and our national
borders, not hindsight reflection.
This assessment of reasonableness requires judicial review of its quality and the
behavior by school officials at the outset of official reaction. “[T]he legality of a search
of a student should depend simply on the reasonableness, under all the circumstances, of
the search. Determining the reasonableness of any search involves a twofold inquiry:
first, one must consider ‘whether the . . . action was justified at its inception,’ [Citation];
second, one must determine whether the search as actually conducted ‘was reasonably
related in scope to the circumstances which justified the interference in the first place,’
[Citation]. Under ordinary circumstances, a search of a student by a teacher or other
school official will be ‘justified at its inception’ when 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. Such a search will be permissible in its
scope when the measures adopted are reasonably related to the objectives of the search
and are not excessively intrusive in light of the age and sex of the student and the nature
of the infraction.” (T.L.O, supra, 469 U.S. at pp. 341-342, fns. omitted.)
The cases that apply special needs factors to the public school have allowed
random practices by school officials because they are a reasonable way to handle school
problems. In Acton, the Court approved random urine testing of students who
participated in school athletic programs. A refusal to supply a urine sample precluded
participation in the District football program. (Acton, supra, 515 U.S. 646, 651.) The
District’s approach was an appropriate way to deal with campus drug issues deemed
serious by the administration. (Id. at pp.664-665.) The policy also served to lessen
liability concerns with sports-related injuries. (Id. at p. 649.) No individualized suspicion
or probable cause was necessary for the test. (Id. at pp. 664-665.)
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In Earls, the Court upheld a drug testing policy for all students who participated in
any competitive extracurricular activity in the school district. “[I]n the context of safety
and administrative regulations, a search unsupported by probable cause may be
reasonable ‘when “special needs, beyond the normal need for law enforcement, make the
warrant and probable-cause requirement impracticable.” ’ ” (Earls, supra, 536 U.S. 822,
829.) “ ‘Fourth Amendment rights . . . are different in public schools than elsewhere; the
“reasonableness” inquiry cannot disregard the schools’ custodial and tutelary
responsibility for children.’ ” (Id. at p. 830.)
Other jurisdictions have dealt with locker searches on school property in the same
fashion we do today. The case of In re Patrick Y. (2000) 358 Md. 50 dealt with an
unidentified source advising a school security officer there were drugs and weapons in
the “middle school area” of Mark Twain School. (Id. at p. 53.) The principal directed
that all lockers in the “middle school area” be searched. As a result, inside Patrick’s
locker was located an illegal folding knife and a pager---both items forbidden on school
property. (Ibid.) There was no original focus on Patrick in this case. All lockers in the
middle school were opened and inspected. Under school policy, lockers were assigned to
individual students and, because they are the property of the school, subject to inspection
by school officials. (Id. at p. 63.) Any interest individual students had in the contents of
assigned lockers was secondary to the school administration’s obligation. Under Acton,
“ ‘when the government acts as guardian and tutor the relevant question is whether the
search is one that a reasonable guardian and tutor might undertake’ and . . . the answer
[is] in the affirmative.” (Patrick Y., supra, 358 Md. at p. 60, quoting Acton, supra, 515
U.S. at p. 665.)
The Iowa Supreme Court followed the reasoning in Acton and Earls when it
upheld locker searches in State v. Jones (2003) 666 N.W.2d 142. In the case, Muscatine
High School advised 1,700 students that they should clean out lockers before winter
break. (Id. at p. 144.) Approximately 1,400 of the students did so. However, a sizable
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number did not. Two school aides went through each locker that was not emptied and
inspected the contents. The aides were checking for school property but also drugs and
weapons. (Ibid.) In Jones’s locker, they found a nylon jacket which, upon close
inspection, had marijuana in a pocket. This seized evidence was not suppressed because
the conduct by school aides was reasonably based. (Id. at p. 150.) “We believe the
locker search conducted by the school officials in this case is most closely analogized to
the broad searches conducted in Acton and Earls. Although this search eventually
focused on Jones’[s] locker, the process leading to that point was random and carried out
with the purpose of protecting the health and safety of the whole student body to preserve
a proper educational environment.” (Id. at p. 146.) In the end, the Court found that even
if Jones had a legitimate expectation of privacy in the contents of his locker, “that privacy
may be impinged upon for reasonable activities by the school in furtherance of its duty to
maintain a proper educational environment.” (Id. at p. 150.)
A final case for discussion is Commonwealth v. Carey (1990) 407 Mass. 528.
