Filed 9/17/03
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re WILLIAM V., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
A099390
v.
(Alameda County
Super. Ct. No. 183682)
WILLIAM V.,
Defendant and Appellant.
William V. appeals from a judgment of the juvenile court making him a ward of
the court for unlawfully possessing a knife on school grounds. He asserts that the court
should have suppressed the knife because it was seized in an unlawful search. William
argues that the specially assigned police officer who conducted the search was not a
school official and thus was required to have probable cause, rather than merely a
reasonable suspicion, to conduct the search. In the published portion of the opinion, we
hold that the police officer, who was on a two-year assignment as a resource officer at
William’s school, was a school official for purposes of the Fourth Amendment, and that
his search was justified by the reasonable suspicion that William was engaging in
conduct that violated school rules.
William also challenges the gang-related conditions of his probation. In the
unpublished portion of the opinion, we conclude the probation conditions are valid.
Accordingly, we affirm.
*
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for
publication with the exception of part II of the DISCUSSION.
1
FACTUAL AND PROCEDURAL BACKGROUND
Around 9:15 a.m. on September 6, 2001, Officer David Johannes of the Hayward
Police Department entered the Hayward High School campus in full uniform. At that
time, Johannes was employed as a police officer by the City of Hayward, but was
assigned to Hayward High School as a “school resource officer” for a two-year term. As
part of his assignment, Johannes maintained an office at the school and was on the school
campus approximately eight hours a day. His job duties required him to work with the
administration, teachers and students. “We’ll resource there for them. And also enforce
laws. We also bring concerns about school policy to the administration’s attention.”
As Officer Johannes walked towards the administration building, he observed
William standing alone in the hallway. Johannes noticed that William had a neatly
folded red bandanna hanging from the back pocket of his pants. Possession of a
bandanna on campus is a violation of school rules because colored bandannas commonly
indicate gang affiliation. Once the officer made eye contact with William, William’s
behavior changed. He became nervous and started pacing. Johannes approached
William and asked him to remove the bandanna. William replied, “What rag? What red
rag?” The officer pointed to the bandanna and William responded that he did not know it
was there. The officer removed the bandanna and decided to take William to the
principal’s office for discipline.
Before doing so, the officer conducted a patsearch for weapons. Johannes
explained that the school had recently experienced gang activity, and that the color of the
bandanna suggested that it was gang-related. In Johannes’s experience, the manner in
which the bandanna was folded and hanging from the pocket indicated that something
was about to happen or that William was getting ready for a confrontation. He explained
that he also conducted the search because William was “trembling quite heavily, his
entire body, especially his hands, his lips, his jaw as he was talking” and Johannes was
concerned for the safety of the campus. During the patsearch of William’s outer clothing,
the officer detected bulk around William’s waistband, but could not determine what was
causing it. William was wearing baggy clothes and a windbreaker jacket that covered his
2
waistband, so the officer lifted William’s jacket and observed a handle protruding from
William’s front pocket. The officer removed what looked like a steak knife with a fiveinch serrated metal blade. William admitted that he had the knife for protection.
Johannes escorted William to the school administration office.
On November 5, 2001, the Alameda County District Attorney filed a petition
pursuant to Welfare and Institutions Code section 602. The petition alleged one count of
felony possession of a knife on school grounds (Pen. Code, § 626.10, subd. (a)).1
Following a subsequent hearing, the juvenile court denied William’s motion to suppress
the knife. Shortly thereafter, William entered an admission to misdemeanor possession
of a knife on school grounds.2 The juvenile court adjudged William a ward of the court,
and ordered him to reside with his parents while on probation and imposed various terms
and conditions of the probation. William filed a timely notice of appeal.
DISCUSSION
I. The trial court properly denied William’s motion to suppress.
The trial court denied William’s motion to suppress, finding that when conducting
a search of a student on a school campus, Johannes had the same authority as a school
official, and that his belief that gang activity was about to occur was reasonable, and
justified both the detention and the search. William contends that Johannes was not a
school official and that, even if he was, the search was still unreasonable.
“On appeal from the denial of a suppression motion, the court reviews the
evidence in a light favorable to the trial court’s ruling. [Citation.] We must uphold those
express or implied findings of fact by the trial court which are supported by substantial
evidence and independently determine whether the facts support the court’s legal
conclusions.” (In re Joseph G. (1995) 32 Cal.App.4th 1735, 1738-1739.)
