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In re William V.
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 Williamâ 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 In the unpublished portion of the opinion, we conclude the probation conditions are valid.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 â school resource officerâ 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. â Weâ ll resource there for them. And also enforce laws. We also bring concerns about school policy to the administrationâ s attention.â 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, Williamâ s behavior changed. He became nervous and started pacing. Johannes approached William and asked him to remove the bandanna. William replied, â What rag? What red rag?â 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 principalâ 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 Johannesâ 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 â trembling quite heavily, his entire body, especially his hands, his lips, his jaw as he was talkingâ and Johannes was concerned for the safety of the campus. During the patsearch of Williamâ s outer clothing, the officer detected bulk around Williamâ 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 Williamâ s jacket and observed a handle protruding from Williamâ 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, Â§ 626.10, subd. (a)).1 Following a subsequent hearing, the juvenile court denied Williamâ 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 Williamâ s motion to suppress. The trial court denied Williamâ 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. â On appeal from the denial of a suppression motion, the court reviews the evidence in a light favorable to the trial courtâ 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 courtâ s legal conclusions.â (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 â wobblerâ 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. â 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.â (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. â 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.â (Ibid.) In balancing the competing interests of a schoolâ s need to maintain a proper educational environment and the studentâ 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. â Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.â (Id. at p. 341.) The court set forth a twofold inquiry for determining the reasonableness of a student search. The action must be â justified at its inceptionâ and the search, as actually conducted, must be â â reasonably related in scope to the circumstances which justified the interference in the first place.â â (Ibid.) â Under ordinary circumstances, a search of a student by a teacher or other school official will be â justified at its inceptionâ 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.â (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 â conducted by school officials in conjunction with or at the behest of law enforcement agencies.â (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 [â 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 enforcementâ ].) Recently, in In re Randy G. (2001) 26 Cal.4th 556, the California Supreme Court again declined to consider the appropriate â standard for assessing the lawfulness of seizures conducted by school officials in conjunction with or at the behest of law enforcement agencies,â 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, â 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 studentâ 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 â security officerâ is not constitutionally significant.â (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 cityâ 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 studentâ 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 â school policeâ 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 Williamâ 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 officerâ s salary, rather than on the officerâ 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, â â 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 activitiesâ 6 their own and those of other studentsâ 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.â â The fulfillment of the schoolâ 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 studentsâ Fourth Amendment rights. Nor is the police officerâ 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: â 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.â (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 courtâ 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 â 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.â (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 Williamâ s pocket as he approached. Williamâ s violation of the school rule prohibiting bandannas on school grounds justified the initial detention. Johannesâ 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 Williamâ s bulky clothes, Johannes reasonably lifted Williamâ s jacket to search his waistband. Accordingly, the scope of the search was â 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.â (T.L.O., supra, 469 U.S. at p. 342.) II. The probation conditions are valid.* As a condition of Williamâ s probation, he was ordered to comply with the â standard gang conditions.â 3 The document entitled â Terms and Conditions of Probationâ signed by William sets forth the gang conditions as follows: â 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. [Â¶] 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 Williamâ s compliance with the â standard drug conditions.â As the courtâ s oral pronouncement controls over the clerkâ s minute order, our remittitur shall direct the court to modify the minute order to reflect the proper probation condition. 8 present. [Â¶] 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. [Â¶] Do not use, possess or remain in the presence of anyone possessing master keys, lock picks, dent puller, â slim jimâ , slide hammer, or other device you know to be an auto theft or burglary tool. [Â¶] Do not remain in any vehicle without intact windows, locks and ignition nor in any vehicle you suspect to be stolen.â Although William did not object to these terms in the trial court, he now contends that the conditions are overbroad, vague and unreasonable. Ordinarily, Williamâ 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 attorneyâ 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 â the element of knowledge is fairly impliedâ in a probation condition that prohibits associating with gang 4 At the outset, we reject Williamâ s argument that the courtâ s use of the term â standard gang conditionsâ in pronouncing sentence is unconstitutionally vague, because the document signed by William specified precisely what those conditions are. Contrary to Williamâ 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 â special gang conditionsâ rather than â standard gang conditions.â 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 Williamâ 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 Williamâ 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.) â This is because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minorâ 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 â curtail a childâ s exercise of the constitutional rights . . . [because a] parentâ s own constitutionally protected â libertyâ includes the right to â bring up childrenâ [citation,] and to â direct the upbringing and education of children.â [Citation.]â [Citations.]â (In re Antonio R., supra, 78 Cal.App.4th at p. 941.) Accordingly, â 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 gangâ s territory, it may be overbroad for one who lives, works or goes to school within the area.â (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373.) Here, some restriction on Williamâ 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 Williamâ s freedom of association and is not unreasonable. As with the preceding condition, Williamâ 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 Williamâ 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 Williamâ 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 Williamâ 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 â â (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.â â (Id. at p. 486.) By seeking to limit potentially corrupting influences on Williamâ 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 Williamâ s crime indicated a gang affiliation and the Legislature has found that burglary and vehicle theft are primary activities of criminal street gangs. (Â§ 186.22, subds. (e)(10) & (11).) Accordingly, the restriction is not unconstitutionally overbroad because it is tailored to Williamâ 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 Williamâ 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 Williamâ 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 parentâ 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 Williamâ 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 memberâ 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 RenÃ© A. ChacÃ³n, Supervising Deputy Attorney General Ryan B. McCarroll, Deputy Attorney General. 14