There, an assistant principal was told by another teacher about a report that teacher
received from two students. The students had seen Carey, a student, on school property
brandishing a weapon that morning. (Id. at p. 529.) The administrator and a police
officer searched Carey’s locker without his knowledge and found a jacket containing a
gun. (Id. at p. 530.) The evidence disclosed the school had an unannounced policy of
checking student lockers for contraband if they received a report meriting such inquiry.
Students at the school were not notified of this option. (Id. at p. 530.) However, the
Massachusetts Supreme Court found whether an announced policy existed was not
relevant in this case. “[W]e pass over the expectation of privacy issue because we
conclude that the warrantless search of the locker was in any event justified under the
Fourth Amendment.” (Id. at p. 533.) Following T.L.O., the Court observed “a school
administrator’s task of maintaining discipline in the school has become a more difficult
one, as ‘in recent years, school disorder has often taken particularly ugly forms: . . .
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violent crime[s] in the schools have become major social problems.’ ” (Commonwealth
v. Carey, supra, at pp. 533-534, quoting T.L.O, supra, 469 U.S. at p. 339.) The search of
Carey’s locker was “clearly based on common sense, and was reasonable both at its
inception and in its scope.” (Commonwealth v. Carey, supra, at pp. 533-534.)
Importantly, in our case we are not reviewing the established policy of a district to
engage in widespread conduct affecting many students. Instead, we are dealing with a
shooting by a Richmond High School student on a public bus the previous day who was
believed to be on school grounds on the day in question. Our matter called for the
flexible but reasonable response demonstrated by school administrators and staff in the
out-of-state cases cited above. The decision to detain the alleged shooter and check
particular places on the campus T.H. frequented is a more limited response than the
established practices condoned in Acton and Earls. The reasonable response here was not
prolonged over time nor a widespread checking of all lockers at Richmond High School.
The locker 2501 that was adjacent to the first locker checked, 2499, was properly
examined based on the observations of CSO Driscoll, his experience with student
concealment of items in other lockers, and the prompt need to address a serious shooting
the previous day. The fact that minor J.D., rather than T.H., had stored an illegal weapon
in locker 2501 should not disturb the legal validity of this search.
In addition, we have no concern based on these facts that Richmond police officers
assisted the school security personnel in carrying out this inquiry. The facts indicate the
initial report was presented by known students to CSO Johnson and Sanders. In their role
as security officers acting at the behest of Richmond High School administrators, they
acted in the interests of campus safety. Johnson did advise Sergeant Russell of the
Richmond Police Department, and that officer accompanied Johnson and Driscoll as they
went to the area of lockers 2499 and 2501. It is also true Russell contacted his two fellow
officers to come to the school, locate T.H., and confront him. But the secondary role of
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the police officers does not cancel the fundamental feature of this case—administrators
seeking to secure the school premises from potential for violence.
In In re K.S. (2010) 183 Cal. App. 4th 72, Division Five of this district reviewed the
denial of a motion to suppress. Police informed the campus resource officer, who was
also a Livermore policeman, about a confidential tip that a student at the school
possessed Ecstasy drugs. The resource officer advised the vice principal. While the
suspect was in gym class, the vice principal along with the officer who relayed the report
to the campus resource officer went to the locker of K.S. to check street clothing stored
inside the locker. The school vice principal did not seek police permission. She wanted
to see if the drugs were on the campus. Inside the pockets of the pants were several
Ecstasy tablets. Later, K.S was arrested. In approving the search, the court followed
T.L.O. Regarding the part the officers played in this search, the opinion focused on the
school administrator’s role in the search. “It is noteworthy that the police role in the
search of appellant was at all times clearly subordinate to the role of the vice-principal,
who made the decision to search and conducted the search. For that reason, the T.L.O.
standard applies.” (Id. at p. 80; see also In re William V. (2003) 111 Cal. App. 4th 1464,
1469-1472.)
The motion to suppress was properly denied.
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DISPOSITION
The judgment is affirmed.
_________________________
Dondero, J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Becton, J.

Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Barry Baskin
Counsel for Defendant and Appellant: Eileen A. Manning-Villar,
under appointment by the
Court of Appeal
Counsel for Plaintiff and Respondent: Ronald E. Niver
Deputy Attorney General
Kamala D. Harris
Attorney General of California
Dane R. Gillette
Chief Assistant Attorney General
Gerald A. Engler
Senior Assistant Attorney General
Eric D. Share
Supervising Deputy Attorney General
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