1
All further statutory references are to the Penal Code.
2
Possession of a knife on school property pursuant to section 626.10, subdivision (a), is a
“wobbler” offense.
3
A. The reasonable suspicion standard applicable to school officials applied to
Officer Johannes as a school resource officer.
In New Jersey v. T.L.O. (1985) 469 U.S. 325 (T.L.O.), the United States Supreme
Court addressed the constitutionality of searches of students by teachers and school
officials. The court initially determined that the Fourth Amendment to the United States
Constitution applies to searches of students conducted by public school officials. (T.L.O.,
supra, at pp. 333-336.) The court recognized that, under the Fourth and Fourteenth
Amendments, students have legitimate expectations of privacy in the belongings they
bring to school. “In short, schoolchildren may find it necessary to carry with them a
variety of legitimate, noncontraband items, and there is no reason to conclude that they
have necessarily waived all rights to privacy in such items merely by bringing them onto
school grounds.” (T.L.O., supra, at p. 339.) The court also emphasized, however, that
the state has a substantial interest in maintaining a proper educational environment for the
schoolchildren entrusted to its care. “Even in schools that have been spared the most
severe disciplinary problems, the preservation of order and a proper educational
environment requires close supervision of schoolchildren, as well as the enforcement of
rules against conduct that would be perfectly permissible if undertaken by an adult.”
(Ibid.) In balancing the competing interests of a school’s need to maintain a proper
educational environment and the student’s legitimate expectations of privacy, the court
held that teachers and school officials need not obtain a warrant or have probable cause to
search a student. “Rather, the legality of a search of a student should depend simply on
the reasonableness, under all the circumstances, of the search.” (Id. at p. 341.) The court
set forth a twofold inquiry for determining the reasonableness of a student search. The
action must be “justified at its inception” and the search, as actually conducted, must be
“ ‘reasonably related in scope to the circumstances which justified the interference in the
first place.’ ” (Ibid.) “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
4
in its scope when the measures adopted are 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.” (Ibid., fn. omitted.)
The California Supreme Court has adopted the T.L.O. standard for violations of
the California Constitution. (In re William G. (1985) 40 Cal.3d 550, 564.) Both the
United States and California Supreme Courts, however, expressly declined to consider
whether this standard is applicable to searches “conducted by school officials in
conjunction with or at the behest of law enforcement agencies.” (T.L.O., supra, 469 U.S.
at p. 341, fn. 7; In re William G., supra, 40 Cal.3d at p. 562, fn. 12 [“Under the facts of
this case, we do not reach the issue of what standard should apply where law enforcement
officials are involved at the outset of a student search, or where a school official acts in
cooperation with, or as an agent of, law enforcement”].)
Recently, in In re Randy G. (2001) 26 Cal.4th 556, the California Supreme Court
again declined to consider the appropriate “standard for assessing the lawfulness of
seizures conducted by school officials in conjunction with or at the behest of law
enforcement agencies,” but did hold that for purposes of assessing the validity of a
detention under the Fourth Amendment, no meaningful distinction can be drawn between
non-law enforcement security officers employed by a school district and other school
officials. (Id. at pp. 568-569 & fn. 3.) The court reasoned, “The same observation and
investigation here could well have been undertaken by a teacher, coach, or even the
school principal or vice-principal. If we were to draw the distinction urged by the minor,
the extent of a student’s rights would depend not on the nature of the asserted
infringement but on the happenstance of the status of the employee who observed and
investigated the misconduct. Of equal importance, were we to hold that school security
officers have less authority to enforce school regulations and investigate misconduct than
other school personnel, there would be no reason for a school to employ them or delegate
to them duties relating to school safety. Schools would be forced instead to assign
certificated or classified personnel to yard and hall monitoring duties, an expenditure of
5
resources schools can ill afford. The title ‘security officer’ is not constitutionally
significant.” (Ibid.)
In an almost identical case, the Illinois Supreme Court held that a police officer
assigned to a school as a resource officer was a school official for the purpose of
assessing the legality of a search on school grounds. (People v. Dilworth (Ill. 1996) 661
N.E.2d 310.) The police officer was assigned to the school by the city’s police
department, and as a school resource officer he maintained an office on school grounds.
His primary purpose on the school campus was to prevent criminal activity, and if he
discovered such activity he had authority either to arrest the student or to assign the
student to detention. (Id. at pp. 312-314.) The court reasoned that because of the unique
nature of a public school environment and the strong state interest in protecting its
students, even if the officer initiates the detention based on his own observations of the
student’s behavior, the legality of the search should be reviewed under the same
standards applicable to other school officials. In so holding, the Illinois court explicitly
rejected the argument that a distinction should be drawn between police officers
employed by the city and security officers hired by the school district. (Id. at p. 320.)
The relationship between a student and the “school police” is no different than that
between a student and a school resource officer merely because one is employed by the
district and the other by the city. (Ibid.)
We too see no reason to distinguish for this purpose between a non-law
enforcement security officer and a police officer on assignment to a school as a resource
officer. We reject William’s argument that we should differentiate between the two
because the first is employed by the school district and the other by the city. This
distinction focuses on the insignificant factor of who pays the officer’s salary, rather than
on the officer’s function at the school and the special nature of a public school. As
explained in In re William G., supra, 40 Cal.3d at page 563, “ ‘When society requires
large groups of students, too young to be considered capable of mature restraint in their
use of illegal substances or dangerous instrumentalities [to congregate in the public
schools], it assumes a duty to protect them from dangers posed by anti-social activities—
6
their own and those of other students—and to provide them with an environment in
which education is possible. To fulfill that duty, teachers and school administrators must
have broad supervisory and disciplinary powers.’ ” The fulfillment of the school’s duty
should not be dependant on whether the school district or the city employs the security
officer. As noted in In re Randy G., supra, 26 Cal.4th at pages 568-569, drawing such a
distinction might force school districts to employ private security guards rather than
certified police officers, who may have superior training, and would hardly enhance
protection of the students’ Fourth Amendment rights.
Nor is the police officer’s specialized training in Fourth Amendment search and
seizure law a sufficient reason to hold the police officer to a higher standard, as William
argues. William relies on the following language in the T.L.O. decision: “This standard
will, we trust, neither unduly burden the efforts of school authorities to maintain order in
their schools nor authorize unrestrained intrusions upon the privacy of schoolchildren.
By focusing attention on the question of reasonableness, the standard will spare teachers
and school administrators the necessity of schooling themselves in the niceties of
probable cause and permit them to regulate their conduct according to the dictates of
reason and common sense.” (T.L.O., supra, 469 U.S. at pp. 342-343.) While the
advantage of utilizing a standard that does not require special training in Fourth
Amendment jurisprudence may not apply in the case of a police officer who has received
such training, the court’s decision does not rest primarily on this rationale. Rather, in
balancing the importance of maintaining an appropriate educational environment with the
privacy interests of students, the court felt it appropriate to permit students to be more
readily subjected to a reasonable search. In so holding, the Supreme Court “joined the
majority of courts that have examined this issue (fn. omitted) in concluding that the
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.” (Id. at p. 341.) That
7
some officials enforcing the school rules may have a greater or lesser degree of training
in constitutional law thus is not determinative of the standard to be applied.
B. The initial detention and subsequent search were reasonable.
Officer Johannes testified that he saw the colored bandanna hanging from
William’s pocket as he approached. William’s violation of the school rule prohibiting
bandannas on school grounds justified the initial detention. Johannes’s additional
testimony that the school had experienced a number of incidents of gang violence in the
prior weeks, that the color of the bandanna indicated a gang affiliation, and that the
manner in which the bandanna was folded indicated to him that a confrontation was
imminent justified the limited search for weapons. In light of William’s bulky clothes,
Johannes reasonably lifted William’s jacket to search his waistband. Accordingly, the
scope of the search 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.” (T.L.O., supra, 469 U.S. at p. 342.)
II. The probation conditions are valid.*
As a condition of William’s probation, he was ordered to comply with the
“standard gang conditions.”3 The document entitled “Terms and Conditions of
Probation” signed by William sets forth the gang conditions as follows: “Do not wear,
display, use, possess, write, paint, or draw by any means any insignia, emblem, button,
badge, cap, hat, scarf, bandana or any object or article of clothing which is evidence of
affiliation, association or membership in any street gang . . . nor associate with anyone
who does. [¶] Do not associate with anyone who uses or possesses dangerous [or] deadly
weapons [or] explosive devices nor remain in any vehicle where such weapons are
*
Part II of this opinion is not certified for publication. (See fn., ante, p. 1.)
3
The parties agree that this condition was incorrectly marked on the minute order as
requiring William’s compliance with the “standard drug conditions.” As the court’s oral
pronouncement controls over the clerk’s minute order, our remittitur shall direct the court to
modify the minute order to reflect the proper probation condition.
8
present. [¶] Do not contact any individuals whom you have first met while you or they
was [sic] a detainee in any County Camp, facility or program. [¶] Do not use, possess or
remain in the presence of anyone possessing master keys, lock picks, dent puller, ‘slim
jim’, slide hammer, or other device you know to be an auto theft or burglary tool. [¶] Do
not remain in any vehicle without intact windows, locks and ignition nor in any vehicle
you suspect to be stolen.” Although William did not object to these terms in the trial
court, he now contends that the conditions are overbroad, vague and unreasonable.
Ordinarily, William’s failure to object would preclude review of his contention
that the probation conditions are unreasonable. (People v. Welch (1993) 5 Cal.4th 228,
235.) At least two courts have held that the failure to object waives constitutional
arguments as well. (People v. Gardineer (2000) 79 Cal.App.4th 148, 151; In re Josue S.
(1999) 72 Cal.App.4th 168, 173; but see In re Justin S. (2001) 93 Cal.App.4th 811, 814815 [constitutional challenges are immune from the waiver rule].) Here, however,
William argues in the alternative that his attorney’s failure to object constituted
ineffective assistance of counsel. Because the Attorney General has not suggested any
tactical reason for having failed to object, but argues instead that the conditions were
proper, we shall review the validity of the probation conditions on the merits.4
A. The probation condition restricting William from associating with gang
members and wearing gang clothing is not overbroad.
William contends this condition is overbroad because it fails to require that he
know that the person with whom he must not associate belongs to a gang or that the
clothing he may not wear is gang-related. In People ex rel. Gallo v. Acuna (1997) 14
Cal.4th 1090, 1117-1118, the court resolved this issue, holding that “the element of
knowledge is fairly implied” in a probation condition that prohibits associating with gang
4
At the outset, we reject William’s argument that the court’s use of the term “standard
gang conditions” in pronouncing sentence is unconstitutionally vague, because the document
signed by William specified precisely what those conditions are. Contrary to William’s
argument, it is clear that the gang conditions set forth on the document advising him of the terms
and conditions of his probation are the gang conditions ordered by the court, even though they
are labeled “special gang conditions” rather than “standard gang conditions.”
9
members. Such a knowledge requirement must also be read into the prohibition on
wearing gang-related clothing.
B. The probation condition preventing William from associating with anyone who
possesses a deadly weapon is not overbroad and does not violate William’s freedom of
association.
As with the first condition, a knowledge element must also be implied in the
requirement that William not associate with anyone possessing a deadly weapon, so that
William violates this provision only if he knows that one with whom he keeps company
is in possession of a deadly weapon. (See People ex rel. Gallo v. Acuna, supra, 14
Cal.4th at pp. 1117-1118.) As to the argument that this condition unconstitutionally
restricts William’s right to associate with someone who legally possesses a deadly
weapon, it is well established that juvenile probation conditions may be broader than
those pertaining to adult offenders. (In re Antonio R. (2000) 78 Cal.App.4th 937, 941; In
re Frank V. (1991) 233 Cal.App.3d 1232, 1243.) “This is because juveniles are deemed
to be more in need of guidance and supervision than adults, and because a minor’s
constitutional rights are more circumscribed. The state, when it asserts jurisdiction over a
minor, stands in the shoes of the parents. And a parent may ‘curtail a child’s exercise of
the constitutional rights . . . [because a] parent’s own constitutionally protected “liberty”
includes the right to “bring up children” [citation,] and to “direct the upbringing and
education of children.” [Citation.]’ [Citations.]” (In re Antonio R., supra, 78
Cal.App.4th at p. 941.) Accordingly, “conditions infringing on constitutional rights are
not automatically invalid [citation]; indeed, they will pass muster if tailored to fit the
individual probationer. [Citation.] For example, while a travel restriction may be proper
for a minor who lives outside the gang’s territory, it may be overbroad for one who lives,
works or goes to school within the area.” (In re Pedro Q. (1989) 209 Cal.App.3d 1368,
1373.) Here, some restriction on William’s associational rights is justified by his
demonstrated irresponsibility with regard to such weapons, and no showing was made of
any particular circumstances (such as being the child of a parent authorized or required to
possess a weapon) rendering this condition unreasonable as to William.
10
C. The probation condition prohibiting William from associating with anyone he
first meets while in a county facility or program does not infringe upon William’s
freedom of association and is not unreasonable.
As with the preceding condition, William’s constitutional right to free association
may be curtailed if the condition is tailored to his individual circumstances. The
Attorney General suggests that the condition is valid because William’s offense indicates
a susceptibility to peer pressure and potential gang involvement, and because other
participants in county programs who William might befriend, who have also engaged in
criminal behavior, might be a bad influence upon him. Certainly a parent, and by
extension the juvenile court, has the authority to limit William’s friends. Although the
wisdom of this condition may be questionable, it is not so unreasonable as to constitute
an abuse of discretion.
For the same reason, we reject William’s argument that this condition violates
People v. Lent (1975) 15 Cal.3d 481. Under People v. Lent, a probation condition is
valid unless it “ ‘(1) has no relationship to the crime of which the offender was convicted,
(2) relates to conduct which is not itself criminal, and (3) requires or forbids conduct
which is not reasonably related to future criminality.’ ” (Id. at p. 486.) By seeking to
limit potentially corrupting influences on William’s life, the condition is reasonably
related to preventing future criminality.
D. The probation condition prohibiting William from using, possessing or
remaining in the presence of anyone possessing burglary tools is not overbroad or
unreasonable under People v. Lent.
William contends this probation condition is overbroad because it prohibits the
possession of objects that may have a legitimate use, and is unreasonable under People v.
Lent, supra, 15 Cal.3d 481, because his conviction was unrelated to burglary or auto
theft. The Attorney General argues, however, that the condition is valid because the
circumstances of William’s crime indicated a gang affiliation and the Legislature has
found that burglary and vehicle theft are primary activities of criminal street gangs.
(§ 186.22, subds. (e)(10) & (11).) Accordingly, the restriction is not unconstitutionally
overbroad because it is tailored to William’s apparent gang membership and it is valid
11
under People v. Lent because it is reasonably related to the prevention of future
criminality. While the linkage between William’s possible gang membership and future
burglaries is perhaps tenuous, it is not unreasonable. Although William is correct that the
tools listed in the probation condition may be possessed legally by certain people, such as
hotel managers and auto mechanics, the juvenile court may reasonably decide that a 15year-old high school freshman, with possible gang affiliations, has no legitimate reason to
possess or to be with those who possess these tools. In that same vein, the court
reasonably concluded that by preventing William’s possession of these objects, it was
deterring future criminality.
E. The probation condition prohibiting William from remaining in a vehicle that has
broken windows, locks or ignitions is not overbroad.
William suggests that this condition is overbroad because there may be valid
reasons to remain in a vehicle with a broken window or lock. For instance, he
hypothesizes, his parent’s car may have been stolen and he may need to take it to a shop
to be repaired. This example notwithstanding, the juvenile court reasonably concluded
that the existence of a broken window or lock is circumstantial evidence that the vehicle
was stolen and that it is reasonable to restrict William’s presence in a potentially stolen
car. The probation condition imposes a clear restriction and does not require William to
make judgments about the merits of any explanation others may give him of the breakage
or concerning the ownership of a particular vehicle. Preventing William from driving a
family member’s car to the repair shop is not an unreasonable collateral effect of the
otherwise valid condition.
DISPOSITION
The clerk of the Alameda County Superior Court shall modify the minute order
entered on April 29, 2002, to reflect imposition of the special and standard gang
conditions, rather than the standard drug conditions, of probation. In all other respects,
the judgment is affirmed.
12
_________________________
Pollak, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Parrilli, J.
13
Trial court:
Alameda County Superior Court
Trial judge:
Honorable Winifred Y. Smith
Counsel for defendant and
appellant:
Kimberly B. Fitzgerald, under appointment by the Court
of Appeal.
Counsel for plaintiff and
respondent:
Bill Lockyer, Attorney General
Robert R. Anderson, Chief Assistant Attorney General
Gerald A. Engler, Senior Assistant Attorney General
René A. Chacón, Supervising Deputy Attorney General
Ryan B. McCarroll, Deputy Attorney General.
14
